Default. Whenever a Default shall be existing, the Administrative Agent may exercise from time to time any and all rights and remedies available to it under applicable law, in addition to those described in this section below. (a) Each Grantor agrees, in case of Default, (i) at the Administrative Agent’s request, to assemble, at its expense, all its Inventory and other Goods (other than Fixtures) at a convenient place or places acceptable to the Administrative Agent, and (ii) at the Administrative Agent’s request, to execute all such documents and do all such other things which may be necessary or desirable in order to enable the Administrative Agent or its nominee to be registered as owner of the Intellectual Property with any competent registration authority. (b) Notice of the intended disposition of the Collateral may be given by first-class mail, hand-delivery (through a delivery service or otherwise), facsimile or E-mail, and shall be deemed to have been “sent” upon deposit in the U.S. Mails with adequate postage properly affixed, upon delivery to an express delivery service or upon the electronic submission through telephonic or Internet services, as applicable. Each Grantor hereby agrees and acknowledges that (i) with respect to collateral that is: (A) perishable or threatens to decline speedily in value, or (B) is of a type customarily sold on a recognized market (including but not limited to, Investment Property), no notice of disposition need be given; and (ii) with respect to Collateral not described in clause (i) above, notification sent after the occurrence of and during the continuance of a Default and ten days before any proposed disposition provides notice within a reasonable time before disposition. (c) Each Grantor hereby agrees and acknowledges that a commercially reasonable disposition of Inventory, Equipment, Computer Hardware and Software, or Intellectual Property may be by lease or license of, in addition to the sale of, such Collateral. Each Grantor further agrees and acknowledges that a disposition: (i) made in the usual manner on any recognized market, or (ii) a disposition at the price current in any recognized market at the time of disposition, or (iii) a disposition in conformity with reasonable commercial practices among dealers in the type of property subject to the disposition; shall be deemed commercially reasonable. (d) Any cash proceeds of any disposition by the Administrative Agent of any of the Collateral shall be applied by the Administrative Agent to payment of expenses in connection with the Collateral, including reasonable attorneys’ fees and legal expenses, and thereafter to the payment of any and all of the Liabilities in the order of application set forth in Section 8.03 of the Credit Agreement, and thereafter any surplus will be paid promptly to the Grantor. The Administrative Agent need not apply or pay over for application noncash proceeds of collection and enforcement unless: (i) the failure to do so would be commercially unreasonable and (ii) the affected Grantor has provided the Administrative Agent with a written demand to apply or pay over such noncash proceeds on such basis.
Appears in 3 contracts
Sources: Credit Agreement (Deckers Outdoor Corp), Credit Agreement (Deckers Outdoor Corp), Credit Agreement (Deckers Outdoor Corp)
Default. Whenever a Default (a) Each of the following shall constitute an “Event of Default” hereunder: (i) failure by the Borrower to perform any material obligations under this Agreement, the Note or any other agreement between the Borrower and the Lender or by the Borrower in favor of the Lender, time being of the essence; (ii) the commencement of any bankruptcy or insolvency proceedings by or against the Borrower; (iii) material falsity in any certificate, statement, representation, warranty or audit at any time furnished by or on behalf of the Borrower or any endorser or guarantor or any other party liable for payment of all or part of the Secured Obligations, pursuant to or in connection with this Agreement or otherwise to the Lender, including warranties in this Agreement and including any omission to disclose any substantial contingent or liquidated liabilities or any material adverse change in facts disclosed by any certificate, statement, representation, warranty or audit furnished to the Lender; or (iv) any attachment or levy against the Collateral or any other occurrence that inhibits the Lender’s free access to the Collateral.
(b) Upon the occurrence of an Event of Default, the Lender may exercise such remedies and rights as are available hereunder, under the Note or otherwise. This paragraph is not intended to affect or impair any rights of the Lender with respect to any Secured Obligations that may now or hereafter be payable on demand.
(c) Upon the occurrence of any Event of Default, the Lender’s rights with respect to the Collateral shall be existing, those of a secured party under the Administrative Agent may exercise UCC and any other applicable law in effect from time to time time. The Lender shall also have any additional rights granted herein and in any other agreement now or hereafter in effect between the Borrower and the Lender. If requested by the Lender after the occurrence of an Event of Default, the Borrower will assemble the Collateral and make it available to the Lender at a place to be designated by the Lender.
(d) Upon the occurrence of any Event of Default, the Lender shall be entitled to exercise any and all rights with respect to the Collateral and to sell all or any part of the Collateral at public or private sale in accordance with the UCC, without advertisement, in such manner and order as the Lender may elect subject to complying with the UCC. The Lender may purchase the Collateral for its own account at any such sale. The Lender shall give the Borrower such notice of any public or private sale as may be required by the UCC, provided that to the extent notice of any such sale is required by the UCC, the Borrower agrees that at least ten days’ notice to the Borrower of the time and place of any public sale or the time after which any private sale is to be made shall constitute reasonable notification and provided further that, if the Lender fails to comply with this sentence in any respect, its liability for such failure shall be limited to the liability (if any) imposed on it as a matter of law under the UCC. The Borrower acknowledges that Collateral may be sold at a loss to the Borrower, and that, in such event, the Lender shall have no liability or responsibility to the Borrower for such loss. The Borrower further acknowledges that a private sale may result in prices and other terms less favorable to the seller than if such sale were a public sale and, notwithstanding such circumstances, agrees that no such private sale shall, to the extent permitted by applicable law, be deemed not to be “commercially reasonable” solely as a result of such prices and other sale terms. Upon any such sale, the Lender shall have the right to deliver, assign and transfer to the buyer thereof the Collateral so sold. Each buyer at any such sale shall hold the Collateral so sold absolutely and free from any claim or right of whatsoever kind, including any equity or right of redemption of the Borrower that may be waived or any other right or claim of the Borrower, and the Borrower, to the extent permitted by law, hereby specifically waives all rights of redemption, stay or appraisal that the Borrower has or may have under any law now existing or hereafter adopted. Without limiting any other rights and remedies available to it under applicable lawthe Lender, in addition the Borrower expressly acknowledges and agrees that with respect to those described in this section below.
(a) Each Grantor agreesCollateral consisting of notes, in case of Defaultbonds or other securities which are not sold on a recognized market, (i) at the Administrative Agent’s request, to assemble, at its expense, all its Inventory and other Goods (other than Fixtures) at a convenient place or places acceptable to the Administrative Agent, and (ii) at the Administrative Agent’s request, to execute all such documents and do all such other things which may be necessary or desirable in order to enable the Administrative Agent or its nominee to be registered as owner of the Intellectual Property with any competent registration authority.
(b) Notice of the intended disposition of the Collateral may be given by first-class mail, hand-delivery (through a delivery service or otherwise), facsimile or E-mail, and Lender shall be deemed to have been “sent” upon deposit conducted a commercially reasonable sale of such Collateral if (a) such sale is conducted by any nationally recognized broker-dealer (including any affiliate of the Lender), investment banker or any other method common in the U.S. Mails with adequate postage properly affixedsecurities industry, upon delivery to an express delivery service or upon the electronic submission through telephonic or Internet services, as applicable. Each Grantor hereby agrees and acknowledges that (i) with respect to collateral that is: (A) perishable or threatens to decline speedily in value, or (B) is of a type customarily sold on a recognized market (including but not limited to, Investment Property), no notice of disposition need be given; and (iib) if the purchaser is the Lender or any affiliate of the Lender, the sale price received by the Lender or any such affiliate in connection with respect to Collateral not described in clause (i) abovesuch sale is reasonably supported by quotations received from one or more other nationally recognized broker-dealers, notification sent after the occurrence of and during the continuance of a Default and ten days before any proposed disposition provides notice within a reasonable time before dispositioninvestment bankers or other financial institutions.
(ce) Each Grantor hereby agrees The Borrower shall pay all costs and acknowledges that a commercially reasonable disposition of Inventoryexpenses incurred by the Lender in enforcing this Agreement, Equipmentrealizing upon any Collateral and collecting any Secured Obligations (including attorneys’ fees) whether suit is brought or not and whether incurred in connection with collection, Computer Hardware and Softwaretrial, arbitration, appeal or Intellectual Property may be by lease or license ofotherwise and, in addition to the sale of, such Collateral. Each Grantor further agrees and acknowledges that a disposition: (i) made in extent of the usual manner on any recognized market, or (ii) a disposition at the price current in any recognized market at the time of disposition, or (iii) a disposition in conformity with reasonable commercial practices among dealers in the type of property subject to the disposition; shall be deemed commercially reasonable.
(d) Any cash proceeds of any disposition by the Administrative Agent Borrower’s liability for repayment of any of the Collateral Secured Obligations, shall be applied by liable for any deficiencies in the Administrative Agent event the Proceeds of disposition of the Collateral do not satisfy the Secured Obligations in full. Nothing contained herein shall be deemed to payment of expenses in connection with require the Collateral, including reasonable attorneys’ fees and legal expenses, and thereafter Lender to proceed against the Collateral or any part thereof before or as a condition to the payment pursuit of any of its other rights and all of the Liabilities in the order of application set forth in Section 8.03 of the Credit Agreement, and thereafter any surplus will be paid promptly remedies with respect to the Grantor. The Administrative Agent need not apply or pay over for application noncash proceeds of collection and enforcement unless: (i) the failure to do so would be commercially unreasonable and (ii) the affected Grantor has provided the Administrative Agent with a written demand to apply or pay over such noncash proceeds on such basisSecured Obligations.
Appears in 3 contracts
Sources: Consolidated Security Agreement (Starco Brands, Inc.), Security Agreement (Starco Brands, Inc.), Security Agreement (Starco Brands, Inc.)
Default. Whenever a Default The occurrence of any one or more of the following events shall be existingconstitute an “Event of Default” as such term is used herein:
a. A default in the payment of any amount due under this Note on the due date therefor;
b. Failure of Debtor to comply with or to perform when due any other term, obligation, covenant or condition contained in this Note or in any of the Administrative Agent other agreements, instruments and documents entered into in connection with the Debt Obligation (together with this Note, as the same may exercise from time to time hereafter be amended or supplemented, the “Debt Obligation Documents”);
c. Any representation, warranty or statement made by Debtor or any other obligor, guarantor, surety or third-party pledgor with respect to the Debt Obligation (each, an “Other Obligor”) in the Debt Obligation Documents or any other instrument now or hereafter evidencing, securing or in any manner relating to the Debt Obligation proves untrue in any material respect;
d. A default by any Other Obligor under any of the Debt Obligation Documents;
e. Debtor shall become insolvent or shall generally not pay its debts as they mature or shall apply for, shall consent to, or shall acquiesce in the appointment of a custodian, trustee or receiver of Debtor, or for a substantial part of the property thereof or, in the absence of such application, consent or acquiescence, a custodian, trustee or receiver shall be appointed for Debtor or for a substantial part of the property thereof and shall not be discharged within 60 days; or Debtor makes an assignment for the benefit of creditors;
f. Any bankruptcy, reorganization, debt arrangement or other proceedings under any bankruptcy or insolvency law shall be instituted by or against Debtor, and, if instituted against Debtor, shall have been consented to or acquiesced in by Debtor, or shall remain undismissed for 60 days, or an order for relief shall have been entered against Debtor, or Debtor shall take any action to approve institution of, or acquiescence in, such a proceeding;
g. Any of the events set forth in the foregoing subsections e. or f. shall occur with respect to any Other Obligor. Upon the occurrence of an Event of Default, at the option of Creditor, the entire balance of principal together with all accrued interest thereon shall, without demand or notice, immediately become due and payable and so long as such Event of Default continues, the entire balance of principal together with all accrued interest shall bear interest at a Default Rate of 10% per annum. Upon the occurrence of an Event of Default, Creditor may exercise any and all rights and remedies available to it may have under the Debt Obligation Documents, and under applicable law, law and in addition to those described in this section belowequity.
(a) Each Grantor agrees, in case of Default, (i) at the Administrative Agent’s request, to assemble, at its expense, all its Inventory and other Goods (other than Fixtures) at a convenient place or places acceptable to the Administrative Agent, and (ii) at the Administrative Agent’s request, to execute all such documents and do all such other things which may be necessary or desirable in order to enable the Administrative Agent or its nominee to be registered as owner of the Intellectual Property with any competent registration authority.
(b) Notice of the intended disposition of the Collateral may be given by first-class mail, hand-delivery (through a delivery service or otherwise), facsimile or E-mail, and shall be deemed to have been “sent” upon deposit in the U.S. Mails with adequate postage properly affixed, upon delivery to an express delivery service or upon the electronic submission through telephonic or Internet services, as applicable. Each Grantor hereby agrees and acknowledges that (i) with respect to collateral that is: (A) perishable or threatens to decline speedily in value, or (B) is of a type customarily sold on a recognized market (including but not limited to, Investment Property), no notice of disposition need be given; and (ii) with respect to Collateral not described in clause (i) above, notification sent after the occurrence of and during the continuance of a Default and ten days before any proposed disposition provides notice within a reasonable time before disposition.
(c) Each Grantor hereby agrees and acknowledges that a commercially reasonable disposition of Inventory, Equipment, Computer Hardware and Software, or Intellectual Property may be by lease or license of, in addition to the sale of, such Collateral. Each Grantor further agrees and acknowledges that a disposition: (i) made in the usual manner on any recognized market, or (ii) a disposition at the price current in any recognized market at the time of disposition, or (iii) a disposition in conformity with reasonable commercial practices among dealers in the type of property subject to the disposition; shall be deemed commercially reasonable.
(d) Any cash proceeds of any disposition by the Administrative Agent of any of the Collateral shall be applied by the Administrative Agent to payment of expenses in connection with the Collateral, including reasonable attorneys’ fees and legal expenses, and thereafter to the payment of any and all of the Liabilities in the order of application set forth in Section 8.03 of the Credit Agreement, and thereafter any surplus will be paid promptly to the Grantor. The Administrative Agent need not apply or pay over for application noncash proceeds of collection and enforcement unless: (i) the failure to do so would be commercially unreasonable and (ii) the affected Grantor has provided the Administrative Agent with a written demand to apply or pay over such noncash proceeds on such basis.
Appears in 3 contracts
Sources: Asset Transfer Agreement (Sundance Strategies, Inc.), Asset Transfer Agreement (Sundance Strategies, Inc.), Nibs Transfer Agreement (Sundance Strategies, Inc.)
Default. Whenever a Default If any of the following events shall be existing, the Administrative Agent may exercise from time occur (each such event being referred to time any and all rights and remedies available to it under applicable law, in addition to those described in this section below.
herein as an “Event of Default”): (a) Each Grantor agreesthe non-payment of any principal or interest on this Note or any other Obligation on the date when due; (b) the death, dissolution, liquidation or insolvency of any Obligor; (c) the filing by or against any Obligor of a proceeding under the U.S. Bankruptcy Code; (d) the application for appointment of a receiver for, the making of a general assignment for the benefit of creditors of, or the filing of any proceeding seeking any other relief afforded debtors or affecting rights of creditors generally under the laws of any jurisdiction by or against any Obligor; (e) the default by any Obligor in case the payment or performance of Default, (i) at the Administrative Agent’s requestany obligation under this Note or under any deed of trust, to assemblemortgage, at its expense, all its Inventory and security agreement or any other Goods (other than Fixtures) at a convenient place or places acceptable to the Administrative Agent, and (ii) at the Administrative Agent’s request, to execute all such documents and do all such other things which may be necessary or desirable in order to enable the Administrative Agent or its nominee to be registered as owner document securing payment of the Intellectual Property with any competent registration authority.
(b) Notice of the intended disposition of the Collateral may be given by first-class mail, hand-delivery (through a delivery service or otherwise), facsimile or E-mail, and shall be deemed to have been “sent” upon deposit in the U.S. Mails with adequate postage properly affixed, upon delivery to an express delivery service or upon the electronic submission through telephonic or Internet services, as applicable. Each Grantor hereby agrees and acknowledges that (i) with respect to collateral that is: (A) perishable or threatens to decline speedily in value, or (B) is of a type customarily sold on a recognized market (including but not limited to, Investment Property), no notice of disposition need be given; and (ii) with respect to Collateral not described in clause (i) above, notification sent after the occurrence of and during the continuance of a Default and ten days before any proposed disposition provides notice within a reasonable time before disposition.
(c) Each Grantor hereby agrees and acknowledges that a commercially reasonable disposition of Inventory, Equipment, Computer Hardware and Software, or Intellectual Property may be by lease or license of, in addition to the sale of, such Collateral. Each Grantor further agrees and acknowledges that a disposition: (i) made in the usual manner on any recognized marketthis Note, or (ii) a disposition at any obligation under any other note or under any other agreement of any Obligor with or in favor of Bank; (f) any judgment, garnishment, seizure, tax lien or levy against any assets of any Obligor; (g) any material adverse change in the price current financial condition of any Obligor, or any material discrepancy between the financial statements submitted by any Obligor and the actual financial condition of any Obligor; (h) any statement, warranty, or representation made by any Obligor to Bank proves to be untrue in any recognized market at the time of disposition, or (iii) a disposition in conformity with reasonable commercial practices among dealers in the type of property subject to the dispositionmaterial respect; shall be deemed commercially reasonable.
(d) Any cash proceeds of any disposition by the Administrative Agent of any of the Collateral shall be applied by the Administrative Agent to payment of expenses in connection with the Collateral, including reasonable attorneys’ fees and legal expenses, and thereafter to the payment of any and all of the Liabilities in the order of application set forth in Section 8.03 of the Credit Agreement, and thereafter any surplus will be paid promptly to the Grantor. The Administrative Agent need not apply or pay over for application noncash proceeds of collection and enforcement unless: (i) any default by any Obligor in the failure payment or performance of any material liabilities, indebtedness or obligations to any other creditor; (j) any merger, consolidation or change in any Obligor’s type or form of organizational structure without the prior written consent of Bank; or (k) any discontinuance or termination of any guaranty of all or any portion of this Note by any Obligor or any attempt by any Obligor to do so would so; then, at the option of Bank, the full amount of this Note and all other obligations and liabilities, direct or contingent, of any Obligor to Bank shall be commercially unreasonable immediately due and (ii) the affected Grantor has provided the Administrative Agent with a written demand to apply payable without notice or pay over such noncash proceeds on such basisdemand.
Appears in 3 contracts
Sources: Commercial Term Note (Viemed Healthcare, Inc.), Commercial Term Note (Viemed Healthcare, Inc.), Commercial Term Note (Viemed Healthcare, Inc.)
Default. Whenever A default on any Supplement or the Indebtedness is a Default shall default on this Master Loan Agreement. A default on this Master Loan Agreement or any Supplement shall, at Lender’s option, also be existing, the Administrative Agent may exercise from time to time any a default on all Supplements and all rights the Indebtedness. Borrower is in default on this Master Loan Agreement, including any Supplement, under any one or more of the following circumstances (individually and remedies available to it under applicable law, in addition to those described in this section below.
collectively called an “Event of Default”): (a) Each Grantor agrees, in case of Default, (iBorrower or any guarantor fails to pay when due any Indebtedness or amount(s) at the Administrative Agent’s request, to assemble, at its expense, all its Inventory and owed under this Agreement or any other Goods (other than Fixtures) at a convenient place or places acceptable to the Administrative Agent, and (ii) at the Administrative Agent’s request, to execute all such documents and do all such other things which may be necessary or desirable in order to enable the Administrative Agent or its nominee to be registered as owner of the Intellectual Property with any competent registration authority.
Loan Document; (b) Notice of the intended disposition of the Collateral may Borrower or any guarantor is declared to be given by first-class mailin default on this Agreement, hand-delivery (through a delivery service or otherwise), facsimile or E-mail, and shall be deemed to have been “sent” upon deposit in the U.S. Mails with adequate postage properly affixed, upon delivery to an express delivery service or upon the electronic submission through telephonic or Internet services, as applicable. Each Grantor hereby agrees and acknowledges that (i) with respect to collateral that is: (A) perishable or threatens to decline speedily in valueany other Loan Document, or on any other loan or obligation of Borrower to Lender or in which Lender has an interest; (Bc) is of a type customarily sold on a recognized market (Borrower breaches any term, condition or representation in this Agreement or in any other Loan Document for this or any other loan by this or any other lender, including but not limited toto any other Farm Credit lender; (d) Borrower's representation(s) to this or any other lender in connection with any loan are materially false or misleading; (e) Lender determines that Borrower is unable to repay as agreed the sums owed Lender under this Agreement, Investment Property)or Lender in good faith otherwise deems itself insecure; (f) Lender's reasonable determination that a material adverse change has occurred in the financial condition of Borrower or in the value of the Collateral; (g) Borrower's death, no notice dissolution, incapacity or termination of disposition need be givenexistence; and (iih) with respect Borrower's insolvency, business failure, application for or consent to Collateral not described in clause appointment of a receiver/custodian or trustee for itself or any of its assets, or an assignment to an agent authorized to liquidate any substantial amount of assets, or an assignment for the benefit of creditors by, or commencement of any proceeding under any bankruptcy or insolvency law by or against Borrower, or any guarantor, endorser, or surety for Borrower; (i) aboveAny judgment, notification sent after the occurrence writ, levy, lien, attachment, notice of and during the continuance of a Default and ten days before any proposed disposition provides notice within a reasonable time before disposition.
(c) Each Grantor hereby agrees and acknowledges that a commercially reasonable disposition of Inventorytax lien, Equipment, Computer Hardware and Softwaretax lien, or Intellectual Property may be by lease similar process is entered or license offiled against Borrower, in addition any guarantor or any of Borrower's or any of guarantor's properties and is not vacated, bonded, or stayed to the sale of, such Collateral. Each Grantor further agrees and acknowledges that a disposition: satisfaction of Lender; (ij) made in the usual manner on An Event of Default occurs under any recognized market, or (ii) a disposition at the price current in any recognized market at the time of disposition, or (iii) a disposition in conformity with reasonable commercial practices among dealers in the type of property subject guaranty given to the disposition; shall be deemed commercially reasonable.
(d) Any cash proceeds of any disposition by the Administrative Agent of any of the Collateral shall be applied by the Administrative Agent to payment of expenses Lender in connection with this Agreement, any Supplement or the CollateralIndebtedness; or any guarantor shall purport to terminate, including reasonable attorneys’ fees and legal expensesrepudiate or contest any such guaranty; or any guarantor who is a natural person shall die; or any guarantor that is not a natural person shall be dissolved or terminated; or (k) Borrower sells, and thereafter leases, conveys, alienates, or transfers, or enters into any agreement for the sale, lease, conveyance, alienation, transfer or nonuse of any water or water rights, or “Water Asset”, as such may be defined in any deed of trust, mortgage, security agreement or other agreement relating to the payment pledge of any and all of the Liabilities in the order of application set forth in Section 8.03 of the Credit Agreement, and thereafter any surplus will be paid promptly to the Grantor. The Administrative Agent need not apply water or pay over for application noncash proceeds of collection and enforcement unless: (i) the failure to do so would be commercially unreasonable and (ii) the affected Grantor has provided the Administrative Agent with a written demand to apply or pay over such noncash proceeds on such basiswater rights.
Appears in 3 contracts
Sources: Master Loan Agreement, Master Loan Agreement (Limoneira CO), Master Loan Agreement (Limoneira CO)
Default. Whenever a Default shall be existing, the Administrative Agent may exercise from time to time any and all rights and remedies available to it under applicable law, in addition to those described in this section below.
(a) Each Grantor agreesUpon breach by the Developer of any covenant, in case term, condition or requirement of Defaultthis Agreement, (i) at or upon the Administrative Agent’s requestDeveloper becoming insolvent or making an assignment for the benefit of creditors, to assemblethe Town, at its expenseoption, all its Inventory and other Goods (other than Fixtures) at a convenient place or places acceptable to may declare that the Administrative Agent, and (ii) at the Administrative Agent’s request, to execute all such documents and do all such other things which may be necessary or desirable Developer is in order to enable the Administrative Agent or its nominee to be registered as owner of the Intellectual Property with any competent registration authoritydefault.
(b) Notice of the intended disposition such default ("Notice of the Collateral may Default") shall be given by first-class mailthe Town and if the Developer does not remedy such default within such time as provided in the notice, hand-delivery (through a delivery service or otherwise), facsimile or E-mail, the Town may declare that the Developer is in final default under this Agreement and shall be deemed to have been “sent” upon deposit in the U.S. Mails with adequate postage properly affixed, upon delivery to an express delivery service or upon the electronic submission through telephonic or Internet services, as applicable. Each Grantor hereby agrees and acknowledges that (i) with respect to collateral that is: (A) perishable or threatens to decline speedily in value, or (B) is of a type customarily sold on a recognized market (including but not limited to, Investment Property), no then forthwith give notice of disposition need be given; and final default (ii"Notice of Final Default") with respect thereof to Collateral not described in clause (i) above, notification sent after the occurrence of and during the continuance of a Default and ten days before any proposed disposition provides notice within a reasonable time before dispositionDeveloper.
(c) Each Grantor hereby agrees Upon Notice of Default having been given, the Town may require all work by the Developer, their servants, agents, independent contractors and acknowledges that a commercially reasonable disposition of Inventory, Equipment, Computer Hardware sub-contractors to cease (other than any work necessary to remedy such default) until such default has been remedied and Software, or Intellectual Property may be by lease or license of, in addition to the sale of, such Collateral. Each Grantor further agrees and acknowledges that a disposition: (i) made in the usual manner on any recognized marketevent of final default, or (ii) a disposition at the price current in any recognized market at the time of disposition, or (iii) a disposition in conformity with reasonable commercial practices among dealers in the type of property subject may require all work as aforesaid to the disposition; shall be deemed commercially reasonablecease.
(d) Any cash proceeds Upon Notice of Final Default having been given to the Developer, the Town may, at its option, adopt or pursue any disposition or all of the following remedies, but shall not be bound to do so:
(i) Enter upon the Lands shown on the Plan by its servants, agents and contractors and complete any work, services repairs or maintenance wholly or in part required herein to be done by the Administrative Agent of Developer and collect the cost thereof from the Developer and/or enforce any of the Collateral shall be applied security available to it;
(ii) Make any payment which out to have been made by the Administrative Agent Developer and upon demand collect the amount thereof from the Developer and/or enforce any security available to it;
(iii) Retain any sum of money heretofore paid by the Developer to the Town for any purpose and apply the same in payment of expenses in connection with or part payment for any work which the CollateralTown may undertake;
(iv) Assume any work or services at its option, including reasonable attorneys’ fees and legal expenseswhether the same are completed or not, and thereafter the Developer shall have no claim or title hereto or remuneration therefor;
(v) Bring action to compel specific performance of all or any part of this Agreement or for damages;
(vi) Add any costs incurred by the Town to the payment of tax collector's roll for the Lands and collect such costs by action or in like manner as municipal real property taxes; or
(vii) Exercise any and all of the Liabilities in the order of application set forth in Section 8.03 of the Credit Agreement, and thereafter any surplus will be paid promptly other remedy granted to the Grantor. The Administrative Agent need not apply Town under the terms of this Agreement or pay over for application noncash proceeds of collection and enforcement unless: (i) available to the failure to do so would be commercially unreasonable and (ii) the affected Grantor has provided the Administrative Agent with a written demand to apply or pay over such noncash proceeds on such basisTown in law.
Appears in 2 contracts
Sources: Development Agreement, Development Agreement
Default. Whenever a Default shall be existinga. For the purpose of this Agreement, the Administrative Agent may exercise from time to time any and all rights and remedies available to it under applicable law, in addition to those described in this section below.
(a) Each Grantor agrees, in case an "Event of Default, (i) at the Administrative Agent’s request, to assemble, at its expense, all its Inventory and other Goods (other than Fixtures) at a convenient place or places acceptable to the Administrative Agent, and (ii) at the Administrative Agent’s request, to execute all such documents and do all such other things which may be necessary or desirable in order to enable the Administrative Agent or its nominee to be registered as owner of the Intellectual Property with any competent registration authority.
(b) Notice of the intended disposition of the Collateral may be given by first-class mail, hand-delivery (through a delivery service or otherwise), facsimile or E-mail, and " shall be deemed to have been “sent” occurred:
(1) upon deposit the failure by Merchant or Agent to perform promptly and fully any material obligation or covenant hereunder or any material obligation or covenant in any document delivered pursuant hereto or any collateral agreement to this Agreement after having received five (5) days' prior written notice, except in the U.S. Mails with adequate postage properly affixedcase of a nonmonetary default which is incapable of being cured within such notice period and diligently proceeds to cure said default and (a) the party in default has taken all steps necessary to commence to cure such default within such notice period and (b) such failure to cure, upon delivery in the case of a default by Merchant, will not adversely affect, in any material way, Agent's ability to conduct the Sale in the manner contemplated herein;
(2) if any of the warranties or representations made by Merchant or Agent herein proves to be untrue or false in a material way; or
(3) if any breach of this Agreement by Merchant results in the Agent being unable to conduct or complete the Sale at any Store as contemplated herein.
b. In the event of an express delivery service interruption of the Sale and/or occurrence of an Event of Default resulting from any act or upon omission of Merchant which prevents Agent from conducting or completing the electronic submission through telephonic or Internet servicesSale at any Store as provided by this Agreement, as applicable. Each Grantor hereby agrees and acknowledges that Agent may, at its option, either (i) proceed with respect to collateral that is: (Athe Sale at the Store location(s) perishable or threatens to decline speedily in value, affected; or (Bii) is require Merchant, at Merchant's expense, to move the Merchandise to another reasonably proximate Store designated by Agent; or (iii) notify Merchant as to the termination of a type customarily sold on a recognized market the Sale as to the particular Store location, in which event, Agent shall be made whole and (including but not limited to, Investment Property), no notice i) Agent shall be reimbursed for all its out of disposition need be givenpocket expenses referable to such Store; and (ii) Merchant shall be entitled to retain all Proceeds at such Store prior to the interruption or Event of Default as well as any remaining Merchandise. Merchant acknowledges that Agent would be irreparably injured in the event of any failure by Merchant to promptly and fully perform any obligation hereunder if such failure directly or indirectly interferes with respect the conduct by Agent of the Sale, and hereby consents, in the event of any such failure or in the event that any such failure is threatened or appears imminent, to Collateral not described in clause (i) above, notification sent after the occurrence entry of and during an injunction specifically enforcing the continuance terms of a Default and ten days before any proposed disposition provides notice within a reasonable time before dispositionthis Agreement.
(c) Each Grantor hereby agrees c. No right or remedy granted in or pursuant to this Agreement shall be exclusive of any other right or remedy so granted or otherwise available. Every such right or remedy shall be cumulative and acknowledges that a commercially reasonable disposition of Inventory, Equipment, Computer Hardware and Software, or Intellectual Property may shall be by lease or license of, in addition to the sale of, such Collateral. Each Grantor further agrees and acknowledges that a disposition: (i) made every other right or remedy so granted or existing at law or in the usual manner on any recognized marketequity or by statute, or (ii) created, granted or existing pursuant to any agreement to which Agent and/or Merchant is or may hereafter become a disposition at the price current in any recognized market at the time of disposition, or (iii) a disposition in conformity with reasonable commercial practices among dealers in the type of property subject to the disposition; shall be deemed commercially reasonableparty.
(d) Any cash proceeds of any disposition by the Administrative Agent of any of the Collateral shall be applied by the Administrative Agent to payment of expenses in connection with the Collateral, including reasonable attorneys’ fees and legal expenses, and thereafter to the payment of any and all of the Liabilities in the order of application set forth in Section 8.03 of the Credit Agreement, and thereafter any surplus will be paid promptly to the Grantor. The Administrative Agent need not apply or pay over for application noncash proceeds of collection and enforcement unless: (i) the failure to do so would be commercially unreasonable and (ii) the affected Grantor has provided the Administrative Agent with a written demand to apply or pay over such noncash proceeds on such basis.
Appears in 2 contracts
Sources: Agency Agreement (Diy Home Warehouse Inc), Agency Agreement (Diy Home Warehouse Inc)
Default. Whenever a Default The following events shall be existingconsidered an "Event of Default":
(i) Merchant becomes subject to any voluntary or involuntary bankruptcy, insolvency, reorganization or liquidation proceeding, a receiver is appointed for Merchant, or ▇▇▇▇▇▇▇▇ makes an assignment for the Administrative Agent benefit of creditors, or admits its inability to pay its debts as they become due; or
(ii) Merchant fails to pay or reimburse the fees, expenses or charges referenced herein when they become due; or
(iii) Merchant is in default of any terms or conditions of this Agreement whether by reason of its own action or inaction or that of another; or
(iv) Processor reasonably believes that there has been a material deterioration in Merchant's financial condition; or
(v) any standby letter of credit, if and as may exercise from be required pursuant to Section 20, will be cancelled, will not be renewed, or is not in full force and effect; or
(vi) Merchant ceases to do business as a going concern, or there is a change in ownership of Merchant which changes the identity of any person or entity having, directly or indirectly, more than 30% of either the legal or beneficial ownership of Merchant. Upon the occurrence of an Event of Default, Processor may at any time thereafter terminate this Agreement by giving Merchant written notice thereof. However, except in instances where immediate termination is required by any Association or if Member Bank and/or Processor reasonably believe that the Event of Default poses material risk to time any and all rights and remedies available to it under either of them or involves a violation of applicable law, in addition Merchant will have 30 days following Processor’s notice to those described in this section below.
cure an Event of Default under Section (a) Each Grantor agrees, in case of Defaultii), (iiii), (iv) at or (v) prior to termination under this section. Termination of Merchant for any reason shall not relieve Merchant from any liability or obligation to Processor. If, prior to the Administrative Agent’s requestdate on which the then current term of this Agreement is scheduled to expire, either this Agreement is terminated by Processor as specifically permitted by this Agreement, or Merchant for any reason discontinues receiving the Services from Processor (except as may be specifically permitted by this Agreement), Merchant shall be liable to assemble, at its expense, all its Inventory Processor for liquidated damages in an amount equal to the average monthly revenue (which does not include interchange and other Goods (other than FixturesAssociation fees) at payable to Processor as a convenient place or places acceptable to result of this Agreement for the Administrative Agent, and (ii) at three calendar months in which such revenue was the Administrative Agent’s request, to execute all such documents and do all such other things which may be necessary or desirable in order to enable highest during the Administrative Agent or its nominee to be registered as owner of the Intellectual Property with any competent registration authority.
(b) Notice of the intended disposition of the Collateral may be given by first-class mail, hand-delivery (through a delivery service or otherwise), facsimile or E-mail, and shall be deemed to have been “sent” upon deposit in the U.S. Mails with adequate postage properly affixed, upon delivery to an express delivery service or upon the electronic submission through telephonic or Internet services, as applicable. Each Grantor hereby agrees and acknowledges that (i) with respect to collateral that is: (A) perishable or threatens to decline speedily in valuepreceding 12 calendar months, or (B) such shorter period if this Agreement has not been in effect for 12 months, multiplied by the number of months remaining during the then current term of this Agreement. ▇▇▇▇▇▇▇▇ recognizes and agrees that the liquidated damages are fair and reasonable because it is not possible to establish the actual increase in volume and activity by Merchant during the term of this Agreement. Merchant shall also reimburse Processor for any damage, loss or expense incurred by Processor as a result of a type customarily sold on a recognized market (breach by Merchant, including but not limited to, Investment Property), no notice of disposition need be given; and (ii) with respect to Collateral not described in clause (i) above, notification sent after the occurrence of and during the continuance of a Default and ten days before any proposed disposition provides notice within a reasonable time before disposition.
(c) Each Grantor hereby agrees and acknowledges that a commercially reasonable disposition of Inventory, Equipment, Computer Hardware and Software, or Intellectual Property may be by lease or license of, in addition to the sale of, such Collateral. Each Grantor further agrees and acknowledges that a disposition: (i) made in the usual manner on any recognized market, or (ii) a disposition at the price current damages set forth in any recognized market at the time of dispositionaddendum and/or schedule and/or exhibit hereto and including all past due, or (iii) a disposition in conformity with reasonable commercial practices among dealers in the type of property subject to the disposition; shall be deemed commercially reasonable.
(d) Any cash proceeds of any disposition unpaid and/or future invoices for services rendered by the Administrative Agent of any of the Collateral shall be applied by the Administrative Agent to payment of expenses Processor in connection with this Agreement. All such amounts shall be due and payable by Merchant upon demand. Processor shall also have the Collateral, including reasonable attorneys’ fees and legal expensesoption to require Merchant to reacquire all outstanding sales transactions acquired by Processor hereunder. In addition to, and thereafter to the payment of any and all not in limitation of the Liabilities foregoing, Processor may refuse to provide the Services in the order of application set forth in Section 8.03 of event it has not been paid for the Credit Agreement, and thereafter any surplus will be paid promptly to the Grantor. The Administrative Agent need not apply or pay over for application noncash proceeds of collection and enforcement unless: (i) the failure to do so would be commercially unreasonable and (ii) the affected Grantor has Services as provided the Administrative Agent with a written demand to apply or pay over such noncash proceeds on such basisherein.
Appears in 2 contracts
Sources: Bank Card Merchant Agreement, Bank Card Merchant Agreement Application
Default. Whenever a 6.1 Upon the occurrence of (herein referred to as an "Event of Default"): (i) any Event of Default shall be existing(as defined in the Credit Agreement, the Administrative other Loan Documents, or any of the documents executed in connection with any of the Obligations), (ii) any default (after giving effect to any applicable grace or cure periods) under any such documents that does not have a defined set of "Events of Default," Agent may exercise from time to time any and all one or more of the rights and remedies available granted pursuant to it this Agreement or given to Agent under applicable law, in addition to those described in this section below.
(a) Each Grantor agrees, in case of Default, (i) at the Administrative Agent’s request, to assemble, at its expense, all its Inventory and other Goods (other than Fixtures) at a convenient place or places acceptable to the Administrative Agent, and (ii) at the Administrative Agent’s request, to execute all such documents and do all such other things which as it may be necessary or desirable in order amended from time to enable the Administrative Agent or its nominee to be registered as owner of the Intellectual Property with any competent registration authority.
(b) Notice of the intended disposition of the Collateral may be given by first-class mailtime, hand-delivery (through a delivery service or otherwise), facsimile or E-mail, and shall be deemed to have been “sent” upon deposit in the U.S. Mails with adequate postage properly affixed, upon delivery to an express delivery service or upon the electronic submission through telephonic or Internet services, as applicable. Each Grantor hereby agrees and acknowledges that (i) with respect to collateral that is: (A) perishable or threatens to decline speedily in value, or (B) is of a type customarily sold on a recognized market (including but not limited toto the right to take possession and sell or otherwise dispose of the Securities Collateral, Investment Property)and, no notice at its option, exercise any rights of ownership pertaining to the Securities Collateral as Agent deems necessary to preserve the value and receive the benefits of the Securities Collateral. Pledgor waives all claims for damages by reason of any seizure, repossession, retention or sale of the Securities Collateral under the terms of this Agreement, other than claims arising from the gross negligence or willful misconduct of Agent.
6.2 The net proceeds arising from the disposition need of the Securities Collateral after deducting expenses incurred by Agent will be given; and (ii) with respect applied to Collateral not described the Obligations in clause (i) above, notification sent the order determined by Agent. If any excess remains after the occurrence of and during the continuance of a Default and ten days before any proposed disposition provides notice within a reasonable time before disposition.
(c) Each Grantor hereby agrees and acknowledges that a commercially reasonable disposition of Inventory, Equipment, Computer Hardware and Software, or Intellectual Property may be by lease or license of, in addition proceeds have been applied to the sale ofObligations, such Collateralthe same will be paid to Pledgor after deducting all costs and expenses of realizing on the Securities Collateral and enforcing the Obligations of Pledgor. Each Grantor further agrees and acknowledges that a disposition: (i) made in the usual manner on any recognized market, or (ii) a disposition at the price current in any recognized market at the time of disposition, or (iii) a disposition in conformity with reasonable commercial practices among dealers in the type of property subject to the disposition; shall be deemed commercially reasonable.
(d) Any cash proceeds of any disposition by the Administrative Agent of any of the Collateral shall be applied by the Administrative Agent to payment of expenses in connection with the Collateral, including reasonable attorneys’ fees and legal expenses, and thereafter to the payment of any and If after exhausting all of the Liabilities in the order of application set forth in Section 8.03 of the Credit AgreementSecurities Collateral, and thereafter any surplus there should be a deficiency, Pledgor will be paid promptly liable therefor to Agent, provided, however, that nothing contained herein will obligate Agent to proceed against the Grantor. The Administrative Agent need not apply Securities Collateral prior to making a claim against Pledgor or pay over any other party obligated under the Obligations or prior to proceeding against any other collateral for application noncash proceeds of collection and enforcement unless: (i) the failure to do so would be commercially unreasonable and (ii) the affected Grantor has provided the Administrative Agent with a written demand to apply or pay over such noncash proceeds on such basisObligations.
Appears in 2 contracts
Sources: Credit Agreement (Kendle International Inc), Credit Agreement (Kendle International Inc)
Default. Whenever a Default Section 4.1 The occurrence of any “Event of Default” (as described in the Note), including without limitation the expiration of any applicable grace period (an “Event of Default”), shall, automatically (as described in the Note), or at the option of BOK, make all amounts then remaining unpaid on the Obligations immediately due and payable, and the liens, encumbrances and security interests evidenced or created hereby shall be existingsubject to foreclosure in any manner provided for herein or provided for by law.
Section 4.2 Upon the occurrence and during the continuance of any Event of Default, BOK may elect to treat the Administrative Agent may fixtures included in the Collateral either as real property or as personal property, but not as both, and proceed to exercise from time such rights as apply to time the type of property selected.
Section 4.3 Upon the occurrence and during the continuance of any and all rights and remedies available to it under applicable lawEvent of Default, in addition to those all other rights and remedies herein conferred, BOK shall have all of the rights and remedies of a mortgagee under a mortgage with respect to all of the Collateral. This Instrument shall be effective as a mortgage, and, upon the occurrence of an Event of Default, may be foreclosed as to any of the Collateral in any manner permitted by applicable law, and any foreclosure suit nay be brought by BOK. The provisions set forth in this Section 4.3 shall not in any way limit any other provision of this Instrument. BOK shall, to the extent permitted by applicable law, have the right and power, but not the obligation, to enter upon and take immediate possession of the real property included in the Collateral or any part thereof, to exclude Mortgagor therefrom, to hold, use, operate, manage and control such real property, to make all such repairs, replacements, alterations, additions and improvements to the same as BOK may deem proper, to demand, collect and retain all other earnings, proceeds and other sums due or to become due with respect to such real property, accounting for and applying to the payment of the Obligations only the net earnings arising therefrom after charging against the receipts therefrom all costs, expenses, charges, damages and losses incurred by reason thereof plus interest thereon at an annual rate which equals the default rate of interest payable on overdue principal, as described in this section belowthe Note, as fully and effectually as if BOK were the absolute owner of such real property and without any liability to Mortgagor in connection therewith.
Section 4.4 Upon the occurrence and during the continuance of any Event of Default, BOK, in lieu of or in addition to exercising any other power, right or remedy herein granted or by law or equity conferred, may proceed by an action or actions in equity or at law for the seizure and sale of the real property included in the Collateral or any part thereof, for the specific performance of any covenant or agreement herein contained or in aid of the execution of any power, right or remedy herein granted or by law or equity conferred, for the foreclosure or sale of such real property or any part thereof under the judgment or decree of any court of competent jurisdiction, for the appointment of a receiver pending any foreclosure hereunder or the sale of such real property or any part thereof or for the enforcement of any other appropriate equitable or legal remedy.
Section 4.5 upon the occurrence and during the continuance of any Event of Default, in addition to all other powers, rights and remedies herein granted or by law or equity conferred, BOK shall have all of the rights and remedies of an assignee and secured party granted by applicable law, including the Uniform Commercial Code, and shall, to the extent permitted by applicable law, have the right and power, but not the obligation, to take possession of the personal property included in the Collateral, and for that purpose BOK may enter upon any premises on which any or all of such personal property is located and take possession of and operate such personal property or remove the same therefrom. BOK may require Mortgagor to assemble such personal property and make it available to BOK at a place to be designated by BOK which is reasonably convenient to both parties. The following presumptions shall exist and shall be deemed conclusive with regard to the exercise by BOK of any of its remedies with respect to personal property:
(a) Each Grantor agreesIf notice is required by applicable law, in case five days’ prior written notice of Default, (i) at the Administrative Agent’s request, to assemble, at its expense, all its Inventory time and place of any public sale or of the time after which any private sale or any other Goods (other than Fixtures) at a convenient place or places acceptable to the Administrative Agent, and (ii) at the Administrative Agent’s request, to execute all such documents and do all such other things which may be necessary or desirable in order to enable the Administrative Agent or its nominee intended disposition thereof is to be registered as owner of the Intellectual Property with any competent registration authority.
(b) Notice of the intended disposition of the Collateral may be given by first-class mail, hand-delivery (through a delivery service or otherwise), facsimile or E-mail, and made shall be deemed reasonable notice to have been “sent” upon deposit in the U.S. Mails with adequate postage properly affixedMortgagor. No such notice is necessary if such property is perishable, upon delivery to an express delivery service or upon the electronic submission through telephonic or Internet services, as applicable. Each Grantor hereby agrees and acknowledges that (i) with respect to collateral that is: (A) perishable or threatens to decline speedily in value, value or (B) is of a type customarily sold on a recognized market market.
(including but not limited tob) Without in any way limiting the right and authority of BOK to sell or otherwise dispose of Collateral in a commercially reasonable manner, Investment Propertythe following, or any of them, shall be considered commercially reasonable: (1) BOK may hold a public sale of the Collateral in Denver, Colorado, or Houston, Texas, after having provided Mortgagor with five days’ notice of such sale and after having published notice of such sale by an advertisement in such publication as may be permitted or required under applicable state law, as BOK determines to be appropriate (which advertisement may be placed in the “classified” section), no notice for a period of disposition need not less than five consecutive issues commencing not more than ten days prior to the sale; (2) the Collateral may be givensold for cash; and (ii3) with respect to Collateral not described BOK or any other person owning, directly or indirectly, any interest in clause (i) above, notification sent after any of the Obligations may be a purchaser at such sale.
Section 4.6 Upon the occurrence of and during the continuance of a Default any Event of Default, BOK may, with respect to all or any portion of the Collateral, subject to any mandatory requirements of applicable law, sell or have sold the real property or interests therein included in the Collateral or any part thereof at one or more sales, as an entirety or in parcels, at such place or places and ten days before any proposed disposition provides otherwise in such manner and upon such notice within a reasonable time before disposition.
(c) Each Grantor hereby agrees and acknowledges that a commercially reasonable disposition of Inventory, Equipment, Computer Hardware and Software, or Intellectual Property as may be required by lease law or license ofby this Instrument, or, in addition to the absence of any such requirement, as BOK may deem appropriate. BOK may postpone the sale of, of such Collateral. Each Grantor further agrees and acknowledges that a disposition: (i) made in the usual manner on real property or interests therein or any recognized market, or (ii) a disposition part thereof by public announcement at the price current in any recognized market time and place of such sale, and from time to time thereafter may further postpone such sale by public announcement made at the time of dispositionsale fixed by the preceding postponement. Sale of a part of such real property or interests therein or any defective or irregular sale hereunder will not exhaust the power of sale, and sales may be made from time to time until all such property is sold without defect or irregularity or the Obligations are paid in full. BOK shall have the right to appoint one or more attorneys—in—fact to act in conducting the foreclosure sale and executing a deed to the purchaser. It shall not be necessary for any of the Collateral at any such sale to be physically present or constructively in the possession of BOK.
Section 4.7 BOK or any other person owning, directly or indirectly, any interest in any of the Obligations shall have the right to become the purchaser at any sale made pursuant to the provisions of this Article v and shall have the right to credit upon the amount of the bid made therefor the amount payable to it under or in connection with the Obligations. Recitals contained in any conveyance to any purchaser at any sale made hereunder will conclusively establish the truth and accuracy of the matters therein stated, including without limitation nonpayment of the Obligations and advertisement and conduct of such sale in the manner provided herein or provided by law. Mortgagor hereby ratifies and confirms all legal acts that BOK may do in carrying out the provisions of this Instrument.
Section 4.8 Effective upon the occurrence and during the continuance of any Event of Default, Mortgagor hereby waives and relinquishes, to the maximum extent permitted by law, and subject to any mandatory requirements of applicable law, Mortgagor hereby agrees that Mortgagor shall not at any time hereafter have or assert, any right under any law pertaining to: marshalling, whether of assets or liens, the sale of property in the inverse order of alienation, the exemption of homesteads, the administration of estates of decedents, appraisement, valuation, stay, extension, redemption, subrogation, or (iii) a disposition in conformity with reasonable commercial practices among dealers in the type of property subject to the disposition; shall be deemed commercially reasonable.
(d) Any cash proceeds of any disposition by the Administrative Agent abatement, suspension, deferment, diminution or reduction of any of the Obligations (including, without limitation, setoff), now or hereafter in force. Mortgagor expressly agrees that BOK may offer the Collateral shall as a whole or in such parcels or lots as BOK, in its sole discretion elects, regardless of the manner in which the Collateral may be applied by the Administrative Agent to payment of described.
Section 4.9 All costs and expenses in connection with the Collateral, (including reasonable attorneys’ fees and fees, legal expenses, filing fees, and thereafter mortgage, transfer, stamp and other excise taxes) incurred by BOK in perfecting, protecting and enforcing its rights hereunder, whether or not an Event of Default shall have occurred, shall be a demand obligation of Mortgagor to BOK and shall bear interest at the payment rate provided in the Note, all of which shall be part of the Obligations.
Section 4.10 The proceeds of any and all sale of the Liabilities in the order of application set forth in Section 8.03 of the Credit Agreement, and thereafter Collateral or any surplus will part thereof made pursuant to this Article V shall be paid promptly to the Grantor. The Administrative Agent need not apply or pay over for application noncash proceeds of collection and enforcement unless: (i) the failure to do so would be commercially unreasonable and (ii) the affected Grantor has provided the Administrative Agent with a written demand to apply or pay over such noncash proceeds on such basis.applied as follows:
Appears in 2 contracts
Sources: Mortgage, Security Agreement, Assignment, Financing Statement and Fixture Filing (PRB GasTransportation, Inc.), Mortgage, Security Agreement, Assignment, Financing Statement and Fixture Filing (PRB GasTransportation, Inc.)
Default. Whenever a Default Any one of the following occurrences shall constitute an "Event of Default" under this Unsecured Revolving Credit Note provided that Lender shall be existing, the Administrative Agent may exercise from time required to time any and all rights and remedies available to it under applicable law, in addition to those described in this section below.give written notice of same:
(a) Each Grantor agrees, in case The failure of Default, (i) at Borrower to repay all outstanding Principal on or before the Administrative Agent’s request, to assemble, at its expense, all its Inventory and other Goods (other than Fixtures) at Maturity Date or timely deliver Shares upon a convenient place or places acceptable to the Administrative Agent, and (ii) at the Administrative Agent’s request, to execute all such documents and do all such other things which may be necessary or desirable in order to enable the Administrative Agent or its nominee to be registered as owner of the Intellectual Property with any competent registration authority.Conversion;
(b) Notice The failure of the intended disposition Borrower to promptly perform any obligation of the Collateral may be given by first-class mailBorrower under, hand-delivery (through a delivery service or otherwise), facsimile or E-mail, and shall be deemed to have been “sent” upon deposit in the U.S. Mails with adequate postage properly affixed, upon delivery to an express delivery service or upon the electronic submission through telephonic or Internet services, as applicable. Each Grantor hereby agrees and acknowledges that (i) with respect to collateral that is: (A) perishable or threatens to decline speedily in valuebreach of, or (B) is the existence of a type customarily sold on a recognized market (including but not limited toan Event of Default as defined in this Note, Investment Property)or any other note, no notice of disposition need be givendebt or claim owed by Borrower to Lender; and (ii) with respect to Collateral not described in clause (i) above, notification sent after the occurrence of and during the continuance of a Default and ten days before any proposed disposition provides notice within a reasonable time before disposition.or
(c) Each Grantor hereby agrees Borrower becomes insolvent, bankrupt or generally fails to pay its debts as such debts become due; is adjudicated insolvent or bankrupt; admits in writing its inability to pay its debts; or shall suffer a custodian, receiver or trustee for it or substantially all of its property to be appointed and acknowledges that a commercially reasonable disposition if appointed without its consent, not be discharged within sixty (60) consecutive days; makes an assignment for the benefit of Inventorycreditors; or suffers proceedings under any law related to bankruptcy, Equipmentinsolvency, Computer Hardware liquidation or the reorganization, readjustment or the release of debtors to be instituted against it and Softwareif contested by it not dismissed or stayed within sixty (60) consecutive days; if proceedings under any law related to bankruptcy, insolvency, liquidation, or Intellectual Property may be the reorganization, readjustment or the release of debtors is instituted or commenced by lease or license of, in addition against Borrower; if any order for relief is entered relating to the sale of, such Collateral. Each Grantor further agrees and acknowledges that a disposition: (i) made in the usual manner on any recognized market, or (ii) a disposition at the price current in any recognized market at the time of disposition, or (iii) a disposition in conformity with reasonable commercial practices among dealers in the type of property subject to the disposition; shall be deemed commercially reasonable.
(d) Any cash proceeds of any disposition by the Administrative Agent of any of the Collateral foregoing proceedings; if Borrower shall be applied call a meeting of its creditors with a view to arranging a composition or adjustment of its debts; or if Borrower shall by the Administrative Agent any act or failure to payment act indicate its consent to, approval of expenses or acquiescence in connection with the Collateral, including reasonable attorneys’ fees and legal expenses, and thereafter to the payment of any and all of the Liabilities in the order of application set forth in Section 8.03 of the Credit Agreement, and thereafter any surplus will be paid promptly to the Grantor. The Administrative Agent need not apply or pay over for application noncash proceeds of collection and enforcement unless: (i) the failure to do so would be commercially unreasonable and (ii) the affected Grantor has provided the Administrative Agent with a written demand to apply or pay over such noncash proceeds on such basisforegoing.
Appears in 2 contracts
Sources: Convertible Note (VG Life Sciences, Inc.), Convertible Note (VG Life Sciences, Inc.)
Default. Whenever a Default shall be existingA. Upon the occurrence and during the continuance of an Event of Default, the Administrative Agent may exercise from time to time any and all rights and remedies available to it under applicable lawLender shall have, in addition to those described any other rights given by law or the rights hereunder or in this section belowthe Financing Documents, all of the rights and remedies with respect to the Pledged Collateral of a secured party under the Uniform Commercial Code. In addition, with respect to the Pledged Collateral, or any part thereof, which shall then be or shall thereafter come into the possession or custody of the Lender, the Lender may sell the Pledged Collateral or any part thereof at public or private sale or at any broker’s board or on any securities exchange, for cash, upon credit (without assumption of any credit risk) or for future delivery, and at such price or prices as the Lender may deem satisfactory. Lender may be the purchaser of any or all of the Pledged Collateral so sold at any public sale (or, if the Pledged Collateral is of a type customarily sold in a recognized market or is of a type which is the subject of widely distributed standard price quotations, at any private sale).
(a) Each Grantor agreesB. The Pledgor recognizes that the Lender may deem it impracticable to effect a public sale of all or any part of the Pledged Collateral or any other securities constituting Pledged Collateral and that the Lender may, therefore, determine to make one or more private sales of any such securities to a restricted group of purchasers who will be obligated to agree, among other things, to acquire such securities for their own account, for investment and not with a view to the distribution or resale thereof. The Lender is authorized, in case connection with any sale of Defaultthe Pledged Collateral, if it deems it advisable so to do, (i) at to restrict the Administrative Agent’s request, prospective bidders on or purchasers of any of the Shares to assemble, at its expense, all its Inventory a limited number of sophisticated investors who will represent and other Goods (other than Fixtures) at agree that they are purchasing for their own account for investment and not with a convenient place or places acceptable view to the Administrative Agentdistribution or sale of any of such Shares, (ii) to cause to be placed on certificates for any or all of the Shares or on any other securities pledged hereunder a legend to the effect that such security has not been registered under the Securities Act of 1933 and may not be disposed of in violation of the provision of said Act, and (iiiii) at the Administrative Agent’s request, to execute all such documents and do all impose such other things which may be limitations or conditions in connection with any such sale as the Lender deems necessary or desirable advisable in order to enable the Administrative Agent comply with said Act or its nominee to be registered as owner of the Intellectual Property with any competent registration authority.
(b) Notice of the intended disposition of the Collateral other law. The Pledgor acknowledges that any such private sale may be given by first-class mailat prices and on terms less favorable to the seller than the prices and other terms which might have been obtained at a public sale and, hand-delivery (through a delivery service or otherwise)notwithstanding the foregoing, facsimile or E-mail, and agrees that such private sales shall be deemed to have been “sent” upon deposit made in a commercially reasonable manner and that the U.S. Mails Lender shall have no obligation to delay sale of any such securities for the period of time necessary to permit the issuer of such securities to register such securities for public sale under the Securities Act of 1933.
C. The Pledgor covenants and agrees that it will execute and deliver such documents and take such other action as the Lender deems necessary or advisable in order that any sale hereunder may be made in compliance with adequate postage properly affixedlaw.
D. Upon any sale hereunder the Lender shall have the right to deliver, upon delivery assign and transfer to an express delivery service or upon the electronic submission through telephonic or Internet services, as applicablepurchaser thereof the Pledged Collateral so sold. Each Grantor purchaser at such sale shall hold the Pledged Collateral so sold absolutely and free from any claim or right of whatsoever kind, including any equity or right of redemption of the Pledgor which may be waived, and the Pledgor, to the extent permitted by law, hereby agrees and acknowledges that (i) with respect to collateral that is: (A) perishable specifically waive all rights of redemption, stay or appraisal which they have or may have under any law now existing or hereafter adopted.
E. Unless the Collateral threatens to decline speedily in value, value or (B) is or becomes of a type customarily sold on a recognized market (including but not limited tomarket, Investment Property), no Lender will give the Pledgor reasonable notice of the time and place of any public sale thereof, or of the time after which any private sale or other intended disposition need is to be given; made. Any requirements of reasonable notice shall be met if such notice is sent to the Lender in conformity with Section 23 hereof, at least ten (10) days before the time of the sale or disposition. Any other requirement of notice, demand or advertisement for sale is, to the extent permitted by law, waived. The notice (if any) of any sale hereunder shall (1) in case of a public sale, state the time and place fixed for such sale, (2) in case of sale at a broker’s board or on a securities exchange, state the board or exchange at which such sale is to be made and the day on which the Pledged Collateral, or the portion thereof so being sold, will first be offered for sale at such board or exchange, and (ii3) with respect to Collateral not described in clause (i) above, notification sent after the occurrence of and during the continuance case of a Default and ten days before any proposed disposition provides notice within a reasonable time before disposition.
(c) Each Grantor hereby agrees and acknowledges that a commercially reasonable disposition of Inventoryprivate sale, Equipment, Computer Hardware and Software, or Intellectual Property state the day after which such sale may be by lease consummated. Any such public sale shall be held at such time or license of, in addition to times within ordinary business hours and at such place or places as the sale of, such Collateral. Each Grantor further agrees and acknowledges that a disposition: (i) made Lender may fix in the usual manner on notice of such sale. At any recognized marketsuch sale the Pledged Collateral may be sold in one lot as an entirety or in separate parcels, as the Lender may determine. The Lender shall not be obligated to make any such sale pursuant to any such notice. The Lender may, without notice or (ii) a disposition at publication, adjourn any public or private sale or cause the price current in any recognized market same to be adjourned from time to time by announcement at the time and place fixed for the sale, and such sale may be made at any time or place to which the same may be so adjourned. In case of dispositionany sale of all or any part of the Pledged Collateral on credit or for future delivery, the Pledged Collateral so sold may be retained by the Lender until the selling price is paid by the purchaser thereof, but the Lender shall not incur any liability in case of the failure of such purchaser to take up and pay for the Pledged Collateral so sold and, in case of any such failure, such Pledged Collateral may again be sold upon like notice. The Lender, instead of exercising the power of sale herein conferred upon it, may proceed by a suit or suits at law or in equity to foreclose the security interest granted under this Agreement and sell the Pledged Collateral, or (iii) any portion thereof, under a disposition in conformity with reasonable commercial practices among dealers in the type judgment or decree of property subject to the disposition; shall be deemed commercially reasonablea court or courts of competent jurisdiction.
(d) Any cash proceeds of any disposition by the Administrative Agent of any of the Collateral shall be applied by the Administrative Agent to payment of expenses in connection with the Collateral, including reasonable attorneys’ fees and legal expenses, and thereafter to the payment of any and all of the Liabilities in the order of application set forth in Section 8.03 of the Credit Agreement, and thereafter any surplus will be paid promptly to the Grantor. The Administrative Agent need not apply or pay over for application noncash proceeds of collection and enforcement unless: (i) the failure to do so would be commercially unreasonable and (ii) the affected Grantor has provided the Administrative Agent with a written demand to apply or pay over such noncash proceeds on such basis.
Appears in 2 contracts
Sources: Amendment Agreement, Amendment Agreement (Qep Co Inc)
Default. Whenever a Default The Company shall be existing, the Administrative Agent may exercise from time to time any and all rights and remedies available to it in default under applicable law, in addition to those described in this section below.
(a) Each Grantor agrees, in case of Default, (i) at the Administrative Agent’s request, to assemble, at its expense, all its Inventory and other Goods (other than Fixtures) at a convenient place or places acceptable to the Administrative Agent, and (ii) at the Administrative Agent’s request, to execute all such documents and do all such other things which may be necessary or desirable in order to enable the Administrative Agent or its nominee to be registered as owner of the Intellectual Property with any competent registration authority.
(b) Notice of the intended disposition of the Collateral may be given by first-class mail, hand-delivery (through a delivery service or otherwise), facsimile or E-mail, and shall be deemed to have been “sent” upon deposit in the U.S. Mails with adequate postage properly affixed, upon delivery to an express delivery service or Note upon the electronic submission through telephonic or Internet services, as applicable. Each Grantor hereby agrees and acknowledges that (i) with respect to collateral that is: (A) perishable or threatens to decline speedily in value, or (B) is of a type customarily sold on a recognized market (including but not limited to, Investment Property), no notice of disposition need be given; and (ii) with respect to Collateral not described in clause (i) above, notification sent after the occurrence of and during the continuance of a Default and ten days before any proposed disposition provides notice within a reasonable time before disposition.
(c) Each Grantor hereby agrees and acknowledges that a commercially reasonable disposition of Inventory, Equipment, Computer Hardware and Software, or Intellectual Property may be by lease or license of, in addition to the sale of, such Collateral. Each Grantor further agrees and acknowledges that a disposition: (i) made in the usual manner on any recognized market, or (ii) a disposition at the price current in any recognized market at the time of disposition, or (iii) a disposition in conformity with reasonable commercial practices among dealers in the type of property subject to the disposition; shall be deemed commercially reasonable.
(d) Any cash proceeds of any disposition by the Administrative Agent of any of the Collateral shall be applied following events:
2.1 The Company fails to timely perform any of its obligations under, or otherwise breaches any covenants or warranties of this Note;
2.2 Any statement, representation, or warranty made by the Administrative Agent Company or its agents to payment Holder shall prove to have been false or materially misleading when made; and/or,
2.3 The Company shall become insolvent, or unable to meet its obligations as they become due, or shall file or have filed against it, voluntarily or involuntarily, a petition under the United States Bankruptcy Code or shall procure or suffer the appointment of expenses a receiver for any substantial portion of its properties, or shall make an assignment for benefit of creditors, or shall initiate or have initiated against it, voluntarily or involuntarily, any act, process, or proceedings under any insolvency law or other statute or law providing for the modifications or adjustment of the rights of creditors. Upon any event of default, ▇▇▇▇▇▇ may declare the entire unpaid principal balance of this Note and all accrued unpaid interest immediately due, without notice, and the Company agrees to pay such amount immediately in connection with such event. In the Collateralevent of default, the Company agrees to pay all of ▇▇▇▇▇▇'s costs of collection, including reasonable attorneys’ fees attorney's fees; this shall include legal expenses for the bankruptcy proceedings or insolvency proceedings (including efforts to modify or vacate any automatic stay or injunction), court costs, appeals, post-judgement collection expenses and legal any other amount provided by law. The parties intend this provision to be given the most liberal construction possible and to apply to any circumstances in which such party reasonably incurs expenses, and thereafter to . No delay or omission on the payment part of any and all of the Liabilities Holder hereof in the order of application set forth exercising any right or option herein given to such Holder shall impair such right or option or be considered as a waiver thereof or acquiescence in Section 8.03 of the Credit Agreement, and thereafter any surplus will be paid promptly to the Grantordefault hereunder. The Administrative Agent need not apply or pay over Company hereby waives any applicable statue of limitations, presentment, demand for application noncash proceeds payment, protest and notice of collection and enforcement unless: (i) the failure to do so would be commercially unreasonable and (ii) the affected Grantor has provided the Administrative Agent with a written demand to apply or pay over such noncash proceeds on such basisdishonor.
