Events of Default and Remedies. 9.1 The following events shall constitute an "Event of Default" under this Agreement, the occurrence of which shall entitle the Lender to pursue any and all rights and remedies, legal and equitable, available to it under any Loan Document or otherwise. The Occurrence of an Event Default under this Agreement shall constitute a default under each and every other Loan Document. The Lender's rights and remedies are cumulative and may be exercised concurrently or successively from time to time. Any action by the Lender against any property or party shall not serve to release or discharge any other security, property or party in connection with this transaction. The Events of Default are as follows: (a) Failure to pay the principal or interest on the Borrower's present or future indebtedness to the Lender, whether or not arising pursuant to this Agreement, when and as the same shall be due and payable, whether by acceleration or otherwise; provided that such default has not been cured prior to the expiration of ten (10) days following the date upon which the Lender gives the Borrower written Notice of Default. In this Section 9, Notice of Default shall be deemed to have been given (i) on the date of personal delivery of such written notice to a Guarantor, or (ii) on the date on which a duly authorized representative of the Borrower acknowledges receipt of such written notice, or (iii) on the day after sending such written notice to the Borrower by a commonly recognized overnight courier service, such as Federal Express, Purolator, UPS or the like, or (iv) on the third day after sending such written notice to the Borrower by facsimile (to both numbers set forth in Section 16.7) or by depositing the same in the United States mail, postage prepaid, for delivery to the Borrower. (b) Failure to observe, perform and comply with any of the obligations evidenced or secured by a Loan Document, other than as provided in Sections 9.1(a) above; provided that such default has not been cured prior to the expiration of thirty (30) days following the date upon which the Lender gives the Borrower written Notice of Default. (c) Failure to duly and punctually pay, observe and discharge all Indebtedness and other obligations of the Borrower to any third party, unless the same is being contested in good faith by appropriate proceedings and the Borrower has set aside on its books adequate reserves with respect to such Indebtedness or other obligations. (d) The discovery by the Lender of any material inaccuracy in any statement, assurance, representation, covenant, warranty, term or condition by the Borrower contained in this Agreement or in any document delivered or to be delivered by or on behalf of the Borrower pursuant to this Agreement, which inaccuracy would result in a Material Adverse Effect (except that inaccuracies in the Borrower's Due Diligence Documents attributable to the fault or neglect of third-parties shall not constitute a breach of this Section 9.1(d)), or in any other Loan Document, or in any other agreement between the Borrower and the Lender. (e) The filing of a petition by or against the Borrower or any Affiliate seeking relief under the Federal Bankruptcy Code, 11 U.S.C. ss. 101, et seq., and any amendments thereto, or any similar law or regulation, whether federal, state or local, not dismissed within 30 days. (f) The commencement of a proceeding by or against the Borrower or any Affiliate under any statute or other law providing for an assignment for the benefit of creditors, the appointment of a receiver, or any other similar law or regulation, whether federal, state or local, not dismissed within 30 days. (g) The garnishment, attachment, levy or other similar action taken by or on behalf of any creditor of the Borrower, any Affiliate, or any of their respective properties which could have a Material Adverse Effect. (h) Any change in control of the Borrower, Madison Liquidity Investors 104, MACG from that disclosed in Section 2 of this Agreement. 9.2 The Lender may, at its option, terminate its obligation to make advances of the Loan, without notice to the Borrower: (a) upon the occurrence and continuance of any Event of Default set forth in subsections 9.1 (a) through 9.1(h) above; or (b) upon the occurrence and continuance of any event which, with the giving of notice or the lapse of time, or both, would constitute an Event of Default or (C) upon the death or disability of ▇▇▇▇▇ ▇.
Appears in 8 contracts
Sources: Loan Agreement (Madison Liquidity Investors 104 LLC), Loan Agreement (Madison Liquidity Investors 104 LLC), Loan Agreement (Madison Liquidity Investors 104 LLC)
Events of Default and Remedies. 9.1 6.1. The following events occurrence of an Event of Default, as defined in the Credit Agreement, shall constitute an "Event of Default" under this Agreement, the occurrence of which shall entitle the Lender to pursue any and all rights and remedies, legal and equitable, available to it under any Loan Document or otherwise.
6.2. The Occurrence Administrative Agent, for the benefit of an Event Default under this Agreement the Lenders, shall constitute a default under each and every other Loan Document. The Lender's at all times have the rights and remedies are cumulative and may be exercised concurrently or successively of a secured party under the U.C.C. as in effect from time to time. Any action by the Lender against any property or party shall not serve to release or discharge any other security, property or party in connection with this transaction. The Events of Default are as follows:
(a) Failure to pay the principal or interest on the Borrower's present or future indebtedness addition to the Lender, whether or not arising pursuant to rights and remedies of a secured party provided elsewhere within this Agreement, when and as the same shall be due and payable, whether by acceleration any Note or otherwise; provided that such default has not been cured prior to the expiration of ten (10) days following the date upon which the Lender gives the Borrower written Notice of Default. In this Section 9, Notice of Default shall be deemed to have been given (i) on the date of personal delivery of such written notice to a Guarantor, or (ii) on the date on which a duly authorized representative of the Borrower acknowledges receipt of such written notice, or (iii) on the day after sending such written notice to the Borrower by a commonly recognized overnight courier service, such as Federal Express, Purolator, UPS or the like, or (iv) on the third day after sending such written notice to the Borrower by facsimile (to both numbers set forth in Section 16.7) or by depositing the same in the United States mail, postage prepaid, for delivery to the Borrower.
(b) Failure to observe, perform and comply with any of the obligations evidenced or secured by a Loan Document, other than as provided in Sections 9.1(a) above; provided that such default has not been cured prior to the expiration of thirty (30) days following the date upon which the Lender gives the Borrower written Notice of Default.
(c) Failure to duly and punctually pay, observe and discharge all Indebtedness and other obligations of the Borrower to any third party, unless the same is being contested in good faith by appropriate proceedings and the Borrower has set aside on its books adequate reserves with respect to such Indebtedness or other obligations.
(d) The discovery by the Lender of any material inaccuracy in any statement, assurance, representation, covenant, warranty, term or condition by the Borrower contained in this Agreement or in any document delivered or to be delivered by or on behalf of the Borrower pursuant to this Agreement, which inaccuracy would result in a Material Adverse Effect (except that inaccuracies in the Borrower's Due Diligence Documents attributable to the fault or neglect of third-parties shall not constitute a breach of this Section 9.1(d)), or in any other Loan Document, or otherwise provided in any other agreement between the Borrower and the Lenderlaw or equity.
(e) The filing of a petition by or against the Borrower or any Affiliate seeking relief under the Federal Bankruptcy Code, 11 U.S.C. ss6.3. 101, et seq., and any amendments thereto, or any similar law or regulation, whether federal, state or local, not dismissed within 30 days.
(f) The commencement of a proceeding by or against the Borrower or any Affiliate under any statute or other law providing for an assignment for the benefit of creditors, the appointment of a receiver, or any other similar law or regulation, whether federal, state or local, not dismissed within 30 days.
(g) The garnishment, attachment, levy or other similar action taken by or on behalf of any creditor of the Borrower, any Affiliate, or any of their respective properties which could have a Material Adverse Effect.
(h) Any change in control of the Borrower, Madison Liquidity Investors 104, MACG from that disclosed in Section 2 of this Agreement.
9.2 The Lender may, at its option, terminate its obligation to make advances of the Loan, without notice to the Borrower:
(a) upon Upon the occurrence and continuance of any Event of Default set forth in subsections 9.1
(a) through 9.1(h) above; or (b) upon the occurrence and continuance of any event which, with the giving of notice or the lapse of time, or both, would constitute an Event of Default hereunder, the Administrative Agent, in its discretion, may sell, assign, transfer and deliver any of the Collateral, at any time, or from time to time. No prior notice need be given to the Pledgor or to any other Person in the case of any sale of Collateral that the Administrative Agent determines to be declining speedily in value or that is customarily sold in any securities exchange, over-the-counter market or other recognized market, but in any other case the Administrative Agent shall give the Pledgor no fewer than ten days prior notice of either the time and place of any public sale of the Collateral or of the time after which any private sale or other intended disposition thereof is to be made. The Pledgor waives advertisement of any such sale and (Cexcept to the extent specifically required by the preceding sentence) upon waives notice of any kind in respect of any such sale. At any such public sale, the death Administrative Agent or disability any Lender may purchase the Collateral, or any part thereof, free from any right of ▇▇▇▇▇ ▇redemption, all of which rights the Pledgor hereby waives and releases. After deducting all Related Expenses, and after paying all claims, if any, secured by liens having precedence over this Agreement, the Administrative Agent may apply the net proceeds of each such sale to or toward the payment of the Obligations, whether or not then due, in such order and by such division as the Administrative Agent in its sole discretion may deem advisable. Any excess, to the extent permitted by law, shall be paid to the Pledgor, and the obligors on the Obligations shall remain liable for any deficiency. In addition, the Administrative Agent shall at all times have the right to obtain new appraisals of the Pledgor or the Collateral, the cost of which shall be paid by the Pledgor.
Appears in 4 contracts
Sources: Pledge Agreement (ZAGG Inc), Pledge Agreement (ZAGG Inc), Pledge Agreement (ZAGG Inc)
Events of Default and Remedies. 9.1 The Each of the following events shall constitute constitutes an "Event of Default" under this Agreement, Default with respect to the occurrence of which shall entitle the Lender to pursue any and all rights and remedies, legal and equitable, available to it under any Loan Document or otherwise. The Occurrence of an Event Default under this Agreement shall constitute a default under each and every other Loan Document. The Lender's rights and remedies are cumulative and may be exercised concurrently or successively from time to time. Any action by the Lender against any property or party shall not serve to release or discharge any other security, property or party in connection with this transaction. The Events of Default are as followsSecurities if:
(a1) Failure to pay the principal Company defaults for 30 days in the payment when due of interest on, or interest on Liquidated Damages with respect to, the Borrower's present or future indebtedness to the Lender, Securities (whether or not arising pursuant to this Agreementprohibited by the provisions of Article X);
(2) the Company defaults in payment when due of the principal of or premium, when and as if any, on the same shall be due and payable, Securities (whether or not prohibited by acceleration or otherwise; provided that such default has not been cured prior to the expiration provisions of ten Article X);
(103) the Company fails for 30 days following the date upon which the Lender gives the Borrower written Notice after receipt of Default. In this Section 9, a Notice of Default shall be deemed to have been given comply with the provisions in Sections 4.03, 4.04, 4.06, 4.08 and 5.01;
(i4) on the date of personal delivery of such written notice to a Guarantor, or (ii) on the date on which a duly authorized representative of the Borrower acknowledges Company fails for 60 days after receipt of a Notice of Default specifying such written notice, or (iii) on the day after sending such written notice failure to the Borrower by a commonly recognized overnight courier service, such as Federal Express, Purolator, UPS or the like, or (iv) on the third day after sending such written notice to the Borrower by facsimile (to both numbers set forth in Section 16.7) or by depositing the same in the United States mail, postage prepaid, for delivery to the Borrower.
(b) Failure to observe, perform and comply with any of its other agreements in this Indenture or the obligations evidenced Securities;
(5) the Company or secured any Restricted Subsidiary that is a Significant Subsidiary fails to pay any Debt within any applicable grace period after final maturity or acceleration by the holders thereof because of a Loan Document, other than as provided default if the total amount of such Debt unpaid or accelerated at the time exceeds $15.0 million;
(6) any judgment or decree for the payment of money in Sections 9.1(a) above; provided that such default has not been cured excess of $15.0 million (net of any insurance or indemnity payments actually received in respect thereof prior to or within 90 days from the expiration entry thereof, or to be received in respect thereof in the event any appeal thereof shall be unsuccessful) shall be entered against the Company or any Significant Subsidiary that is a Restricted Subsidiary and is not discharged, waived or stayed and either (A) an enforcement proceeding has been commenced by any creditor upon such judgment or decree or (B) there shall be a period of thirty (30) 90 days following the date upon entry of such judgment or decree during which such judgment or decree is not discharged, waived or the Lender gives the Borrower written Notice of Default.execution thereof stayed;
(c7) Failure to duly and punctually payexcept as permitted by this Indenture, observe and discharge all Indebtedness and other obligations of the Borrower to any third party, unless the same Security Guarantee by a Guarantor that is being contested in good faith by appropriate proceedings and the Borrower has set aside on its books adequate reserves with respect to such Indebtedness or other obligations.
(d) The discovery by the Lender of any material inaccuracy a Significant Subsidiary shall be held in any statement, assurance, representation, covenant, warranty, term or condition by the Borrower contained in this Agreement or in any document delivered or judicial proceeding to be delivered by unenforceable or invalid or shall cease for any reason to be in full force and effect or any Guarantor, or any Person acting on behalf of any Guarantor, shall deny or disaffirm its obligations under its Security Guarantee;
(8) the Borrower Company or any Restricted Subsidiary that is a Significant Subsidiary pursuant to this Agreement, which inaccuracy would result in or within the meaning of any Bankruptcy Law:
(A) commences a Material Adverse Effect voluntary case;
(except that inaccuracies in the Borrower's Due Diligence Documents attributable B) consents to the fault or neglect entry of third-parties shall not constitute a breach of this Section 9.1(d)), or an order for relief against it in any other Loan Document, or in any other agreement between the Borrower and the Lender.an involuntary case;
(eC) The filing consents to the appointment of a petition by Custodian of it or against the Borrower or for any Affiliate seeking relief under the Federal Bankruptcy Code, 11 U.S.C. ss. 101, et seq., and any amendments thereto, or any similar law or regulation, whether federal, state or local, not dismissed within 30 days.substantial part of its property;
(fD) The commencement of makes a proceeding by or against the Borrower or any Affiliate under any statute or other law providing for an general assignment for the benefit of its creditors, the appointment of a receiver, ; or takes any other similar law or regulation, whether federal, state or local, not dismissed within 30 days.comparable action under any foreign laws relating to insolvency; or
(g9) The garnishment, attachment, levy a court of competent jurisdiction enters an order or other similar action taken by or on behalf of decree under any creditor of the Borrower, any Affiliate, or any of their respective properties which could have a Material Adverse Effect.
(h) Any change in control of the Borrower, Madison Liquidity Investors 104, MACG from that disclosed in Section 2 of this Agreement.
9.2 The Lender may, at its option, terminate its obligation to make advances of the Loan, without notice to the BorrowerBankruptcy Law that:
(aA) upon is for relief against the occurrence Company or any Restricted Subsidiary that is a Significant Subsidiary in an involuntary case;
(B) appoints a Custodian of the Company or any Restricted Subsidiary that is a Significant Subsidiary or for any substantial part of its property; or
(C) orders the winding-up or liquidation of the Company or any Restricted Subsidiary that is a Significant Subsidiary; or any similar relief is granted under any foreign laws and continuance the order or decree relating thereto remains unstayed and in effect for 60 days: The foregoing shall constitute Events of Default whatever the reason for any such Event of Default set forth in subsections 9.1
(a) through 9.1(h) above; and whether it is voluntary or (b) upon the occurrence and continuance involuntary or is effected by operation of law or pursuant to any judgment, decree or order of any event whichcourt or any order, with the giving rule or regulation of notice any administrative or the lapse of time, or both, would constitute an Event of Default or (C) upon the death or disability of ▇▇▇▇▇ ▇governmental body.
Appears in 4 contracts
Sources: Indenture (Harborside Healthcare Corp), Indenture (Sailors Inc), Indenture (Harborside Healthcare Corp)
Events of Default and Remedies. 9.1 8.1. The entire unpaid principal amount of this Note, together with all accrued interest thereon, shall, at the option of the holder hereof exercised by written notice to the Maker at its principal executive offices, forthwith become and be due and payable if any one or more of the following events shall constitute an (herein called "Event Events of Default" under this Agreement") shall have occurred (for any reason whatsoever and whether such happening shall be voluntary or involuntary or come about 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 11 11 governmental body) and be continuing at the occurrence time of which shall entitle the Lender such notice, that is to pursue any and all rights and remedies, legal and equitable, available to it under any Loan Document or otherwise. The Occurrence of an Event Default under this Agreement shall constitute a default under each and every other Loan Document. The Lender's rights and remedies are cumulative and may be exercised concurrently or successively from time to time. Any action by the Lender against any property or party shall not serve to release or discharge any other security, property or party in connection with this transaction. The Events of Default are as followssay:
(a) Failure to pay if default shall be made in the due and punctual payment of the principal or interest on the Borrower's present or future indebtedness to the Lender, whether or not arising pursuant to of this Agreement, Note when and as the same shall be become due and payable, whether at maturity, by acceleration or otherwise;
(b) if default shall be made in the due and punctual payment of any interest on this Note when and as such interest shall become due and payable, and such default shall have continued for a period of 10 days;
(c) if default shall be made in the performance or observance of any covenant, agreement or condition contained in Section 6 hereof;
(d) if default shall be made in the performance or observance of any of the other covenants, agreements or conditions of the Maker contained in this Note, and such default shall have continued for a period of 30 days;
(e) if the Maker or any Subsidiary shall default beyond any period of grace provided with respect thereto in the payment of principal of or interest on any obligation in respect of borrowed money when due, whether by acceleration or otherwise; provided that such or if the Maker or any Subsidiary shall default has not been cured prior to the expiration of ten (10) days following the date upon which the Lender gives the Borrower written Notice of Default. In this Section 9, Notice of Default shall be deemed to have been given (i) on the date of personal delivery of such written notice to a Guarantor, or (ii) on the date on which a duly authorized representative of the Borrower acknowledges receipt of such written notice, or (iii) on the day after sending such written notice to the Borrower by a commonly recognized overnight courier service, such as Federal Express, Purolator, UPS or the like, or (iv) on the third day after sending such written notice to the Borrower by facsimile (to both numbers set forth in Section 16.7) or by depositing the same in the United States mail, postage prepaid, for delivery to the Borrower.
(b) Failure to observe, perform and comply with any of the obligations evidenced performance or secured by a Loan Document, other than as provided in Sections 9.1(a) above; provided that such default has not been cured prior to the expiration of thirty (30) days following the date upon which the Lender gives the Borrower written Notice of Default.
(c) Failure to duly and punctually pay, observe and discharge all Indebtedness and other obligations of the Borrower to any third party, unless the same is being contested in good faith by appropriate proceedings and the Borrower has set aside on its books adequate reserves with respect to such Indebtedness or other obligations.
(d) The discovery by the Lender observance of any material inaccuracy in any statement, assurance, representation, covenant, warrantyother agreement, term or condition by the Borrower contained in this Agreement such obligation or in any document delivered agreement under 12 12 which any such obligation is created, if the effect of any such default is to cause or to be delivered by permit the holder or holders of such obligations (or a trustee on behalf of the Borrower pursuant such holder or holders) to this Agreement, which inaccuracy would result in a Material Adverse Effect (except that inaccuracies in the Borrower's Due Diligence Documents attributable cause such obligation to become due prior to the fault date of its stated maturity, unless such holder or neglect of third-parties holders or trustee shall not constitute have waived such default after its occurrence or unless such holder or holders or trustee shall have failed to give any notice required to create a breach of this Section 9.1(d)), or in any other Loan Document, or in any other agreement between the Borrower and the Lender.
(e) The filing of a petition by or against the Borrower or any Affiliate seeking relief under the Federal Bankruptcy Code, 11 U.S.C. ss. 101, et seq., and any amendments thereto, or any similar law or regulation, whether federal, state or local, not dismissed within 30 days.default thereunder;
(f) The commencement of a proceeding by or against if the Borrower Maker or any Affiliate under Subsidiary shall:
(i) admit in writing its inability to pay its debts generally as they become due;
(ii) file a petition in bankruptcy or a petition to take advantage of any statute or other law providing for insolvency act;
(iii) make an assignment for the benefit of creditors, ;
(iv) consent to the appointment of a receiver, receiver of itself or of the whole or any other similar law or regulationsubstantial part of its property;
(v) on a petition in bankruptcy filed against it, whether federal, state or local, not dismissed within 30 days.be adjudicated a bankrupt; or
(g) The garnishmentif a court of competent jurisdiction shall enter an order, attachmentjudgment, levy or other similar action taken by or on behalf of any creditor decree appointing, without the consent of the BorrowerMaker or any Subsidiary, a receiver of the Maker or any AffiliateSubsidiary or of the whole or any substantial part of its property, or approving a petition filed against it seeking reorganization or arrangement of the Maker or any Subsidiary under the federal bankruptcy laws or any other applicable law or statute of their respective properties which could have a Material Adverse Effect.the United States of America or any State, district or territory thereof, and such order, judgment or decree shall not be vacated or set aside or stayed within 60 days from the date of entry thereof;
(h) Any change in if, under the provisions of any other law for the relief or aid of debtors, any court of competent jurisdiction shall assume custody or control of the BorrowerMaker or any Subsidiary or of the whole or any substantial part of its property and such custody or control shall not be terminated or stayed within 60 days from the date of assumption of such custody or control; or
(i) if final judgment for the payment of money in excess of $50,000 shall be rendered by a court of record against the Maker or any Subsidiary and the Maker or such Subsidiary shall not discharge the same or provide for its discharge in accordance with its terms, Madison Liquidity Investors 104or shall not procure a stay of execution thereon within 60 days 14 14 from the date of entry thereof and within the period during which execution of such judgment shall have been stayed, MACG from that disclosed appeal therefrom, and cause the execution thereof to be stayed during such appeal.
8.2. In case any one or more of the Events of Default specified in Section 2 8.1 hereof shall have occurred and be continuing, the holder of this AgreementNote may proceed to protect and enforce its rights either by suit in equity and/or by action at law, whether for the specific performance of any covenant or agreement contained in this Note or in aid of the exercise of any power granted in this Note, or the holder of this Note may proceed to enforce the payment of all sums due upon this Note or to enforce any other legal or equitable right of the holder of this Note.
9.2 The Lender may, 8.3. No remedy herein conferred upon the holder hereof is intended to be exclusive of any other remedy and each and every such remedy shall be cumulative and shall be in addition to every other remedy given hereunder or now or hereafter existing at its option, terminate its obligation to make advances law or in equity or by statute or otherwise.
8.4. No course of dealing between the Maker and the holder hereof or any delay on the part of the Loan, without notice to the Borrower:
(a) upon the occurrence and continuance holder hereof in exercising any rights hereunder shall operate as a waiver of any Event of Default set forth in subsections 9.1
(a) through 9.1(h) above; or (b) upon the occurrence and continuance rights of any event which, with the giving of notice or the lapse of time, or both, would constitute an Event of Default or (C) upon the death or disability of ▇▇▇▇▇ ▇holder hereof.
Appears in 4 contracts
Sources: Subordinated Note (Valley Forge Dental Associates Inc), Subordinated Note (Valley Forge Dental Associates Inc), Subordinated Note (Valley Forge Dental Associates Inc)
Events of Default and Remedies. 9.1 8.1. The entire unpaid principal amount of this Note, together with all accrued interest thereon, shall, at the option of the holder hereof exercised by written notice to the Maker at its principal executive offices, forthwith become and be due and payable if any one or more of the following events shall constitute an (herein called "Event Events of Default" under this Agreement") shall have occurred (for any reason whatsoever and whether such happening shall be voluntary or involuntary or come about 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 11 11 governmental body) and be continuing at the occurrence time of which shall entitle the Lender such notice, that is to pursue any and all rights and remedies, legal and equitable, available to it under any Loan Document or otherwise. The Occurrence of an Event Default under this Agreement shall constitute a default under each and every other Loan Document. The Lender's rights and remedies are cumulative and may be exercised concurrently or successively from time to time. Any action by the Lender against any property or party shall not serve to release or discharge any other security, property or party in connection with this transaction. The Events of Default are as followssay:
(a) Failure to pay if default shall be made in the due and punctual payment of the principal or interest on the Borrower's present or future indebtedness to the Lender, whether or not arising pursuant to of this Agreement, Note when and as the same shall be become due and payable, whether at maturity, by acceleration or otherwise;
(b) if default shall be made in the due and punctual payment of any interest on this Note when and as such interest shall become due and payable, and such default shall have continued for a period of 10 days;
(c) if default shall be made in the performance or observance of any covenant, agreement or condition contained in Section 6 hereof;
(d) if default shall be made in the performance or observance of any of the other covenants, agreements or conditions of the Maker contained in this Note, and such default shall have continued for a period of 30 days;
(e) if the Maker or any Subsidiary shall default beyond any period of grace provided with respect thereto in the payment of principal of or interest on any obligation in respect of borrowed money when due, whether by acceleration or otherwise; provided that such or if the Maker or any Subsidiary shall default has not been cured prior to the expiration of ten (10) days following the date upon which the Lender gives the Borrower written Notice of Default. In this Section 9, Notice of Default shall be deemed to have been given (i) on the date of personal delivery of such written notice to a Guarantor, or (ii) on the date on which a duly authorized representative of the Borrower acknowledges receipt of such written notice, or (iii) on the day after sending such written notice to the Borrower by a commonly recognized overnight courier service, such as Federal Express, Purolator, UPS or the like, or (iv) on the third day after sending such written notice to the Borrower by facsimile (to both numbers set forth in Section 16.7) or by depositing the same in the United States mail, postage prepaid, for delivery to the Borrower.
(b) Failure to observe, perform and comply with any of the obligations evidenced performance or secured by a Loan Document, other than as provided in Sections 9.1(a) above; provided that such default has not been cured prior to the expiration of thirty (30) days following the date upon which the Lender gives the Borrower written Notice of Default.
(c) Failure to duly and punctually pay, observe and discharge all Indebtedness and other obligations of the Borrower to any third party, unless the same is being contested in good faith by appropriate proceedings and the Borrower has set aside on its books adequate reserves with respect to such Indebtedness or other obligations.
(d) The discovery by the Lender observance of any material inaccuracy in any statement, assurance, representation, covenant, warrantyother agreement, term or condition by the Borrower contained in this Agreement such obligation or in any document delivered agreement under 12 12 which any such obligation is created, if the effect of any such default is to cause or to be delivered by permit the holder or holders of such obligations (or a trustee on behalf of the Borrower pursuant such holder or holders) to this Agreement, which inaccuracy would result in a Material Adverse Effect (except that inaccuracies in the Borrower's Due Diligence Documents attributable cause such obligation to become due prior to the fault date of its stated maturity, unless such holder or neglect of third-parties holders or trustee shall not constitute have waived such default after its occurrence or unless such holder or holders or trustee shall have failed to give any notice required to create a breach of this Section 9.1(d)), or in any other Loan Document, or in any other agreement between the Borrower and the Lender.
(e) The filing of a petition by or against the Borrower or any Affiliate seeking relief under the Federal Bankruptcy Code, 11 U.S.C. ss. 101, et seq., and any amendments thereto, or any similar law or regulation, whether federal, state or local, not dismissed within 30 days.default thereunder;
(f) The commencement of a proceeding by or against if the Borrower Maker or any Affiliate under Subsidiary shall:
(i) admit in writing its inability to pay its debts generally as they become due;
(ii) file a petition in bankruptcy or a petition to take advantage of any statute or other law providing for insolvency act;
(iii) make an assignment for the benefit of creditors, ;
(iv) consent to the appointment of a receiver, receiver of itself or of the whole or any other similar law or regulationsubstantial part of its property;
(v) on a petition in bankruptcy filed against it, whether federal, state or local, not dismissed within 30 days.be adjudicated a bankrupt; or
(g) The garnishmentif a court of competent jurisdiction shall enter an order, attachmentjudgment, levy or other similar action taken by or on behalf of any creditor decree appointing, without the consent of the BorrowerMaker or any Subsidiary, a receiver of the Maker or any AffiliateSubsidiary or of the whole or any substantial part of its property, or approving a petition filed against it seeking reorganization or arrangement of the Maker or any Subsidiary under the federal bankruptcy laws or any other applicable law or statute of their respective properties which could have a Material Adverse Effect.the United States of America or any State, district or territory thereof, and such order, judgment or decree shall not be vacated or set aside or stayed within 60 days from the date of entry thereof;
(h) Any change in if, under the provisions of any other law for the relief or aid of debtors, any court of competent jurisdiction shall assume custody or control of the BorrowerMaker or any Subsidiary or of the whole or any substantial part of its property and such custody or control shall not be terminated or stayed within 60 days from the date of assumption of such custody or control; or
(i) if final judgment for the payment of money in excess of $50,000 shall be rendered by a court of record against the Maker or any Subsidiary and the Maker or such Subsidiary shall not discharge the same or provide for its discharge in accordance with its terms, Madison Liquidity Investors 104or shall not procure a stay of execution thereon within 60 days 14 14 from the date of entry thereof and within the period during which execution of such judgment shall have been stayed, MACG from that disclosed appeal therefrom, and cause the execution thereof to be stayed during such appeal.
8.2. In case any one or more of the Events of Default specified in Section 2 8.1 hereof shall have occurred and be continuing, the holder of this AgreementNote may proceed to protect and enforce its rights either by suit in equity and/or by action at law, whether for the specific performance of any covenant or agreement contained in this Note or in aid of the exercise of any power granted in this Note, or the holder of this Note may proceed to enforce the payment of all sums due upon this Note or to enforce any other legal or equitable right of the holder of this Note.
9.2 The Lender may, at its option, terminate its obligation to make advances of the Loan, without notice to the Borrower:
(a) 8.3. No remedy herein conferred upon the occurrence and continuance holder hereof is intended to be exclusive of any Event of Default set forth other remedy and each and every such remedy shall be cumulative and shall be in subsections 9.1
(a) through 9.1(h) above; addition to every other remedy given hereunder or (b) upon the occurrence and continuance of any event which, with the giving of notice now or the lapse of time, hereafter existing at law or both, would constitute an Event of Default in equity or (C) upon the death by statute or disability of ▇▇▇▇▇ ▇otherwise.
Appears in 3 contracts
Sources: Subordinated Note (Valley Forge Dental Associates Inc), Subordinated Note (Valley Forge Dental Associates Inc), Subordinated Note (Valley Forge Dental Associates Inc)
Events of Default and Remedies. 9.1 SECTION 3.1. Remedies in Case of an Occurrence of an Event of Default The following events occurrence of any event, or the existence of any condition, that is specified as an "Event of Default" under the Indenture or any other Security Document shall constitute an "Event of Default" under this Agreement, the occurrence of which shall entitle the Lender to pursue any and all rights and remedies, legal and equitable, available to it under any Loan Document or otherwisehereunder. The Occurrence of an An Event Default under this Agreement shall constitute a default under each and every other Loan Document. The Lender's rights and remedies are cumulative and may be exercised concurrently or successively from time to time. Any action by the Lender against any property or party shall not serve to release or discharge any other security, property or party in connection with this transaction. The Events of Default are as follows:
(a) Failure to pay the principal or interest on the Borrower's present or future indebtedness to the Lender, whether or not arising pursuant to this Agreement, when and as the same shall be due and payable, whether by acceleration or otherwise; provided that such default has not been cured prior to the expiration of ten (10) days following the date upon which the Lender gives the Borrower written Notice of Default. In this Section 9, Notice of Default shall be deemed to occur if the Collateral Agent should receive at any time following the closing of the transaction a Secretary of State's Report indicating that the Collateral Agent's security interest is not prior to all other security interests or other interests reflected in the report, other than Permitted Collateral Liens. If an Event of Default shall have been given occurred and be continuing, Mortgagee may, but shall not be obligated to, in addition to any other action permitted by law (and not limited in any manner by the remedies contained in the Notes and the Indenture), take one or more of the following actions, to the greatest extent permitted by applicable local law:
3.1.1 By written notice to Mortgagor, the Mortgagee may, and shall, upon the request of the holders of not less than 25% in aggregate principal amount of the outstanding Notes, declare the principal of and accrued interest on, all the Secured Obligations to be due and payable immediately;
3.1.2 Personally, or by its agents or attorneys, (i) enter into and upon all or any part of the Mortgaged Property and exclude Mortgagor, its agents and servants wholly therefrom, (ii) use, operate, manage and control the Premises, the Real Estate Fixtures and the Equipment and conduct the business thereof, (iii) maintain and restore the Mortgaged Property, (iv) make all reasonably necessary or proper repairs, renewals and replacements and such useful Alterations thereto and thereon as Mortgagee may deem advisable, (v) manage, lease and operate the Mortgaged Property and carry on the date business thereof and exercise all rights and powers of personal delivery Mortgagor with respect thereto either in the name of such written notice to a GuarantorMortgagor or otherwise, or (vi) collect and receive all earnings, revenues, rents, issues, profits and income of the Mortgaged Property and any or every part thereof;
3.1.3 With or without entry, personally or by its agents or attorneys, (i) sell the Mortgaged Property and all estate, right, title and interest, claim and demand therein at one or more sales in one or more parcels, in accordance with the provisions of Section 3.2 or (ii) on institute and prosecute proceedings for the date on which a duly authorized representative complete or partial foreclosure of the Borrower acknowledges receipt Lien and security interests created and evidenced hereby; or
3.1.4 Take such steps to protect and enforce its rights whether by action, suit or proceeding at law or in equity for the specific performance of such written noticeany covenant, condition or agreement in the Indenture, the Notes and any other document evidencing or securing the Secured Obligations or in aid of the execution of any power granted in this Mortgage, or (iii) on for any foreclosure hereunder, or for the day after sending such written notice enforcement of any other appropriate legal or equitable remedy or otherwise as Mortgagee shall elect. Notwithstanding anything to the Borrower contrary in this Mortgage, if Mortgagor is in breach of a covenant, obligation or representation qualified by a commonly recognized overnight courier serviceMaterial Adverse Effect, then (i) if such as Federal Express, Purolator, UPS or the like, or (iv) on the third day after sending such written notice breach is due to the Borrower by facsimile (to both numbers set forth in Section 16.7) or by depositing the same in the United States mail, postage prepaid, for delivery to the Borrower.
(b) Failure to observe, perform and comply with any existence of the obligations evidenced or secured by a Loan Document, other than as provided in Sections 9.1(a) above; provided that such default has not been cured prior to the expiration of thirty (30) days following the date upon which the Lender gives the Borrower written Notice of Default.
(c) Failure to duly and punctually pay, observe and discharge all Indebtedness and other obligations of the Borrower to any third party, unless the same is being contested in good faith by appropriate proceedings and the Borrower has set aside on its books adequate reserves with respect to such Indebtedness or other obligations.
(d) The discovery by the Lender of any material inaccuracy in any statement, assurance, representation, covenant, warranty, term or condition by the Borrower contained in this Agreement or in any document delivered or to be delivered by or on behalf of the Borrower pursuant to this Agreement, which inaccuracy would result in a Material Adverse Effect (except that inaccuracies in the Borrower's Due Diligence Documents attributable to the fault or neglect of third-parties shall not constitute a breach of this Section 9.1(d)), or in any other Loan Document, or in any other agreement between the Borrower and the Lender.
(e) The filing of a petition by or against the Borrower or any Affiliate seeking relief under the Federal Bankruptcy Code, 11 U.S.C. ss. 101, et seq., and any amendments thereto, or any similar law or regulation, whether federal, state or local, not dismissed within 30 days.
(f) The commencement of a proceeding by or against the Borrower or any Affiliate under any statute or other law providing for an assignment for the benefit of creditors, the appointment of a receiver, or any other similar law or regulation, whether federal, state or local, not dismissed within 30 days.
(g) The garnishment, attachment, levy or other similar action taken by or on behalf of any creditor of the Borrower, any Affiliate, or any of their respective properties which could have a Material Adverse Effect.
type referred to in clause (hi) Any change in control of the Borrowerdefinition of such term, Madison Liquidity Investors 104, MACG from that disclosed then Mortgagee shall be entitled to those remedies set forth in Section 2 of this Agreement.
9.2 The Lender may, at its option, terminate its obligation to make advances of the Loan, without notice to the Borrower:
(a) Article III upon the occurrence and continuance of any Event of Default set forth in subsections 9.1
(a) through 9.1(h) above; or (b) upon the occurrence and continuance of any event which, with the giving of notice or the lapse of time, or both, would constitute an Event of Default resulting from such breach, and (ii) if such breach is due to the existence of a Material Adverse Effect of the type referred to in clause (ii) of the definition of such term, then (x) Mortgagee's remedies under this Mortgage shall be limited to an action for specific performance with respect to the performance of such covenant or obligation and (Cy) upon the death or disability such breach shall be deemed not to be and not to give rise to an Event of ▇▇▇▇▇ ▇Default.
Appears in 3 contracts
Sources: Mortgage, Assignment of Leases, Security Agreement and Fixture Filing (Blue Steel Capital Corp), Mortgage, Assignment of Leases, Security Agreement and Fixture Filing (Blue Steel Capital Corp), Mortgage, Assignment of Leases, Security Agreement and Fixture Filing (Blue Steel Capital Corp)
Events of Default and Remedies. 9.1 The Termination - Time is of the essence herein and it is understood and agreed that Secured Party may terminate this Agreement, refuse to advance funds hereunder, and declare the aggregate of all Advances outstanding hereunder immediately due and payable upon the occurrence of any of the following events shall constitute (each hereinafter called an "Event of Default" "), and that Debtor's liabilities under this sentence shall constitute additional obligations of Debtor secured under this Agreement, the occurrence of which shall entitle the Lender to pursue any and all rights and remedies, legal and equitable, available to it under any Loan Document or otherwise. The Occurrence of an Event Default under this Agreement shall constitute a default under each and every other Loan Document. The Lender's rights and remedies are cumulative and may be exercised concurrently or successively from time to time. Any action by the Lender against any property or party shall not serve to release or discharge any other security, property or party in connection with this transaction. The Events of Default are as follows:.
(a) Failure Debtor shall fail to pay make any payment to Secured Party, whether constituting the principal amount of any Advance, interest thereon or interest on the Borrower's present or future indebtedness to the Lender, whether or not arising pursuant to this Agreementany other payment due hereunder, when and as due in accordance with the same terms of this Agreement or with any demand permitted to be made by Secured Party under this Agreement or any Promissory Note, or shall fail to pay when due any other amount owing to Secured Party under any other agreement between Secured Party and Debtor, or shall fail in the due performance or compliance with any other term or condition hereof or thereof, or shall be due and payable, whether by acceleration in default in the payment of any liabilities constituting indebtedness for money borrowed or otherwise; provided that such default has not been cured prior the deferred payment of the purchase price of property or a rental payment with respect to property material to the expiration conduct of ten (10) days following the date upon which the Lender gives the Borrower written Notice of Default. In this Section 9, Notice of Default shall be deemed to have been given (i) on the date of personal delivery of such written notice to a Guarantor, or (ii) on the date on which a duly authorized representative of the Borrower acknowledges receipt of such written notice, or (iii) on the day after sending such written notice to the Borrower by a commonly recognized overnight courier service, such as Federal Express, Purolator, UPS or the like, or (iv) on the third day after sending such written notice to the Borrower by facsimile (to both numbers set forth in Section 16.7) or by depositing the same in the United States mail, postage prepaid, for delivery to the Borrower.Debtor's business;
(b) Failure to observe, perform and comply with A tax lien or notice thereof shall have been filed against any of the obligations evidenced Debtor's property or secured by a Loan Documentproceeding in bankruptcy, other than as provided in Sections 9.1(a) above; provided that such default has not been cured prior to the expiration of thirty (30) days following the date upon which the Lender gives the Borrower written Notice of Default.
(c) Failure to duly and punctually pay, observe and discharge all Indebtedness and other obligations of the Borrower to any third party, unless the same is being contested in good faith by appropriate proceedings and the Borrower has set aside on its books adequate reserves with respect to such Indebtedness insolvency or other obligations.
(d) The discovery by the Lender of any material inaccuracy in any statement, assurance, representation, covenant, warranty, term or condition by the Borrower contained in this Agreement or in any document delivered or to receivership shall be delivered by or on behalf of the Borrower pursuant to this Agreement, which inaccuracy would result in a Material Adverse Effect (except that inaccuracies in the Borrower's Due Diligence Documents attributable to the fault or neglect of third-parties shall not constitute a breach of this Section 9.1(d)), or in any other Loan Document, or in any other agreement between the Borrower and the Lender.
(e) The filing of a petition instituted by or against the Borrower Debtor or any Affiliate seeking relief under the Federal Bankruptcy Code, 11 U.S.C. ss. 101, et seq., and any amendments thereto, Debtor's property or any similar law or regulation, whether federal, state or local, not dismissed within 30 days.
(f) The commencement of a proceeding by or against the Borrower or any Affiliate under any statute or other law providing for an assignment shall have been made by Debtor for the benefit of creditors;
(c) In the event that Secured Party deems itself insecure for any reason or the Vehicles are deemed by Secured Party to be in danger of misuse, loss, seizure or confiscation or other disposition not authorized by this Agreement;
(d) Termination of any franchise authorizing Debtor to sell Vehicles;
(e) A misrepresentation by Debtor for the appointment purpose of obtaining credit or an extension of credit or a receiverrefusal by Debtor to execute documents relating to the Collateral and/or Secured Party's security interest therein or to furnish financial information to Secured Party at reasonable intervals or to permit persons designated by Secured Party to examine Debtor's books or records and to make periodic inspections of the Collateral; or
(f) Debtor, without Secured Party's prior written consent, shall guarantee, endorse or otherwise become surety for or upon the obligations of others except as may be done in the ordinary course of Debtor's business, shall transfer or otherwise dispose of any proprietary, partnership or share interest Debtor has in his business, or all or substantially all of the assets thereof, shall enter into any merger or consolidation, if a corporation, or shall make any substantial disbursements or use of funds of Debtor's business, except as may be done in the ordinary course of Debtor's business, or assign this Agreement in whole or in part or any obligation hereunder. Upon the occurrence of an Event of Default, Secured Party may take immediate possession of said Vehicles without demand or further notice and without legal process; and for the purpose and furtherance thereof, Debtor shall, if Secured Party so requests, assemble the Vehicles and make them available to Secured Party at a reasonably convenient place designated by Secured Party and Secured Party shall have the right, and Debtor hereby authorizes and empowers Secured Party to enter upon the premises wherever said Vehicles may be, to remove same. In addition, Secured Party or its assigns shall have all the rights and remedies applicable under the Uniform Commercial Code or under any other similar statute or at common law or regulationin equity or under this Agreement. Such rights and remedies shall be cumulative. Debtor hereby agrees that it shall pay all expenses and reimburse Secured Party for any expenditures, whether federalincluding reasonable attorneys' fees and legal expenses, state or local, not dismissed within 30 days.
(g) The garnishment, attachment, levy or other similar action taken by or on behalf in connection with Secured Party's exercise of any creditor of the Borrower, any Affiliate, or any of their respective properties which could have a Material Adverse Effect.
(h) Any change in control of the Borrower, Madison Liquidity Investors 104, MACG from that disclosed in Section 2 of its rights and remedies under this Agreement.
9.2 The Lender may, at its option, terminate its obligation to make advances of the Loan, without notice to the Borrower:
(a) upon the occurrence and continuance of any Event of Default set forth in subsections 9.1
(a) through 9.1(h) above; or (b) upon the occurrence and continuance of any event which, with the giving of notice or the lapse of time, or both, would constitute an Event of Default or (C) upon the death or disability of ▇▇▇▇▇ ▇.
Appears in 3 contracts
Sources: Security Agreement and Master Credit Agreement (Sonic Automotive Inc), Security Agreement and Master Credit Agreement (Sonic Automotive Inc), Security Agreement and Master Credit Agreement (Sonic Automotive Inc)
Events of Default and Remedies. 9.1 The following events Securities shall constitute have the Events of Default as set forth in Section 5.01 of the Indenture. Subject to certain limitations in the Indenture, if an "Event of Default occurs and is continuing, the Trustee by notice to the Company or the holders of at least 25% in aggregate principal amount of the Outstanding Securities by notice to the Company and the Trustee may declare all amounts payable on the Securities (including any Additional Payments) to be due and payable immediately; provided that, if the Property Trustee is the sole Holder of the Security and if upon an Event of Default" under this Agreement, the occurrence Trustee or the holder of which shall entitle not less than 25% in aggregate principal amount of the Lender then outstanding Securities fail to pursue any and all rights and remedies, legal and equitable, available to it under any Loan Document or otherwise. The Occurrence of an Event Default under this Agreement shall constitute a default under each and every other Loan Document. The Lender's rights and remedies are cumulative and may be exercised concurrently or successively from time to time. Any action by the Lender against any property or party shall not serve to release or discharge any other security, property or party in connection with this transaction. The Events of Default are as follows:
(a) Failure to pay declare the principal or interest on of all the Borrower's present or future indebtedness Securities to the Lender, whether or not arising pursuant to this Agreement, when and as the same shall be immediately due and payable, whether the holders of at least 25% in aggregate liquidation amount of Preferred Securities then outstanding shall have such right by acceleration or otherwise; provided that such default has not been cured prior a notice in writing to the expiration Company and the Trustee; and upon any such declaration such principal and all accrued interest shall become immediately due and payable; and provided further that the payment of ten (10) days following principal and interest on such Securities shall remain subordinated to the date upon which extent provided in the Lender gives Indenture. In the Borrower written Notice case of an Event of Default. In this Section 9, Notice the holders of Default shall be deemed to have been given (i) on the date of personal delivery of such written notice to a Guarantor, or (ii) on the date on which a duly authorized representative majority in principal amount of the Borrower acknowledges receipt of such written notice, or (iii) on the day after sending such Outstanding Securities by written notice to the Borrower by a commonly recognized overnight courier service, such as Federal Express, Purolator, UPS Trustee may rescind an acceleration and its consequences if the rescission would not conflict with any judgment or decree and if all existing Events of Default have been cured or waived except nonpayment of principal or interest that has become due solely because of the acceleration. Holders may not enforce the Indenture or the like, or (iv) on the third day after sending such written notice to the Borrower by facsimile (to both numbers set forth in Section 16.7) or by depositing the same in the United States mail, postage prepaid, for delivery to the Borrower.
(b) Failure to observe, perform and comply with any of the obligations evidenced or secured by a Loan Document, other than Securities except as provided in Sections 9.1(a) above; provided that such default has not been cured prior the Indenture. Subject to certain limitations, holders of a majority in principal amount of the then outstanding Securities issued under the Indenture may direct the Trustee in its exercise of any trust or power. The Company must furnish annually compliance certificates to the expiration Trustee. The above description of thirty (30) days following Events of Default and remedies is qualified by reference to, and subject in its entirety by, the date upon which the Lender gives the Borrower written Notice of Default.
(c) Failure to duly and punctually pay, observe and discharge all Indebtedness and other obligations of the Borrower to any third party, unless the same is being contested in good faith by appropriate proceedings and the Borrower has set aside on its books adequate reserves with respect to such Indebtedness or other obligations.
(d) The discovery by the Lender of any material inaccuracy in any statement, assurance, representation, covenant, warranty, term or condition by the Borrower more complete description thereof contained in this Agreement or in any document delivered or to be delivered by or on behalf of the Borrower pursuant to this Agreement, which inaccuracy would result in a Material Adverse Effect (except that inaccuracies in the Borrower's Due Diligence Documents attributable to the fault or neglect of third-parties shall not constitute a breach of this Section 9.1(d)), or in any other Loan Document, or in any other agreement between the Borrower and the LenderIndenture.
(e) The filing of a petition by or against the Borrower or any Affiliate seeking relief under the Federal Bankruptcy Code, 11 U.S.C. ss. 101, et seq., and any amendments thereto, or any similar law or regulation, whether federal, state or local, not dismissed within 30 days.
