Events of Default and Remedies. 7.01 The following acts and/or omissions shall constitute a default and material breach of this Agreement by the Contractor and shall be deemed an Event of Default if not cured within five (5) business days after written notice of default has been sent by the Authority to the Contractor, provided however, that if the default is such that more than five (5) days are required for a cure, then Contractor shall not be in default if it commences to cure the default within the five (5) day period and thereafter diligently prosecutes the same to completion: (a) Failure to comply with any of the material terms and conditions of this Agreement following written notice from the Authority and failure to cure; and/or (b) Failure to begin the Services in accordance with the terms of this Agreement; and/or (c) If the Contractor, in the judgment of the Authority, is unnecessarily or unreasonably or willfully delaying the performance and completion of the Services; and/or (d) The Contractor abandons the Services to be undertaken; and/or (e) The Authority reasonably believes that the Services cannot be completed within the time required, where in the Authority’s judgment, the delay is attributable to conditions within the Contractor’s control; and/or (f) The Contractor, without just cause, reduces its personnel to a number which in the judgment of the Authority, is insufficient to complete the Services within a reasonable time and fails to sufficiently increase such personnel when directed to do so by the Authority; and/or (g) The Contractor assigns, transfers, conveys or otherwise disposes of this Agreement, in whole, or in part, without prior approval of the Authority; and/or (h) Any Authority officer or employee acquires an interest in this Agreement so as to create a conflict of interest; and/or (i) The Contractor violates any law, charter provision, ordinance, rule, regulation, governmental order or directive; and/or (j) Failure to provide adequate inventory, vehicles, equipment and/or personnel; and/or (k) The filing of a voluntary or involuntary petition in bankruptcy or for reorganization or an arrangement, or an assignment for the benefit of creditors, or the adjudication of the Contractor as being bankrupt or insolvent, or the appointment of a receiver of, or for the Contractor if such appointment, adjudication, or similar order or ruling remains in force or unstayed for a period of thirty (30) days, or admit in writing its inability to pay its debts generally as they become due; and/or (l) The Contractor’s level of performance of the Services, in the reasonable judgment of the Authority falls below the standard of care set forth in Article II hereof and/or (m) The Contractor ceases to conduct business in the normal course, and/or (n) The Contractor fails to comply with any material terms, conditions and/or obligations of Contractor set forth herein. (o) The Contractor fails to pay any labor, tax obligations, fringe benefit funds, insurance premiums, or subcontractor invoices for Services which the Contractor has received payment from the Authority. 7.02 In the Event of Default by the Contractor, the Authority shall be entitled to exercise any and all remedies available at law and/or in equity, including, but not limited to the right to seek and sue for damages, any costs incurred to enforce, or attempt to enforce this Agreement, including reasonable attorneys fees, which enforcement shall not be limited, and may include appeals of any decisions in lower courts, as well as collection efforts thereafter, compensable damages and consequential damages, withhold and retain payment to the Contractor for the purpose of setoff until such time as the exact amount of damages due to the Authority from the Contractor is determined, seek injunctive relief and/or specific performance and such other equitable remedies that are available, as well as effectuate a termination of this Agreement, which may or could give rise to additional damages. It is expressly understood that the Contractor will remain liable for any damages the Authority sustains in excess of any set-off.
Appears in 4 contracts
Sources: Design/Build Construction Services Agreement, Construction Services Agreement, Design/Build Construction Services Agreement
Events of Default and Remedies. 7.01 The following acts and/or omissions shall constitute a default and material breach of this Agreement by the Contractor and shall be deemed an Event of Default if not cured within five (5) business days after written notice of default has been sent by the Authority to the Contractor, provided however, that if the default is such that more than five (5) days are required for a cure, then Contractor shall not be in default if it commences to cure the default within the five (5) day period and thereafter diligently prosecutes the same to completion:
(a) Failure to comply with any As used herein, an "Event of the material terms and conditions of this Agreement following written notice from the Authority and failure to cure; and/or
(b) Failure to begin the Services in accordance with the terms of this Agreement; and/or
(c) If the Contractor, in the judgment of the Authority, is unnecessarily or unreasonably or willfully delaying the performance and completion of the Services; and/or
(d) The Contractor abandons the Services to be undertaken; and/or
(e) The Authority reasonably believes that the Services cannot be completed within the time required, where in the Authority’s judgment, the delay is attributable to conditions within the Contractor’s control; and/or
(f) The Contractor, without just cause, reduces its personnel to a number which in the judgment of the Authority, is insufficient to complete the Services within a reasonable time and fails to sufficiently increase such personnel when directed to do so by the Authority; and/or
(g) The Contractor assigns, transfers, conveys or otherwise disposes of this Agreement, in whole, or in part, without prior approval of the Authority; and/or
(h) Any Authority officer or employee acquires an interest in this Agreement so as to create a conflict of interest; and/orDefault" occurs if:
(i) The Contractor violates any law, charter provision, ordinance, rule, regulation, governmental order Company defaults in the payment of principal and/or interest when the same becomes due and payable and such failure is not cured within ten (10) business days after the Company receives written demand from Holder or directive; and/orthe Representative to remedy the same.
(jii) Failure the Company fails to provide adequate inventorycomply with any other provision contained in this Series 1 Bridge Note, vehiclesthe Purchase Agreement, equipment and/or personnel; and/orthe Warrant, the Repricing Warrant, or the Registration Rights Agreement, and such failure is not cured within ten (10) business days after the Company receives written demand from Holder to remedy the same;
(kiii) The filing the Company defaults in any payment of a voluntary principal of or involuntary petition interest on any Debt (excluding trade payables) in bankruptcy excess of $100,000 beyond any period of grace provided with respect thereto and the effect of such failure is to cause the holder of such Debt to accelerate the Debt such that such Debt becomes due prior to its stated maturity;
(iv) any representation or for reorganization warranty made in writing by or an arrangementon behalf of (i) the Company in the Purchase Agreement or in any writing furnished in connection with or pursuant to the Purchase Agreement or in connection with the transactions contemplated by this Agreement, or (ii) the Company in the Registration Rights Agreement, or (iii) the Company in the Escrow Agreement, shall be false in any material respect on the date as of which made;
(v) the Company makes an assignment for the benefit of creditorscreditors or is generally not paying its debts as such debts become due;
(vi) any order or decree for relief in respect of the Company is entered under any bankruptcy, reorganization, compromise, arrangement, insolvency, readjustment of debt, dissolution, or liquidation or similar law, whether now or hereafter in effect (herein called the adjudication "Bankruptcy Law"), of any jurisdiction;
(vii) the Contractor as being bankrupt Company petitions or insolventapplies to any tribunal for, or consents to, the appointment of a receiver of, or for the Contractor if such appointmenttaking possession by, adjudicationa trustee, receiver, custodian, liquidation, or similar order official of the Company, or ruling of any substantial part of the assets of the Company, or commences a voluntary case under the Bankruptcy Law of the United States or any proceedings relating to the Company under the Bankruptcy Law of any other jurisdiction;
(viii) any petition or application described in Section 10(a)(vi) above is filed, or any such proceedings are commenced, against the Company and the Company by any act indicates its approval thereof, consent thereto or acquiescence therein, or an order, judgment or decree is entered appointing any such trustee, receiver, custodian, liquidator, or similar official, or approving the petition in any such proceedings, and such order, judgment, or decree remains unstayed and in force or unstayed effect for a period of thirty more than sixty (3060) days;
(ix) any order, judgment, or admit decree is entered in writing its inability to pay its debts generally as they become dueany proceedings against the Company decreeing the dissolution of the Company and such order, judgment, or decree remains unstayed and in effect for more than sixty (60) days; and/oror
(lx) The Contractor’s level a final judgment (not fully covered by insurance) in an amount in excess of performance $100,000 is rendered against the Company and, within ten (10) business days after entry thereof, such judgment is not discharged or execution thereof stayed pending appeal, or within ten (10) days after the expiration of the Servicesany such stay, in the reasonable such judgment of the Authority falls below the standard of care set forth in Article II hereof and/or
(m) The Contractor ceases to conduct business in the normal course, and/or
(n) The Contractor fails to comply with any material terms, conditions and/or obligations of Contractor set forth hereinis not discharged.
(ob) The Contractor fails to pay any laborUpon the occurrence of an Event of Default described in subsection (vi), tax obligations, fringe benefit funds, insurance premiums(vii), or subcontractor invoices for Services (viii) of Section 10(a), the principal of and accrued interest on this Series 1 Bridge Note shall automatically become immediately due and payable, without presentment, demand, protest or other requirements of any kind, all of which are hereby expressly waived by the Contractor has received payment from Company. If any other Event of Default exists, Holder may, in addition to the Authorityexercise of any right, power, or remedy permitted to Holder by law, declare (by written notice or notices to the Company) the entire principal of and all interest accrued on this Series 1 Bridge Note to be due and payable, and this Series 1 Bridge Note shall thereupon become immediately due and payable, without presentment, demand, protest, or other notice of any kind, all of which are hereby expressly waived by the Company. Upon such declaration, the Company will immediately pay to Holder of this Series 1 Bridge Note the then outstanding principal of and accrued and unpaid interest on the Series 1 Bridge Notes. If at any time after acceleration of the maturity of the Series 1 Bridge Notes, the Company shall pay all arrears of interest and all payments on account of principal which shall have become due other than by acceleration (with interest on principal and, to the extent permitted by law, on overdue interest, at the rate specified in the Series 1 Bridge Notes) and all Events of Default (other than nonpayment of principal of or interest on this Series 1 Bridge Note due and payable solely by virtue of acceleration) shall be remedied or waived by Holder by written notice to the Company may rescind and annul the acceleration and its consequences, but such action shall not affect any subsequent Event of Default or impair any right consequent thereon.
7.02 In (c) A delay or omission by the Holder of this Series 1 Bridge Note in exercising any right or remedy arising upon an Event of Default shall not impair such right or remedy or constitute a waiver of or an acquiescence in the Event of Default.
(d) If any Event of Default by the Contractorshall occur and be continuing, the Authority Holder of this Series 1 Bridge Note may proceed to protect and enforce their rights under this Agreement and this Series 1 Bridge Note by exercising such remedies as are available to such Holder either by suit in equity or by action at law, or both, whether for specific performance of any covenant or other agreement contained in this Agreement or in aid of the exercise of any power granted in this Agreement. No remedy conferred in this Agreement upon Holder is intended to be exclusive of any other remedy, and each and every such remedy shall be entitled cumulative and shall be in addition to exercise any and all remedies available every other remedy conferred herein or now or hereafter existing at law and/or or in equity, including, but not limited to the right to seek and sue for damages, any costs incurred to enforce, equity or attempt to enforce this Agreement, including reasonable attorneys fees, which enforcement shall not be limited, and may include appeals of any decisions in lower courts, as well as collection efforts thereafter, compensable damages and consequential damages, withhold and retain payment to the Contractor for the purpose of setoff until such time as the exact amount of damages due to the Authority from the Contractor is determined, seek injunctive relief and/or specific performance and such other equitable remedies that are available, as well as effectuate a termination of this Agreement, which may by statute or could give rise to additional damages. It is expressly understood that the Contractor will remain liable for any damages the Authority sustains in excess of any set-offotherwise.
Appears in 4 contracts
Sources: Bridge Financing Note (Cambex Corp), Bridge Financing Note (Cambex Corp), Bridge Financing Note (Cambex Corp)
Events of Default and Remedies. 7.01 The Any one of the following acts and/or omissions occurrences shall constitute a default an "event of default" under this Note:
(a) The failure by Maker to make any payment of principal or interest upon this Note as and material breach when the same becomes due and payable in accordance with the terms hereof, and the continuation of this Agreement by the Contractor and shall be deemed an Event of Default if not cured within five (5) business days after written notice of default has been sent by the Authority to the Contractor, provided however, that if the default is such that more than failure for five (5) days are required for a cure, then Contractor shall not be in default if it commences to cure the default within the five (5) day period and thereafter diligently prosecutes the same to completion:
(a) Failure to comply with any of the material terms and conditions of this Agreement following after written notice thereof to Maker from the Authority and failure to cure; and/orJMB;
(b) Failure The occurrence of any default under this Note other than as described in the preceding clause (a), and the continuance of such failure for thirty (30) days after written notice thereof to begin Maker from JMB; provided that if at the Services end of such 30 day period Maker, in accordance JMB's sole judgment, is proceeding with due diligence to cure such default, then there shall not be an event of default for an additional period of the terms shorter of this Agreement; and/or60 days or the period during which, in JMB's sole judgment, Maker continues to proceed with due diligence to cure such default;
(c) If the Contractor, The occurrence of any Default (as defined in the judgment of Third Amended and Restated Security Agreement) under the Authority, is unnecessarily or unreasonably or willfully delaying the performance and completion of the Services; and/orPriority Security Agreement;
(d) The Contractor abandons the Services Maker, any general partner of Maker (or any constituent general partner thereof), or any entity whose equity constitutes collateral under a Security Agreement (a "Collateral Entity") becomes insolvent or generally fails to be undertakenpay, or admits in writing its inability to pay, debts as they become due; and/or
or Maker, any general partner of Maker (e) The Authority reasonably believes that the Services cannot be completed within the time requiredor any constituent general partner thereof), where or any Collateral Entity applies for, consents to, or acquiesces in the Authority’s judgmentappointment of, the delay is attributable to conditions within the Contractor’s control; and/or
(f) The Contractora trustee, without just cause, reduces receiver or other custodian for itself or of any of its personnel to a number which in the judgment of the Authority, is insufficient to complete the Services within a reasonable time and fails to sufficiently increase such personnel when directed to do so by the Authority; and/or
(g) The Contractor assigns, transfers, conveys or otherwise disposes of this Agreement, in wholeproperty, or in part, without prior approval of the Authority; and/or
(h) Any Authority officer or employee acquires an interest in this Agreement so as to create makes a conflict of interest; and/or
(i) The Contractor violates any law, charter provision, ordinance, rule, regulation, governmental order or directive; and/or
(j) Failure to provide adequate inventory, vehicles, equipment and/or personnel; and/or
(k) The filing of a voluntary or involuntary petition in bankruptcy or for reorganization or an arrangement, or an general assignment for the benefit of creditors; or, in the absence of such application, consent or acquiescence, a trustee, receiver or other custodian is appointed for Maker, any general partner of Maker (or any constituent general partner thereof), or the adjudication of the Contractor as being bankrupt or insolvent, or the appointment of a receiver ofany Collateral Entity, or for a substantial part of the Contractor property of any of them and is not discharged within 30 days; or other case or proceeding under any bankruptcy or insolvency law, or any dissolution or liquidation proceeding is commenced in respect of Maker, any general partner of Maker (or any constituent general partner thereof), or any Collateral Entity, and if such appointmentcase or proceeding is not commenced by Maker, adjudicationany general partner of Maker (or any constituent general partner thereof), or similar order any Collateral Entity, it is consented to or ruling remains acquiesced in force by Maker, any general partner of Maker (or unstayed for a period of thirty (30) daysany constituent general partner thereof), or admit any Collateral Entity, or remains for 60 days undismissed; or Maker, any general partner of Maker (or any constituent general partner thereof), or any Collateral Entity, takes any action to authorize, or in writing its inability to pay its debts generally as they become duefurtherance of, any of the foregoing; and/oror
(le) The Contractor’s level of performance Any representation, warranty or certification made by Maker to JMB or any subsequent holder hereof in connection with the Loan, this Note, any Security Agreement, or any other document executed in connection herewith proves to be or to have been false in any material respect at any time. For purposes of the Servicesforegoing clauses (c) and (e) of this Section 9, in with respect to any event or occurrence which constitutes an event of default hereunder solely by reason of its constituting a default (as distinguished from an "event of default") under a document or instrument other than this Note, to the reasonable judgment extent (if any) that such other document or instrument provides a grace or cure period with respect to such default, the same grace or cure period, and only such period, shall apply with respect to this Note. Upon the occurrence of any event of default hereunder: (i) the entire unpaid principal balance of, and any unpaid interest then accrued on, and any other amounts owing under or evidenced by this Note shall, at the option of the Authority falls below holder hereof and without notice or demand of any kind to Maker or any other person, immediately become due and payable; and (ii) the standard of care set forth in Article II holder hereof and/or
(m) The Contractor ceases to conduct business in the normal course, and/or
(n) The Contractor fails to comply with any material terms, conditions and/or obligations of Contractor set forth herein.
(o) The Contractor fails to pay any labor, tax obligations, fringe benefit funds, insurance premiums, or subcontractor invoices for Services which the Contractor has received payment from the Authority.
7.02 In the Event of Default by the Contractor, the Authority shall be entitled to have and may exercise any and all rights and remedies available at law and/or or in equityequity and also any and all rights and remedies provided in Security Agreements or in any other instrument securing this Note. The remedies of the holder hereof, includingas provided herein or in the Security Agreements or any other instrument securing this Note, but not limited shall be cumulative and concurrent, and may be pursued singularly, successively or together, at the sole discretion of the holder hereof, and may be exercised as often as occasion therefor shall arise. No act of omission or commission of the holder, including specifically any failure to exercise any right, remedy or recourse, shall be deemed to be a waiver or release of the same, such waiver or release to be effected only through a written document executed by the holder and then only to the right extent specifically recited therein. A waiver or release with reference to seek and sue for damages, any costs incurred to enforce, or attempt to enforce this Agreement, including reasonable attorneys fees, which enforcement one event shall not be limited, and may include appeals of any decisions in lower courtsconstrued as continuing, as well a bar to, or as collection efforts thereaftera waiver or release of, compensable damages and consequential damagesany subsequent right, withhold and retain payment remedy or recourse as to the Contractor for the purpose of setoff until such time as the exact amount of damages due to the Authority from the Contractor is determined, seek injunctive relief and/or specific performance and such other equitable remedies that are available, as well as effectuate a termination of this Agreement, which may or could give rise to additional damages. It is expressly understood that the Contractor will remain liable for any damages the Authority sustains in excess of any set-offsubsequent event.
Appears in 3 contracts
Sources: Note Split Agreement (JMB 245 Park Avenue Associates LTD), Promissory Note (JMB 245 Park Avenue Associates LTD), Promissory Note (JMB 245 Park Avenue Associates LTD)
Events of Default and Remedies. 7.01 Section 6.1 The following acts and/or omissions shall constitute a default and material breach each be "Events of Default" under this Agreement Project Agreement: the failure by the Contractor Company to observe and shall be deemed an Event of Default if not cured within five (5) business days after written notice of default has been sent by the Authority to the Contractorperform any covenant contained in Sections 2.1(e), provided however2.1(g), that if the default is 2.1(i), 2.1(j), 2.1(k), 4.3, 4.5, 4.6, 5.1, 5.2, 7.1 and 7.6 hereof and such that more than five (5) days are required for a cure, then Contractor shall not be in default if it commences to cure the default within the five (5) day period and thereafter diligently prosecutes the same to completion:
(a) Failure to comply with any of the material terms and conditions of this Agreement following written notice from the Authority and failure to cure; and/or
(b) Failure to begin the Services in accordance with the terms of this Agreement; and/or
(c) If the Contractor, in the judgment of the Authority, is unnecessarily or unreasonably or willfully delaying the performance and completion of the Services; and/or
(d) The Contractor abandons the Services to be undertaken; and/or
(e) The Authority reasonably believes that the Services cannot be completed within the time required, where in the Authority’s judgment, the delay is attributable to conditions within the Contractor’s control; and/or
(f) The Contractor, without just cause, reduces its personnel to a number which in the judgment of the Authority, is insufficient to complete the Services within a reasonable time and fails to sufficiently increase such personnel when directed to do so by the Authority; and/or
(g) The Contractor assigns, transfers, conveys or otherwise disposes of this Agreement, in whole, or in part, without prior approval of the Authority; and/or
(h) Any Authority officer or employee acquires an interest in this Agreement so as to create a conflict of interest; and/or
(i) The Contractor violates any law, charter provision, ordinance, rule, regulation, governmental order or directive; and/or
(j) Failure to provide adequate inventory, vehicles, equipment and/or personnel; and/or
(k) The filing of a voluntary or involuntary petition in bankruptcy or for reorganization or an arrangement, or an assignment for the benefit of creditors, or the adjudication of the Contractor as being bankrupt or insolvent, or the appointment of a receiver of, or for the Contractor if such appointment, adjudication, or similar order or ruling remains in force or unstayed having continued for a period of thirty (30) daysdays after the Agency gives written notice to the Company, specifying that failure and stating that it be remedied, or admit in writing the case of any such default which can be cured with due diligence but not within such thirty (30) day period, the Company's failure to proceed promptly to cure such default and thereafter prosecute the curing of such default with due diligence; the failure by the Company to pay the Recapture Benefits on the date due; the occurrence and continuation of a Recapture Event; the occurrence of an Event of Default under the Leaseback Agreement or Tax Agreement; the dissolution or liquidation of the Company; or the failure by the Company to release, stay, discharge, lift or bond within thirty (30) days any execution, garnishment, judgment or attachment of such consequence as may impair its inability ability to carry on its operations; or the failure by the Company generally to pay its debts generally as they become due; and/or
or an assignment by the Company for the benefit of creditors; or the commencement by the Company (las the debtor) The Contractor’s level of performance a case in bankruptcy or any proceeding under any other insolvency law; or the commencement of a case in bankruptcy or any proceeding under any other insolvency law against the Company (as the debtor), wherein a court having jurisdiction in the premises enters a decree or order for relief against the Company as the debtor, or such case or proceeding is consented to by the Company or remains undismissed for forty (40) days, or the Company consents to or admits the material allegations against it in any such case or proceeding; or a trustee, receiver or agent (however named) is appointed or authorized to take charge of substantially all of the Services, in the reasonable judgment property of the Authority falls below the standard of care set forth in Article II hereof and/or
(m) The Contractor ceases to conduct business in the normal course, and/or
(n) The Contractor fails to comply with any material terms, conditions and/or obligations of Contractor set forth herein.
(o) The Contractor fails to pay any labor, tax obligations, fringe benefit funds, insurance premiums, or subcontractor invoices for Services which the Contractor has received payment from the Authority.
7.02 In the Event of Default by the Contractor, the Authority shall be entitled to exercise any and all remedies available at law and/or in equity, including, but not limited to the right to seek and sue for damages, any costs incurred to enforce, or attempt to enforce this Agreement, including reasonable attorneys fees, which enforcement shall not be limited, and may include appeals of any decisions in lower courts, as well as collection efforts thereafter, compensable damages and consequential damages, withhold and retain payment to the Contractor Company for the purpose of setoff until enforcing a lien against such time as Property or for the exact amount purpose of damages due to general administration of such Property for the Authority from the Contractor benefit of creditors which is determined, seek injunctive relief and/or specific performance and such other equitable remedies that are available, as well as effectuate a termination not revoked within thirty (30) days of this Agreement, which may or could give rise to additional damages. It is expressly understood that the Contractor will remain liable for any damages the Authority sustains in excess of any set-offinitial appointment.
Appears in 3 contracts
Sources: Project Agreement, Project Agreement, Project Agreement
Events of Default and Remedies. 7.01 The 1. Notwithstanding anything hereinabove to the contrary, CITBC may terminate this Financing Agreement immediately upon the occurrence of any of the following acts and/or omissions shall constitute (herein "Events of Default"):
(a) cessation of the business of the Company or the calling of a default general meeting of the creditors of the Company for purposes of compromising the debts and material breach obligations of this Agreement the Company;
(b) the Company admits in writing its inability to generally pay its debts as they mature;
(c) the commencement by the Contractor and Company of any bankruptcy, insolvency, arrangement, reorganization, receivership or similar proceedings under any federal or state law;
(d) the commencement against the Company of any bankruptcy, insolvency, arrangement, reorganization, receivership or similar proceedings under any federal or state law, provided, however, that such Default shall not be deemed an Event of Default if the proceeding, petition, case or arrangement is commenced or supported by creditors by creditors holding $2,500,000 or less of indebtedness and is dismissed within 60 days of the filing of, or the commencement of, such petition, case, proceeding or arrangement;
(e) material breach by the Company of any warranty, representation or covenant contained herein (other than those referred to in sub-paragraph f below) or in any other written agreement between the Company or CITBC relating to this Financing Agreement, provided that such Default by the Company of any of the warranties, representations or covenants referred in this clause e shall not cured be deemed to be an Event of Default unless and until such Default shall remain unremedied to CITBC's satisfaction for a period of fifteen (15) Business Days from the date of such Default;
(f) breach by the Company of any warranty, representation or covenant of Section 3, Paragraphs 3 (other than the third sentence of paragraph 3) and 4; Section 6, Paragraphs 3 and 4 (other than the first sentence of paragraph 4); ▇▇▇▇▇▇▇ ▇, ▇▇▇▇▇▇▇▇▇▇ ▇,▇,▇, and 9 through 11 (other than 10E as it relates to corporate good standing status);
(g) failure of the Company to pay any of the Obligations within five (5) business Business Days of the due date thereof, provided that nothing contained herein shall prohibit CITBC from charging such amounts to the Company's account on the due date thereof;
(h) Company shall i) engage in any "prohibited transaction" as defined in ERISA, ii) have any "accumulated funding deficiency" as defined in ERISA, iii) have any Reportable Event as defined in ERISA, iv) terminate any Plan, as defined in ERISA or v) be engaged in any proceeding in which the Pension Benefit Guaranty Corporation shall seek appointment, or is appointed, as trustee or administrator of any Plan, as defined in ERISA, and with respect to this sub-paragraph h such event or condition x) remains uncured for a period of 60 days after from date of occurrence and y) could reasonably be expected to subject the Company to any tax, penalty or other liability materially adverse to the business, operations or financial condition of the Company;
(i) without the prior written notice consent of CITBC, the Company shall x) amend or modify the Senior Unsecured Debt, any Subordinated Debt, or y) make any payment on account of any Subordinated Debt except as permitted in the applicable Subordination Agreement or on account of the Senior Unsecured Debt except for regularly scheduled payments (but no prepayments or redemptions, including optional redemptions or those arising due to a Change of Control under and as defined in the Senior Unsecured Debt) as contemplated under the Indenture evidencing the Senior Unsecured Debt as in effect as of the date hereof; or
(j) the occurrence of any default or event of default has been sent by (after giving effect to any applicable grace or cure periods) under any instrument or agreement evidencing (x) Subordinated Debt, (y) the Authority Senior Unsecured Debt, or (z) any other Indebtedness of the Company having a principal amount in excess of $1,000,000 if the effect of such default or event of default is to permit the holder or holders of such Subordinated Debt, Senior Unsecured Debt or other Indebtedness, as the case may be, to cause the same to become or be declared due and payable prior to its stated maturity or (except in the case of the Senior Unsecured Debt relating to the ContractorMarch 2000 SEC filing) charge an increased rate of interest.
2. Upon the occurrence of a Default and/or an Event of Default, at the option of CITBC, all loans and advances provided for in Sections 3 and 5 of this Financing Agreement shall be thereafter in CITBC's sole discretion and the obligation of CITBC to make revolving loans and/or open Letters of Credit shall cease unless such Default is cured to CITBC's reasonable satisfaction within the applicable grace period or Event of Default is waived by CITBC and at the option of CITBC upon the occurrence of an Event of Default: i) all Obligations shall upon notice (provided, however, that no such notice is required if the default Event of Default is such that more than five (5the Event of Default listed in paragraph 1(c) days are required or 1(d) of this Section 10) become immediately due and payable; ii) CITBC may charge the Company the Default Rate of Interest on all then outstanding or thereafter incurred Obligations in lieu of the interest provided for a cure, then Contractor shall not be in default if it commences to cure the default within the five (5) day period and thereafter diligently prosecutes the same to completion:Section 8 of this Financing Agreement; provided
(a) Failure to comply with any the CITBC has given notice of the material terms and conditions of this Agreement following written notice from the Authority and failure to cure; and/or
(b) Failure to begin the Services in accordance with the terms of this Agreement; and/or
(c) If the Contractor, in the judgment imposition of the AuthorityDefault Rate of Interest, provided, however, that no notice is unnecessarily or unreasonably or willfully delaying the performance and completion of the Services; and/or
(d) The Contractor abandons the Services to be undertaken; and/or
(e) The Authority reasonably believes that the Services cannot be completed within the time required, where in the Authority’s judgment, the delay is attributable to conditions within the Contractor’s control; and/or
(f) The Contractor, without just cause, reduces its personnel to a number which in the judgment of the Authority, is insufficient to complete the Services within a reasonable time and fails to sufficiently increase such personnel when directed to do so by the Authority; and/or
(g) The Contractor assigns, transfers, conveys or otherwise disposes of this Agreement, in whole, or in part, without prior approval of the Authority; and/or
(h) Any Authority officer or employee acquires an interest in this Agreement so as to create a conflict of interest; and/or
(i) The Contractor violates any law, charter provision, ordinance, rule, regulation, governmental order or directive; and/or
(j) Failure to provide adequate inventory, vehicles, equipment and/or personnel; and/or
(k) The filing of a voluntary or involuntary petition in bankruptcy or for reorganization or an arrangement, or an assignment for the benefit of creditors, or the adjudication of the Contractor as being bankrupt or insolvent, or the appointment of a receiver of, or for the Contractor required if such appointment, adjudication, or similar order or ruling remains in force or unstayed for a period of thirty (30) days, or admit in writing its inability to pay its debts generally as they become due; and/or
(l) The Contractor’s level of performance of the Services, in the reasonable judgment of the Authority falls below the standard of care set forth in Article II hereof and/or
(m) The Contractor ceases to conduct business in the normal course, and/or
(n) The Contractor fails to comply with any material terms, conditions and/or obligations of Contractor set forth herein.
(o) The Contractor fails to pay any labor, tax obligations, fringe benefit funds, insurance premiums, or subcontractor invoices for Services which the Contractor has received payment from the Authority.
7.02 In the Event of Default is the Event listed in paragraph 1(c) or 1(d) of this Section 10 and b) the Company has failed to cure the Event of Default within ten (10) Business Days after x) CITBC deposited such notice in the United States mail or y) the occurrence of the Event of Default listed in paragraph 1(c) or 1(d) of this Section 10; and iii) CITBC may immediately terminate this Financing Agreement upon notice to the Company, provided, however, that no notice of termination is required if the Event of Default is the Event listed in paragraph 1(c) or 1(d) of this Section 10. Notwithstanding anything herein contained to the contrary, if CITBC waives all Events of Default, then by written notice to the ContractorCompany, the Authority acceleration of the Obligations will be rescinded and all remedies and actions then being exercised by CITBC shall cease. The exercise of any option is not exclusive of any other option which may be entitled exercised at any time by CITBC.
3. Immediately upon the occurrence of any Event of Default, CITBC may to exercise the extent permitted by law: (a) remove from any premises where same may be located any and all remedies available at law and/or in equitydocuments, includinginstruments, but not limited files and records relating to the right to seek and sue for damages, any costs incurred to enforceAccounts, or attempt CITBC may use, at the Company's expense, such of the Company's personnel, supplies or space at the Company's places of business or otherwise, as may be necessary to enforce this Agreementproperly administer and control the Accounts or the handling of collections and realizations thereon; (b) bring suit, in the name of the Company or CITBC, and generally shall have all other rights respecting said Accounts, including reasonable attorneys feeswithout limitation the right to: accelerate or extend the time of payment, settle, compromise, release in whole or in part any amounts owing on any Accounts and issue credits in the name of the Company or CITBC; (c) sell, assign and deliver the Collateral and any returned, reclaimed or repossessed merchandise, with or without advertisement, at public or private sale, for cash, on credit or otherwise, at CITBC's sole option and discretion, and, to the extent permitted by applicable law, CITBC may bid or become a purchaser at any such sale, free from any right of redemption, which enforcement shall not be limitedright is hereby expressly waived by the Company; (d) foreclose the security interests created herein by any available judicial procedure, or to take possession of any or all of the Inventory and Equipment without judicial process, and to enter any premises where any Inventory and Equipment may include appeals of any decisions in lower courts, as well as collection efforts thereafter, compensable damages and consequential damages, withhold and retain payment to the Contractor be located for the purpose of setoff until such time as taking possession of or removing the exact amount of damages due same; and (e) exercise any other rights and remedies provided in law, in equity, by contract or otherwise, to the Authority from extent permitted by applicable law. CITBC shall have the Contractor is determinedright, seek injunctive relief and/or specific performance and without notice or advertisement, to sell, lease, or otherwise dispose of all or any part of the Collateral whether in its then condition or after further preparation or processing, in the name of the Company or CITBC, or in the name of such other equitable remedies party as CITBC may designate, either at public or private sale or at any broker's board, in lots or in bulk, for cash or for credit, with or without warranties or representations, and upon such other terms and conditions as CITBC in its sole discretion may deem advisable, and CITBC shall have the right to purchase at any such sale. If any Inventory and Equipment shall require rebuilding, repairing, maintenance or preparation, CITBC shall have the right, at its option, to do such of the aforesaid as is necessary, for the purpose of putting the Inventory and Equipment in such saleable form as CITBC shall deem appropriate. The Company agrees, at the request of CITBC, to assemble the Inventory and Equipment and to make it available to CITBC at premises of the Company or such other location reasonably designated by CITBC and to make available to CITBC the premises and facilities of the Company for the purpose of CITBC's taking possession of, removing or putting the Inventory and Equipment in saleable form. However, if notice of intended disposition of any Collateral is required by law, it is agreed that are availableten (10) Business Days notice shall constitute reasonable notification and full compliance with the law. The net cash proceeds resulting from CITBC's exercise of any of the foregoing rights, (after deducting all charges, costs and expenses, including reasonable attorneys' fees) shall be applied by CITBC to the payment of the Company's Obligations, whether due or to become due, in such order as well as effectuate a termination of this AgreementCITBC may elect, which may or could give rise to additional damages. It is expressly understood that and the Contractor will Company shall remain liable to CITBC for any damages deficiencies, and CITBC in turn agrees to remit to the Authority sustains in excess Company or its successors or assigns, any surplus resulting therefrom. The enumeration of the foregoing rights is not intended to be exhaustive and the exercise of any set-offright shall not preclude the exercise of any other rights, all of which shall be cumulative.
Appears in 2 contracts
Sources: Financing Agreement (Diamond Triumph Auto Glass Inc), Financing Agreement (Diamond Triumph Auto Glass Inc)
Events of Default and Remedies. 7.01 The following acts and/or omissions shall constitute a default and material breach of this Agreement by the Contractor and shall be deemed an Event of Default if not cured within five (5) business days after written notice of default has been sent by the Authority to the Contractor, provided however, that if the default is such that more than five (5) days are required for a cure, then Contractor shall not be in default if it commences to cure the default within the five (5) day period and thereafter diligently prosecutes the same to completion:
(a) Failure to comply with any of the material terms and conditions of this Agreement following written notice from the Authority and failure to cure; and/or
(b) Failure to begin the Services in accordance with the terms of this Agreement; and/or
(c) If the Contractor, in the judgment of the Authority, is unnecessarily or unreasonably or willfully delaying the performance and completion of the Services; and/or
(d) The Contractor abandons the Services to be undertaken; and/or
(e) The Authority reasonably believes that the Services cannot be completed within the time required, where in the Authority’s judgment, the delay is attributable to conditions within the Contractor’s control; and/or
(f) The Contractor, without just cause, reduces its personnel to a number which in the judgment of the Authority, is insufficient to complete the Services within a reasonable time and fails to sufficiently increase such personnel when directed to do so by the Authority; and/or
(g) The Contractor assigns, transfers, conveys or otherwise disposes of this Agreement, in whole, or in part, without prior approval of the Authority; and/or
(h) Any Authority officer or employee acquires an interest in this Agreement so as to create a conflict of interest; and/or
(i) The Contractor violates any law, charter provision, ordinance, rule, regulation, governmental order or directive; and/or
(j) Failure to provide adequate inventory, vehicles, equipment and/or personnel; and/or
(k) The filing of a voluntary or involuntary petition in bankruptcy or for reorganization or an arrangement, or an assignment for the benefit of creditors, or the adjudication of the Contractor as being bankrupt or insolvent, or the appointment of a receiver of, or for the Contractor if such appointment, adjudication, or similar order or ruling remains in force or unstayed for a period of thirty (30) days, or admit in writing its inability to pay its debts generally as they become due; and/or
(l) The Contractor’s level of performance of the Services, in the reasonable judgment of the Authority falls below the standard of care set forth in Article II hereof and/or
(m) The Contractor ceases to conduct business in the normal course, and/or
(n) The Contractor fails to comply with any material terms, conditions and/or obligations of Contractor set forth herein.
(o) The Contractor fails to pay any labor, tax obligations, fringe benefit funds, insurance premiums, or subcontractor invoices for Services which the Contractor has received payment from the Authority.
7.02 In the Event of Default by the Contractor, the Authority shall be entitled to exercise any and all remedies available at law and/or in equity, including, but not limited to the right to seek and sue ▇▇▇ for damages, any costs incurred to enforce, or attempt to enforce this Agreement, including reasonable attorneys fees, which enforcement shall not be limited, and may include appeals of any decisions in lower courts, as well as collection efforts thereafter, compensable damages and consequential damages, withhold and retain payment to the Contractor for the purpose of setoff until such time as the exact amount of damages due to the Authority from the Contractor is determined, seek injunctive relief and/or specific performance and such other equitable remedies that are available, as well as effectuate a termination of this Agreement, which may or could give rise to additional damages. It is expressly understood that the Contractor will remain liable for any damages the Authority sustains in excess of any set-off.
Appears in 2 contracts
Sources: Design/Build Construction Services Agreement, Design/Build Construction Services Agreement
Events of Default and Remedies. 7.01 Section 6.1 The following acts and/or omissions shall constitute a default and material breach each be "Events of Default" under this Agreement Project Agreement: the failure by the Contractor Company to observe and perform any covenant contained in Sections 2.1(e), 2.1(g), 2.1(i), 2.1(j), 2.1(k), 4.3, 4.5, 4.6, 4.7, 5.1, 5.2, 7.1 and 7.6 hereof and such failure shall be deemed an Event of Default if not cured within five (5) business days after written notice of default has been sent by the Authority to the Contractor, provided however, that if the default is such that more than five (5) days are required for a cure, then Contractor shall not be in default if it commences to cure the default within the five (5) day period and thereafter diligently prosecutes the same to completion:
(a) Failure to comply with any of the material terms and conditions of this Agreement following written notice from the Authority and failure to cure; and/or
(b) Failure to begin the Services in accordance with the terms of this Agreement; and/or
(c) If the Contractor, in the judgment of the Authority, is unnecessarily or unreasonably or willfully delaying the performance and completion of the Services; and/or
(d) The Contractor abandons the Services to be undertaken; and/or
(e) The Authority reasonably believes that the Services cannot be completed within the time required, where in the Authority’s judgment, the delay is attributable to conditions within the Contractor’s control; and/or
(f) The Contractor, without just cause, reduces its personnel to a number which in the judgment of the Authority, is insufficient to complete the Services within a reasonable time and fails to sufficiently increase such personnel when directed to do so by the Authority; and/or
(g) The Contractor assigns, transfers, conveys or otherwise disposes of this Agreement, in whole, or in part, without prior approval of the Authority; and/or
(h) Any Authority officer or employee acquires an interest in this Agreement so as to create a conflict of interest; and/or
(i) The Contractor violates any law, charter provision, ordinance, rule, regulation, governmental order or directive; and/or
(j) Failure to provide adequate inventory, vehicles, equipment and/or personnel; and/or
(k) The filing of a voluntary or involuntary petition in bankruptcy or for reorganization or an arrangement, or an assignment for the benefit of creditors, or the adjudication of the Contractor as being bankrupt or insolvent, or the appointment of a receiver of, or for the Contractor if such appointment, adjudication, or similar order or ruling remains in force or unstayed have continued for a period of thirty (30) daysdays after the Agency gives written notice to the Company, specifying that failure and stating that it be remedied, or admit in writing the case of any such default which can be cured with due diligence but not within such thirty (30) day period, the Company's failure to proceed promptly to cure such default and thereafter prosecute the curing of such default with due diligence; the failure by the Company to pay the Recapture Benefits on the date due, and such failure shall have continued for a period of fifteen (15) days after the Agency gives written notice of such failure to the Company; the occurrence and continuation of a Recapture Event and such failure shall have continued for a period of thirty (30) days after the Agency gives written notice to the Company, specifying that failure and stating that it be remedied, or in the case of any such default which can be cured with due diligence but not within such thirty (30) day period, the Company's failure to proceed promptly to cure such default and thereafter prosecute the curing of such default with due diligence; there exists and continues beyond any applicable notice and cure period, the occurrence of an Event of Default under the Leaseback Agreement or Tax Agreement; the dissolution or liquidation of the Company; or the failure by the Company to release, stay, discharge, lift or bond within on hundred twenty (120) days any execution, garnishment, judgment or attachment of such consequence as may impair its inability ability to carry on its operations; or the failure by the Company generally to pay its debts generally as they become due; and/or
or an assignment by the Company for the benefit of creditors; or the commencement by the Company (las the debtor) The Contractor’s level of performance a case in bankruptcy or any proceeding under any other insolvency law; or the commencement of a case in bankruptcy or any proceeding under any other insolvency law against the Company (as the debtor), wherein a court having jurisdiction in the premises enters a decree or order for relief against the Company as the debtor, or such case or proceeding is consented to by the Company or remains undismissed for one hundred (120) days, or the Company consents to or admits the material allegations against it in any such case or proceeding; or a trustee, receiver or agent (however named) is appointed or authorized to take charge of substantially all of the Services, in the reasonable judgment property of the Authority falls below the standard of care set forth in Article II hereof and/or
(m) The Contractor ceases to conduct business in the normal course, and/or
(n) The Contractor fails to comply with any material terms, conditions and/or obligations of Contractor set forth herein.