Appears in 2 contracts
Sources: Convertible Note Agreement (Global It Holdings Inc), Convertible Note Agreement (Championlyte Holdings Inc)
Default. Whenever a (a) In the event that the Pledgor fails to pay to the Pledgee any Obligation when due or there shall otherwise occur an Event of Default shall be existing(as defined in the Note) ("Default"), the Administrative Agent Pledgee shall have all of the rights and remedies afforded to secured parties with respect to the Collateral as set forth in the Code as well as all other rights and remedies granted in the Note and this Agreement. Without limiting the generality of the foregoing, the Pledgee, without demand of performance or other demand, presentment, protest, advertisement or notice of any kind (except any notice required by law referred to below) to or upon the Pledgor (all and each of which demands, defenses, advertisements and notices are hereby waived), may exercise in such circumstances forthwith collect, receive, appropriate and realize upon the Collateral, or any part thereof, and/or may forthwith sell, assign, give an option or options to purchase or otherwise dispose of and deliver the Collateral or any part thereof (or contract to do any of the foregoing), in one or more parcels at public or private sale or sales, upon such terms and conditions and at such prices as it may deem advisable, for cash or on credit or for future delivery without assumption of any credit risk. The Pledgee shall have the right upon any such public sale or sales, and, to the extent permitted by law, upon any such private sale or sales, to purchase the whole or any part of the Collateral so sold. The Pledgee shall apply any proceeds from time to time held by it and the net proceeds of any such sale or other disposition, after deducting all reasonable costs and expenses of every kind incurred in respect thereof or incidental to the care or safekeeping of any of the Collateral or in any way relating to the Collateral or the rights of the Pledgee hereunder, including, without limitation, reasonable attorneys' fees and disbursements of counsel to the Pledgee, to the satisfaction in whole or in part of the Obligations, in such order as the Pledgee may elect and only after such application and after the payment by the Pledgee of any other amount required by any provision of law, including, without limitation, Section 9-504 (1)(c) of the Code, need the Pledgee account for the surplus, if any, to the Pledgor. To the extent permitted by applicable law, the Pledgor waives all claims, damages and demands he may acquire against the Pledgee arising out of the lawful exercise by it of any rights hereunder. Neither the Pledgee nor any of its respective directors, officers, employees or agents shall be liable for failure to sell or otherwise dispose of the Collateral or for any delay in doing so. If any notice of a proposed sale or other disposition of the Collateral shall be required by law, such notice shall be deemed reasonable and proper if given at least ten (10) days before such sale or other disposition. In any event, notice of a proposed sale or other disposition shall be given at least ten (10) days before such sale or other disposition to the Pledgor and ▇▇▇▇▇ ▇▇▇▇. The Pledgor recognizes that the Pledgee may be unable to effect a public sale of any or all the Collateral by reason of certain restrictions contained in the Securities Act of 1933, as amended, and applicable state securities laws or otherwise, and may be compelled to resort to one or more private sales thereof to a restricted group of purchasers which will be obliged to agree, among other things, to acquire such securities for their own account for investment and not with a view to the distribution or resale thereof. The Pledgor acknowledges and agrees that any such private sale may result in prices and other terms less favorable than if such sale were a public sale and agrees that any such private sale under such circumstances shall not be evidence that it has been made in other than a commercially reasonable manner. The Pledgor agrees to use his best efforts to do or cause to be done all such other acts as may be necessary to make such sale or sales of all or any portion of the Collateral pursuant to this section valid and binding and in compliance with any and all rights and remedies available to it under other applicable requirements of law, in addition to those described in this section below.
(a) Each Grantor agrees, in case of Default, (i) at the Administrative Agent’s request, to assemble, at its expense, all its Inventory and other Goods (other than Fixtures) at a convenient place or places acceptable to the Administrative Agent, and (ii) at the Administrative Agent’s request, to execute all such documents and do all such other things which may be necessary or desirable in order to enable the Administrative Agent or its nominee to be registered as owner of the Intellectual Property with any competent registration authority.
(b) Notice The rights of the intended disposition Pledgee hereunder shall not be conditioned or contingent upon the pursuit by the Pledgee of any right or remedy against the Pledgor, any other person which may be or become liable in respect of all or any part of the Obligations or against any collateral security therefor, guarantee therefor or right of offset with respect thereto. Neither the Pledgee nor any of its affiliates or representatives shall be liable for any failure to demand, collect or realize upon all or any part of the Collateral may or for any delay in doing so, nor shall the Pledgee be given by first-class mail, hand-delivery (through a delivery service under any obligation to sell or otherwise), facsimile or E-mail, and shall be deemed to have been “sent” upon deposit in the U.S. Mails with adequate postage properly affixed, upon delivery to an express delivery service or otherwise dispose of any Collateral upon the electronic submission through telephonic request of the Pledgor or Internet services, as applicable. Each Grantor hereby agrees and acknowledges that (i) any other person or to take any other action whatsoever with respect to collateral that is: (A) perishable or threatens to decline speedily in value, or (B) is of a type customarily sold on a recognized market (including but not limited to, Investment Property), no notice of disposition need be given; and (ii) with respect to Collateral not described in clause (i) above, notification sent after the occurrence of and during the continuance of a Default and ten days before any proposed disposition provides notice within a reasonable time before disposition.
(c) Each Grantor hereby agrees and acknowledges that a commercially reasonable disposition of Inventory, Equipment, Computer Hardware and Software, or Intellectual Property may be by lease or license of, in addition regard to the sale of, such Collateral. Each Grantor further agrees and acknowledges that a disposition: (i) made in the usual manner on Collateral or any recognized market, or (ii) a disposition at the price current in any recognized market at the time of disposition, or (iii) a disposition in conformity with reasonable commercial practices among dealers in the type of property subject to the disposition; shall be deemed commercially reasonablepart thereof.
(d) Any cash proceeds of any disposition by the Administrative Agent of any of the Collateral shall be applied by the Administrative Agent to payment of expenses in connection with the Collateral, including reasonable attorneys’ fees and legal expenses, and thereafter to the payment of any and all of the Liabilities in the order of application set forth in Section 8.03 of the Credit Agreement, and thereafter any surplus will be paid promptly to the Grantor. The Administrative Agent need not apply or pay over for application noncash proceeds of collection and enforcement unless: (i) the failure to do so would be commercially unreasonable and (ii) the affected Grantor has provided the Administrative Agent with a written demand to apply or pay over such noncash proceeds on such basis.
Appears in 2 contracts
Sources: Pledge Agreement (Dcap Group Inc), Pledge Agreement (Extech Corp)
Default. Whenever a Default 2.1 If an “Event of Default” (under and as defined in the Credit Agreement) shall have occurred and be existingcontinuing under the Credit Agreement or any other Loan Document (as defined in the Credit Agreement), the Administrative Agent may exercise from time to time any and all rights and remedies available to it under applicable lawthen, in addition to those described in this section below.Mortgagee may:
(a) Each Grantor agrees, in case of Default, (i) at Declare the Administrative Agent’s request, Secured Obligations to assemble, at its expense, all its Inventory and other Goods (other than Fixtures) at a convenient place or places acceptable to the Administrative Agentbe, and (ii) at the Administrative Agent’s requestthey shall be, to execute all such documents due and do all such other things which may be necessary or desirable in order to enable the Administrative Agent or its nominee to be registered as owner of the Intellectual Property with any competent registration authority.payable; and/or
(b) Notice of the intended disposition of the Collateral may be given by first-class mail, hand-delivery (through a delivery service or otherwise), facsimile or E-mailRecover judgment for, and shall be deemed collect out of any property of Owner, any amount due; and/or collect all earned charter hire and freight monies relating to have been “sent” upon deposit in services performed by the U.S. Mails with adequate postage properly affixedVessel, upon delivery if any, Owner assigning to an express delivery service or upon the electronic submission through telephonic or Internet services, as applicable. Each Grantor hereby agrees Mortgagee all such charter hire and acknowledges that (i) with respect to collateral that is: (A) perishable or threatens to decline speedily in value, or (B) is of a type customarily sold on a recognized market (including but not limited to, Investment Property), no notice of disposition need be givenfreight monies then owing; and (ii) with respect to Collateral not described in clause (i) above, notification sent after the occurrence of and during the continuance of a Default and ten days before any proposed disposition provides notice within a reasonable time before disposition.and/or
(c) Each Grantor hereby agrees Retake the Vessel, with or without legal process, at any time, at any place, and, without being responsible for loss or damage, hold and acknowledges that a commercially reasonable disposition in Mortgagee’s or in Owner’s name lease, charter, operate or otherwise use the Vessel for such time and on such terms as Mortgagee may deem advisable, being accountable only for net profits, if any, and with the right to dock the Vessel free of Inventorycharge at Owner’s premises or elsewhere at Owner’s expense; and/or sell the Vessel, Equipmentfree from any claim by Owner of any nature whatsoever, Computer Hardware and Softwarein any manner permitted by law; to the extent so permitted, or Intellectual Property such sale may be public or private, without notice, without having the Vessel present, and Mortgagee may become the purchaser. For such purpose Mortgagee and its agents are irrevocably appointed the true and lawful attorneys of Owner in its name and stead to make all necessary transfers of the Vessel thus sold.
2.2 In the event the Vessel shall be arrested or detained by lease any officer of any court or license ofby any other authority, Owner authorizes Mortgagee, its officers, representatives and appointees, in the name of Owner or of Mortgagee, to receive or to take possession, and to defend any action and/or discharge any lien.
2.3 Each and every power or remedy given to Mortgagee shall be cumulative, and in addition to the sale ofall powers or remedies now or later existing in admiralty, such Collateralin equity, at law or by statute, and may be exercised as often as may be deemed expedient by Mortgagee. Each Grantor further agrees No delay or omission by Mortgagee shall impair any right, power or remedy, and acknowledges that a disposition: (i) made in the usual manner on no waiver of any recognized market, or (ii) a disposition at the price current in default shall waive any recognized market at the time of disposition, or (iii) a disposition in conformity with reasonable commercial practices among dealers in the type of property subject to the disposition; other default. In any suit Mortgagee shall be deemed commercially reasonableentitled to obtain appointment of a receiver of the Vessel and its earnings, who shall have full rights and powers to use and operate the Vessel, and to obtain a decree ordering and directing its sale and disposition.
(d) Any cash 2.4 The net proceeds of any disposition judicial or other sale, and any lease, charter, management, operation or other use of the Vessel by the Administrative Agent Mortgagee, of any claim for damages, of any judgment, and any insurance received by Mortgagee (except to the Collateral extent paid to Owner or applied in payment of repairs or otherwise for Owner’s benefit) shall be applied by the Administrative Agent to payment of expenses in connection with the Collateral, including reasonable attorneys’ fees and legal expenses, and thereafter to the payment of any and all of the Liabilities in the order of application set forth in Section 8.03 of the Credit Agreement, and thereafter any surplus will be paid promptly to the Grantor. The Administrative Agent need not apply or pay over for application noncash proceeds of collection and enforcement unless: (i) the failure to do so would be commercially unreasonable and (ii) the affected Grantor has provided the Administrative Agent with a written demand to apply or pay over such noncash proceeds on such basis.as follows:
Appears in 2 contracts
Sources: Credit Agreement (Pinnacle Entertainment Inc), Credit Agreement (Pinnacle Entertainment Inc)
Default. Whenever a (a) In the event that the Pledgor fails to pay to the Pledgee any Obligation when due or there shall otherwise occur an Event of Default shall be existing(as defined in the Note) ("Default"), the Administrative Agent Pledgee shall have all of the rights and remedies afforded to secured parties with respect to the Collateral as set forth in the Code as well as all other rights and remedies granted in the Note and this Agreement. Without limiting the generality of the foregoing, the Pledgee, without demand of performance or other demand, presentment, protest, advertisement or notice of any kind (except any notice required by law referred to below) to or upon the Pledgor (all and each of which demands, defenses, advertisements and notices are hereby waived), may exercise in such circumstances forthwith collect, receive, appropriate and realize upon the Collateral, or any part thereof, and/or may forthwith sell, assign, give an option or options to purchase or otherwise dispose of and deliver the Collateral or any part thereof (or contract to do any of the foregoing), in one or more parcels at public or private sale or sales, upon such terms and conditions and at such prices as it may deem advisable, for cash or on credit or for future delivery without assumption of any credit risk. The Pledgee shall have the right upon any such public sale or sales, and, to the extent permitted by law, upon any such private sale or sales, to purchase the whole or any part of the Collateral so sold. The Pledgee shall apply any proceeds from time to time held by it and the net proceeds of any such sale or other disposition, after deducting all reasonable costs and expenses of every kind incurred in respect thereof or incidental to the care or safekeeping of any of the Collateral or in any way relating to the Collateral or the rights of the Pledgee hereunder, including, without limitation, reasonable attorneys' fees and disbursements of counsel to the Pledgee, to the satisfaction in whole or in part of the Obligations, in such order as the Pledgee may elect and only after such application and after the payment by the Pledgee of any other amount required by any provision of law, including, without limitation, Section 9-504 (1)(c) of the Code, need the Pledgee account for the surplus, if any, to the Pledgor. To the extent permitted by applicable law, the Pledgor waives all claims, damages and demands he may acquire against the Pledgee arising out of the lawful exercise by it of any rights hereunder. Neither the Pledgee nor any of its respective directors, officers, employees or agents shall be liable for failure to sell or otherwise dispose of the Collateral or for any delay in doing so. If any notice of a proposed sale or other disposition of the Collateral shall be required by law, such notice shall be deemed reasonable and proper if given at least ten (10) days before such sale or other disposition. In any event, notice of a proposed sale or other disposition shall be given at least ten (10) days before such sale or other disposition to the Pledgor and Abraham Weinzimer. The Pledgor recognizes that the Pledgee may be unable to effect a public sale of any or all the Collateral by reason of certain restrictions contained in the Securities Act of 1933, as amended, and applicable state securities laws or otherwise, and may be compelled to resort to one or more private sales thereof to a restricted group of purchasers which will be obliged to agree, among other things, to acquire such securities for their own account for investment and not with a view to the distribution or resale thereof. The Pledgor acknowledges and agrees that any such private sale may result in prices and other terms less favorable than if such sale were a public sale and agrees that any such private sale under such circumstances shall not be evidence that it has been made in other than a commercially reasonable manner. The Pledgor agrees to use his best efforts to do or cause to be done all such other acts as may be necessary to make such sale or sales of all or any portion of the Collateral pursuant to this section valid and binding and in compliance with any and all rights and remedies available to it under other applicable requirements of law, in addition to those described in this section below.
(a) Each Grantor agrees, in case of Default, (i) at the Administrative Agent’s request, to assemble, at its expense, all its Inventory and other Goods (other than Fixtures) at a convenient place or places acceptable to the Administrative Agent, and (ii) at the Administrative Agent’s request, to execute all such documents and do all such other things which may be necessary or desirable in order to enable the Administrative Agent or its nominee to be registered as owner of the Intellectual Property with any competent registration authority.
(b) Notice The rights of the intended disposition Pledgee hereunder shall not be conditioned or contingent upon the pursuit by the Pledgee of any right or remedy against the Pledgor, any other person which may be or become liable in respect of all or any part of the Obligations or against any collateral security therefor, guarantee therefor or right of offset with respect thereto. Neither the Pledgee nor any of its affiliates or representatives shall be liable for any failure to demand, collect or realize upon all or any part of the Collateral may or for any delay in doing so, nor shall the Pledgee be given by first-class mail, hand-delivery (through a delivery service under any obligation to sell or otherwise), facsimile or E-mail, and shall be deemed to have been “sent” upon deposit in the U.S. Mails with adequate postage properly affixed, upon delivery to an express delivery service or otherwise dispose of any Collateral upon the electronic submission through telephonic request of the Pledgor or Internet services, as applicable. Each Grantor hereby agrees and acknowledges that (i) any other person or to take any other action whatsoever with respect to collateral that is: (A) perishable or threatens to decline speedily in value, or (B) is of a type customarily sold on a recognized market (including but not limited to, Investment Property), no notice of disposition need be given; and (ii) with respect to Collateral not described in clause (i) above, notification sent after the occurrence of and during the continuance of a Default and ten days before any proposed disposition provides notice within a reasonable time before disposition.
(c) Each Grantor hereby agrees and acknowledges that a commercially reasonable disposition of Inventory, Equipment, Computer Hardware and Software, or Intellectual Property may be by lease or license of, in addition regard to the sale of, such Collateral. Each Grantor further agrees and acknowledges that a disposition: (i) made in the usual manner on Collateral or any recognized market, or (ii) a disposition at the price current in any recognized market at the time of disposition, or (iii) a disposition in conformity with reasonable commercial practices among dealers in the type of property subject to the disposition; shall be deemed commercially reasonablepart thereof.
(d) Any cash proceeds of any disposition by the Administrative Agent of any of the Collateral shall be applied by the Administrative Agent to payment of expenses in connection with the Collateral, including reasonable attorneys’ fees and legal expenses, and thereafter to the payment of any and all of the Liabilities in the order of application set forth in Section 8.03 of the Credit Agreement, and thereafter any surplus will be paid promptly to the Grantor. The Administrative Agent need not apply or pay over for application noncash proceeds of collection and enforcement unless: (i) the failure to do so would be commercially unreasonable and (ii) the affected Grantor has provided the Administrative Agent with a written demand to apply or pay over such noncash proceeds on such basis.
Appears in 2 contracts
Sources: Pledge Agreement (Dcap Group Inc), Pledge Agreement (Extech Corp)
Default. Whenever a Default The term “default,” and the term “Event of Default,” as used herein, shall be existingmean the occurrence of any one or more of the following events, the Administrative Agent may exercise from time subject to time any applicable notice and all rights and remedies available to it under applicable law, in addition to those described in this section below.cure periods:
(a) Each Grantor agreesa default in the payment of any installment of principal or interest under the Note; or
(b) a default in the payment of any other sum under the Note; or
(c) a default in the payment of any other sum when due hereunder or under any other Loan Document; or
(d) default in the payment of any of the Impositions, any Assessment, or
(e) default in keeping in force the insurance which Mortgagor is required to maintain under Section 2.6 hereof or in delivering or assigning the insurance policies or renewals or certificates thereof, or in reimbursing Mortgagee for premiums paid by it on such insurance; or
(f) upon the actual or threatened waste, removal, alteration or demolition of any part of the Property; or
(g) default in complying with Mortgagor’s obligations under Section 2.12 hereof or upon the assignment by Mortgagor of any Lease or of the whole or any part of the rents, income or profits arising from the Property without the prior written consent of Mortgagee, other than as permitted in the Loan Documents; or
(h) if Mortgagor or any guarantor of all or part of the Obligations becomes insolvent; or
(i) if Mortgagor or any guarantor generally does not pay its debts as they become due; or
(j) if Mortgagor or any guarantor makes an assignment for the benefit of creditors; or
(k) if Mortgagor or any guarantor calls or causes to be called a meeting of creditors for the composition of debts; or
(l) if there shall be filed by or with the consent or authorization of Mortgagor a petition in bankruptcy for liquidation or for reorganization, or a custodian, receiver or agent is appointed or authorized to take charge of its properties, or Mortgagor authorizes any such action; or
(m) if there shall be filed against Mortgagor or any guarantor a petition in bankruptcy, for liquidation, or for reorganization, or a custodian, receiver, or agent is appointed or authorized to take charge of its properties and Mortgagor or such guarantor, as the case may be, has not consented to or authorized such action and such action is not dismissed within sixty (60) days; or
(n) the date of taking of a condemnation if there is an exercise of the right of condemnation or eminent domain in respect of all or a substantial part of the Property; or
(o) upon Mortgagor directly or indirectly creating, suffering or permitting to be created or to stand against the Property or any portion thereof or against the rents, issues and profits therefrom, any other lien, charge, mortgage, deed of trust or other encumbrance, without in each instance obtaining Mortgagee’s prior written consent thereto; or
(p) upon the filing of a lien by the United States so as to affect all or any part of the Property and such lien not being discharged (by bond or otherwise) within thirty (30) days of the filing thereof; or
(q) upon the merger, consolidation, liquidation or dissolution or sale or lease or transfer of all or substantially all of the assets of Mortgagor or the filing of any notice of intention to do so; or
(r) upon Mortgagor entering into an installment sales contract or selling, conveying, transferring, mortgaging, leasing or otherwise alienating or encumbering the Property or any portion thereof or any interest therein in any manner, other than as permitted in the Loan Documents, whether voluntary or involuntary or by operation of law or otherwise, without the prior written consent of Mortgagee, or upon the title or equity of redemption in the Property being acquired, in case whole or in part, by voluntary or involuntary transfer, grant or assignment by any person, firm, corporation or entity other than Mortgagor or Mortgagee; or
(s) if any representation or warranty of Defaultthe Mortgager set forth in this Mortgage or in any other Loan Document or in any other writing given to Mortgagee in connection with the Obligations shall have been incorrect in any material respect as of the time when the same shall have been made; or
(t) default in the performance of Mortgagor’s obligations under Section 2.16 hereof; or
(u) upon the closing of, or the altering of the grade of, any street on or adjoining the Land if such closing or alteration materially affects access to the Property or any part thereof; or
(v) upon the occurrence of a breach, default or an Event of Default under the Loan Documents, subject to applicable notice and cure periods; or
(w) upon the failure of Mortgagor to comply with, satisfy or perform or observe any other term, covenant, condition or agreement of such party contained in the Note or any other Loan Document provided therefor in such document; or
(x) upon the failure of Mortgagor to comply with, satisfy, perform or observe any other term, covenant, condition or agreement of Mortgagor herein; or
(y) Except as otherwise expressly permitted herein or under the Loan and Security Agreement, any transfer of any ownership interest in Mortgagor occurs in violation of Subsection 2.20(c) hereof; or
(z) any material breach or acceleration or commencement of proceedings (whether non-judicial, judicial, public or private) to foreclose any lien upon the Collateral or any other collateral pledged by Mortgagor, whether or not such liens are permitted hereunder or prior or subordinate to the lien of this Mortgage; or
(aa) Mortgagor shall at any time deliver or cause to be delivered to Mortgagee a notice electing to limit the indebtedness secured by this Mortgage. Notwithstanding anything contained herein to the contrary, (i) at the Administrative Agent’s request, Mortgagor shall have a ten (10) calendar day grace period with respect to assemble, at its expense, all its Inventory any payments referenced in subsections (b) and other Goods (other than Fixturesc) at a convenient place or places acceptable to the Administrative Agentof Section 3.1 above, and (ii) at the Administrative Agent’s request, to execute all such documents and do all such other things which may be necessary or desirable in order to enable the Administrative Agent or its nominee to be registered as owner of the Intellectual Property with any competent registration authority.
(b) Notice of the intended disposition of the Collateral may be given by first-class mail, hand-delivery (through a delivery service or otherwise), facsimile or E-mail, and Mortgagor shall be deemed provided with written notice from Mortgagee and a thirty (30) calendar day grace period to have been “sent” upon deposit in the U.S. Mails with adequate postage properly affixed, upon delivery to an express delivery service or upon the electronic submission through telephonic or Internet services, as applicable. Each Grantor hereby agrees and acknowledges that (i) diligently cure same with respect to collateral that is: the occurrence of any event described in subsections (A) perishable or threatens to decline speedily in value, or (B) is of a type customarily sold on a recognized market (including but not limited to, Investment Propertyh), no notice of disposition need be given; (i), (k), (s), (t), (w) and (iix) of Section 3.1 above; provided, however, that the giving of such notice and/or grace period shall not have a material adverse effect on the Mortgagee, the Collateral, the Property and/or Mortgagee’s lien on the Property, as determined by Mortgagee in its reasonable discretion. All notices and cure periods described herein shall not be applicable to any event which with the giving of notice, the passage of time or both would constitute an Event of Default, if such event has occurred as of the date on which Mortgagee commences a nonjudicial foreclosure proceeding with respect to Collateral not described in clause (i) above, notification sent after another Event or Events of Default. Such event shall constitute an independent Event of Default hereunder. Upon the occurrence of and during the continuance an Event of a Default and ten days before any proposed disposition provides notice within a reasonable time before disposition.
(c) Each Grantor hereby agrees and acknowledges that a commercially reasonable disposition of InventoryDefault, Equipment, Computer Hardware and Software, or Intellectual Property may be by lease or license of, in addition to the sale of, such Collateral. Each Grantor further agrees and acknowledges that a disposition: (i) made in the usual manner on any recognized market, or (ii) a disposition at the price current in any recognized market at option of Mortgagee, the time of disposition, or (iii) a disposition in conformity with reasonable commercial practices among dealers in the type of property subject Indebtedness shall become immediately due and payable without notice to the disposition; Mortgagor and Mortgagee shall be deemed commercially reasonable.
(d) Any cash proceeds of any disposition by the Administrative Agent of any of the Collateral shall be applied by the Administrative Agent entitled to payment of expenses in connection with the Collateral, including reasonable attorneys’ fees and legal expenses, and thereafter to the payment of any and all of the Liabilities rights and remedies provided herein, in the order Loan Documents or at law or in equity. Each and every remedy of application set forth in Section 8.03 of Mortgagee whatsoever is distinct and cumulative to all other rights or remedies hereunder, under the Credit AgreementLoan Documents or afforded by law or equity, and thereafter may be exercised concurrently, independently, or successively, in any surplus will be paid promptly to the Grantor. The Administrative Agent need not apply or pay over for application noncash proceeds of collection and enforcement unless: (i) the failure to do so would be commercially unreasonable and (ii) the affected Grantor has provided the Administrative Agent with a written demand to apply or pay over such noncash proceeds on such basisorder whatsoever.
Appears in 2 contracts
Sources: Mortgage and Security Agreement (American Leisure Holdings, Inc.), Mortgage and Security Agreement (American Leisure Holdings, Inc.)
Default. Whenever a Default shall be existingNotwithstanding any other provision of this Agreement, the Administrative Agent may exercise from time to time occurrence of any and all rights and remedies available to it of the following events or conditions will also constitute a default (the “Default”) under applicable law, in addition to those described in this section below.Agreement by the Borrower:
(a) Each Grantor agrees, in case of Default, (i) at the Administrative Agent’s request, to assemble, at its expense, all its Inventory and other Goods (other than Fixtures) at a convenient place Borrower does not observe or places acceptable to the Administrative Agent, and (ii) at the Administrative Agent’s request, to execute all such documents and do all such other things which may be necessary or desirable in order to enable the Administrative Agent or its nominee to be registered as owner perform any of the Intellectual Property with any competent registration authority.Borrower’s obligations under this Agreement and shall fail to cure such default within 30 calendar days after receipt of notice thereof in writing by the Borrower from a Lender;
(b) Notice any representation, warranty, covenant or statement made by or on behalf of the intended disposition Borrower to a Lender is untrue in any material respect at the time when or as of the Collateral may be given by first-class mail, hand-delivery (through a delivery service or otherwise), facsimile or E-mail, and shall be deemed to have been “sent” upon deposit in the U.S. Mails with adequate postage properly affixed, upon delivery to an express delivery service or upon the electronic submission through telephonic or Internet services, as applicable. Each Grantor hereby agrees and acknowledges that (i) with respect to collateral that is: (A) perishable or threatens to decline speedily in value, or (B) is of a type customarily sold on a recognized market (including but not limited to, Investment Property), no notice of disposition need be given; and (ii) with respect to Collateral not described in clause (i) above, notification sent after the occurrence of and during the continuance of a Default and ten days before any proposed disposition provides notice within a reasonable time before disposition.which it was made;
(c) Each Grantor hereby agrees and acknowledges that a commercially reasonable disposition of Inventory, Equipment, Computer Hardware and Software, the Borrower ceases or Intellectual Property may be by lease or license of, in addition threatens to the sale of, such Collateral. Each Grantor further agrees and acknowledges that a disposition: (i) made cease to carry on in the usual manner on normal course the Borrower’s business or any recognized market, or (ii) a disposition at the price current in any recognized market at the time of disposition, or (iii) a disposition in conformity with reasonable commercial practices among dealers in the type of property subject to the disposition; shall be deemed commercially reasonable.material part thereof;
(d) Any cash proceeds a proceeding shall have been instituted in a court having jurisdiction seeking a decree or order for relief in respect of the Borrower in any involuntary case under any applicable bankruptcy, insolvency or other similar law now or hereafter in effect, or for the appointment of a receiver, liquidator, assignee, custodian, trustee, sequestrator (or other similar official) of the Borrower for any substantial part of the Borrower’s property, or for the winding-up or liquidation of the Borrower’s affairs;
(e) the Borrower shall commence a voluntary case under any applicable bankruptcy, insolvency or other similar law now or hereafter in effect, shall consent to the entry of any disposition order for relief in an involuntary case under any such law or shall consent to the appointment of or taking possession by a receiver, liquidator, assignee, custodian, trustee, sequestrator (or other similar official) of the Administrative Agent Borrower or for any substantial part of the Borrower’s property, or shall make a general assignment for the benefit of creditors, or shall fail generally to pay the Borrower’s debts as they become due, or shall take any action in furtherance of any of the Collateral shall be applied by the Administrative Agent to payment of expenses in connection with the Collateral, including reasonable attorneys’ fees and legal expenses, and thereafter to the payment of any and all of the Liabilities in the order of application set forth in Section 8.03 of the Credit Agreement, and thereafter any surplus will be paid promptly to the Grantor. The Administrative Agent need not apply or pay over for application noncash proceeds of collection and enforcement unless: foregoing; or
(if) the failure Borrower defaults under any material contract to do so would be commercially unreasonable and (ii) the affected Grantor has provided the Administrative Agent with which it is a written demand party or under any loan or other financing contract or agreement to apply or pay over such noncash proceeds on such basiswhich it is a party.
Appears in 2 contracts
Sources: Securities Purchase Agreement (Tapimmune Inc), Securities Purchase Agreement (Tapimmune Inc)
Default. Whenever a Default shall be existingAt the option of the Lender, the Administrative Agent may exercise security hereby granted shall become enforceable upon the happening of any of the following events:
(a) If the Debtor or the Guarantor fail to pay or perform when due any of the Obligations;
(b) If the Debtor or the Guarantor fail to perform any provisions of this Agreement or of any other agreement to which the Debtor or the Guarantor and the Lender are parties;
(c) If any of the representations and warranties in this Agreement was incorrect when made or deemed to have been made;
(d) If the Debtor or the Guarantor ceases or threatens to cease to carry on its business, commits an act of bankruptcy, becomes insolvent, makes an assignment or bulk sale of its assets, or proposes a compromise or arrangement to its creditors;
(e) If any proceeding is taken with respect to a compromise or arrangement, or to have the Debtor or the Guarantor declared bankrupt or wound up, or to have a receiver appointed of any part of the Collateral or if any encumbrancer takes possession of any part thereof;
(f) If any execution, sequestration or other process of any court becomes enforceable against the Debtor or the Guarantor or if any distress or analogous process is levied upon the Collateral or any part thereof;
(g) If the Lender in good faith believes that the prospect of payment or performance of any of the Obligations is impaired; and in such event:
(a) The Lender may, in addition to any other rights, appoint by instrument in writing a receiver of all or any part of the collateral and remove or replace such receiver from time to time or may institute proceedings in any and all rights and remedies available to it under applicable law, in addition to those described Court of competent jurisdiction for the appointment of such a receiver. Where the Lender is hereafter in this section below.
(a) Each Grantor agrees, in case of Default, (i) at the Administrative Agent’s request, to assemble, at its expense, all its Inventory and other Goods (other than Fixtures) at a convenient place or places acceptable paragraph referred to the Administrative Agentterms shall, where the context permits, include any Receiver so appointed and (ii) at the Administrative Agent’s requestofficers, to execute all employees, servants or agents of such documents and do all such other things which may be necessary or desirable in order to enable the Administrative Agent or its nominee to be registered as owner of the Intellectual Property with any competent registration authorityReceiver.
(b) Notice The Guarantor will forthwith upon demand assemble and deliver to the Lender possession of all the Collateral at such place as may be specified by the Lender. In any event, at its option the Lender may take such steps as it considers necessary or desirable to obtain possession of all or any part of the intended disposition Collateral, and to that end the Guarantor agrees that the Lender may by its servants, agents or Receiver at any time during the day or night, enter upon lands and premises, and if necessary break into houses, buildings and enclosures, wheresoever and whatsoever where the Collateral may be found for the purpose of taking possession of and removing the Collateral or any part thereof.
(c) The Lender may seize, collect, realize, borrow money on the security of, release to third parties or otherwise deal with the Collateral or any part thereof in such manner, upon such terms and conditions and at such time or times as may seem to it advisable and without notice to the Guarantor (except as otherwise required by any applicable law), and may charge on its own behalf and pay to others reasonable sums for expenses incurred and for services rendered (expressly including legal advices and services, and receivers and accounting fees) in or in connection with seizing, collecting, realizing borrowing on the security of, selling or obtaining payment of the Collateral and may add the amount of such sums to the indebtedness of the Debtor.
(d) At its option, to be notified to the Guarantor in the manner provided by the governing statute, the Lender may elect to retain all or any part of the Collateral in satisfaction of the obligations to it of the Debtor or the Guarantor.
(e) The Lender shall not be liable or accountable for any failure to seize, collect, realize, sell or obtain payment of the Collateral or any part thereof and shall not be bound to institute proceedings for the purpose of seizing, collecting, realizing or obtaining possession or payment of the same or for the purpose of preserving any rights of the Lender, the Debtor or the Guarantor or any other person, firm or corporation in respect of same.
(f) The Lender may grant extensions of time and other indulgences, take and give up securities, accept compositions, grant releases and discharges, release any part of the Collateral to third parties and otherwise deal with the Debtor, the Guarantor, debtors of the Debtor or the Guarantor, sureties and others and with the Collateral and other securities as the Lender may see fit without prejudice to the liability of the Debtor or the Guarantor or the Lender's right to hold and realize the Collateral.
(g) All monies collected or received by the Lender in respect of the Collateral may be given applied on account of such parts of the indebtedness and liability of the Debtor or the Guarantor as to the Lender seems best or may be held unappropriated in a collateral account or in the discretion of the Lender may be released to the Debtor or the Guarantor, all without prejudice to the Lender's claims upon the Debtor or the Guarantor.
(h) In the event of the Lender taking possession of the said Collateral, or any part thereof in accordance with the provisions of this Agreement, the Lender shall have the right to maintain the same upon the premises on which the Collateral may then be situate, and for the purpose of such maintaining shall be entitled to the free use and enjoyment of all necessary buildings, premises, housing, shelter and accommodation for the proper maintaining, housing and protection of the said Collateral, and for its servant or servants, assistant or assistants, and the Guarantor covenants and agrees to provide the same without cost or expense to the Lender until such time as the Lender shall determine in its discretion to remove, sell or otherwise dispose of the said Collateral so taken possession of by first-class mailit as aforesaid.
(i) To facilitate the realization of the Collateral the Lender may carry on or concur in the carrying on of all or any part of the business of the Debtor or the Guarantor and may to the exclusion of all others, hand-delivery including the Debtor or the Guarantor, enter upon, occupy and use all or any of the premises, buildings, plant and undertaking of or occupied or used by the Debtor or the Guarantor and use all or any of the tools, machinery and equipment of the Debtor or the Guarantor for such time as the Lender sees fit, free of charge, to manufacture or complete the manufacture of any inventory and to pack and ship the finished product, and the Lender shall not be liable to the Debtor or the Guarantor for any neglect in so doing or in respect of any rent, charges, depreciation or damages in connection with such actions.
(through a delivery service j) The Lender may, if it deems it necessary for the proper realization of all or otherwise)any part of the Collateral, facsimile pay any encumbrance, lien, claim or E-mailcharge that may exist or be threatened against the same and in every such case the amounts so paid together with costs, charges and expenses incurred in connection therewith shall be added to the obligations of the Debtor to the Lender as hereby secured, and shall be deemed bear interest at the rate currently charged to have been “sent” upon deposit in the U.S. Mails with adequate postage properly affixed, upon delivery Debtor under its obligations to an express delivery service or upon the electronic submission through telephonic or Internet services, as applicable. Each Grantor hereby agrees and acknowledges that (i) with respect to collateral that is: (A) perishable or threatens to decline speedily in value, or (B) is Lender at the date of a type customarily sold on a recognized market (including but not limited to, Investment Property), no notice of disposition need be given; and (ii) with respect to Collateral not described in clause (i) above, notification sent after payment thereof by the occurrence of and during the continuance of a Default and ten days before any proposed disposition provides notice within a reasonable time before dispositionLender.
(ck) Each Grantor hereby agrees and acknowledges that a commercially reasonable disposition of Inventory, Equipment, Computer Hardware and Software, or Intellectual Property may be by lease or license of, in addition to If after all the sale of, such Collateral. Each Grantor further agrees and acknowledges that a disposition: (i) made in the usual manner on any recognized market, or (ii) a disposition at the price current in any recognized market at the time of disposition, or (iii) a disposition in conformity with reasonable commercial practices among dealers in the type of property subject to the disposition; shall be deemed commercially reasonable.
(d) Any cash proceeds of any disposition by the Administrative Agent of any expenses of the Collateral shall be applied by the Administrative Agent to payment of expenses Lender in connection with the preservation and realization of the Collateral as above described shall have been satisfied and all obligations, including contingent obligations, of the Debtor to the Lender shall have been satisfied and paid in full together with interest, any balance of monies in the hands of the Lender arising out of the realization of the Collateral, including reasonable attorneys’ fees and legal expensesshall be paid to any person other than the Debtor or the Guarantor whom the Lender knows to be the owner of the Collateral, and thereafter in the absence of such knowledge, such balance shall be paid to the payment of any and all of the Liabilities in the order of application set forth in Section 8.03 of the Credit Agreement, and thereafter any surplus will be paid promptly to the Grantor. The Administrative Agent need not apply or pay over for application noncash proceeds of collection and enforcement unless: (i) the failure to do so would be commercially unreasonable and (ii) the affected Grantor has provided the Administrative Agent with a written demand to apply or pay over such noncash proceeds on such basisDebtor.
Appears in 2 contracts
Sources: Joint Venture Agreement (Gilder Enterprises Inc), Shareholder Agreement (Gilder Enterprises Inc)
Default. Whenever a Default shall be existingIf Pledgor (a) defaults in the payment of the principal under the Note when it becomes due (whether upon demand, acceleration or otherwise) or any other event of default under the Note or this Agreement occurs (including, without limitation, the Administrative Agent bankruptcy or insolvency of Pledgor) or (b) defaults in the payment of interest or any other amount related to the Note, the Company may (following five (5) days' notice to Executive, during which the default is not cured) exercise from time to time any and all the rights, powers and remedies of any owner of the Pledged Interests (including the right to vote the Pledged Interests and receive any distributions with respect to such Pledged Interests) and shall have and may exercise without demand any and all the rights and remedies granted to a secured party upon default under the Uniform Commercial Code of Delaware or otherwise available to it the Company under applicable law. Without limiting the foregoing, in addition to those described in this section below.
(a) Each Grantor agrees, in case of Default, (i) at the Administrative Agent’s request, to assemble, at its expense, all its Inventory and other Goods (other than Fixtures) at a convenient place or places acceptable to the Administrative Agent, and (ii) at the Administrative Agent’s request, to execute all such documents and do all such other things which may be necessary or desirable in order to enable the Administrative Agent or its nominee to be registered as owner of the Intellectual Property with any competent registration authority.
(b) Notice of the intended disposition of the Collateral may be given by first-class mail, hand-delivery (through a delivery service or otherwise), facsimile or E-mail, and shall be deemed to have been “sent” upon deposit in the U.S. Mails with adequate postage properly affixed, upon delivery to an express delivery service or upon the electronic submission through telephonic or Internet services, as applicable. Each Grantor hereby agrees and acknowledges that (i) with respect to collateral that is: (A) perishable or threatens to decline speedily in value, or (B) is of a type customarily sold on a recognized market (including but not limited to, Investment Property), no notice of disposition need be given; and (ii) with respect to Collateral not described in clause (i) above, notification sent after the occurrence of and during the continuance of a Default default, the Company is authorized to sell, assign and deliver at its discretion, from time to time, all or any part of the Collateral at any private sale or public auction, on not less than ten days before (10) days' written notice to Pledgor, at such price or prices and upon such terms as the Company may deem advisable. Pledgor shall have no right to redeem the Collateral after any proposed disposition provides notice within a reasonable time before disposition.
(c) Each Grantor hereby agrees such sale or assignment. At any such sale or auction, the Company may bid for, and acknowledges that a commercially reasonable disposition of Inventory, Equipment, Computer Hardware and Software, or Intellectual Property may be by lease or license become the purchaser of, in addition the whole or any part of the Pledged Interests offered for sale. In case of any such sale, after deducting the costs, attorneys' fees and other expenses of sale and delivery, the remaining proceeds of such sale shall be applied to the principal of and accrued interest on the Note and other amounts related thereto (including costs, attorneys' fees associated with enforcement hereof); provided that after payment in full of the indebtedness evidenced by the Note, the balance of the proceeds of sale of, such Collateral. Each Grantor further agrees then remaining shall be paid to Pledgor and acknowledges that a disposition: (i) made in the usual manner on any recognized market, or (ii) a disposition at the price current in any recognized market at the time of disposition, or (iii) a disposition in conformity with reasonable commercial practices among dealers in the type of property subject Pledgor shall be entitled to the disposition; shall be deemed commercially reasonable.
(d) Any cash proceeds of any disposition by the Administrative Agent return of any of the Collateral Pledged Interests remaining in the hands of the Company. Pledgor shall be applied liable for any deficiency (but only to the extent liable therefor under the Note) if the remaining proceeds are insufficient to pay the indebtedness under the Note in full, including the fees of any attorneys employed by the Administrative Agent Company to payment of expenses in connection with the Collateral, including reasonable attorneys’ fees and legal expenses, and thereafter to the payment of any and all of the Liabilities in the order of application set forth in Section 8.03 of the Credit Agreement, and thereafter any surplus will be paid promptly to the Grantor. The Administrative Agent need not apply or pay over for application noncash proceeds of collection and enforcement unless: (i) the failure to do so would be commercially unreasonable and (ii) the affected Grantor has provided the Administrative Agent with a written demand to apply or pay over collect such noncash proceeds on such basisdeficiency.
Appears in 2 contracts
Sources: Executive Agreement (Jondex Corp), Executive Agreement (Jondex Corp)
Default. Whenever a Default shall be existingIn the event Subcontractor fails to comply, or becomes unable to comply, or with reasonable probability (as determined solely by Contractor) will become unable to comply, with any of the Administrative Agent may exercise from provisions of this Agreement; or in the event Subcontractor fails at any time to time supply a sufficient number of properly skilled workmen with sufficient materials, equipment or plant of proper quality or fails in any respect to prosecute the work with promptness and all rights diligence; or causes by any action or omission a stoppage of or delay in the work of Contractor or other subcontractor of Contractor; or in the event Subcontractor abandons its work or any part thereof; and remedies available such failure, inability or deficiency (as determined solely by Contractor) is not corrected within three (3) days after written demand by Contractor to it under applicable lawSubcontractor; Contractor may, in addition to those described in and without prejudice to any other right or remedy, take over and complete the performance of this section below.
(a) Each Grantor agreesAgreement, in case of Default, (i) at the Administrative Agent’s requestexpense of Subcontractor; or Contractor may, without taking over the work, immediately and without notice to Subcontractor, furnish the necessary materials and labor through itself or others, to assemble, at its expenseremedy the situation, all its Inventory at the expense of Subcontractor. Upon any action by Contractor pursuant to this provision, Subcontractor shall not be entitled to further payment on this Agreement until the work has been completed and accepted by Owner and payment therefore has been received by Contractor. If the expense incurred by Contractor exceeds the unpaid balance due, Subcontractor agrees to promptly pay the difference to Contractor together with interest thereon at the rate of the prime rate plus 2% per annum until paid, and Contractor shall have a lien upon all material, tools, and equipment taken possession of to secure the payment thereof. With respect to expenses incurred by Contractor pursuant to this provision, it is hereby agreed that the costs and expenses chargeable to Subcontractor as herein before provided shall include, without restriction, the cost of materials, labor, subcontracts, purchase orders, transportation, equipment and expense thereon, supplies, services, insurance, taxes, appliances, tools, utilities, power used or consumed, supervision, administration, job overhead, travel, attorney’s fees, legal and accounting fees and expenses, Contractor’s general overhead as allocated to the work and other Goods costs and expenses incurred or sustained by Contractor, plus ten percent (other than Fixtures10%) at a convenient place or places acceptable to profit on the Administrative Agent, and (ii) at the Administrative Agent’s request, to execute all such documents and do all such other things which may be necessary or desirable in order to enable the Administrative Agent or its nominee to be registered as owner actual cost of the Intellectual Property with any work performed as well as on the amount of claims paid by Contractor for Subcontractor or for which it deems itself liable. In the event the employment of Subcontractor is terminated by Contractor for cause under this provision and it is subsequently determined by a court of competent registration authority.
(b) Notice of the intended disposition of the Collateral may be given by first-class mailjurisdiction that such termination was without cause, hand-delivery (through a delivery service or otherwise), facsimile or E-mail, and such termination shall thereupon be deemed to have been “sent” upon deposit in the U.S. Mails with adequate postage properly affixed, upon delivery to an express delivery service or upon the electronic submission through telephonic or Internet services, as applicable. Each Grantor hereby agrees and acknowledges that (i) with respect to collateral that is: (A) perishable or threatens to decline speedily in value, or (B) is of a type customarily sold on a recognized market (including but not limited to, Investment Property), no notice of disposition need be given; and (ii) with respect to Collateral not described in clause (i) above, notification sent after the occurrence of and during the continuance of a Default and ten days before any proposed disposition provides notice within a reasonable time before dispositiontermination for convenience.
(c) Each Grantor hereby agrees and acknowledges that a commercially reasonable disposition of Inventory, Equipment, Computer Hardware and Software, or Intellectual Property may be by lease or license of, in addition to the sale of, such Collateral. Each Grantor further agrees and acknowledges that a disposition: (i) made in the usual manner on any recognized market, or (ii) a disposition at the price current in any recognized market at the time of disposition, or (iii) a disposition in conformity with reasonable commercial practices among dealers in the type of property subject to the disposition; shall be deemed commercially reasonable.
(d) Any cash proceeds of any disposition by the Administrative Agent of any of the Collateral shall be applied by the Administrative Agent to payment of expenses in connection with the Collateral, including reasonable attorneys’ fees and legal expenses, and thereafter to the payment of any and all of the Liabilities in the order of application set forth in Section 8.03 of the Credit Agreement, and thereafter any surplus will be paid promptly to the Grantor. The Administrative Agent need not apply or pay over for application noncash proceeds of collection and enforcement unless: (i) the failure to do so would be commercially unreasonable and (ii) the affected Grantor has provided the Administrative Agent with a written demand to apply or pay over such noncash proceeds on such basis.
Appears in 2 contracts
Default. Whenever a Default The occurrence of any one or more of the following shall be existing, constitute an event of default (“Default”) under this Agreement and the Administrative Agent may exercise from time to time any and all rights and remedies available to it under applicable law, in addition to those described in this section below.other Loan Documents:
(a) Each Grantor agreesBorrower shall fail to pay when due any principal, in case of Defaultinterest, (i) at the Administrative Agent’s request, to assemble, at its expense, all its Inventory and fees or other Goods (other than Fixtures) at a convenient place or places acceptable to the Administrative Agent, and (ii) at the Administrative Agent’s request, to execute all such documents and do all such other things which may be necessary or desirable in order to enable the Administrative Agent or its nominee to be registered as owner amounts payable under any of the Intellectual Property with any competent registration authority.Loan Documents; or
(b) Notice of the intended disposition of the Collateral may be given by first-class mail, hand-delivery (through a delivery service Any financial statement or otherwise), facsimile or E-mail, and shall be deemed certificate furnished to have been “sent” upon deposit Lender in the U.S. Mails with adequate postage properly affixed, upon delivery to an express delivery service or upon the electronic submission through telephonic or Internet services, as applicable. Each Grantor hereby agrees and acknowledges that (i) with respect to collateral that is: (A) perishable or threatens to decline speedily in valueconnection with, or (B) is of a type customarily sold on a recognized market (including but not limited toany representation or warranty made by Borrower or any other party under this Agreement or any other Loan Document, Investment Property)shall prove to be incorrect, no notice of disposition need be givenfalse or misleading in any material respect when furnished or made; and (ii) with respect to Collateral not described in clause (i) above, notification sent after the occurrence of and during the continuance of a Default and ten days before any proposed disposition provides notice within a reasonable time before disposition.or
(c) Each Grantor hereby agrees Any default in the performance of or compliance with any obligation, agreement or other provision contained herein or in any other Loan Document (other than those referred to in subsections (a) and acknowledges that a commercially reasonable disposition of Inventory(b) above), Equipment, Computer Hardware and Software, or Intellectual Property may with respect to any such default which by its nature can be by lease or license of, in addition to the sale ofcured, such Collateral. Each Grantor further agrees and acknowledges that default shall continue for a disposition: period of twenty (i20) made in the usual manner on any recognized market, or (ii) a disposition at the price current in any recognized market at the time of disposition, or (iii) a disposition in conformity with reasonable commercial practices among dealers in the type of property subject to the dispositiondays from its occurrence; shall be deemed commercially reasonable.or
(d) Any cash proceeds default in the payment or performance of any disposition obligation, or the occurrence of any defined event of default, under the terms of any contract or instrument (other than any of the Loan Documents) pursuant to which Borrower has incurred any debt or other liability to any person or entity, including any Lender; or
(e) The filing of a notice of judgment lien against Borrower; or the recording of any abstract of judgment against Borrower in any county in which Borrower has an interest in real property; or the service of a notice of levy and/or of a writ of attachment or execution, or other like process, against the assets of Borrower; or the entry of a judgment against Borrower; or
(f) Borrower shall become insolvent, or shall suffer or consent to or apply for the appointment of a receiver, trustee, custodian or liquidator of itself or any of its property, or shall make a general assignment for the benefit of creditors; Borrower shall file a voluntary petition in bankruptcy, or seeking reorganization, in order to effect a plan or other arrangement with creditors or any other relief under the Bankruptcy Code, or under any state or federal law granting relief to debtors, whether now or hereafter in effect; or any involuntary petition or proceeding pursuant to the Bankruptcy Code or any other applicable state or federal law relating to bankruptcy, reorganization or other relief for debtors is filed or commenced against Borrower, or Borrower shall file an answer admitting the jurisdiction of the court and the material allegations of any involuntary petition; or Borrower shall be adjudicated a bankrupt, or an order for relief shall be entered against Borrower by any court of competent jurisdiction under the Bankruptcy Code or any other applicable state or federal law relating to bankruptcy, reorganization or other relief for debtors; or
(g) Any court, government or governmental agency shall condemn, seize or otherwise appropriate, or take custody or control of, all or any portion of the property of Borrower which; when taken together with all other property of Borrower so condemned, seized, appropriated, or taken custody or control of, during the twelve-month period ending with the month in which any such action occurs, constitutes a substantial portion of such property; or
(h) Borrower, or any Person on behalf of Borrower, shall claim or assert that the Loan Documents are not legal, valid and binding agreements enforceable against Borrower in accordance with their respective terms; or the Loan Documents shall in any way be terminated (except in accordance with their terms) or become or be judicially declared ineffective or inoperative or shall in any way cease to give or provide the respective liens, security interests, rights, titles, interests, remedies, powers or privileges intended to be created thereby; or
(i) Any material litigation or proceeding is commenced before any Governmental Authority against or affecting the Borrower or any other property of the Borrower or any part thereof and such litigation or proceeding is not defended diligently and in good faith by the Administrative Agent Borrower; or
(j) Commencement of any action or proceeding which seeks as one of its remedies the dissolution of Borrower and such action or proceeding is not defended diligently and in good faith by Borrower, or a final judgment is entered against Borrower decreeing the dissolution of Borrower; or
(k) Any Person shall obtain an order or decree in any court of competent jurisdiction enjoining or prohibiting Lender, or Borrower from carrying out the terms and conditions of any of the Collateral shall be applied Loan Documents; in either case, if such order or decree is not vacated or stayed within ten (10) days after Borrower receives written notice of the filing thereof; or
(l) Borrower assigns this Agreement, any of the other Loan Documents, any Advance or any right to receive an Advance under this Agreement in violation of Section 10.11; or
(m) Borrower fails to pay any Rate Management Obligation when due or the breach by the Administrative Agent to payment of expenses in connection with the Collateral, including reasonable attorneys’ fees and legal expenses, and thereafter to the payment Borrower of any and all term, provision or condition contained in any Rate Management Transaction or any transaction of the Liabilities type described in the order definition of application set forth in Section 8.03 “Rate Management Transactions,” whether or not any Lender or Affiliate of a Lender is a party thereto; or
(n) Any default shall occur under the Questar Note; or
(o) There shall exist or occur any event or condition which impairs, or is substantially likely to impair, the prospect of payment or performance by Borrower of its obligations under any of the Credit Agreement, and thereafter any surplus will be paid promptly to the Grantor. The Administrative Agent need not apply or pay over for application noncash proceeds of collection and enforcement unless: (i) the failure to do so would be commercially unreasonable and (ii) the affected Grantor has provided the Administrative Agent with a written demand to apply or pay over such noncash proceeds on such basisLoan Documents.
Appears in 2 contracts
Sources: Credit Agreement (Consonus Technologies, Inc.), Credit Agreement (Consonus Technologies, Inc.)
Default. Whenever a Default shall be existing, the Administrative Agent may exercise from time a. Company’s failure to time any and all rights and remedies available to it under applicable law, in addition to those described in this section below.
(a) Each Grantor agrees, in case of Default, (i) at the Administrative Agent’s request, to assemble, at its expense, all its Inventory and other Goods (other than Fixtures) at a convenient place or places acceptable to the Administrative Agent, and (ii) at the Administrative Agent’s request, to execute all such documents and do all such other things which may be necessary or desirable in order to enable the Administrative Agent or its nominee to be registered as owner of the Intellectual Property substantially comply with any competent registration authority.
(b) Notice provisions of the intended disposition of the Collateral may be given by first-class mail, hand-delivery (through a delivery service or otherwise), facsimile or E-mail, and this Agreement shall be deemed to have been “sent” upon deposit a breach by the Lead States, together with any determination by a Lead State that the Company has made a misrepresentation in this Agreement or in the U.S. Mails conduct of the Examination, shall constitute a breach of this Agreement, a violation of an order of the Settling Jurisdictions, and a violation of the Company’s agreement with adequate postage properly affixedthe Settling Jurisdictions and shall subject the Company to such administrative and enforcement actions and penalties as each Settling Jurisdiction deems appropriate, upon delivery to an express delivery service consistent with each Settling Jurisdiction’s respective Insurance Laws.
b. If a Settling Jurisdiction believes that the Company has breached a provision of this Agreement or upon that the electronic submission through telephonic Company has made a misrepresentation in this Agreement or Internet servicesduring the conduct of the Examination, as applicable. Each Grantor hereby agrees and acknowledges that (i) with respect to collateral that is: (A) perishable or threatens to decline speedily in value, or (B) is of a type customarily sold on a recognized market (including but not limited to, Investment Property), no such Settling Jurisdiction shall provide written notice of disposition need be given; and (ii) with respect to Collateral not described in clause (i) above, notification sent after the occurrence of and during the continuance of a Default and ten days before any proposed disposition provides notice within a reasonable time before disposition.
(c) Each Grantor hereby agrees and acknowledges that a commercially reasonable disposition of Inventory, Equipment, Computer Hardware and Software, or Intellectual Property may be by lease or license of, in addition alleged breach to the sale ofCompany and the Managing Lead States that the breach has occurred. The Company shall have the opportunity, within twenty-one (21) calendar days of receipt of such Collateralnotice to present evidence in writing and through appearance before the complaining jurisdiction’s regulator in an attempt to rebut the allegations(s) or to seek an extension and to present a proposed action plan to address the alleged breach. Each Grantor further agrees and acknowledges that a disposition: (i) made in the usual manner on A Settling Jurisdiction shall not pursue any recognized market, or (ii) a disposition at the price current in any recognized market at the time of disposition, or (iii) a disposition in conformity with reasonable commercial practices among dealers in the type of property subject to the disposition; shall be deemed commercially reasonable.
(d) Any cash proceeds of any disposition by the Administrative Agent of any of the Collateral shall be applied by the Administrative Agent to payment of expenses in connection with the Collateral, including reasonable attorneys’ fees and legal expenses, and thereafter to the payment of any and all of the Liabilities in the order of application enforcement action as set forth in this Section 8.03 7.a. against the Company until the twenty-one (21) calendar day response period described above has expired. If the Lead States accept the Company’s method and/or action plan to correct the identified deficiencies, the Lead States will define the time by which the Company must fulfill its corrective obligations. At its discretion, the Lead States may reject in writing the Company’s proposed action plan and proceed with the original administrative and enforcement actions and penalties as each Settling Jurisdiction deems appropriate.
c. Any agreement on the part of any Party hereto, to any extension or waiver shall be valid only if in writing signed by the Credit AgreementParty granting such waiver or extension and, unless expressly provided otherwise, shall be a one-time waiver or extension only, and thereafter any surplus will be paid promptly to the Grantor. The Administrative Agent need not apply such waiver or pay over for application noncash proceeds of collection and enforcement unless: (i) the extension or any other failure to do so would be commercially unreasonable and (ii) the affected Grantor has provided the Administrative Agent insist on strict compliance with any duty or obligation herein shall not operate as a written demand waiver or extension of, or estoppel with respect to, any continuing, subsequent or other failure to apply or pay over such noncash proceeds on such basiscomply with this Agreement.
Appears in 2 contracts
Sources: Regulatory Settlement Agreement, Regulatory Settlement Agreement
Default. Whenever If an Investor (or any of its affiliates) defaults on its obligation to fund its Investment Commitment in accordance with the terms of its Equity Commitment Letter or breaches its obligations under the Cooperation Agreement, its Limited Guaranty, its Equity Commitment Letter or this Agreement (a Default shall be existing“Defaulting Investor”), and such default causes the Investors (or their respective affiliates) or the Acquisition Entities to become liable to make any payments (including the Termination Fee) pursuant to the Purchase Agreement, the Administrative Agent may exercise from time Equity Commitment Letters, the Limited Guaranties or otherwise in respect of the Transaction, then the Defaulting Investor will be responsible for all such amounts payable (or previously paid) by any Investor that is not a Defaulting Investor (a “Non-Defaulting Investor”), other than any amounts that are paid to time fund the payment of the Purchase Price under the Purchase Agreement if the Transaction is consummated, as well as all fees, costs and expenses incurred by the Non- Defaulting Investors in connection with the Transaction or in connection with any claim made by Seller, HFSG of any of their Affiliates against it in respect of the Transaction (collectively, the “Default Costs”). The Defaulting Investor hereby agrees to indemnify the Non-Defaulting Investors in respect of all Default Costs and shall pay all rights and remedies available of such Default Costs to it under applicable lawthe Non- Defaulting Investors (or in accordance with the Non-Defaulting Investors’ direction) promptly after their incurrence. For greater certainty, if there is more than one Defaulting Investor, the Default Costs will be borne by the Defaulting Investors on a pro rata basis that corresponds to their Investment Commitments promptly after their incurrence; provided that, in addition to those described in this section below.
(a) Each Grantor agrees, in the case of Defaultany Defaulting Investor that is not a Lead Investor, (i) at the Administrative Agent’s request, Lead Investor associated with such Investor as identified on Annex A (the “Corresponding Lead Investor”) agrees to assemble, at its expense, jointly indemnify the Non-Defaulting Investors in respect of all its Inventory and other Goods (other than Fixtures) at a convenient place or places acceptable to the Administrative Agent, and (ii) at the Administrative Agent’s request, to execute all such documents and do all such other things which may be necessary or desirable in order to enable the Administrative Agent or its nominee to be registered as owner of the Intellectual Property with any competent registration authority.
(b) Notice of the intended disposition of the Collateral may be given by first-class mail, hand-delivery (through a delivery service or otherwise), facsimile or E-mail, and shall be deemed to have been “sent” upon deposit in the U.S. Mails with adequate postage properly affixed, upon delivery to an express delivery service or upon the electronic submission through telephonic or Internet services, as applicable. Each Grantor hereby agrees and acknowledges that (i) with respect to collateral that is: (A) perishable or threatens to decline speedily in value, or (B) is of a type customarily sold on a recognized market (including but not limited to, Investment Property), no notice of disposition need be given; and (ii) with respect to Collateral not described in clause (i) above, notification sent after the occurrence of and during the continuance of a Default and ten days before any proposed disposition provides notice within a reasonable time before disposition.
(c) Each Grantor hereby agrees and acknowledges that a commercially reasonable disposition of Inventory, Equipment, Computer Hardware and Software, or Intellectual Property may be by lease or license of, in addition to the sale of, such Collateral. Each Grantor further agrees and acknowledges that a disposition: (i) made in the usual manner on any recognized market, or (ii) a disposition at the price current in any recognized market at the time of disposition, or (iii) a disposition in conformity with reasonable commercial practices among dealers in the type of property subject to the disposition; shall be deemed commercially reasonable.
(d) Any cash proceeds of any disposition Costs owed by the Administrative Agent of any of the Collateral shall be applied by the Administrative Agent to payment of expenses in connection with the Collateral, including reasonable attorneys’ fees and legal expenses, and thereafter to the payment of any and all of the Liabilities in the order of application set forth in Section 8.03 of the Credit Agreement, and thereafter any surplus will be paid promptly to the Grantor. The Administrative Agent need not apply or pay over for application noncash proceeds of collection and enforcement unless: (i) the failure to do so would be commercially unreasonable Defaulting Investor and (ii) the affected Grantor has provided Defaulting Investor agrees to promptly pay to the Administrative Agent with Corresponding Lead Investor any Default Costs paid by the Corresponding Lead Investor to the other Non-Defaulting Investors. For greater certainty, if there is more than one Defaulting Investor, the Default Costs will be borne by the Defaulting Investors on a written demand pro rata basis that corresponds to apply or pay over such noncash proceeds on such basistheir Investment Commitments.
Appears in 2 contracts
Sources: Interim Investors Agreement, Interim Investors Agreement
Default. Whenever a Following the occurrence of an Event of Default and acceleration of the Loans, all payments shall be existing, the Administrative remitted to Agent may exercise from time to time any and all rights such payments and remedies available all proceeds of Loan Collateral received by Agent, shall be applied as follows:
(A) first, to it pay any Agent Advances or Interim Advances, interest, fees, expenses or indemnities due to Agent under the Loan Documents, until paid in full;
(B) second, to pay any Letter of Credit Obligations, fees, expenses or indemnities then due to LC Issuer under the Loan Documents, until paid in full;
(C) third, to pay any expenses or indemnities then due to any or all of Lenders under the Loan Documents, until paid in full;
(D) fourth, to pay any fees then due to any or all of Lenders under the Loan Documents, including fees and premiums with respect to any Rate Management Agreement with a Lender (or an Affiliate of a Lender), until paid in full;
(E) fifth, to pay interest due to any or all of Lenders under the Loan Documents in respect of the Obligations and, with respect to any Rate Management Agreement with a Lender (or an Affiliate of a Lender), any premiums, scheduled periodic payments and any interest thereon;
(F) sixth, to pay any other Obligations (other than those set forth in clauses (G) and H) due to Lenders until paid in full, including principal of the Loans, ratably in accordance with their respective Pro Rata Shares;
(G) seventh, with respect to any Rate Management Agreement with a Lender or any Affiliate of a Lender, to pay any breakage, termination, close-out or like payment due under such Rate Management Agreement to a Lender or an Affiliate of a Lender;
(H) eighth, any Leasing Obligations (as defined in the definition of Obligations) owing to Fifth Third or its Affiliates; and
(I) ninth, to Borrowers or such other Person entitled thereto under applicable law, in addition . Agent will distribute to those described in this section below.
(a) Each Grantor agrees, in case of Default, (i) at the Administrative Agent’s request, to assemble, each Lender at its expenseaddress set forth on the applicable signature page of this Agreement, all its Inventory and or at any other Goods (other than Fixtures) at address as a convenient place or places acceptable to Lender may request in writing, the Administrative Agent, and (ii) at the Administrative Agent’s request, to execute all amount of funds as such documents and do all such other things which Lender may be necessary or desirable entitled to receive in order to enable the Administrative Agent or its nominee to be registered as owner of the Intellectual Property with any competent registration authority.