(f) The commencement of a proceeding by or against the Borrower or any Affiliate under any statute or other law providing for an assignment for the benefit of creditors, the appointment of a receiver, or any other similar law or regulation, whether federal, state or local, not dismissed within 30 days.
(g) The garnishment, attachment, levy or other similar action taken by or on behalf of any creditor of the Borrower, any Affiliate, or any of their respective properties which could have a Material Adverse Effect.
(h) Any change in control of the Borrower, Madison Liquidity Investors 104, MACG from that disclosed in Section 2 of this Agreement.
9.2 The Lender may, at its option, terminate its obligation to make advances of the Loan, without notice to the Borrower:
(a) upon the occurrence and continuance of any Event of Default set forth in subsections 9.1
(a) through 9.1(h) above; or (b) upon the occurrence and continuance of any event which, with the giving of notice or the lapse of time, or both, would constitute an Event of Default or (C) upon the death or disability of ▇▇▇▇▇ ▇.
Appears in 3 contracts
Sources: Indenture (Chemed Capital Trust), Indenture (Chemed Corp), Indenture (Carriage Services Inc)
Events of Default and Remedies. 9.1 The following events shall constitute an "Event In the event Lessee or any guarantor of Default" Lessee’s obligation under this Agreement, the occurrence of which Lease shall entitle the Lender to pursue any and all rights and remedies, legal and equitable, available to it under any Loan Document or otherwise. The Occurrence of an Event Default under this Agreement shall constitute a default under each and every other Loan Document. The Lender's rights and remedies are cumulative and may be exercised concurrently or successively from time to time. Any action by the Lender against any property or party shall not serve to release or discharge any other security, property or party in connection with this transaction. The Events of Default are as follows:
(a) Failure fail to pay the principal make any rental or interest on the Borrower's present or future indebtedness to the Lender, whether or not arising pursuant to this Agreement, when and as other payment due hereunder within ten days after the same shall be due and payable, whether by acceleration or otherwise; provided that such default has not been cured prior to the expiration of ten (10) days following the date upon which the Lender gives the Borrower written Notice of Default. In this Section 9, Notice of Default shall be deemed to have been given (i) on the date of personal delivery of such written notice to a Guarantorbecome due, or (iib) on the date on which a duly authorized representative of the Borrower acknowledges receipt of such written noticeadmit its inability to pay its debts, or (iii) on the day after sending such written notice to the Borrower by a commonly recognized overnight courier service, such as Federal Express, Purolator, UPS or the like, or (iv) on the third day after sending such written notice to the Borrower by facsimile (to both numbers set forth in Section 16.7) or by depositing the same in the United States mail, postage prepaid, for delivery to the Borrower.
(b) Failure to observe, perform and comply with any of the obligations evidenced or secured by a Loan Document, other than as provided in Sections 9.1(a) above; provided that such default has not been cured prior to the expiration of thirty (30) days following the date upon which the Lender gives the Borrower written Notice of Default.
(c) Failure to duly and punctually pay, observe and discharge all Indebtedness and other obligations of the Borrower to any third party, unless the same is being contested in good faith by appropriate proceedings and the Borrower has set aside on its books adequate reserves with respect to such Indebtedness or other obligations.
(d) The discovery by the Lender of any material inaccuracy in any statement, assurance, representation, covenant, warranty, term or condition by the Borrower contained in this Agreement or in any document delivered or to be delivered by or on behalf of the Borrower pursuant to this Agreement, which inaccuracy would result in a Material Adverse Effect (except that inaccuracies in the Borrower's Due Diligence Documents attributable to the fault or neglect of third-parties shall not constitute a breach of this Section 9.1(d)), or in any other Loan Document, or in any other agreement between the Borrower and the Lender.
(e) The filing of a petition by or against the Borrower or any Affiliate seeking relief under the Federal Bankruptcy Code, 11 U.S.C. ss. 101, et seq., and any amendments thereto, or any similar law or regulation, whether federal, state or local, not dismissed within 30 days.
(f) The commencement of a proceeding by or against the Borrower or any Affiliate under any statute or other law providing for make an assignment for the benefit of its creditors, or (d) have its leasehold estate taken upon execution or other process of law against, Lessee, except eminent domain, or (e) abandon the appointment Premises during the Term hereof, or (f) have any receiver appointed in any proceeding commenced against it based upon its insolvency and if such receiver is not discharged within ninety (90) days after appointment, or (g) breach or fail to perform any of a receiverthe material agreements, covenants and/or provisions herein or comply with any applicable rule or regulation pertaining to the Building or the Project, other than the agreement to pay rental or any other similar law payment due hereunder, and Lessee fails to use its best efforts to cure such breach or regulation, whether federal, state or local, not dismissed failure within 30 days.
(g) The garnishment, attachment, levy or other similar action taken by or on behalf of any creditor of the Borrower, any Affiliatefifteen days after written notice from Lessor, or any of their respective properties which could have a Material Adverse Effect.
(h) Any change in control any proceedings are filed against Lessee or any guarantor of this lease under the Bankruptcy Code or any similar provisions of any future federal bankruptcy law, or (i) fail to vacate the Premises immediately upon the expiration of the Borrower, Madison Liquidity Investors 104, MACG from that disclosed in Section 2 Term or the earlier termination of this Agreement.
9.2 The Lender mayLease, at its optionby lapse of time or otherwise; then Lessor, terminate its obligation to make advances of in any such event(s), shall have the Loan, without notice to the Borroweroption to:
(aI) upon the occurrence and continuance of any Event of Default set forth in subsections 9.1Sue for rents as they become due;
(aII) through 9.1(hTerminate this Lease, resume possession of the Premises (together with all additions, alterations, fixtures and improvements thereto) above; for its own account and recover immediately from Lessee any and all sums and damages for violation of Lessee’s obligations hereunder in existence or (b) upon due at the occurrence time of termination and continuance of any event which, with the giving of notice or the lapse of time, or both, would constitute an Event of Default or (C) upon the death or disability of damages for L▇▇▇▇▇ ▇’s default in an amount equal to the difference between the Rent for which provision is made in this Lease and fair rental value of the Premises for the remainder of the Lease term, together with all other charges, rental payments, costs and expenses herein agreed to be paid by L▇▇▇▇▇, all actual and verifiable costs and expenses of Lessor in connection with any attempts to re-lease or relet the Premises (including, but not limited to, broker’s fees, advertising costs and cleaning expenses), the costs of recovering the Premises, and the costs of repairs and renovations reasonably necessary in connection with any re-leasing or reletting.
(III) Resume possession and re-lease or re-rent the Premises for the remainder of the Lease term for the account of Lessee and recover from Lessee at the end of the Lease term or at the time each payment of rent becomes due under this Lease (adjusted to present value), as the Lessor may elect, the difference between the rent for which provision is made in this Lease and the rent received on the releasing or re-renting, together with all costs and expenses of Lessor in connection with such re-leasing or re-rental and collection of rent and the cost of all repairs or renovations reasonably necessary in connection with the re-leasing or re-rental, and if this option is exercised, Lessor shall, in addition, be entitled to recover from Lessee immediately any other damages occasioned by or resulting from the abandonment or a breach or default other than a default in the payment of rent;
(IV) Accelerate the whole or any part of Rent, Additional Rent and Operating Costs for the entire unexpired balance of the Term, as well as all other charges, payments, costs and expenses to be paid by Lessee hereunder, including but not limited to damages for violation of L▇▇▇▇▇’s obligations hereunder in existence at the time of acceleration, so that all sums due and payable under this Lease will be treated as payable in advance on the date of acceleration and this Lease will remain in effect. For the purposes of determining the amount due upon acceleration, Rent, Additional Rent and L▇▇▇▇▇’s pro rata share of Operating Costs shall be treated as fixed at the levels in effect on the date of acceleration for the remaining term of this Lease; but to the extent required by law, the total amount so accelerated will be reduced to present value; or
(V) Without terminating this Lease, enter upon the Premises, without being liable for prosecution or any claim for damages therefore (whether caused by the negligence of Lessor or otherwise), and do whatever Lessee is obligated to do under the terms of this Lease, in which event Lessee shall reimburse Lessor on demand for any expenses which Lessor may incur in thus effecting compliance with the terms of this Lease. Notwithstanding the foregoing, with respect to re-lease or re-renting the Premises, Lessor and Lessee agree that Lessor shall only be required to use the same efforts Lessor then uses to lease other properties Lessor owns or manages (or if the Premises is then managed for Lessor, then Lessor shall instruct such manager to use the same efforts such manager then uses to lease other space or properties which its owns or manages); provided, however, that Lessor (or its manager) shall not be required to give any preference or priority to the showing or leasing of the Premises over any other space that Lessor (or its manager) may be leasing or have available and may place a suitable prospective tenant in any such available space regardless of when such alternative space becomes available; provided, further, that Lessor shall not be required to observe any instruction given by Lessee about such re-letting or accept any tenant unless such offered tenant has a creditworthiness acceptable to Lessor, leases the entire Premises, agrees to use the Premises in a manner consistent with the Lease, and leases the Premises at the same or greater rent, for no more than the current term and on the same terms and conditions of this Lease without the expenditure by lessor for tenant improvements or broker’s commissions. The remedies for which provision is made in this Article shall not be exclusive and in addition thereto Lessor may pursue such other remedies as are now or hereinafter provided by law, equity or statue in the event of any breach, default or abandonment by L▇▇▇▇▇.
Appears in 3 contracts
Sources: Commercial Lease (Vocodia Holdings Corp), Commercial Lease (Vocodia Holdings Corp), Commercial Lease (Vocodia Holdings Corp)
Events of Default and Remedies. 9.1 The following events shall constitute an "Event (a) If any one or more of Default" under this Agreement, the occurrence of which shall entitle the Lender to pursue any and all rights and remedies, legal and equitable, available to it under any Loan Document or otherwise. The Occurrence of an Event Default under this Agreement shall constitute a default under each and every other Loan Document. The Lender's rights and remedies are cumulative and may be exercised concurrently or successively from time to time. Any action by the Lender against any property or party shall not serve to release or discharge any other security, property or party in connection with this transaction. The Events of Default are shall occur or shall exist, the Collateral Agent may then or at any time thereafter, so long as follows:
(a) Failure to pay the principal or interest on the Borrower's present or future indebtedness to the Lender, whether or not arising pursuant to this Agreement, when and as the same shall be due and payable, whether by acceleration or otherwise; provided that such default has not been cured prior to shall continue, foreclose the expiration of ten (10) days following lien or security interest in the date upon which the Lender gives the Borrower written Notice of Default. In this Section 9, Notice of Default shall be deemed to have been given (i) on the date of personal delivery of such written notice to a GuarantorCollateral in any way permitted by law, or upon twenty (ii20) on the date on which a duly authorized representative of the Borrower acknowledges receipt of such written notice, or (iii) on the day after sending such days’ prior written notice to the Borrower by a commonly recognized overnight courier servicerelevant Grantor, sell any or all Collateral at private sale at any time or place in one or more sales, at such price or prices and upon such terms, either for cash or on credit, as Federal Expressthe Collateral Agent, Purolatorin its sole discretion, UPS or the likemay elect, or (iv) sell any or all Collateral at public auction, either for cash or on credit, as the third day after sending Collateral Agent, in its sole discretion, may elect, and at any such written notice to sale, the Borrower by facsimile (to both numbers set forth in Section 16.7) Collateral Agent may bid for and become the purchaser of any or by depositing all such Collateral. Pending any such action the same in Collateral Agent may liquidate the United States mail, postage prepaid, for delivery to the BorrowerCollateral.
(b) Failure If any one or more of the Events of Default shall occur or shall exist, the Collateral Agent may then, or at any time thereafter, so long as such default shall continue, grant extensions to, or adjust claims of, or make compromises or settlements with, debtors, guarantors or any other parties with respect to observeCollateral or any securities, perform and comply with guarantees or insurance applying thereon, without notice to or the consent of any Grantor, without affecting each Grantor’s liability under this Agreement or the Notes. Each Grantor waives notice of acceptance, of nonpayment, protest or notice of protest of any Accounts or Chattel Paper, any of the obligations evidenced its contract rights or secured by a Loan Document, Collateral and any other than as provided in Sections 9.1(a) above; provided that such default has not been cured prior notices to the expiration of thirty (30) days following the date upon which the Lender gives the Borrower written Notice of Defaulteach Grantor may be entitled.
(c) Failure to duly and punctually pay, observe and discharge all Indebtedness and other obligations If any one or more of the Borrower Events of Default shall occur or shall exist and be continuing, then in any such event, the Collateral Agent shall have such additional rights and remedies in respect of the Collateral or any portion thereof as are provided by the Code and such other rights and remedies in respect thereof which it may have at law or in equity or under this Agreement, including without limitation the right to enter any third partypremises where Equipment, unless the same is being contested in good faith by appropriate proceedings Inventory and/or Fixtures are located and the Borrower has set aside on its books adequate reserves with respect to such Indebtedness take possession and control thereof without demand or other obligationsnotice and without prior judicial hearing or legal proceedings, which each Grantor expressly waives.
(d) The discovery Collateral Agent shall apply the Proceeds of any sale or liquidation of the Collateral, and, subject to Section 5, any Proceeds received by the Lender Collateral Agent from insurance, first to the payment of any material inaccuracy in any statement, assurance, representation, covenant, warranty, term or condition the reasonable costs and expenses incurred by the Borrower contained Collateral Agent in this Agreement connection with such sale or in any document delivered or collection, including without limitation reasonable attorneys’ fees and legal expenses; second to be delivered by or on behalf the payment of the Borrower pursuant Notes, pro rata, whether on account of principal or interest or otherwise as the Collateral Agent, in its sole discretion, may elect, and then to this Agreementpay the balance, which inaccuracy would result in a Material Adverse Effect (except that inaccuracies in the Borrower's Due Diligence Documents attributable if any, to the fault relevant Grantor or neglect of third-parties as otherwise required by law. If such Proceeds are insufficient to pay the amounts required by law, the Grantors shall not constitute a breach of this Section 9.1(d)), or in be liable for any other Loan Document, or in any other agreement between the Borrower and the Lenderdeficiency.
(e) The filing of a petition by or against Upon the Borrower or any Affiliate seeking relief under the Federal Bankruptcy Code, 11 U.S.C. ss. 101, et seq., and any amendments thereto, or any similar law or regulation, whether federal, state or local, not dismissed within 30 days.
(f) The commencement of a proceeding by or against the Borrower or any Affiliate under any statute or other law providing for an assignment for the benefit of creditors, the appointment of a receiver, or any other similar law or regulation, whether federal, state or local, not dismissed within 30 days.
(g) The garnishment, attachment, levy or other similar action taken by or on behalf occurrence of any creditor Event of Default, each Grantor shall promptly upon written demand by the Collateral Agent assemble the Equipment, Inventory and Fixtures and make them available to the Holders at a place or places to be designated by the Collateral Agent. The rights of the BorrowerCollateral Agent under this paragraph to have the Equipment, any Affiliate, or any of their respective properties which could have a Material Adverse Effect.
(h) Any change in control Inventory and Fixtures assembled and made available to it is of the Borrower, Madison Liquidity Investors 104, MACG from that disclosed in Section 2 essence of this Agreement.
9.2 The Lender Agreement and the Collateral Agent may, at its optionelection, terminate its obligation to make advances of the Loanenforce such right by an action in equity for injunctive relief or specific performance, without notice to the Borrower:
(a) upon the occurrence and continuance requirement of any Event of Default set forth in subsections 9.1
(a) through 9.1(h) above; or (b) upon the occurrence and continuance of any event which, with the giving of notice or the lapse of time, or both, would constitute an Event of Default or (C) upon the death or disability of ▇▇▇▇▇ ▇a bond.
Appears in 3 contracts
Sources: Security Agreement (Rackwise, Inc.), Security Agreement (Boldface Group, Inc.), Security Agreement (Boldface Group, Inc.)
Events of Default and Remedies. 9.1 The following events shall constitute an "Event (a) If any one or more of Default" under this Agreement, the occurrence of which shall entitle the Lender to pursue any and all rights and remedies, legal and equitable, available to it under any Loan Document or otherwise. The Occurrence of an Event Default under this Agreement shall constitute a default under each and every other Loan Document. The Lender's rights and remedies are cumulative and may be exercised concurrently or successively from time to time. Any action by the Lender against any property or party shall not serve to release or discharge any other security, property or party in connection with this transaction. The Events of Default are shall occur or shall exist, the Collateral Agent may then or at any time thereafter, so long as follows:
(a) Failure to pay the principal or interest on the Borrower's present or future indebtedness to the Lender, whether or not arising pursuant to this Agreement, when and as the same shall be due and payable, whether by acceleration or otherwise; provided that such default has not been cured prior to shall continue, foreclose the expiration of ten (10) days following lien or security interest in the date upon which the Lender gives the Borrower written Notice of Default. In this Section 9, Notice of Default shall be deemed to have been given (i) on the date of personal delivery of such written notice to a GuarantorCollateral in any way permitted by law, or upon fifteen (ii15) on the date on which a duly authorized representative of the Borrower acknowledges receipt of such written notice, or (iii) on the day after sending such days’ prior written notice to the Borrower by a commonly recognized overnight courier servicerelevant Grantor, sell any or all Collateral at private sale at any time or place in one or more sales, at such price or prices and upon such terms, either for cash or on credit, as Federal Expressthe Collateral Agent, Purolatorin its sole discretion, UPS or the likemay elect, or (iv) sell any or all Collateral at public auction, either for cash or on credit, as the third day after sending Collateral Agent, in its sole discretion, may elect, and at any such written notice to sale, the Borrower by facsimile (to both numbers set forth in Section 16.7) Collateral Agent may bid for and become the purchaser of any or by depositing all such Collateral. Pending any such action the same in Collateral Agent may liquidate the United States mail, postage prepaid, for delivery to the BorrowerCollateral.
(b) Failure If any one or more of the Events of Default shall occur or shall exist, the Collateral Agents may then, or at any time thereafter, so long as such default shall continue, grant extensions to, or adjust claims of, or make compromises or settlements with, debtors, guarantors or any other parties with respect to observeCollateral or any securities, perform and comply with guarantees or insurance applying thereon, without notice to or the consent of any Grantor, without affecting the Grantor’s liability under this Agreement or the Notes. The Grantor waives notice of acceptance, of nonpayment, protest or notice of protest of any Accounts or Chattel Paper, any of the obligations evidenced its contract rights or secured by a Loan Document, Collateral and any other than as provided in Sections 9.1(a) above; provided that such default has not been cured prior notices to the expiration of thirty (30) days following the date upon which the Lender gives the Borrower written Notice of DefaultGrantor may be entitled.
(c) Failure to duly and punctually pay, observe and discharge all Indebtedness and other obligations If any one or more of the Borrower Events of Default shall occur or shall exist and be continuing, then in any such event, the Collateral Agent shall have such additional rights and remedies in respect of the Collateral or any portion thereof as are provided by the Code and such other rights and remedies in respect thereof which it may have at law or in equity or under this Agreement, including without limitation the right to enter any third partypremises where Equipment, unless Inventory and/or Fixtures are located and take possession and control thereof without demand or notice and without prior judicial hearing or legal proceedings, which the same is being contested in good faith by appropriate proceedings and the Borrower has set aside on its books adequate reserves with respect to such Indebtedness or other obligationsGrantor expressly waives.
(d) The discovery Collateral Agent shall apply the Proceeds of any sale or liquidation of the Collateral, and, subject to Section 5, any Proceeds received by the Lender Collateral Agent from insurance, first to the payment of any material inaccuracy in any statement, assurance, representation, covenant, warranty, term or condition the reasonable costs and expenses incurred by the Borrower contained Collateral Agent in this Agreement connection with such sale or in any document delivered or collection, including without limitation reasonable attorneys’ fees and legal expenses; second to be delivered by or on behalf the payment of the Borrower pursuant Notes, pro rata, whether on account of principal or interest or otherwise as the Collateral Agent, in its sole discretion, may elect, and then to this Agreementpay the balance, which inaccuracy would result in a Material Adverse Effect (except that inaccuracies in the Borrower's Due Diligence Documents attributable if any, to the fault relevant Grantor or neglect of third-parties as otherwise required by law. If such Proceeds are insufficient to pay the amounts required by law, the Grantors shall not constitute a breach of this Section 9.1(d)), or in be liable for any other Loan Document, or in any other agreement between the Borrower and the Lenderdeficiency.
(e) The filing Upon the occurrence of a petition by or against the Borrower or any Affiliate seeking relief under the Federal Bankruptcy Code, 11 U.S.C. ss. 101, et seq., and any amendments thereto, or any similar law or regulation, whether federal, state or local, not dismissed within 30 days.
(f) The commencement Event of a proceeding by or against the Borrower or any Affiliate under any statute or other law providing for an assignment for the benefit of creditorsDefault, the appointment of Grantor shall promptly upon written demand by the Collateral Agent assemble the Equipment, Inventory and Fixtures and make them available to the Holders at a receiver, place or any other similar law or regulation, whether federal, state or local, not dismissed within 30 days.
(g) places to be designated by the Collateral Agent The garnishment, attachment, levy or other similar action taken by or on behalf of any creditor rights of the BorrowerCollateral Agent under this paragraph to have the Equipment, any Affiliate, or any of their respective properties which could have a Material Adverse Effect.
(h) Any change in control Inventory and Fixtures assembled and made available to it is of the Borrower, Madison Liquidity Investors 104, MACG from that disclosed in Section 2 essence of this Agreement.
9.2 The Lender Agreement and the Collateral Agent may, at its optionelection, terminate its obligation to make advances of the Loanenforce such right by an action in equity for injunctive relief or specific performance, without notice to the Borrower:
(a) upon the occurrence and continuance requirement of any Event of Default set forth in subsections 9.1
(a) through 9.1(h) above; or (b) upon the occurrence and continuance of any event which, with the giving of notice or the lapse of time, or both, would constitute an Event of Default or (C) upon the death or disability of ▇▇▇▇▇ ▇a bond.
Appears in 3 contracts
Sources: Security Agreement (Thompson Designs Inc), Security Agreement (Gelia Group, Corp.), Subscription Agreement (Codesmart Holdings, Inc.)
Events of Default and Remedies. 9.1 (a) The following events occurrence of any event or the existence of any condition which is specified as an “Event of Default” under the Credit Agreement shall constitute an "“Event of Default" under this Agreement, the occurrence of which shall entitle the Lender to pursue any and all rights and remedies, legal and equitable, available to it under any Loan Document or otherwise. The Occurrence of an Event Default under this Agreement shall constitute a default under each and every other Loan Document. The Lender's rights and remedies are cumulative and may be exercised concurrently or successively from time to time. Any action by the Lender against any property or party shall not serve to release or discharge any other security, property or party in connection with this transaction. The Events of Default are as follows:
(a) Failure to pay the principal or interest on the Borrower's present or future indebtedness to the Lender, whether or not arising pursuant to this Agreement, when and as the same shall be due and payable, whether by acceleration or otherwise; provided that such default has not been cured prior to the expiration of ten (10) days following the date upon which the Lender gives the Borrower written Notice of Default. In this Section 9, Notice of Default shall be deemed to have been given (i) on the date of personal delivery of such written notice to a Guarantor, or (ii) on the date on which a duly authorized representative of the Borrower acknowledges receipt of such written notice, or (iii) on the day after sending such written notice to the Borrower by a commonly recognized overnight courier service, such as Federal Express, Purolator, UPS or the like, or (iv) on the third day after sending such written notice to the Borrower by facsimile (to both numbers set forth in Section 16.7) or by depositing the same in the United States mail, postage prepaid, for delivery to the Borrower” hereunder.
(b) Failure Upon the occurrence and during the continuation of any Event of Default, the Agent shall have, in addition to observeall other rights provided herein or by law, perform the rights and comply remedies of a secured party under the UCC (regardless of whether the UCC is the law of the jurisdiction where the rights or remedies are asserted and regardless of whether the UCC applies to the affected Collateral), and further the Agent may, without demand and, to the extent permitted by applicable law, without advertisement, notice, hearing or process of law, all of which each Debtor hereby waives to the extent permitted by applicable law, at any time or times, sell and deliver any or all Collateral held by or for it at public or private sale, at any securities exchange or broker’s board or at the Agent’s office or elsewhere, for cash, upon credit or otherwise, at such prices and upon such terms as the Agent deems advisable, in its discretion. In the exercise of any such remedies, the Agent may sell the Collateral as a unit even though the sales price thereof may be in excess of the amount remaining unpaid on the Secured Obligations. Also, if less than all the Collateral is sold, the Agent shall have no duty to marshal or apportion the part of the Collateral so sold as between the Debtors, or any of them, but may sell and deliver any or all of the Collateral without regard to which of the Debtors are the owners thereof. In addition to all other sums due any Secured Creditor hereunder, each Debtor shall pay the Secured Creditors all reasonable costs and expenses incurred by the Secured Creditors, including reasonable attorneys’ fees and court costs, in obtaining, liquidating or enforcing payment of Collateral or the Secured Obligations or in the prosecution or defense of any action or proceeding by or against any Secured Creditor or any Debtor concerning any matter arising out of or connected with this Agreement or the Collateral or the Secured Obligations, including, without limitation, any of the obligations evidenced foregoing arising in, arising under or secured by related to a Loan Documentcase under the United States Bankruptcy Code (or any successor statute). Any requirement of reasonable notice shall be met if such notice is personally served on or mailed, other than as provided in Sections 9.1(a) above; provided that such default has not been cured prior postage prepaid, to the expiration Debtors in accordance with Section 13(b) hereof at least 10 days before the time of thirty (30) days following sale or other event giving rise to the date upon requirement of such notice. The Agent shall not be obligated to make any sale or other disposition of the Collateral regardless of notice having been given. Any Secured Creditor may be the purchaser at any such sale. Each Debtor hereby waives all of its rights of redemption from any such sale. The Agent may postpone or cause the postponement of the sale of all or any portion of the Collateral by announcement at the time and place of such sale, and such sale may, without further notice, be made at the time and place to which the Lender gives sale was postponed or the Borrower written Notice Agent may further postpone such sale by announcement made at such time and place. The Agent has no obligation to prepare the Collateral for sale. The Agent may sell or otherwise dispose of Defaultthe Collateral without giving any warranties as to the Collateral or any part thereof, including disclaimers of any warranties of title or the like, and each Debtor acknowledges and agrees that the absence of such warranties shall not render the disposition commercially unreasonable.
(c) Failure Without in any way limiting the foregoing, upon the occurrence and during the continuation of any Event of Default hereunder, in addition to duly all other rights provided herein or by law, (i) the Agent shall have the right to take physical possession of any and punctually pay, observe and discharge all Indebtedness and other obligations of the Borrower Collateral and anything found therein, the right for that purpose to enter without legal process any third partypremises where the Collateral may be found (provided such entry be done lawfully), unless the same is being contested in good faith by appropriate proceedings and the Borrower has set aside right to maintain such possession on its books adequate reserves with respect the relevant Debtor’s premises or to remove the Collateral or any part thereof to such Indebtedness or other obligationsplaces as the Agent may desire and (ii) each Debtor shall, upon the Agent’s demand, promptly assemble the Collateral and make it available to the Agent at a place reasonably designated by the Agent. If the Agent exercises its right to take possession of the Collateral, each Debtor shall also at its expense perform any and all other steps reasonably requested by the Agent to preserve and protect the security interest hereby granted in the Collateral, such as placing and maintaining signs indicating the security interest of the Agent, appointing overseers for the Collateral and maintaining Collateral records.
(d) The discovery by powers conferred upon the Lender Secured Creditors hereunder are solely to protect their interest in the Collateral and shall not impose on them any duty to exercise such powers. The Agent shall be deemed to have exercised reasonable care in the custody and preservation of the Collateral in its possession or control if such Collateral is accorded treatment substantially equivalent to that which the Agent accords its own property, consisting of similar type assets. This Agreement constitutes an assignment of rights only and not an assignment of any material inaccuracy duties or obligations of the Debtors in any statement, assurance, representation, covenant, warranty, term or condition by the Borrower contained in this Agreement or in any document delivered or to be delivered by or on behalf of the Borrower pursuant to this Agreement, which inaccuracy would result in a Material Adverse Effect (except that inaccuracies in the Borrower's Due Diligence Documents attributable way related to the fault or neglect of third-parties shall not constitute a breach of this Section 9.1(d))Collateral, or in any other Loan Document, or in any other agreement between the Borrower and the LenderAgent shall have no duty or obligation to discharge any such duty or obligation. Neither any Secured Creditor nor any party acting as attorney for any Secured Creditor shall be liable for any acts or omissions or for any error of judgment or mistake of fact or law other than such person’s gross negligence or willful misconduct.
(e) The filing of a petition Failure by the Agent to exercise any right, remedy or against the Borrower or any Affiliate seeking relief option under the Federal Bankruptcy Code, 11 U.S.C. ss. 101, et seq., and any amendments thereto, or any similar law or regulation, whether federal, state or local, not dismissed within 30 days.
(f) The commencement of a proceeding by or against the Borrower or any Affiliate under any statute or other law providing for an assignment for the benefit of creditors, the appointment of a receiver, this Agreement or any other similar law agreement between any Debtor and the Agent or regulationprovided by law, whether federalor delay by the Agent in exercising the same, state or localshall not operate as a waiver; and no waiver shall be effective unless it is in writing, signed by the party against whom such waiver is sought to be enforced and then only to the extent specifically stated. The rights and remedies of the Secured Creditors under this Agreement shall be cumulative and not dismissed within 30 days.
(g) The garnishment, attachment, levy or other similar action taken by or on behalf exclusive of any creditor of the Borrower, other right or remedy which any Affiliate, or any of their respective properties which could have a Material Adverse Effect.
(h) Any change in control of the Borrower, Madison Liquidity Investors 104, MACG from that disclosed in Section 2 Secured Creditor may have. For purposes of this Agreement.
9.2 The Lender may, at its option, terminate its obligation to make advances of the Loan, without notice to the Borrower:
(a) upon the occurrence and continuance of any Event of Default set forth in subsections 9.1
(a) through 9.1(h) above; or (b) upon the occurrence and continuance of any event which, with the giving of notice or the lapse of time, or both, would constitute an Event of Default or (C) upon shall be construed as continuing after its occurrence until the death or disability of ▇▇▇▇▇ ▇same is waived in writing by the Agent.
Appears in 2 contracts
Sources: Security Agreement (Unified Western Grocers Inc), Security Agreement (Unified Western Grocers Inc)
Events of Default and Remedies. 9.1 The following events Now, if the Property Owner shall constitute an "Event keep and perform each of Default" under the covenants, conditions, obligations and agreements of the Property Owner contained in the Note and this AgreementDeed of Trust, the occurrence of which shall entitle the Lender to pursue any and all rights and remediesthen, legal and equitable, available to it under any Loan Document or otherwise. The Occurrence of an Event Default under this Agreement shall constitute a default under each and every other Loan Document. The Lender's rights and remedies are cumulative and may be exercised concurrently or successively from time to time. Any action by the Lender against any property or party shall not serve to release or discharge any other security, property or party in connection with this transaction. The Events of Default are as follows:
(a) Failure to pay the principal or interest on the Borrower's present or future indebtedness to the Lender, whether or not arising pursuant to this Agreement, when and as the same trust conveyance shall be due of no further force or effect. But, if the Property Owner shall fail to keep and payable, whether by acceleration or otherwise; provided that such default has not been cured prior to the expiration of ten (10) days following the date upon which the Lender gives the Borrower written Notice of Default. In this Section 9, Notice of Default shall be deemed to have been given (i) on the date of personal delivery of such written notice to a Guarantor, or (ii) on the date on which a duly authorized representative of the Borrower acknowledges receipt of such written notice, or (iii) on the day after sending such written notice to the Borrower by a commonly recognized overnight courier service, such as Federal Express, Purolator, UPS or the like, or (iv) on the third day after sending such written notice to the Borrower by facsimile (to both numbers set forth in Section 16.7) or by depositing the same in the United States mail, postage prepaid, for delivery to the Borrower.
(b) Failure to observe, perform and comply with any of the covenants, conditions, obligations evidenced or secured by a Loan Documentand agreements in the Note and this Deed of Trust, other than as provided in Sections 9.1(a) above; provided that and such default has defaults are not been cured prior to the expiration of within thirty (30) days following from written notice to Property Owner specifying such default, then, and in any of such events, this trust conveyance shall remain in full force and effect, and at the option of THDA, all amounts advanced under the Note or hereunder shall become due and payable at once, without notice, and the Trustee, acting in person or through an agent or agents duly appointed by him for this purpose, is hereby authorized and empowered, upon giving twenty (20) days’ notice by three (3) publications in any newspaper, daily or weekly, published in the county in which the Property is located, to sell the Property at the front door of the Courthouse in said county (or at such other place at said Courthouse as is usually and customarily used for the conduct of foreclosure sales) to the highest bidder for cash, at public outcry, free from the equity of redemption, any and all statutory rights of redemption including, without limitation, those provided in T.C.A. Section 66-8-101, as amended, or as may be hereinafter enacted, homestead, dower, courtesy, any elective share, and all other exemptions or marital rights of every kind, which are hereby expressly waived; and the Trustee is authorized and empowered to execute and deliver a deed to the purchaser. The sale may be adjourned from day to day by the Trustee or his agent or successor, by announcement at the Courthouse on the date upon which the Lender gives the Borrower written Notice of Default.
(c) Failure to duly and punctually pay, observe and discharge all Indebtedness and other obligations of the Borrower to any third party, unless the same sale is being contested in good faith by appropriate proceedings and the Borrower has set aside on its books adequate reserves with respect to such Indebtedness or other obligations.
(d) The discovery by the Lender of any material inaccuracy in any statement, assurance, representation, covenant, warranty, term or condition by the Borrower contained in this Agreement or in any document delivered or to be delivered by or on behalf of the Borrower pursuant to this Agreement, which inaccuracy would result in a Material Adverse Effect (except that inaccuracies in the Borrower's Due Diligence Documents attributable to the fault or neglect of third-parties shall not constitute a breach of this Section 9.1(d)), or in any other Loan Document, or in any other agreement between the Borrower and the Lender.
(e) The filing of a petition by or against the Borrower or any Affiliate seeking relief under the Federal Bankruptcy Code, 11 U.S.C. ss. 101, et seq., and any amendments theretooriginally set, or any similar law or regulationadjournment thereof, whether federal, state or local, not dismissed within 30 days.
(f) and may be reset at a later date without any additional publication. The commencement of a proceeding by or against creditor may bid at any sale under this trust conveyance. Property Owner agrees that the Borrower or any Affiliate under any statute or other law providing for an assignment for the benefit of creditors, the appointment of a receiver, or any other similar law or regulation, whether federal, state or local, not dismissed within 30 days.
(g) The garnishment, attachment, levy or other similar action taken by or on behalf of any creditor of the Borrower, any Affiliate, or any of their respective properties which could have a Material Adverse Effect.
(h) Any change in control of the Borrower, Madison Liquidity Investors 104, MACG from that disclosed in Section 2 of this Agreement.
9.2 The Lender Trustee may, at its option, terminate its obligation to make advances any time after default in the payment of any part of the Loanindebtedness, enter and take possession of the Property, and shall only account for the net rents actually received by him. Property Owner further agrees that, in the event the Trustee fails, before selling the Property as herein provided, to enter and take possession thereof, the purchaser shall be entitled to immediate possession thereof upon the delivery to him by the Trustee of a deed for the Property. THDA may, at any time and from time to time, without notice assigning cause, in THDA’s sole and absolute discretion, remove the Trustee herein named and appoint a successor to execute this trust, by an instrument in writing duly executed by THDA and filed for record in the county in which the Property is located and, upon the execution and filing of such instrument, the title herein conveyed to the BorrowerTrustee shall be vested in the successor so appointed. In the event of a sale of the Property under and by virtue of this trust, the Property Owner, and all persons holding under Property Owner, shall be and become the tenants at will of the purchaser from and after the execution and delivery of a deed to the purchaser. Upon any sale under this Deed of Trust, the proceeds will be applied by the Trustee:
(a) upon the occurrence and continuance of any Event of Default set forth in subsections 9.1
(a) through 9.1(h) above; or (b) upon the occurrence and continuance of any event which, with the giving of notice or the lapse of time, or both, would constitute an Event of Default or (C) upon the death or disability of ▇▇▇▇▇ ▇.
Appears in 2 contracts
Sources: Deed of Trust, Deed of Trust
Events of Default and Remedies. 9.1 The following events shall constitute an "Event (a) If any one or more of Default" under this Agreement, the occurrence of which shall entitle the Lender to pursue any and all rights and remedies, legal and equitable, available to it under any Loan Document or otherwise. The Occurrence of an Event Default under this Agreement shall constitute a default under each and every other Loan Document. The Lender's rights and remedies are cumulative and may be exercised concurrently or successively from time to time. Any action by the Lender against any property or party shall not serve to release or discharge any other security, property or party in connection with this transaction. The Events of Default are shall occur or shall exist, the Collateral Agent may then or at any time thereafter, so long as follows:
(a) Failure to pay the principal or interest on the Borrower's present or future indebtedness to the Lender, whether or not arising pursuant to this Agreement, when and as the same shall be due and payable, whether by acceleration or otherwise; provided that such default has not been cured prior to shall continue, foreclose the expiration of ten lien or security interest in the Collateral in any way permitted by law, or upon fifteen (1015) days following the date upon which the Lender gives the Borrower written Notice of Default. In this Section 9, Notice of Default shall be deemed to have been given (i) on the date of personal delivery of such written notice to a Guarantor, or (ii) on the date on which a duly authorized representative of the Borrower acknowledges receipt of such written notice, or (iii) on the day after sending such prior written notice to the Borrower by a commonly recognized overnight courier serviceBorrower, sell any or all Collateral at private sale at any time or place in one or more sales, at such price or prices and upon such terms, either for cash or on credit, as Federal Expressthe Collateral Agent, Purolatorin its sole discretion, UPS or the likemay elect, or (iv) sell any or all Collateral at public auction, either for cash or on credit, as the third day after sending Collateral Agent, in its sole discretion, may elect, and at any such written notice to sale, the Borrower by facsimile (to both numbers set forth in Section 16.7) Collateral Agent may bid for and become the purchaser of any or by depositing all such Collateral. Pending any such action the same in Collateral Agent may liquidate the United States mail, postage prepaid, for delivery to the BorrowerCollateral.
(b) Failure If any one or more of the Events of Default shall occur or shall exist, the Collateral Agents may then, or at any time thereafter, so long as such default shall continue, grant extensions to, or adjust claims of, or make compromises or settlements with, debtors, guarantors or any other parties with respect to observeCollateral or any securities, perform and comply with guarantees or insurance applying thereon, without notice to or the consent of the Borrower, without affecting the Borrower’s liability under this Agreement or the Note. The Borrower waives notice of acceptance, of nonpayment, protest or notice of protest of any Accounts or Chattel Paper, any of the obligations evidenced its contract rights or secured by a Loan Document, Collateral and any other than as provided in Sections 9.1(a) above; provided that such default has not been cured prior notices to the expiration of thirty (30) days following the date upon which the Lender gives the Borrower written Notice of Defaultmay be entitled.
(c) Failure to duly and punctually pay, observe and discharge all Indebtedness and other obligations If any one or more of the Borrower Events of Default shall occur or shall exist and be continuing, then in any such event, the Collateral Agent shall have such additional rights and remedies in respect of the Collateral or any portion thereof as are provided by the Code and such other rights and remedies in respect thereof which it may have at law or in equity or under this Agreement, including without limitation the right to enter any third partypremises where Equipment, unless the same is being contested in good faith by appropriate proceedings Inventory and/or Fixtures are located and take possession and control thereof without demand or notice and without prior judicial hearing or legal proceedings, which the Borrower has set aside on its books adequate reserves with respect to such Indebtedness or other obligationsexpressly waives.
(d) The discovery Collateral Agent shall apply the Proceeds of any sale or liquidation of the Collateral, and, subject to Section 5, any Proceeds received by the Lender Collateral Agent from insurance, first to the payment of any material inaccuracy in any statement, assurance, representation, covenant, warranty, term or condition the reasonable costs and expenses incurred by the Borrower contained Collateral Agent in this Agreement connection with such sale or in any document delivered or collection, including without limitation reasonable attorneys’ fees and legal expenses; second to be delivered by or on behalf the payment of the Borrower pursuant Note, pro rata, whether on account of principal or interest or otherwise as the Collateral Agent, in its sole discretion, may elect, and then to this Agreementpay the balance, which inaccuracy would result in a Material Adverse Effect (except that inaccuracies in the Borrower's Due Diligence Documents attributable if any, to the fault Borrower or neglect of third-parties shall not constitute a breach of this Section 9.1(d))as otherwise required by law. If such Proceeds are insufficient to pay the amounts required by law, or in any other Loan Document, or in any other agreement between the Borrower and the Lendershall be liable for any deficiency.
(e) The filing Upon the occurrence of a petition by or against any Event of Default, the Borrower shall promptly upon written demand by the Collateral Agent assemble the Equipment, Inventory and Fixtures and make them available to the Lender at a place or any Affiliate seeking relief under places to be designated by the Federal Bankruptcy Code, 11 U.S.C. ss. 101, et seq., and any amendments thereto, or any similar law or regulation, whether federal, state or local, not dismissed within 30 days.
(f) Collateral Agent The commencement of a proceeding by or against the Borrower or any Affiliate under any statute or other law providing for an assignment for the benefit of creditors, the appointment of a receiver, or any other similar law or regulation, whether federal, state or local, not dismissed within 30 days.
(g) The garnishment, attachment, levy or other similar action taken by or on behalf of any creditor rights of the BorrowerCollateral Agent under this paragraph to have the Equipment, any Affiliate, or any of their respective properties which could have a Material Adverse Effect.
(h) Any change in control Inventory and Fixtures assembled and made available to it is of the Borrower, Madison Liquidity Investors 104, MACG from that disclosed in Section 2 essence of this Agreement.
9.2 The Lender Agreement and the Collateral Agent may, at its optionelection, terminate its obligation to make advances of the Loanenforce such right by an action in equity for injunctive relief or specific performance, without notice to the Borrower:
(a) upon the occurrence and continuance requirement of any Event of Default set forth in subsections 9.1
(a) through 9.1(h) above; or (b) upon the occurrence and continuance of any event which, with the giving of notice or the lapse of time, or both, would constitute an Event of Default or (C) upon the death or disability of ▇▇▇▇▇ ▇a bond.
Appears in 2 contracts
Sources: Security Agreement (Vynleads, Inc.), Security Agreement (Ardent Mines LTD)
Events of Default and Remedies. 9.1 The following events shall constitute 5.1 For determination of an "Event of Default" under , this Agreement refers to and incorporates by reference the applicable provisions of the Funding Agreement, as if fully set forth in this Agreement.
5.2 Upon the occurrence of an Event of Default and at any time thereafter, Secured Party shall have all rights and remedies provided in this Agreement, the occurrence Funding Agreement, any other agreements between Grantor and Secured Party, the Uniform Commercial Code or other applicable law, all of which shall entitle rights and remedies may be exercised without notice to Grantor, all such notices being hereby waived, except such notice as is expressly provided for hereunder or is not waivable under applicable law. All rights and remedies of Secured Party are cumulative and not exclusive and are enforceable, in Secured Party's discretion, alternatively, successively, or concurrently on any one or more occasions and in any order Secured Party may determine. Without limiting the Lender foregoing, Secured Party may (a) accelerate the payment of the Notes and all Obligations and demand immediate payment thereof to pursue Secured Party, (b) with or without judicial process or the aid or assistance of others, enter upon any premises on or in which any of the Collateral may be located and take possession of the Collateral or complete processing, manufacturing and repair of all or any portion of the Collateral, (c) require Grantor, at Grantor's expense, to assemble and make available to Secured Party any part or all of the Collateral at any place and time designated by Secured Party, (d) collect, foreclose, receive, appropriate, setoff and realize upon any and all rights Collateral, (e) extend the time of payment of, compromise or settle for cash, credit, return of merchandise, and remediesupon any terms or conditions, legal any and equitableall accounts or other Collateral which includes a monetary obligation and discharge or release the account debtor or other obligor, available to it under any Loan Document or otherwise. The Occurrence of an Event Default under this Agreement shall constitute a default under each and every other Loan Document. The Lender's rights and remedies are cumulative and may be exercised concurrently or successively from time to time. Any action by the Lender against any property or party shall not serve to release or discharge any other security, property or party in connection with this transaction. The Events of Default are as follows:
(a) Failure to pay the principal or interest on the Borrower's present or future indebtedness to the Lender, whether or not arising pursuant to this Agreement, when and as the same shall be due and payable, whether by acceleration or otherwise; provided that such default has not been cured prior to the expiration of ten (10) days following the date upon which the Lender gives the Borrower written Notice of Default. In this Section 9, Notice of Default shall be deemed to have been given (i) on the date of personal delivery of such written notice to a Guarantor, or (ii) on the date on which a duly authorized representative of the Borrower acknowledges receipt of such written notice, or (iii) on the day after sending such written notice to the Borrower by a commonly recognized overnight courier service, such as Federal Express, Purolator, UPS or the like, or (iv) on the third day after sending such written notice to the Borrower by facsimile (to both numbers set forth in Section 16.7) or by depositing the same in the United States mail, postage prepaid, for delivery to the Borrower.
(b) Failure to observe, perform and comply with without affecting any of the obligations evidenced or secured by a Loan DocumentObligations, other than as provided in Sections 9.1(a) above; provided that such default has not been cured prior to the expiration of thirty (30) days following the date upon which the Lender gives the Borrower written Notice of Default.
(c) Failure to duly and punctually pay, observe and discharge all Indebtedness and other obligations of the Borrower to any third party, unless the same is being contested in good faith by appropriate proceedings and the Borrower has set aside on its books adequate reserves with respect to such Indebtedness or other obligations.
(d) The discovery by the Lender of any material inaccuracy in any statement, assurance, representation, covenant, warranty, term or condition by the Borrower contained in this Agreement or in any document delivered or to be delivered by or on behalf of the Borrower pursuant to this Agreement, which inaccuracy would result in a Material Adverse Effect (except that inaccuracies in the Borrower's Due Diligence Documents attributable to the fault or neglect of third-parties shall not constitute a breach of this Section 9.1(d)), or in any other Loan Document, or in any other agreement between the Borrower and the Lender.
(e) The filing of a petition by or against the Borrower or any Affiliate seeking relief under the Federal Bankruptcy Code, 11 U.S.C. ss. 101, et seq., and any amendments thereto, or any similar law or regulation, whether federal, state or local, not dismissed within 30 days.
(f) The commencement sell, lease, transfer, assign, deliver or otherwise dispose of a proceeding any and all Collateral (including, without
5.3 Secured Party may apply the cash proceeds of Collateral actually received by or against the Borrower or Secured Party from any Affiliate under any statute sale, lease, foreclosure or other law providing for an assignment disposition of the Collateral to payment of any of the Notes or Obligations, in whole or in part (including reasonable attorneys' fees and legal expenses incurred by Secured Party with respect thereto or otherwise chargeable to Grantor) and in such order as Secured Party may elect, when due. Grantor shall remain liable to Secured Party for the benefit payment of creditorsany deficiency together with interest at the highest rate provided for herein and all costs and expenses of collection or enforcement, the appointment of a receiver, or any other similar law or regulation, whether federal, state or local, not dismissed within 30 daysincluding reasonable attorneys' fees and legal expenses.