(o) The Contractor fails to pay any labor, tax obligations, fringe benefit funds, insurance premiums, or subcontractor invoices for Services which the Contractor has received payment from the Authority.
7.02 In the Event of Default by the Contractor, the Authority shall be entitled to exercise any and all remedies available at law and/or in equity, including, but not limited to the right to seek and sue for damages, any costs incurred to enforce, or attempt to enforce this Agreement, including reasonable attorneys fees, which enforcement shall not be limited, and may include appeals of any decisions in lower courts, as well as collection efforts thereafter, compensable damages and consequential damages, withhold and retain payment to the Contractor Company for the purpose of setoff until enforcing a lien against such time as Property or for the exact amount purpose of damages due to general administration of such Property for the Authority from the Contractor is determined, seek injunctive relief and/or specific performance and such other equitable remedies that are available, as well as effectuate a termination benefit of this Agreement, which may or could give rise to additional damages. It is expressly understood that the Contractor will remain liable for any damages the Authority sustains in excess of any set-offcreditors.
Appears in 2 contracts
Sources: Project Agreement, Project Agreement
Events of Default and Remedies. 7.01 The occurrence of any of the following acts and/or omissions events shall constitute a default and material breach of this Agreement by the Contractor and shall be deemed an "Event of Default if not cured within five (5) business days after written Default" under this Agreement, and the Company shall give the Lender immediate notice of default has been sent by the Authority to the Contractor, provided however, that if the default is such that more than five (5) days are required for a cure, then Contractor shall not be in default if it commences to cure the default within the five (5) day period and thereafter diligently prosecutes the same to completion:
thereof: (a) Failure to comply with any the failure of the material terms and conditions Company to make any payment of this Agreement following written notice from principal or interest under the Authority and failure to cure; and/or
Note when due, (b) Failure the Company becomes subject to begin any bankruptcy, insolvency, receivership or debtor relief proceedings and, in the Services in accordance with case of any such proceedings initiated against the terms of this Agreement; and/or
Company, the same have not been discharged within sixty (60) days after institution, (c) If the Contractor, in the judgment of the Authority, is unnecessarily or unreasonably or willfully delaying the performance and completion of the Services; and/or
(d) The Contractor abandons the Services to be undertaken; and/or
(e) The Authority reasonably believes that the Services cannot be completed within the time required, where in the Authority’s judgment, the delay is attributable to conditions within the Contractor’s control; and/or
(f) The Contractor, without just cause, reduces its personnel to a number which in the judgment of the Authority, is insufficient to complete the Services within a reasonable time and fails to sufficiently increase such personnel when directed to do so by the Authority; and/or
(g) The Contractor assigns, transfers, conveys or otherwise disposes of this Agreement, in whole, or in part, without prior approval of the Authority; and/or
(h) Any Authority officer or employee acquires an interest in this Agreement so as to create a conflict of interest; and/or
(i) The Contractor violates any law, charter provision, ordinance, rule, regulation, governmental order or directive; and/or
(j) Failure to provide adequate inventory, vehicles, equipment and/or personnel; and/or
(k) The filing of a voluntary or involuntary petition in bankruptcy or for reorganization or an arrangement, or Company makes an assignment for the benefit of creditors, or the adjudication of the Contractor as being bankrupt or insolvent, or the appointment of a receiver of, or for the Contractor if such appointment, adjudication, or similar order or ruling remains in force or unstayed for a period of thirty (30) days, or admit admits in writing its an inability to pay its debts generally as they become due; and/or
, (ld) The Contractor’s level of performance of the Services, in the reasonable judgment of the Authority falls below the standard of care set forth in Article II hereof and/or
(m) The Contractor ceases to conduct business in the normal course, and/or
(n) The Contractor Company fails to comply with or perform any covenant, agreement or condition of this Agreement or any other Loan Document, (e) any statement, representation or warranty in any of the Loan Documents is false, misleading or erroneous in any material termsrespect on the date thereof, conditions and/or obligations and such statement, representation or warranty is not made true and correct (as of Contractor set forth herein.
the time such corrective action is taken) within the applicable grace period (oif any) The Contractor fails provided for in such Loan Document, (f) the occurrence of any event or condition deemed to pay be a default under or as defined in any labor, tax obligations, fringe benefit funds, insurance premiumsother Loan Document, or subcontractor invoices for Services (g) the Company breaches of defaults under any material contract or obligation which has or may reasonably be expected to have a material adverse effect on the Contractor has received payment from business or operations of the Authority.
7.02 In the Event of Default by the Contractor, the Authority shall be entitled to exercise any and all remedies available at law and/or in equityCompany, including, but not limited with limitation, a default by the Company under the Senior Debt; provided, however, the Lender acknowledges that as of the date hereof, the Company is in default under the Senior Debt for failure to timely file the right to seek and sue for damages, any costs incurred to enforce, or attempt to enforce this Agreement, including reasonable attorneys fees, which enforcement shall not be limited, and may include appeals of any decisions in lower courts, as well as collection efforts thereafter, compensable damages and consequential damages, withhold and retain payment to the Contractor for the purpose of setoff until such time as the exact amount of damages due to the Authority from the Contractor is determined, seek injunctive relief and/or specific performance and such other equitable remedies that are available, as well as effectuate a termination reports listed on Exhibit D. For purposes of this Agreement, which may or could give rise to additional damages. It is expressly understood that the Contractor will remain liable for any damages the Authority sustains in excess of any set-off.term "
Appears in 2 contracts
Sources: Loan Agreement (Fernwood Partners Ii LLC), Loan Agreement (Cyberguard Corp)
Events of Default and Remedies. 7.01 The 9.1 Notwithstanding anything hereinabove to the contrary, the Agent acting for the Lenders may terminate this Financing Agreement immediately upon the occurrence of any of the following acts and/or omissions shall constitute (herein "Events of Default"):
(a) cessation of business of the Company or the calling of a default general meeting of the creditors of the Company for purposes of compromising the debts and material breach obligations of this Agreement the Company;
(b) the Company admits in writing its inability to generally pay its debts as they mature;
(c) the commencement by the Contractor and Company of any bankruptcy, insolvency, arrangement, reorganization, receivership or similar proceedings under any federal or state law;
(d) the commencement against the Company of any bankruptcy, insolvency, arrangement, reorganization, receivership or similar proceedings under any federal or state law provided, however, that such Default shall not be deemed an Event of Default if not cured the proceeding, petition, case or arrangement is dismissed within five sixty (5) business days after written notice of default has been sent by the Authority to the Contractor, provided however, that if the default is such that more than five (560) days are required for a cure, then Contractor shall not be in default if it commences to cure the default within the five (5) day period and thereafter diligently prosecutes the same to completion:
(a) Failure to comply with any of the material terms and conditions of this Agreement following written notice from filing of, or the Authority and failure to cure; and/or
(b) Failure to begin the Services in accordance with the terms of this Agreement; and/or
(c) If the Contractorcommencement of, in the judgment of the Authoritysuch petition, is unnecessarily case, proceeding or unreasonably or willfully delaying the performance and completion of the Services; and/or
(d) The Contractor abandons the Services to be undertaken; and/orarrangement;
(e) The Authority reasonably believes material breach by the Company of any warranty, representation (representations and warranties referred to in this subparagraph e shall be deemed made as of each i) Reporting Date, whether or not any report is in fact given to the Agent or ii) request for a Revolving Loan or iii) request for the Agent's assistance in obtaining a Letter of Credit or iv) the posting of any Obligation to the loan account) or any covenant contained herein (other than those otherwise referred to in this Section 9) or in any other agreement between the Company and the Agent relating to this Financing Agreement, provided that such Default by the Services canCompany of any of the warranties, representations or covenants referred to in this clause (e) shall not be completed within deemed to be an Event of Default unless and until such Default shall remain unwaived or unremedied to the time requiredAgent's reasonable satisfaction for a period of fifteen (15) days from the date of the Agent's discovery of such breach (the Agent shall endeavor to notify the Company of such breach but the failure to so notify shall not detract from the Agent's rights or give the Company any claim, where in the Authority’s judgment, the delay is attributable to conditions within the Contractor’s control; and/orcourse of action or defense);
(f) The Contractor, without just cause, reduces its personnel to a number which in the judgment of the Authority, is insufficient to complete the Services within a reasonable time and fails to sufficiently increase such personnel when directed to do so breach by the AuthorityCompany of any warranty, representation or covenant of: i) the first sentence of Section 3.3; and/oror ii) Section 3.4; or iii) Section 5.3; or iv) Section 6.5 (only as it relates to insurance on the Inventory); or v) Section 6.6; or vii) Section 6.10 (other than sub-paragraphs A (ii), B and F thereof); or Section 6.17;
(g) The Contractor assignsbreach by the Company of sub-paragraphs A (ii), transfersB or F of Section 6.10, conveys provided that such Default by the Company shall not be deemed to be an Event of Default unless and until such Default shall remain unwaived or otherwise disposes unremedied for a period of this Agreement, in whole, or in part, without prior approval fifteen (15) days from the date of the Authority; and/orsuch Default;
(h) Any Authority officer or employee acquires an interest except as otherwise provided in Section 7.12 of this Agreement so as Financing Agreement, failure of the Company to create a conflict pay any of interest; and/orthe Obligations within ten (10) days of the due date thereof;
(i) The Contractor violates the Company shall i) engage in any law"prohibited transaction" as defined in ERISA, charter provisionii) have any "accumulated funding deficiency" as defined in ERISA, ordinanceiii) have any Reportable Event as defined in ERISA, ruleiv) terminate any Plan, regulationas defined in ERISA or v) be engaged in any proceeding in which the Pension Benefit Guaranty Corporation shall seek appointment, governmental order or directive; and/oris appointed, as trustee or administrator of any Plan, as defined in ERISA, and with respect to this sub-paragraph i) such event or condition x) remains uncured for a period of ninety (90) days from date of occurrence and y) could reasonably be expected to subject that Company to any tax, penalty or other liability materially adverse to the business, operations or financial condition of the Company and its Subsidiaries taken as a whole;
(j) Failure the Company shall default in the payment of, or other performance under, any indenture or other instrument evidencing the Senior Notes, or any other recourse Indebtedness of the Company in excess of $3,000,000.00, if as a result of such default, the maturity of any Indebtedness evidenced by any such indenture or instrument is accelerated prior to provide adequate inventory, vehicles, equipment and/or personnelits stated maturity; and/oror
(k) The filing without the prior written consent of the Required Lenders, the Company shall amend or modify the Senior Notes.
9.2 Upon the occurrence of a voluntary or involuntary petition Default and/or an Event of Default, at the option of the Agent, all loans and advances provided for in bankruptcy or for reorganization or an arrangement, or an assignment Section 3.1 of this Financing Agreement shall be made thereafter in the Agent's sole discretion and the obligation of the Agent acting for the benefit Lenders to make Revolving Loans and/or assist the Company in obtaining Letters of creditors, or the adjudication of the Contractor as being bankrupt or insolvent, or the appointment of a receiver of, or for the Contractor if such appointment, adjudication, or similar order or ruling remains in force or unstayed for a period of thirty (30) days, or admit in writing its inability to pay its debts generally as they become due; and/or
(l) The Contractor’s level of performance of the Services, in the reasonable judgment of the Authority falls below the standard of care set forth in Article II hereof and/or
(m) The Contractor ceases to conduct business in the normal course, and/or
(n) The Contractor fails to comply with any material terms, conditions and/or obligations of Contractor set forth herein.
(o) The Contractor fails to pay any labor, tax obligations, fringe benefit funds, insurance premiums, or subcontractor invoices for Services which the Contractor has received payment from the Authority.
7.02 In the Event of Default by the Contractor, the Authority Credit shall be entitled to exercise any and all remedies available at law and/or in equity, including, but not limited to the right to seek and sue for damages, any costs incurred to enforce, or attempt to enforce this Agreement, including reasonable attorneys fees, which enforcement shall not be limited, and may include appeals of any decisions in lower courts, as well as collection efforts thereafter, compensable damages and consequential damages, withhold and retain payment to the Contractor for the purpose of setoff cease until such time as the exact amount of damages due Default is timely cured to the Authority Agent's reasonable satisfaction or the Event of Default is waived. Further, at the option of the Agent, or at the direction of the Required Lenders, upon the occurrence of an Event of Default (unless waived): i) all Obligations shall upon notice (provided, however, that no such notice is required if the Event of Default is the Event of Default listed in Sections 9.1(c) or 9.1(d)) become immediately due and payable; ii) the Agent may thereafter charge the Company the Default Rate of Interest on all then outstanding or thereafter incurred Obligations in lieu of the interest provided for in Section 7.1 of this Financing Agreement provided a) the Agent has given the Company written notice of the Event of Default, provided, however, that no notice is required if the Event of Default is the Event of Default listed in Sections 9.1(c) or 9.1(d) and b) the Company has failed to cure the Event of Default within fifteen (15) days after x) the Agent deposited such notice in the United States mail or y) the occurrence of the Event of Default listed in Sections 9.1(c) or 9.1(d); and iii) the Agent may, and shall at the direction of the Required Lenders, immediately terminate this Financing Agreement upon notice to the Company, provided, however, that no notice of termination is required if the Event of Default is the Event of Default listed in Sections 9.1(c) or 9.1(d). Notwithstanding anything herein contained to the contrary, if the Agent waives all Events of Default, then by written notice to the Company, the acceleration of the Obligations will be rescinded and all remedies and actions then being exercised by the Agent shall cease. The exercise of any option is not exclusive of any other option which may be exercised at any time by the Agent.
9.3 Upon the occurrence of any Event of Default, the Agent may, to the extent permitted by law: (a) remove from any premises where same may be located copies of any and all documents, instruments, files and records, relating to the Accounts, or the Agent may use such of the Company's personnel, supplies or space at the Company's places of business or otherwise, as may be necessary to properly administer and control the Accounts or the handling of collections and realizations thereon; (b) bring suit, in the name of the Company or the Agent, and generally shall have all other rights respecting said Accounts, including without limitation the right to: accelerate or extend the time of payment, settle, compromise, release in whole or in part, any amounts owing on any Accounts and issue credits in the name of the Company or the Agent; (c) sell, assign and deliver the Collateral and any returned, reclaimed or repossessed merchandise, with or without advertisement, at public or private sale, for cash, on credit or otherwise, at the Agent's sole option and discretion, and, to the extent permitted by applicable law, the Agent may bid or become a purchaser at any such sale, free from any right of redemption, which right is hereby expressly waived by the Company; (d) foreclose the security interests created herein by any available judicial procedure, or to take possession of any or all of the Inventory without judicial process, and to enter any premises where any Inventory may be located for the purpose of taking possession of or removing the same; and (e) exercise any other rights and remedies provided in law, in equity, by contract or otherwise. The Agent shall have the right, without notice or advertisement, to sell, lease, or otherwise dispose of all or any part of the Collateral whether in its then condition or after further preparation or processing, in the name of the Company or the Agent, or in the name of such other party as the Agent may designate, either at public or private sale or at any broker's board, in lots or in bulk, for cash or for credit, with or without warranties or representations, and upon such other terms and conditions as the Agent in its sole discretion may deem advisable, and, to the extent permitted by applicable law, the Agent shall have the right to purchase at any such sale. If any Inventory shall require repairing, maintenance or preparation, the Agent shall have the right, at its option, to do such of the aforesaid as is necessary, for the purpose of putting the Inventory in such saleable form as the Agent shall reasonably deem appropriate. The Company agrees, at the request of the Agent, to assemble the Inventory and to make it available to the Agent at premises of the Company or such other location reasonably designated by the Agent for the purpose of the Agent's taking possession of, removing or putting the Inventory in saleable form. However, if notice of intended disposition of any Collateral is required by law, it is agreed that ten (10) days notice shall constitute reasonable notification and full compliance with the law. The net cash proceeds resulting from the Contractor is determinedAgent's exercise of any of the foregoing rights, seek injunctive relief and/or specific performance (after deducting all reasonable charges, costs and such other equitable remedies that are availableexpenses, as well as effectuate a termination including reasonable attorneys' fees) shall be applied by the Agent to the payment of this Agreementthe Obligations, which may whether due or could give rise to additional damages. It is expressly understood that become due, and the Contractor will Company shall remain liable to the Agent for any damages deficiencies, and the Authority sustains Agent in excess turn agrees to remit to the Company or its successor or assign, any surplus resulting therefrom. The enumeration of the foregoing rights is not intended to be exhaustive and the exercise of any set-offright shall not preclude the exercise of any other rights, all of which shall be cumulative.
Appears in 1 contract
Events of Default and Remedies. 7.01 The (a) Each of the following acts and/or omissions shall constitute a events or circumstances constitutes an event of default (each, an “Event of Default”):
(i) the Owners fail to sell and material breach deliver Refined Silver to Silver Wheaton in accordance with Section 5 of this Agreement by the Contractor and shall be deemed an Event of Default if not cured within five (5) business days after written notice Business Days of default has been sent the date by which the Authority to the Contractor, provided however, that if the default is such that more than five (5) days Owners are required for a cure, then Contractor shall not be in default if it commences to cure the default within the five (5) day period sell and thereafter diligently prosecutes the same to completion:deliver Refined Silver;
(aii) Failure the Owners do not perform and complete a Completion Test on or before the six (6) month anniversary of the Targeted Completion Date and/or, at any time during the period that is thirty (30) months from the Targeted Completion Date, the Owners perform and complete a Completion Test with results that are less than fifty percent (50%) of the Initial Targeted Capacity;
(iii) the Owners do not perform and complete a new Completion Test within six (6) months of the thirty (30) month anniversary of the Targeted Completion Date and/or if, at any time during the period between the date that is thirty (30) months from the Targeted Completion Date and the date that is the Outside Completion Date, the Owners perform and complete a Completion Test with results that are less than fifty percent (50%) of the Final Targeted Capacity;
(iv) if applicable, the Owners do not deliver the amount of Refined Silver required under Sections 8(b) or (d);
(v) the Owners fail to comply pay the Capacity Related Refund in accordance with Section 8(f);
(vi) the Water Licence has not been issued to and in the name of the an Owner by December 31, 2010;
(vii) the Owners are in breach or default of any of the material terms and conditions of its representations, warranties, covenants or obligations set forth in this Agreement following written notice from in any material respect, including the Authority delivery of Monthly Reports and failure to cure; and/or
(b) Failure to begin the Services Annual Reports in accordance with the terms of this Agreement; and/or, and such breach or default is not remedied within the Cure Period;
(cviii) If Alexco is in breach or default of any of its representations or warranties set forth in this Agreement in any material respect and such breach or default is not remedied within the Contractor, in the judgment of the Authority, is unnecessarily or unreasonably or willfully delaying the performance and completion of the Services; and/orCure Period;
(dix) The Contractor abandons the Services to be undertaken; and/or
(e) The Authority reasonably believes that the Services cannot be completed within the time requiredAlexco is in breach or default of any of its covenants or obligations set forth in this Agreement in any material respect, where other than its covenants and obligations set forth in the Authority’s judgment, the delay is attributable to conditions within the Contractor’s control; and/or
(f) The Contractor, without just cause, reduces its personnel to a number which in the judgment of the Authority, is insufficient to complete the Services within a reasonable time and fails to sufficiently increase such personnel when directed to do so by the Authority; and/or
(g) The Contractor assigns, transfers, conveys or otherwise disposes Section 18 of this Agreement, in whole, and such breach or in part, without prior approval of default is not remedied within the Authority; and/orCure Period;
(hx) Any Authority officer Alexco is in breach or employee acquires an interest in this Agreement so as to create a conflict default of interest; and/or
(i) The Contractor violates any law, charter provision, ordinance, rule, regulation, governmental order of its covenants or directive; and/or
(j) Failure to provide adequate inventory, vehicles, equipment and/or personnel; and/or
(k) The filing of a voluntary or involuntary petition in bankruptcy or for reorganization or an arrangement, or an assignment for the benefit of creditors, or the adjudication of the Contractor as being bankrupt or insolvent, or the appointment of a receiver of, or for the Contractor if such appointment, adjudication, or similar order or ruling remains in force or unstayed for a period of thirty (30) days, or admit in writing its inability to pay its debts generally as they become due; and/or
(l) The Contractor’s level of performance of the Services, in the reasonable judgment of the Authority falls below the standard of care obligation set forth in Article II hereof and/orSection 18 of this Agreement;
(mxi) The Contractor ceases to conduct business the Existing Alexco Entities are in breach or default (or an event which with notice or lapse of time or both would become a default) under any of the normal course, and/orSilver Wheaton Security Agreements or any Permitted Initial Project Financing or the GSA;
(nxii) The Contractor fails to comply with any material terms, the conditions and/or obligations of Contractor set forth hereinin Section 3(c) have not been satisfied in full on or before the date that is ninety (90) days from the Effective Date;
(xiii) the conditions set forth in Section 3(d) have not been satisfied by the Owners by December 31, 2009; and
(xiv) upon the occurrence of an Insolvency Event affecting either or both of the Owners or Alexco; provided that any action under any bankruptcy or insolvency law which is frivolous or vexatious, which is contested by the Party made subject to the Insolvency Event in good faith and which is discharged or dismissed within sixty (60) days from commencement, shall not constitute an Insolvency Event for the purpose of this section.
(ob) The Contractor fails to pay any labor, tax obligations, fringe benefit funds, insurance premiums, or subcontractor invoices for Services which the Contractor has received payment from the Authority.
7.02 In the If an Event of Default by occurs and is continuing, Silver Wheaton shall have the Contractorright, upon written notice to the Authority shall be entitled Owners, at its option and in addition to exercise and not in substitution for any and all other remedies available at law and/or in or equity, includingto demand repayment of the outstanding balance of the Deposit, but not limited to if any, calculated under Section 3(f), at the right to seek time of the occurrence of such Event of Default, together with any and sue for damagesall damages or losses resulting or arising from the occurrence of an Event of Default (the “Default Fee”). The Default Fee shall accrue interest at a rate of [PROPRIETARY TERMS – REDACTED FOR CONFIDENTIALITY] per annum, any costs incurred to enforcecompounded monthly, or attempt to enforce this Agreement, including reasonable attorneys feesfrom the date of demand until the Default Fee is paid in full. Upon demand from Silver Wheaton, which enforcement demand shall not include a calculation of the Default Fee, the Owners shall promptly pay the Default Fee to Silver Wheaton by wire transfer, in immediately available funds, to a bank account designated by Silver Wheaton. For greater certainty, in the event the Owners are required to pay the Default Fee under this Section 20(b), the provisions of Section 3 requiring the payment of a Deposit Refund will no longer be limited, applicable and may include appeals upon payment of any decisions in lower courtsthe Default Fee to Silver Wheaton then the obligation of the Owners to sell Refined Silver to Silver Wheaton, as well as collection efforts thereafterset out in Section 2(a), compensable damages and consequential damages, withhold and retain payment to the Contractor for the purpose of setoff until such time as the exact amount of damages due to the Authority from the Contractor is determined, seek injunctive relief and/or specific performance and such other equitable remedies that are available, as well as effectuate a termination of this Agreement, which may or could give rise to additional damages. It is expressly understood that the Contractor will remain liable for any damages the Authority sustains in excess of any set-offno longer be applicable.
Appears in 1 contract
Events of Default and Remedies. 7.01 The Contractor Events of Default Any one (1) or more of the following acts and/or omissions shall constitute a default and material breach of this Agreement events by the Contractor and shall be deemed an Event of Default if Contractor, which is not cured within five ten (510) business days Calendar Days after written receipt of notice of default has been sent thereof by the Authority to Department shall constitute an “Event of Default” on the part of Contractor, provided however, that if the default is such that more than five (5) days are required for a cure, then Contractor shall not be in default if it commences to cure the default within the five (5) day period and thereafter diligently prosecutes the same to completion:
(a) Failure Contractor fails to comply with pay any sum of the material terms and conditions of this Agreement following written notice from the Authority and failure to cure; and/ormoney due hereunder;
(b) Failure Contractor fails to begin provide the Services in accordance with the terms of required under this Agreement; and/orContract;
(c) If the Contractor, Contractor employs an unauthorized alien in the judgment performance of the Authority, is unnecessarily or unreasonably or willfully delaying the performance and completion of the Services; and/orany work required under this Contract;
(d) The Contractor abandons fails to correct work that the Services to be undertaken; and/orDepartment has rejected as unacceptable or unsuitable;
(e) The Authority reasonably believes that Contractor discontinues the Services cannot be completed within performance of the time required, where in the Authority’s judgment, the delay is attributable to conditions within the Contractor’s control; and/orwork required under this Contract;
(f) The Contractor, without just cause, reduces its personnel to a number which in the judgment of the Authority, is insufficient to complete the Services within a reasonable time and Contractor fails to sufficiently increase such personnel when directed to do so resume work that has been discontinued within the time prescribed by the Authority; and/orDepartment in its notice;
(g) The Contractor assigns, transfers, conveys or otherwise disposes of this Agreement, in whole, or in part, without prior approval of abandons the Authority; and/orproject;
(h) Any Authority officer Contractor becomes insolvent or employee acquires an interest in this Agreement so as to create a conflict of interest; and/oris declared bankrupt;
(i) The Contractor violates any law, charter provision, ordinance, rule, regulation, governmental order or directive; and/orfiles for reorganization under the bankruptcy code;
(j) Failure to provide adequate inventoryContractor commits any other action towards the initiation of bankruptcy or insolvency proceedings, vehicles, equipment and/or personnel; and/oreither voluntarily or involuntarily;
(k) The filing of a voluntary Contractor fails to promptly pay any and all taxes or involuntary petition in bankruptcy assessments imposed by and legally due the Department, State or for reorganization or an arrangement, or federal government;
(l) Contractor makes an assignment for the benefit of creditors, or creditors without the adjudication approval of the Contractor as being bankrupt or insolvent, or the appointment of a receiver of, or for the Contractor if such appointment, adjudication, or similar order or ruling remains in force or unstayed for a period of thirty (30) days, or admit in writing its inability to pay its debts generally as they become due; and/or
(l) The Contractor’s level of performance of the Services, in the reasonable judgment of the Authority falls below the standard of care set forth in Article II hereof and/orDepartment;
(m) The Contractor ceases makes or has made a material misrepresentation or omission in any materials provided to conduct business in the normal course, and/orDepartment;
(n) The Contractor fails to comply with commits any material terms, conditions and/or obligations breach of Contractor set forth herein.this Contract;
(o) The Contractor transfers ownership in violation of the Contract;
(p) Contractor fails to pay any laborfurnish and maintain the performance bond;
(q) Contractor fails to procure and maintain the required insurance policies and coverages required by this Contract;
(r) The Department determines that the surety company issuing a bond securing Contractor’s performance of its obligations hereunder becomes insolvent or unsatisfactory;
(s) Contractor utilizes a Subcontractor in the performance of the work required by this Contract, tax obligationswhich has been placed on the State’s Convicted Vendor List, fringe benefit funds, insurance premiumsDiscriminatory Vendor List, or subcontractor invoices for Services which Antitrust Vendor List;
(t) Contractor is suspended or is removed as an authorized Contractor by any State or federal agency; or Contractor is convicted of a felony; is placed on the State’s Convicted Vendor List, Discriminatory Vendor List, or Antitrust Vendor List; or has its license is suspended or revoked;
(u) Contractor has refuses to allow public access to all documents, papers, letters or other material subject to the provisions of Chapter 119, Florida Statutes, made or received payment from by Contractor in conjunction with this Contract and not otherwise deemed confidential, proprietary or a trade secret;
(v) Contractor refuses to allow any access required to comply with the Authority.
7.02 In the Event audit provisions of Default by the Contract;
(w) Violation of section 4.2.5 (Work Locations, No Offshoring of Data), or Contractor’s permitting State of Florida Data to be transmitted, viewed, or accessed outside of the United States;
(x) Contractor’s change of Subcontractors in violation of section 4.2.3, Subcontractors, of the Contract;
(y) The Contractor, upon discovery or notice thereof, fails to notify the Authority shall be entitled Department within seven (7) Calendar Days of problems or issues impacting provision of Services or compliance with the terms of the Contract not already subject to exercise a shorter notification timeframe set forth herein;
(z) For any and all remedies available at law and/or other cause whatsoever that Contractor fails to perform in equityaccordance with the Contract, including, but not limited to, failure to meet performance standards and/or pay associated guarantees;
(aa) Failure to meet the right same Performance Guarantee for at least three (3) performance periods. Department Remedies in the Event of Default Upon the occurrence of an Event of Default on the part of Contractor, the Department is entitled to seek and sue one or all of the following remedies:
(a) To terminate this Contract for damagescause, in whole or in part if Contractor commits an Event of Default under section 9.1, of this Contract. If the Contract is terminated for cause, the Contractor shall be liable for any costs incurred to enforcere-procurement costs. The Contractor shall continue work on any part not terminated. Except for an Event of Default of Subcontractors, or attempt to enforce this Agreement, including reasonable attorneys fees, which enforcement Contractor shall not be limitedliable for any excess costs if the failure to perform the Contract arises from events completely beyond the control, and may include appeals without the fault or negligence, of Contractor. If the failure to perform is caused by the Event of Default of a Subcontractor, and if the cause of the Event of Default is completely beyond the control of both the Contractor and the Subcontractor, and without the fault or negligence of either, the Contractor shall not be liable for any excess costs for failure to perform, unless the subcontracted Services were obtainable from other sources in sufficient time for the Contractor to meet the required delivery schedule. If, after termination, it is determined that Contractor was not in default, or that the default was excusable, the rights and convenience of the Parties shall be the same as if the termination had been issued for the convenience of the Department;
(b) To institute legal proceedings against Contractor to collect payment of any decisions in lower courtsdamages or sums owed by Contractor hereunder, as well as collection efforts thereafter, compensable including liquidated damages and consequential damagesthe costs of re- procurement, withhold and retain such equitable relief as is appropriate; and
(c) Upon notice to Contractor, to perform the Services (or cause the Services to be performed) on behalf of, and at the reasonable expense of, Contractor. If, at any time and by reason of such default, the Department is compelled to pay, or elects to pay, any sum of money or do any act, which will require the payment of any sum of money, or is compelled to incur any expense in the enforcement of its rights hereunder or otherwise, such sum or sums (with a rate of interest if not established herein then as statutorily set by the State’s Chief Financial Officer) will be promptly repaid by the Contractor to the Department upon receipt of a ▇▇▇▇ from the Department. In the event of the Contractor’s default, all State agencies will be advised not to do business with Contractor for without written approval from the purpose Division of setoff State Purchasing, until such time as Contractor reimburses the exact amount Department for all re-procurement and transition costs in accordance with paragraph (3)(c) of damages due Rule 60A-1.006, Florida Administrative Code. The rights and remedies of the Department in section 9 are in addition to any other rights and remedies provided by law or under the Authority Contract. Department Events of Default Any one (1) or more of the following events shall, after the required notice(s) and opportunity to cure, except as otherwise provided below, constitutes an Event of Default on the part of the Department: The Department fails to timely pay all non-disputed amounts. The cure period for failure to pay shall be forty-five (45) Calendar Days from receipt of notice of failure to pay, unless State law allows a longer period to pay; or The Department breaches any other material obligations under this Contract. The cure period for a material breach by the Department shall be forty-five (45) Calendar Days from receipt of notice of material breach. Contractor Remedies in the Event of Default Upon occurrence of an Event of Default on the part of the Department, Contractor is determined, seek injunctive relief and/or specific performance and such other equitable remedies that are available, as well as effectuate a termination entitled to any one (1) or all of this Agreement, which may or could give rise to additional damages. It is expressly understood that the Contractor will remain liable for any damages the Authority sustains in excess of any set-offfollowing remedies.
Appears in 1 contract
Sources: Contract for Social Security Disability Insurance Eligibility Enrollment Services
Events of Default and Remedies. 7.01 The following acts (a) As used herein, an "EVENT OF DEFAULT" occurs if:
(i) the Company defaults in the payment of principal and/or omissions shall constitute a default interest when the same becomes due and material breach of this Agreement by the Contractor payable, and shall be deemed an Event of Default if such failure is not cured within five (5) business days after the Company receives written notice of default has been sent by demand from Holder to remedy the Authority to the Contractor, provided however, that if the default is such that more than five (5) days are required for a cure, then Contractor shall not be in default if it commences to cure the default within the five (5) day period and thereafter diligently prosecutes the same to completion:same;.
(aii) Failure the Company fails to comply with any of other provision contained in this Series 1 Bridge Note, the material terms Purchase Agreement, the Warrant, the Repricing Warrant, or the Registration Rights Agreement, and conditions of this Agreement following such failure is not cured within ten (10) days after the Company receives written notice demand from Holder to remedy the Authority and failure to cure; and/orsame;
(biii) Failure the Company defaults in any payment of principal of or interest on any Debt (excluding trade payables) in excess of $100,000 beyond any period of grace provided with respect thereto and the effect of such failure is to begin cause the Services holder of such Debt to accelerate the Debt such that such Debt becomes due prior to its stated maturity;
(iv) any representation or warranty made in accordance writing by or on behalf of (i) the Company in the Purchase Agreement or in any writing furnished in connection with or pursuant to the Purchase Agreement or in connection with the terms of this Agreement; and/or
(c) If the Contractor, in the judgment of the Authority, is unnecessarily or unreasonably or willfully delaying the performance and completion of the Services; and/or
(d) The Contractor abandons the Services to be undertaken; and/or
(e) The Authority reasonably believes that the Services cannot be completed within the time required, where in the Authority’s judgment, the delay is attributable to conditions within the Contractor’s control; and/or
(f) The Contractor, without just cause, reduces its personnel to a number which in the judgment of the Authority, is insufficient to complete the Services within a reasonable time and fails to sufficiently increase such personnel when directed to do so transactions contemplated by the Authority; and/or
(g) The Contractor assigns, transfers, conveys or otherwise disposes of this Agreement, or (ii) the Company in wholethe Registration Rights Agreement, or (iii) the Company in partthe Escrow Agreement, without prior approval shall be false in any material respect on the date as of the Authority; and/orwhich made;
(hv) Any Authority officer or employee acquires an interest in this Agreement so as to create a conflict of interest; and/or
(i) The Contractor violates any law, charter provision, ordinance, rule, regulation, governmental order or directive; and/or
(j) Failure to provide adequate inventory, vehicles, equipment and/or personnel; and/or
(k) The filing of a voluntary or involuntary petition in bankruptcy or for reorganization or an arrangement, or the Company makes an assignment for the benefit of creditorscreditors or is generally not paying its debts as such debts become due;
(vi) any order or decree for relief in respect of the Company is entered under any bankruptcy, reorganization, compromise, arrangement, insolvency, readjustment of debt, dissolution, or liquidation or similar law, whether now or hereafter in effect (herein called the adjudication "BANKRUPTCY LAW"), of any jurisdiction;
(vii) the Contractor as being bankrupt Company petitions or insolventapplies to any tribunal for, or consents to, the appointment of a receiver of, or for the Contractor if such appointmenttaking possession by, adjudicationa trustee, receiver, custodian, liquidation, or similar order official of the Company, or ruling of any substantial part of the assets of the Company, or commences a voluntary case under the Bankruptcy Law of the United States or any proceedings relating to the Company under the Bankruptcy Law of any other jurisdiction;
(viii) any petition or application described in Section 10(a)(vi) above is filed, or any such proceedings are commenced, against the Company and the Company by any act indicates its approval thereof, consent thereto or acquiescence therein, or an order, judgment or decree is entered appointing any such trustee, receiver, custodian, liquidator, or similar official, or approving the petition in any such proceedings, and such order, judgment, or decree remains unstayed and in force or unstayed effect for a period of thirty more than sixty (3060) days;
(ix) any order, judgment, or admit decree is entered in writing its inability to pay its debts generally as they become dueany proceedings against the Company decreeing the dissolution of the Company and such order, judgment, or decree remains unstayed and in effect for more than sixty (60) days; and/oror
(lx) The Contractor’s level a final judgment (not fully covered by insurance) in an amount in excess of performance $100,000 is rendered against the Company and, within ten (10) business days after entry thereof, such judgment is not discharged or execution thereof stayed pending appeal, or within ten (10) days after the expiration of the Servicesany such stay, in the reasonable such judgment of the Authority falls below the standard of care set forth in Article II hereof and/oris not discharged; or
(mxi) The Contractor ceases to conduct business in the normal course, and/or
(n) The Contractor Company fails to comply with any material termsobtain shareholder approval for its proposed increase in authorized capital stock from 50,000,000 shares of Common Stock to 93,000,000 shares of Common Stock at its shareholder meeting scheduled for August 27, conditions and/or obligations of Contractor set forth herein1999.
(ob) The Contractor fails to pay any laborUpon the occurrence of an Event of Default described in subsection (vi), tax obligations, fringe benefit funds, insurance premiums(vii), or subcontractor invoices for Services (viii) of Section 10(a), the principal of and accrued interest on this Series 1 Bridge Note shall automatically become immediately due and payable, without presentment, demand, protest or other requirements of any kind, all of which are hereby expressly waived by the Contractor has received payment from Company. If any other Event of Default exists, Holder may, in addition to the Authorityexercise of any right, power, or remedy permitted to Holder by law, declare (by written notice or notices to the Company) the entire principal of and all interest accrued on this Series 1 Bridge Note to be due and payable, and this Series 1 Bridge Note shall thereupon become immediately due and payable, without presentment, demand, protest, or other notice of any kind, all of which are hereby expressly waived by the Company. Upon such declaration, the Company will immediately pay to Holder of this Series 1 Bridge Note the then outstanding principal of and accrued and unpaid interest on the Series 1 Bridge Notes. If at any time after acceleration of the maturity of the Series 1 Bridge Notes, the Company shall pay all arrears of interest and all payments on account of principal which shall have become due other than by acceleration (with interest on principal and, to the extent permitted by law, on overdue interest, at the rate specified in the Series 1 Bridge Notes) and all Events of Default (other than nonpayment of principal of or interest on this Series 1 Bridge Note due and payable solely by virtue of acceleration) shall be remedied or waived by Holder by written notice to the Company may rescind and annul the acceleration and its consequences, but such action shall not affect any subsequent Event of Default or impair any right consequent thereon.