(b) Notice of the intended disposition of the Collateral may be given by first-class mail, hand-delivery (through a delivery service or otherwise), facsimile or E-mail, and shall be deemed to have been “sent” upon deposit in the U.S. Mails with adequate postage properly affixed, upon delivery to an express delivery service or upon the electronic submission through telephonic or Internet services, as applicable. Each Grantor hereby agrees and acknowledges that (i) with respect to collateral that is: (A) perishable or threatens to decline speedily in value, or (B) is of a type customarily sold on a recognized market (including but not limited to, Investment Property), no notice of disposition need be given; and (ii) with respect to Collateral not described in clause (i) above, notification sent after the occurrence of and during the continuance of a Default and ten days before any proposed disposition provides notice within a reasonable time before disposition.
(c) Each Grantor hereby agrees and acknowledges that a commercially reasonable disposition of Inventory, Equipment, Computer Hardware and Software, or Intellectual Property may be by lease or license of, in addition to the sale of, such Collateral. Each Grantor further agrees and acknowledges that a disposition: (i) made in the usual manner on any recognized market, or (ii) a disposition at the price current in any recognized market at the time of disposition, or (iii) a disposition in conformity with reasonable commercial practices among dealers in the type of property subject to the disposition; shall be deemed commercially reasonable.
(d) Any cash proceeds of any disposition by the Administrative Agent of any of the Collateral shall be applied by the Administrative Agent to payment of expenses in connection accordance with the Collateral, including reasonable attorneys’ fees terms of this Agreement and legal expenses, and thereafter to the payment of any and all of the Liabilities in the order of application settlement procedures set forth in Section 8.03 of the Credit Agreement, and thereafter any surplus will be paid promptly to the Grantor. The Administrative Agent need not apply or pay over for application noncash proceeds of collection and enforcement unless: (i) the failure to do so would be commercially unreasonable and (ii) the affected Grantor has provided the Administrative Agent with a written demand to apply or pay over such noncash proceeds on such basis2.4.
Appears in 2 contracts
Sources: Credit Agreement (Industrial Services of America Inc /Fl), Credit Agreement (Industrial Services of America Inc /Fl)
Default. Whenever a Default shall be existing, the Administrative Agent may exercise from time to time any and all rights and remedies available to it under applicable law, in addition to those described in this section below.
(a) Each Grantor agrees, The Bankruptcy of a Consenting Stockholder or its Parent (or any Subsidiary of such Parent through which such Parent beneficially owns its interest in case such Consenting Stockholder) prior to consummation of the Company's initial Public Offering with respect to any Consenting Stockholder shall constitute an "Event of Default, " by such Consenting Stockholder (ithe "Defaulting Holder") at the Administrative Agent’s request, to assemble, at its expense, all its Inventory and other Goods (other than Fixtures) at a convenient place or places acceptable to the Administrative Agent, and (ii) at the Administrative Agent’s request, to execute all such documents and do all such other things which may be necessary or desirable in order to enable the Administrative Agent or its nominee to be registered as owner of the Intellectual Property with any competent registration authorityunder this Agreement.
(b) Notice Upon the occurrence of the intended disposition any Event of the Collateral may be given by first-class mail, hand-delivery (through a delivery service or otherwise), facsimile or E-mail, and shall be deemed to have been “sent” upon deposit in the U.S. Mails with adequate postage properly affixed, upon delivery to an express delivery service or upon the electronic submission through telephonic or Internet services, as applicable. Each Grantor hereby agrees and acknowledges that (i) Default with respect to collateral that is: any Defaulting Holder, the other Consenting Stockholder Group, provided it includes no Defaulting Holders (A) perishable or threatens to decline speedily in value, or (B) is of a type customarily sold on a recognized market (including but not limited to, Investment Propertythe "Nondefaulting Holder"), no shall have the right exercisable by written notice of disposition need be given; and (ii) with respect given to Collateral not described in clause (i) above, notification sent the Defaulting Holder at any time after the occurrence of and during the continuance of a such Event of Default, to cause the purchase of the entire ownership interest (including debt and equity) of such Defaulting Holder in the Company. Such remedy shall, with respect to an Event of Default referred to in Section 7.09(a), be in addition to all other rights or remedies available to the Nondefaulting Holder, to any other party hereunder or to the Company under this Agreement or under any other Operative Document or otherwise, and ten days before all such remedies shall be cumulative and no such remedy shall be to the exclusion of any proposed disposition provides notice within a reasonable time before dispositionother remedy.
(c) Each Grantor hereby agrees and acknowledges that In the event written notice (a commercially reasonable disposition "Buy-Out Notice") of Inventoryelection to cause the purchase of the ownership interest of any Defaulting Holder (the "Purchased Interest") is given by the Nondefaulting Holder pursuant to Section 7.09(b), Equipment, Computer Hardware and Software, or Intellectual Property may then the Purchased Interest will be purchased by lease or license of, in addition to the sale of, such Collateral. Each Grantor further agrees and acknowledges that a disposition: Nondefaulting Holder (i) made in the usual manner on any recognized market, or (ii) a disposition at the price current in any recognized market at the time of disposition, or (iii) a disposition in conformity with reasonable commercial practices among dealers in the type of property subject to the disposition; shall be deemed commercially reasonable"Buyer").
(d) Any cash proceeds The price (the "Buy-Out Price") to be paid by the Buyer for the Purchased Interest will be determined as follows: The Buyer and the Defaulting Holder will mutually select a nationally recognized investment banking firm (an "Investment Banking Firm") to act as the "Arbiter" under this Section 7.09(d). If the Buyer and the Defaulting Holder have not selected an Investment Banking Firm by 5:00 p.m. New York City time on the fifth Business Day after the date of the Buy-Out Notice, then the Buyer and the Defaulting Holder will each select an Investment Banking Firm at its own expense, and the two Investment Banking Firms will mutually select a third Investment Banking Firm to act as the Arbiter; provided, however, that, if by 5:00 p.m. New York City time on the tenth -------- ------- Business Day after the date of the Buy-Out Notice, either the Buyer or the Defaulting Holder has selected such an Investment Banking Firm while the other has not, then the Investment Banking Firm so selected will act as the Arbiter. Once the Arbiter has been selected, the Buyer and the Defaulting Holder will each submit to the Arbiter, within thirty days of such selection, a price for the Purchased Interest. The Arbiter shall pick as the Buy-Out Price under this Section 7.09(d) either the price submitted by the Buyer or the price submitted by the Defaulting Holder, whichever price is, in the judgment of the Arbiter, closer to the price that an unaffiliated third party willing and able to buy would be willing to pay, and which a willing and able seller would be willing to accept, for the Purchased Interest. Such determination of the Buy-Out Price by the Arbiter will be final and binding on the Buyer and the Defaulting Holder. The Buyer and the Defaulting Holder will each pay one-half of the fees and expenses of the Arbiter. All other costs and expenses of such determination will be borne by the party incurring such cost or expense.
(e) The closing of any disposition purchase of a Purchased Interest shall take place at the principal executive offices of the Company at 10:00 a.m. local time on a Business Day selected by the Administrative Agent of Buyer, which closing date shall be as promptly as practicable, and in any event within sixty days following the determination of the Collateral Buy-Out Price, subject to extension for a maximum of one hundred eighty additional days to the extent required to obtain all necessary Governmental and Private Approvals. The closing shall be applied subject to the conditions applicable to the transfer of Offered Shares as contemplated by Section 7.05(a). At such closing, the Defaulting Holder shall Transfer to the Buyer the Purchased Interest, free and clear of all Liens (other than Permitted Liens), and shall execute such documents as may be necessary to effectuate the sale. Unless otherwise agreed by the Administrative Agent Buyer and the Defaulting Holder, the Buy-Out Price shall be payable by wire transfer of same day funds or by certified or cashier's check drawn to payment of expenses in connection with the Collateral, including reasonable attorneys’ fees and legal expenses, and thereafter to the payment of any and all of the Liabilities in the order of application set forth the Defaulting Holder, as specified by the Defaulting Holder.
(f) In lieu of giving a Buy-Out Notice pursuant to Section 7.09(b), the Nondefaulting Holder may elect, by written notice given to the Defaulting Holder at any time during the continuance of such Event of Default to cause the Company to be dissolved and its assets liquidated. If such election is made by the Nondefaulting Holder, the Defaulting Holder shall vote its shares of Company Common Stock in favor of dissolution of the Company. Such remedy shall, with respect to an Event of Default referred to in Section 8.03 of 7.09(a)(i), be in addition to all other rights or remedies available to the Credit AgreementNondefaulting Holder, to any other party hereunder or to the Company under this Agreement or under any other Operative Document or otherwise, and thereafter any surplus will all such remedies shall be paid promptly cumulative and no such remedy shall be to the Grantor. The Administrative Agent need not apply or pay over for application noncash proceeds exclusion of collection and enforcement unless: (i) the failure to do so would be commercially unreasonable and (ii) the affected Grantor has provided the Administrative Agent with a written demand to apply or pay over such noncash proceeds on such basisany other remedy.
Appears in 2 contracts
Sources: Joint Venture Formation and Stockholders Agreement (Gemstar International Group LTD), Joint Venture Formation and Stockholders Agreement (Gemstar International Group LTD)
Default. Whenever Time is of the essence with respect to ▇▇▇▇▇▇’s performance of its obligations under this Agreement. Lessor may declare this Lease in default if any one or more of the following occurs: (a) Lessee fails to make any payment required hereunder when due; (b) Lessee fails to maintain in force at all times the required insurance; (c) Lessee fails to properly operate, maintain or repair the Equipment; (d) Lessee fails to observe or perform any other covenant or requirement of this Lease, which failure is not cured to Lessor’s satisfaction within five (5) days after Lessor’s notice to Lessee thereof; (e) Lessee attempts to sell, transfer or encumber the Equipment; (f) a Default voluntary or involuntary proceeding is instituted in any court of competent jurisdiction, seeking a decree or order (i) for relief in respect of Lessee under any applicable bankruptcy, insolvency, reorganization, assignment for the benefit of creditors, or other similar law, or (ii) for the appointment of a receiver, liquidator, assignee, custodian, trustee, sequestrator or similar official of Lessee or its property, or (iii) for the winding up or liquidation of the Lessee’s affairs; (g) Lessee shall generally fail to pay its debts as they come due; and/or (h) Lessee, in Lessor’s opinion, shall become financially insecure. At any time after such declaration, Lessor may enter, with or without legal process, any premises where the Equipment is located and take possession thereof. Lessee shall provide Lessor with unobstructed ingress and egress for such purpose. Furthermore, ▇▇▇▇▇▇ shall immediately pay to Lessor all amounts then due hereunder and all costs of removal and repossession of the Equipment. Lessor’s remedies herein shall be existing, the Administrative Agent may exercise from time to time any cumulative and all rights and remedies available to it under applicable law, are in addition to those described all other remedies existing at law or in this section below.
(a) Each Grantor agreesequity, in case of Default, (i) at the Administrative Agent’s request, to assemble, at its expense, all its Inventory and other Goods (other than Fixtures) at a convenient place or places acceptable to the Administrative Agent, and (ii) at the Administrative Agent’s request, to execute all such documents and do all such other things which may be necessary or desirable in order to enable the Administrative Agent or its nominee to be registered as owner of the Intellectual Property with any competent registration authority.
(b) Notice of the intended disposition of the Collateral may be given by first-class mail, hand-delivery (through a delivery service or otherwise), facsimile or E-mail, and shall be deemed to have been “sent” upon deposit in the U.S. Mails with adequate postage properly affixed, upon delivery to an express delivery service or upon the electronic submission through telephonic or Internet services, as applicable. Each Grantor hereby agrees and acknowledges that (i) with respect to collateral that is: (A) perishable or threatens to decline speedily in value, or (B) is of a type customarily sold on a recognized market (including but not limited to, Investment Property)(a) terminate this Agreement and all rights of Lessee hereunder; (b) to declare the entire unpaid rent due (including any rent accruing during any minimum rental term) to be immediately due and payable; (c) to enter the premises where the Equipment is located, no notice take possession of disposition need be givenand remove the Equipment or render the Equipment inoperable, with or without legal process; (d) to demand that Lessee surrender and deliver up possession of the Equipment to Lessor; (e) with or without terminating this Agreement, to re-let the Equipment on such terms and conditions as are then available and otherwise acceptable to Lessor, and apply rent payments received, after deduction of all costs and expenses incurred by Lessor, to amounts due from Lessee under this Agreement; and (iif) with respect within Lessor’s sole discretion, but without any obligation, to Collateral take such action or make any payment to remedy any default, including but not described in clause (i) abovelimited to, notification sent after procuring any required insurance coverage, paying any fine, imposition, penalty, taxes or fees incurred to recover and/or release the occurrence of and during Equipment from any forfeiture, seizure, confiscation or similar proceeding, or from any lien or other encumbrance imposed on the continuance of a Default and ten days before any proposed disposition provides notice within a reasonable time before disposition.
(c) Each Grantor hereby agrees and acknowledges that a commercially reasonable disposition of Inventory, Equipment, Computer Hardware and Software, or Intellectual Property may be by lease or license of, in addition to the sale of, all such Collateral. Each Grantor further agrees and acknowledges that a disposition: (i) made in the usual manner on any recognized market, or (ii) a disposition at the price current in any recognized market at the time payments of disposition, or (iii) a disposition in conformity with reasonable commercial practices among dealers in the type of property subject to the disposition; which shall be deemed commercially reasonable.
(d) Any cash proceeds of any disposition reimbursed by the Administrative Agent of any of the Collateral shall be applied by the Administrative Agent to payment of expenses in connection with the Collateral, including reasonable attorneys’ fees and legal expenses, and thereafter Lessee. In addition to the payment of any amounts due Lessor hereunder, Lessee shall be responsible for and shall reimburse Lessor for all costs and expenses incurred by Lessor in connection with the exercise of any rights and remedies hereunder, including all expenses incurred in the removal and transportation of the Liabilities Equipment to Lessor’s premises, any cleaning, service and/or repair of the Equipment, and in the order of application set forth in Section 8.03 enforcement of the Credit Agreementterms and conditions of this Agreement or damages recoverable hereunder, and thereafter any surplus will be paid promptly to the Grantor. The Administrative Agent need not apply or pay over for application noncash proceeds including costs of collection and enforcement unless: reasonable attorney’s fees (iincluding fees and expenses incurred in any bankruptcy proceeding or on appeal) the failure to do so would be commercially unreasonable and (ii) the affected Grantor has provided the Administrative Agent with a written demand to apply or pay over such noncash proceeds on such basis.
Appears in 2 contracts
Sources: Equipment Lease Bare Rental Agreement, Equipment Lease Bare Rental Agreement
Default. Whenever a Default The following shall be existing, the Administrative Agent may exercise from time to time any and all rights and remedies available to it under applicable law, in addition to those described in this section below.deemed an event of default:
(a) Each Grantor agrees, in case of Default, (i) at the Administrative Agent’s request, Borrower fails to assemble, at its expense, all its Inventory and other Goods (other than Fixtures) at a convenient place or places acceptable make timely payment to the Administrative Agent, and (ii) at the Administrative Agent’s request, to execute all such documents and do all such other things which may be necessary or desirable in order to enable the Administrative Agent or its nominee to be registered as owner of the Intellectual Property with any competent registration authority.Lender;
(b) Notice Borrower uses any fund for purposes contrary to the stated use of the intended disposition of the Collateral may be given by first-class mail, hand-delivery (through a delivery service or otherwise), facsimile or E-mail, and shall be deemed to have been “sent” upon deposit in the U.S. Mails with adequate postage properly affixed, upon delivery to an express delivery service or upon the electronic submission through telephonic or Internet services, as applicable. Each Grantor hereby agrees and acknowledges that (i) with respect to collateral that is: (A) perishable or threatens to decline speedily in value, or (B) is of a type customarily sold on a recognized market (including but not limited to, Investment Property), no notice of disposition need be given; and (ii) with respect to Collateral not described in clause (i) above, notification sent after the occurrence of and during the continuance of a Default and ten days before any proposed disposition provides notice within a reasonable time before disposition.proceeds;
(c) Each Grantor hereby agrees and acknowledges that a commercially reasonable disposition If any of Inventory, Equipment, Computer Hardware and SoftwareBorrower’s representation is untrue, or Intellectual Property may be if Borrower breaches any of its warranties;
(d) On the occurrence of any of the events described in Section 9(b)(4) of this agreement, Borrower fails to provide new guaranty and/or guarantor;
(e) Borrower acts in contravention of any of the rights of the parties herein;
(f) Borrower causes an event of default of any contract of which Lender or any other Bank of China related entity is a party;
(g) A breach by lease or license of, in addition to the sale of, such Collateral. Each Grantor further agrees and acknowledges that a disposition: (i) made in the usual manner on any recognized marketguarantor of its guaranty agreement, or if a guarantor causes an event of default of any contract of which Lender or any other Bank of China related entity is a party; or
(iih) Borrower ceases all business operations, is dissolved or files for bankruptcy. In the event of default, Lender shall have the right to take any one or all of the following actions:
(a) To require Borrower and/or the guarantor to take corrective actions within a disposition at specified time period;
(b) To halt, reduce or terminate all or part of Borrower’s credit limit;
(c) To halt, reduce or terminate all or part of Borrower’s then pending fund withdrawal request, as well as any non-withdrawn fund;
(d) To declare any outstanding amount owing to Lender, whether or not pursuant to this agreement, immediately due;
(e) To terminate this agreement in whole or in part, or to terminate such other agreements between Lender and Borrower;
(f) To obligate Borrower to pay all damages resulting from the price current event of default;
(g) To apply any funds held in Borrower’s account with Lender or any recognized market Bank of China related entity toward payment of all or part of Borrower’s obligations under this agreement, with notice to Borrower prior to or after the taking of such action by Lender, and the value of any property held in such account shall be determined by Lender at the time of disposition, or seizure;
(iiih) a disposition in conformity To exercise its rights with reasonable commercial practices among dealers in the type of property subject respect to the disposition; shall be deemed commercially reasonable.pledged assets;
(d) Any cash proceeds of any disposition by the Administrative Agent of any of the Collateral shall be applied by the Administrative Agent to payment of expenses in connection with the Collateral, including reasonable attorneys’ fees and legal expenses, and thereafter to the payment of any and all of the Liabilities in the order of application set forth in Section 8.03 of the Credit Agreement, and thereafter any surplus will be paid promptly to the Grantor. The Administrative Agent need not apply or pay over for application noncash proceeds of collection and enforcement unless: (i) To require the failure guarantors to do so would be commercially unreasonable and perform their obligations under the guaranty agreements; or
(iij) the affected Grantor has provided the Administrative Agent with a written demand to apply or pay over To take any such noncash proceeds on such basisother actions as Lender may deem necessary.
Appears in 2 contracts
Sources: Short Term Renminbi Loan Agreement (Energroup Holdings Corp), Short Term Renminbi Loan Agreement (Energroup Holdings Corp)
Default. Whenever a Default shall be existing, a. Any one or more of the Administrative Agent may exercise from time to time any and all rights and remedies available to it under applicable law, in addition to those described in this section below.
following events: (a) Each Grantor agrees, in case of Default, failure to pay any principal amount or interest when due; (b) Maker (i) at the Administrative Agent’s requestfiles any petition seeking a discharge, to assemblerearrangement, at or reorganization of its expense, all its Inventory and other Goods (other than Fixtures) at a convenient place or places acceptable debts pursuant to the Administrative Agentbankruptcy laws or any other debtor relief laws of the United States or any state or any other competent jurisdiction, and (ii) at makes a general assignment for the Administrative Agent’s request, to execute all such documents and do all such other things which may be necessary or desirable in order to enable the Administrative Agent or benefit of its nominee to be registered as owner of the Intellectual Property with any competent registration authority.
(b) Notice of the intended disposition of the Collateral may be given by first-class mail, hand-delivery (through a delivery service or otherwise), facsimile or E-mail, and shall be deemed to have been “sent” upon deposit in the U.S. Mails with adequate postage properly affixed, upon delivery to an express delivery service or upon the electronic submission through telephonic or Internet services, as applicable. Each Grantor hereby agrees and acknowledges that (i) with respect to collateral that is: (A) perishable or threatens to decline speedily in value, or (B) is of a type customarily sold on a recognized market (including but not limited to, Investment Property), no notice of disposition need be given; and (ii) with respect to Collateral not described in clause (i) above, notification sent after the occurrence of and during the continuance of a Default and ten days before any proposed disposition provides notice within a reasonable time before disposition.
(c) Each Grantor hereby agrees and acknowledges that a commercially reasonable disposition of Inventory, Equipment, Computer Hardware and Software, or Intellectual Property may be by lease or license of, in addition to the sale of, such Collateral. Each Grantor further agrees and acknowledges that a disposition: (i) made in the usual manner on any recognized market, or (ii) a disposition at the price current in any recognized market at the time of dispositioncreditors, or (iii) admits in writing its inability to pay its debts as they mature; or (c) a disposition in conformity with reasonable commercial practices among dealers in petition is filed against Maker seeking to rearrange, reorganize, or extinguish its debts under the type provisions of property subject to any bankruptcy or other debtor relief law of the disposition; shall be deemed commercially reasonable.
United States or any state or other competent jurisdiction, and such petition is not dismissed within 45 days, or (d) Any cash proceeds a court of competent jurisdiction enters an order, judgment, or decree appointing a receiver or trustee for it or for all or any disposition by the Administrative Agent part of any its property.
b. If a Default occurs, and Maker does not cure such Default within thirty (30) days of receiving notice of the Collateral Default from Payee, Payee may, at its option, declare the principal of and the accrued and unpaid interest on, this Note due and payable by written notice to Maker. Notwithstanding the immediately preceding sentence, if a Default is in respect of a bankruptcy or insolvency proceeding the principal of this Note, and all accrued and unpaid interest, shall be applied by automatically become immediately due and payable. In addition, Payee may institute judicial proceedings for the Administrative Agent collection of the amounts due and may prosecute such proceeding to payment judgment or final decree, and may enforce the same against Maker and collect the amount due (together with reasonable costs of expenses in connection with the Collateralcollection, including reasonable attorneys’ attorney’s fees and legal expenses) adjudged or decreed to be payable in the manner provided by law out of the property of Maker. Payee may also exercise the rights of a secured party under the Uniform Commercial Code then in effect in Nevada and under the terms of the other transaction documents, and thereafter to the payment of may exercise any and all other rights Payee may have at law or in equity.
c. Default rate of the Liabilities in the order of application set forth in Section 8.03 of the Credit Agreement, and thereafter any surplus will be paid promptly to the Grantor. The Administrative Agent need not apply or pay over for application noncash proceeds of collection and enforcement unlessinterest: (i) the failure to do so would be commercially unreasonable and (ii) the affected Grantor has provided the Administrative Agent with a written demand to apply or pay over such noncash proceeds on such basis10% per annum.
Appears in 2 contracts
Sources: Note Agreement (Edison Nation, Inc.), Note Agreement (Edison Nation, Inc.)
Default. Whenever (a) In the event (i) Pledgor fails to pay any portion of the principal or interest under the Note when it becomes due, and such failure or breach is not cured by Pledgor within five days of written notice thereof from the Company, (ii) any representation of Pledgor in the Note or this Pledge Agreement was incorrect in any material respect when made, (iii) Pledgor otherwise breaches this Agreement or the Note in any manner, which breach is not cured within five days of written notice from the Company, or (iv) the Pledgor files a Default petition or otherwise seeks relief under any bankruptcy, insolvency or similar law ("Insolvency Law") or a receiver, conservator, custodian or similar person is appointed by court order, or an order for relief is entered under federal or other applicable bankruptcy laws with respect to Pledgor, or a petition is filed against Pledgor under any Insolvency Law, or Pledgor makes an assignment for the benefit of creditors (any such event in (i)-(iv) being a "Default"), then the Company may exercise any and all rights, powers and remedies of any owner of the Pledged Shares or other pledged collateral in furtherance of this Agreement and shall be existinghave, and may exercise without demand, any and all of the rights and remedies granted to a secured party upon default under the Uniform Commercial Code of Illinois or otherwise available to the Company under applicable law. Without limiting the foregoing, the Administrative Agent may exercise Company is authorized to sell, assign and deliver at its discretion, from time to time during any period after a Default, all or any part of the Pledged Shares and all rights other pledged collateral for the account of Pledgor at any private sale or public auction, on not less than ten days' written notice to Pledgor, at such price or prices and remedies available upon such terms as the Company may reasonably deem advisable. Pledgor shall have no right to it under applicable lawredeem any Pledged Shares or other pledged collateral thus sold or auctioned. At any such sale or auction, in addition to those described in this section below.
(a) Each Grantor agreesthe Company may bid for, in and become the purchaser of, the whole or any part of the Pledged Shares or other collateral offered for sale. In case of Defaultany such sale or auction, (i) at after deducting the Administrative Agent’s requestcosts, to assemble, at its expense, all its Inventory attorneys' fees and other Goods (other than Fixtures) at a convenient place or places acceptable expenses of sale and delivery, the remaining proceeds of such sale shall be applied to the Administrative Agentdue and unpaid principal of, and (ii) at due and unpaid accrued interest on, the Administrative Agent’s request, to execute all such documents and do all such other things which may be necessary or desirable Note; provided that promptly after payment in order to enable the Administrative Agent or its nominee to be registered as owner full of the Intellectual Property with indebtedness evidenced by the Note, the balance of the proceeds of sale or auction then remaining shall be paid to Pledgor and Pledgor shall be entitled to the prompt return of any competent registration authorityof the Pledged Shares or other collateral remaining in the hands of the Company. Pledgor shall be liable for any deficiency if the remaining proceeds are insufficient to pay the indebtedness under the Note in full only to the extent, and in the circumstances, set forth in the Note.
(b) Notice In addition to and not in lieu of the intended disposition of the Collateral may be given by first-class mail, hand-delivery (through a delivery service or otherwise), facsimile or E-mail, and shall be deemed to have been “sent” upon deposit in the U.S. Mails with adequate postage properly affixed, upon delivery to an express delivery service or upon the electronic submission through telephonic or Internet services, as applicable. Each Grantor hereby agrees and acknowledges that (i) with respect to collateral that is: (A) perishable or threatens to decline speedily in value, or (B) is of a type customarily sold on a recognized market (including but not limited to, Investment Property), no notice of disposition need be given; and (ii) with respect to Collateral not described in clause (i) above, notification sent after the occurrence of and during the continuance of a Default and ten days before any proposed disposition provides notice within a reasonable time before disposition.
(c) Each Grantor hereby agrees and acknowledges that a commercially reasonable disposition of Inventory, Equipment, Computer Hardware and Software, or Intellectual Property may be by lease or license of, in addition to the sale of, such Collateral. Each Grantor further agrees and acknowledges that a disposition: (i) made in the usual manner on any recognized market, or (ii) a disposition at the price current in any recognized market at the time of disposition, or (iii) a disposition in conformity with reasonable commercial practices among dealers in the type of property subject to the disposition; shall be deemed commercially reasonable.
(d) Any cash proceeds of any disposition by the Administrative Agent of any of the Collateral shall be applied by the Administrative Agent to payment of expenses in connection with the Collateral, including reasonable attorneys’ fees and legal expenses, and thereafter to the payment of any and all of the Liabilities in the order of application remedies set forth in Section 8.03 7(a), so long as Common Shares of the Credit AgreementCompany of the same class as the Pledged Shares are publicly traded, the Pledgor agrees that the Company shall not be obligated to sell the Pledged Shares pursuant to Section 7(a), but may instead, at its option, purchase all or any part of the Pledged Shares at the Fair Market Value at the date of purchase, and thereafter any surplus will be paid promptly may apply the proceeds thereof to the Grantor. The Administrative Agent need not apply or pay over for application noncash proceeds of collection and enforcement unless: (i) the failure to do so would be commercially unreasonable and (ii) the affected Grantor has provided the Administrative Agent with a written demand to apply or pay over such noncash proceeds on such basisLoan Balance.
Appears in 2 contracts
Sources: Executive Stock Pledge, Security and Retention Agreement (Apropos Technology Inc), Executive Stock Pledge, Security and Retention Agreement (Apropos Technology Inc)
Default. Whenever a If an Event of Default shall occur, at the election of the Lender, all Obligations shall become immediately due and payable without notice or demand, except with respect to Obligations payable on DEMAND, which shall be existingdue and payable on DEMAND, whether or not an Event of Default has occurred. The Lender is hereby authorized, at its election, after an Event of Default or after Demand, without any further demand or notice except to such extent as notice may be required by applicable law, to take possession and/or sell or otherwise dispose of all or any of the Administrative Agent Collateral at public or private sale; and the Lender may also exercise from time to time any and all other rights and remedies available of a secured party under the Code or which are otherwise accorded to it under by applicable law, in addition to those described in this section below.
(a) Each Grantor agreesall as the Lender may determine. If notice of a sale or other action by the Lender is required by applicable law, in case of Default, (i) at the Administrative Agent’s request, to assemble, at its expense, all its Inventory and other Goods (other than Fixtures) at a convenient place or places acceptable to the Administrative Agent, and (ii) at the Administrative Agent’s request, to execute all such documents and do all such other things which may be necessary or desirable in order to enable the Administrative Agent or its nominee to be registered as owner of the Intellectual Property with any competent registration authority.
(b) Notice of the intended disposition of unless the Collateral may be given by first-class mail, hand-delivery (through a delivery service or otherwise), facsimile or E-mail, and shall be deemed to have been “sent” upon deposit in the U.S. Mails with adequate postage properly affixed, upon delivery to an express delivery service or upon the electronic submission through telephonic or Internet services, as applicable. Each Grantor hereby agrees and acknowledges that (i) with respect to collateral that is: (A) is perishable or threatens to decline speedily in value, value or (B) is of a type customarily sold on a recognized market market, the Borrower agrees that five (including but not limited to5) days' written notice to the Borrower, Investment Property)or the shortest period of written notice permitted by such law, no notice of disposition need whichever is larger, shall be givensufficient notice; and (ii) with respect to Collateral not described in clause (i) above, notification sent after the occurrence of and during the continuance of a Default and ten days before any proposed disposition provides notice within a reasonable time before disposition.
(c) Each Grantor hereby agrees and acknowledges that a commercially reasonable disposition of Inventory, Equipment, Computer Hardware and Software, or Intellectual Property may be by lease or license of, in addition to the extent permitted by law, the Lender, its officers, attorneys and agents may bid and become purchasers at any such sale, if public, and may purchase at any private sale of, such Collateral. Each Grantor further agrees and acknowledges that a disposition: (i) made in the usual manner on any recognized market, or (ii) a disposition at the price current in any recognized market at the time of disposition, or (iii) a disposition in conformity with reasonable commercial practices among dealers in the type of property subject to the disposition; shall be deemed commercially reasonable.
(d) Any cash proceeds of any disposition by the Administrative Agent of any of the Collateral that is or a type customarily sold on a recognized market or which is the subject of widely distributed standard price quotations. Any sale (public or private) shall be applied free from any right of redemption, which the Borrower hereby waives and releases. No purchaser at any sale (public or private) shall be responsible for the application of the purchase money. Any balance of the net proceeds of sale remaining after paying all Obligations of the Borrower to the Lender shall be returned to the Borrower or to such other party as may be legally entitled thereto; and if there is a deficiency, the Borrower shall be responsible for the same, with interest. Upon demand by the Administrative Agent to payment of expenses in connection with Lender, the Collateral, including reasonable attorneys’ fees Borrower shall assemble the Collateral and legal expenses, and thereafter make it available to the payment of any Lender at a place designated by the Lender which is reasonably convenient to the Lender and all the Borrower. The Borrower hereby acknowledges that the Lender has extended credit and other financial accommodations to the Borrower upon reliance of the Liabilities Borrower's granting the Lender the rights and remedies contained in this Agreement including without limitation, the order of application set forth in Section 8.03 right to take immediate possession of the Credit Agreement, Collateral upon the occurrence of an Event of Default or after DEMAND with respect to Obligations payable on DEMAND and thereafter the Borrower hereby acknowledges that the Lender is entitled to equitable and injunctive relief to reinforce any surplus will be paid promptly of its rights and remedies hereunder or under the Code and the Borrower hereby waives any defense to such equitable or injunctive relief based upon any allegation of the absence of irreparable harm to the Grantor. The Administrative Agent need not apply or pay over for application noncash proceeds of collection and enforcement unless: (i) the failure to do so would be commercially unreasonable and (ii) the affected Grantor has provided the Administrative Agent with a written demand to apply or pay over such noncash proceeds on such basisLender.
Appears in 2 contracts
Sources: Loan and Security Agreement (Fix Corp International Inc), Acquisition Agreement (Fix Corp International Inc)
Default. Whenever a Default shall be existing, all Secured Obligations may (notwithstanding any provisions thereof), at the Administrative Agent option of the Lender, and without demand or notice of any kind, be declared, and thereupon immediately shall become, due and payable, and the Lender may exercise from time to time any and all rights and remedies available to it under applicable lawlaw and may, without notice except as specified below, sell, lease, assign, and deliver, or grant options to purchase, or otherwise dispose of all or any part of the Collateral, at such place or places as the Lender may determine, at public or private sale, it being agreed that the purchaser, lessee, assignee, or recipient of all or any part of the Collateral so disposed of at any public or private sale may thereafter hold the same absolutely free from any claim or right of Debtor of whatsoever kind, including any right of redemption, and any obligation to see to the application of any part of the purchase money paid therefor or any liability for the misapplication or non-application thereof; and the Lender may, without notice or publication, adjourn any public or private sale or cause the same to be adjourned from time to time by announcement at the time and place fixed for such sale, and such sale may be made at any time or place to which the same may be so adjourned. The parties hereto hereby agree that the duties of the Lender pursuant to the UCC will be deemed to be satisfied so long as the requirements of this Section 6 are satisfied in addition connection with any disposition of Collateral pursuant to those described in this section below.
(a) Each Grantor Agreement. Debtor agrees, in case of Default, (i) at the Administrative Agent’s request, to assemble, at its expense, all its Inventory and other Goods (other than Fixtures) Collateral at a convenient place or places acceptable to the Administrative Agent, and (ii) at the Administrative Agent’s request, to execute all such documents and do all such other things which may be necessary or desirable in order to enable the Administrative Agent or its nominee to be registered as owner Lender. Any notification of the Intellectual Property with any competent registration authority.
(b) Notice of the intended disposition of any of the Collateral may be given required by first-class maillaw, hand-delivery (through a delivery service or otherwise), facsimile or E-mail, and shall be deemed to have been “sent” upon deposit in the U.S. Mails with adequate postage reasonably and properly affixed, upon delivery to an express delivery service or upon the electronic submission through telephonic or Internet services, as applicable. Each Grantor hereby agrees and acknowledges that given if given at least five (i5) with respect to collateral that is: (A) perishable or threatens to decline speedily in value, or (B) is of a type customarily sold on a recognized market (including but not limited to, Investment Property), no notice of disposition need be given; and (ii) with respect to Collateral not described in clause (i) above, notification sent after the occurrence of and during the continuance of a Default and ten days before any proposed disposition provides notice within a reasonable time before such disposition.
(c) Each Grantor hereby agrees and acknowledges that a commercially reasonable disposition of Inventory, Equipment, Computer Hardware and Software, or Intellectual Property may be by lease or license of, in addition to the sale of, such Collateral. Each Grantor further agrees and acknowledges that a disposition: (i) made in the usual manner on any recognized market, or (ii) a disposition at the price current in any recognized market at the time of disposition, or (iii) a disposition in conformity with reasonable commercial practices among dealers in the type of property subject to the disposition; shall be deemed commercially reasonable.
(d) Any cash proceeds of any disposition by the Administrative Agent Lender of any of the Collateral shall may be applied by the Administrative Agent Lender to the payment of expenses in connection with the Collateral, including reasonable attorneys’ fees and legal expenses, and thereafter any balance of such proceeds shall be applied by the Lender (i) first, to the payment of any and all such of the Liabilities Secured Obligations, and in the such order of application set forth in Section 8.03 of application, as the Credit Agreement, and thereafter any surplus will be paid promptly Lender may from time to the Grantor. The Administrative Agent need not apply or pay over for application noncash proceeds of collection and enforcement unless: (i) the failure to do so would be commercially unreasonable and time elect; (ii) second, to the affected Grantor has provided payment to whosoever may be lawfully entitled to receive the Administrative Agent with same or as a written demand court of competent jurisdiction may direct, of any surplus then remaining from such proceeds; and (iii) if any balance is remaining, to apply or pay over such noncash proceeds on such basisthe Debtor.
Appears in 2 contracts
Sources: Security Agreement (Idt Spectrum, Inc.), Security Agreement (Idt Spectrum, Inc.)
Default. Whenever When a Default shall be existing, the Administrative Agent may exercise from time to time any and all rights and remedies available to it under applicable law, in addition to those described in this section below.
(a) Each Grantor agrees, in case of Default, (i) at the Administrative Agent’s request, to assemble, at its expense, all its Inventory and other Goods (other than Fixtures) at a convenient place or places acceptable to the Administrative Agent, and (ii) at the Administrative Agent’s request, to execute all such documents and do all such other things which may be necessary or desirable in order to enable the Administrative Agent or its nominee to be registered as owner of the Intellectual Property with any competent registration authority.
(b) Notice of the intended disposition of the Collateral may be given by first-class mail, hand-delivery (through a delivery service or otherwise), facsimile or E-mail, and shall be deemed to have been “sent” upon deposit default in the U.S. Mails with adequate postage properly affixed, upon delivery to an express delivery service payment or upon the electronic submission through telephonic or Internet services, as applicable. Each Grantor hereby agrees and acknowledges that (i) with respect to collateral that is: (A) perishable or threatens to decline speedily in value, or (B) is of a type customarily sold on a recognized market (including but not limited to, Investment Property), no notice of disposition need be given; and (ii) with respect to Collateral not described in clause (i) above, notification sent after the occurrence of and during the continuance of a Default and ten days before any proposed disposition provides notice within a reasonable time before disposition.
(c) Each Grantor hereby agrees and acknowledges that a commercially reasonable disposition of Inventory, Equipment, Computer Hardware and Software, or Intellectual Property may be by lease or license of, in addition to the sale of, such Collateral. Each Grantor further agrees and acknowledges that a disposition: (i) made in the usual manner on any recognized market, or (ii) a disposition at the price current in any recognized market at the time of disposition, or (iii) a disposition in conformity with reasonable commercial practices among dealers in the type of property subject to the disposition; shall be deemed commercially reasonable.
(d) Any cash proceeds of any disposition by the Administrative Agent performance of any of the Collateral obligations occurs, and on the entry of an order of the United States Bankruptcy Court for the District of , in the proceedings under Chapter of the Bankruptcy Code authorizing enforcement of the security interests created by this agreement, the secured party will have, in addition, other rights accorded a secured party in any jurisdiction where enforcement of this agreement is sought, the rights and remedies of a secured party under the Uniform Commercial Code of enter on any premises where the collateral, or any part of the collateral, may be situated and remove the collateral. The secured party will give the debtor at least day’s prior written notice to any such address as the debtor shall have specified to secured party in writing, of the time and place of any public sale of the collateral or of the time after which any private sale of the collateral is to be made. The secured party shall be applied entitled to retain part of the proceeds of the sale, subject to the approval of the Bankruptcy Court, (a) all secured sums, (b) its reasonable expenses of repossessing, holding, preparing for sale, and selling the collateral, and (c) reasonable legal expenses incurred by it in connection with this agreement and with such sale. No waiver by a secured party of any default is effective unless in writing, nor operate as a waiver of any other default, or of the same default on another occasion. NO WAIVER BY SECURED PARTY The secured party is not deemed to have waived any of its rights on, or under, the obligations or the collateral unless the waiver is in writing and signed by the Administrative Agent secured party. No delay or omission on the part of the secured party in exercising any rights operates as a waiver of such right or any other right. A waiver on any one occasion will not be construed as a bar to, or waiver of, any right on any future occasion. All rights and remedies of the secured party on the obligations or the collateral, whether evidenced by this agreement or by any instrument or papers, are cumulative and may be exercised separately or concurrently. CARE BY SECURED PARTY The secured party will attempt to payment exercise the same care with respect to this security agreement and collateral as it exercises with respect to security agreements and collateral in which it alone is interested, but, except as otherwise expressly provided, the secured party assumes no further responsibility to the lenders with respect to (1) the validity or enforceability of expenses this agreement, (2) the truth or correctness of any representation contained in this agreement, or any other statements or certificates made by the debtor in connection with the Collateralgranting or handling of the security interest, including reasonable attorneys’ fees and legal expenses, and thereafter or (3) the collateral. The secured party will have no responsibility to lenders for the payment performance by the debtor of its obligations under this security agreement. The secured party will not be responsible for the consequences of any and all of oversight or error in judgment or be liable for any action taken, or omitted to be taken, except only for the Liabilities in the order of application set forth in Section 8.03 of the Credit Agreementsecured party’s gross negligence, and thereafter any surplus will be paid promptly to the Grantor. The Administrative Agent need not apply bad faith, or pay over for application noncash proceeds of collection and enforcement unless: (i) the failure to do so would be commercially unreasonable and (ii) the affected Grantor has provided the Administrative Agent with a written demand to apply or pay over such noncash proceeds on such basiswillful misconduct.
Appears in 2 contracts
Sources: Mortgage, Pledge, and Security Agreement, Mortgage, Pledge, and Security Agreement
Default. Whenever a Default The following shall be existing, the Administrative Agent may exercise from time to time any and all rights and remedies available to it under applicable law, in addition to those described in this section below.
(a) Each Grantor agrees, in case constitute "Events of Default" and in any such events, (i) at the Administrative Agent’s request, to assemble, at its expense, all its Inventory and other Goods (other than Fixtures) at a convenient place or places acceptable to the Administrative Agent, and (ii) at the Administrative Agent’s request, to execute all such documents and do all such other things which may be necessary or desirable in order to enable the Administrative Agent or its nominee to be registered as owner of the Intellectual Property with any competent registration authority.
(b) Notice of the intended disposition of the Collateral may be given by first-class mail, hand-delivery (through a delivery service or otherwise), facsimile or E-mail, and Tenant shall be deemed to have been “sent” upon deposit be in default under the terms of this Lease and shall be subject to Landlord's remedies as set forth herein:
a. Tenants failure to pay, when due, any rent or other payments due hereunder, including without limitation Additional Rent, taxes and sales tax or any other payment due Landlord under any other agreement or contract between Landlord and Tenant; or
b. Tenant's abandoning or vacating of the Premises without prior written consent of Landlord, it being agreed that non-occupation of the Premises for a period often (10) consecutive days, without written consent of Landlord, shall be conclusively deemed an abandonment, notwithstanding anything contained in Florida Statute Chapter 83 to the contrary; or
c. Tenant's voluntarily petitioning for relief under or otherwise seeking the benefit of any bankruptcy, reorganization or insolvency law; or
d. A receiver or trustee being appointed for Tenant or its property; or
e. The filing of an involuntary bankruptcy, arrangement, or reorganization petition against Tenant; or
f. Tenants making an assignment for the benefit of creditors; or
g. Any of the goods, chattels, rights, credits, or effects of Tenant used in or incident to the occupation of the Premises being seized, sequestered, or impounded by virtue of or under the authority of any legal proceedings; or
h. Tenant's interest under this Lease being sold under execution or other legal process; or
i. Any act or omission of Tenant which results in the U.S. Mails with adequate postage properly affixed, upon delivery to an express delivery service or upon the electronic submission through telephonic or Internet services, as applicable. Each Grantor hereby agrees and acknowledges that (i) with respect to collateral that is: (A) perishable or threatens to decline speedily in value, or (B) is filing of a type customarily sold on a recognized market (including but not limited tolien against the Premises; or
j. Any transfer, Investment Property)assignment, no notice subletting or encumbering of disposition need Tenant's interest under this Lease or the Premises, by operation of law or otherwise without the prior written consent of Landlord, which consent shall be given; and (ii) with respect to Collateral not described in clause (i) above, notification sent after the occurrence of and during the continuance of a Default and ten days before any proposed disposition provides notice within a reasonable time before disposition.
(c) Each Grantor hereby agrees and acknowledges that a commercially reasonable disposition of Inventory, Equipment, Computer Hardware and Software, or Intellectual Property may be by lease or license of, in addition to the sale of, such Collateral. Each Grantor further agrees and acknowledges that a disposition: (i) made in the usual manner on any recognized market, or (ii) a disposition at the price current in any recognized market at the time sole and absolute discretion of disposition, or (iii) a disposition in conformity with reasonable commercial practices among dealers Landlord; or
k. Tenant's continued default in the type of property subject to the disposition; shall be deemed commercially reasonable.
(d) Any cash proceeds of any disposition by the Administrative Agent performance or observance of any of the Collateral shall be applied other covenants or agreements contained in this Lease and not specifically set forth above for a period often (10) days after the date of mailing written notice thereof by the Administrative Agent Landlord to payment of expenses in connection with the Collateral, including reasonable attorneys’ fees and legal expenses, and thereafter to the payment Tenant
l. Tenant's repeated violation of any and all covenant or agreement contained in this Lease. "Repeated Violation" shall mean violating any covenant or agreement for which written notice of the Liabilities in the order of application set forth in Section 8.03 of the Credit Agreement, and thereafter any surplus will be paid promptly to the Grantor. The Administrative Agent need not apply or pay over for application noncash proceeds of collection and enforcement unless: violation was given by Landlord on more than two (i2) the failure to do so would be commercially unreasonable and occasions within a twelve (ii12) the affected Grantor has provided the Administrative Agent with a written demand to apply or pay over such noncash proceeds on such basis.month period
Appears in 2 contracts
Sources: Commercial Office Lease (National Health Partners Inc), Commercial Office Lease (National Health Partners Inc)
Default. Whenever a 6.1 Upon the occurrence of an Event of Default shall be existingand during the continuance thereof, the Administrative Agent may Lenders are hereby authorized and empowered in their discretion to exercise from time to time any and all rights and remedies available powers in respect of the Pledged Securities as a member, partner, shareholder, or other equityholder of the issuer of the Pledged Securities, and each Pledgor hereby consents to it under applicable lawthe admission of each Lender or any designee thereof as a member, partner, shareholder or other equityholder of the issuer of the Pledged Securities and the exercise by each Lender of the voting rights of such Pledgor with respect to the Pledged Securities owned by such Pledgor, in addition each case if such Lender so elects, and to those described any sale of the Pledged Collateral by the Lenders in accordance with the UCC, other applicable law and this section belowAgreement.
(a) Each Grantor agreesUpon the occurrence of an Event of Default and during the continuation thereof, without limiting the generality of this Section and without notice, the Lenders may, in case their sole discretion, exercise in respect of Defaultthe Pledged Securities, in addition to all other rights and remedies provided for herein or otherwise available to them, all the rights and remedies of a secured party on default under the UCC, other applicable Uniform Commercial Code, or other applicable laws as in effect in any relevant jurisdiction (iwhether or not the Uniform Commercial Code applies to the affected Pledged Securities), and the Lenders may also in their sole discretion sell the Pledged Securities or any part thereof in one or more parcels at public or private sale, at any exchange or broker’s board or at any of the Seller’s offices or elsewhere, for cash, on credit or for future delivery, at such time or times and at such price or prices and upon such other terms as the Lenders may deem commercially reasonable, irrespective of the impact of any such sales on the market price of the Pledged Securities. The Lenders may be the purchaser of any or all of the Pledged Securities at any such sale, and the Lenders shall be entitled, for the purpose of bidding and making settlement or payment of the purchase price for all or any portion of the Pledged Securities sold at any such sale, to credit bid all or any portion of the Obligations as a credit on account of the purchase price for any Pledged Securities payable by the Lenders at such sale. Each purchaser at any such sale shall hold Pledged Securities sold free from any claim or right of the Pledgors, and the Pledgors hereby waive (to the extent permitted by applicable law) all rights of redemption, stay and/or appraisal which it now has or may at any time in the future have under any rule of law or statute now existing or hereafter enacted. The Lenders shall not be obligated to make any sale of Pledged Securities regardless of notice of sale having been given. The Lenders may adjourn any public or private sale from time to time by announcement at the Administrative Agent’s request, to assemble, at its expense, all its Inventory time and other Goods (other than Fixtures) at a convenient place or places acceptable to the Administrative Agentfixed therefor, and (ii) such sale may, without further notice, be made at the Administrative Agent’s request, time and place to execute all such documents and do all such other things which may be necessary or desirable in order to enable the Administrative Agent or its nominee to be registered as owner of the Intellectual Property with any competent registration authorityit was so adjourned.
(b) Notice Pledgors and Lenders acknowledge and agree that for purposes of determining whether a disposition of Pledged Securities which consists solely of Company Interests has been made in a commercially reasonable manner, the fair market value of the intended disposition Company Interests may be determined by an independent appraisal of the Collateral value of the Company. Pledgors and Lenders further agree that Lenders shall be entitled to commission a valuation of the Company from Mine Development Associates, or another independent mine valuation company selected by the Lenders, and may be given by first-class mailrely upon such valuation as a basis for determining the value of the Company Interests, hand-delivery (through and that the cost of such valuation is a delivery service or otherwise), facsimile or E-mail, commercially reasonable expense of the disposition and shall be deemed to have been “sent” upon deposit paid by Pledgors and constitute an Obligation under the Loan Agreement secured by the lien and security interest created hereby. In the case of all sales of Pledged Collateral or any part thereof by the Lenders in accordance with this Agreement and applicable law, including the U.S. Mails with adequate postage properly affixedUCC, upon delivery to an express delivery service or upon the electronic submission through telephonic or Internet services, as applicable. Each Grantor hereby agrees and acknowledges that (i) with respect to collateral that is: (A) perishable or threatens to decline speedily in value, or (B) is of a type customarily sold on a recognized market (including but not limited to, Investment Property), no notice of disposition need be given; and (ii) with respect to Collateral not described in clause (i) above, notification sent after the occurrence of and during the continuance of a Default an Event of Default, the Pledgors shall pay all reasonable out of pocket costs and ten days before any proposed disposition provides notice within a reasonable time before disposition.
(c) Each Grantor hereby agrees and acknowledges that a commercially reasonable disposition expenses of Inventory, Equipment, Computer Hardware and Software, or Intellectual Property may be by lease or license of, in addition to the sale of, such Collateral. Each Grantor further agrees and acknowledges that a disposition: (i) made in the usual manner on any recognized market, or (ii) a disposition at the price current in any recognized market at the time of disposition, or (iii) a disposition in conformity with reasonable commercial practices among dealers in the type of property subject to the disposition; shall be deemed commercially reasonable.
(d) Any cash proceeds of any disposition by the Administrative Agent of any every kind of the Collateral shall be applied by the Administrative Agent to payment of expenses Lenders in connection with the Collateraltherewith (including, including without limitation, reasonable attorneys’ fees and legal disbursements, court costs, litigation and other expenses), and thereafter after deducting such costs and expenses from the proceeds of sale, the Lenders shall apply any remainder to the payment of the other Obligations and the Borrower shall remain liable for any deficiency. The Pledgors shall be jointly and all severally liable for the payment of any such costs and expenses of the Liabilities Lenders.
6.3 Because of present or future circumstances, a question may arise under the Securities Act of 1933, as amended, as now or hereafter in effect, or any similar statute hereafter enacted analogous in purpose or effect (such Act and any such similar statute as from time to time in effect being hereinafter called the order of application set forth in Section 8.03 “Federal Securities Laws”) with respect to any disposition of the Credit AgreementPledged Collateral pledged hereunder. Each Pledgor understands that compliance with the Federal Securities Laws may very strictly limit the course of conduct of the Lenders if the Lenders were to attempt to dispose of all or any part of the Pledged Collateral and may also limit the extent to which or the manner in which any subsequent transferee of the Pledged Collateral or any part thereof may dispose of the same. There may be other legal restrictions or limitations affecting the Lenders in any attempts to dispose of all or any part of the Pledged Collateral under applicable blue sky or other state securities laws or similar laws analogous in purpose or effect. To the extent permitted by applicable law, each Pledgor covenants and thereafter agrees that the Lenders shall not incur any surplus will be paid promptly liability as a result of the sale of the Pledged Collateral or any part thereof at any private sale that is commercially reasonable and otherwise in accordance with this Agreement and applicable law. To the extent permitted by applicable law, each Pledgor hereby waives any claims against the Lenders arising by reason of the fact that the price at which the Pledged Collateral or any part thereof may have been sold at such a private sale was less than the price which might have been obtained at a public sale or was less than the aggregate amount of the Obligations, even if the Lenders accept the first offer received and do not offer the Pledged Collateral, as the case may be, to the Grantormore than one possible purchaser.
6.4 NOTWITHSTANDING ANYTHING IN THE FOREGOING PROVISIONS OF THIS SECTION 6 TO THE CONTRARY, DURING THE CONTINUANCE OF AN EVENT OF DEFAULT, AT THE SOLE DISCRETION OF THE LENDERS, ANY AMOUNTS DUE TO THE PLEDGORS WITH RESPECT TO THE PLEDGED COLLATERAL SHALL BE PAYABLE IMMEDIATELY TO THE LENDERS AS IF THE LENDERS WERE IN THE PLEDGORS’ POSITION UNDER THE APPLICABLE ORGANIZATIONAL DOCUMENTS. The Administrative Agent need not apply or pay over for application noncash proceeds of collection and enforcement unless: (i) the failure to do so would be commercially unreasonable and (ii) the affected Grantor has provided the Administrative Agent with a written demand to apply or pay over such noncash proceeds on such basisEACH PLEDGOR SHALL TAKE ALL STEPS TO MAKE THE PLEDGED COLLATERAL AVAILABLE TO THE LENDERS AS REQUIRED BY THIS AGREEMENT. EACH PLEDGOR SHALL ACT ON BEHALF OF THE LENDERS WITH RESPECT TO ANY OTHER NECESSARY AGREEMENTS OR DOCUMENTS CONSENTING TO SUCH ARRANGEMENT.
Appears in 2 contracts
Sources: Pledge Agreement (Golden Queen Mining Co LTD), Pledge Agreement (Golden Queen Mining Co LTD)
Default. Whenever a If an Event of Default shall occur, at the election of the Bank (but automatically in the case of an Insolvency Default), all Obligations shall become immediately due and payable without notice or demand, except with respect to Obligations payable on demand, which shall be existingdue and payable on demand, whether or not an Event of Default has occurred. The Bank is hereby authorized, at its election, after an Event of Default or after demand, without any further demand or notice except to such extent as notice may be required by applicable law, to sell or otherwise dispose of all or any of the Collateral at public or private sale and/or enforce and collect the Collateral (including, without limitation, the Administrative Agent liquidation of deposit accounts, debt instruments or securities and the exercise of conversion rights with respect to convertible securities, whether or not such instruments or securities have matured and whether or not any penalties or other charges are imposed on account of such action); and the Bank may also exercise from time to time any and all other rights and remedies available of a secured party under the Code or which are otherwise accorded to it under by applicable law, in addition to those described in this section below.
all as the Bank may determine. If notice of a sale or other action by the Bank is required by applicable law, the Pledgor agrees that ten (a10) Each Grantor agrees, in case of Default, (i) at the Administrative Agent’s request, to assemble, at its expense, all its Inventory and other Goods (other than Fixtures) at a convenient place or places acceptable days’ written notice to the Administrative AgentPledgor, or the shortest period of written notice permitted by law, whichever is smaller, shall be sufficient notice; and that to the extent permitted by law, the Bank, its officers, attorneys and agents may bid and become purchasers at any such sale, if public, and (ii) may purchase at the Administrative Agent’s request, to execute all such documents and do all such other things which may be necessary or desirable in order to enable the Administrative Agent or its nominee to be registered as owner of the Intellectual Property with any competent registration authority.
(b) Notice of the intended disposition private sale any of the Collateral may be given by first-class mail, hand-delivery (through a delivery service or otherwise), facsimile or E-mail, and shall be deemed to have been “sent” upon deposit in the U.S. Mails with adequate postage properly affixed, upon delivery to an express delivery service or upon the electronic submission through telephonic or Internet services, as applicable. Each Grantor hereby agrees and acknowledges that (i) with respect to collateral that is: (A) perishable or threatens to decline speedily in value, or (B) is of a type customarily sold on a recognized market or which is the subject of widely distributed standard price quotations. Any sale (including but not limited topublic or private) shall be free from any right of redemption, Investment Property), no notice which the Pledgor hereby waives and releases. No purchaser at any sale (public or private) shall be responsible for the application of disposition need the purchase money. Any balance of the net proceeds of sale remaining after paying all Obligations of the Pledgor to the Bank shall be givenreturned to the Pledgor or to such other party as may be legally entitled thereto; and (ii) if there is a deficiency, the Pledgor shall be responsible for the same, with respect to Collateral not described in clause (i) above, notification sent after the occurrence of and during the continuance of a Default and ten days before any proposed disposition provides notice within a reasonable time before disposition.
(c) Each Grantor hereby agrees and interest. The Pledgor acknowledges that a commercially reasonable disposition any exercise by the Bank of Inventory, Equipment, Computer Hardware and Software, or Intellectual Property the Bank’s rights upon default may be subject to compliance by lease the Bank with any statute, regulation, ordinance, directive or license oforder of any Federal, state, municipal or other governmental authority, and may impose, without limitation, any of the foregoing restricting the sale of securities. The Bank, in addition its sole discretion at any such sale, may restrict the prospective bidders or purchasers as to their number, nature of business and investment intentions, and may impose, without limitation, a requirement that the persons making such purchases represent and agree, to the sale ofsatisfaction of the Bank, such Collateral. Each Grantor further agrees that they are purchasing the Collateral for their own account, for investment, and acknowledges that not with a disposition: (i) made in the usual manner on any recognized market, or (ii) a disposition at the price current in any recognized market at the time of disposition, or (iii) a disposition in conformity with reasonable commercial practices among dealers in the type of property subject view to the disposition; shall be deemed commercially reasonable.
(d) Any cash distribution or resale thereof. The proceeds of any disposition by the Administrative Agent collection or of any sale or disposition of the Collateral held pursuant to this Agreement shall be applied by towards the Administrative Agent to payment of expenses Obligations in connection with such order and manner as the CollateralBank determines in its sole discretion, including reasonable attorneys’ fees and legal expensesany statute, and thereafter custom or usage to the payment of any and all of the Liabilities in the order of application set forth in Section 8.03 of the Credit Agreement, and thereafter any surplus will be paid promptly to the Grantor. The Administrative Agent need not apply or pay over for application noncash proceeds of collection and enforcement unless: (i) the failure to do so would be commercially unreasonable and (ii) the affected Grantor has provided the Administrative Agent with a written demand to apply or pay over such noncash proceeds on such basiscontrary notwithstanding.
Appears in 2 contracts
Sources: Pledge Agreement (Graham Corp), Pledge Agreement (Infosonics Corp)
Default. Whenever Time is of the essence with respect to Lessee’s performance of its obligations under this Agreement. Lessor may declare this Lease in default if any one or more of the following occurs: (a) Lessee fails to make any payment required hereunder when due; (b) Lessee fails to maintain in force at all times the required insurance; (c) Lessee fails to properly operate, maintain or repair the Equipment; (d) Lessee fails to observe or perform any other covenant or requirement of this Lease, which failure is not cured to Lessor’s satisfaction within five (5) days after Lessor’s notice to Lessee thereof; (e) Lessee attempts to sell, transfer or encumber the Equipment; (f) a Default voluntary or involuntary proceeding is instituted in any court of competent jurisdiction, seeking a decree or order (i) for relief in respect of Lessee under any applicable bankruptcy, insolvency, reorganization, assignment for the benefit of creditors, or other similar law, or (ii) for the appointment of a receiver, liquidator, assignee, custodian, trustee, sequestrator or similar official of Lessee or its property, or (iii) for the winding up or liquidation of the Lessee’s affairs; (g) Lessee shall generally fail to pay its debts as they come due; and/or (h) Lessee, in Lessor’s opinion, shall become financially insecure. At any time after such declaration, Lessor may enter, with or without legal process, any premises where the Equipment is located and take possession thereof. Lessee shall provide Lessor with unobstructed ingress and egress for such purpose. Furthermore, Lessee shall immediately pay to Lessor all amounts then due hereunder and all costs of removal and repossession of the Equipment. Lessor’s remedies herein shall be existing, the Administrative Agent may exercise from time to time any cumulative and all rights and remedies available to it under applicable law, are in addition to those described all other remedies existing at law or in this section below.
(a) Each Grantor agreesequity, in case of Default, (i) at the Administrative Agent’s request, to assemble, at its expense, all its Inventory and other Goods (other than Fixtures) at a convenient place or places acceptable to the Administrative Agent, and (ii) at the Administrative Agent’s request, to execute all such documents and do all such other things which may be necessary or desirable in order to enable the Administrative Agent or its nominee to be registered as owner of the Intellectual Property with any competent registration authority.
(b) Notice of the intended disposition of the Collateral may be given by first-class mail, hand-delivery (through a delivery service or otherwise), facsimile or E-mail, and shall be deemed to have been “sent” upon deposit in the U.S. Mails with adequate postage properly affixed, upon delivery to an express delivery service or upon the electronic submission through telephonic or Internet services, as applicable. Each Grantor hereby agrees and acknowledges that (i) with respect to collateral that is: (A) perishable or threatens to decline speedily in value, or (B) is of a type customarily sold on a recognized market (including but not limited to, Investment Property)(a) terminate this Agreement and all rights of Lessee hereunder; (b) to declare the entire unpaid rent due (including any rent accruing during any minimum rental term) to be immediately due and payable; (c) to enter the premises where the Equipment is located, no notice take possession of disposition need be givenand remove the Equipment or render the Equipment inoperable, with or without legal process; (d) to demand that Lessee surrender and deliver up possession of the Equipment to Lessor; (e) with or without terminating this Agreement, to re-let the Equipment on such terms and conditions as are then available and otherwise acceptable to Lessor, and apply rent payments received, after deduction of all costs and expenses incurred by Lessor, to amounts due from Lessee under this Agreement; and (iif) with respect within Lessor’s sole discretion, but without any obligation, to Collateral take such action or make any payment to remedy any default, including but not described in clause (i) abovelimited to, notification sent after procuring any required insurance coverage, paying any fine, imposition, penalty, taxes or fees incurred to recover and/or release the occurrence of and during Equipment from any forfeiture, seizure, confiscation or similar proceeding, or from any lien or other encumbrance imposed on the continuance of a Default and ten days before any proposed disposition provides notice within a reasonable time before disposition.
(c) Each Grantor hereby agrees and acknowledges that a commercially reasonable disposition of Inventory, Equipment, Computer Hardware and Software, or Intellectual Property may be by lease or license of, in addition to the sale of, all such Collateral. Each Grantor further agrees and acknowledges that a disposition: (i) made in the usual manner on any recognized market, or (ii) a disposition at the price current in any recognized market at the time payments of disposition, or (iii) a disposition in conformity with reasonable commercial practices among dealers in the type of property subject to the disposition; which shall be deemed commercially reasonable.
(d) Any cash proceeds of any disposition reimbursed by the Administrative Agent of any of the Collateral shall be applied by the Administrative Agent to payment of expenses in connection with the Collateral, including reasonable attorneys’ fees and legal expenses, and thereafter Lessee. In addition to the payment of any amounts due Lessor hereunder, Lessee shall be responsible for and shall reimburse Lessor for all costs and expenses incurred by Lessor in connection with the exercise of any rights and remedies hereunder, including all expenses incurred in the removal and transportation of the Liabilities Equipment to Lessor’s premises, any cleaning, service and/or repair of the Equipment, and in the order of application set forth in Section 8.03 enforcement of the Credit Agreementterms and conditions of this Agreement or damages recoverable hereunder, and thereafter any surplus will be paid promptly to the Grantor. The Administrative Agent need not apply or pay over for application noncash proceeds including costs of collection and enforcement unless: reasonable attorney’s fees (iincluding fees and expenses incurred in any bankruptcy proceeding or on appeal) the failure to do so would be commercially unreasonable and (ii) the affected Grantor has provided the Administrative Agent with a written demand to apply or pay over such noncash proceeds on such basis.
Appears in 2 contracts
Sources: Equipment Lease Bare Rental Agreement, Equipment Lease Bare Rental Agreement
Default. Whenever In addition to the remedies otherwise set forth in the Agreement, upon (a) the failure of Seller to perform any obligation in the Agreement (including any breach of a Default shall be existingwarranty) where Seller fails to either commence correction within two (2) business days after receipt of written notice thereof or complete such correction within the time period directed by ▇▇▇▇▇ or (b) the occurrence of a Bankruptcy Event (defined below), then Buyer, in its sole discretion and without prior notice to Seller, may do any one or more of the Administrative Agent may exercise from time to time following: (i) suspend performance under the Order or any other agreement between Buyer and Seller; and/or (ii) terminate the Order, or any part of it, or any other agreement between Buyer and Seller, whereby any and all rights obligations of Seller including payments or deliveries due, will, at the option of Buyer, become immediately due and remedies available payable or deliverable, as applicable; and/or (iii) take possession, by whatever reasonable means and at whatever location and time, of all materials, tools and equipment used in performance of the Order and (x) in the case of Services, finish the work or (y) in the case of Goods, acquire equivalent goods by whatever method it may deem expedient, and in such cases, Seller will not be entitled to it under applicable lawpayment, if any, until all of the Goods are delivered to Buyer or Services are performed, all in accordance with the Order. The foregoing specific rights, which will specifically include specific performance, will be cumulative and alternative and in addition to those described in this section below.
