Default. Upon the occurrence or during the continuance of any one or more of the events listed below, Holder or the holder of this Note may forthwith or at any time thereafter during the continuance of any such event, by notice in writing to the Maker, declare the unpaid balance of the principal of this Note to be immediately due and payable, and the principal shall become and shall be immediately due and payable without presentation, demand, protest, notice of protest, or other notice of dishonor, all of which are hereby expressly waived by Maker, with full knowledge of the effect of such waiver. The events deemed as defaults shall include without limitation the following: (a) Maker's failure to pay the principal and interest of this Note or any portion thereof when the same shall become due and payable (whether at maturity as herein expressed, by acceleration, or otherwise) unless cured within five (5) days after Holder or the holder of this Note delivers to Maker written notice of default; (b) Maker's filing a voluntary petition in bankruptcy; or filing a voluntary petition seeking reorganization; or filing an answer admitting the jurisdiction of the court and any material allegations of an involuntary petition filed pursuant to any act of Congress relating to bankruptcy or to any act purporting to be amendatory thereof; or making an assignment for the benefit of its creditors; or applying for or consenting to the appointment of any receiver or trustee for Maker or all or any substantial portion of its property; or assigning an agent to liquidate any substantial part of Maker's assets; (c) The entry of (i) any court order pursuant to any act of Congress (or amendment thereof) relating to Maker's bankruptcy or reorganization; or (ii) any court order approving an involuntary petition for the bankruptcy or reorganization of the Maker; or (iii) any court order appointing any receiver or trustee of or for Maker or for all or any substantial portion of the Maker's property; or (iv) any writ or warrant of attachment or any similar process issued by any court against all or any substantial portion of the Maker's property (unless such court orders, writs, or warrants as identified in subpoints (i) to (iv) of this paragraph are vacated or stayed or released or bonded within 60 days after their entry).
Appears in 3 contracts
Sources: Consulting Agreement (Genesis Capital Corp of Nevada), Consulting Agreement (Hudson Consulting Group Inc), Consulting Agreement (Genesis Capital Corp of Nevada)
Default. Upon (a) Each of the occurrence following shall constitute an “Event of Default” hereunder: (i) failure by the Borrower to perform any material obligations under this Agreement, the Note or during any other agreement between the continuance Borrower and the Lender or by the Borrower in favor of the Lender, time being of the essence; (ii) the commencement of any one bankruptcy or more of insolvency proceedings by or against the events listed belowBorrower; (iii) material falsity in any certificate, Holder statement, representation, warranty or the holder of this Note may forthwith or audit at any time thereafter during furnished by or on behalf of the continuance Borrower or any endorser or guarantor or any other party liable for payment of any such eventall or part of the Secured Obligations, by notice pursuant to or in writing connection with this Agreement or otherwise to the MakerLender, declare the unpaid balance of the principal of including warranties in this Note Agreement and including any omission to be immediately due and payable, and the principal shall become and shall be immediately due and payable without presentation, demand, protest, notice of protest, disclose any substantial contingent or other notice of dishonor, all of which are hereby expressly waived by Maker, with full knowledge of the effect of such waiver. The events deemed as defaults shall include without limitation the following:
(a) Maker's failure to pay the principal and interest of this Note liquidated liabilities or any portion thereof when the same shall become due and payable (whether at maturity as herein expressedmaterial adverse change in facts disclosed by any certificate, by accelerationstatement, representation, warranty or otherwise) unless cured within five (5) days after Holder or the holder of this Note delivers to Maker written notice of default;
(b) Maker's filing a voluntary petition in bankruptcy; or filing a voluntary petition seeking reorganization; or filing an answer admitting the jurisdiction of the court and any material allegations of an involuntary petition filed pursuant to any act of Congress relating to bankruptcy or to any act purporting to be amendatory thereof; or making an assignment for the benefit of its creditors; or applying for or consenting audit furnished to the appointment of any receiver or trustee for Maker or all or any substantial portion of its property; or assigning an agent to liquidate any substantial part of Maker's assets;
(c) The entry of (i) any court order pursuant to any act of Congress (or amendment thereof) relating to Maker's bankruptcy or reorganization; or (ii) any court order approving an involuntary petition for the bankruptcy or reorganization of the Maker; or (iii) any court order appointing any receiver or trustee of or for Maker or for all or any substantial portion of the Maker's propertyLender; or (iv) any writ or warrant of attachment or levy against the Collateral or any similar process issued 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 those of a secured party under the UCC and any other applicable law in effect from time to 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 court against 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 substantial portion part of the Maker's property 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 (unless 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 court ordersevent, writsthe 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 warrants 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 the Lender, the Borrower expressly acknowledges and agrees that with respect to Collateral consisting of notes, bonds or other securities which are not sold on a recognized market, the Lender shall be deemed to have 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 securities industry, and (b) 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 such sale is reasonably supported by quotations received from one or more other nationally recognized broker-dealers, investment bankers or other financial institutions.
(e) The Borrower shall pay all costs and expenses incurred by the Lender 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, arbitration, appeal or otherwise and, to the extent of the Borrower’s liability for repayment of any of the Secured Obligations, shall be liable for any deficiencies in the event the Proceeds of disposition of the Collateral do not satisfy the Secured Obligations in full. Nothing contained herein shall be deemed to require the Lender to proceed against the Collateral or any part thereof before or as identified in subpoints (i) a condition to (iv) the pursuit of this paragraph are vacated or stayed or released or bonded within 60 days after their entry)any of its other rights and remedies with respect to the Secured Obligations.
Appears in 3 contracts
Sources: Consolidated Security Agreement (Starco Brands, Inc.), Security Agreement (Starco Brands, Inc.), Security Agreement (Starco Brands, Inc.)
Default. Upon For purposes of this Note, the occurrence term “default” shall include any of the following:
(a) The failure by Debtor to pay any amounts due under any of the Notes on the stated due date;
(b) Debtor shall (i) make an assignment for the benefit of creditors or during petition or apply to any tribunal for the continuance appointment of a custodian, receiver or trustee for it or a substantial part of its assets, (ii) commence any proceeding under any bankruptcy, reorganization, arrangement, readjustment of debt, dissolution or liquidation law or statute of any one jurisdiction, whether now or more hereafter in effect, (iii) have had any such petition or application filed or any such proceeding commenced against it that is not dismissed within 30 days, (iv) indicate, by any act or intentional and purposeful omission, its consent to, approval of the events listed belowor acquiescence in any such petition, Holder application, proceeding or order for relief or the holder appointment of a custodian, receiver or trustee for it or a substantial part of its assets, or (v) suffer any such custodianship, receivership or trusteeship to continue undischarged for a period of 30 days or more; or
(c) Debtor shall adopt a plan of liquidation or dissolution, or the charter thereof shall expire or be revoked. Upon each such default, Lender may, at its option, accelerate repayment of this Note may forthwith or at any time thereafter during Note, in which case the continuance principal amount outstanding under this Note, all interest accrued thereon and all other amounts owing hereunder shall be due and payable immediately; provided, that if there shall occur an Event of any such eventDefault described in subparagraph (b), by notice in writing to the Maker, declare the entire unpaid balance of the principal of with interest accrued thereon and all other sums due under this Note to be immediately due and payable, and the principal shall become and shall be immediately due and payable without presentation, demand, protest, notice of protest, or other notice of dishonor, all of which are hereby expressly waived any action by Maker, with full knowledge of the effect of such waiver. The events deemed as defaults shall include without limitation the following:
(a) Maker's failure to pay the principal and interest of this Note or any portion thereof when the same shall become due and payable (whether at maturity as herein expressed, by acceleration, or otherwise) unless cured within five (5) days after Holder or the holder of this Note delivers to Maker written notice of default;
(b) Maker's filing a voluntary petition in bankruptcy; or filing a voluntary petition seeking reorganization; or filing an answer admitting the jurisdiction of the court and any material allegations of an involuntary petition filed pursuant to any act of Congress relating to bankruptcy or to any act purporting to be amendatory thereof; or making an assignment for the benefit of its creditors; or applying for or consenting to the appointment of any receiver or trustee for Maker or all or any substantial portion of its property; or assigning an agent to liquidate any substantial part of Maker's assets;
(c) The entry of (i) any court order pursuant to any act of Congress (or amendment thereof) relating to Maker's bankruptcy or reorganization; or (ii) any court order approving an involuntary petition for the bankruptcy or reorganization of the Maker; or (iii) any court order appointing any receiver or trustee of or for Maker or for all or any substantial portion of the Maker's property; or (iv) any writ or warrant of attachment or any similar process issued by any court against all or any substantial portion of the Maker's property (unless such court orders, writs, or warrants as identified in subpoints (i) to (iv) of this paragraph are vacated or stayed or released or bonded within 60 days after their entry)Lender.
Appears in 3 contracts
Sources: Stockholders’ Agreement (Orchard Supply Hardware Stores Corp), Stockholders’ Agreement (Orchard Supply Hardware Stores Corp), Stockholders’ Agreement (Orchard Supply Hardware Stores Corp)
Default. Upon the occurrence or during the continuance of any one or more of the events listed below, Holder or the holder of this Note may forthwith or at any time thereafter during the continuance of any such event, by notice in writing to the Maker, declare the unpaid balance of the principal of this Note to be immediately due and payable, and the principal shall become and shall be immediately due and payable without presentation, demand, protest, notice of protest, or other notice of dishonor, all of which are hereby expressly waived by Maker, with full knowledge of the effect of such waiver. The events deemed as defaults shall include without limitation the following:
(a) Maker's failure In the event that Dow Corning fails to pay in full when due an Actual Expenditures Notice (hereinafter a "Payment Default"), interest shall accrue on the principal unpaid portion of the Actual Expenditures Notice at the prime rate of interest announced by or published by the Wall Street Journal on the date when such Payment Default occurs plus 1½% per annum, which shall be adjusted monthly to the rate then in effect (the "Default Rate") compounded annually until payment is made. In the event a Payment Default occurs and interest of this Note or any portion thereof when the same shall become due and payable (whether at maturity as herein expressed, by acceleration, or otherwise) unless cured within five (5) days after Holder Claims Administrator or the holder Claimants’ Advisory Committee believes the Default Rate is inadequate, the Claims Administrator and/or the Claimants’ Advisory Committee may seek the imposition of a higher rate from the Court after notice to all Parties and the opportunity for hearing. Interest paid pursuant to this Note delivers subsection (a) shall not be included in calculating the payment of the net present value of $2,350,000,000 under this Agreement or applied as an amount paid to Maker written notice of default;the Settlement Facility toward any Annual Payment Ceiling.
(b) Maker's filing In the event of two or more Payment Defaults and/or a voluntary petition breach of any covenant in bankruptcy; or filing a voluntary petition seeking reorganization; or filing an answer admitting this Agreement, the jurisdiction Claims Administrator and the Claimants’ Advisory Committee shall have the right to pursue any and all remedies from the Court after notice to all other Parties and the opportunity for hearing. The Court may impose such remedies as it determines to be necessary and appropriate (i) to fully protect the rights of the court and any material allegations of an involuntary petition filed pursuant to any act of Congress relating to bankruptcy or to any act purporting Settlement Facility to be amendatory thereofpaid the full amount due under this Agreement promptly when those amounts become due; (ii) to remedy a breach of the obligations to fund this Agreement and to deter or making an assignment for protect against any future defaults; and (iii) to preserve and maintain the benefit rights of its creditors; or applying for or consenting the Settlement Facility vis a vis other creditors of Dow Corning. Dow Corning shall be entitled to oppose the appointment imposition of any receiver or trustee for Maker or all or any substantial portion of its property; or assigning an agent to liquidate any substantial part of Maker's assets;remedies.
(c) The entry of (i) any court order pursuant to any act of Congress (or amendment thereof) relating to Maker's bankruptcy or reorganization; or (ii) any court order approving an involuntary petition for Claims Administrator, with the bankruptcy or reorganization agreement of the Maker; or (iii) Claimants’ Advisory Committee, may waive any court order appointing default hereunder. Upon any receiver or trustee of or for Maker or for all or any substantial portion of the Maker's property; or (iv) any writ or warrant of attachment or any similar process issued by any court against all or any substantial portion of the Maker's property (unless such court orderswaiver, writs, or warrants as identified in subpoints (i) such default shall cease to (iv) of this paragraph are vacated or stayed or released or bonded within 60 days after their entry)exist.
Appears in 3 contracts
Sources: Funding Payment Agreement, Funding Payment Agreement, Funding Payment Agreement
Default. Upon the occurrence or during the continuance of any one or more (a) Each of the following events listed below, Holder or the holder of this Note may forthwith or at any time thereafter during the continuance of any such event, by notice in writing to the Maker, declare the unpaid balance of the principal of this Note to be immediately due and payable, and the principal shall become and shall be immediately due and payable without presentation, demand, protest, notice an “Event of protest, or other notice of dishonor, all of which are hereby expressly waived by Maker, with full knowledge of the effect of such waiver. The events deemed as defaults shall include without limitation the followingDefault” hereunder:
(ai) Maker's failure to pay the principal and interest of this Note Company files any petition or action for relief under any bankruptcy, reorganization, insolvency or moratorium law or any portion thereof when other law for the same shall become due and payable (whether at maturity as herein expressed, by accelerationrelief of, or otherwise) unless cured within five (5) days after Holder relating to, debtors, now or the holder of this Note delivers to Maker written notice of default;
(b) Maker's filing a voluntary petition hereafter in bankruptcy; effect, or filing a voluntary petition seeking reorganization; or filing an answer admitting the jurisdiction of the court and makes any material allegations of an involuntary petition filed pursuant to any act of Congress relating to bankruptcy or to any act purporting to be amendatory thereof; or making an assignment for the benefit of its creditors; creditors or applying for or consenting to the appointment takes any corporate action in furtherance of any receiver of the foregoing;
(ii) an involuntary petition is filed against the Company under any bankruptcy statute now or trustee hereafter in effect, or a custodian, receiver, trustee, assignee for Maker the benefit of creditors (or other similar official) is appointed to take possession, custody or control of any property of the Company;
(iii) the Company executes an assignment with respect to substantially all or any substantial portion of its property; or assigning an agent to liquidate any substantial part of Maker's assets;
(civ) The entry failure of the Company to pay when due any amount owed to the Holder; and
(v) the Company breaches any obligation under this Note in any material respect and fails to cure such breach within fifteen (15) days of the Company receiving notice of such breach from Holder.
(b) Upon the occurrence of any Event of Default hereunder, (i) until such amounts are paid in full, any court order pursuant amounts owing hereunder shall bear interest at a rate equal to any act of Congress twelve percent (or amendment thereof12%) relating to Maker's bankruptcy or reorganization; or per annum, and such rate shall increase by one percent (1.0%) every ninety (90) days until such amounts are paid in full, (ii) any court order approving an involuntary petition for the bankruptcy or reorganization of the Maker; or all unpaid principal, accrued interest and other amounts owing under this Note shall automatically and immediately become due, payable and collectible by Holder pursuant to applicable law, (iii) any court order appointing any receiver amounts that would be distributed or trustee otherwise paid to the Company under the Second Amended and Restated Operating Agreement of or for Maker or for all or any substantial portion Raft River Energy I LLC, dated as of the Maker's property; or date hereof, shall be paid by Raft River Energy I LLC directly to the Holder in accordance with Section 14.12 thereunder, and (iv) the Holder may pursue any writ other rights or warrant of attachment remedies it may have at law or any similar process issued by any court against all or any substantial portion of the Maker's property (unless such court orders, writs, or warrants as identified in subpoints (i) to (iv) of this paragraph are vacated or stayed or released or bonded within 60 days after their entry)equity.
Appears in 3 contracts
Sources: Purchase and Sale Agreement, Purchase and Sale Agreement (Us Geothermal Inc), Convertible Promissory Note (Us Geothermal Inc)
Default. Upon 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 or of and during the continuance of a Default and ten days before any one or more of the events listed below, Holder or the holder of this Note may forthwith or at any proposed disposition provides notice within a reasonable time thereafter during the continuance of any such event, by notice in writing to the Maker, declare the unpaid balance of the principal of this Note to be immediately due and payable, and the principal shall become and shall be immediately due and payable without presentation, demand, protest, notice of protest, or other notice of dishonor, all of which are hereby expressly waived by Maker, with full knowledge of the effect of such waiver. The events deemed as defaults shall include without limitation the following:
(a) Maker's failure to pay the principal and interest of this Note or any portion thereof when the same shall become due and payable (whether at maturity as herein expressed, by acceleration, or otherwise) unless cured within five (5) days after Holder or the holder of this Note delivers to Maker written notice of default;
(b) Maker's filing a voluntary petition in bankruptcy; or filing a voluntary petition seeking reorganization; or filing an answer admitting the jurisdiction of the court and any material allegations of an involuntary petition filed pursuant to any act of Congress relating to bankruptcy or to any act purporting to be amendatory thereof; or making an assignment for the benefit of its creditors; or applying for or consenting to the appointment of any receiver or trustee for Maker or all or any substantial portion of its property; or assigning an agent to liquidate any substantial part of Maker's assets;before disposition.
(c) The entry 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 court order pursuant to any act of Congress (or amendment thereof) relating to Maker's bankruptcy or reorganization; recognized market, or (ii) a disposition at the price current in any court order approving an involuntary petition for recognized market at the bankruptcy or reorganization time of the Maker; 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 court order appointing disposition by the Administrative Agent of any receiver or trustee of or for Maker or for all or any substantial portion of the Maker's property; or (iv) 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 writ or warrant of attachment or any similar process issued by any court against and all or any substantial portion of the Maker's property (unless such court ordersLiabilities in the order of application set forth in Section 8.03 of the Credit Agreement, writs, and thereafter any surplus will be paid promptly to the Grantor. The Administrative Agent need not apply or warrants as identified in subpoints pay over for application noncash proceeds of collection and enforcement unless: (i) the failure to do so would be commercially unreasonable and (ivii) of this paragraph are vacated the affected Grantor has provided the Administrative Agent with a written demand to apply or stayed or released or bonded within 60 days after their entry)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. Upon (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 continuing, subject to the 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 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 National Beef, to (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 applicable laws, regulations, orders, writs, injunctions, decrees or awards of any and 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 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 federal and state securities laws. Nothing herein shall be construed to be Pledgor’s consent to, or any obligation to undertake, a public offering of any pledged securities.
(c) For 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 one Default hereunder, with power to take any and all actions and to execute any and all documents and instruments that may, in the judgment of National Beef, be necessary or more of desirable to accomplish the events listed below, Holder or the holder purposes of this Note may forthwith or at any time thereafter during the continuance of any such eventAgreement, by notice in writing including but not limited to the Maker, declare the unpaid balance of the principal of this Note to be immediately due and payable, and the principal shall become and shall be immediately due and payable without presentation, demand, protest, notice of protest, or other notice of dishonor, all of which are hereby expressly waived by Maker, with full knowledge of the effect of such waiver. The events deemed as defaults shall include without limitation the following:
(a) Maker's failure to pay the principal and interest of this Note or any portion thereof when the same shall become due and payable (whether at maturity as herein expressed, by acceleration, or otherwise) unless cured within five (5) days after Holder or the holder of this Note delivers to Maker written notice of default;
(b) Maker's filing a voluntary petition in bankruptcy; or filing a voluntary petition seeking reorganization; or filing an answer admitting the jurisdiction of the court and any material allegations of an involuntary petition filed pursuant to any act of Congress relating to bankruptcy or to any act purporting to be amendatory thereof; or making an assignment for the benefit of its creditors; or applying for or consenting to the appointment of any receiver or trustee for Maker or all or any substantial portion of its property; or assigning an agent to liquidate any substantial part of Maker's assets;
(c) The entry of (i) any court order pursuant the power to any act pay off all obligations of Congress (or amendment thereof) relating to Maker's bankruptcy or reorganization; or Pledgor under the CoBank Loan Documents and terminate the CoBank Loan Documents, and (ii) do any court order approving an involuntary petition for and all things necessary to carry out the bankruptcy or reorganization of the Maker; or (iii) any court order appointing any receiver or trustee of or for Maker or for all or any substantial portion of the Maker's property; or (iv) any writ or warrant of attachment or any similar process issued by any court against all or any substantial portion of the Maker's property (unless such court orders, writs, or warrants as identified in subpoints (i) to (iv) purposes of this paragraph are vacated Agreement. Pledgor ratifies and approves all acts of such attorney. Neither National Beef nor any other person or stayed entity designated by it as attorney hereunder will be liable for any act or released omission nor for any error of judgment or bonded within 60 days after their entry)mistake of facts or law. This power, being coupled with an 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. Upon 9. The Assignor shall be in default under this General Security Agreement upon the occurrence or during the continuance of any one or more of the events listed below, Holder or the holder of this Note may forthwith or at any time thereafter during the continuance of any such event, by notice in writing to the Maker, declare the unpaid balance of the principal of this Note to be immediately due and payable, and the principal shall become and shall be immediately due and payable without presentation, demand, protest, notice of protest, or other notice of dishonor, all of which are hereby expressly waived by Maker, with full knowledge of the effect of such waiver. The events deemed as defaults shall include without limitation the followingfollowing events:
(a) Maker's failure to pay the principal and interest of this Note or any portion thereof nonpayment by the Assignor, when the same shall become due and payable (due, whether at maturity as herein expressed, by acceleration, acceleration or otherwise) unless cured within five (5) days after Holder or , of any of the holder of this Note delivers to Maker written notice of defaultIndebtedness;
(b) Maker's filing the death or a voluntary petition in bankruptcy; or filing declaration of incompetency by a voluntary petition seeking reorganization; or filing an answer admitting the court of competent jurisdiction of the court and any material allegations of an involuntary petition filed pursuant to any act of Congress relating to bankruptcy or to any act purporting to be amendatory thereof; or making an assignment for the benefit of its creditors; or applying for or consenting with respect to the appointment of any receiver or trustee for Maker or all or any substantial portion of its property; or assigning Assignor, if an agent to liquidate any substantial part of Maker's assetsindividual;
(c) The entry the failure of the Assignor to observe or perform any covenant, undertaking or agreement heretofore or hereafter given to the Lender, whether contained herein or not;
(d) 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 significant portion of the Collateral;
(i) any court an order pursuant to any act of Congress (is made or amendment thereof) relating to Maker's bankruptcy or reorganization; or (ii) any court order approving an involuntary petition legislation enacted for the bankruptcy expropriation, confiscation, forfeiture, escheating or reorganization other taking or compulsory divestiture, whether or not with compensation, of the Maker; or (iii) any court order appointing any receiver or trustee of or for Maker or for all or any substantial a significant portion of the Maker's propertyCollateral unless the same is being actively and diligently contested by the 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 (iv) performance of any writ or warrant provision relating to indebtedness of attachment 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 provisions contained herein or any similar process issued default by the Assignor in the observance or performance of any court against all covenant or condition required by the Lender to be observed or performed by the Assignor; provided that no act or omission by the Lender in the premises shall extend to or be taken in any substantial portion of manner whatsoever to affect any subsequent breach or default or the Maker's property (unless such court orders, writs, or warrants as identified in subpoints (i) to (iv) of this paragraph are vacated or stayed or released or bonded within 60 days after their entry)rights resulting therefrom.
Appears in 2 contracts
Sources: General Security Agreement, General Security Agreement
Default. 6.1 Subject to the immediately succeeding sentence, if an Event of Default shall have occurred and be continuing, the Purchasers shall have, in addition to any other rights and remedies contained in this Security 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 or during the continuance of any one or more an Event of the events listed below, Holder or the holder of this Note may forthwith or Default and at any time thereafter during if such or any other Event of Default shall then be continuing, the continuance 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 whole or in part, any amounts owing on the Collateral, to prosecute any action, suit or proceeding with respect to the Collateral, to sell, assign and deliver the Collateral (or any part thereof), at public or private sale, at broker's board, for cash, upon credit or otherwise, at the Purchasers' sole option and discretion and the Purchasers may bid or become purchasers at any such sale, if public, free from any right of redemption, which is hereby expressly waived. The net cash proceeds resulting from the exercise of any such event, of the foregoing rights or remedies shall be applied by notice in writing the Purchasers to the Maker, declare the unpaid balance payment of the principal of this Note to be immediately due and payableObligations in such order as the Purchasers may elect, and the principal Company shall become remain liable to the Purchasers for any deficiency, together with interest thereon at the rate provided in the Notes, and shall be immediately due the cost and payable expenses of collection of such deficiency, including (to the extent permitted by law), without presentationlimitation, demandattorneys' fees, protest, notice of protestexpenses 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 notice of dishonorpleading in any suit or proceeding relating to this Security Agreement or relating to any Collateral, all of which are hereby expressly waived by Makeror 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 full knowledge respect to the affairs of the effect Company in any way relating to any of such waiver. The events deemed as defaults shall include without limitation the following:
(a) Maker's failure Collateral or to pay the principal and interest 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 Note Security Agreement or any portion thereof when instrument or document now or hereafter delivered to the same shall become due and payable (whether at maturity as herein expressed, Purchasers by acceleration, or otherwise) unless cured within five (5) days after Holder or the holder of this Note delivers to Maker written notice of default;
(b) Maker's filing a voluntary petition in bankruptcy; or filing a voluntary petition seeking reorganization; or filing an answer admitting the jurisdiction of the court and any material allegations of an involuntary petition filed pursuant to any act of Congress relating to bankruptcy or to any act purporting to be amendatory thereof; or making an assignment for the benefit of its creditors; or applying for or consenting to the appointment Company, then in any of such events, all of the attorneys' fees arising from such services, and any receiver or trustee for Maker or all or any substantial portion of its property; or assigning an agent to liquidate any substantial expenses, costs and charges relating thereto, shall become a part of Maker's assets;
(c) The entry of (i) any court order pursuant to any act of Congress (or amendment thereof) relating to Maker's bankruptcy or reorganization; or (ii) any court order approving an involuntary petition for the bankruptcy or reorganization of Obligations secured by the Maker; or (iii) any court order appointing any receiver or trustee of or for Maker or for all or any substantial portion of the Maker's property; or (iv) any writ or warrant of attachment or any similar process issued by any court against all or any substantial portion of the Maker's property (unless such court orders, writs, or warrants as identified in subpoints (i) to (iv) of this paragraph are vacated or stayed or released or bonded within 60 days after their entry)Collateral payable on demand.
Appears in 2 contracts
Sources: Security Agreement (Affinity Technology Group Inc), Convertible Note Purchase Agreement (Affinity Technology Group Inc)
Default. Upon the The occurrence or during the continuance of any one or more of the events listed belowfollowing, Holder after the expiration of any applicable cure or the holder grace period without cure, shall constitute a breach and material default (an “Event of Default”) of this Note may forthwith or at any time thereafter during the continuance of any such event, License Agreement by notice in writing to the Maker, declare the unpaid balance of the principal of this Note to be immediately due and payable, and the principal shall become and shall be immediately due and payable without presentation, demand, protest, notice of protest, or other notice of dishonor, all of which are hereby expressly waived by Maker, with full knowledge of the effect of such waiver. The events deemed as defaults shall include without limitation the followingLicensee:
(ai) Maker's The failure of Licensee to pay or cause to be paid when due the principal and interest of this Note Fee or any portion thereof when the same shall become due and payable or any other charges required by this License Agreement to be paid by Licensee within ten (whether at maturity as herein expressed, by acceleration, or otherwise) unless cured within five (510) days after Holder or the holder of this Note delivers to Maker written notice of defaultsuch payment is due;
(bii) Maker's filing a voluntary petition in bankruptcy; or filing a voluntary petition seeking reorganization; or filing an answer admitting the jurisdiction The abandonment of the court 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 allegations act, other than payment of an involuntary petition filed pursuant to 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 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 Congress relating any event of insolvency or bankruptcy with respect to bankruptcy Licensee, including any of the following by way of illustration:
(A) Any general assignment or to any act purporting to be amendatory thereof; or making an assignment general arrangement for the benefit of its creditors; or applying for or consenting to the appointment of any receiver or trustee for Maker or all or any substantial portion of its property; or assigning an agent to liquidate any substantial part of Maker's assets;
(cB) The entry filing of any petition by or against Licensee to have Licensee adjudged a bankrupt or a petition for reorganization or arrangement under any law relating to bankruptcy, unless such petition is filed against Licensee and the same is dismissed within sixty (i60) any court order days;
(C) The appointment of a trustee or receiver 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 any act of Congress (or amendment thereof) relating to Maker's bankruptcy or reorganization; or (ii) any court order approving an involuntary petition for the bankruptcy or reorganization of the Maker; or (iii) any court order appointing any receiver or trustee of or for Maker or for all or any substantial portion of the Maker's property; or (iv) any writ or warrant of attachment or any similar process issued by any court against all or any substantial portion of the Maker's property (unless such court orders, writs, or warrants as identified in subpoints (i) to (iv) of this paragraph are vacated or stayed or released or bonded within 60 days after their entry)16 hereof.
Appears in 2 contracts
Sources: Communications Site License Agreement, Communications Site License Agreement (Skybridge Wireless Inc)
Default. Upon At the occurrence or during option of the continuance Lender, the security hereby granted shall become enforceable upon the happening of any one or more of the events listed below, Holder or the holder of this Note may forthwith or at any time thereafter during the continuance of any such event, by notice in writing to the Maker, declare the unpaid balance of the principal of this Note to be immediately due and payable, and the principal shall become and shall be immediately due and payable without presentation, demand, protest, notice of protest, or other notice of dishonor, all of which are hereby expressly waived by Maker, with full knowledge of the effect of such waiver. The events deemed as defaults shall include without limitation the followingfollowing events:
(a) Maker's failure If the Debtor or the Guarantor fail to pay or perform when due any of the principal and interest of this Note or any portion thereof when the same shall become due and payable (whether at maturity as herein expressed, by acceleration, or otherwise) unless cured within five (5) days after Holder or the holder of this Note delivers to Maker written notice of defaultObligations;
(b) Maker's filing a voluntary petition in bankruptcy; If the Debtor or filing a voluntary petition seeking reorganization; the Guarantor fail to perform any provisions of this Agreement or filing an answer admitting the jurisdiction of the court and any material allegations of an involuntary petition filed pursuant to any act of Congress relating to bankruptcy or to any act purporting to be amendatory thereof; or making an assignment for the benefit of its creditors; or applying for or consenting to the appointment of any receiver other agreement to which the Debtor or trustee for Maker or all or any substantial portion of its property; or assigning an agent to liquidate any substantial part of Maker's assetsthe 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 entry 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 Court of competent jurisdiction for the appointment of such a receiver. Where the Lender is hereafter in this paragraph referred to the terms shall, where the context permits, include any Receiver so appointed and the officers, employees, servants or agents of such Receiver.
(b) 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 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 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 it as aforesaid.
(i) any court order pursuant to any act of Congress (or amendment thereof) relating to Maker's bankruptcy or reorganization; or (ii) any court order approving an involuntary petition for To facilitate the bankruptcy or reorganization realization of the Maker; Collateral the Lender may carry on or (iii) any court order appointing any receiver or trustee concur in the carrying on of or for Maker or for all or any substantial portion part of the Maker's property; business of the Debtor or (iv) any writ the Guarantor and may to the exclusion of all others, including the Debtor or warrant of attachment or any similar process issued by any court against the Guarantor, enter upon, occupy and use all or any substantial portion of the Maker's property 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.
(unless j) The Lender may, if it deems it necessary for the proper realization of all or any part of the Collateral, pay any encumbrance, lien, claim or charge that may exist or be threatened against the same and in every such court orderscase the amounts so paid together with costs, writscharges and expenses incurred in connection therewith shall be added to the obligations of the Debtor to the Lender as hereby secured, and shall bear interest at the rate currently charged to the Debtor under its obligations to the Lender at the date of payment thereof by the Lender.
(k) If after all the expenses of the 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, shall be paid to any person other than the Debtor or warrants as identified the Guarantor whom the Lender knows to be the owner of the Collateral, and in subpoints (i) the absence of such knowledge, such balance shall be paid to (iv) of this paragraph are vacated or stayed or released or bonded within 60 days after their entry)the Debtor.
Appears in 2 contracts
Sources: Joint Venture Agreement (Gilder Enterprises Inc), Shareholder Agreement (Gilder Enterprises Inc)
Default. Upon 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 warranty) 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 or during the continuance 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 events listed belowfollowing: (i) suspend performance under the Order or any other agreement between Buyer and Seller; and/or (ii) terminate the Order, Holder or any part of it, or any other agreement between Buyer and Seller, whereby any and all obligations of Seller including payments or deliveries due, will, at the holder option of this Note may forthwith or at any time thereafter during the continuance of any such eventBuyer, by notice in writing to the Maker, declare the unpaid balance of the principal of this Note to be immediately due and payable, and the principal shall become and shall be immediately due and payable without presentationor deliverable, demandas applicable; and/or (iii) take possession, protestby whatever reasonable means and at whatever location and time, notice of protestall materials, tools and equipment used in performance of the Order and (x) in the case of Services, finish the work or other notice (y) in the case of dishonorGoods, acquire equivalent goods by whatever method it may deem expedient, and in such cases, Seller will not be entitled to payment, 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 any other rights or remedies to which Buyer may be entitled at law or in equity. In addition, ▇▇▇▇▇ will be entitled to recover from Seller all court costs, attorneys' fees and expenses incurred by Buyer in connection with Seller’s default. “Bankruptcy Event” means the occurrence of which are hereby expressly waived by Maker, with full knowledge any of the effect following events with respect to Seller or its affiliates: (A) filing of such waiver. The events deemed as defaults shall include without limitation a petition or otherwise commencing, authorizing or acquiescing in the following:
commencement of a proceeding or cause of action under any bankruptcy, insolvency, reorganization or similar law; (aB) Maker's failure to pay the principal and interest making of this Note an assignment or any portion thereof when the same shall become due and payable (whether at maturity as herein expressed, by acceleration, or otherwise) unless cured within five (5) days after Holder or the holder of this Note delivers to Maker written notice of default;
(b) Maker's filing a voluntary petition in bankruptcy; or filing a voluntary petition seeking reorganization; or filing an answer admitting the jurisdiction of the court and any material allegations of an involuntary petition filed pursuant to any act of Congress relating to bankruptcy or to any act purporting to be amendatory thereof; or making an assignment general arrangement for the benefit of its creditors; (C) having a bankruptcy petition filed against it and such petition is not withdrawn or applying for dismissed within thirty (30) days after such filing; (D) otherwise becoming bankrupt or consenting insolvent (however evidenced); (E) having a liquidator, administrator, custodian, receiver, trustee, conservator or similar official appointed with respect to the appointment of any receiver or trustee for Maker or all it or any substantial portion of its property; property or assigning an agent to liquidate any substantial part of Maker's assets;
(c) The entry of (i) any court order pursuant to any act of Congress (or amendment thereof) relating to Maker's bankruptcy or reorganization; or (iiF) any court order approving an involuntary petition for the bankruptcy or reorganization of the Maker; or (iii) any court order appointing any receiver or trustee of or for Maker or for all or any substantial portion of the Maker's property; or (iv) any writ or warrant of attachment or any similar process issued by any court against all or any substantial portion of the Maker's property (unless such court orders, writs, or warrants being generally unable to pay its debts as identified in subpoints (i) to (iv) of this paragraph are vacated or stayed or released or bonded within 60 days after their entry)they fall due.
Appears in 2 contracts
Sources: General Terms and Conditions of Purchase, General Terms and Conditions of Purchase
Default. (a) The Bankruptcy of a Consenting Stockholder or its Parent (or any Subsidiary of such Parent through which such Parent beneficially owns its interest in 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 (the "Defaulting Holder") under this Agreement.
(b) Upon the occurrence or of any Event of Default with respect to any Defaulting Holder, the other Consenting Stockholder Group, provided it includes no Defaulting Holders (the "Nondefaulting Holder"), shall have the right exercisable by written notice given to the Defaulting Holder at any time after and during the continuance of any one or more such Event of Default, to cause the purchase of the events listed belowentire 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 all such remedies shall be cumulative and no such remedy shall be to the exclusion of any other remedy.
(c) In the event written notice (a "Buy-Out Notice") of election 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), then the Purchased Interest will be purchased by the Nondefaulting Holder (the "Buyer").
(d) 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 holder 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 Note 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 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 Buyer, which closing date shall be as promptly as practicable, and in any event within sixty days following the determination of the 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 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 forthwith be necessary to effectuate the sale. Unless otherwise agreed by the 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 the order of 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 thereafter during the continuance of any such eventEvent of Default to cause the Company to be dissolved and its assets liquidated. If such election is made by the Nondefaulting Holder, by notice the Defaulting Holder shall vote its shares of Company Common Stock in writing favor of dissolution of the Company. Such remedy shall, with respect to an Event of Default referred to in Section 7.09(a)(i), be in addition to all other rights or remedies available to the MakerNondefaulting Holder, declare to any other party hereunder or to the unpaid balance of the principal of Company under this Note to be immediately due and payableAgreement or under any other Operative Document or otherwise, and the principal shall become and all such remedies shall be immediately due cumulative and payable without presentation, demand, protest, notice of protest, or other notice of dishonor, all of which are hereby expressly waived by Maker, with full knowledge of the effect of no such waiver. The events deemed as defaults remedy shall include without limitation the following:
(a) Maker's failure to pay the principal and interest of this Note or any portion thereof when the same shall become due and payable (whether at maturity as herein expressed, by acceleration, or otherwise) unless cured within five (5) days after Holder or the holder of this Note delivers to Maker written notice of default;
(b) Maker's filing a voluntary petition in bankruptcy; or filing a voluntary petition seeking reorganization; or filing an answer admitting the jurisdiction of the court and any material allegations of an involuntary petition filed pursuant to any act of Congress relating to bankruptcy or to any act purporting to be amendatory thereof; or making an assignment for the benefit of its creditors; or applying for or consenting to the appointment exclusion of any receiver or trustee for Maker or all or any substantial portion of its property; or assigning an agent to liquidate any substantial part of Maker's assets;
(c) The entry of (i) any court order pursuant to any act of Congress (or amendment thereof) relating to Maker's bankruptcy or reorganization; or (ii) any court order approving an involuntary petition for the bankruptcy or reorganization of the Maker; or (iii) any court order appointing any receiver or trustee of or for Maker or for all or any substantial portion of the Maker's property; or (iv) any writ or warrant of attachment or any similar process issued by any court against all or any substantial portion of the Maker's property (unless such court orders, writs, or warrants as identified in subpoints (i) to (iv) of this paragraph are vacated or stayed or released or bonded within 60 days after their entry)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. Upon the (a) The occurrence or during the continuance of any one or more of the events listed 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 default 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 Paying Agent may exercise from time to time any rights and remedies available to it under the Uniform Commercial Code as in effect from time to time in Illinois or otherwise available to it. If any notification of intended disposition 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, Holder or the holder of this Note may forthwith or at any time thereafter during other address of the continuance Pledgor appearing on the records of the Paying Agent. Any proceeds of any such event, disposition of Collateral may be applied by notice in writing the Paying Agent to the Makerpayment of expenses in connection with the Collateral, declare the unpaid including Attorney Costs and legal expenses, and any balance of such proceeds may be applied by the principal Paying Agent toward the payment of this Note to be immediately due and payablesuch of the Liabilities, and in such order of application, as the principal shall become Paying Agent may from time to time elect. All rights and shall be immediately due and payable without presentation, demand, protest, notice of protest, or other notice of dishonor, all of which are hereby expressly waived by Maker, with full knowledge remedies of the effect Paying Agent expressed herein are in addition to all other rights and remedies possessed by it, including those under any other agreement or instrument relating to any of such waiver. The events deemed as defaults shall include without limitation the following:
(a) Maker's failure to pay the principal and interest of this Note Liabilities or any portion security therefor. No delay on the part of the Paying Agent in the exercise of 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 when the same shall become due and payable (whether at maturity as herein expressed, by acceleration, or otherwise) unless cured within five (5) days after Holder or the holder exercise of this Note delivers any other right or remedy. No action of the Paying Agent permitted hereunder shall impair or affect the rights of the Paying Agent in and to Maker written notice of default;the Collateral.
(b) Maker's filing a voluntary petition The Pledgor agrees that in bankruptcy; or filing a voluntary petition seeking reorganization; or filing an answer admitting the jurisdiction any sale of any of the court Collateral whenever a Default hereunder shall have occurred and be continuing, the Paying Agent is hereby authorized to comply with any material allegations limitation or restriction in connection with such sale as it may be advised by counsel is necessary in order to avoid any violation of an involuntary petition filed pursuant 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 restrict such prospective bidders and purchasers to any act of Congress relating to bankruptcy or to any act purporting to be amendatory thereof; or making an assignment persons who will represent and agree that they are purchasing for the benefit of its creditors; or applying their own account for or consenting investment and not with a view to the appointment distribution or resale of such Collateral), or in order to obtain any receiver or trustee for Maker or all or any substantial portion of its property; or assigning an agent to liquidate any substantial part of Maker's assets;
(c) The entry of (i) any court order pursuant to any act of Congress (or amendment thereof) relating to Maker's bankruptcy or reorganization; or (ii) any court order approving an involuntary petition for the bankruptcy or reorganization required approval of the Maker; sale or (iii) any court order appointing any receiver or trustee of or for Maker or for all or any substantial portion of the Maker's property; or (iv) any writ or warrant of attachment or any similar process issued purchaser by any court against all 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 be liable or accountable to the Pledgor for any substantial portion discount allowed by the reason of the Maker's property (unless fact that such court orders, writs, Collateral is sold in compliance with any such limitation or warrants as identified in subpoints (i) to (iv) of this paragraph are vacated or stayed or released or bonded within 60 days after their entry)restriction.
Appears in 2 contracts
Sources: Pledge Agreement (Quality Food Centers Inc), Pledge Agreement (Quality Food Centers Inc)
Default. Upon 8.1. All works and other matters to be constructed, provided and maintained by the occurrence Owner pursuant to this Agreement, shall be continuously 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 Owner has defaulted in the construction, provision or during the continuance maintenance of any one or more of the events listed below, Holder works or the holder of this Note may forthwith or at any time thereafter during the continuance of any other matter required under this Agreement, the Owner must rectify such event, by notice in writing default to the Maker, declare the unpaid balance satisfaction of the principal of this Note Municipality after notification thereof. Any matter deemed by the Municipality to be immediately due and payable, and the principal shall become and an emergency shall be immediately due rectified forthwith. Any other matters shall be rectified within thirty (30) days of receipt of notice unless a greater time period is provided by the Municipality.
8.2. If in the reasonable opinion of the Municipality, the Owner has not rectified all such matters and payable without presentationthings as are in default after the stipulated time period for rectification, demandthe Municipality may at the expense of the Owner, protestthrough it's agents, notice employees and/or servants enter upon the lands and do all such matters and things required to rectify the default. Actual cost incurred by the Municipality in carrying out such remedial work plus fifteen (15%) per cent of protestsuch 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 collected by the Municipality in like manner as municipal taxes, or other notice of dishonor, all of which are hereby expressly waived by Maker, with full knowledge pursuant to provisions of the effect Planning Act, R.S.O. 1990, Chapter P.13 the Municipal Act, R.S.O., 1990 Chapter M.45 or 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 such waiverinspecting or completing works or facilities, maintaining same or otherwise, the Municipality, it's agents, servants or employees shall not be considered to be trespassers, nor liable in any way for acts or omissions unless occasioned by gross negligence. The events deemed as defaults It shall include without limitation be the following:
(a) MakerMunicipality's sole discretion, acting reasonably, to determine when it should intervene with respect to the lands and it is hereby understood and agreed that any failure to pay intervene or delay in so doing shall not be grounds to condone or excuse the principal and interest of this Note or Owner from any portion thereof when default, the same shall become due and payable (whether at maturity as herein expressed, by acceleration, or otherwise) unless cured within five (5) days after Holder or the holder of this Note delivers to Maker written notice of default;
(b) MakerMunicipality's filing a voluntary petition in bankruptcy; or filing a voluntary petition seeking reorganization; or filing an answer admitting the jurisdiction of the court and any material allegations of an involuntary petition filed pursuant to any act of Congress relating to bankruptcy or to any act purporting to be amendatory thereof; or making an assignment for the benefit of its creditors; or applying for or consenting to the appointment of any receiver or trustee for Maker or all or any substantial portion of its property; or assigning an agent to liquidate any substantial part of Maker's assets;
(c) The entry of (i) any court order pursuant to any act of Congress (or amendment thereof) relating to Maker's bankruptcy or reorganization; or (ii) any court order approving an involuntary petition for the bankruptcy or reorganization of the Maker; or (iii) any court order appointing any receiver or trustee of or for Maker or for all or any substantial portion of the Maker's property; or (iv) any writ or warrant of attachment or any similar process issued by any court against all or any substantial portion of the Maker's property (unless such court orders, writs, or warrants as identified in subpoints (i) to (iv) of this paragraph are vacated or stayed or released or bonded within 60 days after their entry)remedies being cumulative.