(g) The garnishment, attachment, levy or other similar action taken by or on behalf of any creditor of the Borrower, any Affiliate, or any of their respective properties which could have a Material Adverse Effect.
(h) Any change in control of the Borrower, Madison Liquidity Investors 104, MACG from that disclosed in Section 2 of this Agreement.
9.2 The Lender 5.4 Secured Party may, at its option, terminate its obligation to make advances during the existence of the Loan, without notice to the Borrower:
(a) upon the occurrence and continuance of any Event of Default set forth in subsections 9.1
(a) through 9.1(h) above; or (b) upon the occurrence and continuance of any event which, with the giving of notice or the lapse of time, or both, would constitute an Event of Default cure any default by Grantor under any agreement with a third party or (C) pay or bond on appeal any judgment entered against Grantor, discharge taxes, liens, security interests or other encumbrances at any time levied on or existing with respect to the Collateral and pay any amount, incur any expense, or perform any act which, in Secured Party's sole judgment, is necessary or appropriate to preserve, protect, insure, maintain or upon the death Collateral. Secured Party may charge Grantor's loan account for any amounts so expended, such amounts to be repayable by Grantor on demand. Secured Party shall be under no obligation to effect such cure, payment, bonding or disability discharge, and shall not, by doing so, be deemed to have assumed any obligation or liability of ▇▇▇▇▇ ▇Grantor.
Appears in 2 contracts
Sources: Security Agreement (Search Capital Group Inc), Security Agreement (Search Capital Group Inc)
Events of Default and Remedies. 9.1 The following events shall constitute an "Event of Default" under this Agreement, the occurrence of which shall entitle the Lender to pursue any and all rights and remedies, legal and equitable, available to it under any Loan Document or otherwise. The Occurrence of an Event Default under this Agreement shall constitute a default under each and every other Loan Document. The Lender's rights and remedies are cumulative and may be exercised concurrently or successively from time to time. Any action by the Lender against any property or party shall not serve to release or discharge any other security, property or party in connection with this transaction. The Events of Default are as follows:
(a) Failure to pay the principal or interest on the Borrower's present or future indebtedness to the Lender, whether or not arising pursuant to this Agreement, when and as the same shall be due and payable, whether by acceleration or otherwise; provided that such default has not been cured prior to the expiration of ten (10) days following the date upon which the Lender gives the Borrower written Notice of Default. In this Section 9, Notice of Default shall be deemed to have been given (i) on the date of personal delivery of such written notice to a Guarantor, or (ii) on the date on which a duly authorized representative of the Borrower acknowledges receipt of such written notice, or (iii) on the day after sending such written notice to the Borrower by a commonly recognized overnight courier service, such as Federal Express, Purolator, UPS or the like, or (iv) on the third day after sending such written notice to the Borrower by facsimile (to both numbers set forth in Section 16.7) or by depositing the same in the United States mail, postage prepaid, for delivery to the Borrower.
(b) Failure to observe, perform and comply with any of the obligations evidenced or secured by a Loan Document, other than as provided in Sections 9.1(a) above; provided that such default has not been cured prior to the expiration of thirty (30) days following the date upon which the Lender gives the Borrower written Notice of Default.
(c) Failure to duly and punctually pay, observe and discharge all Indebtedness and other obligations of the Borrower to any third party, unless the same is being contested in good faith by appropriate proceedings and the Borrower has set aside on its books adequate reserves with respect to such Indebtedness or other obligations.
(d) The discovery by the Lender of any material inaccuracy in any statement, assurance, representation, covenant, warranty, term or condition by the Borrower contained in this Agreement or in any document delivered or to be delivered by or on behalf of the Borrower pursuant to this Agreement, which inaccuracy would result in a Material Adverse Effect (except that inaccuracies in the Borrower's Due Diligence Documents attributable to the fault or neglect of third-parties shall not constitute a breach of this Section 9.1(d)), or in any other Loan Document, or in any other agreement between the Borrower and the Lender.
(e) The filing of a petition by or against the Borrower or any Affiliate seeking relief under the Federal Bankruptcy Code, 11 U.S.C. ss. 101, et seq., and any amendments thereto, or any similar law or regulation, whether federal, state or local, not dismissed within 30 days.
(f) The commencement of a proceeding by or against the Borrower or any Affiliate under any statute or other law providing for an assignment for the benefit of creditors, the appointment of a receiver, or any other similar law or regulation, whether federal, state or local, not dismissed within 30 days.
(g) The garnishment, attachment, levy or other similar action taken by or on behalf of any creditor of the Borrower, any Affiliate, or any of their respective properties which could have a Material Adverse Effect.
(h) Any change in control of the Borrower, Madison Liquidity Investors 104, MACG from that disclosed in Section 2 of this Agreement.
9.2 The Lender may, at its option, terminate its obligation to make advances of the Loan, without notice to the Borrower:
(a) upon the occurrence and continuance of any Event of Default set forth in subsections 9.1
(a) through 9.1(h) above; or (b) upon the occurrence and continuance of any event which, with the giving of notice or the lapse of time, or both, would constitute an Event of Default or (C) upon the death or disability of ▇B▇▇▇▇ ▇.
Appears in 2 contracts
Sources: Loan Agreement (Baum & Associates /Fa/), Loan Agreement (Baum & Associates /Fa/)
Events of Default and Remedies. 9.1 The following events shall constitute If an "Event of Default" under this AgreementDefault (other than an Event of Default specified in clauses (10) and (11) of Section 6.1 of the Indenture) occurs and is continuing, all outstanding Dollar Notes will become due and payable immediately without further action or notice. If any other Event of Default occurs and is continuing, the occurrence Trustee or the Holders of which shall entitle at least 25% in aggregate principal amount of the Lender outstanding Notes may declare all the Notes to pursue any and all rights and remedies, legal and equitable, available to it under any Loan Document or otherwise. The Occurrence of an Event Default under this Agreement shall constitute a default under each and every other Loan Document. The Lender's rights and remedies are cumulative and may be exercised concurrently or successively from time to time. Any action by the Lender against any property or party shall not serve to release or discharge any other security, property or party in connection with this transaction. The Events of Default are as follows:
(a) Failure to pay the principal or interest on the Borrower's present or future indebtedness to the Lender, whether or not arising pursuant to this Agreement, when and as the same shall be due and payablepayable immediately in the manner and with the effect provided in the Indenture. Subject to certain limitations, whether by acceleration Holders of a majority in aggregate principal amount of the then outstanding Notes may direct the Trustee in its exercise of any trust or otherwisepower. The Trustee may withhold from Holders of the Notes notice of any continuing Default or Event of Default if it determines that withholding notice is in their interest, except a Default or Event of Default relating to the payment of principal, interest or premium, if any. Subject to the provisions of the Indenture relating to the duties of the Trustee, in case an Event of Default occurs and is continuing, the Trustee will be under no obligation to exercise any of the rights or powers under the Indenture at the request or direction of any Holders of Notes unless such Holders have offered to the Trustee indemnity or security satisfactory to it against any loss, liability or expense. Except to enforce the right to receive payment of principal, premium, if any, or interest, when due, no Holder of a Note may pursue any remedy with respect to the Indenture or the Notes unless: (A) such Holder has previously given the Trustee notice that an Event of Default is continuing; provided that (B) Holders of at least 25% in aggregate principal amount of the then outstanding Notes have requested the Trustee to pursue the remedy; (C) such default Holders have offered the Trustee security or indemnity satisfactory to it against any loss, liability or expense; (D) the Trustee has not been cured prior to complied with such request within 60 days after the expiration of ten (10) days following the date upon which the Lender gives the Borrower written Notice of Default. In this Section 9, Notice of Default shall be deemed to have been given (i) on the date of personal delivery of such written notice to a Guarantor, or (ii) on the date on which a duly authorized representative receipt of the Borrower acknowledges receipt request and the offer of security or indemnity; and (E) Holders of a majority in aggregate principal amount of the then outstanding Notes have not given the Trustee a direction inconsistent with such written notice, or (iii) on request within such 60-day period. The Holders of a majority in aggregate principal amount of the day after sending such written then outstanding Notes by notice to the Borrower by a commonly recognized overnight courier serviceTrustee may, such as Federal Express, Purolator, UPS or the like, or (iv) on the third day after sending such written notice to the Borrower by facsimile (to both numbers set forth in Section 16.7) or by depositing the same in the United States mail, postage prepaid, for delivery to the Borrower.
(b) Failure to observe, perform and comply with any of the obligations evidenced or secured by a Loan Document, other than as provided in Sections 9.1(a) above; provided that such default has not been cured prior to the expiration of thirty (30) days following the date upon which the Lender gives the Borrower written Notice of Default.
(c) Failure to duly and punctually pay, observe and discharge all Indebtedness and other obligations of the Borrower to any third party, unless the same is being contested in good faith by appropriate proceedings and the Borrower has set aside on its books adequate reserves with respect to such Indebtedness or other obligations.
(d) The discovery by the Lender of any material inaccuracy in any statement, assurance, representation, covenant, warranty, term or condition by the Borrower contained in this Agreement or in any document delivered or to be delivered by or on behalf of the Borrower pursuant to this Agreement, which inaccuracy would result in a Material Adverse Effect (except that inaccuracies in the Borrower's Due Diligence Documents attributable to the fault or neglect Holders of third-parties shall not constitute a breach of this Section 9.1(d)), or in any other Loan Document, or in any other agreement between the Borrower and the Lender.
(e) The filing of a petition by or against the Borrower or any Affiliate seeking relief under the Federal Bankruptcy Code, 11 U.S.C. ss. 101, et seq., and any amendments thereto, or any similar law or regulation, whether federal, state or local, not dismissed within 30 days.
(f) The commencement of a proceeding by or against the Borrower or any Affiliate under any statute or other law providing for an assignment for the benefit of creditors, the appointment of a receiver, or any other similar law or regulation, whether federal, state or local, not dismissed within 30 days.
(g) The garnishment, attachment, levy or other similar action taken by or on behalf of any creditor all of the BorrowerNotes, rescind an acceleration or waive any Affiliate, existing Default or any of their respective properties which could have a Material Adverse Effect.
(h) Any change in control of the Borrower, Madison Liquidity Investors 104, MACG from that disclosed in Section 2 of this Agreement.
9.2 The Lender may, at its option, terminate its obligation to make advances of the Loan, without notice to the Borrower:
(a) upon the occurrence and continuance of any Event of Default set forth in subsections 9.1
(a) through 9.1(h) above; and its consequences under the Indenture except a continuing Default or (b) upon the occurrence and continuance of any event which, with the giving of notice or the lapse of time, or both, would constitute an Event of Default in the payment of interest or (C) upon premium, if any, on, or the death or disability of ▇▇▇▇▇ ▇principal of, the Notes.
Appears in 2 contracts
Sources: Indenture (CEDC Finance Corp LLC), Indenture (CEDC Finance Corp LLC)
Events of Default and Remedies. 9.1 The 8.1 Any one or more of the following events shall constitute an "Event of Default" under this Agreement, the occurrence of which shall entitle the Lender to pursue any and all rights and remedies, legal and equitable, available to it under any Loan Document or otherwise. The Occurrence of an Event Default under this Agreement shall constitute a default under each and every other Loan Document. The Lender's rights and remedies are cumulative and may be exercised concurrently or successively from time to time. Any action by the Lender against any property or party shall not serve to release or discharge any other security, property or party in connection with this transaction. The Events of Default are as follows:
(a) Failure to pay the principal or interest on the Borrower's present or future indebtedness to the Lender, whether or not arising pursuant to this Agreement, when and as the same shall be due and payable, whether by acceleration or otherwise; provided that such default has not been cured prior to the expiration for a period of ten (10) days following in the date upon which the Lender gives the Borrower written Notice payment when due of Default. In this Section 9, Notice of Default shall be deemed to have been given (i) principal or interest on the date of personal delivery of such written notice to a GuarantorNote, whether at the stated maturity thereof or at any other time provided in this Agreement, or of any fee payable by the Company hereunder;
(iib) on default in the date on which a duly authorized representative observance or performance of the Borrower acknowledges receipt of such written notice, or (iii) on the day after sending such written notice to the Borrower by a commonly recognized overnight courier service, such as Federal Express, Purolator, UPS or the like, or (iv) on the third day after sending such written notice to the Borrower by facsimile (to both numbers any covenant set forth in Section 16.77 hereof;
(c) or by depositing the same default in the United States mail, postage prepaid, for delivery to the Borrower.
(b) Failure to observe, perform and comply with observance or performance of any other provision of the obligations evidenced or secured by a Loan Document, other than as provided in Sections 9.1(a) above; provided that such default has Documents which is not been cured prior to the expiration of remedied within thirty (30) days following after notice thereof to the date upon which Company by the Lender gives the Borrower written Notice of Default.
(c) Failure to duly and punctually pay, observe and discharge all Indebtedness and other obligations of the Borrower to any third party, unless the same is being contested in good faith by appropriate proceedings and the Borrower has set aside on its books adequate reserves with respect to such Indebtedness or other obligations.Bank;
(d) The discovery default shall occur under any evidence of indebtedness in an outstanding amount of not less than $10,000.00 issued, assumed or guaranteed by a Company or under any indenture, agreement or other instrument under which the same may be issued and such default shall continue for a period of time sufficient to permit the acceleration of the maturity of any such indebtedness without cure or waiver;
(e) any representation or warranty made by the Lender of any material inaccuracy in any statement, assurance, representation, covenant, warranty, term or condition by the Borrower contained in this Agreement or in any document delivered or to be delivered by or on behalf of the Borrower pursuant to this Agreement, which inaccuracy would result in a Material Adverse Effect (except that inaccuracies Company in the Borrower's Due Diligence Documents attributable to the fault or neglect of third-parties shall not constitute a breach of this Section 9.1(d))Loan Documents, or in any other Loan Document, statement or certificate furnished by a Company pursuant thereto or in connection with any other agreement between advance made hereunder proves untrue in any material respect as of the Borrower and date of the Lender.
(e) The filing of a petition by issuance or against the Borrower or any Affiliate seeking relief under the Federal Bankruptcy Code, 11 U.S.C. ss. 101, et seq., and any amendments thereto, or any similar law or regulation, whether federal, state or local, not dismissed within 30 days.making thereof;
(f) The commencement of a proceeding by the Company becomes insolvent or against the Borrower or any Affiliate under any statute or other law providing for bankrupt, admits in writing its inability to pay its debts as they mature, makes an assignment for the benefit of creditors, creditors or applies for or consents to the appointment of a receiver, trustee or receiver for it or for any other similar law or regulation, whether federal, state or local, not dismissed within 30 days.part of its property;
(g) The garnishment, attachment, levy a trustee or other similar action taken by receiver is appointed for the Company or on behalf for any part of any creditor of the Borrower, any Affiliate, or any of their respective properties which could have a Material Adverse Effect.its property;
(h) Any change bankruptcy, reorganization, arrangement, insolvency or liquidation proceedings or other proceedings for relief under any bankruptcy law or laws for the relief of debtors are instituted by or against the Company, and, if instituted against the Company, are consented to or are not dismissed within sixty (60) days after such institution; and
(i) any default that occurs and is continuing by the Company or Checksmart Financial Company (“Checksmart”) under the Senior Secured Notes or the Syndicated Credit Agreement that entitles the holders of such obligations to accelerate the maturity thereof.
8.2 When any Event of Default described in control Sections 8.1(a), 8.1(b), 8.1(c), 8.1(d), 8.1(e) or 8.1(i) has occurred or is continuing, the Bank may take any or all of the Borrower, Madison Liquidity Investors 104, MACG from that disclosed in Section 2 of this Agreement.
9.2 The Lender may, at its option, terminate its obligation to make advances of the Loan, without notice to the Borrowerfollowing actions:
(a) upon terminate the remaining commitment hereunder of the Bank;
(b) declare the principal of and the accrued interest on all sums outstanding hereunder to be forthwith due and payable, and thereupon all of said sums, including both principal and interest, shall be and become immediately due and payable without further demand, presentment, protest or notice of any kind;
(c) setoff against any and all accounts maintained by the Company with the Bank in order to pay all amounts due and owing to the Bank by the Company.
8.3 When any Event of Default described in Sections 8.1(f), 8.1(g) or 8.1(h) has occurred and is continuing, then all sums outstanding hereunder shall immediately become due and payable without presentment, demand, protest, or notice of any kind, and the obligation of the Bank to extend further credit pursuant to any of the terms hereof shall immediately terminate.
8.4 The Company agrees to pay to the Bank all reasonable expenses incurred or paid by the Bank, including reasonable attorneys’ fees and court costs, in connection with the occurrence and continuance of any Event of Default set forth in subsections 9.1
(a) through 9.1(h) above; or (b) upon of an event which solely by the occurrence and continuance passage of any event which, with the giving of notice or the lapse of time, or both, time would constitute an Event of Default hereunder or (C) upon in connection with the death or disability enforcement of ▇▇▇▇▇ ▇any of the terms of any of the Loan Documents.
Appears in 2 contracts
Sources: Credit Agreement (Reliant Software, Inc.), Credit Agreement (Community Choice Financial Inc.)
Events of Default and Remedies. 9.1 The If any one or more of the following events shall constitute (each an "“Event of Default" under this Agreement, the occurrence of which ”) shall entitle the Lender to pursue any occur and all rights and remedies, legal and equitable, available to it under any Loan Document or otherwise. The Occurrence of an Event Default under this Agreement shall constitute a default under each and every other Loan Document. The Lender's rights and remedies are cumulative and may be exercised concurrently or successively from time to time. Any action by the Lender against any property or party shall not serve to release or discharge any other security, property or party in connection with this transaction. The Events of Default are as followscontinuing:
(a) Failure to pay any breach or default under the principal or interest on Note executed by the Borrower's present or future indebtedness to the Lender, whether or not arising pursuant to this Agreement, when and as the same shall be due and payable, whether by acceleration or otherwise; provided that such default has not been cured prior to the expiration of ten (10) days following the date upon which the Lender gives the Borrower written Notice of Default. In this Section 9, Notice of Default shall be deemed to have been given (i) on the date of personal delivery of such written notice to a Guarantor, or (ii) on the date on which a duly authorized representative Pledgor in favor of the Borrower acknowledges receipt of such written notice, or (iii) on the day after sending such written notice to the Borrower by a commonly recognized overnight courier service, such as Federal Express, Purolator, UPS or the like, or (iv) on the third day after sending such written notice to the Borrower by facsimile (to both numbers set forth in Section 16.7) or by depositing the same in the United States mail, postage prepaid, for delivery to the Borrower.Secured Party;
(b) Failure to observe, perform and comply with the breach or default of any of the obligations evidenced representations, warranties, covenants or secured by a Loan Document, other than as provided in Sections 9.1(a) above; provided agreements of the Pledgor under this Pledge that such default has not been cured prior to the expiration of thirty continues for fifteen (3015) days following after the date upon which the Lender Secured Party gives the Borrower written Notice of Default.notice to Pledgor;
(c) Failure to duly and punctually pay, observe and discharge all Indebtedness and other obligations the subjection of the Borrower Pledged Securities to any third party, unless the same is being contested in good faith by appropriate proceedings and the Borrower has set aside on its books adequate reserves with respect to such Indebtedness levy of execution or other obligations.judicial process in connection with collection of a debt owed by Pledgor;
(d) The discovery by any direct or indirect sale or transfer of all or any part of an interest in the Lender Pledged Securities, whether voluntary or involuntary;
(e) a sale of any material inaccuracy in any statement, assurance, representation, covenant, warranty, term all or condition by the Borrower contained in this Agreement or in any document delivered or to be delivered by or on behalf substantially all of the Borrower pursuant to this Agreement, which inaccuracy would result in assets of the Companies;
(f) a Material Adverse Effect (except that inaccuracies in the Borrower's Due Diligence Documents attributable to the fault or neglect of third-parties shall not constitute a breach of this Section 9.1(d)), or in any other Loan Document, or in default by Pledgor under any other agreement between the Borrower Secured Party and the Lender.Pledgor or any other event of default under this Pledge following written notice and failure to timely cure as therein provided;
(eg) The filing any event that results in the acceleration of the maturity of the indebtedness of the Pledgor to others under any indenture, agreement, or undertaking including, without limitation, any mortgage; or
(h) the Pledgor’s insolvency, the appointment of a petition by receiver for any part of the Pledgor or against the Borrower or assets of the Pledgor, any Affiliate seeking relief under the Federal Bankruptcy Code, 11 U.S.C. ss. 101, et seq., and any amendments thereto, or any similar law or regulation, whether federal, state or local, not dismissed within 30 days.
(f) The commencement of a proceeding by or against the Borrower or any Affiliate under any statute or other law providing for an assignment for the benefit of creditors, or the appointment commencement of a receiver, any proceeding under any bankruptcy or any other similar insolvency law or regulation, whether federal, state or local, not dismissed within 30 days.
(g) The garnishment, attachment, levy or other similar action taken by or on behalf of against the Pledgor; then, in any creditor of the Borrowersuch event, any Affiliate, or any of their respective properties which could have a Material Adverse Effect.
(h) Any change in control of the Borrower, Madison Liquidity Investors 104, MACG from that disclosed in Section 2 of this Agreement.
9.2 The Lender Secured Party may, at its Secured Party’s option, terminate its obligation to make advances declare the Note and this Pledge in default, and give written notice of the Loan, without notice to the Borrower:
(a) upon the occurrence and continuance of any such Event of Default set forth in subsections 9.1
(a) through 9.1(h) above; or (b) upon to Escrow Agent under Section 4, to obtain the occurrence and continuance release of any event which, with the giving of notice or the lapse of time, or both, would constitute an Event of Default or (C) upon the death or disability of ▇▇▇▇▇ ▇Pledged Securities from this Pledge.
Appears in 2 contracts
Sources: Securities Pledge and Escrow Agreement (Spar Group Inc), Securities Pledge and Escrow Agreement (Spar Group Inc)
Events of Default and Remedies. 9.1 8.1. The following events occurrence of an Event of Default, as defined in the Credit Agreement, shall constitute an "Event of Default" under this Agreement, the occurrence of which shall entitle the Lender to pursue any and all rights and remedies, legal and equitable, available to it under any Loan Document or otherwise.
8.2. The Occurrence Administrative Agent, for the benefit of an Event Default under this Agreement the Lenders, shall constitute a default under each and every other Loan Document. The Lender's at all times have the rights and remedies are cumulative and may be exercised concurrently or successively of a secured party under the U.C.C. as in effect from time to time. Any action by the Lender against any property or party shall not serve to release or discharge any other security, property or party in connection with this transaction. The Events of Default are as follows:
(a) Failure to pay the principal or interest on the Borrower's present or future indebtedness addition to the Lender, whether or not arising pursuant to rights and remedies of a secured party provided elsewhere within this Agreement, when and as the same shall be due and payable, whether by acceleration any Note or otherwise; provided that such default has not been cured prior to the expiration of ten (10) days following the date upon which the Lender gives the Borrower written Notice of Default. In this Section 9, Notice of Default shall be deemed to have been given (i) on the date of personal delivery of such written notice to a Guarantor, or (ii) on the date on which a duly authorized representative of the Borrower acknowledges receipt of such written notice, or (iii) on the day after sending such written notice to the Borrower by a commonly recognized overnight courier service, such as Federal Express, Purolator, UPS or the like, or (iv) on the third day after sending such written notice to the Borrower by facsimile (to both numbers set forth in Section 16.7) or by depositing the same in the United States mail, postage prepaid, for delivery to the Borrower.
(b) Failure to observe, perform and comply with any of the obligations evidenced or secured by a Loan Document, other than as provided in Sections 9.1(a) above; provided that such default has not been cured prior to the expiration of thirty (30) days following the date upon which the Lender gives the Borrower written Notice of Default.
(c) Failure to duly and punctually pay, observe and discharge all Indebtedness and other obligations of the Borrower to any third party, unless the same is being contested in good faith by appropriate proceedings and the Borrower has set aside on its books adequate reserves with respect to such Indebtedness or other obligations.
(d) The discovery by the Lender of any material inaccuracy in any statement, assurance, representation, covenant, warranty, term or condition by the Borrower contained in this Agreement or in any document delivered or to be delivered by or on behalf of the Borrower pursuant to this Agreement, which inaccuracy would result in a Material Adverse Effect (except that inaccuracies in the Borrower's Due Diligence Documents attributable to the fault or neglect of third-parties shall not constitute a breach of this Section 9.1(d)), or in any other Loan Document, or otherwise provided in any other agreement between the Borrower and the Lenderlaw or equity.
(e) 8.3. The filing of a petition by or against Pledgor expressly acknowledges that the Borrower or any Affiliate seeking relief under the Federal Bankruptcy CodeAdministrative Agent, 11 U.S.C. ss. 101, et seq., and any amendments thereto, or any similar law or regulation, whether federal, state or local, not dismissed within 30 days.
(f) The commencement of a proceeding by or against the Borrower or any Affiliate under any statute or other law providing for an assignment for the benefit of creditors, the appointment of a receiver, or any other similar law or regulation, whether federal, state or local, not dismissed within 30 days.
(g) The garnishment, attachment, levy or other similar action taken by or on behalf of any creditor the Lenders, shall record this Agreement with the USCO and the USPTO, as appropriate. Contemporaneously herewith, the Pledgor shall execute and deliver to the Administrative Agent the Assignment, which Assignment shall have no force and effect and shall be held by the Administrative Agent in escrow until the occurrence of an Event of Default; provided, that, anything herein to the contrary notwithstanding, the security interest and collateral assignment granted herein shall be effective as of the Borrower, any Affiliate, or any of their respective properties which could have a Material Adverse Effect.
(h) Any change in control of the Borrower, Madison Liquidity Investors 104, MACG from that disclosed in Section 2 date of this Agreement. After the occurrence of an Event of Default, the Assignment shall immediately take effect upon certification of such fact by an authorized officer of the Administrative Agent in the form reflected on the face of the Assignment and the Administrative Agent may, in its sole discretion, record the Assignment with the USCO and the USPTO, as appropriate.
9.2 The Lender may, at its option, terminate its obligation to make advances of the Loan, without notice to the Borrower:
(a) upon the occurrence and continuance of any Event of Default set forth in subsections 9.1
(a) through 9.1(h) above; or (b) upon the occurrence and continuance of any event which, with the giving of notice or the lapse of time, or both, would constitute 8.4. If an Event of Default shall occur, the Pledgor irrevocably authorizes and empowers the Administrative Agent, on behalf of the Lenders, to terminate the Pledgor’s use of the Collateral and to exercise such rights and remedies as allowed by law. Without limiting the generality of the foregoing, after any delivery or taking of possession of the Collateral, or any thereof, pursuant to this Agreement, then, with or without resort to the Pledgor or any other Person or property, all of which the Pledgor hereby waives, and upon such terms and in such manner as the Administrative Agent may deem advisable, the Administrative Agent, on behalf of the Lenders, in its sole discretion, may sell, assign, transfer and deliver any of the Collateral, together with the associated goodwill, or any interest that the Pledgor may have therein, at any time, or from time to time. No prior notice need be given to the Pledgor or to any other Person in the case of any sale of Collateral that the Administrative Agent determines to be declining speedily in value or that is customarily sold in any recognized market, but in any other case the Administrative Agent shall give the Pledgor no fewer than ten days prior notice of either the time and place of any public sale of the Collateral or of the time after which any private sale or other intended disposition thereof is to be made. The Pledgor waives advertisement of any such sale and (Cexcept to the extent specifically required by the preceding sentence) upon waives notice of any kind in respect of any such sale. At any such public sale, the death Administrative Agent or disability any Lender may purchase the Collateral, or any part thereof, free from any right of ▇▇▇▇▇ ▇redemption, all of which rights the Pledgor hereby waives and releases. After deducting all Related Expenses, and after paying all claims, if any, secured by liens having precedence over this Agreement, the Administrative Agent may apply the net proceeds of each such sale to or toward the payment of the Secured Obligations, whether or not then due, in such order and by such division as the Administrative Agent, in its sole discretion, may deem advisable. Any excess, to the extent permitted by law, shall be paid to the Pledgor, and the obligors on the Secured Obligations shall remain liable for any deficiency.
Appears in 2 contracts
Sources: Intellectual Property Security Agreement (ZAGG Inc), Intellectual Property Security Agreement (ZAGG Inc)
Events of Default and Remedies. 9.1 The following events shall constitute an "Event (1) In the event of Default" under any breach or default by any party (a “Defaulting Party”) in any of its obligations or representations contained in this Agreement, the occurrence non-defaulting party shall give written notice of such breach or default to the Defaulting Party. Such a Notice (a “Default Notice”) shall state with particularity the breach or default on which shall entitle the Lender notice is based and request the Defaulting Party to pursue remedy or cure the breach or default within the following periods (a “Remedy Period”): (i) if the breach or default occurs on or before July 31, 2004 the Remedy Period is 30 days after receipt of the Default Notice; and (ii) if the breach or default occurs after July 31, 2004 the Remedy Period is 60 days after receipt of the Default Notice.
(2) During the applicable Remedy Period the parties will use all reasonable efforts to resolve amicably the breach or default by negotiations in good faith. However, any and all rights and remedies, legal and equitable, available to it breach or default which is not remedied or cured or resolved by negotiations in good faith within the applicable Remedy Period will constitute an event of default under any Loan Document or otherwise. The Occurrence this Agreement (hereafter: Event of Default).
(3) Upon the happening of an Event of Default under this Agreement by Seller, the Buyer shall constitute be entitled to a default under each reduction in the purchase price paid for the Shares and/or the PMMA Business and every other Loan DocumentAssets, as the case may be, in accordance with §§ 437 N▇. ▇, ▇▇▇ ▇▇▇ (▇▇▇▇▇▇ Civil Code) or refund of the purchase price paid in excess. The Lender's rights and remedies are cumulative and may be exercised concurrently or successively from time to time. Any action by the Lender against any property or party Buyer shall not serve be entitled to release withhold payment (right of retention) in respect of any instalment of the purchase price or discharge any other security, property or party in connection with this transaction. The Events of Default are as follows:
(a) Failure to pay the principal or interest on the Borrower's present or future indebtedness to the Lender, whether or not arising pursuant to this Agreement, when and as the same shall be due and payable, whether by acceleration or otherwise; provided that such default has not been cured prior to the expiration of ten (10) days following the date upon which the Lender gives the Borrower written Notice of Default. In this Section 9, Notice of Default shall be deemed to have been given part thereof except (i) on with the date prior written consent of personal delivery of such written notice to a GuarantorSeller, or (ii) on the date on which a duly authorized representative upon ascertainment of the Borrower acknowledges receipt of such written notice, or (iii) on the day after sending such written notice to the Borrower by a commonly recognized overnight courier service, such as Federal Express, Purolator, UPS or the like, or (iv) on the third day after sending such written notice to the Borrower by facsimile (to both numbers set forth in Section 16.7) or by depositing the same in the United States mail, postage prepaid, for delivery to the Borrower.
(b) Failure to observe, perform and comply with any of the obligations evidenced or secured by a Loan Document, other than as provided in Sections 9.1(a) above; provided that such default has not been cured prior to the expiration of thirty (30) days following the date upon which the Lender gives the Borrower written Notice of Default.
(c) Failure to duly and punctually pay, observe and discharge all Indebtedness and other obligations of the Borrower to any third party, unless the same is being contested in good faith by appropriate proceedings and the Borrower has set aside on its books adequate reserves with respect to such Indebtedness or other obligations.
(d) The discovery by the Lender of any material inaccuracy in any statement, assurance, representation, covenant, warranty, term or condition by the Borrower contained in this Agreement or in any document delivered or to be delivered by or on behalf of the Borrower pursuant to this Agreement, which inaccuracy would result in a Material Adverse Effect (except that inaccuracies in the Borrower's Due Diligence Documents attributable to the fault or neglect of third-parties shall not constitute a breach of this Section 9.1(d)), or in any other Loan Document, or in any other agreement between the Borrower and the Lender.
(e) The filing of a petition by or against the Borrower or any Affiliate seeking relief under the Federal Bankruptcy Code, 11 U.S.C. ss. 101, et seq., and any amendments thereto, or any similar law or regulation, whether federal, state or local, not dismissed within 30 days.
(f) The commencement of a proceeding by or against the Borrower or any Affiliate under any statute or other law providing for an assignment for the benefit of creditors, the appointment of a receiver, or any other similar law or regulation, whether federal, state or local, not dismissed within 30 days.
(g) The garnishment, attachment, levy or other similar action taken by or on behalf of any creditor of the Borrower, any Affiliate, or any of their respective properties which could have a Material Adverse Effect.
(h) Any change in control of the Borrower, Madison Liquidity Investors 104, MACG from that disclosed in Section 2 of this Agreement.
9.2 The Lender may, at its option, terminate its obligation to make advances of the Loan, without notice to the Borrower:
(a) upon the occurrence and continuance of any Event of Default set forth in subsections 9.1
(a) through 9.1(h) above; or (b) upon the occurrence and continuance of any event which, with the giving of notice or the lapse of time, or both, would constitute an Event of Default or by Seller by final decision of a court of competent jurisdiction.
(C4) upon The parties are agreed that the death or disability representations of Seller contained in Article C of this Agreement, including the Schedule of Additional Representation attached to this Agreement as Exhibit F , do not constitute guarantees of quality within the meaning of § 4▇▇ ▇▇▇ (▇▇▇▇▇▇ Civil Code) but are to be regarded as “Beschaffenheitsmerkmale.”
(5) The Seller shall be liable solely in accordance with the regulations of this Agreement, save in the case of fraud or intentional misrepresentation. The right to rescind, save in the case of fraud or intentional misrepresentation, and the right to improvement or subsequent performance under §§ 437 N▇. ▇, ▇▇▇ ▇▇▇ (▇▇▇▇▇▇ Civil Code) are expressly excluded.
(6) Upon the happening of an Event of Default by the Buyer, the Seller shall be entitled to exercise all rights and remedies to which it may be entitled according to German law and this Agreement including, if applicable, its rights and remedies under the Assignment Agreement and Security Agreement attached to this Agreement as, respectively, Exhibit G and Exhibit H, and its rights and remedies under the Pledge Agreement attached to this Agreement as Exhibit I.
(7) All claims arising from or in connection with this Agreement shall become time-barred two years after the date of signature of this Agreement.
Appears in 2 contracts
Sources: Purchase Agreement (Artes Medical Inc), Purchase Agreement (Artes Medical Inc)
Events of Default and Remedies. 9.1 The following events shall constitute an "Event of Default" under this Agreement, (a) Upon the occurrence of which shall entitle and during the Lender to pursue any and all rights and remedies, legal and equitable, available to it under any Loan Document or otherwise. The Occurrence continuance of an Event of Default under this Agreement shall constitute a default under each and every after the acceleration of the Notes (so long as such Event of Default has not been waived), subject to the provisions of Section 7 hereof, the Collateral Agent may exercise in respect of the Collateral, in addition to other Loan Document. The Lender's rights and remedies are cumulative provided for herein or otherwise available to it, all the rights and remedies of a secured party on default under the UCC (whether or not the UCC applies to the affected Collateral), and also may (i) require the Company to, and the Company hereby agrees that the Company shall, at the Company’s expense and upon request of the Collateral Agent forthwith, assemble all or part of the Collateral as directed by the Collateral Agent and make it available to the Collateral Agent at a place to be exercised concurrently designated by the Collateral Agent which is reasonably convenient to both parties; and (ii) without notice except as specified below, sell the Collateral or successively any part thereof in one or more parcels at public or private sale, at the office of the Collateral Agent or elsewhere, for cash, on credit or for future delivery, and at such price or prices and upon such other terms as the Collateral Agent may deem commercially reasonable. The Company agrees that, to the extent notice of sale shall be required by law, at least ten (10) days prior notice to the Company of the time and place of any public or private sale is to be made shall constitute reasonable notification. The Collateral Agent shall not be obligated to make any sale of Collateral regardless of notice of sale having been given. The Collateral Agent may adjourn any public or private sale from time to time. Any action time by announcement at the time and place fixed therefor, and such sale may, without further notice, be made at the time and place to which it has been so adjourned.
(b) Subject to the provisions of Section 7 hereof and after satisfying its responsibilities to turn over funds to the Senior Lender pursuant to the Subordination Agreement, upon the occurrence and during the continuance of an Event of Default and after the acceleration of the Notes (so long as such Event of Default has not been waived), any cash held by the Lender against Collateral Agent as Collateral and all cash proceeds received by the Collateral Agent in respect of any property sale of, collection from or party other realization upon, all or any part of the Collateral shall not serve to release or discharge any other security, property or party in connection with this transaction. The Events of Default are be applied as follows:
(ai) Failure to pay the principal or interest on the Borrower's present or future indebtedness First: to the LenderCollateral Agent, whether or not arising pursuant to this Agreementits agents and attorneys for amounts due under Section 9 hereof, when including payment of all compensation, expenses and as liabilities incurred, and all advances made, by the same shall be due Collateral Agent and payable, whether by acceleration or otherwise; provided that such default has not been cured prior to the expiration of ten (10) days following the date upon which the Lender gives the Borrower written Notice of Default. In this Section 9, Notice of Default shall be deemed to have been given (i) on the date of personal delivery costs and expenses of such written notice to a Guarantor, or (ii) on the date on which a duly authorized representative of the Borrower acknowledges receipt of such written notice, or (iii) on the day after sending such written notice to the Borrower by a commonly recognized overnight courier service, such as Federal Express, Purolator, UPS or the like, or (iv) on the third day after sending such written notice to the Borrower by facsimile (to both numbers set forth in Section 16.7) or by depositing the same in the United States mail, postage prepaid, for delivery to the Borrower.
(b) Failure to observe, perform and comply with any of the obligations evidenced or secured by a Loan Document, other than as provided in Sections 9.1(a) above; provided that such default has not been cured prior to the expiration of thirty (30) days following the date upon which the Lender gives the Borrower written Notice of Default.
(c) Failure to duly and punctually pay, observe and discharge all Indebtedness and other obligations of the Borrower to any third party, unless the same is being contested in good faith by appropriate proceedings and the Borrower has set aside on its books adequate reserves with respect to such Indebtedness or other obligations.
(d) The discovery by the Lender of any material inaccuracy in any statement, assurance, representation, covenant, warranty, term or condition by the Borrower contained in this Agreement or in any document delivered or to be delivered by or on behalf of the Borrower pursuant to this Agreement, which inaccuracy would result in a Material Adverse Effect (except that inaccuracies in the Borrower's Due Diligence Documents attributable to the fault or neglect of third-parties shall not constitute a breach of this Section 9.1(d)), or in any other Loan Document, or in any other agreement between the Borrower and the Lender.
(e) The filing of a petition by or against the Borrower or any Affiliate seeking relief under the Federal Bankruptcy Code, 11 U.S.C. ss. 101, et seq., and any amendments thereto, or any similar law or regulation, whether federal, state or local, not dismissed within 30 days.
(f) The commencement of a proceeding by or against the Borrower or any Affiliate under any statute or other law providing for an assignment for the benefit of creditors, the appointment of a receiver, or any other similar law or regulation, whether federal, state or local, not dismissed within 30 days.
(g) The garnishment, attachment, levy or other similar action taken by or on behalf of any creditor of the Borrower, any Affiliate, or any of their respective properties which could have a Material Adverse Effect.
(h) Any change in control of the Borrower, Madison Liquidity Investors 104, MACG from that disclosed in Section 2 of this Agreement.
9.2 The Lender may, at its option, terminate its obligation to make advances of the Loan, without notice to the Borrower:
(a) upon the occurrence and continuance of any Event of Default set forth in subsections 9.1
(a) through 9.1(h) above; or (b) upon the occurrence and continuance of any event which, with the giving of notice or the lapse of time, or both, would constitute an Event of Default or (C) upon the death or disability of ▇▇▇▇▇ ▇.collection;
Appears in 2 contracts
Sources: Security Agreement (Mri Interventions, Inc.), Securities Purchase Agreement (Mri Interventions, Inc.)
Events of Default and Remedies. 9.1 The (a) Each of the following events acts or occurrences shall constitute an "a “Lease Event of Default" ” hereunder:
(i) default in the payment of the Purchase Price or the Termination Value on the Cancellation Date or the Purchase Closing Date, as applicable, or in the payment of the Purchase Price or the Final Rent Payment, as applicable, on the Lease Termination Date; or the default in the payment when due of any Basic Rent and the continuance of such default for 5 Business Days thereafter; or the default in the payment when due of any Supplemental Rent, the amount of any Indemnified Risk or any other amount due hereunder or under any other Operative Document and the continuance of such default for 30 days thereafter; or
(ii) any representation or warranty made or deemed made by the Lessee herein shall be false or misleading in any material respect on the date made or deemed made; or
(iii) an Event of Default under the Investment Agreement (other than a Limited Recourse Event of Default);
(iv) the Lessee shall fail to observe or perform any covenant or agreement contained in Sections 12 and 26 of this Lease; or
(v) the Lessee shall fail to observe or perform any covenant or agreement contained (other than those covered by subsections (i) or (iv) above), and such failure shall not have been cured within 10 days, with respect to any covenant contained in Section 14 of this Lease, and 30 days, with respect to any other provision hereof, after the earlier to occur of (A) written notice thereof has been given to the Lessee by the Lessor (acting, in accordance with Section 9.02(a) of the Investment Agreement, of its own accord or at the request of the Majority Funding Parties) or (B) the chief financial, chief operating, chief legal or chief accounting officer of the Lessee or the Guarantor otherwise becomes aware of any such failure; or
(vi) Lessee shall abandon the Facility; provided however that for purposes of this Section 17(a)(vi), the term “abandon” shall not include the mere failure of Lessee to occupy the Facility so long as Lessee continues to perform its obligations hereunder and other Operative Documents including without limitation maintenance of the Facility, maintenance of required insurance, compliance with Governmental Requirements and Insurance Requirements and payment of all Rent.
(b) Subject to Section 9.02 of the Investment Agreement, upon the occurrence and during the continuance of which any Lease Event of Default, as determined by the Lessor, the Lessor (acting, in accordance with Section 9.02(a) of the Investment Agreement, of its own accord or at the direction of the Majority Funding Parties) may do any one or more of the following (without prejudice to the obligations of the Lessee under Section 15(b)(ii)):
(i) proceed by appropriate judicial proceedings, either at law, in equity or in bankruptcy, to enforce performance or observance by the Lessee of the applicable provisions of this Lease, or to recover damages for the breach of any such provisions, or any other equitable or legal remedy, all as the Lessor shall entitle deem necessary or advisable; and/or
(ii) by notice to the Lender Lessee, either (x) terminate this Lease in accordance with Section 15, whereupon the Lessee's interest and all rights of the Lessee to pursue the use of the Facility shall forthwith terminate subject to the Lessee's rights under such Section 15 to acquire the Facility on the Purchase Closing Date as provided herein, but the Lessee shall remain liable with respect to its obligations and liabilities hereunder; or (y) terminate the Lessee's right to possession of the Facility or any part thereof; and/or
(iii) exercise any and all rights other remedies available under applicable law or at equity.
(c) After the occurrence and remediesduring the continuance of a Cancellation Event or Termination Event, legal in the event the Lessor elects not to terminate this Lease and equitablethe Lessee has not exercised its option under Section 15(c), available to it under any Loan Document or otherwise. The Occurrence this Lease shall continue in effect and the Lessor may enforce all of an Event Default under this Agreement shall constitute a default under each and every other Loan Document. The Lenderthe Lessor's rights and remedies are cumulative under this Lease, including, without limitation, the right to recover the Basic Rent and may be exercised concurrently Supplemental Rent, and any other yield protection payments and other amounts with respect thereto, as it becomes due under this Lease or successively from time to timeany other Operative Documents. Any action For the purposes hereof, the following do not constitute a cancellation or termination of this Lease: (i) acts of maintenance or preservation of the Facility or any part thereof, (ii) efforts by the Lender against Lessor to relet the Facility or any property part thereof, including, without limitation, termination of any sublease of the Facility and removal of any tenant from the Site, (iii) or party shall not serve the appointment of a receiver upon the initiative of the Lessor to release or discharge any other security, property or party in connection with protect the Lessor's interest under this transaction. The Events of Default are as follows:Lease.
(ad) Failure to pay the principal or interest on the Borrower's present or future indebtedness to the Lender, whether or not arising pursuant to this Agreement, when and as the same shall be due and payable, whether by acceleration or otherwise; provided that such default has not been cured prior to the expiration of ten (10) days following the date upon which the Lender gives the Borrower written Notice of Default. In this Section 9, Notice of Default shall be deemed to have been given If (i) on the date Lease Termination Date, the Facility is not acquired by the Lessee or its designee by payment of personal delivery of such written notice to a Guarantorthe Purchase Price, or (ii) on the date on which a duly authorized representative Cancellation Date, the Lessee or its designee has defaulted in its obligation to acquire the Facility and pay the Purchase Price, or if applicable, the Termination Value, in accordance with Lessee's election under Section 15(b)(ii), then the Lessor shall have the immediate right of possession of the Borrower acknowledges receipt Facility and the right to enter onto the Site and to remove any and all of the Property comprising the Facility, and the Lessor may thenceforth hold, possess and enjoy the Facility free from any rights of the Lessee and any Person claiming by, through or under the Lessee. The Lessor shall be under no liability by reason of any such written notice, or (iii) on the day after sending such written notice to the Borrower by a commonly recognized overnight courier service, such as Federal Express, Purolator, UPS repossession or the like, Facility or (iv) on entry onto the third day after sending such written notice to the Borrower by facsimile (to both numbers set forth in Section 16.7) or by depositing the same in the United States mail, postage prepaid, for delivery to the Borrower.
(b) Failure to observe, perform and comply with any of the obligations evidenced or secured by a Loan Document, other than as provided in Sections 9.1(a) above; provided that such default has not been cured prior to the expiration of thirty (30) days following the date upon which the Lender gives the Borrower written Notice of Default.
(c) Failure to duly and punctually pay, observe and discharge all Indebtedness and other obligations of the Borrower to any third party, unless the same is being contested in good faith by appropriate proceedings and the Borrower has set aside on its books adequate reserves with respect to such Indebtedness or other obligations.
(d) The discovery by the Lender of any material inaccuracy in any statement, assurance, representation, covenant, warranty, term or condition by the Borrower contained in this Agreement or in any document delivered or to be delivered by or on behalf of the Borrower pursuant to this Agreement, which inaccuracy would result in a Material Adverse Effect (except that inaccuracies in the Borrower's Due Diligence Documents attributable to the fault or neglect of third-parties shall not constitute a breach of this Section 9.1(d)), or in any other Loan Document, or in any other agreement between the Borrower and the LenderSite.
(e) The filing of a petition by or against Should the Borrower Lessor elect to repossess the Facility or any Affiliate seeking relief part thereof upon cancellation or termination of this Lease or otherwise in the exercise of the Lessor's remedies, the Lessee shall peaceably quit and surrender the Facility or any such part thereof to the Lessor and either (i) deliver possession of the Facility to the Lessor or (ii) allow Lessor or its agents or assigns to enter onto the Facility and the Site to remove any and all of the Property comprising the Facility at the expense of the Lessee, and neither the Lessee nor any Person claiming through or under the Federal Bankruptcy Code, 11 U.S.C. ss. 101, et seq., and any amendments thereto, Lessee shall thereafter be entitled to possession or to remain in possession of the Facility or any similar law or regulation, whether federal, state or local, not dismissed within 30 dayspart thereof but shall forthwith peaceably quit and surrender the Facility to the Lessor.