(a) Each Grantor agrees, in case of Default, (i) at the Administrative Agent’s request, any other rights or remedies to assemble, at its expense, all its Inventory and other Goods (other than Fixtures) at a convenient place or places acceptable to the Administrative Agent, and (ii) at the Administrative Agent’s request, to execute all such documents and do all such other things which Buyer may be necessary entitled at law or desirable in order equity. In addition, ▇▇▇▇▇ will be entitled to enable recover from Seller all court costs, attorneys' fees and expenses incurred by Buyer in connection with Seller’s default. “Bankruptcy Event” means the Administrative Agent or its nominee to be registered as owner occurrence of any of the Intellectual Property with any competent registration authority.
(b) Notice of the intended disposition of the Collateral may be given by first-class mail, hand-delivery (through a delivery service or otherwise), facsimile or E-mail, and shall be deemed to have been “sent” upon deposit in the U.S. Mails with adequate postage properly affixed, upon delivery to an express delivery service or upon the electronic submission through telephonic or Internet services, as applicable. Each Grantor hereby agrees and acknowledges that (i) following events with respect to collateral that isSeller or its affiliates: (A) perishable filing of a petition or threatens to decline speedily otherwise commencing, authorizing or acquiescing in valuethe commencement of a proceeding or cause of action under any bankruptcy, insolvency, reorganization or similar law; (B) making of an assignment or any general arrangement for the benefit of creditors; (C) having a bankruptcy petition filed against it and such petition is of not withdrawn or dismissed within thirty (30) days after such filing; (D) otherwise becoming bankrupt or insolvent (however evidenced); (E) having a type customarily sold on a recognized market (including but not limited toliquidator, Investment Property)administrator, no notice of disposition need be given; and (ii) custodian, receiver, trustee, conservator or similar official appointed with respect to Collateral not described in clause (i) above, notification sent after the occurrence it or any substantial portion of and during the continuance of a Default and ten days before any proposed disposition provides notice within a reasonable time before disposition.
(c) Each Grantor hereby agrees and acknowledges that a commercially reasonable disposition of Inventory, Equipment, Computer Hardware and Software, its property or Intellectual Property may be by lease or license of, in addition to the sale of, such Collateral. Each Grantor further agrees and acknowledges that a disposition: (i) made in the usual manner on any recognized market, assets; or (iiF) a disposition at the price current in any recognized market at the time of disposition, or (iii) a disposition in conformity with reasonable commercial practices among dealers in the type of property subject being generally unable to the disposition; shall be deemed commercially reasonablepay its debts as they fall due.
(d) Any cash proceeds of any disposition by the Administrative Agent of any of the Collateral shall be applied by the Administrative Agent to payment of expenses in connection with the Collateral, including reasonable attorneys’ fees and legal expenses, and thereafter to the payment of any and all of the Liabilities in the order of application set forth in Section 8.03 of the Credit Agreement, and thereafter any surplus will be paid promptly to the Grantor. The Administrative Agent need not apply or pay over for application noncash proceeds of collection and enforcement unless: (i) the failure to do so would be commercially unreasonable and (ii) the affected Grantor has provided the Administrative Agent with a written demand to apply or pay over such noncash proceeds on such basis.
Appears in 2 contracts
Sources: General Terms and Conditions of Purchase, General Terms and Conditions of Purchase
Default. Whenever a Default shall be existingIf Pledgor (a) defaults in the payment of the principal under the Note when it becomes due (whether upon demand, acceleration or otherwise) or any other event of default under the Note or this Agreement occurs (including, without limitation, the Administrative Agent bankruptcy or insolvency of Pledgor) or (b) defaults in the payment of interest or any other amount related to the Note, the Company may (following five (5) days notice to Executive, during which the default is not cured) exercise from time to time any and all the rights, powers and remedies of any owner of the Pledged Interest (including the right to vote the Pledged Interest and receive any distributions with respect to such Pledged Interest) and shall have and may exercise without demand any and all the rights and remedies granted to a secured party upon default under the Uniform Commercial Code of New York or otherwise available to it the Company under applicable law. Without limiting the foregoing, in addition to those described in this section below.
(a) Each Grantor agrees, in case of Default, (i) at the Administrative Agent’s request, to assemble, at its expense, all its Inventory and other Goods (other than Fixtures) at a convenient place or places acceptable to the Administrative Agent, and (ii) at the Administrative Agent’s request, to execute all such documents and do all such other things which may be necessary or desirable in order to enable the Administrative Agent or its nominee to be registered as owner of the Intellectual Property with any competent registration authority.
(b) Notice of the intended disposition of the Collateral may be given by first-class mail, hand-delivery (through a delivery service or otherwise), facsimile or E-mail, and shall be deemed to have been “sent” upon deposit in the U.S. Mails with adequate postage properly affixed, upon delivery to an express delivery service or upon the electronic submission through telephonic or Internet services, as applicable. Each Grantor hereby agrees and acknowledges that (i) with respect to collateral that is: (A) perishable or threatens to decline speedily in value, or (B) is of a type customarily sold on a recognized market (including but not limited to, Investment Property), no notice of disposition need be given; and (ii) with respect to Collateral not described in clause (i) above, notification sent after the occurrence of and during the continuance of a Default default, the Company is authorized to sell, assign and deliver at its discretion, from time to time, all or any part of the Collateral at any private sale or public auction, on not less than ten days before written notice to Pledgor, at such price or prices and upon such terms as the Company may deem advisable. Pledgor shall have no right to redeem the Collateral after any proposed disposition provides notice within a reasonable time before disposition.
(c) Each Grantor hereby agrees such sale or assignment. At any such sale or auction, the Company may bid for, and acknowledges that a commercially reasonable disposition of Inventory, Equipment, Computer Hardware and Software, or Intellectual Property may be by lease or license become the purchaser of, in addition the whole or any part of the Pledged Interest offered for sale. In case of any such sale, after deducting the costs, attorneys' fees and other expenses of sale and delivery, the remaining proceeds of such sale shall be applied to the principal of and accrued interest on the Note and other amounts related thereto (including costs, attorneys' fees associated with enforcement hereof); provided that after payment in full of the indebtedness evidenced by the Note, the balance of the proceeds of sale of, such Collateral. Each Grantor further agrees then remaining shall be paid to Pledgor and acknowledges that a disposition: (i) made in the usual manner on any recognized market, or (ii) a disposition at the price current in any recognized market at the time of disposition, or (iii) a disposition in conformity with reasonable commercial practices among dealers in the type of property subject Pledgor shall be entitled to the disposition; shall be deemed commercially reasonable.
(d) Any cash proceeds of any disposition by the Administrative Agent return of any of the Collateral Pledged Interest remaining in the hands of the Company. Pledgor shall be applied liable for any deficiency (to the extent liable therefor under the Note) if the remaining proceeds are insufficient to pay the indebtedness under the Note in full, including the fees of any attorneys employed by the Administrative Agent Company to payment of expenses in connection with the Collateral, including reasonable attorneys’ fees and legal expenses, and thereafter to the payment of any and all of the Liabilities in the order of application set forth in Section 8.03 of the Credit Agreement, and thereafter any surplus will be paid promptly to the Grantor. The Administrative Agent need not apply or pay over for application noncash proceeds of collection and enforcement unless: (i) the failure to do so would be commercially unreasonable and (ii) the affected Grantor has provided the Administrative Agent with a written demand to apply or pay over collect such noncash proceeds on such basisdeficiency.
Appears in 2 contracts
Sources: Employment Agreement (Maxxim Medical Inc), Employment Agreement (Maxxim Medical Inc)
Default. Whenever a Default shall In the event either party should be existingin default in the ------- performance of any of its material duties or obligations under this Agreement, the Administrative Agent other party may exercise give notice to the defaulting party specifying the term or condition which is alleged as the basis of the default. If the defaulting Party does not proceed with due diligence to cure the default or does not correct or cure the noticed default within twenty (20) days after such notice, then this Agreement may be terminated by the non-defaulting party by giving written notice of termination to the defaulting party; said termination to be without prejudice to any rights or remedies, legal, equitable, or otherwise, available to the terminating party including such rights and remedies as shall from time-to-time be afforded by the Uniform Commercial Code. Any provision of this Agreement to the contrary notwithstanding, if, at any time during the term of this Agreement, Seller or Buyer is adjudicated bankrupt; or a petition for voluntary or involuntary bankruptcy is filed by or against Seller or Buyer; or Seller or Buyer shall petition for relief from its creditors under the Bankruptcy Act, or similar act, as from time to time amended; or Seller or Buyer shall make a general assignment for the benefit of creditors or consent to the appointment of a receiver for a substantial part of its property; or if an order or decree is entered by any court of competent jurisdiction appointing a receiver for Seller or Buyer or for a substantial part of their property either with or without their consent, and all rights such receiver is not removed or discharged within sixty (60) days from the date of said appointment; or if in any judicial proceeding a substantial part of the property of Seller or Buyer shall be attached or seized under [LOGO] any legal process and remedies available shall not be released or discharged therefrom by the furnishing of security or otherwise within sixty (60) days thereafter, then, upon the occurrence of any such events applicable to it under applicable lawBuyer, in addition to those described in this section below.
(a) Each Grantor agrees, in case of Default, (i) at the Administrative Agent’s request, to assembleSeller may, at its expenseoption, all its Inventory and other Goods (other than Fixtures) at a convenient place or places acceptable to the Administrative Agent, and (ii) at the Administrative Agent’s request, to execute all such documents and do all such other things which may be necessary or desirable in order to enable the Administrative Agent or its nominee declare Buyer to be registered as owner in breach hereof, terminate this Agreement, refuse to make any further deliveries hereunder and declare the obligations of the Intellectual Property with any competent registration authority.
(b) Notice of the intended disposition of the Collateral may be given by first-class mail, hand-delivery (through a delivery service or otherwise), facsimile or E-mail, Buyer for all Product theretofore furnished immediately due and shall be deemed to have been “sent” upon deposit in the U.S. Mails with adequate postage properly affixed, upon delivery to an express delivery service or upon the electronic submission through telephonic or Internet services, as applicable. Each Grantor hereby agrees and acknowledges that (i) with respect to collateral that is: (A) perishable or threatens to decline speedily in value, or (B) is of a type customarily sold on a recognized market (including but not limited to, Investment Property), no notice of disposition need be givenpayable; and (ii) with respect to Collateral not described in clause (i) above, notification sent after upon the occurrence of any such events applicable to Seller, Buyer may, at its option, declare Seller to be in breach hereof, terminate this Agreement, refuse to make any further purchases hereunder and during terminate all of Buyer's obligations to Seller. The exercise of the continuance of a Default and ten days before rights provided in this Section 21 shall be without prejudice to any proposed disposition provides notice within a reasonable time before disposition.
(c) Each Grantor hereby agrees and acknowledges that a commercially reasonable disposition of Inventory, Equipment, Computer Hardware and Software, legal rights or Intellectual Property may be by lease or license of, in addition remedies otherwise available to the sale of, such Collateral. Each Grantor further agrees and acknowledges that a disposition: (i) made in the usual manner on any recognized market, or (ii) a disposition at the price current in any recognized market at the time of disposition, or (iii) a disposition in conformity with reasonable commercial practices among dealers in the type of property subject to the disposition; shall be deemed commercially reasonableterminating party.
(d) Any cash proceeds of any disposition by the Administrative Agent of any of the Collateral shall be applied by the Administrative Agent to payment of expenses in connection with the Collateral, including reasonable attorneys’ fees and legal expenses, and thereafter to the payment of any and all of the Liabilities in the order of application set forth in Section 8.03 of the Credit Agreement, and thereafter any surplus will be paid promptly to the Grantor. The Administrative Agent need not apply or pay over for application noncash proceeds of collection and enforcement unless: (i) the failure to do so would be commercially unreasonable and (ii) the affected Grantor has provided the Administrative Agent with a written demand to apply or pay over such noncash proceeds on such basis.
Appears in 2 contracts
Sources: Basestock Supply Agreement (Appleton Papers Inc/Wi), Basestock Supply Agreement (Paperweight Development Corp)
Default. Whenever a Default shall be existing, If any of the Administrative Agent may exercise from time to time any following events occurs and all rights and remedies available to it under applicable law, in addition to those described in this section below.is continuing:
(a) Each Grantor agrees, failure by the Borrower to pay in case full when due any amount of Default, (i) at principal or interest on the Administrative Agent’s request, to assemble, at its expense, all its Inventory and other Goods (other than Fixtures) at a convenient place or places acceptable to the Administrative Agent, and (ii) at the Administrative Agent’s request, to execute all such documents and do all such other things which may be necessary or desirable in order to enable the Administrative Agent or its nominee to be registered as owner of the Intellectual Property with any competent registration authority.Note; or
(b) Notice failure by the Borrower to perform or observe any of the intended disposition of the Collateral may be given by first-class mail, hand-delivery (through a delivery service or otherwise), facsimile or E-mail, and shall be deemed to have been “sent” upon deposit provisions contained in the U.S. Mails with adequate postage properly affixed, upon delivery to an express delivery service or upon the electronic submission through telephonic or Internet services, as applicable. Each Grantor hereby agrees and acknowledges that (i) with respect to collateral that is: (A) perishable or threatens to decline speedily in value, or (B) is of a type customarily sold on a recognized market (including but not limited to, Investment Property), no notice of disposition need be givenSection 6; and (ii) with respect to Collateral not described in clause (i) above, notification sent after the occurrence of and during the continuance of a Default and ten days before any proposed disposition provides notice within a reasonable time before disposition.or
(c) Each Grantor hereby agrees and acknowledges that a commercially reasonable disposition failure by the Borrower to perform or observe any of Inventory, Equipment, Computer Hardware and Software, or Intellectual Property may be by lease or license of, in addition to the sale of, such Collateral. Each Grantor further agrees and acknowledges that a disposition: (i) made in the usual manner on any recognized market, or (ii) a disposition at the price current provisions contained in any recognized market at other subsection hereof if such failure is not cured within thirty (30) days of the time Borrower's knowledge of disposition, or (iii) a disposition in conformity with reasonable commercial practices among dealers in the type of property subject to the dispositionfailure; shall be deemed commercially reasonable.or
(d) Any cash proceeds failure of any disposition by Security Document, for any reason, to be in full force and effect or any party thereto shall default in the Administrative Agent observance or performance of any of the Collateral covenants or agreements contained therein or a default or an event of default shall occur under any Security Document; or
(e) any representation or warranty made by the Borrower herein shall be applied false or misleading in any material respect; or
(f) the Borrower shall default in the payment when due (subject to any applicable grace period), whether by acceleration or otherwise, of any other Indebtedness for borrowed money of, or guaranteed by, the Borrower (including, without limitation, any Indebtedness under the CoBank Loan Documentation), or the Borrower shall be in default (after giving effect to any applicable grace period), or an event of default has occurred, under the terms and conditions of the CoBank Loan Documentation or any other agreement or evidence of other Indebtedness of the Borrower; or
(g) any admission by the Administrative Agent Borrower of its inability to payment pay its debts as they mature, the commencement of expenses in connection any bankruptcy, insolvency, arrangement, reorganization or other debt-relief proceedings by, or the dissolution, termination of existence or insolvency (however evidenced) of, the Borrower or any action authorized, taken or suffered by the Borrower with a view toward any of the Collateralsame; or
(h) failure by the Borrower within sixty (60) days after the institution of any proceedings against the Borrower under any law relating to bankruptcy, including reasonable attorneys’ fees insolvency, arrangement, reorganization or relief of debtors or similar law to have such proceeding dismissed; then the Lender may, at its election and legal expenseswithout demand or notice of any kind, which are hereby expressly waived, refuse to make further advances of the Loan hereunder, declare the unpaid balance of any outstanding Note and accrued interest thereon immediately due and payable, proceed to collect same, and thereafter to the payment of exercise any and all of the Liabilities in the order of application set forth in Section 8.03 of the Credit other rights, powers and remedies given it by this Loan Agreement, and thereafter any surplus will be paid promptly to the Grantor. The Administrative Agent need not apply Note, the Security Documents or pay over for application noncash proceeds of collection and enforcement unless: (i) the failure to do so would be commercially unreasonable and (ii) the affected Grantor has provided the Administrative Agent with a written demand to apply by law or pay over such noncash proceeds on such basisin equity.
Appears in 2 contracts
Sources: Loan Agreement (Alliance Farms Cooperative Association), Loan Agreement (Alliance Farms Cooperative Association)
Default. Whenever a (a) In the event that the Pledgor fails to pay to the Pledgee any Obligation when due or there shall otherwise occur an Event of Default shall be existing(as defined in the Note) ("Default"), the Administrative Agent Pledgee shall have all of the rights and remedies afforded to secured parties with respect to the Collateral as set forth in the Code as well as all other rights and remedies granted in the Note and this Agreement. Without limiting the generality of the foregoing, the Pledgee, without demand of performance or other demand, presentment, protest, advertisement or notice of any kind (except any notice required by law referred to below) to or upon the Pledgor (all and each of which demands, defenses, advertisements and notices are hereby waived), may exercise in such circumstances forthwith collect, receive, appropriate and realize upon the Collateral, or any part thereof, and/or may forthwith sell, assign, give an option or options to purchase or otherwise dispose of and deliver the Collateral or any part thereof (or contract to do any of the foregoing), in one or more parcels at public or private sale or sales, upon such terms and conditions and at such prices as it may deem advisable, for cash or on credit or for future delivery without assumption of any credit risk. The Pledgee shall have the right upon any such public sale or sales, and, to the extent permitted by law, upon any such private sale or sales, to purchase the whole or any part of the Collateral so sold. The Pledgee shall apply any proceeds from time to time held by it and the net proceeds of any such sale or other disposition, after deducting all reasonable costs and expenses of every kind incurred in respect thereof or incidental to the care or safekeeping of any of the Collateral or in any way relating to the Collateral or the rights of the Pledgee hereunder, including, without limitation, reasonable attorneys' fees and disbursements of counsel to the Pledgee, to the satisfaction in whole or in part of the Obligations, in such order as the Pledgee may elect and only after such application and after the payment by the Pledgee of any other amount required by any provision of law, including, without limitation, Section 9-504 (1)(c) of the Code, need the Pledgee account for the surplus, if any, to the Pledgor. To the extent permitted by applicable law, the Pledgor waives all claims, damages and demands he may acquire against the Pledgee arising out of the lawful exercise by it of any rights hereunder. Neither the Pledgee nor any of its respective directors, officers, employees or agents shall be liable for failure to sell or otherwise dispose of the Collateral or for any delay in doing so. If any notice of a proposed sale or other disposition of the Collateral shall be required by law, such notice shall be deemed reasonable and proper if given at least ten (10) days before such sale or other disposition. In any event, notice of a proposed sale or other disposition shall be given at least ten (10) days before such sale or other disposition to the Pledgor and ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇. The Pledgor shall remain liable for any deficiency if the proceeds of any sale or other disposition of the Collateral are insufficient to pay all of the Obligations and any and all rights costs and remedies available expenses of every kind incurred by the Pledgee with respect to it under the collection of such deficiency, including, without limitation, all reasonable fees and disbursements of any attorneys employed by the Pledgee. The Pledgor recognizes that the Pledgee may be unable to effect a public sale of any or all the Collateral by reason of certain restrictions contained in the Securities Act of 1933, as amended, and applicable lawstate securities laws or otherwise, in addition and may be compelled to those described in this section below.
(a) Each Grantor agreesresort to one or more private sales thereof to a restricted group of purchasers which will be obliged to agree, in case of Default, (i) at the Administrative Agent’s requestamong other things, to assemble, at its expense, all its Inventory acquire such securities for their own account for investment and not with a view to the distribution or resale thereof. The Pledgor acknowledges and agrees that any such private sale may result in prices and other Goods (terms less favorable than if such sale were a public sale and agrees that any such private sale under such circumstances shall not be evidence that it has been made in other than Fixtures) at a convenient place commercially reasonable manner. The Pledgor agrees to use his best efforts to do or places acceptable cause to the Administrative Agent, and (ii) at the Administrative Agent’s request, to execute all such documents and do be done all such other things which acts as may be necessary to make such sale or desirable in order to enable the Administrative Agent sales of all or its nominee to be registered as owner any portion of the Intellectual Property Collateral pursuant to this section valid and binding and in compliance with any competent registration authorityand all other applicable requirements of law.
(b) Notice The rights of the intended disposition Pledgee hereunder shall not be conditioned or contingent upon the pursuit by the Pledgee of any right or remedy against the Pledgor, any other person which may be or become liable in respect of all or any part of the Obligations or against any collateral security therefor, guarantee therefor or right of offset with respect thereto. Neither the Pledgee nor any of its affiliates or representatives shall be liable for any failure to demand, collect or realize upon all or any part of the Collateral may or for any delay in doing so, nor shall the Pledgee be given by first-class mail, hand-delivery (through a delivery service under any obligation to sell or otherwise), facsimile or E-mail, and shall be deemed to have been “sent” upon deposit in the U.S. Mails with adequate postage properly affixed, upon delivery to an express delivery service or otherwise dispose of any Collateral upon the electronic submission through telephonic request of the Pledgor or Internet services, as applicable. Each Grantor hereby agrees and acknowledges that (i) any other person or to take any other action whatsoever with respect to collateral that is: (A) perishable or threatens to decline speedily in value, or (B) is of a type customarily sold on a recognized market (including but not limited to, Investment Property), no notice of disposition need be given; and (ii) with respect to Collateral not described in clause (i) above, notification sent after the occurrence of and during the continuance of a Default and ten days before any proposed disposition provides notice within a reasonable time before disposition.
(c) Each Grantor hereby agrees and acknowledges that a commercially reasonable disposition of Inventory, Equipment, Computer Hardware and Software, or Intellectual Property may be by lease or license of, in addition regard to the sale of, such Collateral. Each Grantor further agrees and acknowledges that a disposition: (i) made in the usual manner on Collateral or any recognized market, or (ii) a disposition at the price current in any recognized market at the time of disposition, or (iii) a disposition in conformity with reasonable commercial practices among dealers in the type of property subject to the disposition; shall be deemed commercially reasonablepart thereof.
(d) Any cash proceeds of any disposition by the Administrative Agent of any of the Collateral shall be applied by the Administrative Agent to payment of expenses in connection with the Collateral, including reasonable attorneys’ fees and legal expenses, and thereafter to the payment of any and all of the Liabilities in the order of application set forth in Section 8.03 of the Credit Agreement, and thereafter any surplus will be paid promptly to the Grantor. The Administrative Agent need not apply or pay over for application noncash proceeds of collection and enforcement unless: (i) the failure to do so would be commercially unreasonable and (ii) the affected Grantor has provided the Administrative Agent with a written demand to apply or pay over such noncash proceeds on such basis.
Appears in 2 contracts
Sources: Pledge Agreement (Extech Corp), Pledge Agreement (Dcap Group Inc)
Default. Whenever The occurrence of one or more of the following events shall constitute a Default shall be existing, the Administrative Agent may exercise from time to time any and all rights and remedies available to it under applicable law, in addition to those described in this section below.default by Dealers (a “Default”):
(a) Each Grantor agrees, in case of Default, a Dealer shall fail (i) at the Administrative Agent’s request, to assemble, at its expense, all its Inventory and other Goods (other than Fixtures) at a convenient place or places acceptable to the Administrative Agent, and (ii) at the Administrative Agent’s request, to execute all such documents and do all such other things which may be necessary or desirable in order to enable the Administrative Agent or its nominee to be registered as owner of the Intellectual Property with any competent registration authority.
(b) Notice of the intended disposition of the Collateral may be given by first-class mail, hand-delivery (through a delivery service or otherwise), facsimile or E-mail, and shall be deemed to have been “sent” upon deposit in the U.S. Mails with adequate postage properly affixed, upon delivery to an express delivery service or upon the electronic submission through telephonic or Internet services, as applicable. Each Grantor hereby agrees and acknowledges that (i) with respect to collateral that is: pay (A) perishable or threatens to decline speedily in valueany Obligations representing principal when due, or (B) is any Obligations representing interest or other Charges within one (1) Business Day of a type customarily sold on a recognized market (including but not limited to, Investment Property), no notice of disposition need be given; and (ii) with respect to Collateral not described in clause (i) above, notification sent after the occurrence of and during the continuance of a Default and ten days before any proposed disposition provides notice within a reasonable time before disposition.
(c) Each Grantor hereby agrees and acknowledges that a commercially reasonable disposition of Inventory, Equipment, Computer Hardware and Software, or Intellectual Property may be by lease or license of, in addition to the sale of, such Collateral. Each Grantor further agrees and acknowledges that a disposition: (i) made in the usual manner on any recognized marketapplicable due date therefor, or (ii) any remittance for any Obligations is dishonored when first presented for payment;
(b) any representation made to Agent or any Lender by a disposition at the price current Dealer or by any guarantor, surety, issuer of a letter of credit or any person other than a Dealer primarily or secondarily liable with respect to any Obligations (a “Guarantor”) shall not be true in any recognized market material respect, or, in the case of any such representation or warranty already qualified by materiality, such representation or warranty shall prove to have been incorrect in any respect, when made or if a Dealer or any Guarantor shall breach any covenant, warranty or agreement in this Agreement to or with Agent and/or any Lender;
(c) a Dealer (including, if a Dealer is a partnership or limited liability company, any partner or member of a Dealer) or any Guarantor shall die, become insolvent or generally fail to pay its debts as they become due or, if a business, shall cease to do business as a going concern;
(d) any letter of credit or other form of collateral provided by a Dealer or a Guarantor to Agent with respect to any Obligations or Collateral shall terminate or not be renewed at least thirty (30) days prior to its stated expiration or maturity;
(e) a Dealer abandons any Collateral except for obsolete or worn out property or other property not necessary for the operations of such Dealer in the ordinary course of business and not constituting inventory at the time of dispositionsuch abandonment;
(f) any Guarantor shall revoke, terminate or limit, or take any action purporting to revoke, terminate or limit, any guaranty or other assurance of payment relating to any Obligations;
(g) a Dealer or any Guarantor shall make an assignment for the benefit of creditors, or commence a proceeding with respect to itself under any bankruptcy, reorganization, arrangement, insolvency, receivership, dissolution or liquidation statute or similar law of any jurisdiction, or any such proceeding shall be commenced against it or any of its property (an “Automatic Default”);
(h) an attachment, sale or seizure shall be issued or shall be executed against any assets of a Dealer or of any Guarantor;
(i) a Dealer shall lose, or shall be in default of, any franchise, license or right to deal in any Collateral which a Lender finances;
(j) a Dealer, Guarantor or any third party shall file any correction or termination statement with respect to any Uniform Commercial Code (the “UCC”) filing made by Agent in connection herewith;
(k) a material adverse change shall occur in the business, operations or condition (financial or otherwise) of a Dealer (including, if a Dealer is a partnership or limited liability company, any partner or member of a Dealer) or any Guarantor or with respect to the Collateral;
(l) a Dealer or any Guarantor fails (i) to pay when due any debt (other than a Deferred TRA Obligation) in a principal amount in excess of $1,000,000, or (iiiii) to perform any other obligation owed to any third party, which involves an amount in excess of $1,000,000;
(m) a disposition in conformity Dealer or any Guarantor defaults under the terms of any other agreement with reasonable commercial practices among dealers in Agent, any Lender or Lender Affiliate, which default is not cured or waived within the type of property subject to the disposition; shall be deemed commercially reasonable.applicable grace period, if any;
(dn) Any cash proceeds a Change in Control shall occur;
(o) a Dealer defaults under the terms of any disposition by Program Terms Letter;
(p) a Dealer or Guarantor defaults under the Administrative terms of the Credit Facility Agreement or a default or event of default (or similar event) shall occur under the Credit Facility Agreement;
(q) a Dealer or Guarantor or Credit Facility Agent defaults under the Intercreditor Agreement or any material provision thereof terminates or ceases to be effective;
(r) any ERISA Event occurs with respect to a pension plan or multi-employer plan which has resulted or could reasonably be expected to result in liability of any Dealer under Title IV of ERISA or other applicable law to any pension plan, employee benefit plan or multi-employer plan, the Collateral shall Pension Benefit Guaranty Corporation or any other Person in an aggregate amount equal to or in excess of $5,000,000 in any calendar year, or any Dealer or any ERISA Affiliate fails to pay when due, after the expiration of any applicable grace period, any installment payment with respect to its withdrawal liability under Section 4201 of ERISA or other applicable law under a multi-employer plan in an aggregate amount equal to or in excess of $5,000,000;
(s) any material provision of any Loan Document, at any time after its execution and delivery, for any reason other than as expressly permitted hereunder or thereunder, ceases to be applied by in full force and effect; or any party hereto or any Guarantor contests in any manner the Administrative Agent to payment validity or enforceability of expenses in connection with the Collateral, including reasonable attorneys’ fees and legal expenses, and thereafter to any provision of any Loan Document; or
(t) any final judgment is entered against any of Dealers for the payment of any and all $1,000,000 or more in excess of the Liabilities in the order of application set forth in Section 8.03 of the Credit Agreementinsurance, and thereafter any surplus will be paid promptly to the Grantor. The Administrative Agent need not apply such judgment shall remain unstayed or pay over unpaid for application noncash proceeds of collection and enforcement unless: more than sixty (i60) the failure to do so would be commercially unreasonable and (ii) the affected Grantor has provided the Administrative Agent with a written demand to apply or pay over such noncash proceeds on such basisdays.
Appears in 2 contracts
Sources: Inventory Financing Agreement (OneWater Marine Inc.), Inventory Financing Agreement (OneWater Marine Inc.)
Default. Whenever a Default A. Each of the following shall be existing, the Administrative Agent may exercise from time to time any and all rights and remedies available to it under applicable law, in addition to those described in this section below.
(a) Each Grantor agrees, in case constitute an "Event of Default, (i) at the Administrative Agent’s request, to assemble, at its expense, all its Inventory and other Goods (other than Fixtures) at a convenient place or places acceptable to the Administrative Agent, and (ii) at the Administrative Agent’s request, to execute all such documents and do all such other things which may be necessary or desirable in order to enable the Administrative Agent or its nominee to be registered as owner of the Intellectual Property with any competent registration authority.
(b) Notice of the intended disposition of the Collateral may be given by first-class mail, hand-delivery (through a delivery service or otherwise), facsimile or E-mail, and shall be deemed to have been “sent” upon deposit in the U.S. Mails with adequate postage properly affixed, upon delivery to an express delivery service or upon the electronic submission through telephonic or Internet services, as applicable. Each Grantor hereby agrees and acknowledges that (i) with respect to collateral that is: (A) perishable or threatens to decline speedily in value, or (B) is of a type customarily sold on a recognized market (including but not limited to, Investment Property), no notice of disposition need be given; and (ii) with respect to Collateral not described in clause (i) above, notification sent after the occurrence of and during the continuance of a Default and ten days before any proposed disposition provides notice within a reasonable time before disposition.
(c) Each Grantor hereby agrees and acknowledges that a commercially reasonable disposition of Inventory, Equipment, Computer Hardware and Software, or Intellectual Property may be by lease or license of, in addition to the sale of, such Collateral. Each Grantor further agrees and acknowledges that a disposition: (i) made in the usual manner on any recognized market, or (ii) a disposition at the price current in any recognized market at the time of disposition, or (iii) a disposition in conformity with reasonable commercial practices among dealers in the type of property subject to the disposition; shall be deemed commercially reasonable.
(d) Any cash proceeds of any disposition by the Administrative Agent of any of the Collateral shall be applied by the Administrative Agent to payment of expenses in connection with the Collateral, including reasonable attorneys’ fees and legal expenses, and thereafter to the payment of any and all of the Liabilities in the order of application set forth in Section 8.03 of the Credit Agreement, and thereafter any surplus will be paid promptly to the Grantor. The Administrative Agent need not apply or pay over for application noncash proceeds of collection and enforcement unless" hereunder: (i) the failure to do so would be commercially unreasonable and occurrence of an Event of Default under the Loan Agreement; (ii) failure by the affected Grantor Debtor to perform any material obligations under this Agreement or under any other agreement between the Debtor and the Secured Party or by the Debtor in favor of the Secured Party, time being of the essence (subject, however, to any applicable notice and cure periods); (iii) material falsity in any certificate, statement, representation, warranty or audit at any time furnished by or on behalf of the Debtor or any endorser or guarantor or any other party liable for payment of all or part of the Indebtedness, pursuant to or in connection with this Agreement or otherwise to the Secured Party, including warranties in this Agreement and including any omission to disclose any substantial contingent or liquidated liabilities required to be disclosed) or any material adverse change in facts disclosed by any certificate, statement, representation, warranty or audit furnished to the Secured Party; or (iv) any attachment or levy against the Collateral or any other occurrence which inhibits the Secured Party's free access to the Collateral (including, without limitation, the Secured Party's receipt of any notice from a lessor of real property where collateral is located indicating that the lease will be terminated prior to its scheduled termination date) (except, however, that the relocation of the Debtor's principal offices to Jacksonville, Florida shall not be deemed an Event of Default hereunder or under any other Loan Document).
B. Upon the occurrence of an Event of Default, the Secured Party may exercise such remedies and rights as are available hereunder, under the Loan Agreement or otherwise (including without limitation, acceleration of the Indebtedness or any part thereof).
C. Upon the occurrence of any Event of Default, the Secured Party's rights with respect to the Collateral shall be those of a secured party under the Uniform Commercial Code and any other applicable law in effect from time to time. The Secured Party shall also have any additional rights granted herein and in any other agreement now or hereafter in effect between the Debtor and the Secured Party. If requested by the Secured Party, the Debtor will assemble the Collateral and make it available to the Secured Party at a place to be designated by the Secured Party.
D. The Debtor agrees that any notice by the Secured Party of the sale or disposition of the Collateral or any other intended action hereunder, whether required by the Uniform Commercial Code or otherwise, shall constitute reasonable notice to the Debtor if the notice is mailed by regular or certified mail, postage prepaid, at least five days before the action to the Debtor's address as specified in this Agreement or to any other address which the Debtor has provided specified in writing to the Administrative Agent Secured Party as the address to which notices shall be given to the Debtor.
E. The Debtor shall pay all costs and expenses incurred by the Secured Party in enforcing this Agreement, realizing upon any Collateral and collecting any Indebtedness (including a reasonable attorney's fee) whether suit is brought or not and whether incurred in connection with collection, trial, appeal or otherwise and, to the extent of the Debtor's liability for repayment of any of the Indebtedness, shall be liable for any deficiencies in the event the proceeds of disposition of the Collateral do not satisfy the Indebtedness in full. Nothing contained herein shall be deemed to require the Secured Party to proceed against the Collateral or any part thereof before or as a written demand condition to apply or pay over such noncash proceeds on such basisthe pursuit of any of its other rights and remedies in respect of the Indebtedness.
Appears in 2 contracts
Sources: Security Agreement (Armor Holdings Inc), Security Agreement (Armor Holdings Inc)
Default. Whenever a Default This Deed of Trust shall be existing, in default upon the Administrative Agent may exercise from time to time happening of any of the following "events of default":
A. Any Secured Obligation is not paid or performed as and all rights and remedies available to it under applicable law, when due or is otherwise in addition to those described in this section belowdefault.
(a) Each B. Grantor agreesfails to keep, in case perform or observe any covenant, agreement, term or condition that Grantor is required to keep, perform, or observe under this Deed of DefaultTrust, or Grantor fails to perform any of Grantor's obligations or duties under the terms of this Deed of Trust.
C. An event or condition occurs that would allow Beneficiary to accelerate any Secured Obligation or would constitute a default or an event of default under the terms of (i) at the Administrative Agent’s requestany Secured Obligation, to assemble, at its expense, all its Inventory and other Goods (other than Fixtures) at a convenient place or places acceptable to the Administrative Agent, and (ii) at the Administrative Agent’s requestany loan agreement, to execute all such documents and do all such other things which may be necessary or desirable in order to enable the Administrative Agent or its nominee to be registered as owner of the Intellectual Property with any competent registration authority.
(b) Notice of the intended disposition of the Collateral may be given by first-class mail, hand-delivery (through a delivery service or otherwise), facsimile or E-mail, and shall be deemed to have been “sent” upon deposit in the U.S. Mails with adequate postage properly affixed, upon delivery to an express delivery service or upon the electronic submission through telephonic or Internet services, as applicable. Each Grantor hereby agrees and acknowledges that (i) with respect to collateral that is: (A) perishable or threatens to decline speedily in valuesecurity instrument, or (B) is of a type customarily sold on a recognized market (including but not limited toother document evidencing, Investment Property), no notice of disposition need be given; and (ii) with respect to Collateral not described in clause (i) above, notification sent after the occurrence of and during the continuance of a Default and ten days before guaranteeing or securing any proposed disposition provides notice within a reasonable time before disposition.
(c) Each Grantor hereby agrees and acknowledges that a commercially reasonable disposition of Inventory, Equipment, Computer Hardware and Software, or Intellectual Property may be by lease or license of, in addition to the sale of, such Collateral. Each Grantor further agrees and acknowledges that a disposition: (i) made in the usual manner on any recognized market, or (ii) a disposition at the price current in any recognized market at the time of dispositionSecured Obligation, or (iii) a disposition in conformity with reasonable commercial practices among dealers in any prior or subordinate deed of trust affecting the type of property subject to the disposition; shall be deemed commercially reasonablepremises.
(d) Any cash proceeds D. Unless known and approved by Beneficiary at the time this Deed of Trust is recorded, the existence of any disposition by lien, charge or encumbrance that impairs the Administrative Agent validity of this Deed of Trust or has priority over the lien of this Deed of Trust.
E. Any proceeding is instituted to enforce any lien, charge or encumbrance against any of the Collateral premises, whether such lien has priority over or is subordinate to the lien of this Deed of Trust.
F. Any civil or criminal forfeiture action or proceeding is begun that, in Beneficiary's good faith judgment, could result in forfeiture of the premises or any part thereof or otherwise materially impair the lien or the priority of the lien of this Deed of Trust.
G. Grantor abandons the premises, is declared bankrupt or insolvent, or dissolves, liquidates or ceases to exist as a legal entity.
I. A change in the ownership of the borrower whether such change is attributable to death, insolvency, lawsuit, judgment, bankruptcy or otherwise. Except as provided below, if an event of default is curable and no notice has been previously given by Beneficiary of the same or any other event of default within the preceding 12 months, Grantor shall have 30 days following Beneficiary’s giving of written notice of default within which to cure the default. If the default is curable but cannot reasonably be cured within the 30-day cure period, and if Grantor commences to cure the default during the 30-day cure period and diligently proceeds thereafter to cure such default, then the cure period shall be applied by extended for a reasonable time not to exceed an additional 30 days (for a total of 60 days) in order to provide Grantor the Administrative Agent opportunity to payment cure the default. However, Grantor shall not be entitled to notice of expenses in connection with default or the Collateral, including reasonable attorneys’ fees and legal expenses, and thereafter opportunity to cure a default if Beneficiary has previously given notice of a default within the payment preceding 12 months or if the default occurs because of any and all of the Liabilities in the order of application set forth in Section 8.03 of the Credit Agreement, and thereafter any surplus will be paid promptly to the Grantor. The Administrative Agent need not apply or pay over for application noncash proceeds of collection and enforcement unless: (i) the failure to do so would be commercially unreasonable pay or perform any Secured Obligation as and when due, (ii) failure to keep any insurance on the affected premises required by this Deed of Trust continuously in full force and effect, or (iii) the occurrence of any waste, damage or injury to the premises that substantially reduces the value of the premises, or the immediate threat of any such waste, damage or injury. If Grantor has provided is not entitled to notice of default and the Administrative Agent with a written demand opportunity to apply cure, or pay over such noncash proceeds on such basisif the default is not cured during any applicable cure period following the giving of any required notice of default, Beneficiary may invoke the remedies permitted by this Deed of Trust (including foreclosure) without further notice or demand.
Appears in 2 contracts
Sources: Deed of Trust, Deed of Trust
Default. Whenever a Default shall be existing, the Administrative Agent may exercise from time to time any and all rights and remedies available to it under applicable law, in addition to those described in this section below.
(a) Each Grantor agrees, in case The occurrence of Default, (i) at the Administrative Agent’s request, to assemble, at its expense, all its Inventory and other Goods (other than Fixtures) at a convenient place one or places acceptable to the Administrative Agent, and (ii) at the Administrative Agent’s request, to execute all such documents and do all such other things which may be necessary or desirable in order to enable the Administrative Agent or its nominee to be registered as owner more of the Intellectual Property with any competent registration authority.following in clauses (a)-(e) below will constitute an Event of Default under this Lease:
(b) Notice Customer fails to pay when due any rental payment or any other payment due under this Lease or fails to perform its obligations under Section 9 of the intended disposition this Lease:
(c) Customer fails to perform or observe any other term or condition under this Lease and such failure remains unremedied for more than ten (10) days after such failure to perform or observe;
(d) Customer or any person or entity which controls more than fifty percent (50%) of the Collateral may be given by first-class mail, hand-delivery Customer’s equity (through a delivery service “Control Person”) or otherwise), facsimile or E-mail, and shall be deemed to have been “sent” upon deposit in the U.S. Mails with adequate postage properly affixed, upon delivery to an express delivery service or upon the electronic submission through telephonic or Internet services, as applicable. Each Grantor hereby agrees and acknowledges that any guarantor of any of Customer’s obligations hereunder (a”Guarantor”) (i) with respect becomes insolvent, (ii) becomes subject to collateral that is: any voluntary or involuntary bankruptcy or reorganization proceedings, (Aiii) perishable commits an act or threatens bankruptcy, (iv) admits in writing its inability to decline speedily in value, pay its debts as they become due or (Bvii) enters into any type of voluntary or involuntary liquidation or dissolution;
(e) Customer, any Control Person or any Guarantor defaults under any other agreement with DSMBI or any affiliate of DSMBI; and
(f) Any letter of credit, guaranty or other security given to secure the performance of Customer’s obligations under this Lease expires, terminates or in the reasonable opinion of DSMBI becomes worthless. Upon the occurrence of an Event of Default, DSMBI will have the option to declare the entire balance of rent for the remainder of the stated lease term immediately due and payable and to accelerate and make immediately due and payable any other amounts owing under this Lease. DSMBI will also have the option to retake and retain any or all of the Equipment free of all rights of Customer without any further liability or obligation to redeliver any of the Equipment to Customer, and Customer hereby grants DSMBI the right to enter upon any premises where all or any of the Equipment is located in order to take possession of a type customarily sold and remove such Equipment. (Notwithstanding the foregoing, if an Event of Default occurs under clause (c) above, such accelerations will occur automatically without the need for declaration.) Customer will pay to DSMBI’s on a recognized market (demand all fees; costs and expenses incurred by DSMBI in enforcing its all other remedies provided in the Lease or exist in at law or in equity. No action taken by DSMBI pursuant to this Section 11 or Section 13 will release Customer from Customer’s covenants, obligations and indemnities provided under this Lease, including but not limited to, Investment Property), no notice to Customer’s obligation for the payment of disposition need be given; and (ii) with respect to Collateral not described in clause (i) above, notification sent after the occurrence of and during the continuance of a Default and ten days before any proposed disposition provides notice within a reasonable time before disposition.
(c) Each Grantor hereby agrees and acknowledges that a commercially reasonable disposition of Inventory, Equipment, Computer Hardware and Software, or Intellectual Property may be by lease or license of, in addition to the sale of, such Collateral. Each Grantor further agrees and acknowledges that a disposition: (i) made rentals provided in the usual manner on Lease. If DSMBI retakes possession of the Equipment or any recognized market, or (ii) a disposition at part of the price current in any recognized market Equipment and there is at the time of dispositionsuch retaking, in upon or (iii) a disposition in conformity with reasonable commercial practices among dealers attached to such repossessed Equipment, any other property, goods or things of value owned by Customer or in the type custody or control of property subject Customer, DSMBI is authorized to take possession of such other property, goods or things and hold the disposition; shall be deemed commercially reasonablesame for Customer, at Customer’s sole cost, either in DSMBI’s possession or in public storage, at DSMBI’s sole discretion.
(d) Any cash proceeds of any disposition by the Administrative Agent of any of the Collateral shall be applied by the Administrative Agent to payment of expenses in connection with the Collateral, including reasonable attorneys’ fees and legal expenses, and thereafter to the payment of any and all of the Liabilities in the order of application set forth in Section 8.03 of the Credit Agreement, and thereafter any surplus will be paid promptly to the Grantor. The Administrative Agent need not apply or pay over for application noncash proceeds of collection and enforcement unless: (i) the failure to do so would be commercially unreasonable and (ii) the affected Grantor has provided the Administrative Agent with a written demand to apply or pay over such noncash proceeds on such basis.
Appears in 2 contracts
Sources: Lease Agreement, Lease Agreement
Default. Whenever a Default shall be existing, the Administrative Agent may exercise from time to time any and all rights and remedies available to it under applicable law, in addition to those described in this section below.
(a) Each Grantor agrees, in case Any of the following shall constitute an event of default ("Event of Default, "): (i) at non-payment when due whether by acceleration or otherwise of the Administrative Agent’s requestprincipal of or interest on any Indebtedness, time being of the essence, or failure by the Debtor to assemble, at its expense, all its Inventory perform any obligations under this Agreement or under any other agreement between the Debtor and other Goods (other than Fixtures) at a convenient place or places acceptable to the Administrative Agent, and Secured Party; (ii) at the Administrative Agent’s request, to execute all such documents and do all such other things which may be necessary death or desirable in order to enable the Administrative Agent or its nominee to be registered as owner incompetency of the Intellectual Property Debtor; (iii) filing by or against the Debtor of a petition in bankruptcy or for reorganization under any bankruptcy, reorganization, compromise, arrangement, insolvency, readjustment of debt, dissolution, liquidation or similar law of any jurisdiction; (iv) making a general assignment by the Debtor for the benefit of creditors; the appointment of or taking possession by a receiver, trustee, custodian or similar official for the Debtor or for any of the Debtor's assets; or the institution by or against the Debtor of any kind of insolvency proceedings or any proceeding for the dissolution or liquidation of the Debtor; (v) the occurrence of any event described in paragraph 4(a)(ii), (iii) or (iv) hereof with respect to any competent registration authorityindorser or guarantor or any party liable for payment of any Indebtedness; or (vi) material falsity in any certificate, statement, representation, warranty or audit at any time furnished to the Secured Party by or on behalf of the Debtor or any indorser or guarantor or any other party liable for payment of any Indebtedness, pursuant to or in connection with the Security Agreement or otherwise (including warranties in this Agreement) and including any omission to disclose any substantial contingent or liquidated liabilities or any material adverse change in facts disclosed by any certificate, statement, representation, warranty or audit furnished to the Secured Party; or (vii) any attachment or levy against the Collateral or any other occurrence which inhibits the Secured Party's free access to the Collateral.
(b) Notice The Secured Party may declare all or part of the intended disposition Indebtedness to be immediately due without notice upon the happening of any Event of Default or if the Secured Party in good faith believes that the prospect of payment of all or any part of the Collateral may be given by first-class mail, hand-delivery (through a delivery service Indebtedness or otherwise), facsimile the performance of the Debtor's obligations under this Agreement or E-mail, any other agreement now or hereafter in effect between the Debtor and shall be deemed the Secured Party is impaired. This paragraph is not intended to have been “sent” upon deposit in affect any rights of the U.S. Mails with adequate postage properly affixed, upon delivery to an express delivery service or upon the electronic submission through telephonic or Internet services, as applicable. Each Grantor hereby agrees and acknowledges that (i) Secured Party with respect to collateral that is: (A) perishable any Indebtedness which may now or threatens to decline speedily in value, or (B) is of a type customarily sold hereafter be payable on a recognized market (including but not limited to, Investment Property), no notice of disposition need be given; and (ii) with respect to Collateral not described in clause (i) above, notification sent after the occurrence of and during the continuance of a Default and ten days before any proposed disposition provides notice within a reasonable time before dispositiondemand.
(c) Each Grantor hereby agrees and acknowledges that a commercially reasonable disposition Upon the happening of Inventory, Equipment, Computer Hardware and Software, or Intellectual Property may be by lease or license of, in addition any Event of Default the Secured Party's rights with respect to the sale of, such CollateralCollateral shall be those of a secured party under the Uniform Commercial Code and any other applicable law from time to time in effect. Each Grantor further agrees The Secured Party shall also have any additional rights granted herein and acknowledges that a disposition: (i) made in the usual manner on any recognized market, or (ii) a disposition at the price current in any recognized market at other agreement now or hereafter in effect between the time of dispositionDebtor and the Secured Party. If requested by the Secured Party, or (iii) a disposition in conformity with reasonable commercial practices among dealers in the type of property subject Debtor will assemble the Collateral and make it available to the disposition; shall Secured Party at a place to be deemed commercially reasonabledesignated by the Secured Party.
(d) Any cash proceeds of The Debtor agrees that any disposition notice by the Administrative Agent Secured Party of any the sale or disposition of the Collateral or any other intended action hereunder, whether required by the Uniform Commercial Code or otherwise, shall constitute reasonable notice to the Debtor if the notice is mailed by regular or certified mail, postage prepaid, at least five days before the action to the Debtor's address as specified in this Agreement or to any other address which the Debtor has specified in writing to the Secured Party as the address to which notices shall be applied given to the Debtor.
(e) The Debtor shall pay all costs and expenses incurred by the Administrative Agent to payment of expenses Secured Party in enforcing this Security Agreement, realizing upon any Collateral and collecting any Indebtedness (including reasonable attorney's fees) whether suit is brought or not and whether incurred in connection with the Collateralcollection, including reasonable attorneys’ fees and legal expensestrial, appeal or otherwise, and thereafter to shall be liable for any deficiencies in the payment event the proceeds of any and all disposition of the Liabilities Collateral does not satisfy the Indebtedness in the order of application set forth in Section 8.03 of the Credit Agreement, and thereafter any surplus will be paid promptly to the Grantor. The Administrative Agent need not apply or pay over for application noncash proceeds of collection and enforcement unless: (i) the failure to do so would be commercially unreasonable and (ii) the affected Grantor has provided the Administrative Agent with a written demand to apply or pay over such noncash proceeds on such basisfull.
Appears in 2 contracts
Sources: Security Agreement (Megamedia Networks Inc), Security Agreement (Megamedia Networks Inc)
Default. Whenever a Default If any of the following events ("Events of Default") shall occur:
A. The Borrower fails to pay (1) any principal to Bank when due and payable or (2) any interest, fee or other sum to Bank within 3 Business Days when due and payable; or
B. The representation or warranty made by the Borrower to Bank in any documents or agreements relating to this facility proves to be existingin any material sense false or misleading; or
C. The Borrower fails to comply with any other condition, covenant or obligation contained herein or in any agreements or instruments related hereto; or
D. Any default occurs under any agreement involving the extension of credit to which the Borrower may be obligated as borrower or guarantor (if such default gives the holder of the obligation the right to accelerate the indebtedness); or
E. Neither General Electric Company nor NBC Inc. owns either directly or indirectly at least 12% of the Borrower; or
F. Any guaranty or other agreement or instrument required hereunder is terminated, breached or ceases to be effective; or
G. Any bankruptcy, reorganization, arrangement, insolvency, dissolution or similar proceeding is instituted by or against the Borrower under the laws of any jurisdiction; THEN, the Administrative Agent Bank may exercise from time to time any and all rights and remedies available to it under applicable law, in addition to those described in this section below.
(a) Each Grantor agrees, in case of Default, (i) at declare any Commitment by the Administrative Agent’s requestBank to extend additional credit hereunder to be terminated, to assemblewhereupon any such Commitment shall be terminated, at its expense, all its Inventory and other Goods (other than Fixtures) at a convenient place or places acceptable to the Administrative Agent, and (ii) at declare all sums outstanding hereunder or under any instrument executed in connection herewith to be immediately due and payable together with all interest thereon, and/or (iii) require the Administrative Agent’s requestBorrower to deposit with the Bank as cash collateral for application against drawings under outstanding SBLCs, an amount equal to execute the face amount of all such documents undrawn SBLCs (and do all the Borrower hereby grants a security interest to the Bank in any such other things which may be necessary or desirable in order account(s) established by the Bank for such purpose to enable the Administrative Agent or its nominee to be registered as owner of the Intellectual Property with any competent registration authority.
(b) Notice of the intended disposition of the Collateral may be given by first-class mail, hand-delivery (through a delivery service or otherwisesecure reimbursement obligations hereunder), facsimile all without notice of default, presentment or E-maildemand for payment, and shall be deemed to have been “sent” upon deposit in the U.S. Mails with adequate postage properly affixed, upon delivery to an express delivery service protest or upon the electronic submission through telephonic notice of nonpayment or Internet services, as applicable. Each Grantor hereby agrees and acknowledges that (i) with respect to collateral that is: (A) perishable or threatens to decline speedily in valuedishonor, or (B) is other notices or demands of a type customarily sold on a recognized market (including but not limited toany kind or character, Investment Property)all of which are hereby expressly waived; PROVIDED, no notice of disposition need be given; and (ii) with respect to Collateral not described in clause (i) aboveHOWEVER, notification sent after that upon the occurrence of any event specified in paragraph G above, any Commitment by the Bank to extend additional credit hereunder shall automatically terminate, all sums outstanding hereunder or under any instrument executed in connection herewith shall become immediately due and during payable together with all interest thereon, and the continuance Borrower shall be obligated to deposit with the Bank as cash collateral for application against drawings under outstanding SBLCs, an amount equal to the face amount of a Default and ten days before any proposed disposition provides all such undrawn SBLCs, all without notice within a reasonable time before disposition.
(c) Each Grantor hereby agrees and acknowledges that a commercially reasonable disposition of Inventorydefault, Equipmentpresentment or demand for payment, Computer Hardware and Softwareprotest or notice of nonpayment or dishonor, or Intellectual Property may be by lease other notices or license of, in addition to the sale of, such Collateral. Each Grantor further agrees and acknowledges that a disposition: (i) made in the usual manner on any recognized market, or (ii) a disposition at the price current in any recognized market at the time of disposition, or (iii) a disposition in conformity with reasonable commercial practices among dealers in the type of property subject to the disposition; shall be deemed commercially reasonable.
(d) Any cash proceeds demands of any disposition by the Administrative Agent of any of the Collateral shall be applied by the Administrative Agent to payment of expenses in connection with the Collateralkind or character, including reasonable attorneys’ fees and legal expenses, and thereafter to the payment of any and all of the Liabilities in the order of application set forth in Section 8.03 of the Credit Agreement, and thereafter any surplus will be paid promptly to the Grantor. The Administrative Agent need not apply or pay over for application noncash proceeds of collection and enforcement unless: (i) the failure to do so would be commercially unreasonable and (ii) the affected Grantor has provided the Administrative Agent with a written demand to apply or pay over such noncash proceeds on such basiswhich are hereby expressly waived.
Appears in 2 contracts
Sources: Letter Agreement (NBC Internet Inc), Letter Agreement (NBC Internet Inc)
Default. Whenever a Default Borrower shall be existing, the Administrative Agent may exercise from time to time any in default under this Agreement and all rights and remedies available to it under applicable law, in addition to those described in this section below.
(a) Each Grantor agrees, in case of Default, (i) at the Administrative Agent’s request, to assemble, at its expense, all its Inventory and other Goods (other than Fixtures) at a convenient place or places acceptable to the Administrative Agent, and (ii) at the Administrative Agent’s request, to execute all such documents and do all such other things which may be necessary or desirable in order to enable the Administrative Agent or its nominee to be registered as owner each of the Intellectual Property with any competent registration authority.
(b) Notice of the intended disposition of the Collateral may be given by first-class mail, hand-delivery (through a delivery service or otherwise), facsimile or E-mail, and other Loan Documents if Borrower shall be deemed to have been “sent” upon deposit default in the U.S. Mails with adequate postage properly affixed, upon delivery to an express delivery service or upon the electronic submission through telephonic or Internet services, as applicable. Each Grantor hereby agrees and acknowledges that (i) with respect to collateral that is: (A) perishable or threatens to decline speedily in value, or (B) is of a type customarily sold on a recognized market (including but not limited to, Investment Property), no notice of disposition need be given; and (ii) with respect to Collateral not described in clause (i) above, notification sent after the occurrence of and during the continuance of a Default and ten days before any proposed disposition provides notice within a reasonable time before disposition.
(c) Each Grantor hereby agrees and acknowledges that a commercially reasonable disposition of Inventory, Equipment, Computer Hardware and Software, or Intellectual Property may be by lease or license of, in addition to the sale of, such Collateral. Each Grantor further agrees and acknowledges that a disposition: (i) made in the usual manner on any recognized market, or (ii) a disposition at the price current in any recognized market at the time of disposition, or (iii) a disposition in conformity with reasonable commercial practices among dealers in the type of property subject to the disposition; shall be deemed commercially reasonable.
(d) Any cash proceeds payment of any disposition by amounts due and owing under the Administrative Agent Loan or should Borrower, either Guarantor, any Letter of Credit Sponsor, and/or any pledgor of any of the Collateral shall be applied by the Administrative Agent fail(s) to payment timely and properly observe, keep or perform any term, covenant, agreement or condition in any Loan Document or in any other loan agreement, promissory note, security agreement, deed of expenses in connection with the Collateraltrust, including reasonable attorneys’ fees and legal expensesdeed to secure debt, and thereafter to the mortgage, assignment or other contract securing or evidencing payment of any indebtedness of Borrower to Lender or any affiliate or subsidiary of Bank of America Corporation, if any such failure is not cured within any applicable cure period. In addition, an event of default under the Senior Loan Agreement shall constitute a default under this Agreement. By their respective joinders herein, the Guarantor, each Letter of Credit Sponsor and all of the Liabilities in the order of application set forth in Section 8.03 of the Credit Agreement, Magellan each acknowledges and thereafter any surplus will be paid promptly to the Grantor. The Administrative Agent need not apply or pay over for application noncash proceeds of collection and enforcement unless: agrees as follows:
(i) they consent to the failure to do so would be commercially unreasonable and terms of the Loan Documents, including this Agreement; (ii) in the affected Grantor has provided event the Administrative Agent with a written demand Guarantor, any Letter of Credit Sponsor, and/or Magellan fail to apply make its pro-rata portion of the first payment due under the Note into the Aggregation Account at least five (5) days prior to the date the payment is due from Borrower to Lender (and/or fail to make the balloon payment of principal and interest as and when due, or pay over otherwise instruct Lender to liquidate their respective Collateral to be applied to the payments due under the Note in lieu of an actual payment being made), then such noncash proceeds failure shall constitute an event of default by the Guarantor, each Letter of Credit Sponsor and Magellan under the Collateral and Lender may, without further notice, proceed immediately to pursue all remedies thereunder notwithstanding whether any default by the Borrower then exists under the Loan Documents; (iii) the Lender may pursue all rights and remedies against the Collateral notwithstanding any terminology in the Loan Documents which may provide that the payments due from the Borrower to the Lender are: (x) subordinated to BlueCrest; and/or (y) “suspended” or other similar terminology; (iv) Guarantor, each Letter of Credit Sponsor and Magellan are ultimately responsible to make payments to the Aggregation Account and/or to the Lender directly and/or to instruct Lender to liquidate their respective Collateral to cause the payments to be timely made under the Note notwithstanding the “Borrower Payment Suspension” (as defined in the Note) or any other failure and/or restriction on such basisthe Borrower’s payment under the Note, regardless of any lack of payment by the Borrower to the Lender directly; and (v) all obligations of the Guarantor to Magellan, each Letter of Credit Sponsor and/or the Borrower and all obligations of Magellan to Guarantor , each Letter of Credit Sponsor and/or the Borrower are subordinated in terms of payment and priority to the interests of Lender until the Indebtedness is paid in full.
Appears in 2 contracts
Sources: Loan Agreement (Bioheart, Inc.), Loan Agreement (Bioheart, Inc.)
Default. Whenever a Default The occurrence of any one or more of the following events shall be existingdeemed to be an “event of default” of this Subcontract/Purchase Order Agreement: a) Refusal, failure or neglect of the Subcontractor/Material Supplier to supply a sufficient number of properly skilled workmen of a sufficient quantity or quality of materials; b) Dissolution, termination of existence, insolvency (however evidenced), general failure to pay debts as they mature, business failure, appointment of a receiver of any part of the property of, assignment for the benefit of creditors by, commission of any act or bankruptcy by, or the service or filing of any warrant, attachment or levy or of any tax lien or assessment or similar process against the Subcontractor/Material Supplier; c) Failure of the Subcontractor/Material Supplier to make prompt payment to its materialmen, suppliers, subcontractor or workmen, or to insure prompt payment by any of them to any party to whom they may be obligated by reason of the work; d) Failure of the Subcontractor/Material Supplier in any respect to prosecute the work in a proper and prompt manner; or e) Failure of the Subcontractor/Material Supplier to perform fully any and all of the obligations of the Subcontractor/Material Supplier to be performed pursuant to this Subcontract/Purchase Order Agreement. Upon the happening of any “event of default”, and at any time thereafter, the Administrative Agent Contractor may, at its option, after giving forty-eight (48) hours written notice to the Subcontractor/Material Supplier, provide any such labor and materials and/or do all things as may exercise be necessary or convenient to complete the work and deduct the cost thereof from time any monies due, or thereafter to time become due, under the Subcontract/Purchase Order Agreement. Alternatively, or in addition, upon the occurrence of any one or more events of default, the Contractor may, at its option, terminate the Subcontract/Purchase Order. In that event, the Contractor shall have the right to enter upon the premises of the Subcontractor’s/Material Supplier’s facilities at the Project, and take possession, for the purpose of completing the work, of all materials, tools and appliances therein, and may employ any other person or persons to finish the work and provide the materials therefor. In case of such discontinuance of the Subcontractor’s/Material Supplier’s right to proceed with the work, the Subcontractor/Material Supplier shall not be entitled to receive any further monies under this Subcontract/Purchase Order Agreement until the work undertaken by the Contractor is completely finished and payment therefor has actually been received by the Contractor from the Owner (such payment by the Owner being a condition precedent to any obligation for payment by the Contractor to the Subcontractor/Material Supplier.) At that time, if the unpaid balance of the amount to be paid under this Subcontract/Purchase Order Agreement exceeds the costs (including, but not limited to, any incidental or consequential damages and reasonable attorney fees and litigation expenses (meaning, without limitation, paralegal fees, filing fees, deposition expenses and other out-of-pocket litigation expenses) incurred by the Contractor by reason of the Subcontractor's/Material Supplier's default and/or in any and all types of litigation arising from such, shall be chargeable to, and paid by, the Subcontractor/Material Supplier. If the aforementioned costs exceed the unpaid balance due the Subcontractor/Material Supplier, then the Subcontractor/Material Supplier shall promptly pay the Contractor the amount by which such costs exceed such unpaid balance. The costs incurred by the Contractor as herein provided, either for furnishing materials or for finishing the work, and any damages, including incidental and consequential damages incurred by the Contractor by reasons of the Subcontractor’s/Material Supplier’s default, shall be chargeable to, and paid by the Subcontractor/Material Supplier. Any and all rights and remedies available to it under applicable law, in addition to those described in this section below.
(a) Each Grantor agrees, in case of Default, (i) at the Administrative Agent’s request, to assemble, at its expense, all its Inventory and other Goods (other than Fixtures) at a convenient place or places acceptable to the Administrative Agent, and (ii) at the Administrative Agent’s request, to execute all such documents and do all such other things which may be necessary or desirable in order to enable the Administrative Agent or its nominee to be registered as owner of the Intellectual Property with any competent registration authority.
(b) Notice Contractor under this Subcontract/Purchase Order Agreement shall be cumulative. The enumeration of specific rights and remedies of the intended disposition Contractor shall not affect or impair any of the Collateral may be given by first-class mailContractor’s right or remedies at law or in equity, hand-delivery (through a delivery service or otherwise), facsimile under the Prime Contract. In the event any acts or E-mail, and shall be deemed to have been “sent” upon deposit omissions of the Subcontractor/Material Supplier delay the Contractor in the U.S. Mails with adequate postage properly affixedperformance of the Prime Contract and result in the Contractor’s being subjected to any damages (including, upon delivery to an express delivery service or upon the electronic submission through telephonic or Internet services, as applicable. Each Grantor hereby agrees and acknowledges that (i) with respect to collateral that is: (A) perishable or threatens to decline speedily in value, or (B) is of a type customarily sold on a recognized market (including but not limited toto acceleration, Investment Propertydelay or recovery costs), no notice of disposition need be given; and (ii) with respect to Collateral not described in clause (i) aboveclaims, notification sent after the occurrence of and during the continuance of a Default and ten days before any proposed disposition provides notice within a reasonable time before disposition.