Appears in 2 contracts
Sources: Site Plan Control Agreement, Site Plan Control Agreement
Default. Upon This Deed of Trust shall be in default upon the occurrence or during the continuance happening of any one or more of the following "events listed belowof default":
A. Any Secured Obligation is not paid or performed as and when due or is otherwise in default.
B. Grantor fails to keep, Holder perform or observe any covenant, agreement, term or condition that Grantor is required to keep, perform, or observe under this Deed of Trust, or Grantor fails to perform any of Grantor's obligations or duties under the holder terms of this Note may forthwith Deed of Trust.
C. An event or at condition occurs that would allow Beneficiary to accelerate any time thereafter during Secured Obligation or would constitute a default or an event of default under the continuance of any such event, by notice in writing to the Maker, declare the unpaid balance of the principal of this Note to be immediately due and payable, and the principal shall become and shall be immediately due and payable without presentation, demand, protest, notice of protest, or other notice of dishonor, all of which are hereby expressly waived by Maker, with full knowledge of the effect of such waiver. The events deemed as defaults shall include without limitation the following:
(a) Maker's failure to pay the principal and interest of this Note or any portion thereof when the same shall become due and payable (whether at maturity as herein expressed, by acceleration, or otherwise) unless cured within five (5) days after Holder or the holder of this Note delivers to Maker written notice of default;
(b) Maker's filing a voluntary petition in bankruptcy; or filing a voluntary petition seeking reorganization; or filing an answer admitting the jurisdiction of the court and any material allegations of an involuntary petition filed pursuant to any act of Congress relating to bankruptcy or to any act purporting to be amendatory thereof; or making an assignment for the benefit of its creditors; or applying for or consenting to the appointment of any receiver or trustee for Maker or all or any substantial portion of its property; or assigning an agent to liquidate any substantial part of Maker's assets;
(c) The entry terms of (i) any court order pursuant to any act of Congress (or amendment thereof) relating to Maker's bankruptcy or reorganization; or Secured Obligation, (ii) any court order approving an involuntary petition for the bankruptcy loan agreement, security instrument, or reorganization of the Maker; other document evidencing, guaranteeing or securing any Secured Obligation, or (iii) any court order appointing prior or subordinate deed of trust affecting the premises.
D. Unless known and approved by Beneficiary at the time this Deed of Trust is recorded, the existence of any receiver lien, charge or trustee encumbrance that impairs the validity of this Deed of Trust or for Maker has priority over the lien of this Deed of Trust.
E. Any proceeding is instituted to enforce any lien, charge or for all encumbrance against any of the 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 substantial portion part thereof or otherwise materially impair the lien or the priority of the Maker's property; lien of this Deed of Trust.
G. Grantor abandons the premises, is declared bankrupt or (iv) any writ insolvent, or warrant dissolves, liquidates or ceases to exist as a legal entity.
I. A change in the ownership of attachment 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 similar process issued by any court against all 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 extended for a reasonable time not to exceed an additional 30 days (for a total of 60 days) in order to provide Grantor the opportunity to cure the default. However, Grantor shall not be entitled to notice of default or any substantial portion the opportunity to cure a default if Beneficiary has previously given notice of a default within the Maker's property (unless such court orders, writs, preceding 12 months or warrants as identified in subpoints if the default occurs because of (i) failure to pay or perform any Secured Obligation as and when due, (ivii) failure to keep any insurance on the 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 is not entitled to notice of default and the opportunity to cure, or if 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 paragraph are vacated Deed of Trust (including foreclosure) without further notice or stayed or released or bonded within 60 days after their entry)demand.
Appears in 2 contracts
Sources: Deed of Trust, Deed of Trust
Default. Upon the (a) The occurrence or during the continuance of any one or more of the events listed below, Holder following in clauses (a)-(e) below will constitute an Event of Default under this Lease:
(b) Customer fails to pay when due any rental payment or the holder any other payment due under this Lease or fails to perform its obligations under Section 9 of this Note may forthwith Lease:
(c) Customer fails to perform or at observe any time thereafter during the continuance 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 Customer’s equity (a “Control Person”) or any guarantor of any such eventof Customer’s obligations hereunder (a”Guarantor”) (i) becomes insolvent, by notice (ii) becomes subject to any voluntary or involuntary bankruptcy or reorganization proceedings, (iii) commits an act or bankruptcy, (iv) admits in writing its inability to pay its debts as they become due or (vii) 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 Makerperformance 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 unpaid entire balance of rent for the principal remainder of this Note to be immediately due and payable, and the principal shall become and shall be stated lease term immediately due and payable without presentation, demand, protest, notice of protest, or other notice of dishonor, all of which are hereby expressly waived by Maker, with full knowledge of the effect of such waiver. The events deemed as defaults shall include without limitation the following:
(a) Maker's failure and to pay the principal accelerate and interest of this Note or any portion thereof when the same shall become make immediately due and payable (whether at maturity as herein expressed, by acceleration, any other amounts owing under this Lease. DSMBI will also have the option to retake and retain any or otherwise) unless cured within five (5) days after Holder or the holder of this Note delivers to Maker written notice of default;
(b) Maker's filing a voluntary petition in bankruptcy; or filing a voluntary petition seeking reorganization; or filing an answer admitting the jurisdiction all of the court 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 material allegations of an involuntary petition filed pursuant to any act of Congress relating to bankruptcy or to any act purporting to be amendatory thereof; or making an assignment for the benefit of its creditors; or applying for or consenting to the appointment of any receiver or trustee for Maker or premises where all or any substantial portion of its property; or assigning the Equipment is located in order to take possession of and remove such Equipment. (Notwithstanding the foregoing, if an agent to liquidate any substantial part Event of Maker's assets;
Default occurs under clause (c) The entry of (iabove, such accelerations will occur automatically without the need for declaration.) any court order Customer will pay to DSMBI’s on 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 any act of Congress (this Section 11 or amendment thereof) relating Section 13 will release Customer from Customer’s covenants, obligations and indemnities provided under this Lease, including but not limited to Maker's bankruptcy or reorganization; or (ii) any court order approving an involuntary petition Customer’s obligation for the bankruptcy or reorganization payment of rentals provided in the Lease. If DSMBI retakes possession of the Maker; or (iii) any court order appointing any receiver or trustee of or for Maker or for all Equipment or any substantial portion part of the Maker's Equipment and there is at the time of such retaking, in upon or attached to such repossessed Equipment, any other property; , goods or (iv) any writ things of value owned by Customer or warrant in the custody or control of attachment Customer, DSMBI is authorized to take possession of such other property, goods or any similar process issued by any court against all things and hold the same for Customer, at Customer’s sole cost, either in DSMBI’s possession or any substantial portion of the Maker's property (unless such court ordersin public storage, writs, or warrants as identified in subpoints (i) to (iv) of this paragraph are vacated or stayed or released or bonded within 60 days after their entry)at DSMBI’s sole discretion.
Appears in 2 contracts
Sources: Lease Agreement, Lease Agreement
Default. Upon Following the occurrence or during the continuance of any one or more an Event of Default and acceleration of the events listed belowLoans, Holder all payments shall be remitted to Agent and all such payments and all proceeds of Loan Collateral received by Agent, shall be applied as follows:
(A) first, to pay any Agent Advances or Interim Advances, interest, fees, expenses or indemnities due to Agent under the holder 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. Agent will distribute to each Lender at its address set forth on the applicable signature page of this Note may forthwith Agreement, or at any time thereafter during other address as a Lender may request in writing, the continuance amount of any funds as such event, by notice Lender may be entitled to receive in writing to accordance with the Maker, declare the unpaid balance of the principal terms of this Note to be immediately due and payable, Agreement and the principal shall become and shall be immediately due and payable without presentation, demand, protest, notice of protest, or other notice of dishonor, all of which are hereby expressly waived by Maker, with full knowledge of the effect of such waiver. The events deemed as defaults shall include without limitation the following:
(a) Maker's failure to pay the principal and interest of this Note or any portion thereof when the same shall become due and payable (whether at maturity as herein expressed, by acceleration, or otherwise) unless cured within five (5) days after Holder or the holder of this Note delivers to Maker written notice of default;
(b) Maker's filing a voluntary petition settlement procedures set forth in bankruptcy; or filing a voluntary petition seeking reorganization; or filing an answer admitting the jurisdiction of the court and any material allegations of an involuntary petition filed pursuant to any act of Congress relating to bankruptcy or to any act purporting to be amendatory thereof; or making an assignment for the benefit of its creditors; or applying for or consenting to the appointment of any receiver or trustee for Maker or all or any substantial portion of its property; or assigning an agent to liquidate any substantial part of Maker's assets;
(c) The entry of (i) any court order pursuant to any act of Congress (or amendment thereof) relating to Maker's bankruptcy or reorganization; or (ii) any court order approving an involuntary petition for the bankruptcy or reorganization of the Maker; or (iii) any court order appointing any receiver or trustee of or for Maker or for all or any substantial portion of the Maker's property; or (iv) any writ or warrant of attachment or any similar process issued by any court against all or any substantial portion of the Maker's property (unless such court orders, writs, or warrants as identified in subpoints (i) to (iv) of this paragraph are vacated or stayed or released or bonded within 60 days after their entry)Section 2.4.
Appears in 2 contracts
Sources: Credit Agreement (Industrial Services of America Inc /Fl), Credit Agreement (Industrial Services of America Inc /Fl)
Default. Upon (a) Unless an Event of Default shall have occurred and be continuing, the occurrence Collateral Agent shall not be obligated to take any action under this Agreement or during the continuance of any one or more of the events listed 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 in respect of the Collateral FMBs of such Borrower, in addition to other rights and remedies provided for herein or otherwise available to it, all the rights and remedies available to the Collateral Agent under the applicable Security Documents and under the other Loan Documents or otherwise available to the Collateral Agent.
(c) Subject to paragraph (e) below, Holder or the holder rights and remedies of this Note may forthwith or at any time thereafter during the continuance Collateral Agent with respect to CL&P and WMECO shall include (without limitation of any such event, by notice in writing the other rights and remedies available to the MakerCollateral Agent under the Loan Documents or otherwise available to it), declare (i) the unpaid balance right to cause all or a portion of the principal Collateral FMBs (including without limitation all accrued interest thereon) of this Note such Borrower to be become immediately due and payable, and (ii) the principal shall become and shall be immediately due and right to collect all amounts payable without presentation, demand, protest, notice of protest, or other notice of dishonor, all of which are hereby expressly waived by Maker, with full knowledge of such Borrower under the effect of such waiver. The events deemed as defaults shall include without limitation the following:
(a) Maker's failure to pay the principal and interest of this Note or any portion thereof when the same shall become due and payable (whether at maturity as herein expressed, by acceleration, or otherwise) unless cured within five (5) days after Holder or the holder of this Note delivers to Maker written notice of default;
(b) Maker's filing a voluntary petition in bankruptcy; or filing a voluntary petition seeking reorganization; or filing an answer admitting the jurisdiction of the court and any material allegations of an involuntary petition filed pursuant to any act of Congress relating to bankruptcy or to any act purporting to be amendatory thereof; or making an assignment Collateral FMBs for the benefit of its creditors; or applying for or consenting to the appointment of any receiver or trustee for Maker or all or any substantial portion of its property; or assigning an agent to liquidate any substantial part of Maker's assets;
(c) The entry of (i) any court order pursuant to any act of Congress (or amendment thereof) relating to Maker's bankruptcy or reorganization; or (ii) any court order approving an involuntary petition for the bankruptcy or reorganization of the Maker; or Lenders, and (iii) the right to exercise all rights and remedies of a "holder" of a Collateral FMB under the applicable First Mortgage Indenture of such Borrower.
(d) Notwithstanding any court order appointing written instructions received by the Collateral Agent pursuant to paragraph (b) above, and except as expressly provided in the Credit Agreement, the Collateral Agent shall not release any receiver Collateral or trustee of portion thereof or for Maker or for all or any substantial portion lien thereon without the consent of the Maker's propertyLenders.
(e) It is understood that the actual indebtedness of any Borrower evidenced by the Collateral FMBs of such Borrower shall be limited to, and in no event exceed, the Secured Obligations of such Borrower from time to time outstanding; or (iv) that at no time shall any writ or warrant claim be made on the Collateral FMBs of attachment or any similar process issued by any court against all or any substantial portion such Borrower in excess of the Maker's property (unless aggregate unpaid Secured Obligations of such court ordersBorrower outstanding at such time and that, writsto the 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 nor any Lender shall have any right under, or warrants as identified in subpoints (i) right to (iv) exercise any right granted to the holders of this paragraph are vacated or stayed or released or bonded within 60 days after their entry)such excess Collateral FMBs of such Borrower under, the applicable First Mortgage Indenture.
Appears in 2 contracts
Sources: Credit Agreement (Northeast Utilities System), Collateral Agency Agreement (Northeast Utilities System)
Default. Upon Time is of the occurrence or during the continuance 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 events listed below, Holder or the holder of this Note may forthwith or at any time thereafter during the continuance of any such event, by notice in writing to the Maker, declare the unpaid balance of the principal of this Note to be immediately due and payable, and the principal shall become and shall be immediately due and payable without presentation, demand, protest, notice of protest, or other notice of dishonor, all of which are hereby expressly waived by Maker, with full knowledge of the effect of such waiver. The events deemed as defaults shall include without limitation the following:
following occurs: (a) Maker's failure Lessee fails to pay make any payment required hereunder when due; (b) Lessee fails to maintain in force at all times the principal and interest 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 Note or any portion thereof when the same shall become due and payable (whether at maturity as herein expressedLease, by acceleration, or otherwise) unless which failure is not cured to Lessor’s satisfaction within five (5) days after Holder Lessor’s notice to Lessee thereof; (e) Lessee attempts to sell, transfer or encumber the holder of this Note delivers to Maker written notice of default;
Equipment; (bf) Maker's filing a voluntary petition 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; or filing a voluntary petition seeking , insolvency, reorganization; or filing an answer admitting the jurisdiction of the court and any material allegations of an involuntary petition filed pursuant to any act of Congress relating to bankruptcy or to any act purporting to be amendatory thereof; or making an , assignment for the benefit of its creditors; , or applying for or consenting to the appointment of any receiver or trustee for Maker or all or any substantial portion of its property; or assigning an agent to liquidate any substantial part of Maker's assets;
(c) The entry of (i) any court order pursuant to any act of Congress (or amendment thereof) relating to Maker's bankruptcy or reorganization; other similar law, or (ii) any court order approving an involuntary petition for the bankruptcy appointment of a receiver, liquidator, assignee, custodian, trustee, sequestrator or reorganization similar official of the Maker; 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 court order appointing time after such declaration, Lessor may enter, with or without legal process, any receiver 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 cumulative and are in addition to all other remedies existing at law or trustee in equity, including but not limited to, (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, take possession of and 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 (f) within Lessor’s sole discretion, but without any obligation, to take such action or make any payment to remedy any default, including but not limited to, procuring any required insurance coverage, paying any fine, imposition, penalty, taxes or fees incurred to recover and/or release the Equipment from any forfeiture, seizure, confiscation or similar proceeding, or from any lien or other encumbrance imposed on the Equipment, all such payments of which shall be reimbursed by Lessee. In addition to the payment of any amounts due Lessor hereunder, Lessee shall be responsible for Maker or and shall reimburse Lessor for all or costs and expenses incurred by Lessor in connection with the exercise of any substantial portion rights and remedies hereunder, including all expenses incurred in the removal and transportation of the Maker's property; or (iv) Equipment to Lessor’s premises, any writ or warrant of attachment or any similar process issued by any court against all or any substantial portion cleaning, service and/or repair of the Maker's property (unless such court ordersEquipment, writs, or warrants as identified and in subpoints (i) to (iv) the enforcement of the terms and conditions of this paragraph are vacated Agreement or stayed damages recoverable hereunder, including costs of collection and reasonable attorney’s fees (including fees and expenses incurred in any bankruptcy proceeding or released or bonded within 60 days after their entry)on appeal) .
Appears in 2 contracts
Sources: Equipment Lease Bare Rental Agreement, Equipment Lease Bare Rental Agreement
Default. Upon the The occurrence or during the continuance of any one or more of the following events listed belowshall be deemed to be an “event of default” of this Subcontract/Purchase Order Agreement: a) Refusal, Holder 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 holder 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 Note may forthwith or Subcontract/Purchase Order Agreement. Upon the happening of any “event of default”, and at any time thereafter, the 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 be necessary or convenient to complete the work and deduct the cost thereof from any monies due, or thereafter during to become due, under the continuance Subcontract/Purchase Order Agreement. Alternatively, or in addition, upon the occurrence of any such 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 notice in writing 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 MakerSubcontractor/Material Supplier.) At that time, declare if the unpaid balance of the principal of this Note amount to be immediately due paid under this Subcontract/Purchase Order Agreement exceeds the costs (including, but not limited to, any incidental or consequential damages and payablereasonable 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 principal Subcontractor/Material Supplier. If the aforementioned costs exceed the unpaid balance due the Subcontractor/Material Supplier, then the Subcontractor/Material Supplier shall become 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 immediately due chargeable to, and payable without presentation, demand, protest, notice paid by the Subcontractor/Material Supplier. Any and all rights and remedies of protestthe Contractor under this Subcontract/Purchase Order Agreement shall be cumulative. The enumeration of specific rights and remedies of the Contractor shall not affect or impair any of the Contractor’s right or remedies at law or in equity, or other notice of dishonor, all of which are hereby expressly waived by Maker, with full knowledge under the Prime Contract. In the event any acts or omissions of the effect Subcontractor/Material Supplier delay the Contractor in the performance of such waiver. The events deemed as defaults shall include without limitation the following:
Prime Contract and result in the Contractor’s being subjected to any damages (a) Maker's failure including, but not limited to pay the principal and interest of this Note or any portion thereof when the same shall become due and payable (whether at maturity as herein expressed, by acceleration, delay or otherwise) unless cured within five (5) days after Holder recovery costs), claims, penalties, liabilities, or liquidated damages thereunder, the holder of this Note delivers to Maker written notice of default;
(b) Maker's filing a voluntary petition in bankruptcy; or filing a voluntary petition seeking reorganization; or filing an answer admitting the jurisdiction Subcontractor/Material Supplier shall, upon demand of the court Contractor, promptly pay to and any material allegations of an involuntary petition filed pursuant to any act of Congress relating to bankruptcy or to any act purporting to be amendatory thereof; or making an assignment reimburse the Contractor for the benefit of its creditors; or applying for or consenting to the appointment full amount of any receiver penalties, liabilities or trustee for Maker or all or any substantial portion of its property; or assigning an agent liquidated damages, including costs and attorney’s fees incurred by Contractor in responding to liquidate any substantial part of Maker's assets;
(c) The entry of (i) any court order pursuant to any act of Congress (or amendment thereof) relating to Maker's bankruptcy or reorganization; or (ii) any court order approving an involuntary petition for the bankruptcy or reorganization of the Maker; or (iii) any court order appointing any receiver or trustee of or for Maker or for all or any substantial portion of the Maker's property; or (iv) any writ or warrant of attachment or any similar process issued by any court against all or any substantial portion of the Maker's property (unless such court orders, writs, or warrants as identified in subpoints (i) to (iv) of this paragraph are vacated or stayed or released or bonded within 60 days after their entry)delay.
Appears in 2 contracts
Sources: Subcontract Agreement, Subcontract Agreement
Default. Upon Time is of the occurrence or during the continuance 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 events listed below, Holder or the holder of this Note may forthwith or at any time thereafter during the continuance of any such event, by notice in writing to the Maker, declare the unpaid balance of the principal of this Note to be immediately due and payable, and the principal shall become and shall be immediately due and payable without presentation, demand, protest, notice of protest, or other notice of dishonor, all of which are hereby expressly waived by Maker, with full knowledge of the effect of such waiver. The events deemed as defaults shall include without limitation the following:
following occurs: (a) Maker's failure Lessee fails to pay make any payment required hereunder when due; (b) Lessee fails to maintain in force at all times the principal and interest 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 Note or any portion thereof when the same shall become due and payable (whether at maturity as herein expressedLease, by acceleration, or otherwise) unless which failure is not cured to Lessor’s satisfaction within five (5) days after Holder Lessor’s notice to Lessee thereof; (e) Lessee attempts to sell, transfer or encumber the holder of this Note delivers to Maker written notice of default;
Equipment; (bf) Maker's filing a voluntary petition 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; or filing a voluntary petition seeking , insolvency, reorganization; or filing an answer admitting the jurisdiction of the court and any material allegations of an involuntary petition filed pursuant to any act of Congress relating to bankruptcy or to any act purporting to be amendatory thereof; or making an , assignment for the benefit of its creditors; , or applying for or consenting to the appointment of any receiver or trustee for Maker or all or any substantial portion of its property; or assigning an agent to liquidate any substantial part of Maker's assets;
(c) The entry of (i) any court order pursuant to any act of Congress (or amendment thereof) relating to Maker's bankruptcy or reorganization; other similar law, or (ii) any court order approving an involuntary petition for the bankruptcy appointment of a receiver, liquidator, assignee, custodian, trustee, sequestrator or reorganization similar official of the Maker; 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 court order appointing time after such declaration, Lessor may enter, with or without legal process, any receiver 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 cumulative and are in addition to all other remedies existing at law or trustee in equity, including but not limited to, (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, take possession of and 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 (f) within Lessor’s sole discretion, but without any obligation, to take such action or make any payment to remedy any default, including but not limited to, procuring any required insurance coverage, paying any fine, imposition, penalty, taxes or fees incurred to recover and/or release the Equipment from any forfeiture, seizure, confiscation or similar proceeding, or from any lien or other encumbrance imposed on the Equipment, all such payments of which shall be reimbursed by Lessee. In addition to the payment of any amounts due Lessor hereunder, Lessee shall be responsible for Maker or and shall reimburse Lessor for all or costs and expenses incurred by Lessor in connection with the exercise of any substantial portion rights and remedies hereunder, including all expenses incurred in the removal and transportation of the Maker's property; or (iv) Equipment to Lessor’s premises, any writ or warrant of attachment or any similar process issued by any court against all or any substantial portion cleaning, service and/or repair of the Maker's property (unless such court ordersEquipment, writs, or warrants as identified and in subpoints (i) to (iv) the enforcement of the terms and conditions of this paragraph are vacated Agreement or stayed damages recoverable hereunder, including costs of collection and reasonable attorney’s fees (including fees and expenses incurred in any bankruptcy proceeding or released or bonded within 60 days after their entry)on appeal) .
Appears in 2 contracts
Sources: Equipment Lease Bare Rental Agreement, Equipment Lease Bare Rental Agreement
Default. Upon the occurrence or during the continuance of any one or more of the events listed below, Holder or the holder of this Note may forthwith or at any time thereafter during the continuance of any such event, by notice in writing to the Maker, declare the unpaid balance of the principal of this Note to be immediately due and payable, and the principal shall become and shall be immediately due and payable without presentation, demand, protest, notice of protest, or other notice of dishonor, all of which are hereby expressly waived by Maker, with full knowledge of the effect of such waiver. The events deemed as defaults shall include without limitation the following:
(a) Maker's failure In the event that, prior to pay the principal and interest Closing but after the expiration of this Note or the Due Diligence Period, Purchaser obtains actual knowledge of any portion thereof when information (from whatever source, including, without limitation, the same shall become due and payable (whether at maturity Disclosure Materials, as herein expresseda result of any inspections of the Property, by acceleration, disclosure from Seller or Seller’s agents and employees or otherwise) unless cured that contradicts in any material manner any of the 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) 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) or documents in escrow shall be returned to the party depositing the same, or (ii) to accept the Property notwithstanding such information and nevertheless consummate the transaction contemplated by this Agreement, and in either case Seller shall have no liability with respect to such information and/or any of such representations and warranties contradicted or made untrue or incorrect thereby. In the event, prior to the Closing, Seller materially defaults in any other 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 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, 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 intention to file a suit for specific performance against Seller within five thirty (530) days after Holder 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 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 holder 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 Other Sales Contracts shall constitute a material event of default by Seller hereunder and shall entitle Purchaser to exercise its remedies under this Note delivers to Maker written notice of default;Section.
(b) Maker's filing a voluntary petition in bankruptcy; or filing a voluntary petition seeking reorganization; or filing an answer admitting In the jurisdiction 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 court Property when it is obligated to do so. The parties hereto expressly agree and acknowledge that Seller’s actual damages in the event of a default by Purchaser hereunder with respect to its obligation to purchase the Property would be extremely difficult, if not impossible, to ascertain and that the amount of the deposit plus any material allegations interest accrued thereon is a fair estimate of such damages, which has been agreed to in an involuntary petition filed pursuant effort to any act cause the amount of Congress relating to bankruptcy or to any act purporting such damages to be amendatory thereof; certain. The payment of such amount as liquidated damages is not intended as a forfeiture or making an assignment for the benefit of its creditors; or applying for or consenting penalty, but is intended to constitute liquidated damages to Seller. Notwithstanding anything to the appointment contrary contained in this Section 17(b), 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 Purchaser and Seller also acknowledges and agrees that in the event the transaction contemplated under any receiver or trustee for Maker or all or any substantial portion 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 exercise its property; or assigning an agent to liquidate any substantial part of Maker's assets;remedies under this Section.
(c) The entry Purchaser acknowledges and agrees that its recourse against Seller under this Agreement for a default by Seller hereunder occurring prior to or at the Closing is limited to the remedies 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 remedy shall be limited to actual damages (iincluding, without limitation, reasonable legal fees and expenses) incurred by Purchaser not to exceed $1,000,000 in the aggregate for any court order pursuant and all claims; provided, however, that the foregoing limitation on liability shall not apply to Seller’s obligations under Sections 13, 18 or 20(j). For the avoidance of doubt, the foregoing cap on liability under this Agreement shall not apply to the sellers’ liability under the Other Sales Contracts, each of which shall set forth its own cap in liability thereunder.
(d) In no event shall Purchaser be entitled to seek or obtain any other damages of any kind, including, without limitation, consequential, speculative, indirect or punitive damages, and Purchaser hereby waives any right to any act of Congress 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 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 amendment thereoftheir constituent partners, members or owners) relating to Maker's bankruptcy or reorganization; any director, officer, member, employee or (ii) shareholder of any court order approving an involuntary petition for the bankruptcy or reorganization of the Maker; or foregoing.
(iiie) any court order appointing any receiver or trustee The provisions of or for Maker or for all Section 17 shall survive the Closing or any substantial termination of this Agreement. The term “survive” as used in the preceding sentence, and using a portion of the Maker's property; 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 (iv) claims for actual damages prior to the expiration of the Survival Period as a condition precedent to its right to ▇▇▇ Seller for any writ misrepresentation or warrant breach of attachment a covenant, indemnity or warranty under this Agreement or under any documents executed by Seller pursuant hereto or in connection herewith, and such claims and right shall not merge into the Deed or any similar process issued documents executed by any court against all Seller pursuant hereto or any substantial portion of in connection herewith, but such claims and right shall continue after the Maker's property (unless such court orders, writs, or warrants as identified in subpoints (i) to (iv) of this paragraph are vacated or stayed or released or bonded within 60 days after their entry)Closing throughout the Survival 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. Upon the occurrence or during the continuance of any one or more Each of the events listed below, Holder or the holder of this Note may forthwith or at any time thereafter during the continuance of any such event, by notice in writing to the Maker, declare the unpaid balance of the principal of this Note following shall be deemed to be immediately due an event of default by Tenant and payable, and the principal shall become and shall be immediately due and payable without presentation, demand, protest, notice of protest, or other notice of dishonor, all of which are hereby expressly waived a breach by Maker, with full knowledge of the effect of such waiver. The events deemed as defaults shall include without limitation the followingTenant hereunder:
(a) Maker's failure to pay the principal and interest filing by or against Tenant or any assignee or guarantor of this Note Lease in any court pursuant to any statute either of the United States or of any state, of a petition in bankruptcy or insolvency or a petition for reorganization or for the appointment of a 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 portion thereof when of their property, or the same 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 (x) Tenant shall pay to Landlord, as, when, and in the amount(s) due and payable pursuant to the terms of this Lease, all Rent and Additional Rent which shall accrue and become due and payable prior to the filing of such petition and all Rent which shall accrue and become due and payable subsequent to the filing of such petition, and (y) Tenant shall operate its business in the Premises in the same manner as it had been operated prior to the filing of such reorganization petition, and (z) Tenant shall, in all other respects, pay all other sums and perform all other duties and obligations on its part to be paid and performed under this Lease; or
(b) 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 Florida Statutes; or
(d) the Leased Premises becoming vacant or deserted at maturity any time prior to the first anniversary of the 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 herein expressed, by accelerationand when same is due, or otherwise) unless cured within in the making of any other payment herein provided for and the continuation of such default for a period of five (5) days after Holder Landlord shall have given Tenant a written notice specifying the default in question, 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 (2) occasions in any period of twelve (12) consecutive months during the holder term of this Note delivers Lease, then, notwithstanding that such prior defaults shall have been cured within the period after notice provided in this SubParagraph 32 (f), any further similar default during such twelve (12) month period shall be deemed to Maker be deliberate and shall constitute a material event of default hereunder with respect to which no notice or grace period shall be granted or available to Tenant; or
(g) default by Tenant in the 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 (30) 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 nature that it cannot reasonably be cured or remedied within said thirty (b30) Maker's filing a voluntary petition day period, the same shall not be deemed an event of default if Tenant shall have commenced, in bankruptcy; good faith, the curing or filing a voluntary petition seeking reorganization; or filing an answer admitting the jurisdiction remedying of the court such default within such thirty (30) day period and any material allegations of an involuntary petition filed pursuant shall thereafter continuously and diligently proceed therewith to any act of Congress relating to bankruptcy or to any act purporting to be amendatory thereof; or making an assignment for the benefit of its creditors; or applying for or consenting to the appointment of any receiver or trustee for Maker or all or any substantial portion of its property; or assigning an agent to liquidate any substantial part of Maker's assets;
(c) The entry of (i) any court order pursuant to any act of Congress (or amendment thereof) relating to Maker's bankruptcy or reorganization; or (ii) any court order approving an involuntary petition for the bankruptcy or reorganization of the Maker; or (iii) any court order appointing any receiver or trustee of or for Maker or for all or any substantial portion of the Maker's property; or (iv) any writ or warrant of attachment or any similar process issued by any court against all or any substantial portion of the Maker's property (unless such court orders, writs, or warrants as identified in subpoints (i) to (iv) of this paragraph are vacated or stayed or released or bonded within 60 days after their entry)completion.
Appears in 2 contracts
Sources: Lease Agreement, Lease Agreement (Omnicomm Systems Inc)
Default. Upon the occurrence or during the continuance of any one or more of the events listed below, Holder or the holder of this Note may forthwith or at any time thereafter during the continuance of any such event, by notice in writing to the Maker, declare the unpaid balance of the principal of this Note to be immediately due and payable, and the principal shall become and shall be immediately due and payable without presentation, demand, protest, notice of protest, or other notice of dishonor, all of which are hereby expressly waived by Maker, with full knowledge of the effect of such waiver. The events deemed as defaults shall include without limitation the following:
(a) Maker's failure to pay Upon breach by the principal and interest Developer of any covenant, term, condition or requirement of this Note or any portion thereof when the same shall become due and payable (whether at maturity as herein expressed, by accelerationAgreement, or otherwise) unless cured within five (5) days after Holder or upon the holder of this Note delivers to Maker written notice of default;
(b) Maker's filing a voluntary petition in bankruptcy; or filing a voluntary petition seeking reorganization; or filing an answer admitting the jurisdiction of the court and any material allegations of an involuntary petition filed pursuant to any act of Congress relating to bankruptcy or to any act purporting to be amendatory thereof; Developer becoming insolvent or making an assignment for the benefit of creditors, the Town, at its creditors; or applying for or consenting option, may declare that the Developer is in default.
(b) Notice of such default ("Notice of Default") shall be given by the Town and if the Developer does not remedy such default within such time as provided in the notice, the Town may declare that the Developer is in final default under this Agreement and shall then forthwith give notice of final default ("Notice of Final Default") thereof to the appointment of any receiver or trustee for Maker or all or any substantial portion of its property; or assigning an agent to liquidate any substantial part of Maker's assets;Developer.
(c) The entry Upon Notice of Default having been given, the Town may require all work by the Developer, their servants, agents, independent contractors and sub-contractors to cease (other than any work necessary to remedy such default) until such default has been remedied and in the event of final default, may require all work as aforesaid to cease.
(d) Upon Notice of Final Default having been given to the Developer, the Town may, at its option, adopt or pursue any 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 court order pursuant work, services repairs or maintenance wholly or in part required herein to be done by the Developer and collect the cost thereof from the Developer and/or enforce any act of Congress (or amendment thereof) relating security available to Maker's bankruptcy or reorganization; or it;
(ii) Make any court order approving an involuntary petition for payment which out to have been made by the bankruptcy or reorganization of Developer and upon demand collect the Maker; or amount thereof from the Developer and/or enforce any security available to it;
(iii) Retain any court order appointing sum of money heretofore paid by the Developer to the Town for any receiver purpose and apply the same in payment or trustee part payment for any work which the Town may undertake;
(iv) Assume any work or services at its option, whether 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 or for Maker or for all or any substantial portion of the Maker's property; or (iv) any writ or warrant of attachment or any similar process issued by any court against all or any substantial portion of the Maker's property (unless such court orders, writs, or warrants as identified in subpoints (i) to (iv) part of this paragraph are vacated Agreement or stayed for damages;
(vi) Add any costs incurred by the Town to the tax collector's roll for the Lands and collect such costs by action or released in like manner as municipal real property taxes; or
(vii) Exercise any other remedy granted to the Town under the terms of this Agreement or bonded within 60 days after their entry)available to the Town in law.
Appears in 2 contracts
Sources: Development Agreement, Development Agreement
Default. Upon 2.1 If an “Event of Default” (under and as defined in the occurrence Credit Agreement) shall have occurred and be continuing under the Credit Agreement or during any other Loan Document (as defined in the continuance of any one or more of the events listed belowCredit Agreement), Holder or the holder of this Note may forthwith or at any time thereafter during the continuance of any such eventthen, by notice in writing to the Maker, declare the unpaid balance of the principal of this Note to be immediately due and payable, and the principal shall become and shall be immediately due and payable without presentation, demand, protest, notice of protest, or other notice of dishonor, all of which are hereby expressly waived by Maker, with full knowledge of the effect of such waiver. The events deemed as defaults shall include without limitation the followingMortgagee may:
(a) Maker's failure Declare the Secured Obligations to pay the principal be, and interest of this Note or any portion thereof when the same they shall become be, due and payable (whether at maturity as herein expressed, by acceleration, or otherwise) unless cured within five (5) days after Holder or the holder of this Note delivers to Maker written notice of default;payable; and/or
(b) Maker's filing a voluntary petition in bankruptcyRecover judgment for, and collect out of any property of Owner, any amount due; or filing a voluntary petition seeking reorganization; or filing an answer admitting the jurisdiction of the court and/or collect all earned charter hire and any material allegations of an involuntary petition filed pursuant to any act of Congress freight monies relating to bankruptcy or services performed by the Vessel, if any, Owner assigning to any act purporting to be amendatory thereofMortgagee all such charter hire and freight monies then owing; or making an assignment for the benefit of its creditors; or applying for or consenting to the appointment of any receiver or trustee for Maker or all or any substantial portion of its property; or assigning an agent to liquidate any substantial part of Maker's assets;and/or
(c) The entry Retake the Vessel, with or without legal process, at any time, at any place, and, without being responsible for loss or damage, hold and 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 (i) charge at Owner’s premises or elsewhere at Owner’s expense; and/or sell the Vessel, free from any claim by Owner of any nature whatsoever, in any manner permitted by law; to the extent so permitted, 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 any officer of any court order pursuant or by 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 act action and/or discharge any lien.
2.3 Each and every power or remedy given to Mortgagee shall be cumulative, and in addition to all powers or remedies now or later existing in admiralty, in equity, at law or by statute, and may be exercised as often as may be deemed expedient by Mortgagee. No delay or omission by Mortgagee shall impair any right, power or remedy, and no waiver of Congress (or amendment thereof) relating any default shall waive any other default. In any suit Mortgagee shall be entitled to Maker's bankruptcy or reorganization; or (ii) any court order approving an involuntary petition for the bankruptcy or reorganization obtain appointment of a receiver of the Maker; 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.
2.4 The net proceeds of any judicial or (iii) other sale, and any court order appointing any receiver lease, charter, management, operation or trustee of or for Maker or for all or any substantial portion other use of the Maker's property; Vessel by Mortgagee, of any claim for damages, of any judgment, and any insurance received by Mortgagee (except to the extent paid to Owner or (ivapplied in payment of repairs or otherwise for Owner’s benefit) any writ or warrant of attachment or any similar process issued by any court against all or any substantial portion of the Maker's property (unless such court orders, writs, or warrants shall be applied as identified in subpoints (i) to (iv) of this paragraph are vacated or stayed or released or bonded within 60 days after their entry).follows:
Appears in 2 contracts
Sources: Credit Agreement (Pinnacle Entertainment Inc), Credit Agreement (Pinnacle Entertainment Inc)
Default. Upon Borrower shall be in default under this Agreement and under each of the occurrence or during other Loan Documents if Borrower shall default in the continuance payment of any one amounts due and owing under the Loan or more should Borrower, either Guarantor, any Letter of Credit Sponsor, and/or any pledgor of any of the events listed belowCollateral fail(s) to timely and properly observe, Holder keep or the holder perform any term, covenant, agreement or condition in any Loan Document or in any other loan agreement, promissory note, security agreement, deed of this Note may forthwith trust, deed to secure debt, mortgage, assignment or at any time thereafter during the continuance 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 eventfailure is not cured within any applicable cure period. In addition, by notice in writing to an event of default under the MakerSenior Loan Agreement shall constitute a default under this Agreement. By their respective joinders herein, declare the unpaid balance Guarantor, each Letter of the principal of this Note to be immediately due Credit Sponsor and payable, Magellan each acknowledges and the principal shall become and shall be immediately due and payable without presentation, demand, protest, notice of protest, or other notice of dishonor, all of which are hereby expressly waived by Maker, with full knowledge of the effect of such waiver. The events deemed agrees as defaults shall include without limitation the followingfollows:
(ai) Maker's failure they consent to pay the principal and interest terms of the Loan Documents, including this Agreement; (ii) in the event the Guarantor, any Letter of Credit Sponsor, and/or Magellan fail to make its pro-rata portion of the first payment due under the Note or any portion thereof when into the same shall become due and payable (whether Aggregation Account at maturity as herein expressed, by acceleration, or otherwise) unless cured within least five (5) days after Holder 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 otherwise instruct Lender to liquidate their respective Collateral to be applied to the holder of this payments due under the Note delivers to Maker written notice of default;
(b) Maker's filing a voluntary petition in bankruptcy; or filing a voluntary petition seeking reorganization; or filing an answer admitting the jurisdiction of the court and any material allegations lieu of an involuntary petition filed pursuant actual payment being made), then such 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 act of Congress relating to bankruptcy or to any act purporting to be amendatory thereofdefault by the Borrower then exists under the Loan Documents; or making an assignment for the benefit of its creditors; or applying for or consenting to the appointment of any receiver or trustee for Maker or all or any substantial portion of its property; or assigning an agent to liquidate any substantial part of Maker's assets;
(c) The entry of (i) any court order pursuant to any act of Congress (or amendment thereof) relating to Maker's bankruptcy or reorganization; or (ii) any court order approving an involuntary petition for the bankruptcy or reorganization of the Maker; or (iii) the Lender may pursue all rights and remedies against the Collateral notwithstanding any court order appointing any receiver 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 trustee of or for Maker or for all or any substantial portion of the Maker's propertyother similar terminology; or (iv) any writ or warrant Guarantor, each Letter of attachment 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 similar process issued other failure and/or restriction on the Borrower’s payment under the Note, regardless of any lack of payment by any court against the Borrower to the Lender directly; and (v) all or any substantial portion obligations of the Maker's property (unless such court ordersGuarantor to Magellan, writseach Letter of Credit Sponsor and/or the Borrower and all obligations of Magellan to Guarantor , or warrants as identified each Letter of Credit Sponsor and/or the Borrower are subordinated in subpoints (i) terms of payment and priority to (iv) the interests of this paragraph are vacated or stayed or released or bonded within 60 days after their entry)Lender until the Indebtedness is paid in full.
Appears in 2 contracts
Sources: Loan Agreement (Bioheart, Inc.), Loan Agreement (Bioheart, Inc.)
Default. Upon If 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 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 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 the Company under applicable law. Without limiting the foregoing, after the occurrence or of and during the continuance of a default, the Company is authorized to sell, assign and deliver at its discretion, from time to time, all or any one or more part of the events listed below, Holder or the holder of this Note may forthwith or Collateral at any time thereafter during private sale or public auction, on not less than ten (10) days' written notice to Pledgor, at such price or prices and upon such terms as the continuance Company may deem advisable. Pledgor shall have no right to redeem the Collateral after any such sale or assignment. At any such sale or auction, the Company may bid for, and become the purchaser of, the whole or any part of the Pledged Interests offered for sale. In case of any such eventsale, by notice in writing after deducting the costs, attorneys' fees and other expenses of sale and delivery, the remaining proceeds of such sale shall be applied to the Makerprincipal of and accrued interest on the Note and other amounts related thereto (including costs, declare attorneys' fees associated with enforcement hereof); provided that after payment in full of the unpaid indebtedness evidenced by the Note, the balance of the principal proceeds of this Note to be immediately due and payable, and the principal shall become and sale then remaining shall be immediately due paid to Pledgor and payable without presentation, demand, protest, notice Pledgor shall be entitled to the return of protest, or other notice of dishonor, all of which are hereby expressly waived by Maker, with full knowledge any of the effect Pledged Interests remaining in the hands of such waiverthe Company. The events deemed as defaults Pledgor shall include without limitation be liable for any deficiency (but only to the following:
(aextent liable therefor under the Note) Maker's failure if the remaining proceeds are insufficient to pay the principal and interest of this indebtedness under the Note or any portion thereof when in full, including the same shall become due and payable (whether at maturity as herein expressed, by acceleration, or otherwise) unless cured within five (5) days after Holder or the holder of this Note delivers to Maker written notice of default;
(b) Maker's filing a voluntary petition in bankruptcy; or filing a voluntary petition seeking reorganization; or filing an answer admitting the jurisdiction of the court and any material allegations of an involuntary petition filed pursuant to any act of Congress relating to bankruptcy or to any act purporting to be amendatory thereof; or making an assignment for the benefit of its creditors; or applying for or consenting to the appointment fees of any receiver or trustee for Maker or all or any substantial portion of its property; or assigning an agent attorneys employed by the Company to liquidate any substantial part of Maker's assets;
(c) The entry of (i) any court order pursuant to any act of Congress (or amendment thereof) relating to Maker's bankruptcy or reorganization; or (ii) any court order approving an involuntary petition for the bankruptcy or reorganization of the Maker; or (iii) any court order appointing any receiver or trustee of or for Maker or for all or any substantial portion of the Maker's property; or (iv) any writ or warrant of attachment or any similar process issued by any court against all or any substantial portion of the Maker's property (unless collect such court orders, writs, or warrants as identified in subpoints (i) to (iv) of this paragraph are vacated or stayed or released or bonded within 60 days after their entry)deficiency.
Appears in 2 contracts
Sources: Executive Agreement (Jondex Corp), Executive Agreement (Jondex Corp)
Default. (a) Each of the following shall constitute an “Event of Default” hereunder: (i) the occurrence of an Event of Default under the Loan Agreement; (ii) 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 Bank or by any Pledgor in favor of the Bank, time being of the essence (subject, however, to any applicable notice and cure periods); (iii) failure by any Pledgor to perform any material obligations under any Guaranty (as defined in the Loan Agreement), executed by any Pledgor in favor of the 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 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 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) 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 during otherwise (including without limitation, acceleration of the continuance Secured Obligations or any part thereof). This paragraph is not intended to affect or impair any rights of the Bank with respect to any Secured Obligations that may now or hereafter be payable on demand.
(c) Upon the occurrence of any one Event of Default, the Bank’s rights with respect to the Collateral shall be those of a secured party under the UCC and any other applicable law in effect from time to time. The Bank shall also have any additional rights granted herein and in any other agreement now or more hereafter in effect between each Pledgor and the Bank. If requested by the Bank after the occurrence of an Event of Default, the Pledgors will assemble all Documents, Instruments, Chattel Paper and any other records relating to the Collateral and make it available to the Bank at a place to be designated by the Bank.