7.02 In (c) A delay or omission by the Holder of this Series 1 Bridge Note in exercising any right or remedy arising upon an Event of Default shall not impair such right or remedy or constitute a waiver of or an acquiescence in the Event of Default.
(d) If any Event of Default by the Contractorshall occur and be continuing, the Authority Holder of this Series 1 Bridge Note may proceed to protect and enforce their rights under this Agreement and this Series 1 Bridge Note by exercising such remedies as are available to such Holder either by suit in equity or by action at law, or both, whether for specific performance of any covenant or other agreement contained in this Agreement or in aid of the exercise of any power granted in this Agreement. No remedy conferred in this Agreement upon Holder is intended to be exclusive of any other remedy, and each and every such remedy shall be entitled cumulative and shall be in addition to exercise any and all remedies available every other remedy conferred herein or now or hereafter existing at law and/or or in equity, including, but not limited to the right to seek and sue for damages, any costs incurred to enforce, equity or attempt to enforce this Agreement, including reasonable attorneys fees, which enforcement shall not be limited, and may include appeals of any decisions in lower courts, as well as collection efforts thereafter, compensable damages and consequential damages, withhold and retain payment to the Contractor for the purpose of setoff until such time as the exact amount of damages due to the Authority from the Contractor is determined, seek injunctive relief and/or specific performance and such other equitable remedies that are available, as well as effectuate a termination of this Agreement, which may by statute or could give rise to additional damages. It is expressly understood that the Contractor will remain liable for any damages the Authority sustains in excess of any set-offotherwise.
Appears in 1 contract
Sources: Bridge Note Purchase and Security Agreement (Tracker Corp of America)
Events of Default and Remedies. 7.01 The 8.1 Notwithstanding anything hereinabove to the contrary, CIT may terminate this Financing Agreement immediately upon the occurrence of any of the following acts and/or omissions shall constitute Events of Default:
(a) cessation of the business of the Company or the calling of a default meeting of the creditors of the Company for purposes of compromising the debts and material breach obligations of this Agreement the Company;
(b) the failure of the Company to generally meet its debts as they mature;
(i) the commencement by the Contractor and Company of any bankruptcy, insolvency, arrangement, reorganization, receivership or similar proceedings under any federal or state law; (ii) the commencement against the Company, of any bankruptcy, insolvency, arrangement, reorganization, receivership or similar proceeding under any federal or state law by creditors of the Company, provided that such Default shall not be deemed an Event of Default if such proceeding is controverted within ten (10) days and dismissed and vacated within thirty (30) days of commencement, except in the event that any of the actions sought in any such proceeding shall occur or the Company shall take action to authorize or effect any of the actions in any such proceeding; or (iii) the commencement (x) by Parent or the Company's subsidiaries, or any one of them, of any bankruptcy, insolvency, arrangement, reorganization, receivership or similar proceeding under any applicable state law, or (y) against Parent or the Company's subsidiaries, or any one of them, of any involuntary bankruptcy, insolvency, arrangement, reorganization, receivership or similar proceeding under applicable law, provided that such Default shall not cured be deemed an Event of Default if such proceeding is controverted within ten (10) days and dismissed or vacated within thirty (30) days of commencement, except in the event that any of the actions sought in any such proceeding shall occur or the Company's subsidiaries, or any one of them, shall take action to authorize or effect any of the actions in any such proceeding;
(d) breach by the Company of any warranty, representation or covenant contained herein (other than those referred to in sub-paragraph (e) below) or in any other written agreement between the Company or CIT, provided that such Default by the Company of any of the warranties, representations or covenants referred in this clause (d) shall not be deemed to be an Event of Default unless and until such Default shall remain unremedied to CIT's satisfaction for a period of ten (10) days from the date of such breach, provided further that any such Default under or arising from any of the Assignment of Tax Claims by Parent in favor of CIT, the Assignment of Tax Claims by the Company in favor of CIT or the Assignment of Tax Claims by BGF Services, Inc. in favor of CT, each dated as of the date hereof, shall immediately constitute an Event of Default;
(e) breach by the Company of any warranty, representation or covenant of Paragraphs 3.3 (other than the fourth sentence of Paragraph 3.3) and 3.4 of Section 3 hereof; Paragraphs 4.3 and 4.4 (other than the first sentence of Paragraph 4.4) of Section 4 hereof; Paragraphs 5.1, 5.5, 5.6, and 5.8 through 5.14 hereof;
(f) failure of the Company to pay any of the Obligations within five (5) business days after written notice Business Days of default has been sent by the Authority due date thereof, provided that nothing contained herein shall prohibit CIT from charging such amounts to the Contractor, provided however, that if Revolving Loan Account on the default is such that more than five (5) days are required for a cure, then Contractor shall not be in default if it commences to cure the default within the five (5) day period and thereafter diligently prosecutes the same to completion:
(a) Failure to comply with any of the material terms and conditions of this Agreement following written notice from the Authority and failure to cure; and/or
(b) Failure to begin the Services in accordance with the terms of this Agreement; and/or
(c) If the Contractor, in the judgment of the Authority, is unnecessarily or unreasonably or willfully delaying the performance and completion of the Services; and/or
(d) The Contractor abandons the Services to be undertaken; and/or
(e) The Authority reasonably believes that the Services cannot be completed within the time required, where in the Authority’s judgment, the delay is attributable to conditions within the Contractor’s control; and/or
(f) The Contractor, without just cause, reduces its personnel to a number which in the judgment of the Authority, is insufficient to complete the Services within a reasonable time and fails to sufficiently increase such personnel when directed to do so by the Authority; and/ordue date thereof;
(g) The Contractor assignsthe Company shall (i) engage in any "prohibited transaction" as defined in ERISA, transfers(ii) have any "accumulated funding deficiency" as defined in ERISA, conveys (iii) have any "reportable event" as defined in ERISA, (iv) terminate any "plan", as defined in ERISA or otherwise disposes of this Agreement, (v) be engaged in wholeany proceeding in which the Pension Benefit Guaranty Corporation shall seek appointment, or is appointed, as trustee or administrator of any "plan", as defined in partERISA, without prior approval of the Authority; and/or
and with respect to this sub-paragraph (h) Any Authority officer such event or employee acquires an interest in this Agreement so as to create a conflict of interest; and/or
condition (ix) The Contractor violates any law, charter provision, ordinance, rule, regulation, governmental order or directive; and/or
(j) Failure to provide adequate inventory, vehicles, equipment and/or personnel; and/or
(k) The filing of a voluntary or involuntary petition in bankruptcy or for reorganization or an arrangement, or an assignment for the benefit of creditors, or the adjudication of the Contractor as being bankrupt or insolvent, or the appointment of a receiver of, or for the Contractor if such appointment, adjudication, or similar order or ruling remains in force or unstayed uncured for a period of thirty (30) days, or admit in writing its inability to pay its debts generally as they become due; and/or
days from date of occurrence and (ly) The Contractor’s level of performance of the Servicescould, in the reasonable judgment opinion of CIT, subject the Company to any tax, penalty or other liability material to the business, operations or financial condition of the Authority falls below the standard of care set forth in Article II hereof and/orCompany;
(mh) without the prior written consent of CIT and, except as permitted in the Subordination Agreement, the Company shall (x) amend or modify the Subordinated Debt, or (y) make any payment on account of the Subordinated Debt, except to the extent expressly permitted in the definition of "Subordinated Debt" contained in this Agreement;
(i) the occurrence of any default or event of default (after giving effect to any applicable grace or cure periods) under the 2009 Indenture or any 2009 Note, or any instrument or agreement evidencing (x) Subordinated Debt or (y) any other Indebtedness of the Company having a principal amount in excess of $250,000;
(j) (x) any of ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ and ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ ceases for any reason whatsoever to be actively engaged in the management of the Company and the Company has not retained a replacement for such person satisfactory to CIT in its sole discretion, or (y) the stock of (A) the Company presently held (directly or indirectly) by the Parent is transferred or (B) the Parent presently held (directly or indirectly) by Porcher Industries is transferred or (C) Porcher Industries presently held (directly or indirectly) by ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ is transferred; or
(k) The Contractor ceases Company shall fail to conduct business receive by not later than April 30, 2003 not less than $12,000,000 on account of a United States Federal tax refund pursuant to a consolidated amended tax return for such tax years filed by Parent.
8.2 Upon the occurrence of a Default and/or an Event of Default, at the option of CIT, all loans, advances and extensions of credit provided for in the normal course, and/orSection 3 of this Financing Agreement shall
(na) The Contractor fails all Obligations shall become immediately due and payable; (b) CIT may charge the Company the Default Rate of Interest on all then outstanding or thereafter incurred Obligations in lieu of the interest provided for in Section 6 of this Financing Agreement, provided that, with respect to comply with any material termsthis clause "(b)" CIT has given the Company written notice of the Event of Default; provided, conditions and/or obligations of Contractor set forth herein.
(o) The Contractor fails to pay any laborhowever, tax obligations, fringe benefit funds, insurance premiums, or subcontractor invoices for Services which the Contractor has received payment from the Authority.
7.02 In that no notice is required if the Event of Default by is the Contractor, the Authority shall be entitled to exercise any and all remedies available at law and/or Event listed in equity, including, but not limited to the right to seek and sue for damages, any costs incurred to enforce, or attempt to enforce this Agreement, including reasonable attorneys fees, which enforcement shall not be limited, and may include appeals of any decisions in lower courts, as well as collection efforts thereafter, compensable damages and consequential damages, withhold and retain payment to the Contractor for the purpose of setoff until such time as the exact amount of damages due to the Authority from the Contractor is determined, seek injunctive relief and/or specific performance and such other equitable remedies that are available, as well as effectuate a termination of this Agreement, which may or could give rise to additional damages. It is expressly understood that the Contractor will remain liable for any damages the Authority sustains in excess of any set-off.Paragraph 8.1
Appears in 1 contract
Events of Default and Remedies. 7.01 The (a) Each of the following acts and/or omissions shall events constitutes an “Event of Default” hereunder and any event that, with the passage of time or the giving of notice, or both, would constitute a default and material breach of this Agreement by the Contractor and shall be deemed an Event of Default if not cured within five shall constitute a “Default” hereunder: (5i) business days after written notice of default has been sent by the Authority Lessee fails to the Contractor, provided however, that if the default is pay any Rent when due under this Lease and such that more than five (5) days are required failure continues for a cureperiod of ten (10) days; (ii) any representation or warranty made by Lessee in the Lease or in any other Lease Document shall at any time prove to have been incorrect in any material respect as and when made; (iii) Lessee fails (A) to obtain and maintain the insurance coverage required herein; or (B) fails to observe or perform any other covenant, then Contractor shall not be in default if it commences to cure the default within the five (5) day period and thereafter diligently prosecutes the same to completion:
(a) Failure to comply with any of the material terms and conditions of condition or agreement under this Agreement following written notice from the Authority and failure to cure; and/or
(b) Failure to begin the Services in accordance with the terms of this Agreement; and/or
(c) If the ContractorLease and, in the judgment case of the Authorityclause (B), is unnecessarily such failure continues unremedied for a period of fifteen (15) days unless Lessor waives such failure in Lesor’s sole discretion; (iv) Lessee or unreasonably any Guarantor shall have consolidated with, merged with or willfully delaying the performance and completion of the Services; and/or
(d) The Contractor abandons the Services to be undertaken; and/or
(e) The Authority reasonably believes that the Services cannot be completed within the time requiredinto, where in the Authority’s judgmentor conveyed, the delay is attributable to conditions within the Contractor’s control; and/or
(f) The Contractor, without just cause, reduces its personnel to a number which in the judgment of the Authority, is insufficient to complete the Services within a reasonable time and fails to sufficiently increase such personnel when directed to do so by the Authority; and/or
(g) The Contractor assigns, transfers, conveys sold or otherwise disposes transferred all or substantially all of this Agreement, in whole, its assets or in part, without prior approval of the Authorityshall have failed to maintain its corporate existence; and/or
(hv) Any Authority officer Lessee or employee acquires an interest in this Agreement so any Guarantor (A) ceases doing business as to create a conflict of interestgoing concern; and/or
(iB) The Contractor violates any law, charter provision, ordinance, rule, regulation, governmental order or directive; and/or
(j) Failure to provide adequate inventory, vehicles, equipment and/or personnel; and/or
(k) The filing of a voluntary or involuntary petition in bankruptcy or for reorganization or an arrangement, or makes an assignment for the benefit of creditors, creditors or the adjudication of the Contractor as being bankrupt or insolvent, or the appointment of a receiver of, or for the Contractor if such appointment, adjudication, or similar order or ruling remains in force or unstayed for a period of thirty (30) days, or admit admits in writing its inability to pay its debts as they mature or generally fails to pay its debts as they become due; and/or
(lC) The Contractor’s level initiates any voluntary bankruptcy, reorganization, insolvency or similar proceeding; (D) fails to obtain the discharge of performance any bankruptcy, reorganization, insolvency or similar proceeding initiated against it by others within sixty (60) days of the Servicesdate such proceedings were initiated; (E) requests or consents to the appointment of a trustee, custodian or receiver or other officer with similar powers for itself or a substantial part of its property; or (F) a trustee, custodian or receiver or other officer with similar powers is appointed for itself or for a substantial part of its property; (vi) Lessee fails to return the Equipment or fails to return the Equipment in the reasonable judgment required condition at the expiration of the Authority falls below the standard Term; (vii) a default shall have occurred and be continuing under any contract, agreement or document between Lessee and any of care set forth in Article II hereof and/or
its other creditors, (mviii) The Contractor ceases to conduct business a default shall have occurred and be continuing under any contract, agreement or document between Lessee or any Guarantor and Lessor or any affiliate of Lessor; (ix) if Lessee’s obligations are guaranteed by any other party, an “Event of Default” (under and as defined in the normal courseGuaranty executed by such Guarantor) shall occur; (x) a material adverse change in Lessee’s existing or prospective financial condition or results of operations since the date hereof which may affect the ability of Lessee to perform its obligations under the Lease Documents shall occur and be continuing; or (xi) the individuals who as of the date of this Agreement are members of the Board of Directors of the Lessee (the “Incumbent Board”) cease for any reason to constitute at least a majority of the Board of Directors; provided, and/or
(n) The Contractor fails to comply with however, that if the election, or nomination for election by the Lessee’s shareholders, of any material termsnew director was approved by a vote of at least a majority of the Incumbent Board, conditions and/or obligations such new director shall, for purposes of Contractor set forth hereinthis Agreement, be considered as a member of the Incumbent Board.
(ob) The Contractor fails to pay any labor, tax obligations, fringe benefit funds, insurance premiums, or subcontractor invoices for Services which Upon the Contractor has received payment from the Authority.
7.02 In the occurrence of an Event of Default Default, Lessor may exercise any one or more of the following remedies and any additional rights and remedies permitted by the Contractor, the Authority law (none of which shall be exclusive) and shall be entitled to exercise recover all its reasonable costs and expenses including incidental and consequential damages (as described in Section 2A-530 of the Uniform Commercial Code) and attorneys’ fees in enforcing its rights and remedies:
(i) Lessee shall upon demand assemble or cause to be assembled any or all of the Equipment at a location designated by Lessor; and/or to return promptly, at Lessee’s expense, any or all of the Equipment to Lessor at such location, in the condition and otherwise in accordance with all remedies available of the terms of Section 14 hereof; and/or
(ii) Lessor may itself or by its agents without breach of the peace or with court order or other process of law, enter upon the premises of Lessee or any other location where the Equipment is located and take possession of and render unusable by Lessee any or all of the Equipment, wherever it may be located, without any court order or other process of law and without liability for any damages occasioned by such taking of possession; and/or
(iii) Sell, re-lease or otherwise dispose of any or all of the Equipment, whether or not in Lessor’s possession, at law and/or in equitypublic or private sale with or without notice to Lessee, includingwith the right of Lessor to purchase and apply the net proceeds of such disposition, after deducting all costs of such disposition (including but not limited to costs of transportation, possession, storage, refurbishing, advertising and brokers’ fees), to the right to seek obligations of Lessee under this Lease, with Lessee remaining liable for any deficiency and sue for damages, with any costs incurred to enforceexcess being retained by Lessor, or attempt retain any and all of the Equipment; and/or
(iv) Cancel such Equipment Schedule as to any or all of the Equipment; and/or
(v) Proceed by appropriate court action, either at law or in equity (including an action for specific performance), to enforce performance by Lessee or to recover damages associated with such Event of Default; or exercise any other right or remedy available to Lessor at law or in equity; and/or
(vi) By offset, recoupment or other manner of application, apply any security deposit, monies held in deposit or other sums then held by Lessor or any affiliate of Lessor, and with respect to which Lessee has an interest, against any obligations of Lessee arising under this AgreementLease or any other Lease Document, whether or not Lessee has pledged, assigned or granted a security interest to Lessor in any or all such sums as collateral for said obligations.
(c) In addition to the foregoing, Lessee shall pay to Lessor on demand the sum of (i) any and all Rent which is then due or which has accrued to the date of demand and (ii) at Lessor’s option (A) an amount equal to the Stipulated Loss Value (as set forth in the related Equipment Schedule) as of the Rent Payment Date on or immediately preceding the date of demand for the Items of Equipment as Lessor shall specify or (B) all Basic Rent and all other sums, including any tax indemnities becoming due as a result of such Event of Default, for the Term (including any mandatory Renewal Term) and all amounts due upon the expiration of the Term including any return fees and/or any amounts due with respect to the mandatory purchase of the Equipment becoming due under this Lease from the date of demand to the Expiration Date for such Items of Equipment plus the assumed residual value of such Equipment (as determined by Lessor). The Lessor and Lessee agree that Lessor shall be entitled to such amount as damages for loss of bargain and not as a penalty and that such amount is reasonable attorneys feesin light of the anticipated harm to Lessor caused by an Event of Default.
(d) If Lessee pays the full amount referred to in Section 16(c) to Lessor prior to the termination of this Lease as it relates to such Items of Equipment, title to the relevant Equipment shall immediately vest in Lessee without representation or warranty by Lessor. If Lessee fails to pay such amount and Lessor subsequently sells, releases or otherwise disposes of such Items of Equipment, the amount due from Lessee under Section 16(c) shall be reduced by an amount equal to (i) the actual cash proceeds received and retained by Lessor upon any sale or disposition or (ii) if Lessor leases such Equipment by a lease agreement substantially similar to this Lease, the present value of the rents (discounted at the Prime Rate as announced by Fifth Third Bank and in effect at the time of demand plus 2.00%) payable under such subsequent Lease for the remaining Term of this Lease (without regard to any Renewal Terms other than the then current Renewal Term (if applicable)), in each case, net of all costs and expenses incurred in connection with such sale, disposition or lease including any incidental damages.
(e) A cancellation or termination hereunder shall occur only upon written notice by Lessor to Lessee, and only with respect to such Items of Equipment as Lessor specifically elects to cancel or terminate by such notice. Except as to any such Items of Equipment with respect to which enforcement there is a cancellation or termination, this Lease shall remain in full force and effect and Lessee shall be and remain liable for the full performance of all its obligations under this Lease.
(f) Lessee shall indemnify, defend and hold Lessor harmless for any loss, personal injury (including death), or damage to property, suffered by Lessor, its employees or any of its agents in connection with its entry onto the premises of Lessee or any third party hereunder. Each of the rights and remedies of Lessor hereunder and under the other Lease Documents is in addition to all of its other rights and remedies hereunder, under the other Lease Documents and under applicable law and nothing in this Lease or any other Lease Document shall be construed as limiting any such right or remedy. Lessor’s failure to exercise or delay in exercising any right, power or remedy available to Lessor shall not constitute a waiver or otherwise affect or impair its rights to the future exercise of any such right, power or remedy. Waiver by Lessor of any Event of Default shall not be limited, and may include appeals a waiver by Lessor of any decisions in lower courts, as well as collection efforts thereafter, compensable damages and consequential damages, withhold and retain payment to the Contractor for the purpose other or subsequent Events of setoff until such time as the exact amount of damages due to the Authority from the Contractor is determined, seek injunctive relief and/or specific performance and such other equitable remedies that are available, as well as effectuate a termination of this Agreement, which may or could give rise to additional damages. It is expressly understood that the Contractor will remain liable for any damages the Authority sustains in excess of any set-offDefault.
Appears in 1 contract
Sources: Master Equipment Lease Agreement (Advanced Photonix Inc)
Events of Default and Remedies. 7.01 The 13.1 Any one or more of the following acts and/or omissions events, whether or not any such event shall be voluntary or involuntary or be effected by operation of law or pursuant to or in compliance with any judgment, decree or order of any court or any order, rule or regulation of any administrative or governmental body, shall constitute a default and material breach of this Agreement by the Contractor and shall be deemed an Event of Default if not cured within five (5) business days after written notice of default has been sent by the Authority to the Contractor, provided however, that if the default is such that more than five (5) days are required for a cure, then Contractor shall not be in default if it commences to cure the default within the five (5) day period and thereafter diligently prosecutes the same to completionif:
(a) Failure to comply with MMG defaults in the payment of any of monies due hereunder as and when the material terms and conditions of this Agreement following written notice from the Authority and failure to cure; and/orsame is due;
(b) Failure to begin MMG defaults in the Services in accordance with the terms observance or performance of this Agreement; and/orany other provision hereof;
(c) If an order is made or a resolution is passed or a petition is filed for the Contractor, in the judgment liquidation or winding-up of the Authority, is unnecessarily or unreasonably or willfully delaying the performance and completion of the Services; and/orMMG;
(d) The Contractor abandons the Services to be undertaken; and/or
(e) The Authority reasonably believes that the Services cannot be completed within the time required, where in the Authority’s judgment, the delay is attributable to conditions within the Contractor’s control; and/or
(f) The Contractor, without just cause, reduces its personnel to a number which in the judgment MMG commits an act of the Authority, is insufficient to complete the Services within a reasonable time and fails to sufficiently increase such personnel when directed to do so by the Authority; and/or
(g) The Contractor assigns, transfers, conveys or otherwise disposes of this Agreement, in whole, or in part, without prior approval of the Authority; and/or
(h) Any Authority officer or employee acquires an interest in this Agreement so as to create a conflict of interest; and/or
(i) The Contractor violates any law, charter provision, ordinance, rule, regulation, governmental order or directive; and/or
(j) Failure to provide adequate inventory, vehicles, equipment and/or personnel; and/or
(k) The filing of a voluntary or involuntary petition in bankruptcy or for reorganization or an arrangement, or an makes a general assignment for the benefit of creditorsits creditors or otherwise acknowledges its insolvency;
(e) execution, sequestration, extent or other process of any court becomes enforceable against MMG or a distress or analogous process is levied upon the adjudication Property or any part thereof unless the process is in good faith disputed by MMG and MMG gives security to pay the full amount claimed to the satisfaction of the Contractor as being bankrupt Lenders;
(f) MMG permits any sum which is not disputed to be due by MMG and which forms or insolvent, is capable of forming a charge upon any of the Property to remain unpaid after proceedings have been taken to enforce the same;
(g) MMG ceases or the appointment of demonstrates an intention to cease to carry on its business;
(h) a receiver of, or receiver-manager or receiver and manager is appointed for the Contractor if such appointment, adjudication, or similar order or ruling remains in force or unstayed for a period any of thirty (30) days, or admit in writing its inability to pay its debts generally as they become due; and/orProperty;
(li) The Contractor’s level of MMG makes default in the due payment, performance of the Servicesor observance, in whole or in part, of any debt, liability or obligation of MMG to the reasonable judgment of the Authority falls below the standard of care set forth in Article II hereof and/orLenders, whether secured hereby or otherwise; or
(mj) The Contractor ceases to conduct business MMG makes default in the normal coursedue payment, and/or
(n) The Contractor fails to comply with performance or observance, in whole or in part, of any material terms, conditions and/or obligations of Contractor set forth hereincharge or encumbrance upon the Property.
(o) The Contractor fails to pay 13.2 Upon the occurrence of any labor, tax obligations, fringe benefit funds, insurance premiums, or subcontractor invoices for Services which the Contractor has received payment from the Authority.
7.02 In the Event of Default and at any time thereafter, provided that MMG has not by then remedied such Event of Default, the Lenders may, in their discretion, by notice to MMG, declare this Agreement to be in default. At any time thereafter, while MMG shall not have remedied such Event of Default, the Lenders, in their discretion, may:
(a) declare the Bridge Loan and other monies owing (the “Debt”) by MMG to the Lenders to be immediately due and payable;
(b) convert the Debt into common shares of MMG as provided in paragraph 11.2 hereof;
(c) convert the Debt into any successor company of MMG; and
(d) demand payment from MMG and exercise any or all of its remedies under this Agreement.
13.3 No remedy conferred on the Lenders hereby is intended to be exclusive. Each and every remedy shall be cumulative and shall be in addition to every other remedy given hereunder or now or hereafter existing at law or in equity or by statute or otherwise. The exercise or commencement of exercise by the Contractor, the Authority shall be entitled to exercise Lenders of any and all one or more of such remedies available at law and/or in equity, including, but not limited to the right to seek and sue for damages, any costs incurred to enforce, or attempt to enforce this Agreement, including reasonable attorneys fees, which enforcement shall not be limited, and may include appeals preclude the simultaneous or later exercise by the Lenders of any decisions in lower courts, as well as collection efforts thereafter, compensable damages and consequential damages, withhold and retain payment to the Contractor for the purpose of setoff until or all other such time as the exact amount of damages due to the Authority from the Contractor is determined, seek injunctive relief and/or specific performance and such other equitable remedies that are available, as well as effectuate a termination of this Agreement, which may or could give rise to additional damages. It is expressly understood that the Contractor will remain liable for any damages the Authority sustains in excess of any set-offremedies.
Appears in 1 contract
Sources: Bridge Loan and Representation Agreement (Mega Media Group Inc)
Events of Default and Remedies. 7.01 SECTION 2.01. The occurrence of any one or more of the following acts and/or omissions events shall constitute a an event of default and material breach of this Agreement by the Contractor and shall be deemed an ("Event of Default if not cured within five (5Default") business days after written notice of default has been sent by the Authority to the Contractor, provided however, that if the default is such that more than five (5) days are required for a cure, then Contractor shall not be in default if it commences to cure the default within the five (5) day period and thereafter diligently prosecutes the same to completionhereunder:
(a) Failure to comply with If Mortgagor shall default in the payment of (i) any regular installment of interest and/or principal as and when the same shall have become due and payable under the terms of the material terms and conditions of Loan Agreement, or (ii) any other sums required to be paid by Mortgagor pursuant to the Loan Agreement or this Agreement following written notice from Mortgage on the Authority and failure date that such payments are therein or herein required to curebe made; and/oror
(b) Failure to begin If Mortgagor shall breach, or be in default of, any of the Services covenants or provisions contained in accordance with this Mortgage or of any chattel mortgage, other mortgages, security agreement or other document issued thereunder or in connection therewith or herewith and such breach or default is not cured within the terms of this Agreementapplicable cure periods; and/oror
(c) If there shall be an "Event of Default" under the ContractorLoan Agreement. Upon the occurrence and during the continuance of an Event of Default, and in every such case:
I. Mortgagee, at its option, may declare the entire unpaid balance of the indebtedness secured hereby to be immediately due and payable, and upon any such declaration the entire indebtedness secured hereby shall become and be immediately due and payable, anything in the Loan Agreement or in this Mortgage to the contrary notwithstanding;
II. Mortgagee personally, or by its agents or attorneys may enter into and upon all or any part of the Mortgaged Property, and each and every part thereof, and may exclude the party owning the possessory interest in same, its agents and servants wholly therefrom; and having and holding the same, may use, operate, manage and control the Mortgaged Property for any lawful purpose and conduct the business thereof, either personally or by its superintendents, managers, agents, servants, attorneys or receivers; and upon every such entry, Mortgagee, at the expense of Mortgagor, from time to time, either by purchase, repairs or construction, may maintain and restore the Mortgaged Property, whereof it shall become possessed as aforesaid, may complete the construction of any Improvements and in the course of such completion may make such changes in the contemplated Improvements as it may deem desirable; may insure or reinsure the same as provided in the Loan Agreement and likewise, from time to time, at the expense of Mortgagor, Mortgagee may make all necessary or proper repairs, renewals, replacements, restorations, alterations, additions, betterments and improvements to the Mortgaged Property or any part thereof and thereon as it may deem advisable; and in every such case Mortgagee shall have the right to manage and operate the Mortgaged Property, possessed as aforesaid, and to carry on the business thereof and exercise all rights and powers of the party owning such property with respect thereto either in the name of such party or otherwise as it shall deem best; and Mortgagee shall be entitled to collect and receive all earnings, revenues, rents, issues, profits and income of the Mortgaged Property and every part thereof; and after deducting the expenses of conducting the business thereof and of all maintenance, repairs, replacements, alterations, additions, betterments and improvements and all payments which may be made for taxes, assessments, insurance, in payment of any prior mortgage and prior or other proper charges upon the Mortgaged Property or any part thereof, as well as just and reasonable compensation of Mortgagee for the services of Mortgagee and for all attorneys, counsel, agents, clerks, servants and other employees by it properly engaged and employed, Mortgagee shall apply the moneys arising as aforesaid, first to the payment of any sums, other than interest and principal on the Loan Agreement required to be paid by Mortgagor under this Mortgage, second, to the payment of interest on the Loan Agreement, third, to the payment of the principal of the Loan Agreement when and as the same shall become payable (whether by acceleration or otherwise) and finally, an amount equal to the early termination fee due and payable under Section 4.2 of the Loan Agreement.
III. Mortgagee, with or without entry, personally or by its agents or attorneys, insofar as applicable, may:
(1) sell the Mortgaged Property to the extent permitted and pursuant to the procedures provided by law, and all estate, right, title and interest, claim and demand therein, and right of redemption thereof, at one or more sales as a single parcel or as more than one parcel, at such time and place, upon such terms, and in such order and after such notice thereof as may be required or permitted by law; or
(2) institute proceedings for the complete or partial foreclosure of this Mortgage; or
(3) take such steps to protect and enforce its rights or enforce its remedies, whether by action, suit or proceeding at law or in equity, whether for damages or for the specific performance of any covenant, condition or agreement in the Loan Agreement or in this Mortgage, or in aid of the execution of any power herein granted or for any foreclosure hereunder, or for the enforcement of any other appropriate legal or equitable remedy or otherwise as Mortgagee shall elect.
IV. On and after the occurrence of an Event of Default, Mortgagor shall pay all rents, issues and profits thereafter received by Mortgagor from the Mortgaged Property to Mortgagee and to the extent not paid shall hold such amounts as trust funds for the benefit of Mortgagee and such rents, issues and profits shall be deemed "cash collateral" of Mortgagee under 11 U.S.C., as amended.
(a) Mortgagee may adjourn from time to time, as permitted by law, any sale to be made by it under or by virtue of this Mortgage by announcement at any time and place appointed for such sale or for such adjourned sale or sales; and Mortgagee, without further notice or publication, except as otherwise provided by any applicable provision of law, may make such sale at the time and place to which the same shall be so adjourned.
(b) Upon the completion of any sale or sales made by Mortgagee under or by virtue of this Mortgage, Mortgagee, or an officer of any court empowered to do so, shall execute and deliver to the accepted purchaser or purchasers a good and sufficient deed and such other instrument, or instruments, as may be necessary to convey, assign and transfer all estate, right, title and interest in and to the Mortgaged Property and rights sold, but without any covenant or warranty, express or implied, and without any representation, express or implied, as to the existence, or lack thereof, of Hazardous Substances on the Mortgaged Property. Mortgagee is hereby irrevocably appointed the true and lawful attorney of Mortgagor in its name and stead, to make all necessary conveyances, assignments, transfers and deliveries of the Mortgaged Property and rights so sold and for that purpose Mortgagee may execute all necessary instruments of conveyance, assignment and transfer, and may substitute one or more persons with like power, Mortgagor hereby ratifying and confirming all that its said attorney or such substitute or substitutes shall lawfully do by virtue hereof. Nevertheless, Mortgagor if so requested by Mortgagee shall ratify and confirm any such sale or sales by executing and delivering to Mortgagee or to such purchaser or purchasers all such instruments as may be advisable, in the judgment of Mortgagee, for the Authoritypurpose, is unnecessarily or unreasonably or willfully delaying the performance and completion as may be designated in such request. The receipt of Mortgagee of the Services; and/or
(d) The Contractor abandons the Services to be undertaken; and/or
(e) The Authority reasonably believes that the Services cannot be completed within the time requiredLoan Documents, where in the Authority’s judgment, the delay is attributable to conditions within the Contractor’s control; and/or
(f) The Contractor, without just cause, reduces its personnel to a number which in the judgment or of the Authoritycourt officer conducting any such sale, is insufficient for the purchase money paid at any such sale shall be a sufficient discharge therefor to complete any purchaser of the Services within a reasonable time Mortgaged Property, or any part thereof, sold as aforesaid; and fails to sufficiently increase no such personnel when directed to do so by the Authority; and/or
(g) The Contractor purchaser or his representatives, grantees or assigns, transfersafter paying such purchase money and receiving such a receipt, conveys or otherwise disposes of this Agreement, in whole, or in part, without prior approval of the Authority; and/or
(h) Any Authority officer or employee acquires an interest in this Agreement so as to create a conflict of interest; and/or
(i) The Contractor violates any law, charter provision, ordinance, rule, regulation, governmental order or directive; and/or
(j) Failure to provide adequate inventory, vehicles, equipment and/or personnel; and/or
(k) The filing of a voluntary or involuntary petition in bankruptcy or for reorganization or an arrangement, or an assignment for the benefit of creditors, or the adjudication of the Contractor as being bankrupt or insolvent, or the appointment of a receiver of, or for the Contractor if such appointment, adjudication, or similar order or ruling remains in force or unstayed for a period of thirty (30) days, or admit in writing its inability to pay its debts generally as they become due; and/or
(l) The Contractor’s level of performance of the Services, in the reasonable judgment of the Authority falls below the standard of care set forth in Article II hereof and/or
(m) The Contractor ceases to conduct business in the normal course, and/or
(n) The Contractor fails to comply with any material terms, conditions and/or obligations of Contractor set forth herein.
(o) The Contractor fails to pay any labor, tax obligations, fringe benefit funds, insurance premiums, or subcontractor invoices for Services which the Contractor has received payment from the Authority.
7.02 In the Event of Default by the Contractor, the Authority shall be entitled bound to exercise any and all remedies available at law and/or in equity, including, but not limited see to the right to seek and sue for damages, any costs incurred to enforce, application of such purchase money upon or attempt to enforce this Agreement, including reasonable attorneys fees, which enforcement shall not be limited, and may include appeals of any decisions in lower courts, as well as collection efforts thereafter, compensable damages and consequential damages, withhold and retain payment to the Contractor for the purpose of setoff until this Mortgage or the Loan Agreement, or shall be answerable in any manner whatsoever for any loss, misapplication or non-application of any such time purchase money or any part thereof, nor shall any such purchaser be bound to inquire as the exact amount of damages due to the Authority from the Contractor is determined, seek injunctive relief and/or specific performance and necessity or expediency of any such other equitable remedies that are available, as well as effectuate a termination sale. Any such sale or sales made under or by virtue of this AgreementMortgage (whether made under or by virtue of judicial proceedings or of a judgment or decree of foreclosure and sale) shall operate to divest all the estate, which right, title, interest, claim and demand whatsoever, whether at law or in equity, of Mortgagor in and to the Mortgaged Property so sold, and shall be a perpetual bar both at law and in equity against Mortgagor and against any and all persons claiming or who may claim the same, or could give rise to additional damages. It is expressly understood that the Contractor will remain liable for any damages the Authority sustains in excess part thereof from, through or under Mortgagor.
(c) The purchase money proceeds or avails of any set-off.sale made under or by virtue of this Mortgage, together with any other sums which then may be held by Mortgagee under this Mortgage, shall be applied as follows:
Appears in 1 contract
Sources: Mortgage, Assignment of Rents, Security Agreement and Fixture Filing (Eftc Corp/)
Events of Default and Remedies. 7.01 The following acts and/or omissions shall constitute a default and material breach of this Agreement by the Contractor and shall be deemed an An Event of Default shall occur hereunder if not cured within five (5) business days after written notice of default has been sent by the Authority to the Contractor, provided however, that if the default is such that more than five (5) days are required for a cure, then Contractor shall not be in default if it commences to cure the default within the five (5) day period and thereafter diligently prosecutes the same to completionLessee:
(a) Failure shall fail to comply with make any payment of the material terms rent or other amount owing hereunder when due and conditions such failure shall continue for a period of this Agreement following written notice from the Authority and failure to cure; and/or10 days;
(b) Failure shall fail to begin the Services in accordance with the terms perform or observe any other covenant, agreement or condition hereunder within 30 days of this Agreement; and/orwritten notice thereof being given by National City to Lessee, or if more than 30 days are reasonably required, Lessee fails to commence to diligently perform such obligations within such 30 days;
(c) If shall make any representation or warranty to National City herein or in any document or certificate furnished National City in connection herewith which shall prove to be materially incorrect at the Contractor, in the judgment of the Authority, is unnecessarily or unreasonably or willfully delaying the performance and completion of the Services; and/ortime made;
(d) The Contractor abandons the Services to be undertaken; and/or
(e) The Authority reasonably believes that the Services cannot be completed within the time required, where in the Authority’s judgment, the delay is attributable to conditions within the Contractor’s control; and/or
(f) The Contractor, without just cause, reduces its personnel to a number which in the judgment of the Authority, is insufficient to complete the Services within a reasonable time and fails to sufficiently increase such personnel when directed to do so by the Authority; and/or
(g) The Contractor assigns, transfers, conveys shall become insolvent or otherwise disposes of this Agreement, in whole, or in part, without prior approval of the Authority; and/or
(h) Any Authority officer or employee acquires an interest in this Agreement so as to create a conflict of interest; and/or
(i) The Contractor violates any law, charter provision, ordinance, rule, regulation, governmental order or directive; and/or
(j) Failure to provide adequate inventory, vehicles, equipment and/or personnel; and/or
(k) The filing of a voluntary or involuntary petition in bankruptcy or for reorganization or an arrangement, or make an assignment for the benefit of creditors, creditors or the adjudication of the Contractor as being bankrupt or insolvent, or consent to the appointment of a trustee or receiver;
(e) after 60 days if a trustee or receiver of, shall be appointed for Lessee or for a substantial part of its property or for the Contractor if such appointment, adjudicationEquipment, or similar order reorganization, arrangement, insolvency, dissolution or ruling remains liquidation proceedings shall be instituted by or against Lessee and such appointment or proceedings are not terminated within such time;
(f) shall suffer an adverse material change in force its financial condition from the date hereof, and as a result thereof National City deems itself or unstayed for a any of its Equipment to be insecure; or
(g) shall be in default under any other agreement at any time executed with National City or any affiliate or subsidiary of National City Corporation then National City may, after National City notifies Lessee of such default and Lessee has failed to cure such default in the applicable period set forth above, declare this Agreement to be in default and may do one or more of thirty the following with respect to any or all of the Equipment as National City in its sole discretion may elect, to the extent permitted by, and subject to compliance with any mandatory requirements of applicable law then in effect:
(30i) daysterminate this Lease effective immediately; or
(ii) demand that Lessee, and Lessee shall at its expense upon such demand, return the Equipment promptly to National City in the manner and condition required by and otherwise in accordance with the provisions of Section 2 hereof, as if the Equipment were being returned at the expiration of its term of lease hereunder, or admit National City, at its option, may enter upon the premises where the Equipment is located and take possession of and remove the same by summary proceedings or otherwise, all without liability to Lessee for damage to property or otherwise, provided that there occurs no breach of the peace and further provided that if the Equipment is located on an Environmental Protection Agency permit site or is being used for the cleaning, treatment, storage or transportation of hazardous materials, National City's actions shall be governed by all applicable Environmental Laws, all without liability to Lessee for damage to property or otherwise; or
(iii) take possession of any or all Equipment and remove the same without liability for injuries suffered through or loss caused by such repossession provided that there occurs no breach of the peace and further provided that if the Equipment is located on an Environmental Protection Agency permit site or is being used for the cleaning, treatment, storage or transportation of hazardous materials, National City's actions shall be governed by all applicable Environmental Laws, all without liability to Lessee for damage to property or otherwise. In the event National City proceeds pursuant to this subsection (iii), National City may sell any or all Equipment at public or private sale as is commercially reasonable given the existing conditions on an "as is, where is" basis without recourse or warranties of any kind, or otherwise hold, use, operate, or keep idle such Equipment, as National City in writing its inability sole discretion determines is commercially reasonable free and clear of all rights of Lessee; or
(iv) whether or not National City has exercised any other right hereunder, by written notice to Lessee, cause Lessee to pay its debts generally National City (as they become dueliquidated damages for loss of a bargain and not as a penalty) on the date specified in such notice an amount equal to the Rent due and payable on the first day of the month following the date of the notice of Lease termination plus a sum equal to the appropriate Stipulated Loss Value determined as of the first of the month following the date of the notice of Lease termination as set out in the applicable Schedule; and/oror
(lv) The Contractor’s level National City may exercise any other right or remedy which may be available to it under applicable law or proceed by appropriate court action to enforce the terms hereof or to recover damages for the breach hereof. In addition, Lessee shall pay National City all costs and expenses incurred by National City as a result of performance Lessee's default hereunder or the termination hereof, including, without limitation, reasonable attorney's fees and costs arising out of repossession and disposal of the Services, in Equipment. Provided Lessee has previously paid to National City the reasonable judgment sum of the Authority falls below the standard of care set forth in Article II hereof and/or
(m) The Contractor ceases to conduct business in the normal courseStipulated Loss Value, and/or
(n) The Contractor fails to comply with any material termsRent due and owing and other costs and expenses incurred pursuant hereto, conditions and/or obligations of Contractor set forth herein.