(c) Each Grantor hereby agrees and acknowledges that a commercially reasonable disposition of Inventorypenalties, Equipment, Computer Hardware and Softwareliabilities, or Intellectual Property may be by lease or license ofliquidated damages thereunder, in addition the Subcontractor/Material Supplier shall, upon demand of the Contractor, promptly pay to and reimburse the sale of, such Collateral. Each Grantor further agrees and acknowledges that a disposition: (i) made in Contractor for the usual manner on any recognized market, or (ii) a disposition at the price current in any recognized market at the time of disposition, or (iii) a disposition in conformity with reasonable commercial practices among dealers in the type of property subject to the disposition; shall be deemed commercially reasonable.
(d) Any cash proceeds full amount of any disposition by the Administrative Agent of any of the Collateral shall be applied by the Administrative Agent to payment of expenses in connection with the Collateralpenalties, liabilities or liquidated damages, including reasonable attorneys’ costs and attorney’s fees and legal expenses, and thereafter incurred by Contractor in responding to the payment of any and all of the Liabilities in the order of application set forth in Section 8.03 of the Credit Agreement, and thereafter any surplus will be paid promptly to the Grantor. The Administrative Agent need not apply or pay over for application noncash proceeds of collection and enforcement unless: (i) the failure to do so would be commercially unreasonable and (ii) the affected Grantor has provided the Administrative Agent with a written demand to apply or pay over such noncash proceeds on such basisdelay.
Appears in 2 contracts
Sources: Subcontract Agreement, Subcontract Agreement
Default. Whenever An event of default (“Event of Default”) occurs when: (1) any debt or obligation of Applicant to Supplier is not paid when due; (2) any covenant or agreement of Applicant with Supplier is not fully and timely performed or an occurrence of default occurs thereunder; (3) any statement, representation, or warranty by Applicant to Supplier is false, misleading, incomplete, or erroneous in any respect; (4) Applicant does not pay Applicant’s debts as such debts become due; (5) Applicant or Guarantor commences any case, proceeding, or other action seeking the organization, rearrangement, adjustment, liquidation, or dissolution under any debtor relief laws or bankruptcy laws or an involuntary case or proceeding is commenced against the Applicant under any debtor relief laws or bankruptcy laws; (6) a Default shall be existing, final judgment is entered against Applicant or Guarantor or any process is levied or directed against Applicant’s or Guarantor’s property; (7) Supplier receives any checks from Applicant which are returned uncollected or insufficient; or (8) the Administrative Agent may exercise from time to time any and all rights and remedies available to it under applicable lawfinancial status of the Applicant or Guarantor, in addition to those described the sole opinion of Supplier, becomes impaired in this section below.
(a) Each Grantor agrees, in case any way. Upon occurrence of an Event of Default, Supplier may (i1) terminate all credit terms, agreements, accommodations, and conditions hereunder; (2) demand immediate payment; (3) require sales by prompt payment terms, cash, COD, cashier’s check, or other terms determined at the Administrative Agent’s request, to assemble, at its expense, all its Inventory and other Goods (other than Fixtures) at a convenient place or places acceptable to the Administrative Agent, and (ii) at the Administrative Agent’s request, to execute all such documents and do all such other things which may be necessary or desirable in order to enable the Administrative Agent or its nominee to be registered as owner discretion of the Intellectual Property with Supplier; (4) discontinue shipment of product; and/or (5) discontinue Applicant’s eligibility for discounts. In the event that any competent registration authority.
(b) Notice check, EFT draft, or pre-authorized payment is returned to Supplier uncollected or insufficient, the gross amount of the intended disposition of invoice or invoices covered by the Collateral may be given by first-class mail, hand-delivery (through a delivery service or otherwise), facsimile or E-mail, and returned item shall be deemed immediately due and payable and such purchase shall be ineligible for cash discount unless the return is due to have been “sent” upon deposit in the U.S. Mails with adequate postage properly affixederror by Supplier. Supplier may charge up to $35 for processing any check, upon delivery to an express delivery service or upon the electronic submission through telephonic or Internet services, as applicable. Each Grantor hereby agrees and acknowledges that (i) with respect to collateral that is: (A) perishable or threatens to decline speedily in valueEFT draft, or (B) is of a type customarily sold on a recognized market (including but not limited to, Investment Property), no notice of disposition need be given; and (ii) with respect to Collateral not described in clause (i) above, notification sent after the occurrence of and during the continuance of a Default and ten days before pre- authorized payment returned uncollected by Applicant’s bank for any proposed disposition provides notice within a reasonable time before dispositionreason.
(c) Each Grantor hereby agrees and acknowledges that a commercially reasonable disposition of Inventory, Equipment, Computer Hardware and Software, or Intellectual Property may be by lease or license of, in addition to the sale of, such Collateral. Each Grantor further agrees and acknowledges that a disposition: (i) made in the usual manner on any recognized market, or (ii) a disposition at the price current in any recognized market at the time of disposition, or (iii) a disposition in conformity with reasonable commercial practices among dealers in the type of property subject to the disposition; shall be deemed commercially reasonable.
(d) Any cash proceeds of any disposition by the Administrative Agent of any of the Collateral shall be applied by the Administrative Agent to payment of expenses in connection with the Collateral, including reasonable attorneys’ fees and legal expenses, and thereafter to the payment of any and all of the Liabilities in the order of application set forth in Section 8.03 of the Credit Agreement, and thereafter any surplus will be paid promptly to the Grantor. The Administrative Agent need not apply or pay over for application noncash proceeds of collection and enforcement unless: (i) the failure to do so would be commercially unreasonable and (ii) the affected Grantor has provided the Administrative Agent with a written demand to apply or pay over such noncash proceeds on such basis.
Appears in 2 contracts
Sources: Credit Application and Agreement, Credit Application and Agreement
Default. Whenever a Default If any of the following events shall be existing, the Administrative Agent may exercise from time occur (each such event being referred to time any and all rights and remedies available to it under applicable law, in addition to those described in this section below.
herein as an “Event of Default”): (a) Each Grantor agreesthe non-payment of any principal or interest on this Note or any other Obligation on the date when due; (b) the death, dissolution, liquidation or insolvency of any Obligor; (c) the filing by or against any Obligor of a proceeding under the U.S. Bankruptcy Code; (d) the application for appointment of a receiver for, the making of a general assignment for the benefit of creditors of, or the filing of any proceeding seeking any other relief afforded debtors or affecting rights of creditors generally under the laws of any jurisdiction by or against any Obligor; (e) the default by any Obligor in case the payment or performance of Default, (i) at the Administrative Agent’s requestany obligation under this Note or under any deed of trust, to assemblemortgage, at its expense, all its Inventory and security agreement or any other Goods (other than Fixtures) at a convenient place or places acceptable to the Administrative Agent, and (ii) at the Administrative Agent’s request, to execute all such documents and do all such other things which may be necessary or desirable in order to enable the Administrative Agent or its nominee to be registered as owner document securing payment of the Intellectual Property with any competent registration authority.
(b) Notice of the intended disposition of the Collateral may be given by first-class mail, hand-delivery (through a delivery service or otherwise), facsimile or E-mail, and shall be deemed to have been “sent” upon deposit in the U.S. Mails with adequate postage properly affixed, upon delivery to an express delivery service or upon the electronic submission through telephonic or Internet services, as applicable. Each Grantor hereby agrees and acknowledges that (i) with respect to collateral that is: (A) perishable or threatens to decline speedily in value, or (B) is of a type customarily sold on a recognized market (including but not limited to, Investment Property), no notice of disposition need be given; and (ii) with respect to Collateral not described in clause (i) above, notification sent after the occurrence of and during the continuance of a Default and ten days before any proposed disposition provides notice within a reasonable time before disposition.
(c) Each Grantor hereby agrees and acknowledges that a commercially reasonable disposition of Inventory, Equipment, Computer Hardware and Software, or Intellectual Property may be by lease or license of, in addition to the sale of, such Collateral. Each Grantor further agrees and acknowledges that a disposition: (i) made in the usual manner on any recognized marketthis Note, or (ii) a disposition any obligation under any other note or under any other agreement of any Obligor with or in favor of Bank; (f) any judgment, garnishment, seizure, tax lien or levy against any assets of any Obligor; (g) any material adverse change in the financial condition of any Obligor, or any material discrepancy between the financial statements submitted by any Obligor and the actual financial condition of any Obligor; (h) any statement, warranty, or representation made by any Obligor to Bank proves to be untrue in any material respect; (i) any default by any Obligor in the payment or performance of any material liabilities, indebtedness or obligations to any other creditor; (j) any merger, consolidation or change in any Obligor’s type or form of organizational structure without the prior written consent of Bank; or (k) any discontinuance or termination of any guaranty of all or any portion of this Note by any Obligor or any attempt by any Obligor to do so; then, at the price current in option of Bank, the full amount of this Note and all other obligations and liabilities, direct or contingent, of any recognized market Obligor to Bank shall be immediately due and payable without notice or demand. Initial /s/ CH 2 REMEDIES: Bank shall have the remedies of a secured party under the Louisiana Uniform Commercial Code. In addition to any and all other remedies which may be available to it, all of which shall be cumulative and may be pursued singly, successively or together against any Obligor and/or any security given at any time to secure the payment hereof, all at the time sole discretion of dispositionBank. Failure on the part of Bank to exercise any right described herein or in such other documents shall not constitute a waiver of such right or preclude Bank’s subsequent exercise thereof. If any notice of sale or other intended disposition of the collateral is required by law to be given, Borrower hereby agrees that a notice sent in compliance with applicable law or if applicable law does not define the required notice period then at least ten (iii10) a disposition in conformity with days prior to such action shall constitute reasonable commercial practices among dealers in notice to Borrower. If the type of property subject to the disposition; shall be deemed commercially reasonable.
(d) Any cash proceeds of any disposition collateral securing this Note disposed of by Bank are insufficient to pay this Note in full, Obligor shall remain fully obligated for any deficiency. For purposes of executory process, Obligor hereby acknowledges the debt created by this Note, confesses judgment in favor of Bank for the full amount of the debt evidenced by this Note, and consents to enforcement by executory process. To the extent permitted by law, Obligor hereby expressly waives (a) the benefit of appraisement provided for in Art. 2723 of the Louisiana Code of Civil Procedure and (b) all other rights to notices, demands, appraisements and delays provided by the Administrative Agent Louisiana Code of Civil Procedure or any of the Collateral shall be applied by the Administrative Agent to payment of expenses in connection with the Collateral, including reasonable attorneys’ fees and legal expenses, and thereafter to the payment of any and all of the Liabilities in the order of application set forth in Section 8.03 of the Credit Agreement, and thereafter any surplus will be paid promptly to the Grantor. The Administrative Agent need not apply or pay over for application noncash proceeds of collection and enforcement unless: (i) the failure to do so would be commercially unreasonable and (ii) the affected Grantor has provided the Administrative Agent with a written demand to apply or pay over such noncash proceeds on such basisother applicable laws.
Appears in 2 contracts
Sources: Commercial Note (Viemed Healthcare, Inc.), Commercial Note (Viemed Healthcare, Inc.)
Default. Whenever a If an Event of Default shall occur, at the election of the Lender, all Obligations shall become immediately due and payable without notice or demand, except with respect to Obligations payable on DEMAND, which shall be existingdue and payable on DEMAND, whether or not an Event of Default has occurred. The Lender is hereby authorized, at its election, after an Event of Default or after Demand, without any further demand or notice except to such extent as notice may be required by applicable law, to take possession and/or sell or otherwise dispose of all or any of the Administrative Agent Collateral at public or private sale; and the Lender may also exercise from time to time any and all other rights and remedies available of a secured party under the Code or which are otherwise accorded to it under by applicable law, in addition to those described in this section below.
(a) Each Grantor agreesall as the Lender may determine. If notice of a sale or other action by the Lender is required by applicable law, in case of Default, (i) at the Administrative Agent’s request, to assemble, at its expense, all its Inventory and other Goods (other than Fixtures) at a convenient place or places acceptable to the Administrative Agent, and (ii) at the Administrative Agent’s request, to execute all such documents and do all such other things which may be necessary or desirable in order to enable the Administrative Agent or its nominee to be registered as owner of the Intellectual Property with any competent registration authority.
(b) Notice of the intended disposition of unless the Collateral may be given by first-class mail, hand-delivery (through a delivery service or otherwise), facsimile or E-mail, and shall be deemed to have been “sent” upon deposit in the U.S. Mails with adequate postage properly affixed, upon delivery to an express delivery service or upon the electronic submission through telephonic or Internet services, as applicable. Each Grantor hereby agrees and acknowledges that (i) with respect to collateral that is: (A) is perishable or threatens to decline speedily in valuevalue or is of a type customarily sold on a recognized market, each Borrower agrees that five (5) days' written notice to such Borrower, or (B) the shortest period of written notice permitted by such law, whichever is larger, shall be sufficient notice; and that to the extent permitted by law, the Lender, its officers, attorneys and agents may bid and become purchasers at any such sale, if public, and may purchase at any private sale any of the Collateral that is of a type customarily sold on a recognized market or which is the subject of widely distributed standard price quotations. Any sale (including but not limited topublic or private) shall be free from any right of redemption, Investment Property), no notice which each Borrower hereby waives and releases. No purchaser at any sale (public or private) shall be responsible for the application of disposition need the purchase money. Any balance of the net proceeds of sale remaining after paying all Obligations of the Borrowers to the Lender shall be givenreturned to the Borrowers or to such other party as may be legally entitled thereto; and (ii) if there is a deficiency, the Borrowers shall be responsible for the same, with interest. Upon demand by the Lender, each Borrower shall assemble the Collateral and make it available to the Lender at a place designated by the Lender which is reasonably convenient to the Lender and such Borrower. Each Borrower hereby acknowledges that the Lender has extended credit and other financial accommodations to such Borrower upon reliance of such Borrower's granting the Lender the rights and remedies contained in this Agreement including without limitation the right to take immediate possession of the Collateral upon the occurrence of an Event of Default or after DEMAND with respect to Collateral not described in clause (i) above, notification sent after the occurrence of Obligations payable on DEMAND and during the continuance of a Default and ten days before any proposed disposition provides notice within a reasonable time before disposition.
(c) Each Grantor each Borrower hereby agrees and acknowledges that a commercially reasonable disposition the Lender is entitled to equitable and injunctive relief to enforce any of Inventory, Equipment, Computer Hardware its rights and Software, remedies hereunder or Intellectual Property may be by lease under the Code and each Borrower hereby waives any defense to such equitable or license of, in addition injunctive relief based upon any allegation of the absence of irreparable harm to the sale of, such Collateral. Each Grantor further agrees and acknowledges that a disposition: (i) made in the usual manner on any recognized market, or (ii) a disposition at the price current in any recognized market at the time of disposition, or (iii) a disposition in conformity with reasonable commercial practices among dealers in the type of property subject to the disposition; shall be deemed commercially reasonableLender.
(d) Any cash proceeds of any disposition by the Administrative Agent of any of the Collateral shall be applied by the Administrative Agent to payment of expenses in connection with the Collateral, including reasonable attorneys’ fees and legal expenses, and thereafter to the payment of any and all of the Liabilities in the order of application set forth in Section 8.03 of the Credit Agreement, and thereafter any surplus will be paid promptly to the Grantor. The Administrative Agent need not apply or pay over for application noncash proceeds of collection and enforcement unless: (i) the failure to do so would be commercially unreasonable and (ii) the affected Grantor has provided the Administrative Agent with a written demand to apply or pay over such noncash proceeds on such basis.
Appears in 2 contracts
Sources: Loan and Security Agreement (Fix Corp International Inc), Loan and Security Agreement (Fix Corp International Inc)
Default. Whenever In the event (each a Default "Default") of: (i) failure by Customer to perform any obligation (a) under this Agreement, including, without limitation, the failure to maintain Adequate Margin in the Special Custody Account as herein required, or (b) under the Margin Agreement, including, without limitation, the failure to return to Broker, in a timely manner (as specified in the Margin Agreement and/or the Margin Rules) identical securities to the ones previously borrowed from or through Broker by Customer to conduct a Short Sale (whether or not Customer has received notice of such recall, provided that the Broker has complied with the terms of the Margin Agreement and the Margin Rules); (ii) material breach by Customer of any of its representations, warranties or covenants contained in Section 8 hereof; or (iii) Customer's Insolvency, then, upon any such Default, Broker shall have the right to:
(1) Effect a Closing Transaction for or a buy-in of any Securities.
(2) Remove any Collateral or other assets from the Special Custody Account and register such Collateral or other assets in Broker's name or in the name of Broker's Financial Intermediary, Securities Intermediary, agent or nominee (not including Custodian) or any of their nominees;
(3) Remove any Collateral or other assets from the Special Custody Account in order to exercise any voting, conversion, registration, purchase or other Rights of a holder of any Collateral or other assets in the Special Custody Account, and any reasonable expense of such exercise shall be existingdeemed to be an expense of preserving the value of such Collateral and shall constitute a Secured Obligation hereunder;
(4) Remove any Collateral or other assets from the Special Custody Account in order to collect, including by legal action, any notes, checks or other instruments for the Administrative Agent may payment of money included in the Collateral or other assets in the Special Custody Account and compromise or settle with any obligor of such instruments; and
(5) Remove any Collateral or other assets from the Special Custody Account in order to exercise from time to time any and all rights and remedies provided under the Margin Agreement, Revised Article 8 and Revised Article 9 (or any other applicable Articles of the NYUCC) or otherwise available to it the Broker under applicable law, . Broker shall not sell any Collateral or other assets held in addition to those described in this section below.
(a) Each Grantor agrees, in case of the Special Custody Account until and unless there has been a Default, as defined above. Moreover, Broker shall not be entitled to exercise any right in (i2) at the Administrative Agent’s request, to assemble, at its expense, all its Inventory and other Goods through (other than Fixtures) at a convenient place or places acceptable to the Administrative Agent, and (ii) at the Administrative Agent’s request, to execute all such documents and do all such other things which may be necessary or desirable in order to enable the Administrative Agent or its nominee to be registered as owner of the Intellectual Property with any competent registration authority.
(b) Notice of the intended disposition of the Collateral may be given by first-class mail, hand-delivery (through a delivery service or otherwise), facsimile or E-mail, and shall be deemed to have been “sent” upon deposit in the U.S. Mails with adequate postage properly affixed, upon delivery to an express delivery service or upon the electronic submission through telephonic or Internet services, as applicable. Each Grantor hereby agrees and acknowledges that (i) with respect to collateral that is: (A) perishable or threatens to decline speedily in value, or (B) is of a type customarily sold on a recognized market (including but not limited to, Investment Property), no notice of disposition need be given; and (ii) with respect to Collateral not described in clause (i5) above, notification sent after and Broker shall not be entitled to instruct Custodian to transfer any Collateral or other assets in the occurrence Special Custody Account to Broker or any entity claiming through Broker, except upon providing Custodian an Advice from Broker, stating that the conditions precedent to Broker's right to receive Collateral (including without limitation all proceeds thereof) and all other assets in the Special Custody Account free of payment have occurred. Upon receiving such an Advice from Broker, Custodian shall promptly deliver such Collateral and during other assets free of payment to Broker. Custodian shall also provide prompt telephone notice to Customer of any receipt by Custodian of such an Advice from Broker (Custodian's failure to contact Customer, however, shall not prohibit such delivery of Collateral and other assets to Broker). Each sale or purchase of Collateral or other assets may be made according to Broker's judgment and may be made at Broker's discretion, on the continuance of principal exchange or other market on which such Collateral or other assets normally trades, or in the event such principal exchange or market is closed, in a Default and ten days before any proposed disposition provides notice within a reasonable time before disposition.
(c) Each Grantor hereby agrees and acknowledges that a manner commercially reasonable disposition of Inventory, Equipment, Computer Hardware and Software, for selling such Collateral or Intellectual Property may be by lease or license of, in addition to the sale of, such Collateral. Each Grantor further agrees and acknowledges that a disposition: (i) made in the usual manner on any recognized market, or (ii) a disposition at the price current in any recognized market at the time of disposition, or (iii) a disposition in conformity with reasonable commercial practices among dealers in the type of property subject to the disposition; shall be deemed commercially reasonableother assets.
(d) Any cash proceeds of any disposition by the Administrative Agent of any of the Collateral shall be applied by the Administrative Agent to payment of expenses in connection with the Collateral, including reasonable attorneys’ fees and legal expenses, and thereafter to the payment of any and all of the Liabilities in the order of application set forth in Section 8.03 of the Credit Agreement, and thereafter any surplus will be paid promptly to the Grantor. The Administrative Agent need not apply or pay over for application noncash proceeds of collection and enforcement unless: (i) the failure to do so would be commercially unreasonable and (ii) the affected Grantor has provided the Administrative Agent with a written demand to apply or pay over such noncash proceeds on such basis.
Appears in 2 contracts
Sources: Special Custody Account Agreement (Hillview Investment Trust Ii), Special Custody Account Agreement (Hillview Investment Trust Ii)
Default. Whenever (a) The occurrence of any of the following shall constitute a Default hereunder: nonpayment, when due, whether by acceleration or otherwise, of any amount payable on any of the Liabilities; an Event of Default; an Unmatured Event of Default under Section 9.1(g) of the Credit Agreement; or the Pledgor shall be existingdefault in any agreement contained herein (and, so long as no material portion of the Collateral is unperfected as a result of such default, continuation of such default for five Business Days after notice from any Agent or any Lender). Upon a Default, the Administrative Paying Agent may exercise from time to time any and all rights and remedies available to it under applicable law, the Uniform Commercial Code as in addition effect from time to those described time in this section below.
(a) Each Grantor agrees, in case Illinois or otherwise available to it. If any notification of Default, (i) at the Administrative Agent’s request, to assemble, at its expense, all its Inventory and other Goods (other than Fixtures) at a convenient place or places acceptable to the Administrative Agent, and (ii) at the Administrative Agent’s request, to execute all such documents and do all such other things which may be necessary or desirable in order to enable the Administrative Agent or its nominee to be registered as owner of the Intellectual Property with any competent registration authority.
(b) Notice of the intended disposition of the Collateral may be given by first-class mail, hand-delivery (through a delivery service or otherwise), facsimile or E-mail, and shall be deemed to have been “sent” upon deposit in the U.S. Mails with adequate postage properly affixed, upon delivery to an express delivery service or upon the electronic submission through telephonic or Internet services, as applicable. Each Grantor hereby agrees and acknowledges that (i) with respect to collateral that is: (A) perishable or threatens to decline speedily in value, or (B) is of a type customarily sold on a recognized market (including but not limited to, Investment Property), no notice of disposition need be given; and (ii) with respect to Collateral not described in clause (i) above, notification sent after the occurrence of and during the continuance of a Default and ten days before any proposed disposition provides notice within a reasonable time before disposition.
(c) Each Grantor hereby agrees and acknowledges that a commercially reasonable disposition of Inventory, Equipment, Computer Hardware and Software, or Intellectual Property may be by lease or license of, in addition to the sale of, such Collateral. Each Grantor further agrees and acknowledges that a disposition: (i) made in the usual manner on any recognized market, or (ii) a disposition at the price current in any recognized market at the time of disposition, or (iii) a disposition in conformity with reasonable commercial practices among dealers in the type of property subject to the disposition; shall be deemed commercially reasonable.
(d) Any cash proceeds of any disposition by the Administrative Agent of any of the Collateral is required by law, such notification, if mailed, shall be deemed reasonably and properly given if mailed at least ten days before such disposition, postage prepaid, addressed to the Pledgor, either at the address of the Pledgor shown below, or at any other address of the Pledgor appearing on the records of the Paying Agent. Any proceeds of any disposition of Collateral may be applied by the Administrative Paying Agent to the payment of expenses in connection with the Collateral, including reasonable attorneys’ fees Attorney Costs and legal expenses, and thereafter to any balance of such proceeds may be applied by the Paying Agent toward the payment of such of the Liabilities, and in such order of application, as the Paying Agent may from time to time elect. All rights and remedies of the Paying Agent expressed herein are in addition to all other rights and remedies possessed by it, including those under any and all other agreement or instrument relating to any of the Liabilities or any security therefor. No delay on the part of the Paying Agent in the order exercise of application set forth in Section 8.03 any right or remedy shall operate as a waiver thereof, and no single or partial exercise by the Paying Agent of any right or remedy shall preclude other or further exercise thereof or the exercise of any other right or remedy. No action of the Credit AgreementPaying Agent permitted hereunder shall impair or affect the rights of the Paying Agent in and to the Collateral.
(b) The Pledgor agrees that in any sale of any of the Collateral whenever a Default hereunder shall have occurred and be continuing, the Paying Agent is hereby authorized to comply with any limitation or restriction in connection with such sale as it may be advised by counsel is necessary in order to avoid any violation of applicable law (including, without limitation, compliance with such procedures as may restrict the number of prospective bidders and purchasers, require that such prospective bidders and purchasers have certain qualifications, and thereafter any surplus restrict such prospective bidders and purchasers to persons who will be paid promptly represent and agree that they are purchasing for their own account for investment and not with a view to the Grantor. The Administrative distribution or resale of such Collateral), or in order to obtain any required approval of the sale or of the purchaser by any Governmental Authority, and the Pledgor further agrees that such compliance shall not result in such sale being considered or deemed not to have been made in a commercially reasonable manner, nor shall the Paying Agent need not apply be liable or pay over accountable to the Pledgor for application noncash proceeds any discount allowed by the reason of collection and enforcement unless: (i) the failure to do so would be commercially unreasonable and (ii) the affected Grantor has provided the Administrative Agent fact that such Collateral is sold in compliance with a written demand to apply any such limitation or pay over such noncash proceeds on such basisrestriction.
Appears in 2 contracts
Sources: Pledge Agreement (Quality Food Centers Inc), Pledge Agreement (Quality Food Centers Inc)
Default. Whenever a Default 8.1. All works and other matters to be constructed, provided and maintained by the Owner pursuant to this Agreement, shall be existingcontinuously provided and maintained by the Owner at his sole risk and expense and to the satisfaction of the Municipality. If, in the opinion of the Municipality, based upon reasonable grounds, the Administrative Agent may exercise from Owner has defaulted in the construction, provision or maintenance of any of the works or of any other matter required under this Agreement, the Owner must rectify such default to the satisfaction of the Municipality after notification thereof. Any matter deemed by the Municipality to be an emergency shall be rectified forthwith. Any other matters shall be rectified within thirty (30) days of receipt of notice unless a greater time to time any and all rights and remedies available to it under applicable law, in addition to those described in this section belowperiod is provided by the Municipality.
(a) Each Grantor agrees8.2. If in the reasonable opinion of the Municipality, the Owner has not rectified all such matters and things as are in case of Defaultdefault after the stipulated time period for rectification, (i) the Municipality may at the Administrative Agent’s requestexpense of the Owner, to assemblethrough it's agents, at its expense, all its Inventory and other Goods (other than Fixtures) at a convenient place or places acceptable to employees and/or servants enter upon the Administrative Agent, and (ii) at the Administrative Agent’s request, to execute all such documents lands and do all such other matters and things which required to rectify the default. Actual cost incurred by the Municipality in carrying out such remedial work plus fifteen (15%) per cent of such cost as a charge for overhead (and to be construed as a liquidated amount, not as a penalty) shall be paid by the Owner to the Municipality within thirty (30) days of the mailing of or presentation of an invoice to the Owner.
8.3. The Municipality may utilize any securities deposited by or on behalf of the Owner in full or partial satisfaction of the costs associated with any default. Money owing by the Owner may be necessary collected by the Municipality in like manner as municipal taxes, or desirable in order pursuant to enable provisions of the Administrative Agent Planning Act, R.S.O. 1990, Chapter P.13 the Municipal Act, R.S.O., 1990 Chapter M.45 or its nominee by any other means legally available to the Municipality.
8.4. Whenever the Municipality is authorized or permitted to enter onto the lands for purposes of inspecting or completing works or facilities, maintaining same or otherwise, the Municipality, it's agents, servants or employees shall not be considered to be registered as owner of the Intellectual Property with trespassers, nor liable in any competent registration authority.
(b) Notice of the intended disposition of the Collateral may be given way for acts or omissions unless occasioned by first-class mail, hand-delivery (through a delivery service or otherwise), facsimile or E-mail, and gross negligence. It shall be deemed the Municipality's sole discretion, acting reasonably, to have been “sent” upon deposit in the U.S. Mails with adequate postage properly affixed, upon delivery to an express delivery service or upon the electronic submission through telephonic or Internet services, as applicable. Each Grantor hereby agrees and acknowledges that (i) determine when it should intervene with respect to collateral the lands and it is hereby understood and agreed that is: (A) perishable or threatens to decline speedily in value, or (B) is of a type customarily sold on a recognized market (including but not limited to, Investment Property), no notice of disposition need be given; and (ii) with respect to Collateral not described in clause (i) above, notification sent after the occurrence of and during the continuance of a Default and ten days before any proposed disposition provides notice within a reasonable time before disposition.
(c) Each Grantor hereby agrees and acknowledges that a commercially reasonable disposition of Inventory, Equipment, Computer Hardware and Software, or Intellectual Property may be by lease or license of, in addition to the sale of, such Collateral. Each Grantor further agrees and acknowledges that a disposition: (i) made in the usual manner on any recognized market, or (ii) a disposition at the price current in any recognized market at the time of disposition, or (iii) a disposition in conformity with reasonable commercial practices among dealers in the type of property subject to the disposition; shall be deemed commercially reasonable.
(d) Any cash proceeds of any disposition by the Administrative Agent of any of the Collateral shall be applied by the Administrative Agent to payment of expenses in connection with the Collateral, including reasonable attorneys’ fees and legal expenses, and thereafter to the payment of any and all of the Liabilities in the order of application set forth in Section 8.03 of the Credit Agreement, and thereafter any surplus will be paid promptly to the Grantor. The Administrative Agent need not apply or pay over for application noncash proceeds of collection and enforcement unless: (i) the failure to do intervene or delay in so would doing shall not be commercially unreasonable and (ii) grounds to condone or excuse the affected Grantor has provided Owner from any default, the Administrative Agent with a written demand to apply or pay over such noncash proceeds on such basisMunicipality's remedies being cumulative.
Appears in 2 contracts
Sources: Site Plan Control Agreement, Site Plan Control Agreement
Default. Whenever a (a) In the event that the Pledgor fails to pay to the Pledgee any Obligation when due or there shall otherwise occur an Event of Default shall be existing(as defined in the Note) ("Default"), the Administrative Agent Pledgee shall have all of the rights and remedies afforded to secured parties with respect to the Collateral as set forth in the Code as well as all other rights and remedies granted in the Note and this Agreement. Without limiting the generality of the foregoing, the Pledgee, without demand of performance or other demand, presentment, protest, advertisement or notice of any kind (except any notice required by law referred to below) to or upon the Pledgor (all and each of which demands, defenses, advertisements and notices are hereby waived), may exercise in such circumstances forthwith collect, receive, appropriate and realize upon the Collateral, or any part thereof, and/or may forthwith sell, assign, give an option or options to purchase or otherwise dispose of and deliver the Collateral or any part thereof (or contract to do any of the foregoing), in one or more parcels at public or private sale or sales, upon such terms and conditions and at such prices as it may deem advisable, for cash or on credit or for future delivery without assumption of any credit risk. The Pledgee shall have the right upon any such public sale or sales, and, to the extent permitted by law, upon any such private sale or sales, to purchase the whole or any part of the Collateral so sold. The Pledgee shall apply any proceeds from time to time held by it and the net proceeds of any such sale or other disposition, after deducting all reasonable costs and expenses of every kind incurred in respect thereof or incidental to the care or safekeeping of any of the Collateral or in any way relating to the Collateral or the rights of the Pledgee hereunder, including, without limitation, reasonable attorneys' fees and disbursements of counsel to the Pledgee, to the satisfaction in whole or in part of the Obligations, in such order as the Pledgee may elect and only after such application and after the payment by the Pledgee of any other amount required by any provision of law, including, without limitation, Section 9-504 (1)(c) of the Code, need the Pledgee account for the surplus, if any, to the Pledgor. To the extent permitted by applicable law, the Pledgor waives all claims, damages and demands he may acquire against the Pledgee arising out of the lawful exercise by it of any rights hereunder. Neither the Pledgee nor any of its respective directors, officers, employees or agents shall be liable for failure to sell or otherwise dispose of the Collateral or for any delay in doing so. If any notice of a proposed sale or other disposition of the Collateral shall be required by law, such notice shall be deemed reasonable and proper if given at least ten (10) days before such sale or other disposition. In any event, notice of a proposed sale or other disposition shall be given at least ten (10) days before such sale or other disposition to the Pledgor and ▇▇▇▇▇ ▇▇▇▇. The Pledgor shall remain liable for any deficiency if the proceeds of any sale or other disposition of the Collateral are insufficient to pay all of the Obligations and any and all rights costs and remedies available expenses of every kind incurred by the Pledgee with respect to it under the collection of such deficiency, including, without limitation, all reasonable fees and disbursements of any attorneys employed by the Pledgee. The Pledgor recognizes that the Pledgee may be unable to effect a public sale of any or all the Collateral by reason of certain restrictions contained in the Securities Act of 1933, as amended, and applicable lawstate securities laws or otherwise, in addition and may be compelled to those described in this section below.
(a) Each Grantor agreesresort to one or more private sales thereof to a restricted group of purchasers which will be obliged to agree, in case of Default, (i) at the Administrative Agent’s requestamong other things, to assemble, at its expense, all its Inventory acquire such securities for their own account for investment and not with a view to the distribution or resale thereof. The Pledgor acknowledges and agrees that any such private sale may result in prices and other Goods (terms less favorable than if such sale were a public sale and agrees that any such private sale under such circumstances shall not be evidence that it has been made in other than Fixtures) at a convenient place commercially reasonable manner. The Pledgor agrees to use his best efforts to do or places acceptable cause to the Administrative Agent, and (ii) at the Administrative Agent’s request, to execute all such documents and do be done all such other things which acts as may be necessary to make such sale or desirable in order to enable the Administrative Agent sales of all or its nominee to be registered as owner any portion of the Intellectual Property Collateral pursuant to this section valid and binding and in compliance with any competent registration authorityand all other applicable requirements of law.
(b) Notice The rights of the intended disposition Pledgee hereunder shall not be conditioned or contingent upon the pursuit by the Pledgee of any right or remedy against the Pledgor, any other person which may be or become liable in respect of all or any part of the Obligations or against any collateral security therefor, guarantee therefor or right of offset with respect thereto. Neither the Pledgee nor any of its affiliates or representatives shall be liable for any failure to demand, collect or realize upon all or any part of the Collateral may or for any delay in doing so, nor shall the Pledgee be given by first-class mail, hand-delivery (through a delivery service under any obligation to sell or otherwise), facsimile or E-mail, and shall be deemed to have been “sent” upon deposit in the U.S. Mails with adequate postage properly affixed, upon delivery to an express delivery service or otherwise dispose of any Collateral upon the electronic submission through telephonic request of the Pledgor or Internet services, as applicable. Each Grantor hereby agrees and acknowledges that (i) any other person or to take any other action whatsoever with respect to collateral that is: (A) perishable or threatens to decline speedily in value, or (B) is of a type customarily sold on a recognized market (including but not limited to, Investment Property), no notice of disposition need be given; and (ii) with respect to Collateral not described in clause (i) above, notification sent after the occurrence of and during the continuance of a Default and ten days before any proposed disposition provides notice within a reasonable time before disposition.
(c) Each Grantor hereby agrees and acknowledges that a commercially reasonable disposition of Inventory, Equipment, Computer Hardware and Software, or Intellectual Property may be by lease or license of, in addition regard to the sale of, such Collateral. Each Grantor further agrees and acknowledges that a disposition: (i) made in the usual manner on Collateral or any recognized market, or (ii) a disposition at the price current in any recognized market at the time of disposition, or (iii) a disposition in conformity with reasonable commercial practices among dealers in the type of property subject to the disposition; shall be deemed commercially reasonablepart thereof.
(d) Any cash proceeds of any disposition by the Administrative Agent of any of the Collateral shall be applied by the Administrative Agent to payment of expenses in connection with the Collateral, including reasonable attorneys’ fees and legal expenses, and thereafter to the payment of any and all of the Liabilities in the order of application set forth in Section 8.03 of the Credit Agreement, and thereafter any surplus will be paid promptly to the Grantor. The Administrative Agent need not apply or pay over for application noncash proceeds of collection and enforcement unless: (i) the failure to do so would be commercially unreasonable and (ii) the affected Grantor has provided the Administrative Agent with a written demand to apply or pay over such noncash proceeds on such basis.
Appears in 2 contracts
Sources: Pledge Agreement (Extech Corp), Pledge Agreement (Dcap Group Inc)
Default. Whenever a Default shall be existing, the Administrative Agent may exercise from time to time any and all rights and remedies available to it under applicable law, in addition to those described in this section below.
(a) Each Grantor agrees, in case of Default, (i) at the Administrative Agent’s request, to assemble, at its expense, all its Inventory and other Goods (other than Fixtures) at a convenient place or places acceptable to the Administrative Agent, and (ii) at the Administrative Agent’s request, to execute all such documents and do all such other things which may be necessary or desirable in order to enable the Administrative Agent or its nominee to be registered as owner of the Intellectual Property with any competent registration authority.
(b) Notice of the intended disposition of the Collateral may be given by first-class mail, hand-delivery (through a delivery service or otherwise), facsimile or E-mail, and shall be deemed to have been “sent” upon deposit in the U.S. Mails with adequate postage properly affixed, upon delivery to an express delivery service or upon the electronic submission through telephonic or Internet services, as applicable. Each Grantor hereby agrees and acknowledges that (i) with respect to collateral that is: (A) perishable or threatens to decline speedily in value, or (B) is of a type customarily sold on a recognized market (including but not limited to, Investment Property), no notice of disposition need be given; and (ii) with respect to Collateral not described in clause (i) above, notification sent after the The occurrence of and during the continuance of a Default and ten days before any proposed disposition provides notice within a reasonable time before disposition.
(c) Each Grantor hereby agrees and acknowledges that a commercially reasonable disposition of Inventory, Equipment, Computer Hardware and Software, or Intellectual Property may be by lease or license of, in addition to the sale of, such Collateral. Each Grantor further agrees and acknowledges that a disposition: (i) made in the usual manner on any recognized market, or (ii) a disposition at the price current in any recognized market at the time of disposition, or (iii) a disposition in conformity with reasonable commercial practices among dealers in the type of property subject to the disposition; shall be deemed commercially reasonable.
(d) Any cash proceeds of any disposition by the Administrative Agent of any of the Collateral shall be applied by following, after the Administrative Agent to payment of expenses in connection with the Collateral, including reasonable attorneys’ fees and legal expenses, and thereafter to the payment expiration of any applicable cure or grace period without cure, shall constitute a breach and all material default (an “Event of the Liabilities in the order Default”) of application set forth in Section 8.03 of the Credit Agreement, and thereafter any surplus will be paid promptly to the Grantor. The Administrative Agent need not apply or pay over for application noncash proceeds of collection and enforcement unless: this License Agreement by Licensee:
(i) The failure of Licensee to pay or cause to be paid when due the failure Fee or any portion thereof or any other charges required by this License Agreement to do so would be commercially unreasonable and paid by Licensee within ten (10) days after such payment is due;
(ii) The abandonment of the affected Grantor has provided Premises and operation thereof by Licensee for a consecutive period of sixty (60) days or more; or
(iii) The failure of Licensee to observe, perform or cause to be done any material act, other than payment of monies, required by this License Agreement (except for acts covered by any other provision of this paragraph 18(a)), within thirty (30) days of receipt by Licensee of written notice from Licensor of such failure; or
(iv) Licensee causing, permitting, or suffering, without the Administrative Agent prior written consent of Licensor, any act when this Agreement requires Licensor’s prior written consent or prohibits such act; or
(v) The occurrence of any event of insolvency or bankruptcy with respect to Licensee, including any of the following by way of illustration:
(A) Any general assignment or general arrangement for the benefit of creditors;
(B) The filing of any petition by or against Licensee to have Licensee adjudged a written demand bankrupt or a petition for reorganization or arrangement under any law relating to apply bankruptcy, unless such petition is filed against Licensee and the same is dismissed within sixty (60) days;
(C) The appointment of a trustee or pay over such noncash proceeds on such basisreceiver to take possession of substantially all of Licensee’s assets or of Licensee’s interest in this License Agreement; or
(D) The attachment, execution or other judicial seizure of the Equipment, substantially all of Licensee’s assets or of Licensee’s interest in this License Agreement; or
(vi) The failure of Licensee to maintain the insurance required to be maintained pursuant to paragraph 16 hereof.
Appears in 2 contracts
Sources: Communications Site License Agreement, Communications Site License Agreement (Skybridge Wireless Inc)
Default. Whenever (a) Subject to the rights of CoBank under the CoBank Security Documents, upon the occurrence of a Default, National Beef may redeem from Pledgor or sell so much of the Collateral as necessary to satisfy the Obligations (including, without limitation, any amounts necessary to satisfy Pledgor’s obligations under the CoBank Loan Documents), providing any such redemption or sale shall be after an appraisal of Fair Value of the Collateral as determined pursuant to Exhibit I hereto and the redemption or sale shall not be at a price less than the Fair Value. No rights and remedies of National Beef expressed hereunder are intended to be exclusive of any other right or remedy under the Cattle Agreement, but every such right or remedy shall be cumulative and shall be in addition to all other rights and remedies herein conferred, or conferred upon National Beef under the Cattle Agreement or now or hereafter existing at law or in equity or by statute. No delay on the part of National Beef in the exercise of any right or remedy shall operate as a waiver thereof, and no single or partial exercise by National Beef of any right or remedy shall preclude other or further exercise thereof or the exercise of any other right or remedy. No action of National Beef permitted hereunder shall impair or affect the rights of National Beef in and to the Collateral.
(i) The Pledgor agrees that, in any sale of any of the Collateral when a Default shall have occurred and be existingcontinuing, subject to the Administrative Agent rights of CoBank under the CoBank Security Documents, National Beef is authorized to comply with any limitation or restriction in connection with such sale as is necessary in order to avoid any violation of applicable law or the Operating Agreements (including, without limitation, compliance with such procedures as may exercise restrict the number of prospective bidders and purchasers, require that such prospective bidders and purchasers have certain qualifications, and restrict such prospective bidders and purchasers to persons who will represent and agree that they are purchasing for their own account for investment and not with a view to the distribution or resale of such Collateral), or in order to obtain any required approval of the sale or of the purchaser by any governmental regulatory authority or official, and Pledgor further agrees that such compliance shall not result in such sale being considered or deemed not to have been made in a commercially reasonable manner, nor shall National Beef be liable nor accountable to Pledgor for any reasonable discount allowed by the reason of the fact that such Collateral is sold in compliance with any such limitation or restriction, providing the sale price is at least Fair Value.
(ii) Pledgor further agrees, after a Default shall have occurred and be continuing, and upon written request from time National Beef, to time (A) deliver to National Beef such information concerning Pledgor or the Collateral as National Beef shall reasonably request in connection with the sale of all or any portion of the Collateral, which information shall not contain any untrue statement of a material fact or omit to state a material fact required to be stated or necessary to make such information not misleading, and (B) do or cause to be done all such other acts and things as may be necessary to make such sale of all or any portion of such Collateral valid and binding and in compliance with any and all rights applicable laws, regulations, orders, writs, injunctions, decrees or awards of any and remedies available all courts, arbitrators or governmental agencies or instrumentalities, domestic or foreign, having jurisdiction over any such sale. Without limiting the foregoing paragraph, if National Beef decides to it exercise its right to sell all or any of the Collateral, upon written request, Pledgor shall furnish or cause to be furnished to National Beef all such information as National Beef may request in order to qualify the Collateral as exempt securities, or the sale of such Collateral as exempt transactions, under applicable lawfederal and state securities laws. Nothing herein shall be construed to be Pledgor’s consent to, in addition or any obligation to those described in this section belowundertake, a public offering of any pledged securities.
(ac) Each Grantor agreesFor the purpose of carrying out the terms of this Agreement, Pledgor appoints National Beef, or any other person whom National Beef may designate, as attorney in fact, effective from the occurrence and during the continuance of any Default hereunder, with power to take any and all actions and to execute any and all documents and instruments that may, in case the judgment of DefaultNational Beef, be necessary or desirable to accomplish the purposes of this Agreement, including but not limited to (i) at the Administrative Agent’s request, power to assemble, at its expense, pay off all its Inventory obligations of Pledgor under the CoBank Loan Documents and other Goods (other than Fixtures) at a convenient place or places acceptable to terminate the Administrative AgentCoBank Loan Documents, and (ii) at the Administrative Agent’s request, to execute all such documents and do all such other things which may be necessary or desirable in order to enable the Administrative Agent or its nominee to be registered as owner of the Intellectual Property with any competent registration authority.
(b) Notice of the intended disposition of the Collateral may be given by first-class mail, hand-delivery (through a delivery service or otherwise), facsimile or E-mail, and shall be deemed to have been “sent” upon deposit in the U.S. Mails with adequate postage properly affixed, upon delivery to an express delivery service or upon the electronic submission through telephonic or Internet services, as applicable. Each Grantor hereby agrees and acknowledges that (i) with respect to collateral that is: (A) perishable or threatens to decline speedily in value, or (B) is of a type customarily sold on a recognized market (including but not limited to, Investment Property), no notice of disposition need be given; and (ii) with respect to Collateral not described in clause (i) above, notification sent after the occurrence of and during the continuance of a Default and ten days before any proposed disposition provides notice within a reasonable time before disposition.
(c) Each Grantor hereby agrees and acknowledges that a commercially reasonable disposition of Inventory, Equipment, Computer Hardware and Software, or Intellectual Property may be by lease or license of, in addition to the sale of, such Collateral. Each Grantor further agrees and acknowledges that a disposition: (i) made in the usual manner on any recognized market, or (ii) a disposition at the price current in any recognized market at the time of disposition, or (iii) a disposition in conformity with reasonable commercial practices among dealers in the type of property subject to the disposition; shall be deemed commercially reasonable.
(d) Any cash proceeds of any disposition by the Administrative Agent of any of the Collateral shall be applied by the Administrative Agent to payment of expenses in connection with the Collateral, including reasonable attorneys’ fees and legal expenses, and thereafter to the payment of any and all things necessary to carry out the purposes of the Liabilities in the order this Agreement. Pledgor ratifies and approves all acts of application set forth in Section 8.03 of the Credit Agreement, and thereafter such attorney. Neither National Beef nor any surplus other person or entity designated by it as attorney hereunder will be paid promptly to the Grantorliable for any act or omission nor for any error of judgment or mistake of facts or law. The Administrative Agent need not apply or pay over for application noncash proceeds of collection and enforcement unless: (i) the failure to do so would be commercially unreasonable and (ii) the affected Grantor has provided the Administrative Agent This power, being coupled with a written demand to apply or pay over such noncash proceeds on such basisan interest, is irrevocable until this Agreement is terminated as herein provided.
Appears in 2 contracts
Sources: Pledge Agreement (U. S. Premium Beef, LLC), Membership Interest Purchase Agreement (Leucadia National Corp)
Default. Whenever a Default 9. The Assignor shall be existing, in default under this General Security Agreement upon the Administrative Agent may exercise from time to time occurrence of any and all rights and remedies available to it under applicable law, in addition to those described in this section below.one of the following events:
(a) Each Grantor agreesthe nonpayment by the Assignor, in case when due, whether by acceleration or otherwise, of Default, (i) at the Administrative Agent’s request, to assemble, at its expense, all its Inventory and other Goods (other than Fixtures) at a convenient place or places acceptable to the Administrative Agent, and (ii) at the Administrative Agent’s request, to execute all such documents and do all such other things which may be necessary or desirable in order to enable the Administrative Agent or its nominee to be registered as owner any of the Intellectual Property with any competent registration authority.Indebtedness;
(b) Notice the death or a declaration of the intended disposition incompetency by a court of the Collateral may be given by first-class mail, hand-delivery (through a delivery service or otherwise), facsimile or E-mail, and shall be deemed to have been “sent” upon deposit in the U.S. Mails with adequate postage properly affixed, upon delivery to an express delivery service or upon the electronic submission through telephonic or Internet services, as applicable. Each Grantor hereby agrees and acknowledges that (i) competent jurisdiction with respect to collateral that is: (A) perishable or threatens to decline speedily in valuethe Assignor, or (B) is of a type customarily sold on a recognized market (including but not limited to, Investment Property), no notice of disposition need be given; and (ii) with respect to Collateral not described in clause (i) above, notification sent after the occurrence of and during the continuance of a Default and ten days before any proposed disposition provides notice within a reasonable time before disposition.if an individual;
(c) Each Grantor hereby agrees and acknowledges that a commercially reasonable disposition the failure of Inventorythe Assignor to observe or perform any covenant, Equipment, Computer Hardware and Software, undertaking or Intellectual Property may be by lease agreement heretofore or license of, in addition hereafter given to the sale ofLender, such Collateral. Each Grantor further agrees and acknowledges that a disposition: (i) made in the usual manner on any recognized market, whether contained herein or (ii) a disposition at the price current in any recognized market at the time of disposition, or (iii) a disposition in conformity with reasonable commercial practices among dealers in the type of property subject to the disposition; shall be deemed commercially reasonable.not;
(d) Any cash proceeds an execution or any other process of the Court becomes enforceable against the Assignor or a distress or an analogous process is levied upon the property of the Assignor or any part thereof;
(e) the Assignor becomes insolvent, commits an act of bankruptcy, makes an assignment in bankruptcy or a bulk sale of its as- sets, any proceeding for relief as a Assignor or liquidation, re-assignment or winding-up is commenced with respect to the Assignor or an application for a bankruptcy order is filed or presented against the Assignor and is not bona fide opposed by the Assignor;
(f) the Assignor ceases to carry on business;
(g) any representation or warranty of the Assignor contained herein or in any document or certificate furnished in connection herewith proves to have been untrue in any material respect at the time in respect of which it was made;
(h) an encumbrancer, whether permitted or otherwise, takes possession of any disposition significant portion of the Collateral;
(i) an order is made or legislation enacted for the expropriation, confiscation, forfeiture, escheating or other taking or compulsory divestiture, whether or not with compensation, of all or a significant portion of the Collateral unless the same is being actively and diligently contested by the Administrative Agent Assignor in good faith, the Assignor shall have provided to the Lender such security therefor as it may reasonably require and such order or legislation shall have been vacated, lifted, discharged, stayed or repealed within thirty days from the date of being entered, pronounced or enacted, as the case may be;
(j) the Assignor is liquidated, dissolved or its corporate charter expires or is revoked; or
(k) the Assignor defaults in the observance or performance of any provision relating to indebtedness of the Assignor to any credi- tor other than the Lender and thereby enables such creditor to demand payment of such indebtedness.
10. The Lender may in writing waive any breach by the Assignor of any of the Collateral shall be applied provisions contained herein or any default by the Administrative Agent to payment of expenses Assignor in connection with the Collateral, including reasonable attorneys’ fees and legal expenses, and thereafter to the payment observance or performance of any and all of covenant or condition required by the Liabilities Lender to be observed or performed by the Assignor; provided that no act or omission by the Lender in the order of application set forth premises shall extend to or be taken in Section 8.03 of any manner whatsoever to affect any subsequent breach or default or the Credit Agreement, and thereafter any surplus will be paid promptly to the Grantor. The Administrative Agent need not apply or pay over for application noncash proceeds of collection and enforcement unless: (i) the failure to do so would be commercially unreasonable and (ii) the affected Grantor has provided the Administrative Agent with a written demand to apply or pay over such noncash proceeds on such basisrights resulting therefrom.
Appears in 2 contracts
Sources: General Security Agreement, General Security Agreement
Default. Whenever a 6.1 Subject to the immediately succeeding sentence, if an Event of Default shall have occurred and be existingcontinuing, the Administrative Agent may exercise from time to time any and all rights and remedies available to it under applicable lawPurchasers shall have, in addition to those described any other rights and remedies contained in this section below.
(a) Each Grantor agreesSecurity Agreement, all the rights and remedies of a secured party under the Uniform Commercial Code, and all other rights and remedies provided by law, all of which shall be cumulative to the extent permitted by law. Upon the occurrence of an Event of Default and at any time thereafter if such or any other Event of Default shall then be continuing, the Purchasers, acting by the written consent of the Purchasers holding at least two-thirds of the aggregate principal balance of all Notes then outstanding, shall have the right without further notice to the Company to settle, compromise or release, in case of Defaultwhole or in part, (i) at any amounts owing on the Administrative Agent’s requestCollateral, to assembleprosecute any action, at its expense, all its Inventory and other Goods (other than Fixtures) at a convenient place suit or places acceptable to the Administrative Agent, and (ii) at the Administrative Agent’s request, to execute all such documents and do all such other things which may be necessary or desirable in order to enable the Administrative Agent or its nominee to be registered as owner of the Intellectual Property with any competent registration authority.
(b) Notice of the intended disposition of the Collateral may be given by first-class mail, hand-delivery (through a delivery service or otherwise), facsimile or E-mail, and shall be deemed to have been “sent” upon deposit in the U.S. Mails with adequate postage properly affixed, upon delivery to an express delivery service or upon the electronic submission through telephonic or Internet services, as applicable. Each Grantor hereby agrees and acknowledges that (i) proceeding with respect to collateral that is: the Collateral, to sell, assign and deliver the Collateral (A) perishable or threatens to decline speedily in value, or (B) is of a type customarily sold on a recognized market (including but not limited to, Investment Propertyany part thereof), no notice of disposition need be given; and (ii) with respect to Collateral not described in clause (i) aboveat public or private sale, notification sent after the occurrence of and during the continuance of a Default and ten days before any proposed disposition provides notice within a reasonable time before disposition.
(c) Each Grantor hereby agrees and acknowledges that a commercially reasonable disposition of Inventoryat broker's board, Equipmentfor cash, Computer Hardware and Softwareupon credit or otherwise, or Intellectual Property may be by lease or license of, in addition to the sale of, such Collateral. Each Grantor further agrees and acknowledges that a disposition: (i) made in the usual manner on any recognized market, or (ii) a disposition at the price current in Purchasers' sole option and discretion and the Purchasers may bid or become purchasers at any recognized market at the time such sale, if public, free from any right of dispositionredemption, or (iii) a disposition in conformity with reasonable commercial practices among dealers in the type of property subject to the disposition; shall be deemed commercially reasonable.
(d) Any which is hereby expressly waived. The net cash proceeds of any disposition by resulting from the Administrative Agent exercise of any of the Collateral foregoing rights or remedies shall be applied by the Administrative Agent to payment of expenses in connection with the Collateral, including reasonable attorneys’ fees and legal expenses, and thereafter Purchasers to the payment of the Obligations in such order as the Purchasers may elect, and the Company shall remain liable to the Purchasers for any deficiency, together with interest thereon at the rate provided in the Notes, and the cost and expenses of collection of such deficiency, including (to the extent permitted by law), without limitation, attorneys' fees, expenses and disbursements.
6.2 If at any time or times hereafter the Purchasers or the Collateral Agent employ counsel for advice with respect to this Security Agreement, or to intervene, file a petition, answer, motion or other pleading in any suit or proceeding relating to this Security Agreement or relating to any Collateral, or to protect, take possession of, or liquidate any Collateral, or to attempt to enforce any security interest or lien in any Collateral, or to represent the Purchasers in any pending or threatened litigation with respect to the affairs of the Company in any way relating to any of the Collateral or to the Obligations or to enforce any rights of the Purchasers or liabilities of the Company, account debtors, or any other person, firm or corporation which may be obligated to the Purchasers by virtue of this Security Agreement or any instrument or document now or hereafter delivered to the Purchasers by or for the benefit of the Company, then in any of such events, all of the Liabilities in the order of application set forth in Section 8.03 attorneys' fees arising from such services, and any expenses, costs and charges relating thereto, shall become a part of the Credit Agreement, and thereafter any surplus will be paid promptly to Obligations secured by the Grantor. The Administrative Agent need not apply or pay over for application noncash proceeds of collection and enforcement unless: (i) the failure to do so would be commercially unreasonable and (ii) the affected Grantor has provided the Administrative Agent with a written demand to apply or pay over such noncash proceeds Collateral payable on such basisdemand.
Appears in 2 contracts
Sources: Security Agreement (Affinity Technology Group Inc), Convertible Note Purchase Agreement (Affinity Technology Group Inc)
Default. Whenever (a) In the event that:
(i) Tenant shall fail to pay when due the Rent or any other sums payable hereunder when due and such failure remains uncured for five (5) days after Landlord delivers a Default default notice to Tenant for such failure to pay rent; or
(ii) any petition in bankruptcy shall be existingfiled by Tenant or any guarantor hereof or other petition or proceeding shall be filed or commenced by Tenant or any guarantor hereof to declare Tenant insolvent, or to delay, reduce or modify Tenant’s or any such guarantor’s debts or obligations, or Tenant or any such guarantor admits its inability to pay its debts, or Tenant or any such guarantor makes an assignment for the Administrative Agent may exercise benefit of creditors; or
(iii) any bankruptcy petition or proceeding shall be filed against Tenant or any guarantor hereof or to otherwise declare Tenant or any guarantor hereof bankrupt or insolvent or to delay, reduce or modify Tenant’s or any such guarantor’s debts or obligations or a receiver, trustee or other similar type of appointment or court appointee or nominee is appointed for Tenant or any such guarantor or any of the property of Tenant or any such guarantor, and such petition, appointment or proceeding is not dismissed within sixty (60) days after it is commenced; or
(iv) the leasehold interest of Tenant is levied upon or attached by process of law, including the filing of any mechanic’s lien, and such levy, lien, or attachment is not dissolved within thirty (30) days after it is made; or
(v) Tenant shall abandon the Leased Premises during the Lease Term; or
(vi) Tenant shall assign this Lease or sublet any portion of the Leased Premises, or attempt to do either of the foregoing, in violation of this Lease; or
(vii) Tenant violates or fails to observe or comply with any Laws applicable to the Leased Premises, Tenant’s use thereof, or Tenant's operations, activities or conduct of business at or from time the Leased Premises; or
(viii) any other event, occurrence, act, or omission described in any provision of this Lease as constituting a “default” or an “Event of Default” occurs;
(ix) Tenant shall neglect or fail to time perform or observe any of the other covenants, terms, provisions or conditions contained in this Lease and, if the neglect or failure is capable of being cured, such neglect or failure continues for more than thirty (30) days after written notice thereof (provided, however, that if such neglect or failure is capable of being cured, but is not capable of being cured within said thirty (30) day period, then Tenant shall have such additional period of time, not to exceed an additional sixty (60) days, as is reasonably necessary to cure the same provided Tenant commences to cure within said thirty (30) day period and all rights diligently and continuously prosecutes the cure to completion); or
(x) there is a default by Tenant under (A) that certain Lease Agreement of even or near date herewith between Tenant and ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, LLC pertaining to property located in the Town of Paris, County of Oxford, and State of Maine; and/or (B) that certain Lease Agreement of even or near date herewith between Tenant and 56 Mechanic Falls Road, LLC, pertaining to property located in the Town of Oxford, County of Oxford, and State of Maine, and any such default continues beyond the expiration of applicable notice and cure periods (if any), then, and in any of said cases (notwithstanding any license of any former breach of covenant or waiver of the benefit hereof or consent in a former instance), and without limitation of any other remedies that might be available to it Landlord under applicable this Lease, at law, or in addition equity, Landlord lawfully may, immediately or at any time thereafter, terminate this Lease by sending written notice of termination to Tenant, or, subject to compliance with applicable Laws, enter into and upon the Leased Premises or any part thereof in the name of the whole and repossess the same as of its former estate, and expel Tenant and those described claiming through or under it and remove it or their effects without being deemed guilty of any manner of trespass, in each case without prejudice to any rights or remedies which might otherwise be available to Landlord for collection of Rent and other damages for breach of covenant, and upon entry as aforesaid or upon sending of such notice, this section belowLease shall terminate.
(ab) Each Grantor agreesWithout limiting other remedies of Landlord at law or in equity for any breach of or on account of termination of this Lease, Tenant covenants that in case of Defaultsuch termination under sub-section (a) of this Section, (i) Tenant shall pay to Landlord the unpaid Rent owed to Landlord through the time of termination, plus interest thereon at the Administrative Agent’s request, to assemble, at its expense, all its Inventory and other Goods (other than Fixtures) at a convenient place or places acceptable to rate of 18% per annum from the Administrative Agent, date the same was due until paid; and (ii) at the Administrative Agent’s requestelection of Landlord, to execute all such documents and do all such other things which may be necessary or desirable in order to enable the Administrative Agent or its nominee to be registered as owner of the Intellectual Property with any competent registration authority.either:
(b1) Notice the present value of a sum which, at the intended disposition time of the Collateral may be given by first-class mail, hand-delivery (through a delivery service or otherwise), facsimile or E-mail, and shall be deemed such termination of this Lease is equal to have been “sent” upon deposit in the U.S. Mails with adequate postage properly affixed, upon delivery to an express delivery service or upon the electronic submission through telephonic or Internet services, as applicable. Each Grantor hereby agrees and acknowledges that (i) with respect to collateral that is: (A) perishable or threatens to decline speedily in value, or the aggregate of the Rent which would have been payable by Tenant for the period commencing upon such termination of this Lease and continuing through the date this Lease would have terminated had there been no default by Tenant; minus (B) is the fair market rental value of the Leased Premises (after deducting reasonable projections for Landlord’s costs and expenses of re-letting the Leased Premises, including advertising expenses, brokerage commissions, reasonable attorneys’ fees, and commercially reasonable costs of repairing, renovating, or otherwise altering the Leased Premises to suit the new tenant); or
(2) for the period of time commencing upon such termination of this Lease and continuing through the date this Lease would have terminated had there been no default by Tenant hereunder, the difference, if any, between the Rent which would have been due had there been no such termination and the amount being received by Landlord as rent from a type customarily sold on a recognized market (replacement Tenant of Leased Premises, if any. In addition, Tenant shall pay to Landlord all costs and expenses of such re-letting, including but not limited toadvertising expenses, Investment Property)brokerage commissions, no notice reasonable attorneys’ fees, and commercially reasonable costs of disposition need be given; and (ii) with respect repairing, renovating, or otherwise altering the Leased Premises to Collateral not described in clause (i) above, notification sent after suit the occurrence of and during the continuance of a Default and ten days before any proposed disposition provides notice within a reasonable time before dispositionnew tenant.
(c) Each Grantor hereby agrees and acknowledges that a commercially reasonable disposition If Tenant shall default in the performance or observance of Inventoryany covenant, Equipment, Computer Hardware and Softwareagreement, or Intellectual Property may condition in this Lease contained on its part to be performed or observed and shall not cure any such default as provided herein, Landlord may, at its option, without waiving any claim for damages or any other right or remedy for breach of this Lease, at any time thereafter, cure such default. Any amount paid or any liability incurred by lease or license of, Landlord in addition to the sale of, such Collateral. Each Grantor further agrees and acknowledges that a disposition: (i) made in the usual manner on any recognized market, or (ii) a disposition at the price current in any recognized market at the time of disposition, or (iii) a disposition in conformity with reasonable commercial practices among dealers in the type of property subject to the disposition; so doing shall be deemed commercially reasonablepaid or incurred for the account of Tenant, and Tenant agrees to immediately reimburse Landlord therefor, as additional Rent.
(d) Any cash proceeds of any disposition Tenant shall pay all reasonable attorneys’ fees incurred by the Administrative Agent of any of the Collateral shall be applied by the Administrative Agent to payment of expenses Landlord in connection with the Collateral, including reasonable attorneys’ fees and legal expenses, and thereafter to enforcement of Tenant’s obligations under this Lease.
(e) Landlord shall in no event be in default in the payment performance of any of its obligations hereunder unless and all until Landlord shall have failed to perform, or failed diligently to attempt to perform, such obligations within thirty (30) days or such additional time as is reasonably required to correct any such default after notice by Tenant to Landlord properly specifying wherein Landlord has failed to perform any such obligation.