(d) The Pledgors agree that any notice by the Bank of the events listed belowsale or disposition of the Collateral or any other intended action hereunder, Holder whether required by the UCC or otherwise, shall constitute reasonable notice to the holder of 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 Note may forthwith Agreement or at to any time thereafter during the continuance of other address that any such event, by notice Pledgor has specified in writing to the MakerBank 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, declare 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 unpaid balance extent of each Pledgor’s liability for repayment of any of the principal of this Note to be immediately due and payableSecured Obligations, and the principal shall become and shall be immediately due and payable without presentation, demand, protest, notice liable for any deficiencies in the event the Proceeds of protest, or other notice of dishonor, all of which are hereby expressly waived by Maker, with full knowledge disposition of the effect of such waiverCollateral do not satisfy the Secured Obligations in full. The events Nothing contained herein shall be deemed as defaults shall include without limitation to require the following:
(a) Maker's failure Bank to pay proceed against the principal and interest of this Note Collateral or any portion part thereof when before or as a condition to the same shall become due and payable (whether at maturity as herein expressed, by acceleration, or otherwise) unless cured within five (5) days after Holder or the holder pursuit of this Note delivers to Maker written notice of default;
(b) Maker's filing a voluntary petition in bankruptcy; or filing a voluntary petition seeking reorganization; or filing an answer admitting the jurisdiction of the court and any material allegations of an involuntary petition filed pursuant to any act of Congress relating to bankruptcy or to any act purporting to be amendatory thereof; or making an assignment for the benefit of its creditors; or applying for or consenting other rights and remedies with respect to the appointment of any receiver or trustee for Maker or all or any substantial portion of its property; or assigning an agent to liquidate any substantial part of Maker's assets;
(c) The entry of (i) any court order pursuant to any act of Congress (or amendment thereof) relating to Maker's bankruptcy or reorganization; or (ii) any court order approving an involuntary petition for the bankruptcy or reorganization of the Maker; or (iii) any court order appointing any receiver or trustee of or for Maker or for all or any substantial portion of the Maker's property; or (iv) any writ or warrant of attachment or any similar process issued by any court against all or any substantial portion of the Maker's property (unless such court orders, writs, or warrants as identified in subpoints (i) to (iv) of this paragraph are vacated or stayed or released or bonded within 60 days after their entry)Secured Obligations.
Appears in 2 contracts
Sources: Security Agreement (First Advantage Corp), Security Agreement (First Advantage Corp)
Default. Upon The commencement of a bankruptcy action or liquidation action or reorganization in bankruptcy action or insolvency action or an assignment of or by Tenant for the occurrence benefit of creditors, or any similar action undertaken by Tenant, or the insolvency of Tenant, shall, at Landlord's option, constitute a breach of this Lease by Tenant. If the trustee or receiver appointed to serve during a bankruptcy, liquidation, reorganization, insolvency or similar action elects to reject Tenant's unexpired Lease, the continuance trustee or receiver shall notify Landlord in writing of its election within thirty (30) days after any order for relief in any liquidation action or within thirty (30) days after the commencement of any one or more action. Within thirty (30) days after the court approval of the events listed below, Holder or the holder assumption of this Note may forthwith Lease, the trustee or at receiver shall cure (or provide adequate assurance to the reasonable satisfaction of Landlord that the trustee or receiver shall cure) any time thereafter during and all previous defaults under the continuance unexpired Lease and shall compensate Landlord for all actual pecuniary loss and shall provide adequate assurance of future performance under said Lease to the reasonable satisfaction of Landlord. Adequate assurance of future performance, as used herein, includes, but shall not be limited to: (i) assurance of source and payment of Rent, and other consideration due under this Lease; and (ii) assurance that the assumption or assignment of this Lease will not breach any provision in any agreement relating to the above described Premises. Nothing contained in this Paragraph shall affect the exercising of any such eventright of Landlord to refuse to accept an assignment upon commencement or in connection with a bankruptcy, liquidation, reorganization or insolvency action or an assignment of Tenant for the benefit of creditors or other similar act. Nothing contained in this Lease shall be construed as giving or granting or creating an equity in the Premises to Tenant. In no event shall the leasehold estate under this Lease, or any interest therein, be assigned by notice in writing voluntary or involuntary bankruptcy proceeding without the prior written consent of Landlord. In no event shall this Lease or any rights or privileges hereunder be an asset of Tenant under any bankruptcy, insolvency or reorganization proceedings. The failure of Tenant to the Makerperform or honor any covenant, declare the unpaid balance condition or representation made under this Lease shall constitute a default hereunder by Tenant upon expiration of the principal appropriate grace period hereinafter provided. Tenant shall have a period of ten (10) days following the date of written notice from Landlord within which to cure any default in the payment of Rent when otherwise due hereunder. Tenant shall have a period of thirty (30) days following the date of written notice from Landlord within which to cure any other default by Tenant under this Lease; provided, however, that if the nature of Tenant's failure is such that more than thirty (30) days is reasonably required to cure the same, Tenant shall not be in default so long as Tenant commences performance within such thirty (30) day period and thereafter prosecutes the same to completion. Upon an uncured default of this Note Lease by Tenant, Landlord shall have the following rights and remedies in addition to be immediately due and payable, and the principal shall become and shall be immediately due and payable without presentation, demand, protest, notice of protest, any other rights or other notice of dishonor, all of which are hereby expressly waived by Maker, with full knowledge of the effect of such waiver. The events deemed as defaults shall include without limitation the followingremedies available to Landlord at law or in equity:
(a) Maker's failure to pay The rights and remedies provided for by California Civil Code Section 1951.2 including but not limited to, recovery of the principal and interest worth at the time of this Note or any portion thereof when award of the amount by which the unpaid Rent for the balance of the Lease Term after the time of award exceeds the amount of rental loss for the same shall become due and payable period that Tenant proves could be reasonably avoided, as computed pursuant to subsection (whether at maturity as herein expressed, by acceleration, or otherwiseb) unless cured within five (5) days after Holder or the holder of this Note delivers to Maker written notice of default;said Section 1951.2.
(b) Maker's filing a voluntary petition The rights and remedies provided by California Civil Code Section 1951.4 which allows Landlord to continue the Lease in bankruptcy; or filing a voluntary petition seeking reorganization; or filing an answer admitting the jurisdiction of the court effect and any material allegations of an involuntary petition filed pursuant to any act of Congress relating to bankruptcy or to any act purporting to be amendatory thereof; or making an assignment for the benefit enforce all of its creditorsrights and remedies under this Lease, including the right to recover Rent as it becomes due, for so long as Landlord does not terminate Tenant's right to possession; acts of maintenance or applying for preservation, efforts to relet the Premises, or consenting to the appointment of any a receiver or trustee for Maker or all or any substantial portion upon Landlord's initiative to protect its interest under this Lease shall not constitute a termination of its property; or assigning an agent Tenant's right to liquidate any substantial part of Maker's assets;possession.
(c) The entry right to terminate this Lease by giving notice to Tenant in accordance with applicable law.
(d) To the extent provided by law, the right and power to enter the Premises and remove therefrom all persons and property, to store such property in a public warehouse or elsewhere at the cost of and for the account of Tenant, and to sell such property and apply such proceeds therefrom pursuant to applicable California law. Landlord may from time to time sublet the Premises or any part thereof for such term or terms (which may extend beyond the Lease Term) and at such Rent and such other terms as Landlord in its reasonable sole discretion may deem advisable, with the right to make alterations and repairs to the Premises. Upon each subletting, (i) any court order pursuant Tenant shall be immediately liable to pay Landlord, in addition to any act other indebtedness other than Rent due from Tenant to Landlord hereunder, the reasonable cost of Congress such subletting (or amendment thereofto the extent allocable to the remaining Lease Term), including, but not limited to, reasonable attorneys' fees, and any real estate commissions actually paid, and the cost of such reasonable alterations and repairs incurred by Landlord and the amount, if any, by which the Rent hereunder allocable to the subleased premises for the period of such subletting (to the extent such period does not exceed the Lease Term) relating exceeds the amount to Maker's bankruptcy or reorganization; be paid as Rent by the subtenant for the subleased premises for such period or (ii) at the option of Landlord, rents received from such subletting shall be applied first to payment of indebtedness other than Rent due hereunder from Tenant to Landlord; second, to the payment of any court order approving an involuntary petition for costs of such subletting and of such alterations and repairs; third, to payment of Rent due and unpaid hereunder; and the bankruptcy or reorganization residue, if any, shall be held by Landlord and applied in payment of future Rent as the Maker; or (iii) same becomes due hereunder. If Tenant has been credited with any court order appointing any receiver or trustee of or for Maker or for all or any substantial portion of the Maker's property; or (iv) any writ or warrant of attachment or any similar process issued Rent to be received by any court against all or any substantial portion of the Maker's property (unless such court orders, writs, or warrants as identified in subpoints subletting under option (i) and such Rent shall not be promptly paid to Landlord by the subtenant(s), or if such rentals received from such subletting under option (ivii) during any month be less than that to be paid during the month by Tenant hereunder, Tenant shall pay any such deficiency to Landlord. Such deficiency shall be calculated and paid monthly. No taking possession of the Premises by Landlord shall be construed as an election on its part to terminate this paragraph are vacated or stayed or released or bonded within 60 days after their entry)Lease unless a written notice of such intention be given to Tenant. Notwithstanding any such subletting without termination, Landlord may at any time thereafter elect to terminate this Lease for such then uncured previous default.
(e) The right to have a receiver appointed for Tenant upon application by Landlord in accordance with applicable laws, to take possession of the Premises and to apply any rental collected from the Premises and to exercise all other rights and remedies granted to Landlord pursuant to this Paragraph 22.
Appears in 2 contracts
Sources: Lease Agreement (Alza Corp), Lease Agreement (Alza Corp)
Default. Upon If an Event of Default shall occur, at the occurrence or during the continuance of any one or more election of the events listed belowLender, Holder or the holder of this Note may forthwith or at any time thereafter during the continuance of any such event, by notice in writing to the Maker, declare the unpaid balance of the principal of this Note to be immediately due and payable, and the principal all Obligations shall become and shall be immediately due and payable without presentation, notice or demand, protestexcept with respect to Obligations payable on DEMAND, notice of protest, or other notice of dishonor, all of which are hereby expressly waived by Maker, with full knowledge of the effect of such waiver. The events deemed as defaults shall include without limitation the following:
(a) Maker's failure to pay the principal and interest of this Note or any portion thereof when the same shall become be due and payable (on DEMAND, whether or not an Event of Default has occurred. The Lender is hereby authorized, at maturity its election, after an Event of Default or after Demand, without any further demand or notice except to such extent as herein expressednotice may be required by applicable law, to take possession and/or sell or otherwise dispose of all or any of the Collateral at public or private sale; and the Lender may also exercise any and all other rights and remedies of a secured party under the Code or which are otherwise accorded to it by accelerationapplicable law, all as the Lender may determine. If notice of a sale or otherwise) other action by the Lender is required by applicable law, unless cured within the Collateral is perishable or threatens to decline speedily in value or is of a type customarily sold on a recognized market, the Borrower agrees that five (5) days after Holder days' written notice to the Borrower, or the holder shortest period of this Note delivers to Maker written notice of default;
(b) Maker's filing a voluntary petition in bankruptcypermitted by such law, whichever is larger, shall be sufficient notice; or filing a voluntary petition seeking reorganization; or filing an answer admitting and that to the jurisdiction 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 court 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 free from any right of redemption, which the Borrower hereby waives and releases. No purchaser at any material allegations 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 Lender, the 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 the Borrower. The Borrower hereby acknowledges that the Lender has extended credit and other financial accommodations to the Borrower upon reliance of the 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 involuntary petition filed pursuant Event of Default or after DEMAND with respect to Obligations payable on DEMAND and the Borrower hereby acknowledges that the Lender is entitled to equitable and injunctive relief to reinforce any act of Congress relating to bankruptcy or to any act purporting to be amendatory thereof; or making an assignment for the benefit of its creditors; rights and remedies hereunder or applying for under the Code and the Borrower hereby waives any defense to such equitable or consenting injunctive relief based upon any allegation of the absence of irreparable harm to the appointment of any receiver or trustee for Maker or all or any substantial portion of its property; or assigning an agent to liquidate any substantial part of Maker's assets;
(c) The entry of (i) any court order pursuant to any act of Congress (or amendment thereof) relating to Maker's bankruptcy or reorganization; or (ii) any court order approving an involuntary petition for the bankruptcy or reorganization of the Maker; or (iii) any court order appointing any receiver or trustee of or for Maker or for all or any substantial portion of the Maker's property; or (iv) any writ or warrant of attachment or any similar process issued by any court against all or any substantial portion of the Maker's property (unless such court orders, writs, or warrants as identified in subpoints (i) to (iv) of this paragraph are vacated or stayed or released or bonded within 60 days after their entry)Lender.
Appears in 2 contracts
Sources: Loan and Security Agreement (Fix Corp International Inc), Acquisition Agreement (Fix Corp International Inc)
Default. Upon the occurrence or during the continuance of any a. Any one or more of the events listed below, Holder or the holder of this Note may forthwith or at any time thereafter during the continuance of any such event, by notice in writing to the Maker, declare the unpaid balance of the principal of this Note to be immediately due and payable, and the principal shall become and shall be immediately due and payable without presentation, demand, protest, notice of protest, or other notice of dishonor, all of which are hereby expressly waived by Maker, with full knowledge of the effect of such waiver. The events deemed as defaults shall include without limitation the following:
following events: (a) Maker's failure to pay the any principal and amount or interest of this Note or any portion thereof when the same shall become due and payable (whether at maturity as herein expressed, by acceleration, or otherwise) unless cured within five (5) days after Holder or the holder of this Note delivers to Maker written notice of default;
due; (b) Maker's filing a voluntary petition in bankruptcy; or filing a voluntary Maker (i) files any petition seeking reorganization; a discharge, rearrangement, or filing an answer admitting reorganization of its debts pursuant to the jurisdiction bankruptcy laws or any other debtor relief laws of the court and United States or any material allegations of an involuntary petition filed pursuant to state or any act of Congress relating to bankruptcy or to any act purporting to be amendatory thereof; or making an other competent jurisdiction, (ii) makes a general assignment for the benefit of its creditors, or (iii) admits in writing its inability to pay its debts as they mature; or applying for (c) a petition is filed against Maker seeking to rearrange, reorganize, or consenting to extinguish its debts under the appointment provisions of any bankruptcy or other debtor relief law of the United States or any state or other competent jurisdiction, and such petition is not dismissed within 45 days, or (d) a court of competent jurisdiction enters an order, judgment, or decree appointing a receiver or trustee for Maker or all or any substantial portion of its property; or assigning an agent to liquidate any substantial part of Maker's assets;
(c) The entry of (i) any court order pursuant to any act of Congress (or amendment thereof) relating to Maker's bankruptcy or reorganization; or (ii) any court order approving an involuntary petition for the bankruptcy or reorganization of the Maker; or (iii) any court order appointing any receiver or trustee of or for Maker it or for all or any substantial portion part of its property.
b. If a Default occurs, and Maker does not cure such Default within thirty (30) days of receiving notice of the 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's property; . Notwithstanding the immediately preceding sentence, if a Default is in respect of a bankruptcy or (iv) any writ or warrant insolvency proceeding the principal of attachment or any similar process issued by any court against this Note, and all or any substantial portion accrued and unpaid interest, shall automatically become immediately due and payable. In addition, Payee may institute judicial proceedings for the collection of the amounts due and may prosecute such proceeding to judgment or final decree, and may enforce the same against Maker and collect the amount due (together with reasonable costs of collection, including reasonable attorney’s fees and expenses) adjudged or decreed to be payable in the manner provided by law out of the property of Maker's property (unless such court orders. 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, writs, and may exercise any and all other rights Payee may have at law or warrants as identified in subpoints (i) to (iv) equity.
c. Default rate of this paragraph are vacated or stayed or released or bonded within 60 days after their entry)interest: 10% per annum.
Appears in 2 contracts
Sources: Note Agreement (Edison Nation, Inc.), Note Agreement (Edison Nation, Inc.)
Default. Upon (a) In the occurrence or during the continuance of event (i) Pledgor fails to pay any one or more of the events listed below, Holder or the holder of this Note may forthwith or at any time thereafter during the continuance of any such event, by notice in writing to the Maker, declare the unpaid balance portion of the principal of this or interest under the Note to be immediately due and payablewhen it becomes due, and such failure or breach is not cured by Pledgor within five days of written notice thereof from the principal shall become and shall be immediately due and payable without presentationCompany, demand, protest, notice (ii) any representation of protest, or other notice of dishonor, all of which are hereby expressly waived by Maker, with full knowledge of Pledgor in the effect of such waiver. The events deemed as defaults shall include without limitation the following:
(a) Maker's failure to pay the principal and interest of this Note or this Pledge Agreement was incorrect in any portion thereof material respect when made, (iii) Pledgor otherwise breaches this Agreement or the same shall become due and payable (whether at maturity as herein expressedNote in any manner, by acceleration, or otherwise) unless which breach is not cured within five (5) days after Holder or the holder of this Note delivers to Maker written notice of default;
from the Company, or (biv) Maker's filing the Pledgor files a voluntary petition in or otherwise seeks relief under any bankruptcy; , insolvency or filing similar law ("Insolvency Law") or a voluntary 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 seeking reorganization; is filed against Pledgor under any Insolvency Law, or filing an answer admitting the jurisdiction of the court and any material allegations of an involuntary petition filed pursuant to any act of Congress relating to bankruptcy or to any act purporting to be amendatory thereof; or making Pledgor makes an assignment for the benefit of its creditors; 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 applying for other pledged collateral in furtherance of this Agreement and shall have, 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 consenting otherwise available to the appointment of Company under applicable law. Without limiting the foregoing, the Company is authorized to sell, assign and deliver at its discretion, from time to time during any receiver or trustee for Maker or period after a Default, all or any substantial portion of its property; or assigning an agent to liquidate any substantial part of Maker's assets;the Pledged Shares and 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 upon such terms as the Company may reasonably deem advisable. Pledgor shall have no right to redeem any Pledged Shares or other pledged collateral thus sold or auctioned. At any such sale or auction, the Company may bid for, and become the purchaser of, the whole or any part of the Pledged Shares or other collateral offered for sale. In case of any such sale or auction, after deducting the costs, attorneys' fees and other expenses of sale and delivery, the remaining proceeds of such sale shall be applied to the due and unpaid principal of, and due and unpaid accrued interest on, the Note; provided that promptly after payment in full of the 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 of 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.
(cb) The entry In addition to and not in lieu of (i) any court order the remedies set forth in Section 7(a), so long as Common Shares of the Company 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 any act of Congress (or amendment thereof) relating to Maker's bankruptcy or reorganization; or (ii) any court order approving an involuntary petition for the bankruptcy or reorganization of the Maker; or (iii) any court order appointing any receiver or trustee of or for Maker or for Section 7(a), but may instead, at its option, purchase all or any substantial portion part of the Maker's property; or (iv) any writ or warrant Pledged Shares at the Fair Market Value at the date of attachment or any similar process issued by any court against all or any substantial portion of purchase, and may apply the Maker's property (unless such court orders, writs, or warrants as identified in subpoints (i) proceeds thereof to (iv) of this paragraph are vacated or stayed or released or bonded within 60 days after their entry)the Loan 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. Upon Whenever a Default shall be existing, all Secured Obligations may (notwithstanding any provisions thereof), at the occurrence option of the Lender, and without demand or during the continuance notice of any one or more of the events listed belowkind, Holder or the holder of this Note may forthwith or at any time thereafter during the continuance of any such eventbe declared, by notice in writing to the Makerand thereupon immediately shall become, declare the unpaid balance of the principal of this Note to be immediately due and payable, and the principal shall become Lender may exercise from time to time any rights and remedies available to it under applicable law 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 connection with any disposition of Collateral pursuant to this Agreement. Debtor agrees, in case of Default, to assemble, at its expense, all Collateral at a convenient place acceptable to the Lender. Any notification of intended disposition of any of the Collateral required by law, shall be immediately due deemed reasonably and payable without presentation, demand, protest, notice of protest, or other notice of dishonor, all of which are hereby expressly waived by Maker, with full knowledge of the effect of such waiver. The events deemed as defaults shall include without limitation the following:
(a) Maker's failure to pay the principal and interest of this Note or any portion thereof when the same shall become due and payable (whether properly given if given at maturity as herein expressed, by acceleration, or otherwise) unless cured within least five (5) days after Holder or before such disposition. Any proceeds of any disposition by the holder Lender of this Note delivers to Maker written notice of default;
(b) Maker's filing a voluntary petition in bankruptcy; or filing a voluntary petition seeking reorganization; or filing an answer admitting the jurisdiction any of the court Collateral may be applied by the Lender to the payment of expenses in connection with the Collateral, including reasonable attorneys’ fees and legal expenses, and any material allegations balance of an involuntary petition filed pursuant to any act of Congress relating to bankruptcy or to any act purporting to such proceeds shall be amendatory thereof; or making an assignment for applied by the benefit of its creditors; or applying for or consenting to the appointment of any receiver or trustee for Maker or all or any substantial portion of its property; or assigning an agent to liquidate any substantial part of Maker's assets;
(c) The entry of Lender (i) any court first, to the payment of such of the Secured Obligations, and in such order pursuant of application, as the Lender may from time to any act of Congress (or amendment thereof) relating to Maker's bankruptcy or reorganizationtime elect; or (ii) second, to the payment to whosoever may be lawfully entitled to receive the same or as a court of competent jurisdiction may direct, of any court order approving an involuntary petition for the bankruptcy or reorganization of the Makersurplus then remaining from such proceeds; or and (iii) if any court order appointing any receiver or trustee of or for Maker or for all or any substantial portion of balance is remaining, to the Maker's property; or (iv) any writ or warrant of attachment or any similar process issued by any court against all or any substantial portion of the Maker's property (unless such court orders, writs, or warrants as identified in subpoints (i) to (iv) of this paragraph are vacated or stayed or released or bonded within 60 days after their entry)Debtor.
Appears in 2 contracts
Sources: Security Agreement (Idt Spectrum, Inc.), Security Agreement (Idt Spectrum, Inc.)
Default. Upon When a default in the occurrence payment or during the continuance performance of any one or more of the events listed belowobligations occurs, Holder or and on the holder 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 Note 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 forthwith or 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 thereafter during the continuance and place of any such eventpublic 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 entitled to retain part of the proceeds of the sale, by notice in writing subject to the Maker, declare the unpaid balance approval of the principal of this Note to be immediately due and payableBankruptcy Court, and the principal shall become and shall be immediately due and payable without presentation, demand, protest, notice of protest, or other notice of dishonor, all of which are hereby expressly waived by Maker, with full knowledge of the effect of such waiver. The events deemed as defaults shall include without limitation the following:
(a) Maker's failure to pay the principal and interest of this Note or any portion thereof when the same shall become due and payable (whether at maturity as herein expressedall secured sums, by acceleration, or otherwise) unless cured within five (5) days after Holder or the holder of this Note delivers to Maker written notice of default;
(b) Maker's filing a voluntary petition in bankruptcy; or filing a voluntary petition seeking reorganization; or filing an answer admitting its reasonable expenses of repossessing, holding, preparing for sale, and selling the jurisdiction of the court collateral, and any material allegations of an involuntary petition filed pursuant to any act of Congress relating to bankruptcy or to any act purporting to be amendatory thereof; or making an assignment for the benefit of its creditors; or applying for or consenting to the appointment of any receiver or trustee for Maker or all or any substantial portion of its property; or assigning an agent to liquidate any substantial part of Maker's assets;
(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 entry 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 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 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 (i1) the validity or enforceability of this agreement, (2) the truth or correctness of any court order pursuant to representation contained in this agreement, or any act other statements or certificates made by the debtor in connection with the granting or handling of Congress (or amendment thereof) relating to Maker's bankruptcy or reorganization; the security interest, or (ii3) any court order approving an involuntary petition the collateral. The secured party will have no responsibility to lenders for the bankruptcy performance by the debtor of its obligations under this security agreement. The secured party will not be responsible for the consequences of any oversight or reorganization of the Maker; error in judgment or (iii) be liable for any court order appointing any receiver or trustee of or for Maker or for all or any substantial portion of the Maker's property; or (iv) any writ or warrant of attachment or any similar process issued by any court against all or any substantial portion of the Maker's property (unless such court orders, writsaction taken, or warrants as identified in subpoints (i) omitted to (iv) of this paragraph are vacated be taken, except only for the secured party’s gross negligence, bad faith, or stayed or released or bonded within 60 days after their entry)willful misconduct.
Appears in 2 contracts
Sources: Mortgage, Pledge, and Security Agreement, Mortgage, Pledge, and Security Agreement
Default. Upon If an Investor (or any of its affiliates) defaults on its obligation to fund its Investment Commitment in accordance with the occurrence terms of its Equity Commitment Letter or during breaches its obligations under the continuance Cooperation Agreement, its Limited Guaranty, its Equity Commitment Letter or this Agreement (a “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 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 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 one or more of their Affiliates against it in respect of the events listed belowTransaction (collectively, Holder the “Default Costs”). The Defaulting Investor hereby agrees to indemnify the Non-Defaulting Investors in respect of all Default Costs and shall pay all of such Default Costs to the Non- Defaulting Investors (or in accordance with the holder of this Note may forthwith or at any time thereafter during Non-Defaulting Investors’ direction) promptly after their incurrence. For greater certainty, if there is more than one Defaulting Investor, the continuance 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 the case of any such eventDefaulting Investor that is not a Lead Investor, by notice in writing to the Maker, declare the unpaid balance of the principal of this Note to be immediately due and payable, and the principal shall become and shall be immediately due and payable without presentation, demand, protest, notice of protest, or other notice of dishonor, all of which are hereby expressly waived by Maker, with full knowledge of the effect of such waiver. The events deemed as defaults shall include without limitation the following:
(a) Maker's failure to pay the principal and interest of this Note or any portion thereof when the same shall become due and payable (whether at maturity as herein expressed, by acceleration, or otherwise) unless cured within five (5) days after Holder or the holder of this Note delivers to Maker written notice of default;
(b) Maker's filing a voluntary petition in bankruptcy; or filing a voluntary petition seeking reorganization; or filing an answer admitting the jurisdiction of the court and any material allegations of an involuntary petition filed pursuant to any act of Congress relating to bankruptcy or to any act purporting to be amendatory thereof; or making an assignment for the benefit of its creditors; or applying for or consenting to the appointment of any receiver or trustee for Maker or all or any substantial portion of its property; or assigning an agent to liquidate any substantial part of Maker's assets;
(c) The entry of (i) any court order pursuant the Lead Investor associated with such Investor as identified on Annex A (the “Corresponding Lead Investor”) agrees to any act jointly indemnify the Non-Defaulting Investors in respect of Congress (or amendment thereof) relating to Maker's bankruptcy or reorganization; or all Default Costs owed by the Defaulting Investor and (ii) the Defaulting Investor agrees to promptly pay to the Corresponding Lead Investor any court order approving an involuntary petition for Default Costs paid by the bankruptcy or reorganization of Corresponding Lead Investor to the Maker; or (iii) any court order appointing any receiver or trustee of or for Maker or for all or any substantial portion of other Non-Defaulting Investors. For greater certainty, if there is more than one Defaulting Investor, the Maker's property; or (iv) any writ or warrant of attachment or any similar process issued Default Costs will be borne by any court against all or any substantial portion of the Maker's property (unless such court orders, writs, or warrants as identified in subpoints (i) Defaulting Investors on a pro rata basis that corresponds to (iv) of this paragraph are vacated or stayed or released or bonded within 60 days after their entry)Investment Commitments.
Appears in 2 contracts
Sources: Interim Investors Agreement, Interim Investors Agreement
Default. Upon (a) In the occurrence event that the Pledgor fails to pay to the Pledgee any Obligation when due or during there shall otherwise occur an Event of Default (as defined in the continuance Note) ("Default"), the 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 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 events listed below, Holder or Collateral so sold. The Pledgee shall apply any proceeds from time to time held by it and the holder of this Note may forthwith or at any time thereafter during the continuance net proceeds of any such eventsale or other disposition, by notice after deducting all reasonable costs and expenses of every kind incurred in writing respect thereof or incidental to the Maker, declare the unpaid balance care or safekeeping of any of the principal Collateral or in any way relating to the Collateral or the rights of this Note the Pledgee hereunder, including, without limitation, reasonable attorneys' fees and disbursements of counsel to be immediately due the Pledgee, to the satisfaction in whole or in part of the Obligations, in such order as the Pledgee may elect and payableonly 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 principal shall become and 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 immediately due 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 payable without presentation, demand, protestproper if given at least ten (10) days before such sale or other disposition. In any event, notice of protest, a proposed sale or other notice 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 dishonorany sale or other disposition of the Collateral are insufficient to pay all of the Obligations and any and all costs and expenses of every kind incurred by the Pledgee with respect to the collection of such deficiency, including, without limitation, all reasonable fees and disbursements of which are hereby expressly waived any attorneys employed by Maker, with full knowledge of the effect of such waiverPledgee. The events deemed 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 defaults 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 include without limitation the following:
(a) Maker's failure not be evidence that it has been made in other than a commercially reasonable manner. The Pledgor agrees to pay the principal and interest 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 this Note all or any portion thereof when of the same shall become due Collateral pursuant to this section valid and payable (whether at maturity as herein expressed, by acceleration, or otherwise) unless cured within five (5) days after Holder or the holder binding and in compliance with any and all other applicable requirements of this Note delivers to Maker written notice of default;law.
(b) Maker's filing a voluntary petition in bankruptcy; or filing a voluntary petition seeking reorganization; or filing an answer admitting the jurisdiction The rights of the court and any material allegations of an involuntary petition filed pursuant to any act of Congress relating to bankruptcy Pledgee hereunder shall not be conditioned or to any act purporting to be amendatory thereof; or making an assignment for contingent upon the benefit of its creditors; or applying for or consenting to pursuit by the appointment Pledgee of any receiver right or trustee for Maker remedy against the Pledgor, any other person which may be or become liable in respect of all or any substantial portion 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 property; affiliates or assigning an agent representatives shall be liable for any failure to liquidate any substantial part of Maker's assets;
(c) The entry of (i) any court order pursuant to any act of Congress (demand, collect or amendment thereof) relating to Maker's bankruptcy or reorganization; or (ii) any court order approving an involuntary petition for the bankruptcy or reorganization of the Maker; or (iii) any court order appointing any receiver or trustee of or for Maker or for realize upon all or any substantial portion part of the Maker's property; Collateral or (iv) for any writ delay in doing so, nor shall the Pledgee be under any obligation to sell or warrant otherwise dispose of attachment any Collateral upon the request of the Pledgor or any similar process issued by other person or to take any court against all other action whatsoever with regard to the Collateral or any substantial portion of the Maker's property (unless such court orders, writs, or warrants as identified in subpoints (i) to (iv) of this paragraph are vacated or stayed or released or bonded within 60 days after their entry)part thereof.
Appears in 2 contracts
Sources: Pledge Agreement (Extech Corp), Pledge Agreement (Dcap Group Inc)
Default. Upon the occurrence or during the continuance of any Any one or more of the events listed below, Holder or the holder following occurrences shall constitute an "Event of Default" under this Unsecured Revolving Credit Note may forthwith or at any time thereafter during the continuance of any such event, by notice in writing to the Maker, declare the unpaid balance of the principal of this Note to be immediately due and payable, and the principal shall become and provided that Lender shall be immediately due and payable without presentation, demand, protest, required to give written notice of protest, or other notice of dishonor, all of which are hereby expressly waived by Maker, with full knowledge of the effect of such waiver. The events deemed as defaults shall include without limitation the followingsame:
(a) Maker's The failure of Borrower to pay repay all outstanding Principal on or before the principal and interest of this Note Maturity Date or any portion thereof when the same shall become due and payable (whether at maturity as herein expressed, by acceleration, or otherwise) unless cured within five (5) days after Holder or the holder of this Note delivers to Maker written notice of defaulttimely deliver Shares upon a Conversion;
(b) Maker's filing The failure of Borrower to promptly perform any obligation of Borrower under, a voluntary petition breach of, or the existence of an Event of Default as defined in bankruptcythis Note, or any other note, debt or claim owed by Borrower to Lender; or
(c) 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 filing shall suffer a voluntary petition seeking reorganization; custodian, receiver or filing an answer admitting the jurisdiction trustee for it or substantially all of the court and any material allegations of an involuntary petition filed pursuant to any act of Congress relating to bankruptcy or to any act purporting its property to be amendatory thereofappointed and if appointed without its consent, not be discharged within sixty (60) consecutive days; or making makes an assignment for the benefit of its creditors; or applying suffers proceedings under any law related to bankruptcy, insolvency, liquidation or the reorganization, readjustment or the release of debtors to be instituted against it and if contested by it not dismissed or stayed within sixty (60) consecutive days; if proceedings under any law related to bankruptcy, insolvency, liquidation, or the reorganization, readjustment or the release of debtors is instituted or commenced by or against Borrower; if any order for or consenting relief is entered relating to any of the appointment of any receiver or trustee for Maker or all or any substantial portion foregoing proceedings; if Borrower shall call a meeting of its propertycreditors with a view to arranging a composition or adjustment of its debts; or assigning an agent to liquidate any substantial part of Maker's assets;
(c) The entry of (i) any court order pursuant to if Borrower shall by any act or failure to act indicate its consent to, approval of Congress (or amendment thereof) relating to Maker's bankruptcy or reorganization; or (ii) acquiescence in any court order approving an involuntary petition for the bankruptcy or reorganization of the Maker; or (iii) any court order appointing any receiver or trustee of or for Maker or for all or any substantial portion of the Maker's property; or (iv) any writ or warrant of attachment or any similar process issued by any court against all or any substantial portion of the Maker's property (unless such court orders, writs, or warrants as identified in subpoints (i) to (iv) of this paragraph are vacated or stayed or released or bonded within 60 days after their entry)foregoing.
Appears in 2 contracts
Sources: Convertible Note (VG Life Sciences, Inc.), Convertible Note (VG Life Sciences, Inc.)
Default. Upon a. For the occurrence or during the continuance of any one or more of the events listed below, Holder or the holder purpose of this Note may forthwith or at any time thereafter during the continuance Agreement, an "Event of any such event, by notice in writing to the Maker, declare the unpaid balance of the principal of this Note to be immediately due and payable, and the principal shall become and Default" shall be immediately due and payable without presentation, demand, protest, notice of protest, or other notice of dishonor, all of which are hereby expressly waived by Maker, with full knowledge of the effect of such waiver. The events deemed as defaults shall include without limitation the followingto have occurred:
(a1) Maker's upon the failure by Merchant or Agent to pay the principal perform promptly and interest of this Note fully any material obligation or covenant hereunder or any portion thereof when the same shall become due and payable (whether at maturity as herein expressed, by acceleration, material obligation or otherwise) unless cured within covenant in any document delivered pursuant hereto or any collateral agreement to this Agreement after having received five (5) days after Holder or days' prior written notice, except in the holder case of this Note delivers a nonmonetary default which is incapable of being cured within such notice period and diligently proceeds to Maker written 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, in the case of defaulta default by Merchant, will not adversely affect, in any material way, Agent's ability to conduct the Sale in the manner contemplated herein;
(b2) Maker's filing a voluntary petition in bankruptcy; or filing a voluntary petition seeking reorganization; or filing an answer admitting the jurisdiction if any of the court and warranties or representations made by Merchant or Agent herein proves to be untrue or false in a material way; or
(3) if any material allegations 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 involuntary petition filed pursuant to interruption of the Sale and/or occurrence of an Event of Default resulting from any act or omission of Congress relating to bankruptcy Merchant which prevents Agent from conducting or to completing the Sale at any act purporting to be amendatory thereof; or making an assignment for the benefit of Store as provided by this Agreement, Agent may, at its creditors; or applying for or consenting to the appointment of any receiver or trustee for Maker or all or any substantial portion of its property; or assigning an agent to liquidate any substantial part of Maker's assets;
(c) The entry of option, either (i) any court order pursuant to any act of Congress (or amendment thereofproceed with the Sale at the Store location(s) relating to Maker's bankruptcy or reorganizationaffected; or (ii) any court order approving an involuntary petition for require Merchant, at Merchant's expense, to move the bankruptcy or reorganization of the MakerMerchandise to another reasonably proximate Store designated by Agent; or (iii) any court order appointing any receiver or trustee of or for Maker or for all or any substantial portion notify Merchant as to the termination of the Maker's property; or (iv) any writ or warrant of attachment or any similar process issued by any court against all or any substantial portion of Sale as to the Maker's property (unless such court ordersparticular Store location, writsin which event, or warrants as identified in subpoints Agent shall be made whole and (i) Agent shall be reimbursed for all its out of pocket expenses referable to such Store; and (ivii) 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 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 the entry of an injunction specifically enforcing the terms of this paragraph are vacated Agreement.
c. No right or stayed remedy granted in or released pursuant to this Agreement shall be exclusive of any other right or bonded within 60 days after their entry)remedy so granted or otherwise available. Every such right or remedy shall be cumulative and shall be in addition to every other right or remedy so granted or existing at law or in equity or by statute, or created, granted or existing pursuant to any agreement to which Agent and/or Merchant is or may hereafter become a party.
Appears in 2 contracts
Sources: Agency Agreement (Diy Home Warehouse Inc), Agency Agreement (Diy Home Warehouse Inc)
Default. Upon (a) In the occurrence event that the Pledgor fails to pay to the Pledgee any Obligation when due or during there shall otherwise occur an Event of Default (as defined in the continuance Note) ("Default"), the 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 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 events listed below, Holder or Collateral so sold. The Pledgee shall apply any proceeds from time to time held by it and the holder of this Note may forthwith or at any time thereafter during the continuance net proceeds of any such eventsale or other disposition, by notice after deducting all reasonable costs and expenses of every kind incurred in writing respect thereof or incidental to the Maker, declare the unpaid balance care or safekeeping of any of the principal Collateral or in any way relating to the Collateral or the rights of this Note the Pledgee hereunder, including, without limitation, reasonable attorneys' fees and disbursements of counsel to be immediately due the Pledgee, to the satisfaction in whole or in part of the Obligations, in such order as the Pledgee may elect and payableonly 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 principal shall become and 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 immediately due 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 payable without presentation, demand, protestproper if given at least ten (10) days before such sale or other disposition. In any event, notice of protest, a proposed sale or other notice of dishonor, all of which are hereby expressly waived by Maker, with full knowledge of disposition shall be given at least ten (10) days before such sale or other disposition to the effect of such waiverPledgor and Abraham Weinzimer. The events deemed 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 defaults 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 include without limitation the following:
(a) Maker's failure not be evidence that it has been made in other than a commercially reasonable manner. The Pledgor agrees to pay the principal and interest 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 this Note all or any portion thereof when of the same shall become due Collateral pursuant to this section valid and payable (whether at maturity as herein expressed, by acceleration, or otherwise) unless cured within five (5) days after Holder or the holder binding and in compliance with any and all other applicable requirements of this Note delivers to Maker written notice of default;law.
(b) Maker's filing a voluntary petition in bankruptcy; or filing a voluntary petition seeking reorganization; or filing an answer admitting the jurisdiction The rights of the court and any material allegations of an involuntary petition filed pursuant to any act of Congress relating to bankruptcy Pledgee hereunder shall not be conditioned or to any act purporting to be amendatory thereof; or making an assignment for contingent upon the benefit of its creditors; or applying for or consenting to pursuit by the appointment Pledgee of any receiver right or trustee for Maker remedy against the Pledgor, any other person which may be or become liable in respect of all or any substantial portion 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 property; affiliates or assigning an agent representatives shall be liable for any failure to liquidate any substantial part of Maker's assets;
(c) The entry of (i) any court order pursuant to any act of Congress (demand, collect or amendment thereof) relating to Maker's bankruptcy or reorganization; or (ii) any court order approving an involuntary petition for the bankruptcy or reorganization of the Maker; or (iii) any court order appointing any receiver or trustee of or for Maker or for realize upon all or any substantial portion part of the Maker's property; Collateral or (iv) for any writ delay in doing so, nor shall the Pledgee be under any obligation to sell or warrant otherwise dispose of attachment any Collateral upon the request of the Pledgor or any similar process issued by other person or to take any court against all other action whatsoever with regard to the Collateral or any substantial portion of the Maker's property (unless such court orders, writs, or warrants as identified in subpoints (i) to (iv) of this paragraph are vacated or stayed or released or bonded within 60 days after their entry)part thereof.
Appears in 2 contracts
Sources: Pledge Agreement (Dcap Group Inc), Pledge Agreement (Extech Corp)
Default. Upon 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 occurrence organization, rearrangement, adjustment, liquidation, or during dissolution under any debtor relief laws or bankruptcy laws or an involuntary case or proceeding is commenced against the continuance of Applicant under any one debtor relief laws or more bankruptcy laws; (6) a 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 financial status of the events listed belowApplicant or Guarantor, Holder in the sole opinion of Supplier, becomes impaired in any way. Upon occurrence of an Event of Default, Supplier may (1) 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 holder of this Note may forthwith or at any time thereafter during the continuance of any such event, by notice in writing to the Maker, declare the unpaid balance discretion of the principal Supplier; (4) discontinue shipment of this Note product; and/or (5) discontinue Applicant’s eligibility for discounts. In the event that any check, EFT draft, or pre-authorized payment is returned to be immediately due and payableSupplier uncollected or insufficient, and the principal shall become and gross amount of the invoice or invoices covered by the returned item shall be immediately due and payable without presentationand such purchase shall be ineligible for cash discount unless the return is due to error by Supplier. Supplier may charge up to $35 for processing any check, demand, protest, notice of protestEFT draft, or other notice of dishonor, all of which are hereby expressly waived pre- authorized payment returned uncollected by Maker, with full knowledge of the effect of such waiver. The events deemed as defaults shall include without limitation the following:
(a) Maker's failure to pay the principal and interest of this Note or Applicant’s bank for any portion thereof when the same shall become due and payable (whether at maturity as herein expressed, by acceleration, or otherwise) unless cured within five (5) days after Holder or the holder of this Note delivers to Maker written notice of default;
(b) Maker's filing a voluntary petition in bankruptcy; or filing a voluntary petition seeking reorganization; or filing an answer admitting the jurisdiction of the court and any material allegations of an involuntary petition filed pursuant to any act of Congress relating to bankruptcy or to any act purporting to be amendatory thereof; or making an assignment for the benefit of its creditors; or applying for or consenting to the appointment of any receiver or trustee for Maker or all or any substantial portion of its property; or assigning an agent to liquidate any substantial part of Maker's assets;
(c) The entry of (i) any court order pursuant to any act of Congress (or amendment thereof) relating to Maker's bankruptcy or reorganization; or (ii) any court order approving an involuntary petition for the bankruptcy or reorganization of the Maker; or (iii) any court order appointing any receiver or trustee of or for Maker or for all or any substantial portion of the Maker's property; or (iv) any writ or warrant of attachment or any similar process issued by any court against all or any substantial portion of the Maker's property (unless such court orders, writs, or warrants as identified in subpoints (i) to (iv) of this paragraph are vacated or stayed or released or bonded within 60 days after their entry)reason.