(f) The commencement At any time after the repossession of a proceeding by or against the Borrower Facility or any Affiliate under any statute part thereof, whether or other law providing for an assignment for the benefit of creditorsnot this Lease shall have been cancelled or terminated, the appointment Lessor may (but shall be under no obligation to) relet the Facility or the applicable part thereof without notice to the Lessee, for such term or terms and on such conditions and for such usage as the Lessor in its sole and absolute discretion may determine. The Lessor may collect and receive any rents payable by reason of a receiversuch reletting, and the Lessor shall not be liable for any failure to relet the Facility or for any other similar law or regulation, whether federal, state or local, not dismissed within 30 daysfailure to collect any rent due upon any such reletting.
(g) The garnishmentremedies herein provided in case of a Lease Event of Default are in addition to, attachmentand without prejudice to, levy the Lessee's continuing obligations under Section 15(b)(ii), and shall not be deemed to be exclusive, but shall be cumulative and shall be in addition to all other remedies existing at law, in equity or in bankruptcy. The Lessor may exercise any remedy without waiving its right to exercise any other similar action taken by remedy hereunder or on behalf of any creditor of the Borrowerexisting at law, any Affiliate, in equity or any of their respective properties which could have a Material Adverse Effectin bankruptcy.
(h) Any change in control No waiver by the Lessor hereunder of any Default or Event of Default shall constitute a waiver of any other or subsequent Default or Event of Default. To the Borrowerextent permitted by applicable law, Madison Liquidity Investors 104, MACG from that disclosed in Section 2 of this Agreement.
9.2 The Lender may, the Lessee waives any right it may have at its option, terminate its obligation any time to make advances of require the Loan, without notice Lessor to mitigate the Borrower:
(a) Lessor's damages upon the occurrence and continuance of any a Default or Event of Default set forth in subsections 9.1
(a) through 9.1(h) above; by taking any action or (b) upon exercising any remedy that may be available to the occurrence and continuance Lessor, the exercise of any event which, with remedies hereunder being at the giving discretion of notice or the lapse of time, or both, would constitute an Event of Default or (C) upon the death or disability of ▇▇▇▇▇ ▇Lessor.
Appears in 2 contracts
Sources: Lease Agreement (Protective Life Corp), Lease Agreement (Protective Life Insurance Co)
Events of Default and Remedies. 9.1 The following events shall constitute If an "Event of Default" under this AgreementDefault with respect to the Notes shall occur and be continuing, the occurrence principal of which shall entitle the Lender to pursue any and all rights and remedies, legal and equitable, available to it under any Loan Document or otherwise. The Occurrence of an Event Default under this Agreement shall constitute a default under each and every other Loan Document. The Lender's rights and remedies are cumulative and Notes may be exercised concurrently or successively from time to time. Any action by the Lender against any property or party declared, and in certain cases shall not serve to release or discharge any other securityautomatically become, property or party in connection with this transaction. The Events of Default are as follows:
(a) Failure to pay the principal or interest on the Borrower's present or future indebtedness to the Lender, whether or not arising pursuant to this Agreement, when and as the same shall be due and payable, whether by acceleration or otherwisepayable in the manner and with the effect provided in the Indenture; provided that under Section 6.01(4)(A) and (B), in each case, the principal amount of any such default Indebtedness, together with the principal amount of any other such Indebtedness under which there has not been cured prior a Payment Default or the maturity of which has been so accelerated, aggregates to $50,000,000 or more. As provided in and subject to the expiration of ten (10) days following the date upon which the Lender gives the Borrower written Notice of Default. In this Section 9, Notice of Default shall be deemed to have been given (i) on the date of personal delivery of such written notice to a Guarantor, or (ii) on the date on which a duly authorized representative provisions of the Borrower acknowledges receipt Indenture, the Holder of such written notice, or (iii) on this Note shall not have the day after sending such written notice right to the Borrower by a commonly recognized overnight courier service, such as Federal Express, Purolator, UPS or the like, or (iv) on the third day after sending such written notice to the Borrower by facsimile (to both numbers set forth in Section 16.7) or by depositing the same in the United States mail, postage prepaid, for delivery to the Borrower.
(b) Failure to observe, perform and comply with institute any of the obligations evidenced or secured by a Loan Document, other than as provided in Sections 9.1(a) above; provided that such default has not been cured prior to the expiration of thirty (30) days following the date upon which the Lender gives the Borrower written Notice of Default.
(c) Failure to duly and punctually pay, observe and discharge all Indebtedness and other obligations of the Borrower to any third party, unless the same is being contested in good faith by appropriate proceedings and the Borrower has set aside on its books adequate reserves proceeding with respect to such Indebtedness the Indenture or other obligations.
(d) The discovery by the Lender of any material inaccuracy in any statement, assurance, representation, covenant, warranty, term or condition by the Borrower contained in this Agreement or in any document delivered or to be delivered by or on behalf of the Borrower pursuant to this Agreement, which inaccuracy would result in a Material Adverse Effect (except that inaccuracies in the Borrower's Due Diligence Documents attributable to the fault or neglect of third-parties shall not constitute a breach of this Section 9.1(d)), or in any other Loan Document, or in any other agreement between the Borrower and the Lender.
(e) The filing of a petition by or against the Borrower or any Affiliate seeking relief under the Federal Bankruptcy Code, 11 U.S.C. ss. 101, et seq., and any amendments thereto, or any similar law or regulation, whether federal, state or local, not dismissed within 30 days.
(f) The commencement of a proceeding by or against the Borrower or any Affiliate under any statute or other law providing for an assignment for the benefit of creditors, the appointment of a receiver, receiver or trustee or for any other similar law or regulationremedy thereunder, whether federal, state or local, not dismissed within 30 days.
(g) The garnishment, attachment, levy or other similar action taken by or on behalf unless such Holder shall have previously given the Trustee written notice of any creditor of the Borrower, any Affiliate, or any of their respective properties which could have a Material Adverse Effect.
(h) Any change in control of the Borrower, Madison Liquidity Investors 104, MACG from that disclosed in Section 2 of this Agreement.
9.2 The Lender may, at its option, terminate its obligation to make advances of the Loan, without notice to the Borrower:
(a) upon the occurrence and continuance of any continuing Event of Default set forth with respect to the Notes, the Holders of not less than 25% in subsections 9.1
(a) through 9.1(h) above; or (b) upon principal amount of the occurrence and continuance Notes at the time outstanding shall have made written request to the Trustee to pursue a remedy in respect of any event which, with the giving of notice or the lapse of time, or both, would constitute an such Event of Default and the Holders offered the Trustee and, if requested, provided security or (C) upon indemnity reasonably satisfactory to the death Trustee against any loss, liability or disability expense and the Trustee shall not have received from the Holders of ▇▇▇▇▇ ▇a majority in principal amount of the Notes at the time outstanding a direction inconsistent with such request, and shall have failed to institute any such proceeding, for 60 days after receipt of such notice, request and offer of indemnity. The foregoing shall not apply to any suit instituted by the Holder of this Note for the enforcement of any payment of principal hereof or any premium or interest hereon.
Appears in 2 contracts
Sources: Senior Notes Agreement (Flowers Foods Inc), Senior Notes Agreement (Flowers Foods Inc)
Events of Default and Remedies. 9.1 The following events shall constitute If an "Event of Default" under this AgreementDefault with respect to the Notes shall occur and be continuing, the occurrence principal of which shall entitle the Lender to pursue any and all rights and remedies, legal and equitable, available to it under any Loan Document or otherwise. The Occurrence of an Event Default under this Agreement shall constitute a default under each and every other Loan Document. The Lender's rights and remedies are cumulative and Notes may be exercised concurrently or successively from time to time. Any action by the Lender against any property or party declared, and in certain cases shall not serve to release or discharge any other securityautomatically become, property or party in connection with this transaction. The Events of Default are as follows:
(a) Failure to pay the principal or interest on the Borrower's present or future indebtedness to the Lender, whether or not arising pursuant to this Agreement, when and as the same shall be due and payable, whether by acceleration or otherwisepayable in the manner and with the effect provided in the Indenture; provided that under Section 6.01(4)(A) and (B), in each case, the principal amount of any such default Indebtedness, together with the principal amount of any other such Indebtedness under which there has not been cured prior a Payment Default or the maturity of which has been so accelerated, aggregates to $150,000,000 or more. As provided in and subject to the expiration of ten (10) days following the date upon which the Lender gives the Borrower written Notice of Default. In this Section 9, Notice of Default shall be deemed to have been given (i) on the date of personal delivery of such written notice to a Guarantor, or (ii) on the date on which a duly authorized representative provisions of the Borrower acknowledges receipt Indenture, the Holder of such written notice, or (iii) on this Note shall not have the day after sending such written notice right to the Borrower by a commonly recognized overnight courier service, such as Federal Express, Purolator, UPS or the like, or (iv) on the third day after sending such written notice to the Borrower by facsimile (to both numbers set forth in Section 16.7) or by depositing the same in the United States mail, postage prepaid, for delivery to the Borrower.
(b) Failure to observe, perform and comply with institute any of the obligations evidenced or secured by a Loan Document, other than as provided in Sections 9.1(a) above; provided that such default has not been cured prior to the expiration of thirty (30) days following the date upon which the Lender gives the Borrower written Notice of Default.
(c) Failure to duly and punctually pay, observe and discharge all Indebtedness and other obligations of the Borrower to any third party, unless the same is being contested in good faith by appropriate proceedings and the Borrower has set aside on its books adequate reserves proceeding with respect to such Indebtedness the Indenture or other obligations.
(d) The discovery by the Lender of any material inaccuracy in any statement, assurance, representation, covenant, warranty, term or condition by the Borrower contained in this Agreement or in any document delivered or to be delivered by or on behalf of the Borrower pursuant to this Agreement, which inaccuracy would result in a Material Adverse Effect (except that inaccuracies in the Borrower's Due Diligence Documents attributable to the fault or neglect of third-parties shall not constitute a breach of this Section 9.1(d)), or in any other Loan Document, or in any other agreement between the Borrower and the Lender.
(e) The filing of a petition by or against the Borrower or any Affiliate seeking relief under the Federal Bankruptcy Code, 11 U.S.C. ss. 101, et seq., and any amendments thereto, or any similar law or regulation, whether federal, state or local, not dismissed within 30 days.
(f) The commencement of a proceeding by or against the Borrower or any Affiliate under any statute or other law providing for an assignment for the benefit of creditors, the appointment of a receiver, receiver or trustee or for any other similar law or regulationremedy thereunder, whether federal, state or local, not dismissed within 30 days.
(g) The garnishment, attachment, levy or other similar action taken by or on behalf unless such Holder shall have previously given the Trustee written notice of any creditor of the Borrower, any Affiliate, or any of their respective properties which could have a Material Adverse Effect.
(h) Any change in control of the Borrower, Madison Liquidity Investors 104, MACG from that disclosed in Section 2 of this Agreement.
9.2 The Lender may, at its option, terminate its obligation to make advances of the Loan, without notice to the Borrower:
(a) upon the occurrence and continuance of any continuing Event of Default set forth with respect to the Notes, the Holders of not less than 25% in subsections 9.1
(a) through 9.1(h) above; or (b) upon principal amount of the occurrence and continuance Notes at the time outstanding shall have made written request to the Trustee to pursue a remedy in respect of any event which, with the giving of notice or the lapse of time, or both, would constitute an such Event of Default and the Holders offered the Trustee and, if requested, provided security or (C) upon indemnity reasonably satisfactory to the death Trustee against any loss, liability or disability expense and the Trustee shall not have received from the Holders of ▇▇▇▇▇ ▇a majority in principal amount of the Notes at the time outstanding a direction inconsistent with such request, and shall have failed to institute any such proceeding, for 60 days after receipt of such notice, request and offer of indemnity. The foregoing shall not apply to any suit instituted by the Holder of this Note for the enforcement of any payment of principal hereof or any premium or interest hereon.
Appears in 1 contract
Events of Default and Remedies. 9.1 The following events shall constitute an are "Event Events of Default" under this Agreement, the occurrence of which shall entitle the Lender to pursue any and all rights and remedies, legal and equitable, available to it under any Loan Document or otherwise. The Occurrence of an Event Default under this Agreement shall constitute a default under each and every other Loan Document. The Lender's rights and remedies are cumulative and may be exercised concurrently or successively from time to time. Any action by the Lender against any property or party shall not serve to release or discharge any other security, property or party in connection with this transaction. The Events of Default are as follows":
(a) Failure the failure to pay interest on any Senior Subordinated Securities when the same becomes due and payable and such default continues for a period of 30 days (whether or not such payment shall be prohibited by the provisions of Article X or XII);
(b) the failure to pay the principal or interest on the Borrower's present or future indebtedness to the Lender, whether or not arising pursuant to this Agreement, any Senior Subordinated Securities when and as the same shall be such principal becomes due and payable, at maturity, upon redemption or otherwise (including the failure to make a payment to purchase Senior Subordinated Securities tendered pursuant to a Change of Control Offer or a Net Proceeds Offer) (whether by acceleration or otherwise; provided that not such default has not been cured prior to the expiration of ten (10) days following the date upon which the Lender gives the Borrower written Notice of Default. In this Section 9, Notice of Default payment shall be deemed to have been given (i) on prohibited by the date provisions of personal delivery of such written notice to a Guarantor, Article X or (ii) on the date on which a duly authorized representative of the Borrower acknowledges receipt of such written notice, or (iii) on the day after sending such written notice to the Borrower by a commonly recognized overnight courier service, such as Federal Express, Purolator, UPS or the like, or (iv) on the third day after sending such written notice to the Borrower by facsimile (to both numbers set forth in Section 16.7) or by depositing the same in the United States mail, postage prepaid, for delivery to the Borrower.
(b) Failure to observe, perform and comply with any of the obligations evidenced or secured by a Loan Document, other than as provided in Sections 9.1(a) above; provided that such default has not been cured prior to the expiration of thirty (30) days following the date upon which the Lender gives the Borrower written Notice of Default.XII);
(c) Failure a default in the observance or performance of any other covenant or agreement contained in this Indenture which default continues for a period of 30 days after the written notice specifying the default (and demanding that such default be remedied) is furnished to duly the Company by or to the Company and punctually pay, observe and discharge all Indebtedness and other obligations the Trustee by the Holders of least 25% of the Borrower to any third party, unless outstanding principal amount of the same is being contested Senior Subordinated Securities (except in good faith by appropriate proceedings and the Borrower has set aside on its books adequate reserves case of a default with respect to the provisions of Article V, which will constitute an Event of Default with such Indebtedness or other obligations.notice requirement but without such passage of time requirement);
(d) The discovery by the Lender failure to pay at final stated maturity (giving effect to any applicable grace periods and any extensions thereof) the principal amount of any material inaccuracy in any statement, assurance, representation, covenant, warranty, term or condition by the Borrower contained in this Agreement or in any document delivered or to be delivered by or on behalf of the Borrower pursuant to this Agreement, which inaccuracy would result in Junior Subordinated Notes or any other Indebtedness of the Company or any Restricted Subsidiary of the Company (other than a Material Adverse Effect (except that inaccuracies in the Borrower's Due Diligence Documents attributable to the fault or neglect of third-parties shall not constitute a breach of this Section 9.1(d)Securitization Entity), or the acceleration of the final stated maturity of any of the Junior Subordinated Notes or any such other Indebtedness (which acceleration is not rescinded, annulled or otherwise cured within 20 days after receipt by the Company or such Restricted Subsidiary of notice of any such acceleration), if, in the case of any such other Indebtedness, the aggregate principal amount of such Indebtedness, together with the principal amount of any other Loan DocumentIndebtedness in default for failure to pay principal at final maturity or which has been accelerated, aggregate $10.0 million or in more at any other agreement between the Borrower and the Lender.time;
(e) The filing one or more judgments in an aggregate amount in excess of a petition $10.0 million (which are not covered by or third party insurance as to which the insurer has not disclaimed coverage) shall have been rendered against the Borrower Company or any Affiliate seeking relief under the Federal Bankruptcy Codeof its Restricted Subsidiaries and such judgments remain undischarged, 11 U.S.C. ss. 101, et seq., unpaid or unstayed for a period of 60 days after such judgment or judgments become final and any amendments thereto, or any similar law or regulation, whether federal, state or local, not dismissed within 30 days.non-appealable; or
(f) The commencement the Company or any Subsidiary of the Company that is a Significant Subsidiary, pursuant to or within the meaning of any Bankruptcy Law: (A) commences a voluntary case or proceeding; (B) consents to the entry of an order for relief against it in an involuntary case or proceeding; (C) consents to the appointment of a proceeding by custodian of it or against the Borrower or for any Affiliate under any statute or other law providing for an substantial part of its property; (D) makes a general assignment for the benefit of its creditors, the appointment of a receiver, takes any comparable action under any foreign laws relating to insolvency or any other similar law of them takes any action to authorize or regulation, whether federal, state or local, not dismissed within 30 days.effect any of the foregoing;
(g) The garnishment, attachment, levy a court of competent jurisdiction enters an order or other similar action taken by decree under any Bankruptcy Law that: (A) is for relief against the Company or on behalf of any creditor Subsidiary of the Borrower, any Affiliate, Company that is a Significant Subsidiary in an involuntary case or proceeding; (B) appoints a custodian of the Company or any Subsidiary of their respective properties which could have the Company that is a Material Adverse Effect.Significant Subsidiary or for any substantial part of its property; (C) orders the winding up or liquidation of the Company or any Subsidiary of the Company that is a Significant Subsidiary; or (D) any similar relief is granted under any foreign laws and, in each case, the order or decree relating thereto remains unstayed and in effect for 60 days; and
(h) Any change in control any Subsidiary Guarantee of a Subsidiary of the Borrower, Madison Liquidity Investors 104, MACG from Company that disclosed is a Significant Subsidiary ceases to be in full force and effect or any Subsidiary Guarantee of a Subsidiary of the Company that is a Significant Subsidiary is declared to be null and void and unenforceable or any Subsidiary Guarantee of a Subsidiary of the Company that is a Significant Subsidiary is found to be invalid or any Guarantor that is a Significant Subsidiary of the Company denies its liability under its Subsidiary Guarantee (other than by reason of release of a Guarantor in accordance with Section 2 11.05 of this Agreement.
9.2 Indenture). The Lender may, at its option, terminate its obligation to make advances foregoing shall constitute Events of Default whatever the Loan, without notice to the Borrower:
(a) upon the occurrence and continuance of reason for any such Event of Default set forth in subsections 9.1
(a) through 9.1(h) above; and whether it is voluntary or (b) upon the occurrence and continuance involuntary or is effected by operation of law or pursuant to any judgment, decree or order of any event whichcourt or any order, with the giving rule or regulation of notice any administrative or the lapse of time, or both, would constitute an Event of Default or (C) upon the death or disability of ▇▇▇▇▇ ▇governmental body.
Appears in 1 contract
Events of Default and Remedies. 9.1 The following events shall constitute an "Event of Default" under this Agreement, Upon the occurrence of which an Event of Default as defined in the Credit Agreement the Bank may, among other actions, so notify the Trustee, and upon receipt of such notice the Trustee shall entitle declare the Lender to pursue any principal of all Bonds then outstanding and all rights accrued and remedies, legal unpaid interest thereon to be due and equitable, available to it under any Loan Document or otherwisepayable immediately. The Occurrence Events of an Event Default under this the Credit Agreement shall constitute a default under each and every other Loan Document. The Lender's rights and remedies are cumulative and may be exercised concurrently or successively from time to time. Any action include, without limitation, failure by the Lender against Lessee to pay any property amount payable under the Credit Agreement; any default or party shall not serve to release Event of Default under the Bond Documents (as defined in the Credit Agreement); any representation or discharge warranty made by the Lessee (or any other security, property or party of its officers) in connection with this transaction. The Events the Credit Agreement or certain other agreements relating to the Bonds being incorrect in any material respect when made; failure by the Lessee to perform or observe any other term, covenant or agreement in the Credit Agreement for a period of Default are as follows:
(a) Failure 20 days after the earlier of a responsible officer of the Lessee having knowledge thereof or receipt of written notice from the Bank; failure to pay any portion of amounts due under the principal or interest on the Borrower's present or future indebtedness to the Lender, whether or not arising pursuant to this Agreement, when and as the same shall be due and payable, whether by acceleration or otherwise; provided that such default has not been cured prior to Revolving Credit Agreement after the expiration of ten (10) days following the date upon which the Lender gives the Borrower written Notice of Default. In this Section 9, Notice of Default shall be deemed to have been given (i) on the date of personal delivery of such written notice to a Guarantor, or (ii) on the date on which a duly authorized representative of the Borrower acknowledges receipt of such written notice, or (iii) on the day after sending such written notice to the Borrower by a commonly recognized overnight courier service, such as Federal Express, Purolator, UPS or the like, or (iv) on the third day after sending such written notice to the Borrower by facsimile (to both numbers set forth in Section 16.7) or by depositing the same in the United States mail, postage prepaid, for delivery to the Borrower.
(b) Failure to observe, perform any applicable grace period and comply with any of the obligations evidenced or secured by a Loan Document, other than as provided in Sections 9.1(a) above; provided that such default has not been cured prior to the expiration of thirty (30) days following the date upon which the Lender gives the Borrower written Notice of Default.
(c) Failure to duly and punctually pay, observe and discharge all Indebtedness and other obligations of the Borrower to any third party, unless the same is being contested in good faith by appropriate proceedings and the Borrower has set aside on its books adequate reserves with respect to such Indebtedness or other obligations.
(d) The discovery waived by the Lender of any material inaccuracy in any statement, assurance, representation, covenant, warranty, term or condition by the Borrower contained in this Agreement or in any document delivered or to be delivered by or on behalf of the Borrower pursuant to this Agreement, which inaccuracy would result in a Material Adverse Effect (except that inaccuracies in the Borrower's Due Diligence Documents attributable to the fault or neglect of third-parties shall not constitute a breach of this Section 9.1(d)), or in any other Loan Document, or in any other agreement between the Borrower and the Lender.
(e) The filing of a petition by or against the Borrower or any Affiliate seeking relief under the Federal Bankruptcy Code, 11 U.S.C. ss. 101, et seq., and any amendments thereto, or any similar law or regulation, whether federal, state or local, not dismissed within 30 days.
(f) The commencement of a proceeding by or against the Borrower or any Affiliate under any statute or other law providing for an assignment for the benefit of creditors, the appointment of a receiver, or any other similar law or regulation, whether federal, state or local, not dismissed within 30 days.
(g) The garnishment, attachment, levy or other similar action taken by or on behalf of any creditor of the Borrower, any Affiliate, or any of their respective properties which could have a Material Adverse Effect.
(h) Any change in control of the Borrower, Madison Liquidity Investors 104, MACG from that disclosed in Section 2 of this Agreement.
9.2 The Lender may, at its option, terminate its obligation to make advances of the Loan, without notice to the Borrower:
(a) upon Bank; the occurrence and continuance of any Event of Default set forth in subsections 9.1
(a) through 9.1(h) aboveunder the Revolving Credit Agreement; acts of insolvency, bankruptcy, dissolution, liquidation or (b) upon receivership of the Lessee; the rendering of certain judgments against the Lessee; the occurrence of a Material Adverse Effect; if any of the documents related to the Letter of Credit cease to be in full force and continuance effect or any party (other than the Bank) contests or disavows its obligations thereunder; more than one Business Day expires after any principal drawing made to purchase Bonds and no Bonds in an aggregate face amount at least equal to the amount of any event which, with the giving of notice drawing are delivered to the Trustee or the lapse Bank; and the abandonment or change in ownership of time, or both, would constitute an Event of Default or (C) upon the death or disability of ▇▇▇▇▇ ▇Project.
Appears in 1 contract
Events of Default and Remedies. 9.1 The following events shall constitute an "Event of Default" under 1. Notwithstanding anything hereinabove to the contrary, CITBC may terminate this Agreement, Financing Agreement immediately upon the occurrence of which shall entitle any of the Lender following (herein "EVENTS OF DEFAULT"):
(a) cessation of the business of any Loan Party (except as permitted hereunder) or the calling of a meeting of the creditors of any Loan Party for purposes of compromising the debts and obligations of any Loan Party;
(b) the failure of any Loan Party to pursue generally meet debts as they mature;
(c) the commencement by or against any and all rights and remediesLoan Party of any proceedings under any Debtor Laws, legal and equitableprovided that in the event of any involuntary proceeding commenced against any Loan Party such proceeding is not dismissed or discharged within thirty (30) days after commencement thereof;
(d) breach by any Loan Party of any warranty, available representation or covenant contained herein (other than those referred to it under in SUB-PARAGRAPH (e) below) or in any Loan Document or otherwise. The Occurrence of an Event Default under this Agreement shall constitute a default under each and every other written agreement between any Loan Document. The Lender's rights and remedies are cumulative and may be exercised concurrently Party or successively from time to time. Any action by the Lender against any property or party shall not serve to release or discharge any other securityCITBC, property or party in connection with this transaction. The Events of Default are as follows:
(a) Failure to pay the principal or interest on the Borrower's present or future indebtedness to the Lender, whether or not arising pursuant to this Agreement, when and as the same shall be due and payable, whether by acceleration or otherwise; provided that such default has breach by any Loan Party of any of the warranties, representations or covenants referred in this CLAUSE (d) shall not been cured prior be deemed to the expiration be an Event of Default unless and until such breach shall remain unremedied to CITBC's satisfaction for a period of ten (10) days following from the date upon which of such breach;
(e) any representation or warranty by any Loan Party is untrue or misleading in any material respect, or breach by any Loan Parties of any covenant contained in SECTION 3, PARAGRAPHS 3 (other than the Lender gives third sentence of PARAGRAPH 3) and 4; SECTION 6, PARAGRAPHS 3 and 4 (other than the Borrower written Notice first sentence of Default. In this Section 9PARAGRAPH 4); SECTION 7, Notice PARAGRAPHS 1,5,6, 8 through 11;
(f) failure of Default any Loan Parties to pay any of the Obligations within five (5) Business Days of the due date thereof, provided that nothing contained herein shall be deemed prohibit CITBC from charging such amounts to have been given any Loan Party's Revolving Loan Account on the due date thereof;
(g) any Loan Party shall (i) on the date of personal delivery of such written notice to a Guarantor, or engage in any "prohibited transaction" as defined in ERISA; (ii) on the date on which a duly authorized representative of the Borrower acknowledges receipt of such written notice, or have any "accumulated funding deficiency" as defined in 39 Amended and Restated Financing Agreement 42 ERISA; (iii) on the day after sending such written notice to the Borrower by a commonly recognized overnight courier service, such have any Reportable Event as Federal Express, Purolator, UPS or the like, or defined in ERISA; (iv) on terminate any Plan, as defined in ERISA; or (v) be engaged in any proceeding in which the third day after sending 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 (g) such written notice to the Borrower by facsimile event or condition (to both numbers set forth in Section 16.7x) or by depositing the same in the United States mail, postage prepaid, remains uncured for delivery to the Borrower.
(b) Failure to observe, perform and comply with any of the obligations evidenced or secured by a Loan Document, other than as provided in Sections 9.1(a) above; provided that such default has not been cured prior to the expiration period of thirty (30) days following from date of occurrence; and (y) could, in the date upon which the Lender gives the Borrower written Notice reasonable opinion of Default.
(c) Failure to duly and punctually payCITBC, observe and discharge all Indebtedness and other obligations of the Borrower subject any Loan Party to any third partytax, unless the same is being contested in good faith by appropriate proceedings and the Borrower has set aside on its books adequate reserves with respect to such Indebtedness penalty or other obligations.
(d) The discovery by liability material to the Lender business, operations or financial condition of any material inaccuracy in any statement, assurance, representation, covenant, warranty, term or condition by the Borrower contained in this Agreement or in any document delivered or to be delivered by or on behalf of the Borrower pursuant to this Agreement, which inaccuracy would result in a Material Adverse Effect (except that inaccuracies in the Borrower's Due Diligence Documents attributable to the fault or neglect of third-parties shall not constitute a breach of this Section 9.1(d)), or in any other Loan Document, or in any other agreement between the Borrower and the Lender.
(e) The filing of a petition by or against the Borrower or any Affiliate seeking relief under the Federal Bankruptcy Code, 11 U.S.C. ss. 101, et seq., and any amendments thereto, or any similar law or regulation, whether federal, state or local, not dismissed within 30 days.
(f) The commencement of a proceeding by or against the Borrower or any Affiliate under any statute or other law providing for an assignment for the benefit of creditors, the appointment of a receiver, or any other similar law or regulation, whether federal, state or local, not dismissed within 30 days.
(g) The garnishment, attachment, levy or other similar action taken by or on behalf of any creditor of the Borrower, any Affiliate, or any of their respective properties which could have a Material Adverse Effect.Party;
(h) Any change without the prior written consent of CITBC, the Company shall (x) amend or modify the Subordinated Debt except as provided or permitted in control the Subordination Agreement, (y) make any payment on account of the BorrowerSubordinated Debt except as permitted in the Subordination Agreement, Madison Liquidity Investors 104or (z) or modify the Certificate of Designations, MACG from that disclosed in Section 2 Preferences and Rights of this Agreement.
9.2 The Lender maySeries D Cumulative Preferred Stock, at its option, terminate its obligation to make advances a copy of the Loan, without notice which is attached to the Borrower:Subscription Agreement, except to decrease the dividend rate or defer, reduce, forgive, or postpone any date for any dividend or redemption payment;
(ai) upon the occurrence and continuance of any Event default or event of Default set forth in subsections 9.1
default (aafter giving effect to any applicable grace or cure periods) through 9.1(hunder any instrument or agreement evidencing (x) aboveSubordinated Debt; or (by) upon the occurrence and continuance any other Indebtedness of any event whichLoan Party having a principal amount in excess of $250,000; or
(j) The individuals who, with as of the giving date of notice this Financing Agreement, constitute the members of the Company's board of directors (for purposes of this SUBPARAGRAPH, the "INCUMBENT BOARD") do not constitute or cease for any reason to constitute at least 66 2/3% of the lapse Company's board of timedirectors. For purposes of this SUBPARAGRAPH, any individual who becomes a member of the board of directors or comparable body or who obtains a voting interest after the date of this Financing Agreement and whose appointment to the board, or bothnomination for election, would constitute an Event was (i) approved or ratified by a vote of Default the individuals comprising at least 50% of the then incumbent board; or (Cii) upon who was appointed by the death or disability chairman of ▇▇▇▇▇ ▇the board, shall thereafter be deemed to be a member of the incumbent board.
Appears in 1 contract
Events of Default and Remedies. 9.1 (a) The following events shall constitute an term "Event of Default" ", wherever used herein, shall mean any of the following events under this Agreement, the occurrence of which shall entitle the Lender Lease: (i) Lessee breaches its obligation to pursue any and all rights and remedies, legal and equitable, available to it under any Loan Document pay Rent or otherwise. The Occurrence of an Event Default under this Agreement shall constitute a default under each and every other Loan Document. The Lender's rights and remedies are cumulative and may be exercised concurrently or successively from time to time. Any action by the Lender against any property or party shall not serve to release or discharge any other security, property or party in connection with this transaction. The Events of Default are as follows:
(a) Failure to pay the principal or interest on the Borrower's present or future indebtedness to the Lender, whether or not arising pursuant to this Agreement, sum when and as the same shall be due and payable, whether by acceleration or otherwise; provided that such default has not been cured prior fails to cure the expiration of breach within ten (10) days following the date upon which the Lender gives the Borrower written Notice of Default. In this Section 9, Notice of Default shall be deemed to have been given (i) on the date of personal delivery of such after written notice from Lessor to a Guarantor, Lessee; or (ii) on the date on which a duly authorized representative Lessee breaches any of the Borrower acknowledges receipt of such written notice, its insurance obligations under Section 10; or (iii) on the day after sending such written notice to the Borrower by a commonly recognized overnight courier service, such as Federal Express, Purolator, UPS or the like, or (iv) on the third day after sending such written notice to the Borrower by facsimile (to both numbers set forth in Section 16.7) or by depositing the same in the United States mail, postage prepaid, for delivery to the Borrower.
(b) Failure to observe, perform and comply with Lessee breaches any of the its other obligations evidenced or secured by a Loan Document, other than as provided in Sections 9.1(a) above; provided and fails to cure that such default has not been cured prior to the expiration of breach within thirty (30) days following the date upon which the Lender gives the Borrower after written Notice of Default.
notice from Lessor to Lessee (c) Failure to duly except that so long as Lessee is proceeding diligently and punctually pay, observe and discharge all Indebtedness and other obligations of the Borrower to any third party, unless the same is being contested in good faith towards curing such breach and is in fact making progress towards curing such breach, then Lessee shall have such additional time, not to exceed sixty (60) additional days, as is necessary to cure such breach); or (iv) any representation or warranty made by appropriate proceedings and the Borrower has set aside on its books adequate reserves Lessee in connection with respect to such Indebtedness this Lease shall be false or misleading in any material respect; or (v) Lessee or any guarantor or other obligations.
obligor for any of the obligations hereunder (dcollectively "GUARANTOR") The discovery by the Lender of any material inaccuracy in any statement, assurance, representation, covenant, warranty, term becomes insolvent or condition by the Borrower contained in this Agreement ceases to do business as a going concern; or in any document delivered or to be delivered (vi) a petition is filed by or on behalf against Lessee or any Guarantor under any bankruptcy, insolvency or similar laws and in the event of an involuntary petition, the petition is not dismissed within forty-five (45) days of the Borrower pursuant to this Agreementfiling date; or (vii) if Lessee or any Guarantor is a natural person, which inaccuracy would result any death or incompetency of Lessee or such Guarantor; or (viii) Lessee breaches or is in a Material Adverse Effect (except that inaccuracies in the Borrower's Due Diligence Documents attributable to the fault or neglect of third-parties shall not constitute a breach of this Section 9.1(d)), or in any other Loan Document, or in default under any other agreement by and between the Borrower Lessor and the LenderLessee.
(e) The filing of a petition by or against the Borrower or any Affiliate seeking relief under the Federal Bankruptcy Code, 11 U.S.C. ss. 101, et seq., and any amendments thereto, or any similar law or regulation, whether federal, state or local, not dismissed within 30 days.
(f) The commencement of a proceeding by or against the Borrower or any Affiliate under any statute or other law providing for an assignment for the benefit of creditors, the appointment of a receiver, or any other similar law or regulation, whether federal, state or local, not dismissed within 30 days.
(g) The garnishment, attachment, levy or other similar action taken by or on behalf of any creditor of the Borrower, any Affiliate, or any of their respective properties which could have a Material Adverse Effect.
(h) Any change in control of the Borrower, Madison Liquidity Investors 104, MACG from that disclosed in Section 2 of this Agreement.
9.2 The Lender may, at its option, terminate its obligation to make advances of the Loan, without notice to the Borrower:
(a) upon the occurrence and continuance of any Event of Default set forth in subsections 9.1
(a) through 9.1(h) above; or (b) upon the occurrence and continuance of any event which, with the giving of notice or the lapse of time, or both, would constitute an Event of Default or (C) upon the death or disability of ▇▇▇▇▇ ▇.
Appears in 1 contract
Sources: Aircraft Lease Agreement (Terayon Communication Systems)
Events of Default and Remedies. 9.1 The following events shall constitute an "Event of Default" under this the Credit Agreement, after the occurrence of which Collateral Agent shall entitle the Lender to pursue any and all rights and remedies, legal and equitable, available to it under any Loan Document or otherwise. The Occurrence of an Event Default under this Agreement shall constitute a default under each and every other Loan Document. The Lender's rights and remedies are cumulative and may be exercised concurrently or successively from time to time. Any action by the Lender against any property or party shall not serve to release or discharge any other security, property or party in connection with this transaction. The Events of Default are as follows:
(a) Failure to pay the principal or interest on the Borrower's present or future indebtedness to the Lender, whether or not arising pursuant to this Agreement, when and as the same shall be due and payable, whether by acceleration or otherwise; have provided that such default has not been cured prior to the expiration of ten (10) days following the date upon which the Lender gives the Borrower written Notice of Default. In this Section 9, Notice of Default shall be deemed to have been given (i) on the date of personal delivery of such written notice to a Guarantor, or (ii) on the date on which a duly authorized representative of the Borrower acknowledges receipt of such written notice, or (iii) on the day after sending such written notice to the Borrower by a commonly recognized overnight courier serviceCompany of the suspension of the Company’ rights under Clause 9(a)(i) above, such as Federal Expressall rights of the Company to exercise the voting and consensual rights and powers it is entitled to exercise pursuant to Clause 9(a)(i) above, Purolator, UPS or the like, or (iv) on the third day after sending such written notice to the Borrower by facsimile (to both numbers set forth in Section 16.7) or by depositing the same shall thereupon become vested in the United States mailCollateral Agent, postage prepaid, for delivery which shall have the sole and exclusive right and authority to the Borrower.
(b) Failure to observe, perform exercise such voting and comply with any of the obligations evidenced or secured by a Loan Document, other than as provided in Sections 9.1(a) aboveconsensual rights and powers; provided that such default has not been cured prior to the expiration of thirty (30) days following the date upon which the Lender gives the Borrower written Notice of Default.
(c) Failure to duly and punctually pay, observe and discharge all Indebtedness and other obligations of the Borrower to any third partythat, unless the same is being contested in good faith by appropriate proceedings and the Borrower has set aside on its books adequate reserves with respect to such Indebtedness or other obligations.
(d) The discovery otherwise directed by the Lender of any material inaccuracy in any statement, assurance, representation, covenant, warranty, term or condition by the Borrower contained in this Agreement or in any document delivered or to be delivered by or on behalf of the Borrower pursuant to this Agreement, which inaccuracy would result in a Material Adverse Effect (except that inaccuracies in the Borrower's Due Diligence Documents attributable to the fault or neglect of third-parties shall not constitute a breach of this Section 9.1(d)), or in any other Loan Document, or in any other agreement between the Borrower and the Lender.
(e) The filing of a petition by or against the Borrower or any Affiliate seeking relief under the Federal Bankruptcy Code, 11 U.S.C. ss. 101, et seq., and any amendments thereto, or any similar law or regulation, whether federal, state or local, not dismissed within 30 days.
(f) The commencement of a proceeding by or against the Borrower or any Affiliate under any statute or other law providing for an assignment for the benefit of creditorsRequired Lenders, the appointment of a receiver, or any other similar law or regulation, whether federal, state or local, not dismissed within 30 days.
(g) The garnishment, attachment, levy or other similar action taken by or on behalf of any creditor of Collateral Agent shall have the Borrower, any Affiliate, or any of their respective properties which could have a Material Adverse Effect.
(h) Any change in control of right from time to time following and during the Borrower, Madison Liquidity Investors 104, MACG from that disclosed in Section 2 of this Agreement.
9.2 The Lender may, at its option, terminate its obligation to make advances of the Loan, without notice to the Borrower:
(a) upon the occurrence and continuance of any Event of Default set forth in subsections 9.1
(a) through 9.1(h) above; or (b) upon the occurrence and continuance of any event which, with the giving of notice or the lapse of time, or both, would constitute an Event of Default to permit the Company to exercise such rights. After all Events of Default have been cured or waived, all rights vested in the Collateral Agent pursuant to this paragraph (Cc) shall cease, the Company shall have the exclusive right to exercise the voting and consensual rights and powers they would otherwise be entitled to exercise prior to such vesting. The Company hereby appoints the Collateral Agent as its proxy in respect of the Equity Interests in the Pledged Subsidiary and any Related Rights owned by it, such that the Collateral Agent shall be entitled, upon the death voting and consensual rights and powers becoming vested in the Collateral Agent: (i) to vote the Equity Interests in the Pledged Subsidiary owned by the Company in the Company’s name and on the Company’s behalf on all resolutions of the shareholders of the Pledged Subsidiary in any general meeting, extraordinary meeting or disability any other shareholder meeting (including any adjourned meeting) held from to time; (ii) to appoint directors to the board of ▇▇▇▇▇ ▇directors of the Pledged Subsidiary in the Company’s name and on the Company’s behalf; and (iii) to exercise all other shareholders’ rights in respect of the Equity Interests in the Pledged Subsidiary and any Related Rights owned by the Company, in each case, in such manner as the Collateral Agent may deem fit.
Appears in 1 contract
Events of Default and Remedies. 9.1 The following events shall constitute an "Event of Default" under this Agreement, (a) Upon the occurrence of which shall entitle and during the Lender to pursue any and all rights and remedies, legal and equitable, available to it under any Loan Document or otherwise. The Occurrence continuance of an Event of Default under this Agreement shall constitute a default under each and every after the acceleration of the Notes (so long as such Event of Default has not been waived), subject to the provisions of Section 7 hereof, the Collateral Agent may exercise in respect of the Collateral, in addition to other Loan Document. The Lender's rights and remedies are cumulative provided for herein or otherwise available to it, all the rights and remedies of a secured party on default under the UCC (whether or not the UCC applies to the affected Collateral), and also may (i) require the Company to, and the Company hereby agrees that the Company shall, at the Company’s expense and upon request of the Collateral Agent forthwith, assemble all or part of the Collateral as directed by the Collateral Agent and make it available to the Collateral Agent at a place to be exercised concurrently designated by the Collateral Agent which is reasonably convenient to both parties; and (ii) without notice except as specified below, sell the Collateral or successively any part thereof in one or more parcels at public or private sale, at the office of the Collateral Agent or elsewhere, for cash, on credit or for future delivery, and at such price or prices and upon such other terms as the Collateral Agent may deem commercially reasonable. The Company agrees that, to the extent notice of sale shall be required by law, at least ten (10) days prior notice to the Company of the time and place of any public or private sale is to be made shall constitute reasonable notification. The Collateral Agent shall not be obligated to make any sale of Collateral regardless of notice of sale having been given. The Collateral Agent may adjourn any public or private sale from time to time. Any action time by announcement at the time and place fixed therefor, and such sale may, without further notice, be made at the time and place to which it has been so adjourned.
(b) Subject to the provisions of Section 7 hereof and after satisfying its responsibilities to turn over funds to the Senior Lender pursuant to the Subordination Agreement, upon the occurrence and during the continuance of an Event of Default and after the acceleration of the Notes (so long as such Event of Default has not been waived), any cash held by the Lender against Collateral Agent as Collateral and all cash proceeds received by the Collateral Agent in respect of any property sale of, collection from or party other realization upon, all or any part of the Collateral shall not serve to release or discharge any other security, property or party in connection with this transaction. The Events of Default are be applied as follows:
(ai) Failure First: to the Collateral Agent, its agents and attorneys for amounts due under Section 9 hereof, including payment of all compensation, expenses and liabilities incurred, and all advances made, by the Collateral Agent and the costs and expenses of such collection;
(ii) Second: to Holders of Notes for amounts due and unpaid on the Notes for principal and interest, ratably, without preference or priority of any kind, according to the amounts due and payable on the Notes for principal and interest, respectively; and
(iii) Third: to the Company or to such party as a court of competent jurisdiction shall direct. In the event that the proceeds of any such sale, collection or realization are insufficient to pay all Secured Obligations in full, the principal Company shall remain liable for any deficiency, including any attorney’s fees and other expenses incurred by the Collateral Agent or interest on any Holder to collect such deficiency.
(c) Notwithstanding any of the Borrower's present or future indebtedness to foregoing, neither the Lender, whether or not arising pursuant to this Agreement, when and as Collateral Agent nor the same Holders shall be due and payable, whether by acceleration or otherwise; provided that such default has not been cured prior required to the expiration of ten (10) days following the date upon which the Lender gives the Borrower written Notice of Default. In this Section 9, Notice of Default shall be deemed to have been given (i) on make any demand upon, pursue or exhaust any of their rights or remedies against the date Company with respect to the payment of personal delivery the Secured Obligations or to pursue or exhaust any of such written notice their rights or remedies with respect to a Guarantorany Collateral therefor, or (ii) on marshal the date on which a duly authorized representative of the Borrower acknowledges receipt of such written notice, Collateral or (iii) on the day after sending such written notice resort to the Borrower by a commonly recognized overnight courier service, such as Federal Express, Purolator, UPS or the like, or (iv) on the third day after sending such written notice to the Borrower by facsimile (to both numbers set forth in Section 16.7) or by depositing the same in the United States mail, postage prepaid, for delivery to the Borrower.
(b) Failure to observe, perform and comply with any of the obligations evidenced or secured by a Loan Document, other than as provided in Sections 9.1(a) above; provided that such default has not been cured prior to the expiration of thirty (30) days following the date upon which the Lender gives the Borrower written Notice of Default.
(c) Failure to duly and punctually pay, observe and discharge all Indebtedness and other obligations of the Borrower to any third party, unless the same is being contested in good faith by appropriate proceedings and the Borrower has set aside on its books adequate reserves with respect to such Indebtedness or other obligations.
(d) The discovery by the Lender of any material inaccuracy Collateral in any statement, assurance, representation, covenant, warranty, term or condition by the Borrower contained in this Agreement or in any document delivered or to be delivered by or on behalf of the Borrower pursuant to this Agreement, which inaccuracy would result in a Material Adverse Effect (except that inaccuracies in the Borrower's Due Diligence Documents attributable to the fault or neglect of third-parties shall not constitute a breach of this Section 9.1(d)), or in any other Loan Document, or in any other agreement between the Borrower and the Lenderparticular order.
(e) The filing of a petition by or against the Borrower or any Affiliate seeking relief under the Federal Bankruptcy Code, 11 U.S.C. ss. 101, et seq., and any amendments thereto, or any similar law or regulation, whether federal, state or local, not dismissed within 30 days.
(f) The commencement of a proceeding by or against the Borrower or any Affiliate under any statute or other law providing for an assignment for the benefit of creditors, the appointment of a receiver, or any other similar law or regulation, whether federal, state or local, not dismissed within 30 days.
(g) The garnishment, attachment, levy or other similar action taken by or on behalf of any creditor of the Borrower, any Affiliate, or any of their respective properties which could have a Material Adverse Effect.
(h) Any change in control of the Borrower, Madison Liquidity Investors 104, MACG from that disclosed in Section 2 of this Agreement.
9.2 The Lender may, at its option, terminate its obligation to make advances of the Loan, without notice to the Borrower:
(a) upon the occurrence and continuance of any Event of Default set forth in subsections 9.1
(a) through 9.1(h) above; or (b) upon the occurrence and continuance of any event which, with the giving of notice or the lapse of time, or both, would constitute an Event of Default or (C) upon the death or disability of ▇▇▇▇▇ ▇.
Appears in 1 contract
Sources: Junior Security Agreement (Mri Interventions, Inc.)