(f) In no event shall Landlord be liable to Tenant for incidental, consequential, or punitive damages in connection with any matter arising out of this Lease or the Leased Premises. Without in any way limiting or impairing the effect of the Liabilities other provisions of this Lease, Tenant shall neither assert nor seek to enforce any claim arising out of this Lease or out of the use or occupancy of the Leased Premises against Landlord, its shareholders, directors, officers, employees, or agents, or any of its or their assets other than the value of Landlord’s interest in the order Leased Premises and Tenant agrees to look solely to such interest and insurance coverage for the satisfaction of application set forth in Section 8.03 any claim arising out of this Lease or out of the Credit Agreement, and thereafter any surplus will be paid promptly to use or occupancy of the Grantor. The Administrative Agent need not apply or pay over for application noncash proceeds of collection and enforcement unless: (i) the failure to do so would be commercially unreasonable and (ii) the affected Grantor has provided the Administrative Agent with a written demand to apply or pay over such noncash proceeds on such basisLeased Premises.
Appears in 2 contracts
Sources: Lease Agreement (ATRM Holdings, Inc.), Lease Agreement (Digirad Corp)
Default. (a) Whenever a Default shall be existingexists, the Administrative Agent may exercise from time to time any and all rights and remedies available to it under the UCC, under any other applicable law, law and in addition to those described the subsections set forth below in this section belowSection 7.
(ab) Each Grantor Debtor agrees, in case of Default, (i) at the Administrative Agent’s request, to assemble, at its expense, all its Inventory and other Goods (other than Fixtures) at a convenient place or places acceptable to the Administrative Agent, and (ii) at the Administrative Agent’s request, to execute all such documents and do all such other things which may be necessary or desirable in order to enable the Administrative Agent or its nominee to be registered as owner of the Intellectual Property with any competent registration authority.
(bc) Notice of the intended disposition of the Collateral may be given by first-class mail, hand-delivery (through a delivery service or otherwise), facsimile or E-mail, and shall be deemed to have been “sent” upon deposit in the U.S. Mails with adequate postage properly affixed, upon delivery to an express delivery service or upon the electronic submission through telephonic or Internet services, as applicable. Each Grantor Debtor hereby agrees and acknowledges that (i) with respect to collateral Collateral that is: (A) perishable or threatens to decline speedily in value, value or (B) is of a type customarily sold on a recognized market (including but not limited to, Investment Property), no notice of disposition need be given; and (ii) with respect to Collateral not described in clause (i) above, notification sent after the occurrence of and during the continuance of a Default default and ten days before any proposed disposition provides notice within with a reasonable time before disposition.
(cd) Each Grantor Debtor hereby agrees and acknowledges that a commercially reasonable disposition of Inventory, Equipment, Computer Hardware and Software, Software or Intellectual Property may be by lease or license of, in addition to the sale of, such Collateral. Each Grantor Debtor further agrees and acknowledges that a disposition: disposition (i) made in the usual manner on any recognized market, or (ii) a disposition at the price current in any recognized market at the time of disposition, disposition or (iii) a disposition in conformity with reasonable commercial practices among dealers in the type of property subject to the disposition; shall disposition shall, in each case, be deemed commercially reasonable.
(de) Any cash proceeds of any disposition by the Administrative Agent of any of the Collateral shall be applied by the Administrative Agent to payment of expenses in connection with the Collateral, including reasonable attorneys’ fees Costs and legal expensesExpenses, and thereafter to the payment of any and all of the Liabilities in the such order of application set forth in Section 8.03 of as the Credit AgreementAdministrative Agent may from time to time elect, and thereafter any surplus will be paid promptly to the Grantorapplicable Debtor or as a court of competent jurisdiction shall direct. The Administrative Agent need not apply or pay over for application noncash proceeds of collection and enforcement unless: unless (i) the failure to do so would be commercially unreasonable and (ii) the affected Grantor applicable Debtor has provided the Administrative Agent with a written demand to apply or pay over such noncash proceeds on such basis.
Appears in 2 contracts
Sources: Credit Agreement (Middleby Corp), Security Agreement (Middleby Corp)
Default. Whenever a (a) Unless an Event of Default shall have occurred and be existingcontinuing, the Administrative Collateral Agent shall not be obligated to take any action under this Agreement or any of the Security Documents, except for the performance of such duties as are specifically set forth herein or therein.
(b) If any Event of Default shall have occurred and be continuing with respect to CL&P or WMECO, the Collateral Agent shall, at the request of, or may with the consent of, the Lenders entitled to make such request, exercise from time in respect of the Collateral FMBs of such Borrower, in addition to time any other rights and remedies provided for herein or otherwise available to it, all the rights and remedies available to it the Collateral Agent under the applicable law, in addition to those described in this section below.
(a) Each Grantor agrees, in case of Default, (i) at Security Documents and under the Administrative Agent’s request, to assemble, at its expense, all its Inventory and other Goods (other than Fixtures) at a convenient place Loan Documents or places acceptable otherwise available to the Administrative Collateral Agent, and (ii) at the Administrative Agent’s request, to execute all such documents and do all such other things which may be necessary or desirable in order to enable the Administrative Agent or its nominee to be registered as owner of the Intellectual Property with any competent registration authority.
(b) Notice of the intended disposition of the Collateral may be given by first-class mail, hand-delivery (through a delivery service or otherwise), facsimile or E-mail, and shall be deemed to have been “sent” upon deposit in the U.S. Mails with adequate postage properly affixed, upon delivery to an express delivery service or upon the electronic submission through telephonic or Internet services, as applicable. Each Grantor hereby agrees and acknowledges that (i) with respect to collateral that is: (A) perishable or threatens to decline speedily in value, or (B) is of a type customarily sold on a recognized market (including but not limited to, Investment Property), no notice of disposition need be given; and (ii) with respect to Collateral not described in clause (i) above, notification sent after the occurrence of and during the continuance of a Default and ten days before any proposed disposition provides notice within a reasonable time before disposition.
(c) Each Grantor hereby agrees Subject to paragraph (e) below, the rights and acknowledges that a commercially reasonable disposition remedies of Inventory, Equipment, Computer Hardware the Collateral Agent with respect to CL&P and Software, or Intellectual Property may be by lease or license of, in addition WMECO shall include (without limitation of the other rights and remedies available to the sale ofCollateral Agent under the Loan Documents or otherwise available to it), such Collateral. Each Grantor further agrees and acknowledges that a disposition: (i) made in the usual manner on any recognized marketright to cause all or a portion of the Collateral FMBs (including without limitation all accrued interest thereon) of such Borrower to become immediately due and payable, or (ii) a disposition at the price current in any recognized market at right to collect all amounts payable by such Borrower under the time Collateral FMBs for the benefit of dispositionthe Lenders, or and (iii) the right to exercise all rights and remedies of a disposition in conformity with reasonable commercial practices among dealers in "holder" of a Collateral FMB under the type applicable First Mortgage Indenture of property subject to the disposition; shall be deemed commercially reasonablesuch Borrower.
(d) Any cash proceeds of Notwithstanding any disposition written instructions received by the Administrative Collateral Agent of any of the Collateral shall be applied by the Administrative Agent pursuant to payment of expenses in connection with the Collateral, including reasonable attorneys’ fees and legal expensesparagraph (b) above, and thereafter to the payment of any and all of the Liabilities except as expressly provided in the order of application set forth in Section 8.03 of the Credit Agreement, the Collateral Agent shall not release any Collateral or portion thereof or lien thereon without the consent of the Lenders.
(e) It is understood that the actual indebtedness of any Borrower evidenced by the Collateral FMBs of such Borrower shall be limited to, and thereafter in no event exceed, the Secured Obligations of such Borrower from time to time outstanding; that at no time shall any surplus will claim be paid promptly made on the Collateral FMBs of such Borrower in excess of the aggregate unpaid Secured Obligations of such Borrower outstanding at such time and that, to the Grantor. The Administrative extent the actual indebtedness of such Borrower evidenced by the Collateral FMBs of such Borrower exceed the Secured Obligations of such Borrower, neither the Collateral Agent need not apply nor any Lender shall have any right under, or pay over for application noncash proceeds right to exercise any right granted to the holders of collection and enforcement unless: (i) such excess Collateral FMBs of such Borrower under, the failure to do so would be commercially unreasonable and (ii) the affected Grantor has provided the Administrative Agent with a written demand to apply or pay over such noncash proceeds on such basisapplicable First Mortgage Indenture.
Appears in 2 contracts
Sources: Credit Agreement (Northeast Utilities System), Collateral Agency Agreement (Northeast Utilities System)
Default. Whenever a Default shall be existing, the Administrative Agent may exercise from time to time any and all rights and remedies available to it under applicable law, in addition to those described in this section below.
(a) Each Grantor agrees, in case of Default, (i) at the Administrative Agent’s request, to assemble, at its expense, all its Inventory and other Goods (other than Fixtures) at a convenient place or places acceptable to the Administrative Agent, and (ii) at the Administrative Agent’s request, to execute all such documents and do all such other things which may be necessary or desirable in order to enable the Administrative Agent or its nominee to be registered as owner of the Intellectual Property with any competent registration authority.
(b) Notice of the intended disposition of the Collateral may be given by first-class mail, hand-delivery (through a delivery service or otherwise), facsimile or E-mail, and Customer shall be deemed to have been be in default should Customer in any way fail to pay any amount when due hereunder, or to perform, observe or keep any provision of this Rental Contract, or should the Customer become “sentinsolvent” (as defined herein), or should Monolithic anticipate the Customer may become insolvent or that Customer may otherwise become in default. If Customer is in default, Monolithic may do any one or more of the following; (a) terminate the Rental Period; (b) declare the entire amounts due hereunder immediately due and payable and commence legal action therefore; (c) cause Monolithic’s employees or agents, without notice or legal process, to enter upon deposit Customer’s property to take all action necessary to retake and repossess the Equipment, in which event Customer waives all claims for damages and losses, physical and pecuniary, caused thereby and shall pay all costs and expenses incurred by Monolithic in retaking and repossessing; or (d) pursue any other remedies available by law. The Customer shall be considered “insolvent” if the U.S. Mails with adequate postage properly affixed, upon delivery to an express delivery service or upon the electronic submission through telephonic or Internet services, as applicable. Each Grantor hereby agrees and acknowledges that Customer (i) with respect to collateral that is: (A) perishable or threatens to decline speedily in valueshall generally not pay, or (B) is of a type customarily sold on a recognized market (including but not limited to, Investment Property), no notice of disposition need shall be given; and (ii) with respect unable to Collateral not described in clause (i) above, notification sent after the occurrence of and during the continuance of a Default and ten days before any proposed disposition provides notice within a reasonable time before disposition.
(c) Each Grantor hereby agrees and acknowledges that a commercially reasonable disposition of Inventory, Equipment, Computer Hardware and Softwarepay, or Intellectual Property may be by lease shall admit its inability or license of, in addition anticipated inability to the sale of, pay its debts as such Collateral. Each Grantor further agrees and acknowledges that a disposition: (i) made in the usual manner on any recognized market, debts become due; or (ii) shall make an assignment for the benefit of creditors, or petition or apply to any tribunal for the appointment of a disposition at the price current in any recognized market at the time custodian, receiver, or trustee for it or a substantial part of disposition, its assets; or (iii) a disposition in conformity with reasonable commercial practices among dealers in the type shall commence any proceeding under any bankruptcy, reorganization, arrangement, readjustment of property subject to the disposition; shall be deemed commercially reasonable.
(d) Any cash proceeds debts, dissolution, or liquidation law or statute of any disposition by jurisdiction, whether now or hereafter in effect; or (iv) shall have had any such petition or application filed or such proceeding commenced against it in which an order for relief is entered or an adjustment or application is made; or (v) shall take any action indicating its consent to, approval of, or acquiescence in any such petition, application, proceeding, or order for relief or the Administrative Agent appointment of a custodian, receiver, or trustee for all or any substantial part of the Collateral shall be applied by the Administrative Agent its properties. Further, Customer agrees and hereby authorizes Monolithic to payment of expenses charge any amount due Monolithic against any credit card used in connection with the Collateral, including reasonable attorneys’ fees and legal expenses, and thereafter to the payment of any and all of the Liabilities in the order of application set forth in Section 8.03 of the Credit Agreement, and thereafter any surplus will be paid promptly to the Grantor. The Administrative Agent need not apply rental or pay over for application noncash proceeds of collection and enforcement unless: (i) the failure to do so would be commercially unreasonable and (ii) the affected Grantor has provided the Administrative Agent with a written demand to apply or pay over such noncash proceeds credit card put on such basisfile.
Appears in 2 contracts
Sources: Rental Agreement, Rental Contract
Default. Whenever (a) In the event that:
(i) Tenant shall fail to pay when due the Rent or any other sums payable hereunder when due and such failure remains uncured for five (5) days after Landlord delivers a Default default notice to Tenant for such failure to pay rent; or
(ii) any petition in bankruptcy shall be existingfiled by Tenant or any guarantor hereof or other petition or proceeding shall be filed or commenced by Tenant or any guarantor hereof to declare Tenant insolvent, or to delay, reduce or modify Tenant’s or any such guarantor’s debts or obligations, or Tenant or any such guarantor admits its inability to pay its debts, or Tenant or any such guarantor makes an assignment for the Administrative Agent may exercise benefit of creditors; or
(iii) any bankruptcy petition or proceeding shall be filed against Tenant or any guarantor hereof or to otherwise declare Tenant or any guarantor hereof bankrupt or insolvent or to delay, reduce or modify Tenant’s or any such guarantor’s debts or obligations or a receiver, trustee or other similar type of appointment or court appointee or nominee is appointed for Tenant or any such guarantor or any of the property of Tenant or any such guarantor, and such petition, appointment or proceeding is not dismissed within sixty (60) days after it is commenced; or
(iv) the leasehold interest of Tenant is levied upon or attached by process of law, including the filing of any mechanic’s lien, and such levy, lien, or attachment is not dissolved within thirty (30) days after it is made; or
(v) Tenant shall abandon the Leased Premises during the Lease Term; or
(vi) Tenant shall assign this Lease or sublet any portion of the Leased Premises, or attempt to do either of the foregoing, in violation of this Lease; or
(vii) Tenant violates or fails to observe or comply with any Laws applicable to the Leased Premises, Tenant’s use thereof, or Tenant's operations, activities or conduct of business at or from time the Leased Premises; or
(viii) any other event, occurrence, act, or omission described in any provision of this Lease as constituting a “default” or an “Event of Default” occurs;
(ix) Tenant shall neglect or fail to time perform or observe any of the other covenants, terms, provisions or conditions contained in this Lease and, if the neglect or failure is capable of being cured, such neglect or failure continues for more than thirty (30) days after written notice thereof (provided, however, that if such neglect or failure is capable of being cured, but is not capable of being cured within said thirty (30) day period, then Tenant shall have such additional period of time, not to exceed an additional sixty (60) days, as is reasonably necessary to cure the same provided Tenant commences to cure within said thirty (30) day period and all rights diligently and continuously prosecutes the cure to completion); or
(x) there is a default by Tenant under (A) that certain Lease Agreement of even or near date herewith between Tenant and ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇, LLC pertaining to property located in the Town of Waterford, County of Oxford, and State of Maine; and/or (B) that certain Lease Agreement of even or near date herewith between Tenant and 56 Mechanic Falls Road, LLC pertaining to property located in the Town of Oxford, County of Oxford, and State of Maine, and any such default continues beyond the expiration of applicable notice and cure periods (if any), then, and in any of said cases (notwithstanding any license of any former breach of covenant or waiver of the benefit hereof or consent in a former instance), and without limitation of any other remedies that might be available to it Landlord under applicable this Lease, at law, or in addition equity, Landlord lawfully may, immediately or at any time thereafter, terminate this Lease by sending written notice of termination to Tenant, or, subject to compliance with applicable Laws, enter into and upon the Leased Premises or any part thereof in the name of the whole and repossess the same as of its former estate, and expel Tenant and those described claiming through or under it and remove it or their effects without being deemed guilty of any manner of trespass, in each case without prejudice to any rights or remedies which might otherwise be available to Landlord for collection of Rent and other damages for breach of covenant, and upon entry as aforesaid or upon sending of such notice, this section belowLease shall terminate.
(ab) Each Grantor agreesWithout limiting other remedies of Landlord at law or in equity for any breach of or on account of termination of this Lease, Tenant covenants that in case of Defaultsuch termination under sub-section (a) of this Section, (i) Tenant shall pay to Landlord the unpaid Rent owed to Landlord through the time of termination, plus interest thereon at the Administrative Agent’s request, to assemble, at its expense, all its Inventory and other Goods (other than Fixtures) at a convenient place or places acceptable to rate of 18% per annum from the Administrative Agent, date the same was due until paid; and (ii) at the Administrative Agent’s requestelection of Landlord, to execute all such documents and do all such other things which may be necessary or desirable in order to enable the Administrative Agent or its nominee to be registered as owner of the Intellectual Property with any competent registration authority.either:
(b1) Notice the present value of a sum which, at the intended disposition time of the Collateral may be given by first-class mail, hand-delivery (through a delivery service or otherwise), facsimile or E-mail, and shall be deemed such termination of this Lease is equal to have been “sent” upon deposit in the U.S. Mails with adequate postage properly affixed, upon delivery to an express delivery service or upon the electronic submission through telephonic or Internet services, as applicable. Each Grantor hereby agrees and acknowledges that (i) with respect to collateral that is: (A) perishable or threatens to decline speedily in value, or the aggregate of the Rent which would have been payable by Tenant for the period commencing upon such termination of this Lease and continuing through the date this Lease would have terminated had there been no default by Tenant; minus (B) is the fair market rental value of the Leased Premises (after deducting reasonable projections for Landlord’s costs and expenses of re-letting the Leased Premises, including advertising expenses, brokerage commissions, reasonable attorneys’ fees, and commercially reasonable costs of repairing, renovating, or otherwise altering the Leased Premises to suit the new tenant); or
(2) for the period of time commencing upon such termination of this Lease and continuing through the date this Lease would have terminated had there been no default by Tenant hereunder, the difference, if any, between the Rent which would have been due had there been no such termination and the amount being received by Landlord as rent from a type customarily sold on a recognized market (replacement Tenant of Leased Premises, if any. In addition, Tenant shall pay to Landlord all costs and expenses of such re-letting, including but not limited toadvertising expenses, Investment Property)brokerage commissions, no notice reasonable attorneys’ fees, and commercially reasonable costs of disposition need be given; and (ii) with respect repairing, renovating, or otherwise altering the Leased Premises to Collateral not described in clause (i) above, notification sent after suit the occurrence of and during the continuance of a Default and ten days before any proposed disposition provides notice within a reasonable time before dispositionnew tenant.
(c) Each Grantor hereby agrees and acknowledges that a commercially reasonable disposition If Tenant shall default in the performance or observance of Inventoryany covenant, Equipment, Computer Hardware and Softwareagreement, or Intellectual Property may condition in this Lease contained on its part to be performed or observed and shall not cure any such default as provided herein, Landlord may, at its option, without waiving any claim for damages or any other right or remedy for breach of this Lease, at any time thereafter, cure such default. Any amount paid or any liability incurred by lease or license of, Landlord in addition to the sale of, such Collateral. Each Grantor further agrees and acknowledges that a disposition: (i) made in the usual manner on any recognized market, or (ii) a disposition at the price current in any recognized market at the time of disposition, or (iii) a disposition in conformity with reasonable commercial practices among dealers in the type of property subject to the disposition; so doing shall be deemed commercially reasonablepaid or incurred for the account of Tenant, and Tenant agrees to immediately reimburse Landlord therefor, as additional Rent.
(d) Any cash proceeds of any disposition Tenant shall pay all reasonable attorneys’ fees incurred by the Administrative Agent of any of the Collateral shall be applied by the Administrative Agent to payment of expenses Landlord in connection with the Collateral, including reasonable attorneys’ fees and legal expenses, and thereafter to enforcement of Tenant’s obligations under this Lease.
(e) Landlord shall in no event be in default in the payment performance of any of its obligations hereunder unless and all until Landlord shall have failed to perform, or failed diligently to attempt to perform, such obligations within thirty (30) days or such additional time as is reasonably required to correct any such default after notice by Tenant to Landlord properly specifying wherein Landlord has failed to perform any such obligation.
(f) In no event shall Landlord be liable to Tenant for incidental, consequential, or punitive damages in connection with any matter arising out of this Lease or the Leased Premises. Without in any way limiting or impairing the effect of the Liabilities other provisions of this Lease, Tenant shall neither assert nor seek to enforce any claim arising out of this Lease or out of the use or occupancy of the Leased Premises against Landlord, its shareholders, directors, officers, employees, or agents, or any of its or their assets other than the value of Landlord’s interest in the order Leased Premises and Tenant agrees to look solely to such interest and insurance coverage for the satisfaction of application set forth in Section 8.03 any claim arising out of this Lease or out of the Credit Agreement, and thereafter any surplus will be paid promptly to use or occupancy of the Grantor. The Administrative Agent need not apply or pay over for application noncash proceeds of collection and enforcement unless: (i) the failure to do so would be commercially unreasonable and (ii) the affected Grantor has provided the Administrative Agent with a written demand to apply or pay over such noncash proceeds on such basisLeased Premises.
Appears in 2 contracts
Sources: Lease Agreement (ATRM Holdings, Inc.), Lease Agreement (Digirad Corp)
Default. Whenever a Default shall be existing, the Administrative Agent may exercise from time to time any and all rights and remedies available to it under applicable law, in addition to those described in this section below.
(a) Each Grantor agreesIn the event that, prior to the Closing but after the expiration of the Due Diligence Period, Purchaser obtains actual knowledge of any information (from whatever source, including, without limitation, the Disclosure Materials, as a result of any inspections of the Property, by disclosure from Seller or Seller’s agents and employees or otherwise) that contradicts in case any material manner any of Defaultthe representations and warranties of Seller contained herein, renders any of such representations and warranties materially untrue or incorrect, Purchaser shall have the right, exercisable by giving written notice to Seller prior to the Closing, either (i) at the Administrative Agent’s requestto terminate this Agreement, to assemble, at its expense, all its Inventory and other Goods in which case neither party shall have any further rights or obligations hereunder (other than Fixtures) at a convenient place or places acceptable except as may be expressly provided to the Administrative Agentcontrary elsewhere in this Agreement), and any money (including, without limitation, the Deposit) or documents in escrow shall be returned to the party depositing the same, or (ii) at to accept the Administrative Agent’s requestProperty notwithstanding such information and nevertheless consummate the transaction contemplated by this Agreement, and in either case Seller shall have no liability with respect to execute all such documents information and/or any of such representations and do all such warranties contradicted or made untrue or incorrect thereby. In the event, prior to the Closing, Seller materially defaults in any other things manner under this Agreement, Purchaser shall have the right, exercisable by giving written notice to Seller prior to the Closing, either (i) to terminate this Agreement, in which case neither party shall have any further rights or obligations hereunder (except as may be necessary expressly provided to the contrary elsewhere in this Agreement), and any money (including, without limitation, the Deposit and all interest accrued thereon) or desirable documents in order escrow shall be returned to enable the Administrative Agent party depositing the same, or (ii) to accept the Property notwithstanding such default by waiving such default and nevertheless consummating the transaction contemplated by this Agreement, in which event thereafter Seller shall have no liability with respect to such default. In the event Seller’s default consists of or results in Seller’s refusal, failure or inability to convey the Property, Purchaser’s sole remedy shall be to elect either (i) to bring an action for specific performance; provided, however, that in any such action, Purchaser shall not be entitled to any monetary damages, or (ii) to terminate this Agreement, in which case neither party shall have any further rights or obligations hereunder (except as may be expressly provided to the contrary elsewhere in this Agreement), and any money (including, without limitation, the Deposit and all interest accrued thereon) or documents in escrow shall be returned to the party depositing the same and Seller shall reimburse Purchaser’s out-of-pocket expenses not to exceed Seventy-Five Thousand Dollars ($75,000.00). Any suit for specific performance under this Section shall be actionable and enforceable if and only if Purchaser delivers written notice to Seller of its nominee intention to file a suit for specific performance against Seller within thirty (30) days after the date on which the Closing shall have failed to occur. Furthermore, as an inducement to Seller to enter into this Agreement, Purchaser agrees that Purchaser shall be registered as owner deemed to have irrevocably elected to waive its right to file a suit for specific performance under this Section if such suit is not filed by Purchaser and served on Seller within sixty (60) days after the date on which the Closing shall have failed to occur. In the event of any breach or default by Seller, which occurs or which Purchaser first discovers after the Closing, Purchaser shall be limited to recovering its actual damages but not any consequential damages. Each of Purchaser and Seller also acknowledges and agrees that the occurrence of any event of default by the seller described in the second grammatical paragraph of Section 17(a) of any of the Intellectual Property with any competent registration authorityOther Sales Contracts shall constitute a material event of default by Seller hereunder and shall entitle Purchaser to exercise its remedies under this Section.
(b) Notice In the event the transaction herein provided shall not close solely by reason of Purchaser’s default, the Deposit, plus any interest accrued thereon, shall be paid to and retained by Seller as liquidated damages. The amount paid to and retained by Seller as liquidated damages shall be Seller’s sole and exclusive remedy if Purchaser fails to close the purchase of the intended disposition of the Collateral may be given by first-class mail, hand-delivery (through a delivery service or otherwise), facsimile or E-mail, Property when it is obligated to do so. The parties hereto expressly agree and shall be deemed to have been “sent” upon deposit acknowledge that Seller’s actual damages in the U.S. Mails with adequate postage properly affixed, upon delivery to an express delivery service or upon the electronic submission through telephonic or Internet services, as applicable. Each Grantor hereby agrees and acknowledges that (i) event of a default by Purchaser hereunder with respect to collateral its obligation to purchase the Property would be extremely difficult, if not impossible, to ascertain and that is: (A) perishable the amount of the deposit plus any interest accrued thereon is a fair estimate of such damages, which has been agreed to in an effort to cause the amount of such damages to be certain. The payment of such amount as liquidated damages is not intended as a forfeiture or threatens penalty, but is intended to decline speedily constitute liquidated damages to Seller. Notwithstanding anything to the contrary contained in value, or (B) is of a type customarily sold on a recognized market (including but not limited to, Investment Propertythis Section 17(b), no notice Seller and Purchaser agree that this liquidated damages provision is not intended and should not be deemed or construed to limit in any way Purchaser’s indemnity obligations under Sections 5, 18 and 20(j). Each of disposition need be given; Purchaser and (ii) with respect Seller also acknowledges and agrees that in the event the transaction contemplated under any of the Other Sales Contracts shall not close solely by reason of the Purchaser’s default thereunder, such default shall constitute a material event of default by Purchaser hereunder and shall entitle Seller to Collateral not described in clause (i) above, notification sent after the occurrence of and during the continuance of a Default and ten days before any proposed disposition provides notice within a reasonable time before dispositionexercise its remedies under this Section.
(c) Each Grantor hereby Purchaser acknowledges and agrees and acknowledges that its recourse against Seller under this Agreement for a commercially reasonable disposition of Inventory, Equipment, Computer Hardware and Software, default by Seller hereunder occurring prior to or Intellectual Property may be by lease or license of, in addition at the Closing is limited to the sale ofremedies set forth in Section 17 hereof. In connection with any post-closing remedy which Purchaser may have against Seller for any matter, including, without limitation, any breech of any covenant, indemnity or other matter arising under this Agreement that survives Closing or any documents executed by Seller pursuant hereto or in connection herewith, such Collateral. Each Grantor further agrees remedy shall be limited to actual damages (including, without limitation, reasonable legal fees and acknowledges that a disposition: (iexpenses) made incurred by Purchaser not to exceed $1,000,000 in the usual manner aggregate for any and all claims; provided, however, that the foregoing limitation on any recognized marketliability shall not apply to Seller’s obligations under Sections 13, 18 or (ii) a disposition at 20(j). For the price current in any recognized market at avoidance of doubt, the time of disposition, or (iii) a disposition in conformity with reasonable commercial practices among dealers in the type of property subject foregoing cap on liability under this Agreement shall not apply to the disposition; sellers’ liability under the Other Sales Contracts, each of which shall be deemed commercially reasonableset forth its own cap in liability thereunder.
(d) Any cash proceeds In no event shall Purchaser be entitled to seek or obtain any other damages of any disposition kind, including, without limitation, consequential, speculative, indirect or punitive damages, and Purchaser hereby waives any right to any of these. Any claim or claims or action or actions at law for actual damages brought after the Closing by Purchaser against Seller based upon a misrepresentation or a breach of a covenant, indemnity or warranty under this Agreement or under any documents executed by Seller pursuant hereto or in connection herewith shall be actionable or enforceable if and only if written notice of such claim or claims is delivered by Purchaser to Seller no later than the Administrative Agent last day of the Survival Period, and Seller and Purchaser acknowledge and agree that the Survival Period is reasonable and in compliance with the “reasonable” standard required and set forth in the Notice Statute. Additionally, no such claim or action at law may be filed more than two (2) years and one (1) day after the date of Closing, Purchaser waiving the right to file any such claim or action at law at any later date. In no event shall Purchaser seek or attempt to obtain any recovery or judgment against any of Seller’s partners, members or owners (or their constituent partners, members or owners) or any director, officer, member, employee or shareholder of any of the Collateral foregoing.
(e) The provisions of Section 17 shall be applied survive the Closing or any termination of this Agreement. The term “survive” as used in the preceding sentence, and using a portion of the language of the Notice Statute, shall mean that Purchaser may give written notice, at any time and from time to time after the Closing, of any claim or claims for actual damages prior to the expiration of the Survival Period as a condition precedent to its right to ▇▇▇ Seller for any misrepresentation or breach of a covenant, indemnity or warranty under this Agreement or under any documents executed by the Administrative Agent to payment of expenses Seller pursuant hereto or in connection with the Collateral, including reasonable attorneys’ fees and legal expensesherewith, and thereafter to such claims and right shall not merge into the payment of Deed or any documents executed by Seller pursuant hereto or in connection herewith, but such claims and all of right shall continue after the Liabilities in Closing throughout the order of application set forth in Section 8.03 of the Credit Agreement, and thereafter any surplus will be paid promptly to the Grantor. The Administrative Agent need not apply or pay over for application noncash proceeds of collection and enforcement unless: (i) the failure to do so would be commercially unreasonable and (ii) the affected Grantor has provided the Administrative Agent with a written demand to apply or pay over such noncash proceeds on such basisSurvival Period.
Appears in 2 contracts
Sources: Purchase and Sale Agreement (KBS Real Estate Investment Trust III, Inc.), Purchase and Sale Agreement (KBS Real Estate Investment Trust III, Inc.)
Default. Whenever a Default Each of the following shall be existing, the Administrative Agent may exercise from time deemed to time any be an event of default by Tenant and all rights and remedies available to it under applicable law, in addition to those described in this section below.a breach by Tenant hereunder:
(a) Each Grantor agreesthe filing by or against Tenant or any assignee or guarantor of this Lease in any court pursuant to any statute either of the United States or of any state, of a petition in case bankruptcy or insolvency or a petition for reorganization or for the appointment of Defaulta receiver or trustee of all or a portion of the property of Tenant or such assignee or guarantor or the making by Tenant or such assignee or guarantor of an assignment for the benefit of creditors, or the petitioning for or entering into an arrangement pursuant to any statute either of the United States or of any state by Tenant or such assignee or guarantor or the taking of this Lease under any post-judgment writ of execution or attachment, or the issuance of any post-judgment, execution or attachment against Tenant or such assignee or guarantor or any of their property, or the dissolution or liquidation or commencement of any action or proceeding for the dissolution or liquidation of Tenant or such assignee or guarantor, provided, however, that Tenant shall not be deemed to be in default hereunder by reason of the filing of any petition for reorganization under Chapter 11 of the Bankruptcy Act if, and for so long as (ix) at Tenant shall pay to Landlord, as, when, and in the Administrative Agent’s request, amount(s) due and payable pursuant to assemble, at its expensethe terms of this Lease, all its Inventory Rent and other Goods (other than Fixtures) at a convenient place or places acceptable Additional Rent which shall accrue and become due and payable prior to the Administrative Agentfiling of such petition and all Rent which shall accrue and become due and payable subsequent to the filing of such petition, and (iiy) at Tenant shall operate its business in the Administrative Agent’s requestPremises in the same manner as it had been operated prior to the filing of such reorganization petition, to execute and (z) Tenant shall, in all such documents other respects, pay all other sums and do perform all such other things which may be necessary or desirable in order to enable the Administrative Agent or duties and obligations on its nominee part to be registered as owner of the Intellectual Property with any competent registration authority.paid and performed under this Lease; or
(b) Notice the passing of this Lease to or the devolution of this Lease upon any person, firm or entity other than Tenant or a permitted assignee or subtenant, whether by operation of law or otherwise; or
(c) the Leased Premises being abandoned within the meaning of Section 83.05 of the intended disposition Florida Statutes; or
(d) the Leased Premises becoming vacant or deserted at any time prior to the first anniversary of the Collateral may be Commencement Date and remaining so for ten (10) or more consecutive days; or
(e) the Leased Premises becoming vacant or deserted at any time subsequent to the first anniversary of the Commencement Date and remaining so for thirty (30) or more days; or
(f) default by Tenant in the payment of all Rent or any part thereof as and when same is due, or in the making of any other payment herein provided for and the continuation of such default for a period of five (5) days after Landlord shall have given by first-class mailTenant a written notice specifying the default in question, hand-delivery provided however that if Tenant shall fail, refuse or neglect, for any reason, to pay any portion of any Rent or other sum due hereunder on more than two (through a delivery service or otherwise2) occasions in any period of twelve (12) consecutive months during the term of this Lease, then, notwithstanding that such prior defaults shall have been cured within the period after notice provided in this SubParagraph 32 (f), facsimile or E-mail, and any further similar default during such twelve (12) month period shall be deemed to have been “sent” upon deposit in the U.S. Mails with adequate postage properly affixed, upon delivery to an express delivery service or upon the electronic submission through telephonic or Internet services, as applicable. Each Grantor hereby agrees be deliberate and acknowledges that (i) shall constitute a material event of default hereunder with respect to collateral that is: which no notice or grace period shall be granted or available to Tenant; or
(Ag) perishable or threatens to decline speedily default by Tenant in valuethe performance of any other duty, obligation, covenant, or agreement on Tenant’s part to be performed under this Lease and the continuation of such default for thirty (B30) is days after Landlord shall have given to Tenant a written notice specifying the nature of such default, provided however that if said default shall be of such a type customarily sold on a recognized market nature that it cannot reasonably be cured or remedied within said thirty (including but 30) day period, the same shall not limited to, Investment Property), no notice be deemed an event of disposition need be given; and (ii) with respect to Collateral not described in clause (i) above, notification sent after the occurrence of and during the continuance of a Default and ten days before any proposed disposition provides notice within a reasonable time before disposition.
(c) Each Grantor hereby agrees and acknowledges that a commercially reasonable disposition of Inventory, Equipment, Computer Hardware and Software, or Intellectual Property may be by lease or license ofdefault if Tenant shall have commenced, in addition good faith, the curing or remedying of such default within such thirty (30) day period and shall thereafter continuously and diligently proceed therewith to the sale of, such Collateral. Each Grantor further agrees and acknowledges that a disposition: (i) made in the usual manner on any recognized market, or (ii) a disposition at the price current in any recognized market at the time of disposition, or (iii) a disposition in conformity with reasonable commercial practices among dealers in the type of property subject to the disposition; shall be deemed commercially reasonablecompletion.
(d) Any cash proceeds of any disposition by the Administrative Agent of any of the Collateral shall be applied by the Administrative Agent to payment of expenses in connection with the Collateral, including reasonable attorneys’ fees and legal expenses, and thereafter to the payment of any and all of the Liabilities in the order of application set forth in Section 8.03 of the Credit Agreement, and thereafter any surplus will be paid promptly to the Grantor. The Administrative Agent need not apply or pay over for application noncash proceeds of collection and enforcement unless: (i) the failure to do so would be commercially unreasonable and (ii) the affected Grantor has provided the Administrative Agent with a written demand to apply or pay over such noncash proceeds on such basis.
Appears in 2 contracts
Sources: Lease Agreement, Lease Agreement (Omnicomm Systems Inc)
Default. Whenever a Default shall be existing, Borrower is in default on this Note under any one or more of the Administrative Agent may exercise from time to time any and all rights and remedies available to it under applicable law, in addition to those described in this section below.
following circumstances: (a) Each Grantor agreesBorrower or any guarantor fails to pay when due any installment or other sums owed under any Loan Account or other provision in this Note or in any Loan Document; (b) Borrower is declared to be in default on any other loan or obligation of Borrower to Lender or in which Lender has an interest, or Borrower or any guarantor breaches any term, condition or representation in case this Note or in any Loan Document or in connection with any other loan of Defaultthis Lender, or any other lender; (c) Any of Borrower's or any guarantor’s representations to this or any other lender in connection with any loan are materially false or misleading; (d) Borrower's death, dissolution, incapacity or termination of existence; (e) Borrower's or any guarantor’s insolvency, business failure, application for or consent to appointment of a receiver/custodian or trustee for itself or any of its assets, assignment to an agent authorized to liquidate any substantial amount of assets, assignment for the benefit of creditors by, or commencement of any proceeding under any bankruptcy or insolvency law by or against Borrower, or any guarantor, endorser, or surety for Borrower; (f) Any judgment, writ, levy, lien, attachment, notice of tax lien, tax lien, or similar process is entered against Borrower, any guarantor or any of Borrower's or any of guarantor's properties and is not vacated, bonded, or stayed to the satisfaction of Lender; (g) A default occurs under any guaranty given to Lender as security for this Note, or any guarantor shall purport to terminate, repudiate or contest any such guaranty; any guarantor who is a natural person shall die or becomes incapacitated; or any guarantor that is not a natural person shall be dissolved or terminated; or (h) Borrower sells, leases, encumbers or transfers, or enters into any agreement for the sale, lease, encumbrance, transfer or nonuse of any water, water rights or “Water Assets”, as such may be defined in any deed of trust, mortgage, security agreement or other agreement relating to the pledge of water or water rights; or (i) at the Administrative Agent’s request, to assemble, at its expense, all its Inventory and other Goods (if Borrower or any guarantor is an entity other than Fixtures) at a convenient place or places acceptable to the Administrative Agentnatural person, and (ii) at the Administrative Agent’s request, to execute all such documents and do all such other things which may be necessary or desirable in order to enable the Administrative Agent or its nominee to be registered as owner of the Intellectual Property with any competent registration authority.
(b) Notice of the intended disposition of the Collateral may be given by first-class mail, hand-delivery (through a delivery service or otherwise), facsimile or E-mail, and shall be deemed to have been “sent” upon deposit in the U.S. Mails with adequate postage properly affixed, upon delivery to an express delivery service or upon the electronic submission through telephonic or Internet services, as applicable. Each Grantor hereby agrees and acknowledges that (i) with respect to collateral that is: (A) perishable or threatens to decline speedily in value, or (B) is transfer of a type customarily sold on a recognized market (including but not limited tobeneficial interest of such entity, Investment Property), no notice of disposition need be given; and (ii) with respect to Collateral not described in clause (i) above, notification sent after the occurrence of and during the continuance of a Default and ten days before any proposed disposition provides notice within a reasonable time before disposition.
(c) Each Grantor hereby agrees and acknowledges that a commercially reasonable disposition of Inventory, Equipment, Computer Hardware and Software, or Intellectual Property may be by lease or license of, in addition to the sale of, such Collateral. Each Grantor further agrees and acknowledges that a disposition: (i) made in the usual manner on any recognized market, or (ii) a disposition at the price current in any recognized market at the time of disposition, or (iii) a disposition in conformity with reasonable commercial practices among dealers in the type of property subject to the disposition; shall be deemed commercially reasonable.
(d) Any cash proceeds of any disposition by the Administrative Agent of any of the Collateral shall be applied by the Administrative Agent to payment of expenses in connection with the Collateral, including reasonable attorneys’ fees and legal expenses, and thereafter to the payment of any and all of the Liabilities in the order of application set forth in Section 8.03 of the Credit Agreement, and thereafter any surplus will be paid promptly to the Grantor. The Administrative Agent need not apply or pay over for application noncash proceeds of collection and enforcement unless: (i) the failure to do so would be commercially unreasonable and (ii) the affected Grantor has provided the Administrative Agent with a written demand to apply or pay over such noncash proceeds on such basisthis Note.
Appears in 2 contracts
Sources: Promissory Note and Loan Agreement, Promissory Note and Loan Agreement (Limoneira CO)
Default. Whenever a Default shall be existing, the Administrative Agent may exercise from time to time any and all rights and remedies available to it under applicable law, in addition to those described in this section below.
(a) Each Grantor agrees, in case of the following shall constitute an “Event of Default, ” hereunder: (i) at the Administrative Agent’s request, to assemble, at its expense, all its Inventory and other Goods (other than Fixtures) at a convenient place or places acceptable to occurrence of an Event of Default under the Administrative Agent, and Loan Agreement; (ii) at failure by any Pledgor to perform any material obligations under this Agreement or under any other agreement for borrowed money between any Pledgor and the Administrative Agent’s requestBank or by any Pledgor in favor of the Bank, time being of the essence (subject, however, to execute all such documents any applicable notice and do all such other things which may be necessary or desirable cure periods); (iii) failure by any Pledgor to perform any material obligations under any Guaranty (as defined in order to enable the Administrative Agent or its nominee to be registered as owner Loan Agreement), executed by any Pledgor in favor of the Intellectual Property Bank; (iv) the commencement of any bankruptcy or insolvency proceedings by or against the Borrower or any Pledgor; (v) material falsity in any certificate, statement, representation, warranty or audit at any time furnished by or on behalf of the Pledgor or any endorser or guarantor or any other party liable for payment of all or part of the Secured Obligations, pursuant to or in connection with this Agreement, including warranties in this Agreement and including any competent registration authorityomission to disclose any substantial contingent or liquidated liabilities or any material adverse change in facts disclosed by any certificate, statement, representation, warranty or audit furnished to the Bank; or (vi) any attachment or levy against the Collateral or any other occurrence that inhibits the Bank’s free access to the Collateral.
(b) Notice Upon the occurrence of an Event of Default, the Bank may exercise such remedies and rights as are available hereunder, under the Loan Agreement, the Guaranties (as defined in the Loan Agreement) or otherwise (including without limitation, acceleration of the Secured Obligations or any part thereof). This paragraph is not intended disposition to affect or impair any rights of the Collateral may be given by first-class mail, hand-delivery (through a delivery service or otherwise), facsimile or E-mail, and shall be deemed to have been “sent” upon deposit in the U.S. Mails with adequate postage properly affixed, upon delivery to an express delivery service or upon the electronic submission through telephonic or Internet services, as applicable. Each Grantor hereby agrees and acknowledges that (i) Bank with respect to collateral any Secured Obligations that is: (A) perishable may now or threatens to decline speedily in value, or (B) is of a type customarily sold hereafter be payable on a recognized market (including but not limited to, Investment Property), no notice of disposition need be given; and (ii) with respect to Collateral not described in clause (i) above, notification sent after the occurrence of and during the continuance of a Default and ten days before any proposed disposition provides notice within a reasonable time before dispositiondemand.
(c) Each Grantor hereby agrees and acknowledges that a commercially reasonable disposition Upon the occurrence of Inventoryany Event of Default, Equipment, Computer Hardware and Software, or Intellectual Property may be by lease or license of, in addition the Bank’s rights with respect to the sale of, such CollateralCollateral shall be those of a secured party under the UCC and any other applicable law in effect from time to time. Each Grantor further agrees The Bank shall also have any additional rights granted herein and acknowledges that a disposition: (i) made in the usual manner on any recognized market, or (ii) a disposition at the price current in any recognized market at other agreement now or hereafter in effect between each Pledgor and the time Bank. If requested by the Bank after the occurrence of dispositionan Event of Default, or (iii) a disposition in conformity with reasonable commercial practices among dealers in the type of property subject Pledgors will assemble all Documents, Instruments, Chattel Paper and any other records relating to the disposition; shall Collateral and make it available to the Bank at a place to be deemed commercially reasonabledesignated by the Bank.
(d) Any cash proceeds of The Pledgors agree that any disposition notice by the Administrative Agent Bank of the sale or disposition of the Collateral or any other intended action hereunder, whether required by the UCC or otherwise, shall constitute reasonable notice to the Pledgors if the notice is mailed by regular or certified mail, postage prepaid, at least five days before the action to each Pledgor’s address as specified in this Agreement or to any other address that any Pledgor has specified in writing to the Bank as the address to which notices shall be given to such Pledgor.
(e) The Pledgors shall pay all costs and expenses incurred by the Bank in enforcing this Agreement, realizing upon any Collateral and collecting any Secured Obligations (including attorneys’ fees) whether suit is brought or not and whether incurred in connection with collection, trial, appeal or otherwise and, to the extent of each Pledgor’s liability for repayment of any of the Collateral Secured Obligations, shall be applied by liable for any deficiencies in the Administrative Agent event the Proceeds of disposition of the Collateral do not satisfy the Secured Obligations in full. Nothing contained herein shall be deemed to payment of expenses in connection with require the Collateral, including reasonable attorneys’ fees and legal expenses, and thereafter Bank to proceed against the Collateral or any part thereof before or as a condition to the payment pursuit of any of its other rights and all of the Liabilities in the order of application set forth in Section 8.03 of the Credit Agreement, and thereafter any surplus will be paid promptly remedies with respect to the Grantor. The Administrative Agent need not apply or pay over for application noncash proceeds of collection and enforcement unless: (i) the failure to do so would be commercially unreasonable and (ii) the affected Grantor has provided the Administrative Agent with a written demand to apply or pay over such noncash proceeds on such basisSecured Obligations.
Appears in 2 contracts
Sources: Security Agreement (First Advantage Corp), Security Agreement (First Advantage Corp)
Default. Whenever a In the event of any Event of Default, as defined in the Default shall be existingDocument between the Borrower and the Holder, the Administrative Agent outstanding principal amount of this Note, plus accrued but unpaid interest, liquidated damages, fees and other amounts owing in respect thereof through the date of acceleration, shall become, at the Holder’s election, immediately due and payable in cash at the Mandatory Default Amount. Commencing five (5) days after the occurrence of any Event of Default that results in the eventual acceleration of this Note, the interest rate on this Note shall accrue at an interest rate equal to the lesser of 18% per annum or the maximum rate permitted under applicable law. In connection with such acceleration described herein, the Holder need not provide, and the Borrower hereby waives, any presentment, demand, protest or other notice of any kind, and the Holder may exercise from time to time immediately and without expiration of any grace period enforce any and all of its rights and remedies hereunder and all other remedies available to it under applicable law. Such acceleration may be rescinded and annulled by Holder at any time prior to payment hereunder and the Holder shall have all rights as a holder of the note until such time, in addition if any, as the Holder receives full payment pursuant to those described in this section below.
(a) Each Grantor agrees, in case Section 1.2. No such rescission or annulment shall affect any subsequent Event of Default, Default or impair any right consequent thereon. The Mandatory Default Amount means the greater of (i) at the Administrative Agent’s requestoutstanding principal amount of this Note, to assembleplus all accrued and unpaid interest, at its expenseliquidated damages, all its Inventory fees and other Goods (other than Fixtures) at amounts hereon, divided by the Conversion Price on the date the Mandatory Default Amount is either demanded or paid in full, whichever has a convenient place lower Conversion Price, multiplied by the VWAP on the date the Mandatory Default Amount is either demanded or places acceptable to the Administrative Agentpaid in full, and (ii) at the Administrative Agent’s request, to execute all such documents and do all such other things which may be necessary or desirable in order to enable the Administrative Agent or its nominee to be registered as owner of the Intellectual Property with any competent registration authority.
(b) Notice of the intended disposition of the Collateral may be given by first-class mail, hand-delivery (through whichever has a delivery service or otherwise), facsimile or E-mail, and shall be deemed to have been “sent” upon deposit in the U.S. Mails with adequate postage properly affixed, upon delivery to an express delivery service or upon the electronic submission through telephonic or Internet services, as applicable. Each Grantor hereby agrees and acknowledges that (i) with respect to collateral that is: (A) perishable or threatens to decline speedily in value, or (B) is of a type customarily sold on a recognized market (including but not limited to, Investment Property), no notice of disposition need be given; and (ii) with respect to Collateral not described in clause (i) above, notification sent after the occurrence of and during the continuance of a Default and ten days before any proposed disposition provides notice within a reasonable time before disposition.
(c) Each Grantor hereby agrees and acknowledges that a commercially reasonable disposition of Inventory, Equipment, Computer Hardware and Software, or Intellectual Property may be by lease or license of, in addition to the sale of, such Collateral. Each Grantor further agrees and acknowledges that a disposition: (i) made in the usual manner on any recognized markethigher VWAP, or (ii) a disposition at the price current in any recognized market at the time of disposition, or (iii) a disposition in conformity with reasonable commercial practices among dealers in the type of property subject to the disposition; shall be deemed commercially reasonable.
(d) Any cash proceeds of any disposition by the Administrative Agent of any 130% of the Collateral shall be applied by the Administrative Agent to payment outstanding principal amount of expenses in connection with the Collateralthis Note, including reasonable attorneys’ plus 100% of accrued and unpaid interest, liquidated damages, fees and legal expenses, and thereafter to the payment of any and all of the Liabilities in the order of application set forth in Section 8.03 of the Credit Agreement, and thereafter any surplus will be paid promptly to the Grantor. The Administrative Agent need not apply or pay over for application noncash proceeds of collection and enforcement unless: (i) the failure to do so would be commercially unreasonable and (ii) the affected Grantor has provided the Administrative Agent with a written demand to apply or pay over such noncash proceeds on such basisother amounts hereon.
Appears in 1 contract
Sources: Securities Purchase Agreement (Lithium Exploration Group, Inc.)
Default. Whenever (a) Upon the occurrence and continuance of a Default shall be existingor Event of Default, the Lenders agree to promptly confer in order that Required Lenders, or the Lenders, as the case may be, may agree upon a course of action for the enforcement of the rights of the Lenders, and the Administrative Agent may exercise and the Collateral Agent shall be entitled to refrain from time taking any action (without incurring any liability to time any Person for so refraining) unless and all rights and remedies available to it under applicable law, in addition to those described in this section below.
(a) Each Grantor agrees, in case of Default, (i) at the Administrative Agent’s request, to assemble, at its expense, all its Inventory and other Goods (other than Fixtures) at a convenient place or places acceptable to the Administrative Agent, and (ii) at the Administrative Agent’s request, to execute all such documents and do all such other things which may be necessary or desirable in order to enable until the Administrative Agent or the Collateral Agent, as appropriate, shall have received instructions from Required Lenders. All rights of action under the Loan Documents and all right to the Collateral, if any, hereunder may be enforced by the Administrative Agent and the Collateral Agent and any suit or proceeding instituted by the Administrative Agent or the Collateral Agent in furtherance of such enforcement shall be brought in its nominee to name as the Administrative Agent or the Collateral Agent, as applicable, without the necessity of joining as plaintiffs or defendants any other Lender, and the recovery of any judgment shall be registered as owner for the benefit of the Intellectual Property Lenders (and, with respect to Lender Hedging Agreements, Lender Swap Parties) subject to the expenses of the Administrative Agent and/or the Collateral Agent. In actions with respect to any competent registration authorityproperty of the Borrower or any other Loan Party, each of the Administrative Agent and the Collateral Agent is acting for the ratable benefit of each Lender (and, with respect to Lender Hedging Agreements, Lender Swap Parties). Any and all agreements to subordinate (whether made heretofore or hereafter) other indebtedness or obligations of the Borrower to the Obligation shall be construed as being for the ratable benefit of each Lender (and, with respect to Lender Hedging Agreements, Lender Swap Parties).
(b) Notice Each Lender authorizes and directs the Administrative Agent and the Collateral Agent to enter into the Collateral Documents on behalf of and for the benefit of the intended disposition of the Collateral may be given by first-class mailLenders (and, hand-delivery (through a delivery service or otherwise), facsimile or E-mail, and shall be deemed to have been “sent” upon deposit in the U.S. Mails with adequate postage properly affixed, upon delivery to an express delivery service or upon the electronic submission through telephonic or Internet services, as applicable. Each Grantor hereby agrees and acknowledges that (i) with respect to collateral that is: (A) perishable or threatens to decline speedily in valueLender Hedging Agreement, or (B) is of a type customarily sold on a recognized market (including but not limited to, Investment PropertyLender Swap Parties), no notice of disposition need be given; and (ii) with respect to Collateral not described in clause (i) above, notification sent after the occurrence of and during the continuance of a Default and ten days before any proposed disposition provides notice within a reasonable time before disposition.
(c) Each Grantor hereby agrees and acknowledges that a commercially reasonable disposition of Inventory, Equipment, Computer Hardware and Software, or Intellectual Property may be by lease or license of, in addition Except to the sale ofextent unanimity (or other percentage set forth in Section 10.01) is required hereunder, each Lender agrees that any action taken by the Required Lenders in accordance with the provisions of the Loan Documents, and the exercise by the Required Lenders of the power set forth herein or therein, together with such Collateral. Each Grantor further agrees other powers as are reasonably incidental thereto, shall be authorized and acknowledges that a disposition: (i) made in binding upon all of the usual manner on any recognized marketLenders, or (ii) a disposition at the price current in any recognized market at the time of disposition, or (iii) a disposition in conformity with reasonable commercial practices among dealers in the type of property subject and except to the disposition; extent unanimity (or other percentage set forth in Section 10.01) is required hereunder, each Lender agrees that any action taken by the Required Lenders in accordance with the provisions of the Loan Documents, and the exercise by the Required Lenders of the power set forth herein or therein, together with such other powers as are reasonably incidental thereto, shall be deemed commercially reasonableauthorized and binding upon all of the Lenders.
(d) Any cash proceeds Each of the Administrative Agent and the Collateral Agent is hereby authorized on behalf of the Lenders, without the necessity of any disposition notice to or further consent from any Lender, from time to time to take any action with respect to any Collateral or Collateral Documents which may be necessary to perfect and maintain perfected the Liens upon the Collateral granted pursuant to the Collateral Documents.
(e) Neither the Administrative Agent nor the Collateral Agent shall have any obligation whatsoever to any Lender or to any other Person to assure that the Collateral exists, is owned by any Loan Party, is cared for, protected, or insured or has been encumbered or that the Liens granted to the Administrative Agent or the Collateral Agent herein or pursuant thereto have been properly or sufficiently or lawfully created, perfected, protected, or enforced, or are entitled to any particular priority, or to exercise at all or in any particular manner or under any duty of care, disclosure or fidelity, or to continue exercising any of the Rights granted or available to the Administrative Agent or the Collateral Agent in this Section 9.03 or in any of the Collateral Documents; it being understood and agreed that in respect of the Collateral, or any act, omission, or event related thereto, the Administrative Agent or the Collateral Agent may act in any manner it may deem appropriate, in its sole discretion, given the Administrative Agent’s or the Collateral Agent’s own interest in the Collateral as one of the Lenders and that neither the Administrative Agent nor the Collateral Agent shall have any duty or liability whatsoever to any Lender, other than to act without gross negligence or willful misconduct.
(f) The Lenders hereby irrevocably authorize each of the Administrative Agent and the Collateral Agent, at its option and discretion, to release any Lien granted to or held by the Administrative Agent or the Collateral Agent upon any Collateral (i) constituting property in which no Loan Party owned an interest at the time the Lien was granted or at any time thereafter, (ii) constituting property leased to a Loan Party under a lease which has expired or been terminated in a transaction permitted under the Loan Document or is about to expire and which has not been, and is not intended by such Loan Party to be, renewed, and (iii) consisting of any an instrument evidencing Indebtedness pledged to the Administrative Agent or the Collateral Agent (for the benefit of the Lenders and the Lender Swap Parties), if the Indebtedness evidenced thereby has been paid in full. In addition, the Lenders irrevocably authorize the Administrative Agent and the Collateral shall be applied Agent to release Liens upon Collateral as contemplated in Section 10.01(c) or (d), or if approved, authorized, or ratified in writing by the requisite Lenders. Upon request by the Administrative Agent and/or the Collateral Agent at any time, the Lenders will confirm in writing the Administrative Agent’s and/or the Collateral Agent’s authority to payment release particular types or items of expenses in connection with the Collateral, including reasonable attorneys’ fees and legal expenses, and thereafter Collateral pursuant to the payment of any and all this Section 9.03.
(g) In furtherance of the Liabilities in the order of application authorizations set forth in this Section 8.03 9.03, each Lender hereby irrevocably appoints each of the Credit Agreement, and thereafter any surplus will be paid promptly to the Grantor. The Administrative Agent need not apply or pay over and the Collateral Agent its attorney-in-fact, with full power of substitution, for application noncash proceeds and on behalf of collection and enforcement unless: in the name of each such Lender, (i) the failure to do so would be commercially unreasonable and enter into Collateral Documents (including, without limitation, any appointments of substitute trustees under any Collateral Documents), (ii) to take action with respect to the affected Grantor has provided Collateral and Collateral Documents to perfect, maintain and preserve the Liens securing the Obligations, and (iii) to execute instruments of release or to take other action necessary to release Liens upon any Collateral to the extent authorized in clause (f) hereof. This power of attorney shall be liberally, not restrictively, construed so as to give the greatest latitude to the Administrative Agent with a written demand Agent’s and the Collateral Agent’s power, as attorney, relative to apply or pay over such noncash proceeds on such basisthe Collateral matters described in this Section 9.
Appears in 1 contract
Default. Whenever a ▇▇▇▇▇▇▇▇ agrees that the occurrence of any of the following events shall constitute an “Event of Default” hereunder:
a. the occurrence of any “Default shall be existingor “Event of Default” under the Note, the Administrative Agent may exercise Loan Agreement or any other Loan Document;
b. the breach or failure to perform by Borrower any obligation, covenant, promise or agreement contained herein and ▇▇▇▇▇▇▇▇’s failure to cure such breach or failure within thirty (30) days after written notice thereof from time to time Lender;
c. the occurrence of any and all rights and remedies available to it default or event of default by Borrower under applicable lawany CID Agreement;
d. any tax levy, attachment, garnishment, levy of execution, or other process issued against Borrower or the CID Rights;
e. any lien or security interest is filed or created against the CID Rights (other than in addition to those described in favor of ▇▇▇▇▇▇ as contemplated under this section below.
(a) Each Grantor agrees, in case Agreement). So long as there is no Event of Default, (i) and subject to the terms of this Agreement, Borrower shall have and may exercise all rights as the owner or holder of the CID Agreements which are lawful and are not inconsistent with the provisions of the Loan Documents. Immediately upon the occurrence of any Event of Default, the rights described in the preceding sentence shall, at the Administrative Agent’s requestelection of ▇▇▇▇▇▇, cease and terminate, and in such event Lender is hereby expressly and irrevocably authorized, but not required, to assembleexercise every right, at its expenseoption, all its Inventory and other Goods (other than Fixtures) at a convenient place power or places acceptable authority inuring to the Administrative Agent, and (ii) at the Administrative Agent’s request, to execute all such documents and do all such other things which may be necessary Borrower under any CID Agreement or desirable in order to enable the Administrative Agent or its nominee to be registered as owner of the Intellectual Property with any competent registration authority.
(b) Notice of the intended disposition of the Collateral may be given by first-class mail, hand-delivery (through a delivery service or otherwise), facsimile or E-mail, and shall be deemed to have been “sent” upon deposit in the U.S. Mails with adequate postage properly affixed, upon delivery to an express delivery service or upon the electronic submission through telephonic or Internet services, as applicable. Each Grantor hereby agrees and acknowledges that (i) with respect to collateral that is: (A) perishable or threatens to decline speedily the CID Rights as fully as Borrower could itself. Borrower does hereby constitute and appoint Lender, while this Agreement remains in valueforce and effect, or (B) is irrevocably, and with full power of a type customarily sold on a recognized market (including but not limited tosubstitution and revocation, Investment Property)as its true and lawful attorney for and in its name, no notice of disposition need be given; place and (ii) with respect to Collateral not described in clause (i) abovestead, notification sent after the occurrence of such an Event of Default to demand and during enforce compliance with all the continuance terms and conditions of any CID Agreement and the CID Rights, whether at law, in equity or otherwise. Further, and without limitation of the foregoing rights and remedies, upon an Event of Default, Lender shall have the rights and remedies of a Default and ten days before any proposed disposition provides notice within a reasonable time before disposition.
secured party under the Uniform Commercial Code (c) Each Grantor hereby agrees and acknowledges that a commercially reasonable disposition of Inventory“UCC”), Equipment, Computer Hardware and Software, or Intellectual as enacted in the State in which the Property may be by lease or license ofis located with respect to the CID Rights, in addition to the sale of, such Collateral. Each Grantor further agrees rights and acknowledges that a disposition: (i) made remedies otherwise provided for herein or by law or in equity or in the usual manner on Loan Agreement or any recognized market, or (ii) a disposition at the price current in any recognized market at the time of disposition, or (iii) a disposition in conformity with reasonable commercial practices among dealers in the type of property subject to the disposition; shall be deemed commercially reasonable.
(d) Any cash proceeds of any disposition by the Administrative Agent of any of the Collateral shall be applied by the Administrative Agent to payment of expenses in connection with the Collateral, including reasonable attorneys’ fees and legal expenses, and thereafter to the payment of any and all of the Liabilities in the order of application set forth in Section 8.03 of the Credit Agreement, and thereafter any surplus will be paid promptly to the Grantor. The Administrative Agent need not apply or pay over for application noncash proceeds of collection and enforcement unless: (i) the failure to do so would be commercially unreasonable and (ii) the affected Grantor has provided the Administrative Agent with a written demand to apply or pay over such noncash proceeds on such basis.other Loan Document,
Appears in 1 contract
Sources: Consent to Collateral Assignment
Default. Whenever a 7.1 Any default by Assignor of any obligation hereunder, any Event of Default under the Note, the Agreement, the Security Agreement or any of the Mortgages shall be existingan "Event of Default" under this Assignment.
7.2 Immediately upon any Event of Default, the Administrative Agent may Assignee is authorized to exercise from time to time any and all rights of Assignor pursuant to the Contracts and to receive for Assignor's account, and not as a lender, all sums due Assignor pursuant to the Contracts, and Assignee is further authorized to prosecute, compromise or take any other action which Assignor might take with respect to any claim, demand or cause of action related to the Contracts as Assignee deems appropriate, including, without limitation, prosecution, compromise or release of such claims. It shall be an Event of Default if the Contracts are terminated or modified without the prior written consent of Assignee.
7.3 If an Event of Default shall have occurred and be continuing, Assignee, at any time, at its election, may exercise any or all or any combination of the remedies available conferred upon or reserved to it under applicable this Assignment, the Agreement, the Note, the Security Agreement, any of the Mortgages, or now or hereafter existing at law, or in addition to those described in this section below.
equity or by statute. Without limitation, Assignee may (a) Each Grantor agreesdeclare the entire unpaid principal balance of the Note and all other indebtedness immediately due and payable, without notice or demand, the same being expressly waived by Assignor, subject to any cure periods provided for in case the Note for non-monetary defaults; (b) proceed at law or equity to collect all indebtedness of Assignor to Assignee; (c) foreclose the lien of this Assignment; and (d) exercise any rights, powers and remedies it may have as a secured party under the Uniform Commercial Code, or other similar laws in effect.
7.4 No failure by Assignee to insist upon the strict performance of any term hereof or to exercise any right, power or remedy consequent upon an Event of Default, (i) at the Administrative Agent’s requestshall constitute a waiver of any such term or of any such Event of Default. No waiver of any Event of Default shall affect or alter this Assignment, to assemble, at its expense, all its Inventory and other Goods (other than Fixtures) at a convenient place or places acceptable to the Administrative Agent, and (ii) at the Administrative Agent’s request, to execute all such documents and do all such other things which may be necessary or desirable shall continue in order to enable the Administrative Agent or its nominee to be registered as owner of the Intellectual Property with any competent registration authority.
(b) Notice of the intended disposition of the Collateral may be given by first-class mail, hand-delivery (through a delivery service or otherwise), facsimile or E-mailfull force, and shall be deemed to have been “sent” upon deposit in the U.S. Mails with adequate postage properly affixed, upon delivery to an express delivery service or upon the electronic submission through telephonic or Internet services, as applicable. Each Grantor hereby agrees and acknowledges that (i) not effect a waiver with respect to collateral that is: (A) perishable any subsequent such Event of Default or threatens to decline speedily in value, any other then existing or (B) is of a type customarily sold on a recognized market (including but not limited to, Investment Property), no notice of disposition need be given; and (ii) with respect to Collateral not described in clause (i) above, notification sent after the occurrence of and during the continuance of a Default and ten days before any proposed disposition provides notice within a reasonable time before dispositionsubsequent breach.
(c) Each Grantor hereby agrees and acknowledges that a commercially reasonable disposition of Inventory, Equipment, Computer Hardware and Software, or Intellectual Property may be by lease or license of, in addition to the sale of, such Collateral. Each Grantor further agrees and acknowledges that a disposition: (i) made in the usual manner on any recognized market, or (ii) a disposition at the price current in any recognized market at the time of disposition, or (iii) a disposition in conformity with reasonable commercial practices among dealers in the type of property subject to the disposition; shall be deemed commercially reasonable.