(o) The Contractor fails to pay any labor, tax obligations, fringe benefit funds, insurance premiums, or subcontractor invoices for Services which the Contractor has received payment from the Authority.
7.02 In the Event of Default by the Contractor, the Authority Lessee shall be entitled to the net proceeds of any such sale, disposition or re-lease of the Equipment to the extent they do not exceed the Stipulated Loss Value. Any excess shall be retained by National City. To the extent the Equipment is re- leased by National City, Lessee shall be credited the present value of the lease rental stream at the discount rate of National City Bank Prime as of the date the release is agreed to between the parties. Furthermore, to the extent the parties to this Lease need to determine the present value of any moneys due under the Lease, the parties agree that the discount rate shall be National City Bank Prime. In addition, Lessee shall continue to be liable for all indemnities under this Lease and for all reasonable attorney fees and other costs and expenses resulting form the termination hereof and/or the exercise of National City's remedies, including placing any Equipment in the condition required by Section 7 hereof. Except as expressly provided above, no remedy referred to in this section is exclusive, but each shall be cumulative and all remedies in addition to any other remedy referred to herein or otherwise available to National City at law and/or in or equity, including, but not limited to ; and the right to seek and sue for damages, exercise or beginning of exercise by National City of any costs incurred to enforce, one or attempt to enforce this Agreement, including reasonable attorneys fees, which enforcement more of such remedies shall not be limited, and may include appeals preclude the simultaneous or later exercise by National City of any decisions in lower courts, as well as collection efforts thereafter, compensable damages and consequential damages, withhold and retain payment to the Contractor for the purpose other remedies. No express or implied waiver by National City of setoff until such time as the exact amount an Event of damages due to the Authority from the Contractor is determined, seek injunctive relief and/or specific performance and such other equitable remedies that are available, as well as effectuate Default shall constitute a termination of this Agreement, which may or could give rise to additional damages. It is expressly understood that the Contractor will remain liable for any damages the Authority sustains in excess waiver of any set-offother or subsequent Event of Default.
Appears in 1 contract
Events of Default and Remedies. 7.01 (a) The following acts and/or omissions shall constitute a default and material breach of this Agreement by the Contractor and shall be deemed an Event Events of Default if not cured for purposes of the remedies set forth in Section 18.01(b) hereof: (i) any failure of Tenant to pay any rental or other charges due hereunder within five ten (510) business days after written notice of such default has shall have been sent mailed to Tenant, or (ii) if Tenant (A) fails to take possession of and open for business from the Premises fully fixtured, stocked and staffed on by the Authority date thirty (30) days following the Commencement Date, (B) fails to perform any obligation hereunder prior to such Commencement Date, (C) fails to continuously operate its business pursuant to Section 7.02 for the Contractorpurpose specified in Section 7.01 hereof except for the occasional failure which is beyond Tenant’s reasonable anticipation and control, (D) fails or refuses to maintain business hours on such days or nights or any parts thereof as provided in Section 7.03 hereof, (E) fails to operate under the name specified in Section 1.01(l) hereof except for the occasional failure which is beyond Tenant’s reasonable anticipation and control, (F) abandons, leaves vacant or deserts the Premises, or (G) permits this Lease to be taken under any writ of execution, or (iii) if there shall be any default by Tenant (or by any person or entity which directly or indirectly controls, is controlled by, or is under common control with Tenant) under any other lease with Landlord (or any person or entity which is affiliated with Landlord or which, directly or indirectly, controls, is controlled by, or is under common control with Landlord, or which is managed by the managing agent utilized by Landlord for the Shopping Center) which shall not be remedied within the applicable grace period, if any, provided therefor under such other lease, or if there shall be any default by Tenant or any entity affiliated with Tenant with respect to any financing or arrangement, if any, relating to items used in, or the operation of business in the Premises, or (iv) any failure to perform any other of the terms, conditions or covenants of this Lease to be observed or performed by Tenant for more than thirty (30) days after written notice of such default shall have been mailed to Tenant (provided, however, that such period shall be extended by Landlord for an additional reasonable period if the default is of such a nature that more than five (5) days are required for a cure, then Contractor shall it cannot be in cured within thirty [30] days and Tenant has diligently commenced the curing of such default if it commences to cure the default within the five (5) day period and thereafter is diligently prosecutes pursuing the same to completion:
(a) Failure to comply with any of the material terms and conditions of this Agreement following written notice from the Authority and failure to cure; and/or
(b) Failure to begin the Services in accordance with the terms of this Agreement; and/or
(c) If the Contractor, in the judgment of the Authority, is unnecessarily or unreasonably or willfully delaying the performance and completion of the Services; and/or
(d) The Contractor abandons the Services to be undertaken; and/or
(e) The Authority reasonably believes that the Services cannot be completed within the time required, where in the Authority’s judgment, the delay is attributable to conditions within the Contractor’s control; and/or
(f) The Contractor, without just cause, reduces its personnel to a number which in the judgment of the Authority, is insufficient to complete the Services within a reasonable time and fails to sufficiently increase such personnel when directed to do so by the Authority; and/or
(g) The Contractor assigns, transfers, conveys or otherwise disposes of this Agreement, in whole, or in part, without prior approval of the Authority; and/or
(h) Any Authority officer or employee acquires an interest in this Agreement so as to create a conflict of interest; and/or
(i) The Contractor violates any law, charter provision, ordinance, rule, regulation, governmental order or directive; and/or
(j) Failure to provide adequate inventory, vehicles, equipment and/or personnel; and/or
(k) The filing of a voluntary or involuntary petition in bankruptcy or for reorganization or an arrangement, or an assignment for the benefit of creditors, or the adjudication of the Contractor as being bankrupt or insolvent, or the appointment of a receiver of, or for the Contractor if such appointment, adjudication, or similar order or ruling remains in force or unstayed for a period of thirty (30) days, or admit in writing its inability to pay its debts generally as they become due; and/or
(l) The Contractor’s level of performance of the Services, in the reasonable judgment of the Authority falls below the standard of care set forth in Article II hereof and/or
(m) The Contractor ceases to conduct business in the normal course, and/or
(n) The Contractor fails to comply with any material terms, conditions and/or obligations of Contractor set forth herein).
(o) The Contractor fails to pay any labor, tax obligations, fringe benefit funds, insurance premiums, or subcontractor invoices for Services which the Contractor has received payment from the Authority.
7.02 In the Event of Default by the Contractor, the Authority shall be entitled to exercise any and all remedies available at law and/or in equity, including, but not limited to the right to seek and sue for damages, any costs incurred to enforce, or attempt to enforce this Agreement, including reasonable attorneys fees, which enforcement shall not be limited, and may include appeals of any decisions in lower courts, as well as collection efforts thereafter, compensable damages and consequential damages, withhold and retain payment to the Contractor for the purpose of setoff until such time as the exact amount of damages due to the Authority from the Contractor is determined, seek injunctive relief and/or specific performance and such other equitable remedies that are available, as well as effectuate a termination of this Agreement, which may or could give rise to additional damages. It is expressly understood that the Contractor will remain liable for any damages the Authority sustains in excess of any set-off.
Appears in 1 contract
Sources: Lease Agreement (Impossible Kicks Holding Company, Inc.)
Events of Default and Remedies. 7.01 The If any of the following acts and/or omissions shall events occur, it is hereby defined as and declared to be and to constitute a default and material breach of this Agreement by the Contractor and shall be deemed an “Event of Default if not cured within five (5) business days after written notice of default has been sent by the Authority to the Contractor, provided however, that if the default is such that more than five (5) days are required for a cure, then Contractor shall not be in default if it commences to cure the default within the five (5) day period and thereafter diligently prosecutes the same to completionDefault”:
(a) Failure by the Borrower to comply with pay any Loan Repayment required to be paid hereunder at the time specified herein and the continuation of such failure for a period of three (3) days after telephonic or telegraphic notice to the material terms Borrower and conditions of this Agreement following written notice from the Authority and failure to cure; and/orUniversity by the Trustee that such payment has not been received.
(b) Failure by the Borrower to begin the Services in accordance with the terms of observe and perform any covenant, condition or agreement on its part to be observed or performed under this Agreement, other than as referred to in Section 8.01(a) for a period of thirty (30) days after written notice, specifying such failure and requesting that it be remedied, is given to the Borrower and the University by the Trustee, unless the Trustee shall agree in writing to an extension of such time prior to its expiration; and/orprovided, however, if the failure stated in the notice cannot be corrected within the applicable period, the Trustee will not unreasonably withhold its consent to an extension of such time if corrective action is instituted by the Borrower within the applicable period and diligently pursued until the Default is corrected;
(c) If the ContractorAny warranty, in the judgment representation or other statement by or on behalf of the AuthorityBorrower or the University contained in this Agreement or a Security Instrument or in any instrument furnished in compliance with or in reference to this Agreement or in connection with the Loan, including any Application, is unnecessarily false or unreasonably or willfully delaying the performance and completion of the Services; and/ormisleading in any material respect;
(d) The Contractor abandons Borrower files a petition in voluntary bankruptcy under the Services United States Bankruptcy Code or seeks relief under any provision of any bankruptcy, reorganization, arrangement, insolvency, readjustment of debt, dissolution or liquidation law of any jurisdiction, whether now or hereafter in effect, or consents to be undertakenthe filing of any petition against it under such law; and/oror
(e) The Authority reasonably believes that the Services canBorrower is generally not be completed within the time required, where in the Authority’s judgment, the delay is attributable to conditions within the Contractor’s control; and/or
(f) The Contractor, without just cause, reduces paying its personnel to a number which in the judgment of the Authority, is insufficient to complete the Services within a reasonable time and fails to sufficiently increase debts as such personnel when directed to do so by the Authority; and/or
(g) The Contractor assigns, transfers, conveys or otherwise disposes of this Agreement, in wholedebts become due, or in part, without prior approval of the Authority; and/or
(h) Any Authority officer becomes insolvent or employee acquires an interest in this Agreement so as to create a conflict of interest; and/or
(i) The Contractor violates any law, charter provision, ordinance, rule, regulation, governmental order bankrupt or directive; and/or
(j) Failure to provide adequate inventory, vehicles, equipment and/or personnel; and/or
(k) The filing of a voluntary or involuntary petition in bankruptcy or for reorganization or an arrangement, or makes an assignment for the benefit of creditors, or the adjudication a custodian (including without limitation a receiver, liquidator or trustee) of the Contractor as being bankrupt Borrower or insolvent, or the appointment any of a receiver of, or for the Contractor if such appointment, adjudication, or similar its property is appointed by court order or ruling takes possession thereof and such order remains in force effect or unstayed such possession continues for a period of thirty (30) more than 30 days, or admit in writing its inability to pay its debts generally as they become due; and/oror
(lf) The Contractor’s level A default or an “event of performance of the Services, in the reasonable judgment of the Authority falls below the standard of care set forth in Article II hereof and/or
(m) The Contractor ceases to conduct business in the normal course, and/or
(n) The Contractor fails to comply with default” occurs under a Security Instrument and is not cured within any material terms, conditions and/or obligations of Contractor set forth hereinapplicable grace period thereunder.
(o) The Contractor fails to pay any labor, tax obligations, fringe benefit funds, insurance premiums, or subcontractor invoices for Services which the Contractor has received payment from the Authority.
7.02 In the Event of Default by the Contractor, the Authority shall be entitled to exercise any and all remedies available at law and/or in equity, including, but not limited to the right to seek and sue for damages, any costs incurred to enforce, or attempt to enforce this Agreement, including reasonable attorneys fees, which enforcement shall not be limited, and may include appeals of any decisions in lower courts, as well as collection efforts thereafter, compensable damages and consequential damages, withhold and retain payment to the Contractor for the purpose of setoff until such time as the exact amount of damages due to the Authority from the Contractor is determined, seek injunctive relief and/or specific performance and such other equitable remedies that are available, as well as effectuate a termination of this Agreement, which may or could give rise to additional damages. It is expressly understood that the Contractor will remain liable for any damages the Authority sustains in excess of any set-off.
Appears in 1 contract
Sources: Intercap Program Agreement
Events of Default and Remedies. 7.01 The following acts and/or omissions shall constitute a default and material breach of this Agreement by the Contractor and shall be deemed an Event of Default if not cured within five (5) business days after written notice of default has been sent by the Authority to the Contractor, provided however, that if the default is such that more than five (5) days are required for a cure, then Contractor shall not be in default if it commences to cure the default within the five (5) day period and thereafter diligently prosecutes the same to completion:
(a) Failure to comply with The occurrence of any of the material terms and conditions following events shall, at the option of Lessor, be a default (each, an "Event of Default") under this Agreement following written notice from the Authority and failure to cure; and/or
(b) Failure to begin the Services in accordance with the terms of this Agreement; and/or
(c) If the Contractor, in the judgment of the Authority, is unnecessarily or unreasonably or willfully delaying the performance and completion of the Services; and/or
(d) The Contractor abandons the Services to be undertaken; and/or
(e) The Authority reasonably believes that the Services cannot be completed within the time required, where in the Authority’s judgment, the delay is attributable to conditions within the Contractor’s control; and/or
(f) The Contractor, without just cause, reduces its personnel to a number which in the judgment of the Authority, is insufficient to complete the Services within a reasonable time and fails to sufficiently increase such personnel when directed to do so by the Authority; and/or
(g) The Contractor assigns, transfers, conveys or otherwise disposes of this Agreement, in whole, or in part, without prior approval of the Authority; and/or
(h) Any Authority officer or employee acquires an interest in this Agreement so as to create a conflict of interest; and/orLease:
(i) The Contractor violates nonpayment by Lessee of any law, charter provision, ordinance, rule, regulation, governmental order or directivesum required under this Lease to be paid by Lessee for a period of ten (10) days after the due date thereof; and/oror
(jii) Failure the failure by Lessee to provide adequate inventoryperform or observe any other term, vehiclescovenant, equipment and/or personnelagreement or condition of this Lease which is not cured within fifteen (15) days after written notice thereof from Lessor; and/oror
(kiii) The filing any misrepresentation or breach of a voluntary warranty made by Lessee in this Lease or involuntary petition in bankruptcy any document furnished by Lessee in connection with this Lease; or
(iv) the subjection of any of Lessee's property to any levy, seizure, assignment, application or for reorganization or an arrangement, or an assignment sale for the benefit of creditorsor by any creditor or governmental agency, or the adjudication insolvency of the Contractor as being bankrupt or insolventLessee, or the appointment of a trustee or receiver for Lessee or for a substantial part of its assets, or the institution by or against Lessee of any bankruptcy, reorganization or insolvency proceedings.
(b) Upon the occurrence of an Event of Default and at any time thereafter, Lessor may, in its sole discretion, do one or more of the following: (i) upon written notice to Lessee, terminate this Lease; (ii) declare the total amount of unpaid rent and other applicable amounts due and to become due hereunder for the term of this Lease immediately due and payable; (iii) demand the return of the Equipment in accordance with Section 13 hereof; (iv) without demand or legal process, enter the premises where the Equipment is located and take immediate possession of and remove the same, without liability to Lessor or its agents for such entry or for damage to property or otherwise; (v) sell any or all of the Equipment at public or private sale, or otherwise dispose of, lease to others or keep idle the Equipment, all free and clear of any rights of Lessee to the Equipment; and/or (vi) exercise any other right or remedy available to Lessor under applicable law or proceed by court action to enforce the terms of this Lease or to recover damages or expenses resulting from the breach of this Lease. Lessee shall be liable for the Contractor if such appointmentand shall pay to Lessor all legal expenses and other costs incurred by Lessor in exercising Lessor's remedies. No remedy referred to in this Lease is intended to be exclusive, adjudication, but each shall be in addition to any other remedy referred to or similar order otherwise available to Lessor at law or ruling remains in force equity. No express or unstayed for implied waiver by Lessor of any Event of Default shall constitute a period waiver of thirty (30) days, any other Event of Default or admit a waiver of any of Lessor's rights and no delay by Lessor in writing its inability to pay its debts generally as they become due; and/or
(l) The Contractor’s level of enforcing any right or requiring performance of any provision of this Lease by Lessee shall be a waiver of such right or affect the Servicesright of Lessor to enforce such provision. To the extent permitted by applicable law, Lessee hereby waives any rights now or hereafter conferred by statute or otherwise which may require Lessor to sell, lease or otherwise use any Equipment in the reasonable judgment mitigation of the Authority falls below the standard of care Lessor's damages as set forth in Article II hereof and/or
(m) The Contractor ceases to conduct business in the normal course, and/or
(n) The Contractor fails to comply with any material terms, conditions and/or obligations of Contractor set forth herein.
(o) The Contractor fails to pay any labor, tax obligations, fringe benefit funds, insurance premiums, this section or subcontractor invoices for Services which the Contractor has received payment from the Authority.
7.02 In the Event of Default by the Contractor, the Authority shall be entitled to exercise any and all remedies available at law and/or in equity, including, but not limited to the right to seek and sue for damages, any costs incurred to enforce, or attempt to enforce this Agreement, including reasonable attorneys fees, which enforcement shall not be limited, and may include appeals of any decisions in lower courts, as well as collection efforts thereafter, compensable damages and consequential damages, withhold and retain payment to the Contractor for the purpose of setoff until such time as the exact amount of damages due to the Authority from the Contractor is determined, seek injunctive relief and/or specific performance and such other equitable remedies that are available, as well as effectuate a termination of this Agreement, which may otherwise limit or could give rise to additional damages. It is expressly understood that the Contractor will remain liable for modify any damages the Authority sustains in excess of any set-offLessor's rights or remedies under this section.
Appears in 1 contract
Sources: Asset Purchase Agreement (Biosearch Medical Products Inc)
Events of Default and Remedies. 7.01 The So long as any of the following acts and/or omissions shall constitute a default and material breach of this Agreement by the Contractor and shall be deemed events have occurred or conditions exist (any such event or condition being herein referred to as an "Event of Default Default"):
(a) Any representation or warranty made by you or any other obligor herein or any certificate, financial statement or other document delivered in connection herewith shall prove to have been untrue or incorrect in any material respect as of the date as of which made or deemed to have been made or repeated; or
(b) You shall fail fully to perform or comply with any terms, covenants or provisions of ss.5 subject, in the case of the covenants referred to in Section 5(a) hereof, to the applicable notice provisions and grace periods, if not cured within any, set forth in Section 15.1 of the Credit Agreement; or
(c) You or another obligor shall fail fully to perform or comply with any other of the terms, covenants or provisions set forth herein and such failure shall continue for a period of five (5) business calendar days after written following our notice to you or such other obligor of default has been sent by the Authority to the Contractor, provided however, that if the default is such that more than five (5) days are required for a cure, then Contractor shall not be in default if it commences to cure the default within the five (5) day period and thereafter diligently prosecutes the same to completion:
(a) Failure to comply with any of the material terms and conditions of this Agreement following written notice from the Authority and failure to curefailure; and/or
(b) Failure to begin the Services in accordance with the terms of this Agreement; and/or
(c) If the Contractor, in the judgment of the Authority, is unnecessarily or unreasonably or willfully delaying the performance and completion of the Services; and/oror
(d) The Contractor abandons Any Default or Event of Default under the Services Credit Agreement (other than the Specified Events of Default) shall occur. then, and in such event, and so long as such Event of Default is continuing, the Agent may, and upon the request of the Majority Banks shall, by written notice to you declare this Agreement to be undertaken; and/or
(e) The Authority reasonably believes that terminated. Upon such termination, we shall be relieved of our forbearance obligations set forth herein and, accordingly, each Bank, if owed any amount with respect to the Services canLoans or the Reimbursement Obligations, may, with the consent of the Majority Banks but not be completed within otherwise, proceed to protect and enforce its rights by suit in equity, action at law or other appropriate proceeding, whether for the time required, where specific performance of any covenant or agreement contained in the Authority’s judgmentCredit Agreement, the delay is attributable Notes and the other Loan Documents or any instrument pursuant to conditions within which the Contractor’s control; and/or
(f) The ContractorObligations to such Bank are evidenced, without just cause, reduces its personnel to a number which in including as permitted by applicable law the judgment obtaining of the Authority, is insufficient to complete the Services within a reasonable time and fails to sufficiently increase such personnel when directed to do so by the Authority; and/or
(g) The Contractor assigns, transfers, conveys or otherwise disposes of this Agreement, in whole, or in part, without prior approval of the Authority; and/or
(h) Any Authority officer or employee acquires an interest in this Agreement so as to create a conflict of interest; and/or
(i) The Contractor violates any law, charter provision, ordinance, rule, regulation, governmental order or directive; and/or
(j) Failure to provide adequate inventory, vehicles, equipment and/or personnel; and/or
(k) The filing of a voluntary or involuntary petition in bankruptcy or for reorganization or an arrangement, or an assignment for the benefit of creditors, or the adjudication of the Contractor as being bankrupt or insolvent, or the ex parte appointment of a receiver ofreceiver, or for the Contractor and, if such appointment, adjudication, or similar order or ruling remains in force or unstayed for a period of thirty (30) days, or admit in writing its inability to pay its debts generally as they amount shall have become due; and/or
(l) , by declaration or otherwise, proceed to enforce the payment thereof or any other legal or equitable right of such Bank. The Contractor’s level remedies specified herein are cumulative and not exclusive of performance of the Services, in the reasonable judgment of the Authority falls below the standard of care set forth in Article II hereof and/or
(m) The Contractor ceases any other remedy. Our failure or delay to conduct business in the normal course, and/or
(n) The Contractor fails to comply with exercise any material terms, conditions and/or obligations of Contractor set forth herein.
(o) The Contractor fails to pay remedy after any labor, tax obligations, fringe benefit funds, insurance premiums, or subcontractor invoices for Services which the Contractor has received payment from the Authority.
7.02 In the particular Event of Default by the Contractor, the Authority shall be entitled to exercise any and all remedies available at law and/or in equity, including, but not limited to the right to seek and sue for damages, any costs incurred to enforce, or attempt to enforce this Agreement, including reasonable attorneys fees, which enforcement shall not be limited, and may include appeals operate as a waiver of any decisions remedy in lower courts, as well as collection efforts thereafter, compensable damages and consequential damages, withhold and retain payment to the Contractor for the purpose of setoff until such time as the exact amount of damages due to the Authority from the Contractor is determined, seek injunctive relief and/or specific performance and such other equitable remedies that are available, as well as effectuate a termination of this Agreement, which may or could give rise to additional damages. It is expressly understood that the Contractor will remain liable for in any damages the Authority sustains in excess of any set-offsubsequent instance.
Appears in 1 contract
Sources: Forbearance and Amendment Agreement (Russell-Stanley Holdings Inc)
Events of Default and Remedies. 7.01 The following acts and/or omissions shall constitute a default and material breach of this Agreement by the Contractor and shall be deemed an Event of Default if not cured within five (5) business days after written notice of default has been sent by the Authority to the Contractor, provided however, that if the default is such that more than five (5) days are required for a cure, then Contractor shall not be in default if it commences to cure the default within the five (5) day period and thereafter diligently prosecutes the same to completion:
(a) Failure to comply with Event of Default", wherever used herein, means any one of the material terms and conditions of this Agreement following written notice from the Authority and failure to cure; and/or
(b) Failure to begin the Services in accordance with the terms of this Agreement; and/or
(c) If the Contractor, in the judgment of the Authority, is unnecessarily or unreasonably or willfully delaying the performance and completion of the Services; and/or
(d) The Contractor abandons the Services to be undertaken; and/or
(e) The Authority reasonably believes that the Services cannot be completed within the time required, where in the Authority’s judgment, the delay is attributable to conditions within the Contractor’s control; and/or
(f) The Contractor, without just cause, reduces its personnel to a number which in the judgment of the Authority, is insufficient to complete the Services within a reasonable time and fails to sufficiently increase such personnel when directed to do so by the Authority; and/or
(g) The Contractor assigns, transfers, conveys or otherwise disposes of this Agreement, in whole, or in part, without prior approval of the Authority; and/or
(h) Any Authority officer or employee acquires an interest in this Agreement so as to create a conflict of interest; and/orevents:
(i) The Contractor violates the Company shall fail to observe or perform any lawmaterial covenant, charter provisionagreement or warranty contained in this Series A Preferred Stock Certificate of Designation, ordinance, rule, regulation, governmental order or directive; and/orand such failure shall not have been remedied within twenty (20) Business Days after the date on which written notice of such failure shall have been given;
(jii) Failure to provide adequate inventorythe occurrence of any event or breach or default of a material nature by the Company under the Purchase Agreement or any other Transaction Document (as defined in the Purchase Agreement) and such failure or breach shall not have been remedied within the applicable cure period provided for therein, vehicles, equipment and/or personnel; and/orif any;
(kiii) The filing the Company or any of its subsidiaries shall commence a voluntary case under the United States Bankruptcy Code as now or involuntary petition hereafter in bankruptcy effect or for reorganization any successor thereto (the "Bankruptcy Code"); or an involuntary case is commenced against the Company under the Bankruptcy Code and the Company fails to pursue dismissal of the case within sixty (60) days after commencement of the case; or the Company commences any other proceeding under any reorganization, arrangement, adjustment of debt, relief of debtors, dissolution, insolvency or an liquidation or similar law of any jurisdiction whether now or hereafter in effect relating to the Company or there is commenced against the Company any such proceeding and the Company fails to pursue dismissal of the case within sixty (60) days after commencement of the case; or the Company suffers any appointment of any custodian or the like for it or any substantial part of its property and the Company fails to pursue dismissal of the custodian within sixty (60) days after the appointment; or the Company makes a general assignment for the benefit of creditors; or any corporate or other action is taken by the Company for the purpose of effecting any of the foregoing;
(iv) trading in the common stock of the Company shall have been suspended, delisted, or otherwise ceased by the adjudication Securities and Exchange Commission or the NASD or other exchange or the Nasdaq (whether the National Market or otherwise), and trading is not reinstated within twenty (20) Trading Days, except for (i) any suspension of trading of limited duration solely to permit dissemination of material information regarding the Company, and trading is reinstated promptly after such dissemination and (ii) any general suspension of trading for all companies trading on such exchange or market or OTCBB;
(v) the Company shall issue a press release, or otherwise make publicly known, that it is not honoring properly executed Notice of Conversions for any reason whatsoever, unless the Company is disputing in good faith the Conversion Price or the due compliance by the Holder of the Contractor as being bankrupt or insolvent, or terms and conditions for conversion of the appointment of a receiver of, or for the Contractor if such appointment, adjudication, or similar order or ruling remains in force or unstayed for a period of thirty (30) days, or admit in writing its inability to pay its debts generally as they become dueSeries A Preferred Stock; and/oror
(lvi) The Contractor’s level of performance of the Services, in Company shall issue or enter into an agreement to issue any equity or equity equivalent security with a floating conversion price substantially similar to the reasonable judgment of the Authority falls below the standard of care set forth in Article II hereof and/or
(m) The Contractor ceases to conduct business in the normal course, and/or
(n) The Contractor fails to comply with any material terms, conditions and/or obligations of Contractor set forth hereinSeries A Preferred Stock.
(ob) The Contractor fails to pay If any labor, tax obligations, fringe benefit funds, insurance premiums, or subcontractor invoices for Services which the Contractor has received payment from the Authority.
7.02 In the Event of Default occurs and continues, beyond any cure period, if any, then so long as such Event of Default shall then be continuing, any Holder may, by notice to the ContractorCompany demand redemption of the Shares of Series A Preferred Stock at the Redemption Price (as defined herein), the Authority shall be entitled to exercise and such Holder may immediately and without expiration of any grace period enforce any and all of its rights and remedies hereunder and all other remedies available to it under applicable law. Such declaration may be rescinded and annulled by such Holder at law and/or in equity, includingany time prior to payment hereunder. No such rescission or annulment shall affect any subsequent Event of Default or impair any right consequent thereon. This shall include, but not be limited to the right to seek temporary, preliminary and sue for damages, permanent injunctive relief without the requirement of posting any costs incurred bond or undertaking.
(c) Such Holder may thereupon proceed to enforceprotect and enforce its rights either by suit in equity, or attempt by action at law, or by other appropriate proceedings whether for the specific performance (to the extent permitted by law) of any covenant or agreement contained in this Series A Preferred Stock Certificate of Designation or in aid of the exercise of any power granted in this Series A Preferred Stock Certificate of Designation, and proceed to enforce this Agreementthe redemption of any of the Series A Preferred Stock held by it, including reasonable attorneys feesand to enforce any other legal or equitable right of such Holder.
(d) As a non-exclusive remedy, which enforcement in the Event of a Default, the Holder can convert the outstanding shares of Series A Preferred Stock at the lesser of the Fixed Conversion Price or the Floating Conversion Price upon giving a Notice of Conversion to the Company. The Company shall not be limitedhave the right to object to the conversion, except with respect to the calculation of the applicable Conversion Price.
(e) To effectuate the terms and provisions of this Certificate of Designation of Series A Preferred Stock, the Holder may send notice of any default to the Attorney-in-Fact (as defined in the Purchase Agreement) and send a copy of such notice to the Company and its counsel, simultaneously, and may include appeals request the Attorney-in-Fact, to comply with the terms of any decisions in lower courts, as well as collection efforts thereafter, compensable damages this Certificate of Designation of Series A Preferred Stock and consequential damages, withhold the Purchase Agreement and retain payment all agreements entered into pursuant to the Contractor for Purchase Agreement on behalf of the purpose of setoff until such time as the exact amount of damages due to the Authority from the Contractor is determined, seek injunctive relief and/or specific performance and such other equitable remedies that are available, as well as effectuate a termination of this Agreement, which may or could give rise to additional damages. It is expressly understood that the Contractor will remain liable for any damages the Authority sustains in excess of any set-offCompany.
Appears in 1 contract
Sources: Convertible Preferred Stock Purchase Agreement (Aberdene Mines LTD)
Events of Default and Remedies. 7.01 The Section 7.1 Events of Default. Each of the following acts and/or omissions shall constitute a default and material breach of this Agreement by the Contractor and shall be deemed an Event of Default if not cured within five (5) business days after written notice of default has been sent by the Authority to the Contractor, provided however, that if the default is such that more than five (5) days are required for a cure, then Contractor shall not be in default if it commences to cure the default within the five (5) day period and thereafter diligently prosecutes the same to completionDefault:
(a) Failure to comply with any The occurrence of an event of default as defined in Section 7.01 (a) or (b) of the material terms and conditions of this Agreement following written notice from the Authority and failure to cure; and/orIndenture;
(b) Failure The Company shall fail to begin the Services observe and perform any other agreement, term or condition contained in accordance with the terms of this Agreement; and/or, other than such failure as will have resulted in an event of default described in (a) above and the continuation of that failure for a period of 90 days after notice thereof shall have been given to the Company by the Issuer or the Trustee, or for such longer period as the Issuer and the Trustee may agree to in writing: provided, that failure shall not constitute an Event of Default so long as the Company institutes curative action within the applicable period and diligently pursues that action to completion;
(c) If the Contractor, The occurrence of a “completed default” as defined in the judgment Section 1 of Article Twelve of the Authority, is unnecessarily or unreasonably or willfully delaying the performance and completion of the ServicesCompany Mortgage; and/orand
(d) The Contractor abandons Written notice from the Services Bond Insurer to the Trustee that an event of default has occurred and is continuing under the Bond Insurance Agreement. Notwithstanding the foregoing, if, by reason of Force Majeure, the Company is unable to perform or observe any agreement, term or condition hereof which would give rise to an Event of Default under subsection (b) hereof, the Company shall not be undertakendeemed in default during the continuance of such inability. However, the Company shall promptly give notice to the Trustee and the Issuer of the existence of an event of Force Majeure and shall use its best efforts to remove the effects thereof; and/or
(e) The Authority reasonably believes provided that the Services cannot settlement of strikes or other industrial disturbances shall be completed entirely within its discretion. The term Force Majeure shall mean the time required, where in the Authority’s judgment, the delay is attributable to conditions within the Contractor’s control; and/or
(f) The Contractor, without just cause, reduces its personnel to a number which in the judgment of the Authority, is insufficient to complete the Services within a reasonable time and fails to sufficiently increase such personnel when directed to do so by the Authority; and/or
(g) The Contractor assigns, transfers, conveys or otherwise disposes of this Agreement, in whole, or in part, without prior approval of the Authority; and/or
(h) Any Authority officer or employee acquires an interest in this Agreement so as to create a conflict of interest; and/orfollowing:
(i) The Contractor violates acts of God; strikes, lockouts or other industrial disturbances; acts of public enemies; orders or restraints of any lawkind of the government of the United States of America or of the State or any of their departments, charter provisionagencies, ordinancepolitical subdivisions or officials, ruleor any civil or military authority; insurrections; civil disturbances; riots; epidemics; landslides; lightning; earthquakes; fires; hurricanes; tornados; storms; droughts; floods; arrests; restraint of government and people; explosions; breakage, regulationnuclear accidents or other malfunction or accident to facilities, governmental order machinery, transmission pipes or directivecanals; and/orpartial or entire failure of a utility serving the Project; shortages of labor, materials, supplies or transportation; or
(jii) Failure to provide adequate inventoryany cause, vehicles, equipment and/or personnel; and/or
(k) The filing of a voluntary circumstance or involuntary petition in bankruptcy or for reorganization or an arrangement, or an assignment for event not reasonably within the benefit of creditors, or the adjudication control of the Contractor as being bankrupt or insolvent, or the appointment Company. The exercise of a receiver of, or for the Contractor if such appointment, adjudication, or similar order or ruling remains in force or unstayed for a period of thirty (30) days, or admit in writing its inability to pay its debts generally as they become due; and/or
(l) The Contractor’s level of performance of the Services, in the reasonable judgment of the Authority falls below the standard of care set forth in Article II hereof and/or
(m) The Contractor ceases to conduct business in the normal course, and/or
(n) The Contractor fails to comply with any material terms, conditions and/or obligations of Contractor set forth herein.
(o) The Contractor fails to pay any labor, tax obligations, fringe benefit funds, insurance premiums, or subcontractor invoices for Services which the Contractor has received payment from the Authority.
7.02 In the Event of Default by the Contractor, the Authority remedies hereunder shall be entitled subject to any applicable limitations of federal bankruptcy law affecting or precluding that declaration or exercise during the pendency of or immediately following any and all remedies available at law and/or in equitybankruptcy, including, but not limited to the right to seek and sue for damages, any costs incurred to enforce, liquidation or attempt to enforce this Agreement, including reasonable attorneys fees, which enforcement shall not be limited, and may include appeals of any decisions in lower courts, as well as collection efforts thereafter, compensable damages and consequential damages, withhold and retain payment to the Contractor for the purpose of setoff until such time as the exact amount of damages due to the Authority from the Contractor is determined, seek injunctive relief and/or specific performance and such other equitable remedies that are available, as well as effectuate a termination of this Agreement, which may or could give rise to additional damages. It is expressly understood that the Contractor will remain liable for any damages the Authority sustains in excess of any set-offreorganization proceedings.
Appears in 1 contract
Events of Default and Remedies. 7.01 The 1. Notwithstanding anything hereinabove to the contrary, the Lenders acting through the Agent may terminate this Financing Agreement immediately upon the occurrence of any of the following acts and/or omissions shall constitute (herein "Events of Default"):
A) cessation of the business of the Company or the calling of a default meeting of the creditors of the Company for purposes of compromising the debts and material obligations of the Company;
B) the failure of the Company to generally meet debts as they mature;
C) the commencement by or against the Company of any bankruptcy, insolvency, arrangement, reorganization, receivership or similar proceedings under any federal or state law, provided that in the event of any involuntary proceeding commenced against the Company such proceeding is not dismissed or discharged within sixty (60) days after commencement thereof;
D) breach of this Agreement by the Contractor Company in any material respect of any warranty, representation or covenant contained herein (other than those referred to in sub-paragraph e below) or in any other written agreement between the Company and the Lenders, provided that such breach by the Company of any of the warranties, representations or covenants referred in this clause d shall not be deemed to be an Event of Default if unless and until such breach shall remain unremedied to the Agent's satisfaction for a period of fifteen (15) days from the date of Agent's discovery of such breach (the Agent shall endeavor to notify the Company of such breach, but the failure to so notify shall not cured detract from the Agent's rights or give the Company any claim, cause of action or defense)
E) breach by the Company of any warranty, representation or covenant of Section 3, Paragraphs 3 (other than the third sentence of paragraph 3) and 4; Section 6, Paragraphs 3 and 4 (other than the first sentence of paragraph 4); Section 7, Paragraphs 1, 5, 6, and 9 through 17; F) failure of the Company to pay any of the Obligations within five (5) business days after written notice Business Days of default has been sent by the Authority due date thereof, provided that nothing contained herein shall prohibit the Agent from charging such amounts to the Contractor, provided however, that if Company's Revolving Loan Account on the default is such that more than five (5) days are required for a cure, then Contractor shall not be in default if it commences to cure the default within the five (5) day period and thereafter diligently prosecutes the same to completion:
(a) Failure to comply with any of the material terms and conditions of this Agreement following written notice from the Authority and failure to cure; and/or
(b) Failure to begin the Services due date thereof in accordance with the terms of this Agreement; and/or
(c) If the Contractor, in the judgment of the Authority, is unnecessarily or unreasonably or willfully delaying the performance and completion of the Services; and/or
(d) The Contractor abandons the Services to be undertaken; and/or
(e) The Authority reasonably believes that the Services cannot be completed within the time required, where in the Authority’s judgment, the delay is attributable to conditions within the Contractor’s control; and/or
(f) The Contractor, without just cause, reduces its personnel to a number which in the judgment of the Authority, is insufficient to complete the Services within a reasonable time and fails to sufficiently increase such personnel when directed to do so by the Authority; and/or
(g) The Contractor assigns, transfers, conveys or otherwise disposes of this Agreement, in whole, or in part, without prior approval of the Authority; and/or
(h) Any Authority officer or employee acquires an interest in this Agreement so as to create a conflict of interest; and/or
(i) The Contractor violates any law, charter provision, ordinance, rule, regulation, governmental order or directive; and/or
(j) Failure to provide adequate inventory, vehicles, equipment and/or personnel; and/or
(k) The filing of a voluntary or involuntary petition in bankruptcy or for reorganization or an arrangement, or an assignment for the benefit of creditors, or the adjudication of the Contractor as being bankrupt or insolvent, or the appointment of a receiver of, or for the Contractor if such appointment, adjudication, or similar order or ruling remains in force or unstayed for a period of thirty (30) days, or admit in writing its inability to pay its debts generally as they become due; and/or
(l) The Contractor’s level of performance of the Services, in the reasonable judgment of the Authority falls below the standard of care set forth in Article II hereof and/or
(m) The Contractor ceases to conduct business in the normal course, and/or
(n) The Contractor fails to comply with any material terms, conditions and/or obligations of Contractor set forth herein.