Events of Default and Remedies. 9.1 The (a) Any of the following events of default by the Lessee shall constitute an "“Event of Default" ” and give rise to the rights on the part of the Lessor described in Section 25(b) hereof:
(i) default in the payment of any amount payable by the Lessee under this Agreement, Section 10(c); or
(ii) default in the payment of any other amount payable by the Lessee hereunder and the continuance of such default for 5 days; or
(iii) default in the payment or performance of any other liability or other obligation or covenant of the Lessee to the Lessor hereunder and the continuance of such default for 30 days after the occurrence thereof; or
(iv) the Lessee or any Guarantor admits insolvency or bankruptcy or is unable to pay its debts as they mature, or makes an assignment for the benefit of which shall entitle creditors or applies for or consents to the Lender appointment of a trustee or receiver for the Lessee or for any Guarantor, or for the major part of its property other than the trustees pursuant to pursue any the Mortgage and all rights and remediesDeed of Trust; or
(v) bankruptcy, legal and equitablereorganization, available to it arrangement, insolvency or liquidation proceedings, or other proceedings for relief under any Loan Document bankruptcy law or otherwise. The Occurrence similar law for the relief of an Event Default under this Agreement shall constitute a default under each debtors, are instituted by or against the Lessee or any Guarantor, and every other Loan Document. The Lender's rights and remedies if instituted against the Lessee or any Guarantor are cumulative and may be exercised concurrently allowed against the Lessee or successively from time any Guarantor or are consented to time. Any action or are not dismissed, stayed or otherwise nullified within 60 days after such institution; or
(vi) any representation or warranty made by the Lender against Lessee in this Lease or by any property Guarantor in its Guaranty, or party shall not serve to release in any related instrument, or discharge in any report, certificate, financial statement or other security, property or party instrument furnished in connection with this transaction. The Events of Default are as follows:Lease or any Guaranty shall prove to be false or misleading in any material respect; or
(avii) Failure a default or event of default under any instrument evidencing indebtedness for borrowed money (or under the provisions of any agreement pursuant to pay which such instrument was issued) in excess of $10,000,000 and providing the principal holder thereof with recourse against the Lessee or interest on the Borrower's present or future any Guarantor shall cause such indebtedness to become due prior to its stated maturity; or
(viii) one or more final judgments for the Lender, whether payment of money shall be rendered against the Lessee or not arising pursuant to this Agreement, when any Guarantor in an aggregate amount in excess of $10,000,000 and as the same shall remain undischarged for a period of 30 days during which execution of such judgment shall not be due and payable, whether by acceleration or otherwise; provided that such default has not been cured prior effectively stayed. The references to the expiration of ten (10) days following the date upon which the Lender gives the Borrower written Notice of Default. In this Section 9, Notice of Default shall be deemed to have been given (i) on the date of personal delivery of such written notice to a Guarantor, or (ii) on the date on which a duly authorized representative of the Borrower acknowledges receipt of such written notice, or (iii) on the day after sending such written notice to the Borrower by a commonly recognized overnight courier service, such as Federal Express, Purolator, UPS or the like, or (iv) on the third day after sending such written notice to the Borrower by facsimile (to both numbers Guarantor set forth in Section 16.725(a)(iv)-(viii) or by depositing the same in the United States mail, postage prepaid, for delivery hereof shall have no force and effect with respect to the Borrowera Guarantor under any Guaranty which shall have been terminated.
(b) Failure to observeUpon the occurrence of any Event of Default, perform and comply with the Lessor may in its discretion do any one or more of the following:
(i) treat the Event of Default as an event under Section 20(a) hereof, entitling Lessor to the consequent benefits of Section 20(b) hereof and in general proceed by appropriate judicial proceedings, either at law or in equity, to enforce performance or observance by the Lessee of the applicable provisions of this Lease, or to recover damages for the breach of any thereof; or
(ii) by notice to the Lessee terminate this Lease, whereupon the Lessee’s interest and all rights of the Lessee and Persons claiming through or under the Lessee to the use of the Nuclear Fuel shall forthwith terminate but the Lessee shall remain liable with respect to obligations evidenced and liabilities, actual or secured by a Loan Documentcontingent, other than as provided in Sections 9.1(a) above; provided that such default has not been cured which arose under this Lease on or prior to the expiration date of thirty such termination and the Lessee’s obligations set forth in Section 11 and this Section 25(b)(ii) and, until the earlier of (301) days following Lessor’s taking possession of the Nuclear Fuel or Lessee’s delivering the Nuclear Fuel as set forth below or (2) final and uncontested payment of the amounts referred to in (A) and (B) below, Sections 9, 13, 14 and 17; and upon such termination the Lessor shall have the immediate right of possession of the Nuclear Fuel (to the extent not prohibited by law) and the right, at the Lessor’s election, either to enter the Generating Facility or any other premises where the Nuclear Fuel or any portion thereof is located and remove the Nuclear Fuel or such portion thereof there located (to the extent not prohibited by law) or cause the same to be done by any Person entitled by law so to do, in which case the Lessor shall not be responsible for any damage to the Generating Facility or such premises, except for damage resulting from the Lessor’s willful misconduct or gross negligence (the Lessee hereby agreeing to indemnify and hold the Lessor harmless from all losses and liabilities in respect of any such damage to the Generating Facility, such premises or the Nuclear Fuel or injury to the Lessor’s, the Lessee’s or such other Person’s employees sustained in the course of such removal, except any such damage resulting from the Lessor’s willful misconduct or gross negligence, provided that the Lessee hereby further agrees that the misconduct or negligence of the Assignee shall not be imputed to the Lessor), or to require the Lessee, at the Lessee’s expense, to deliver the Nuclear Fuel or any portion thereof, properly containerized and insulated for shipping, at the Generating Facility and consigned to a Person specified by the Lessor and licensed to receive such Nuclear Fuel, in which case the risk of loss shall be upon the Lessee until such delivery is made; and the Lessor may thenceforth hold, possess and enjoy the Nuclear Fuel (to the extent not prohibited by law) and may sell the Lessor’s interest in the Nuclear Fuel or any portion thereof upon any terms deemed satisfactory to the Lessor, free from any rights of the Lessee and any Person claiming through or under the Lessee; but the Lessor shall, nevertheless, have the right to recover forthwith from the Lessee:
(A) any and all Basic Rent, Additional Rent, Advance Rent and all other amounts payable by the Lessee hereunder which may be due and unpaid immediately prior to such termination or which may then be accrued and unpaid;
(B) as liquidated damages for loss of the bargain and not as a penalty, an amount equal to the excess of (x) the sum of (i) the Stipulated Loss Value of the Nuclear Fuel as of the date upon of such termination of this Lease plus (ii) the Termination Rent, over (y) the amount, if any, realized by the Lessor in a sale of the Nuclear Fuel (at which the Lender gives Lessor may be a purchaser), without set-off, defense or reduction other than a deduction from the Borrower written Notice sale price of all the costs of such sale, including reasonable legal fees, commissions, sales taxes and other customary charges; it being understood that the Lessor shall have no obligation to conduct any such sale, and that the Lessor may, in lieu of conducting such sale, transfer and convey title to, and its entire ownership interest in, the Nuclear Fuel to the Lessee or any trustee or liquidator therefor upon the terms and conditions set forth in Section 21, but that, if the Lessor conducts such sale, the Nuclear Fuel may be sold free and clear of all rights of the Lessee; and
(C) any and all other damages and expenses (including, without limitation, reasonable attorneys’ fees and expenses), which the Lessor shall have sustained by reason of the breach of any provision of this Lease. The Lessee hereby waives, to the full extent not prohibited by law, any right it may now or hereafter have to require the sale, in mitigation of damages, of the Nuclear Fuel or any portion thereof consequent to an Event of Default.
(c) Failure Pending Lessor’s exercise of any available remedy to duly and punctually paytake or deliver to a third party possession of any Nuclear Fuel, observe and discharge all Indebtedness and other obligations the Lessee shall be responsible for the storage of the Borrower to any third party, unless the same is being contested in good faith by appropriate proceedings and the Borrower has set aside on its books adequate reserves with respect to such Indebtedness or other obligationsNuclear Fuel.
(d) The discovery by the Lender of any material inaccuracy remedies herein provided in any statement, assurance, representation, covenant, warranty, term or condition by the Borrower contained in this Agreement or in any document delivered or to be delivered by or on behalf favor of the Borrower pursuant to this Agreement, which inaccuracy would result Lessor in a Material Adverse Effect (except that inaccuracies in the Borrower's Due Diligence Documents attributable to the fault or neglect case of third-parties shall not constitute a breach of this Section 9.1(d)), or in any other Loan Document, or in any other agreement between the Borrower and the Lender.
(e) The filing of a petition by or against the Borrower or any Affiliate seeking relief under the Federal Bankruptcy Code, 11 U.S.C. ss. 101, et seq., and any amendments thereto, or any similar law or regulation, whether federal, state or local, not dismissed within 30 days.
(f) The commencement of a proceeding by or against the Borrower or any Affiliate under any statute or other law providing for an assignment for the benefit of creditors, the appointment of a receiver, or any other similar law or regulation, whether federal, state or local, not dismissed within 30 days.
(g) The garnishment, attachment, levy or other similar action taken by or on behalf of any creditor of the Borrower, any Affiliate, or any of their respective properties which could have a Material Adverse Effect.
(h) Any change in control of the Borrower, Madison Liquidity Investors 104, MACG from that disclosed in Section 2 of this Agreement.
9.2 The Lender may, at its option, terminate its obligation to make advances of the Loan, without notice to the Borrower:
(a) upon the occurrence and continuance of any Event of Default set forth in subsections 9.1
(a) through 9.1(h) above; or (b) upon the occurrence and continuance of any event which, with the giving of notice or the lapse of time, or both, would constitute an Event of Default as hereinabove set forth shall not be deemed to be exclusive, but shall be cumulative and shall be in addition to all other remedies in its favor existing at law, in equity or (C) upon the death or disability of ▇▇▇▇▇ ▇in bankruptcy.
Appears in 1 contract
Events of Default and Remedies. 9.1 The 8.01 Events of Default. Any of the following events shall constitute an "Event of Default" under this Agreement, the occurrence of which shall entitle the Lender to pursue any and all rights and remedies, legal and equitable, available to it under any Loan Document or otherwise. The Occurrence of an Event Default under this Agreement shall constitute a default under each and every other Loan Document. The Lender's rights and remedies are cumulative and may be exercised concurrently or successively from time to time. Any action by the Lender against any property or party shall not serve to release or discharge any other security, property or party in connection with this transaction. The Events of Default are as follows:
(a) Failure The Borrower shall default in the payment when due of any principal of any Borrowing or any L/C Obligation to pay any Lender hereunder (and, provided that the Borrower shall deliver to such Lender on such due date a copy of the written instructions given by the Borrower to any commercial bank in New York City irrevocably instructing such commercial bank to make payment on such date in immediately available funds of the full amount of principal owing to such Lender on such date, such default shall continue for a period exceeding two days) or shall default for a period exceeding five Business Days in the payment when due of any interest on the Borrower's present any Borrowing or future indebtedness on any L/C Obligations or of any other amount payable to the Lender, whether Administrative Agent or not arising pursuant to this Agreement, when and as the same shall be due and payable, whether by acceleration or otherwiseany Lender hereunder; provided that such default has not been cured prior to the expiration of ten (10) days following the date upon which the Lender gives the Borrower written Notice of Default. In this Section 9, Notice of Default shall be deemed to have been given (i) on the date of personal delivery of such written notice to a Guarantor, or (ii) on the date on which a duly authorized representative of the Borrower acknowledges receipt of such written notice, or (iii) on the day after sending such written notice to the Borrower by a commonly recognized overnight courier service, such as Federal Express, Purolator, UPS or the like, or (iv) on the third day after sending such written notice to the Borrower by facsimile (to both numbers set forth in Section 16.7) or by depositing the same in the United States mail, postage prepaid, for delivery to the Borrower.or
(b) Failure to observe, perform and comply with any of the obligations evidenced Any representation or secured by a Loan Document, other than as provided in Sections 9.1(a) above; provided that such default has not been cured prior to the expiration of thirty (30) days following the date upon which the Lender gives the Borrower written Notice of Default.
(c) Failure to duly and punctually pay, observe and discharge all Indebtedness and other obligations of the Borrower to any third party, unless the same is being contested in good faith by appropriate proceedings and the Borrower has set aside on its books adequate reserves with respect to such Indebtedness or other obligations.
(d) The discovery by the Lender of any material inaccuracy in any statement, assurance, representation, covenant, warranty, term or condition warranty made by the Borrower contained in this Agreement herein or in any document delivered writing or to be delivered certificate furnished by or on behalf of the Borrower pursuant under this Agreement (including, but not limited to, any Committed Loan Notice) shall prove to this Agreement, which inaccuracy would result have been incorrect in a Material Adverse Effect any material respect when made; or
(except that inaccuracies c) The Borrower shall default in the Borrower's Due Diligence Documents attributable to the fault or neglect performance of third-parties shall not constitute a breach of this Section 9.1(d)any agreement in Sections 6.10(a), 6.11 or 6.13 or in any other Loan DocumentArticle VII; provided that, or in the case of Section 7.01, an Event of Default shall exist only if (i) all indebtedness secured by Liens prohibited by Section 7.01(a) and (ii) all guaranteed obligations prohibited by Section 7.01(b) exceed $50,000,000 for a period of ten days; or
(d) The Borrower shall default in the performance of any other agreement between herein which shall remain unremedied for 30 days after written notice specifying such nonperformance and requesting that the same be remedied shall have been given to the Borrower and by the Lender.Required Lenders; or
(e) The filing A final judgment for the payment of money in excess of $50,000,000 shall be rendered against any Corporation other than Northern SC Paper Corporation, and the same shall have remained unsatisfied and in effect, and there shall be any period of 60 consecutive days during which a stay of enforcement of such judgment, by reason of a petition by pending appeal or against otherwise, shall not be in effect; or
(i) The Borrower or any Significant Subsidiary other than Northern SC Paper Corporation shall fail to pay when due (A) after any applicable period of grace, any payments of principal or (B) within ten Business Days after any applicable period of grace, any payments of interest on any Debt the aggregate outstanding principal amount of which is equal to, or greater than $50,000,000; or
(ii) Any Indebtedness of the Borrower or any Affiliate seeking relief under Significant Subsidiary other than Northern SC Paper Corporation shall become due before stated maturity by the Federal Bankruptcy Code, 11 U.S.C. ss. 101, et seq., acceleration of the maturity thereof and the aggregate amount in respect of such Indebtedness so due from such Corporation other than Northern SC Paper Corporation exceeds at any amendments thereto, or any similar law or regulation, whether federal, state or local, not dismissed within 30 days.one time $50,000,000; or
(fg) The commencement of a proceeding by or against the Borrower or any Affiliate under Consolidated Subsidiary which, as of the date of any statute action referred to in any of clauses (i) through (viii) below with respect to such Consolidated Subsidiary, constitutes a Significant Subsidiary, excluding Northern SC Paper Corporation, shall
(i) apply for or other law providing for an consent to the appointment of, or the taking of possession by, a receiver, custodian, trustee, or liquidator of itself or of all or a substantial part of its property,
(ii) admit in writing its inability, or be generally unable, to pay its debts as they become due,
(iii) make a general assignment for the benefit of creditors,
(iv) commence a voluntary case under the federal bankruptcy laws (as now or hereafter in effect),
(v) be adjudicated a bankrupt or insolvent,
(vi) file a petition seeking to take advantage of any other laws relating to bankruptcy, insolvency, reorganization, winding up or composition or adjustment of debts,
(vii) acquiesce in writing to, or fail to controvert in a timely and appropriate manner, any petition filed against it in an involuntary case under the aforesaid federal bankruptcy laws, or
(viii) take any corporate action for the purpose of effecting any of the foregoing; or
(h) A case or other proceeding shall be commenced, without the application or consent of the Borrower or any Consolidated Subsidiary that, as of the date any such case or proceeding shall be commenced with respect to such Consolidated Subsidiary, constitutes a Significant Subsidiary, excluding Northern SC Paper Corporation, in any court of competent jurisdiction, seeking
(i) the liquidation, reorganization, dissolution, winding up, or composition or readjustment of debts, of the Borrower or such Consolidated Subsidiary,
(ii) the appointment of a trustee, receiver, custodian, liquidator or the like of the Borrower or such Consolidated Subsidiary or of all or any other similar law or regulationsubstantial part of its assets, whether federal, state or local, not dismissed within 30 days.or
(giii) The garnishment, attachment, levy or other any similar action taken by with respect to the Borrower or on behalf such Consolidated Subsidiary under any laws relating to bankruptcy, insolvency, reorganization, winding up or composition or adjustment of debts, and, in any creditor of the Borrowerforegoing instances, any Affiliatesuch case or proceeding shall continue undismissed, or an order, judgment or decree approving or ordering any of their respective properties which could the foregoing shall be entered and continue unstayed and in effect, for a period of 60 consecutive days, or an order for relief in respect of the Borrower or such Consolidated Subsidiary shall be entered in an involuntary case under the federal bankruptcy laws (as now or hereafter in effect);
(i) Any Termination Event shall have occurred, except a Termination Event that (i) does not involve any liability or liabilities of the Borrower and its ERISA Affiliates in excess of $50,000,000 in the aggregate, or (ii) in the reasonable opinion of the Required Lenders, will not have a Material Adverse Effect.; or
(hj) Any change in control The parties hereto shall have failed to enter into a New Agreement before the end of the Borrower, Madison Liquidity Investors 104, MACG Negotiation Period and 30 days shall have elapsed from that disclosed in Section 2 the end of this Agreementsuch Negotiation Period.
9.2 The Lender may, at its option, terminate its obligation to make advances of the Loan, without notice to the Borrower:
(a) upon the occurrence and continuance of any Event of Default set forth in subsections 9.1
(a) through 9.1(h) above; or (b) upon the occurrence and continuance of any event which, with the giving of notice or the lapse of time, or both, would constitute an Event of Default or (C) upon the death or disability of ▇▇▇▇▇ ▇.
Appears in 1 contract
Sources: Credit Agreement (New York Times Co)
Events of Default and Remedies. 9.1 The following events shall constitute an "Event If ▇▇▇▇▇▇▇▇ keeps and performs each of Default" under the covenants, conditions, obligations and agreements in the Second Note and this AgreementSecurity Instrument, the occurrence of which shall entitle the Lender to pursue any and all rights and remediesthen, legal and equitable, available to it under any Loan Document or otherwise. The Occurrence of an Event Default under this Agreement shall constitute a default under each and every other Loan Document. The Lender's rights and remedies are cumulative and may be exercised concurrently or successively from time to time. Any action by the Lender against any property or party shall not serve to release or discharge any other security, property or party in connection with this transaction. The Events of Default are as follows:
(a) Failure to pay the principal or interest on the Borrower's present or future indebtedness to the Lender, whether or not arising pursuant to this Agreement, when and as the same trust conveyance shall be due of no further force or effect. But, if Borrower fails to keep and payable, whether by acceleration or otherwise; provided that such default has not been cured prior to the expiration of ten (10) days following the date upon which the Lender gives the Borrower written Notice of Default. In this Section 9, Notice of Default shall be deemed to have been given (i) on the date of personal delivery of such written notice to a Guarantor, or (ii) on the date on which a duly authorized representative of the Borrower acknowledges receipt of such written notice, or (iii) on the day after sending such written notice to the Borrower by a commonly recognized overnight courier service, such as Federal Express, Purolator, UPS or the like, or (iv) on the third day after sending such written notice to the Borrower by facsimile (to both numbers set forth in Section 16.7) or by depositing the same in the United States mail, postage prepaid, for delivery to the Borrower.
(b) Failure to observe, perform and comply with any of the covenants, conditions, obligations evidenced or secured by a Loan Documentand agreements in the Second Note and this Security Instrument, other than as provided in Sections 9.1(a) above; provided that and such default has defaults are not been cured prior to the expiration of within thirty (30) days following from written notice to Borrower specifying such default, then, and in any of such events, this trust conveyance shall remain in full force and effect, and at the option of the Lender, all amounts advanced under the Second Note or hereunder shall become due and payable at once, without notice, and the Trustee, acting in person or through an agent or agents duly appointed by him for this purpose, is hereby authorized and empowered, upon giving twenty (20) days notice by three (3) publications in any newspaper, daily or weekly, published in the county in which the Property is located, to sell the Property at the front door of the Courthouse in said county (or at such other place at said Courthouse as is usually and customarily used for the conduct of foreclosure sales) to the highest bidder for cash, at public outcry, free from the equity of redemption, any and all statutory rights of redemption including, without limitation, those provided in T.C.A. Section 66-8-101, as amended, or as may be hereinafter enacted, homestead, dower, courtesy, any elective share, and all other exemptions or marital rights of every kind, which are hereby expressly waived; and the Trustee is authorized and empowered to execute and deliver a deed to the purchaser. The sale may be adjourned from day to day by the Trustee or his agent or successor, by announcement at the Courthouse on the date upon which the Lender gives the Borrower written Notice of Default.
(c) Failure to duly and punctually pay, observe and discharge all Indebtedness and other obligations of the Borrower to any third party, unless the same sale is being contested in good faith by appropriate proceedings and the Borrower has set aside on its books adequate reserves with respect to such Indebtedness or other obligations.
(d) The discovery by the Lender of any material inaccuracy in any statement, assurance, representation, covenant, warranty, term or condition by the Borrower contained in this Agreement or in any document delivered or to be delivered by or on behalf of the Borrower pursuant to this Agreement, which inaccuracy would result in a Material Adverse Effect (except that inaccuracies in the Borrower's Due Diligence Documents attributable to the fault or neglect of third-parties shall not constitute a breach of this Section 9.1(d)), or in any other Loan Document, or in any other agreement between the Borrower and the Lender.
(e) The filing of a petition by or against the Borrower or any Affiliate seeking relief under the Federal Bankruptcy Code, 11 U.S.C. ss. 101, et seq., and any amendments theretooriginally set, or any similar law or regulationadjournment thereof, whether federal, state or local, not dismissed within 30 days.
(f) and may be reset at a later date without any additional publication. The commencement of a proceeding by or against the Borrower or creditor may bid at any Affiliate sale under any statute or other law providing for an assignment for the benefit of creditors, the appointment of a receiver, or any other similar law or regulation, whether federal, state or local, not dismissed within 30 days.
(g) The garnishment, attachment, levy or other similar action taken by or on behalf of any creditor of the Borrower, any Affiliate, or any of their respective properties which could have a Material Adverse Effect.
(h) Any change in control of the Borrower, Madison Liquidity Investors 104, MACG from that disclosed in Section 2 of this Agreement.
9.2 The Lender may, at its option, terminate its obligation to make advances of the Loan, without notice to the Borrower:
(a) upon the occurrence and continuance of any Event of Default set forth in subsections 9.1
(a) through 9.1(h) above; or (b) upon the occurrence and continuance of any event which, with the giving of notice or the lapse of time, or both, would constitute an Event of Default or (C) upon the death or disability of trust conveyance. ▇▇▇▇▇▇▇▇ agrees that the Trustee may, at any time after default in the payment of any part of the indebtedness, enter and take possession of the Property, and shall only account for the net rents actually received by him. ▇.▇▇▇▇▇▇▇ further agrees that, in the event the Trustee fails, before selling the Property as herein provided, to enter and take possession thereof, the purchaser shall be entitled to immediate possession thereof upon the delivery to him by the Trustee of a deed for the Property. Lender may, at any time and from time to time, without assigning cause, in ▇▇▇▇▇▇’s sole and absolute discretion, remove the Trustee herein named and appoint a successor to execute this trust, by an instrument in writing duly executed by ▇▇▇▇▇▇ and filed for record in the county in which the Property is located and, upon the execution and filing of such instrument, the title herein conveyed to the Trustee shall be vested in the successor so appointed. In the event of a sale of the Property under and by virtue of this trust, Borrower, and all persons holding under Borrower, shall be and become the tenants at will of the purchaser from and after the execution and delivery of a deed to the purchaser. Upon any sale under this Security Instrument, the proceeds will be applied by the Trustee:
Appears in 1 contract
Sources: Subordinate Deed of Trust
Events of Default and Remedies. 9.1 The following events shall constitute If an "Event of Default" under this AgreementDefault (other than an Event of Default specified in clauses (10) and (11) of Section 6.1 of the Indenture) occurs and is continuing, all outstanding Euro Notes will become due and payable immediately without further action or notice. If any other Event of Default occurs and is continuing, the occurrence Trustee or the Holders of which shall entitle at least 25% in aggregate principal amount of the Lender outstanding Notes may declare all the Notes to pursue any and all rights and remedies, legal and equitable, available to it under any Loan Document or otherwise. The Occurrence of an Event Default under this Agreement shall constitute a default under each and every other Loan Document. The Lender's rights and remedies are cumulative and may be exercised concurrently or successively from time to time. Any action by the Lender against any property or party shall not serve to release or discharge any other security, property or party in connection with this transaction. The Events of Default are as follows:
(a) Failure to pay the principal or interest on the Borrower's present or future indebtedness to the Lender, whether or not arising pursuant to this Agreement, when and as the same shall be due and payablepayable immediately in the manner and with the effect provided in the Indenture. Subject to certain limitations, whether by acceleration Holders of a majority in aggregate principal amount of the then outstanding Notes may direct the Trustee in its exercise of any trust or otherwisepower. The Trustee may withhold from Holders of the Notes notice of any continuing Default or Event of Default if it determines that withholding notice is in their interest, except a Default or Event of Default relating to the payment of principal, interest or premium, if any. Subject to the provisions of the Indenture relating to the duties of the Trustee, in case an Event of Default occurs and is continuing, the Trustee will be under no obligation to exercise any of the rights or powers under the Indenture at the request or direction of any Holders of Notes unless such Holders have offered to the Trustee indemnity or security satisfactory to it against any loss, liability or expense. Except to enforce the right to receive payment of principal, premium, if any, or interest, when due, no Holder of a Euro Note may pursue any remedy with respect to the Indenture or the Notes unless: (A) such Holder has previously given the Trustee notice that an Event of Default is continuing; provided that (B) Holders of at least 25% in aggregate principal amount of the then outstanding Notes have requested the Trustee to pursue the remedy; (C) such default Holders have offered the Trustee security or indemnity satisfactory to it against any loss, liability or expense; (D) the Trustee has not been cured prior to complied with such request within 60 days after the expiration of ten (10) days following the date upon which the Lender gives the Borrower written Notice of Default. In this Section 9, Notice of Default shall be deemed to have been given (i) on the date of personal delivery of such written notice to a Guarantor, or (ii) on the date on which a duly authorized representative receipt of the Borrower acknowledges receipt request and the offer of security or indemnity; and (E) Holders of a majority in aggregate principal amount of the then outstanding Notes have not given the Trustee a direction inconsistent with such written notice, or (iii) on request within such 60-day period. The Holders of a majority in aggregate principal amount of the day after sending such written then outstanding Notes by notice to the Borrower by a commonly recognized overnight courier serviceTrustee may, such as Federal Express, Purolator, UPS or the like, or (iv) on the third day after sending such written notice to the Borrower by facsimile (to both numbers set forth in Section 16.7) or by depositing the same in the United States mail, postage prepaid, for delivery to the Borrower.
(b) Failure to observe, perform and comply with any of the obligations evidenced or secured by a Loan Document, other than as provided in Sections 9.1(a) above; provided that such default has not been cured prior to the expiration of thirty (30) days following the date upon which the Lender gives the Borrower written Notice of Default.
(c) Failure to duly and punctually pay, observe and discharge all Indebtedness and other obligations of the Borrower to any third party, unless the same is being contested in good faith by appropriate proceedings and the Borrower has set aside on its books adequate reserves with respect to such Indebtedness or other obligations.
(d) The discovery by the Lender of any material inaccuracy in any statement, assurance, representation, covenant, warranty, term or condition by the Borrower contained in this Agreement or in any document delivered or to be delivered by or on behalf of the Borrower pursuant to this Agreement, which inaccuracy would result in a Material Adverse Effect (except that inaccuracies in the Borrower's Due Diligence Documents attributable to the fault or neglect Holders of third-parties shall not constitute a breach of this Section 9.1(d)), or in any other Loan Document, or in any other agreement between the Borrower and the Lender.
(e) The filing of a petition by or against the Borrower or any Affiliate seeking relief under the Federal Bankruptcy Code, 11 U.S.C. ss. 101, et seq., and any amendments thereto, or any similar law or regulation, whether federal, state or local, not dismissed within 30 days.
(f) The commencement of a proceeding by or against the Borrower or any Affiliate under any statute or other law providing for an assignment for the benefit of creditors, the appointment of a receiver, or any other similar law or regulation, whether federal, state or local, not dismissed within 30 days.
(g) The garnishment, attachment, levy or other similar action taken by or on behalf of any creditor all of the BorrowerNotes, rescind an acceleration or waive any Affiliate, existing Default or any of their respective properties which could have a Material Adverse Effect.
(h) Any change in control of the Borrower, Madison Liquidity Investors 104, MACG from that disclosed in Section 2 of this Agreement.
9.2 The Lender may, at its option, terminate its obligation to make advances of the Loan, without notice to the Borrower:
(a) upon the occurrence and continuance of any Event of Default set forth in subsections 9.1
(a) through 9.1(h) above; and its consequences under the Indenture except a continuing Default or (b) upon the occurrence and continuance of any event which, with the giving of notice or the lapse of time, or both, would constitute an Event of Default in the payment of interest or (C) upon premium, if any, on, or the death or disability of ▇▇▇▇▇ ▇principal of, the Notes.
Appears in 1 contract
Events of Default and Remedies. 9.1 5.1. The following events occurrence of an Event of Default, as defined in the Note, shall constitute an "Event of Default" .
5.2. The Holder shall at all times have the rights and remedies of a secured party under the U.C.C. and the Consolidated Laws of New York as in effect from time to time, in addition to the rights and remedies of a secured party provided elsewhere within this AgreementAgreement or the Note, or otherwise provided in law or equity.
5.3. Upon the occurrence of which shall entitle and during the Lender to pursue any and all rights and remedies, legal and equitable, available to it under any Loan Document or otherwise. The Occurrence continuance of an Event of Default under this Agreement shall constitute a default under each hereunder, the Holder, in its discretion, may sell, assign, transfer and every other Loan Document. The Lender's rights and remedies are cumulative and may be exercised concurrently deliver any of the Collateral, at any time, or successively from time to time. Any action No prior notice need be given to Pledgor or to any other Person in the case of any sale of Collateral that the Holder determines to be declining speedily in value or that is customarily sold in any securities exchange, over-the-counter market or other recognized market, but in any other case the Holder shall give Pledgor no fewer than ten days prior notice of either the time and place of any public sale of the Collateral or of the time after which any private sale or other intended disposition thereof is to be made. Pledgor waives advertisement of any such sale and (except to the extent specifically required by the Lender against preceding sentence) waives notice of any property kind in respect of any such sale. At any such public sale, the Holder may purchase the Collateral, or party shall not serve any part thereof, free from any right of redemption, all of which rights Pledgor hereby waives and releases. After deducting all expenses, and after paying all claims, if any, secured by liens having precedence over this Agreement, the Holder may apply the net proceeds of each such sale to release or discharge any other security, property or party in connection with this transaction. The Events toward the payment of Default are as follows:
(a) Failure to pay the principal or interest on the Borrower's present or future indebtedness to the LenderObligations, whether or not arising pursuant to this Agreementthen due, when in such order and by such division as the same Holder in its sole discretion may deem advisable. Any excess, to the extent permitted by law, shall be due paid to Pledgor, and payable, whether by acceleration or otherwise; provided that such default has not been cured prior to the expiration of ten (10) days following obligors on the date upon which the Lender gives the Borrower written Notice of DefaultObligations shall remain liable for any deficiency. In this Section 9addition, Notice the Holder shall at all times have the right to obtain new appraisals of Default Pledgor or the Collateral, the cost of which shall be deemed to have been given (i) on the date of personal delivery of such written notice to a Guarantor, or (ii) on the date on which a duly authorized representative of the Borrower acknowledges receipt of such written notice, or (iii) on the day after sending such written notice to the Borrower paid by a commonly recognized overnight courier service, such as Federal Express, Purolator, UPS or the like, or (iv) on the third day after sending such written notice to the Borrower by facsimile (to both numbers set forth in Section 16.7) or by depositing the same in the United States mail, postage prepaid, for delivery to the BorrowerPledgor.
(b) Failure to observe, perform and comply with any of the obligations evidenced or secured by a Loan Document, other than as provided in Sections 9.1(a) above; provided that such default has not been cured prior to the expiration of thirty (30) days following the date upon which the Lender gives the Borrower written Notice of Default.
(c) Failure to duly and punctually pay, observe and discharge all Indebtedness and other obligations of the Borrower to any third party, unless the same is being contested in good faith by appropriate proceedings and the Borrower has set aside on its books adequate reserves with respect to such Indebtedness or other obligations.
(d) The discovery by the Lender of any material inaccuracy in any statement, assurance, representation, covenant, warranty, term or condition by the Borrower contained in this Agreement or in any document delivered or to be delivered by or on behalf of the Borrower pursuant to this Agreement, which inaccuracy would result in a Material Adverse Effect (except that inaccuracies in the Borrower's Due Diligence Documents attributable to the fault or neglect of third-parties shall not constitute a breach of this Section 9.1(d)), or in any other Loan Document, or in any other agreement between the Borrower and the Lender.
(e) The filing of a petition by or against the Borrower or any Affiliate seeking relief under the Federal Bankruptcy Code, 11 U.S.C. ss. 101, et seq., and any amendments thereto, or any similar law or regulation, whether federal, state or local, not dismissed within 30 days.
(f) The commencement of a proceeding by or against the Borrower or any Affiliate under any statute or other law providing for an assignment for the benefit of creditors, the appointment of a receiver, or any other similar law or regulation, whether federal, state or local, not dismissed within 30 days.
(g) The garnishment, attachment, levy or other similar action taken by or on behalf of any creditor of the Borrower, any Affiliate, or any of their respective properties which could have a Material Adverse Effect.
(h) Any change in control of the Borrower, Madison Liquidity Investors 104, MACG from that disclosed in Section 2 of this Agreement.
9.2 The Lender may, at its option, terminate its obligation to make advances of the Loan, without notice to the Borrower:
(a) upon the occurrence and continuance of any Event of Default set forth in subsections 9.1
(a) through 9.1(h) above; or (b) upon the occurrence and continuance of any event which, with the giving of notice or the lapse of time, or both, would constitute an Event of Default or (C) upon the death or disability of ▇▇▇▇▇ ▇.
Appears in 1 contract
Sources: Pledge Agreement (Sphere 3D Corp)
Events of Default and Remedies. 9.1 The If any of the following events shall constitute occur, each such event shall be an "Event of Default" under this Agreement, the occurrence of which shall entitle the Lender to pursue any and all rights and remedies, legal and equitable, available to it under any Loan Document or otherwise. The Occurrence of an Event Default under this Agreement shall constitute a default under each and every other Loan Document. The Lender's rights and remedies are cumulative and may be exercised concurrently or successively from time to time. Any action by the Lender against any property or party shall not serve to release or discharge any other security, property or party in connection with this transaction. The Events of Default are as follows":
(a) Failure any material representation or warranty made by the Applicant in this Agreement (or incorporated herein by reference) or in any of the other Related Documents or in any certificate, document, instrument, opinion or financial or other statement contemplated by or made or delivered pursuant to or in connection with this Agreement or with any of the other Related Documents, shall prove to have been incorrect, incomplete or misleading in any material respect;
(b) any "event of default" shall have occurred under any of the Related Documents or that certain Note Purchase Agreement Dated as of August 30, 1994 regarding the $45,000,000 8.30% Senior Notes, Series A of Grif▇▇▇▇ ▇▇▇s (as defined respectively therein);
(c) failure to pay the principal or interest on the Borrower's present or future indebtedness to the Lender, whether or not arising pursuant to this Agreement, Bank any Obligations when and as due hereunder and such failure shall continue for five days after the same shall be occurrence thereof;
(d) default in the due observance or performance by the Applicant of any covenant set forth in Article Five hereof and payable, whether by acceleration or otherwise; provided that such default has not been cured prior to shall continue for fifteen days after the expiration earlier of ten (10) days following the date upon which the Lender gives the Borrower written Notice of Default. In this Section 9, Notice of Default shall be deemed to have been given (i) the day on which the date President, the Chief Financial Officer or the Treasurer of personal delivery the Applicant first obtains knowledge of such default or (ii) the day on which written notice thereof is given to a Guarantorthe Applicant by the Bank;
(e) default in the due observance or performance by the Applicant of any other term, covenant or agreement set forth in this Agreement which is not remedied within 30 days after the earlier of (i) the day on which the President, the Chief Financial Officer or the Treasurer of the Applicant first obtains knowledge of such default, or (ii) on the date day on which a duly authorized representative of the Borrower acknowledges receipt of such written notice, or (iii) on the day after sending such written notice thereof is given to the Borrower Applicant by a commonly recognized overnight courier service, such as Federal Express, Purolator, UPS or the like, or (iv) on the third day after sending such written notice to the Borrower by facsimile (to both numbers set forth in Section 16.7) or by depositing the same in the United States mail, postage prepaid, for delivery to the Borrower.
(b) Failure to observe, perform and comply with any of the obligations evidenced or secured by a Loan Document, other than as provided in Sections 9.1(a) aboveBank; provided that if any such default has not been cured prior to the expiration of thirty (30) days following the date upon which the Lender gives the Borrower written Notice of Default.
(c) Failure to duly and punctually pay, observe and discharge all Indebtedness and other obligations of the Borrower to any third party, unless the same is being contested in good faith by appropriate proceedings and the Borrower has set aside on its books adequate reserves with respect to such Indebtedness or other obligations.
(d) The discovery than one curable by the Lender payment of any material inaccuracy in any statementmoney) may be cured, assurancebut not within such 30 day period, representation, covenant, warranty, term or condition by the Borrower contained in this Agreement or in any document delivered or to be delivered by or on behalf of the Borrower pursuant to this Agreement, which inaccuracy would result in a Material Adverse Effect (except that inaccuracies in the Borrower's Due Diligence Documents attributable to the fault or neglect of third-parties it shall not constitute a breach an Event of this Section 9.1(d))Default hereunder if the Applicant promptly commences to cure such default, or diligently pursues such cure to completion and such defaults is in any other Loan Document, or in any other agreement between the Borrower and the Lender.
(e) The filing of a petition by or against the Borrower or any Affiliate seeking relief under the Federal Bankruptcy Code, 11 U.S.C. ss. 101, et seq., and any amendments thereto, or any similar law or regulation, whether federal, state or local, not dismissed fact cured within 30 days.90 days thereafter;
(f) The commencement any material provision of a proceeding by or against the Borrower this Agreement or any Affiliate of the Related Documents shall cease to be valid and binding, or the Applicant shall contest any such provision, or the Applicant or any agent or trustee on behalf of an Applicant shall deny that it has any or further liability under this Agreement or any statute of the Related Documents;
(g) Grif▇▇▇▇ ▇▇▇s, the Applicant or other law providing any Significant Restricted Subsidiary of Grif▇▇▇▇ ▇▇▇s shall (i) have entered involuntarily against it an order for relief under the Bankruptcy Code of 1978, as amended, (ii) not pay, or admit in writing its inability to pay, its debts generally as they become due or suspend payment of its obligations, (iii) make an assignment for the benefit of creditors, (iv) apply for, seek, consent to, or acquiesce in, the appointment of or a receiver, custodian, trustee, conservator, liquidator or similar official for it or any other similar substantial part of its property, (v) institute any proceeding seeking to have entered against it an order for relief under the Bankruptcy Code of 1978, as amended, to adjudicate it insolvent, or seeking dissolution, winding up, liquidation, reorganization, arrangement, marshaling of assets, adjustment or composition of it or its debts under any law relating to bankruptcy, insolvency or regulation, whether federal, state reorganization or local, not dismissed within 30 days.
(g) The garnishment, attachment, levy relief of debtors or fail to file an answer or other similar action taken by or on behalf pleading denying the material allegations of any creditor such proceeding filed against it, (vi) fail to contest in good faith any appointment or proceeding described in Section 6.1(h) hereof, or (vii) take any action in furtherance of any of the Borrower, any Affiliate, or any of their respective properties which could have a Material Adverse Effect.foregoing purposes;
(h) Any change in control of the Borrowera custodian receiver, Madison Liquidity Investors 104trustee, MACG from that disclosed in Section 2 of this Agreement.
9.2 The Lender mayconservator, at its option, terminate its obligation to make advances of the Loan, without notice to the Borrower:
(a) upon the occurrence and continuance of any Event of Default set forth in subsections 9.1
(a) through 9.1(h) above; liquidator or (b) upon the occurrence and continuance of any event which, with the giving of notice or the lapse of time, or both, would constitute an Event of Default or (C) upon the death or disability of ▇similar official shall be appointed for Grif▇▇▇▇ ▇▇▇s, the Applicant or any Significant Restricted Subsidiary of Grif▇▇▇▇ ▇▇▇s or any substantial part of its property, or a proceeding described in Section 6.1(g)(v) shall be instituted against Grif▇▇▇▇ ▇▇▇s, the Applicant or any Significant Restricted Subsidiary of Grif▇▇▇▇ ▇▇▇s and such appointment continues undischarged or any such proceeding continues undismissed or unstayed for a period of 60 or more days;
(i) default shall occur and remain uncured for five days under any evidence of Indebtedness in an amount not less than $5,000,000 issued, assumed or guaranteed by Grif▇▇▇▇ Labs, the Applicant or any Restricted Subsidiary or under any indenture, agreement or other instrument under which the same may be issued, and such default shall continue for a period of time sufficient to permit the acceleration of the maturity of any such Indebtedness (whether or not such maturity is in fact accelerated) or any such Indebtedness shall not be paid when and as due (whether by lapse of time, acceleration or otherwise);
(j) Final judgment or judgments for the payment of money aggregating in excess of $2,500,000 is or are outstanding against Grif▇▇▇▇ ▇▇▇s, the Applicant or any Restricted Subsidiary or against any Property of Grif▇▇▇▇ Labs, the Applicant or any Restricted Subsidiary and any one or more of such judgments aggregating at least $1,000,000 have remained unpaid, unvacated, unbonded or unstayed by appeal or otherwise for a period equal to the longer of (i) 30 days from the date of its entry or (ii) the expiration of the period during which no judgment creditor of Grif▇▇▇▇ Labs, the Applicant or such Restricted Subsidiary may execute such judgment against any such Property;
(k) either Grif▇▇▇▇ ▇▇▇s, the Applicant or any member of its Controlled Group shall fail to pay when due an amount or amounts aggregating in excess of $4,000,000 which it shall have become liable to pay to the PBGC or to a Plan under Title IV of ERISA; or notice of intent to terminate a Plan or Plans having aggregate Unfunded Vested Liabilities in excess of $4,000,000 (collectively, a "Material Plan") shall be filed under Title IV of ERISA by Grif▇▇▇▇ ▇▇▇s, the Applicant or any other member of its Controlled Group, any plan administrator or any combination of the foregoing; or the PBGC shall institute proceedings under Title IV of ERISA to terminate or to cause a trustee to be appointed to administer any Material Plan or a proceeding shall be instituted by a fiduciary of any Material Plan against Grif▇▇▇▇ ▇▇▇s, the Applicant or any member of its Controlled Group to enforce Section 515 or 4219(c)(5) of ERISA and such proceeding shall not have been dismissed within thirty (30) days thereafter; or a condition shall exist by reason of which the PBGC would be entitled to obtain a decree adjudicating that any Material Plan must be terminated; or
(l) a default shall occur and be continuing under any agreement between either Grif▇▇▇▇ ▇▇▇s, the Applicant and the Bank or under any obligation owed by the Applicant to the Bank; or
(m) Grif▇▇▇▇ ▇▇▇s shall, at any time, fail to maintain and keep the ratio of Consolidated Current Assets to Adjusted Consolidated Current Liabilities of not less than 1.1 to 1.0; or
(n) Grif▇▇▇▇ ▇▇▇s shall, at any time, fail to maintain and keep Adjusted Consolidated Tangible Net Worth at an amount of not less than $70,000,000; or
(o) the sum of (x) Consolidated Funded Debt of Grif▇▇▇▇ ▇▇▇s and its Restricted Subsidiaries plus (y) Excess Current Debt treated as Funded Debt plus (z) all Excess Transferred Property shall exceed 55% of Consolidated total Capitalization; or
(p) Grif▇▇▇▇ ▇▇▇s shall default in the performance of any of its obligations under the Grif▇▇▇▇ ▇▇▇s Guaranty or disavow any obligation it may have thereunder; or
(q) the occurrence of a Change in Control.
Appears in 1 contract
Sources: Reimbursement Agreement (Griffith Micro Science International Inc)
Events of Default and Remedies. 9.1 The (a) Each of the following events acts or occurrences shall constitute an "a “Lease Event of Default" ” hereunder:
(i) default in the payment of the Purchase Price or the Termination Value on the Cancellation Date or the Purchase Closing Date, as applicable, or in the payment of the Purchase Price or the Final Rent Payment, as applicable, on the Lease Termination Date; or the default in the payment when due of any Basic Rent and the continuance of such default for 5 Business Days thereafter; or the default in the payment when due of any Supplemental Rent, the amount of any Indemnified Risk or any other amount due hereunder or under any other Operative Document and the continuance of such default for 30 days thereafter; or
(ii) any representation or warranty made or deemed made by the Lessee herein shall be false or misleading in any material respect on the date made or deemed made; or
(iii) an Event of Default under the Investment Agreement (other than a Limited Recourse Event of Default);
(iv) the Lessee shall fail to observe or perform any covenant or agreement contained in Sections 12 and 26 of this Lease; or
(v) the Lessee shall fail to observe or perform any covenant or agreement contained (other than those covered by subsections (i) or (iv) above), and such failure shall not have been cured within 10 days, with respect to any covenant contained in Section 14 of this Lease, and 30 days, with respect to any other provision hereof, after the earlier to occur of (A) written notice thereof has been given to the Lessee by the Lessor (acting, in accordance with Section 9.02(a) of the Investment Agreement, of its own accord or at the request of the Majority Funding Parties) or (B) the chief financial, chief operating, chief legal or chief accounting officer of the Lessee or the Guarantor otherwise becomes aware of any such failure; or
(vi) Lessee shall abandon the Facility; provided however that for purposes of this Section 17(a)(vi), the term “abandon” shall not include the mere failure of Lessee to occupy the Facility so long as Lessee continues to perform its obligations hereunder and other Operative Documents including without limitation maintenance of the Facility, maintenance of required insurance, compliance with Governmental Requirements and Insurance Requirements and payment of all Rent.
(b) Subject to Section 9.02 of the Investment Agreement, upon the occurrence and during the continuance of which any Lease Event of Default, as determined by the Lessor, the Lessor (acting, in accordance with Section 9.02(a) of the Investment Agreement, of its own accord or at the direction of the Majority Funding Parties) may do any one or more of the following (without prejudice to the obligations of the Lessee under Section 15(b)(ii)):
(i) proceed by appropriate judicial proceedings, either at law, in equity or in bankruptcy, to enforce performance or observance by the Lessee of the applicable provisions of this Lease, or to recover damages for the breach of any such provisions, or any other equitable or legal remedy, all as the Lessor shall entitle deem necessary or advisable; and/or
(ii) by notice to the Lender Lessee, either (x) terminate this Lease in accordance with Section 15, whereupon the Lessee’s interest and all rights of the Lessee to pursue the use of the Facility shall forthwith terminate subject to the Lessee’s rights under such Section 15 to acquire the Facility on the Purchase Closing Date as provided herein, but the Lessee shall remain liable with respect to its obligations and liabilities hereunder; or (y) terminate the Lessee’s right to possession of the Facility or any part thereof; and/or
(iii) exercise any and all rights other remedies available under applicable law or at equity.