Appears in 2 contracts
Sources: Credit Application and Agreement, Credit Application and Agreement
Default. Upon A. Each of the following shall constitute an "Event of Default" hereunder: (i) the occurrence of an Event of Default under the Loan Agreement; (ii) failure by the Debtor to perform any material obligations under this Agreement or during under any other agreement between the continuance of any one Debtor and the Secured Party or more by the Debtor in favor of the events listed belowSecured Party, Holder time being of the essence (subject, however, to any applicable notice and cure periods); (iii) material falsity in any certificate, statement, representation, warranty or the holder of this Note may forthwith or audit at any time thereafter during furnished by or on behalf of the continuance Debtor or any endorser or guarantor or any other party liable for payment of any such eventall or part of the Indebtedness, by notice pursuant to or in writing connection with this Agreement or otherwise to the MakerSecured Party, declare the unpaid balance of the principal of including warranties in this Note Agreement and including any omission to disclose any substantial contingent or liquidated liabilities required to be immediately due and payable, and the principal shall become and shall be immediately due and payable without presentation, demand, protest, notice of protest, or other notice of dishonor, all of which are hereby expressly waived by Maker, with full knowledge of the effect of such waiver. The events deemed as defaults shall include without limitation the following:
(adisclosed) Maker's failure to pay the principal and interest of this Note or any portion thereof when the same shall become due and payable (whether at maturity as herein expressedmaterial adverse change in facts disclosed by any certificate, by accelerationstatement, representation, warranty or otherwise) unless cured within five (5) days after Holder or the holder of this Note delivers to Maker written notice of default;
(b) Maker's filing a voluntary petition in bankruptcy; or filing a voluntary petition seeking reorganization; or filing an answer admitting the jurisdiction of the court and any material allegations of an involuntary petition filed pursuant to any act of Congress relating to bankruptcy or to any act purporting to be amendatory thereof; or making an assignment for the benefit of its creditors; or applying for or consenting audit furnished to the appointment of any receiver or trustee for Maker or all or any substantial portion of its property; or assigning an agent to liquidate any substantial part of Maker's assets;
(c) The entry of (i) any court order pursuant to any act of Congress (or amendment thereof) relating to Maker's bankruptcy or reorganization; or (ii) any court order approving an involuntary petition for the bankruptcy or reorganization of the Maker; or (iii) any court order appointing any receiver or trustee of or for Maker or for all or any substantial portion of the Maker's propertySecured Party; or (iv) any writ or warrant of attachment or any similar process issued by any court levy against all the Collateral or any substantial portion 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 MakerDebtor's property (unless such court ordersprincipal offices to Jacksonville, writs, Florida shall not be deemed an Event of Default hereunder or warrants as identified in subpoints (i) to (iv) of this paragraph are vacated or stayed or released or bonded within 60 days after their entryunder 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 specified in writing to the 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 condition to the 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. Upon In the occurrence or during event either party should be in default in the continuance ------- performance of any one of its material duties or more obligations under this Agreement, the other party may give notice to the defaulting party specifying the term or condition which is alleged as the basis of the events listed belowdefault. 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, Holder 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 holder terminating party including such rights and remedies as shall from time-to-time be afforded by the Uniform Commercial Code. Any provision of this Note may forthwith or Agreement to the contrary notwithstanding, if, at any time thereafter during the continuance of any such event, by notice in writing to the Maker, declare the unpaid balance of the principal term of this Note to be immediately due and payableAgreement, and 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 principal shall become and shall be immediately due and payable without presentation, demand, protest, notice of protestBankruptcy Act, or other notice of dishonorsimilar act, all of which are hereby expressly waived by Maker, with full knowledge of the effect of such waiver. The events deemed as defaults shall include without limitation the following:
(a) Maker's failure from time to pay the principal and interest of this Note or any portion thereof when the same shall become due and payable (whether at maturity as herein expressed, by acceleration, or otherwise) unless cured within five (5) days after Holder or the holder of this Note delivers to Maker written notice of default;
(b) Maker's filing a voluntary petition in bankruptcytime amended; or filing Seller or Buyer shall make a voluntary petition seeking reorganization; or filing an answer admitting the jurisdiction of the court and any material allegations of an involuntary petition filed pursuant to any act of Congress relating to bankruptcy or to any act purporting to be amendatory thereof; or making an general assignment for the benefit of its creditors; creditors or applying for or consenting consent to the appointment of any a receiver or trustee for Maker or all or any a substantial portion part of its property; or assigning if an agent to liquidate order or decree is entered by any court of competent jurisdiction appointing a receiver for Seller or Buyer or for a substantial part of Makertheir property either with or without their consent, and 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 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 Buyer, Seller may, at its option, declare Buyer to be in breach hereof, terminate this Agreement, refuse to make any further deliveries hereunder and declare the obligations of Buyer for all Product theretofore furnished immediately due and payable; and 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 terminate all of Buyer's assets;
(c) obligations to Seller. The entry exercise of (i) any court order pursuant the rights provided in this Section 21 shall be without prejudice to any act of Congress (legal rights or amendment thereof) relating remedies otherwise available to Maker's bankruptcy or reorganization; or (ii) any court order approving an involuntary petition for the bankruptcy or reorganization of the Maker; or (iii) any court order appointing any receiver or trustee of or for Maker or for all or any substantial portion of the Maker's property; or (iv) any writ or warrant of attachment or any similar process issued by any court against all or any substantial portion of the Maker's property (unless such court orders, writs, or warrants as identified in subpoints (i) to (iv) of this paragraph are vacated or stayed or released or bonded within 60 days after their entry)terminating party.
Appears in 2 contracts
Sources: Basestock Supply Agreement (Appleton Papers Inc/Wi), Basestock Supply Agreement (Paperweight Development Corp)
Default. Upon If any of the occurrence following events occurs and is continuing:
(a) failure by the Borrower to pay in full when due any amount of principal or during interest on the continuance Note; or
(b) failure by the Borrower to perform or observe any of the provisions contained in Section 6; or
(c) failure by the Borrower to perform or observe any of the provisions contained in any other subsection hereof if such failure is not cured within thirty (30) days of the Borrower's knowledge of the failure; or
(d) failure of any one Security Document, for any reason, to be in full force and effect or more any party thereto shall default in the observance or performance of any of the events listed belowcovenants 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 false or misleading in any material respect; or
(f) the Borrower shall default in the payment when due (subject to any applicable grace period), Holder 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 holder Borrower shall be in default (after giving effect to any applicable grace period), or an event of this Note may forthwith default has occurred, under the terms and conditions of the CoBank Loan Documentation or at any time thereafter during other agreement or evidence of other Indebtedness of the continuance Borrower; or
(g) any admission by the Borrower of its inability to pay its debts as they mature, the commencement of 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 same; 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, insolvency, arrangement, reorganization or relief of debtors or similar law to have such eventproceeding dismissed; then the Lender may, by at its election and without demand or notice in writing of any kind, which are hereby expressly waived, refuse to make further advances of the MakerLoan hereunder, declare the unpaid balance of the principal of this any outstanding Note to be and accrued interest thereon immediately due and payable, proceed to collect same, and exercise any and all other rights, powers and remedies given it by this Loan Agreement, the principal shall become and shall be immediately due and payable without presentationNote, demand, protest, notice of protest, the Security Documents or other notice of dishonor, all of which are hereby expressly waived by Maker, with full knowledge of the effect of such waiver. The events deemed as defaults shall include without limitation the following:
(a) Maker's failure to pay the principal and interest of this Note law or any portion thereof when the same shall become due and payable (whether at maturity as herein expressed, by acceleration, or otherwise) unless cured within five (5) days after Holder or the holder of this Note delivers to Maker written notice of default;
(b) Maker's filing a voluntary petition in bankruptcy; or filing a voluntary petition seeking reorganization; or filing an answer admitting the jurisdiction of the court and any material allegations of an involuntary petition filed pursuant to any act of Congress relating to bankruptcy or to any act purporting to be amendatory thereof; or making an assignment for the benefit of its creditors; or applying for or consenting to the appointment of any receiver or trustee for Maker or all or any substantial portion of its property; or assigning an agent to liquidate any substantial part of Maker's assets;
(c) The entry of (i) any court order pursuant to any act of Congress (or amendment thereof) relating to Maker's bankruptcy or reorganization; or (ii) any court order approving an involuntary petition for the bankruptcy or reorganization of the Maker; or (iii) any court order appointing any receiver or trustee of or for Maker or for all or any substantial portion of the Maker's property; or (iv) any writ or warrant of attachment or any similar process issued by any court against all or any substantial portion of the Maker's property (unless such court orders, writs, or warrants as identified in subpoints (i) to (iv) of this paragraph are vacated or stayed or released or bonded within 60 days after their entry)equity.
Appears in 2 contracts
Sources: Loan Agreement (Alliance Farms Cooperative Association), Loan Agreement (Alliance Farms Cooperative Association)
Default. Upon The following shall constitute "Events of Default" and in any such events, Tenant shall be deemed to be in default under the occurrence or during the continuance of any one or more of the events listed below, Holder or the holder terms of this Note may forthwith or at any time thereafter during the continuance of any such event, by notice in writing to the Maker, declare the unpaid balance of the principal of this Note to be immediately due and payable, and the principal shall become Lease and shall be immediately due and payable without presentationsubject to Landlord's remedies as set forth herein:
a. Tenants failure to pay, demandwhen due, protest, notice of protest, any rent or other notice of dishonorpayments due hereunder, all of which are hereby expressly waived by Makerincluding without limitation Additional Rent, with full knowledge 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 effect Premises without prior written consent of such waiver. The events deemed as defaults shall include without limitation the following:
(a) Maker's failure to pay the principal and interest of this Note or any portion thereof when the same shall become due and payable (whether at maturity as herein expressedLandlord, by acceleration, or otherwise) unless cured within five (5) days after Holder or the holder of this Note delivers to Maker written notice of default;
(b) Maker's filing a voluntary petition in bankruptcy; or filing a voluntary petition seeking reorganization; or filing an answer admitting the jurisdiction it being agreed that non-occupation of the court and 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 material allegations 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 filed pursuant to any act of Congress relating to bankruptcy or to any act purporting to be amendatory thereofagainst Tenant; or or
f. Tenants making an assignment for the benefit of its creditors; or
g. Any of the goods, chattels, rights, credits, or applying for effects of Tenant used in or consenting incident to the appointment occupation of the Premises being seized, sequestered, or impounded by virtue of or under the authority of any receiver legal proceedings; or
h. Tenant's interest under this Lease being sold under execution or trustee for Maker other legal process; or
i. Any act or all omission of Tenant which results in the filing of a lien against the Premises; or
j. Any transfer, assignment, subletting or encumbering of 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 in the sole and absolute discretion of Landlord; or
k. Tenant's continued default in the performance or observance of any substantial portion of its property; or assigning an agent to liquidate any substantial part of Maker's assets;
(c) The entry of (i) any court order pursuant to any act of Congress (or amendment thereof) relating to Maker's bankruptcy or reorganization; or (ii) any court order approving an involuntary petition for the bankruptcy or reorganization of the Maker; other covenants or agreements contained in this Lease and not specifically set forth above for a period often (iii10) any court order appointing any receiver or trustee of or for Maker or for all or any substantial portion of the Maker's property; or (iv) any writ or warrant of attachment or any similar process issued by any court against all or any substantial portion of the Maker's property (unless such court orders, writs, or warrants as identified in subpoints (i) to (iv) of this paragraph are vacated or stayed or released or bonded within 60 days after their entry).the date of mailing written notice thereof by Landlord to Tenant
l. Tenant's repeated violation of any covenant or agreement contained in this Lease. "Repeated Violation" shall mean violating any covenant or agreement for which written notice of violation was given by Landlord on more than two (2) occasions within a twelve (12) month period
Appears in 2 contracts
Sources: Commercial Office Lease (National Health Partners Inc), Commercial Office Lease (National Health Partners Inc)
Default. 6.1 Upon the occurrence of an Event of Default and during the continuance thereof, the Lenders are hereby authorized and empowered in their discretion to exercise all rights and 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 the 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 each case if such Lender so elects, and to any sale of the Pledged Collateral by the Lenders in accordance with the UCC, other applicable law and this Agreement.
(a) Upon 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 their sole discretion, exercise in respect of the 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 (whether 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 time and place fixed therefor, and such sale may, without further notice, be made at the time and place to which it was so adjourned.
(b) 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 Company Interests may be determined by an independent appraisal of the 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 rely upon such valuation as a basis for determining the value of the Company Interests, and that the cost of such valuation is a commercially reasonable expense of the disposition and shall be 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 UCC, during the continuance of any one or more an Event of Default, the Pledgors shall pay all reasonable out of pocket costs and expenses of every kind of the events listed belowLenders in connection therewith (including, Holder or without limitation, reasonable attorneys’ fees and disbursements, court costs, litigation and other expenses), and after deducting such costs and expenses from the holder proceeds of this Note may forthwith or at sale, the Lenders shall apply any time thereafter during remainder to the continuance payment of the other Obligations and the Borrower shall remain liable for any deficiency. The Pledgors shall be jointly and severally liable for the payment of any such event, by notice in writing to the Maker, declare the unpaid balance costs and expenses of the principal Lenders.
6.3 Because of this Note to be immediately due and payablepresent or future circumstances, and a question may arise under the principal shall become and shall be immediately due and payable without presentationSecurities Act of 1933, demandas amended, protest, notice of protestas now or hereafter in effect, or other notice of dishonor, all of which are hereby expressly waived by Maker, 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 “Federal Securities Laws”) with full knowledge respect to any disposition of the effect Pledged Collateral pledged hereunder. Each Pledgor understands that compliance with the Federal Securities Laws may very strictly limit the course of such waiver. The events deemed as defaults shall include without limitation the following:
(a) Maker's failure to pay the principal and interest of this Note or any portion thereof when the same shall become due and payable (whether at maturity as herein expressed, by acceleration, or otherwise) unless cured within five (5) days after Holder or the holder of this Note delivers to Maker written notice of default;
(b) Maker's filing a voluntary petition in bankruptcy; or filing a voluntary petition seeking reorganization; or filing an answer admitting the jurisdiction conduct of the court and any material allegations Lenders if the Lenders were to attempt to dispose of an involuntary petition filed pursuant to any act of Congress relating to bankruptcy or to any act purporting to be amendatory thereof; or making an assignment for the benefit of its creditors; or applying for or consenting to the appointment of any receiver or trustee for Maker or all or any substantial portion of its property; or assigning an agent to liquidate any substantial part of Maker's assets;
(c) The entry of (i) the Pledged Collateral and may also limit the extent to which or the manner in which any court order pursuant to any act of Congress (or amendment thereof) relating to Maker's bankruptcy or reorganization; or (ii) any court order approving an involuntary petition for the bankruptcy or reorganization subsequent transferee of the Maker; Pledged Collateral or (iii) any court order appointing part thereof may dispose of the same. There may be other legal restrictions or limitations affecting the Lenders in any receiver or trustee attempts to dispose of or for Maker or for all or any substantial portion part of the Maker's property; Pledged Collateral under applicable blue sky or (iv) other state securities laws or similar laws analogous in purpose or effect. To the extent permitted by applicable law, each Pledgor covenants and agrees that the Lenders shall not incur any writ or warrant liability as a result of attachment the sale of the Pledged Collateral or any similar process issued 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 court claims against all the Lenders arising by reason of the fact that the price at which the Pledged Collateral or any substantial portion 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 Maker's property (unless such court ordersObligations, writseven if the Lenders accept the first offer received and do not offer the Pledged Collateral, or warrants as identified in subpoints (i) the case may be, to (iv) of this paragraph are vacated or stayed or released or bonded within 60 days after their entry)more 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. EACH 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. Upon In the occurrence event that any of the Account Parties: (A) Fails to perform any obligation required under this Agreement or during any other agreement or document relating to or evidencing a security interest in any Property granted to Issuer, (B) Fails to make any payment or perform any other obligations under this Agreement, (C) Makes any assignment for the continuance benefit of creditors, (D) Permits or consents to the filing of any voluntary or involuntary petition in bankruptcy by or against any one or more of the events listed belowAccount Parties, Holder (E) Applies for the appointment of a receiver of any of the assets of any of the Account Parties, (F) Becomes insolvent, or the holder of this Note ceases, becomes unable or admits in writing its inability to pay its debts as they mature, or (G) Fails to pay when due, upon acceleration or otherwise, any other obligation to Issuer, Issuer may forthwith at such time or at any time thereafter during the continuance of any such eventdeclare, by without demand or notice in writing to the Makerwhich are hereby expressly waived, declare the unpaid balance of the principal of this Note all obligations and liabilities hereunder to be immediately due and payable, and Issuer is authorized, at its option, to apply (or hold available in escrow) the principal proceeds of any Property or other collateral assets, and any other sums due from Issuer to any one of the Account Parties, to the payment of any and all obligations or liabilities of the Account Parties arising under this Agreement. In any such event Issuer shall become have all of the remedies of a secured party under the Uniform Commercial Code in effect in Ohio and shall be immediately due Issuer is hereby authorized and payable without presentationempowered at its option, demandat any time or times thereafter, protestin accordance with applicable law, notice to sell and assign the whole of protestthe Property, or other notice of dishonor, all of which are hereby expressly waived by Maker, with full knowledge of the effect of such waiver. The events deemed as defaults shall include without limitation the following:
(a) Maker's failure to pay the principal and interest of this Note or any portion part thereof when the same shall become due and payable (whether at maturity as herein expressed, by acceleration, or otherwise) unless cured within five (5) days after Holder or the holder of this Note delivers to Maker written notice of default;
(b) Maker's filing a voluntary petition in bankruptcy; or filing a voluntary petition seeking reorganization; or filing an answer admitting the jurisdiction of the court and any material allegations of an involuntary petition filed then constituting security pursuant to any act of Congress relating the terms hereof, at any public or private sale, at such time and place and upon such terms as Issuer may deem commercially reasonable and with the right in Issuer to bankruptcy be the purchaser at such sale, to the extent not prohibited by law, and, after deducting all legal and other costs and expenses of any sale, to apply the net proceeds of such sale(s) to the payment of all of the Bank Liabilities. The residue, if any, of the proceeds of sale and any other Property constituting security remaining after satisfaction of the Bank Liabilities shall be returned to the respective Account Parties unless otherwise disposed of in accordance with written instructions from the customer’s bank. To the extent not prohibited by law, It is agreed that, with or without notification to any act purporting to be amendatory thereof; or making an assignment for of the benefit of its creditors; or applying for or consenting to the appointment of any receiver or trustee for Maker or all or any substantial portion of its property; or assigning an agent to liquidate any substantial part of Maker's assets;
(c) The entry of (i) any court order pursuant Account Parties, Issuer may exchange, release, surrender, realize upon, release on trust receipt to any act of Congress (them, or amendment thereof) relating otherwise deal with any Property by whomsoever pledged, mortgaged or subjected to Maker's bankruptcy a security interest to secure directly or reorganization; or (ii) indirectly any court order approving an involuntary petition for the bankruptcy or reorganization of the Maker; or (iii) Bank Liabilities and/or any court order appointing any receiver or trustee of or for Maker or for all or any substantial portion of the Maker's property; or (iv) any writ or warrant of attachment or any similar process issued by any court against all or any substantial portion of the Maker's property (unless such court orders, writs, or warrants as identified in subpoints (i) to (iv) of this paragraph are vacated or stayed or released or bonded within 60 days after their entry)offset thereagainst.
Appears in 2 contracts
Sources: Letter of Credit Reimbursement and Security Agreement, Letter of Credit Reimbursement and Security Agreement (Webmedia Brands Inc.)
Default. Upon If an Event of Default shall occur, at the occurrence or during the continuance of any one or more election of the events listed belowBank (but automatically in the case of an Insolvency Default), Holder or the holder of this Note may forthwith or at any time thereafter during the continuance of any such event, by notice in writing to the Maker, declare the unpaid balance of the principal of this Note to be immediately due and payable, and the principal all Obligations shall become and shall be immediately due and payable without presentation, notice or demand, protestexcept with respect to Obligations payable on demand, notice of protest, or other notice of dishonor, all of which are hereby expressly waived by Maker, with full knowledge of the effect of such waiver. The events deemed as defaults shall include without limitation the following:
(a) Maker's failure to pay the principal and interest of this Note or any portion thereof when the same shall become be due and payable (on demand, whether or not an Event of Default has occurred. The Bank is hereby authorized, at maturity its election, after an Event of Default or after demand, without any further demand or notice except to such extent as herein expressednotice may be required by applicable law, by acceleration, to sell or otherwise) unless cured within five (5) days after Holder or the holder otherwise dispose of this Note delivers to Maker written notice of default;
(b) Maker's filing a voluntary petition in bankruptcy; or filing a voluntary petition seeking reorganization; or filing an answer admitting the jurisdiction of the court and any material allegations of an involuntary petition filed pursuant to any act of Congress relating to bankruptcy or to any act purporting to be amendatory thereof; or making an assignment for the benefit of its creditors; or applying for or consenting to the appointment of any receiver or trustee for Maker or all or any substantial portion of the Collateral at public or private sale and/or enforce and collect the Collateral (including, without limitation, the 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 any and all other rights and remedies of a secured party under the Code or which are otherwise accorded to it by applicable law, 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 (10) days’ written notice to the Pledgor, 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 propertyofficers, 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 (public or private) shall be free from any right of redemption, which the Pledgor 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 Pledgor to the Bank shall be returned to the Pledgor or to such other party as may be legally entitled thereto; and if there is a deficiency, the Pledgor shall be responsible for the same, with interest. The Pledgor acknowledges that any exercise by the Bank of the Bank’s rights upon default may be subject to compliance by the Bank with any statute, regulation, ordinance, directive or assigning an agent order 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 its sole discretion at any such sale, may restrict the prospective bidders or purchasers as to liquidate 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 satisfaction of the Bank, that they are purchasing the Collateral for their own account, for investment, and not with a view to the distribution or resale thereof. The proceeds of any substantial part collection or of Maker's assets;
(c) The entry any sale or disposition of (i) any court order the Collateral held pursuant to this Agreement shall be applied towards the Obligations in such order and manner as the Bank determines in its sole discretion, any act of Congress (statute, custom or amendment thereof) relating usage to Maker's bankruptcy or reorganization; or (ii) any court order approving an involuntary petition for the bankruptcy or reorganization of the Maker; or (iii) any court order appointing any receiver or trustee of or for Maker or for all or any substantial portion of the Maker's property; or (iv) any writ or warrant of attachment or any similar process issued by any court against all or any substantial portion of the Maker's property (unless such court orders, writs, or warrants as identified in subpoints (i) to (iv) of this paragraph are vacated or stayed or released or bonded within 60 days after their entry)contrary notwithstanding.
Appears in 2 contracts
Sources: Pledge Agreement (Graham Corp), Pledge Agreement (Infosonics Corp)
Default. Upon (a) In the occurrence event that the Pledgor fails to pay to the Pledgee any Obligation when due or during there shall otherwise occur an Event of Default (as defined in the continuance Note) ("Default"), the 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 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 events listed below, Holder or Collateral so sold. The Pledgee shall apply any proceeds from time to time held by it and the holder of this Note may forthwith or at any time thereafter during the continuance net proceeds of any such eventsale or other disposition, by notice after deducting all reasonable costs and expenses of every kind incurred in writing respect thereof or incidental to the Maker, declare the unpaid balance care or safekeeping of any of the principal Collateral or in any way relating to the Collateral or the rights of this Note the Pledgee hereunder, including, without limitation, reasonable attorneys' fees and disbursements of counsel to be immediately due the Pledgee, to the satisfaction in whole or in part of the Obligations, in such order as the Pledgee may elect and payableonly 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 principal shall become and 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 immediately due 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 payable without presentation, demand, protestproper if given at least ten (10) days before such sale or other disposition. In any event, notice of protest, a proposed sale or other notice of dishonor, all of which are hereby expressly waived by Maker, with full knowledge of disposition shall be given at least ten (10) days before such sale or other disposition to the effect of such waiverPledgor and ▇▇▇▇▇ ▇▇▇▇. The events deemed 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 defaults 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 include without limitation the following:
(a) Maker's failure not be evidence that it has been made in other than a commercially reasonable manner. The Pledgor agrees to pay the principal and interest 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 this Note all or any portion thereof when of the same shall become due Collateral pursuant to this section valid and payable (whether at maturity as herein expressed, by acceleration, or otherwise) unless cured within five (5) days after Holder or the holder binding and in compliance with any and all other applicable requirements of this Note delivers to Maker written notice of default;law.
(b) Maker's filing a voluntary petition in bankruptcy; or filing a voluntary petition seeking reorganization; or filing an answer admitting the jurisdiction The rights of the court and any material allegations of an involuntary petition filed pursuant to any act of Congress relating to bankruptcy Pledgee hereunder shall not be conditioned or to any act purporting to be amendatory thereof; or making an assignment for contingent upon the benefit of its creditors; or applying for or consenting to pursuit by the appointment Pledgee of any receiver right or trustee for Maker remedy against the Pledgor, any other person which may be or become liable in respect of all or any substantial portion 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 property; affiliates or assigning an agent representatives shall be liable for any failure to liquidate any substantial part of Maker's assets;
(c) The entry of (i) any court order pursuant to any act of Congress (demand, collect or amendment thereof) relating to Maker's bankruptcy or reorganization; or (ii) any court order approving an involuntary petition for the bankruptcy or reorganization of the Maker; or (iii) any court order appointing any receiver or trustee of or for Maker or for realize upon all or any substantial portion part of the Maker's property; Collateral or (iv) for any writ delay in doing so, nor shall the Pledgee be under any obligation to sell or warrant otherwise dispose of attachment any Collateral upon the request of the Pledgor or any similar process issued by other person or to take any court against all other action whatsoever with regard to the Collateral or any substantial portion of the Maker's property (unless such court orders, writs, or warrants as identified in subpoints (i) to (iv) of this paragraph are vacated or stayed or released or bonded within 60 days after their entry)part thereof.
Appears in 2 contracts
Sources: Pledge Agreement (Dcap Group Inc), Pledge Agreement (Extech Corp)
Default. Upon the occurrence or during the continuance of any one or more of the events listed below, Holder or the holder of this Note may forthwith or at any time thereafter during the continuance of any such event, by notice in writing to the Maker, declare the unpaid balance of the principal of this Note to be immediately due and payable, and the principal shall become and shall be immediately due and payable without presentation, demand, protest, notice of protest, or other notice of dishonor, all of which are hereby expressly waived by Maker, with full knowledge of the effect of such waiver. The events deemed as defaults shall include without limitation the following:
(a) Maker's failure Whenever a Default exists, the Administrative Agent may exercise from time to pay time any rights and remedies available to it under the principal UCC, under any other applicable law and interest of in the subsections set forth below in this Note or any portion thereof when the same shall become due and payable (whether at maturity as herein expressed, by acceleration, or otherwise) unless cured within five (5) days after Holder or the holder of this Note delivers to Maker written notice of default;Section 7.
(b) Maker's filing Each Debtor agrees, in case of Default, (i) to assemble, at its expense, all its Inventory and other Goods (other than Fixtures) at a voluntary petition 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 in bankruptcy; order to enable the Administrative Agent or filing a voluntary petition seeking reorganization; or filing an answer admitting the jurisdiction its nominee to be registered as owner of the court and Intellectual Property with any material allegations of an involuntary petition filed pursuant to any act of Congress relating to bankruptcy or to any act purporting to be amendatory thereof; or making an assignment for the benefit of its creditors; or applying for or consenting to the appointment of any receiver or trustee for Maker or all or any substantial portion of its property; or assigning an agent to liquidate any substantial part of Maker's assets;competent registration authority.
(c) The entry of Each Debtor hereby agrees and acknowledges that (i) any court order pursuant with respect to any act Collateral that is: (A) perishable or threatens to decline speedily in value or (B) is of Congress a type customarily sold on a recognized market (or amendment thereof) relating to Maker's bankruptcy or reorganizationincluding Investment Property), no notice of disposition need be given; or and (ii) with respect to Collateral not described in clause (i) above, notification sent after default and ten days before any court order approving an involuntary petition for proposed disposition provides notice with a reasonable time before disposition.
(d) Each Debtor 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 bankruptcy or reorganization sale of, such Collateral. Each Debtor further agrees and acknowledges that a disposition (i) made in the usual manner on any recognized market, (ii) at the price current in any recognized market at the time of the Maker; disposition or (iii) in conformity with reasonable commercial practices among dealers in the type of property subject to the disposition shall, in each case, be deemed commercially reasonable.
(e) Any cash proceeds of any court order appointing disposition by the Administrative Agent of any receiver or trustee of or for Maker or for all or any substantial portion of the Maker's property; or (iv) Collateral shall be applied by the Administrative Agent to payment of Costs and Expenses, and thereafter to the payment of any writ or warrant of attachment or any similar process issued by any court against and all or any substantial portion of the Maker's property (Liabilities in such order of application as the Administrative Agent may from time to time elect, and thereafter any surplus will be paid to the applicable 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 such court orders, writs, or warrants as identified in subpoints (i) the failure to do so would be commercially unreasonable and (ivii) of this paragraph are vacated the applicable Debtor has provided the Administrative Agent with a written demand to apply or stayed or released or bonded within 60 days after their entry)pay over such noncash proceeds on such basis.
Appears in 2 contracts
Sources: Credit Agreement (Middleby Corp), Security Agreement (Middleby Corp)
Default. Upon If any of the occurrence or during following events shall occur (each such event being referred to herein as an “Event of Default”): (a) the continuance non-payment of any one principal or more 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 events listed belowfiling by or against any Obligor of a proceeding under the U.S. Bankruptcy Code; (d) the application for appointment of a receiver for, Holder the making of a general assignment for the benefit of creditors of, or the holder 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 the payment or performance of (i) any obligation under this Note or under any deed of trust, mortgage, security agreement or any other document securing payment of this Note, or (ii) 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 may forthwith by any Obligor or any attempt by any Obligor to do so; then, at any time thereafter during the continuance option of any such eventBank, by notice in writing to the Maker, declare the unpaid balance of the principal full amount of this Note and all other obligations and liabilities, direct or contingent, of any Obligor to be immediately due and payable, and the principal shall become and Bank shall be immediately due and payable without presentation, notice or demand, protest, notice . Initial /s/ CH 2 REMEDIES: Bank shall have the remedies of protest, or a secured party under the Louisiana Uniform Commercial Code. In addition to any and all other notice of dishonorremedies 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 sole discretion of Bank. 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 (10) days prior to such action shall constitute reasonable notice to Borrower. If the proceeds of any 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 waived by Maker, with full knowledge of the effect of such waiver. The events deemed as defaults shall include without limitation the following:
waives (a) Maker's failure to pay the principal benefit of appraisement provided for in Art. 2723 of the Louisiana Code of Civil Procedure and interest of this Note or any portion thereof when the same shall become due and payable (whether at maturity as herein expressed, by acceleration, or otherwise) unless cured within five (5) days after Holder or the holder of this Note delivers to Maker written notice of default;
(b) Maker's filing a voluntary petition in bankruptcy; or filing a voluntary petition seeking reorganization; or filing an answer admitting all other rights to notices, demands, appraisements and delays provided by the jurisdiction Louisiana Code of the court and any material allegations of an involuntary petition filed pursuant to any act of Congress relating to bankruptcy or to any act purporting to be amendatory thereof; or making an assignment for the benefit of its creditors; or applying for or consenting to the appointment of any receiver or trustee for Maker or all Civil Procedure or any substantial portion of its property; or assigning an agent to liquidate any substantial part of Maker's assets;
(c) The entry of (i) any court order pursuant to any act of Congress (or amendment thereof) relating to Maker's bankruptcy or reorganization; or (ii) any court order approving an involuntary petition for the bankruptcy or reorganization of the Maker; or (iii) any court order appointing any receiver or trustee of or for Maker or for all or any substantial portion of the Maker's property; or (iv) any writ or warrant of attachment or any similar process issued by any court against all or any substantial portion of the Maker's property (unless such court orders, writs, or warrants as identified in subpoints (i) to (iv) of this paragraph are vacated or stayed or released or bonded within 60 days after their entry)other applicable laws.
Appears in 2 contracts
Sources: Commercial Note (Viemed Healthcare, Inc.), Commercial Note (Viemed Healthcare, Inc.)
Default. Upon If an Event of Default shall occur, at the occurrence or during the continuance of any one or more election of the events listed belowLender, Holder or the holder of this Note may forthwith or at any time thereafter during the continuance of any such event, by notice in writing to the Maker, declare the unpaid balance of the principal of this Note to be immediately due and payable, and the principal all Obligations shall become and shall be immediately due and payable without presentation, notice or demand, protestexcept with respect to Obligations payable on DEMAND, notice of protest, or other notice of dishonor, all of which are hereby expressly waived by Maker, with full knowledge of the effect of such waiver. The events deemed as defaults shall include without limitation the following:
(a) Maker's failure to pay the principal and interest of this Note or any portion thereof when the same shall become be due and payable (on DEMAND, whether or not an Event of Default has occurred. The Lender is hereby authorized, at maturity its election, after an Event of Default or after Demand, without any further demand or notice except to such extent as herein expressednotice may be required by applicable law, to take possession and/or sell or otherwise dispose of all or any of the Collateral at public or private sale; and the Lender may also exercise any and all other rights and remedies of a secured party under the Code or which are otherwise accorded to it by accelerationapplicable law, all as the Lender may determine. If notice of a sale or otherwise) other action by the Lender is required by applicable law, unless cured within the Collateral is perishable or threatens to decline speedily in value or is of a type customarily sold on a recognized market, each Borrower agrees that five (5) days after Holder days' written notice to such Borrower, or the holder shortest period of this Note delivers to Maker written notice of default;
(b) Maker's filing a voluntary petition in bankruptcypermitted by such law, whichever is larger, shall be sufficient notice; or filing a voluntary petition seeking reorganization; or filing an answer admitting and that to the jurisdiction 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 court 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 (public or private) shall be free from any right of redemption, which each Borrower hereby waives and releases. No purchaser at any material allegations 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 Borrowers to the Lender shall be returned to the Borrowers or to such other party as may be legally entitled thereto; and 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 involuntary petition filed pursuant Event of Default or after DEMAND with respect to Obligations payable on DEMAND and each Borrower hereby acknowledges that the Lender is entitled to equitable and injunctive relief to enforce any act of Congress relating to bankruptcy or to any act purporting to be amendatory thereof; or making an assignment for the benefit of its creditors; rights and remedies hereunder or applying for under the Code and each Borrower hereby waives any defense to such equitable or consenting injunctive relief based upon any allegation of the absence of irreparable harm to the appointment of any receiver or trustee for Maker or all or any substantial portion of its property; or assigning an agent to liquidate any substantial part of Maker's assets;
(c) The entry of (i) any court order pursuant to any act of Congress (or amendment thereof) relating to Maker's bankruptcy or reorganization; or (ii) any court order approving an involuntary petition for the bankruptcy or reorganization of the Maker; or (iii) any court order appointing any receiver or trustee of or for Maker or for all or any substantial portion of the Maker's property; or (iv) any writ or warrant of attachment or any similar process issued by any court against all or any substantial portion of the Maker's property (unless such court orders, writs, or warrants as identified in subpoints (i) to (iv) of this paragraph are vacated or stayed or released or bonded within 60 days after their entry)Lender.
Appears in 2 contracts
Sources: Loan and Security Agreement (Fix Corp International Inc), Loan and Security Agreement (Fix Corp International Inc)
Default. Upon (a) In the occurrence event that the Pledgor fails to pay to the Pledgee any Obligation when due or during there shall otherwise occur an Event of Default (as defined in the continuance Note) ("Default"), the 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 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 events listed below, Holder or Collateral so sold. The Pledgee shall apply any proceeds from time to time held by it and the holder of this Note may forthwith or at any time thereafter during the continuance net proceeds of any such eventsale or other disposition, by notice after deducting all reasonable costs and expenses of every kind incurred in writing respect thereof or incidental to the Maker, declare the unpaid balance care or safekeeping of any of the principal Collateral or in any way relating to the Collateral or the rights of this Note the Pledgee hereunder, including, without limitation, reasonable attorneys' fees and disbursements of counsel to be immediately due the Pledgee, to the satisfaction in whole or in part of the Obligations, in such order as the Pledgee may elect and payableonly 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 principal shall become and 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 immediately due 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 payable without presentation, demand, protestproper if given at least ten (10) days before such sale or other disposition. In any event, notice of protest, a proposed sale or other notice 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 dishonorany sale or other disposition of the Collateral are insufficient to pay all of the Obligations and any and all costs and expenses of every kind incurred by the Pledgee with respect to the collection of such deficiency, including, without limitation, all reasonable fees and disbursements of which are hereby expressly waived any attorneys employed by Maker, with full knowledge of the effect of such waiverPledgee. The events deemed 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 defaults 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 include without limitation the following:
(a) Maker's failure not be evidence that it has been made in other than a commercially reasonable manner. The Pledgor agrees to pay the principal and interest 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 this Note all or any portion thereof when of the same shall become due Collateral pursuant to this section valid and payable (whether at maturity as herein expressed, by acceleration, or otherwise) unless cured within five (5) days after Holder or the holder binding and in compliance with any and all other applicable requirements of this Note delivers to Maker written notice of default;law.
(b) Maker's filing a voluntary petition in bankruptcy; or filing a voluntary petition seeking reorganization; or filing an answer admitting the jurisdiction The rights of the court and any material allegations of an involuntary petition filed pursuant to any act of Congress relating to bankruptcy Pledgee hereunder shall not be conditioned or to any act purporting to be amendatory thereof; or making an assignment for contingent upon the benefit of its creditors; or applying for or consenting to pursuit by the appointment Pledgee of any receiver right or trustee for Maker remedy against the Pledgor, any other person which may be or become liable in respect of all or any substantial portion 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 property; affiliates or assigning an agent representatives shall be liable for any failure to liquidate any substantial part of Maker's assets;
(c) The entry of (i) any court order pursuant to any act of Congress (demand, collect or amendment thereof) relating to Maker's bankruptcy or reorganization; or (ii) any court order approving an involuntary petition for the bankruptcy or reorganization of the Maker; or (iii) any court order appointing any receiver or trustee of or for Maker or for realize upon all or any substantial portion part of the Maker's property; Collateral or (iv) for any writ delay in doing so, nor shall the Pledgee be under any obligation to sell or warrant otherwise dispose of attachment any Collateral upon the request of the Pledgor or any similar process issued by other person or to take any court against all other action whatsoever with regard to the Collateral or any substantial portion of the Maker's property (unless such court orders, writs, or warrants as identified in subpoints (i) to (iv) of this paragraph are vacated or stayed or released or bonded within 60 days after their entry)part thereof.
Appears in 2 contracts
Sources: Pledge Agreement (Extech Corp), Pledge Agreement (Dcap Group Inc)
Default. Upon Notwithstanding any other provision of this Agreement, the occurrence or during the continuance of any one or more of the following events listed below, Holder or conditions will also constitute a default (the holder of “Default”) under this Note may forthwith or at any time thereafter during Agreement by the continuance of any such event, by notice in writing to the Maker, declare the unpaid balance of the principal of this Note to be immediately due and payable, and the principal shall become and shall be immediately due and payable without presentation, demand, protest, notice of protest, or other notice of dishonor, all of which are hereby expressly waived by Maker, with full knowledge of the effect of such waiver. The events deemed as defaults shall include without limitation the followingBorrower:
(a) Maker's failure the Borrower does not observe or perform any of the Borrower’s obligations under this Agreement and shall fail to pay the principal and interest of this Note or any portion thereof when the same shall become due and payable (whether at maturity as herein expressed, by acceleration, or otherwise) unless cured cure such default within five (5) 30 calendar days after Holder or receipt of notice thereof in writing by the holder of this Note delivers to Maker written notice of defaultBorrower from a Lender;
(b) Maker's filing any representation, warranty, covenant or statement made by or on behalf of the Borrower to a Lender is untrue in any material respect at the time when or as of which it was made;
(c) the Borrower ceases or threatens to cease to carry on in the normal course the Borrower’s business or any material part thereof;
(d) 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 petition case under any applicable bankruptcy, insolvency or other similar law now or hereafter in bankruptcy; effect, shall consent to the entry of any order for relief in an involuntary case under any such law or filing shall consent to the appointment of or taking possession by a voluntary petition seeking reorganization; receiver, liquidator, assignee, custodian, trustee, sequestrator (or filing an answer admitting the jurisdiction other similar official) of the court and Borrower or for any material allegations substantial part of an involuntary petition filed pursuant to any act of Congress relating to bankruptcy the Borrower’s property, or to any act purporting to be amendatory thereof; or making an shall make a general assignment for the benefit of its creditors; , or applying for shall fail generally to pay the Borrower’s debts as they become due, or consenting to the appointment shall take any action in furtherance of any receiver or trustee for Maker or all or any substantial portion of its propertythe foregoing; or assigning an agent to liquidate any substantial part of Maker's assets;or
(cf) The entry of (i) the Borrower defaults under any court order pursuant material contract to which it is a party or under any act of Congress (loan or amendment thereof) relating other financing contract or agreement to Maker's bankruptcy or reorganization; or (ii) any court order approving an involuntary petition for the bankruptcy or reorganization of the Maker; or (iii) any court order appointing any receiver or trustee of or for Maker or for all or any substantial portion of the Maker's property; or (iv) any writ or warrant of attachment or any similar process issued by any court against all or any substantial portion of the Maker's property (unless such court orders, writs, or warrants as identified in subpoints (i) to (iv) of this paragraph are vacated or stayed or released or bonded within 60 days after their entry)which it is a party.
Appears in 2 contracts
Sources: Securities Purchase Agreement (Tapimmune Inc), Securities Purchase Agreement (Tapimmune Inc)
Default. Upon (a) Any of the following shall constitute an event of default ("Event of Default"): (i) non-payment when due whether by acceleration or otherwise of the principal of or interest on any Indebtedness, time being of the essence, or failure by the Debtor to perform any obligations under this Agreement or under any other agreement between the Debtor and Secured Party; (ii) death or incompetency of the 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 or during the continuance of any one event described in paragraph 4(a)(ii), (iii) or more (iv) hereof with respect to any indorser or guarantor or any party liable for payment of the events listed belowany Indebtedness; or (vi) material falsity in any certificate, Holder statement, representation, warranty or the holder of this Note may forthwith or audit at any time thereafter during furnished to the continuance Secured Party by or on behalf of the Debtor or any indorser or guarantor or any other party liable for payment of any such eventIndebtedness, 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) The Secured Party may declare all or part of the 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 Indebtedness or the performance of the Debtor's obligations under this Agreement or any other agreement now or hereafter in effect between the Debtor and the Secured Party is impaired. This paragraph is not intended to affect any rights of the Secured Party with respect to any Indebtedness which may now or hereafter be payable on demand.
(c) Upon the happening 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 from time to time in effect. 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 specified in writing to the MakerSecured 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 Security Agreement, declare the unpaid balance of the principal of this Note to be immediately due realizing upon any Collateral and payablecollecting any Indebtedness (including reasonable attorney's fees) whether suit is brought or not and whether incurred in connection with collection, and the principal shall become trial, appeal or otherwise, and shall be immediately due and payable without presentation, demand, protest, notice liable for any deficiencies in the event the proceeds of protest, or other notice of dishonor, all of which are hereby expressly waived by Maker, with full knowledge disposition of the effect of such waiver. The events deemed as defaults shall include without limitation Collateral does not satisfy the following:
(a) Maker's failure to pay the principal and interest of this Note or any portion thereof when the same shall become due and payable (whether at maturity as herein expressed, by acceleration, or otherwise) unless cured within five (5) days after Holder or the holder of this Note delivers to Maker written notice of default;
(b) Maker's filing a voluntary petition Indebtedness in bankruptcy; or filing a voluntary petition seeking reorganization; or filing an answer admitting the jurisdiction of the court and any material allegations of an involuntary petition filed pursuant to any act of Congress relating to bankruptcy or to any act purporting to be amendatory thereof; or making an assignment for the benefit of its creditors; or applying for or consenting to the appointment of any receiver or trustee for Maker or all or any substantial portion of its property; or assigning an agent to liquidate any substantial part of Maker's assets;
(c) The entry of (i) any court order pursuant to any act of Congress (or amendment thereof) relating to Maker's bankruptcy or reorganization; or (ii) any court order approving an involuntary petition for the bankruptcy or reorganization of the Maker; or (iii) any court order appointing any receiver or trustee of or for Maker or for all or any substantial portion of the Maker's property; or (iv) any writ or warrant of attachment or any similar process issued by any court against all or any substantial portion of the Maker's property (unless such court orders, writs, or warrants as identified in subpoints (i) to (iv) of this paragraph are vacated or stayed or released or bonded within 60 days after their entry)full.