(o) The Contractor fails to pay any labor, tax obligations, fringe benefit funds, insurance premiums, or subcontractor invoices for Services which the Contractor has received payment from the Authority.
7.02 In the Event of Default by the Contractor, the Authority shall be entitled to exercise any and all remedies available at law and/or in equity, including, but not limited to the right to seek and sue for damages, any costs incurred to enforce, or attempt to enforce this Agreement, including reasonable attorneys fees, which enforcement shall not be limited, and may include appeals of any decisions in lower courts, as well as collection efforts thereafter, compensable damages and consequential damages, withhold and retain payment to the Contractor for the purpose of setoff until such time as the exact amount of damages due to the Authority from the Contractor is determined, seek injunctive relief and/or specific performance and such other equitable remedies that are available, as well as effectuate a termination of this Agreement, which may or could give rise to additional damages. It is expressly understood that the Contractor will remain liable for any damages the Authority sustains in excess of any set-off.provisions hereof;
Appears in 1 contract
Events of Default and Remedies. 7.01 The If any one or more of the following acts and/or omissions Events of Default shall constitute a default occur for any reason whatsoever (and material breach of this Agreement by the Contractor and whether such occurrences shall be deemed an Event voluntary or involuntary, or come about or be affected by operation of Default if not cured within five (5) business days after written notice law or pursuant to or in compliance with any judgment, decree or order of default has been sent by the Authority to the Contractorany court, provided howeveror any order, rule or regulation of any administrative or governmental body), that if the default is such that more than five (5) days are required for a cure, then Contractor shall not be in default if it commences to cure the default within the five (5) day period and thereafter diligently prosecutes the same to completionsay:
(a) Failure to comply with any of the material terms and conditions of this Agreement following written notice from the Authority and failure to cure; and/or
(b) Failure to begin the Services in accordance with the terms of this Agreement; and/or
(c) If the Contractor, in the judgment of the Authority, is unnecessarily representation or unreasonably warranty made herein or willfully delaying the performance and completion of the Services; and/or
(d) The Contractor abandons the Services to be undertaken; and/or
(e) The Authority reasonably believes that the Services cannot be completed within the time required, where in the Authority’s judgment, the delay is attributable to conditions within the Contractor’s control; and/or
(f) The Contractor, without just cause, reduces its personnel to a number which in the judgment of the Authority, is insufficient to complete the Services within a reasonable time and fails to sufficiently increase such personnel when directed to do so by the Authority; and/or
(g) The Contractor assignsBorrower or Guarantor in any report, transferscertificate, conveys financial statement or otherwise disposes of other instrument furnished in connection with this Agreement, or any Advance or borrowing hereunder, shall prove to be false or misleading in wholeany material respect, or any representation or warranty made by the Borrower or Guarantor in partany future report, without prior approval of the Authority; and/or
(h) Any Authority officer certificate, financial statement or employee acquires an interest other instrument furnished in connection with this Agreement so as to create a conflict of interest; and/or
(i) The Contractor violates any law, charter provision, ordinance, rule, regulation, governmental order or directive; and/or
(j) Failure to provide adequate inventory, vehicles, equipment and/or personnel; and/or
(k) The filing of a voluntary or involuntary petition in bankruptcy or for reorganization or an arrangementAgreement, or an assignment for any Advances or borrowings hereunder, shall prove to be false or misleading in any material respect, which representation or warranty made by the benefit of creditors, Borrower or the adjudication of the Contractor as being bankrupt Guarantor remains false or insolvent, or the appointment of a receiver of, or for the Contractor if such appointment, adjudication, or similar order or ruling remains misleading in force or unstayed any material respect for a period of thirty (30) daysdays after the occurrence thereof;
(b) the Borrower shall fail to pay the principal of or interest on any obligations created hereunder, within five (5) days of when and as the same shall become due and payable, whether at the due date or by acceleration or otherwise;
(c) any default shall occur on the part of the Borrower or Guarantor in the due observance or performance of any covenant, agreement or other provision of this Agreement or any of the Loan Documents, other than for the payment of money, which default remains in effect for a period of thirty (30) consecutive days after the occurrence thereof;
(d) the Borrower or Guarantor shall fail to make payment of principal or interest on any other Indebtedness beyond any period of grace provided with respect thereto, or shall default in the performance of any other agreement, covenant, term or condition contained in any agreement under which any such obligation is created, if the effect of such default is to cause the holder or holders of such Indebtedness to accelerate the maturity thereof or results in a material adverse effect on its business or financial condition;
(e) Borrower or Guarantor shall (i) apply for or consent to the appointment of a receiver, trustee in bankruptcy for benefit of creditors, or liquidator of it or of any of its property; (ii) admit in writing its inability to pay its debts generally as they become due; and/or
(l) The Contractor’s level of performance of the Services, in the reasonable judgment of the Authority falls below the standard of care set forth in Article II hereof and/or
(m) The Contractor ceases to conduct business in the normal course, and/or
(n) The Contractor fails to comply with any material terms, conditions and/or obligations of Contractor set forth herein.
(o) The Contractor fails mature or generally fail to pay any labor, tax obligations, fringe benefit funds, insurance premiums, or subcontractor invoices for Services which the Contractor has received payment from the Authority.
7.02 In the Event of Default by the Contractor, the Authority shall be entitled to exercise any and all remedies available at law and/or in equity, including, but not limited to the right to seek and sue for damages, any costs incurred to enforce, or attempt to enforce this Agreement, including reasonable attorneys fees, which enforcement shall not be limited, and may include appeals of any decisions in lower courts, such debts as well as collection efforts thereafter, compensable damages and consequential damages, withhold and retain payment to the Contractor for the purpose of setoff until such time as the exact amount of damages due to the Authority from the Contractor is determined, seek injunctive relief and/or specific performance and such other equitable remedies that are available, as well as effectuate a termination of this Agreement, which may or could give rise to additional damages. It is expressly understood that the Contractor will remain liable for any damages the Authority sustains in excess of any set-off.they mature;
Appears in 1 contract
Events of Default and Remedies. 7.01 1. The occurrence of any one of the following acts and/or omissions shall constitute a default and material breach of this Agreement by the Contractor and shall be deemed an Event of Default if not cured within five Default;
(5a) business Failure by the Company to pay any amounts required to be paid under the Promissory Note or under this Loan Agreement at the times specified therein and herein and such failure shall continue for a period of thirty (30) days after the same has become due;
(b) Failure by the Company to observe and perform any covenant, condition or agreement on its part to be observed or performed in this Loan Agreement, other than as referred to in (a) above and (c) below, for a period of thirty (30) days after written notice, specifying such failure, requesting that it be remedied and stating that it is a notice of default default, has been sent by the Authority given to the ContractorCompany by WVEDA, provided unless WVEDA shall agree in writing to an extension of such time prior to its expiration; provided, however, that if the default is such that more than five (5) days are required for a cure, then Contractor shall not be Company has in default if it commences good faith commenced efforts to cure the default within the five thirty (530) calendar day cure period and thereafter diligently prosecutes the same default cannot reasonably be cured before the end of such period, then, as long as Borrower proceeds in good faith to completion:
cure the default, Borrower shall have an additional thirty (a30) Failure days to comply with any of cure the material terms and conditions of this Agreement following written notice from the Authority and failure to curedefault; and/or
(b) Failure to begin the Services in accordance with the terms of this Loan Agreement; and/or: GBB.GBB.0066349 10
(c) If the Contractor, in the judgment The dissolution or liquidation of the Authority, is unnecessarily Company or unreasonably or willfully delaying the performance and completion of the Services; and/or
(d) The Contractor abandons the Services to be undertaken; and/or
(e) The Authority reasonably believes that the Services cannot be completed within the time required, where in the Authority’s judgment, the delay is attributable to conditions within the Contractor’s control; and/or
(f) The Contractor, without just cause, reduces its personnel to a number which in the judgment of the Authority, is insufficient to complete the Services within a reasonable time and fails to sufficiently increase such personnel when directed to do so commencement by the Authority; and/or
(g) The Contractor assigns, transfers, conveys or otherwise disposes of this Agreement, in whole, or in part, without prior approval of the Authority; and/or
(h) Any Authority officer or employee acquires an interest in this Agreement so as to create a conflict of interest; and/or
(i) The Contractor violates any law, charter provision, ordinance, rule, regulation, governmental order or directive; and/or
(j) Failure to provide adequate inventory, vehicles, equipment and/or personnel; and/or
(k) The filing Company of a voluntary or involuntary petition in bankruptcy or for reorganization or an arrangementcase under the United States Credit Bankruptcy Code, as amended, or its failure promptly to lift or suspend any execution, garnishment or attachment of such consequence as will impair its ability to perform its obligations under this Loan Agreement, or the entry of an order for relief in respect of the Company of the Loan under the United States Bankruptcy Code, as amended, or the appointment of or taking possession by a receiver, liquidator, assignee, custodian, trustee, sequestrator, or similar official of the Company or of any substantial part of its property securing the Loan, or a general assignment by it for the benefit of creditors, or the adjudication entry by it into an agreement of the Contractor as being bankrupt or insolventcomposition with its creditors, or the appointment filing of a receiver ofpetition applicable to the Company of the Loan in any proceeding seeking its reorganization, liquidation, adjustment, composition or for other arrangement instituted pursuant to any federal or state law; provided, however, that any such petition filed against the Contractor if such appointment, adjudication, Company or similar order not filed by the Company that is dismissed or ruling remains in force or unstayed for a period of stayed within thirty (30) days, or admit in writing its inability to pay its debts generally as they become due; and/or
(l) The Contractor’s level days of performance of the Services, in the reasonable judgment of the Authority falls below the standard of care set forth in Article II hereof and/or
(m) The Contractor ceases to conduct business in the normal course, and/or
(n) The Contractor fails to comply with any material terms, conditions and/or obligations of Contractor set forth herein.
(o) The Contractor fails to pay any labor, tax obligations, fringe benefit funds, insurance premiums, or subcontractor invoices for Services which the Contractor has received payment from the Authority.
7.02 In the such filing shall not constitute an Event of Default by so long as the Contractor, Company gives written notice of such filing to WVEDA;
(d) If the Authority operations of the Company shall cease or be entitled to exercise significantly curtailed at the Facility. "Significant Curtailment of Operations" shall mean a condition at the Facility where total employment (as measured in terms of man hours) at the Facility for any and calendar quarter is less than 50% of the average quarterly employment at all remedies available at law and/or in equity, including, but not limited to of the right to seek and sue for damages, any costs incurred to enforce, or attempt to enforce this Agreement, including reasonable attorneys fees, which enforcement shall not be limited, and may include appeals of any decisions in lower courts, as well as collection efforts thereafter, compensable damages and consequential damages, withhold and retain payment to the Contractor Facility for the purpose previous four quarters unless such reduction is the result of setoff until unless such time as reduction is the exact amount result of damages due to strikes or other labor unrest, casualty or causes wholly beyond the Authority from control of the Contractor is determined, seek injunctive relief and/or specific performance and such other equitable remedies that are available, as well as effectuate a termination of this Agreement, which may or could give rise to additional damages. It is expressly understood that the Contractor will remain liable for any damages the Authority sustains in excess of any set-off.Company;
Appears in 1 contract
Events of Default and Remedies. 7.01 (a) The occurrence of any of the following acts and/or omissions events or conditions shall constitute a default and material breach an "Event of Default":
(i) Purchaser does not receive payment in full of any Account Receivable purchased by Purchaser within 90 days after the date of the invoice that pertains to the applicable Accounts Receivable;
(ii) any representation or warranty made or deemed made by Company under this Agreement proves to have been false or misleading in any material respect on or as of the date made or deemed made;
(iii) Company fails to perform or observe any covenant, term, condition, or agreement contained in this Agreement, and such failure continues unremedied for 15 days after written notice by Purchaser to Company;
(iv) Company commences any case or proceeding seeking relief under any existing or future bankruptcy law;
(v) there is commenced against Company any case or proceeding under any existing or future bankruptcy law which remains undismissed, undischarged, or unstayed for 60 days;
(vi) Company is unable, or admits in writing its inability, to pay its debts as they become due;
(vii) there occurs a material change in the Contractor and shall beneficial ownership of Company resulting in a change of control of Company without the prior written consent of Purchaser, which consent will not be deemed unreasonably withheld or delayed; or
(viii) Company sells, leases, transfers, or otherwise disposes of all or substantially all of its property or assets, or consolidates with or merges into or with any corporation or other entity without the prior written consent of Purchaser, which consent will not be unreasonably withheld or delayed.
(b) If an Event of Default if occurs and is continuing, then:
(i) Purchaser may, by notice to Company, declare this Agreement terminated; and
(ii) Purchaser may exercise all the rights and remedies available at law or in equity.
(c) During the continuance of any Event of Default under this Agreement, Purchaser shall have the right to notify the Customers obligated on any or all Accounts Receivable to make payment directly to Purchaser, and to take control of the cash and non-cash proceeds of any such Accounts Receivable, with full power to settle or compromise disputed claims on the Accounts Receivable, which right Purchaser may, upon providing Company with 10 days' prior written notice, exercise at any time whether or not cured within five (5) business days after Company is then in default or was previously making collections thereon. Until such time as Purchaser elects to exercise this right by serving upon Company written notice thereof, Company is authorized to collect the Accounts Receivable on behalf of default has been sent by the Authority to the Contractor, provided however, that if the default is such that more than five (5) days are required for a cure, then Contractor shall not be in default if it commences to cure the default within the five (5) day period Purchaser and thereafter diligently prosecutes remit the same to completion:
(a) Failure to comply with any of the material terms and conditions of this Agreement following written notice from the Authority and failure to cure; and/or
(b) Failure to begin the Services Purchaser in accordance with the terms of this Agreement; and/or
(c) If . The costs of collection and enforcement, including attorneys' fees and out-of-pocket expenses, shall be borne solely by Company, whether the Contractorsame are incurred by Purchaser or Company. In that the Accounts Receivable are owed by Purchaser and "serviced" by Company, Company, subject to applicable laws, hereby appoints Purchaser as its irrevocable attorney-in-fact to appear in the judgment any action and/or to collect any of the Authority, is unnecessarily or unreasonably or willfully delaying the performance and completion of the Services; and/orAccounts Receivable.
(d) The Contractor abandons parties agree that irreparable damage may occur if any provision of this Agreement were not performed in accordance with the Services to be undertaken; and/or
(e) The Authority reasonably believes terms hereof and that the Services cannot be completed within the time required, where in the Authority’s judgment, the delay is attributable to conditions within the Contractor’s control; and/or
(f) The Contractor, without just cause, reduces its personnel to a number which in the judgment of the Authority, is insufficient to complete the Services within a reasonable time and fails to sufficiently increase such personnel when directed to do so by the Authority; and/or
(g) The Contractor assigns, transfers, conveys or otherwise disposes of this Agreement, in whole, or in part, without prior approval of the Authority; and/or
(h) Any Authority officer or employee acquires an interest in this Agreement so as to create a conflict of interest; and/or
(i) The Contractor violates any law, charter provision, ordinance, rule, regulation, governmental order or directive; and/or
(j) Failure to provide adequate inventory, vehicles, equipment and/or personnel; and/or
(k) The filing of a voluntary or involuntary petition in bankruptcy or for reorganization or an arrangement, or an assignment for the benefit of creditors, or the adjudication of the Contractor as being bankrupt or insolvent, or the appointment of a receiver of, or for the Contractor if such appointment, adjudication, or similar order or ruling remains in force or unstayed for a period of thirty (30) days, or admit in writing its inability to pay its debts generally as they become due; and/or
(l) The Contractor’s level of performance of the Services, in the reasonable judgment of the Authority falls below the standard of care set forth in Article II hereof and/or
(m) The Contractor ceases to conduct business in the normal course, and/or
(n) The Contractor fails to comply with any material terms, conditions and/or obligations of Contractor set forth herein.
(o) The Contractor fails to pay any labor, tax obligations, fringe benefit funds, insurance premiums, or subcontractor invoices for Services which the Contractor has received payment from the Authority.
7.02 In the Event of Default by the Contractor, the Authority parties shall be entitled to exercise specific' performance of the terms hereof, in addition to any and all remedies available other remedy to which they are entitled at law and/or or in equity, including, but not limited to the right to seek and sue for damages, any costs incurred to enforce, or attempt to enforce this Agreement, including reasonable attorneys fees, which enforcement shall not be limited, and may include appeals of any decisions in lower courts, as well as collection efforts thereafter, compensable damages and consequential damages, withhold and retain payment to the Contractor for the purpose of setoff until such time as the exact amount of damages due to the Authority from the Contractor is determined, seek injunctive relief and/or specific performance and such other equitable remedies that are available, as well as effectuate a termination of this Agreement, which may or could give rise to additional damages. It is expressly understood that the Contractor will remain liable for any damages the Authority sustains in excess of any set-off.
Appears in 1 contract
Sources: Accounts Receivable Purchase Agreement (Jaguar Health, Inc.)
Events of Default and Remedies. 7.01 The following acts and/or omissions shall constitute a default and material breach of this Agreement by the Contractor and shall be deemed (a) As used herein, an "Event of Default if Default" occurs if:
(i) the Company defaults in the payment of principal and/or interest when the same becomes due and payable.
(ii) the Company fails to comply with any other provision contained in this Series 1 Bridge Note, the Purchase Agreement, the Warrant, the Repricing Warrant, or the Registration Rights Agreement, and such failure is not cured within five (5) business days after the Company receives written notice demand from Holder to remedy the same;
(iii) the Company defaults in any payment of default has been sent principal of or interest on any Debt (excluding trade payables) in excess of $250,000 beyond any period of grace provided with respect thereto and the effect of such failure is to cause the payee of such Debt to accelerate the Debt such that such Debt becomes due prior to its stated maturity;
(iv) any representation or warranty made in writing by or on behalf of the Company in the Purchase Agreement, the Registration Rights Agreement or the Escrow Agreement or in any writing furnished in connection therewith or in connection with the transactions contemplated by the Authority to Purchase Agreement shall be false in any material respect on the Contractor, provided however, that if the default is such that more than five (5) days are required for a cure, then Contractor shall not be in default if it commences to cure the default within the five (5) day period and thereafter diligently prosecutes the same to completion:date as of which made;
(av) Failure to comply with any of the material terms and conditions of this Agreement following written notice from the Authority and failure to cure; and/or
(b) Failure to begin the Services in accordance with the terms of this Agreement; and/or
(c) If the Contractor, in the judgment of the Authority, is unnecessarily or unreasonably or willfully delaying the performance and completion of the Services; and/or
(d) The Contractor abandons the Services to be undertaken; and/or
(e) The Authority reasonably believes that the Services cannot be completed within the time required, where in the Authority’s judgment, the delay is attributable to conditions within the Contractor’s control; and/or
(f) The Contractor, without just cause, reduces its personnel to a number which in the judgment of the Authority, is insufficient to complete the Services within a reasonable time and fails to sufficiently increase such personnel when directed to do so by the Authority; and/or
(g) The Contractor assigns, transfers, conveys or otherwise disposes of this Agreement, in whole, or in part, without prior approval of the Authority; and/or
(h) Any Authority officer or employee acquires an interest in this Agreement so as to create a conflict of interest; and/or
(i) The Contractor violates any law, charter provision, ordinance, rule, regulation, governmental order or directive; and/or
(j) Failure to provide adequate inventory, vehicles, equipment and/or personnel; and/or
(k) The filing of a voluntary or involuntary petition in bankruptcy or for reorganization or an arrangement, or Company makes an assignment for the benefit of creditorscreditors or is generally not paying its debts as such debts become due;
(vi) any order or decree for relief in respect of the Company is entered under any bankruptcy, reorganization, compromise, arrangement, insolvency, readjustment of debt, dissolution, or liquidation or similar law, whether now or hereafter in effect (herein called the adjudication "Bankruptcy Law"), of any jurisdiction;
(vii) the Contractor as being bankrupt Company petitions or insolventapplies to any tribunal for, or consents to, the appointment of a receiver of, or for the Contractor if such appointmenttaking possession by, adjudicationa trustee, receiver, custodian, liquidation, or similar order official of the Company, or ruling of any substantial part of the assets of the Company, or commences a voluntary case under the Bankruptcy Law of the United States or any proceedings relating to the Company under the Bankruptcy Law of any other jurisdiction;
(viii) any petition or application described in Section 10(a)(vi) above is filed, or any such proceedings are commenced, against the Company and the Company by any act indicates its approval thereof, consent thereto or acquiescence therein, or an order, judgment or decree is entered appointing any such trustee, receiver, custodian, liquidator, or similar official, or approving the petition in any such proceedings, and such order, judgment, or decree remains unstayed and in force or unstayed effect for a period of thirty more than sixty (3060) days;
(ix) any order, judgment, or admit decree is entered in writing its inability to pay its debts generally as they become dueany proceedings against the Company decreeing the dissolution of the Company and such order, judgment, or decree remains unstayed and in effect for more than sixty (60) days; and/oror
(lx) The Contractor’s level a final judgment (not fully covered by insurance) in an amount in excess of performance $250,000 is rendered against the Company and, within ten (10) Business Days after entry thereof, such judgment is not discharged or execution thereof stayed pending appeal, or within ten (10) days after the expiration of the Servicesany such stay, in the reasonable such judgment of the Authority falls below the standard of care set forth in Article II hereof and/or
(m) The Contractor ceases to conduct business in the normal course, and/or
(n) The Contractor fails to comply with any material terms, conditions and/or obligations of Contractor set forth hereinis not discharged.
(ob) The Contractor fails to pay any laborUpon the occurrence of an Event of Default described in subsection (vi), tax obligations, fringe benefit funds, insurance premiums(vii), or subcontractor invoices for Services (viii) of Section 10(a), the principal of and accrued interest on this Series 1 Bridge Note shall automatically become immediately due and payable, without presentment, demand, protest or other requirements of any kind, all of which are hereby expressly waived by the Contractor has received payment from Company. If any other Event of Default exists, Holder may, in addition to the Authorityexercise of any right, power, or remedy permitted to Holder by law, declare (by written notice or notices to the Company) the entire principal of and all interest accrued on this Series 1 Bridge Note to be due and payable, and this Series 1 Bridge Note shall thereupon become immediately due and payable, without presentment, demand, protest, or other notice of any kind, all of which are hereby expressly waived by the Company. Upon such declaration, the Company will immediately pay to Holder the then outstanding principal of and accrued and unpaid interest on this Series 1 Bridge Note. If at any time after acceleration of the maturity of this Series 1 Bridge Note, the Company shall pay all arrears of interest and all payments on account of principal which shall have become due other than by acceleration (with interest on principal and, to the extent permitted by law, on overdue interest, at the rate specified in this Series 1 Bridge Note) and all Events of Default shall be remedied or waived by Holder by written notice to the Company may rescind and annul the acceleration and its consequences, but such action shall not affect any subsequent Event of Default or impair any right consequent thereon.
7.02 In (c) A delay or omission by Holder in exercising any right or remedy arising upon an Event of Default shall not impair such right or remedy or constitute a waiver of or an acquiescence in the Event of Default.
(d) If any Event of Default shall occur and be continuing, Holder may proceed to protect and enforce their rights under this Series 1 Bridge Note and this Series 1 Bridge Note by exercising such remedies as are available to such Holder either by suit in equity or by action at law, or both, whether for specific performance of any covenant or other agreement contained in this Series 1 Bridge Note or in aid of the Contractorexercise of any power granted in this Series 1 Bridge Note. No remedy conferred in this Series 1 Bridge Note upon Holder is intended to be exclusive of any other remedy, the Authority and each and every such remedy shall be entitled cumulative and shall be in addition to exercise any and all remedies available every other remedy conferred herein or now or hereafter existing at law and/or or in equity, including, but not limited to the right to seek and sue for damages, any costs incurred to enforce, equity or attempt to enforce this Agreement, including reasonable attorneys fees, which enforcement shall not be limited, and may include appeals of any decisions in lower courts, as well as collection efforts thereafter, compensable damages and consequential damages, withhold and retain payment to the Contractor for the purpose of setoff until such time as the exact amount of damages due to the Authority from the Contractor is determined, seek injunctive relief and/or specific performance and such other equitable remedies that are available, as well as effectuate a termination of this Agreement, which may by statute or could give rise to additional damages. It is expressly understood that the Contractor will remain liable for any damages the Authority sustains in excess of any set-offotherwise.
Appears in 1 contract
Sources: Series 1 Bridge Note Purchase and Security Agreement (Cumetrix Data Systems Corp)
Events of Default and Remedies. 7.01 The following acts and/or omissions In the event that Assignee shall constitute a default fail to observe and material breach perform any of the obligations imposed on it by Article 2.1 of this Agreement (a "Default") the Assignor may give notice of such Default in writing to the Assignee specifying the nature of such default. In the event that a Default, as specified in the said notice, shall continue after a period of ninety (90) days from the receipt or deemed receipt of such said notice by the Contractor and shall be deemed an Event Assignee, the Assignor may issue a Notice of Default if not cured within five (5) business days after written notice Termination. Without restricting the generality of default has been sent by Section 6.1, the Authority to term "Default" in this Agreement will include the Contractor, provided however, that if the default is such that more than five (5) days are required for a cure, then Contractor shall not be in default if it commences to cure the default within the five (5) day period and thereafter diligently prosecutes the same to completion:
(a) Failure to comply with occurrence of any of the material terms following events: the failure of Assignee to make, punctually and conditions fully, the payments required to fund or finance the development of this Agreement following the Technology; the failure of Assignee to allocate the required funds to develop, prove up and market the Technology to generate license and running royalty fees; the failure of Assignee to pursue the commercialization of the Technology; the failure of Assignee to remain in good standing as a Cyprus Corporation; the attempt by Assignee to sublicense or to circumvent the Technology without the written notice approval of Assignor; the transfer by Assignee of the rights to the Technology to resolve litigation, save for the transfer of the rights to Assignor; the Assignee filing for bankruptcy; the failure of Assignee to maintain all Patents and Licenses current in all jurisdictions at the expense of Assignee; the failure of Assignee to pay promptly to Assignor 25% of the gross proceeds derived from any license fee, royalties, or any such other revenues derived from the Authority and failure use of the Technology or any such other consideration as may be paid to cure; and/or
Assignee by any party whatsoever for any matter related to the use of the Technology, the Patents, or the Heads of Agreement more particularly as define in Section 2.1 (bh) Failure to begin the Services in accordance with the terms (i) of this Agreement; and/or
(c) If and the Contractor, in the judgment failure of Assignee to abide by any of the Authority, is unnecessarily or unreasonably or willfully delaying the performance and completion of the Services; and/or
(d) The Contractor abandons the Services to be undertaken; and/or
(e) The Authority reasonably believes that the Services cannot be completed within the time required, where in the Authority’s judgment, the delay is attributable to conditions within the Contractor’s control; and/or
(f) The Contractor, without just cause, reduces its personnel to a number which in the judgment of the Authority, is insufficient to complete the Services within a reasonable time and fails to sufficiently increase such personnel when directed to do so by the Authority; and/or
(g) The Contractor assigns, transfers, conveys or otherwise disposes terms as represented under section 2.1 of this Agreement, in whole, or in part, without prior approval of the Authority; and/or
(h) Any Authority officer or employee acquires an interest in this Agreement so as to create a conflict of interest; and/or
(i) The Contractor violates any law, charter provision, ordinance, rule, regulation, governmental order or directive; and/or
(j) Failure to provide adequate inventory, vehicles, equipment and/or personnel; and/or
(k) The filing of a voluntary or involuntary petition in bankruptcy or for reorganization or an arrangement, or an assignment for the benefit of creditors, or the adjudication of the Contractor as being bankrupt or insolvent, or the appointment of a receiver of, or for the Contractor if such appointment, adjudication, or similar order or ruling remains in force or unstayed for a period of thirty (30) days, or admit in writing its inability to pay its debts generally as they become due; and/or
(l) The Contractor’s level of performance of the Services, in the reasonable judgment of the Authority falls below the standard of care set forth in Article II hereof and/or
(m) The Contractor ceases to conduct business in the normal course, and/or
(n) The Contractor fails to comply with any material terms, conditions and/or obligations of Contractor set forth herein.
(o) The Contractor fails to pay any labor, tax obligations, fringe benefit funds, insurance premiums, or subcontractor invoices for Services which the Contractor has received payment from the Authority.
7.02 In the Event of Default by the Contractor, the Authority shall be entitled to exercise any and all remedies available at law and/or in equity, including, but not limited to the right to seek and sue for damages, any costs incurred to enforce, or attempt to enforce this Agreement, including reasonable attorneys fees, which enforcement shall not be limited, and may include appeals of any decisions in lower courts, as well as collection efforts thereafter, compensable damages and consequential damages, withhold and retain payment to the Contractor for the purpose of setoff until such time as the exact amount of damages due to the Authority from the Contractor is determined, seek injunctive relief and/or specific performance and such other equitable remedies that are available, as well as effectuate a termination of this Agreement, which may or could give rise to additional damages. It is expressly understood that the Contractor will remain liable for any damages the Authority sustains in excess of any set-off.
Appears in 1 contract
Events of Default and Remedies. 7.01 The 1. Notwithstanding anything hereinabove to the contrary, the Lenders acting through the Agent may terminate this Agreement immediately upon the occurrence and during the continuance of any of the following acts and/or omissions shall constitute (herein "EVENTS OF DEFAULT"):
(a) cessation of the business of any other Obligor or the calling of a default meeting of the creditors of any other Obligor for purposes of compromising the debts and material obligations any Obligor;
(b) the failure of any Obligor to generally meet debts as they mature;
(c) the commencement by or against any Obligor of any bankruptcy, insolvency, arrangement, reorganization, receivership or similar proceedings under any federal or state law, UTI - AMENDED AND RESTATED LOAN AND SECURITY AGREEMENT 72 provided that in the event of any involuntary proceeding commenced against any Obligor such proceeding is not dismissed or discharged within sixty (60) days after commencement thereof;
(d) breach by any Obligor of any warranty, representation or covenant contained herein (other than those referred to in Paragraph (e) below) or in any other Loan Document, provided that such breach of any of the warranties, representations or covenants referred in this Agreement by the Contractor and Paragraph (d) shall not be deemed to be an Event of Default if not cured unless and until such breach shall remain unremedied to the Agent's satisfaction for a period of ten (10) Business Days after the occurrence thereof;
(e) breach by any Obligor of any warranty, representation or covenant of Section 3, Paragraph 3 (other than the second sentence of Paragraph 3(b)) and Paragraph 4 of this Agreement; Section 4, Paragraphs 3 and Paragraph 4 (other than the first sentence of Paragraph 4) of this Agreement; or Section 7, Paragraphs 1, 5, 6, and 10, 11 and 13 of this Agreement;
(f) failure of any Company to pay any of the Obligations within five (5) business days after written notice Business Days of default has been sent by the Authority due date thereof, provided that nothing contained herein shall prohibit the Agent from charging such amounts to the Contractor, provided however, that if Revolving Loan Account on the default is such that more than five (5) days are required for a cure, then Contractor shall not be in default if it commences to cure the default within the five (5) day period and thereafter diligently prosecutes the same to completion:
(a) Failure to comply with any of the material terms and conditions of this Agreement following written notice from the Authority and failure to cure; and/or
(b) Failure to begin the Services in accordance with the terms of this Agreement; and/or
(c) If the Contractor, in the judgment of the Authority, is unnecessarily or unreasonably or willfully delaying the performance and completion of the Services; and/or
(d) The Contractor abandons the Services to be undertaken; and/or
(e) The Authority reasonably believes that the Services cannot be completed within the time required, where in the Authority’s judgment, the delay is attributable to conditions within the Contractor’s control; and/or
(f) The Contractor, without just cause, reduces its personnel to a number which in the judgment of the Authority, is insufficient to complete the Services within a reasonable time and fails to sufficiently increase such personnel when directed to do so by the Authority; and/ordue date thereof;
(g) The Contractor assigns, transfers, conveys or otherwise disposes of this Agreement, in whole, or in part, without prior approval of the Authority; and/or
(h) Any Authority officer or employee acquires an interest in this Agreement so as to create a conflict of interest; and/or
any Obligor shall (i) The Contractor violates engage in any law"prohibited transaction" as defined in ERISA, charter provision(ii) have any "accumulated funding deficiency" as defined in ERISA, ordinance(iii) have any Reportable Event, rule, regulation, governmental order (iv) terminate any Plan or directive; and/or
(jv) Failure to provide adequate inventory, vehicles, equipment and/or personnel; and/or
(k) The filing of a voluntary or involuntary petition be engaged in bankruptcy or for reorganization or an arrangementany proceeding in which the Pension Benefit Guaranty Corporation shall seek appointment, or an assignment for the benefit is appointed, as trustee or administrator of creditorsany Plan, and with respect to this Paragraph (g) such event or the adjudication of the Contractor as being bankrupt or insolvent, or the appointment of a receiver of, or for the Contractor if such appointment, adjudication, or similar order or ruling condition (x) remains in force or unstayed uncured for a period of thirty (30) days, or admit in writing its inability to pay its debts generally as they become due; and/or
days from date of occurrence and (ly) The Contractor’s level of performance of the Servicescould, in the reasonable judgment opinion of the Authority falls below the standard of care set forth in Article II hereof and/or
(m) The Contractor ceases Agent, subject any Obligor to conduct business in the normal courseany tax, and/or
(n) The Contractor fails to comply with any material terms, conditions and/or obligations of Contractor set forth hereinpenalty or other liability that could have a Material Adverse Effect.
(oh) The Contractor fails the occurrence of any default or event of default (after giving effect to pay any laborapplicable grace or cure periods) under any instrument or agreement evidencing (x) Subordinated Debt or (y) any other Indebtedness For Borrowed Money of any Company having a principal amount in excess of $2,000,000;
(i) any "person" or "group" (within the meaning of Sections 13(d) and 14(d)(2) of the Securities Exchange Act of 1934) becomes the "beneficial owner" (as defined in Rule 13d-3 under the Securities Exchange Act of 1934), tax obligationsdirectly or indirectly, fringe benefit fundsof more than 30% of the total voting power of all classes of stock then outstanding of Parent entitled to vote in the election of directors; or
(j) the occurrence of any default or event of default under any other Loan Document. For purposes of this Agreement and the other Loan Documents, insurance premiumsin the event of (x) a misstatement, or subcontractor invoices for Services misrepresentation with respect to any matter that reasonably could be considered material to a commercial lender (including, without limitation, any negligent or intentional misstatement or misrepresentation in a certificate or other document delivered by an Obligor pursuant to this Agreement) or (y) any breach or violation of any covenant contained in UTI - AMENDED AND RESTATED LOAN AND SECURITY AGREEMENT any Loan Document by any Obligor arising from or relating to the failure or delay in delivering to the Agent or depositing into a Depository Account any Collections or other proceeds of Collateral or other funds which are required to be so delivered or deposited pursuant to any Loan Document (including, without limitation, the Contractor has received payment from diversion, misdirection, misuse or misapplication of any such Collections, proceeds or funds), that constitutes an Event of Default, such Event of Default shall be considered continuing until such times as it is waived in writing by the AuthorityAgent.
7.02 In 2. Upon the occurrence and during the continuation of an Event of Default, the Agent may (at its option), and shall at the direction of the Required Lenders, declare that all loans, advances and extensions of credit provided for in Section 3 of this Agreement shall thereafter be in the Agent's sole discretion and the obligation of the Agent and/or the Lenders to make Revolving Loans and/or open Letters of Credit shall cease unless such Event of Default is waived in writing by the Agent on behalf of the Lenders or cured to the Agent's satisfaction, and so long as an Event of Default shall have occurred and be continuing the Agent may (at its option), and shall at the direction of the Required Lenders declare that: (i) all Obligations shall become immediately due and payable; (ii) the Default Rate of Interest shall be charged on all then outstanding or thereafter incurred Obligations in lieu of the interest provided for in Section 8 of this Agreement; provided that with respect to this clause (ii), (a) the Agent has given the Parent written notice of the Event of Default; provided, further that no notice is required if the Event of Default by is the Contractorevent listed in Paragraph 1(c) of this section, and (b) the Authority Default Rate shall be entitled to exercise any accrue from and all remedies available at law and/or after the date of the occurrence of the Event of Default listed in equity, including, but not limited Paragraph 1(c) of this section; and (iii) this Agreement shall immediately terminate upon notice to the right to seek and sue for damagesParent; provided, any costs incurred to enforcehowever, or attempt to enforce that no notice of termination is required if the Event of Default is the event listed in Paragraph 1(c) of this Agreement, including reasonable attorneys fees, which enforcement shall not be limited, and may include appeals section. The exercise of any decisions in lower courts, as well as collection efforts thereafter, compensable damages and consequential damages, withhold and retain payment remedy available to the Contractor for Agent and/or the purpose Lender is not exclusive of setoff until such time as the exact amount of damages due any other remedy available to the Authority from Agent and/or the Contractor is determined, seek injunctive relief and/or specific performance and such other equitable remedies that are available, as well as effectuate a termination of this AgreementLender, which may or could give rise to additional damages. It is expressly understood that be exercised at any time by the Contractor will remain liable for any damages Agent and/or the Authority sustains in excess of any set-offLenders.