(c) After the occurrence and remediesduring the continuance of a Cancellation Event or Termination Event, legal in the event the Lessor elects not to terminate this Lease and equitablethe Lessee has not exercised its option under Section 15(c), available to it under any Loan Document or otherwise. The Occurrence this Lease shall continue in effect and the Lessor may enforce all of an Event Default under this Agreement shall constitute a default under each and every other Loan Document. The Lender's the Lessor’s rights and remedies are cumulative under this Lease, including, without limitation, the right to recover the Basic Rent and may be exercised concurrently Supplemental Rent, and any other yield protection payments and other amounts with respect thereto, as it becomes due under this Lease or successively from time to timeany other Operative Documents. Any action For the purposes hereof, the following do not constitute a cancellation or termination of this Lease: (i) acts of maintenance or preservation of the Facility or any part thereof, (ii) efforts by the Lender against Lessor to relet the Facility or any property part thereof, including, without limitation, termination of any sublease of the Facility and removal of any tenant from the Site, (iii) or party shall not serve the appointment of a receiver upon the initiative of the Lessor to release or discharge any other security, property or party in connection with protect the Lessor’s interest under this transaction. The Events of Default are as follows:Lease.
(ad) Failure to pay the principal or interest on the Borrower's present or future indebtedness to the Lender, whether or not arising pursuant to this Agreement, when and as the same shall be due and payable, whether by acceleration or otherwise; provided that such default has not been cured prior to the expiration of ten (10) days following the date upon which the Lender gives the Borrower written Notice of Default. In this Section 9, Notice of Default shall be deemed to have been given If (i) on the date Lease Termination Date, the Facility is not acquired by the Lessee or its designee by payment of personal delivery of such written notice to a Guarantorthe Purchase Price, or (ii) on the date on which a duly authorized representative Cancellation Date, the Lessee or its designee has defaulted in its obligation to acquire the Facility and pay the Purchase Price, or if applicable, the Termination Value, in accordance with Lessee’s election under Section 15(b)(ii), then the Lessor shall have the immediate right of possession of the Borrower acknowledges receipt Facility and the right to enter onto the Site and to remove any and all of the Property comprising the Facility, and the Lessor may thenceforth hold, possess and enjoy the Facility free from any rights of the Lessee and any Person claiming by, through or under the Lessee. The Lessor shall be under no liability by reason of any such written notice, or (iii) on the day after sending such written notice to the Borrower by a commonly recognized overnight courier service, such as Federal Express, Purolator, UPS repossession or the like, Facility or (iv) on entry onto the third day after sending such written notice to the Borrower by facsimile (to both numbers set forth in Section 16.7) or by depositing the same in the United States mail, postage prepaid, for delivery to the Borrower.
(b) Failure to observe, perform and comply with any of the obligations evidenced or secured by a Loan Document, other than as provided in Sections 9.1(a) above; provided that such default has not been cured prior to the expiration of thirty (30) days following the date upon which the Lender gives the Borrower written Notice of Default.
(c) Failure to duly and punctually pay, observe and discharge all Indebtedness and other obligations of the Borrower to any third party, unless the same is being contested in good faith by appropriate proceedings and the Borrower has set aside on its books adequate reserves with respect to such Indebtedness or other obligations.
(d) The discovery by the Lender of any material inaccuracy in any statement, assurance, representation, covenant, warranty, term or condition by the Borrower contained in this Agreement or in any document delivered or to be delivered by or on behalf of the Borrower pursuant to this Agreement, which inaccuracy would result in a Material Adverse Effect (except that inaccuracies in the Borrower's Due Diligence Documents attributable to the fault or neglect of third-parties shall not constitute a breach of this Section 9.1(d)), or in any other Loan Document, or in any other agreement between the Borrower and the LenderSite.
(e) The filing of a petition by or against Should the Borrower Lessor elect to repossess the Facility or any Affiliate seeking relief part thereof upon cancellation or termination of this Lease or otherwise in the exercise of the Lessor’s remedies, the Lessee shall peaceably quit and surrender the Facility or any such part thereof to the Lessor and either (i) deliver possession of the Facility to the Lessor or (ii) allow Lessor or its agents or assigns to enter onto the Facility and the Site to remove any and all of the Property comprising the Facility at the expense of the Lessee, and neither the Lessee nor any Person claiming through or under the Federal Bankruptcy Code, 11 U.S.C. ss. 101, et seq., and any amendments thereto, Lessee shall thereafter be entitled to possession or to remain in possession of the Facility or any similar law or regulation, whether federal, state or local, not dismissed within 30 dayspart thereof but shall forthwith peaceably quit and surrender the Facility to the Lessor.
(f) The commencement At any time after the repossession of a proceeding by or against the Borrower Facility or any Affiliate under any statute part thereof, whether or other law providing for an assignment for the benefit of creditorsnot this Lease shall have been cancelled or terminated, the appointment Lessor may (but shall be under no obligation to) relet the Facility or the applicable part thereof without notice to the Lessee, for such term or terms and on such conditions and for such usage as the Lessor in its sole and absolute discretion may determine. The Lessor may collect and receive any rents payable by reason of a receiversuch reletting, and the Lessor shall not be liable for any failure to relet the Facility or for any other similar law or regulation, whether federal, state or local, not dismissed within 30 daysfailure to collect any rent due upon any such reletting.
(g) The garnishmentremedies herein provided in case of a Lease Event of Default are in addition to, attachmentand without prejudice to, levy the Lessee’s continuing obligations under Section 15(b)(ii), and shall not be deemed to be exclusive, but shall be cumulative and shall be in addition to all other remedies existing at law, in equity or in bankruptcy. The Lessor may exercise any remedy without waiving its right to exercise any other similar action taken by remedy hereunder or on behalf of any creditor of the Borrowerexisting at law, any Affiliate, in equity or any of their respective properties which could have a Material Adverse Effectin bankruptcy.
(h) Any change in control No waiver by the Lessor hereunder of any Default or Event of Default shall constitute a waiver of any other or subsequent Default or Event of Default. To the Borrowerextent permitted by applicable law, Madison Liquidity Investors 104, MACG from that disclosed in Section 2 of this Agreement.
9.2 The Lender may, the Lessee waives any right it may have at its option, terminate its obligation any time to make advances of require the Loan, without notice Lessor to mitigate the Borrower:
(a) Lessor’s damages upon the occurrence and continuance of any a Default or Event of Default set forth in subsections 9.1
(a) through 9.1(h) above; by taking any action or (b) upon exercising any remedy that may be available to the occurrence and continuance Lessor, the exercise of any event which, with remedies hereunder being at the giving discretion of notice or the lapse of time, or both, would constitute an Event of Default or (C) upon the death or disability of ▇▇▇▇▇ ▇Lessor.
Appears in 1 contract
Events of Default and Remedies. 9.1 The If any of the following events (“Events of Default”) shall constitute an "occur, the Issuer will furnish to each Holder prompt (but in any event within any time period that may be specified in this Section 7.01) written notice of the occurrence of any Default or Event of Default" under this Agreement, accompanied by a statement of a Financial Officer or other executive officer of the occurrence Issuer setting forth the details of which shall entitle the Lender event or development requiring such notice and any action taken or proposed to pursue any and all rights and remedies, legal and equitable, available to it under any Loan Document or otherwise. The Occurrence of an Event Default under this Agreement shall constitute a default under each and every other Loan Document. The Lender's rights and remedies are cumulative and may be exercised concurrently or successively from time to time. Any action by the Lender against any property or party shall not serve to release or discharge any other security, property or party in connection taken with this transaction. The Events of Default are as followsrespect thereto:
(a) Failure the Issuer shall fail to pay any principal of any Note or Prepayment Premium when and as the principal same shall become due and payable, whether at the due date thereof or at a date fixed for prepayment thereof or otherwise, including upon the occurrence of a Liquidity Event;
(b) the Issuer shall fail to pay any interest on the Borrower's present any Note or future indebtedness any fee or any other amount (other than an amount referred to the Lender, whether in Section 7.01(a)) payable under this Agreement or not arising pursuant to this Agreementany other Note Document, when and as the same shall be become due and payable, whether by acceleration or otherwise; provided that and such default has not been cured prior to the expiration failure shall continue unremedied for a period of ten three (103) days following the date upon which the Lender gives the Borrower written Notice of Default. In this Section 9, Notice of Default shall be deemed to have been given (i) on the date of personal delivery of such written notice to a Guarantor, or (ii) on the date on which a duly authorized representative of the Borrower acknowledges receipt of such written notice, or (iii) on the day after sending such written notice to the Borrower by a commonly recognized overnight courier service, such as Federal Express, Purolator, UPS or the like, or (iv) on the third day after sending such written notice to the Borrower by facsimile (to both numbers set forth in Section 16.7) or by depositing the same in the United States mail, postage prepaid, for delivery to the Borrower.
(b) Failure to observe, perform and comply with any of the obligations evidenced or secured by a Loan Document, other than as provided in Sections 9.1(a) above; provided that such default has not been cured prior to the expiration of thirty (30) days following the date upon which the Lender gives the Borrower written Notice of Default.Business Days;
(c) Failure to duly default by the Issuer in the delivery when due of all cash and punctually pay, observe and discharge all Indebtedness and any Conversion Shares or other obligations of the Borrower to any third party, unless the same is being contested in good faith by appropriate proceedings and the Borrower has set aside on its books adequate reserves consideration payable upon prepayment or conversion with respect to such Indebtedness or other obligations.the Notes, which default continues for a period of three (3) Business Days;
(d) The discovery by the Lender of any material inaccuracy in any statement, assurance, representation, covenant, warranty, term representation or condition by the Borrower contained in this Agreement warranty made or in any document delivered or to be delivered deemed made by or on behalf of the Borrower Issuer or any Subsidiary in this Agreement or any other Note Document or any amendment or modification hereof or thereof or waiver hereunder or thereunder, or in any report, certificate, financial statement or other document furnished pursuant to or in connection with this AgreementAgreement or any other Note Document or any amendment or modification hereof or thereof or waiver hereunder or thereunder, shall prove to have been materially incorrect when made or deemed made (it being understood and agreed that any representation or warranty which inaccuracy would result is subject to any materiality qualifier shall be required to be true and correct in a Material Adverse Effect all respects);
(except that inaccuracies e) the Issuer shall fail to observe or perform any covenant, condition or agreement contained in Sections 5.04-507, or Section 6.06;
(f) the Borrower's Due Diligence Documents attributable Issuer shall fail to the fault observe or neglect of third-parties shall not constitute a breach of perform any covenant, condition or agreement contained in this Section 9.1(dAgreement (other than those specified in clause (a), (b), (c) or (e)), or any other Note Document and such failure shall continue unremedied for a period of (i) 10 days after the earlier of the Issuer’s knowledge of such breach or notice thereof from any Holder to the Issuer if such breach relates to terms or provisions of Section 5.01 of this Agreement or (ii) 30 days after the earlier of the Issuer’s knowledge of such breach or notice thereof from the any Holder if such breach relates to terms or provisions of any other Section of this Agreement;
(g) [reserved];
(i) failure to make any payment (beyond the applicable grace or notice period, if any) owing in respect of indebtedness for money borrowed (other than the First Lien Obligations) by the Issuer (whether such indebtedness now exists or shall hereafter be created), in an aggregate outstanding principal amount in excess of $5,750,000, or any event or condition occurs that results in such indebtedness becoming due and payable prior to its scheduled maturity; provided that this clause (h) shall not apply to secured indebtedness that becomes due as a result of the voluntary sale or transfer of the property or assets securing such indebtedness or (ii) any event of default (which event of default shall not have been cured or waived within any applicable grace period) shall occur under the terms of the First Lien Credit Agreement or any other Loan DocumentDocument (as defined in the First Lien Credit Agreement) (or any document governing any Refinancing Indebtedness thereof), the effect of which results in (x) the acceleration of all or a portion of the First Lien Obligations or declaration that all such First Lien Obligations are due and payable prior to the applicable stated maturity, (y) demand for repayment and (z) termination of any outstanding commitments thereunder;
(i) an involuntary proceeding shall be commenced or an involuntary petition shall be filed seeking (i) liquidation, reorganization or other relief in respect the Issuer or its debts, or in any other agreement between the Borrower and the Lender.
(e) The filing of a petition by or against the Borrower or substantial part of its assets, under any Affiliate seeking relief under the Federal Bankruptcy Code, 11 U.S.C. ss. 101, et seq., and any amendments thereto, or any similar law or regulation, whether federal, state or localforeign bankruptcy, not dismissed within 30 days.
insolvency, receivership or similar law now or hereafter in effect or (fii) The commencement of a proceeding by or against the Borrower or any Affiliate under any statute or other law providing for an assignment for the benefit of creditors, the appointment of a receiver, receiver-manager, trustee, custodian, sequestrator, conservator or similar official for the Issuer or for a substantial part of its assets, and, in any such case, such proceeding or petition shall continue undismissed for sixty (60) days or an order or decree approving or ordering any of the foregoing shall be entered;
(j) the Issuer shall (i) voluntarily appoint an administrator or commence any proceeding or file any petition seeking liquidation, reorganization or other similar law or regulation, whether relief under any federal, state or localforeign bankruptcy, not dismissed within 30 days.insolvency, receivership or similar law now or hereafter in effect, (ii) consent to the institution of, or fail to contest in a timely and appropriate manner, any proceeding or petition described in Section 7.01(i), (iii) apply for or consent to the appointment of an administrator, receiver, receiver-manager, trustee, custodian, sequestrator, conservator or similar official for the Issuer or for a substantial part of its assets, (iv) file an answer admitting the material allegations of a petition filed against it in any such proceeding, (v) make a general assignment for the benefit of creditors or (vi) take any board of director action for the purpose of effecting any of the foregoing;
(gk) The garnishmentthe Issuer shall become unable, attachmentadmit in writing its inability, levy or other similar action taken publicly declare its intention not to, or fail generally, to pay its debts as they become due; or
(l) one or more judgments for the payment of money in an aggregate amount in excess of $5,750,000 in excess of insurance coverage therefor (as provided by or on behalf of any creditor of an underwriter acceptable to Required Holders, where such underwriter has admitted coverage in writing, and such insurance coverage otherwise fully complies in all respects with this Agreement) shall be rendered against the BorrowerIssuer, any AffiliateSubsidiary or any combination thereof and the same shall remain undischarged for a period of twenty (20) consecutive Business Days during which execution shall not be effectively stayed, or any action shall be legally taken by a judgment creditor to attach or levy upon any assets of their respective properties which the Issuer or any Subsidiary to enforce any such judgment or the Issuer or any Subsidiary shall fail within twenty (20) Business Days to discharge one or more non-monetary judgments or orders which, individually or in the aggregate, could have reasonably be expected to result in a Material Adverse Effect.
, which judgments or orders, in any such case, are not stayed on appeal and being appropriately contested in good faith by proper proceedings diligently pursued; then, and in every such event (h) Any change in control of other than an event with respect to the Borrower, Madison Liquidity Investors 104, MACG from that disclosed Issuer described in Section 2 7.01(i) or (j)), and at any time thereafter during the continuance of this Agreement.
9.2 The Lender such event, the Required Holders may, at its option, terminate its obligation to make advances of the Loan, without by notice to the Borrower:
Issuer, take either or both of the following actions, at the same or different times: (ai) upon terminate the Commitments, whereupon the Commitments shall terminate immediately and (ii) declare the Notes then outstanding to be due and payable in whole (or in part, in which case any principal not so declared to be due and payable may thereafter be declared to be due and payable), whereupon the principal of the Notes so declared to be due and payable, together with accrued interest thereon and all fees and other obligations of the Issuer accrued hereunder, shall become due and payable immediately, in each case without presentment, demand, protest or other notice of any kind, all of which are hereby waived by the Issuer; and in the case of any event with respect to the Issuer described in Section 7.01(i) or (j), the Commitments shall automatically terminate and the principal of the Notes then outstanding, together with accrued interest thereon and all fees and other obligations of the Issuer accrued hereunder, shall automatically become due and payable, in each case without presentment, demand, protest or other notice of any kind, all of which are hereby waived by the Issuer. Upon the occurrence and during the continuance of an Event of Default, the Required Holders may increase the rate of interest applicable to the Notes and other Obligations as set forth in this Agreement and exercise any rights and remedies provided to the Holders under the Note Documents or at law or equity. It is understood and agreed that if the Notes are accelerated or otherwise become due prior to the Maturity Date, including without limitation as a result of any Event of Default set forth in subsections 9.1
clause (ai) through 9.1(h) above; or (bj) upon of Section 7.01 (including the occurrence acceleration of claims by operation of law), the Prepayment Premium that would have been payable if the Notes were optionally prepaid pursuant to Section 2.11(a) on such date of acceleration will also automatically be due and continuance payable and shall constitute part of the Obligations with respect to the Notes, in view of the impracticability and extreme difficulty of ascertaining actual damages and by mutual agreement of the parties as to a reasonable calculation of each Holder’s lost profits as a result thereof. Any such Prepayment Premium payable shall be presumed to be the liquidated damages sustained by each Holder as the result of the early prepayment and each of the Holders agrees that it is reasonable under the circumstances currently existing. The Issuer expressly waives (to the fullest extent it may lawfully do so) the provisions of any event whichpresent or future statute or law that prohibits or may prohibit the collection of the foregoing amounts in connection with any such acceleration, with the giving any rescission of notice such acceleration or the lapse commencement of timeany proceeding under the Debtor Relief Laws. The Issuer expressly agrees (to the fullest extent it may lawfully do so) that: (A) the Prepayment Premium is reasonable and is the product of an arm’s length transaction between sophisticated business people, or both, would constitute an Event of Default or ably represented by counsel; (B) the Prepayment Premium shall be payable notwithstanding the then prevailing market rates at the time payment is made; (C) upon there has been a course of conduct between Holders and the death or disability of ▇▇▇▇▇ ▇Issuer giving specific consideration in this transaction for such agreement to pay such Prepayment Premium; and (D) the Issuer shall be estopped hereafter from claiming differently than as agreed to in this paragraph. The Issuer expressly acknowledges that its agreement to pay such Prepayment Premium to Holders as herein described is a material inducement to Holders to enter into this Agreement.
Appears in 1 contract
Sources: Subordinated Convertible Credit Agreement (F45 Training Holdings Inc.)
Events of Default and Remedies. 9.1 The (a) Any of the following events of default by El Paso shall constitute an "Event of Default" under this Agreement, and give rise to the occurrence of which shall entitle the Lender to pursue any and all rights and remedies, legal and equitable, available to it under any Loan Document or otherwise. The Occurrence of an Event Default under this Agreement shall constitute a default under each and every other Loan Document. The Lender's rights and remedies are cumulative and may be exercised concurrently or successively from time to time. Any action by the Lender against any property or party shall not serve to release or discharge any other security, property or party in connection with this transaction. The Events of Default are as follows:
(a) Failure to pay the principal or interest on the Borrower's present or future indebtedness to part of the Lender, whether or not arising pursuant to this Agreement, when and as the same shall be due and payable, whether by acceleration or otherwise; provided that such default has not been cured prior to the expiration of ten (10) days following the date upon which the Lender gives the Borrower written Notice of Default. In this Trustee described in Section 9, Notice of Default shall be deemed to have been given 19(b):
(i) on default in the date payment of personal delivery of any amount payable by El Paso hereunder for 30 days after such written notice to a Guarantor, or payment is due; or
(ii) on the date on which a duly authorized representative of the Borrower acknowledges receipt of such written noticefailure to perform or observe any other term, covenant or (iii) on the day after sending such written notice to the Borrower by a commonly recognized overnight courier service, such as Federal Express, Purolator, UPS or the like, or (iv) on the third day after sending such written notice to the Borrower by facsimile (to both numbers set forth in Section 16.7) or by depositing the same in the United States mail, postage prepaid, for delivery to the Borrower.
(b) Failure to observe, perform and comply with any of the obligations evidenced or secured by a Loan Document, other than as provided in Sections 9.1(a) above; provided that such default has not been cured prior to the expiration of thirty (30) days following the date upon which the Lender gives the Borrower written Notice of Default.
(c) Failure to duly and punctually pay, observe and discharge all Indebtedness and other obligations of the Borrower to any third party, unless the same is being contested in good faith by appropriate proceedings and the Borrower has set aside on its books adequate reserves with respect to such Indebtedness or other obligations.
(d) The discovery by the Lender of any material inaccuracy in any statement, assurance, representation, covenant, warranty, term or condition by the Borrower agreement contained in this Agreement or in any document delivered or to be delivered by or on behalf of the Borrower pursuant to this Agreement, which inaccuracy would result in a Material Adverse Effect (except that inaccuracies in the Borrower's Due Diligence Documents attributable to the fault or neglect of third-parties shall not constitute a breach of this Section 9.1(d)), or in any other Loan Document, Contract or in any other agreement between the Borrower El Paso and the Lender.Trustee on El Paso's part to be performed or observed, which such failure shall remain unremedied for 30 days after written notice thereof shall have been given to El Paso by the Trustee; or
(eiii) The filing of a petition any representation or warranty made by El Paso herein, in the Assignment Agreements or against in any document or certificate furnished to the Borrower Trustee or any Affiliate seeking relief under other party in connection herewith or therewith or pursuant hereto or thereto shall prove at any time to be incorrect as of the Federal Bankruptcy Code, 11 U.S.C. ss. 101, et seq., and date made in any amendments thereto, or any similar law or regulation, whether federal, state or local, not dismissed within 30 days.material respect; or
(fiv) The commencement the institution of a any proceeding by or against the Borrower El Paso seeking to adjudicate it a bankrupt or any Affiliate insolvent or seeking reorganization, arrangement, adjustment, liquidation or compensation of it or its debts under any statute law relating to bankruptcy, insolvency or other law providing reorganization or relief of debtors, or seeking appointment of a receiver, trustee, or similar official or for any substantial part of its property and, if instituted against El Paso, consent thereto by El Paso or failure by El Paso for 60 days to stay such proceeding, or the taking of any action by El Paso to authorize any of the actions set forth above; or
(v) the termination of existence or business failure of, or the making of an assignment for the benefit of creditors, creditors by El Paso; or
(vi) admission in writing by El Paso of its in- ability to pay its debts; or
(vii) this Contract or the appointment of a receiver, Trust Agreement shall terminate or cease to be in full force and effect for any reason (other similar law or regulation, whether federal, state or local, not dismissed within 30 daysthan pursuant to Section 17 hereof).
(gb) The garnishment, attachment, levy or other similar action taken by or on behalf Upon the occurrence and during the continuance of any creditor Event of Default, the Trustee may in its discretion do any one or more of the Borrowerfollowing:
(i) proceed by appropriate judicial proceedings, any Affiliateeither at law or in equity, to enforce performance or observance by El Paso of the applicable provisions of this Contract, or any of their respective properties which could have a Material Adverse Effect.to recover damages for the breach thereof; or
(hii) Any change in control without limiting the generality of clause (i) above, the Borrower, Madison Liquidity Investors 104, MACG from that disclosed in Section 2 of this Agreement.
9.2 The Lender Trustee may, at its option, terminate in addition to all other rights and remedies provided hereunder or under applicable law, without regard to whether any· or all of such other rights and remedies have been or are to be exercised, in its obligation own name or the name of El Paso, demand, ▇▇▇ upon or otherwise enforce the Assigned Agreements with full power as though the Trustee were the party named in the Assigned Agreements, and amend, revise, release or otherwise change the same as may seem proper to make advances the Trustee in its sole discretion and exercise all other rights of El Paso under the Assigned Agreements in such manner as it may determine. The exercise by the Trustee of the Loan, without notice to the Borrower:rights and remedies granted it in this clause (ii) shall not be considered a waiver of any Event of Default.
(aiii) without limiting the generality of Clauses (i) or (ii) above, upon the occurrence and during the continuance of any Event of Default set forth in subsections 9.1
(a) through 9.1(h) above; or (b) upon the occurrence and continuance of any event which, with the giving of notice or the lapse of time, or both, would constitute an Event of Default or Default, El Paso agrees that the Trustee may (Cbut shall not be obliged to), at its sole election, perform for El Paso under any and all Assigned Agreements.
(iv) upon terminate this Contract.
(c) In addition to the death or disability remedies of ▇▇▇▇▇ ▇the Trustee provided in Section 19(b) above, the Trustee shall be entitled to recover from El Paso all losses, damages and expenses sustained by the Trustee by reason of such default and to all other remedies provided by law.
Appears in 1 contract
Events of Default and Remedies. 9.1 The following events shall constitute an "Event of Default" under this Agreement, the occurrence of which shall entitle the Lender to pursue any and all rights and remedies, legal and equitable, available to it under any Loan Document or otherwise. The Occurrence of an Event Default under this Agreement shall constitute a default under each and every other Loan Document. The Lender's rights and remedies are cumulative and may be exercised concurrently or successively from time to time. Any action by the Lender against any property or party shall not serve to release or discharge any other security, property or party in connection with this transaction. The Events of Default are as follows:
(a) Failure to pay the principal or interest on the Borrower's present or future indebtedness to the Lender, whether or not arising pursuant to this Agreement, when and as the same shall be due and payable, whether by acceleration or otherwise; provided that such default has not been cured prior to the expiration of ten (10) days following the date upon which the Lender gives the Borrower written Notice of Default. In this Section 9, Notice of Default shall be deemed to have been given (i) on the date of personal delivery of such written notice to a Guarantor, or (ii) on the date on which a duly authorized representative of the Borrower acknowledges receipt of such written notice, or (iii) on the day after sending such written notice to the Borrower by a commonly recognized overnight courier service, such as Federal Express, Purolator, UPS or the like, or (iv) on the third day after sending such written notice to the Borrower by facsimile (to both numbers set forth in Section 16.7) or by depositing the same in the United States mail, postage prepaid, for delivery to the Borrower.
(b) Failure to observe, perform and comply with any of the obligations evidenced or secured by a Loan Document, other than as provided in Sections 9.1(a) above; provided that such default has not been cured prior to the expiration of thirty (30) days following the date upon which the Lender gives the Borrower written Notice of Default.
(c) Failure to duly and punctually pay, observe and discharge all Indebtedness and other obligations of the Borrower to any third party, unless the same is being contested in good faith by appropriate proceedings and the Borrower has set aside on its books adequate reserves with respect to such Indebtedness or other obligations.
(d) The discovery by the Lender of any material inaccuracy in any statement, assurance, representation▇▇▇▇▇▇▇▇▇▇▇▇▇▇, covenant▇▇▇▇▇▇▇▇, warranty▇▇▇▇▇▇▇▇, term or condition by the Borrower contained in this Agreement or in any document delivered or to be delivered by or on behalf of the Borrower pursuant to this Agreement, which inaccuracy would result in a Material Adverse Effect (except that inaccuracies in the Borrower's Due Diligence Documents attributable to the fault or neglect of third-parties shall not constitute a breach of this Section 9.1(d)), or in any other Loan Document, or in any other agreement between the Borrower and the Lender.
(e) The filing of a petition by or against the Borrower or any Affiliate seeking relief under the Federal Bankruptcy Code, 11 U.S.C. ss. ' 101, et seq., and any amendments thereto, or any similar law or regulation, whether federal, state or local, not dismissed within 30 days.
(f) The commencement of a proceeding by or against the Borrower or any Affiliate under any statute or other law providing for an assignment for the benefit of creditors, the appointment of a receiver, or any other similar law or regulation, whether federal, state or local, not dismissed within 30 days.
(g) The garnishment, attachment, levy or other similar action taken by or on behalf of any creditor of the Borrower, any Affiliate, or any of their respective properties which could have a Material Adverse Effect.
(h) Any change in control of the Borrower, Madison Liquidity Investors 104, MACG from that disclosed in Section 2 of this Agreement.
9.2 The Lender may, at its option, terminate its obligation to make advances of the Loan, without notice to the Borrower:
(a) upon the occurrence and continuance of any Event of Default set forth in subsections 9.1
(a) through 9.1(h) above; or (b) upon the occurrence and continuance of any event which, with the giving of notice or the lapse of time, or both, would constitute an Event of Default or (C) upon the death or disability of ▇▇▇▇▇ ▇.
Appears in 1 contract
Sources: Loan Agreement (Madison Liquidity Investors 104 LLC)
Events of Default and Remedies. 9.1 The (a) Any one or more of the following events which shall have occurred and be continuing shall constitute an "event of default (Event of Default" under this Agreement, the occurrence of which shall entitle the Lender to pursue any and all rights and remedies, legal and equitable, available to it under any Loan Document or otherwise. The Occurrence of an Event Default under this Agreement shall constitute a default under each and every other Loan Document. The Lender's rights and remedies are cumulative and may be exercised concurrently or successively from time to time. Any action by the Lender against any property or party shall not serve to release or discharge any other security, property or party in connection with this transaction. The Events of Default are as follows:):
(ai) Failure to pay Default in the payment of the principal or accrued interest on this Note or upon any indebtedness of the Borrower's present or future indebtedness to the LenderCompany that is greater than $100,000, whether or not arising pursuant to this Agreement, as and when and as the same shall be due and payablebecome due, whether by acceleration default or otherwise, which Default shall have continued for a period of five (5) business days; provided that such except for any pre-existing events of default has not been cured prior under the $2,000,000 principal amount of 5% Senior Secured Convertible Debentures, due October 12, 2002, which were sold to Palladin Opportunity Fund, LLC and Halifax Fund, L.P. pursuant to a Purchase Agreement dated October 13, 2000; or
(ii) Any representation or warranty made by the Company or any officer of the Company in the Notes, or in any agreement, report, certificate or other document delivered to the expiration of Holder pursuant to the Notes shall have been incorrect in any material respect when made which shall not have been remedied ten (10) days following the date upon which the Lender gives the Borrower after written Notice of Default. In this Section 9, Notice of Default notice thereof shall be deemed to have been given by the Holder; or
(iiii) on The Company shall fail to perform or observe any affirmative covenant contained in Section 3 of this Note or any of the Notes and such Default, if capable of being remedied, shall not have been remedied ten (10) days after written notice thereof shall have been given by the Holder; or
(iv) The Company or any subsidiary (A) shall institute any proceeding or voluntary case seeking to adjudicate it bankrupt or insolvent, or seeking dissolution, liquidation, winding up, reorganization, arrangement, adjustment, protection, relief or composition of it or its debts under any law relating to bankruptcy, insolvency or reorganization or relief of debtors, or seeking the entry of any order for relief or the appointment of a receiver, trustee, custodian or other similar official for such the Company or any subsidiary or for any substantial part of its property, or shall consent to the commencement against it of such a proceeding or case, or shall file an answer in any such case or proceeding commenced against it consenting to or acquiescing in the commencement of such case or proceeding, or shall consent to or acquiesce in the appointment of such a receiver, trustee, custodian or similar official; (B) shall be unable to pay its debts as such debts become due, or shall admit in writing its inability to apply its debts generally; (C) shall make a general assignment for the benefit of creditors; or (D) shall take any action to authorize or effect any of the actions set forth above in this subsection 4(a)(iv); or
(v) Any proceeding shall be instituted against the Company seeking to adjudicate it a bankrupt or insolvent, or seeking dissolution, liquidation, winding up, reorganization, arrangement, adjustment, protection, relief of debtors, or seeking the entry of an order for relief or the appointment of a receiver, trustee, custodian or other similar official for the Company or for any substantial part of its property, and either such proceeding shall not have been dismissed or shall not have been stayed for a period of sixty (60) days or any of the actions sought in such proceeding (including, without limitation, the entry of any order for relief against it or the appointment of a receiver, trustee, custodian or other similar official for it or for any substantial part of its property) shall occur; or
(vi) One or more final judgments, arbitration awards or orders for the payment of money in excess of $100,000 in the aggregate shall be rendered against the Company, which judgment remains unsatisfied for thirty (30) days after the date of personal delivery of such written notice to a Guarantor, or (ii) on the date on which a duly authorized representative of the Borrower acknowledges receipt of such written notice, or (iii) on the day after sending such written notice to the Borrower by a commonly recognized overnight courier service, such as Federal Express, Purolator, UPS or the like, or (iv) on the third day after sending such written notice to the Borrower by facsimile (to both numbers set forth in Section 16.7) or by depositing the same in the United States mail, postage prepaid, for delivery to the Borrowerentry.
(b) Failure to observeIf an Event of Default described above has occurred, perform and comply with any of then the obligations evidenced or secured by a Loan DocumentHolder may, other than as provided in Sections 9.1(a) above; provided that such default has not been cured prior without further notice to the expiration Company, declare the principal amount of thirty (30) days following this Note at the date upon which the Lender gives the Borrower written Notice of Defaulttime outstanding, together with accrued unpaid interest thereon, and all other amounts payable under this Note to be forthwith due and payable, whereupon such principal, interest and all such amounts shall become and be forthwith due and payable.
(c) Failure The Company covenants that in case the principal of, and accrued interest on, the Note becomes due and payable by declaration or otherwise, then the Company will pay in cash to duly the Holder of this Note, the whole amount that then shall have become due and punctually paypayable on this Note for principal or interest, observe as the case may be, and discharge all Indebtedness in addition thereto, such further amount as shall be sufficient to cover the costs and other obligations expenses of collection, including reasonable fees and disbursements of the Borrower Holder's legal counsel. In case the Company shall fail forthwith to pay such amount, the Holder may commence an action or proceeding at law or in equity for the collection of the sums so due and unpaid, and may prosecute any third party, unless the same is being contested in good faith by appropriate proceedings and the Borrower has set aside on its books adequate reserves with respect such action or proceeding to such Indebtedness judgment or final decree against Company or other obligationsobligor upon this Note, wherever situated, the monies adjudicated or decreed to be payable.
(d) The discovery by the Lender of any material inaccuracy in any statement, assurance, representation, covenant, warranty, term or condition by the Borrower contained in this Agreement or in any document delivered or to be delivered by or on behalf of the Borrower pursuant to this Agreement, which inaccuracy would result in a Material Adverse Effect (except Company agrees that inaccuracies in the Borrower's Due Diligence Documents attributable to the fault or neglect of third-parties it shall not constitute a breach of this Section 9.1(d)), or in any other Loan Document, or in any other agreement between the Borrower and the Lender.
(e) The filing of a petition by or against the Borrower or any Affiliate seeking relief under the Federal Bankruptcy Code, 11 U.S.C. ss. 101, et seq., and any amendments thereto, or any similar law or regulation, whether federal, state or local, not dismissed within 30 days.
(f) The commencement of a proceeding by or against the Borrower or any Affiliate under any statute or other law providing for an assignment for the benefit of creditors, the appointment of a receiver, or any other similar law or regulation, whether federal, state or local, not dismissed within 30 days.
(g) The garnishment, attachment, levy or other similar action taken by or on behalf of any creditor of the Borrower, any Affiliate, or any of their respective properties which could have a Material Adverse Effect.
(h) Any change in control of the Borrower, Madison Liquidity Investors 104, MACG from that disclosed in Section 2 of this Agreement.
9.2 The Lender may, at its option, terminate its obligation to make advances of the Loan, without give notice to the Borrower:
(a) upon Holder at its registered address by facsimile, confirmed by certified mail, of the occurrence and continuance of any Event of Default set forth in subsections 9.1
within ten (a10) through 9.1(h) above; or (b) upon the occurrence and continuance of any event which, with the giving of notice or the lapse of time, or both, would constitute an days after such Event of Default or (C) upon the death or disability of ▇▇▇▇▇ ▇shall have occurred.
Appears in 1 contract
Sources: Note Agreement (Zymetx Inc)
Events of Default and Remedies. 9.1 The following events shall constitute an "Event of Default" under this Agreement, the occurrence of which shall entitle the Lender to pursue any and all rights and remedies, legal and equitable, available to it under any Loan Document or otherwise. The Occurrence of an Event Default under this Agreement shall constitute a default under each and every other Loan Document. The Lender's rights and remedies are cumulative and may be exercised concurrently or successively from time to time. Any action by the Lender against any property or party shall not serve to release or discharge any other security, property or party in connection with this transaction. The Events of Default are as follows:
(a) Failure to pay the principal or interest on the Borrower's present or future indebtedness Notwithstanding anything to the Lendercontrary stated herein, whether or the Pledgee shall not arising pursuant to this Agreement, when and as the same shall be due and payable, whether by acceleration or otherwise; provided that such default has not been cured prior to the expiration of ten (10) days following the date upon which the Lender gives the Borrower written Notice of Default. In this Section 9, Notice of Default shall be deemed to have been given (i) on the date of personal delivery of such written notice to a Guarantor, or (ii) on the date on which a duly authorized representative exercise any of the Borrower acknowledges receipt of such written notice, or (iii) on the day after sending such written notice to the Borrower by a commonly recognized overnight courier service, such as Federal Express, Purolator, UPS or the like, or (iv) on the third day after sending such written notice to the Borrower by facsimile (to both numbers remedies set forth in Section 16.7) or by depositing the same in the United States mail, postage prepaid, for delivery to the Borrowerthis Agreement unless and until an Event of Default has occurred and is continuing.
(b) Failure to observe, perform and comply with any of the obligations evidenced or secured by a Loan Document, other than as provided in Sections 9.1(a) above; provided that such default has not been cured prior to the expiration of thirty (30) days following the date upon which the Lender gives the Borrower written Notice of Default.
(c) Failure to duly and punctually pay, observe and discharge all Indebtedness and other obligations of the Borrower to any third party, unless the same is being contested in good faith by appropriate proceedings and the Borrower has set aside on its books adequate reserves with respect to such Indebtedness or other obligations.
(d) The discovery by the Lender of any material inaccuracy in any statement, assurance, representation, covenant, warranty, term or condition by the Borrower contained in this Agreement or in any document delivered or to be delivered by or on behalf of the Borrower pursuant to this Agreement, which inaccuracy would result in a Material Adverse Effect (except that inaccuracies in the Borrower's Due Diligence Documents attributable to the fault or neglect of third-parties shall not constitute a breach of this Section 9.1(d)), or in any other Loan Document, or in any other agreement between the Borrower and the Lender.
(e) The filing of a petition by or against the Borrower or any Affiliate seeking relief under the Federal Bankruptcy Code, 11 U.S.C. ss. 101, et seq., and any amendments thereto, or any similar law or regulation, whether federal, state or local, not dismissed within 30 days.
(f) The commencement of a proceeding by or against the Borrower or any Affiliate under any statute or other law providing for an assignment for the benefit of creditors, the appointment of a receiver, or any other similar law or regulation, whether federal, state or local, not dismissed within 30 days.
(g) The garnishment, attachment, levy or other similar action taken by or on behalf of any creditor of the Borrower, any Affiliate, or any of their respective properties which could have a Material Adverse Effect.
(h) Any change in control of the Borrower, Madison Liquidity Investors 104, MACG from that disclosed in Section 2 of this Agreement.
9.2 The Lender may, at its option, terminate its obligation to make advances of the Loan, without notice to the Borrower:
(a) upon the occurrence and continuance of any Event of Default set forth in subsections 9.1
(a) through 9.1(h) above; or (b) upon the occurrence and continuance of any event which, with the giving of notice or the lapse of time, or both, would constitute If an Event of Default shall have occurred and be continuing:
(i) The Pledgee may exercise in respect of the Pledged Collateral, in addition to other rights and remedies provided for herein or in the Credit Documents, as the case may be or otherwise available to it, all the rights and remedies of a secured party on default under the law of the State of New York or any other applicable law in effect at that time. The Pledgee may also, without notice except as specified below, sell the Pledged Collateral or any part thereof in one or more parcels at public or private sale, at any exchange, broker's board or at any of the Pledgee's offices or elsewhere, for cash, on credit or for future delivery, and upon such other terms as the Pledgee may deem commercially reasonable, provided that at least ten (C10) days' prior written notice of the time and place of any such sale shall be given to the Pledgor. The Pledgee shall not be obligated to make any sale of Pledged Collateral regardless of notice of sale having been given. The Pledgee may adjourn any public or private sale from time to time by announcement at the time and place fixed therefor, and such sale may, without further notice, be made at the time and place to which it was so adjourned.
(ii) Any cash held by the Pledgee as Pledged Collateral and all cash proceeds received by the Pledgee in respect of any sale of, collection from, or other realization upon all or any part of the death Pledged Collateral may, in the discretion of the Pledgee, be held by the Pledgee as collateral for, and/or then or disability at any time thereafter applied (after payment of ▇▇▇▇▇ ▇any amounts payable to the Pledgee pursuant to Section 10) in whole or in part by the Pledgee against, all or any part of the Obligations in accordance with the terms of the Credit Agreement. Any surplus of such cash or cash proceeds held by the Pledgee and remaining after payment and performance in full of the Obligations shall be paid over to the Borrower or its order.
Appears in 1 contract
Events of Default and Remedies. 9.1 The occurrence of any one of the following events shall constitute an "Event of Default" under this Agreement, the occurrence of which shall entitle the Lender to pursue any and all rights and remedies, legal and equitable, available to it under any Loan Document or otherwise. The Occurrence of an Event Default under this Agreement shall constitute a default under each and every other Loan Document. The Lender's rights and remedies are cumulative and may be exercised concurrently or successively from time to time. Any action by the Lender against any property or party shall not serve to release or discharge any other security, property or party in connection with this transaction. The Events of Default are as follows:hereunder.
(a) Failure Lessee fails to pay any installment of rent on or before the fifth business day following the date such payment is due.
(b) Lessee attempts to remove, sell, transfer, encumber, sublet or part with possession of the Equipment or any items thereof, except as expressly permitted herein.
(c) Lessee or any of its subsidiaries shall (i) fail to pay when due (after the expiration of any applicable grace period) any principal or premium or interest on the Borrower's present or future indebtedness any obligations owing to the LenderCIT and its affiliates, whether or not arising pursuant to this Agreement, when and as the same shall be due and payable, whether by acceleration or otherwise; provided that such default has not been cured prior to the expiration of ten (10) days following the date upon which the Lender gives the Borrower written Notice of Default. In this Section 9, Notice of Default shall be deemed to have been given (i) on the date of personal delivery of such written notice to a Guarantor, or (ii) fail to pay any principal or premium or interest on any obligation the date on aggregate outstanding principal amount of which a duly authorized representative of obligation is greater than or equal to $3,000,000, or any event shall occur or condition shall exist which causes the Borrower acknowledges receipt acceleration of such written noticeobligation before its stated maturity, or (iii) fail to maintain insurance on the day after sending such written notice to the Borrower by a commonly recognized overnight courier service, such as Federal Express, Purolator, UPS or the like, or (iv) on the third day after sending such written notice to the Borrower by facsimile (to both numbers set forth in Section 16.7) or by depositing the same in the United States mail, postage prepaid, for delivery to the Borrower.
(b) Failure to observe, perform and comply with any of the obligations evidenced or secured by a Loan Document, other than as provided in Sections 9.1(a) above; provided that such default has not been cured prior to the expiration of thirty (30) days following the date upon which the Lender gives the Borrower written Notice of Default.
(c) Failure to duly and punctually pay, observe and discharge all Indebtedness and other obligations of the Borrower to any third party, unless the same is being contested in good faith by appropriate proceedings and the Borrower has set aside on its books adequate reserves with respect to such Indebtedness or other obligationsEquipment.
(d) The discovery by A default or an event of default shall exist under Lessee's Amended and Restated Master Agreement which results in the Lender of any material inaccuracy in any statement, assurance, representation, covenant, warranty, term or condition by Collateral Agent acting upon the Borrower contained in this Agreement or in any document delivered or to be delivered by or on behalf of the Borrower collateral pledged pursuant to this Agreementthe Company Security Agreement dated as of October 24, which inaccuracy would result in a Material Adverse Effect (except that inaccuracies in the Borrower's Due Diligence Documents attributable 1990 between Lessee and Citibank, N.A. as collateral agent, as amended by Amendment No. 1 to the fault or neglect Company Security Agreement dated as of third-parties shall not constitute a breach of this Section 9.1(d))March 22, or in any other Loan Document1993 by Lessee and Citibank, or in any other agreement between the Borrower and the LenderN.A., as collateral agent.
(e) The filing Lessee shall fail to observe or perform any of a petition the other obligations required to be observed or performed by or against the Borrower or any Affiliate seeking relief under the Federal Bankruptcy Code, 11 U.S.C. ss. 101, et seq., Lessee hereunder and any amendments thereto, or any similar law or regulation, whether federal, state or local, not dismissed within 30 dayssuch failure shall continue uncured for ten (10) business days after written notice thereof to Lessee by Lessor.
(f) The commencement of Lessee ceases doing business as a proceeding by or against the Borrower or any Affiliate under any statute or other law providing for going concern, makes an assignment for the benefit of creditors, admits in writing its inability to pay its debts as they become due, 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 a petition filed against it in any such proceeding, consents to or acquiesces in the appointment of a trustee, receiver, or
(g) Within 30 days after the commencement of any proceedings against Lessee seeking reorganization, arrangement, readjustment, liquidation, dissolution or similar relief under any other similar present or future statute, law or regulation, whether federalsuch proceedings shall not have been dismissed, state or local, not dismissed if within 30 days.
(g) The garnishment, attachment, levy days after the appointment without Lessee's consent or other similar action taken by or on behalf acquiescence of any creditor trustee, receiver or liquidator of the Borrower, any Affiliate, it or of all or any substantial part of their respective properties which could have a Material Adverse Effect.
(h) Any change in control of the Borrowerits assets and properties, Madison Liquidity Investors 104, MACG from that disclosed in Section 2 of this Agreement.
9.2 The Lender may, at its option, terminate its obligation to make advances of the Loan, without notice to the Borrower:
(a) upon such appointment shall not be vacated. Upon the occurrence and continuance of any Event of Default set forth in subsections 9.1
(a) through 9.1(h) above; or (b) upon the occurrence and continuance of any event which, with the giving of notice or the lapse of time, or both, would constitute an Event of Default Default, Lessor may at its option do any or all of the following: (Ci) by notice to Lessee terminate this Lease as to any or all Equipment Schedules; (ii) whether or not this Lease is terminated as to any or all Equipment Schedules, take possession of any or all of the Equipment (including any software modifications) listed on any or all Equipment Schedules, that are terminated, wherever situated, and for such purpose, enter upon any premises without liability for so doing or Lessor may cause Lessee and Lessee hereby agrees, to return said Equipment to Lessor as provided in this Lease; (iii) recover from Lessee, as liquidated damages for loss of a bargain and not as a penalty, an amount equal to the death present value of all monies to be paid by Lessee during the remaining Initial Term or disability any successive period then in effect, discounted at the rate of ▇▇▇▇▇ ▇six percent (6%), which payment shall become immediately due and payable; (iv) sell, dispose of, hold, use or lease any Equipment as Lessor in its sole discretion may determine (and Lessor shall not be obligated to give a 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 Lessor). In any event, Lessee shall, without further demand, pay to Lessor an amount equal to all sums due and payable for all periods up to and including the date on which Lessor has declared this Lease to be in default. In the event that Lessee shall have paid to Lessor the liquidated damages referred to in (iii) above, Lessor hereby agrees to pay to Lessee, promptly after receipt thereof, all rentals or proceeds received from the reletting or sale of the Equipment during the balance of the Initial Term (after deduction of all expenses incurred by Lessor), said amount never to exceed the amount of the liquidated damages paid by Lessee. Lessee agrees that Lessor shall have no obligation to sell the Equipment. Lessee shall in any event remain fully liable for reasonable damages provided by law and for all costs and expenses incurred by Lessor on account of such default including but not limited to all court costs and reasonable attorney's fees. Lessee hereby agrees that, in any event, it shall be liable for any deficiency after any sale, lease or other disposition by Lessor of Equipment that has been repossessed by Lessor following an Event of Default. The rights afforded Lessor hereunder shall not be deemed to be exclusive, but shall be in addition to any rights or remedies provided by law.