Appears in 2 contracts
Sources: Security Agreement (Megamedia Networks Inc), Security Agreement (Megamedia Networks Inc)
Default. Upon the occurrence or during the continuance of any one or more of the events listed below, Holder or the holder of this Note may forthwith or at any time thereafter during the continuance of any such event, by notice in writing to the Maker, declare the unpaid balance of the principal of this Note to be immediately due and payable, and the principal shall become and The following shall be immediately due and payable without presentation, demand, protest, notice deemed an event of protest, or other notice of dishonor, all of which are hereby expressly waived by Maker, with full knowledge of the effect of such waiver. The events deemed as defaults shall include without limitation the followingdefault:
(a) Maker's failure Borrower fails to make timely payment to Lender;
(b) Borrower uses any fund for purposes contrary to the stated use of proceeds;
(c) If any of Borrower’s representation is untrue, or 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 a guarantor 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
(h) 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 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 principal and interest of this Note or any portion thereof when the same shall become due and payable (whether at maturity as herein expressed, by acceleration, or otherwise) unless cured within five (5) days after Holder or the holder of this Note delivers to Maker written notice event of default;
(bg) Maker's filing a voluntary petition To apply any funds held in bankruptcy; Borrower’s account with Lender or filing a voluntary petition seeking reorganization; any Bank of China related entity toward payment of all or filing an answer admitting part of Borrower’s obligations under this agreement, with notice to Borrower prior to or after the jurisdiction taking of such action by Lender, and the court and value of any material allegations property held in such account shall be determined by Lender at the time of an involuntary petition filed pursuant to any act of Congress relating to bankruptcy or to any act purporting to be amendatory thereof; or making an assignment for the benefit of seizure;
(h) To exercise its creditors; or applying for or consenting rights with respect to the appointment of any receiver or trustee for Maker or all or any substantial portion of its property; or assigning an agent to liquidate any substantial part of Maker's pledged assets;
(c) The entry of (i) To require the guarantors to perform their obligations under the guaranty agreements; or
(j) To take any court order pursuant to any act of Congress (or amendment thereof) relating to Maker's bankruptcy or reorganization; or (ii) any court order approving an involuntary petition for the bankruptcy or reorganization of the Maker; or (iii) any court order appointing any receiver or trustee of or for Maker or for all or any substantial portion of the Maker's property; or (iv) any writ or warrant of attachment or any similar process issued by any court against all or any substantial portion of the Maker's property (unless such court orders, writs, or warrants other actions as identified in subpoints (i) to (iv) of this paragraph are vacated or stayed or released or bonded within 60 days after their entry)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. Upon If Pledgor (a) defaults in the occurrence or during the continuance of any one or more of the events listed below, Holder or the holder of this Note may forthwith or at any time thereafter during the continuance of any such event, by notice in writing to the Maker, declare the unpaid balance payment of the principal of this under the Note to be immediately when it becomes due and payable, and the principal shall become and shall be immediately due and payable without presentation, (whether upon demand, protest, notice of protest, or other notice of dishonor, all of which are hereby expressly waived by Maker, with full knowledge of the effect of such waiver. The events deemed as defaults shall include without limitation the following:
(a) Maker's failure to pay the principal and interest of this Note or any portion thereof when the same shall become due and payable (whether at maturity as herein expressed, by acceleration, acceleration or otherwise) unless cured within or any other event of default under the Note or this Agreement occurs (including, without limitation, the 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 after Holder or notice to Executive, during which the holder default is not cured) exercise any and all the rights, powers and remedies of this Note delivers to Maker written notice of default;
(b) Maker's filing a voluntary petition in bankruptcy; or filing a voluntary petition seeking reorganization; or filing an answer admitting the jurisdiction any owner of the court Pledged Interest (including the right to vote the Pledged Interest and receive any material allegations 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 an involuntary petition filed pursuant to any act of Congress relating to bankruptcy New York or to any act purporting to be amendatory thereof; or making an assignment for the benefit of its creditors; or applying for or consenting otherwise available to the appointment Company under applicable law. Without limiting the foregoing, after the occurrence of any receiver or trustee for Maker or and during the continuance of a default, the Company is authorized to sell, assign and deliver at its discretion, from time to time, all or any substantial portion of its property; or assigning an agent to liquidate any substantial part of Maker's assets;
(c) The entry of (i) the Collateral at any court order pursuant private sale or public auction, on not less than ten 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 act of Congress (such sale or amendment thereof) relating to Maker's bankruptcy assignment. At any such sale or reorganization; auction, the Company may bid for, and become the purchaser of, the whole or (ii) any court order approving an involuntary petition for the bankruptcy or reorganization part of the MakerPledged 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); or (iii) any court order appointing any receiver or trustee of or for Maker or for all or any substantial portion provided that after payment in full of the Maker's property; or (iv) any writ or warrant of attachment or any similar process issued indebtedness evidenced by any court against all or any substantial portion the Note, the balance of the Maker's property proceeds of sale then remaining shall be paid to Pledgor and Pledgor shall be entitled to the return of any of the Pledged Interest remaining in the hands of the Company. Pledgor shall be liable for any deficiency (unless 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 Company to collect such court orders, writs, or warrants as identified in subpoints (i) to (iv) of this paragraph are vacated or stayed or released or bonded within 60 days after their entry)deficiency.
Appears in 2 contracts
Sources: Employment Agreement (Maxxim Medical Inc), Employment Agreement (Maxxim Medical Inc)
Default. Upon the occurrence or during the continuance of any one or more Each of the following events listed below, Holder or the holder of this Note may forthwith or at any time thereafter during the continuance of any such event, by notice in writing to the Maker, declare the unpaid balance of the principal of this Note to be immediately due and payable, and the principal shall become and shall be immediately due and payable without presentation, demand, protest, notice an “Event of protest, or other notice of dishonor, all of which are hereby expressly waived by Maker, with full knowledge of the effect of such waiver. The events deemed as defaults shall include without limitation the followingDefault” hereunder:
(a) Maker's failure to pay The Company commits a material breach of the principal and interest of this Note representations, warranties or any portion thereof when covenants in the same shall become due and payable (whether at maturity as herein expressed, by acceleration, or otherwise) unless Purchase Agreement which is not cured within five (5) 5 calendar days after Holder or notice thereof from the holder of this Note delivers to Maker written notice of defaultInvestor;
(b) Maker's filing a voluntary petition in bankruptcy; or filing a voluntary petition seeking reorganization; or filing an answer admitting The Company’s failure to pay all unpaid principal and accrued interest outstanding under this Note on the jurisdiction of the court and any material allegations of an involuntary petition filed pursuant to any act of Congress relating to bankruptcy or to any act purporting to be amendatory thereof; or making an assignment for the benefit of its creditors; or applying for or consenting to the appointment of any receiver or trustee for Maker or all or any substantial portion of its property; or assigning an agent to liquidate any substantial part of Maker's assetsMaturity Date;
(c) The entry voluntary dissolution or liquidation of the Company;
(id) any court order pursuant The Company’s voluntary cessation of business operations;
(e) The Company’s closing of an Acquisition or Asset Transfer (each as defined in the Company’s Amended and Restated Articles of Incorporation (the “Articles”)) (except that an Acquisition or Asset Transfer shall not include a reincorporation of the Company solely to effect a change of domicile of the Company);
(f) The occurrence of an event of default related to any act indebtedness of Congress the Company which is not cured within 15 calendar days;
(g) The Company files a petition or amendment thereofaction for relief under any bankruptcy, insolvency or moratorium law or any other law for the relief of, or relating to, debtors, now or hereafter in effect, or makes any assignment for the benefit of creditors or takes any action in furtherance of any of the foregoing; or
(h) relating to Maker's bankruptcy or reorganization; or (ii) any court order approving an An involuntary petition for is filed against the bankruptcy or reorganization of the Maker; or (iii) any court order appointing any receiver or trustee of or for Maker or for all or any substantial portion of the Maker's property; or (iv) any writ or warrant of attachment or any similar process issued by any court against all or any substantial portion of the Maker's property Company (unless such court orders, writspetition is dismissed or discharged within 60 days) under any bankruptcy statute now or hereafter in effect, or warrants as identified a custodian, receiver, trustee, assignee for the benefit of creditors (or other similar official) is appointed to take possession, custody or control of any property of the Company. Upon the occurrence of an Event of Default, all unpaid principal, accrued interest and other amounts owing hereunder shall, at the option of the Investor, and, in subpoints (i) the case of an Event of Default pursuant to (ivg) of this paragraph are vacated or stayed (h) above, automatically, be immediately due, payable and collectible by the Investor pursuant to applicable law. Subject to the provisions hereof, the Investor shall have all rights and may exercise any remedies available to it under law, successively or released or bonded within 60 days after their entry)concurrently.
Appears in 2 contracts
Sources: Convertible Promissory Note (Biocept Inc), Promissory Note (Biocept Inc)
Default. Upon In the occurrence or during the continuance of event (each a "Default") of: (i) failure by Customer to perform any one or more of the events listed below, Holder or the holder of this Note may forthwith or at any time thereafter during the continuance of any such event, by notice in writing to the Maker, declare the unpaid balance of the principal of this Note to be immediately due and payable, and the principal shall become and shall be immediately due and payable without presentation, demand, protest, notice of protest, or other notice of dishonor, all of which are hereby expressly waived by Maker, with full knowledge of the effect of such waiver. The events deemed as defaults shall include without limitation the following:
obligation (a) Maker's under this Agreement, including, without limitation, the failure to pay maintain Adequate Margin in the principal and interest of this Note or any portion thereof when the same shall become due and payable (whether at maturity Special Custody Account as herein expressed, by accelerationrequired, or otherwise) unless cured within five (5) days after Holder or the holder of this Note delivers to Maker written notice of default;
(b) Maker's filing under the Margin Agreement, including, without limitation, the failure to return to Broker, in a voluntary petition timely manner (as specified in bankruptcy; the Margin Agreement and/or the Margin Rules) identical securities to the ones previously borrowed from or filing through Broker by Customer to conduct a voluntary petition seeking reorganization; Short Sale (whether or filing an answer admitting not Customer has received notice of such recall, provided that the jurisdiction Broker has complied with the terms of the court Margin Agreement and any material allegations of an involuntary petition filed pursuant to any act of Congress relating to bankruptcy or to any act purporting to be amendatory thereofthe Margin Rules); or making an assignment for the benefit of its creditors; or applying for or consenting to the appointment of any receiver or trustee for Maker or all or any substantial portion of its property; or assigning an agent to liquidate any substantial part of Maker's assets;
(c) The entry of (i) any court order pursuant to any act of Congress (or amendment thereof) relating to Maker's bankruptcy or reorganization; or (ii) material breach by Customer of any court order approving an involuntary petition for the bankruptcy of its representations, warranties or reorganization of the Makercovenants contained in Section 8 hereof; or (iii) Customer's Insolvency, then, upon any court order appointing such Default, Broker shall have the right to:
(1) Effect a Closing Transaction for or a buy-in of any receiver Securities.
(2) Remove any Collateral or trustee 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 for Maker or for all nominee (not including Custodian) or any substantial portion 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 deemed 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 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 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 Maker's property; NYUCC) or otherwise available to the Broker under applicable law. Broker shall not sell any Collateral or other assets held in 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 (iv2) through (5) above, and Broker shall not be entitled to instruct Custodian to transfer any writ Collateral or warrant of attachment other assets in the Special Custody Account to Broker or any similar process issued 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 other assets free of payment to Broker. Custodian shall also provide prompt telephone notice to Customer of any receipt by any court against all 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 any substantial portion purchase of Collateral or other assets may be made according to Broker's judgment and may be made at Broker's discretion, on the Maker's property (unless principal exchange or other market on which such court orders, writsCollateral or other assets normally trades, or warrants as identified in subpoints (i) to (iv) of this paragraph are vacated the event such principal exchange or stayed market is closed, in a manner commercially reasonable for selling such Collateral or released or bonded within 60 days after their entry)other assets.
Appears in 2 contracts
Sources: Special Custody Account Agreement (Hillview Investment Trust Ii), Special Custody Account Agreement (Hillview Investment Trust Ii)
Default. Upon the occurrence or during the continuance of any one or more of the The following events listed below, Holder or the holder of this Note may forthwith or at any time thereafter during the continuance of any such event, by notice in writing to the Maker, declare the unpaid balance of the principal of this Note to be immediately due and payable, and the principal shall become and shall be immediately due and payable without presentation, demand, protest, notice considered an "Event of protest, or other notice of dishonor, all of which are hereby expressly waived by Maker, with full knowledge of the effect of such waiver. The events deemed as defaults shall include without limitation the followingDefault":
(ai) Maker's failure Merchant becomes subject to pay the principal and interest of this Note any voluntary or any portion thereof when the same shall become due and payable (whether at maturity as herein expressedinvoluntary bankruptcy, by accelerationinsolvency, reorganization or liquidation proceeding, a receiver is appointed for Merchant, or otherwise) unless cured within five (5) days after Holder or the holder of this Note delivers to Maker written notice of default;
(b) Maker's filing a voluntary petition in bankruptcy; or filing a voluntary petition seeking reorganization; or filing an answer admitting the jurisdiction of the court and any material allegations of an involuntary petition filed pursuant to any act of Congress relating to bankruptcy or to any act purporting to be amendatory thereof; or making ▇▇▇▇▇▇▇▇ makes an assignment for the benefit of creditors, or admits its creditorsinability to pay its debts as they become due; or applying for or consenting to the appointment of any receiver or trustee for Maker or all or any substantial portion of its property; or assigning an agent to liquidate any substantial part of Maker's assets;or
(c) The entry of (i) any court order pursuant to any act of Congress (or amendment thereof) relating to Maker's bankruptcy or reorganization; or (ii) any court order approving an involuntary petition for Merchant fails to pay or reimburse the bankruptcy fees, expenses or reorganization of the Makercharges referenced herein when they become due; or or
(iii) Merchant is in default of any court order appointing any receiver terms or trustee conditions of this Agreement whether by reason of its own action or for Maker inaction or for all or any substantial portion that of the Maker's propertyanother; or or
(iv) Processor reasonably believes that there has been a material deterioration in Merchant's financial condition; or
(v) any writ standby letter of credit, if and as may be required pursuant to Section 20, will be cancelled, will not be renewed, or warrant 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 attachment 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 similar process issued time thereafter terminate this Agreement by giving Merchant written notice thereof. However, except in instances where immediate termination is required by any court against all Association or any substantial portion if Member Bank and/or Processor reasonably believe that the Event of the Maker's property Default poses material risk to either of them or involves a violation of applicable law, Merchant will have 30 days following Processor’s notice to cure an Event of Default under Section (unless such court ordersii), writs(iii), or warrants as identified in subpoints (i) to (iv) 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 date on which the then current term of this paragraph 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 Processor for liquidated damages in an amount equal to the average monthly revenue (which does not include interchange and other Association fees) payable to Processor as a result of this Agreement for the three calendar months in which such revenue was the highest during the preceding 12 calendar months, or 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 vacated 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 stayed or released or bonded within 60 days after their entry)expense incurred by Processor as a result of a breach by Merchant, including any damages set forth in any addendum and/or schedule and/or exhibit hereto and including all past due, unpaid and/or future invoices for services rendered by Processor in connection with this Agreement. All such amounts shall be due and payable by Merchant upon demand. Processor shall also have the option to require Merchant to reacquire all outstanding sales transactions acquired by Processor hereunder. In addition to, and not in limitation of the foregoing, Processor may refuse to provide the Services in the event it has not been paid for the Services as provided herein.
Appears in 2 contracts
Sources: Bank Card Merchant Agreement, Bank Card Merchant Agreement Application
Default. 6.1 Upon the occurrence of (herein referred to as an "Event of Default"): (i) any Event of Default (as defined in the Credit Agreement, the other Loan Documents, or during any of the continuance 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 any one or more of the events listed belowrights and remedies granted pursuant to this Agreement or given to Agent under applicable law, Holder as it may be amended from time to time, including but not limited to the right to take possession and sell or otherwise dispose of the holder Securities Collateral, and, 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 Note may forthwith Agreement, other than claims arising from the gross negligence or at any time thereafter during willful misconduct of Agent.
6.2 The net proceeds arising from the continuance disposition of any such event, the Securities Collateral after deducting expenses incurred by notice in writing Agent will be applied to the MakerObligations in the order determined by Agent. If any excess remains after the proceeds have been applied to the Obligations, declare the unpaid balance same will be paid to Pledgor after deducting all costs and expenses of realizing on the Securities Collateral and enforcing the Obligations of Pledgor. If after exhausting all of the principal of this Note Securities Collateral, there should be a deficiency, Pledgor will be liable therefor to be immediately due and payableAgent, and provided, however, that nothing contained herein will obligate Agent to proceed against the principal shall become and shall be immediately due and payable without presentation, demand, protest, notice of protest, or other notice of dishonor, all of which are hereby expressly waived by Maker, with full knowledge of the effect of such waiver. The events deemed as defaults shall include without limitation the following:
(a) Maker's failure Securities Collateral prior to pay the principal and interest of this Note making a claim against Pledgor or any portion thereof when other party obligated under the same shall become due and payable (whether at maturity as herein expressed, by acceleration, Obligations or otherwise) unless cured within five (5) days after Holder or the holder of this Note delivers prior to Maker written notice of default;
(b) Maker's filing a voluntary petition in bankruptcy; or filing a voluntary petition seeking reorganization; or filing an answer admitting the jurisdiction of the court and proceeding against any material allegations of an involuntary petition filed pursuant to any act of Congress relating to bankruptcy or to any act purporting to be amendatory thereof; or making an assignment other collateral for the benefit of its creditors; or applying for or consenting to the appointment of any receiver or trustee for Maker or all or any substantial portion of its property; or assigning an agent to liquidate any substantial part of Maker's assets;
(c) The entry of (i) any court order pursuant to any act of Congress (or amendment thereof) relating to Maker's bankruptcy or reorganization; or (ii) any court order approving an involuntary petition for the bankruptcy or reorganization of the Maker; or (iii) any court order appointing any receiver or trustee of or for Maker or for all or any substantial portion of the Maker's property; or (iv) any writ or warrant of attachment or any similar process issued by any court against all or any substantial portion of the Maker's property (unless such court orders, writs, or warrants as identified in subpoints (i) to (iv) of this paragraph are vacated or stayed or released or bonded within 60 days after their entry)Obligations.
Appears in 2 contracts
Sources: Credit Agreement (Kendle International Inc), Credit Agreement (Kendle International Inc)
Default. Upon the Section 4.1 The occurrence or during the continuance of any one or more “Event of Default” (as described in the events listed belowNote), Holder or including without limitation the holder expiration of this Note may forthwith any applicable grace period (an “Event of Default”), shall, automatically (as described in the Note), or at any time thereafter during the continuance option of any such eventBOK, by notice in writing to make all amounts then remaining unpaid on the Maker, declare the unpaid balance of the principal of this Note to be Obligations immediately due and payable, and the principal liens, encumbrances and security interests evidenced or created hereby shall be subject 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 fixtures included in the Collateral either as real property or as personal property, but not as both, and proceed to exercise such rights as apply to the type of property selected.
Section 4.3 Upon the occurrence and during the continuance of any Event of Default, in addition to 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 the 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 immediately due and payable without presentation, demand, protest, notice deemed conclusive with regard to the exercise by BOK of protest, or other notice any of dishonor, all of which are hereby expressly waived by Maker, its remedies with full knowledge of the effect of such waiver. The events deemed as defaults shall include without limitation the followingrespect to personal property:
(a) Maker's failure to pay the principal and interest of this Note or any portion thereof when the same shall become due and payable (whether at maturity as herein expressedIf notice is required by applicable law, by acceleration, or otherwise) unless cured within five (5) days after Holder or the holder of this Note delivers to Maker days’ prior written notice of default;the time and place of any public sale or of the time after which any private sale or any other intended disposition thereof is to be made shall be reasonable notice to Mortgagor. No such notice is necessary if such property is perishable, threatens to decline speedily in value or is of a type customarily sold on a recognized market.
(b) Maker's filing Without in any way limiting the right and authority of BOK to sell or otherwise dispose of Collateral in a voluntary petition in bankruptcy; commercially reasonable manner, the following, or filing any of them, shall be considered commercially reasonable: (1) BOK may hold a voluntary petition seeking reorganization; or filing an answer admitting the jurisdiction public sale of the court Collateral in Denver, Colorado, or Houston, Texas, after having provided Mortgagor with five days’ notice of such sale and any material allegations after having published notice of such sale by an involuntary petition filed pursuant to any act of Congress relating to bankruptcy advertisement in such publication as may be permitted or to any act purporting required under applicable state law, as BOK determines to be amendatory thereof; or making an assignment appropriate (which advertisement may be placed in the “classified” section), for the benefit a period of its creditors; or applying for or consenting not less than five consecutive issues commencing not more than ten days prior to the appointment sale; (2) the Collateral may be sold for cash; and (3) BOK or any other person owning, directly or indirectly, any interest in any of the Obligations may be a purchaser at such sale.
Section 4.6 Upon the occurrence and during the continuance of any receiver or trustee for Maker or Event of Default, BOK may, with respect to all or any substantial portion of its property; or assigning an agent to liquidate any substantial part of Maker's assets;
(c) The entry of (i) any court order pursuant to any act of Congress (or amendment thereof) relating to Maker's bankruptcy or reorganization; or (ii) any court order approving an involuntary petition for the bankruptcy or reorganization of the Maker; or (iii) any court order appointing any receiver or trustee of or for Maker or for all or any substantial portion of the Maker's property; Collateral, subject to any mandatory requirements of applicable law, sell or (iv) any writ have sold the real property or warrant of attachment interests therein included in the Collateral or any similar process issued part thereof at one or more sales, as an entirety or in parcels, at such place or places and otherwise in such manner and upon such notice as may be required by law or by this Instrument, or, in the absence of any court against all such requirement, as BOK may deem appropriate. BOK may postpone the sale of such real property or interests therein or any substantial portion part thereof by public announcement at the 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 sale 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 Maker's 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 (unless such court ordersin the inverse order of alienation, writsthe exemption of homesteads, the administration of estates of decedents, appraisement, valuation, stay, extension, redemption, subrogation, or warrants 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 as identified a whole or in subpoints such parcels or lots as BOK, in its sole discretion elects, regardless of the manner in which the Collateral may be described.
Section 4.9 All costs and expenses (iincluding reasonable attorneys’ fees, legal expenses, filing fees, and 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 (iv) BOK and shall bear interest at the rate provided in the Note, all of which shall be part of the Obligations.
Section 4.10 The proceeds of any sale of the Collateral or any part thereof made pursuant to this paragraph are vacated or stayed or released or bonded within 60 days after their entry).Article V shall be 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. A. Upon the occurrence or and during the continuance of an Event of Default, the Lender shall have, in addition to any other rights given by law or the rights hereunder or in the 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).
B. 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 of the events listed below, Holder or the holder of this Note may forthwith or at any time thereafter during the continuance private sales of any such eventsecurities to a restricted group of purchasers who will be obligated to agree, by notice in writing among other things, to acquire such securities for their own account, for investment and not with a view to the Makerdistribution or resale thereof. The Lender is authorized, declare the unpaid balance in connection with any sale of the principal of this Note Pledged Collateral, if it deems it advisable so to be immediately due and payabledo, and the principal shall become and shall be immediately due and payable without presentation, demand, protest, notice of protest, or other notice of dishonor, all of which are hereby expressly waived by Maker, with full knowledge of the effect of such waiver. The events deemed as defaults shall include without limitation the following:
(a) Maker's failure to pay the principal and interest of this Note or any portion thereof when the same shall become due and payable (whether at maturity as herein expressed, by acceleration, or otherwise) unless cured within five (5) days after Holder or the holder of this Note delivers to Maker written notice of default;
(b) Maker's filing a voluntary petition in bankruptcy; or filing a voluntary petition seeking reorganization; or filing an answer admitting the jurisdiction of the court and any material allegations of an involuntary petition filed pursuant to any act of Congress relating to bankruptcy or to any act purporting to be amendatory thereof; or making an assignment for the benefit of its creditors; or applying for or consenting to the appointment of any receiver or trustee for Maker or all or any substantial portion of its property; or assigning an agent to liquidate any substantial part of Maker's assets;
(c) The entry of (i) any court order pursuant to any act of Congress (or amendment thereof) relating to Maker's bankruptcy or reorganization; or (ii) any court order approving an involuntary petition for the bankruptcy or reorganization of the Maker; or (iii) any court order appointing any receiver or trustee of or for Maker or for all or any substantial portion of the Maker's property; or (iv) any writ or warrant of attachment or any similar process issued by any court against all or any substantial portion of the Maker's property (unless such court orders, writs, or warrants as identified in subpoints (i) to restrict the prospective bidders on or purchasers of any of the Shares to a limited number of sophisticated investors who will represent and agree that they are purchasing for their own account for investment and not with a view to the distribution or sale of any of such Shares, (ivii) 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 (iii) to impose such other limitations or conditions in connection with any such sale as the Lender deems necessary or advisable in order to comply with said Act or any other law. The Pledgor acknowledges that any such private sale may be at 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, notwithstanding the foregoing, agrees that such private sales shall be deemed to have been made in a commercially reasonable manner and that the 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 law.
D. Upon any sale hereunder the Lender shall have the right to deliver, assign and transfer to the purchaser thereof the Pledged Collateral so sold. Each 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 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 or is or becomes of a type sold on a recognized market, 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 is to be 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 (3) in the case of a private sale, state the day after which such sale may be consummated. Any such public sale shall be held at such time or times within ordinary business hours and at such place or places as the Lender may fix in the notice of such sale. At any such 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 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 the sale, and such sale may be made at any time or place to which the same may be so adjourned. In case of any 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 paragraph are vacated Agreement and sell the Pledged Collateral, or stayed any portion thereof, under a judgment or released decree of a court or bonded within 60 days after their entry)courts of competent jurisdiction.
Appears in 2 contracts
Sources: Amendment Agreement, Amendment Agreement (Qep Co Inc)
Default. Upon The Company shall be in default under this Note upon the occurrence or during the continuance of any one or more of the events listed belowfollowing events:
2.1 The Company fails to timely perform any of its obligations under, Holder or the holder otherwise breaches any covenants or warranties of this Note may forthwith Note;
2.2 Any statement, representation, or at any time thereafter during warranty made by the continuance of any such event, by notice in writing Company or its agents to the Maker, declare the unpaid balance of the principal of this Note Holder shall prove to be immediately due and payable, and the principal have been false or materially misleading when made; and/or,
2.3 The Company shall become and shall be immediately due and payable without presentation, demand, protest, notice of protestinsolvent, or other notice of dishonor, all of which are hereby expressly waived by Maker, with full knowledge of the effect of such waiver. The events deemed unable to meet its obligations as defaults shall include without limitation the following:
(a) Maker's failure to pay the principal and interest of this Note or any portion thereof when the same shall they become due and payable (whether at maturity as herein expressed, by accelerationdue, or otherwise) unless cured within five (5) days after Holder shall file or have filed against it, voluntarily or involuntarily, a petition under the holder of this Note delivers to Maker written notice of default;
(b) Maker's filing a voluntary petition in bankruptcy; United States Bankruptcy Code or filing a voluntary petition seeking reorganization; shall procure or filing an answer admitting the jurisdiction of the court and any material allegations of an involuntary petition filed pursuant to any act of Congress relating to bankruptcy or to any act purporting to be amendatory thereof; or making an assignment for the benefit of its creditors; or applying for or consenting to suffer the appointment of any a receiver or trustee for Maker or all or any substantial portion of its propertyproperties, 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 such event. In the event of default, the Company agrees to pay all of ▇▇▇▇▇▇'s costs of collection, including attorney's fees; or assigning an agent to liquidate any substantial part of Maker's assets;
(c) The entry of (i) any court order pursuant to any act of Congress (or amendment thereof) relating to Maker's bankruptcy or reorganization; or (ii) any court order approving an involuntary petition this shall include legal expenses for the bankruptcy proceedings or reorganization insolvency proceedings (including efforts to modify or vacate any automatic stay or injunction), court costs, appeals, post-judgement collection expenses and 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. No delay or omission on the part of the Maker; any Holder hereof in exercising any right or (iii) option herein given to such Holder shall impair such right or option or be considered as a waiver thereof or acquiescence in any court order appointing default hereunder. The Company hereby waives any receiver or trustee applicable statue of or limitations, presentment, demand for Maker or for all or any substantial portion payment, protest and notice of the Maker's property; or (iv) any writ or warrant of attachment or any similar process issued by any court against all or any substantial portion of the Maker's property (unless such court orders, writs, or warrants as identified in subpoints (i) to (iv) of this paragraph are vacated or stayed or released or bonded within 60 days after their entry)dishonor.
Appears in 2 contracts
Sources: Convertible Note Agreement (Global It Holdings Inc), Convertible Note Agreement (Championlyte Holdings Inc)
Default. Upon In the occurrence event Subcontractor fails to comply, or during the continuance of becomes unable to comply, or with reasonable probability (as determined solely by Contractor) will become unable to comply, with any one or more of the events listed below, Holder or the holder provisions of this Note may forthwith Agreement; or in the event Subcontractor fails at any time thereafter during to 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 continuance work with promptness and 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 such eventfailure, inability or deficiency (as determined solely by Contractor) is not corrected within three (3) days after written demand by Contractor to Subcontractor; Contractor may, in addition to and without prejudice to any other right or remedy, take over and complete the performance of this Agreement, at the expense of Subcontractor; or Contractor may, without taking over the work, immediately and without notice in writing to Subcontractor, furnish the Makernecessary materials and labor through itself or others, declare to remedy the situation, all 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 principal of this Note to be immediately due and payableprime 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 principal 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 become include, without restriction, the cost of materials, labor, subcontracts, purchase orders, transportation, equipment and shall be immediately due expense thereon, supplies, services, insurance, taxes, appliances, tools, utilities, power used or consumed, supervision, administration, job overhead, travel, attorney’s fees, legal and payable without presentationaccounting fees and expenses, demandContractor’s general overhead as allocated to the work and other costs and expenses incurred or sustained by Contractor, protest, notice of protest, or other notice of dishonor, all of which are hereby expressly waived by Maker, with full knowledge plus ten percent (10%) profit on the actual cost of the effect work performed as well as on the amount of such waiver. The events deemed as defaults shall include without limitation the following:
(a) Maker's failure to pay the principal and interest of this Note or any portion thereof when the same shall become due and payable (whether at maturity as herein expressed, claims paid by acceleration, or otherwise) unless cured within five (5) days after Holder or the holder of this Note delivers to Maker written notice of default;
(b) Maker's filing a voluntary petition in bankruptcy; or filing a voluntary petition seeking reorganization; or filing an answer admitting the jurisdiction of the court and any material allegations of an involuntary petition filed pursuant to any act of Congress relating to bankruptcy or to any act purporting to be amendatory thereof; or making an assignment Contractor for the benefit of its creditors; or applying for or consenting to the appointment of any receiver or trustee for Maker or all or any substantial portion of its property; or assigning an agent to liquidate any substantial part of Maker's assets;
(c) The entry of (i) any court order pursuant to any act of Congress (or amendment thereof) relating to Maker's bankruptcy or reorganization; or (ii) any court order approving an involuntary petition for the bankruptcy or reorganization of the Maker; or (iii) any court order appointing any receiver or trustee of Subcontractor or for Maker or which it deems itself liable. In the event the employment of Subcontractor is terminated by Contractor for all or any substantial portion cause under this provision and it is subsequently determined by a court of the Maker's property; or (iv) any writ or warrant of attachment or any similar process issued by any court against all or any substantial portion of the Maker's property (unless competent jurisdiction that such court orderstermination was without cause, writs, or warrants as identified in subpoints (i) to (iv) of this paragraph are vacated or stayed or released or bonded within 60 days after their entry)such termination shall thereupon be deemed a termination for convenience.
Appears in 2 contracts
Default. Upon If Pledgor defaults in the occurrence payment of the principal or during interest under any Note when it becomes due (whether upon demand, acceleration or otherwise) or any other event of default under the continuance Note or this Pledge Agreement occurs (including the bankruptcy or insolvency of Pledgor), after notice from the Company to Pledgor and an opportunity to cure such default for a period of ten days after delivery of such notice, the Company may exercise any and all the rights, powers and remedies of any one or more owner of the events listed belowPledged Shares (including the right to vote the shares and receive dividends and distributions with respect to such shares) 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 Illinois or otherwise available to the Company under applicable law. Without limiting the foregoing, Holder after the aforementioned notice and cure period, the Company is authorized to sell, assign and deliver at its discretion, from time to time, all or any part of the holder of this Note may forthwith or Pledged Shares at any time thereafter during private sale or public auction, on not less than ten days written notice to Pledgor, at such price or prices and upon such terms as the continuance Company may deem advisable. Pledgor shall have no right to redeem the Pledged Shares after any such sale or assignment. At any such sale or auction, the Company may bid for, and become the purchaser of, the whole or any part of the Pledged Shares offered for sale. In case of any such eventsale, by notice in writing after deducting the costs, attorneys' fees and other expenses of sale and delivery, the remaining proceeds of such sale shall be applied to the Makerprincipal of and accrued interest on the Note; provided that after payment in full of the indebtedness evidenced by the Note, declare the unpaid balance of the principal proceeds of this Note to be immediately due and payable, and the principal shall become and sale then remaining shall be immediately due paid to Pledgor and payable without presentation, demand, protest, notice Pledgor shall be entitled to the return of protest, or other notice of dishonor, all of which are hereby expressly waived by Maker, with full knowledge any of the effect Pledged Shares remaining in the hands of such waiverthe Company. The events deemed Except as defaults and to the extent otherwise provided in the Note, Pledgor shall include without limitation be liable for any deficiency if the following:
(a) Maker's failure remaining proceeds are insufficient to pay the principal and interest of this indebtedness under the Note or any portion thereof when in full, including the same shall become due and payable (whether at maturity as herein expressed, by acceleration, or otherwise) unless cured within five (5) days after Holder or the holder of this Note delivers to Maker written notice of default;
(b) Maker's filing a voluntary petition in bankruptcy; or filing a voluntary petition seeking reorganization; or filing an answer admitting the jurisdiction of the court and any material allegations of an involuntary petition filed pursuant to any act of Congress relating to bankruptcy or to any act purporting to be amendatory thereof; or making an assignment for the benefit of its creditors; or applying for or consenting to the appointment fees of any receiver or trustee for Maker or all or any substantial portion of its property; or assigning an agent attorneys employed by the Company to liquidate any substantial part of Maker's assets;
(c) The entry of (i) any court order pursuant to any act of Congress (or amendment thereof) relating to Maker's bankruptcy or reorganization; or (ii) any court order approving an involuntary petition for the bankruptcy or reorganization of the Maker; or (iii) any court order appointing any receiver or trustee of or for Maker or for all or any substantial portion of the Maker's property; or (iv) any writ or warrant of attachment or any similar process issued by any court against all or any substantial portion of the Maker's property (unless collect such court orders, writs, or warrants as identified in subpoints (i) to (iv) of this paragraph are vacated or stayed or released or bonded within 60 days after their entry)deficiency.
Appears in 1 contract
Sources: Executive Stock Purchase Agreement (Knowles Electronics LLC)
Default. Upon the occurrence or during the continuance of If any one or more of the following events listed below, Holder or (hereinafter referred to as "Events of Default") shall occur:
A. If Borrower defaults in the holder of this Note may forthwith or at any time thereafter during the continuance of any such event, by notice in writing to the Maker, declare the unpaid balance payment of the principal of this Note to be immediately Liabilities when due and payable or declared due and payable; or
B. If Borrower defaults in the payment of principal or interest on any other Liability, and including any guarantee of indebtedness of another Person, beyond any period of grace provided with respect thereto or in the principal shall become and shall be immediately due and payable without presentationperformance of any other agreement, demandterm or condition contained in any agreement under which any such Indebtedness is created, protest, notice of protest, or other notice of dishonor, all of which are hereby expressly waived by Maker, with full knowledge of if the effect of such waiver. The events deemed as default is to cause or permit the holder or holders of such Indebtedness (or a trustee on behalf of such holder or holders) to cause such Indebtedness to become due prior to its stated maturity; or
C. If Borrower defaults shall include without limitation in the following:performance or observance of any agreement or covenant contained herein or contained in any of the Other Agreements; or
(a) Maker's failure D. If any representation or warranty made by Borrower herein or in any writing furnished in connection with or pursuant to pay the principal and interest of this Note Loan Agreement or any portion thereof when Other Agreements shall be false or misleading in any material respect on the same shall become due and payable (whether at maturity date as herein expressed, by accelerationof which made; or
E. In the event of the liquidation or dissolution of Borrower, or otherwise) unless cured within five (5) days after Holder suspension of the business of Borrower or the holder filing by Borrower of this Note delivers to Maker written notice of default;
(b) Maker's filing a voluntary petition in bankruptcy; or filing a voluntary petition an answer seeking reorganization, arrangement or readjustment of its debts or for any other relief under the Bankruptcy Code, as amended or under any other insolvency act or law, state or federal, now or hereafter existing, or any other action of Borrower indicating its consent to, approval of, or acquiescence in any such petition or proceeding the application by Borrower for, or the appointment by consent or acquiescence of, a receiver, trustee or custodian of Borrower, for all or substantial part of its property; or filing an answer admitting the jurisdiction making by Borrower of the court and any material allegations of an involuntary petition filed pursuant to any act of Congress relating to bankruptcy or to any act purporting to be amendatory thereof; or making an assignment for the benefit of its creditors; the inability of Borrower or applying the admission by Borrower in writing of its ability to pay its debts as they mature; or
F. In the event of the filing of an involuntary petition against Borrower in bankruptcy seeking reorganization, arrangement, readjustment of its debts or for any other relief under the Bankruptcy Code, as amended, or consenting to under any other insolvency act or law, state or federal, now or hereafter existing; or the involuntary appointment of any receiver a receiver, a trustee or trustee a custodian of Borrower for Maker or all or any a substantial portion part of its property; the issuance of a warrant of attachment, execution or assigning an agent to liquidate a similar process against any substantial part of Maker's assets;the property of Borrower and the continuance of any such foregoing events for sixty (60) days undismissed or undischarged; or
G. If any order is entered in any proceeding against Borrower decreeing the dissolution or split up of Borrower and such order remains in effect more than sixty (c60) The days; or
H. If any report, certificate, financial statement or other instrument delivered to the Lender by or in behalf of Borrower is false or misleading in any material respect at the time given; or
I. If an uninsured final judgment, which with other outstanding uninsured final judgments against Borrower exceeds an aggregate of $100,000 shall be rendered against Borrower and within thirty (30) days after entry thereof such judgment shall not have been discharged or executed thereof stayed pending appeal, or if within thirty (30) days after the expiration of (i) any court order pursuant such stay such judgment shall not have been discharged; then, at any time thereafter, the Lender may, at its option, declare the Notes and all other Liabilities owing by the Borrower to the Lender to be forthwith due and payable, whereupon the Notes and any act other such Liabilities shall forthwith become due and payable, without presentment, demand, protest or other notice of Congress (any kind, all of which are expressly waived, anything contained herein or amendment thereof) relating in the Other Agreements to Maker's bankruptcy or reorganization; or (ii) any court order approving an involuntary petition for the bankruptcy or reorganization of contrary notwithstanding, and in addition the Maker; or (iii) any court order appointing any receiver or trustee of or for Maker or for Lender may immediately proceed to foreclose all or any substantial portion part of its liens on or security interest in the Maker's property; Collateral in the proceeds of such foreclosure against the Liabilities secured thereby in such manner as it shall elect and exercise its rights under the Other Agreements and to do all other things provided for by law or (iv) any writ by this Agreement or warrant of attachment or any similar process issued by any court against all or any substantial portion of the Maker's property (unless such court orders, writs, or warrants as identified in subpoints (i) to (iv) of this paragraph are vacated or stayed or released or bonded within 60 days after their entry)Other Agreements.
Appears in 1 contract
Default. Upon The CLIENT shall be deemed to be in default under this Agreement: (a) if CLIENT defaults in the occurrence payment of the Monthly Base Fee or during other sums due hereunder, or (b) if the continuance CLIENT defaults in the prompt and full performance of any other provision of this Agreement and any such default continues in excess of five (5) business days after written notice by SCESI. Should the CLIENT be in default hereunder, SCESI shall have the option to pursue any one or more of the events listed below, Holder or following remedies without any additional limitation to SCESI in the holder of this Note may forthwith or at any time thereafter during the continuance exercise of any remedy:
(1) SCESI may, if SCESI so elects, without any additional notice of such eventelection or demand to CLIENT, by notice either forthwith terminate this Agreement and the License to use any portion of the SCESI BUSINESS CENTER, and may enter into the Office and take and hold possession of the contents thereof, without releasing the CLIENT, in writing to whole or in part from the MakerCLIENT’s obligation hereunder. In the event of such termination, SCESI may, at its option, declare the unpaid balance entire amount of the principal of this Note to be immediately due and payable, and the principal shall become and shall be immediately due and payable without presentation, demand, protest, notice of protest, or other notice of dishonor, all of Monthly Base Fee which are hereby expressly waived by Maker, with full knowledge of the effect of such waiver. The events deemed as defaults shall include without limitation the following:
(a) Maker's failure to pay the principal and interest of this Note or any portion thereof when the same shall would become due and payable during the remainder of the term, to be due and payable immediately, in which event, CLIENT agrees to pay the same at once.
(whether at maturity as herein expressed2) Pursue any other remedy now or hereafter available to SCESI. SCESI exercise of any right or remedy shall not prevent it from exercising any other right or remedy. CLIENT agrees to pay all costs and expenses, including reasonable attorneys fees expended or incurred by accelerationSCESI in connection with the enforcement of this Agreement, the collection of any sum due hereunder, any action for declaratory relief in any way related to this Agreement, or otherwise) unless cured within five (5) days after Holder or the holder protection of this Note delivers to Maker written notice of default;
(b) Maker's filing a voluntary petition in bankruptcy; or filing a voluntary petition seeking reorganization; or filing an answer admitting the jurisdiction of the court and any material allegations of an involuntary petition filed pursuant to any act of Congress relating to bankruptcy or to any act purporting to be amendatory thereof; or making an assignment for the benefit of its creditors; or applying for or consenting to the appointment preservation of any receiver or trustee for Maker or all or any substantial portion rights of its property; or assigning an agent to liquidate any substantial part of Maker's assets;
(c) The entry of (i) any court order pursuant to any act of Congress (or amendment thereof) relating to Maker's bankruptcy or reorganization; or (ii) any court order approving an involuntary petition for the bankruptcy or reorganization of the Maker; or (iii) any court order appointing any receiver or trustee of or for Maker or for all or any substantial portion of the Maker's property; or (iv) any writ or warrant of attachment or any similar process issued by any court against all or any substantial portion of the Maker's property (unless such court orders, writs, or warrants as identified in subpoints (i) to (iv) of this paragraph are vacated or stayed or released or bonded within 60 days after their entry)SCESI hereunder.
Appears in 1 contract
Default. Upon the occurrence or during the continuance of any one or more of the following events listed below(each an “Event of Default” and collectively, Holder or the holder “Events of this Note Default”), Lender may forthwith or at its option exercise any time thereafter during the continuance of any such event, by notice in writing to the Maker, declare the unpaid balance of the principal of this Note to be immediately due and payable, and the principal shall become and shall be immediately due and payable without presentation, demand, protest, notice of protest, or other notice of dishonor, all of which are hereby expressly waived by Maker, with full knowledge of the effect of such waiver. The events deemed as defaults shall include without limitation the followingits remedies set forth herein:
(a) Maker's failure Borrower fails to pay perform any obligation under this Agreement or the principal and interest of this Note Note, when due, whether on the scheduled due date or any portion thereof when the same shall become due and payable (whether at maturity as herein expressed, by upon acceleration, maturity or otherwise) unless cured within five (5) days after Holder or the holder of this Note delivers to Maker written notice of default;; or
(b) Maker's filing a voluntary petition in bankruptcy; or filing a voluntary petition seeking reorganization; or filing an answer admitting Borrower fails to perform any other obligation under the jurisdiction of Loan Documents, after the court and any material allegations of an involuntary petition filed pursuant to any act of Congress relating to bankruptcy or to any act purporting to be amendatory thereof; or making an assignment for the benefit of its creditors; or applying for or consenting to the appointment expiration of any receiver or trustee for Maker or all or any substantial portion of its propertyapplicable grace, notice and/or cure periods; or assigning an agent to liquidate any substantial part of Maker's assets;or
(c) Borrower and/or Guarantor fail to pay or perform any material obligation, liability or indebtedness to any other party, after the expiration of any applicable grace, notice and/or cure periods; or
(d) A “Default” or an “Event of Default” (as defined in each respective document) occurs (beyond any applicable grace, notice and/or cure periods) under any of the Loan Documents; or
(e) Subject to the last paragraph of Section 6 hereof, if any warranty or representation made by Borrower or Guarantor in this Agreement or pursuant to the terms hereof shall at any time be false or misleading in any material respect, or if Borrower or Guarantor shall fail to keep, observe or perform any of the terms, covenants, representations or warranties contained in this Agreement, the Note, the Mortgage, the Guaranty or any other document given in connection with the Loan, or is unwilling to meet its obligations thereunder; or
(f) The dissolution of, termination of existence of, loss of good standing status by Borrower or Guarantor, or any party to the Loan Documents and the failure by Borrower or Guarantor to reinstate its existence or good standing status promptly after receipt of written notice of the same; or
(g) Borrower becomes the subject of any bankruptcy or other voluntary or involuntary proceeding, in or out of court, for the adjustment of debtor-creditor relationships, and in the event of an involuntary proceeding, Borrower fails to have the same dismissed within sixty (60) days of filing; or
(h) Guarantor becomes the subject of any bankruptcy or other voluntary or involuntary proceeding, in or out of court, for the adjustment of debtor-creditor relationship, and in the event of an involuntary proceeding, Borrower fails to have the same dismissed within sixty (60) days of filing; or
(i) The entry of a judgment against Borrower or Guarantor, in excess of $250,000.00, which is not satisfied by Borrower or Guarantor within thirty (i30) days after the entry of same; or
(j) The seizure or forfeiture of, or the issuance of any court writ of possession, garnishment or attachment, or any turnover order pursuant for any property of Borrower or Guarantor, which Lender deems in good faith to be of a material nature; or
(k) A material alteration in the kind or type of Borrower’s business, or in the financial condition of Guarantor, is made without the prior written consent of Lender; or
(l) Lender determines in good faith, in its sole discretion, that the prospects for payment or performance of Borrower’s obligations under the Loan Documents are materially adversely impaired or there has occurred a material adverse change in the business or prospects of Borrower, financial or otherwise; or
(m) The failure of Borrower to timely satisfy any act of Congress (or amendment thereof) relating to Maker's bankruptcy or reorganization; or (ii) any court order approving an involuntary petition for the bankruptcy or reorganization of the Makercovenants as required in Section 7 above, after the expiration of any applicable grace, notice and/or cure periods; or or
(iiin) The failure of Borrower to timely satisfy any court order appointing any receiver or trustee of or for Maker or for all or any substantial portion of the Maker's propertyrequirements as required in Section 8 (a) through (g) above, after the expiration of any applicable grace, notice and/or cure periods; or or
(ivo) any writ or warrant of attachment or any similar process issued by any court against all or any substantial portion The failure of the Maker's property Borrower’s business to comply with any material law or regulation controlling its operation, and Borrower’s failure to cure the same within thirty (unless such court orders, writs, or warrants as identified in subpoints (i30) to (iv) of this paragraph are vacated or stayed or released or bonded within 60 days after their entry)receipt of written notice of the same; or
(p) The failure of Borrower to maintain the Interest Reserve as required in Section 10 above.