(d) Any cash proceeds of any disposition by the Administrative Agent of any of the Collateral shall be applied by the Administrative Agent to payment of expenses in connection with the Collateral, including reasonable attorneys’ fees and legal expenses, and thereafter to the payment of any and all of the Liabilities in the order of application set forth in Section 8.03 of the Credit Agreement, and thereafter any surplus will be paid promptly to the Grantor. The Administrative Agent need not apply or pay over for application noncash proceeds of collection and enforcement unless: (i) the failure to do so would be commercially unreasonable and (ii) the affected Grantor has provided the Administrative Agent with a written demand to apply or pay over such noncash proceeds on such basis.
Appears in 1 contract
Sources: Loan Agreement (Advanced Lighting Technologies Inc)
Default. Whenever a Default The Company shall be existing, the Administrative Agent may exercise from time to time any and all rights and remedies available to it in default under applicable law, in addition to those described in this section below.
(a) Each Grantor agrees, in case of Default, (i) at the Administrative Agent’s request, to assemble, at its expense, all its Inventory and other Goods (other than Fixtures) at a convenient place or places acceptable to the Administrative Agent, and (ii) at the Administrative Agent’s request, to execute all such documents and do all such other things which may be necessary or desirable in order to enable the Administrative Agent or its nominee to be registered as owner of the Intellectual Property with any competent registration authority.
(b) Notice of the intended disposition of the Collateral may be given by first-class mail, hand-delivery (through a delivery service or otherwise), facsimile or E-mail, and shall be deemed to have been “sent” upon deposit in the U.S. Mails with adequate postage properly affixed, upon delivery to an express delivery service or Note upon the electronic submission through telephonic or Internet services, as applicable. Each Grantor hereby agrees and acknowledges that (i) with respect to collateral that is: (A) perishable or threatens to decline speedily in value, or (B) is of a type customarily sold on a recognized market (including but not limited to, Investment Property), no notice of disposition need be given; and (ii) with respect to Collateral not described in clause (i) above, notification sent after the occurrence of and during the continuance of a Default and ten days before any proposed disposition provides notice within a reasonable time before disposition.
(c) Each Grantor hereby agrees and acknowledges that a commercially reasonable disposition of Inventory, Equipment, Computer Hardware and Software, or Intellectual Property may be by lease or license of, in addition to the sale of, such Collateral. Each Grantor further agrees and acknowledges that a disposition: (i) made in the usual manner on any recognized market, or (ii) a disposition at the price current in any recognized market at the time of disposition, or (iii) a disposition in conformity with reasonable commercial practices among dealers in the type of property subject to the disposition; shall be deemed commercially reasonable.
(d) Any cash proceeds of any disposition by the Administrative Agent of any of the Collateral shall be applied following events:
2.1 The Company fails to timely perform any of its obligations under, or otherwise breaches any covenants or warranties of this Note;
2.2 Any statement, representation, or warranty made by the Administrative Agent Company or its agents to payment Holder shall prove to have been false or materially misleading when made; and/or,
2.3 The Company shall become insolvent, or unable to meet its obligations as they become due, or shall file or have filed against it, voluntarily or involuntarily, a petition under the United States Bankruptcy Code or shall procure or suffer the appointment of expenses a receiver for any substantial portion of its properties, or shall make an assignment for benefit of creditors, or shall initiate or have initiated against it, voluntarily or involuntarily, any act, process, or proceedings under any insolvency law or other statute or law providing for the modifications or adjustment of the rights of creditors. Upon any event of default, H▇▇▇▇▇ may declare the entire unpaid principal balance of this Note and all accrued unpaid interest immediately due, without notice, and the Company agrees to pay such amount immediately in connection with such event. In the Collateralevent of default, the Company agrees to pay all of H▇▇▇▇▇'s costs of collection, including reasonable attorneys’ fees attorney's fees; this shall include legal expenses for the bankruptcy proceedings or insolvency proceedings (including efforts to modify or vacate any automatic stay or injunction), court costs, appeals, post-judgement collection expenses and legal any other amount provided by law. The parties intend this provision to be given the most liberal construction possible and to apply to any circumstances in which such party reasonably incurs expenses, and thereafter to . No delay or omission on the payment part of any and all of the Liabilities Holder hereof in the order of application set forth exercising any right or option herein given to such Holder shall impair such right or option or be considered as a waiver thereof or acquiescence in Section 8.03 of the Credit Agreement, and thereafter any surplus will be paid promptly to the Grantordefault hereunder. The Administrative Agent need not apply or pay over Company hereby waives any applicable statue of limitations, presentment, demand for application noncash proceeds payment, protest and notice of collection and enforcement unless: (i) the failure to do so would be commercially unreasonable and (ii) the affected Grantor has provided the Administrative Agent with a written demand to apply or pay over such noncash proceeds on such basisdishonor.
Appears in 1 contract
Default. Whenever a Default In the event of default by Client of any obligation under any transaction or agreement with you or any of your affiliates, if Client shall be existingbecome bankrupt, insolvent or subject to any bankruptcy, reorganization, insolvency or similar proceeding, or if for any reason you or any of your affiliates deem it advisable for your or their protection, you or any of your affiliates may, without notice or demand to Client, and at such times and places as you may determine, cancel, terminate, accelerate, liquidate and/or close-out any or all transactions and agreements between Client and you or any of your affiliates, pledge or sell any securities or other property which you or any of your affiliates may hold for Client or which is due to Client (either individually or jointly with others) and apply the Administrative Agent may proceeds to the discharge of the obligation, set-off, net and recoup any obligations to Client against any obligations to you or any of your affiliates, exercise from time to time any and all rights of a secured creditor in respect of all collateral in which you or your affiliates have a security interest or right of set-off, cover any open positions of Client (by buying in or borrowing securities or otherwise) and remedies available to it under applicable law, in addition to those described in this section below.
(a) Each Grantor agrees, in case of Default, (i) at the Administrative Agent’s request, to assemble, at its expense, all its Inventory and other Goods (other than Fixtures) at a convenient place or places acceptable to the Administrative Agent, and (ii) at the Administrative Agent’s request, to execute all such documents and do all take such other things which may be necessary actions as you or desirable in order any of your affiliates deem appropriate provided that if applicable law would stay or otherwise impair the ability of your or any of your affiliates to enable take any such action upon any such bankruptcy, reorganization, insolvency or similar proceeding, you and the Administrative Agent or its nominee to be registered as owner of the Intellectual Property with any competent registration authority.
(bapplicable affiliate(s) Notice of the intended disposition of the Collateral may be given by first-class mail, hand-delivery (through a delivery service or otherwise), facsimile or E-mail, and shall will be deemed to have been “sent” upon deposit in the U.S. Mails with adequate postage properly affixed, upon delivery to an express delivery service or upon the electronic submission through telephonic or Internet services, as applicable. Each Grantor hereby agrees and acknowledges that (i) taken such action with respect to collateral that is: (A) perishable the cancellation, termination, acceleration, liquidation and/or close-out of transactions, and the application of appropriate set-offs, and if and to the extent you deem it appropriate, the sale or threatens to decline speedily in valuedisposition of securities or other assets of Client, or (B) is the exercise of rights of a type customarily sold on a recognized market (including but not limited tosecured creditor, Investment Property)and the application of proceeds immediately prior to such bankruptcy, no notice of disposition need be given; reorganization, insolvency or similar proceeding. Client shall remain liable for any deficiency and (ii) with respect to Collateral not described in clause (i) above, notification sent after the occurrence of shall promptly reimburse you and during the continuance of a Default and ten days before your affiliate for any proposed disposition provides notice within a reasonable time before disposition.
(c) Each Grantor hereby agrees and acknowledges that a commercially reasonable disposition of Inventory, Equipment, Computer Hardware and Software, loss or Intellectual Property may be by lease or license of, in addition to the sale of, such Collateral. Each Grantor further agrees and acknowledges that a disposition: (i) made in the usual manner on any recognized market, or (ii) a disposition at the price current in any recognized market at the time of disposition, or (iii) a disposition in conformity with reasonable commercial practices among dealers in the type of property subject to the disposition; shall be deemed commercially reasonable.
(d) Any cash proceeds of any disposition by the Administrative Agent of any of the Collateral shall be applied by the Administrative Agent to payment of expenses in connection with the Collateralexpense incurred thereby, including reasonable attorneys’ fees and legal expenses, and thereafter losses sustained by reason of an inability to the payment of borrow any and all of the Liabilities in the order of application set forth in Section 8.03 of the Credit Agreement, and thereafter any surplus will be paid promptly to the Grantor. The Administrative Agent need not apply securities or pay over other property sold for application noncash proceeds of collection and enforcement unless: (i) the failure to do so would be commercially unreasonable and (ii) the affected Grantor has provided the Administrative Agent with a written demand to apply or pay over such noncash proceeds on such basisClient's account.
Appears in 1 contract
Default. Whenever a Default shall be existing, the Administrative Agent may exercise from time to time any and all rights and remedies available to it under applicable law, in addition to those described in this section below.
(a) Each Grantor agrees, in case of Default, (i) at the Administrative Agent’s request, to assemble, at its expense, all its Inventory and other Goods (other than Fixtures) at a convenient place or places acceptable to the Administrative Agent, and (ii) at the Administrative Agent’s request, to execute all such documents and do all such other things which may be necessary or desirable in order to enable the Administrative Agent or its nominee to be registered as owner of the Intellectual Property with any competent registration authority.
(b) Notice of the intended disposition of the Collateral may be given By Purchaser. Default by first-class mail, hand-delivery (through a delivery service or otherwise), facsimile or E-mail, and Purchaser shall be deemed to have been “sent” occurred upon deposit Purchaser=s failure (1) to make all cash payments on or before the dates specified herein; (2) to provide any required notice or information or take any required action within the time specified; (3) on the appointed date, to tender at settlement the amounts called for herein and accept title; (4) to truthfully represent Purchaser=s financial ability to qualify for a mortgage loan or otherwise to perform Purchaser=s financial obligations hereunder; (5) to exercise best efforts and due diligence in pursuit of any financing as further described in Section 5; or (6) to comply with any other term, condition, or covenant of this Agreement. In the event of Purchaser=s default, ▇▇▇▇▇▇▇▇▇ agrees that Purchaser=s rights under this Agreement shall be terminated and all Deposit Monies shall be retained by, and in all events due and owing to, Seller as liquidated damages and not as a penalty, whereupon the parties shall be released from any further liability or obligation hereunder. In furtherance of the foregoing, in the U.S. Mails with adequate postage properly affixedevent of Purchaser=s default, Purchaser hereby instructs that all Deposit Monies held in escrow under this Agreement (if held by a third-party escrow agent) be delivered to Seller, after which delivery, said escrow agent, if any, shall be released from further obligation to Purchaser and Seller. The parties agree that actual damages at this juncture would be difficult to ascertain and that the aforesaid liquidated damages represent a fair and reasonable estimate of actual damages that Se ller would sustain upon delivery to an express delivery service or upon any default by Purchaser hereunder. Alternatively, Seller may sue Purchaser in any court of competent jurisdict ion for any form of equitable relief available in connection herewith, and/or for money damages, and may retain the electronic submission through telephonic or Internet servicesDeposit Monies as a prejudgment attachment by consent. Following Purchaser=s default, as applicable. Each Grantor hereby agrees and acknowledges that unless otherwise agreed (i) with respect to collateral that is: (A) perishable or threatens to decline speedily in value, or (B) is of a type customarily sold on a recognized market (including but not limited to, Investment Property), no notice of disposition need be given; and (ii) with respect to Collateral not described in clause (i) above, notification sent after the occurrence of and during such default) in writing signed by the continuance parties, Seller shall reserve its option to declare all Deposit Monies retained under this Section 20(a) as liquidated damages notwithstanding any resale of the Unit(s) to a Default and ten days before third party and/or the filing by Seller of any proposed disposition provides notice within a reasonable time before disposition.
(c) Each Grantor hereby agrees and acknowledges that a commercially reasonable disposition of Inventoryalternati ve claim, Equipment, Computer Hardware and Softwaresuit, or Intellectual Property may be by lease or license ofaction (which, in addition to the sale ofextent required by law, such Collateralwould thereby be subject to dismissal in whole or in part). Each Grantor further agrees and acknowledges that a disposition: In any claim, suit, or action for money damages by Seller against Purchaser for Purchaser=s default, Seller=s damages shall include, but will not be limited to, (i) made in the usual manner actual interest expense incurred by Seller on any recognized market, construction costs (whether incurred to perform this Agreement or in mitigation); (ii) a disposition at the price current in an eighteen percent (18%) per annum internal rate of interest for any recognized market at the time of disposition, or such construction costs incurred from Seller=s own funds; (iii) a disposition in conformity with lost profit after any resale; and (iv) eighteen percent (18%) per annum interest on lost profit until paid. In the event Seller must engage counsel arising from Purchaser=s default under this Agreement, Purchaser shall reimburse Seller for all of Seller=s reasonable commercial practices among dealers in the type attorneys= fees and costs, whether suit be brought or not, and any court costs. Any election of property subject to the disposition; remedies by Seller under this Section 20(a) shall be deemed commercially reasonable.
(d) Any cash proceeds of any disposition made in writing by the Administrative Agent of any of the Collateral Seller, and shall be applied by the Administrative Agent reserved to payment Seller in all respects unless a court of expenses in connection with the Collateral, including reasonable attorneys’ fees and legal expenses, and thereafter to the payment of any and all of the Liabilities in the order of application set forth in Section 8.03 of the Credit Agreement, and thereafter any surplus will be paid promptly to the Grantor. The Administrative Agent need not apply or pay over for application noncash proceeds of collection and enforcement unless: (i) the failure to do so would be commercially unreasonable and (ii) the affected Grantor has provided the Administrative Agent with a written demand to apply or pay over such noncash proceeds on such basiscompetent jurisdi ction rules otherwise.
Appears in 1 contract
Sources: Unit Purchase Agreement
Default. Whenever a Default shall be existing, the Administrative Agent may exercise from time to time any and all rights and remedies available to it under applicable law, in addition to those described in this section below.
(a) Each Grantor agrees, in case of Default, (i) at the Administrative Agent’s request, to assemble, at its expense, all its Inventory and other Goods (other than Fixtures) at a convenient place or places acceptable to the Administrative Agent, and (ii) at the Administrative Agent’s request, to execute all such documents and do all such other things which may be necessary or desirable in order to enable the Administrative Agent or its nominee to be registered as owner of the Intellectual Property with any competent registration authority.
(b) Notice of the intended disposition of the Collateral may be given by first-class mail, hand-delivery (through a delivery service or otherwise), facsimile or E-mail, and shall be deemed to have been “sent” upon deposit in the U.S. Mails with adequate postage properly affixed, upon delivery to an express delivery service or upon the electronic submission through telephonic or Internet services, as applicable. Each Grantor hereby agrees and acknowledges that (i) with respect to collateral that is: (A) perishable or threatens to decline speedily in value, or (B) is of a type customarily sold on a recognized market (including but not limited to, Investment Property), no notice of disposition need be given; and (ii) with respect to Collateral not described in clause (i) above, notification sent after Upon the occurrence of and during the continuance of any Event of Default, Pledgee may, without notice to or demand upon Pledgor, which are expressly waived by Pledgor (except for notices or demands otherwise required by applicable laws to the extent not effectively waived by Pledgor), and without releasing Pledgor from any of its obligations with respect to the Secured Obligations:
a. notify any and all obligors under the Pledged Note (the "Obligors) that the Pledged Collateral has been assigned to Pledgee and that all payments and other performance are to be made and rendered directly and exclusively to Pledgee, and in its own name supplement, modify, amend, renew, extend, accelerate, accept partial payments or performance on, make allowances and adjustments and issue credits with respect to, give approvals, waivers and consents under, release, settle, compromise, compound, ▇▇▇ for, collect or otherwise liquidate, enforce or deal with any of the Pledged Collateral, including judicial or non-judicial sale or foreclosure of any security for any Pledged Collateral and collection of all amounts past due and unpaid (Pledgor agreeing not to take any such action after the occurrence of any Event of Default without prior written authorization from Pledgee);
b. take possession of the Pledged Collateral with or without judicial process; enter any premises where any Pledged Collateral may be located for the purpose of taking possession of such Pledged Collateral or removing the same; and require Pledgor, on demand, to assemble all Pledged Collateral not then in the possession of Pledgee and make it available to Pledgee at a Default place selected by Pledgee which is reasonably convenient for both parties;
c. endorse, in the name of Pledgor, all checks, drafts and ten days before other evidences of payment relating to the Pledged Collateral, and receive, open and dispose of all mail addressed to Pledgor and notify the postal authorities to change the address for delivery of such mail to such address as Pledgee may designate;
d. foreclose the liens created under this Pledge Agreement or under any proposed disposition provides notice within a reasonable time before disposition.
(c) Each Grantor hereby agrees and acknowledges that a commercially reasonable disposition other agreement relating to the Pledged Collateral by any available judicial procedure or without judicial process; sell, transfer, assign or otherwise dispose of Inventorythe Pledged Collateral or any part thereof in one or more parcels at public or private sale, Equipmentfor cash, Computer Hardware and Softwareon credit or for future delivery, or Intellectual Property may otherwise with or without representations or warranties, and upon such terms as shall be acceptable to Pledgee; and
e. protect, exercise and enforce any and all other remedies provided under this Pledge Agreement or by lease applicable laws, including all remedies of a secured party under the Uniform Commercial Code as adopted in Colorado. If Pledgee determines to sell or license of, in addition foreclose the security for any Pledged Collateral or to the sale of, such Collateral. Each Grantor further agrees and acknowledges that a dispositiontake any other action to enforce any Pledged Collateral or any security therefor: (i) made in the usual manner on Pledgee may proceed by judicial or non-judicial action even though such action may release any recognized marketObligor from further liability thereunder, or (ii) a disposition Pledgee may credit bid all or any part of the amount owing under any Pledged Collateral in connection with any sale or foreclosure of security therefor and become the purchaser at the price current in any recognized market at the time of dispositionsuch sale or foreclosure, or and (iii) a disposition in conformity with reasonable commercial practices among dealers if Pledgee should acquire any property at any such sale or foreclosure by credit bid of all or any part of any amount owing under the Pledged Collateral, such property shall be held by Pledgee as additional collateral for the Secured Obligations. Following the occurrence of any Event of Default, any cash held by Pledgee as Pledged Collateral and any cash proceeds realized by Pledgee from the collection, sale or other disposal or liquidation of any Pledged Collateral may in the type discretion of property subject Pledgee, be held as additional collateral for the Secured Obligations and/or then or at any time thereafter applied against the Secured Obligations in whole or in part in such order and manner as Pledgee shall elect. Each of the remedies provided in this Pledge Agreement is cumulative and not exclusive of, and shall not prejudice, any other remedy provided in this Pledge Agreement or by applicable laws or under the Note or any other document securing it. Each remedy may be exercised from time to time as often as deemed necessary by Pledgee, and in such order and manner as Pledgee may determine. This Pledge Agreement is independent of any other security for the Secured Obligations, and upon the occurrence of any event of Default, Pledgee may proceed in the enforcement of this Pledge Agreement independently of any other remedy that Pledgee may at any time hold with respect to the disposition; shall be deemed commercially reasonablePledged Collateral or any such other security.
(d) Any cash proceeds of any disposition by the Administrative Agent of any of the Collateral shall be applied by the Administrative Agent to payment of expenses in connection with the Collateral, including reasonable attorneys’ fees and legal expenses, and thereafter to the payment of any and all of the Liabilities in the order of application set forth in Section 8.03 of the Credit Agreement, and thereafter any surplus will be paid promptly to the Grantor. The Administrative Agent need not apply or pay over for application noncash proceeds of collection and enforcement unless: (i) the failure to do so would be commercially unreasonable and (ii) the affected Grantor has provided the Administrative Agent with a written demand to apply or pay over such noncash proceeds on such basis.
Appears in 1 contract
Default. Whenever If a Default or Event of Default exists (or if Borrower fails to give directions as permitted under SECTION 2.13(a)), any payment or prepayment (including proceeds from the exercise of any Rights) shall be existing, applied to the Administrative Agent may exercise from time to time any and all rights and remedies available to it under applicable law, Obligations in addition to those described in this section below.
(a) Each Grantor agrees, in case of Default, the following order: (i) at to the Administrative Agent’s request, to assemble, at its expense, all its Inventory and other Goods (other than Fixtures) at a convenient place or places acceptable to payment of enforcement expenses incurred by the Administrative Agent, and including Attorney Costs; (ii) at to the Administrative Agent’s requestratable payment of all other fees, to execute all such documents expenses, and do all such other things indemnities for which may be necessary or desirable in order to enable the Administrative Agent or its nominee to be registered Lenders have not been paid or reimbursed in accordance with the Loan Documents (as owner used in this SECTION 2.13(b)(II), a "RATABLE PAYMENT" for any Lender or the Administrative Agent shall be, on any date of determination, that proportion which the portion of the Intellectual Property with total fees, expenses, and indemnities owed to such Lender or the Administrative Agent bears to the total aggregate fees and indemnities owed to all Lenders and the Administrative Agent on such date of determination); (iii) to the ratable payment of accrued and unpaid interest on the Outstanding Amount (as used in this SECTION 2.13(b)(III), "RATABLE PAYMENT" means, for any competent registration authority.
Lender, on any date of determination, that proportion which the accrued and unpaid interest on the Outstanding Amount owed to such Lender bears to the total accrued and unpaid interest on the Outstanding Amount owed to all Lenders); (biv) Notice to the ratable payment of the intended disposition of the Collateral may be given by first-class mail, hand-delivery Outstanding Amount (through a delivery service or otherwiseas used in this SECTION 2.13(b)(IV), facsimile or E-mail"RATABLE PAYMENT" means for any Lender, and shall be deemed on any date of determination, that proportion which the Outstanding Amount owed to have been “sent” upon deposit in such Lender bears to the U.S. Mails with adequate postage properly affixed, upon delivery Outstanding Amount owed to an express delivery service or upon the electronic submission through telephonic or Internet services, as applicable. Each Grantor hereby agrees and acknowledges that (i) with respect to collateral that is: (A) perishable or threatens to decline speedily in value, or (B) is of a type customarily sold on a recognized market (including but not limited to, Investment Propertyall Lenders), no notice of disposition need be given; and (iiv) with respect to Collateral not described in clause (i) above, notification sent after the occurrence of and during the continuance of a Default and ten days before any proposed disposition provides notice within a reasonable time before disposition.
(c) Each Grantor hereby agrees and acknowledges that a commercially reasonable disposition of Inventory, Equipment, Computer Hardware and Software, or Intellectual Property may be by lease or license of, in addition to the sale of, such Collateral. Each Grantor further agrees and acknowledges that a disposition: (i) made in the usual manner on any recognized market, or (ii) a disposition at the price current in any recognized market at the time of disposition, or (iii) a disposition in conformity with reasonable commercial practices among dealers in the type of property subject to the disposition; shall be deemed commercially reasonable.
(d) Any cash proceeds of any disposition by the Administrative Agent of any of the Collateral shall be applied by the Administrative Agent to payment of expenses in connection with the Collateral, including reasonable attorneys’ fees and legal expenses, and thereafter to the payment of any and all of the Liabilities remaining Obligations, if any, in the order of application set forth in Section 8.03 of the Credit Agreement, and thereafter any surplus will be paid promptly manner Required Lenders deem appropriate. Subject to the Grantor. The provisions of ARTICLE IX and provided that Administrative Agent need shall not apply in any event be bound to inquire into or pay over for application noncash proceeds to determine the validity, scope, or priority of collection any interest or entitlement of any Lender and enforcement unless: may suspend all payments or seek appropriate relief (iincluding, without limitation, instructions from Required Lenders or an action in the nature of interpleader) in the failure event of any doubt or dispute as to do so would be commercially unreasonable and (ii) the affected Grantor has provided the any apportionment or distribution contemplated hereby, Administrative Agent shall promptly distribute such amounts to each Lender in accordance with a written demand to apply or pay over such noncash proceeds on such basisthe Agreement and the related Loan Documents.
Appears in 1 contract
Default. Whenever a Default shall be existing, the Administrative Agent may exercise from time to time any and all rights and remedies available to it under applicable law, in addition to those described in this section below.
(a) Each Grantor agrees, in case of Default, (i) at the Administrative Agent’s request, to assemble, at its expense, all its Inventory and other Goods (other than Fixtures) at a convenient place or places acceptable to the Administrative Agent, and (ii) at the Administrative Agent’s request, to execute all such documents and do all such other things which may be necessary or desirable in order to enable the Administrative Agent or its nominee to be registered as owner of the Intellectual Property with any competent registration authority.
(b) Notice of the intended disposition of the Collateral may be given by first-class mail, hand-delivery (through a delivery service or otherwise), facsimile or E-mail, and shall be deemed to have been “sent” upon deposit in the U.S. Mails with adequate postage properly affixed, upon delivery to an express delivery service or upon the electronic submission through telephonic or Internet services, as applicable. Each Grantor hereby agrees and acknowledges that (i) with respect to collateral that is: (A) perishable or threatens to decline speedily in value, or (B) is of a type customarily sold on a recognized market (including but not limited to, Investment Property), no notice of disposition need be given; and (ii) with respect to Collateral not described in clause (i) above, notification sent after the The occurrence of and during the continuance of a Default and ten days before any proposed disposition provides notice within a reasonable time before disposition.
(c) Each Grantor hereby agrees and acknowledges that a commercially reasonable disposition of Inventory, Equipment, Computer Hardware and Software, or Intellectual Property may be by lease or license of, in addition to the sale of, such Collateral. Each Grantor further agrees and acknowledges that a disposition: (i) made in the usual manner on any recognized market, or (ii) a disposition at the price current in any recognized market at the time of disposition, or (iii) a disposition in conformity with reasonable commercial practices among dealers in the type of property subject to the disposition; shall be deemed commercially reasonable.
(d) Any cash proceeds of any disposition by the Administrative Agent of any of the Collateral following events, among others, shall constitute an event of default ("Event of Default"): (A) The failure of RoomSystem to receive any Payment on the date on which it is due which failure is not cured within five (5) days after notice thereof from RoomSystem or Assignee; (B) The failure by Hotel to perform or observe any other term, covenant or condition of this Agreement or any Equipment Schedule or any Maintenance Agreement, which is not cured within thirty (30) days after notice thereof from RoomSystem or Assignee; (C) Any affirmative act of insolvency by Hotel, or the filing by Hotel of any petition or action under any bankruptcy, reorganization, insolvency arrangement, liquidation dissolution or moratorium law, or any other law or laws for the relief of, or relating to debtors; (D) The filing of any involuntary petition against Hotel under any bankruptcy, reorganization, insolvency arrangement, liquidation, dissolution or moratorium law for the relief of or relating to debtors which is not dismissed within sixty (60) days thereafter, or the appointment of any receiver, liquidator or trustee to take possession of any substantial portion of the properties of Hotel, unless the appointment is set aside or ceases to be applied in effect within sixty (60) days from the date of said filing or appointment; (E) The subjection of a substantial part of Hotel's property or any Placed Item to any levy, seizure, assignment or sale for or by the Administrative Agent any creditor or governmental agency; (F) Any representation or warranty made by Hotel in this Agreement or in any Equipment Schedule or in any document furnished by Hotel to payment of expenses RoomSystem or Assignee in connection with the Collateral, including reasonable attorneys’ fees and legal expenses, and thereafter this Agreement or any Equipment Schedule or with respect to the payment of any and all acquisition or use of the Liabilities Equipment shall be untrue in the order of application set forth in Section 8.03 of the Credit any material respect at any time; (G) The default by Hotel under any other lease or loan agreement which materially and/or adversely affects Hotel's ability to perform its obligations under this Agreement, and thereafter ; or (H) if any surplus will be paid promptly to the Grantor. The Administrative Agent need not apply Placed Item is sold or pay over for application noncash proceeds of collection and enforcement unless: (i) the failure to do so would be commercially unreasonable and (ii) the affected Grantor has provided the Administrative Agent with a written demand to apply lien or pay over such noncash proceeds on such basisencumbrance placed upon it by someone other than RoomSystem or Assignee.
Appears in 1 contract
Sources: Hotel Revenue Sharing Lease Agreement (Eroom System Technologies Inc)
Default. Whenever a Default Any one or more of the following shall be existing, the Administrative Agent may exercise from time to time any and all rights and remedies available to it an Event of Default under applicable law, in addition to those described in this section below.Agreement:
(a) Each Grantor agrees, in case of Default, (i) at the Administrative Agent’s request, failure of Borrower or any Pledging Affiliate to assemble, at its expense, all its Inventory and other Goods (other than Fixtures) at a convenient place pay or places acceptable to the Administrative Agent, and perform any Obligation when due;
(ii) at the Administrative Agent’s request, Any representation or warranty of Borrower or any Pledging Affiliate to execute all such documents and do all such other things which may be necessary or desirable in order to enable the Administrative Agent or its nominee to be registered as owner of the Intellectual Property with any competent registration authority.
(b) Notice of the intended disposition of the Collateral may be given by first-class mail, hand-delivery (through a delivery service or otherwise), facsimile or E-mail, and shall be deemed to have been “sent” upon deposit in the U.S. Mails with adequate postage properly affixed, upon delivery to an express delivery service or upon the electronic submission through telephonic or Internet services, as applicable. Each Grantor hereby agrees and acknowledges that (i) with respect to collateral that is: (A) perishable or threatens to decline speedily in value, or (B) FHLBank is of a type customarily sold on a recognized market (including but not limited to, Investment Property), no notice of disposition need be given; and (ii) with respect to Collateral not described in clause (i) above, notification sent after the occurrence of and during the continuance of a Default and ten days before any proposed disposition provides notice within a reasonable time before disposition.
(c) Each Grantor hereby agrees and acknowledges that a commercially reasonable disposition of Inventory, Equipment, Computer Hardware and Software, or Intellectual Property may be by lease or license of, in addition to the sale of, such Collateral. Each Grantor further agrees and acknowledges that a disposition: (i) made in the usual manner on any recognized market, or (ii) a disposition at the price current in any recognized market untrue at the time of disposition, made or deemed made and FHLBank deems such representation or warranty material;
(iii) a disposition in conformity with reasonable commercial practices among dealers in the type of property subject Borrower or any Pledging Affiliate fail to furnish promptly after FHLBank’s request financial information or information related to the disposition; shall be deemed commercially reasonable.Collateral, to inspect any financial records or documents pertaining to the Collateral, or to comply promptly with any direction that FHLBank gives pursuant to this Blanket Agreement, (iv) failure of Qualifying Collateral to have a Lendable Collateral Value equal to or more than the current Collateral Maintenance Requirement that the Credit Policy requires;
(dv) Any cash proceeds failure of Borrower or any Pledging Affiliate to perform any other obligation under this Blanket Agreement within ten (10) days after FHLBank gives notice of the need to perform the same;
(vi) an injunction or attachment issues against any part of the property owned by Borrower or any Pledging Affiliate which FHLBank considers materially adverse to Borrower or such Pledging Affiliate’s property;
(vii) a receiver, conservator, or liquidator is appointed for any part of the property of Borrower or any Pledging Affiliate, or a supervisory authority, receiver, or conservator assumes management of any disposition by part of the Administrative Agent business of Borrower or any Pledging Affiliate;
(viii) Borrower or any Pledging Affiliate commences any of the Collateral shall be applied by the Administrative Agent to payment of expenses in connection with the Collateral, including reasonable attorneys’ fees and legal expenses, and thereafter to the payment of following or any and all of the Liabilities following is commenced against Borrower or any Pledging Affiliate: proceedings in bankruptcy, arrangement, reorganization, receivership, conservatorship, assignment for the benefit of creditors, composition, or other similar laws or procedures for the relief of debtors;
(ix) Borrower’s membership in FHLBank or its eligibility to borrow Advances as a nonmember state housing finance agency ceases for any reason;
(x) FHLBank notifies Borrower that a change in the order condition or business or other affairs of application set forth Borrower or any Pledging Affiliate, financial or otherwise, has occurred that FHLBank considers to materially impair Borrower’s financial or business status or FHLBank’s security or increases its risk; or
(xi) FHLBank in Section 8.03 of the Credit Agreement, good f▇▇▇▇ ▇▇▇▇▇ itself insecure and thereafter any surplus will be paid promptly to the Grantor. The Administrative Agent need not apply or pay over for application noncash proceeds of collection and enforcement unless: (i) the failure to do so would be commercially unreasonable and (ii) the affected Grantor has provided the Administrative Agent with a written demand to apply or pay over such noncash proceeds on such basisnotifies Borrower.
Appears in 1 contract
Sources: Blanket Security Agreement (National Consumer Cooperative Bank /Dc/)
Default. Whenever a Default shall be existingUpon the occurrence and during the continuance of any Event of Default, the Administrative Agent may exercise from is given full power and authority, then or at any time thereafter, to time sell, assign, deliver or collect the whole or any and all rights and remedies available part of the Collateral, or any substitute therefor or any addition thereto, in one or more sales, with or without any previous demands or demand of performance or, to it under applicable the extent permitted by law, in addition to those described in this section below.
(a) Each Grantor agreesnotice or advertisement, in case of Default, (i) such order as the Administrative Agent may elect; and any such sale may be made either at public or private sale at the Administrative Agent’s requestplace of business or elsewhere, to assembleeither for cash or upon credit or for future delivery, at its expense, all its Inventory and other Goods (other than Fixtures) at a convenient place such price or places acceptable to prices as the Administrative Agent, Agent may reasonably deem fair; and (ii) at the Administrative Agent’s request, to execute all such documents and do all such other things which may be necessary or desirable in order to enable the Administrative Agent or any other Revolving Secured Party may be the purchaser of any or all Collateral so sold and hold the same thereafter in its nominee to be registered as owner own right free from any claim of the Intellectual Property with Pledgor or right of redemption. The Administrative Agent shall use good faith efforts to promptly provide notice to the Pledgor of all written notices of default by the Company delivered by the Administrative Agent under the Revolving Credit Agreement, provided that the failure to deliver such notice shall not impose any competent registration authority.
(b) Notice liability on the Administrative Agent nor impair any of the intended disposition of the Collateral may be given by first-class mailAdministrative Agent ‘s rights or remedies under this Agreement. If, hand-delivery (through a delivery service or otherwise), facsimile or E-mail, and shall be deemed to have been “sent” upon deposit in the U.S. Mails with adequate postage properly affixed, upon delivery to an express delivery service or upon the electronic submission through telephonic or Internet services, as applicable. Each Grantor hereby agrees and acknowledges that (i) with respect to collateral that is: (A) perishable or threatens to decline speedily in value, or (B) is of a type customarily sold on a recognized market (including but not limited to, Investment Property), no notice of disposition need be given; and (ii) with respect to Collateral not described in clause (i) above, notification sent after the occurrence of and during the continuance of a an Event of Default and ten days before any proposed disposition provides by the Company, the Administrative Agent has given written notice within a reasonable time before disposition.
(c) Each Grantor hereby agrees and acknowledges that a commercially reasonable disposition of Inventory, Equipment, Computer Hardware and Software, or Intellectual Property may be by lease or license of, in addition to the sale ofPledgor of the Administrative Agent’s intent to exercise any remedies under the Loan Documents, such Collateral. Each Grantor further agrees the Pledgor shall not, other than in connection with estate planning and acknowledges that a disposition: administration, sell, assign or otherwise transfer any other Equity Interests owned by Pledgor in Speedway until the earlier of (i) made the Facility Termination Date, (ii) the date the Administrative Agent gives notice to the Pledgor that such restriction is no longer in place, and (iii) the date the Event of Default shall cease to be continuing. Demands of performance, advertisements and presence of property and sale and notice of sale are hereby waived to the extent permissible by law. Any sale hereunder may be conducted by an auctioneer or any officer or agent of the Administrative Agent. The Pledgor recognizes that the Administrative Agent may be unable to effect a public sale of the Collateral by reason of certain prohibitions contained in the usual manner on Securities Act of 1933, as amended (the “Securities Act”), and applicable state law, and may be otherwise delayed or adversely affected in effecting any recognized marketsale by reason of present or future restrictions thereon imposed by governmental authorities, and that as a consequence of such prohibitions and restrictions the Administrative Agent may be compelled (i) to resort to one or more private sales to a restricted group of purchasers who will be obliged to agree, among other things, to acquire the Collateral for their own account, for investment and not with a view to the distribution or resale thereof, or (ii) a disposition at the price current in to seek regulatory approval of any recognized market at the time of dispositionproposed sale or sales, or (iii) a disposition in conformity with reasonable commercial practices among dealers in to limit the type amount of property Collateral sold to any Person or group. The Pledgor agrees and acknowledges that private sales so made may be at prices and upon terms less favorable to the Pledgor than if such Collateral was sold either at public sales or at private sales not subject to the disposition; shall be deemed commercially reasonable.
(d) Any cash proceeds of any disposition by other regulatory restrictions, and that the Administrative Agent has no obligation to delay the sale of any of the Collateral shall be applied by for the Administrative Agent period of time necessary to payment of expenses in connection with permit Speedway to register or otherwise qualify the Collateral, including reasonable attorneys’ fees and legal expenseseven if Speedway would agree to register or otherwise qualify such Collateral for public sale under the Securities Act or applicable state law. The Pledgor further agrees, and thereafter to the payment extent permitted by applicable law, that the use of any and all private sales made under the foregoing circumstances to dispose of the Liabilities Collateral shall be deemed to be dispositions in a commercially reasonable manner. The Pledgor hereby acknowledges that a ready market may not exist for the order of application set forth Pledged Interests if they are not traded on a national securities exchange or quoted on an automated quotation system and agrees and acknowledges that in Section 8.03 such event the Pledged Interests may be sold for an amount less than a pro rata share of the Credit Agreement, and thereafter any surplus will be paid promptly fair market value of Speedway’s assets minus its liabilities. In addition to the Grantor. The Administrative Agent need not apply foregoing, the Revolving Secured Parties may exercise such other rights and remedies as may be available under the Loan Documents, at law (including without limitation the UCC) or pay over for application noncash proceeds of collection and enforcement unless: (i) the failure to do so would be commercially unreasonable and (ii) the affected Grantor has provided the Administrative Agent with a written demand to apply or pay over such noncash proceeds on such basisin equity.
Appears in 1 contract
Default. Whenever In the event of a Default demand for payment by the Seller under the terms of the Note, or a default under the terms of this Agreement, the Stock Purchase Agreement, or the Employment and Non-Compete Agreement, (any of such occurrences being hereinafter referred to as a "Default"), Seller may do any or all of the following, all of which rights and remedies shall be existing, the Administrative Agent cumulative and any and all of which may exercise be exercised from time to time and as often as Seller shall deem necessary or desirable:
a. Exercise any and all rights rights, privileges and remedies available to it Seller under applicable lawthis Agreement, the Note, the Stock Purchase Agreement between the Seller and Pledgor, of even date herewith, the Employment and Non-Compete Agreement between the Seller and Pledgor, of even date herewith, or under any other instrument, security agreement or other agreement executed by Pledgor, in addition favor of Seller;
b. Exercise any and all rights, privileges and remedies available to those described Seller as a secured party under the Uniform Commercial Code as enacted in this section below.any applicable jurisdiction, and any and all rights, privileges and remedies allowed by all other applicable laws;
(a) Each Grantor agrees, in case c. Sell or otherwise dispose of Default, (i) the Shares or any part thereof at the Administrative Agent’s request, any time and from time to assembletime, at its expense, all its Inventory and a public or private sale or make other Goods (other than Fixtures) at a convenient place or places acceptable to the Administrative Agent, and (ii) at the Administrative Agent’s request, to execute all such documents and do all such other things which may be necessary or desirable in order to enable the Administrative Agent or its nominee to be registered as owner of the Intellectual Property with any competent registration authority.
(b) Notice of the intended disposition of the Collateral may be given by first-class mail, hand-delivery (through a delivery service or otherwise), facsimile or E-mail, and shall be deemed to have been “sent” upon deposit in the U.S. Mails with adequate postage properly affixed, upon delivery to an express delivery service or upon the electronic submission through telephonic or Internet services, as applicable. Each Grantor hereby agrees and acknowledges that (i) with respect to collateral that is: (A) perishable or threatens to decline speedily in value, or (B) is of a type customarily sold on a recognized market (including but not limited to, Investment Property), no notice of disposition need be given; and (ii) with respect to Collateral not described in clause (i) above, notification sent after the occurrence of and during the continuance of a Default and ten days before any proposed disposition provides notice within a reasonable time before disposition.
(c) Each Grantor hereby agrees and acknowledges that a commercially reasonable disposition of Inventorythe Shares or any portion thereof, Equipmentwithout advertisement or notice of sale, Computer Hardware and Softwareall of which are hereby waived, or Intellectual Property may be by lease or license of, in addition after five (5) days' notice to the Pledgor, which notice Pledgor acknowledges is sufficient and reasonable, and the Seller may purchase the Shares or any portion thereof at any public sale. The proceeds of the public or private sale of, such Collateral. Each Grantor further agrees and acknowledges that a disposition: or other disposition shall be applied (i) made in the usual manner on any recognized market, or (ii) a disposition at the price current in any recognized market at the time of disposition, or (iii) a disposition in conformity with reasonable commercial practices among dealers in the type of property subject to the disposition; shall be deemed commercially reasonable.
(d) Any cash proceeds of any disposition by the Administrative Agent of any of the Collateral shall be applied by the Administrative Agent to payment of expenses costs incurred in connection with the Collateralsale, including reasonable attorneys’ fees and legal expensesexpressly including, and thereafter to the payment of without limitation, any and all of the Liabilities in the order of application set forth in costs under Section 8.03 of the Credit Agreement, and thereafter any surplus will be paid promptly to the Grantor. The Administrative Agent need not apply or pay over for application noncash proceeds of collection and enforcement unless: (i) the failure to do so would be commercially unreasonable and hereof; (ii) the affected Grantor has provided the Administrative Agent with a written demand to apply or pay over such noncash proceeds any unpaid interest which may have accrued on such basis.any obligations secured hereby; (iii) to any
Appears in 1 contract
Sources: Stock Purchase Agreement (National Boston Medical Inc)
Default. Whenever a Default shall be existing, the Administrative Agent may exercise from time to time any and all rights and remedies available to it under applicable law, in addition to those described in this section below.
(a) Each Grantor agrees, in case of Default, (i) at the Administrative Agent’s request, If Purchaser shall fail or refuse to assemble, at its expense, all its Inventory and other Goods (make Settlement hereunder for any reason other than Fixtures) at a convenient place termination of this Agreement by either party as provided herein or places acceptable a default by Seller under the terms of this Agreement, or in the event Purchaser fails to post any portion of the Administrative AgentDeposit as required hereunder, the amount of damages not being ascertainable, the Deposit provided in Section 4 above shall be forfeited and the same shall forthwith be delivered by the Escrow Agent to Seller as liquidated damages. In the event of such default by Purchaser, Seller’s sole remedy shall be restricted to retention of said Deposit (or so much thereof as has been posted as of the time of such default), and (ii) at the Administrative Agent’s request, Purchaser shall have no other responsibility or liability of any kind to execute all Seller by virtue of such documents and do all such other things which default. The foregoing shall not in any manner limit any indemnification obligation of Purchaser as may be necessary or desirable in order to enable the Administrative Agent or its nominee to be registered as owner of the Intellectual Property with any competent registration authoritycontained herein.
(b) Notice If Seller, through no fault of Purchaser, shall fail to perform its obligations hereunder to make full settlement in accordance with the intended disposition of terms hereof or is otherwise in default hereunder, Purchaser shall have the Collateral may be given by first-class mail, hand-delivery (through a delivery service or otherwise), facsimile or E-mail, and shall be deemed right to have been “sent” upon deposit in the U.S. Mails with adequate postage properly affixed, upon delivery to an express delivery service or upon the electronic submission through telephonic or Internet services, as applicable. Each Grantor hereby agrees and acknowledges that (i) to terminate this Agreement and receive a return of the Deposit and the right to pursue an action to recover its actual third party out of pocket expenses in connection with the transaction contemplated hereby, in an amount not to exceed $100,000, or (ii) seek specific enforcement of the terms hereof (provided that no such action in specific performance shall seek to require Seller to do any of the following: (x) change the condition of the Property or restore the same after any fire or other casualty; (y) expend money or post a bond to remove a title encumbrance of defect or correct any matter shown on a survey of the Property; or (z) secure any permit, approval, or consent with respect to collateral that is: the Property or Seller’s conveyance of the Property (A) perishable except for any consent required under Seller’s organizational documents or threatens to decline speedily in value, or (B) is of a type customarily sold on a recognized market (including but not limited to, Investment under any mortgage encumbering the Property); Purchaser hereby waiving any other right or remedy on account of such default. The limitation of remedies and damages as is set forth in Section 11(b) or this section shall not apply to any default by Seller discovered following Settlement; provided however that absent the fraud or intentional misrepresentation of Seller, Seller’s liability for any breach or default discovered subsequent to Settlement shall not exceed the sum of $800,000 in the aggregate. The foregoing limitation on remedies and damages shall not apply if Seller takes any affirmative act that renders the remedy of specific performance not available or practical such as the conveyance of the Property or an interest therein to another party, and in such case Purchaser shall be entitled to recover its actual damages; provided that in no notice of disposition need event shall Purchaser be given; and (ii) with respect entitled to Collateral not described in clause (i) consequential, exemplary or punitive damages or damages for lost opportunity or lost profits. Except as set forth above, notification sent after in no event shall Purchaser be entitled to an award of compensatory, consequential or other damages against Seller hereunder or on account of the occurrence of and during the continuance of a Default and ten days before any proposed disposition provides notice within a reasonable time before dispositionReal Property.
(c) Each Grantor hereby agrees and acknowledges that a commercially reasonable disposition In the event of Inventoryany action brought by either party under the terms hereof, Equipment, Computer Hardware and Software, or Intellectual Property may be by lease or license of, the prevailing party in addition to the sale of, such Collateral. Each Grantor further agrees and acknowledges that a disposition: (i) made in the usual manner on any recognized market, or (ii) a disposition at the price current in any recognized market at the time of disposition, or (iii) a disposition in conformity with reasonable commercial practices among dealers in the type of property subject to the disposition; action shall be deemed commercially reasonable.
(d) Any cash proceeds of any disposition by entitled to recover from the Administrative Agent of any of the Collateral shall be applied by the Administrative Agent to payment of other its costs and expenses incurred in connection with the Collateralsuch action, including reasonable attorneys’ fees and legal expenses, and thereafter to the payment of any and all of the Liabilities in the order of application set forth in Section 8.03 of the Credit Agreement, and thereafter any surplus will be paid promptly to the Grantor. The Administrative Agent need not apply or pay over for application noncash proceeds of collection and enforcement unless: (i) the failure to do so would be commercially unreasonable and (ii) the affected Grantor has provided the Administrative Agent with a written demand to apply or pay over such noncash proceeds on such basiscourt costs.
Appears in 1 contract
Sources: Purchase and Sale Agreement (National Rural Utilities Cooperative Finance Corp /Dc/)
Default. Whenever a Default shall be existing, the Administrative Agent may exercise from time to time any and all rights and remedies available to it under applicable law, in addition to those described in this section below.
(a) Each Grantor agrees, in case of the following shall constitute an "Event of Default, " hereunder: (i) at the Administrative Agent’s request, to assemble, at its expense, all its Inventory and other Goods (other than Fixtures) at a convenient place or places acceptable to occurrence of an Event of Default under the Administrative Agent, and Loan Agreement; (ii) at failure by the Administrative Agent’s requestBorrower to perform any material obligations under this Agreement or under any other agreement between the Borrower and the Bank or by the Borrower in favor of the Bank, time being of the essence (subject, however, to execute all such documents any applicable notice and do all such other things which may be necessary cure periods); (iii) material falsity in any certificate, statement, representation, warranty or desirable in order to enable the Administrative Agent audit at any time furnished by or its nominee to be registered as owner on behalf of the Intellectual Property Borrower or any endorser or guarantor or any other party liable for payment of all or part of the Indebtedness, pursuant to or in connection with this Agreement or otherwise to the Bank, including warranties in this Agreement and including any competent registration authorityomission to disclose any substantial contingent or liquidated liabilities or any material adverse change in facts disclosed by any certificate, statement, representation, warranty or audit furnished to the Bank; or (iv) any attachment or levy against the Collateral or any other occurrence which inhibits the Bank's free access to the Collateral.
(b) Notice of the intended disposition of the Collateral may be given by first-class mail, hand-delivery (through a delivery service or otherwise), facsimile or E-mail, and shall be deemed to have been “sent” upon deposit in the U.S. Mails with adequate postage properly affixed, upon delivery to an express delivery service or upon the electronic submission through telephonic or Internet services, as applicable. Each Grantor hereby agrees and acknowledges that (i) with respect to collateral that is: (A) perishable or threatens to decline speedily in value, or (B) is of a type customarily sold on a recognized market (including but not limited to, Investment Property), no notice of disposition need be given; and (ii) with respect to Collateral not described in clause (i) above, notification sent after Upon the occurrence of an Event of Default, the Bank may exercise such remedies and during rights as are available hereunder, under the continuance Loan Agreement or otherwise (including without limitation, acceleration of a Default and ten days before the Indebtedness or any proposed disposition provides notice within a reasonable time before dispositionpart thereof).
(c) Each Grantor hereby agrees and acknowledges that a commercially reasonable disposition Upon the occurrence of Inventoryany Event of Default, Equipment, Computer Hardware and Software, or Intellectual Property may be by lease or license of, in addition the Bank's rights with respect to the sale of, such CollateralCollateral shall be those of a secured party under the Uniform Commercial Code and any other applicable law in effect from time to time. Each Grantor further agrees The Bank shall also have any additional rights granted herein and acknowledges that a disposition: (i) made in the usual manner on any recognized market, or (ii) a disposition at the price current in any recognized market at other agreement now or hereafter in effect between the time Borrower and the Bank. If requested by the Bank after the occurrence of dispositionan Event of Default, or (iii) a disposition in conformity with reasonable commercial practices among dealers in the type of property subject Borrower will assemble the Collateral and make it available to the disposition; shall Bank at a place to be deemed commercially reasonabledesignated by the Bank.
(d) Any cash proceeds of The Borrower agrees that any disposition notice by the Administrative Agent Bank of the sale or disposition of the Collateral or any other intended action hereunder, whether required by the Uniform Commercial Code or otherwise, shall constitute reasonable notice to the Borrower if the notice is mailed by regular or certified mail, postage prepaid, at least ten days before the action to the Borrower's address as specified in this Agreement or to any other address which the Borrower has specified in writing to the Bank as the address to which notices shall be given to the Borrower.
(e) The Borrower shall pay all costs and expenses incurred by the Bank in enforcing this Agreement, realizing upon any Collateral and collecting any Indebtedness (including a reasonable attorney's fee) whether suit is brought or not and whether incurred in connection with collection, trial, appeal or otherwise and, to the extent of the Borrower's liability for repayment of any of the Collateral Indebtedness, shall be applied by liable for any deficiencies in the Administrative Agent event the proceeds of disposition of the Collateral do not satisfy the Indebtedness in full. Nothing contained herein shall be deemed to payment of expenses in connection with require the Collateral, including reasonable attorneys’ fees and legal expenses, and thereafter Bank to proceed against the Collateral or any part thereof before or as a condition to the payment pursuit of any of its other rights and all of the Liabilities in the order of application set forth in Section 8.03 of the Credit Agreement, and thereafter any surplus will be paid promptly remedies with respect to the Grantor. The Administrative Agent need not apply or pay over for application noncash proceeds of collection and enforcement unless: (i) the failure to do so would be commercially unreasonable and (ii) the affected Grantor has provided the Administrative Agent with a written demand to apply or pay over such noncash proceeds on such basisIndebtedness.
Appears in 1 contract
Default. Whenever a Default Debtor shall be existing, the Administrative Agent may exercise from time to time any and all rights and remedies available to it in default under applicable law, in addition to those described in this section below.
(a) Each Grantor agrees, in case of Default, (i) at the Administrative Agent’s request, to assemble, at its expense, all its Inventory and other Goods (other than Fixtures) at a convenient place or places acceptable to the Administrative Agent, and (ii) at the Administrative Agent’s request, to execute all such documents and do all such other things which may be necessary or desirable in order to enable the Administrative Agent or its nominee to be registered as owner of the Intellectual Property with any competent registration authority.
(b) Notice of the intended disposition of the Collateral may be given by first-class mail, hand-delivery (through a delivery service or otherwise), facsimile or E-mail, and shall be deemed to have been “sent” upon deposit in the U.S. Mails with adequate postage properly affixed, upon delivery to an express delivery service or Agreement upon the electronic submission through telephonic or Internet services, as applicable. Each Grantor hereby agrees and acknowledges that (i) with respect to collateral that is: (A) perishable or threatens to decline speedily in value, or (B) is of a type customarily sold on a recognized market (including but not limited to, Investment Property), no notice of disposition need be given; and (ii) with respect to Collateral not described in clause (i) above, notification sent after the occurrence of and during the continuance of a Default and ten days before any proposed disposition provides notice within a reasonable time before disposition.
(c) Each Grantor hereby agrees and acknowledges that a commercially reasonable disposition of Inventory, Equipment, Computer Hardware and Software, or Intellectual Property may be by lease or license of, in addition to the sale of, such Collateral. Each Grantor further agrees and acknowledges that a disposition: (i) made in the usual manner on any recognized market, or (ii) a disposition at the price current in any recognized market at the time of disposition, or (iii) a disposition in conformity with reasonable commercial practices among dealers in the type of property subject to the disposition; shall be deemed commercially reasonable.
(d) Any cash proceeds of any disposition by the Administrative Agent happening of any of the Collateral following events, circumstances or conditions, to wit:
A. An Event of Default shall occur as specified in the Note.
B. Failure to pay promptly when the same shall become due, any present or future obligations of Debtor to Secured Party.
C. Failure by Debtor to comply with or perform any provision of this Agreement, or any provision of any document contemplated by or delivered in connection with this Agreement or the Note, on its part to be complied with or performed.
D. Any representations or warranties made or given, or to be made or given, by Debtor in this Agreement, the Note, or in any certificate, agreement, instrument of statement contemplated by or made or delivered in connection with this Agreement or the Note shall have been incorrect, false or misleading in any material respect when made.
E. Breach, or a violation of, any covenant of Debtor made or given in connection with this Agreement, or the Note.
F. Subjection of the Collateral, or any part thereof, to attachment, charging order, garnishment, levy of execution or other judicial process, or if any involuntary lien or encumbrance shall be applied filed against any portion of the Collateral.
G. Any monies, deposits or other property of Debtor now or hereafter on deposit with, or in the possession or under control of Secured Party shall be attached or become subject to distrain proceedings or any order or process of Court.
H. The dissolution or merger or consolidation or termination of existence of Debtor, or the failure or cessation or liquidation of the business of Debtor, or if the person(s) controlling Debtor shall take any action authorizing or leading to the same.
I. If Debtor shall become insolvent or unable to pay its debts as they become due.
J. The anticipatory repudiation by Debtor of any of its obligations under the Administrative Agent Note, or any declaration by Debtor of intention not to payment perform any such obligations as and when the same become due.
K. The disposition, transfer or exchange of expenses all or substantially all of Debtor’s assets for less than fair market value; or the entry of any judgment against Debtor; or the issuance of any levy, attachment, execution, charging order, garnishment or other process, or the filing of any lien, against any property of Debtor.
L. If Debtor shall make an assignment for the benefit of creditors, file a petition in bankruptcy, apply to or petition any tribunal for the appointment of a custodian, receiver, intervenor or trustee for Debtor or a substantial part of debtor’s assets; or if Debtor shall commence any proceeding under any bankruptcy, arrangement, readjustment of debt, dissolution or liquidation law or statute of any jurisdiction, whether nor or hereafter in effect; or if any such petition or application shall have been filed or proceeding commenced against Debtor or if any such custodian, receiver, intervenor or trustee shall have been appointed.
M. If Debtor shall have concealed, transferred, removed, or permitted to be concealed or transferred or removed, any part of its property with intent to hinder, delay or defraud any of its creditors; or Debtor shall have made or suffered a transfer of any of its properties which may be invalid under any bankruptcy, fraudulent conveyance, preference or similar law; or if Debtor shall have made any transfer of its properties to or for the benefit of any creditor at a time when other creditors similarly situated have not been paid.
N. The failure to obtain any permit, license, approval or consent from, or to make any filing with, any governmental authority (or the lapse or revocation or rescission thereof once obtained or made) which is necessary in connection with the Collateralexecution or delivery or enforcement of this Agreement, including reasonable attorneys’ fees and legal expensesthe Note, and thereafter to or the payment performance of any and obligations under this Agreement or the Note by Debtor.
O. If it shall become unlawful for Secured Party to extend credit to Debtor, or to maintain any credit so extended, or for Debtor to perform any of its obligations under this Agreement or the Note.
P. If any governmental authority (or any person acting or purporting to act under governmental authority) shall take any action to condemn, assume custody or control of, seize or appropriate all or any substantial part of Debtor’s property or to displace the Liabilities in the order management of application set forth in Section 8.03 of the Credit Agreement, and thereafter any surplus will be paid promptly to the Grantor. The Administrative Agent need not apply or pay over for application noncash proceeds of collection and enforcement unless: (i) the failure to do so would be commercially unreasonable and (ii) the affected Grantor has provided the Administrative Agent with a written demand to apply or pay over such noncash proceeds on such basisDebtor’s business.
Appears in 1 contract
Sources: Security Agreement (Cd International Enterprises, Inc.)
Default. Whenever a Default i. Licensee shall be existingin default of this Agreement upon the occurrence of any of the following (collectively, the Administrative Agent may exercise from time to time any and all rights and remedies available to it under applicable law, in addition to those described in this section below.“Licensee Events of Default”):
(a) Each Grantor agrees, in case of Default, (i) at the Administrative Agent’s request, Licensee fails to assemble, at its expense, all its Inventory and other Goods (other than Fixtures) at a convenient place or places acceptable to the Administrative Agent, and (ii) at the Administrative Agent’s request, to execute all such documents and do all such other things which may be necessary or desirable in order to enable the Administrative Agent or its nominee to be registered as owner make full payment of the Intellectual Property with License Fees or Licensee fails or refuses to perform any competent registration authority.
of its material obligations hereunder or breaches any other material provision hereof exploits any Program outside the scope permitted hereunder, or (b) Notice Licensee goes into receivership or liquidation other than for purposes of the intended disposition of the Collateral may amalgamation or reconstruction, or becomes insolvent, appoints a receiver or a petition under any bankruptcy act shall be given filed by first-class mailor against Licensee (which petition, hand-delivery if filed against Licensee, shall not have been dismissed within thirty (through a delivery service or otherwise30) days thereafter), facsimile or E-mailLicensee executes an assignment for the benefit of creditors, and shall be deemed or Licensee takes advantage of any applicable insolvency, bankruptcy or reorganization or any other like or analogous statute, or experiences the occurrence or threatened occurrence of any event analogous to have been “sent” upon deposit the foregoing. If Licensee fails to cure a Licensee Event of Default specified in the U.S. Mails with adequate postage properly affixed, upon delivery to an express delivery service (a) above that is curable within thirty days from receipt of written notice from Licensor of such default or upon the electronic submission through telephonic a Licensee Event of Default under (a) above that is not curable or Internet services, as applicable. Each Grantor hereby agrees and acknowledges that under (i) with respect to collateral that is: (A) perishable or threatens to decline speedily in value, or (B) is of a type customarily sold on a recognized market (including but not limited to, Investment Property), no notice of disposition need be given; and (ii) with respect to Collateral not described in clause (ib) above, notification sent after Licensor shall have the right to terminate this Agreement.
ii. Licensor shall be in default of a license granted under this Agreement upon the occurrence of and during the continuance of a Default and ten days before any proposed disposition provides notice within a reasonable time before disposition.
(c) Each Grantor hereby agrees and acknowledges that a commercially reasonable disposition of Inventory, Equipment, Computer Hardware and Software, or Intellectual Property may be by lease or license of, in addition to the sale of, such Collateral. Each Grantor further agrees and acknowledges that a disposition: (i) made in the usual manner on any recognized market, or (ii) a disposition at the price current in any recognized market at the time of disposition, or (iii) a disposition in conformity with reasonable commercial practices among dealers in the type of property subject to the disposition; shall be deemed commercially reasonable.
(d) Any cash proceeds of any disposition by the Administrative Agent of any of the Collateral following (collectively, the “Licensor Events of Default”):
(a) Licensor fails or refuses to perform its material obligations hereunder or breaches any material provision hereof, or (b) Licensor goes into receivership or liquidation, or becomes insolvent, or a petition under any bankruptcy act shall be applied filed by or against Licensor (which petition, if filed against Licensor, shall not have been dismissed within thirty (30) days thereafter), or Licensor executes an assignment for the Administrative Agent to payment benefit of expenses in connection with creditors, or Licensor takes advantage of any applicable insolvency, bankruptcy or reorganization or any other like statute, or experiences the Collateral, including reasonable attorneys’ fees and legal expenses, and thereafter occurrence of any event analogues to the payment foregoing. If Licensor fails to cure a Licensor Event of any and all Default specified in (a) above that is curable within thirty days from receipt of written notice from Licensee of such default or upon a Licensor Event of Default under (a) above that is not curable or under (b) above, Licensee shall have the Liabilities in the order of application set forth in Section 8.03 of the Credit Agreement, and thereafter any surplus will be paid promptly right to the Grantor. The Administrative Agent need not apply or pay over for application noncash proceeds of collection and enforcement unless: (i) the failure terminate this Agreement with respect to do so would be commercially unreasonable and (ii) the affected Grantor has provided the Administrative Agent with a written demand to apply or pay over such noncash proceeds on such basislicense.
Appears in 1 contract
Sources: License Agreement
Default. Whenever a Default shall be existing, 5.1 At any time after default by the Administrative Agent may exercise from time to time any and all rights and remedies available to it grantor in the performance of the secured obligation or an obligation under applicable law, in addition to those described in this section below.security agreement:
(a) Each Grantor agreesThe secured party may sell or concur in selling the collateral or any part or parts of it either by public auction or private treaty or tender on such terms and as the secured Party may consider expedient;
(b) The secured party and any person acting on behalf of the secured party, in case may enter the premises at which the collateral is located and take possession and assume control of Default, the collateral;
(ic) at Register a caveat over any real property;
(d) The grantor irrevocably appoints the Administrative Agent’s request, secured party as its attorney to assemble, at its expense, all its Inventory and other Goods (other than Fixtures) at a convenient place or places acceptable to the Administrative Agent, and (ii) at the Administrative Agent’s request, to execute all sign such documents and do all such other things which acts as may be necessary required for the secured party to take possession of and sell the collateral;
(e) The grantor will do all things and sign all documents to facilitate realisation of the collateral;
(f) The secured party may appoint a receiver to the collateral;
(g) Money realised by the sale of the collateral is to be applied first to pay all the expenses of the sale, then to satisfy the secured obligation, with any surplus then to be paid to the grantor;
(h) No person who deals with the secured party, its manager or desirable in order to enable the Administrative Agent receiver or its nominee agents is required to enquire as to whether any event has happened on which any of the powers contained in this agreement are or may be exercisable by the secured party, or otherwise as to the propriety or regularity of any exercise of those powers or of any act purporting or intended to be registered as owner an exercise of those powers, or whether any money remains owing under this agreement; and
(i) The secured Party, manager, receiver or agent is not obliged to seek to recover any debt due to the grantor nor to prosecute any cause of action or institute any proceedings on its behalf and has full discretion in acting in relation to the collateral to satisfy the secured obligation.
(j) Save in the case of fraud, the secured party shall not be liable to the grantor for any loss suffered by the grantor in the course of the Intellectual Property with secured party exercising its rights under this security agreement, including loss occasioned by delay in the sale of collateral, failure to optimise a sale price or any competent registration authority.similar cause
5.2 Any money realised from the sale of the collateral is to be applied as follows:
(a) in payment of all costs, charges and expenses of the sale;
(b) Notice in payment to the secured party of the intended disposition of the Collateral may be given by first-class mail, hand-delivery (through any amount due and owing under a delivery service or otherwise), facsimile or E-mail, and shall be deemed to have been “sent” upon deposit in the U.S. Mails with adequate postage properly affixed, upon delivery to an express delivery service or upon the electronic submission through telephonic or Internet services, as applicable. Each Grantor hereby agrees and acknowledges that (i) with respect to collateral that is: (A) perishable or threatens to decline speedily in value, or (B) is of a type customarily sold on a recognized market (including but not limited to, Investment Property), no notice of disposition need be given; and (ii) with respect to Collateral not described in clause (i) above, notification sent after the occurrence of and during the continuance of a Default and ten days before any proposed disposition provides notice within a reasonable time before disposition.secured obligation;
(c) Each Grantor hereby agrees and acknowledges that a commercially reasonable disposition in payment of Inventory, Equipment, Computer Hardware and Software, or Intellectual Property any receiver who may be by lease or license of, in addition to the sale of, such Collateral. Each Grantor further agrees and acknowledges that a disposition: (i) made in the usual manner on any recognized market, or (ii) a disposition at the price current in any recognized market at the time of disposition, or (iii) a disposition in conformity with reasonable commercial practices among dealers in the type of property subject to the dispositionappointed; shall be deemed commercially reasonable.and
(d) Any cash proceeds of any disposition by the Administrative Agent of any of the Collateral shall be applied by the Administrative Agent to payment of expenses in connection with the Collateral, including reasonable attorneys’ fees and legal expenses, and thereafter to the payment of any and all surplus to the grantor.