Appears in 1 contract
Sources: Lease Agreement (Anacomp Inc)
Events of Default and Remedies. 9.1 The (a) Each of the following events shall constitute constitutes an "“Event of Default" ” under this AgreementIndenture:
(1) default for 30 days in the payment when due of interest, including Additional Interest, if any, on the Securities (whether or not prohibited by Article 10);
(2) default in payment when due of the principal of or premium, if any, on the Securities (including upon mandatory redemption), and any failure of the Issuer to make a Change of Control Offer or Asset Sale Offer when required or to purchase Securities required to be purchased in connection therewith (whether or not prohibited by Article 10);
(3) failure by the Issuer to comply with Section 5.01 or 5.03;
(4) failure by the Issuer for 30 days after receipt of notice from the Trustee or the Holders of at least 25% in principal amount of the then outstanding Securities specifying such failure to comply with Section 4.03 or Section 4.04; provided, however, at all times while the GS Parties constitute the Required Holders, an Event of Default shall occur upon receipt of any such notice by the Issuer;
(5) failure by the Issuer for 60 days after receipt of notice given to the Issuer by the Trustee or to the Issuer and the Trustee by the Holders of at least 25% in aggregate principal amount of the Securities outstanding specifying such failure to comply with any other Sections of this Indenture or the Securities; provided, however, at all times while the GS Parties constitute the Required Holders, such 60 day period shall be reduced to 30 days for any failure to comply with Section 4.07;
(6) (A) the failure by the Issuer or any Restricted Subsidiary that is a Guarantor to pay any Debt within any applicable grace period after final maturity or acceleration by the holders thereof because of a default or (B) or a default occurs with respect to any Debt of the Issuer or any Restricted Subsidiary that is a Guarantor that ranks pari passu with the Securities or the relevant Security Guarantee or constitutes Subordinated Debt, which default permits the holder or holders thereof (or any trustee or agent on their behalf) to accelerate that Debt (giving effect to any applicable grace period), and, in the case of (A) or (B) the total amount of such Debt unpaid or accelerated or in default at the time exceeds $30.0 million;
(7) any judgment or decree for the payment of money in excess of $30.0 million (net of any insurance or indemnity payments actually received in respect thereof prior to or within 60 days from the entry thereof, or which are covered by insurance (unless the Issuer’s insurance carriers have denied coverage in respect thereof) in the event any appeal thereof shall be unsuccessful) is entered against the Issuer or any Restricted Subsidiary that is a Significant Subsidiary and is not discharged, waived or stayed and either (A) an enforcement proceeding has been commenced by any creditor upon such judgment or decree or (B) there is a period of 60 days following the entry of such judgment or decree during which such judgment or decree is not discharged, waived or the execution thereof stayed;
(8) except as permitted by this Indenture, any Security Guarantee by a Guarantor that is a Significant Subsidiary shall be held in any judicial proceeding to be unenforceable or invalid or shall cease for any reason to be in full force and effect or any Guarantor, or any Person acting on behalf of any Guarantor, shall deny or disaffirm its obligations under its Security Guarantee;
(9) Holdco (for so long as the Issuer is a Subsidiary of Holdco), the Issuer or any Restricted Subsidiary that is a Significant Subsidiary pursuant to or within the meaning of any Bankruptcy Law:
(i) commences a voluntary case;
(ii) consents to the entry of an order for relief against it in an involuntary case;
(iii) consents to the appointment of a Custodian of it or for any substantial part of its property;
(iv) makes a general assignment for the benefit of its creditors;
(v) or takes any comparable action under any foreign laws relating to insolvency;
(10) a court of competent jurisdiction enters an order or decree under any Bankruptcy Law that:
(i) is for relief against Holdco (for so long as the Issuer is a Subsidiary of Holdco), the Issuer or any Restricted Subsidiary that is a Significant Subsidiary in an involuntary case;
(ii) appoints a Custodian of Holdco (for so long as the Issuer is a Subsidiary of Holdco), the Issuer or any Restricted Subsidiary that is a Significant Subsidiary or for any substantial part of its property; or
(iii) orders the winding up or liquidation of Holdco (for so long as the Issuer is a Subsidiary of Holdco), the Issuer or any Restricted Subsidiary that is a Significant Subsidiary; or any similar relief is granted under any foreign laws and the order or decree relating thereto remains unstayed and in effect for 60 days; or
(11) while the GS Parties constitute the Required Holders: (A) the occurrence of (x) any material breach of the representations and warranties contained in Section 4 of the Purchase Agreement which shall entitle do not contain materiality or material adverse effect qualifiers or (y) any breach of the Lender to pursue any representations and all rights and remedies, legal and equitable, available to it under any Loan Document warranties contained in Section 4 of the Purchase Agreement which contain materiality or otherwise. The Occurrence of an Event Default under this Agreement shall constitute a default under each and every other Loan Document. The Lender's rights and remedies are cumulative and may be exercised concurrently material adverse effect qualifiers or successively from time to time. Any action (B) failure by the Lender against any property or party shall not serve Issuer for 30 days after receipt of notice from the GS Parties specifying such failure to release or discharge any other security, property or party in connection with this transaction. The Events of Default are as follows:
(a) Failure to pay the principal or interest on the Borrower's present or future indebtedness to the Lender, whether or not arising pursuant to this Agreement, when and as the same shall be due and payable, whether by acceleration or otherwise; provided that such default has not been cured prior to the expiration of ten (10) days following the date upon which the Lender gives the Borrower written Notice of Default. In this Section 9, Notice of Default shall be deemed to have been given (i) on the date of personal delivery of such written notice to a Guarantorcomply, or (ii) on cause the date on which a duly authorized representative compliance of, with any of the Borrower acknowledges receipt of such written notice, or (iii) on the day after sending such written notice to the Borrower by a commonly recognized overnight courier service, such as Federal Express, Purolator, UPS or the like, or (iv) on the third day after sending such written notice to the Borrower by facsimile (to both numbers set forth in Section 16.7) or by depositing the same covenants contained in the United States mail, postage prepaid, for delivery to the BorrowerPurchase Agreement.
(b) Failure to observe, perform and comply with The foregoing shall constitute Events of Default whatever the reason for any of the obligations evidenced or secured by a Loan Document, other than as provided in Sections 9.1(a) above; provided that such default has not been cured prior to the expiration of thirty (30) days following the date upon which the Lender gives the Borrower written Notice of Default.
(c) Failure to duly and punctually pay, observe and discharge all Indebtedness and other obligations of the Borrower to any third party, unless the same is being contested in good faith by appropriate proceedings and the Borrower has set aside on its books adequate reserves with respect to such Indebtedness or other obligations.
(d) The discovery by the Lender of any material inaccuracy in any statement, assurance, representation, covenant, warranty, term or condition by the Borrower contained in this Agreement or in any document delivered or to be delivered by or on behalf of the Borrower pursuant to this Agreement, which inaccuracy would result in a Material Adverse Effect (except that inaccuracies in the Borrower's Due Diligence Documents attributable to the fault or neglect of third-parties shall not constitute a breach of this Section 9.1(d)), or in any other Loan Document, or in any other agreement between the Borrower and the Lender.
(e) The filing of a petition by or against the Borrower or any Affiliate seeking relief under the Federal Bankruptcy Code, 11 U.S.C. ss. 101, et seq., and any amendments thereto, or any similar law or regulation, whether federal, state or local, not dismissed within 30 days.
(f) The commencement of a proceeding by or against the Borrower or any Affiliate under any statute or other law providing for an assignment for the benefit of creditors, the appointment of a receiver, or any other similar law or regulation, whether federal, state or local, not dismissed within 30 days.
(g) The garnishment, attachment, levy or other similar action taken by or on behalf of any creditor of the Borrower, any Affiliate, or any of their respective properties which could have a Material Adverse Effect.
(h) Any change in control of the Borrower, Madison Liquidity Investors 104, MACG from that disclosed in Section 2 of this Agreement.
9.2 The Lender may, at its option, terminate its obligation to make advances of the Loan, without notice to the Borrower:
(a) upon the occurrence and continuance of any Event of Default set forth in subsections 9.1
(a) through 9.1(h) above; and whether it is voluntary or (b) upon the occurrence and continuance involuntary or is effect by operation of law or pursuant to any judgment, decree or order of any event whichcourt or any order, with the giving rule or regulation of notice any administrative or the lapse of time, or both, would constitute an Event of Default or (C) upon the death or disability of ▇▇▇▇▇ ▇governmental body.
Appears in 1 contract
Events of Default and Remedies. 9.1 (a) The term "Event of Default", wherever used herein, shall mean any of the following events under this Lease: (i) Lessee breaches its obligation to pay Rent or any other sum when due and fails to cure the breach within ten (10) days; or (ii) Lessee breaches any of its insurance obligations under Section 9; or (iii) Lessee breaches any of its other obligations and fails to cure that breach within thirty (30) days after written notice from Lessor to Lessee; or (iv) any representation or warranty made by Lessee in connection with this Lease shall constitute be false or misleading in any material respect; or (v) Lessee or any guarantor or other obligor for any of the obligations hereunder (collectively "Guarantor") becomes insolvent or ceases to do business as a going concern; or (vi) a petition is filed by or against Lessee or any Guarantor under any bankruptcy, insolvency or similar laws and in the event of an involuntary petition, the petition is not dismissed within sixty (60) days of the filing date; or (vii) if Lessee or any Guarantor is a natural person, any death or incompetency of Lessee or such Guarantor; or (viii) there occurs an "Event of Default" under this Agreement, and as defined in any other agreement by and between Lessor and Lessee.
(b) Upon the occurrence of which shall entitle the Lender to pursue any and all rights and remedies, legal and equitable, available to it under any Loan Document or otherwise. The Occurrence of an Event Default under this Agreement shall constitute a default under each and every other Loan Document. The Lender's rights and remedies are cumulative and may be exercised concurrently or successively from time to time. Any action by the Lender against any property or party shall not serve to release or discharge any other security, property or party in connection with this transaction. The Events of Default are as follows:
(a) Failure to pay the principal or interest on the Borrower's present or future indebtedness to the Lender, whether or not arising pursuant to this Agreement, when and so long as the same shall be due and payablecontinuing, whether by acceleration or otherwise; provided that such default has not been cured prior to the expiration of ten (10) days following the date upon which the Lender gives the Borrower written Notice of Default. In this Section 9, Notice of Default shall be deemed to have been given (i) on the date of personal delivery of such written notice to a Guarantor, or (ii) on the date on which a duly authorized representative of the Borrower acknowledges receipt of such written notice, or (iii) on the day after sending such written notice to the Borrower by a commonly recognized overnight courier service, such as Federal Express, Purolator, UPS or the like, or (iv) on the third day after sending such written notice to the Borrower by facsimile (to both numbers set forth in Section 16.7) or by depositing the same in the United States mail, postage prepaid, for delivery to the Borrower.
(b) Failure to observe, perform and comply with any of the obligations evidenced or secured by a Loan Document, other than as provided in Sections 9.1(a) above; provided that such default has not been cured prior to the expiration of thirty (30) days following the date upon which the Lender gives the Borrower written Notice of Default.
(c) Failure to duly and punctually pay, observe and discharge all Indebtedness and other obligations of the Borrower to any third party, unless the same is being contested in good faith by appropriate proceedings and the Borrower has set aside on its books adequate reserves with respect to such Indebtedness or other obligations.
(d) The discovery by the Lender of any material inaccuracy in any statement, assurance, representation, covenant, warranty, term or condition by the Borrower contained in this Agreement or in any document delivered or to be delivered by or on behalf of the Borrower pursuant to this Agreement, which inaccuracy would result in a Material Adverse Effect (except that inaccuracies in the Borrower's Due Diligence Documents attributable to the fault or neglect of third-parties shall not constitute a breach of this Section 9.1(d)), or in any other Loan Document, or in any other agreement between the Borrower and the Lender.
(e) The filing of a petition by or against the Borrower or any Affiliate seeking relief under the Federal Bankruptcy Code, 11 U.S.C. ss. 101, et seq., and any amendments thereto, or any similar law or regulation, whether federal, state or local, not dismissed within 30 days.
(f) The commencement of a proceeding by or against the Borrower or any Affiliate under any statute or other law providing for an assignment for the benefit of creditors, the appointment of a receiver, or any other similar law or regulation, whether federal, state or local, not dismissed within 30 days.
(g) The garnishment, attachment, levy or other similar action taken by or on behalf of any creditor of the Borrower, any Affiliate, or any of their respective properties which could have a Material Adverse Effect.
(h) Any change in control of the Borrower, Madison Liquidity Investors 104, MACG from that disclosed in Section 2 of this Agreement.
9.2 The Lender Lessor may, at its option, terminate its obligation to make advances at any time thereafter, exercise one or more of the Loanfollowing remedies, without notice as Lessor in its sole discretion shall lawfully elect: (i) demand that Lessee immediately pay as liquidated damages, for loss of a bargain and not as a penalty, an amount equal to the Borrower:
Stipulated Loss Value of the Aircraft, computed as of the Basic Term Rent Date prior to such demand together with all Rent and other amounts due and payable for all periods up to and including the Basic Term Rent Date following such demand; (aii) upon demand that Lessee pay all amounts due for failure to maintain or return the occurrence Aircraft as provided herein and continuance of cause Lessee to assign to Lessor Lessee's rights under any Event of Default set forth manufacturer's service program contract or any extended warranty contract in subsections 9.1
(a) through 9.1(h) above; or (b) upon force for the occurrence and continuance of any event which, with the giving of notice or the lapse of time, or both, would constitute an Event of Default or (C) upon the death or disability of ▇▇▇▇▇ ▇.Aircraft;
Appears in 1 contract
Events of Default and Remedies. 9.1 The In the event of the happening of any one of the following events shall constitute an (hereinafter referred to as a "Event of Default" under this Agreement, the occurrence of which shall entitle the Lender to pursue any and all rights and remedies, legal and equitable, available to it under any Loan Document or otherwise. The Occurrence of an Event Default under this Agreement shall constitute a default under each and every other Loan Document. The Lender's rights and remedies are cumulative and may be exercised concurrently or successively from time to time. Any action by the Lender against any property or party shall not serve to release or discharge any other security, property or party in connection with this transaction. The Events of Default are as follows:"):
(a) Failure the Tenant shall have failed to pay an instalment of Base Rental or of Additional Rent or any other amount payable hereunder when due and such default shall be continuing for a period of more than two (2) days after written notice by the principal Landlord to the Tenant of the amount due;
(b) there shall be a default of or interest with any condition, covenant, agreement or other obligation on the Borrower's present part of the Tenant to be kept, observed or future indebtedness performed hereunder (other than the obligation to the Lenderpay Base Rental, whether Additional Rent or not arising pursuant to this Agreement, when any other amount of money) and as the same such Default shall be due and payable, whether by acceleration or otherwise; provided that such default has not been cured prior to the expiration continuing for a period of more than ten (10) days after written notice by the Landlord to the Tenant specifying the Default and requiring that it discontinue;
(c) if any policy of insurance upon the Building or any part thereof from time to time affected by the Landlord shall be cancelled or about to be cancelled by the insurer by reason of the use or occupation of the Leased Premises by the Tenant or any assignee, sub-tenant or licensee of the Tenant or anyone permitted by the Tenant to be upon the Leased Premises and the Tenant, after receipt of notice in writing from the Landlord, shall have failed to take such immediate steps in respect of such use or occupation as shall enable the Landlord to reinstate or avoid cancellation (as the case may be) of such policy of insurance;
(d) the Leased Premises shall, without the prior written consent of the Landlord, be used by any other persons than the Tenant or its permitted assigns or sub-tenants or for any purpose other than that for which they were leased or occupied or by any persons whose occupancy is prohibited by this Lease;
(e) the Leased Premises shall be vacated or abandoned, or remain unoccupied, without the prior written consent of the Landlord for seven (7) consecutive days or more while capable of being occupied;
(f) the balance of the Term of this Lease or any of the goods and chattels of the Tenant located in the Leased Premises, shall at any time be seized in execution or attachment; or
(g) the Tenant shall make any assignment for the benefit of creditors or become bankrupt or insolvent or take the benefit of any statute for bankrupt or insolvent debtors or, if a corporation, shall take any steps or suffer any order to be made for its winding-up or other termination of its corporate existence; or a trustee, receiver or receiver-manager or agent or other like person shall be appointed of any of the assets of the Tenant; the Landlord shall have the following rights and remedies all of which are cumulative and not alternative and not to the exclusion of any other or additional rights and remedies in law or equity available to the Landlord by statute or otherwise:
(i) to remedy or attempt to remedy any Default of the Tenant, and in so doing to make any payments due or alleged to be due by the Tenant to third parties and to enter upon the Leased Premises to do any work or other things therein, and in such event all reasonable expenses of the Landlord in remedying or attempting to remedy such Default shall be payable by the Tenant to the Landlord on demand;
(ii) with respect to unpaid overdue Rent, to the payment by the Tenant of the Rent and of interest (which said interest shall be deemed included herein in the term "Rent") thereon at a rate per annum equal to three percent (3%) above the prime commercial loan rate charged to borrowers having the highest credit rating from time to time by the Landlord's principal bank from the date upon which the Lender gives same was due until actual payment thereof and the Borrower written Notice of Default. In this Section 9, Notice of Default shall be deemed to have been given (i) on maximum amount allowed under the date of personal delivery of such written notice to a Guarantor, or (ii) on the date on which a duly authorized representative laws of the Borrower acknowledges receipt of such written notice, or jurisdiction in which the Building is located;
(iii) on to terminate this Lease forthwith by leaving upon the day after sending Leased Premises or by affixing to an entrance door to the Leased Premises notice terminating the Lease and to immediately thereafter cease to furnish any services hereunder and enter into and upon the Leased Premises or any part thereof in the name of the whole and the same to have again, repossess and enjoy as of its former estate, anything in this Lease contained to the contrary notwithstanding; and
(iv) to enter the Leased Premises as agent of the Tenant and as such agent to re-let them and to receive the rent therefor and as the agent of the Tenant to take possession of any furniture or other property thereon and upon giving ten (10) days' written notice to the Borrower by a commonly recognized overnight courier service, such as Federal Express, Purolator, UPS Tenant to store the same at the expense and risk of the Tenant or to sell or otherwise dispose of the like, same at public or (iv) on private sale without further notice and to apply the third day after sending such written notice proceeds thereof and any rent derived from re-letting the Leased Premises upon the account of the Rent due and to become due under this Lease and the Tenant shall be liable to the Borrower by facsimile (to both numbers set forth in Section 16.7) or by depositing the same in the United States mail, postage prepaid, for delivery to the Borrower.
(b) Failure to observe, perform and comply with any of the obligations evidenced or secured by a Loan Document, other than as provided in Sections 9.1(a) above; provided that such default has not been cured prior to the expiration of thirty (30) days following the date upon which the Lender gives the Borrower written Notice of Default.
(c) Failure to duly and punctually pay, observe and discharge all Indebtedness and other obligations of the Borrower to any third party, unless the same is being contested in good faith by appropriate proceedings and the Borrower has set aside on its books adequate reserves with respect to such Indebtedness or other obligations.
(d) The discovery by the Lender of any material inaccuracy in any statement, assurance, representation, covenant, warranty, term or condition by the Borrower contained in this Agreement or in any document delivered or to be delivered by or on behalf of the Borrower pursuant to this Agreement, which inaccuracy would result in a Material Adverse Effect (except that inaccuracies in the Borrower's Due Diligence Documents attributable to the fault or neglect of third-parties shall not constitute a breach of this Section 9.1(d)), or in any other Loan Document, or in any other agreement between the Borrower and the Lender.
(e) The filing of a petition by or against the Borrower or any Affiliate seeking relief under the Federal Bankruptcy Code, 11 U.S.C. ss. 101, et seq., and any amendments thereto, or any similar law or regulation, whether federal, state or local, not dismissed within 30 days.
(f) The commencement of a proceeding by or against the Borrower or any Affiliate under any statute or other law providing for an assignment Landlord for the benefit of creditors, the appointment of a receiver, or any other similar law or regulation, whether federal, state or local, not dismissed within 30 daysdeficiency if any.
(g) The garnishment, attachment, levy or other similar action taken by or on behalf of any creditor of the Borrower, any Affiliate, or any of their respective properties which could have a Material Adverse Effect.
(h) Any change in control of the Borrower, Madison Liquidity Investors 104, MACG from that disclosed in Section 2 of this Agreement.
9.2 The Lender may, at its option, terminate its obligation to make advances of the Loan, without notice to the Borrower:
(a) upon the occurrence and continuance of any Event of Default set forth in subsections 9.1
(a) through 9.1(h) above; or (b) upon the occurrence and continuance of any event which, with the giving of notice or the lapse of time, or both, would constitute an Event of Default or (C) upon the death or disability of ▇▇▇▇▇ ▇.
Appears in 1 contract
Sources: Lease (Certicom Corp)
Events of Default and Remedies. 9.1 The following events shall constitute an "Event (a) In addition to the Events of Default" under this Default specified in Section 5(a) of the Master Agreement, the occurrence at any time with respect to Pledgor of which shall entitle any of the Lender to pursue any and all rights and remedies, legal and equitable, available following events will constitute an Event of Default with respect to it hereunder and under any Loan Document or otherwise. The Occurrence of an Event Default under this Agreement shall constitute a default under each and every other Loan Document. The Lender's rights and remedies are cumulative and may be exercised concurrently or successively from time to time. Any action by the Lender against any property or party shall not serve to release or discharge any other security, property or party in connection with this transaction. The Events of Default are as followsMaster Agreement:
(ai) Failure failure to pay the principal deliver Collateral to Secured Party in accordance with Section 3 hereof; or
(ii) failure of any representation or interest on the Borrower's present warranty made or future indebtedness deemed made herein or in any instrument or document delivered pursuant hereto to the Lender, whether be correct or not arising pursuant to this Agreement, when and as the same shall be due and payable, whether by acceleration or otherwise; provided that such default has not been cured prior to the expiration of ten (10) days following misleading in any material respect upon the date upon which the Lender gives the Borrower written Notice of Default. In this Section 9when made or deemed made; or
(iii) failure to perform any term, Notice of Default shall be deemed to have been given covenant or agreement contained herein (other than that specified in clauses (i) on the date of personal delivery of such written notice to a Guarantor, or (ii) above), if such failure is not remedied on or before the date on which a duly authorized representative of the Borrower acknowledges receipt fifth Business Day after notice of such written notice, or (iii) on the day after sending such written notice failure is given to the Borrower by a commonly recognized overnight courier service, such as Federal Express, Purolator, UPS or the like, or (iv) on the third day after sending such written notice to the Borrower by facsimile (to both numbers set forth in Section 16.7) or by depositing the same in the United States mail, postage prepaid, for delivery to the BorrowerPledgor.
(b) Failure If an Event of Default with respect to observe, perform Pledgor shall have occurred:
(i) Secured Party shall have and comply may exercise with reference to the Collateral and the Secured Obligations any or all of the obligations evidenced rights and remedies of a secured party under the UCC, and as otherwise granted herein or secured under any other applicable law or under any other agreement now or hereafter in effect executed by Pledgor, including, without limitation, the right and power to sell, at public or private sale or sales, or otherwise dispose of, or otherwise utilize the Collateral and any part or parts thereof in any manner authorized or permitted under the UCC after default by a Loan Documentdebtor, and to apply the proceeds thereof toward payment of any costs and expenses and attorneys' fees and expenses thereby incurred by Secured Party and toward payment of the Secured Obligations in such order or manner as Secured Party may elect. Any sale or other than as provided in Sections 9.1(a) abovedisposition of collateral pursuant hereto shall be free from any claim or right of any nature whatsoever of Pledgor, including any equity or right of redemption by Pledgor (with Secured Party having the right to purchase any or all of the Collateral to be sold). To the extent permitted by law, Pledgor expressly waives any notice of sale or other disposition of the Collateral and all other rights or remedies of Pledgor or formalities prescribed by law relative to sale or disposition of the Collateral or exercise of any other right or remedy of Secured Party existing after default hereunder; provided that such default has not been cured prior and to the expiration of thirty extent any such notice is required and cannot be waived, Pledgor agrees that if such notice is given at least three (303) days following before the date time of the sale or disposition, such notice shall be deemed reasonable and shall fully satisfy any requirement for giving of said notice. Notwithstanding the foregoing, Pledgor acknowledges and agrees that any Pledged Securities may decline speedily in value and are of a type customarily sold on a recognized market, and, accordingly, Pledgor is not entitled to prior notice of any sale of Pledged Securities by Secured Party, except any notice that is required under applicable law and cannot be waived. Secured Party shall not be obligated to make any sale of Collateral regardless of notice of sale having been given. Secured Party may adjourn any public or private sale;
(ii) upon which notice by Secured Party to Pledgor, Secured Party or its nominee or nominees shall have the Lender gives sole and exclusive right to exercise all voting and consensual powers pertaining to the Borrower written Notice Collateral or any part thereof and may exercise such powers in such manner as Secured Party may elect; and
(iii) all dividends, payments of Defaultinterest and other distributions of every character made upon or in respect of the Collateral or any part thereof shall be deemed to be Collateral and shall be paid directly to and shall be held by Secured Party as additional Collateral pledged under and subject to this Pledge Agreement.
(c) Failure All rights to duly and punctually paymarshalling of assets of Pledgor, observe and discharge all Indebtedness and including any such right with respects to the Collateral, are hereby waived by Pledgor. All recitals in any instrument of assignment or any other obligations instrument executed by Secured Party incident to sale, lease, transfer, assignment or other disposition, lease or utilization of the Borrower Collateral or any part thereof hereunder shall be full proof of the matters stated therein and no other proof shall be requisite to any third party, unless establish full legal propriety of the same is being contested in good faith by appropriate proceedings and the Borrower has set aside on its books adequate reserves with respect to such Indebtedness sale or other obligationsaction taken by Secured Party or of any fact, condition or thing incident thereto and all prerequisites of such sale or other action or of any fact, condition or thing incident thereto shall be presumed conclusively to have been performed or to have occurred.
(d) The discovery Pledgor hereby acknowledges that the sale by the Lender Secured Party of any material inaccuracy in any statement, assurance, representation, covenant, warranty, term or condition by the Borrower contained in this Agreement or in any document delivered or to be delivered by or on behalf of the Borrower Pledged Securities pursuant to this Agreementthe terms hereof in compliance with the Securities Act, which inaccuracy would result in a Material Adverse Effect (except that inaccuracies in the Borrower's Due Diligence Documents attributable as well as applicable Blue Sky or other state securities laws, may require strict limitations as to the fault or neglect of third-parties shall not constitute a breach of this Section 9.1(d)), or manner in any other Loan Document, or in any other agreement between the Borrower and the Lender.
(e) The filing of a petition by or against the Borrower which Secured Party or any Affiliate seeking relief subsequent transferee of Pledged Securities may dispose of such securities. Pledgor understands that in order to protect Secured Party's interest it may be necessary for Secured Party in order to comply with such limitations to sell the Pledged Securities at a price less than the maximum price attainable were a sale delayed or made in another manner, such as a public offering requested under the Federal Bankruptcy Code, 11 U.S.C. ssSecurities Act. 101, et seq., Pledgor has no objection to sale in such a manner under such circumstances and any amendments thereto, or any similar law or regulation, whether federal, state or local, not dismissed within 30 days.
(f) The commencement of a proceeding by or against agrees that under such circumstances Secured Party shall have no obligation to obtain the Borrower or any Affiliate under any statute or other law providing for an assignment maximum possible price for the benefit of creditors, the appointment of a receiver, or any other similar law or regulation, whether federal, state or local, not dismissed within 30 daysPledged Securities.
(g) The garnishment, attachment, levy or other similar action taken by or on behalf of any creditor of the Borrower, any Affiliate, or any of their respective properties which could have a Material Adverse Effect.
(h) Any change in control of the Borrower, Madison Liquidity Investors 104, MACG from that disclosed in Section 2 of this Agreement.
9.2 The Lender may, at its option, terminate its obligation to make advances of the Loan, without notice to the Borrower:
(a) upon the occurrence and continuance of any Event of Default set forth in subsections 9.1
(a) through 9.1(h) above; or (b) upon the occurrence and continuance of any event which, with the giving of notice or the lapse of time, or both, would constitute an Event of Default or (C) upon the death or disability of ▇▇▇▇▇ ▇.
Appears in 1 contract
Sources: Pledge Agreement (Conseco Inc)
Events of Default and Remedies. 9.1 10.1 The occurrence of any of the following events shall constitute an "Event of Default" under this Agreement, the occurrence of which shall entitle the Lender to pursue any and all rights and remedies, legal and equitable, available to it under any Loan Document or otherwise. The Occurrence of an Event Default under this Agreement shall constitute a default under each and every other Loan Document. The Lender's rights and remedies are cumulative and may be exercised concurrently or successively from time to time. Any action by the Lender against any property or party shall not serve to release or discharge any other security, property or party in connection with this transaction. The Events of Default are as followshereunder:
(a) Failure to pay breach by the principal Company in any material respect of the provisions of either the Interim Financing Order or interest on the Borrower's present or future indebtedness to the LenderFinal Financing Order, whether or not arising pursuant to this Agreement, when and as the same shall be due and payable, whether by acceleration or otherwise; provided that such default has not been cured prior to the expiration which breach continues for a period of ten (10) days following after the date upon which the Lender gives the Borrower written Notice of Default. In this Section 9, Notice of Default shall be deemed to have been given (i) on the date of personal delivery of such written notice to a Guarantor, or (ii) on the date on which a duly authorized representative of the Borrower acknowledges Company’s receipt of such written notice, or (iii) on the day after sending such written notice to the Borrower by a commonly recognized overnight courier service, such as Federal Express, Purolator, UPS or the like, or (iv) on the third day after sending such written notice to the Borrower by facsimile (to both numbers set forth in Section 16.7) or by depositing the same in the United States mail, postage prepaid, for delivery to the Borrower.thereof from CIT;
(b) Failure cessation of the operations of the Company;
(c) breach by the Company in any material respect of any warranty, representation or covenant contained herein (other than those referred to observein sub-Paragraph (d) below) or in any other written agreement between the Company or CIT, perform which continues for a period of ten (10) days after the Company’s receipt of notice thereof from CIT;
(d) breach by the Company in any material respect of any warranty, representation or covenant of Paragraphs 3.3 and comply with 3.5 hereof; Paragraphs 6.3 and 6.4 (other than the first sentence of Paragraph 6.4) hereof; and Paragraphs 7.2(d), 7.2(e), 7.2(f) and 7.2(h) through (t) and 7.2 (v) hereof;
(e) failure of the Company to pay any of the obligations evidenced Obligations outstanding under the Revolving Loan Account within five (5) Business Days after the due date thereof;
(f) the 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 secured by (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 Loan Document, other than as provided in Sections 9.1(a) above; provided that such default has not been cured prior to the expiration period of thirty (30) days following from date of occurrence and (y) would reasonably be expected, in the date upon which commercially reasonable credit judgment of CIT, subject the Lender gives Company to any material tax, penalty or other liability material to the Borrower written Notice of Default.
(c) Failure to duly and punctually paybusiness, observe and discharge all Indebtedness and other obligations operations or financial condition of the Borrower to any third party, unless the same is being contested in good faith by appropriate proceedings and the Borrower has set aside on its books adequate reserves with respect to such Indebtedness or other obligations.
(d) The discovery by the Lender of any material inaccuracy in any statement, assurance, representation, covenant, warranty, term or condition by the Borrower contained in this Agreement or in any document delivered or to be delivered by or on behalf of the Borrower pursuant to this Agreement, which inaccuracy would result in a Material Adverse Effect (except that inaccuracies in the Borrower's Due Diligence Documents attributable to the fault or neglect of third-parties shall not constitute a breach of this Section 9.1(d)), or in any other Loan Document, or in any other agreement between the Borrower and the Lender.
(e) The filing of a petition by or against the Borrower or any Affiliate seeking relief under the Federal Bankruptcy Code, 11 U.S.C. ss. 101, et seq., and any amendments thereto, or any similar law or regulation, whether federal, state or local, not dismissed within 30 days.
(f) The commencement of a proceeding by or against the Borrower or any Affiliate under any statute or other law providing for an assignment for the benefit of creditors, the appointment of a receiver, or any other similar law or regulation, whether federal, state or local, not dismissed within 30 days.Company;
(g) The garnishment, attachment, levy or other similar action taken by or on behalf the occurrence of any creditor default or event of default (after giving effect to any applicable grace or cure periods) under any instrument or agreement evidencing any Indebtedness of the Borrower, any Affiliate, or any Company entered into subsequent to the Petition Date and having a principal amount in excess of their respective properties which could have a Material Adverse Effect.$250,000;
(h) Any change any judgment or judgments aggregating in control excess of $250,000 or any injunction or attachment is obtained or enforced against the Company and which remains unstayed for more than ten (10) Business Days, unless such judgment is stayed pursuant to Section 362 of the BorrowerBankruptcy Code; or
(i) (A) the Bankruptcy Court shall enter an order appointing a trustee under Section 1104(a) of the Bankruptcy Code in the Bankruptcy Case; or (B) the Interim Financing Order shall cease to be in full force and effect and the Final Financing Order shall not have been entered prior to such cessation; or (C) the Final Financing Order shall not have been entered by the Bankruptcy Court within sixty (60) days after the commencement of the Bankruptcy Case; or (D) at any time after the date of entry thereof, Madison Liquidity Investors 104the Final Financing Order shall cease to be in full force and effect; or (E) the Interim Financing Order or the Final Financing Order, MACG from that disclosed as the case may be, shall be amended, supplemented, stayed, reversed, vacated or otherwise modified (or the Company shall apply for authority to do so) without CIT’s prior written consent, which consent CIT agrees not to unreasonably withhold or delay; or (F) the Bankruptcy Court shall enter an order appointing a responsible officer or an examiner with powers beyond those set forth in Section 2 1106(a)(3) and (4) of the Bankruptcy Code or under Section 1106(b) of the Bankruptcy Code, in the Bankruptcy Case; or (G) there shall arise any Allowed Claim having priority senior to or that is pari passu with the Claims of CIT under the Loan Documents or any other Claim having priority over any and all administrative expenses of the kind specified in Section 503(b) or 507(b) of the Bankruptcy Code (other than Permitted Expenses and Indebtedness), or there shall arise any lien on any asset of the Company, in each case except as expressly permitted under the terms of the Loan Documents; (H) an order of a court of competent jurisdiction shall be entered reversing, staying, vacating or rescinded the Interim Financing Order or Final Financing Order, as the case may be; or (I) the Bankruptcy Court shall enter an order converting the Bankruptcy Case to a case under Chapter 7 of the Bankruptcy Code or dismissing the Bankruptcy Case; or (J) the entry of an order granting relief from the automatic stay to allow any third party to proceed against assets of the Company that are necessary for the continued operation of the Company; or (K) the failure of the Company to comply with the Cash Budget Projections, subject to (i) the variances and (ii) authority to carry over and spend unspent amounts previously authorized as permitted by the Interim Financing Order and the Final Financing Order; or (L) the filing of any plan or reorganization by the Company that does not provide for the payment or provision in full of the Obligations;
10.2 Upon the occurrence of a Default and/or an Event of Default, at the option of CIT, the obligation of CIT to make Revolving Loans and provide Letter of Credit Guaranties shall cease unless such Default is cured or waived in writing by CIT, and at the option of CIT upon the occurrence of an Event of Default: (a) all Obligations outstanding under the Revolving Loan Account shall become immediately due and payable; (b) CIT may charge the Company the Default Rate of Interest on all Obligations then outstanding under the Revolving Loan Account in lieu of the interest provided for in Section 8 of this Agreement.
9.2 The Lender may, at its option, and (c) CIT may immediately terminate its obligation to make advances of the Loan, without this Agreement upon notice to the BorrowerCompany. The exercise of any option is not exclusive of any other option, which may be exercised at any time by CIT.
10.3 In addition to the rights and remedies described in Paragraph 10.2, upon the occurrence of any Event of Default, CIT shall be entitled to file, and the Company hereby agrees not to oppose, CIT’s motion for an expedited hearing to modify the automatic stay provided by Section 362 of the Bankruptcy Code for the purpose of authorizing CIT to pursue any and all of its rights and remedies against the Company and the Collateral, and to seek payment in respect of all Obligations outstanding under the Revolving Loan Account, and the Company hereby acknowledges that CIT may request that such hearing be conducted no less than five (5) Business Days after CIT files such motion. CIT’s rights and remedies against the Company and the Collateral referred to in the preceding sentence shall include the following:
(a) upon the occurrence right to remove from any premises where same may be located any and continuance all books and records, computers, 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 Accounts, or CIT may use, at the Company’s expense, such of any Event the Company’s personnel, supplies or space at the Company’s places of Default set forth in subsections 9.1business or otherwise, as may be necessary to properly administer and control the Accounts or the handling of collections and realizations thereon;
(a) through 9.1(h) above; or (b) the right to bring suit, in the name of the Company or CIT, 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 CIT;
(c) the right to 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 CIT’s sole option and discretion, and CIT 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) the right to 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 be located for the purpose of taking possession of or removing the same; and
(e) the right to exercise any other rights and remedies provided in law, in equity, by contract or otherwise;
(f) the right, without notice or advertisement except as required by the UCC or other applicable law, 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 CIT, or in the name of such other party as CIT 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 (including but not limited to warranties of title, possession, quiet enjoyment and the like), and upon such other terms and conditions as CIT in its sole discretion may deem advisable, and CIT shall have the right to purchase at any such sale;
(g) if any Inventory and Equipment shall require rebuilding, repairing, maintenance or preparation, the right, at CIT’s option, to do such of the aforesaid as is necessary, for the purpose of putting the Inventory and Equipment in such saleable form as CIT shall deem appropriate and the reasonable costs thereof shall be deemed an Obligation hereunder. Notwithstanding anything contained to the contrary herein or elsewhere, it is not the Company’s intention to waive, and the Company does not waive, any requirement that any sale, lease or other disposition of the Collateral or any part thereof be commercially reasonable. The Company agrees, at the request of CIT, to assemble the Inventory and Equipment and to make it available to CIT at premises of the Company or elsewhere and to make available to CIT the premises and facilities of the Company for the purpose of CIT’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 CIT’s exercise of any of the foregoing rights, (after deducting all charges, costs and expenses, including reasonable attorneys’ fees) shall be applied by CIT to the payment of the Obligations then due under the Revolving Loan Account in such order as CIT may elect, and the Company shall remain liable to CIT for any deficiencies, and CIT 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 CIT and holds CIT harmless from any and all reasonable costs and expenses, claims, liabilities, Out-of-Pocket Expenses or otherwise, incurred or imposed on CIT by reason of the proper 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 CIT harmless, absent CIT’s gross negligence or willful misconduct as finally determined by a court of competent jurisdiction. The foregoing indemnification shall survive termination of this Agreement until such time as all Obligations (including the foregoing) have been finally and indefeasibly paid in full or provided for in accordance with Section 11 hereof.
10.4 Upon the occurrence and continuance of any event which, with the giving of notice or the lapse of time, or both, would constitute an Event of Default Default, CIT may direct the Company how and when to exercise all rights of the Company under Bankruptcy Code Section 365 in connection with an election by CIT to exercise its remedies under Paragraph 10.3. Notwithstanding anything to the contrary contained herein, if the Company does not fully honor and take and all actions requested in any such direction within three (3) Business Days of the delivery of such direction, CIT may move the Bankruptcy Court on behalf of the Company for the relief specified in the direction. The Company agrees that it will not contest a request by CIT for expedited consideration of any such motion to take place on at least five (5) Business Days’ prior written notice to the Company, any creditors committee and any landlord or (C) upon other counter-party to the death relevant lease or disability contract.
10.5 Upon the occurrence of ▇▇▇▇▇ ▇an Event of Default, CIT may exercise all other rights and remedies provided to CIT in the Interim Financing Order and the Final Financing Order, respectively.
Appears in 1 contract
Sources: Post Petition Financing Agreement (Crown Pacific Partners L P)
Events of Default and Remedies. 9.1 The following events shall constitute If an "Event of Default" under this AgreementDefault (other than an Event of Default specified in clauses (xii) of Section 6.1 of the Indenture) occurs and is continuing, all outstanding Notes will become due and payable immediately without further action or notice. If any other Event of Default occurs and is continuing, the occurrence Trustee or the Holders of which shall entitle at least 25% in aggregate principal amount of the Lender outstanding Notes may declare all the Notes to pursue any and all rights and remedies, legal and equitable, available to it under any Loan Document or otherwise. The Occurrence of an Event Default under this Agreement shall constitute a default under each and every other Loan Document. The Lender's rights and remedies are cumulative and may be exercised concurrently or successively from time to time. Any action by the Lender against any property or party shall not serve to release or discharge any other security, property or party in connection with this transaction. The Events of Default are as follows:
(a) Failure to pay the principal or interest on the Borrower's present or future indebtedness to the Lender, whether or not arising pursuant to this Agreement, when and as the same shall be due and payablepayable immediately in the manner and with the effect provided in the Indenture. Subject to certain limitations, whether by acceleration Holders of a majority in aggregate principal amount of the then outstanding Notes may direct the Trustee in its exercise of any trust or otherwisepower. The Trustee may withhold from Holders of the Notes notice of any continuing Default or Event of Default if it determines that withholding notice is in their interest, except a Default or Event of Default relating to the payment of principal, interest or premium, if any. Subject to the provisions of the Indenture relating to the duties of the Trustee, in case an Event of Default occurs and is continuing, the Trustee will be under no obligation to exercise any of the rights or powers under the Indenture at the request or direction of any Holders of Notes unless such Holders have offered to the Trustee indemnity or security satisfactory to it against any loss, liability or expense. Except to enforce the right to receive payment of principal, premium, if any, or interest, when due, no Holder of a Note may pursue any remedy with respect to the Indenture or the Notes unless: (A) such Holder has previously given the Trustee notice that an Event of Default is continuing; provided that (B) Holders of at least 25% in aggregate principal amount of the then outstanding Notes have requested the Trustee to pursue the remedy; (C) such default Holders have offered the Trustee security or indemnity satisfactory to it against any loss, liability or expense; (D) the Trustee has not been cured prior to complied with such request within 60 days after the expiration of ten (10) days following the date upon which the Lender gives the Borrower written Notice of Default. In this Section 9, Notice of Default shall be deemed to have been given (i) on the date of personal delivery of such written notice to a Guarantor, or (ii) on the date on which a duly authorized representative receipt of the Borrower acknowledges receipt request and the offer of security or indemnity; and (E) Holders of a majority in aggregate principal amount of the then outstanding Notes have not given the Trustee a direction inconsistent with such written notice, or (iii) on request within such 60-day period. The Holders of a majority in aggregate principal amount of the day after sending such written then outstanding Notes by notice to the Borrower by a commonly recognized overnight courier serviceTrustee may, such as Federal Express, Purolator, UPS or the like, or (iv) on the third day after sending such written notice to the Borrower by facsimile (to both numbers set forth in Section 16.7) or by depositing the same in the United States mail, postage prepaid, for delivery to the Borrower.
(b) Failure to observe, perform and comply with any of the obligations evidenced or secured by a Loan Document, other than as provided in Sections 9.1(a) above; provided that such default has not been cured prior to the expiration of thirty (30) days following the date upon which the Lender gives the Borrower written Notice of Default.
(c) Failure to duly and punctually pay, observe and discharge all Indebtedness and other obligations of the Borrower to any third party, unless the same is being contested in good faith by appropriate proceedings and the Borrower has set aside on its books adequate reserves with respect to such Indebtedness or other obligations.
(d) The discovery by the Lender of any material inaccuracy in any statement, assurance, representation, covenant, warranty, term or condition by the Borrower contained in this Agreement or in any document delivered or to be delivered by or on behalf of the Borrower pursuant to this Agreement, which inaccuracy would result in a Material Adverse Effect (except that inaccuracies in the Borrower's Due Diligence Documents attributable to the fault or neglect Holders of third-parties shall not constitute a breach of this Section 9.1(d)), or in any other Loan Document, or in any other agreement between the Borrower and the Lender.
(e) The filing of a petition by or against the Borrower or any Affiliate seeking relief under the Federal Bankruptcy Code, 11 U.S.C. ss. 101, et seq., and any amendments thereto, or any similar law or regulation, whether federal, state or local, not dismissed within 30 days.
(f) The commencement of a proceeding by or against the Borrower or any Affiliate under any statute or other law providing for an assignment for the benefit of creditors, the appointment of a receiver, or any other similar law or regulation, whether federal, state or local, not dismissed within 30 days.
(g) The garnishment, attachment, levy or other similar action taken by or on behalf of any creditor all of the BorrowerNotes, rescind an acceleration or waive any Affiliate, existing Default or any of their respective properties which could have a Material Adverse Effect.
(h) Any change in control of the Borrower, Madison Liquidity Investors 104, MACG from that disclosed in Section 2 of this Agreement.
9.2 The Lender may, at its option, terminate its obligation to make advances of the Loan, without notice to the Borrower:
(a) upon the occurrence and continuance of any Event of Default set forth in subsections 9.1
(a) through 9.1(h) above; and its consequences under the Indenture except a continuing Default or (b) upon the occurrence and continuance of any event which, with the giving of notice or the lapse of time, or both, would constitute an Event of Default in the payment of interest or (C) upon premium, if any, on, or the death or disability of ▇▇▇▇▇ ▇principal of, the Notes.
Appears in 1 contract
Sources: Indenture (Latchey LTD)
Events of Default and Remedies. 9.1 The following events Payee shall constitute an "Event have the ------------------------------ right, without demand or notice, to accelerate this Note and to declare the entire unpaid balance hereof and the obligations evidenced hereby immediately due and payable and to seek and obtain payment of Default" under this Agreement, Note upon the occurrence of which shall entitle any of the Lender to pursue any and all rights and remedies, legal and equitable, available to it under any Loan Document or otherwise. The Occurrence following events of an Event Default under this Agreement shall constitute a default under each and every other Loan Document. The Lender's rights and remedies are cumulative and may be exercised concurrently or successively from time to time. Any action by the Lender against any property or party shall not serve to release or discharge any other security, property or party in connection with this transaction. The Events of Default are as follows:
default: (a) Failure the Maker fails to pay the any installment of principal payable under this Note or interest on thereon within twenty (20) days after the Borrower's present or future indebtedness to due date therefor; provided that, without limiting the Lender, whether or not arising pursuant to this terms and conditions of Section 11.07 of the Stock Purchase Agreement, when and as it shall not constitute an event of default hereunder if the same shall be due and payableMaker exercises its rights of offset under Section 11.07 of the Stock Purchase Agreement, whether by acceleration or otherwise; provided that the Maker also complies with all escrow requirements applicable to it set forth in such default has not been cured prior to the expiration of ten (10) days following the date upon which the Lender gives the Borrower written Notice of Default. In this Section 9, Notice of Default shall be deemed to have been given (i) on the date of personal delivery of such written notice to a Guarantor11.07, or (ii) on the date on which a duly authorized representative of the Borrower acknowledges receipt of such written notice, or (iii) on the day after sending such written notice to the Borrower by a commonly recognized overnight courier service, such as Federal Express, Purolator, UPS or the like, or (iv) on the third day after sending such written notice to the Borrower by facsimile (to both numbers set forth in Section 16.7) or by depositing the same in the United States mail, postage prepaid, for delivery to the Borrower.