Appears in 1 contract
Sources: Loan Agreement (Optibase LTD)
Default. Upon Whenever a Default shall be existing, JMB may exercise any rights and remedies available to it under the occurrence Restated Promissory Notes or during any other Loan Document (including, without limitation, acceleration of the continuance Liabilities), or under applicable law. In addition, JMB shall have all rights and remedies of a secured party under the Uniform Commercial Code of Illinois (regardless of whether such law or a similar law is in effect in the jurisdiction where such rights and remedies are asserted). Without limiting the foregoing, upon Default JMB may, to the fullest extent permitted by applicable law, without notice, advertisement, hearing or process of law of any one kind, sell any or more all of the events listed belowCollateral, Holder free of all rights and claims of the Borrower therein and thereto, at any public or private sale, and bid for and purchase any or all of the holder Collateral at any such sale. In connection with any sale of the Collateral made by JMB or any other party pursuant to or in accordance with or by reason of this Note may forthwith Assignment, JMB or at any time thereafter during said other party shall have the continuance right, free of any right of redemption of the Borrower (which Borrower hereby waives), to execute and deliver an assignment of the Collateral to any purchaser at such eventsale. The Borrower hereby expressly waives, by notice in writing to the Makerfullest extent permitted by applicable law, declare any and all notices, advertisements, hearings or process of law in connection with the unpaid exercise by JMB of any of its rights and remedies upon Default. If any notification of intended disposition of any of the Collateral is required by law, such notification, if mailed, shall be deemed reasonably and properly given if mailed at least thirty (30) days before such disposition, postage prepaid, addressed to the Borrower either at the address shown above, or such other address of the Borrower within the State of Illinois as the Borrower may indicate to JMB by a written notice complying with Section 10 hereof. All costs and expenses of any kind whatsoever, of collection and enforcement of the Liabilities or any rights or remedies hereunder (including, without limitation, all costs of disposing of the Collateral, together with court costs and reasonable attorneys' fees), or incurred in realizing upon the Collateral or in enforcing this Assignment, shall be paid by the Borrower, shall be deemed to be additional Liabilities secured hereby. Any proceeds of any of the Collateral may be applied by JMB to the payment of expenses in connection with the Collateral, including reasonable attorneys' fees and legal expenses, and any balance of such proceeds shall be applied by JMB toward the principal payment of this Note such of the Liabilities (including the Restated Promissory Notes and the JMB Note), and in such order of application, as JMB may from time to time elect, with the excess, if any, to be immediately due and payable, and the principal shall become and shall be immediately due and payable without presentation, demand, protest, notice of protest, or other notice of dishonor, all of which are hereby expressly waived by Maker, with full knowledge of the effect of such waiver. The events deemed as defaults shall include without limitation the following:
(a) Maker's failure paid to pay the principal and interest of this Note or any portion thereof when the same shall become due and payable (whether at maturity as herein expressed, by acceleration, or otherwise) unless cured within five (5) days after Holder or the holder of this Note delivers to Maker written notice of default;
(b) Maker's filing a voluntary petition in bankruptcy; or filing a voluntary petition seeking reorganization; or filing an answer admitting the jurisdiction of the court and any material allegations of an involuntary petition filed pursuant to any act of Congress relating to bankruptcy or to any act purporting to be amendatory thereof; or making an assignment for the benefit of its creditors; or applying for or consenting to the appointment of any receiver or trustee for Maker or all or any substantial portion of its property; or assigning an agent to liquidate any substantial part of Maker's assets;
(c) The entry of (i) any court order pursuant to any act of Congress (or amendment thereof) relating to Maker's bankruptcy or reorganization; or (ii) any court order approving an involuntary petition for the bankruptcy or reorganization of the Maker; or (iii) any court order appointing any receiver or trustee of or for Maker or for all or any substantial portion of the Maker's property; or (iv) any writ or warrant of attachment or any similar process issued by any court against all or any substantial portion of the Maker's property (unless such court orders, writs, or warrants as identified in subpoints (i) to (iv) of this paragraph are vacated or stayed or released or bonded within 60 days after their entry)Borrower.
Appears in 1 contract
Sources: Security Agreement (JMB 245 Park Avenue Associates LTD)
Default. Upon the occurrence or during the continuance of any one or more of the events listed below, Holder or the holder of this Note may forthwith or at any time thereafter during the continuance of any such event, by notice in writing to the Maker, declare the unpaid balance of the principal of this Note to be immediately due and payable, and the principal shall become and shall be immediately due and payable without presentation, demand, protest, notice of protest, or other notice of dishonor, all of which are hereby expressly waived by Maker, with full knowledge of the effect of such waiver. The events deemed as defaults shall include without limitation the following:
(a) MakerDefault Procedures - Except with regard to payments due on underlying agreements, in the event OWNER believes ICMC to be in default in the observance or performance of any of ICMC's failure covenants, agreements or obligations under this Agreement, OWNER may give written notice of such alleged default, specifying the details of the same. ICMC shall have thirty (30) days following said notice within which to pay the principal and interest of this Note or remedy any portion thereof when the same shall become due and payable (whether at maturity as herein expressed, by accelerationsuch default described therein, or otherwise) unless cured to commence action in good faith to remedy such default or, in the case of Exploration and Maintenance Expenditures, pay to OWNER the amount of Exploration and Maintenance Expenditures required to be incurred under Article V that are the subject of OWNER's written notice. Any such payment shall be deemed to be Exploration and Maintenance Expenditures under Article V. In the case of non-payment of a payment due on an underlying agreement, ICMC shall be deemed to automatically be in default but shall have the right to remedy any such default by making such payment within five ten (510) days after Holder such default. Unless ICMC shall so comply or commence to comply, this Agreement may be terminated at the holder option of this Note delivers to Maker OWNER; provided, however, that in the event ICMC believes that it is not in default, ICMC may give written notice to OWNER within the thirty (30) day period setting forth such fact. OWNER must then secure a final judicial determination (including all appeals concerning the same) by a court of default;
(b) Maker's filing competent jurisdiction that such default in fact exists; provided, however, that OWNER expressly agrees that ICMC shall not be liable for any incidental, consequential or punitive damages claimed by OWNER and no judgment shall award to OWNER indirect, consequential or punitive damages. In the event there is such a voluntary petition in bankruptcy; or filing a voluntary petition seeking reorganization; or filing an answer admitting the jurisdiction of the court and any material allegations of an involuntary petition filed pursuant to any act of Congress relating to bankruptcy or to any act purporting to judicial determination, this Agreement shall not be amendatory thereof; or making an assignment for the benefit of its creditors; or applying for or consenting to the appointment of any receiver or trustee for Maker or all or any substantial portion of its property; or assigning an agent to liquidate any substantial part of Maker's assets;
(c) The entry of terminable by OWNER if ICMC shall (i) any court order pursuant to any act of Congress satisfy such judgment within thirty (30) days following its entry (or amendment thereofif an appeal of such judgment is taken, following its affirmance by the highest court to which such an appeal is made) relating to Maker's bankruptcy or reorganization; or and (ii11) any court order approving an involuntary petition for the bankruptcy or reorganization of the Maker; or (iii) any court order appointing any receiver or trustee of or for Maker or reimburse OWNER for all of its reasonable costs and expenses in obtaining such judgment, including attorney's fees; and provided, further, that OWNER shall not be entitled to terminate this Agreement for any default which by its nature is not retroactively curable if ICMC has used its reasonable efforts to cure such a default to the extent practicable or any substantial portion of the Makerif ICMC has paid OWNER damages for ICMC's property; or (iv) any writ or warrant of attachment or any similar process issued by any court against all or any substantial portion of the Maker's property (unless such court orders, writs, or warrants as identified in subpoints (i) to (iv) of this paragraph default where damages are vacated or stayed or released or bonded within 60 days after their entry)an appropriate remedy.
Appears in 1 contract
Default. Upon If the occurrence or during Obligors default in the continuance of any one or more payment of the events listed belowprincipal or interest under either Note as it becomes due (whether upon demand, Holder acceleration or otherwise) or any other event of default under either Note occurs and has not been remedied within the 10 day period provided in Section 3(a)(i) of such Note (including the bankruptcy or insolvency of either Obligor) (each such occurrence shall be deemed a "Default"), the Company may exercise any and all of the rights, powers and remedies of an owner of the Pledged Securities (including the right to vote the shares and receive dividends and distributions with respect to such shares) 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 the State of New York or otherwise available to the Company under applicable law. Without limiting the foregoing, if a Default occurs, the Company is authorized to sell, assign and deliver at its discretion, from time to time, all or any part of the Pledged Securities at any private sale or public auction, on not less than ten days written notice to the Obligors, at such price or prices and upon such terms as the Company may deem advisable. Neither Obligor shall have any right to redeem the Pledged Securities after any such sale or assignment. At any such sale or auction, the Company or any other holder of this Note Units of the Company may forthwith bid for, and become the purchaser of, the whole or at any time thereafter during part of the continuance Pledged Securities offered for sale. In case of any such eventsale, by notice in writing after deducting the costs, attorneys' fees and other expenses of sale and delivery, the remaining proceeds of such sale shall be applied to the Makerprincipal of and accrued interest on each Note; provided, declare however, that after payment in full of the unpaid indebtedness evidenced by each Note, the balance of the principal proceeds of this Note sale then remaining shall be paid to be immediately due and payable, the Pledgor and the principal shall become and Pledgor shall be immediately due and payable without presentation, demand, protest, notice entitled to the return of protest, or other notice of dishonor, all of which are hereby expressly waived by Maker, with full knowledge any of the effect Pledged Securities remaining in the hands of such waiverthe Company. The events deemed as defaults Obligors shall include without limitation be liable for any deficiency if the following:
(a) Maker's failure remaining proceeds are insufficient to pay the principal and interest of this indebtedness under each Note or any portion thereof when in full, including the same shall become due and payable (whether at maturity as herein expressed, by acceleration, or otherwise) unless cured within five (5) days after Holder or the holder of this Note delivers to Maker written notice of default;
(b) Maker's filing a voluntary petition in bankruptcy; or filing a voluntary petition seeking reorganization; or filing an answer admitting the jurisdiction of the court and any material allegations of an involuntary petition filed pursuant to any act of Congress relating to bankruptcy or to any act purporting to be amendatory thereof; or making an assignment for the benefit of its creditors; or applying for or consenting to the appointment fees of any receiver or trustee for Maker or all or any substantial portion of its property; or assigning an agent attorneys employed by the Company to liquidate any substantial part of Maker's assets;
(c) The entry of (i) any court order pursuant to any act of Congress (or amendment thereof) relating to Maker's bankruptcy or reorganization; or (ii) any court order approving an involuntary petition for the bankruptcy or reorganization of the Maker; or (iii) any court order appointing any receiver or trustee of or for Maker or for all or any substantial portion of the Maker's property; or (iv) any writ or warrant of attachment or any similar process issued by any court against all or any substantial portion of the Maker's property (unless collect such court orders, writs, or warrants as identified in subpoints (i) to (iv) of this paragraph are vacated or stayed or released or bonded within 60 days after their entry)deficiency.
Appears in 1 contract
Sources: Pledge Agreement (Donjoy LLC)
Default. Upon The Agent may declare the occurrence or during the continuance Guarantor in default under this Agreement, and may exercise all of any one or more its rights hereunder and demand payment of the events listed below, Holder or the holder of this Note may forthwith or at any time thereafter during the continuance of any such event, by notice in writing Guarantied Obligations subject to the Maker, declare the unpaid balance of the principal of this Note to be immediately due and payable, and the principal shall become and shall be immediately due and payable without presentation, demand, protest, notice of protest, or other notice of dishonor, all of which are hereby expressly waived by Maker, with full knowledge of the effect of such waiver. The events deemed as defaults shall include without limitation the followingMaximum Guarantied Amount; if:
(a) Maker's failure the Guarantor fails to pay perform any of its obligations under, or meet any covenant of the principal and interest Guarantor provided in, Section 10(c), 10(p) or 10(q) of this Note Agreement, or fails to perform any portion thereof when of its other obligations under this Agreement or meet any other covenant of the same Guarantor provided for herein, which as to any such other obligation or other covenant other than a monetary payment obligation of the Guarantor could be reasonably expected to materially and adversely affect the Guarantor’s ability to perform its payment obligations under this Agreement;
(b) any Event of Default under any other Loan Document occurs and is continuing that involves a payment default by the Borrower or that results in the acceleration of the Guarantied Obligations;
(c) any Indebtedness of the Guarantor in excess of $30,000,000 (whether evidenced by a single facility or in the aggregate by more than one facility) (i) shall be declared to be or shall become due and payable (whether at prior to the stated maturity as herein expressedthereof and, by accelerationif a cure period is applicable thereto, such default shall not be cured within the applicable cure period, or otherwise(ii) unless cured within five (5) days after Holder or shall not be paid as and when the holder of same becomes due and payable, and, in either case, could be reasonably expected to materially and adversely affect the Guarantor’s ability to perform its payment obligations under this Note delivers to Maker written notice of defaultAgreement, and;
(bd) Maker's filing a voluntary petition in the Guarantor becomes the subject of any bankruptcy; , insolvency, arrangement, reorganization, moratorium, or filing a voluntary petition seeking reorganization; other debtor-relief proceeding under any law, whether now existing or filing an answer admitting the jurisdiction of the court and any material allegations of an involuntary petition filed pursuant to any act of Congress relating to bankruptcy hereafter enacted, or to any act purporting to be amendatory thereof; or making an assignment for the benefit of its creditors; or applying for or consenting to upon the appointment of a receiver for, or the attachment, restraint of or making or levying of any receiver order of court or trustee for Maker legal process affecting, the property of such Guarantor; or
(e) any representation, warranty, statement, report or all certificate made or delivered by the Guarantor or any substantial portion officer, director, manager or authorized employee or agent thereof herein or in any other Loan Document or otherwise in writing by such Person in connection with any of the foregoing or in any certificate, report or other statement furnished pursuant to or in connection with any of the foregoing, shall be breached or shall prove to be untrue in any material respect, but only in the event that such breach or falsity could be reasonably expected to materially and adversely affect the Guarantor’s ability to perform its propertypayment obligations under this Agreement; or assigning an agent to liquidate any substantial part of Maker's assets;or
(cf) The entry a Change in Control shall occur (for purposes hereof, a Change in Control shall mean the occurrence of any of the following events after the date hereof: (i) any court order pursuant “person” or “group” (as such terms are used in Sections 13(d) and 14(d) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”)), is or becomes the “beneficial owner” (as defined in Rules 13d-3 and 13d-5 under the Exchange Act), directly, or indirectly, of more than fifty percent (50%) of the aggregate voting power of all classes of Capital Stock of the Guarantor entitled to any act vote generally in an election of Congress (or amendment thereof) relating to Maker's bankruptcy or reorganizationdirectors; or (ii) any court order approving an involuntary petition for the bankruptcy Guarantor is merged with or reorganization into another corporation or another corporation is merged with or into the Guarantor with the effect that immediately after such transaction the stockholders of the MakerGuarantor immediately prior to such transaction hold less than a majority in interest of the total voting power entitled to vote in the election of directors, managers or trustees of the entity surviving the transaction; or (iii) any court order appointing any receiver or trustee to the extent not otherwise then constituting an Event of or for Maker or for Default, all or any substantial portion substantially all of the Maker's property; or (iv) any writ or warrant of attachment or any similar process issued by any court against all or any substantial portion Assets of the Maker's property Guarantor are sold to any person or persons (unless such court ordersas an entirety in one transaction or a series of related transactions) (for purposes hereof, writs“Capital Stock” of any Person means any and all shares, interests, participations or warrants as identified other equivalents in subpoints the equity (i) to (ivhowever designated) of this paragraph are vacated such Person and any rights (other than debt securities convertible into an equity interest), warrants or stayed or released or bonded within 60 days after their entryoptions to acquire an equity interest in such Person).
Appears in 1 contract
Default. Upon the occurrence or during the continuance of If any one or more of the following events listed belowshall occur, Holder or the holder of outstanding principal balance owed under this Note may forthwith or at any time thereafter during the continuance of any such eventStudent Enrollment Agreement, by notice in writing to the Makertogether with accrued interest thereon, declare the unpaid balance of the principal of this Note to be immediately due and payable, and the principal shall become and shall be immediately due and payable without presentation, demand, protest, notice of protest, or other notice of dishonor, all of which are hereby expressly waived by Maker, with full knowledge of the effect of such waiver. The events deemed as defaults shall include without limitation the following:
(a) Maker's failure to pay the principal and interest of this Note or any portion thereof when the same shall become due and payable immediately on demand by the University:
A. If any amount owing under this Student Enrollment Agreement is not paid when due;
B. A default under any provisions of the Student Enrollment Agreement or under any guarantee or other agreement providing security for the payment of this Student Enrollment Agreement;
C. A breach of any representative or warranty under this Student Enrollment Agreement;
D. The liquidation, dissolution, death or incompetency of the maker or endorser or any individual corporation, partnership or other entity guaranteeing or providing security for the payment of this Student Enrollment Agreement;
E. The filing of a petition under any bankruptcy, insolvency or similar law by the maker or endorser or by any individual, corporation, partnership or other entity guaranteeing or providing security for the payment of the amounts owed hereunder, and such petition not being dismissed within a period of thirty (whether at maturity as herein expressed, by acceleration, or otherwise) unless cured within five (530) days after Holder or the holder of this Note delivers to Maker written notice of default;
(b) Maker's filing a voluntary petition in bankruptcy; or filing a voluntary petition seeking reorganization; or filing an answer admitting the jurisdiction of the court and filing; and
F. The making of any material allegations of an involuntary petition filed pursuant to any act of Congress relating to bankruptcy or to any act purporting to be amendatory thereof; or making an assignment for the benefit or creditors by the Maker or Endorser or by any individual, corporation, partnership or other entity guaranteeing or providing security for the payment of this Student Enrollment Agreement. IN THE EVENT OF ANY DEFAULT HEREIN STATED, THIS STUDENT ENROLLMENT AGREEMENT shall bear interest at the highest rate allowable by the law from maturity until paid. THE FAILURE OR DELAY of the University in exercising any of its creditors; or applying for or consenting to the appointment of rights hereunder in any receiver or trustee for Maker or all or instance shall not constitute a waiver in any substantial portion other instance. The University may not waive any of its property; or assigning rights except by an agent to liquidate any substantial part of Maker's assets;
(c) The entry of (i) any court order pursuant to any act of Congress (or amendment thereof) relating to Maker's bankruptcy or reorganization; or (ii) any court order approving instrument in writing signed by an involuntary petition for the bankruptcy or reorganization authorized representative of the Maker; or (iii) any court order appointing any receiver or trustee of or for Maker or for all or any substantial portion University. This Student Enrollment Agreement may not be amended without the written approval and acceptance of the Maker's property; or (iv) any writ or warrant of attachment or any similar process issued by any court against all or any substantial portion of the Maker's property (unless such court orders, writs, or warrants as identified in subpoints (i) to (iv) of this paragraph are vacated or stayed or released or bonded within 60 days after their entry)University.
Appears in 1 contract
Sources: Student Enrollment Agreement
Default. Upon the occurrence or during the continuance happening of any one or more of the events listed belowfollowing events, Holder or the holder of Purchaser may terminate this Note may forthwith or at Agreement and any time thereafter during the continuance of any such event, by notice in writing to the Maker, declare the unpaid balance of the principal of this Note to be immediately due and payableCommitments, and shall have the principal shall become and shall be immediately due and payable without presentation, demand, protest, notice of protest, or other notice of dishonor, all of which are hereby expressly waived by Maker, with full knowledge of the effect of such waiver. The events deemed as defaults shall include without limitation the followingremedies specified herein:
(a) Maker's failure Failure by Seller duly to pay the principal and interest observe or perform in any respect any covenant, condition or agreement in this Agreement to be observed or performed by Seller for a period of this Note or any portion thereof when the same shall become due and payable thirty (whether at maturity as herein expressed, by acceleration, or otherwise) unless cured within five (530) days after Holder or the holder of this Note delivers written notice, specifying such failure and requesting that it be remedied, given to Maker written notice of default;Seller by Purchaser.
(b) Maker's filing Any representation by Seller proves to be false or Seller breaches any warranty given to Purchaser.
(c) A decree or order of a voluntary petition court or agency or supervisory authority having jurisdiction in bankruptcy; the premises for the appointment of a conservator or filing receiver or liquidator in any insolvency, readjustment of debt, marshalling of assets and liabilities or similar proceedings, or for the winding-up or liquidation of its affairs, shall have been entered against Seller.
(d) Seller shall consent to the appointment of a voluntary petition seeking reorganization; conservator or filing an answer admitting the jurisdiction receiver or liquidator in any insolvency, readjustment of the court debt, marshalling of assets and any material allegations liabilities or similar proceedings of an involuntary petition filed pursuant to any act of Congress or relating to bankruptcy Seller, or of or relating to all or substantially all of its property.
(e) Seller shall admit in writing its inability to pay its debts generally as they become due, file a petition to take advantage of any act purporting to be amendatory thereof; applicable insolvency or making reorganization statute, make an assignment for the benefit of its creditors; , or applying voluntarily suspend payment of its obligations.
(f) Without the prior written consent of Purchaser, Seller merges with any other entity, sells or otherwise disposes of all or substantially all of the property and assets or permits a change to occur in the ownership of Seller, which would transfer effective voting control from persons who, on the date hereof, have voting control of Seller.
(g) Within the period of time specified in this Agreement, Seller fails to deliver to Purchaser a Mortgage Loan and related Mortgage File for which Purchaser has issued a commitment.
(h) Any document, instrument, agreement or consenting other paper delivered by Seller to Purchaser contains a material inaccuracy or fails to conform to the appointment terms of any receiver or trustee for Maker or all or any substantial portion of its property; or assigning an agent to liquidate any substantial part of Maker's assets;this Agreement.
(c) The entry of (i) Seller is reprimanded, suspended, placed on probation or has its license revoked by any court order pursuant federal or state agency.
(j) Within six (6) months after the sale of the Mortgage Loan, Seller solicits the Mortgagor to refinance the Mortgage Loan.
(k) In the sole opinion of ▇▇▇▇▇▇▇▇▇, there is a substantial reduction in the net worth of Seller as compared to the net worth on the date hereof. If Seller defaults under this Agreement for any act reason stated above, Purchaser shall not be obligated to purchase any Mortgage Loan covered by an outstanding Commitment. Nevertheless, Purchaser may, at its option, in the event of Congress (default by Seller, terminate this Agreement and purchase one or amendment thereof) relating more of the Mortgage Loans covered by Commitments issued prior to Maker's bankruptcy the date of termination. In addition, Purchaser shall have the right to offset from any amount due to Seller any amount Seller owes to Purchaser under any provision of this Agreement. In the event Seller defaults and Purchaser shall employ attorneys or reorganization; or (ii) any court order approving an involuntary petition incur other expenses for the bankruptcy or reorganization enforcement of the Maker; performance or (iii) observance of any court order appointing any receiver obligation or trustee agreement on the part of Seller herein contained, Seller shall pay or for Maker or for all or any substantial portion reimburse Purchaser on demand the reasonable fees of such attorneys and such other expenses incurred. Seller shall pay to Purchaser the losses, costs and expenses incurred by Purchaser as the result of the Maker's property; default by Seller. The losses, costs and expenses include, without limitation, all consequential damages that Purchaser may suffer as the direct or (iv) any writ or warrant indirect result of attachment or any similar process issued by any court against all or any substantial portion of Seller’s failure to deliver a Mortgage Loan in accordance with the Maker's property (unless such court orders, writs, or warrants as identified in subpoints (i) to (iv) terms of this paragraph are vacated or stayed or released or bonded within 60 days after their entry)Agreement.
Appears in 1 contract
Sources: Broker / Correspondent Application
Default. Upon the occurrence or during the continuance 7.1 If either party is in default of any one or more material obligation under this Agreement, then the non-breaching party may give written notice thereof to the breaching party to cure the breach. If within 60 days after the date of such notice such default is not cured, then this Agreement will automatically terminate at the discretion of the events listed belownon-breaching party and all rights and licenses under this Agreement will revert to the beneficial owner thereof prior to execution of the Agreement. If Licensor breaches this Agreement by granting to another party license rights that expressly infringe on Licensee’s exclusive rights hereunder, Holder or subject to the holder conditions and limitations set forth herein, then, in addition to the ability of Licensee to decide, at its discretion, to terminate this Note may forthwith or at Agreement, Licensor shall be liable to Licensee for lost profits as reasonably determined by arbitration. Such liability shall not apply with respect to any time thereafter during the continuance party that infringes upon Licensee’s rights in violation of any such event, by notice in writing to the Maker, declare the unpaid balance of the principal of this Note to be immediately due and payable, and the principal shall become and shall be immediately due and payable without presentation, demand, protest, notice of protestagreement with Licensor, or other notice is otherwise outside the control of dishonorLicensor.
7.2 This Agreement will terminate immediately if Licensee is dissolved or liquidated. This Agreement will also terminate immediately absent an adequate written assurance of future performance if: (i) any bankruptcy or insolvency proceedings under any federal or state bankruptcy or insolvency code or similar law, all of which are hereby expressly waived whether voluntary or involuntary, is properly commenced by Makeror against Licensee; or (ii) Licensee becomes insolvent, with full knowledge of the effect of such waiver. The events deemed as defaults shall include without limitation the following:
(a) Maker's failure is unable to pay the principal and interest of this Note debts as they come due or any portion thereof when the same shall become due and payable (whether at maturity as herein expressed, by accelerationceases to so pay, or otherwise) unless cured within five (5) days after Holder or the holder of this Note delivers to Maker written notice of default;
(b) Maker's filing a voluntary petition in bankruptcy; or filing a voluntary petition seeking reorganization; or filing an answer admitting the jurisdiction of the court and any material allegations of an involuntary petition filed pursuant to any act of Congress relating to bankruptcy or to any act purporting to be amendatory thereof; or making makes an assignment for the benefit of its creditors; or applying (iii) a trustee or receiver is appointed for or consenting to the appointment of any receiver or trustee for Maker or all of Licensee’s assets. If Licensor is facing dissolution or liquidation, then Licensee shall be given right of first refusal to purchase all of the Licensed Technology (Patented or Non-Patented) from Licensor at a reasonable rate.
7.3 Immediately after the expiration or termination of this Agreement for any reason:
(a) All rights of Licensee granted hereunder will terminate and automatically revert to Licensor, and Licensee will discontinue all manufacturing of the Licensed Technology and will no longer have the right to manufacture, sell or put into use the Licensed Technology or any substantial portion variation or simulation thereof for any purpose whatsoever;
(b) Licensee will be permitted to sell and dispose of its property; remaining inventory of Licensed Products on hand or assigning an agent to liquidate in process on the date of such termination or expiration, for a period of one hundred twenty (120) days following the date of such expiration or termination (the “Sale Period”). Licensee expressly agrees that it will not market or sell/use any substantial part Licensed Product after the end of Maker's assetsthe Sale Period;
(c) The entry All sums owed by Licensee to Licensor will become due and payable immediately;
(d) Licensee will not, following expiration or termination of the this Agreement, use Confidential Information to manufacture or sell Licensed Products anywhere in the world; and
(ie) any court order pursuant Licensee retains no rights whatsoever to any act of Congress (or amendment thereof) relating to Maker's bankruptcy or reorganization; or (ii) any court order approving an involuntary petition for Licensor’s Licensed Technology.
7.4 Notwithstanding the bankruptcy or reorganization of the Maker; or (iii) any court order appointing any receiver or trustee of or for Maker or for all foregoing, or any substantial portion of the Maker's property; or (iv) any writ or warrant of attachment or any similar process issued by any court against all or any substantial portion of the Maker's property (unless such court orders, writs, or warrants as identified in subpoints (i) to (iv) other provisions of this paragraph are vacated Agreement to the contrary, Sections 4, 5, 6 and 9 will survive the expiration or stayed or released or bonded within 60 days after their entry)termination of this Agreement.
Appears in 1 contract
Sources: Systems Application License Agreement (Cyclone Power Technologies Inc)
Default. Upon a. The Maker shall be in default hereunder upon the occurrence or during the continuance of any one or more of the events listed below, Holder or following events: (i) if the holder of this Note may forthwith or at any time thereafter during the continuance of any such event, by notice in writing to the Maker, declare the unpaid balance of the principal of this Note to be immediately due and payable, and the principal shall become and shall be immediately due and payable without presentation, demand, protest, notice of protest, or other notice of dishonor, all of which are hereby expressly waived by Maker, with full knowledge of the effect of such waiver. The events deemed as defaults shall include without limitation the following:
(a) Maker's failure Maker fails to pay any interest or principal or any other sum due hereunder on the principal and interest of applicable due date therefor; (ii) if any representation or warranty now or hereafter made by the Maker or in connection with the debt evidenced by this Note or the Pledge is false or incorrect in any portion thereof when the same shall become due material respect and payable (whether at maturity as herein expressed, by acceleration, or otherwise) unless is not cured within five (5) 30 days after Holder or the holder of this Note delivers to Maker written notice of default;
(b) Maker's filing a voluntary petition in bankruptcy; or filing a voluntary petition seeking reorganization; or filing an answer admitting the jurisdiction of the court and any material allegations of an involuntary petition filed pursuant to any act of Congress relating to bankruptcy or to any act purporting to be amendatory thereof; or making an assignment for the benefit of its creditors; or applying for or consenting to the appointment of any receiver or trustee for Maker or all or any substantial portion of its property; or assigning an agent to liquidate any substantial part of Maker's assets;
(c) The entry of (i) any court order pursuant to any act of Congress (or amendment thereof) relating to Maker's bankruptcy or reorganization; or (ii) any court order approving an involuntary petition for the bankruptcy or reorganization of the Maker; or (iii) the occurrence of any court order appointing default under the Pledge (an "Event of Default").
b. Upon the occurrence of an Event of Default by the Maker, which shall be continuing, the entire unpaid principal indebtedness of this Note, together with all interest accrued at the above specified rate until the date of such default and thereafter at the Default Rate, together with all other charges provided for herein, shall at the option of the holder of this Note, become due and payable immediately.
c. Any right or remedy granted herein or in the Pledge is separate, distinct and cumulative and not exclusive of any receiver other right or trustee remedy granted herein or in the Pledge or provided by law or equity, and may be exercised concurrently, independently or successively by the holder hereof in such holder's discretion. Any forbearance on the part of any holder in exercising any such right or remedy shall not be a waiver of or for Maker preclude the exercise of any such right or for all remedy. The holder hereof shall not be deemed by any act or omission to have waived any such right or remedy or any substantial portion default by the Maker hereunder or under the Pledge unless such waiver is in writing and signed by the holder, and then only to the extent specifically set forth in the writing. Any such waiver shall not be construed as a continuing waiver or as a bar to or waiver of any right or remedy with respect to any other default by the Maker's property; or (iv) .
d. The Maker agrees to pay on demand all costs of collection, including without limitation reasonable attorneys' fees, incurred by the holder hereof with respect to any writ or warrant of attachment or any similar process issued default by any court against all or any substantial portion of the Maker hereunder. Such amounts, until paid by the Maker's property (unless such court orders, writsshall be added to the principal hereof, or warrants as identified in subpoints (i) to (iv) of this paragraph are vacated or stayed or released or bonded within 60 days after their entry)bear interest at the Default Rate and be secured by the Pledge.
Appears in 1 contract
Sources: Note and Pledge Agreement (Holopak Technologies Inc)
Default. Upon If a Default or Potential Default exists (or if Borrower fails to give directions as permitted under SECTION 3.12(A)), any payment or prepayment (including proceeds from the occurrence or during the continuance exercise of any one or more of the events listed below, Holder or the holder of this Note may forthwith or at any time thereafter during the continuance of any such event, by notice in writing Rights) shall be applied to the Maker, declare Obligation in the unpaid balance of the principal of this Note to be immediately due and payable, and the principal shall become and shall be immediately due and payable without presentation, demand, protest, notice of protest, or other notice of dishonor, all of which are hereby expressly waived by Maker, with full knowledge of the effect of such waiver. The events deemed as defaults shall include without limitation the following:
(a) Maker's failure to pay the principal and interest of this Note or any portion thereof when the same shall become due and payable (whether at maturity as herein expressed, by acceleration, or otherwise) unless cured within five (5) days after Holder or the holder of this Note delivers to Maker written notice of default;
(b) Maker's filing a voluntary petition in bankruptcy; or filing a voluntary petition seeking reorganization; or filing an answer admitting the jurisdiction of the court and any material allegations of an involuntary petition filed pursuant to any act of Congress relating to bankruptcy or to any act purporting to be amendatory thereof; or making an assignment for the benefit of its creditors; or applying for or consenting to the appointment of any receiver or trustee for Maker or all or any substantial portion of its property; or assigning an agent to liquidate any substantial part of Maker's assets;
(c) The entry of (i) any court order pursuant to any act of Congress (or amendment thereof) relating to Maker's bankruptcy or reorganization; or (ii) any court order approving an involuntary petition for the bankruptcy or reorganization of the Maker; or (iii) any court order appointing any receiver or trustee of or for Maker or for all or any substantial portion of the Maker's property; or (iv) any writ or warrant of attachment or any similar process issued by any court against all or any substantial portion of the Maker's property (unless such court orders, writs, or warrants as identified in subpoints following order: (i) to the ratable payment of all fees, expenses, and indemnities for which Agents or Lenders have not been paid or reimbursed in accordance with the Loan Documents (as used in this SECTION 3.12(B)(I), a "ratable payment" for any Lender or any Agent shall be, on any date of determination, that proportion which the portion of the total fees, expenses, and indemnities owed to such Lender or such Agent bears to the total aggregate fees and indemnities owed to all Lenders and Agents on such date of determination); (ii) to the ratable payment of accrued and unpaid interest on the Principal Debt (as used in this SECTION 3.12(B)(II), "ratable payment" means, for any Lender, on any date of determination, that proportion which the accrued and unpaid interest on the Principal Debt owed to such Lender bears to the total accrued and unpaid interest on the Principal Debt owed to all Lenders); (iii) to the ratable payment of the Principal Debt (as used in this SECTION 3.12(B)(III), "ratable payment" means for any Lender, on any date of determination, that proportion which the Principal Debt owed to such Lender bears to the Principal Debt owed to all Lenders); and (iv) to the payment of this paragraph are vacated the remaining Obligation in the order and manner Required Lenders deem appropriate. Subject to the provisions of SECTION 12 and provided that Administrative Agent shall not in any event be bound to inquire into or stayed to determine the validity, scope, or released priority of any interest or bonded within 60 days after their entry)entitlement of any Lender and may suspend all payments or seek appropriate relief (including, without limitation, instructions from Required Lenders or an action in the nature of interpleader) in the event of any doubt or dispute as to any apportionment or distribution contemplated hereby, Administrative Agent shall promptly distribute such amounts to each Lender in accordance with the Agreement and the related Loan Documents.
Appears in 1 contract
Default. Upon the occurrence or during the continuance of any a. Any one or more of the events listed below, Holder or the holder of this Note may forthwith or at any time thereafter during the continuance of any such event, by notice in writing to the Maker, declare the unpaid balance of the principal of this Note to be immediately due and payable, and the principal shall become and shall be immediately due and payable without presentation, demand, protest, notice of protest, or other notice of dishonor, all of which are hereby expressly waived by Maker, with full knowledge of the effect of such waiver. The events deemed as defaults shall include without limitation the following:
following events: (a) Maker's failure to pay the any principal and amount or interest of this Note or any portion thereof when the same shall become due and payable (whether at maturity as herein expressed, by acceleration, or otherwise) unless cured within five (5) days after Holder or the holder of this Note delivers to Maker written notice of default;
due; (b) Maker's filing a voluntary petition in bankruptcy; or filing a voluntary Maker (i) files any petition seeking reorganization; a discharge, rearrangement, or filing an answer admitting reorganization of its debts pursuant to the jurisdiction bankruptcy laws or any other debtor relief laws of the court and United States or any material allegations of an involuntary petition filed pursuant to state or any act of Congress relating to bankruptcy or to any act purporting to be amendatory thereof; or making an other competent jurisdiction, (ii) makes a general assignment for the benefit of its creditors, or (iii) admits in writing its inability to pay its debts as they mature; or applying for (c) a petition is filed against Maker seeking to rearrange, reorganize, or consenting to extinguish its debts under the appointment provisions of any bankruptcy or other debtor relief law of the United States or any state or other competent jurisdiction, and such petition is not dismissed within 45 days, or (d) a court of competent jurisdiction enters an order, judgment, or decree appointing a receiver or trustee for Maker or all or any substantial portion of its property; or assigning an agent to liquidate any substantial part of Maker's assets;
(c) The entry of (i) any court order pursuant to any act of Congress (or amendment thereof) relating to Maker's bankruptcy or reorganization; or (ii) any court order approving an involuntary petition for the bankruptcy or reorganization of the Maker; or (iii) any court order appointing any receiver or trustee of or for Maker it or for all or any substantial portion part of its property.
b. If a Default occurs, and Maker does not cure such Default within thirty (30) days of receiving notice of the 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's property; . Notwithstanding the immediately preceding sentence, if a Default is in respect of a bankruptcy or (iv) any writ or warrant insolvency proceeding the principal of attachment or any similar process issued by any court against this Note, and all or any substantial portion accrued and unpaid interest, shall automatically become immediately due and payable. In addition, Payee may institute judicial proceedings for the collection of the amounts due and may prosecute such proceeding to judgment or final decree, and may enforce the same against Maker and collect the amount due (together with reasonable costs of collection, including reasonable attorney’s fees and expenses) adjudged or decreed to be payable in the manner provided by law out of the property of Maker's property (unless such court orders. 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, writs, and may exercise any and all other rights Payee may have at law or warrants as identified in subpoints (i) to (iv) equity.
c. Default rate of this paragraph are vacated or stayed or released or bonded within 60 days after their entry)interest: 18% per annum.
Appears in 1 contract
Sources: Note Agreement (Edison Nation, Inc.)
Default. Upon If any Event of Default under the occurrence or during Loan Agreement shall have occurred and be continuing, Agent shall have, in addition to all other rights and remedies given it by this Agreement, those allowed by law and the continuance rights and remedies of a secured party under the Uniform Commercial Code as enacted in any one or more jurisdiction in which any of the events listed belowPatents, Holder or Trademarks and/or Licenses may be located and, without limiting the holder of this Note may forthwith or at any time thereafter during the continuance of any such event, by notice in writing to the Maker, declare the unpaid balance generality of the principal foregoing, Agent may immediately, without demand of this Note to be immediately due performance and payable, and the principal shall become and shall be immediately due and payable without presentation, demand, protest, notice of protest, or other notice of dishonor(except as set forth next below) or demand whatsoever to Debtor, all of which are hereby expressly waived by Makerwaived, with full knowledge and without advertisement, sell at public or private sale or otherwise realize upon, all or from time to time any of the effect Patents, Trademarks (together with the goodwill of Debtor associated therewith) and/or Licenses, or any interest which Debtor may have therein, and after deducting from the proceeds of sale or other disposition of the Patents, Trademarks or Licenses all expenses (including, without limitation, all expenses for brokers’ fees and legal services), shall apply the residue of such waiverproceeds toward the payment of the Secured Obligations in the order and manner as the Required Lenders may elect. The events deemed as defaults Notice of any sale or other disposition of any of the Patents, Trademarks and/or Licenses shall include without limitation the following:
(a) Maker's failure be given to pay the principal and interest of this Note or any portion thereof when the same shall become due and payable (whether Debtor at maturity as herein expressed, by acceleration, or otherwise) unless cured within least five (5) days after Holder Domestic Business Days before the time of any intended public or the holder private sale or other disposition of this Note delivers such Patents, Trademarks and/or Licenses is to Maker written be made, which Debtor hereby agrees shall be reasonable notice of default;
(b) Maker's filing a voluntary petition in bankruptcy; such sale or filing a voluntary petition seeking reorganization; other disposition. At any such sale or filing an answer admitting the jurisdiction other disposition, Agent, Lenders or any other holders of any of the court Secured Obligations may, to the extent permissible under applicable law, purchase the whole or any part of the Patents, Trademarks and/or Licenses sold, free from any right of redemption on the part of Debtor, which right is hereby waived and released. Debtor agrees that upon the occurrence and continuance of any material allegations Event of Default, the use by Agent or any of the Lenders of the Patents, Trademarks and Licenses shall be worldwide, and without any liability for royalties or other related charges from Agent or any such Lender to Debtor. If an involuntary petition filed pursuant Event of Default shall occur and be continuing, Agent shall have the right, but shall in no way be obligated, to any act of Congress relating to bankruptcy or to any act purporting to be amendatory thereof; or making an assignment bring suit in its own name (for the benefit of its creditors; or applying itself and the Lenders) to enforce any and all of the Patents, Trademarks and Licenses, and, if Agent shall commence any such suit, Debtor shall, at the request of Agent, do any and all lawful acts and execute any and all proper documents required by Agent in aid of such enforcement and the Debtor shall promptly, upon demand, reimburse and indemnify Agent and the Lenders for or consenting all costs and expenses incurred by Agent and each of the Lenders in the exercise of their respective rights under this Agreement. All of Lender’s rights and remedies with respect to the appointment of any receiver Patents, Trademarks and Licenses, whether established hereby, by the Security Agreement or trustee for Maker or all or any substantial portion of its property; or assigning an agent to liquidate any substantial part of Maker's assets;
(c) The entry of (i) any court order pursuant to any act of Congress (or amendment thereof) relating to Maker's bankruptcy or reorganization; or (ii) any court order approving an involuntary petition for the bankruptcy or reorganization of the Maker; or (iii) any court order appointing any receiver or trustee of or for Maker or for all or any substantial portion of the Maker's property; or (iv) any writ or warrant of attachment or any similar process issued by any court against all other agreement or any substantial portion of the Maker's property (unless such court orders, writs, by law shall be cumulative and may be exercised singularly or warrants as identified in subpoints (i) to (iv) of this paragraph are vacated or stayed or released or bonded within 60 days after their entry)concurrently.