Appears in 1 contract
Sources: Loan and Security Agreement (Patterson Uti Energy Inc)
Events of Default and Remedies. 7.01 The following acts and/or omissions shall constitute a default and material breach of this Agreement by the Contractor and shall be deemed If, (each, an “Event of Default”), (A) Maker shall fail to pay principal on this Note when due and payable or (B) any of the following Events of Default if not cured within five (5) business days after written notice of default has been sent by the Authority shall occur prior to the Contractor, provided however, that if the default is such that more than five (5) days are required for a cure, then Contractor shall not be in default if it commences to cure the default within the five (5) day period and thereafter diligently prosecutes the same to completionMaturity Date:
(a) Failure the Maker shall fail to comply with any make payment when due of the material terms interest on this Note and conditions such failure shall have continued for a period of this Agreement following written notice from the Authority ten (10) days after such payment is due and failure to cure; and/orunpaid;
(b) Failure the commencement of any proceedings (w) in bankruptcy by or against the Maker or a21, (x) for the liquidation or reorganization of the Maker or a21, (y) alleging that the Maker or a21 is insolvent or unable to begin pay its debts as they mature, or (z) for the Services in accordance with readjustment or arrangement of the terms Maker’s or a21’s debts, whether under the United States Bankruptcy Code or under any other law, whether state or federal, now or hereafter existing for the relief of this Agreementdebtors, or the commencement of any analogous statutory or non-statutory proceedings involving the Maker or a21; and/orprovided, however, that if such commencement of proceedings against the Maker or a21 is involuntary, such action shall not constitute an Event of Default unless such proceedings are not dismissed within ninety (90) days after the commencement of such proceedings;
(c) If the Contractor, in the judgment of the Authority, is unnecessarily or unreasonably or willfully delaying the performance and completion of the Services; and/or
(d) The Contractor abandons the Services to be undertaken; and/or
(e) The Authority reasonably believes that the Services cannot be completed within the time required, where in the Authority’s judgment, the delay is attributable to conditions within the Contractor’s control; and/or
(f) The Contractor, without just cause, reduces its personnel to a number which in the judgment of the Authority, is insufficient to complete the Services within a reasonable time and fails to sufficiently increase such personnel when directed to do so by the Authority; and/or
(g) The Contractor assigns, transfers, conveys or otherwise disposes of this Agreement, in whole, or in part, without prior approval of the Authority; and/or
(h) Any Authority officer or employee acquires an interest in this Agreement so as to create a conflict of interest; and/or
(i) The Contractor violates any law, charter provision, ordinance, rule, regulation, governmental order or directive; and/or
(j) Failure to provide adequate inventory, vehicles, equipment and/or personnel; and/or
(k) The filing of a voluntary or involuntary petition in bankruptcy or for reorganization or an arrangement, or an assignment for the benefit of creditors, or the adjudication of the Contractor as being bankrupt or insolvent, or the appointment of a receiver ofor trustee for the Maker or a21, or for any substantial part of the Contractor Maker’s or a21’s assets or the institution of any proceedings for the dissolution, or the full or partial liquidation, of the Maker or a21; provided, however, that if such appointmentappointment or commencement of proceedings against the Maker or a21 is involuntary, adjudication, such action shall not constitute an Event of Default unless such appointment is not revoked or similar order or ruling remains in force or unstayed for a period such proceedings are not dismissed within ninety (90) days after the commencement of thirty (30) days, or admit in writing its inability to pay its debts generally as they become due; and/orsuch proceedings;
(ld) The Contractor’s level of performance of the Services, any representation or warranty made or deemed to be made by a21 or Buyer in the reasonable judgment Merger Agreement shall have been false or misleading in any material respect when made or deemed to be made and such misrepresentation has had a material adverse effect in the likelihood that this Note shall be repaid; or
(e) the occurrence of an “Event of Default” (any such “Event of Default” hereinafter referred to as a “SPA Event of Default”) as defined in and under the Authority falls below Notes (as defined in that certain Securities Purchase Agreement dated as of April 27, 2006 by and among a21, SuperStock, Inc., a Florida corporation, the standard Purchasers (as defined therein) and Queequeg Partners, L.P., as agent for Purchasers (in such capacity, “Agent”)) and as a result of care such SPA Event of Default, Required Purchasers (as defined in the Notes) through Agent have declared all unpaid principal and accrued interest under the Notes immediately due and payable. then, and so long as such Event of Default is continuing (and the event which would constitute such Event of Default, if curable, has not been cured) without prejudice to the rights of Payee to enforce its claims against Maker and by delivery of written notice to Maker, all Obligations of Maker under this Note shall be immediately due and payable (except with respect to any Event of Default set forth in Article II hereof and/or
Section 3(b) or (mc) The Contractor ceases to conduct business hereof, in the normal course, and/or
(n) The Contractor fails to comply with any material terms, conditions and/or which case all obligations of Contractor set forth herein.
(oMaker under this Note shall automatically become immediately due and payable without the necessity of any notice or other demand to Maker) The Contractor fails to pay without presentment, demand, protest or any laborother action or obligation of Payee of any kind, tax obligationsall of which are hereby expressly waived, fringe benefit funds, insurance premiums, or subcontractor invoices for Services which the Contractor has received payment from the Authority.
7.02 In the Event of Default by the Contractor, the Authority shall be entitled to and Payee may exercise any and all other remedies available the Payee may have at law and/or in or equity, including, but not limited to the right to seek and sue for damages, any costs incurred to enforce, or attempt to enforce this Agreement, including reasonable attorneys fees, which enforcement shall not be limited, and may include appeals of any decisions in lower courts, as well as collection efforts thereafter, compensable damages and consequential damages, withhold and retain payment to the Contractor for the purpose of setoff until such time as the exact amount of damages due to the Authority from the Contractor is determined, seek injunctive relief and/or specific performance and such other equitable remedies that are available, as well as effectuate a termination of this Agreement, which may or could give rise to additional damages. It is expressly understood that the Contractor will remain liable for any damages the Authority sustains in excess of any set-off.
Appears in 1 contract
Sources: Promissory Note (A21 Inc)
Events of Default and Remedies. 7.01 The (a) Each of the following acts and/or omissions shall events constitutes an “Event of Default” hereunder and any event that, with the passage of time or the giving of notice, or both, would constitute a default and material breach of this Agreement by the Contractor and shall be deemed an Event of Default if not cured within five shall constitute a “Default” hereunder: (5i) business Lessee fails to pay any Rent when due under this Lease and such failure continues for a period of ten (10) days; (ii) any representation or warranty made by Lessee in the Lease or in any other Lease Document shall at any time prove to have been incorrect in any material respect as and when made; (iii) Lessee fails (A) to obtain and maintain the insurance coverage required herein; or (B) fails to materially observe or perform any other covenant, condition or agreement under this Lease and, in the case of clause (B), such failure continues unremedied for a period of fifteen (15) days after written notice of default has been sent thereof by the Authority Lessor to the ContractorLessee; (iv) Lessee or any Guarantor shall have consolidated with, provided howevermerged with or into, that if the default is such that more than five (5) days are required for a cureor conveyed, then Contractor shall not be in default if it commences to cure the default within the five (5) day period and thereafter diligently prosecutes the same to completion:
(a) Failure to comply with any of the material terms and conditions of this Agreement following written notice from the Authority and failure to cure; and/or
(b) Failure to begin the Services in accordance with the terms of this Agreement; and/or
(c) If the Contractor, in the judgment of the Authority, is unnecessarily or unreasonably or willfully delaying the performance and completion of the Services; and/or
(d) The Contractor abandons the Services to be undertaken; and/or
(e) The Authority reasonably believes that the Services cannot be completed within the time required, where in the Authority’s judgment, the delay is attributable to conditions within the Contractor’s control; and/or
(f) The Contractor, without just cause, reduces its personnel to a number which in the judgment of the Authority, is insufficient to complete the Services within a reasonable time and fails to sufficiently increase such personnel when directed to do so by the Authority; and/or
(g) The Contractor assigns, transfers, conveys sold or otherwise disposes transferred all or substantially all of this Agreement, in whole, its assets or in part, without prior approval of the Authorityshall have failed to maintain its corporate existence; and/or
(hv) Any Authority officer Lessee or employee acquires an interest in this Agreement so any Guarantor (A) ceases doing business as to create a conflict of interestgoing concern; and/or
(iB) The Contractor violates any law, charter provision, ordinance, rule, regulation, governmental order or directive; and/or
(j) Failure to provide adequate inventory, vehicles, equipment and/or personnel; and/or
(k) The filing of a voluntary or involuntary petition in bankruptcy or for reorganization or an arrangement, or makes an assignment for the benefit of creditors, creditors or the adjudication of the Contractor as being bankrupt or insolvent, or the appointment of a receiver of, or for the Contractor if such appointment, adjudication, or similar order or ruling remains in force or unstayed for a period of thirty (30) days, or admit admits in writing its inability to pay its debts as they mature or generally fails to pay its debts as they become due; and/or
(lC) The Contractor’s level initiates any voluntary bankruptcy, reorganization, insolvency or similar proceeding; (D) fails to obtain the discharge of performance any bankruptcy, reorganization, insolvency or similar proceeding initiated against it by others within sixty (60) days of the Servicesdate such proceedings were initiated; (E) requests or consents to the appointment of a trustee, custodian or receiver or other officer with similar powers for itself or a substantial part of its property; or (F) a trustee, custodian or receiver or other officer with similar powers is appointed for itself or for a substantial part of its property; (vi) Lessee fails to return the Equipment or fails to return the Equipment in the reasonable judgment required condition at the expiration of the Authority falls below the standard Term; or (vii) if Lessee’s obligations are guaranteed by any other party, an “Event of care set forth in Article II hereof and/or
Default” (m) The Contractor ceases to conduct business under and as defined in the normal course, and/or
(nGuaranty executed by such Guarantor) The Contractor fails to comply with any material terms, conditions and/or obligations of Contractor set forth hereinshall occur.
(ob) The Contractor fails to pay any labor, tax obligations, fringe benefit funds, insurance premiums, or subcontractor invoices for Services which Upon the Contractor has received payment from the Authority.
7.02 In the occurrence of an Event of Default Default, Lessor may exercise any one or more of the following remedies and any additional rights and remedies permitted by the Contractor, the Authority law (none of which shall be exclusive) and shall be entitled to exercise recover all its reasonable costs and expenses and attorneys’ fees in enforcing its rights and remedies:
(i) Lessee shall, upon demand, assemble or cause to be assembled any o all of the Equipment at a location designated by Lessor; and/or to return promptly, at Lessee’s expense, any or all of the Equipment to Lessor at such location, in the condition and otherwise in accordance with all remedies available of the terms of Section 14 hereof; and/or
(ii) Lessor may itself or by its agents enter upon the premises of Lessee or any other location where the Equipment is located and take possession of and render unusable by Lessee any or all of the Equipment, wherever it may be located, without any court order or other process of law and without liability for any damages occasioned by such taking of possession; and/or
(iii) Sell, re-lease or otherwise dispose of any or all of the Equipment, whether or not in Lessor’s possession, at law and/or in equitypublic or private sale with or without notice to Lessee, includingwith the right of Lessor to purchase and apply the net proceeds of such disposition, after deducting all costs of such disposition (including but not limited to costs of transportation, possession, storage, refurbishing, advertising and brokers’ fees), to the right to seek obligations of Lessee under this Lease, with Lessee remaining liable for any deficiency and sue for damages, with any costs incurred to enforceexcess being retained by Lessor, or attempt retain any and all of the Equipment; and/or
(iv) Cancel such Equipment Schedule as to any or all of the Equipment; and/or
(v) Proceed by appropriate court action, either at law or in equity (including an action for specific performance), to enforce performance by Lessee or to recover damages associated with such Event of Default; or exercise any other right or remedy available to Lessor at law or in equity; and/or
(vi) By offset, recoupment or other manner of application, apply any security deposit, monies held in deposit or other sums then held by Lessor or any affiliate of Lessor, and with respect to which Lessee has an interest, against any obligations of Lessee arising under this AgreementLease or any other Lease Document, whether or not Lessee has pledged, assigned or granted a security interest to Lessor in any or all such sums as collateral for said obligations.
(c) In addition to the foregoing, Lessee shall pay to Lessor on demand the sum of (i) any and all Rent which is then due or which has accrued to the date of demand and (ii) an amount equal to the Stipulated Loss Value (as set forth in the related Equipment Schedule) as of the Rent Payment Date on or immediately preceding the date of demand for the Items of Equipment as Lessor shall specify. The Lessor and Lessee agree that Lessor shall be entitled to such amount as damages for loss of bargain and not as a penalty and that such amount is reasonable in light of the anticipated harm to Lessor caused by an Event of Default.
(d) If Lessee pays the full amount referred to in Section 16(c) to Lessor prior to the termination of this Lease as it relates to such Items of Equipment, title to the relevant Equipment shall immediately vest in Lessee without representation or warranty by Lessor. If Lessee fails to pay such amount and Lessor subsequently sells, releases or otherwise disposes of such Items of Equipment, the amount due from Lessee under Section 16(c) shall be reduced by an amount equal to (i) the actual cash proceeds received and retained by Lessor upon any sale or disposition or (ii) if Lessor leases such Equipment by a lease agreement substantially similar to this Lease, the present value of the rents (discounted at the Prime Rate as announced by Fifth Third Bank and in effect at the time of demand plus 2.00%) payable under such subsequent Lease for the remaining Term of this Lease (without regard to any Renewal Terms other than the then current Renewal Term (if applicable)), in each case, net of all costs and expenses incurred in connection with such sale, disposition or lease including reasonable attorneys feesany incidental damages.
(e) A cancellation or termination hereunder shall occur only upon written notice by Lessor to Lessee, and only with respect to such Items of Equipment as Lessor specifically elects to cancel or terminate by such notice. Except as to any such Items of Equipment with respect to which enforcement there is a cancellation or termination, this Lease shall remain in full force and effect and Lessee shall be and remain liable for the full performance of all its obligations under this Lease.
(f) Lessee shall indemnify, defend and hold Lessor harmless for any loss, personal injury (including death), or damage to property, suffered by Lessor, its employees or any of its agents in connection with its entry onto the premises of Lessee. Each of the rights and remedies of Lessor hereunder and under the other Lease Documents is in addition to all of its other rights and remedies hereunder, under the other Lease Documents and under applicable law and nothing in this Lease or any other Lease Document shall be construed as limiting any such right or remedy. Lessor’s failure to exercise or delay in exercising any right, power or remedy available to Lessor shall not constitute a waiver or otherwise affect or impair its rights to the future exercise of any such right, power or remedy. Waiver by Lessor of any Event of Default shall not be limited, and may include appeals a waiver by Lessor of any decisions in lower courts, as well as collection efforts thereafter, compensable damages and consequential damages, withhold and retain payment to the Contractor for the purpose other or subsequent Events of setoff until such time as the exact amount of damages due to the Authority from the Contractor is determined, seek injunctive relief and/or specific performance and such other equitable remedies that are available, as well as effectuate a termination of this Agreement, which may or could give rise to additional damages. It is expressly understood that the Contractor will remain liable for any damages the Authority sustains in excess of any set-offDefault.
Appears in 1 contract
Events of Default and Remedies. 7.01 The occurrence of any one of the following acts and/or omissions shall constitute a default and material breach of this Agreement by the Contractor and shall be deemed an Event of Default if not cured within five (5) business days after written notice of default has been sent by the Authority to the Contractor, provided however, that if the default is such that more than five (5) days are required for a cure, then Contractor shall not be in default if it commences to cure the default within the five (5) day period and thereafter diligently prosecutes the same to completionhereunder:
(a) Failure Medical Center fails to comply with pay any installment of semi-monthly procedure payments when due when such default continues for a period of thirty (30) days after notice thereof from GKF or its assignee is given to Medical Center, unless Medical Center disputes the material terms and conditions of this Agreement following written notice from the Authority and failure installment payment, such as, without limitation, an incomplete procedure due to cure; and/orfaulty Equipment.
(b) Failure Medical Center attempts to begin remove, sell, transfer, encumber, sublet or part with possession of the Services in accordance with the terms of this Agreement; and/orEquipment or any items thereof, except as expressly permitted herein;
(c) If the Contractor, in the judgment Either party shall fail to observe or perform any of the Authority, is unnecessarily other obligations required to be observed or unreasonably or willfully delaying performed by such party hereunder and such failure shall continue uncured for twenty (20) days after written notice thereof to the performance and completion of defaulting party by the Services; and/orother party;
(d) The Contractor abandons the Services to be undertaken; and/or
(e) The Authority reasonably believes that the Services cannot be completed within the time requiredEither party ceases doing business as a going concern, where in the Authority’s judgment, the delay is attributable to conditions within the Contractor’s control; and/or
(f) The Contractor, without just cause, reduces its personnel to a number which in the judgment of the Authority, is insufficient to complete the Services within a reasonable time and fails to sufficiently increase such personnel when directed to do so by the Authority; and/or
(g) The Contractor assigns, transfers, conveys or otherwise disposes of this Agreement, in whole, or in part, without prior approval of the Authority; and/or
(h) Any Authority officer or employee acquires an interest in this Agreement so as to create a conflict of interest; and/or
(i) The Contractor violates any law, charter provision, ordinance, rule, regulation, governmental order or directive; and/or
(j) Failure to provide adequate inventory, vehicles, equipment and/or personnel; and/or
(k) The filing of a voluntary or involuntary petition in bankruptcy or for reorganization or an arrangement, or makes an assignment for the benefit of creditors, or the adjudication of the Contractor as being bankrupt or insolvent, or the appointment of a receiver of, or for the Contractor if such appointment, adjudication, or similar order or ruling remains in force or unstayed for a period of thirty (30) days, or admit admits in writing its inability to pay its debts generally as they become due; and/or
(l) The Contractor’s level , files a voluntary petition in bankruptcy, is adjudicated a bankrupt or an insolvent, files a petition seeking for itself any reorganization, arrangement, composition, readjustment, liquidation, dissolution or similar arrangement under any present or future statute, law or regulation or files an answer admitting the material allegations of performance of the Servicesa petition filed against it in any such proceeding, consents to or acquiesces in the reasonable judgment appointment of the Authority falls below the standard a trustee, receiver, or liquidator of care set forth in Article II hereof and/or
(m) The Contractor ceases it or of all or any substantial part of its assets or properties, or it or its shareholders shall take any action looking to conduct business in the normal course, and/or
(n) The Contractor fails to comply with any material terms, conditions and/or obligations of Contractor set forth hereinits dissolution or liquidation.
(oe) The Contractor fails to pay Within sixty (60) days after the commencement of any laborproceedings against either party seeking reorganization, tax obligationsarrangement, fringe benefit fundsreadjustment, insurance premiumsliquidation, dissolution or similar relief under any present or future statute, law or regulation, such proceedings shall not have been dismissed, or subcontractor invoices for Services which if within thirty (30) days after the Contractor has received payment from the Authorityappointment without such party's consent or acquiescence of any trustee, receiver or liquidator of it or of all or any substantial part of its assets and properties, such appointment shall not be vacated.
7.02 In (f) Upon the occurrence of an Event of Default by Medical Center, GKF may at its option do any or all of the Contractorfollowing: (i) by notice to Medical Center, terminate this Agreement as to the Equipment in default, wherever situated, and for such purposes, enter upon the Site without liability for so doing or GKF may cause Medical Center and Medical Center hereby agrees to return the Equipment to GKF at Medical Center's sole cost and expense; (ii) recover from, as liquidated damages for the loss of the bargain and not as a penalty, an amount equal to the present value of the unpaid estimated future lease payments by Medical Center to GKF through the end of the Agreement term discounted at the rate of nine percent (9%), which payment shall become immediately due and payable. Unpaid estimated future lease payments shall be based on the prior 12 months lease payments with an annual five (5%) percent increase; (iii) sell, dispose of, hold, use or lease the Equipment in default, as GKF in its sole discretion may determine (and GKF shall not be obligated to give preference to the sale, lease or other disposition of the Equipment over the sale, lease or other disposition of similar Equipment owned or leased by GKF). In any event, Medical Center shall, without further demand, pay to GKF an amount equal to all sums due and payable for all periods up to and including the date on which GKF had declared this Agreement to be in default.
(g) In the event, that Medical Center shall have paid to GKF the liquidated damages referred to in (iii) above, GKF hereby agrees to pay to Medical Center promptly after receipt thereof, all rentals or proceeds received from the reletting or sale of the Equipment during the balance of the ten (10) year initial Term (after deduction of all expenses incurred by GKF; said amount never to exceed the amount of the liquidated damages paid by Medical Center). Medical Center agrees that GKF shall have no obligation to sell the Equipment. GKF shall use its best efforts to immediately release the Equipment under reasonable terms and conditions and to provide Medical Center evidence thereof. Medical Center shall in any event remain fully liable for reasonable damages as provided by law for all costs and expenses incurred by GKF on account of such default, including but not limited to, all court costs and reasonable attorneys' fees. Medical Center hereby agrees that, in any event, it shall be liable for any deficiency after any sale, lease or other disposition of the Equipment by GKF. The rights afforded GKF hereunder shall not be deemed to be exclusive, but shall be in addition to any other rights or remedies provided by law.
(h) Upon occurrence of an Event of Default by GKF, the Authority Medical Center shall be entitled to exercise any liquidated damages for losses of the bargain and not as a penalty in an amount equal to the cost of the leasehold provided by the Medical Center. GKF shall remain fully liable for reasonable damages as provided by law for all remedies available at law and/or in equitycosts and expenses incurred by the Medical Center on account of such default, including, including but not limited limited, to all court costs and reasonable attorneys' fees. The rights afforded the right to seek and sue for damages, any costs incurred to enforce, or attempt to enforce this Agreement, including reasonable attorneys fees, which enforcement Medical Center hereunder shall not be limiteddeemed to be exclusive, and may include appeals of but shall be in addition to any decisions in lower courts, as well as collection efforts thereafter, compensable damages and consequential damages, withhold and retain payment to the Contractor for the purpose of setoff until such time as the exact amount of damages due to the Authority from the Contractor is determined, seek injunctive relief and/or specific performance and such other equitable rights or remedies that are available, as well as effectuate a termination of this Agreement, which may or could give rise to additional damages. It is expressly understood that the Contractor will remain liable for any damages the Authority sustains in excess of any set-offprovided by law.
Appears in 1 contract
Sources: Lease Agreement (American Shared Hospital Services)
Events of Default and Remedies. 7.01 The (a) Each of the following acts and/or omissions shall events constitutes an “Event of Default” hereunder and any event that, with the passage of time or the giving of notice, or both, would constitute a default and material breach of this Agreement by the Contractor and shall be deemed an Event of Default if not cured within five shall constitute a “Default” hereunder: (5i) business days after written notice Borrower fails to pay any amount of default has been sent by the Authority to the Contractor, provided however, that if the default is principal and interest when due under any Note and such that more than five (5) days are required failure continues for a cure, then Contractor shall not be period of ten (10) days; (ii) any representation or warranty made by Borrower in default if it commences to cure the default within the five (5) day period and thereafter diligently prosecutes the same to completion:
(a) Failure to comply with any of the material terms and conditions of this Agreement following written notice from the Authority and failure to cure; and/or
(b) Failure to begin the Services in accordance with the terms of this Agreement, any Note or in any other Loan Document shall at any time prove to have been incorrect in any material respect as and when made; and/or
(ciii) If Borrower (A) fails to obtain and maintain the Contractorinsurance coverage required herein; or (B) fails to observe or perform any other covenant, condition or agreement under this Agreement, any Note or any other Loan Document and, in the judgment case of the Authorityclause (B), such failure continues unremedied for a period of fifteen (15) days; (iv) Borrower which is unnecessarily not an individual shall have consolidated with or unreasonably merged with or willfully delaying the performance and completion of the Services; and/or
(d) The Contractor abandons the Services to be undertaken; and/or
(e) The Authority reasonably believes that the Services cannot be completed within the time requiredinto another entity, where in the Authority’s judgmentor conveyed, the delay is attributable to conditions within the Contractor’s control; and/or
(f) The Contractor, without just cause, reduces its personnel to a number which in the judgment of the Authority, is insufficient to complete the Services within a reasonable time and fails to sufficiently increase such personnel when directed to do so by the Authority; and/or
(g) The Contractor assigns, transfers, conveys sold or otherwise disposes transferred all or substantially all of this Agreement, in whole, its assets or in part, without prior approval of the Authorityshall have failed to maintain its corporate existence; and/or
(hv) Any Authority officer Borrower that is an individual dies or employee acquires an interest in this Agreement so becomes permanently and totally disabled; (vi) Borrower (A) ceases doing business as to create a conflict of interestgoing concern; and/or
(iB) The Contractor violates any law, charter provision, ordinance, rule, regulation, governmental order or directive; and/or
(j) Failure to provide adequate inventory, vehicles, equipment and/or personnel; and/or
(k) The filing of a voluntary or involuntary petition in bankruptcy or for reorganization or an arrangement, or makes an assignment for the benefit of creditors, creditors or the adjudication of the Contractor as being bankrupt or insolvent, or the appointment of a receiver of, or for the Contractor if such appointment, adjudication, or similar order or ruling remains in force or unstayed for a period of thirty (30) days, or admit admits in writing its inability to pay its debts as they mature or generally fails to pay its debts as they become due; and/or
(lC) The Contractor’s level initiates any voluntary bankruptcy, reorganization, insolvency or similar proceeding; (D) fails to obtain the discharge of performance any bankruptcy, reorganization, insolvency or similar proceeding initiated against it by others within sixty (60) days of the Servicesdate such proceedings were initiated; (E) requests or consents to the appointment of a trustee, custodian or receiver or other officer with similar powers for itself or a substantial part of its property; or (F) a trustee, custodian or receiver or other officer with similar powers is appointed for itself or for a substantial part of its property; (vii) a default shall have occurred and be continuing under any contract, agreement or document between Borrower and Lender or any affiliate of Lender; (viii) nonpayment by Borrower of any Rate Management Obligation when due or the breach by Borrower of any term, provision, or condition contained in any Rate Management Agreement; (ix) a default shall have occurred and be continuing under any contract, agreement or document between Borrower and any of its other creditors, (x) if Borrower’s obligations are guaranteed by any other party, an “Event of Default” (under and as defined in the Guaranty executed by such Guarantor) shall occur; (xi) Lender shall have determined, in its sole discretion, that a material adverse change in Borrower’s existing or prospective financial condition, management or results of operations since the reasonable judgment date hereof which may affect the ability of Borrower to perform its obligations under the Loan Documents has occurred; or (xii) the owners of the Authority falls below capital stock or other units of ownership on the standard date of care set forth in Article II hereof and/or
(m) The Contractor ceases this Agreement entitled to conduct business vote for the election of the board of directors of Borrower or other similar governing body cease to own or do not have the unencumbered right to vote in the normal course, and/or
aggregate at least ninety percent (n90%) The Contractor fails to comply with any material terms, conditions and/or obligations of Contractor set forth hereinsuch capital stock or other ownership interest of Borrower.
(ob) The Contractor fails to pay Upon the occurrence of an Event of Default, Lender may, (i) at its option, declare all of the Obligations, including the entire unpaid principal of all Notes, all of the unpaid interest accrued therein, and all of the other sums (if any) payable by Borrower under this Agreement, any labor, tax obligations, fringe benefit funds, insurance premiumsNotes, or subcontractor invoices any of the other Loan Documents, to be immediately due and payable, plus three percent (3%) of the unpaid principal of all Notes declared due by Lender (as compensation for Services which the Contractor has received payment from the Authority.
7.02 In the Event of Default by the Contractorreinvestment costs and not as a penalty), the Authority shall be entitled and (ii) proceed to exercise any one or more of the following remedies and any additional rights and remedies permitted by law (none of which shall be exclusive), all remedies available of which are hereby authorized by Borrower:
(i) Borrower shall upon demand assemble or cause to be assembled any or all of the Equipment at a location designated by Lender; and/or to return promptly, at Borrower’s expense, any or all of the Equipment to Lender at such location;
(ii) Lender may itself or by its agents enter upon the premises of Borrower or any other location where the Equipment is located and take possession of and render unusable by Borrower any or all of the Equipment, wherever it may be located, without any court order or other process of law and/or and without liability for any damages occasioned by such taking of possession;
(iii) Sell, lease or otherwise dispose of any or all of the Equipment, whether or not in equityLender’s possession, includingat public or private sale with or without notice to Borrower, with the right of Lender to purchase and apply the net proceeds of such disposition, after deducting all costs of such disposition (including but not limited to costs of transportation, possession, storage, refurbishing, advertising and brokers’ fees), to the right to seek obligations of Borrower under the Notes and sue the other Loan Documents, with Borrower remaining liable for damages, any costs incurred to enforcedeficiency, or attempt retain any and all of the Equipment;
(iv) Proceed by appropriate court action, either at law or in equity (including an action for specific performance), to enforce performance by Borrower or to recover damages associated with such Event of Default; or exercise any other right or remedy available to Lender at law or in equity; and
(v) By offset, recoupment or other manner of application, apply any security deposit, monies held in deposit or other sums then held by Lender or any affiliate of Lender, and with respect to which Borrower has an interest, against any obligations of Borrower arising under this Agreement, any Notes or any other Loan Document, whether or not Borrower has pledged, assigned or granted a security interest to Lender in any or all such sums as collateral for said obligations.
(c) Borrower shall indemnify, defend and hold Lender harmless for any loss, personal injury (including reasonable attorneys feesdeath), which enforcement or damage to property, suffered by Lender, its employees or any of its agents in connection with its entry onto the premises of Borrower or any third party hereunder. Each of the rights and remedies of Lender hereunder and under the other Loan Documents is in addition to all of its other rights and remedies hereunder, under the other Loan Documents and under applicable law and nothing in this Agreement or any other Loan Document shall be construed as limiting any such right or remedy. Lender’s failure to exercise or delay in exercising any right, power or remedy available to Lender shall not constitute a waiver or otherwise affect or impair its rights to the future exercise of any such right, power or remedy. Waiver by Lender of any Event of Default shall not be limiteda waiver by Lender of any other or subsequent Events of Default.
(d) Borrower shall notify Lender in writing of the occurrence of an Event of Default pursuant to this Agreement promptly after such Event of Default has occurred, and may include appeals of in any decisions in lower courts, as well as collection efforts event within ten (10) days thereafter, compensable damages and consequential damages, withhold and retain payment to the Contractor for the purpose of setoff until such time as the exact amount of damages due to the Authority from the Contractor is determined, seek injunctive relief and/or specific performance and such other equitable remedies that are available, as well as effectuate a termination of this Agreement, which may or could give rise to additional damages. It is expressly understood that the Contractor will remain liable for any damages the Authority sustains in excess of any set-off.
Appears in 1 contract
Sources: Master Loan and Security Agreement (Banyan Rail Services Inc.)
Events of Default and Remedies. 7.01 The following acts and/or omissions shall constitute a default and material breach of this Agreement by the Contractor and shall be deemed an Event of Default if not cured within five (5) business days after written notice of default has been sent by the Authority to the Contractor, provided however, that if the default is such that more than five (5) days are required for a cure, then Contractor shall not be in default if it commences to cure the default within the five (5) day period and thereafter diligently prosecutes the same to completion:
(a) Failure to comply with Notwithstanding any cure periods described below, the Company shall immediately notify Holder in writing when the Company obtains knowledge of the material terms and conditions occurrence of this Agreement following written notice from any default specified below. Regardless of whether the Authority and failure to cure; and/or
(b) Failure to begin Company has given the Services in accordance with required notice, the terms occurrence of this Agreement; and/or
(c) If the Contractor, in the judgment one or more of the Authority, is unnecessarily or unreasonably or willfully delaying the performance and completion following will constitute an “Event of the Services; and/or
(d) The Contractor abandons the Services to be undertaken; and/or
(e) The Authority reasonably believes that the Services cannot be completed within the time required, where in the Authority’s judgment, the delay is attributable to conditions within the Contractor’s control; and/or
(f) The Contractor, without just cause, reduces its personnel to a number which in the judgment of the Authority, is insufficient to complete the Services within a reasonable time and fails to sufficiently increase such personnel when directed to do so by the Authority; and/or
(g) The Contractor assigns, transfers, conveys or otherwise disposes of Default” under this Agreement, in whole, or in part, without prior approval of the Authority; and/or
(h) Any Authority officer or employee acquires an interest in this Agreement so as to create a conflict of interest; and/orSubordinated Note:
(i) The Contractor violates the Company fails to pay any lawprincipal of or installment of interest on this Subordinated Note when due after a 15-day grace period;
(ii) the Company fails to keep or perform any of its agreements, charter provisionundertakings, ordinanceobligations, rulecovenants or conditions under the Purchase Agreement or this Subordinated Note not expressly referred to in another clause of this Section 8 and such failure continues for a period of thirty (30) days after the Company has received written notice thereof;
(iii) any certification made pursuant to the Purchase Agreement by the Company or otherwise made in writing in connection with or as contemplated by the Purchase Agreement or this Subordinated Note by the Company shall be materially incorrect or false as of the delivery date of such certification, regulation, governmental or any representation to Holder by the Company as to the financial condition or credit standing of the Company is or proves to be false or misleading;
(iv) the dissolution of the Company;
(v) any order or directive; and/ordecree is entered by any court of competent jurisdiction directly or indirectly enjoining or prohibiting Holder or the Company from performing any of their obligations under the Purchase Agreement or this Subordinated Note, and such order or decree is not vacated, and the proceedings out of which such order or decree arose are not dismissed, within sixty (60) days after the granting of such decree or order;
(jvi) Failure the Company (a) becomes insolvent or is unable to provide adequate inventorypay its debts as they mature, vehicles, equipment and/or personnel; and/or
(kb) The filing of a voluntary or involuntary petition in bankruptcy or for reorganization or an arrangement, or makes an assignment for the benefit of creditors, or the adjudication of the Contractor as being bankrupt or insolvent, or the appointment of a receiver of, or for the Contractor if such appointment, adjudication, or similar order or ruling remains in force or unstayed for a period of thirty (30c) days, or admit admits in writing its inability to pay its debts generally as they become due; and/ormature, or (d) ceases to be a bank holding company or financial holding company under the Bank Holding Company Act of 1956, as amended;
(lvii) The Contractor’s level a court or other governmental agency or body having jurisdiction on the premises shall enter a decree or order for the appointment of performance a receiver, liquidator, trustee or other similar official in any liquidation, insolvency or similar proceeding with respect to the Company or all or substantially all of the Servicesproperty of the Company or of the winding up of the affairs or business of the Company, and within sixty (60) days after the entry of such order or such appointment, such order or appointment is not vacated or stayed on appeal or otherwise, or shall not otherwise have ceased to continue in effect; or
(viii) the Company applies for, consents to or acquiesces in the reasonable judgment appointment of the Authority falls below the standard of care set forth in Article II hereof and/or
(m) The Contractor ceases to conduct business a receiver or conservator for itself, or in the normal courseabsence of such application, and/or
(n) The Contractor fails to comply with any material termsconsent or acquiescence, conditions and/or obligations of Contractor set forth herein.
(o) The Contractor fails to pay any labor, tax obligations, fringe benefit funds, insurance premiums, a receiver or subcontractor invoices for Services which the Contractor has received payment from the Authority.
7.02 In the Event of Default by the Contractor, the Authority shall be entitled to exercise any and all remedies available at law and/or in equity, including, but not limited to the right to seek and sue for damages, any costs incurred to enforce, or attempt to enforce this Agreement, including reasonable attorneys fees, which enforcement shall not be limited, and may include appeals of any decisions in lower courts, as well as collection efforts thereafter, compensable damages and consequential damages, withhold and retain payment to the Contractor conservator is appointed for the purpose of setoff until such time as the exact amount of damages due to the Authority from the Contractor is determined, seek injunctive relief and/or specific performance and such other equitable remedies that are available, as well as effectuate a termination of this Agreement, which may or could give rise to additional damages. It is expressly understood that the Contractor will remain liable for any damages the Authority sustains in excess of any set-offCompany.
Appears in 1 contract
Sources: Subordinated Note Purchase Agreement (Eagle Bancorp Montana, Inc.)
Events of Default and Remedies. 7.01 The following acts and/or omissions shall constitute a default and material breach 10.1 Notwithstanding any provision of this Financing Agreement to the contrary, Agent may terminate this Financing Agreement immediately upon the occurrence of any of the following (herein "Events of Default"):
(a) cessation of the business of Parent, any Company or any Guarantor or the calling of a meeting of the creditors of any of them for purposes of compromising the debts and obligations of any Company;
(b) the failure of the Parent, any Company or any Guarantor to generally meet its debts as those debts mature;
(c) the commencement by or against the Contractor Parent, any Company or any Guarantor of any bankruptcy, insolvency, arrangement, reorganization, receivership or similar proceedings under any federal or state law, provided that in the event of any involuntary proceeding commenced against any Company and such proceeding is not dismissed or discharged within thirty (30) days after commencement thereof;
(i) breach by any Company of any covenant contained herein (other than those referred to in paragraph (e) below) or in any of the other Loan Documents, provided that such breach by any Company of any of the covenants referenced in this paragraph (d) shall not be deemed to be an Event of Default if not cured within five unless and until such breach shall remain unremedied to Agent's satisfaction for a period of fifteen (5) business days after written notice of default has been sent by the Authority to the Contractor, provided however, that if the default is such that more than five (515) days are required for a cure, then Contractor shall not be in default if it commences to cure the default within the five (5) day period and thereafter diligently prosecutes the same to completion:
(a) Failure to comply with any of the material terms and conditions of this Agreement following written notice from the Authority and failure to cure; and/or
date of such breach or (bii) Failure to begin the Services any representation or warranty contained herein shall be false or misleading in accordance with the terms of this Agreement; and/or
(c) If the Contractor, in the judgment of the Authority, is unnecessarily any material respect when made or unreasonably or willfully delaying the performance and completion of the Services; and/or
(d) The Contractor abandons the Services to be undertaken; and/orremade;
(e) The Authority reasonably believes that breach by any Company of any warranty, representation or covenant of Sections 3.3 (other than the Services cannot be completed within third sentence of Section 3.3) ------------ ------------ and 3.4, Section 4, Sections 6.3 and 6.4 (other than the time requiredfirst sentence --- --------- ----------- --- of Section 6.4), where in the Authority’s judgmentand Sections 7.1, the delay is attributable to conditions within the Contractor’s control7.5, 7.6, 7.9 through 7.11, ----------- ------------ --- --- --- ---- inclusive, and 7.16; and/or---
(f) The Contractor, without just cause, reduces its personnel failure of any Company to a number which in the judgment pay any of the AuthorityObligations on the due date thereof, is insufficient provided that nothing contained herein shall prohibit the Agent from charging such amounts to complete the Services within a reasonable time and fails to sufficiently increase such personnel when directed to do so by Companies' Revolving Loan Account on the Authority; and/ordue date thereof;
(g) The Contractor assigns, transfers, conveys or otherwise disposes of this Agreement, in whole, or in part, without prior approval of the Authority; and/or
(h) Any Authority officer or employee acquires an interest in this Agreement so as to create a conflict of interest; and/or
any Company shall (i) The Contractor violates engage in any law"prohibited transaction" as defined in ERISA, charter provision(ii) incur any "accumulated funding deficiency" as defined in ERISA, ordinance(iii) incur any "Reportable Event" as defined in ERISA, rule(iv) terminate any "Plan", regulation, governmental order subject to Title IV of ERISA or directive; and/or
(jv) Failure to provide adequate inventory, vehicles, equipment and/or personnel; and/or
(k) The filing of a voluntary or involuntary petition engage in bankruptcy or for reorganization or an arrangementany proceeding in which the Pension Benefit Guaranty Corporation shall seek appointment, or an assignment for the benefit is appointed, as trustee or administrator of creditorsany Plan, as defined in ERISA; and with respect to this paragraph (g) such event or the adjudication of the Contractor as being bankrupt or insolvent, or the appointment of a receiver of, or for the Contractor if such appointment, adjudication, or similar order or ruling condition (x) remains in force or unstayed uncured for a period of thirty (30) daysdays from date of occurrence and (y) could subject any Company to any tax, penalty or other liability that could reasonably be expected to have a Material Adverse Effect;
(h) a default (after all applicable cure periods with respect thereto have expired) or an "Event of Default" shall occur under any of the other Loan Documents;
(i) without the prior written consent of Agent, any Company shall either (i) amend or modify the Subordinated Debt, or admit (ii) make any payment on account of or in writing its inability to pay its debts generally connection with any Subordinated Debt including, without limitation, the Term Financiers Loan Documents or the ▇.▇. ▇▇▇▇▇ Loan Documents, except as they become due; and/orexpressly permitted in the applicable Subordination Agreement;
(lj) The Contractor’s level the occurrence of performance any event of default (after giving effect to any applicable grace or cure periods) under any instrument or agreement evidencing either (i) the Subordinated Debt or (ii) any other Indebtedness of any Company having a principal amount in excess of Two Million Five Hundred Thousand Dollars ($2,500,000); or
(k) a default (after all applicable cure periods with respect thereto have expired) or an "Event of Default" shall occur under any of the ServicesLease Documents.