5.3 The secured party shall not be liable for any loss suffered by the grantor in the course of the Liabilities secured party exercising its rights under this Deed, including any loss occasioned by delay in the order of application set forth in Section 8.03 sale of the Credit Agreement, and thereafter any surplus will be paid promptly to the Grantor. The Administrative Agent need not apply collateral or pay over for application noncash proceeds of collection and enforcement unless: (i) the failure to do so would be commercially unreasonable and (ii) the affected Grantor has provided the Administrative Agent with optimise a written demand to apply or pay over such noncash proceeds on such basissale price.
Appears in 1 contract
Sources: Security Agreement (Rayont Inc.)
Default. Whenever a. In the event of any failure of Lessee to pay any rental due hereunder within ten (10) days after written notice that such payment is overdue, or any failure to perform any other of the terms, conditions or covenants of this Lease to be observed or performed by Lessee for more than thirty (30) days after written notice of such default shall have been given to Lessee, or if Lessee or any guarantor of this Lease (unless dismissed within thirty (30) days) shall become bankrupt or insolvent, or file any debtor proceedings or take or have taken against Lessee or any guarantor of this Lease in any court pursuant to any statute either of the United States or of any state a Default petition in bankruptcy or insolvency or for reorganization or for the appointment of a receiver or trustee of all or a portion of Lessee's or any such guarantor's property, or if Lessee or any such guarantor makes an assignment for the benefit of creditors, or petitions for or enters into an arrangement, or if Lessee shall abandon said premises, or suffer this Lease to be existingtaken under a writ of execution, Lessor besides other rights or remedies it may have, shall have the Administrative Agent immediate right of re-entry and may exercise remove all persons and property from the leased premises and such property may be removed and stored in a public warehouse or elsewhere at a cost of, and for the account of Lessee, all without service of notice or resort to legal process and without being deemed guilty of trespass or becoming liable for any loss or damage which may be occasioned thereby.
b. Should Lessor elect to re-enter, as herein provided, or should it take possession pursuant to legal proceedings or pursuant to any notice provided for by law, it may either terminate this Lease or it may from time to time without terminating this Lease, make such alterations and repairs as may be necessary in order to relet the premises and relet said premises or any and all rights and remedies available to it under applicable law, in addition to those described in this section below.
part thereof for such term or terms (a) Each Grantor agrees, in case of Default, (i) at the Administrative Agent’s request, to assemble, at its expense, all its Inventory and other Goods (other than Fixtures) at a convenient place or places acceptable to the Administrative Agent, and (ii) at the Administrative Agent’s request, to execute all such documents and do all such other things which may be necessary for a term extending beyond the term of this Lease) and at such rental or desirable rentals and upon such other terms and conditions as Lessor in order to enable the Administrative Agent or its nominee to be registered as owner of the Intellectual Property with any competent registration authority.
(b) Notice of the intended disposition of the Collateral sole discretion may be given deem advisable; upon each such reletting all rentals received by first-class mail, hand-delivery (through a delivery service or otherwise), facsimile or E-mail, and Lessor from such reletting shall be deemed to have been “sent” upon deposit in the U.S. Mails with adequate postage properly affixedapplied, upon delivery to an express delivery service or upon the electronic submission through telephonic or Internet servicesfirst, as applicable. Each Grantor hereby agrees and acknowledges that (i) with respect to collateral that is: (A) perishable or threatens to decline speedily in value, or (B) is of a type customarily sold on a recognized market (including but not limited to, Investment Property), no notice of disposition need be given; and (ii) with respect to Collateral not described in clause (i) above, notification sent after the occurrence of and during the continuance of a Default and ten days before any proposed disposition provides notice within a reasonable time before disposition.
(c) Each Grantor hereby agrees and acknowledges that a commercially reasonable disposition of Inventory, Equipment, Computer Hardware and Software, or Intellectual Property may be by lease or license of, in addition to the sale of, such Collateral. Each Grantor further agrees and acknowledges that a disposition: (i) made in the usual manner on any recognized market, or (ii) a disposition at the price current in any recognized market at the time of disposition, or (iii) a disposition in conformity with reasonable commercial practices among dealers in the type of property subject to the disposition; shall be deemed commercially reasonable.
(d) Any cash proceeds of any disposition by the Administrative Agent of any of the Collateral shall be applied by the Administrative Agent to payment of expenses in connection with the Collateral, including reasonable attorneys’ fees and legal expenses, and thereafter to the payment of any indebtedness other than rent due hereunder from Lessee to Lessor; second, to the payment of any costs and expenses of such reletting, including brokerage fees and attorney's fees and cost of such alterations and repairs; third, to the payment of rent due and unpaid hereunder, and the residue, if any, shall be held by Lessor and applied in payment of future rent as the same may become due and payable hereunder. If such rentals received from such reletting during any month be less than that to be paid during the month by Lessee hereunder, Lessee shall pay any such deficiency to Lessor. Such deficiency shall be calculated and paid monthly. No such re-entry or taking possession of said premises by Lessor shall be construed as an election on its part to terminate this Lease unless a written notice of such intention be given to Lessee or unless the termination thereof be decreed by a court of competent jurisdiction. Notwithstanding any such reletting without termination, Lessor may at any time thereafter elect to terminate this Lease for such previous breach. Should Lessor at any time terminate this Lease for any breach, in addition to any other remedies it may have, it may recover from Lessee all damages it may incur by reason of such breach, including the cost of recovering the leased premises, reasonable attorney's fees, and including the worth at the time of such termination of the excess, if any, of the amount of rent and charges equivalent to rent reserved in this Lease for the remainder of the stated term over the then reasonable rental value of the leased premises for the remainder of the stated term, all of which amounts shall be immediately due and payable from Lessee to Lessor.
c. In the Liabilities event of default, all of Lessee's fixtures, furniture, equipment, improvements, additions and alterations shall remain on the subject premises and in that event, and continuing during the length of said default, Lessor shall have the right to take the exclusive possession of the same and to use the same, rent or charge free, until all defaults are cured or, at its option, at any time during the term of this Lease, to require Lessee to forthwith remove the same.
d. Notwithstanding any other provisions of this section, the Lessor agrees that if the default complained of, other than for the payment of money, is of such a nature that the same cannot be rectified or cured within the thirty (30) day period requiring such rectification or curing as specified in the order written notice relating thereto, then such default shall be deemed to be rectified or cured if Lessee within such period of application set forth thirty (30) days shall have commenced the rectification and curing thereof and shall continue thereafter with all due diligence to cause such rectification and curing and does so complete the same with the use of such diligence as aforesaid.
e. The remedies given to Lessor in Section 8.03 of this section shall be in addition and supplemental to all other rights or remedies which Lessor may have under the Credit Agreement, and thereafter any surplus will be paid promptly to the Grantor. The Administrative Agent need not apply or pay over for application noncash proceeds of collection and enforcement unless: (i) the failure to do so would be commercially unreasonable and (ii) the affected Grantor has provided the Administrative Agent with a written demand to apply or pay over such noncash proceeds on such basislaws then in force.
Appears in 1 contract
Sources: Lease (Metris Companies Inc)
Default. Whenever Any one or more of the following events shall constitute a Default shall be existing, the Administrative Agent may exercise from time to time any and all rights and remedies available to it “Default” under applicable law, in addition to those described in this section below.Agreement:
(a) Each Grantor agreesFollowing Receipt of Recoveries, in case of Default, (i) at the Administrative Agent’s request, to assemble, at its expense, all its Inventory and other Goods (other than Fixtures) at a convenient place or places acceptable solely to the Administrative Agentextent Plaintiff actually receives any Recoveries, and (ii) at failure on the Administrative Agent’s request, part of Plaintiff to execute all such documents and do all such other things which may be necessary or desirable in order remit to enable the Administrative Agent or its nominee Funder any amount required to be registered as owner of remitted under this Agreement or any other Funding Document within fourteen (14) business days following the Intellectual Property with any competent registration authority.date such amount becomes due;
(b) Notice of the intended disposition of the Collateral may be given by first-class mail, hand-delivery (through a delivery service or otherwise), facsimile or E-mail, and shall be deemed to have been “sent” upon deposit in the U.S. Mails with adequate postage properly affixed, upon delivery to an express delivery service or upon the electronic submission through telephonic or Internet services, as applicable. Each Grantor hereby agrees and acknowledges that (i) with respect to collateral that is: (A) perishable or threatens to decline speedily in value, or (B) is The occurrence of a type customarily sold on a recognized market (including but not limited to, Investment Property), no notice of disposition need be given; and (ii) with respect Material Adverse Change to Collateral not described in clause (i) above, notification sent after the occurrence of and during the continuance of a Default and ten days before any proposed disposition provides notice within a reasonable time before disposition.Plaintiff;
(c) Each Grantor hereby agrees and acknowledges that a commercially reasonable disposition Plaintiff’s or Law Firm’s (at Plaintiff’s direction) intentional non-disclosure or concealment of Inventorymaterial information required to be provided hereunder regarding any Case or the Recoveries after promptly upon becoming aware of such information;
(d) Plaintiff transfers or encumbers in favor of anyone (other than Funder) all or any part of Plaintiff’s interest in any Case (including, Equipmentwithout limitation, Computer Hardware and Software, or Intellectual Property may be by lease or license of, in addition its right to any Recoveries) and/or the sale of, such Collateral. Each Grantor further agrees and acknowledges that a disposition: (i) made in the usual manner on any recognized market, ; or (ii) a disposition at the price current if anyone other than Funder otherwise obtains any right, title, lien, or interest in, to, or against Plaintiff’s interest in any recognized market at the time of dispositionCase (including, without limitation, its right to any Recoveries) (in each case in this clause (d), other than Permitted Liens or (iii) a disposition as otherwise agreed by Funder in conformity with reasonable commercial practices among dealers in the type of property subject to the disposition; shall be deemed commercially reasonable.writing);
(de) Plaintiff (or Law Firm (at Plaintiff’s direction)) takes any willful action (or fails to take appropriate action the effect of which is) to, in any material respect, waive, compromise, reduce, discount, negate, settle or otherwise forego Plaintiff’s interest in any of the Cases without reasonable legal or economic basis to do so;
(f) Any cash proceeds of assignment is made by Plaintiff or any disposition by the Administrative Agent Guarantor of any of the Collateral shall be applied rights of Plaintiff related to the Case, without Funder’s written consent;
(g) If Plaintiff or Guarantor asserts in writing that any of the Funding Documents is not, a legal, valid, and binding obligation of Plaintiff or Guarantor, as applicable, enforceable in accordance with their respective terms;
(h) Intentional misappropriation, misapplication, or conversion by or on behalf of Plaintiff of any of the Administrative Agent Recoveries or any of the other Collateral, or other funds constituting any portion of the Collateral, that in any material respect violates any term or condition of any of the Funding Documents;
(i) Voluntary and unreasonable dismissal or voluntary and unreasonable abandonment by Plaintiff or Law Firm (at Plaintiff’s direction) of any Case or any Related Proceeding prior to payment a Final Resolution;
(j) Failure of expenses Plaintiff or Law Firm (at Plaintiff’s direction) to use commercially reasonable efforts to actively prosecute or otherwise pursue any Case or any Related Proceeding prior to a Final Resolution;
(k) Plaintiff, Guarantor or any representative or agent of Plaintiff or Guarantor (including, without limitation, Law Firm), in each case, at Plaintiff’s direction, engages in any fraud, knowingly makes any material misrepresentation to Funder, or intentionally fails to disclose to Funder a material fact in connection with any Case or any Related Proceeding or any of the Collateral, including reasonable attorneys’ fees and legal expenses, and thereafter Funding Documents to the payment of any and all of the Liabilities in the order of application set forth in Section 8.03 of the Credit Agreement, and thereafter any surplus will extent required to be paid promptly to the Grantor. The Administrative Agent need not apply or pay over for application noncash proceeds of collection and enforcement unless: disclosed hereunder;
(i) the failure to do so would be commercially unreasonable The commencement of any bankruptcy or Insolvency Proceeding by or against Plaintiff and such Insolvency Proceeding is not dismissed with sixty (60) days and Plaintiff and/or Guarantor has not assumed this Agreement in connection with such Insolvency Proceeding or (ii) the affected Grantor has provided appointment of a receiver to manage any assets of Plaintiff constituting Collateral;
(m) Any criminal charges related to fraudulent or deceitful activity against Plaintiff or any Guarantor that are successfully prosecuted and executed upon;
(i) Funder, for any reason, at any time, does not have a perfected, first-priority security interest in any of the Administrative Agent Collateral (including the Cases and the Recoveries); or (ii) Plaintiff fails, refuses or are otherwise unable to grant Funder a perfected, first priority security interest in all of Plaintiff’s personal property and other assets upon any conversion of Nonrecourse Advances into Recourse Obligations; or
(o) Any change in control of Plaintiff or any entity or combination of entities that directly or indirectly control Plaintiff, with “control” defined as ownership of an aggregate of 25% or more of the common stock, members’ equity or other ownership interest, unless upon occurrence of a written demand to apply or pay over such noncash proceeds on such basischange in control of the Plaintiff, the change of control is acknowledged and waived by a signed writing by Plaintiff and Funder.
Appears in 1 contract
Default. Whenever a SECTION 1. The Borrower agrees that it will faithfully observe, perform, comply with and discharge all of the covenants, conditions, and obligations which are imposed on the Borrower by any other agreement or document executed in connection with this Mortgage and the Note, concurrently or otherwise, and that the Borrower’s failure to do so shall constitute an Event of Default under this Mortgage.
SECTION 2. The Borrower agrees that any material default under any guarantor agreement, security agreements, Title XI financial agreements, or other loan documents which may be executed in connection with this Mortgage or Note, whether or not the Borrower is party to said agreement, shall constitute an Event of Default under this Mortgage.
SECTION 3. The Borrower agrees that all reasonable attorney fees incurred by the Government because of the Borrower’s failure to perform or discharge its obligations, as provided by this Mortgage, the Note, or any other document or agreement executed in connection therewith, shall be existingdeemed to be an indebtedness of the Borrower and shall be secured by this Mortgage and shall be due and payable and until paid, shall bear interest at the Administrative Agent may exercise from time to time any same rate as that provided in the Note, and all rights and remedies available to it upon acceleration of the amounts owed under the Note, shall bear interest at the accelerated rate of eighteen percent (18%) per annum, unless limited by applicable state law, in addition to those described in this section below.
SECTION 4. Each of the following events shall constitute an Event of Default:
(a) Each Grantor agrees, default shall be made in case of Default, (i) at the Administrative Agent’s request, to assemble, at its expense, all its Inventory and other Goods (other than Fixtures) at a convenient place or places acceptable to the Administrative Agent, and (ii) at the Administrative Agent’s request, to execute all such documents and do all such other things which may be necessary or desirable in order to enable the Administrative Agent or its nominee to be registered as owner payment of the Intellectual Property with any competent registration authority.principal of the Note when and as the same shall become due and payable, whether at maturity, by notice of acceleration, or otherwise; or
(b) Notice default shall be made in the payment of any interest on the Note (including any amendments thereto or substitution therefor), when and as the same shall become due and payable as therein and herein provided; or
(c) default shall be made in the due and punctual observance and performance of any provision of Article I, hereof; or
(d) the Borrower shall be dissolved or adjudged a bankrupt or shall make a general assignment for the benefit of the intended disposition Borrower’s creditors, or shall lose the right to do business by forfeiture or otherwise, or a receiver or receivers of any kind whatsoever, whether appointed or not, in admiralty, bankruptcy, common law, or equity proceedings, and whether temporary or permanent, shall be appointed for the Vessel or for any other property of the Collateral Borrower; or a petition for reorganization of, or other proceeding or action in reference to the Borrower under any of the provisions of the Bankruptcy Act shall be filed by the Borrower or by creditors of the Borrower; or if reorganization of the Borrower under said Act is approved by the Court, whether proposed by a creditor, stockholder, or any other person whomsoever; and THE BORROWER AND THE GUARANTOR BOTH UNDERSTAND THAT IF EITHER FILES BANKRUPTCY, THE BORROWER WILL LOSE THE VESSEL. THE BORROWER AND THE GUARANTOR EXPRESSLY AGREE TO, AND UNDERSTAND THAT IN THE EVENT OF BANKRUPTCY, THE VESSEL WHICH IS THE SECURITY FOR THIS PREFERRED SHIP MORTGAGE WILL NOT BE PERMITTED TO GO OUT TO SEA, AND WILL REMAIN IN PORT IN THE JURISDICTION OF THE COURT WHERE THE BANKRUPTCY PETITION IS FILED OR SUCH OTHER JURISDICTION WHERE THE BOAT MAY BE OR OTHER COLLATERAL MAY BE FOUND.
(e) there shall be an actual or constructive total loss of the Vessel; or
(f) default shall be made by the Borrower in the prompt and faithful performance or observance of any other covenant, condition, or agreement by it to be performed and observed, contained in this Mortgage, Note, or any other loan documents and such default shall continue for fifteen (15) days; or Pg. 9 of 19
(g) the making in any application, agreement, affidavit, or other document, submitted in connection with the Note, of any misrepresentation, on behalf of, or for the benefit of, the Borrower. Failure to disclose any material fact may be given deemed a misrepresentation; or
(h) the institution of any suit against the Borrower or others deemed by first-class mailthe Government to affect adversely its interest hereunder, hand-delivery in the Note or otherwise; or
(through a delivery service i) failure of any signator to any of the Loan Documents, to observe any of the conditions contained in said Loan Documents, or any other document or agreement executed (concurrently or otherwise), facsimile inclusive of amendments thereto, in connection with this Mortgage, or E-mailsubsequent mortgage, and regardless of whether or not the Borrower shall be deemed a party to have been “sent” upon deposit in the U.S. Mails with adequate postage properly affixed, upon delivery to an express delivery service said agreement or upon the electronic submission through telephonic or Internet services, as applicable. Each Grantor hereby agrees and acknowledges that (i) with respect to collateral that is: (A) perishable or threatens to decline speedily in value, or (B) is of a type customarily sold on a recognized market (including but not limited to, Investment Property), no notice of disposition need be givendocument; and (ii) with respect to Collateral not described in clause (i) above, notification sent after the occurrence of and during the continuance of a Default and ten days before any proposed disposition provides notice within a reasonable time before disposition.or
(cj) Each Grantor hereby agrees and acknowledges that a commercially reasonable disposition impairment of Inventory, Equipment, Computer Hardware and Software, any collateral including the vessel or Intellectual Property may be by lease or license of, which is given in addition to the sale ofvessel which is the subject of this Preferred Ship Mortgage; or
(k) the Borrower shall, such Collateral. Each Grantor further agrees and acknowledges that a disposition: (i) made in without first obtaining written permission from the usual manner on any recognized marketSecretary, transfer, sell, assign, hypothecate, or (ii) a disposition at alienate or attempt to transfer, sell, assign, hypothecate or alienate any rights, licenses or permits appurtenant to and/or necessary for the price current Vessel to engage in any recognized market at the time of disposition, or (iii) a disposition in conformity with reasonable commercial practices among dealers in the type of property subject to the dispositionfisheries; shall be deemed commercially reasonable.or
(dl) Any cash proceeds of any disposition by the Administrative Agent of any Borrower shall, intentionally or through neglect, permit a material diminution of the Collateral shall be applied by the Administrative Agent to payment of expenses in connection with the Collateral, including reasonable attorneys’ fees and legal expenses, and thereafter to the payment of any and all value of the Liabilities in the order of application set forth in Section 8.03 of the Credit Agreement, Vessel and/or its appurtenances and thereafter any surplus will be paid promptly to the Grantor. The Administrative Agent need not apply or pay over for application noncash proceeds of collection and enforcement unless: (i) the failure to do so would be commercially unreasonable and (ii) the affected Grantor has provided the Administrative Agent with a written demand to apply or pay over such noncash proceeds on such basis.equipment; or
Appears in 1 contract
Default. Whenever a Default The Borrower shall be existingin default hereunder if any one of the following events of default shall occur and be continuing, namely:
a. Default by the Administrative Agent may exercise from Borrower or Guarantors in the payment of any sums owing to the Bank or others (hereinafter referred to as the “Indebtedness”) or if the holder of any such Indebtedness declares such Indebtedness due prior to the stated maturity because of any default thereunder; or
b. Any representation, statement, warranty, projection, or certificate made by the Borrower or any of the Guarantors in the Loan Documents, or hereafter furnished to the Bank in connection with any loan or loans hereunder, shall prove to have been incorrect in any material respect at the time of making or issuance thereof; or
c. Default by the Borrower, any of the Guarantors or any other party to time the Loan Documents in the performance of any of the covenants or agreements set forth in the Loan Documents or in any other agreement or instrument executed pursuant hereto provided, however, that the provisions of this Agreement shall control in the event that any of such provisions are in conflict with the provisions of any other agreement, mortgage, indenture or instrument executed pursuant hereto and all rights and remedies available to it under applicable law, of such provisions in addition to those described in this section below.
(a) Each Grantor agrees, in case of Default, (i) at the Administrative Agent’s request, to assemble, at its expense, all its Inventory and other Goods (other than Fixtures) at a convenient place or places acceptable to the Administrative Agent, and (ii) at the Administrative Agent’s request, to execute all such documents and do all such other things which may be necessary or desirable in order to enable the Administrative Agent or its nominee to be registered as owner of the Intellectual Property with any competent registration authority.
(b) Notice of the intended disposition of the Collateral may be given by first-class mail, hand-delivery (through a delivery service or otherwise), facsimile or E-mail, and instruments shall be deemed to have been “sent” upon deposit be cumulative of the provisions hereof to the extent such provisions are not inconsistent herewith; or
d. The Borrower or any of the Guarantors shall apply for or consent to, or acquiesce in the U.S. Mails with adequate postage properly affixedappointment of a receiver, upon delivery trustee, or liquidator of itself or himself or of its or his property, or admit in writing of its or his inability to pay its or his debts as they mature, or make a general assignment for the benefit of creditors or an express delivery service or upon the electronic submission through telephonic or Internet services, as applicable. Each Grantor hereby agrees and acknowledges that (i) Order of Relief be entered with respect to collateral that is: (A) perishable the Borrower or threatens to decline speedily in value, or (B) is of a type customarily sold on a recognized market (including but not limited to, Investment Property), no notice of disposition need be given; and (ii) with respect to Collateral not described in clause (i) above, notification sent after the occurrence of and during the continuance of a Default and ten days before any proposed disposition provides notice within a reasonable time before disposition.
(c) Each Grantor hereby agrees and acknowledges that a commercially reasonable disposition of Inventory, Equipment, Computer Hardware and Software, or Intellectual Property may be by lease or license of, in addition to the sale of, such Collateral. Each Grantor further agrees and acknowledges that a disposition: (i) made in the usual manner on any recognized market, or (ii) a disposition at the price current in any recognized market at the time of disposition, or (iii) a disposition in conformity with reasonable commercial practices among dealers in the type of property subject to the disposition; shall be deemed commercially reasonable.
(d) Any cash proceeds of any disposition by the Administrative Agent of any of the Guarantors by any court having competent jurisdiction in the premises, or file a voluntary petition in bankruptcy or a petition or answer seeking reorganization, composition, readjustment or arrangement, or similar relief with creditors, under any present or future statute, law or regulation, or otherwise, or take advantage of any insolvency law or file an answer admitting the material allegations of a petition filed against it or him for the purpose of affecting any of the foregoing, or it or he shall have a receiver or trustee or assignee in bankruptcy or insolvency appointed for it or him, or its or his property, without its application or consent; or
e. The Bank determines in the exercise of its judgment that the Borrowers financial condition has deteriorated, the prospect of Repayment of the Indebtedness is impaired or that the value of the Collateral has lessened materially. Thereupon in any such case, the obligation of the Bank to extend credit hereunder to or for the account of the Borrower pursuant hereto shall immediately terminate, and the Bank shall be applied entitled to each and every remedy and to take each and every action permitted by the Administrative Agent to payment of expenses in connection with the Collateral, including reasonable attorneys’ fees and legal expenses, and thereafter to the payment of any and all of the Liabilities in the order of application set forth in Section 8.03 of the Credit Agreement, and thereafter any surplus will be paid promptly to the Grantor. The Administrative Agent need not apply or pay over for application noncash proceeds of collection and enforcement unless: (i) the failure to do so would be commercially unreasonable and (ii) the affected Grantor has provided the Administrative Agent with a written demand to apply or pay over such noncash proceeds on such basisLoan Documents.
Appears in 1 contract
Sources: Loan Agreement (Energytec Inc)
Default. Whenever a Default shall be existingIf Pledgor (a) defaults in the payment of the principal or interest under the Note when it either becomes due (whether upon demand, acceleration or otherwise) or any other event of default under the Note or this Agreement occurs (including, without limitation, the Administrative Agent bankruptcy or insolvency of Pledgor) or (b) defaults in the payment of interest or any other amount related to the Note, the Company may (following five (5) days’ notice to Pledgor, during which the default is not cured) exercise from time to time any and all the rights, powers and remedies of any owner of the Pledged Interests (including the right to vote the Pledged Interests and receive any distributions with respect to such Pledged Interests) and shall have and may exercise without demand any and all the rights and remedies granted to a secured party upon default under the Uniform Commercial Code of Delaware or otherwise available to it the Company under applicable law. Without limiting the foregoing, in addition to those described in this section below.
(a) Each Grantor agrees, in case of Default, (i) at the Administrative Agent’s request, to assemble, at its expense, all its Inventory and other Goods (other than Fixtures) at a convenient place or places acceptable to the Administrative Agent, and (ii) at the Administrative Agent’s request, to execute all such documents and do all such other things which may be necessary or desirable in order to enable the Administrative Agent or its nominee to be registered as owner of the Intellectual Property with any competent registration authority.
(b) Notice of the intended disposition of the Collateral may be given by first-class mail, hand-delivery (through a delivery service or otherwise), facsimile or E-mail, and shall be deemed to have been “sent” upon deposit in the U.S. Mails with adequate postage properly affixed, upon delivery to an express delivery service or upon the electronic submission through telephonic or Internet services, as applicable. Each Grantor hereby agrees and acknowledges that (i) with respect to collateral that is: (A) perishable or threatens to decline speedily in value, or (B) is of a type customarily sold on a recognized market (including but not limited to, Investment Property), no notice of disposition need be given; and (ii) with respect to Collateral not described in clause (i) above, notification sent after the occurrence of and during the continuance of a Default default, the Company is authorized to sell, assign and deliver at its discretion, from time to time, all or any part of the Collateral at any private sale or public auction, on not less than ten days before (10) days’ written notice to Pledgor, at such price or prices and upon such terms as the Company may deem advisable. Pledgor shall have no right to redeem the Collateral after any proposed disposition provides notice within a reasonable time before disposition.
(c) Each Grantor hereby agrees such sale or assignment. At any such sale or auction, the Company may bid for, and acknowledges that a commercially reasonable disposition of Inventory, Equipment, Computer Hardware and Software, or Intellectual Property may be by lease or license become the purchaser of, in addition the whole or any part of the Pledged Interests offered for sale. In case of any such sale, after deducting the costs, attorneys’ fees and other expenses of sale and delivery, the remaining proceeds of such sale shall be applied to the principal of and accrued interest on the Note and other amounts related thereto (including costs, attorneys’ fees associated with enforcement hereof); provided that after payment in full of the indebtedness evidenced by the Note, the balance of the proceeds of sale of, such Collateral. Each Grantor further agrees then remaining shall be paid to Pledgor and acknowledges that a disposition: (i) made in the usual manner on any recognized market, or (ii) a disposition at the price current in any recognized market at the time of disposition, or (iii) a disposition in conformity with reasonable commercial practices among dealers in the type of property subject Pledgor shall be entitled to the disposition; shall be deemed commercially reasonable.
(d) Any cash proceeds of any disposition by the Administrative Agent return of any of the Collateral Pledged Interests remaining in the hands of the Company. Pledgor shall be applied liable for any deficiency (but only to the extent liable therefor in accordance with the Note) if the remaining proceeds are insufficient to pay the indebtedness under the Note in full, including the fees of any attorneys employed by the Administrative Agent Company to payment of expenses in connection with the Collateral, including reasonable attorneys’ fees and legal expenses, and thereafter to the payment of any and all of the Liabilities in the order of application set forth in Section 8.03 of the Credit Agreement, and thereafter any surplus will be paid promptly to the Grantor. The Administrative Agent need not apply or pay over for application noncash proceeds of collection and enforcement unless: (i) the failure to do so would be commercially unreasonable and (ii) the affected Grantor has provided the Administrative Agent with a written demand to apply or pay over collect such noncash proceeds on such basisdeficiency.
Appears in 1 contract
Sources: Restricted Stock Purchase Agreement (Roundy's Parent Company, Inc.)
Default. Whenever a Default shall be existing, the Administrative Agent may exercise from time to time any and all rights and remedies available to it under applicable law, in addition to those described in this section below.
(a) Each Grantor agrees, in case of Default, (i) at the Administrative Agent’s request, to assemble, at its expense, all its Inventory and other Goods (other than Fixtures) at a convenient place or places acceptable to the Administrative Agent, and (ii) at the Administrative Agent’s request, to execute all such documents and do all such other things which may be necessary or desirable in order to enable the Administrative Agent or its nominee to be registered as owner of the Intellectual Property with any competent registration authority.
(b) Notice of the intended disposition of the Collateral may be given by first-class mail, hand-delivery (through a delivery service or otherwise), facsimile or E-mail, and There shall be deemed to have been “sent” upon deposit be a breach of this Agreement (a) if Lessee shall default in the U.S. Mails with adequate postage properly affixedpayment of any Rent hereunder and such default shall continue for a period of ten (10) days, upon delivery to an express delivery service or upon the electronic submission through telephonic or Internet services, as applicable. Each Grantor hereby agrees and acknowledges that (ib) with respect to collateral that is: (A) perishable or threatens to decline speedily in value, or (B) is of a type customarily sold on a recognized market (including but not limited to, Investment Property), no notice of disposition need be given; and (ii) with respect to Collateral not described in clause (i) above, notification sent after the occurrence of and during the continuance of a Default and ten days before any proposed disposition provides notice within a reasonable time before disposition.
(c) Each Grantor hereby agrees and acknowledges that a commercially reasonable disposition of Inventory, Equipment, Computer Hardware and Software, or Intellectual Property may be by lease or license of, in addition to the sale of, such Collateral. Each Grantor further agrees and acknowledges that a disposition: (i) made if Lessee shall default in the usual manner on any recognized market, or (ii) a disposition at the price current in any recognized market at the time of disposition, or (iii) a disposition in conformity with reasonable commercial practices among dealers in the type of property subject to the disposition; shall be deemed commercially reasonable.
(d) Any cash proceeds of any disposition by the Administrative Agent performance of any of the Collateral other covenants herein and such default shall continue uncured for thirty (30) days after written notice thereof to Lessee by Lessor, or (c) if Lessee ceases doing business as a going concern, or if a petition is filed by or against Lessee under the Bankruptcy Code or any amendment thereto (including a petition for reorganization, arrangement or an extension), or if Lessee attempts to remove or sell or transfer or encumber or sublet or part with possession of the Leased Equipment or any part thereof. In the event of a breach of this Agreement, as herein defined: (x) the Leased Equipment shall upon Lessor's demand forthwith be delivered to Lessor at Lessee's expense at such place as Lessor shall designate and Lessor and/or its agents may, without notice or liability or legal process, enter into any Premises of or under control or jurisdiction of Lessee or any agent of Lessee where the Leased Equipment may be or by Lessor is believed to be, and repossess all or any part of the Leased Equipment, disconnecting and separating all thereof from any other property and using all reasonable force necessary or permitted by applicable law to do so, and (y) all sums due and to become due hereunder shall, at Lessor's option, become payable forthwith. The provisions of this section shall be applied by the Administrative Agent without prejudice to payment of expenses in connection with the Collateral, including reasonable attorneys’ fees and legal expenses, and thereafter any rights given to the payment Lessor by such statute to recover for any amounts allowed thereby. Lessor, upon any breach of any this Agreement, may sell the Leased Equipment or may re-lease such Leased Equipment for a term and all a rental which may be equal to, greater than or less than the rental and term herein provided. The provisions of this section shall be without prejudice to Lessor's right to recover or prove in full damages for unpaid Rent that accrued prior to the breach of the Liabilities in Agreement. In the order event of application set forth in Section 8.03 a breach of this Agreement, Lessor, at its option, may enforce by appropriate legal proceedings specific performance of the Credit Agreement, and thereafter applicable covenants of this Agreement as well as any surplus will be paid promptly to the Grantor. The Administrative Agent need not apply or pay over for application noncash proceeds of collection and enforcement unless: (i) the failure to do so would be commercially unreasonable and (ii) the affected Grantor has provided the Administrative Agent with a written demand to apply or pay over such noncash proceeds on such basisother remedy herein provided.
Appears in 1 contract
Sources: Lease (Siebel Systems Inc)
Default. Whenever a Default shall be existing, the Administrative Agent may exercise from time to time any and all rights and remedies right or remedy available to it under applicable law, including without limitation, Agent may exercise on behalf of the Lender Parties all the rights of a secured party under the UCC (whether or not in addition effect in the jurisdiction where such rights are exercised) with respect to those described in this section below.
(a) Each Grantor any Collateral. Debtor agrees, in case of Default, (i) at the Administrative Agent’s request, to assemble, at its expense, all its Inventory and other Goods (other than Fixtures) at a convenient place or places acceptable to the Administrative Agent, and (ii) at the Administrative Agent’s request, to execute all such documents and do all such other things which may be necessary or desirable desirable, subject to Section 2 above which prohibits Agent from enforcing the liens granted hereunder in certain Intellectual Property, in order to enable the Administrative Agent or its nominee to be registered as owner of the Intellectual Property with any competent registration authority.
(b) Notice . Any notification of the intended disposition of any of the Collateral may be given required by first-class mail, hand-delivery (through a delivery service or otherwise), facsimile or E-mail, and law shall be deemed to have been “sent” upon deposit in the U.S. Mails with adequate postage reasonably and properly affixed, upon delivery to an express delivery service or upon the electronic submission through telephonic or Internet services, as applicablegiven if given at least ten days before such disposition. Each Grantor hereby agrees and acknowledges that (i) with respect to collateral that is: (A) perishable or threatens to decline speedily in value, or (B) is of a type customarily sold on a recognized market (including but not limited to, Investment Property), no notice of disposition need be given; and (ii) with respect to Collateral not described in clause (i) above, notification sent after Upon the occurrence of and during a Default, Agent may sell the continuance of a Default and ten days before Collateral without giving any proposed disposition provides notice within a reasonable time before disposition.
(c) Each Grantor hereby agrees and acknowledges that a commercially reasonable disposition of Inventory, Equipment, Computer Hardware and Software, or Intellectual Property may be by lease or license of, in addition warranties as to the sale ofCollateral, such Collateralincluding any warranties of title, possession, quiet enjoyment and the like. Each Grantor further agrees and acknowledges that a disposition: (i) made in the usual manner on any recognized market, or (ii) a disposition at the price current in any recognized market at the time of disposition, or (iii) a disposition in conformity with reasonable commercial practices among dealers in the type of property subject to the disposition; shall be deemed commercially reasonable.
(d) Any cash proceeds Proceeds of any enforcement, collection or disposition by the Administrative Agent of any of the Collateral shall may be applied by the Administrative Agent to payment of expenses in connection with the Collateral, including reasonable attorneys’ attorney’s fees and legal expensescharges, and thereafter to any balance of such cash Proceeds may be applied by the Agent toward the payment of any and all such of the Liabilities Obligations, and in the such order of application set forth in Section 8.03 application, as the Agent may from time to time elect. If Agent disposes of any of the Credit AgreementCollateral upon credit, and thereafter any surplus the Debtor will be paid promptly credited with only those payments actually made by the purchaser and received by Agent. In the event the purchaser of such Collateral fails to pay for such Collateral, Agent may resell such Collateral and the Grantor. The Administrative Agent need not apply or pay over for application noncash proceeds Debtor shall be credited with any cash Proceeds of collection and enforcement unless: (i) the failure to do so would be commercially unreasonable and (ii) the affected Grantor has provided the Administrative Agent with a written demand to apply or pay over such noncash proceeds on such basissale.
Appears in 1 contract
Sources: Security Agreement (Epicedge Inc)
Default. Whenever Time is of the essence. An event of default shall occur if; (a) Borrowers fails to pay when due any amount owed by it to Creditor or to any affiliate of Creditor, whether hereunder or under any other instrument or agreement; (b) Borrowers fails to perform or observe any other term or provision to be performed or observed by it hereunder or under any other instrument or agreement, furnished by Borrowers to Creditor or to any affiliate of Creditor or otherwise acquired by Creditor or any affiliate of Creditor; (c) Borrowers becomes insolvent or ceases to do business as a Default shall going concern; (d) any of the Collateral is lost or destroyed; (e) Borrowers makes an assignment for the benefit of creditors or takes advantage of any law for the relief of debtors; (f) a petition in bankruptcy or for an arrangement, reorganization, or similar relief is filed by or against Borrowers; (g) any property of Borrowers is attached, or a trustee or receiver is appointed for Borrowers or for a substantial part of Borrower's property, or Borrowers applies for such appointment; or (h) Creditor in good faith believes that the prospect of payment or performance hereunder is impaired or insecure. Upon the occurrence of an event of default, and at any time thereafter as long as the default continues, Creditor may, at its option, with or without notice to Borrowers (i) declare this agreement to be existingin default, whereupon the Administrative Agent may indebtedness specifically described herein will become immediately due and payable, (ii) declare all other debts then owing by Borrowers to Creditor to be immediately due and payable, (iii) cancel any insurance and credit any refund to the indebtedness, and (iv) exercise from time to time any and all of the rights and remedies available of a secured party under the Uniform Commercial Code and any other applicable laws, including the right to require Borrowers to assemble the Collateral and deliver it under applicable to Creditor at a place to be designated by Creditor which is reasonably convenient to both parties. Any property other than Collateral which is in or upon the Collateral at the time of repossession may be taken and held without liability until its return is requested by Borrowers. Unless otherwise provided by law, in addition any requirement of reasonable notice which Creditor may be obligated to those described in this section below.
(a) Each Grantor agrees, in case give regarding the sale or other disposition of Default, (i) at the Administrative Agent’s request, Collateral will be met if such notice is mailed to assemble, Borrowers at its expense, all its Inventory address shown herein at least ten days before the time of sale or other disposition. Creditor may buy at any sale and other Goods (other than Fixtures) at a convenient place or places acceptable to become the Administrative Agent, and (ii) at the Administrative Agent’s request, to execute all such documents and do all such other things which may be necessary or desirable in order to enable the Administrative Agent or its nominee to be registered as owner of the Intellectual Property with Collateral. Borrowers agrees that Creditor may bring any competent registration authority.
(b) Notice legal proceedings it deems necessary to enforce the payment and performance of Borrower's obligations hereunder in any court in the intended disposition of the Collateral may be given by first-class mail, hand-delivery (through a delivery service or otherwise), facsimile or E-mailstate shown in Creditor's address set forth herein, and shall be deemed to have been “sent” upon deposit service of its address shown herein. The inclusion of a trade name or division name in the U.S. Mails with adequate postage properly affixedidentification of Borrowers hereunder shall not limit Creditor's right, upon delivery to an express delivery service or upon the electronic submission through telephonic or Internet services, as applicable. Each Grantor hereby agrees and acknowledges that (i) with respect to collateral that is: (A) perishable or threatens to decline speedily in value, or (B) is of a type customarily sold on a recognized market (including but not limited to, Investment Property), no notice of disposition need be given; and (ii) with respect to Collateral not described in clause (i) above, notification sent after the occurrence of an event of default, to proceed against all of Borrower's assets, including those held or used by Borrowers individually or under another trade or division name. Expenses of retaking, holding, preparing for sale, selling and during the continuance like shall include (a) the reasonable fees of a Default any attorneys retained by Creditor, and ten days before (b) all other legal expenses incurred by Creditor. Borrowers agrees that it is liable for and will promptly pay any proposed disposition provides notice within a reasonable time before disposition.
(c) Each Grantor hereby agrees and acknowledges that a commercially reasonable deficiency resulting from any disposition of Inventory, Equipment, Computer Hardware and Software, or Intellectual Property may be by lease or license of, in addition to the sale of, such Collateral. Each Grantor further agrees and acknowledges that a disposition: (i) made in the usual manner on any recognized market, or (ii) a disposition at the price current in any recognized market at the time of disposition, or (iii) a disposition in conformity with reasonable commercial practices among dealers in the type of property subject to the disposition; shall be deemed commercially reasonableCollateral after default.
(d) Any cash proceeds of any disposition by the Administrative Agent of any of the Collateral shall be applied by the Administrative Agent to payment of expenses in connection with the Collateral, including reasonable attorneys’ fees and legal expenses, and thereafter to the payment of any and all of the Liabilities in the order of application set forth in Section 8.03 of the Credit Agreement, and thereafter any surplus will be paid promptly to the Grantor. The Administrative Agent need not apply or pay over for application noncash proceeds of collection and enforcement unless: (i) the failure to do so would be commercially unreasonable and (ii) the affected Grantor has provided the Administrative Agent with a written demand to apply or pay over such noncash proceeds on such basis.
Appears in 1 contract
Sources: Commercial Promissory Note and Security Agreement (Bikers Dream Inc)
Default. Whenever (a) If (i) Borrower shall fail to cause the Letter of Credit to be renewed or replaced within the time and in the manner provided in Section 4, or (ii) Borrower shall fail to timely and fully perform any of its other obligations under this Agreement (specifically excluding Borrower’s obligations set forth in the fifth sentence of Section 4(a)) following the expiration of any applicable notice and cure periods, if any, as may be set forth in this Agreement, then any such failure shall constitute a Default "default" under this Agreement ("LOC Event of Default") and Lender shall be existingentitled to exercise its remedies under Section 6(b). An LOC Event of Default also shall constitute an automatic "Event of Default" under and as defined in the Deed of Trust, provided that Lender is unable to draw upon the Letter of Credit after using reasonable efforts to do so. An Event of Default under the Deed of Trust shall also constitute an LOC Event of Default.
(b) If (i) there shall occur an LOC Event of Default or an Event of Default under the Deed of Trust; (ii) there shall occur any action by Borrower or the Issuing Bank which, in the sole and absolute discretion of Lender, would jeopardize Lender’s right to draw on the Letter of Credit; or (iii) there is any material adverse change in the financial condition of the Issuing Bank from that in existence on the date of issuance of the Letter of Credit, in the sole and absolute discretion of Lender, then Lender may at its option, draw upon the Letter of Credit the full amount of the Letter of Credit (or such lesser amount as Lender shall determine in its sole and absolute discretion, which shall not be deemed a waiver of Lender’s right to make future draws) and hold and apply the proceeds thereof as provided below. No delay or omission of Lender in exercising any right to draw on the Letter of Credit shall impair any such right, or shall be construed as a waiver of or acquiescence in any event giving rise to such right.
(c) Proceeds of any draw upon the Letter of Credit shall, subject to the provisions hereof, be held by Lender as cash collateral for Borrower’s obligations under the Loan Documents, unless there is an Event of Default under the Deed of Trust (specifically excluding any Event of Default arising solely under Section 6(a) above) in which event Lender may, without notice or demand on Borrower, at Lender’s option: (i) apply the net proceeds from any drawing on the Letter of Credit (after deducting all costs and expenses permitted under this Agreement) to the payment of accrued interest, late charges, principal (including any prepayment fee occasioned by a principal payment), and/or to any other obligation arising out of the obligations of Borrower or Liable Parties to Lender under this Agreement, any of the other Loan Documents, the Administrative Agent may Guaranty and/or the Indemnity Agreement in such manner as Lender in its sole and absolute discretion deems appropriate, (ii) exercise from time to time any and all rights and remedies available to it under applicable law, in addition to those described in this section below.
(a) Each Grantor agrees, in case of Default, (i) at the Administrative Agent’s request, to assemble, at its expense, all its Inventory and other Goods (other than Fixtures) at a convenient place or places acceptable to the Administrative Agent, and (ii) at the Administrative Agent’s request, to execute all such documents and do all such other things which may be necessary or desirable in order to enable the Administrative Agent or its nominee to be registered as owner of the Intellectual Property with any competent registration authority.
(b) Notice of the intended disposition of the Collateral may be given by first-class mail, hand-delivery (through a delivery service or otherwise), facsimile or E-mail, and shall be deemed to have been “sent” upon deposit in the U.S. Mails with adequate postage properly affixed, upon delivery to an express delivery service or upon the electronic submission through telephonic or Internet services, as applicable. Each Grantor hereby agrees and acknowledges that (i) with respect to collateral that is: (A) perishable or threatens to decline speedily in value, or (B) is of a type customarily sold on a recognized market (including but not limited to, Investment Property), no notice of disposition need be given; and (ii) with respect to Collateral not described in clause (i) above, notification sent after the occurrence of and during the continuance of a Default and ten days before secured party under any proposed disposition provides notice within a reasonable time before disposition.
(c) Each Grantor hereby agrees and acknowledges that a commercially reasonable disposition of Inventory, Equipment, Computer Hardware and Software, or Intellectual Property may be by lease or license of, in addition to the sale of, such Collateral. Each Grantor further agrees and acknowledges that a disposition: (i) made in the usual manner on any recognized market, or (ii) a disposition at the price current in any recognized market at the time of dispositionapplicable Uniform Commercial Code, or (iii) a disposition exercise any other remedies available at law or in conformity with reasonable commercial practices among dealers in the type of property subject to the disposition; equity. Nothing herein shall be deemed commercially reasonableto impair the right of Lender to pay any unpaid Tenant Improvement Allowance pursuant to Section 11.5 and other applicable provisions of the Deed of Trust. No delay or omission of Lender in exercising any right to draw on the Letter of Credit shall impair any such right, or shall be construed as a waiver of or acquiescence in any event giving rise to such right.
(d) Any cash If there is no Event of Default existing under the Deed of Trust, then provided that the requirements of Section 3(a) have been satisfied, Lender shall make the net proceeds from any drawing on the Letter of Credit available to Borrower to pay the Tenant Improvement Allowance in accordance with the terms of the MTO Lease or the applicable Replacement Lease. Neither any draw on the Letter of Credit pursuant to Section 6(b), the use or application of the proceeds thereof in accordance with this Section, or the release or return of the Letter of Credit or the proceeds thereof shall be deemed to constitute an unpermitted setoff or unpermitted "action" under Section 726 of the California Code of Civil Procedure or any similar law, or to cure any default or Event of Default. Lender’s continuation of releases of any disposition Letter of Credit when and as contemplated by the Administrative Agent this Agreement shall not be deemed Lender’s waiver or a cure of any of the Collateral shall be applied default by the Administrative Agent to payment of expenses in connection with the Collateral, including reasonable attorneys’ fees and legal expenses, and thereafter to the payment of any and all of the Liabilities in the order of application set forth in Section 8.03 of the Credit Agreement, and thereafter any surplus will be paid promptly to the Grantor. The Administrative Agent need not apply or pay over for application noncash proceeds of collection and enforcement unless: (i) the failure to do so would be commercially unreasonable and (ii) the affected Grantor has provided the Administrative Agent with a written demand to apply or pay over such noncash proceeds on such basisBorrower.
Appears in 1 contract
Sources: Letter of Credit Agreement (Maguire Properties Inc)
Default. Whenever a Default (a) Lessor may in writing declare this Agreement in default if: Lessee breaches its obligation to pay rent or any other sum when due and fails to cure the breach within ten (10) days; Lessee breaches any of its insurance obligations herewith under Section IX; Lessee breaches any of its other obligations hereunder and fails to cure that breach within thirty (30) days after written notice thereof; any representation or warranty made by or on behalf of Lessee in connection with this Agreement shall be existingfalse or misleading in any material respect; Lessee or any guarantor becomes insolvent or ceases to do business as a going concern; any Equipment is illegally used; a petition is filed by or against Lessee or any guarantor under any bankruptcy or insolvency laws; there is a revocation or anticipatory repudiation of any guarantor's obligations under any guaranty issued in connection with this Agreement; Lessee or any guarantor shall be in default under any material obligation and the applicable grace period with respect thereto shall have expired; Lessee or any guarantor shall have terminated its existence, consolidated with, merged into or conveyed or leased substantially all of its assets as an entirety to any person (such actions being referred to as an "Event"). Any provision of this Agreement to the Administrative Agent contrary notwithstanding. Lessor may exercise from time to time any and all rights and remedies available hereunder independently with respect to it under applicable law, in addition to those described in this section below.
(a) Each Grantor agrees, in case of Default, (i) at the Administrative Agent’s request, to assemble, at its expense, all its Inventory and other Goods (other than Fixtures) at a convenient place or places acceptable to the Administrative Agent, and (ii) at the Administrative Agent’s request, to execute all such documents and do all such other things which may be necessary or desirable in order to enable the Administrative Agent or its nominee to be registered as owner of the Intellectual Property with any competent registration authorityeach Schedule.
(b) Notice After default at the request of Lessor, Lessee shall comply with the provisions of Section X(a). Lessee hereby authorizes Lessor to enter, with or without legal process, any premises where any Equipment is believed to be and take possession thereof. Lessee shall, without further demand, forthwith pay to Lessor as liquidated damages for loss of a bargain and not as a penalty, the Stipulated Loss Value of the intended disposition Equipment (calculated as of the Collateral rental date next preceding the declaration of default), and all rentals and other sums then due hereunder. Lessor may terminate this Agreement as to any or all of the Equipment, provided that a termination shall occur only upon written notice by Lessor to Lessee and only as to the items of Equipment specified in any such notice. Lessor may, but shall not be given by first-class mailrequired to, hand-delivery (through a delivery service sell Equipment at private or public sale, in bulk or in parcels, with or without notice, and without having the Equipment present at the place of sale; or Lessor may, but shall not be required to, lease, otherwise dispose of or keep idle all or part of the Equipment; and Lessor may use Lessee's premises for any or all of the foregoing without liability for rent, costs, damages or otherwise). The proceeds of sale, facsimile lease or E-mailother disposition, and if any, shall be deemed to have been “sent” upon deposit applied in the U.S. Mails with adequate postage properly affixed, upon delivery to an express delivery service or upon the electronic submission through telephonic or Internet services, as applicable. Each Grantor hereby agrees and acknowledges that (i) with respect to collateral that isfollowing order of priorities: (A1) perishable to pay all of Lessor's costs, charges and expenses incurred in taking, removing, holding, repairing and selling, leasing or threatens otherwise disposing of Equipment; then, (2) to decline speedily in valuethe extent not previously paid by Lessee, or to pay Lessor all sums due from Lessee hereunder, then (B3) is of a type customarily sold on a recognized market (including but not limited to, Investment Property), no notice of disposition need be givento reimburse to Lessee any sums previously paid by Lessee as liquidated damages; and (ii4) with respect to Collateral not described any surplus shall be retained by Lessor. Lessee shall pay any deficiency in clause (i1) above, notification sent after the occurrence of and during the continuance of a Default and ten days before any proposed disposition provides notice within a reasonable time before disposition(2) forthwith.
(c) Each Grantor hereby agrees The foregoing remedies are cumulative, and acknowledges that a commercially reasonable disposition of Inventory, Equipment, Computer Hardware and Software, any or Intellectual Property all thereof may be by lease exercised in lieu of or license of, in addition to each other or any remedies at law, in equity, or under statute. Lessee waives notice of sale or other disposition (and the sale oftime and place thereof), and the manner and place of any advertising. Lessee shall pay Lessor's actual attorney's fees incurred in connection with the enforcement, assertion, defense or preservation of Lessor's rights and remedies hereunder, or if prohibited by law, such Collaterallesser sum as may be permitted. Each Grantor further agrees and acknowledges that Waiver of any default shall not be a disposition: (i) made in the usual manner on waiver of any recognized market, other or (ii) a disposition at the price current in any recognized market at the time of disposition, or (iii) a disposition in conformity with reasonable commercial practices among dealers in the type of property subject to the disposition; shall be deemed commercially reasonablesubsequent default.
(d) Any cash proceeds default under the terms of this or any disposition other agreement between Lessor and Lessee may be declared by the Administrative Agent of Lessor a default under this and any of the Collateral shall be applied by the Administrative Agent to payment of expenses such other agreement.
(e) Lessee is in connection with the Collateral, including reasonable attorneys’ fees and legal expensesdefault, and thereafter to the payment of a default has been declared, under it's revolving credit agreement with Fleet Capital Corporation (or any replacement said revolving credit agreement), which is evidenced by a Loan and all of the Liabilities in the order of application set forth in Section 8.03 of the Credit AgreementSecurity Agreement dated February 1, and thereafter any surplus will be paid promptly to the Grantor. The Administrative Agent need not apply or pay over for application noncash proceeds of collection and enforcement unless: (i) the failure to do so would be commercially unreasonable and (ii) the affected Grantor has provided the Administrative Agent with a written demand to apply or pay over such noncash proceeds on such basis1995.
Appears in 1 contract
Sources: Master Lease Agreement (Morton Industrial Group Inc)
Default. Whenever a Default AVF shall be existingin default of this Agreement upon the occurrence of any of the following (collectively, the Administrative Agent may exercise from time to time any and all rights and remedies available to it under applicable law, in addition to those described in this section below.
(a) Each Grantor agrees, in case “AVF Events of Default, ”): (i) at the Administrative Agent’s request, AVF fails or refuses to assemble, at perform its expense, all its Inventory and other Goods (other than Fixtures) at a convenient place material obligations hereunder or places acceptable to the Administrative Agent, and (ii) at the Administrative Agent’s request, to execute all such documents and do all such other things which may be necessary or desirable in order to enable the Administrative Agent or its nominee to be registered as owner of the Intellectual Property with breaches any competent registration authority.
(b) Notice of the intended disposition of the Collateral may be given by first-class mail, hand-delivery (through a delivery service or otherwise), facsimile or E-mail, and shall be deemed to have been “sent” upon deposit in the U.S. Mails with adequate postage properly affixed, upon delivery to an express delivery service or upon the electronic submission through telephonic or Internet services, as applicable. Each Grantor hereby agrees and acknowledges that (i) with respect to collateral that is: (A) perishable or threatens to decline speedily in value, or (B) is of a type customarily sold on a recognized market (including but not limited to, Investment Property), no notice of disposition need be given; and (ii) with respect to Collateral not described in clause (i) above, notification sent after the occurrence of and during the continuance of a Default and ten days before any proposed disposition provides notice within a reasonable time before disposition.
(c) Each Grantor hereby agrees and acknowledges that a commercially reasonable disposition of Inventory, Equipment, Computer Hardware and Software, or Intellectual Property may be by lease or license of, in addition to the sale of, such Collateral. Each Grantor further agrees and acknowledges that a disposition: (i) made in the usual manner on any recognized marketmaterial provision hereof, or (ii) AVF goes into receivership or liquidation, or becomes insolvent, or a disposition at petition under any bankruptcy act shall be filed by or against AVF (which petition, if filed against AVF, shall not have been dismissed within thirty days thereafter), or AVF executes an assignment for the price current benefit of creditors, or AVF takes advantage of any applicable insolvency, bankruptcy or reorganization or any other like or analogous statute, or experiences the occurrence of any event analogous to the foregoing. If AVF fails to cure a AVF Event of Default specified in (i) above that is curable within thirty (30) days from receipt of written notice from CPT of such default or immediately upon a AVF Event of Default under (ii) above that is not curable under (ii) above, CPT shall have the right to immediately terminate this Agreement. AVF acknowledges that the intellectual property rights and licenses in and to the Program granted to CPT herein would be governed by 11 USC Section 365(n) in the event of the commencement of a bankruptcy case by or of AVF. AVF acknowledges and agrees that, notwithstanding any rejection of this Agreement in any recognized market at the time of dispositionbankruptcy case, or (iii) a disposition in conformity with reasonable commercial practices among dealers CPT may elect to continue to enjoy all exclusive rights and licenses granted in the type of property subject to Program for the disposition; entire License Period as provided herein. Copyright. AVF hereby acknowledges and agrees that the Program shall be deemed commercially reasonable.
(d) Any cash proceeds of any disposition by contain a copyright notice in the Administrative Agent of any name of the Collateral copyright proprietor conforming to and complying with the requirements of the applicable copyright laws of the Territory. CPT may in its own name or in the name of the copyright proprietor, take such steps as CPT may deem necessary or appropriate by action at law or otherwise, to prevent any unauthorized reproductions, exhibition or distribution of the Program, any infringement of the copyright of the Program or any impairment of or encumbrance on the rights granted to CPT hereunder. AVF agrees that it shall be applied promptly execute and deliver to CPT the Assignment of Distribution Rights Under Copyright which is attached hereto as Exhibit A and incorporated herein by this reference and that upon the Administrative Agent request of CPT it shall promptly execute and deliver to payment of expenses CPT such additional documents as CPT may need in connection with the Collateral, including reasonable attorneys’ fees foregoing. AVF hereby irrevocably appoints and legal expenses, designates CPT as its attorney-in-fact to exercise and thereafter file all such documents requested by CPT pursuant to the payment of any and all of the Liabilities in the order of application set forth in Section 8.03 of the Credit Agreement, and thereafter any surplus will be paid promptly to the Grantorthis Section. The Administrative Agent need not apply or pay over for application noncash proceeds of collection and enforcement unless: (i) the failure to do so would be commercially unreasonable and (ii) the affected Grantor has provided the Administrative Agent This power-of-attorney is coupled with a written demand to apply or pay over such noncash proceeds on such basisan interest.
Appears in 1 contract
Sources: Distribution Agreement
Default. Whenever a If any Event of Default occurs, then
(a) The Administrative Agent may, at its option and without notice, declare the unpaid balance of any or all of the Obligations immediately due and payable and this Agreement and any or all of the Obligations in default.
(b) All payments received by Guarantor under or in connection with any of the Collateral shall be existingheld by Guarantor in trust for the Administrative Agent, shall be segregated from other funds of Guarantor and shall forthwith upon receipt by Guarantor be turned over to the Administrative Agent in the same form as received by Guarantor (duly indorsed by Guarantor to the Administrative Agent, if required). Any and all such payments so received by the Administrative Agent (whether from Guarantor or otherwise) may, in the sole discretion of the Administrative Agent, be held by the Administrative Agent as collateral security for, and/or then or at any time thereafter be applied in whole or in part by the Administrative Agent against, all or any part of the Obligations in such order as the Administrative Agent may elect. Any balance of such payments held by the Administrative Agent and remaining after payment in full of all the Obligations shall be paid over to Guarantor or to whomsoever may be lawfully entitled to receive the same. Nothing set forth in this subparagraph (b) shall authorize or be construed to authorize Guarantor to sell or otherwise dispose of any Collateral.
(c) The Administrative Agent shall have the rights and remedies of a holder and of a secured party under this Agreement, under any other instrument or agreement securing, evidencing or relating to the Obligations and under the laws of the State of New York. Without limiting the generality of the foregoing, the Administrative Agent may exercise from time shall have the right to time any take possession of the Collateral and all rights books and remedies available records relating to it under applicable the Collateral and for that purpose the Administrative Agent may enter upon any premises on which the Collateral or books and records relating to the Collateral or any part thereof may be situated and remove the same therefrom. Guarantor expressly agrees that the Administrative Agent, without demand of performance or other demand, advertisement or notice of any kind (except the notices specified below of time and place of public sale or disposition or time after which a private sale or disposition is to occur) to or upon Guarantor or any other person or entity (all and each of which demands, advertisements and/or notices are hereby expressly waived), may forthwith collect, receive, appropriate and realize upon the Collateral, or any part thereof, and/or may forthwith sell, lease, assign, give option or options to purchase or sell or otherwise dispose of and deliver the Collateral (or contract to do so), or any part thereof, in one or more parcels at public or private sale or sales, at any of the Administrative Agent’s offices or elsewhere at such prices as the Administrative Agent may deem best, for cash or on credit or for future delivery without assumption of any credit risk. The Administrative Agent shall have the right upon any such public sale or sales, and, to the extent permitted by law, upon any such private sale or sales, to purchase the whole or any part of the Collateral so sold, free of any right or equity of redemption in addition to those described in this section below.
(a) Each Grantor Guarantor. Guarantor further agrees, in case of Default, (i) at the Administrative Agent’s request, to assemble, at its expense, all its Inventory assemble the Collateral and other Goods (other than Fixtures) at a convenient place or places acceptable to make it available to the Administrative AgentAgent at such places as the Administrative Agent may reasonably select, and (ii) whether at Guarantor’s premises or elsewhere. Guarantor further agrees to allow the Administrative Agent to use or occupy Guarantor’s premises, without charge, for the purpose of effecting the Administrative Agent’s requestremedies in respect of the Collateral. The Administrative Agent shall apply the net proceeds of any such collection, recovery, receipt, appropriation, realization or sale, after deducting all reasonable costs and expenses of every kind incurred in connection therewith or incidental to execute the care or safekeeping of any or all such documents and do all such other things which may be necessary of the Collateral or desirable in order any way relating to enable the rights of the Administrative Agent hereunder, including reasonable attorneys’ fees to the extent permitted by law and reasonable legal expenses, to the payment in whole or its nominee to be registered as owner in part of the Intellectual Property with any competent registration authority.
(b) Notice of Obligations, in such order as the intended disposition of the Collateral Administrative Agent may be given by first-class mail, hand-delivery (through a delivery service or otherwise), facsimile or E-mailelect, and shall be deemed to have been “sent” upon deposit in the U.S. Mails with adequate postage properly affixed, upon delivery to an express delivery service or upon the electronic submission through telephonic or Internet services, as applicable. Each Grantor hereby agrees only after so paying over such net proceeds and acknowledges that (i) with respect to collateral that is: (A) perishable or threatens to decline speedily in value, or (B) is of a type customarily sold on a recognized market (including but not limited to, Investment Property), no notice of disposition need be given; and (ii) with respect to Collateral not described in clause (i) above, notification sent after the occurrence of and during the continuance of a Default and ten days before any proposed disposition provides notice within a reasonable time before disposition.
(c) Each Grantor hereby agrees and acknowledges that a commercially reasonable disposition of Inventory, Equipment, Computer Hardware and Software, or Intellectual Property may be by lease or license of, in addition to the sale of, such Collateral. Each Grantor further agrees and acknowledges that a disposition: (i) made in the usual manner on any recognized market, or (ii) a disposition at the price current in any recognized market at the time of disposition, or (iii) a disposition in conformity with reasonable commercial practices among dealers in the type of property subject to the disposition; shall be deemed commercially reasonable.
(d) Any cash proceeds of any disposition payment by the Administrative Agent of any other amount required by any provision of law, shall the Administrative Agent account for the surplus, if any, to Guarantor. To the extent permitted by applicable law, Guarantor waives all claims, damages and demands against the Administrative Agent arising out of the repossession, retention, sale or disposition of the Collateral. Guarantor agrees that the Administrative Agent need not give more than ten (10) days’ notice (which notification shall be deemed given when provided pursuant to the terms of the Credit Documents) of the time and place of any public sale or of the time after which a private sale may take place and that such notice is reasonable notification of such matters. Guarantor shall remain liable for any deficiency if the proceeds of any sale or disposition of the Collateral shall be applied by are insufficient to pay all amounts to which the Administrative Agent to payment is entitled. Guarantor shall also be liable for the costs of expenses in connection with collecting any of the Collateral, Obligations or otherwise enforcing the terms thereof or of this Agreement including reasonable attorneys’ fees and legal expenses, and thereafter to the payment of any and all of the Liabilities in the order of application set forth in Section 8.03 of the Credit Agreement, and thereafter any surplus will be paid promptly to the Grantor. The Administrative Agent need not apply or pay over for application noncash proceeds of collection and enforcement unless: (i) the failure to do so would be commercially unreasonable and (ii) the affected Grantor has provided the Administrative Agent with a written demand to apply or pay over such noncash proceeds on such basisextent permitted by law.
Appears in 1 contract
Sources: Restructure Agreement (Franklin Credit Holding Corp/De/)