Appears in 1 contract
Sources: Loan Agreement (Virbac Corp)
Default. Upon the occurrence or during the continuance of any one or more of the events listed belowfollowing events, Holder or (hereinafter called "Events of Default") at the holder option of this Note may forthwith or at any time thereafter during the continuance Lenders, the entire balance of any such event, 5 principal and accrued interest on the Notes and all other Indebtedness then owing by notice in writing the Borrower to the Maker, declare the unpaid balance of the principal of this Note to be immediately due and payable, and the principal Lenders shall forthwith become and shall be immediately due and payable on demand of the Lenders without presentationpresentment, demanddemand for payment, notice of dishonor, protest, or notice of protest, or other notice protest of dishonorany kind, all of which are hereby expressly waived by MakerBorrower and by each Guarantor.
a. If default is made in any payment, with full knowledge partial or whole, when due, of any of the effect of such waiver. The events deemed as defaults shall include without limitation the following:
(a) Maker's failure to pay the principal and interest of this Note Notes, or any portion thereof when the same shall become due and payable (whether at maturity as herein expressed, by accelerationpart thereof, or otherwise) unless cured within five (5) days after Holder any extension, renewal or the holder of this Note delivers to Maker written notice of default;
(b) Maker's filing a voluntary petition in bankruptcy; or filing a voluntary petition seeking reorganization; or filing an answer admitting the jurisdiction rearrangement of the court same.
b. If default is made by the Borrower in the payment of any Indebtedness or with respect to the provisions of any, evidence of Indebtedness or any agreement relating thereto other than as to Lenders, which default shall continue and remain unwaived by the creditor for more than the period of grace, if any, therein specified unless the debt is subject to a bona fide dispute.
c. If a petition for receivership or in bankruptcy (voluntary or involuntary) or insolvency shall be filed by or against Borrower or any material allegations one or all of an involuntary petition filed pursuant to the Guarantors, or if Borrower or any act one or all of Congress relating to bankruptcy or to any act purporting to be amendatory thereof; or making the Guarantors shall make an assignment for the benefit of its their creditors; .
d. If any written warranty or applying for or consenting representation made by Borrower to the appointment Lenders should prove to be untrue.
e. If Borrower or the Guarantors shall fail to perform any of the covenants or agreements contained herein, the Notes , the Security Agreements, the Mortgages or the Product Purchase Agreement.
f. If any assets of Borrower are sold other than in the ordinary course of business without the prior written consent of the Lenders.
g. If there is any breach of any receiver or trustee for Maker or all or any substantial portion of its property; or assigning an agent to liquidate any substantial part of Maker's assets;
(c) The entry of (i) any court order pursuant to any act of Congress (or amendment thereof) relating to Maker's bankruptcy or reorganization; or (ii) any court order approving an involuntary petition for the bankruptcy or reorganization term of the Maker; or (iii) Security Agreements.
h. If there is any court order appointing breach of any receiver or trustee of or for Maker or for all or any substantial portion term of the Maker's property; Notes.
i. If there is any breach of any term of this Agreement.
j. If there is any breach of any term of the Product Purchase Agreement.
k. If there is any breach of any term of the Mortgages.
l. If any additional equity securities or (iv) any writ or warrant of attachment or any similar process debt securities are issued by Borrower.
m. If any court against all current stockholder of Borrower shall sell, assign, transfer, give or convey any substantial portion of his/her shares herein other than to a person who is a stockholder on the Maker's property (unless such court orders, writs, or warrants as identified in subpoints (i) to (iv) date of this paragraph are vacated or stayed or released or bonded within 60 days after their entry)Agreement.
Appears in 1 contract
Default. Lessee shall be in default hereunder upon the occurrence of any of the following events: (a) failure of Lessee to pay any rental payment or other amount required hereunder when due; (b) failure of Lessee to perform any other obligation hereunder or observe any other term or provision hereunder; (c) any representation or warranty made to Lessor by Lessee or by any Guarantor proves to have been false in any material respect when made; (d) levy, seizure or attachment or other involuntary transfer of the equipment; (e) assignment for benefit of creditors or bulk transfer of assets by, or cessation of business, termination of existence, death or dissolution of, Lessee or any Guarantor. As used herein, the term “Guarantor” shall include any guarantor of this Lease and any owner of any property given as security for Lessee’s obligations hereunder. Upon the occurrence or during the continuance of a default hereunder, Lessor may exercise any one or more of the events listed below, Holder following remedies without demand or notice to Lessee and without terminating or otherwise affecting Lessee’s obligations hereunder: (i) declare the holder entire balance of rent for the remaining tern of this Note may forthwith or at any time thereafter during the continuance of any such event, by notice in writing to the Maker, declare the unpaid balance of the principal of this Note Lease to be immediately due and payable, and the principal shall become and shall be immediately due and payable without presentation, demand, protest, notice of protest, or other notice of dishonor, all of which are hereby expressly waived by Maker, with full knowledge of the effect of such waiver. The events deemed as defaults shall include without limitation the following:
(a) Maker's failure to pay the principal and interest of this Note or any portion thereof when the same shall become due and payable (whether at maturity as herein expressed, by acceleration, or otherwise) unless cured within five (5) days after Holder or the holder of this Note delivers to Maker written notice of default;
(b) Maker's filing a voluntary petition in bankruptcy; or filing a voluntary petition seeking reorganization; or filing an answer admitting the jurisdiction of the court and any material allegations of an involuntary petition filed pursuant to any act of Congress relating to bankruptcy or to any act purporting to be amendatory thereof; or making an assignment for the benefit of its creditors; or applying for or consenting to the appointment of any receiver or trustee for Maker or all or any substantial portion of its property; or assigning an agent to liquidate any substantial part of Maker's assets;
(c) The entry of (i) any court order pursuant to any act of Congress (or amendment thereof) relating to Maker's bankruptcy or reorganization; or (ii) any court order approving an involuntary petition for require Lessee to assemble the bankruptcy or reorganization of the Makerequipment and make it available to Lessor at a place designated by Lessor which is reasonable and convenient to both parties; or (iii) any court order appointing any receiver or trustee of or for Maker or for all or any substantial portion take and hold possession of the Maker's propertyequipment from any premise where the same may be located without liability to Lessee for any damage caused thereby; or (iv) any writ sell or warrant of attachment lease the equipment or any similar process issued by any court against part thereof at public or private sale for cash, on credit or otherwise, with or without representations or warranties, and upon such commercially reasonable terms as shall be acceptable to Lessor; (v) use and occupy the premises of Lessee for the purpose of taking, holding, reconditioning, displaying, selling or leasing the equipment, without cost to Lessor or liability to Lessee; (vi) demand, ▇▇▇ for and recover from Lessee all or any substantial portion of the Maker's property (unless such court orders, writs, or warrants as identified in subpoints (i) to (iv) of this paragraph are vacated or stayed or released or bonded within 60 days after their entry)sums due hereunder.
Appears in 1 contract
Sources: Commercial Lease Agreement (Twinlab Consolidated Holdings, Inc.)
Default. Upon 9.1.1 In the occurrence event of breach or during default by the continuance Allottee of any one or more of the events listed covenants contained herein, ("Default"), the Company shall be under an obligation to issue a notice calling upon the Allottee to rectify the Default within a period of 30 days from the date of the notice ("Notice Period"). The Allottee, immediately upon notice of such Default, shall be under an obligation to rectify / remove the Default within the said Notice Period and inform the Company of such rectification or removal of breach of default by a written notice (by registered AD Post or Fax or email).
9.1.2 In the event that in the judgment of the Company, the Default is not cured within the Notice Period, the Company may, without Prejudice to any other legal remedy which the Company may have in Law, equity or contract, in its sole discretion, cancel the Allotment in accordance with the provisions hereof. Upon such cancellation the Allotee shall be liable to pay the Company the sums mentioned in Clause 9.1.5 herein below, Holder as if the cancellation was a cancellation by the Allotee under the terms of Clause 9.1.5 The Allottee shall not have any lien or any other right on the holder Demised Premises, nor should anything herein or elsewhere be construed to entitle the Allottee to obstruct, prevent, injunct or restrain the Company from making a fresh allotment in respect of this Note the Demised Premises to any Third Party after cancellation of the Allotment, or to restrict, prevent or injunct any cancellation of the Allotment. Provided, however, that the Company may, at its sole discretion, condone the Default and restore the Allotment by levying such damages, fee, etc. as the Company may forthwith decide as its sole discretion. Provided further that where a charge or fee or any other sum of money for the condonation of any Default has been prescribed hereunder, the Company shall be at any time thereafter during liberty to condone the continuance Default by leaving such charge or fee or such sum of money as may be prescribed herein. The levy of any such eventdamages, by notice in writing charges, fee, etc. shall be without prejudice to the Maker, declare the unpaid balance rights of the principal Company do demand specific performance of such obligations hereunder or to take appropriate legal action;
9.1.3 Failure of the Company to exercise promptly any right herein granted or to require specific performance of any obligation undertaken herein by the Allottee, shall not be deemed to be a waiver of such right or of the right to demand subsequent performance of any or all obligations herein by the Allottee.
9.1.4 The termination of the Allotment pursuant to Clause 9.1.2 hereof shall be effected by the Company giving 30 (thirty) days prior written notice of such termination to Allottee. If the Allotment so terminates, it shall become null and void and have no further force or effect, except as provided in Clause 9.2 (a) hereof.
9.1.5 The Allottee shall be entitled to apply for cancellation of the Allotment only on default of the Company to deliver up the Demised Premises on payment of full consideration in accordance with the terms herein. If the Allottee for any other reason requests the Company to permit it to cancel the Allotment in his favour, the Company may in its sole discretion permit such cancellation provided that the Allottee compensates the Company for any loss caused on account of substituting another allottee in his/its/her place and stead ("Termination Charge"). Notwithstanding anything stated herein above, in the event the Allottee is permitted to cancel the Allotment by the Company under the terms of this Note Clause 9.1.5 or in the event the Company terminates the Allotment in accordance with the provisions herein, the entire amount of ▇▇▇▇▇▇▇ Money shall be forfeited by the Company. The balance installments paid by the Allottee in accordance with the terms hereof shall first be used to satisfy the Termination Charge, which shall in any event not be immediately due and payableless than amounts set forth in Clause 5.7 herein, and the principal shall become and rest of the installments shall be immediately due and payable without presentation, demand, protest, notice of protest, or other notice of dishonor, all of which are hereby expressly waived by Maker, with full knowledge of the effect of such waiver. The events deemed as defaults shall include without limitation the following:
(a) Maker's failure to pay the principal and interest of this Note or any portion thereof when the same shall become due and payable (whether at maturity as herein expressed, by acceleration, or otherwise) unless cured within five (5) days after Holder or the holder of this Note delivers to Maker written notice of default;
(b) Maker's filing a voluntary petition in bankruptcy; or filing a voluntary petition seeking reorganization; or filing an answer admitting the jurisdiction of the court and any material allegations of an involuntary petition filed pursuant to any act of Congress relating to bankruptcy or to any act purporting to be amendatory thereof; or making an assignment for the benefit of its creditors; or applying for or consenting refunded to the appointment of any receiver or trustee for Maker or all or any substantial portion of its property; or assigning an agent to liquidate any substantial part of Maker's assets;
(c) The entry of (i) any court order pursuant to any act of Congress (or amendment thereof) relating to Maker's bankruptcy or reorganization; or (ii) any court order approving an involuntary petition for the bankruptcy or reorganization of the Maker; or (iii) any court order appointing any receiver or trustee of or for Maker or for all or any substantial portion of the Maker's property; or (iv) any writ or warrant of attachment or any similar process issued by any court against all or any substantial portion of the Maker's property (unless such court orders, writs, or warrants as identified in subpoints (i) to (iv) of this paragraph are vacated or stayed or released or bonded within 60 days after their entry)Allottee without interest.
Appears in 1 contract
Sources: Provisional Allotment Letter
Default. Upon At Lessor’s option, Lessor may, by written notice to ▇▇▇▇▇▇ declare ▇▇▇▇▇▇ in default on the occurrence or during the continuance of any one or more of the events listed below, Holder or the holder of this Note may forthwith or at any time thereafter during the continuance of any such event, by notice in writing to the Maker, declare the unpaid balance of the principal of this Note to be immediately due and payable, and the principal shall become and shall be immediately due and payable without presentation, demand, protest, notice of protest, or other notice of dishonor, all of which are hereby expressly waived by Maker, with full knowledge of the effect of such waiver. The events deemed as defaults shall include without limitation the following:
(a) Maker's failure a. Failure by Lessee to pay make payments or perform any of its obligations under this Agreement;
b. Institution by or against Lessee of any proceedings in bankruptcy or insolvency, or ▇▇▇▇▇▇’s reorganization under any law, or the principal appointment of a receiver or trustee for ▇▇▇▇▇▇’s goods and interest of this Note chattels or any portion thereof when the same shall become due and payable (whether at maturity as herein expressed, assignment by acceleration, or otherwise) unless cured within five (5) days after Holder or the holder of this Note delivers to Maker written notice of default;
(b) Maker's filing a voluntary petition in bankruptcy; or filing a voluntary petition seeking reorganization; or filing an answer admitting the jurisdiction of the court and any material allegations of an involuntary petition filed pursuant to any act of Congress relating to bankruptcy or to any act purporting to be amendatory thereof; or making an assignment ▇▇▇▇▇▇ for the benefit of its creditors;
c. Expiration or cancellation of any insurance policy to be paid for by ▇▇▇▇▇▇ as provided for under the terms of this Agreement;
d. Involuntary transfer of ▇▇▇▇▇▇’s interest in this Agreement by operation of law; or
e. Destruction or applying for or consenting removal of the Equipment from the state in which the Equipment was leased, unless Lessee had specific written permission to transport the Equipment to a specific state. After ▇▇▇▇▇▇’s default, and on notice from Lessor that Lessee is in default, Lessor will have the following options:
a. To terminate the Agreement and ▇▇▇▇▇▇’s rights under the Agreement;
b. To declare the balance of all unpaid rent and all other charges of any kind required of Lessee under the Agreement to be payable immediately, in which event Lessor will be entitled to the appointment balance due together with interest at the rate of ten percent per annum, from five business days after the date of notification of default to the date of payment;
c. To repossess the Equipment without legal process free of all of Lessee’s rights to the Equipment. ▇▇▇▇▇▇ authorizes Lessor or Lessor’s agent to enter on any premises where the Equipment is located and repossess and remove it. Lessee specifically waives any right of action Lessee might otherwise have arising out of the entry and repossession, and releases Lessor of any receiver claim for trespass or trustee damage caused by reason of the entry, repossession, or removal;
d. Removal of any discounts provided to Lessee by ▇▇▇▇▇▇. After default, ▇▇▇▇▇▇ will reimburse Lessor for Maker or all reasonable expenses of repossession and enforcement of ▇▇▇▇▇▇’s rights and remedies, together with interest at the rate of ten percent per annum from the date of default. Notwithstanding any other provisions of this Agreement, if Lessor places all or any substantial portion of its property; or assigning an agent to liquidate any substantial part of Maker's assets;
(c) The entry ▇▇▇▇▇▇’s claim against ▇▇▇▇▇▇ in the hands of (i) any court order pursuant an attorney for collection, the prevailing party will pay, in addition to any act of Congress (or amendment thereof) relating other sums that may be awarded, the other party’s reasonable attorney’s fees and costs. ▇▇▇▇▇▇’s remedies will be cumulative to Maker's bankruptcy or reorganization; or (ii) any court order approving an involuntary petition for the bankruptcy or reorganization of the Maker; or (iii) any court order appointing any receiver or trustee of or for Maker or for all or any substantial portion of the Maker's property; or (iv) any writ or warrant of attachment or any similar process issued extent permitted by any court against all or any substantial portion of the Maker's property (unless such court orderslaw, writsand may be exercised partially, concurrently, or warrants as identified in subpoints (i) separately. The exercise of one remedy will not be deemed to (iv) preclude the exercise of this paragraph are vacated or stayed or released or bonded within 60 days after their entry)any other remedy.
Appears in 1 contract
Sources: Equipment Rental Agreement
Default. Upon the occurrence or during the continuance of any one or more of the events listed below, Holder or the holder of this Note may forthwith or at any time thereafter during the continuance of any such event, by notice in writing to the Maker, declare the unpaid balance of the principal of this Note to be immediately due and payable, and the principal shall become and shall be immediately due and payable without presentation, demand, protest, notice of protest, or other notice of dishonor, all of which are hereby expressly waived by Maker, with full knowledge of the effect of such waiver. The events deemed as defaults shall include without limitation the following:
(a) Maker's failure Whenever a Default shall be existing, the Administrative Agent may exercise from time to pay time any and all rights and remedies available to it under applicable law, in addition to those described in this Section below. Each Debtor agrees, in case of Default, (i) to assemble, at its expense, all its Inventory, Equipment and other Goods (other than Fixtures) at a convenient place or places acceptable to the principal Administrative Agent, and interest (ii) at the Administrative Agent’s request, to execute all such documents and do all such other things which may be reasonably necessary or desirable in order to enable the Administrative Agent or its nominee to be registered as owner of this Note or the Intellectual Property with any portion thereof when competent registration authority and to otherwise enforce its rights with respect to any Collateral. Any notification of intended disposition of any of the same Collateral required by law shall become due be deemed reasonably and payable (whether properly given if given at maturity least five days before such disposition. Any and all proceeds of any disposition by the Administrative Agent of any of the Collateral may be applied by the Administrative Agent to payment of expenses in connection with the Collateral, including reasonable attorneys’ fees and legal expenses, and any balance of such proceeds may be applied by the Administrative Agent toward the payment of such of the Liabilities, and in such order of application, as herein expressed, by acceleration, or otherwise) unless cured within five (5) days after Holder or the holder of this Note delivers Administrative Agent may from time to Maker written notice of default;time elect.
(b) Maker's filing Each Debtor hereby agrees and acknowledges that a voluntary petition commercially reasonable disposition of any Collateral, including, without limitation, Inventory, Equipment, Computer Hardware and Software or Intellectual Property may be by lease or license of, in bankruptcy; or filing a voluntary petition seeking reorganization; or filing an answer admitting the jurisdiction of the court and any material allegations of an involuntary petition filed pursuant to any act of Congress relating to bankruptcy or to any act purporting to be amendatory thereof; or making an assignment for the benefit of its creditors; or applying for or consenting addition to the appointment sale of, such Collateral. Each Debtor further agrees and acknowledges that a disposition (i) made in the usual manner on any recognized market, (ii) at the price current in any recognized market at the time of any receiver or trustee for Maker or all or any substantial portion disposition and (iii) in conformity with reasonable commercial practices among dealers in the type of its property; or assigning an agent property subject to liquidate any substantial part of Maker's assets;the disposition shall be deemed commercially reasonable.
(c) The entry Each Debtor hereby appoints the Administrative Agent as such Debtor’s attorney-in-fact, with full power and authority in the place of (i) such Debtor and in the name of such Debtor, in Administrative Agent’s discretion, to take any court order pursuant action and to execute any act of Congress (or amendment thereof) relating instrument that it may deem necessary to Maker's bankruptcy or reorganization; or (ii) any court order approving an involuntary petition for accomplish the bankruptcy or reorganization of the Maker; or (iii) any court order appointing any receiver or trustee of or for Maker or for all or any substantial portion of the Maker's property; or (iv) any writ or warrant of attachment or any similar process issued by any court against all or any substantial portion of the Maker's property (unless such court orders, writs, or warrants as identified in subpoints (i) to (iv) purposes of this paragraph are vacated or stayed or released or bonded within 60 days after their entry)Agreement.
Appears in 1 contract
Default. Upon In the event (each a “Default”) of (a) failure by Customer to maintain sufficient Eligible Assets in any Special Custody Account such that it is not in compliance with Section 3(b), or (b) failure by Customer to make any payment hereunder or under the Customer Agreement when due, or (c) failure by Customer or Custodian to timely comply with any obligation on Customer’s or Custodian’s part to be performed or observed under this Agreement or the Customer Agreement, or (c) failure of any representation or warranty of Customer or Custodian hereunder to be accurate in any material respect, or (e) Customer’s or Custodian’s Insolvency, or (f) the occurrence or during the continuance of any one other default under the Customer Agreement which allows Broker to exercise remedies thereunder (however such exercise is described) then, upon any such Default, Broker shall have the right to (i) effect a Closing Transaction or more buy-in any securities of which Customer’s account may be short, (ii) transfer from Custodian any Special Custody Account to another Securities Intermediary, (iii) remove any Collateral from any Special Custody Account and in the events listed belowcase of Collateral which may be registered, Holder register such Collateral in Broker’s name or in the name of Broker’s Securities Intermediary, agent or nominee or any of their nominees, (iv) exercise any voting, conversion, registration, purchase or other Rights of a holder of any Collateral and any reasonable expense of such exercise shall be deemed to be an expense of preserving the value of such Collateral and shall constitute a Secured Obligation hereunder, (v) collect, including by legal action, any notes, checks or other instruments for the payment of money included in the Collateral and compromise or settle with any obligor of such instruments, (vi) foreclose, collect, sell or otherwise liquidate any or all Collateral Broker selects, in any order and at any time, and transfer the Proceeds thereof to itself or to another Securities Intermediary and (vii) exercise any and all rights and remedies provided under the Customer Agreement, the NYUCC, including, without limitation, Article 8 and Article 9 thereof, or otherwise available under applicable law. Upon Advice from Broker, Custodian shall deliver such Collateral free of payment to Broker. As between Customer and Broker, Broker will not take any action described in clauses (i)-(vii) above unless (A) a Default has occurred and Broker has delivered a notice to Customer stating that, pursuant to this Agreement, the conditions precedent to Broker’s right to receive Collateral (including without limitation all Proceeds thereof) free of payment has occurred or (B) Broker has been so Instructed by Customer. Each sale or purchase of Collateral hereunder may be made according to Broker’s judgment and may be made at Broker’s discretion, at any time, in any order and in any commercially reasonable manner but with no obligation to utilize third party pricing. The Custodian shall have no duty to investigate or make any determination to verify the existence of an event of default or compliance by either Broker or Customer with applicable law or the holder of this Note may forthwith or at any time thereafter during the continuance of any such event, by notice in writing to the Maker, declare the unpaid balance of the principal of this Note to be immediately due and payableCustomer Agreement, and the principal shall become and Custodian shall be immediately due and payable without presentationfully protected in complying with an Advice from Broker, demand, protest, notice whether or not Customer may allege that no such event of protest, default or other notice of dishonor, all of which are hereby expressly waived by Maker, with full knowledge of the effect of such waiver. The events deemed as defaults shall include without limitation the following:
(a) Maker's failure to pay the principal and interest of this Note or any portion thereof when the same shall become due and payable (whether at maturity as herein expressed, by acceleration, or otherwise) unless cured within five (5) days after Holder or the holder of this Note delivers to Maker written notice of default;
(b) Maker's filing a voluntary petition in bankruptcy; or filing a voluntary petition seeking reorganization; or filing an answer admitting the jurisdiction of the court and any material allegations of an involuntary petition filed pursuant to any act of Congress relating to bankruptcy or to any act purporting to be amendatory thereof; or making an assignment for the benefit of its creditors; or applying for or consenting to the appointment of any receiver or trustee for Maker or all or any substantial portion of its property; or assigning an agent to liquidate any substantial part of Maker's assets;
(c) The entry of (i) any court order pursuant to any act of Congress (or amendment thereof) relating to Maker's bankruptcy or reorganization; or (ii) any court order approving an involuntary petition for the bankruptcy or reorganization of the Maker; or (iii) any court order appointing any receiver or trustee of or for Maker or for all or any substantial portion of the Maker's property; or (iv) any writ or warrant of attachment or any similar process issued by any court against all or any substantial portion of the Maker's property (unless such court orders, writs, or warrants as identified in subpoints (i) to (iv) of this paragraph are vacated or stayed or released or bonded within 60 days after their entry)like event exists.
Appears in 1 contract
Sources: Special Custody Account Agreement (Blackstone / GSO Long-Short Credit Income Fund)
Default. Upon The Company shall be in default under this Note upon the occurrence or during the continuance of any one or more of the events listed belowfollowing events:
2.1 The Company fails to timely perform any of its obligations under, Holder or the holder otherwise breaches any covenants or warranties of this Note may forthwith Note;
2.2 Any statement, representation, or at any time thereafter during warranty made by the continuance of any such event, by notice in writing Company or its agents to the Maker, declare the unpaid balance of the principal of this Note Holder shall prove to be immediately due and payable, and the principal have been false or materially misleading when made; and/or,
2.3 The Company shall become and shall be immediately due and payable without presentation, demand, protest, notice of protestinsolvent, or other notice of dishonor, all of which are hereby expressly waived by Maker, with full knowledge of the effect of such waiver. The events deemed unable to meet its obligations as defaults shall include without limitation the following:
(a) Maker's failure to pay the principal and interest of this Note or any portion thereof when the same shall they become due and payable (whether at maturity as herein expressed, by accelerationdue, or otherwise) unless cured within five (5) days after Holder shall file or have filed against it, voluntarily or involuntarily, a petition under the holder of this Note delivers to Maker written notice of default;
(b) Maker's filing a voluntary petition in bankruptcy; United States Bankruptcy Code or filing a voluntary petition seeking reorganization; shall procure or filing an answer admitting the jurisdiction of the court and any material allegations of an involuntary petition filed pursuant to any act of Congress relating to bankruptcy or to any act purporting to be amendatory thereof; or making an assignment for the benefit of its creditors; or applying for or consenting to suffer the appointment of any a receiver or trustee for Maker or all or any substantial portion of its propertyproperties, 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 such event. In the event of default, the Company agrees to pay all of H▇▇▇▇▇'s costs of collection, including attorney's fees; or assigning an agent to liquidate any substantial part of Maker's assets;
(c) The entry of (i) any court order pursuant to any act of Congress (or amendment thereof) relating to Maker's bankruptcy or reorganization; or (ii) any court order approving an involuntary petition this shall include legal expenses for the bankruptcy proceedings or reorganization insolvency proceedings (including efforts to modify or vacate any automatic stay or injunction), court costs, appeals, post-judgment collection expenses and 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. No delay or omission on the part of the Maker; any Holder hereof in exercising any right or (iii) option herein given to such Holder shall impair such right or option or be considered as a waiver thereof or acquiescence in any court order appointing default hereunder. The Company hereby waives any receiver or trustee applicable statue of or limitations, presentment, demand for Maker or for all or any substantial portion payment, protest and notice of the Maker's property; or (iv) any writ or warrant of attachment or any similar process issued by any court against all or any substantial portion of the Maker's property (unless such court orders, writs, or warrants as identified in subpoints (i) to (iv) of this paragraph are vacated or stayed or released or bonded within 60 days after their entry)dishonor.
Appears in 1 contract
Sources: Convertible Note Agreement (Global It Holdings Inc)
Default. Upon After the occurrence of a default or during the continuance of any one or more acceleration of the events listed belowSecured Obligations, Holder the Collateral Agent may enforce this Pledge through any procedure established herein or otherwise under Colombian Law or any other applicable law. During the holder enforcement of this Note Pledge the Collateral Agent may forthwith or at any time thereafter during exercise all political and economic rights derived from the continuance Shares, in accordance with the provisions of any such eventarticle 379 of the Colombian Commercial Code, by notice with the exception of what is established in section 3 of the same article. In order to exercise said rights, the Collateral Agent shall communicate in writing to the Maker, declare Guarantor and to the unpaid balance Company the occurrence of said default of the principal Secured Obligations. As of such notice to the Company and to the Guarantor, in accordance with Clause 4.7 of this Note Pledge, the rights inherent to be immediately due and payable, and the principal shall become and status as stockholder shall be immediately due and payable without presentation, demand, protest, notice of protest, or other notice of dishonor, all of which are acknowledged to the Collateral Agent. The Parties hereby expressly waived by Maker, with full knowledge agree that:
(i) The Guarantor waives the right to request that the Shares be divided into lots for the purposes of the effect public auction.
(ii) During the collection proceedings, the Parties shall comply with the following procedure in order to appoint the experts that will appraise the Shares as provided for in numeral 4, Article 9 of such waiver. The events deemed as defaults shall include without limitation the followingCode of Civil Procedure:
(a) Maker's failure At any time during the collection proceedings the Collateral Agent may submit to pay the principal and interest Guarantor a list of this Note or any portion thereof when candidates for appraising the same Shares. The Guarantor shall become due and payable (whether at maturity as herein expressed, name two candidates out of the list provided by acceleration, or otherwise) unless cured within five (5) days after Holder or the holder of this Note delivers to Maker written notice of default;Collateral Agent.
(b) Maker's filing a voluntary petition in bankruptcy; or filing a voluntary petition seeking reorganization; or filing an answer admitting Within 5 common days following the jurisdiction receipt of the list of candidates, the Guarantor shall inform to the Collateral Agent the name of the two candidates chosen and shall send to the court that handles the proceedings a letter accepting the appointment of the expert appraisers.
(c) In case the Collateral Agent does not receive notice from the Guarantor in connection with the appointment of the expert appraisers within the term set forth in number (b) above, it will be understood that the Collateral Agent is fully entitled to appoint the appraisers and any material allegations of an involuntary petition filed pursuant to any act of Congress relating to bankruptcy or to any act purporting that the Guarantor fully agrees with the appointment to be amendatory thereof; or making an assignment for made by the benefit of Collateral Agent. Notwithstanding the above, the Guarantor unconditionally accepts to submit a brief to the Judge in charge, if required, evidencing its creditors; or applying for or consenting acceptance to the appointment of any receiver or trustee for Maker or all or any substantial portion of its property; or assigning an agent to liquidate any substantial part of Maker's assets;
(c) The entry of (i) any court order pursuant to any act of Congress (or amendment thereof) relating to Maker's bankruptcy or reorganization; or (ii) any court order approving an involuntary petition for the bankruptcy or reorganization of expert appraisers even if such appointment is made by the Maker; or (iii) any court order appointing any receiver or trustee of or for Maker or for all or any substantial portion of the Maker's property; or (iv) any writ or warrant of attachment or any similar process issued by any court against all or any substantial portion of the Maker's property (unless such court orders, writs, or warrants as identified in subpoints (i) to (iv) of this paragraph are vacated or stayed or released or bonded within 60 days after their entry).Collateral Agent..
Appears in 1 contract
Sources: Indenture (Transtel S A)
Default. Upon the occurrence or during the and continuance of a Default or ------- an Event of Default, Agent shall make a recommendation to Lenders of any one or more actions to be taken and each of the events listed belowLenders agrees to promptly confer in order that Lenders can consider such course of action or any other actions to be taken for the enforcement of the Rights of Lenders; provided that Agent shall be entitled (but not obligated) to proceed to take any actions necessary in its reasonable judgment to preserve Rights, Holder pending agreement by Lenders on the course of action to be taken. If the Required Lenders cannot agree on a course of action to be taken within sixty (60) days following Agent's initial recommendation, Agent shall thereafter take such action as Agent deems advisable to enforce the Rights of Lenders. Any action directed or approved by the holder Required Lenders, including without limitation, any exercise of this Note may forthwith remedies or at initiation of suit or other legal proceedings, shall be binding upon each Lender. In actions with respect to any time thereafter during the continuance property of any such eventBorrower, by notice in writing Agent is acting for the account of each Lender to the Maker, declare the unpaid balance extent of each Lender's Loan Percentage. Any and all agreements to subordinate (whether made heretofore or hereafter) other indebtedness or obligations of any of the principal of this Note Borrowers to be immediately due and payable, and the principal shall become and Obligations shall be immediately due and payable without presentation, demand, protest, notice of protest, or other notice of dishonor, all of which are hereby expressly waived by Maker, with full knowledge of the effect of such waiver. The events deemed construed as defaults shall include without limitation the following:
(a) Maker's failure to pay the principal and interest of this Note or any portion thereof when the same shall become due and payable (whether at maturity as herein expressed, by acceleration, or otherwise) unless cured within five (5) days after Holder or the holder of this Note delivers to Maker written notice of default;
(b) Maker's filing a voluntary petition in bankruptcy; or filing a voluntary petition seeking reorganization; or filing an answer admitting the jurisdiction of the court and any material allegations of an involuntary petition filed pursuant to any act of Congress relating to bankruptcy or to any act purporting to be amendatory thereof; or making an assignment being for the benefit of its creditors; or applying for or consenting each Lender to the appointment extent of its respective Loan Percentage. If Agent acquires any receiver or trustee security for Maker or all the Obligations or any substantial portion guaranty of its property; or assigning an agent to liquidate any substantial part of Maker's assets;
(c) The entry of (i) any court order pursuant to any act of Congress (or amendment thereof) relating to Maker's bankruptcy or reorganization; or (ii) any court order approving an involuntary petition the Obligations, the same shall be held for the bankruptcy benefit of each Lender in proportion to such Lender's respective Loan Percentage. Lenders agree, among themselves, that unless otherwise agreed to by Agent and the Required Lenders, all monies collected or reorganization received by Agent in respect of the Maker; Credit Facility, directly or (iii) any court order appointing any receiver indirectly, shall be applied to all costs of collection and then to interest or trustee of or for Maker or for all or any substantial portion of principal as recommended by Agent and approved by the Maker's property; or (iv) any writ or warrant of attachment or any similar process issued by any court against all or any substantial portion of the Maker's property (unless such court orders, writs, or warrants as identified in subpoints (i) to (iv) of this paragraph are vacated or stayed or released or bonded within 60 days after their entry)Required Lenders.
Appears in 1 contract
Sources: Revolving Credit Agreement (Travis Boats & Motors Inc)
Default. (a) Upon the occurrence or and during the continuance of a Default pursuant to Section 12.1.3 of the Credit Agreement as to the Pledgor or an Event of Default, the Administrative Agent may exercise from time to time any rights and remedies available to it under the Credit Agreement, the Uniform Commercial Code or the other Loan Documents or otherwise available to it, including, without limitation, sale, assignment, or other disposal of the Collateral in exchange for cash or credit. If any notification of intended disposition of any of the Collateral is required by law, such notification, if mailed, shall be deemed reasonably and properly given if mailed to the Pledgor at least ten (10) days before such disposition as provided in Section 15.3 of the Credit Agreement. Any proceeds of any disposition of Collateral shall be applied as provided in Section 8 hereof. No rights and remedies of the Administrative Agent expressed hereunder are intended to be exclusive of any other right or remedy, 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 the Administrative Agent under any other agreement or instrument relating to any of the Secured Obligations or security therefor or now or hereafter existing at law or in equity or by statute. No delay on the part of the Administrative Agent in the exercise of any right or remedy shall operate as a waiver thereof, and no single or partial exercise by the Administrative Agent of any right or remedy shall preclude any other or further exercise thereof or the exercise of any other right or remedy.
(i) The Pledgor agrees that in any sale of any of the Collateral, the Administrative Agent is authorized to comply with any limitation or restriction in connection with such sale as counsel may advise the Administrative Agent 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 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 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 Administrative Agent or any Secured Obligee be liable or accountable to the Pledgor for any discount allowed by reason of the fact that such Collateral is sold in compliance with any such limitation or restriction.
(ii) Without limiting the rights of the Administrative Agent under any other provision of this Agreement, and in addition thereto, the Pledgor agrees that, to the maximum extent permitted by law, after a Default pursuant to Section 12.1.3 of the Credit Agreement as to the Pledgor or an Event of Default shall have occurred and shall be continuing, upon written request from the Administrative Agent, the Pledgor shall or shall cause any or all of the Issuers, as the case may be, to prepare, file and cause to become effective promptly, registration statements complying with the Securities Act of 1933, as amended, for the public sale of such of the Collateral as the Administrative Agent may elect, and to take comparable action to permit such sales under the securities laws of such jurisdictions as the Administrative Agent may designate. The Pledgor further agrees to cause any or all of the Issuers, as the case may be, to enter into and perform its obligations under one or more underwriting agreements in connection therewith, containing customary representations, warranties, covenants and indemnities and contribution provisions if requested by the Administrative Agent. If such registration statements are filed, the Pledgor agrees to cause any or all of the events listed belowIssuers, Holder or (A) to keep any such registration statement and related prospectus current and in compliance with applicable federal and state securities laws so long as required to satisfy applicable prospectus delivery requirements and (B) at the holder request of this Note may forthwith or the Administrative Agent at any time thereafter after the effective date of any such registration statement, to use reasonable efforts to file post-effective amendments to such registration statement so that the Administrative Agent's sales of Pledged Shares or other Collateral will be covered by a current prospectus and can be made in compliance with all applicable federal and state securities laws.
(iii) The Pledgor further agrees, after a Default pursuant to Section 12.1.3 of the Credit Agreement as to the Pledgor or an Event of Default shall have occurred and shall be continuing, and upon written request from the Administrative Agent, to (A) deliver, and cause any or all of the Issuers to deliver, to the Administrative Agent such information as the Administrative Agent shall reasonably request for inclusion in any registration statement, prospectus or offering memorandum or in any preliminary prospectus or preliminary offering memorandum or any amendment or supplement to any thereof or in any other writing prepared in connection with the offer, sale or resale of all or any portion of the Pledged Shares or other 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 offer, sale or resale of all or any portion of the Pledged Shares or other Collateral valid and binding and in compliance with any and all applicable laws, regulations, orders, writs, injunctions, decrees or awards of any and all courts, arbitrators or governmental agencies or instrumentalities, domestic or foreign, having jurisdiction over any such offer, sale or resale. Without limiting the foregoing paragraph, if the Administrative Agent decides to exercise its right to sell all or any of the Pledged Shares or other Collateral, upon written request, the Pledgor shall furnish or cause to be furnished to the Administrative Agent all such information as the Administrative Agent may request in order to qualify such Pledged Shares or other Collateral as exempt securities, or the sale or resale of such Pledged Shares or other Collateral as exempt transactions, under federal and state securities laws. The Pledgor agrees to allow, and to cause any or all of the Issuers to allow, upon request by the Administrative Agent, the Administrative Agent and any underwriter access at reasonable times and places to the books, records and premises of any or all of the Issuers; the Pledgor further agrees to assist, and cause the Issuers to assist, the Administrative Agent, any underwriter, any agent of any thereof, and any counsel, accountant or other expert for any thereof, in inspection, evaluation, and any other "due diligence" action of or with respect to any such books, records and premises; and the Pledgor further agrees to cause any independent public accountant for any or all of the Issuers to furnish a letter to the Administrative Agent and the underwriters in customary form and covering matters of the type customarily covered by letters of accountants for issuers to underwriters.
(iv) The Pledgor, upon the occurrence and during the continuance of any such event, by notice in writing a Default under Section 12.1.3 of the Credit Agreement as to the MakerPledgor or an Event of Default, declare further agrees that the unpaid balance Administrative Agent shall have the right, for and in the name, place and stead of the principal Pledgor to execute endorsements, assignments, stock powers and other instruments of this Note conveyance or transfer with respect to be immediately due and payable, and the principal shall become and shall be immediately due and payable without presentation, demand, protest, notice of protest, or other notice of dishonor, all of which are hereby expressly waived by Maker, with full knowledge of the effect of such waiver. The events deemed as defaults shall include without limitation the following:
(a) Maker's failure to pay the principal and interest of this Note or any portion thereof when the same shall become due and payable (whether at maturity as herein expressed, by acceleration, or otherwise) unless cured within five (5) days after Holder or the holder of this Note delivers to Maker written notice of default;
(b) Maker's filing a voluntary petition in bankruptcy; or filing a voluntary petition seeking reorganization; or filing an answer admitting the jurisdiction of the court and any material allegations of an involuntary petition filed pursuant to any act of Congress relating to bankruptcy or to any act purporting to be amendatory thereof; or making an assignment for the benefit of its creditors; or applying for or consenting to the appointment of any receiver or trustee for Maker or all or any substantial portion of its property; the Collateral, and may, without demand, presentment or assigning an agent to liquidate notice of any substantial part kind appropriate and apply toward the payment of Maker's assets;the Secured Obligations in order of application set forth in Section 8 any balances, credits, deposits, accounts or monies of the Pledgor held by the Administrative Agent.
(cv) Without limiting the foregoing paragraph, upon the occurrence and during the continuance of a Default pursuant to Section 12.1.3 of the Credit Agreement as to the Pledgor or an Event of Default, the Administrative Agent may, to the fullest extent permitted by applicable law, without notice, advertisement, hearing or process of law of any kind, (A) sell any or all of the Collateral, free of all rights and claims of the Pledgor therein and thereto at any public or private sale or brokers' board, and (B) bid for and purchase any or all of the Collateral at any such public sale free from rights of redemption, stay or appraisal of the Pledgor.
(vi) The entry Pledgor further agrees to indemnify and hold harmless the Administrative Agent, the holders of the Senior Notes and the Banks and each of their respective officers, directors, employees, agents, successors and assigns, and any Person in control of any thereof, from and against any loss, liability, claim, damage and expense, including, without limitation, reasonable attorneys' fees actually incurred (i) in this paragraph collectively called the "Indemnified Liabilities"), under federal and state securities laws or otherwise insofar as such loss, liability, claim, damage or expense was caused by any court order pursuant untrue statement or alleged untrue statement of a material fact contained in any registration statement, any preliminary prospectus or the prospectus, or was caused by any omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, except insofar as such losses, claims, damages or liabilities were caused by any such untrue statement or omission or alleged untrue statement or omission based upon information relating to the Administrative Agent furnished to the Pledgor in writing by the Administrative Agent expressly for use therein, such indemnification to remain operative regardless of any investigation made by or on behalf of the Administrative Agent or any successors thereof, or any Person in control of any thereof. In connection with a public sale or other distribution, the Pledgor will provide customary indemnification to any act of Congress underwriters, their respective successors and assigns, their respective officers and directors and each Person who controls any such underwriter (or amendment thereof) relating to Maker's bankruptcy or reorganization; or (ii) any court order approving an involuntary petition for within the bankruptcy or reorganization meaning of the Maker; Securities Act of 1933, as amended). If and to the extent that the foregoing undertakings in this paragraph may be unenforceable for any reason, the Pledgor agrees to make the maximum contribution to the payment and satisfaction of each of the Indemnified Liabilities which is permissible under applicable law. The obligations of the Pledgor under this Section 7(b)(vi) shall survive any termination of this Agreement.
(vii) The Pledgor and the Administrative Agent acknowledge that the commissioners or (iii) departments of insurance of various states under all applicable insurance laws, rules and regulations may have to consent to or approve any court order appointing any receiver such sale, transfer or trustee other disposition of or for Maker or for all the Collateral and the terms and conditions thereof. The Pledgor hereby waives and agrees not to assert against the Administrative Agent or any substantial portion Secured Obligee any claim that any such sale, transfer or other disposition hereunder, or the terms or conditions thereof, were not commercially reasonable because of the Maker's property; any provision of any such insurance law, rule or (iv) any writ or warrant of attachment regulation or any similar process issued by any court against all or any substantial portion of the Maker's property (unless such court orders, writs, or warrants as identified in subpoints (i) to (iv) of this paragraph are vacated or stayed or released or bonded within 60 days after their entry)matter related thereto.
Appears in 1 contract
Sources: Pledge Agreement (Conseco Inc Et Al)
Default. Upon (a) Whenever a Default exists, the occurrence Collateral Agent may exercise from time to time any right or during remedy available to it under the continuance UCC, under any other applicable law and/or as described below. Without limiting the generality of the foregoing, each Debtor expressly agrees that in any such event Collateral Agent, without demand of performance or other demand, advertisement or notice of any one or more kind (except the notice specified below of the events listed below, Holder time and place of public or the holder of this Note may forthwith private sale) to or at upon any time thereafter during the continuance of Debtor or any such event, by notice in writing to the Maker, declare the unpaid balance of the principal of this Note to be immediately due other Person (all and payable, and the principal shall become and shall be immediately due and payable without presentation, demand, protest, notice of protest, or other notice of dishonor, all each of which demands, advertisements and notices are hereby expressly waived to the maximum extent permitted by Makerthe UCC and other applicable law), with full knowledge may forthwith enter upon the premises of each Debtor where any Collateral is located through self-help, without judicial process, without first obtaining a final judgment or giving any Debtor or any other Person notice and opportunity for a hearing on Collateral Agent’s claim or action and may collect, receive, assemble, process, appropriate and realize upon the Collateral, or any part thereof, and may forthwith sell, lease, license, assign, give an option or options to purchase, or sell or otherwise dispose of and deliver said Collateral (or contract to do so), or any part thereof, in one or more parcels at a public or private sale or sales, at any exchange at such prices as it may deem acceptable, for cash or on credit or for future delivery without assumption of any credit risk. Collateral 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 for the benefit of the effect of such waiver. The events deemed as defaults shall include without limitation Lender Parties, the following:
(a) Maker's failure to pay the principal and interest of this Note whole or any portion thereof when part of said Collateral so sold, free of any right or equity of redemption, which right of redemption each Debtor hereby releases. Such sales may be adjourned and continued from time to time with or without notice. Collateral Agent shall have the same right to conduct such sales on any Debtor’s premises or elsewhere and shall become due and payable (whether at maturity have the right to use any Debtor’s premises without charge for such time or times as herein expressed, by acceleration, Collateral Agent deems necessary or otherwise) unless cured within five (5) days after Holder or the holder of this Note delivers to Maker written notice of default;advisable.