10.2 Upon the occurrence of an Event of Default, the Agent may, at its option, and the Agent shall, upon the request of the Required Lenders, declare that all loans, advances and extensions of credit provided for in Sections 3, 4 and 5 of this Financing Agreement ------------- - thereafter shall be made in the reasonable judgment Lender's sole discretion, and the obligation of the Authority falls below Lenders to make Revolving Loans and/or open Letters of Credit shall cease unless such Event of Default is waived. In addition, upon the standard occurrence of care set forth an Event of Default, the Agent may, at its option, and the Agent shall, upon the request of the Required Lenders: (a) declare all Obligations immediately due and payable; (b) charge each Company the Default Rate of Interest on all then outstanding or thereafter incurred Obligations in Article II hereof and/or
lieu of the interest provided for in Section 8 of this Financing Agreement, provided that with respect to --------- this clause (m) The Contractor ceases to conduct business in b), the normal course, and/or
(n) The Contractor fails to comply with any material terms, conditions and/or obligations Agent gives Representative written notice of Contractor set forth herein.
(o) The Contractor fails to pay any labor, tax obligations, fringe benefit funds, insurance premiums, or subcontractor invoices for Services which the Contractor has received payment from the Authority.
7.02 In the Event of Default (provided that no notice is required if the Event of Default is the Event listed in paragraph (c) of Section 10.1) and the ------------ Companies fail to cure the Event of Default to the Agent's satisfaction within ten (10) days after Representative is deemed to have received such notice hereunder (or within 10 days of the occurrence of the Event of Default, in the case of an Event of Default listed in paragraph (c) of Section 10.1); and (c) immediately terminate this Financing Agreement ------------ upon notice to Representative, provided that no notice of termination is required in the case of an Event of Default listed in paragraph (c) of Section 10.1. The exercise of any option is not exclusive of any other ------------ option which may be exercised at any time by the Contractor, Agent or the Authority shall be entitled to exercise any and all remedies available at law and/or in equity, including, but not limited to the right to seek and sue for damages, any costs incurred to enforce, or attempt to enforce this Agreement, including reasonable attorneys fees, which enforcement shall not be limited, and may include appeals of any decisions in lower courts, as well as collection efforts thereafter, compensable damages and consequential damages, withhold and retain payment to the Contractor for the purpose of setoff until such time as the exact amount of damages due to the Authority from the Contractor is determined, seek injunctive relief and/or specific performance and such other equitable remedies that are available, as well as effectuate a termination of this Agreement, which may or could give rise to additional damages. It is expressly understood that the Contractor will remain liable for any damages the Authority sustains in excess of any set-offLenders.
Appears in 1 contract
Events of Default and Remedies. 7.01 The occurrence of any one of the following acts and/or omissions shall constitute a default and material breach of this Agreement by the Contractor and shall be deemed an Event of Default if not cured within five (5) business days after written notice of default has been sent by the Authority to the Contractor, provided however, that if the default is such that more than five (5) days are required for a cure, then Contractor shall not be in default if it commences to cure the default within the five (5) day period and thereafter diligently prosecutes the same to completionhereunder:
(a) Failure Medical Center fails to comply with pay any installment of semi-monthly procedure payments when due when such default continues for a period of thirty (30) days after notice thereof from GKF or its assignee is given to Medical Center, unless Medical Center disputes the material terms and conditions of this Agreement following written notice from the Authority and failure installment payment, such as, without limitation, an incomplete procedure due to cure; and/orfaulty Equipment.
(b) Failure Medical Center attempts to begin remove, sell, transfer, encumber, sublet or part with possession of the Services in accordance with the terms of this Agreement; and/orEquipment or any items thereof, except as expressly permitted herein;
(c) If the Contractor, in the judgment Either party shall fail to observe or perform any of the Authority, is unnecessarily other obligations required to be observed or unreasonably or willfully delaying performed by such party hereunder and such failure shall continue uncured for twenty (20) days after written notice thereof to the performance and completion of defaulting party by the Services; and/orother party;
(d) The Contractor abandons the Services to be undertaken; and/or
(e) The Authority reasonably believes that the Services cannot be completed within the time requiredEither party ceases doing business as a going concern, where in the Authority’s judgment, the delay is attributable to conditions within the Contractor’s control; and/or
(f) The Contractor, without just cause, reduces its personnel to a number which in the judgment of the Authority, is insufficient to complete the Services within a reasonable time and fails to sufficiently increase such personnel when directed to do so by the Authority; and/or
(g) The Contractor assigns, transfers, conveys or otherwise disposes of this Agreement, in whole, or in part, without prior approval of the Authority; and/or
(h) Any Authority officer or employee acquires an interest in this Agreement so as to create a conflict of interest; and/or
(i) The Contractor violates any law, charter provision, ordinance, rule, regulation, governmental order or directive; and/or
(j) Failure to provide adequate inventory, vehicles, equipment and/or personnel; and/or
(k) The filing of a voluntary or involuntary petition in bankruptcy or for reorganization or an arrangement, or makes an assignment for the benefit of creditors, or the adjudication of the Contractor as being bankrupt or insolvent, or the appointment of a receiver of, or for the Contractor if such appointment, adjudication, or similar order or ruling remains in force or unstayed for a period of thirty (30) days, or admit admits in writing its inability to pay its debts generally as they become due; and/or
(l) The Contractor’s level , files a voluntary petition in bankruptcy, is adjudicated a bankrupt or an insolvent, files a petition seeking for itself any reorganization, arrangement, composition, readjustment, liquidation, dissolution or similar arrangement under any present or future statute, law or regulation or files an answer admitting the material allegations of performance of the Servicesa petition filed against it in any such proceeding, consents to or acquiesces in the reasonable judgment appointment of the Authority falls below the standard a trustee, receiver, or liquidator of care set forth in Article II hereof and/or
(m) The Contractor ceases it or of all or any substantial part of its assets or properties, or it or its shareholders shall take any action looking to conduct business in the normal course, and/or
(n) The Contractor fails to comply with any material terms, conditions and/or obligations of Contractor set forth hereinits dissolution or liquidation.
(oe) The Contractor fails to pay Within sixty (60) days after the commencement of any laborproceedings against either party seeking reorganization, tax obligationsarrangement, fringe benefit fundsreadjustment, insurance premiumsliquidation, dissolution or similar relief under any present or future statute, law or regulation, such proceedings shall not have been dismissed, or subcontractor invoices for Services which if within thirty (30) days after the Contractor has received payment from the Authorityappointment without such party's consent or acquiescence of any trustee, receiver or liquidator of it or of all or any substantial part of its assets and properties, such appointment shall not be vacated.
7.02 In (f) Upon the occurrence of an Event of Default by Medical Center, GKF may at its option do any or all of the Contractorfollowing: (i) by notice to Medical Center, terminate this Agreement as to the Equipment in default, wherever situated, and for such purposes, enter upon the Site without liability for so doing or GKF may cause Medical Center and Medical Center hereby agrees to return the Equipment to GKF at Medical Center's sole cost and expense; (ii) recover from, as liquidated damages for the loss of the bargain and not as a penalty, an amount equal to the present value of the unpaid estimated future lease payments by Medical Center to GKF through the end of the Agreement term discounted at the rate of nine percent (9%), which payment shall become immediately due and payable. Unpaid estimated future lease payments shall be based on the prior 12 months lease payments with an annual five (5%) percent increase; (iii) sell, dispose of, hold, use or lease the Equipment in default, as GKF in its sole discretion may determine (and GKF shall not be obligated to give preference to the sale, lease or other disposition of the Equipment over the sale, lease or other disposition of similar Equipment owned or leased by GKF). In any event, Medical Center shall, without further demand, pay to GKF an amount equal to all sums due and payable for all periods up to and including the date on which GKF had declared this Agreement to be in default.
(g) In the event, that Medical Center shall have paid to GKF the liquidated damages referred to in (iii) above, GKF hereby agrees to pay to Medical Center promptly after receipt thereof, all rentals or proceeds received from the reletting or sale of the Equipment during the balance of the ten (10) year initial Term (after deduction of all expenses incurred by GKF; said amount never to exceed the amount of the liquidated damages paid by Medical Center). Medical Center agrees that GKF shall have no obligation to sell the Equipment. Medical Center shall in any event remain fully liable for reasonable damages as provided by law for all costs and expenses incurred by GKF on account of such default, including but not limited to, all court costs and reasonable attorneys' fees. Medical Center hereby agrees that, in any event, it shall be liable for any deficiency after any sale, lease or other disposition of the Equipment by GKF. The rights afforded GKF hereunder shall not be deemed to be exclusive, but shall be in addition to any other rights or remedies provided by law.
(h) Upon occurrence of an Event of Default by GKF, the Authority Medical Center shall be entitled to exercise any liquidated damages for losses of the bargain and not as a penalty in an amount equal to the cost of the leasehold provided by the Medical Center. GKF shall remain fully liable for reasonable damages as provided by law for all remedies available at law and/or in equitycosts and expenses incurred by the Medical Center on account of such default, including, including but not limited limited, to all court costs and reasonable attorneys' fees. The rights afforded the right to seek and sue for damages, any costs incurred to enforce, or attempt to enforce this Agreement, including reasonable attorneys fees, which enforcement Medical Center hereunder shall not be limiteddeemed to be exclusive, and may include appeals of but shall be in addition to any decisions in lower courts, as well as collection efforts thereafter, compensable damages and consequential damages, withhold and retain payment to the Contractor for the purpose of setoff until such time as the exact amount of damages due to the Authority from the Contractor is determined, seek injunctive relief and/or specific performance and such other equitable rights or remedies that are available, as well as effectuate a termination of this Agreement, which may or could give rise to additional damages. It is expressly understood that the Contractor will remain liable for any damages the Authority sustains in excess of any set-offprovided by law.
Appears in 1 contract
Sources: Lease Agreement (American Shared Hospital Services)
Events of Default and Remedies. 7.01 The (a) Each of the following acts and/or omissions shall events constitutes an “Event of Default” hereunder and any event that, with the passage of time or the giving of notice, or both, would constitute a default and material breach of this Agreement by the Contractor and shall be deemed an Event of Default if not cured within five shall constitute a “Default” hereunder: (5i) business days after written notice Borrowers fail to pay any amount of default has been sent by the Authority to the Contractor, provided however, that if the default is principal and interest when due under any Note and such that more than five (5) days are required failure continues for a cure, then Contractor shall not be period of ten (10) days; (ii) any representation or warranty made by any Borrower in default if it commences to cure the default within the five (5) day period and thereafter diligently prosecutes the same to completion:
(a) Failure to comply with any of the material terms and conditions of this Agreement following written notice from the Authority and failure to cure; and/or
(b) Failure to begin the Services in accordance with the terms of this Agreement, any Note or in any other Loan Document shall at any time prove to have been incorrect in any material respect as and when made; and/or
(ciii) If Borrowers (A) fail to obtain and maintain the Contractorinsurance coverage required herein; or (B) fail to observe or perform any other covenant, condition or agreement under this Agreement, any Note or any other Loan Document and, in the judgment case of the Authorityclause (B), such failure continues unremedied for a period of fifteen (15) days; (iv) any Borrower which is unnecessarily not an individual shall have consolidated with or unreasonably merged with or willfully delaying the performance and completion of the Services; and/or
(d) The Contractor abandons the Services to be undertaken; and/or
(e) The Authority reasonably believes that the Services cannot be completed within the time requiredinto another entity, where in the Authority’s judgmentor conveyed, the delay is attributable to conditions within the Contractor’s control; and/or
(f) The Contractor, without just cause, reduces its personnel to a number which in the judgment of the Authority, is insufficient to complete the Services within a reasonable time and fails to sufficiently increase such personnel when directed to do so by the Authority; and/or
(g) The Contractor assigns, transfers, conveys sold or otherwise disposes transferred all or substantially all of this Agreement, in whole, its assets or in part, without prior approval of the Authorityshall have failed to maintain its corporate existence; and/or
(hv) Any Authority officer any Borrower that is an individual dies or employee acquires an interest in this Agreement so becomes permanently and totally disabled; (vi) any Borrower (A) ceases doing business as to create a conflict of interestgoing concern; and/or
(iB) The Contractor violates any law, charter provision, ordinance, rule, regulation, governmental order or directive; and/or
(j) Failure to provide adequate inventory, vehicles, equipment and/or personnel; and/or
(k) The filing of a voluntary or involuntary petition in bankruptcy or for reorganization or an arrangement, or makes an assignment for the benefit of creditors, creditors or the adjudication of the Contractor as being bankrupt or insolvent, or the appointment of a receiver of, or for the Contractor if such appointment, adjudication, or similar order or ruling remains in force or unstayed for a period of thirty (30) days, or admit admits in writing its inability to pay its debts as they mature or generally fails to pay its debts as they become due; and/or
(lC) The Contractor’s level initiates any voluntary bankruptcy, reorganization, insolvency or similar proceeding; (D) fails to obtain the discharge of performance any bankruptcy, reorganization, insolvency or similar proceeding initiated against it by others within sixty (60) days of the Servicesdate such proceedings were initiated; (E) requests or consents to the appointment of a trustee, custodian or receiver or other officer with similar powers for itself or a substantial part of its property; or (F) a trustee, custodian or receiver or other officer with similar powers is appointed for itself or for a substantial part of its property; (vii) a default shall have occurred and be continuing under any contract, agreement or document between any Borrower and Lender or any affiliate of Lender; (viii) nonpayment by any Borrower of any Rate Management Obligation when due or the breach by any Borrower of any term, provision, or condition contained in any Rate Management Agreement; (ix) a default shall have occurred and be continuing under any contract, agreement or document between any Borrower and any of its other creditors, (x) if Borrowers’ obligations are guaranteed by any other party, an “Event of Default” (under and as defined in the Guaranty executed by such Guarantor) shall occur; (xi) Lender shall have determined, in its sole discretion, that a material adverse change in Borrowers’ existing or prospective financial condition, management or results of operations since the reasonable judgment date hereof which may affect the ability of Borrowers to perform their obligations under the Loan Documents has occurred; or (xii) both the President and the CEO of Borrower depart the company, and/or one single person or entity comes to own 50.1% or more of the Authority falls below the standard capital stock or other ownership interest of care set forth in Article II hereof and/or
(m) The Contractor ceases to conduct business in the normal course, and/or
(n) The Contractor fails to comply with any material terms, conditions and/or obligations of Contractor set forth hereinsuch Borrower.
(ob) The Contractor fails to pay Upon the occurrence of an Event of Default, Lender may, (i) at its option, declare all of the Obligations, including the entire unpaid principal of all Notes, all of the unpaid interest accrued therein, and all of the other sums (if any) payable by Borrowers under this Agreement, any labor, tax obligations, fringe benefit funds, insurance premiumsNotes, or subcontractor invoices any of the other Loan Documents, to be immediately due and payable, plus three percent (3%) of the unpaid principal of all Notes declared due by Lender (as compensation for Services which the Contractor has received payment from the Authority.
7.02 In the Event of Default by the Contractorreinvestment costs and not as a penalty), the Authority shall be entitled and (ii) proceed to exercise any one or more of the following remedies and any additional rights and remedies permitted by law (none of which shall be exclusive), all remedies available of which are hereby authorized by Borrowers:
(i) Borrowers shall upon demand assemble or cause to be assembled any or all of the Equipment at a location designated by Lender; and/or to return promptly, at Borrowers’ expense, any or all of the Equipment to Lender at such location;
(ii) Lender may itself or by its agents enter upon the premises of any Borrower or any other location where the Equipment is located and take possession of and render unusable by Borrowers any or all of the Equipment, wherever it may be located, without any court order or other process of law and/or and without liability for any damages occasioned by such taking of possession;
(iii) Sell, lease or otherwise dispose of any or all of the Equipment, whether or not in equityLender’s possession, includingat public or private sale with or without notice to Borrowers, with the right of Lender to purchase and apply the net proceeds of such disposition, after deducting all costs of such disposition (including but not limited to costs of transportation, possession, storage, refurbishing, advertising and brokers’ fees), to the right to seek obligations of Borrowers under the Notes and sue the other Loan Documents, with Borrowers remaining liable for damages, any costs incurred to enforcedeficiency, or attempt retain any and all of the Equipment;
(iv) Proceed by appropriate court action, either at law or in equity (including an action for specific performance), to enforce performance by Borrowers or to recover damages associated with such Event of Default; or exercise any other right or remedy available to Lender at law or in equity; and
(v) By offset, recoupment or other manner of application, apply any security deposit, monies held in deposit or other sums then held by Lender or any affiliate of Lender, and with respect to which any Borrower has an interest, against any obligations of such Borrower arising under this Agreement, any Notes or any other Loan Document, whether or not such Borrower has pledged, assigned or granted a security interest to Lender in any or all such sums as collateral for said obligations.
(c) Borrowers shall indemnify, defend and hold Lender harmless for any loss, personal injury (including reasonable attorneys feesdeath), which enforcement or damage to property, suffered by Lender, its employees or any of its agents in connection with its entry onto the premises of Borrowers or any third party hereunder. Each of the rights and remedies of Lender hereunder and under the other Loan Documents is in addition to all of its other rights and remedies hereunder, under the other Loan Documents and under applicable law and nothing in this Agreement or any other Loan Document shall be construed as limiting any such right or remedy. Lender’s failure to exercise or delay in exercising any right, power or remedy available to Lender shall not constitute a waiver or otherwise affect or impair its rights to the future exercise of any such right, power or remedy. Waiver by Lender of any Event of Default shall not be limiteda waiver by Lender of any other or subsequent Events of Default.
(d) Borrowers shall notify Lender in writing of the occurrence of an Event of Default pursuant to this Agreement promptly after such Event of Default has occurred, and may include appeals of in any decisions in lower courts, as well as collection efforts event within ten (10) days thereafter, compensable damages and consequential damages, withhold and retain payment to the Contractor for the purpose of setoff until such time as the exact amount of damages due to the Authority from the Contractor is determined, seek injunctive relief and/or specific performance and such other equitable remedies that are available, as well as effectuate a termination of this Agreement, which may or could give rise to additional damages. It is expressly understood that the Contractor will remain liable for any damages the Authority sustains in excess of any set-off.
Appears in 1 contract
Sources: Master Loan and Security Agreement (Innovative Food Holdings Inc)
Events of Default and Remedies. 7.01 The (a) Each of the following acts and/or omissions shall events constitutes an “Event of Default” hereunder and any event that, with the passage of time or the giving of notice, or both, would constitute a default and material breach of this Agreement by the Contractor and shall be deemed an Event of Default if not cured within five shall constitute a “Default” hereunder: (5i) business days after written notice Borrower fails to pay any amount of default has been sent by the Authority to the Contractor, provided however, that if the default is principal and interest when due under any Note and such that more than five (5) days are required failure continues for a cure, then Contractor shall not be period of ten (10) days; (ii) any representation or warranty made by Borrower in default if it commences to cure the default within the five (5) day period and thereafter diligently prosecutes the same to completion:
(a) Failure to comply with any of the material terms and conditions of this Agreement following written notice from the Authority and failure to cure; and/or
(b) Failure to begin the Services in accordance with the terms of this Agreement, any Note or in any other Loan Document shall at any time prove to have been incorrect in any material respect as and when made; and/or
(ciii) If Borrower (A) fails to obtain and maintain the Contractorinsurance coverage required herein; or (B) fails to observe or perform any other covenant, condition or agreement under this Agreement, any Note or any other Loan Document and, in the judgment case of the Authorityclause (B), such failure continues unremedied for a period of fifteen (15) days; (iv) Borrower which is unnecessarily not an individual shall have consolidated with or unreasonably merged with or willfully delaying the performance and completion of the Services; and/or
(d) The Contractor abandons the Services to be undertaken; and/or
(e) The Authority reasonably believes that the Services cannot be completed within the time requiredinto another entity, where in the Authority’s judgmentor conveyed, the delay is attributable to conditions within the Contractor’s control; and/or
(f) The Contractor, without just cause, reduces its personnel to a number which in the judgment of the Authority, is insufficient to complete the Services within a reasonable time and fails to sufficiently increase such personnel when directed to do so by the Authority; and/or
(g) The Contractor assigns, transfers, conveys sold or otherwise disposes transferred all or substantially all of this Agreement, in whole, its assets or in part, without prior approval of the Authorityshall have failed to maintain its corporate existence; and/or
(hv) Any Authority officer Borrower that is an individual dies or employee acquires an interest in this Agreement so becomes permanently and totally disabled; (vi) Borrower (A) ceases doing business as to create a conflict of interestgoing concern; and/or
(iB) The Contractor violates any law, charter provision, ordinance, rule, regulation, governmental order or directive; and/or
(j) Failure to provide adequate inventory, vehicles, equipment and/or personnel; and/or
(k) The filing of a voluntary or involuntary petition in bankruptcy or for reorganization or an arrangement, or makes an assignment for the benefit of creditors, creditors or the adjudication of the Contractor as being bankrupt or insolvent, or the appointment of a receiver of, or for the Contractor if such appointment, adjudication, or similar order or ruling remains in force or unstayed for a period of thirty (30) days, or admit admits in writing its inability to pay its debts as they mature or generally fails to pay its debts as they become due; and/or
(lC) The Contractor’s level initiates any voluntary bankruptcy, reorganization, insolvency or similar proceeding; (D) fails to obtain the discharge of performance any bankruptcy, reorganization, insolvency or similar proceeding initiated against it by others within sixty (60) days of the Servicesdate such proceedings were initiated; (E) requests or consents to the appointment of a trustee, custodian or receiver or other officer with similar powers for itself or a substantial part of its property; or (F) a trustee, custodian or receiver or other officer with similar powers is appointed for itself or for a substantial part of its property; (vii) a default shall have occurred and be continuing under any contract, agreement or document between Borrower and Lender or any affiliate of Lender; (viii) a default shall have occurred and be continuing under any contract, agreement or document between Borrower and any of its other creditors, (ix) if Borrower’s obligations are guaranteed by any other party, an “Event of Default” (under and as defined in the Guaranty executed by such Guarantor) shall occur; (x) Lender shall have determined, in its sole discretion, that a material adverse change in Borrower’s existing or prospective financial condition, management or results of operations since the reasonable judgment date hereof which may affect the ability of Borrower to perform its obligations under the Loan Documents has occurred; or (xi) the owners of the Authority falls below capital stock or other units of ownership on the standard date of care set forth in Article II hereof and/or
(m) The Contractor ceases this Agreement entitled to conduct business vote for the election of the board of directors of Borrower or other similar governing body cease to own or do not have the unencumbered right to vote in the normal course, and/or
aggregate at least ninety percent (n90%) The Contractor fails to comply with any material terms, conditions and/or obligations of Contractor set forth hereinsuch capital stock or other ownership interest of Borrower.
(ob) The Contractor fails to pay Upon the occurrence of an Event of Default, Lender may, (i) at its option, declare all of the Obligations, including the entire unpaid principal of all Notes, all of the unpaid interest accrued therein, and all of the other sums (if any) payable by Borrower under this Agreement, any labor, tax obligations, fringe benefit funds, insurance premiumsNotes, or subcontractor invoices any of the other Loan Documents, to be immediately due and payable, plus three percent (3%) of the unpaid principal of all Notes declared due by Lender (as compensation for Services which the Contractor has received payment from the Authority.
7.02 In the Event of Default by the Contractorreinvestment costs and not as a penalty), the Authority shall be entitled and (ii) proceed to exercise any one or more of the following remedies and any additional rights and remedies permitted by law (none of which shall be exclusive), all remedies available of which are hereby authorized by Borrower:
(i) Borrower shall upon demand assemble or cause to be assembled any or all of the Equipment at a location designated by Lender; and/or to return promptly, at Borrower’s expense, any or all of the Equipment to Lender at such location;
(ii) Lender may itself or by its agents enter upon the premises of Borrower or any other location where the Equipment is located and take possession of and render unusable by Borrower any or all of the Equipment, wherever it may be located, without any court order or other process of law and/or and without liability for any damages occasioned by such taking of possession;
(iii) Sell, lease or otherwise dispose of any or all of the Equipment, whether or not in equityLender’s possession, includingat public or private sale with or without notice to Borrower, with the right of Lender to purchase and apply the net proceeds of such disposition, after deducting all costs of such disposition (including but not limited to costs of transportation, possession, storage, refurbishing, advertising and brokers’ fees), to the right to seek obligations of Borrower under the Notes and sue the other Loan Documents, with Borrower remaining liable for damages, any costs incurred to enforcedeficiency, or attempt retain any and all of the Equipment;
(iv) Proceed by appropriate court action, either at law or in equity (including an action for specific performance), to enforce performance by Borrower or to recover damages associated with such Event of Default; or exercise any other right or remedy available to Lender at law or in equity; and
(v) By offset, recoupment or other manner of application, apply any security deposit, monies held in deposit or other sums then held by Lender or any affiliate of Lender, and with respect to which Borrower has an interest, against any obligations of Borrower arising under this Agreement, any Notes or any other Loan Document, whether or not Borrower has pledged, assigned or granted a security interest to Lender in any or all such sums as collateral for said obligations.
(c) Borrower shall indemnify, defend and hold Lender harmless for any loss, personal injury (including reasonable attorneys feesdeath), which enforcement or damage to property, suffered by Lender, its employees or any of its agents in connection with its entry onto the premises of Borrower or any third party hereunder. Each of the rights and remedies of Lender hereunder and under the other Loan Documents is in addition to all of its other rights and remedies hereunder, under the other Loan Documents and under applicable law and nothing in this Agreement or any other Loan Document shall be construed as limiting any such right or remedy. Lender’s failure to exercise or delay in exercising any right, power or remedy available to Lender shall not constitute a waiver or otherwise affect or impair its rights to the future exercise of any such right, power or remedy. Waiver by Lender of any Event of Default shall not be limiteda waiver by Lender of any other or subsequent Events of Default.
(d) Borrower shall notify Lender in writing of the occurrence of an Event of Default pursuant to this Agreement promptly after such Event of Default has occurred, and may include appeals of in any decisions in lower courts, as well as collection efforts event within ten (10) days thereafter, compensable damages and consequential damages, withhold and retain payment to the Contractor for the purpose of setoff until such time as the exact amount of damages due to the Authority from the Contractor is determined, seek injunctive relief and/or specific performance and such other equitable remedies that are available, as well as effectuate a termination of this Agreement, which may or could give rise to additional damages. It is expressly understood that the Contractor will remain liable for any damages the Authority sustains in excess of any set-off.
Appears in 1 contract
Sources: Loan and Security Agreement (Industrial Services of America Inc /Fl)
Events of Default and Remedies. 7.01 (a) The following acts and/or omissions shall constitute a default be “events of default” under this Facility Lease, and material breach the terms “events of default” or “default” shall mean, whenever they are used in this Agreement Facility Lease, any one or more of the following events:
(1) The County shall fail to deposit with the Trustee any Base Rental Payment required to be so deposited by the Contractor and close of business on the day such deposit is required pursuant to Section 5.01(a) hereof, provided, that the failure to deposit any Base Rental Payments abated pursuant to Section 5.04 hereof shall be deemed not constitute an Event of Default if not cured within Default; or
(2) The County shall fail to pay any item of Additional Payments when the same shall become due and payable pursuant to Section 5.01(b) hereof; or
(3) The County shall fail to observe and perform any covenant, condition or agreement on its part to be observed or performed under this Facility Lease other than as referred to in paragraphs (1) and (2) above for a period of forty-five (545) business days after written notice of default has been sent specifying such failure and requesting that it be remedied is given to the County by the Authority to Corporation or the ContractorAuthority; provided, provided however, that if the failure stated in the notice is correctable but cannot be corrected within the applicable period, the Corporation or the Authority will not unreasonably withhold its consent to an extension of such time if corrective action is instituted by the County within the applicable period and diligently pursued until the default is such that more than five (5) days are required for a cure, then Contractor shall not be in default if it commences to cure the default within the five (5) day period and thereafter diligently prosecutes the same to completion:
(a) Failure to comply with any of the material terms and conditions of this Agreement following written notice from the Authority and failure to cure; and/orcorrected.
(b) Failure In addition to begin any default resulting from breach by the Services in accordance with County of any agreement, condition, covenant or term hereof, if (1) the terms County’s interest herein or any part thereof be assigned, sublet or transferred without the written consent of this Agreement; and/or
(c) If the Contractor, in the judgment of Corporation and the Authority, is unnecessarily either voluntarily or unreasonably by operation of law; or willfully delaying (2) the performance and completion County or any assignee shall file any petition or institute any proceedings under any act or acts, state or federal, dealing with or relating to the subject of bankruptcy or insolvency or under any amendment of such act or acts, either as a bankrupt or as an insolvent or as a debtor or in any similar capacity, wherein or whereby the Services; and/or
(d) The Contractor abandons the Services County asks or seeks or prays to be undertaken; and/or
(e) The Authority reasonably believes that the Services cannot be completed within the time required, where in the Authority’s judgment, the delay is attributable to conditions within the Contractor’s control; and/or
(f) The Contractor, without just cause, reduces its personnel to adjudicated a number which in the judgment of the Authority, is insufficient to complete the Services within a reasonable time and fails to sufficiently increase such personnel when directed to do so by the Authority; and/or
(g) The Contractor assigns, transfers, conveys or otherwise disposes of this Agreement, in wholebankrupt, or in partis to be discharged from any or all of its debts or obligations, without prior approval or offers to its creditors to effect a composition or extension of the Authority; and/or
(h) Any Authority officer time to pay its debts, or employee acquires an interest in this Agreement so as asks, seeks or prays for a reorganization or to create effect a conflict plan of interest; and/or
(i) The Contractor violates any law, charter provision, ordinance, rule, regulation, governmental order or directive; and/or
(j) Failure to provide adequate inventory, vehicles, equipment and/or personnel; and/or
(k) The filing of a voluntary or involuntary petition in bankruptcy reorganization or for reorganization a readjustment of its debts or an arrangementfor any other similar relief, or an if the County shall make a general or any assignment for the benefit of its creditors, ; or (3) the adjudication County shall abandon the Leased Property or any portion thereof; then in each and every such case the County shall be deemed to be in default hereunder. Upon the happening of any of the Contractor as being bankrupt events specified in subsection (a) or insolvent(b) of this Section (in either case an “Event of Default”), or the appointment of a receiver of, or then it shall be lawful for the Contractor if such appointment, adjudication, or similar order or ruling remains in force or unstayed for a period of thirty (30) days, or admit in writing its inability to pay its debts generally as they become due; and/or
(l) The Contractor’s level of performance of the Services, in the reasonable judgment of Corporation and/or the Authority falls below the standard of care set forth in Article II hereof and/or
(m) The Contractor ceases to conduct business in the normal course, and/or
(n) The Contractor fails to comply with any material terms, conditions and/or obligations of Contractor set forth herein.
(o) The Contractor fails to pay any labor, tax obligations, fringe benefit funds, insurance premiums, or subcontractor invoices for Services which the Contractor has received payment from the Authority.
7.02 In the Event of Default by the Contractor, the Authority shall be entitled to exercise any and all remedies available or granted to it pursuant to law or hereunder. Upon the breach of any agreement, condition, covenant or term contained herein required to be observed or performed by the County, the Authority, the Corporation and/or the Trustee may exercise any and all rights of entry upon or repossession of the Leased Property, and also, at its option, with or without such entry, may terminate this Facility Lease; provided, that no termination shall be effected either by operation of law and/or in equityor acts of the parties hereto except upon express written notice from the Corporation, including, but not limited the Authority or the Trustee to the County terminating this Facility Lease, as provided below. In the event of such default and notwithstanding any entry by the Authority, the Corporation or the Trustee, the Authority, the Corporation or the Trustee may at any time thereafter (with or without notice and demand and without limiting any other rights or remedies the Authority, the Corporation or the Trustee may have):
(1) Maintain this Facility Lease in full force and effect and recover rent and other monetary charges as they become due without terminating the County’s right to seek possession of the Leased Property, regardless of whether or not the County has abandoned the Leased Property. In the event the Authority, the Corporation or the Trustee elects not to terminate this Facility Lease, it shall have the right and sue the County hereby irrevocably appoints the Corporation as its agent and attorney-in-fact for damages, any costs incurred such purpose to enforce, or attempt to enforce this Agreementrelet the Leased Property at such rent, upon such conditions and for such term, and to do all other acts to maintain or preserve the Leased Property, including reasonable attorneys feesthe removal of persons or property therefrom or taking possession thereof, which enforcement shall not be limitedas the Corporation or the Authority deems desirable or necessary, and the County hereby waives any and all claims for any damages that may include appeals of any decisions in lower courts, as well as collection efforts thereafter, compensable damages and consequential damages, withhold and retain payment result to the Contractor for Leased Property thereby; provided, that no such actions shall be deemed to terminate this Facility Lease and the purpose of setoff until such time as the exact amount of damages due County shall continue to the Authority from the Contractor is determined, seek injunctive relief and/or specific performance and such other equitable remedies that are available, as well as effectuate a termination of this Agreement, which may or could give rise to additional damages. It is expressly understood that the Contractor will remain liable for any damages deficiency that may arise out of such reletting, taking into account expenses incurred by the Corporation or the Authority sustains due to such reletting, payable at the same time and manner as provided for Base Rental in excess Section 5.01.
(2) Terminate the County’s right to possession of the Leased Property by giving a written notice of termination to the County. On the date specified in such notice (which shall be not less than three (3) days after the giving of such notice) the County’s right to possession under this Facility Lease shall terminate and the County shall surrender possession of the Leased Property, as the case may be, to the Corporation, unless on or before such date all arrears of rental and all other sums payable by the County hereunder, and all costs and expenses incurred by or on behalf of the Corporation, the Trustee or the Authority hereunder, including attorneys’ fees incurred in connection with such defaults, shall have been paid by the County and all other defaults or breaches hereunder by the County at the time existing shall have been fully remedied to the satisfaction of the Corporation, the Trustee and the Authority. Upon such termination, the Corporation, the Trustee and the Authority may recover, in addition to all other damages available by contract or at law, to the extent permitted by law, from the County:
(i) the worth at the time of award of the unpaid rental which had been earned at the time of termination; and (ii) the worth at the time of award of the amount by which the unpaid rental which would have been earned after termination until the time of award exceeds the amount of such rental loss that the County proves could have been reasonably avoided. The “worth at the time of award” of the amounts referred to in clauses (i) and
(ii) above is computed by allowing interest at the rate of twelve per cent (12%) per annum. Without otherwise limiting any of the rights or remedies of the Corporation, the Trustee and the Authority set forth herein, the Corporation, the Trustee and the Authority expressly waive the right to receive any amount from the County pursuant to Section 1951.2(a)(3) of the California Civil Code. Notwithstanding any provision herein, under no circumstances shall the Base Rental Payments due hereunder be accelerated as a result of any set-offEvent of Default. Each and all of the remedies given to the Corporation, the Trustee and the Authority hereunder or by any law now existing or hereafter enacted are cumulative and the exercise of any one remedy shall not impair the right of the Corporation, the Trustee and the Authority to any or all other remedies.
Appears in 1 contract
Sources: Facility Lease
Events of Default and Remedies. 7.01 The 1. Notwithstanding anything hereinabove to the contrary, the Agent, acting for the Lenders, may terminate this Financing Agreement immediately upon the occurrence of any of the following acts and/or omissions (herein “Events of Default”):
(a) cessation of the business of a Company or the calling of a meeting of the creditors of any Company for purposes of compromising the debts and obligations of any Company;
(b) the failure of any Company to generally meet debts as they mature;
(c) the commencement by any Company of any bankruptcy, insolvency, arrangement, reorganization, receivership or similar proceedings under any federal or state law;
(d) the commencement against any Company of any bankruptcy, insolvency, arrangement, reorganization, receivership or similar proceedings under any federal or state law; provided, however, that such Default shall not constitute a default and material breach of this Agreement by the Contractor and shall be deemed an Event of Default if not cured the proceeding, case, petition or arrangement is dismissed within five sixty (5) business days after written notice of default has been sent by the Authority to the Contractor, provided however, that if the default is such that more than five (560) days are required for a cure, then Contractor shall not be in default if it commences to cure the default within the five (5) day period and thereafter diligently prosecutes the same to completion:
(a) Failure to comply with any of the material terms and conditions of this Agreement following written notice from the Authority and failure to cure; and/or
(b) Failure to begin the Services in accordance with the terms of this Agreement; and/or
(c) If the Contractor, in the judgment of the Authority, is unnecessarily such filing or unreasonably or willfully delaying the performance and completion of the Services; and/or
(d) The Contractor abandons the Services to be undertaken; and/orcommencement;
(e) The Authority reasonably believes that the Services cannot be completed within the time requiredmaterial breach by any Company of any warranty, where representation or covenant contained herein (other than those referred to in the Authority’s judgment, the delay is attributable to conditions within the Contractor’s control; and/or
subparagraph (f) The Contractorbelow) or in any other written agreement between the Agent and/or the Lenders and any Company, without just cause, reduces its personnel to a number which in the judgment provided that such Default by any Company of any of the Authoritywarranties, is insufficient to complete the Services within a reasonable time and fails to sufficiently increase such personnel when directed to do so by the Authority; and/or
(g) The Contractor assigns, transfers, conveys representations or otherwise disposes of this Agreement, in whole, or in part, without prior approval of the Authority; and/or
(h) Any Authority officer or employee acquires an interest covenants referred in this Agreement so as subparagraph (e) shall not be deemed to create a conflict be an Event of interest; and/or
(i) The Contractor violates any law, charter provision, ordinance, rule, regulation, governmental order or directive; and/or
(j) Failure Default unless and until such Default shall remain unremedied to provide adequate inventory, vehicles, equipment and/or personnel; and/or
(k) The filing of a voluntary or involuntary petition in bankruptcy or for reorganization or an arrangement, or an assignment for the benefit of creditors, or the adjudication of the Contractor as being bankrupt or insolvent, or the appointment of a receiver of, or for the Contractor if such appointment, adjudication, or similar order or ruling remains in force or unstayed Agent’s satisfaction for a period of thirty (30) daysdays from the date of such breach;
(f) breach by any Company of any warranty, representation or covenant of Section 3, Paragraphs 3 (other than the third sentence of Paragraph 3) and 4; Section 6, Paragraphs 3 and 4 (other than the first sentence of Paragraph 4); Section 7, Paragraphs 1, 5, 6, and 9 through 15;
(g) failure of any Company to pay any of the Obligations within five (5) Business Days of the due date thereof, provided that nothing contained herein shall prohibit the Agent from charging such amounts to the Collective Loan Account on the due date thereof;
(h) the Companies, on a consolidated basis, sustain a net loss in any fiscal year as determined in accordance with GAAP;
(i) any Company shall (i) engage in any “prohibited transaction”, as defined in ERISA, (ii) have any “accumulated funding deficiency”, as defined in ERISA, (iii) incur any “reportable event” as defined in ERISA, (iv) terminate any “plan”, as defined in ERISA or (v) be engaged in any proceeding in which the Pension Benefit Guaranty Corporation shall seek appointment, or is appointed, as trustee or administrator of any “plan”, as defined in ERISA, and with respect to this subparagraph (i) such event or condition (x) remains uncured for a period of ninety (90) days from date of occurrence and (y) could, in the reasonable opinion of the Agent, subject any Company to any tax, penalty or other liability material to the business, operations or financial condition of any Company;
(j) any Company shall become unable, admit in writing its inability or fail generally to pay its debts generally as they become due; and/oror
(lk) The Contractor’s level a Change of performance Control shall occur absent prior written consent thereto by the Agent and the Lenders.