(b) Maker's filing Each Debtor agrees, if a voluntary petition Default exists, (i) to assemble, at its expense, all its Inventory and other Goods (other than Fixtures) at a convenient place or places acceptable to the Collateral Agent and (ii) to execute all documents and do all other things that may be necessary in bankruptcy; order to enable the Collateral Agent or filing a voluntary petition seeking reorganization; or filing an answer admitting the jurisdiction its nominee to be registered as owner of the court Intellectual Property with any competent registration authority. For the purpose of enabling Collateral Agent to exercise rights and any material allegations remedies under Section 7 hereof, in order to take possession of hold, preserve, process, assemble, prepare for sale, market for sale, sell or otherwise dispose of Collateral) at such time as Collateral Agent shall be lawfully entitled to exercise such rights and remedies, to the extent Debtor is not contractually prohibited from doing so, each Debtor hereby grants to Collateral Agent on behalf of the Lender Parties, an involuntary petition filed pursuant irrevocable, nonexclusive license (exercisable without payment of royalty or other compensation to any act Debtor) to use, license, or sublicense any intellectual property now owned or hereafter acquired by any Debtor, and wherever the same may be located, and including in such license access to all media in which any of Congress relating the licensed items may be recorded or stored and to bankruptcy or to any act purporting to be amendatory thereof; or making an assignment all computer software and programs used for the benefit of its creditors; compilation or applying for or consenting to the appointment of any receiver or trustee for Maker or all or any substantial portion of its property; or assigning an agent to liquidate any substantial part of Maker's assets;printout thereof.
(c) The entry of Each Debtor agrees and acknowledges that (i) any court order pursuant with respect to any act Collateral that is: (A) perishable or threatens to decline speedily in value or (B) is of Congress (or amendment thereof) relating to Maker's bankruptcy or reorganizationa type customarily sold on a recognized market, no notice of disposition need be given; or and (ii) with respect to Collateral not described in clause (i) above, notification sent after a Default and at least ten days before any court order approving an involuntary petition for proposed disposition provides notice a reasonable time before such disposition.
(d) Each Debtor 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 bankruptcy or reorganization sale of, such Collateral. Each Debtor further agrees and acknowledges that a disposition (i) made in the usual manner on any recognized market, (ii) at the price current in any recognized market at the time of the Maker; disposition or (iii) in conformity with reasonable commercial practices among sellers of the type of property subject to such disposition shall, in each case, be deemed commercially reasonable.
(e) Any cash proceeds of any disposition by the Collateral Agent of any Collateral shall be applied by the Collateral Agent, at the direction of the Required Lenders, to the payment of the Liabilities until paid in full, and any surplus will be paid to the applicable Debtor or as a court order appointing of competent jurisdiction shall direct.
(f) Collateral Agent may at any receiver time after a Default has occurred and is continuing (or trustee if any rights of set-off (other than set-offs against an Account arising under the contract giving rise to the same Account) or for Maker contra accounts may be asserted with respect to the following), without prior notice to any Debtor, notify Account Debtors and other Persons obligated on the Collateral that the Lender Parties have a security interest therein, and that payments shall be made directly to Collateral Agent. Upon the request of Collateral Agent, each Debtor shall so notify Account Debtors and other Persons obligated on Collateral. Once any such notice has been given to any Account Debtor or for all other Person obligated on the Collateral, no Debtor shall give any contrary instructions to such Account Debtor or other Person without Collateral Agent’s prior written consent.
(g) Except as otherwise specifically provided herein, each Debtor hereby waives presentment, demand, protest or any substantial portion notice (to the maximum extent permitted by applicable law) of any kind in connection with this Security Agreement or any Collateral. Collateral Agent and the Lender Parties shall not be required to make any demand upon, or pursue or exhaust any of their rights or remedies against, any Debtor, any other obligor, guarantor, pledgor or any other Person with respect to the payment of the Maker's property; Liabilities or (iv) to pursue or exhaust any writ of their rights or warrant of attachment remedies with respect to any Collateral therefor or any similar process issued by any court against all direct or indirect guarantee thereof. Collateral Agent and the Lender Parties shall not be required to marshal the Collateral or any substantial portion guarantee of the Maker's property (unless Liabilities or to resort to the Collateral or any such court ordersguarantee in any particular order, writsand all of its and their rights hereunder or under any other Loan Document shall be cumulative. To the extent it may lawfully do so, each Debtor absolutely and irrevocably waives and relinquishes the benefit and advantage of, and covenants not to assert against Collateral Agent or the Lender Parties, any valuation, stay, appraisement, extension, redemption or similar laws and any and all rights or defenses it may have as a surety now or hereafter existing which, but for this provision, might be applicable to the sale of any Collateral made under the judgment, order or decree of any court, or warrants as identified privately under the power of sale conferred by this Security Agreement, or otherwise.
(h) To the extent that applicable law imposes duties on Collateral Agent and the Secured Parties to exercise remedies in subpoints a commercially reasonable manner, each Debtor acknowledges and agrees that it is not commercially unreasonable for Collateral Agent (i) to fail to incur expenses reasonably deemed significant by Collateral Agent to prepare Collateral for disposition or otherwise to complete raw material or work in process into finished goods or other finished products for disposition, (ii) to fail to obtain third party consents for access to Collateral to be disposed of, or to obtain or, if not required by other law, to fail to obtain governmental or third party consents for the collection or disposition of Collateral to be collected or disposed of, (iii) to fail to exercise collection remedies against Account Debtors or other Persons obligated on Collateral or to remove Liens on or any adverse claims against Collateral, (iv) to exercise collection remedies against Account Debtors and other Persons obligated on Collateral directly or through the use of collection agencies and other collection specialists, (v) to advertise dispositions of Collateral through publications or media of general circulation, whether or not the Collateral is of a specialized nature, (vi) to contact other Persons, whether or not in the same business as any Debtor, for expressions of interest in acquiring all or any portion of such Collateral, (vii) to hire one or more professional auctioneers to assist in the disposition of Collateral, whether or not the Collateral is of a specialized nature, (viii) to dispose of Collateral by utilizing internet sites that provide for the auction of assets of the types included in the Collateral or that have the reasonable capacity of doing so, or that match buyers and sellers of assets, (ix) to dispose of assets in wholesale rather than retail markets, (x) to disclaim disposition warranties, such as title, possession or quiet enjoyment, (xi) to purchase insurance or credit enhancements to insure the Lender Parties against risks of loss, collection or disposition of Collateral or to provide to the Lender Parties a guaranteed return from the collection or disposition of Collateral, or (xii) to the extent deemed appropriate by Collateral Agent, to obtain the services of other brokers, investment bankers, consultants and other professionals to assist Collateral Agent in the collection or disposition of any of the Collateral. Each Debtor acknowledges that the purpose of this paragraph are vacated subsection (h) is to provide non-exhaustive indications of what actions or stayed omissions by Collateral Agent and the Lender Parties would not be commercially unreasonable in Collateral Agent’s exercise of remedies against the Collateral and that other actions or released omissions by Collateral Agent shall not be deemed commercially unreasonable solely on account of not being indicated in this subsection (h). Without limitation upon the foregoing, nothing contained in this subsection (h) shall be construed to grant any rights to any Debtor or bonded within 60 days after their entryto impose any duties on Collateral Agent or the Lender Parties that would not have been granted or imposed by this Security Agreement or by applicable law in the absence of this subsection (h).
Appears in 1 contract
Default. Upon 4.1 Events of Default shall have the occurrence meaning as in Article 18 of the Loan Agreement and in addition include any material breach by the Pledgor of any of the respective representations, warranties, covenants or during agreements in this Pledge Agreement. If an Event of Default should occur and be continuing under the continuance Loan Agreement and all applicable grace periods have expired, then the Secured Party, in addition to the remedies provided for in Article 14, Paragraph 2. of the Loan Agreement, is authorized and may exercise any one or more of the events listed belowrights and remedies granted pursuant to this Pledge Agreement or given to a secured party under the Uniform Commercial Code of the State of New York, Holder as it may be amended from time to time, or the holder of this Note may forthwith otherwise at law or at any time thereafter during the continuance in equity and to sell or otherwise dispose of any such event, by notice in writing to the Maker, declare the unpaid balance or all of the principal of this Note to be immediately due and payable, and the principal shall become and shall be immediately due and payable without presentation, demand, protest, notice of protest, Collateral at public or other notice of dishonor, all of which are hereby expressly waived by Makerprivate sale, with full knowledge of the effect of or without advertisement thereof, upon such waiver. The events deemed terms and conditions as defaults shall include without limitation the following:it may reasonably deem advisable.
(a) Maker's failure At any bona fide public sale, and to pay the principal and interest of this Note extent permitted by law, at any private sale, the Secured Party shall be free to purchase all or any portion thereof when part of the same Collateral, free of any right or equity of redemption in the Pledgor or Borrower, which right or equity is hereby waived and released. Any such sale may be on cash or credit. The Secured Party shall become due be authorized at any such sale (if it deems it advisable to do so) to restrict the prospective bidders or purchasers to persons who will represent and payable (whether agree that they are purchasing the Collateral for their own account in compliance with Regulation D of the Securities Act of 1933 or any other applicable exemption available under such Securities Act. The Secured Party will not be obligated to make any sale if it determines not to do so, regardless of the fact that notice of the sale may have been given. The Secured Party may adjourn any sale and sell at maturity as herein expressedthe time and place to which the sale is adjourned. If the Collateral is customarily sold on a recognized market or threatens to decline speedily in value, the Secured Party may sell such Collateral at any time without giving prior notice to the Pledgor. Whenever notice is otherwise required by accelerationlaw to be sent by the Secured Party to the Pledgor of any sale or other disposition of the Collateral, or otherwise) unless cured within five (5) days after Holder or the holder of this Note delivers to Maker written notice of default;sent to the Pledgor at its address specified above will be reasonable.
(b) Maker's filing The Pledgor recognizes that the Secured Party may be unable to effect or cause to be effected a voluntary petition in bankruptcy; or filing a voluntary petition seeking reorganization; or filing an answer admitting the jurisdiction public sale of the court Collateral by reason of certain prohibitions contained in the Securities Act or applicable state blue sky laws, so that the Secured Party may be compelled to resort to one or more private sales to a restricted group of purchasers who will be obligated to agree, among other things, to acquire the Collateral for their own account, for investment and any material allegations without a view to the distribution or resale thereof. The Pledgor understands that private sales so made may be at prices and on other terms less favorable to the seller than if the Collateral was sold at public sales, and agrees that the Secured Party has no obligation to delay or agree to delay the sale of an involuntary petition filed pursuant to any act of Congress relating to bankruptcy or to any act purporting to be amendatory thereof; or making an assignment the Collateral for the benefit period of its creditors; or applying time necessary to permit the issuer of the Pledged Securities, to register such Pledged Securities for or consenting sale under the Securities Act. The Pledgor agrees that private sales made under the foregoing circumstances shall not be deemed to have been made in a commercially unreasonable manner solely by virtue of such sale being private.
4.3 The net proceeds arising from the disposition of the Collateral after deducting reasonable expenses incurred by the Secured Party will be applied to the appointment Loan in the order determined by the Secured Party. If any excess remains after the discharge of the Loan, the same will be paid to the Pledgor. If after exhausting all of the Collateral there is a deficiency, the Borrower will be liable therefor to the Secured Party; provided, however, that nothing contained herein will obligate the Secured Party to proceed against the Pledgor, the Borrower or any other party obligated under the Loan or against any other collateral for the Loan prior to proceeding against the Collateral.
4.4 If any demand is made at any time upon the Secured Party for the repayment or recovery of any receiver amount received by it in payment or trustee for Maker or on account of any part of the Loan and if the Secured Party repays all or any substantial portion of its property; or assigning an agent to liquidate any substantial part of Maker's assets;
(c) The entry such amount by reason of (i) any judgment, decree or order of any court order pursuant to or administrative body or by reason of any act settlement or compromise of Congress (or amendment thereof) relating to Maker's bankruptcy or reorganization; or (ii) any court order approving an involuntary petition such demand, the Pledgor will be and remain liable for the bankruptcy amounts so repaid or reorganization recovered to the same extent as if such amount had never been originally received by the Secured Party. The provisions of this section will be and remain effective notwithstanding the release of any of the Maker; or Collateral by the Secured Party in reliance upon such payment (iii) any court order appointing any receiver or trustee of or for Maker or for all or any substantial portion in which case the Pledgor's liability will be limited to an amount equal to the fair market value of the Maker's property; or (iv) any writ or warrant of attachment or any similar process issued by any court against all or any substantial portion Collateral determined as of the Makerdate such Collateral was released) and any such release will be without prejudice to the Secured Party's property (unless rights hereunder and will be deemed to have been conditioned upon such court orders, writs, or warrants as identified in subpoints (i) to (iv) payment having become final and irrevocable. This Section shall survive the termination of this paragraph are vacated or stayed or released or bonded within 60 days after their entry)Pledge Agreement.
Appears in 1 contract
Default. Upon the occurrence Customer shall be deemed to be in default should Customer in any way fail to pay any amount when due hereunder, or during the continuance to perform, observe or keep any provision of this Rental Agreement, or should Customer become "Insolvent" (as defined herein), or should Savant anticipate that Customer may become Insolvent or that Customer may otherwise become in default. If Customer is in default, Savant may do any one or more of the events listed below, Holder or following: (a) terminate the holder of this Note may forthwith or at any time thereafter during the continuance of any such event, by notice in writing to the Maker, Rental Period; (b) declare the unpaid balance of the principal of this Note to be immediately entire amounts due and payable, and the principal shall become and shall be hereunder immediately due and payable and commence legal action therefor; (c) cause Savant's employees or agents, with notice but without presentationlegal process, demandto enter upon Customer's property and take all action necessary to retake and repossess the Equipment, protestand Customer hereby consents to such entry, notice re-taking and re- possession and hereby waives all claims for damages and losses, physical and pecuniary, caused thereby and shall pay all costs and expenses incurred by Savant in retaking and repossessing plus an administrative charge equal to an additional 50 percent of protestsuch total costs and expenses; or (d) pursue any other remedies available by law. Customer shall be considered "Insolvent" if Customer
(i) shall generally not pay, or other notice of dishonorshall be unable to pay, all of which are hereby expressly waived by Maker, with full knowledge of the effect of such waiver. The events deemed as defaults or shall include without limitation the following:
(a) Maker's failure admit its inability or anticipated inability to pay the principal and interest of this Note or any portion thereof when the same shall its debts as such debts become due and payable (whether at maturity as herein expressed, by acceleration, or otherwise) unless cured within five (5) days after Holder or the holder of this Note delivers to Maker written notice of default;
(b) Maker's filing a voluntary petition in bankruptcydue; or filing a voluntary petition seeking reorganization; or filing an answer admitting the jurisdiction of the court and any material allegations of an involuntary petition filed pursuant to any act of Congress relating to bankruptcy or to any act purporting to be amendatory thereof; or making (ii) shall make an assignment for the benefit of its creditors; , or applying petition or apply to any tribunal for or consenting to the appointment of any receiver a custodian, receiver, or trustee for Maker it or all or any substantial portion of its property; or assigning an agent to liquidate any a substantial part of Maker's its assets;
(c) The entry of (i) any court order pursuant to any act of Congress (or amendment thereof) relating to Maker's bankruptcy or reorganization; or (ii) any court order approving an involuntary petition for the bankruptcy or reorganization of the Maker; or (iii) shall commence any court proceeding under any bankruptcy, reorganization, arrangement, readjustment of debt, dissolution, or liquidation law or statute of any jurisdiction, whether now or hereafter in effect; or (iv) shall have had any such petition or application filed or any such proceeding commenced against it in which an order appointing for relief is entered or an adjudication or appointment is made; or (v) shall take any receiver action indicating its consent to, approval of, or acquiescence in any such petition, application, proceeding, or order for relief or the appointment of a custodian, receiver, or trustee of or for Maker or for all or any substantial portion part of the Maker's property; or (iv) any writ or warrant of attachment or any similar process issued by any court against all or any substantial portion of the Maker's property (unless such court orders, writs, or warrants as identified in subpoints (i) to (iv) of this paragraph are vacated or stayed or released or bonded within 60 days after their entry)its properties.
Appears in 1 contract
Sources: Master Equipment Rental Agreement
Default. Upon (a) Any of the following events or conditions shall constitute an event of default ("Event of Default"): (i) non-payment when due whether by acceleration or otherwise of the principal of or interest on any Indebtedness, time being of the essence, or failure by the Debtor to perform any material obligations under this Agreement or under any other material agreement between the Debtor and the Secured Party; (ii) dissolution or other termination of the legal existence of 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 or during the continuance of any one event described in paragraph 6(a)(ii),(iii) or more (iv) hereof with respect to any endorser or guarantor or any party liable for payment of the events listed belowany Indebtedness or (vi) material falsity in any certificate, Holder statement, representation, warranty or the holder of this Note may forthwith or audit at any time thereafter during furnished to the continuance Secured Party by or on behalf of the Debtor or any endorser or guarantor or any other party liable for payment of any such eventIndebtedness, 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) The Secured Party may declare all or any part of the 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 Indebtedness or the performance of the Debtor's obligations under this Agreement or any other agreement now or hereafter in effect between the Debtor and the Secured Party is impaired. This paragraph is not intended to affect any rights of the Secured Party with respect to any Indebtedness which may now or hereafter be payable on demand.
(c) Upon the happening 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 from time to time in effect. 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 ten 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 this Agreement or to any other address which the Debtor has specified in writing to the MakerSecured Party as the address to which notices shall be given to the Debtor.
(e) The Debtor shall pay all reasonable costs and expenses incurred by the Secured Party in enforcing this Security Agreement, declare the unpaid balance of the principal of this Note to be immediately due realizing upon any Collateral and payablecollecting any Indebtedness (including a reasonable attorneys' fee) whether suit is brought or not and whether incurred in connection with collection, and the principal shall become trial, appeal or otherwise, and shall be immediately due and payable without presentation, demand, protest, notice liable for any deficiencies in the event the proceeds of protest, or other notice of dishonor, all of which are hereby expressly waived by Maker, with full knowledge disposition of the effect of such waiver. The events deemed as defaults shall include without limitation Collateral does not satisfy the following:
(a) Maker's failure to pay the principal and interest of this Note or any portion thereof when the same shall become due and payable (whether at maturity as herein expressed, by acceleration, or otherwise) unless cured within five (5) days after Holder or the holder of this Note delivers to Maker written notice of default;
(b) Maker's filing a voluntary petition Indebtedness in bankruptcy; or filing a voluntary petition seeking reorganization; or filing an answer admitting the jurisdiction of the court and any material allegations of an involuntary petition filed pursuant to any act of Congress relating to bankruptcy or to any act purporting to be amendatory thereof; or making an assignment for the benefit of its creditors; or applying for or consenting to the appointment of any receiver or trustee for Maker or all or any substantial portion of its property; or assigning an agent to liquidate any substantial part of Maker's assets;
(c) The entry of (i) any court order pursuant to any act of Congress (or amendment thereof) relating to Maker's bankruptcy or reorganization; or (ii) any court order approving an involuntary petition for the bankruptcy or reorganization of the Maker; or (iii) any court order appointing any receiver or trustee of or for Maker or for all or any substantial portion of the Maker's property; or (iv) any writ or warrant of attachment or any similar process issued by any court against all or any substantial portion of the Maker's property (unless such court orders, writs, or warrants as identified in subpoints (i) to (iv) of this paragraph are vacated or stayed or released or bonded within 60 days after their entry)full.
Appears in 1 contract
Default. Upon In case an Event of Default as defined in the occurrence Indenture shall have occurred, the principal of all Bonds then Outstanding under the Indenture may become due and payable prior to their scheduled maturity date. The Bonds are and will be equally and ratably secured, to the extent provided in the Indenture, by the Installment Loan Payments to be received by the Trustee from the Company under the Loan Agreement and other amounts payable by the Company under the Loan Agreement. The Issuer has pledged and assigned to the Trustee as security for the payment of the Bonds all other rights, title and interest of the Issuer in (a) the Loan Agreement (except for the indemnification rights, consent rights and expense reimbursement rights contained therein), and (b) all amounts on deposit from time to time in the various funds created in, and subject to the conditions set forth, in the Indenture. No Registered Owner shall have any right to pursue any remedy under the Indenture unless (a) the Trustee shall have been given written notice of an Event of Default; (b) the Registered Owners of at least 25% in principal amount of the Bonds then Outstanding shall have requested the Trustee, in writing, to exercise the powers granted in the Indenture or to pursue such remedy in its or their name or names; (c) the Trustee shall have been offered indemnity satisfactory to it against costs, expenses and liabilities; and (d) the Trustee shall have failed to comply with such request within a reasonable time. The Bonds are being issued by means of a book entry system, with actual bond certificates evidencing ownership of the Bonds immobilized at The Depository Trust Company, New York, New York (the "Securities Depository"), or its successor as Securities Depository. Transfers of beneficial ownership of the Bonds shall be effected on the records of the Securities Depository and its participants pursuant to the rules and procedures established by the Securities Depository. So long as the Bonds are issued in book‑entry form, actual bond certificates are not available for distribution to the beneficial owners and the principal, redemption premium (if any), purchase price and interest on the Bonds are payable to Cede & Co., as nominee of the Securities Depository. Transfer of principal, redemption premium (if any) and interest payments to participants of the Securities Depository is the responsibility of the Securities Depository; transfers of principal, redemption premium (if any) and interest to beneficial owners of the Bonds by participants of the Securities Depository will be the responsibility of such participants and other nominees of beneficial owners. The Issuer and the Trustee are not responsible or liable for maintaining, supervising or reviewing the records maintained by the Securities Depository, its participants or persons acting through such participants. If the Bonds are no longer registered to a Securities Depository or its nominee: (a) this Bond may be registered as transferred only upon the registration books kept for that purpose at the designated corporate trust office of the Trustee by the registered owner hereof in person, or by his or her attorney duly authorized in writing, upon presentation and surrender to the Trustee of this Bond duly endorsed for registration of transfer or accompanied by an assignment duly executed by the registered owner or his or her attorney duly authorized in writing, and thereupon a new registered certificate, in the same aggregate principal amount and of the same maturity shall be issued to the transferee in exchange therefor; and (b) this Bond may be exchanged by the registered owner hereof or his or her duly authorized attorney upon presentation at the designated corporate trust office of the Trustee for an equal aggregate principal amount of Bonds of the same maturity and in any Authorized Denomination in the manner, subject to the conditions and upon payment of charges, if any, provided in the Indenture. Except in the case of a partial redemption and in connection with the remarketing of Bonds purchased by the Company, the Trustee shall not be obligated to effect any such exchange or transfer of Bonds during the continuance fifteen (15) days immediately preceding the date of mailing of any one or more notice of the events listed below, Holder or the holder of this Note may forthwith redemption or at any time thereafter during following the continuance mailing of any such eventnotice in the case of Bonds selected for such redemption. The Indenture and the Loan Agreement may be modified or amended only with the consent, with certain exceptions as described in the Indenture, of the Registered Owners of not less than a majority, or in certain instances 100%, in aggregate principal amount of all Bonds Outstanding under the Indenture. Reference is hereby made to the Indenture and the Loan Agreement, copies of which are on file with the Trustee, for the provisions, among others, with respect to the nature and extent of the rights, duties and obligations of the Issuer, the Company, the Trustee and the Registered Owners of the Bonds. The Registered Owner of this Bond, by notice in writing the acceptance hereof, is deemed to have agreed and consented to the Makerterms and provisions of the Indenture and the Loan Agreement. The Issuer and the Trustee shall be entitled to treat and consider the Person in whose name this Bond is registered in the registration books the absolute owner of this Bond for the purpose of payment of principal, declare premium, if any, and interest with respect to this Bond, for the unpaid balance purpose of giving notices of redemption and other matters with respect to this Bond, for the purpose of registering transfers with respect to this Bond, and for all other purposes whatsoever. No recourse shall be had for the payment of the principal of or interest on this Note to be immediately due and payableBond, or for any claim based hereon, against any member, officer or employee, past, present or future, of the Issuer or of any successor body, as such, either directly or through the Issuer or through any such successor body, under any constitutional provision, statute or rule of law, or by the enforcement of any assessment or by any legal or equitable proceeding or otherwise, and all such liability of such members, officers or employees is released as a condition of and as consideration for the execution and issuance of this Bond. Whenever the due date for payment of interest on or principal shall become and of this Bond shall be immediately a Saturday, Sunday or a day on which banking institutions in the Commonwealth of Pennsylvania are authorized by law to close (a "Holiday"), then the payment of such interest or principal need not be made on such date, but may be made on the succeeding day which is not a Holiday, with the same force and effect as if made on the due and payable without presentation, demand, protest, notice date for payment of protestprincipal or interest. This Bond shall not be entitled to any right or benefit under the Indenture, or other notice of dishonorbe valid or become obligatory for any purpose, all of which are hereby expressly waived until this Bond shall have been authenticated by Makerexecution by the Trustee, with full knowledge acting as authenticating agent, of the effect certificate of such waiver. The events deemed as defaults shall include without limitation the following:
(a) Maker's failure to pay the principal and interest of this Note or any portion thereof when the same shall become due and payable (whether at maturity as herein expressed, by acceleration, or otherwise) unless cured within five (5) days after Holder or the holder of this Note delivers to Maker written notice of default;
(b) Maker's filing a voluntary petition in bankruptcy; or filing a voluntary petition seeking reorganization; or filing an answer admitting the jurisdiction of the court and any material allegations of an involuntary petition filed pursuant to any act of Congress relating to bankruptcy or to any act purporting to be amendatory thereof; or making an assignment for the benefit of its creditors; or applying for or consenting to the appointment of any receiver or trustee for Maker or all or any substantial portion of its property; or assigning an agent to liquidate any substantial part of Maker's assets;
(c) The entry of (i) any court order pursuant to any act of Congress (or amendment thereof) relating to Maker's bankruptcy or reorganization; or (ii) any court order approving an involuntary petition for the bankruptcy or reorganization of the Maker; or (iii) any court order appointing any receiver or trustee of or for Maker or for all or any substantial portion of the Maker's property; or (iv) any writ or warrant of attachment or any similar process issued by any court against all or any substantial portion of the Maker's property (unless such court orders, writs, or warrants as identified in subpoints (i) to (iv) of this paragraph are vacated or stayed or released or bonded within 60 days after their entry)authentication inscribed hereon.
Appears in 1 contract
Sources: Trust Indenture (York Water Co)
Default. Upon The Bank shall give notice of default, but such notice shall not affect any of the occurrence or during Bank’s rights under this Agreement nor shall such notice be required as a condition precedent to a default hereunder. The Borrower shall be in default under this Agreement and under all other agreements with the continuance Bank upon the happening of any one or more of the following events listed belowor conditions, Holder without demand or notice from the holder of this Note may forthwith or at any time thereafter during the continuance of any such event, by notice in writing to the Maker, declare the unpaid balance of the principal of this Note to be immediately due and payable, and the principal shall become and shall be immediately due and payable without presentation, demand, protest, notice of protest, or other notice of dishonor, all of which are hereby expressly waived by Maker, with full knowledge of the effect of such waiverBank:
5.1. The events deemed as defaults shall include without limitation the following:
(a) Maker's Borrower’s failure to pay the principal and interest of this Note or when due any portion thereof when the same shall become due and payable (Obligation, whether at maturity as herein expressedby maturity, by acceleration, acceleration or otherwise) unless cured within , after having been given a five (5) day grace period;
5.2. Any warranty, representation or statement made or furnished to the Bank by, or on behalf of, the Borrower is materially false;
5.3. The Borrower’s failure to perform any of its agreements, obligations, warranties or representations in this Agreement shall represent a default unless such failure is cured within thirty (30) days after Holder from its occurrence;
5.4. The Borrower’s failure to perform any agreement with any other person or entity for borrowed money or lease of real or personal property shall represent a default unless such failure is cured within thirty (30) days from its occurrence or is otherwise contested in good faith and on a reasonable basis by the Borrower;
5.5. A breach, default or event of default shall occur under any other agreement between the Borrower and the Bank;
5.6. The Borrower’s dissolution, termination of existence, insolvency, cessation of normal business operations, business failure, or the holder calling of this Note delivers to Maker written notice of default;
(b) Maker's filing a voluntary petition in bankruptcy; or filing a voluntary petition seeking reorganization; or filing an answer admitting the jurisdiction meeting of the court and Borrower’s creditors, or the Borrower’s admission of its inability to pay its debts as they become due or proposal of a moratorium or composition with any material allegations of its creditors, or the appointment of a custodian or receiver of any part of the Borrower’s property, or the making of an involuntary petition filed pursuant to any act of Congress relating to bankruptcy assignment or to any act purporting to be amendatory thereof; or making an assignment trust mortgage for the benefit of its creditors; creditors by the Borrower, or applying the recording or existence of any lien for unpaid taxes after having been given thirty days to contest a lien, or consenting the commencement of any proceeding under any bankruptcy or insolvency law by or against the Borrower. However, the commencement of any involuntary bankruptcy or involuntary insolvency proceeding against the Borrower will give the Borrower a sixty (60) day cure period before any such proceeding becomes a default;
5.7. The occurrence of any Event of Default with respect to any guarantor, endorser, or surety to the appointment of any receiver or trustee for Maker or all or any substantial portion of its propertyBank; or assigning an agent to liquidate any substantial part of Maker's assets;or
(c) The entry of (i) any court order pursuant to any act of Congress (or amendment thereof) relating to Maker's bankruptcy or reorganization; or (ii) any court order approving an involuntary petition for 5.8. Any material adverse expansion in the bankruptcy or reorganization nature of the Maker; or (iii) any court order appointing any receiver or trustee of or for Maker or for all or any substantial portion of the Maker's property; or (iv) any writ or warrant of attachment or any similar process issued by any court against all or any substantial portion of the Maker's property (unless such court orders, writs, or warrants as identified in subpoints (i) to (ivBorrower’s principal line(s) of this paragraph are vacated or stayed or released or bonded within 60 days after their entry)business, beyond the scope of, vascular surgery, interventional radiology and cardiovascular surgery.
Appears in 1 contract
Default. Upon the occurrence or during the continuance of Trustor shall be in default hereunder if any one or more of the events listed below, Holder following ("Event of Default" or "event of default") shall occur:
a. Trustor fails to pay any indebtedness secured hereby or hereunder when due;
b. Trustor fails to perform any obligation of or agreement by Trustor in this Deed of Trust or any of the holder other Related Documents;
c. This Deed of this Note may forthwith or Trust shall at any time thereafter during the continuance of be junior in position to any such eventlien, claim, or interest, by notice in writing instrument or otherwise encumbering the Trust Property unless the Beneficiary hereunder is also the Beneficiary of such lien, claim or interest;
d. Trustor fails to timely pay or to perform any obligation or agreement of Trustor with respect to obligation which may have a priority greater than the Maker, declare the unpaid balance of the principal lien of this Note to be immediately due and payableDeed of Trust.
e. The filing of a voluntary or involuntary petition under any bankruptcy statute, and the principal shall become and shall be immediately due and payable without presentationas now in effect or as hereafter amended, demand, protest, notice of protestby or against Trustor, or other notice the adjudication of dishonor, all Trustor as bankrupt or insolvent by a decree of which are hereby expressly waived by Maker, with full knowledge a court of the effect of such waiver. The events deemed as defaults shall include without limitation the following:
(a) Maker's failure to pay the principal and interest of this Note or any portion thereof when the same shall become due and payable (whether at maturity as herein expressed, by accelerationcompetent jurisdiction, or otherwise) unless cured within five (5) days after Holder or the holder of this Note delivers to Maker written notice of default;
(b) Maker's filing a voluntary petition in bankruptcy; or filing a voluntary petition seeking reorganization; or filing an answer admitting the jurisdiction of the court and any material allegations making of an involuntary petition filed pursuant to any act of Congress relating to bankruptcy or to any act purporting to be amendatory thereof; or making an assignment by Trustor for the benefit of creditors, or the admission by Trustor in writing of its creditors; inability to pay its debts generally as they become due, or applying for or consenting to if Trustor shall allow the appointment of any receiver a receiver, trustee, conservator, custodian (as that term is defined in the Federal Bankruptcy Code), or trustee for Maker or liquidator of all or any substantial portion of its property; or assigning an agent to liquidate any substantial part of Maker's assetsthe Trust Property, or if any of the Trust Property is levied upon by virtue of any execution, attachment, tax levy, or other writ, or if liens are filed against the Trust Property or any part thereof;
(c) f. The entry abandonment of (i) all or any court order part of the Trust Property;
g. The breach of any written warranty, covenant, representation or certification given in connection herewith or in connection with Trustor's purchase of the real property secured hereby;
h. Institution of foreclosure or other proceedings, to enforce against the Trust Property or any part thereof, pursuant to any act deed of Congress (trust or amendment thereof) relating to Maker's bankruptcy junior security interest or reorganization; other lien or (ii) encumbrance of any court order approving an involuntary petition for the bankruptcy or reorganization of the Maker; or (iii) kind upon any court order appointing any receiver or trustee of or for Maker or for all or any substantial portion of the Maker's property; Trust Property;
i. Any other event shall occur which, under this Deed of Trust or (iv) any writ or warrant under the terms of attachment the Note or any similar process issued other Related Document constitutes a default by any court against all Trustor hereunder, or thereunder or gives Beneficiary the right to accelerate the maturity of the indebtedness, or any substantial portion part thereof, secured hereby;
j. Any other event shall occur which, under the provisions of any of the Maker's property (unless such court orders, writs, other Related Documents constitutes a default thereunder;
k. The dissolution or warrants as identified in subpoints (i) to (iv) termination of this paragraph are vacated or stayed or released or bonded within 60 days after their entry)Trustor.
Appears in 1 contract
Default. Upon (a) Each of the following shall constitute an “Event of Default” hereunder: (i) the occurrence or during the continuance of any one Event of Default under the Loan Agreement; (ii) failure by the Borrower to perform any material obligations under this Agreement, the Note or more any other agreement between the Borrower and the Bank or by the Borrower in favor of the events listed belowBank, Holder time being of the essence; (iii) the commencement of any bankruptcy or insolvency proceedings by or against the holder of this Note may forthwith Borrower; (iv) material falsity in any certificate, statement, representation, warranty or audit at any time thereafter during furnished by or on behalf of the continuance Borrower or any endorser or guarantor or any other party liable for payment of any such eventall or part of the Secured Obligations, by notice pursuant to or in writing connection with this Agreement or otherwise to the MakerBank, declare the unpaid balance of the principal of including warranties in this Note Agreement and including any omission to be immediately due and payable, and the principal shall become and shall be immediately due and payable without presentation, demand, protest, notice of protest, disclose any substantial contingent or other notice of dishonor, all of which are hereby expressly waived by Maker, with full knowledge of the effect of such waiver. The events deemed as defaults shall include without limitation the following:
(a) Maker's failure to pay the principal and interest of this Note liquidated liabilities or any portion thereof when material adverse change in facts disclosed by any certificate, statement, representation, warranty or audit furnished to the same shall become due and payable Bank; or (whether at maturity as herein expressed, by acceleration, v) any attachment or otherwise) unless cured within five (5) days after Holder levy against the Collateral or any other occurrence that inhibits the holder of this Note delivers Bank’s free access to Maker written notice of default;the Collateral.
(b) Maker's filing a voluntary petition in bankruptcy; Upon the occurrence of an Event of Default, the Bank may exercise such remedies and rights as are available hereunder, under the Loan Agreement or filing a voluntary petition seeking reorganization; otherwise. This paragraph is not intended to affect or filing an answer admitting the jurisdiction impair any rights of the court and any material allegations of an involuntary petition filed pursuant Bank with respect to any act of Congress relating to bankruptcy Secured Obligations that may now or to any act purporting to hereafter be amendatory thereof; or making an assignment for the benefit of its creditors; or applying for or consenting to the appointment of any receiver or trustee for Maker or all or any substantial portion of its property; or assigning an agent to liquidate any substantial part of Maker's assets;payable on demand.
(c) Upon the occurrence of any Event of Default, the Bank’s rights with respect to the Collateral shall be those of a secured party under the UCC and any other applicable law in effect from time to time. The entry Bank shall also have any additional rights granted herein and in any other agreement now or hereafter in effect between the Borrower and the Bank. If requested by the Bank after the occurrence of an Event of Default, the Borrower will assemble the Collateral and make it available to the Bank at a place to be designated by the Bank.
(id) Upon the occurrence of any court order pursuant Event of Default, the Bank shall be entitled to exercise any act of Congress (or amendment thereof) relating and all rights with respect to Maker's bankruptcy or reorganization; or (ii) any court order approving an involuntary petition for the bankruptcy or reorganization of the Maker; or (iii) any court order appointing any receiver or trustee of or for Maker or for Collateral and to sell all or any substantial portion part of the Maker's property; Collateral at public or private sale in accordance with the UCC, without advertisement, in such manner and order as the Bank may elect subject to complying with the UCC. The Bank may purchase the Collateral for its own account at any such sale. The Bank 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 Bank fails to comply with this sentence in any respect, its liability for such failure shall be limited to the liability (ivif 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 Bank 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 writ such sale, the Bank 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 warrant right of attachment whatsoever kind, including any equity or right of redemption of the Borrower that may be waived or any similar process issued 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 the Bank, the Borrower expressly acknowledges and agrees that with respect to Collateral consisting of notes, bonds or other securities which are not sold on a recognized market, the Bank shall be deemed to have conducted a commercially reasonable sale of such Collateral if (a) such sale is conducted by any court against all nationally recognized broker-dealer (including any affiliate of the Bank), investment banker or any substantial portion other method common in the securities industry, and (b) if the purchaser is the Bank or any affiliate of the Maker's property Bank, the sale price received by the Bank or any such affiliate in connection with such sale is reasonably supported by quotations received from one or more other nationally recognized broker-dealers, investment bankers or other financial institutions.
(unless such court orderse) The Borrower shall pay all costs and expenses incurred by the Bank in enforcing this Agreement, writsrealizing 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, arbitration, appeal or warrants otherwise and, to the extent of the Borrower’s liability for repayment of any of the Secured Obligations, shall be liable for any deficiencies in the event the Proceeds of disposition of the Collateral do not satisfy the Secured Obligations in full. Nothing contained herein shall be deemed to require the Bank to proceed against the Collateral or any part thereof before or as identified in subpoints (i) a condition to (iv) the pursuit of this paragraph are vacated or stayed or released or bonded within 60 days after their entry)any of its other rights and remedies with respect to the Secured Obligations.
Appears in 1 contract
Sources: Loan Agreement (Unilens Vision Inc)
Default. Upon the occurrence or during the continuance of There shall be a default ("Default") under this Agreement if any one or more of the following events listed below, Holder or the holder of this Note may forthwith or at any time thereafter during the continuance of any such event, by notice in writing to the Maker, declare the unpaid balance of the principal of this Note to be immediately due and payable, and the principal shall become and shall be immediately due and payable without presentation, demand, protest, notice of protest, or other notice of dishonor, all of which are hereby expressly waived by Maker, with full knowledge of the effect of such waiver. The events deemed as defaults shall include without limitation the followingoccur:
(a) Maker's failure If Obligor shall breach any condition or obligation imposed on Obligor pursuant to pay the principal and interest terms of this Note or any portion thereof when Note, the same shall become due and payable (whether at maturity as herein expressed, by accelerationSettlement Agreement And General Release of even date, or otherwise) unless cured within five the Security Agreement of even date, provided however that if any such breach is reasonably susceptible of being cured, Obligor shall be entitled to a grace period of fifteen (515) days after Holder or the holder of this Note delivers to Maker following written notice of defaultsuch event of default to cure;
(b) Maker's filing a voluntary petition in bankruptcy; or filing a voluntary petition seeking reorganization; or filing an answer admitting the jurisdiction of the court and any material allegations of an involuntary petition filed pursuant to any act of Congress relating to bankruptcy or to any act purporting to be amendatory thereof; or making If Obligor shall make an assignment for the benefit of its creditors; or applying for or consenting to the appointment of any receiver or trustee for Maker or all or any substantial portion of its property; or assigning an agent to liquidate any substantial part of Maker's assets;
(c) The entry If a custodian, trustee, receiver, or agent is appointed or takes possession of substantially all of the property of Obligor;
(id) If Obligor shall be adjudicated bankrupt or insolvent or admit in writing Obligor's inability to pay Obligor's debts as they become due;
(e) If any court order pursuant to any act of Congress petition is filed against Obligor under the Bankruptcy Code and either (or amendment thereofA) relating to Maker's bankruptcy or reorganization; the Bankruptcy Court orders relief against Obligor, or (iiB) such petition is not dismissed by the Bankruptcy Court within thirty (30) days of the date of filing;
(f) If any court order approving an involuntary petition attachment, execution or other writ is levied on substantially all of the assets of Obligor and remains in effect for more than five (5) days; or
(g) If Obligor shall apply for or consent to the appointment of a custodian, trustee, receiver, intervenor, liquidator or agent of Obligor, or commence any proceeding related to Obligor under any bankruptcy or reorganization of the Maker; or (iii) any court order appointing any receiver or trustee of or for Maker or for all or any substantial portion of the Maker's property; or (iv) any writ or warrant of attachment or any similar process issued by any court against all or any substantial portion of the Maker's property (unless such court orders, writsstatute, or warrants as identified under any arrangement, insolvency, readjustment of debt, dissolution, or liquidation law of any jurisdiction, whether now or hereafter in subpoints (i) to (iv) effect. Obligor shall notify STAAR immediately if any event of this paragraph are vacated or stayed or released or bonded within 60 days after their entry)default occurs.
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Default. Upon the occurrence or during the continuance of any one or more of the events listed below, Holder or the holder of this Note may forthwith or at any time thereafter during the continuance of any such event, by notice in writing to the Maker, declare the unpaid balance of the principal of this Note to be immediately due and payable, and the principal shall become and shall be immediately due and payable without presentation, demand, protest, notice of protest, or other notice of dishonor, all of which are hereby expressly waived by Maker, with full knowledge of the effect of such waiver. The events deemed as defaults shall include without limitation the following:
(a) Maker's Purchaser acknowledges that any failure of Purchaser to pay close hereunder will be highly injurious to Seller and therefore if Purchaser shall fail to close for any reason other than the principal and interest default of Seller hereunder or as otherwise permitted in accordance with the terms of this Note Agreement, then, in such case, Seller may, at Seller's election and in lieu of all other remedies, (i) enforce specific performance by Purchaser of the terms of this Agreement , or, alternatively, (ii) terminate this Agreement, retain the Deposit and, to the extent that Purchaser shall incur actual damages in an amount greater than the Deposit retained by Seller as aforesaid, Seller shall be entitled to recover such excess amount from Purchaser, provided, however, that the maximum obligation of Purchaser in respect of any damages of Seller hereunder, including the Deposit, shall be $1,305,150.00.
(b) Each Seller acknowledges that the Property is of a special, unique and extraordinary character, and that any violation of this Agreement by such Seller would be highly injurious to Purchaser, and therefore, if any such Seller shall default in the performance or observance of any portion thereof when the same shall become due and payable (whether at maturity as herein expressedof its covenants, by accelerationagreements, or otherwiseobligations for any reason other than a default by Purchaser, or if any such Seller shall violate any of its representations, warranties or covenants contained in this Agreement, Purchaser shall, in addition to the rights hereinafter provided, be entitled to the immediate return of the Deposit. Upon any such Seller default, Purchaser, at Purchaser's election made in its sole and absolute discretion may exercise any and all rights and remedies available to Purchaser at law or in equity, including, without limitation, the right to enforce specific performance by Seller of the terms of this Agreement. The liability of Sellers with respect to the any liability hereunder shall be joint and several. If this Agreement is terminated by Purchaser following Seller's default, Escrow Agent shall promptly return the Deposit to Purchaser. Purchaser hereby acknowledges that the failure of Seller to obtain the Settlement Agreement or a release of the PBGC Lien does not constitute a default by Seller under this Agreement.
(c) unless cured For purposes hereof, a breach by either party hereunder shall constitute a "default" only after written notice by the non-defaulting party to the other specifically stating the alleged breach and the failure of the defaulting party to thereafter cure such breach within five (5) days after Holder or the holder receipt of this Note delivers to Maker such written notice of default;
(b) Maker's filing a voluntary petition in bankruptcy; or filing a voluntary petition seeking reorganization; or filing an answer admitting the jurisdiction of the court and any material allegations of an involuntary petition filed pursuant to any act of Congress relating to bankruptcy or to any act purporting to be amendatory thereof; or making an assignment for the benefit of its creditors; or applying for or consenting to the appointment of any receiver or trustee for Maker or all or any substantial portion of its property; or assigning an agent to liquidate any substantial part of Maker's assets;
(c) The entry of (i) any court order pursuant to any act of Congress (or amendment thereof) relating to Maker's bankruptcy or reorganization; or (ii) any court order approving an involuntary petition for the bankruptcy or reorganization of the Maker; or (iii) any court order appointing any receiver or trustee of or for Maker or for all or any substantial portion of the Maker's property; or (iv) any writ or warrant of attachment or any similar process issued by any court against all or any substantial portion of the Maker's property (unless such court orders, writs, or warrants as identified in subpoints (i) to (iv) of this paragraph are vacated or stayed or released or bonded within 60 days after their entry)notice.
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