2. Upon the occurrence of a Default or an Event of Default, at the option of the ServicesAgent, all loans and advances provided for in Paragraph 1 of Section 3 of this Financing Agreement shall be thereafter in the reasonable judgment Agent’s sole discretion and the obligation of the Authority falls below Lenders, acting through the standard Agent, to make revolving loans and/or open Letters of care set forth in Article II hereof and/or
(m) The Contractor ceases Credit shall cease unless such Default is cured to conduct business in the normal courseAgent’s satisfaction or such Event of Default is waived, and/or
(n) The Contractor fails to comply with any material terms, conditions and/or obligations and at the option of Contractor set forth herein.
(o) The Contractor fails to pay any labor, tax obligations, fringe benefit funds, insurance premiumsthe Agent, or subcontractor invoices at the direction of the Required Lenders, upon the occurrence of an Event of Default: (i) all Obligations shall become immediately due and payable; (ii) the Agent may charge the Default Rate of Interest on all then outstanding or thereafter incurred Obligations in lieu of the interest provided for Services which in Section 8 of this Financing Agreement provided (a) the Contractor Agent has received payment from given the Authority.
7.02 In Companies written notice of the Event of Default, provided, however, that no notice is required if the Event of Default is the event listed in Paragraph 1(c) or 1(d) of this Section 10 and (b) the Companies have failed to cure the Event of Default within ten (10) days after (x) the Agent deposited such notice in the United States mail or (y) the occurrence of the Event of Default listed in Paragraph 1(c) or 1(d) of this Section 10; and (iii) the Agent may immediately terminate this Financing Agreement upon notice to ROA, provided, however, that no notice of termination is required if the Event of Default is the event listed in Paragraph 1(c) or 1(d) of this Section 10. The exercise of any option is not exclusive of any other option which may be exercised at any time by the ContractorAgent. A Default Rate of Interest shall cease as soon as the Event of Default giving rise to the Default Rate of Interest is waived. In the event the Default Rate of Interest is charged as a result of a breach or violation of Paragraphs 14 or 15 of Section 7 of this Financing Agreement, the Authority Default Rate of Interest shall cease as soon as the Companies demonstrate on the next succeeding test date that they have not breached or violated the covenants applicable for said test date and that there is not another outstanding Event of Default.
3. Immediately upon the occurrence of any Event of Default, the Agent may to the extent permitted by law: (a) remove from any premises where same may be entitled to exercise located any and all remedies available at law and/or in equitydocuments, includinginstruments, but not limited files and records, and any receptacles or cabinets containing same, relating to the right to seek and sue for damages, any costs incurred to enforceAccounts, or attempt the Agent may use, at any Company’s expense, such of a Company’s personnel, supplies or space at any Company’s places of business or otherwise, as may be necessary to enforce this Agreementproperly administer and control the Accounts or the handling of collections and realizations thereon; (b) bring suit, in the name of any Company or the Agent, and generally shall have all other rights respecting said Accounts, including reasonable attorneys feeswithout limitation the right to: accelerate or extend the time of payment, settle, compromise, release in whole or in part any amounts owing on any Accounts and issue credits in the name of the applicable Company or the Agent; (c) sell, assign and deliver the Collateral and any returned, reclaimed or repossessed merchandise, with or without advertisement, at public or private sale, for cash, on credit or otherwise, at the Agent’s sole option and discretion, and the Agent may bid or become a purchaser at any such sale, free from any right of redemption, which enforcement shall not be limitedright is hereby expressly waived by the Companies; (d) foreclose the security interests created herein by any available judicial procedure, or to take possession of any or all of the Inventory and Equipment without judicial process, and to enter any premises where any Inventory and Equipment may include appeals of any decisions in lower courts, as well as collection efforts thereafter, compensable damages and consequential damages, withhold and retain payment to the Contractor be located for the purpose of setoff until taking possession of or removing the same and (e) exercise any other rights and remedies provided in law, in equity, by contract or otherwise. The Agent shall have the right, without notice or advertisement, to sell, lease, or otherwise dispose of all or any part of the Collateral whether in its then condition or after further preparation or processing, in the name of any Company or the Agent, or in the name of such time other party as the exact amount Agent may designate, either at public or private sale or at any broker’s board, in lots or in bulk, for cash or for credit, with or without warranties or representations, and upon such other terms and conditions as the Agent in its sole discretion may deem advisable, and the Agent shall have the right to purchase at any such sale. If any Inventory and Equipment shall require rebuilding, repairing, maintenance or preparation, the Agent shall have the right, at its option, to do such of damages due the aforesaid as is necessary, for the purpose of putting the Inventory and Equipment in such saleable form as the Agent shall deem appropriate. Each Company agrees, at the request of the Agent, to assemble the Inventory and Equipment and to make it available to the Authority Agent at premises of any Company where then located and to make available to the Agent the premises and facilities of any Company for the purpose of the Agent’s taking possession of, removing or putting the Inventory located there and Equipment located there in saleable form. However, if notice of intended disposition of any Collateral is required by law, it is agreed that ten (10) days notice shall constitute reasonable notification and full compliance with the law. The Net Cash Proceeds resulting from the Contractor is determinedAgent’s exercise of any of the foregoing rights, seek injunctive relief and/or specific performance (after deducting all charges, costs and expenses, including reasonable attorneys’ fees) shall be applied by the Agent to the payment of the Obligations, whether due or to become due, in such other equitable remedies that are availableorder as the Agent may elect, as well as effectuate a termination of this Agreement, which may or could give rise to additional damages. It is expressly understood that the Contractor will and each Company shall remain liable to the Agent for any damages deficiencies, and the Authority sustains Agent in excess turn agrees to remit to ROA or its successors or assigns, any surplus resulting therefrom. The enumeration of the foregoing rights is not intended to be exhaustive and the exercise of any set-offright shall not preclude the exercise of any other rights, all of which shall be cumulative. The mortgage, deed of trust or assignment on the Real Estate shall govern the rights and remedies of the Agent thereto.
Appears in 1 contract
Events of Default and Remedies. 7.01 The 10.1 Notwithstanding any other provision of this Financing Agreement to the contrary, the Required Lenders (acting through the Agent) may terminate this Financing Agreement immediately upon the occurrence of any of the following acts and/or omissions events (herein "EVENTS OF DEFAULT"):
(a) cessation of the business of any Company or Subsidiary or Parent of a Company;
(b) the failure of any Company or Subsidiary or Parent to generally meet its debts as those debts mature;
(i) the commencement by any Company or any Subsidiary of a Company or Parent of any bankruptcy, insolvency, arrangement, reorganization, receivership or similar proceedings under any federal or state law; (ii) the commencement against any Company or any Subsidiary of a Company or Parent of any bankruptcy, insolvency, arrangement, reorganization, receivership or similar proceeding under any federal or state law by creditors of such Company, but only if such proceeding is not contested by such Company or Subsidiary or Parent within ten (10) days and not dismissed and vacated within thirty (30) days of commencement, or any of the actions or relief sought in any such proceeding shall constitute a default and material occur or be authorized by such Company or Subsidiary or Parent, as the case may be; 50
(d) breach by any Company of any warranty, representation or covenant contained herein (other than those referred to in Section 10.1(e) below), provided that such breach of any of the warranties, representations or covenants referred in this Agreement by the Contractor and Section 10.1(d) shall not be deemed to be an Event of Default if not cured within five (5) business days after written notice of default has been sent by the Authority unless and until such breach shall remain unremedied to the Contractor, provided however, that if satisfaction of the default is such that more than five Agent and the Required Lenders for a period of fifteen (515) days are required for a cure, then Contractor shall not be in default if it commences to cure the default within the five (5) day period and thereafter diligently prosecutes the same to completion:
(a) Failure to comply with any of the material terms and conditions of this Agreement following written notice from the Authority and failure to cure; and/or
(b) Failure to begin the Services in accordance with the terms date of this Agreement; and/or
(c) If the Contractor, in the judgment of the Authority, is unnecessarily or unreasonably or willfully delaying the performance and completion of the Services; and/or
(d) The Contractor abandons the Services to be undertaken; and/orsuch breach;
(e) The Authority reasonably believes that the Services cannot be completed within the time requiredbreach by any Company of any warranty or representation or covenant contained in Sections 3.3, where in the Authority’s judgment3.4, the delay is attributable to conditions within the Contractor’s control; and/or3.5, and 3.6 Section 4, Sections 6.3, 6.4 and 6.9 and Sections 7.1, 7.2, 7.3, 7.4, 7.5, 7.6, 7.7 through 7.13, inclusive, 7.14, 7.15, 7.17 and 7.18 of this Financing Agreement;
(f) The Contractorfailure of any Company to pay (i) the principal of any Revolving Loan when due and payable, without just cause(ii) the interest on any Revolving Loan or any fee or other Obligations hereunder when due and payable or within three (3) Business Days thereof, reduces its personnel provided that nothing contained herein shall prohibit the Agent from charging such amounts to a number which in the judgment of Revolving Loan Account on the Authority, is insufficient to complete the Services within a reasonable time and fails to sufficiently increase such personnel when directed to do so by the Authority; and/ordue date thereof;
(g) The Contractor assigns, transfers, conveys or otherwise disposes of this Agreement, in whole, or in part, without prior approval of the Authority; and/or
(h) Any Authority officer or employee acquires an interest in this Agreement so as to create a conflict of interest; and/or
any Company shall (i) The Contractor violates engage in any law"prohibited transaction" as defined in ERISA, charter provision(ii) incur any "accumulated funding deficiency" as defined in ERISA, ordinance(iii) incur any Reportable Event as defined in ERISA, rule(iv) terminate any Plan, regulation, governmental order as defined in ERISA or directive; and/or
(jv) Failure to provide adequate inventory, vehicles, equipment and/or personnel; and/or
(k) The filing of a voluntary or involuntary petition engage in bankruptcy or for reorganization or an arrangementany proceeding in which the Pension Benefit Guaranty Corporation shall seek appointment, or an assignment for the benefit is appointed, as trustee or administrator of creditorsany Plan, as defined in ERISA; and with respect to this Section 10.1(g) such event or the adjudication of the Contractor as being bankrupt or insolvent, or the appointment of a receiver of, or for the Contractor if such appointment, adjudication, or similar order or ruling condition (x) remains in force or unstayed uncured for a period of thirty (30) daysdays from date of occurrence and (y) could, in the reasonable opinion of the Agent, subject such Company to any tax, penalty or other liability having a Material Adverse Effect;
(h) an event of default or a breach or failure to comply with the provisions of any of the other Loan Documents or the Indenture (after giving effect to any applicable grace or cure period) shall occur under any of the other Loan Documents or the Indenture;
(i) the occurrence of any default or event of default (after giving effect to any applicable grace or cure period) under any Material Indebtedness Agreement;
(j) a Change in Control shall have occurred;
(k) any Guarantor shall terminate its Guaranty or deny that it has any liability thereunder, or admit in writing its inability to pay its debts generally as they become due; and/orany Guaranty shall be declared null and void and of no further force and effect;
(l) The Contractor’s level of performance of any condition or event that Agent or the Services, in the reasonable judgment of the Authority falls below the standard of care set forth in Article II hereof and/orRequired Lenders determine could reasonably be expected to have a Material Adverse Effect or;
(m) The Contractor ceases to conduct business the Companies do not have Availability of at least Fifteen Million Dollars ($15,000,000) on January 1 of each year.
10.2 Upon the occurrence and during the continuance of a Default or an Event of Default, at the option of the Agent and the Required Lenders, all loans, advances and extensions of credit provided for in Sections 3 and 5 of this Financing Agreement thereafter shall be made in the normal coursesole discretion of the Agent and the Lenders, and/or
(n) The Contractor fails and the obligation of the Agent and the Lenders to comply with any material terms, conditions and/or obligations make Revolving Loans and assist the Companies in opening Letters of Contractor set forth herein.
(o) The Contractor fails to pay any labor, tax obligations, fringe benefit funds, insurance premiums, Credit shall cease unless such Default or subcontractor invoices for Services which the Contractor has received payment from the Authority.
7.02 In the Event of Default is waived. In addition, upon the occurrence and during the continuance of an Event of Default, the Agent may, at its option, and the Agent shall, upon the request of the Required Lenders: (a) declare all Obligations immediately due and payable; (b) charge the Companies the Default Rate of Interest on all then outstanding or thereafter incurred Obligations in lieu of the interest provided for in Sections 8.1 and 8.2 of this Financing Agreement; and (c) immediately terminate this Financing Agreement upon written notice to the Companies, provided that this Financing Agreement automatically shall terminate and all Obligations shall become due and payable immediately without any declaration, notice or demand by CIT, upon the occurrence of an Event of Default listed in Section 10.1(c). The exercise of any option is not exclusive of any other option which may be exercised at any time by the Contractor, Agent and the Authority shall be entitled to exercise any and all remedies available at law and/or in equity, including, but not limited to the right to seek and sue for damages, any costs incurred to enforce, or attempt to enforce this Agreement, including reasonable attorneys fees, which enforcement shall not be limited, and may include appeals of any decisions in lower courts, as well as collection efforts thereafter, compensable damages and consequential damages, withhold and retain payment to the Contractor for the purpose of setoff until such time as the exact amount of damages due to the Authority from the Contractor is determined, seek injunctive relief and/or specific performance and such other equitable remedies that are available, as well as effectuate a termination of this Agreement, which may or could give rise to additional damages. It is expressly understood that the Contractor will remain liable for any damages the Authority sustains in excess of any set-offLenders.
Appears in 1 contract
Events of Default and Remedies. 7.01 The 10.1 Notwithstanding anything hereinabove to the contrary, the Agent may terminate this Financing Agreement immediately upon the occurrence of any of the following acts and/or omissions shall constitute Events of Default:
(a) cessation of the business of the Company or the calling of a default meeting of the creditors of the Company for purposes of compromising the debts and material breach obligations of this Agreement the Company;
(b) the failure of the Company to generally meet its debts as they mature;
(i) the commencement by the Contractor and Company of any bankruptcy, insolvency, arrangement, reorganization, receivership or similar proceedings under any federal or state law; (ii) the commencement against the Company of any bankruptcy, insolvency, arrangement, reorganization, receivership or similar proceeding under any federal or state law by creditors of the Company, provided that such Default shall not be deemed an Event of Default if such proceeding is controverted within ten (10) Business Days and dismissed and vacated within forty five (45) days of commencement, except in the event that any of the actions sought in any such proceeding shall occur or the Company shall take action to authorize or effect any of the actions in any such proceeding; or (iii) the commencement (x) by the Company’s Subsidiaries, or any one of them, of any bankruptcy, insolvency, arrangement, reorganization, receivership or similar proceeding under any applicable state law, or (y) against the Company’s Subsidiaries, or any one of them, of any involuntary bankruptcy, insolvency, arrangement, reorganization, receivership or similar proceeding under applicable law, provided that such Default shall not cured be deemed an Event of Default if such proceeding is controverted within ten (10) days and dismissed or vacated within thirty (30) days of commencement, except in the event that any of the actions sought in any such proceeding shall occur or the Company’s Subsidiaries, or any one of them, shall take action to authorize or effect any of the actions in any such proceeding;
(d) breach by the Company of any warranty, representation or covenant contained herein (other than those referred to in subparagraph e below) or in any other written agreement between the Company or the Agent, provided that such Default by the Company of any of the warranties, representations or covenants referred in this clause (d) shall not be deemed to be an Event of Default unless and until such Default shall remain unremedied to the Agent’s satisfaction for a period of ten (10) Business Days from the date of such breach;
(e) breach by the Company of any warranty, representation or covenant of Paragraphs 3.3 (other than the fourth sentence of Paragraph 3.3) and 3.4 of Section 3 hereof; Paragraphs 6.3 and 6.4 (other than the first sentence of Paragraph 6.4) of Section 6 hereof Paragraphs 7.1, 7.5, 7.6, and 7.8 through 7.14 hereof;
(f) failure of the Company to pay any of the Obligations within five (5) business days after written notice Business Days of default has been sent by the Authority due date thereof, provided that nothing contained herein shall prohibit the Agent from charging such amounts to the Contractor, provided however, that if Revolving Loan Account on the default is such that more than five (5) days are required for a cure, then Contractor shall not be in default if it commences to cure the default within the five (5) day period and thereafter diligently prosecutes the same to completion:
(a) Failure to comply with any of the material terms and conditions of this Agreement following written notice from the Authority and failure to cure; and/or
(b) Failure to begin the Services in accordance with the terms of this Agreement; and/or
(c) If the Contractor, in the judgment of the Authority, is unnecessarily or unreasonably or willfully delaying the performance and completion of the Services; and/or
(d) The Contractor abandons the Services to be undertaken; and/or
(e) The Authority reasonably believes that the Services cannot be completed within the time required, where in the Authority’s judgment, the delay is attributable to conditions within the Contractor’s control; and/or
(f) The Contractor, without just cause, reduces its personnel to a number which in the judgment of the Authority, is insufficient to complete the Services within a reasonable time and fails to sufficiently increase such personnel when directed to do so by the Authority; and/ordue date thereof;
(g) The Contractor assignsthe Company shall (i) engage in any “prohibited transaction” as defined in ERISA, transfers(ii) have any “accumulated funding deficiency” as defined in ERISA, conveys (iii) have any “reportable event” as defined in ERISA, (iv) terminate any “plan”, as defined in ERISA or otherwise disposes of this Agreement, (v) be engaged in wholeany proceeding in which the Pension Benefit Guaranty Corporation shall seek appointment, or is appointed, as trustee or administrator of any “plan”, as defined in partERISA, without prior approval of the Authority; and/or
and with respect to this subparagraph (h) Any Authority officer such event or employee acquires an interest in this Agreement so as to create a conflict of interest; and/or
condition (ix) The Contractor violates any law, charter provision, ordinance, rule, regulation, governmental order or directive; and/or
(j) Failure to provide adequate inventory, vehicles, equipment and/or personnel; and/or
(k) The filing of a voluntary or involuntary petition in bankruptcy or for reorganization or an arrangement, or an assignment for the benefit of creditors, or the adjudication of the Contractor as being bankrupt or insolvent, or the appointment of a receiver of, or for the Contractor if such appointment, adjudication, or similar order or ruling remains in force or unstayed uncured for a period of thirty (30) days, or admit in writing its inability to pay its debts generally as they become due; and/or
days from date of occurrence and (ly) The Contractor’s level of performance of the Servicescould, in the reasonable judgment opinion of the Authority falls below Agent, subject the standard Company to any tax, penalty or other liability material to the business, operations or financial condition of care set forth in Article II hereof and/orthe Company;
(mh) The Contractor ceases to conduct business without the prior written consent of the Agent and, except as permitted in the normal courseSubordination Agreement or this Financing Agreement, and/orthe Company shall (x) amend or modify the Subordinated Debt, (y) make any payment on account of the Subordinated Debt or (z) grant any lien or security interest in the Company’s assets to any Subordinating Creditor;
(ni) The Contractor fails the occurrence of any default or event of default (after giving effect to comply with any material termsapplicable grace or cure periods) under any instrument or agreement evidencing (x) Subordinated Debt or (y) any other Indebtedness of the Company having a principal amount in excess of $500,000; or
(i) ▇▇▇▇▇ ▇▇▇ ceases for any reason whatsoever (other than as a result of death, conditions disability or other incapacity) to be actively engaged in the management of the Company or (ii) ▇▇▇▇▇ ▇▇▇, the spouse of ▇▇▇▇▇ ▇▇▇, the issue of ▇▇▇▇▇ ▇▇▇, revocable trusts established by or for the benefit of any of the foregoing persons and/or obligations Affiliates of Contractor set forth herein▇▇▇▇▇ ▇▇▇ shall not own, in the aggregate, at least 51% of the issued and outstanding shares of common stock of the Company or (iii) the stock of any of the Subsidiaries of the Company is transferred.
(ok) The Contractor fails the occurrence of an event of default (after the expiration of any cure period expressly permitted thereunder) by any of the Company’s Subsidiaries under any lending agreement to pay which any laborof them are bound to the extent such lending agreement has an unpaid outstanding balance in excess of $250,000.
10.2 Upon the occurrence of a Default and/or an Event of Default, tax obligations, fringe benefit funds, insurance premiumsthe Agent in its sole discretion may, or subcontractor invoices upon the written direction of the Required Lenders the Agent shall, declare that, all loans, advances and extensions of credit provided for Services which in Sections 3, 4 and 5 of this Financing Agreement shall be thereafter in the Contractor Agent’s or the Required Lenders’ sole discretion, and the obligation of the Agent and/or the Lenders to make Revolving Loans, and open Letters of Credit and provide Letters of Credit Guaranties shall cease unless such Default or Event of Default is waived in writing by the Required Lenders or cured to the Agent’s or the Required Lenders’ satisfaction in the exercise of the Agent’s and the Lenders’ reasonable judgement. Upon the occurrence of an Event of Default, the Agent in its sole discretion may, or upon the written direction of the Required Lenders the Agent shall, declare that: (a) all Obligations shall become immediately due and payable; (b) the Agent may charge the Company the Default Rate of Interest on all then outstanding or thereafter incurred Obligations in lieu of the interest provided for in Section 8 of this Financing Agreement, provided that, with respect to this clause “(b)” the Agent has received payment from given the Authority.
7.02 In Company written notice of the Event of Default, provided further however, that no notice is required if the Event of Default is the Event listed in Paragraph 10.1(c) of this Section 10; and (c) the Agent may immediately terminate this Financing Agreement upon notice to the Company; provided, however, that upon the occurrence of an Event of Default listed in Paragraph 10.1(c) of this Section 10, this Financing Agreement shall automatically terminate and all Obligations shall become due and payable, without any action, declaration, notice or demand by the ContractorAgent. The exercise of any option is not exclusive of any other option, which may be exercised at any time by the Agent.
10.3 Immediately upon the occurrence of any Event of Default, the Authority shall Agent may, to the extent permitted by law: (a) remove from any premises where same may be entitled to exercise located any and all remedies available at law and/or in equitybooks and records, includingcomputers, but not limited electronic media and software programs associated with any Collateral (including any electronic records, contracts and signatures pertaining thereto), documents, instruments, files and records, and any receptacles or cabinets containing same, relating to the right to seek and sue for damages, any costs incurred to enforceAccounts, or attempt the Agent may use, at the Company’s expense, such of the Company’s personnel, supplies or space at the Company’s places of business or otherwise, as may be necessary to enforce this Agreementproperly administer and control the Accounts or the handling of collections and realizations thereon, provided that (i) Agent shall not remove any of the foregoing items if Borrower shall provide copies of such items to Agent on a consensual basis, and (ii) in the event any such items are removed from any premises of the Company by Agent, Agent shall provide to representatives of the Company access to such items during regular business hours on reasonable prior notice; (b) bring suit, in the name of the Company or the Agent, and generally shall have all other rights respecting said Accounts, including reasonable attorneys feeswithout limitation the right to: accelerate or extend the time of payment, settle, compromise, release in whole or in part any amounts owing on any Accounts and issue credits in the name of the Company or the Agent; (c) sell, assign and deliver the Collateral and any returned, reclaimed or repossessed Inventory, with or without advertisement, at public or private sale, for cash, on credit or otherwise, at the Agent’s sole option and discretion, and the Agent may bid or become a purchaser at any such sale, free from any right of redemption, which enforcement shall not be limitedright is hereby expressly waived by the Company; (d) foreclose the security interests in the Collateral created herein or by the Loan Documents by any available judicial procedure, or to take possession of any or all of the Collateral, including any Inventory, Equipment and/or Other Collateral without judicial process, and to enter any premises where any Inventory and Equipment and/or Other Collateral may include appeals of any decisions in lower courts, as well as collection efforts thereafter, compensable damages and consequential damages, withhold and retain payment to the Contractor be located for the purpose of setoff taking possession of or removing the same; and (e) exercise any other rights and remedies provided in law, in equity, by contract or otherwise. The Agent shall have the right, without notice or advertisement, to sell, lease, or otherwise dispose of all or any part of the Collateral, whether in its then condition or after further preparation or processing, in the name of the Company or the Agent, or in the name of such other party as the Agent may designate, either at public or private sale or at any broker’s board, in lots or in bulk, for cash or for credit, with or without warranties or representations, and upon such other terms and conditions as the Agent in its sole discretion may deem advisable, and the Agent shall have the right to purchase at any such sale. If any Inventory and Equipment shall require rebuilding, repairing, maintenance or preparation, the Agent shall have the right, at its option, to do such of the aforesaid as is necessary, for the purpose of putting the Inventory and Equipment in such saleable form as the Agent shall deem appropriate and any such costs shall be deemed an Obligation hereunder. The Company agrees, at the request of the Agent, to assemble the Inventory and Equipment and to make it available to the Agent at premises of the Company or elsewhere and to make available to the Agent the premises and facilities of the Company for the purpose of the Agent’s taking possession of, removing or putting the Inventory and Equipment in saleable form. If notice of intended disposition of any Collateral is required by law, it is agreed that ten (10) days notice shall constitute reasonable notification and full compliance with the law. The net cash proceeds resulting from the Agent’s exercise of any of the foregoing rights, (after deducting all charges, costs and expenses, including reasonable attorneys’ fees) shall be applied by the Agent to the payment of the Obligations, whether due or to become due, in such order as the Agent may elect, and the Company shall remain liable to the Agent for any deficiencies, and the Agent in turn agrees to remit to the Company or its successors or assigns, any surplus resulting therefrom. The enumeration of the foregoing rights is not intended to be exhaustive and the exercise of any right shall not preclude the exercise of any other rights, all of which shall be cumulative. The Company hereby indemnifies the Agent and holds the Agent harmless from any and all costs, expenses, claims, liabilities, Out-of-Pocket Expenses or otherwise, incurred or imposed on the Agent by reason of the exercise of any of its rights, remedies and interests hereunder, including, without limitation, from any sale or transfer of Collateral, preserving, maintaining or securing the Collateral, defending its interests in Collateral (including pursuant to any claims brought by the Company, the Company as debtor-in-possession, any secured or unsecured creditors of the Company, any trustee or receiver in bankruptcy, or otherwise), and the Company hereby agrees to so indemnify and hold the Agent harmless, absent the Agent’s gross negligence or willful misconduct as finally determined by a court of competent jurisdiction. The foregoing indemnification shall survive termination of this Financing Agreement until such time as all Obligations (including the exact amount foregoing) have been finally and indefeasibly paid in full. In furtherance thereof the Agent, may establish such reserves for Obligations hereunder (including any contingent Obligations) as it may deem advisable in its reasonable business judgment. Any applicable mortgage(s), deed(s) of damages due trust or assignment(s) issued to the Authority from Agent on the Contractor is determined, seek injunctive relief and/or specific performance Real Estate shall govern the rights and such other equitable remedies that are available, as well as effectuate a termination of this Agreement, which may or could give rise to additional damages. It is expressly understood that the Contractor will remain liable for any damages the Authority sustains in excess of any set-offAgent thereto.
Appears in 1 contract
Sources: Financing Agreement (Viewsonic Corp)
Events of Default and Remedies. 7.01 (a) The following acts and/or omissions shall constitute a default and material breach of this Agreement by the Contractor and shall be deemed an Event Events of Default if not cured for purposes of the remedies set forth in Section 18.01(b) hereof: (i) any failure of Tenant to pay any rental or other charges due hereunder within five ten (510) business days after written notice of such default has shall have been sent mailed to Tenant, or (ii) if Tenant (A) fails to take possession of and open for business from the Premises fully fixtured, stocked and staffed on by the Authority date thirty (30) days following the Commencement Date, (B) fails to perform any obligation hereunder prior to such Commencement Date, (C) fails to continuously operate its business pursuant to Section 7.02 for the Contractorpurpose specified in Section 7.01 hereof except for the occasional failure which is beyond Tenant’s reasonable anticipation and control, (D) fails or refuses to maintain business hours on such days or nights or any parts thereof as provided in Section 7.03 hereof, (E) fails to operate under the name specified in Section 1.01(l) hereof except for the occasional failure which is beyond Tenant’s reasonable anticipation and control, (F) abandons, leaves vacant or deserts the Premises, or (G) permits this Lease to be taken under any writ of execution, or (iii) if there shall be any default by Tenant (or by any person or entity which directly or indirectly controls, is controlled by, or is under common control with Tenant) under any other lease with Landlord (or any person or entity which is affiliated with Landlord or which, directly or indirectly, controls, is controlled by, or is under common control with Landlord, or which is managed by the managing agent utilized by Landlord for the Shopping Center) which shall not be remedied within the applicable grace period, if any, provided therefor under such other lease, or if there shall be any default by Tenant or any entity affiliated with Tenant with respect to any financing or arrangement, if any, relating to items used in, or the operation of business in the Premises, or (iv) any failure to perform any other of the terms, conditions or covenants of this Lease to be observed or performed by Tenant for more than thirty (30) days after written notice of such default shall have been mailed to Tenant (provided, however, that such period shall be extended by Landlord for an additional reasonable period if the default is of such a nature that more than five (5) days are required for a cure, then Contractor shall it cannot be in cured within thirty [30] days and Tenant has diligently commenced the curing of such default if it commences to cure the default within the five (5) day period and thereafter is diligently prosecutes pursuing the same to completion:
(a) Failure to comply with any of the material terms and conditions of this Agreement following written notice from the Authority and failure to cure; and/or).
(b) Failure Upon the occurrence of any Event of Default, Landlord, in addition to begin any other rights or remedies it may have under this Lease, in law or in equity, may without any notice or demand:
(i) Terminate this Lease, in which case Tenant shall immediately surrender the Services Premises to Landlord and Landlord may, without prejudice to any other remedy which it may have for damages as set forth in accordance with Section 18.02(b) hereof, enter upon, expel or remove Tenant and any other person occupying the terms Premises as set forth in Section 18.01(c), and take possession of the Premises for the account of Landlord.
(ii) Enter upon, expel or remove Tenant and any other person occupying the Premises as set forth in Section 18.01(c), and take possession of the Premises for the account of Tenant, in which case Landlord shall have the right to relet the Premises as set forth in Section 18.02(a) hereof, and Tenant shall continue to be liable for damages as set forth in Section 18.02(b) hereof and for payment of any deficiencies in rent payable subsequent to such default (computed as set forth in Section 18.02(c) hereof) and any other charges hereunder. In addition, Landlord may accelerate and declare all rent due and to become due immediately payable, and obtain immediate payment thereof (subject to an accounting at the end of the term for amounts received from any reletting of the Premises, which amounts shall be applied as set forth in Section 18.02(a)). Such entry and or such acceleration shall not be construed as an election to terminate this Agreement; and/orLease unless Landlord so states in writing, and shall not absolve or discharge Tenant from any obligations or liabilities under this Lease for the remainder of the term.
(iii) Without entering into possession of the Premises or canceling this Lease, accelerate and declare all rent due and to become due (computed as set forth in Section 18.02(c) hereof) and other charges equivalent to rent reserved in this Lease due and to become due immediately due and payable, and bring suit for collection thereof and for damages as set forth in Section 18.02(b) hereof. Such acceleration and commencement of any such action shall not be construed as an election to terminate this Lease and shall not absolve or discharge Tenant from any obligations or liabilities under this Lease for the remainder of the term.
(c) If Upon exercise of Landlord’s rights under Section 18.01(b)(i) or (ii), Landlord may, without notice, re-enter the ContractorPremises either by force or otherwise, in and dispossess, by summary proceedings or otherwise, Tenant and the judgment legal representative of Tenant or other occupant of the AuthorityPremises and remove their effects and hold the Premises, is unnecessarily and Tenant hereby waives the service of notice of intention to re-enter, any statutory notice (3-day or unreasonably otherwise), or willfully delaying notice to institute legal proceedings. In the performance event of re-entry by Landlord, Landlord may remove all persons and completion property from the Premises and such property may be removed and stored in a public warehouse or elsewhere at the cost of, and for the account of the Services; and/orTenant, without notice or resort to legal process and without being deemed guilty of trespass, or becoming liable for any loss or damage which may be occasioned thereby.
(d) The Contractor abandons If Tenant has not removed its property from the Services to Premises within ten (10) days after Tenant has vacated the Premises, then such property shall be undertaken; and/or
(e) The Authority reasonably believes that the Services cannot be completed within the time required, where in the Authority’s judgment, the delay is attributable to conditions within the Contractor’s control; and/or
(f) The Contractor, without just cause, reduces its personnel to a number which in the judgment deemed abandoned by Tenant and Landlord may dispose of the Authority, is insufficient same without liability to complete the Services within a reasonable time and fails to sufficiently increase such personnel when directed to do so by the Authority; and/or
(g) The Contractor assigns, transfers, conveys or otherwise disposes of this Agreement, in whole, or in part, without prior approval of the Authority; and/or
(h) Any Authority officer or employee acquires an interest in this Agreement so as to create a conflict of interest; and/or
(i) The Contractor violates any law, charter provision, ordinance, rule, regulation, governmental order or directive; and/or
(j) Failure to provide adequate inventory, vehicles, equipment and/or personnel; and/or
(k) The filing of a voluntary or involuntary petition in bankruptcy or for reorganization or an arrangement, or an assignment for the benefit of creditors, or the adjudication of the Contractor as being bankrupt or insolvent, or the appointment of a receiver of, or for the Contractor if such appointment, adjudication, or similar order or ruling remains in force or unstayed for a period of thirty (30) days, or admit in writing its inability to pay its debts generally as they become due; and/or
(l) The Contractor’s level of performance of the Services, in the reasonable judgment of the Authority falls below the standard of care set forth in Article II hereof and/or
(m) The Contractor ceases to conduct business in the normal course, and/or
(n) The Contractor fails to comply with any material terms, conditions and/or obligations of Contractor set forth hereinTenant.
(o) The Contractor fails to pay any labor, tax obligations, fringe benefit funds, insurance premiums, or subcontractor invoices for Services which the Contractor has received payment from the Authority.
7.02 In the Event of Default by the Contractor, the Authority shall be entitled to exercise any and all remedies available at law and/or in equity, including, but not limited to the right to seek and sue for damages, any costs incurred to enforce, or attempt to enforce this Agreement, including reasonable attorneys fees, which enforcement shall not be limited, and may include appeals of any decisions in lower courts, as well as collection efforts thereafter, compensable damages and consequential damages, withhold and retain payment to the Contractor for the purpose of setoff until such time as the exact amount of damages due to the Authority from the Contractor is determined, seek injunctive relief and/or specific performance and such other equitable remedies that are available, as well as effectuate a termination of this Agreement, which may or could give rise to additional damages. It is expressly understood that the Contractor will remain liable for any damages the Authority sustains in excess of any set-off.
Appears in 1 contract
Sources: Lease Agreement (Impossible Kicks Holding Company, Inc.)
Events of Default and Remedies. 7.01 (a) The following acts and/or omissions shall constitute a default and material breach an "Event of this Agreement Default" by the Contractor and shall be deemed an Debtor hereunder:
(1) An Event of Default if not cured within five (5as defined therein) business days shall occur under any of the Notes, after written giving effect to all notice of default has been sent provisions and cure periods provided for therein;
(2) Failure by the Authority Debtor to the Contractorcomply with or perform any provision of this Agreement, provided provided, however, that if with respect to a failure by the default is such that more than five (5) days are required for a cure, then Contractor shall not be in default if it commences to cure the default within the five (5) day period and thereafter diligently prosecutes the same to completion:
(a) Failure Debtor to comply with any of the material terms provisions of Section 2(c), (e), (i), (j), and conditions (k) of this Agreement following Agreement, such failure is not remedied within twenty (20) days after the Debtor's receipt of written notice from of same; or
(3) Subjection of any of the Authority and failure Collateral to cure; and/orlevy of execution or other judicial process, which is not released, discharged, dismissed, stayed or fully bonded for a period of 30 days or more after its entry, issue or stay, as the case may be.
(b) Failure Upon any default by the Debtor hereunder, the Agent, on behalf of the Lenders, shall have all the rights, remedies and privileges with respect to begin repossession, retention and sale of any or all of the Services in accordance with Collateral of the terms Debtor and disposition of this Agreement; and/orthe proceeds as are accorded by the applicable sections of the Uniform Commercial Code.
(c) If Upon any default by the ContractorDebtor hereunder and upon demand of the Agent, the Debtor shall assemble the Collateral and make it available to the Agent at the place and at the time designated in the judgment of the Authority, is unnecessarily or unreasonably or willfully delaying the performance and completion of the Services; and/ordemand.
(d) The Contractor abandons If the Services Debtor shall default in the performance of any of the provisions of this Agreement on the Debtor's part to be undertaken; and/or
(e) The Authority reasonably believes that the Services cannot be completed within the time required, where in the Authority’s judgmentperformed, the delay is attributable to conditions within Agent may, or at the Contractor’s control; and/or
(f) The Contractor, without just cause, reduces its personnel to a number which in the judgment direction of the AuthorityRequired Lenders (as hereinafter defined in Section 5(g)) shall, is insufficient to complete the Services within a reasonable time and fails to sufficiently increase such personnel when directed to do so by the Authority; and/or
(g) The Contractor assigns, transfers, conveys or otherwise disposes of this Agreement, in whole, or in part, without prior approval of the Authority; and/or
(h) Any Authority officer or employee acquires an interest in this Agreement so as to create a conflict of interest; and/or
(i) The Contractor violates any law, charter provision, ordinance, rule, regulation, governmental order or directive; and/or
(j) Failure to provide adequate inventory, vehicles, equipment and/or personnel; and/or
(k) The filing of a voluntary or involuntary petition in bankruptcy or for reorganization or an arrangement, or an assignment perform same for the benefit of creditors, or the adjudication of the Contractor as being bankrupt or insolvent, or the appointment of a receiver of, or for the Contractor if such appointment, adjudication, or similar order or ruling remains Debtor's accounts and any monies expended in force or unstayed for a period of thirty (30) days, or admit in writing its inability to pay its debts generally as they become due; and/or
(l) The Contractor’s level of performance of the Services, in the reasonable judgment of the Authority falls below the standard of care set forth in Article II hereof and/or
(m) The Contractor ceases to conduct business in the normal course, and/or
(n) The Contractor fails to comply with any material terms, conditions and/or obligations of Contractor set forth herein.
(o) The Contractor fails to pay any labor, tax obligations, fringe benefit funds, insurance premiums, or subcontractor invoices for Services which the Contractor has received payment from the Authority.
7.02 In the Event of Default by the Contractor, the Authority so doing shall be entitled to exercise any and all remedies available at law and/or in equity, including, but not limited chargeable with interest to the right to seek Debtor and sue for damages, any costs incurred to enforce, or attempt to enforce this Agreement, including reasonable attorneys fees, which enforcement shall not be limited, and may include appeals of any decisions in lower courts, as well as collection efforts thereafter, compensable damages and consequential damages, withhold and retain payment added to the Contractor for the purpose of setoff until such time as the exact amount of damages due indebtedness to the Authority from the Contractor is determinedLenders secured hereby, seek injunctive relief and/or specific performance and such other equitable remedies that are available, as well as effectuate a termination of this Agreement, which may or could give rise ratably according to additional damages. It is expressly understood that the Contractor will remain liable for any damages the Authority sustains in excess of any set-offtheir respective Loan Percentage.
Appears in 1 contract
Sources: Security Agreement (Dental Medical Diagnostic Systems Inc)