(b) Failure the Maker admits in writing its inability to observepay its debts generally as they become due, perform and comply with any of the obligations evidenced files a case or secured by petition in bankruptcy or a Loan Document, other than as provided in Sections 9.1(a) above; provided that such default has not been cured prior case or petition to the expiration of thirty (30) days following the date upon which the Lender gives the Borrower written Notice of Default.
(c) Failure to duly and punctually pay, observe and discharge all Indebtedness and other obligations of the Borrower to any third party, unless the same is being contested in good faith by appropriate proceedings and the Borrower has set aside on its books adequate reserves with respect to such Indebtedness or other obligations.
(d) The discovery by the Lender take advantage of any material inaccuracy in any statementbankruptcy, assurancereorganization or insolvency act, representation, covenant, warranty, term or condition by the Borrower contained in this Agreement or in any document delivered or to be delivered by or on behalf of the Borrower pursuant to this Agreement, which inaccuracy would result in a Material Adverse Effect (except that inaccuracies in the Borrower's Due Diligence Documents attributable to the fault or neglect of third-parties shall not constitute a breach of this Section 9.1(d)), or in any other Loan Document, or in any other agreement between the Borrower and the Lender.
(e) The filing of a petition by or against the Borrower or any Affiliate seeking relief under the Federal Bankruptcy Code, 11 U.S.C. ss. 101, et seq., and any amendments thereto, or any similar law or regulation, whether federal, state or local, not dismissed within 30 days.
(f) The commencement of a proceeding by or against the Borrower or any Affiliate under any statute or other law providing for makes an assignment for the benefit of creditors, or consents to the appointment of a receiverreceiver for itself or for all or substantially all of its property or, on a petition in bankruptcy filed against it, is adjudicated a bankrupt, which judgment, order or any other similar law or regulationdecree shall not be appealed within the permitted time period from the date of entry thereof and subsequently vacated. Upon such declaration by the Payee, whether federal, state or local, the obligations evidenced by this Note shall be immediately due and payable. If the indebtedness evidenced by this Note shall not dismissed within 30 days.
be paid on the date when due (g) The garnishment, attachment, levy or other similar action taken by or on behalf of any creditor of the Borrower, any Affiliate, or any of their respective properties which could have a Material Adverse Effect.
(h) Any change in control of the Borrower, Madison Liquidity Investors 104, MACG from that disclosed in Section 2 of this Agreement.
9.2 The Lender may, at its option, terminate its obligation to make advances of the Loan, without notice subject to the Borrower:
proviso set forth in clause (a) upon above), thereafter the occurrence and continuance unpaid principal balance of any Event of Default such indebtedness shall bear interest at the rate per annum set forth in subsections 9.1
Section 1.1 above plus 3% until the past due portion of the indebtedness (aincluding all accrued and unpaid interest) through 9.1(h) above; or (b) upon is paid, but in no event shall such rate of interest exceed the occurrence highest rate permitted by applicable law. The parties hereto agree that the failure timely to make a payment hereunder would cause harm to the Payee, and continuance it is impracticable and extremely difficult to fix the actual damages that would be sustained should the Maker fail timely to make a required payment hereunder. Accordingly, the Maker shall pay to the Payee an amount equal to 5% of any delinquent payment due under this Note as a late payment fee and/or liquidated damages. The parties agree that the foregoing liquidated damages are reasonable considering all the facts and circumstances existing as of the date hereof and constitute the parties' good faith estimate of the actual damages reasonably expected to result from the failure to pay timely. In the event of any event whichof default hereunder, with the giving Maker agrees to pay to the Payee all expenses incurred by the Payee, including, without limitation, reasonable fees and disbursements of notice or counsel, incurred by the lapse Payee in the enforcement and collection of time, or both, would constitute an Event of Default or (C) upon the death or disability of ▇▇▇▇▇ ▇this Note.
Appears in 1 contract
Sources: Note (Guest Supply Inc)
Events of Default and Remedies. 9.1 The following events shall constitute an "Event In the event Lessee or any ------------------------------ guarantor of Default" Lessee's obligation under this Agreement, the occurrence of which Lease shall entitle the Lender to pursue any and all rights and remedies, legal and equitable, available to it under any Loan Document or otherwise. The Occurrence of an Event Default under this Agreement shall constitute a default under each and every other Loan Document. The Lender's rights and remedies are cumulative and may be exercised concurrently or successively from time to time. Any action by the Lender against any property or party shall not serve to release or discharge any other security, property or party in connection with this transaction. The Events of Default are as follows:
(a) Failure fail to pay the principal make any rental or interest on the Borrower's present or future indebtedness to the Lender, whether or not arising pursuant to this Agreement, when and as other payment due hereunder within ten days after the same shall be due and payable, whether by acceleration or otherwise; provided that such default has not been cured prior to the expiration of ten (10) days following the date upon which the Lender gives the Borrower written Notice of Default. In this Section 9, Notice of Default shall be deemed to have been given (i) on the date of personal delivery of such written notice to a Guarantorbecome due, or (iib) on the date on which a duly authorized representative of the Borrower acknowledges receipt of such written noticeadmit its inability to pay its debts, or (iii) on the day after sending such written notice to the Borrower by a commonly recognized overnight courier service, such as Federal Express, Purolator, UPS or the like, or (iv) on the third day after sending such written notice to the Borrower by facsimile (to both numbers set forth in Section 16.7) or by depositing the same in the United States mail, postage prepaid, for delivery to the Borrower.
(b) Failure to observe, perform and comply with any of the obligations evidenced or secured by a Loan Document, other than as provided in Sections 9.1(a) above; provided that such default has not been cured prior to the expiration of thirty (30) days following the date upon which the Lender gives the Borrower written Notice of Default.
(c) Failure to duly and punctually pay, observe and discharge all Indebtedness and other obligations of the Borrower to any third party, unless the same is being contested in good faith by appropriate proceedings and the Borrower has set aside on its books adequate reserves with respect to such Indebtedness or other obligations.
(d) The discovery by the Lender of any material inaccuracy in any statement, assurance, representation, covenant, warranty, term or condition by the Borrower contained in this Agreement or in any document delivered or to be delivered by or on behalf of the Borrower pursuant to this Agreement, which inaccuracy would result in a Material Adverse Effect (except that inaccuracies in the Borrower's Due Diligence Documents attributable to the fault or neglect of third-parties shall not constitute a breach of this Section 9.1(d)), or in any other Loan Document, or in any other agreement between the Borrower and the Lender.
(e) The filing of a petition by or against the Borrower or any Affiliate seeking relief under the Federal Bankruptcy Code, 11 U.S.C. ss. 101, et seq., and any amendments thereto, or any similar law or regulation, whether federal, state or local, not dismissed within 30 days.
(f) The commencement of a proceeding by or against the Borrower or any Affiliate under any statute or other law providing for make an assignment for the benefit of its creditors, or (d) have its leasehold estate taken upon execution or other process of law against Lessee, except eminent domain, or (e) abandon the appointment Premises during the Term hereof, or (f) have any receiver appointed in any proceeding commenced against it based upon its insolvency and if such receiver is not discharged within ninety (90) days after appointment, or (g) breach or fail to perform any of a receiverthe agreements, covenants and/or provisions herein or comply with any applicable rule or regulation pertaining to the Building or the Project, other than the agreement to pay /s/ SHA JR rental or any other similar law payment due hereunder, and Lessee fails to use its best efforts to cure such breach or regulation, whether federal, state failure within fifteen days after written notice from Lessor or local, not dismissed within 30 days.
(g) The garnishment, attachment, levy or other similar action taken by or on behalf of any creditor of the Borrower, any Affiliate, or any of their respective properties which could have a Material Adverse Effect.
(h) Any change in control any proceedings are flied against Lessee or any guarantor of this Lease under the Bankruptcy code or any similar provisions of any future federal bankruptcy law, or (i) fail to vacate the Premises immediately upon the expiration of the Borrower, Madison Liquidity Investors 104, MACG from that disclosed in Section 2 Term or the earlier termination of this Agreement.
9.2 The Lender mayLease, at its optionby lapse of time or otherwise; then Lessor, terminate its obligation to make advances of in any such event(s), shall have the Loan, without notice to the Borroweroption to:
(aI) upon the occurrence and continuance of any Event of Default set forth in subsections 9.1
(a) through 9.1(h) above; or (b) upon the occurrence and continuance of any event which, with the giving of notice or the lapse of time, or both, would constitute an Event of Default or (C) upon the death or disability of ▇▇▇▇▇ ▇for rents as they become due;
(II) Terminate this Lease, resume possession of the Premises (together with all additions, alterations, fixtures and improvements thereto) for its own account and recover immediately from Lessee any and all sums and damages for violation of Lessee's obligations hereunder in existence or due at the time of termination and damages for Lessee's default in an amount equal to the difference between the Rent for which provision is made in this Lease and fair rental value of the Premises for the remainder of the Lease term, together with all other charges, rental payments, costs and expenses herein agreed to be paid by Lessee, all costs and expenses of Lessor in connection with any attempts to re-lease or relet the Premises (including, but not limited to, broker's fees, advertising costs and cleaning expenses), the costs of recovering the Premises, and the costs of repairs and renovations reasonably necessary in connection with any re-leasing or reletting;
(III) Resume possession and re-lease or re-rent the Premises for the remainder of the Lease term for the account of Lessee and recover from Lessee at the end of the Lease term or at the time each payment of rent becomes due under this Lease (adjusted to present value), as the Lessor may elect, the difference between the rent for which provision is made in this Lease and the rent received on the re-leasing or re-renting, together with all costs and expenses of Lessor in connection with such re-leasing or re- rental and collection of rent and the cost of all repairs or renovations reasonably necessary in connection with the releasing or re-rental, and if this option is exercised, Lessor shall, in addition, be entitled to recover from Lessee immediately any other damages occasioned by or resulting from the abandonment or a breach or default other than a default in the payment of rent;
(IV) Accelerate the whole or any part of Rent, Additional Rent and Operating Costs for the entire unexpired balance of the Term, as well as all other charges, payments, costs and expenses to be paid by Lessee hereunder, including but not limited to damages for violation of Lessee's obligations hereunder in existence at the time of acceleration, so that all sums due and payable under this Lease will be treated as payable in advance on the date of acceleration and this Lease will remain in effect. For the purposes of determining the amounts due upon acceleration, Rent, Additional Rent and Lessee's pro rata share of Operating Costs shall be treated as fixed at the levels in effect on the date of acceleration for the remaining term of this Lease; but to the extent required by law, the total amount so accelerated will be reduced to present value; or
(V) Without terminating this Lease, enter upon the Premises, without being liable for prosecution or any claim for damages therefor (whether caused by the negligence of Lessor or otherwise), and do whatever Lessee is obligated to do under the terms of this Lease, in which event Lessee shall reimburse Lessor on demand for any expenses which Lessor may incur in thus effecting compliance with the terms of this Lease. Notwithstanding the foregoing, with respect to re-lease or re-renting the Premises, Lessor and Lessee agree that Lessor shall only be required to use the same efforts Lessor then uses to lease other properties Lessor owns or manages (or if the Premises is then managed for Lessor, then Lessor shall instruct such manager to use the same efforts such manager then uses to lease other space or properties which it owns or manages); provided, however, that Lessor (or its manager) shall not be required to give any preference or priority to the showing or leasing of the Premises over any other space that Lessor (or its manager) may be leasing or have available and may place a suitable prospective tenant in any such available space regardless of when such alternative space becomes available; provided, further, that Lessor shall not be required to observe any instruction given by Lessee about such re-letting or accept any tenant unless such offered tenant has a creditworthiness acceptable to Lessor, leases the entire Premises, agrees to use the Premises in a manner consistent with the Lease, and leases the Premises at the same or greater rent, for no more than the current term and on the same terms and conditions of this Lease without the expenditure by Lessor for tenant improvements or broker's commissions. /s/ SHA JR The remedies for which provision is made in this Article shall not be exclusive and in addition thereto Lessor may pursue such other remedies as are now or hereinafter provided by law, equity or statute in the event of any breach, default or abandonment by Lessee.
Appears in 1 contract
Events of Default and Remedies. 9.1 The Termination - Time is of the essence herein and it is understood and agreed that Secured Party may, at its option and notwithstanding any inconsistent terms in any agreement between Debtor and Chrysler Corporation and/or Secured Party with respect to the receivable underlying any Receivable Purchase Advance by Secured Party, terminate this Agreement, refuse to advance funds hereunder, convert outstanding installment payment obligations to payment on Vehicle sale obligations, and declare the aggregate of all Advances outstanding hereunder immediately due and payable upon the occurrence of any of the following events shall constitute (each hereinafter called an "Event of Default" ), and that Debtor's liabilities under this sentence shall constitute additional obligations of Debtor secured under this Agreement, the occurrence of which shall entitle the Lender to pursue any and all rights and remedies, legal and equitable, available to it under any Loan Document or otherwise. The Occurrence of an Event Default under this Agreement shall constitute a default under each and every other Loan Document. The Lender's rights and remedies are cumulative and may be exercised concurrently or successively from time to time. Any action by the Lender against any property or party shall not serve to release or discharge any other security, property or party in connection with this transaction. The Events of Default are as follows:.
(a) Failure Debtor shall fail to pay make any payment to Secured Party, whether constituting the principal amount of any Advance, interest thereon or interest on the Borrower's present or future indebtedness to the Lender, whether or not arising pursuant to this Agreementany other payment due hereunder, when and as due in accordance with the same terms of this Agreement or with any demand permitted to be made by Secured Party under this Agreement or any Promissory Note, or shall fail to pay when due any other amount owing to Secured Party under any other agreement between Secured Party and Debtor, or shall fail in the due performance or compliance with any other term or condition hereof or thereof, or shall be due and payable, whether by acceleration in default in the payment of any liabilities constituting indebtedness for money borrowed or otherwise; provided that such default has not been cured prior the deferred payment of the purchase price of property or a rental payment with respect to property material to the expiration conduct of ten (10) days following the date upon which the Lender gives the Borrower written Notice of Default. In this Section 9, Notice of Default shall be deemed to have been given (i) on the date of personal delivery of such written notice to a Guarantor, or (ii) on the date on which a duly authorized representative of the Borrower acknowledges receipt of such written notice, or (iii) on the day after sending such written notice to the Borrower by a commonly recognized overnight courier service, such as Federal Express, Purolator, UPS or the like, or (iv) on the third day after sending such written notice to the Borrower by facsimile (to both numbers set forth in Section 16.7) or by depositing the same in the United States mail, postage prepaid, for delivery to the Borrower.Debtor's business;
(b) Failure to observe, perform and comply with A tax lien or notice thereof shall have been filed against any of the obligations evidenced Debtor's property or secured by a Loan Documentproceeding in bankruptcy, other than as provided in Sections 9.1(a) above; provided that such default has not been cured prior to the expiration of thirty (30) days following the date upon which the Lender gives the Borrower written Notice of Default.
(c) Failure to duly and punctually pay, observe and discharge all Indebtedness and other obligations of the Borrower to any third party, unless the same is being contested in good faith by appropriate proceedings and the Borrower has set aside on its books adequate reserves with respect to such Indebtedness insolvency or other obligations.
(d) The discovery by the Lender of any material inaccuracy in any statement, assurance, representation, covenant, warranty, term or condition by the Borrower contained in this Agreement or in any document delivered or to receivership shall be delivered by or on behalf of the Borrower pursuant to this Agreement, which inaccuracy would result in a Material Adverse Effect (except that inaccuracies in the Borrower's Due Diligence Documents attributable to the fault or neglect of third-parties shall not constitute a breach of this Section 9.1(d)), or in any other Loan Document, or in any other agreement between the Borrower and the Lender.
(e) The filing of a petition instituted by or against the Borrower Debtor or any Affiliate seeking relief under the Federal Bankruptcy Code, 11 U.S.C. ss. 101, et seq., and any amendments thereto, Debtor's property or any similar law or regulation, whether federal, state or local, not dismissed within 30 days.
(f) The commencement of a proceeding by or against the Borrower or any Affiliate under any statute or other law providing for an assignment shall have been made by Debtor for the benefit of creditors;
(c) In the event that Secured Party deems itself insecure for any reason or the Vehicles are deemed by Secured Party to be in danger of misuse, loss, seizure or confiscation or other disposition not authorized by this Agreement;
(d) Termination of any franchise authorizing Debtor to sell Vehicles;
(e) A misrepresentation by Debtor for the appointment purpose of obtaining credit or an extension of credit or a receiverrefusal by Debtor to execute documents relating to the Collateral and/or Secured Party's security interest therein or to furnish financial information to Secured Party at reasonable intervals or to permit persons designated by Secured Party to examine Debtor's books or records and to make periodic inspections of the Collateral; or
(f) Debtor, without Secured Party's prior written consent, shall guarantee, endorse or otherwise become surety for or upon the obligations of others except as may be done in the ordinary course of Debtor's business, shall transfer or otherwise dispose of any proprietary, partnership or share interest Debtor has in his business, or all or substantially all of the assets thereof, shall enter into any merger or consolidation, if a corporation, or shall make any substantial disbursements or use of funds of Debtor's business, except as may be done in the ordinary course of Debtor's business, or assign this Agreement in whole or in part or any obligation hereunder. Upon the occurrence of an Event of Default, Secured Party may take immediate possession of said Vehicles without demand or further notice and without legal process; and for the purpose and furtherance thereof, Debtor shall, if Secured Party so requests, assemble the Vehicles and make them available to Secured Party at a reasonably convenient place designated by Secured Party and Secured Party shall have the right, and Debtor hereby authorizes and empowers Secured Party to enter upon the premises wherever said Vehicles may be, to remove same. In addition, Secured Party or its assigns shall have all the rights and remedies applicable under the Uniform Commercial Code or under any other similar statute or at common law or regulationin equity or under this Agreement. Such rights and remedies shall be cumulative. Debtor hereby agrees that it shall pay all expenses and reimburse Secured Party for any expenditures, whether federalincluding reasonable attorneys fees and legal expenses, state or local, not dismissed within 30 days.
(g) The garnishment, attachment, levy or other similar action taken by or on behalf in connection with Secured Party's exercise of any creditor of the Borrower, any Affiliate, or any of their respective properties which could have a Material Adverse Effect.
(h) Any change in control of the Borrower, Madison Liquidity Investors 104, MACG from that disclosed in Section 2 of its rights and remedies under this Agreement.
9.2 The Lender may, at its option, terminate its obligation to make advances of the Loan, without notice to the Borrower:
(a) upon the occurrence and continuance of any Event of Default set forth in subsections 9.1
(a) through 9.1(h) above; or (b) upon the occurrence and continuance of any event which, with the giving of notice or the lapse of time, or both, would constitute an Event of Default or (C) upon the death or disability of ▇▇▇▇▇ ▇.
Appears in 1 contract
Sources: Security Agreement and Master Credit Agreement (Sonic Automotive Inc)
Events of Default and Remedies. 9.1 The (a) Any of the following events of default by the Lessee shall constitute an "“Event of Default" ” and give rise to the rights on the part of the Lessor described in Section 25(b) hereof:
(i) default in the payment of any amount payable by the Lessee under this Agreement, Section 10(c); or
(ii) default in the payment of any other amount payable by the Lessee hereunder and the continuance of such default for 5 days; or
(iii) default in the payment or performance of any other liability or other obligation or covenant of the Lessee to the Lessor hereunder and the continuance of such default for 30 days after the occurrence thereof; or
(iv) the Lessee admits insolvency or bankruptcy or is unable to pay its debts as they mature, or makes an assignment for the benefit of which shall entitle creditors or applies for or consents to the Lender appointment of a trustee or receiver for the Lessee, or for the major part of its property other than the trustees pursuant to pursue any the Mortgage and all rights and remediesDeed of Trust; or
(v) bankruptcy, legal and equitablereorganization, available to it arrangement, insolvency or liquidation proceedings, or other proceedings for relief under any Loan Document bankruptcy law or otherwise. The Occurrence similar law for the relief of an Event Default under this Agreement shall constitute a default under each debtors, are instituted by or against the Lessee, and every other Loan Document. The Lender's rights and remedies if instituted against the Lessee are cumulative and may be exercised concurrently allowed against the Lessee or successively from time are consented to time. Any action or are not dismissed, stayed or otherwise nullified within 60 days after such institution; or
(vi) any representation or warranty made by the Lender against Lessee in this Lease, or in any property related instrument, or party shall not serve to release in any report, certificate, financial statement or discharge any other security, property or party instrument furnished in connection with this transaction. The Events of Default are as follows:Lease shall prove to be false or misleading in any material respect; or
(avii) Failure a default or event of default under any instrument evidencing indebtedness for borrowed money (or under the provisions of any agreement pursuant to pay which such instrument was issued) in excess of $10,000,000 and providing the principal or interest on holder thereof with recourse against the Borrower's present or future Lessee shall cause such indebtedness to become due prior to its stated maturity; or
(viii) one or more final judgments for the Lender, whether or not arising pursuant to this Agreement, when payment of money shall be rendered against the Lessee in an aggregate amount in excess of $10,000,000 and as the same shall be due and payable, whether by acceleration or otherwise; provided that such default has not been cured prior to the expiration remain undischarged for a period of ten (10) 30 days following the date upon during which the Lender gives the Borrower written Notice of Default. In this Section 9, Notice of Default shall be deemed to have been given (i) on the date of personal delivery execution of such written notice to a Guarantor, or (ii) on the date on which a duly authorized representative of the Borrower acknowledges receipt of such written notice, or (iii) on the day after sending such written notice to the Borrower by a commonly recognized overnight courier service, such as Federal Express, Purolator, UPS or the like, or (iv) on the third day after sending such written notice to the Borrower by facsimile (to both numbers set forth in Section 16.7) or by depositing the same in the United States mail, postage prepaid, for delivery to the Borrowerjudgment shall not be effectively stayed.
(b) Failure to observeUpon the occurrence of any Event of Default, perform and comply with the Lessor may in its discretion do any one or more of the following:
(i) treat the Event of Default as an event under Section 20(a) hereof, entitling Lessor to the consequent benefits of Section 20(b) hereof and in general proceed by appropriate judicial proceedings, either at law or in equity, to enforce performance or observance by the Lessee of the applicable provisions of this Lease, or to recover damages for the breach of any thereof; or
(ii) by notice to the Lessee terminate this Lease, whereupon the Lessee’s interest and all rights of the Lessee and Persons claiming through or under the Lessee to the use of the Nuclear Fuel shall forthwith terminate but the Lessee shall remain liable with respect to obligations evidenced and liabilities, actual or secured by a Loan Documentcontingent, other than as provided in Sections 9.1(a) above; provided that such default has not been cured which arose under this Lease on or prior to the expiration date of thirty such termination and the Lessee’s obligations set forth in Section 11 and this Section 25(b)(ii) and, until the earlier of (301) days following Lessor’s taking possession of the Nuclear Fuel or Lessee’s delivering the Nuclear Fuel as set forth below or (2) final and uncontested payment of the amounts referred to in (A) and (B) below, Sections 9, 13, 14 and 17; and upon such termination the Lessor shall have the immediate right of possession of the Nuclear Fuel (to the extent not prohibited by law) and the right, at the Lessor’s election, either to enter the Generating Facility or any other premises where the Nuclear Fuel or any portion thereof is located and remove the Nuclear Fuel or such portion thereof there located (to the extent not prohibited by law) or cause the same to be done by any Person entitled by law so to do, in which case the Lessor shall not be responsible for any damage to the Generating Facility or such premises, except for damage resulting from the Lessor’s willful misconduct or gross negligence (the Lessee hereby agreeing to indemnify and hold the Lessor harmless from all losses and liabilities in respect of any such damage to the Generating Facility, such premises or the Nuclear Fuel or injury to the Lessor’s, the Lessee’s or such other Person’s employees sustained in the course of such removal, except any such damage resulting from the Lessor’s willful misconduct or gross negligence, provided that the Lessee hereby further agrees that the misconduct or negligence of any Assignee shall not be imputed to the Lessor), or to require the Lessee, at the Lessee’s expense, to deliver the Nuclear Fuel or any portion thereof, properly containerized and insulated for shipping, at the Generating Facility and consigned to a Person specified by the Lessor and licensed to receive such Nuclear Fuel, in which case the risk of loss shall be upon the Lessee until such delivery is made; and the Lessor may thenceforth hold, possess and enjoy the Nuclear Fuel (to the extent not prohibited by law) and may sell the Lessor’s interest in the Nuclear Fuel or any portion thereof upon any terms deemed satisfactory to the Lessor, free from any rights of the Lessee and any Person claiming through or under the Lessee; but the Lessor shall, nevertheless, have the right to recover forthwith from the Lessee:
(A) any and all Basic Rent, Additional Rent, Advance Rent and all other amounts payable by the Lessee hereunder which may be due and unpaid immediately prior to such termination or which may then be accrued and unpaid;
(B) as liquidated damages for loss of the bargain and not as a penalty, an amount equal to the excess of (x) the sum of (i) the Stipulated Loss Value of the Nuclear Fuel as of the date upon of such termination of this Lease plus (ii) the Termination Rent, over (y) the amount, if any, realized by the Lessor in a sale of the Nuclear Fuel (at which the Lender gives Lessor may be a purchaser), without set-off, defense or reduction other than a deduction from the Borrower written Notice sale price of all the costs of such sale, including reasonable legal fees, commissions, sales taxes and other customary charges; it being understood that the Lessor shall have no obligation to conduct any such sale, and that the Lessor may, in lieu of conducting such sale, transfer and convey title to, and its entire ownership interest in, the Nuclear Fuel to the Lessee or any trustee or liquidator therefor upon the terms and conditions set forth in Section 21, but that, if the Lessor conducts such sale, the Nuclear Fuel may be sold free and clear of all rights of the Lessee; and
(C) any and all other damages and expenses (including, without limitation, reasonable attorneys’ fees and expenses), which the Lessor shall have sustained by reason of the breach of any provision of this Lease. The Lessee hereby waives, to the full extent not prohibited by law, any right it may now or hereafter have to require the sale, in mitigation of damages, of the Nuclear Fuel or any portion thereof consequent to an Event of Default.
(c) Failure Pending Lessor’s exercise of any available remedy to duly and punctually paytake or grant to a third party possession of any Nuclear Fuel, observe and discharge all Indebtedness and other obligations the Lessee shall be responsible for the storage of the Borrower to any third party, unless the same is being contested in good faith by appropriate proceedings and the Borrower has set aside on its books adequate reserves with respect to such Indebtedness or other obligationsNuclear Fuel.
(d) The discovery by the Lender of any material inaccuracy remedies herein provided in any statement, assurance, representation, covenant, warranty, term or condition by the Borrower contained in this Agreement or in any document delivered or to be delivered by or on behalf favor of the Borrower pursuant to this Agreement, which inaccuracy would result Lessor in a Material Adverse Effect (except that inaccuracies in the Borrower's Due Diligence Documents attributable to the fault or neglect case of third-parties shall not constitute a breach of this Section 9.1(d)), or in any other Loan Document, or in any other agreement between the Borrower and the Lender.
(e) The filing of a petition by or against the Borrower or any Affiliate seeking relief under the Federal Bankruptcy Code, 11 U.S.C. ss. 101, et seq., and any amendments thereto, or any similar law or regulation, whether federal, state or local, not dismissed within 30 days.
(f) The commencement of a proceeding by or against the Borrower or any Affiliate under any statute or other law providing for an assignment for the benefit of creditors, the appointment of a receiver, or any other similar law or regulation, whether federal, state or local, not dismissed within 30 days.
(g) The garnishment, attachment, levy or other similar action taken by or on behalf of any creditor of the Borrower, any Affiliate, or any of their respective properties which could have a Material Adverse Effect.
(h) Any change in control of the Borrower, Madison Liquidity Investors 104, MACG from that disclosed in Section 2 of this Agreement.
9.2 The Lender may, at its option, terminate its obligation to make advances of the Loan, without notice to the Borrower:
(a) upon the occurrence and continuance of any Event of Default set forth in subsections 9.1
(a) through 9.1(h) above; or (b) upon the occurrence and continuance of any event which, with the giving of notice or the lapse of time, or both, would constitute an Event of Default as hereinabove set forth shall not be deemed to be exclusive, but shall be cumulative and shall be in addition to all other remedies in its favor existing at law, in equity or (C) upon the death or disability of ▇▇▇▇▇ ▇in bankruptcy.
Appears in 1 contract
Events of Default and Remedies. 9.1 8.1 The entire unpaid principal amount of this Note, together with all accrued interest hereon, at the option of the holder of this Note exercised by written notice to the Maker at its principal executive offices, shall forthwith become and be due and payable if any one or more of the following events shall constitute an (herein called "Event Events of Default" under this Agreement") shall have occurred (for any reason whatsoever and whether such happening shall be voluntary or involuntary or come about 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) and be continuing at the occurrence time of which shall entitle the Lender such notice, that is to pursue any and all rights and remedies, legal and equitable, available to it under any Loan Document or otherwise. The Occurrence of an Event Default under this Agreement shall constitute a default under each and every other Loan Document. The Lender's rights and remedies are cumulative and may be exercised concurrently or successively from time to time. Any action by the Lender against any property or party shall not serve to release or discharge any other security, property or party in connection with this transaction. The Events of Default are as followssay:
(a) Failure to pay if default shall be made in the due and punctual payment of the principal or interest on the Borrower's present or future indebtedness to the Lender, whether or not arising pursuant to of this Agreement, Note when and as the same shall be become due and payable, whether at maturity, by acceleration or otherwise; provided that such default has not been cured prior to the expiration of ten (10) days following the date upon which the Lender gives the Borrower written Notice of Default. In this Section 9, Notice of Default shall be deemed to have been given (i) on the date of personal delivery of such written notice to a Guarantor, or (ii) on the date on which a duly authorized representative of the Borrower acknowledges receipt of such written notice, or (iii) on the day after sending such written notice to the Borrower by a commonly recognized overnight courier service, such as Federal Express, Purolator, UPS or the like, or (iv) on the third day after sending such written notice to the Borrower by facsimile (to both numbers set forth in Section 16.7) or by depositing the same in the United States mail, postage prepaid, for delivery to the Borrower.;
(b) Failure to observe, perform if default shall be made in the due and comply with punctual payment of any of the obligations evidenced or secured by a Loan Document, other than interest on this Note when and as provided in Sections 9.1(a) above; provided that such default has not been cured prior to the expiration of thirty (30) days following the date upon which the Lender gives the Borrower written Notice of Default.interest shall become due and payable;
(c) Failure to duly and punctually pay, observe and discharge all Indebtedness and other obligations if default shall be made in the performance or observance of any of the Borrower other covenants, agreements or conditions of the Maker contained in this Note, and such default shall have continued for a period of 30 days after notice thereof by the holder hereof to any third party, unless the same is being contested in good faith by appropriate proceedings and the Borrower has set aside on its books adequate reserves with respect to such Indebtedness or other obligations.Maker;
(d) The discovery if any representation made by the Lender of Maker contained herein shall prove to be inaccurate in any material inaccuracy in any statementrespect when made, assurance, representation, covenant, warranty, term or condition by the Borrower contained in if this Agreement or in any document delivered or Note shall cease to be delivered by or on behalf of enforceable in accordance with its terms against the Borrower pursuant to this Agreement, which inaccuracy would result in a Material Adverse Effect (except that inaccuracies in the Borrower's Due Diligence Documents attributable to the fault or neglect of third-parties shall not constitute a breach of this Section 9.1(d))Maker, or the Maker shall so state in any other Loan Document, or in any other agreement between the Borrower and the Lender.writing;
(e) The filing if an Event of a petition by Default under any of the other Notes shall have occurred and be continuing, if the effect thereof is to cause the holder or against holders thereof to cause such obligations, respectively, to become due prior to the Borrower date of stated maturity (unless such holder or any Affiliate seeking relief under the Federal Bankruptcy Code, 11 U.S.C. ss. 101, et seq., and any amendments thereto, or any similar law or regulation, whether federal, state or local, not dismissed within 30 days.holders shall subsequently have waived such Event of Default);
(f) The commencement if the Maker shall:
(i) admit in writing its inability to pay its debts generally as they become due or it shall generally not pay its debts as such debts became due;
(ii) file a petition in bankruptcy or a petition to take advantage of a proceeding by or against the Borrower or any Affiliate under any statute or other law providing for insolvency act;
(iii) make an assignment for the benefit of creditors, ;
(iv) consent to the appointment of a receiverreceiver of itself or of the whole or any substantial part of its property;
(v) on a petition in bankruptcy filed against it, be adjudicated a bankrupt; or
(vi) file a petition or answer seeking reorganization or arrangement under the federal bankruptcy laws or any other similar applicable law or regulationstatute of the United States of America or any State, whether federal, state district or local, not dismissed within 30 days.territory thereof;
(g) The garnishmentif a court of competent jurisdiction shall enter, attachment, levy except at the direct or other similar action taken by or on behalf of any creditor indirect request of the Borrowerholder of this Note, any Affiliatean order, judgment, or decree appointing, without the consent of the Maker, a receiver of the Maker or of the whole or any substantial part of their respective properties which could have its property, or approving a Material Adverse Effect.petition filed against it seeking reorganization or arrangement of the Maker under the federal bankruptcy laws or any other applicable law or statute of the United States of America or any State, district or territory thereof, and such order, judgment or decree shall not be vacated or set aside or stayed within 60 days from the date of entry thereof; or
(h) Any change in if, under the provisions of any other law for the relief or aid of debtors, any court of competent jurisdiction shall assume custody or control of the Borrower, Madison Liquidity Investors 104, MACG Maker or of the whole or any substantial part of its property and such custody or control shall not be terminated or stayed within 60 days from that disclosed the date of assumption of such custody or control.
8.2 In the case any one or more of the Events of Default specified in Section 2 8.1 hereof shall have occurred and be continuing, the holder of this Agreement.
9.2 The Lender mayNote may proceed to protect and enforce its rights either by suit in equity and/or by action at law, whether for the specific performance of any covenant or agreement contained in this Note, or the holder of this Note may at its option, terminate its obligation to make advances of the Loan, without option exercised by written notice to the Borrower:
(a) Maker at its principal executive offices declare the unpaid principal balance hereof, together with all accrued interest thereon, immediately due and payable, and otherwise proceed to enforce the payment of all sums due upon this Note or to enforce any other legal or equitable right of the occurrence and continuance holder of any Event of Default set forth in subsections 9.1
(a) through 9.1(h) above; or (b) upon this Note. In the occurrence and continuance of any event which, with the giving of notice or the lapse of time, or both, would constitute an Event of Default shall have occurred and the holder of this Note shall employ attorneys, or (C) incur other costs and expenses for the collection of payments due or to become due, or for the enforcement or performance or observance of any obligation or agreement of the Maker under this Note, the Maker agrees that it will pay to the holder, on demand, the reasonable fees of such attorney together with all other costs and expenses incurred by the holder.
8.3 No remedy herein conferred upon the death holder of this Note is intended to be exclusive of any other remedy and each and every such remedy shall be cumulative and shall be in addition to every other remedy given hereunder or disability now or hereafter existing at law or in equity or by statute or otherwise.
8.4 No course of ▇▇▇▇▇ ▇dealing between the Maker and the holder of this Note or any delay on the part of the Holder hereof in exercising any rights hereunder shall operate as a waiver of any rights of the holder hereof.
Appears in 1 contract
Sources: Securityholders Agreement (Electronic Retailing Systems International Inc)
Events of Default and Remedies. 9.1 The following events shall constitute an "Event (a) If any one or more of Default" under this Agreement, the occurrence of which shall entitle the Lender to pursue any and all rights and remedies, legal and equitable, available to it under any Loan Document or otherwise. The Occurrence of an Event Default under this Agreement shall constitute a default under each and every other Loan Document. The Lender's rights and remedies are cumulative and may be exercised concurrently or successively from time to time. Any action by the Lender against any property or party shall not serve to release or discharge any other security, property or party in connection with this transaction. The Events of Default are shall occur or shall exist, the Secured Party may then, or at any time thereafter, so long as follows:
(a) Failure to pay the principal or interest on the Borrower's present or future indebtedness to the Lender, whether or not arising pursuant to this Agreement, when and as the same shall be due and payable, whether by acceleration or otherwise; provided that such default has not been cured prior to shall continue, foreclose the expiration of Secured Party’s lien or security interest in the Collateral in any way permitted by law, or upon ten (10) days following the date upon which the Lender gives the Borrower written Notice of Default. In this Section 9, Notice of Default shall be deemed to have been given (i) on the date of personal delivery of such written notice to a Guarantor, or (ii) on the date on which a duly authorized representative of the Borrower acknowledges receipt of such written notice, or (iii) on the day after sending such prior written notice to the Borrower by a commonly recognized overnight courier serviceBorrowers, sell any or all Collateral at private sale at any time or place in one or more sales, at such price or prices and upon such terms, either for cash or on credit, as Federal Expressthe Secured Party, Purolatorin its sole discretion, UPS or the likemay elect, or (iv) sell any or all Collateral at public auction, either for cash or on credit, as the third day after sending Secured Party, in its sole discretion, may elect, and at any such written notice to sale, the Borrower by facsimile (to both numbers set forth in Section 16.7) Secured Party may bid for and become the Secured Party of any or by depositing all such Collateral. Pending any such action the same in Secured Party may liquidate the United States mail, postage prepaid, for delivery to the BorrowerCollateral.
(b) Failure If any one or more of the Events of Default shall occur or shall exist, the Secured Party may then, or at any time thereafter, so long as such default shall continue, grant extensions to, or adjust claims of, or make compromises or settlements with, debtors, guarantors or any other parties with respect to observeCollateral or any securities, perform and comply with guarantees or insurance applying thereon, without notice to or the consent of the Borrowers, without affecting the Borrowers’ liability under this Agreement or the Notes. The Borrowers waive notice of acceptance, of nonpayment, protest or notice of protest of any Accounts or Chattel Paper or any of the obligations evidenced or secured by a Loan Document, their contract rights and any other than as provided in Sections 9.1(a) above; provided that such default has not been cured prior notices to the expiration of thirty (30) days following the date upon which the Lender gives the Borrower written Notice of DefaultBorrowers may be entitled.
(c) Failure to duly and punctually pay, observe and discharge all Indebtedness and other obligations If any one or more of the Borrower Events of Default shall occur or shall exist and be continuing, then in any such event, the Secured Party shall have such additional rights and remedies in respect of the Collateral or any portion thereof as are provided by the Code and such other rights and remedies in respect thereof which it may have at law or in equity or under this Agreement, including without limitation the right to enter any third partypremises where Equipment, unless Inventory and/or Fixtures are located and take possession and control thereof without demand or notice and without prior judicial hearing or legal proceedings, which the same is being contested in good faith by appropriate proceedings and the Borrower has set aside on its books adequate reserves with respect to such Indebtedness or other obligationsBorrowers expressly waive.
(d) The discovery Secured Party shall apply the Proceeds of any sale or liquidation of the Collateral, and, subject to Section 7, any Proceeds received by the Lender Secured Party from insurance, first to the payment of any material inaccuracy in any statement, assurance, representation, covenant, warranty, term or condition the reasonable costs and expenses incurred by the Borrower contained Secured Party in this Agreement connection with such sale or in any document delivered or collection, including without limitation reasonable attorneys’ fees and legal expenses, second to be delivered by or on behalf the payment of the Borrower pursuant Debt, whether on account of principal or interest or otherwise as the Secured Party in its sole discretion may elect, and then to this Agreementpay the balance, which inaccuracy would result in a Material Adverse Effect (except that inaccuracies in the Borrower's Due Diligence Documents attributable if any, to the fault Borrowers or neglect of third-parties as otherwise required by law. If such Proceeds are insufficient to pay the amounts required by law, the Borrowers shall not constitute a breach of this Section 9.1(d)), or in be liable for any other Loan Document, or in any other agreement between the Borrower and the Lenderdeficiency.
(e) The filing Upon the occurrence of any Event of Default and delivery of a petition written request, the Borrowers shall promptly upon demand by the Secured Party assemble the Equipment, Inventory and Fixtures and make them available to the Secured Party at a place or against places to be designated by the Borrower Secured Party. The rights of the Secured Party under this paragraph to have the Equipment, Inventory and Fixtures assembled and made available to it is of the essence of this Agreement and the Secured Party may, at their election, enforce such right by an action in equity for injunctive relief or any Affiliate seeking relief under the Federal Bankruptcy Code, 11 U.S.C. ss. 101, et seq., and any amendments thereto, or any similar law or regulation, whether federal, state or local, not dismissed within 30 daysspecific performance.
(f) The commencement If any one or more of a proceeding by the Events of Default shall occur or against the Borrower or shall exist and be continuing, then in any Affiliate under any statute or other law providing for an assignment for the benefit of creditorsevent, the appointment of a receiver, or any other similar law or regulation, whether federal, state or local, not dismissed within 30 daysSecured Party have the right to use and operate under all trade names under which the Borrowers do business.
(g) The garnishment, attachment, levy or other similar action taken by or on behalf of any creditor of the Borrower, any Affiliate, or any of their respective properties which could have a Material Adverse Effect.
(h) Any change in control of the Borrower, Madison Liquidity Investors 104, MACG from that disclosed in Section 2 of this Agreement.
9.2 The Lender may, at its option, terminate its obligation to make advances of the Loan, without notice to the Borrower:
(a) upon the occurrence and continuance of any Event of Default set forth in subsections 9.1
(a) through 9.1(h) above; or (b) upon the occurrence and continuance of any event which, with the giving of notice or the lapse of time, or both, would constitute an Event of Default or (C) upon the death or disability of ▇▇▇▇▇ ▇.
Appears in 1 contract
Events of Default and Remedies. 9.1 The Any one or more of the following events and circumstances shall constitute an "Event of Default" :
A. the Borrower shall fail to pay when due any amounts required to be paid by the Borrower under this Agreementthe Notes, the occurrence Borrower Documents or any other indebtedness of which the Borrower to the Banks or any material indebtedness to any third party whether any such indebtedness is now existing or hereafter arises and whether direct or indirect, due or to become due, absolute or contingent, primary or secondary or joint or joint and several; or
B. the Borrower shall entitle the Lender fail to pursue observe or perform any and all rights and remediescovenant, legal and equitable, available condition or agreement to be observed or performed by it under any Loan Document or otherwise. The Occurrence of an Event Default under this Agreement shall constitute a default under each and every other Loan Document. The Lender's rights and remedies are cumulative and may be exercised concurrently or successively from time to time. Any action by the Lender against any property or party shall not serve to release or discharge any other security, property or party in connection with this transaction. The Events of Default are as follows:
(a) Failure to pay the principal or interest on the Borrower's present or future indebtedness to the Lender, whether or not arising pursuant to this Agreement, when and as the same shall be due and payable, whether by acceleration or otherwise; provided that such default has not been cured prior to the expiration of ten (10) days following the date upon which the Lender gives the Borrower written Notice of Default. In this Section 9, Notice of Default shall be deemed to have been given (i) on the date of personal delivery of such written notice to a Guarantor, or (ii) on the date on which a duly authorized representative of the Borrower acknowledges receipt of such written notice, Documents or (iii) on the day after sending such written notice to the Borrower by any other document related hereto for a commonly recognized overnight courier service, such as Federal Express, Purolator, UPS or the like, or (iv) on the third day after sending such written notice to the Borrower by facsimile (to both numbers set forth in Section 16.7) or by depositing the same in the United States mail, postage prepaid, for delivery to the Borrower.
(b) Failure to observe, perform and comply with any of the obligations evidenced or secured by a Loan Document, other than as provided in Sections 9.1(a) above; provided that such default has not been cured prior to the expiration period of thirty (30) days following the date upon which the Lender gives after written notice, specifying such default and requesting that it be remedied, given to the Borrower written Notice by any of Default.the Banks, unless the Banks shall agree in writing to an extension of such time prior to its expiration, or for such longer period as may be reasonable necessary to remedy such default (other than defaults which can be cured by a money payment) provided that the Borrower is proceeding with reasonable diligence to remedy the same; or
(cC. the Borrower shall be in default in the performance of any covenants or obligation under any other document or instrument heretofore or hereafter executed and delivered to the Banks by such party in connection with any other loan or credit transaction(s) Failure and such default is not cured within the period, if any, allowed by such documents for the cure thereof; or
D. the Borrower shall file a petition in bankruptcy or for reorganization or for an arrangement pursuant to duly and punctually payany present or future state or federal bankruptcy act or under any similar federal or state law, observe and discharge all Indebtedness and other obligations or shall be adjudicated to be bankrupt or insolvent, or shall make a general assignment for the benefit of its creditors, or shall be unable to pay its debts generally as they become due; or if an order for relief under any present or future federal bankruptcy act or similar state or federal law shall be entered against the Borrower; or if a petition or answer requesting or proposing the entry of such order for relief or the adjudication of the Borrower as a debtor or to be bankrupt or its reorganization under any third partypresent or future state or federal bankruptcy act or any similar federal or state law shall be filed in any court and such petition or answer shall not be discharged or denied within ninety (90) days after the filing thereof; or if a receiver, unless the same is being contested in good faith by appropriate proceedings and trustee or liquidator of the Borrower has set aside on its books adequate reserves with respect to such Indebtedness or other obligations.
(d) The discovery by of all or substantially all of the Lender assets of the Borrower; or the Collateral, or any material inaccuracy part thereof, shall be appointed in any statementproceeding brought against the Borrower and shall not be discharged within ninety (90) days of such appointment; or if the Borrower shall consent to or acquiesce in such appointment; or if any property of the Borrower (including, assurancewithout limitation, representationthe estate or interest of the Borrower in the Collateral, covenant, warranty, term or condition any part thereof) shall be levied upon or attached in any proceeding; or
E. final judgment(s) for the payment of money in excess of $100,000 and not covered by insurance shall be rendered against the Borrower and shall remain undischarged for a period of thirty (30) days during which execution shall not be effectively stayed; or
F. the Borrower shall be or become insolvent (whether in the equity or bankruptcy sense); or
G. any representation or warranty made by the Borrower contained in this Agreement herein or in any document delivered or related hereto shall prove to be delivered untrue or misleading in any material respect, or any statement, certificate or report furnished hereunder or under any of the foregoing documents by or on behalf of the Borrower pursuant shall prove to this Agreementbe untrue or misleading in any material respect on the date when the facts set forth and recited therein are stated or certified; or
H. the Borrower shall liquidate, which inaccuracy would result wind up, merge, dissolve, terminate or suspend its respective business operations, or sell all or substantially all of its respective assets, without the prior written consent of the Banks; or
I. the Borrower shall sell, dispose of, lease, mortgage, assign, sublet or transfer any of its right, title or interest in a Material Adverse Effect or to the Collateral (except that inaccuracies as expressly provided herein or in the Borrower's Due Diligence Documents attributable Security Agreement) without the prior written consent of the Banks; or
J. the Borrower shall fail to pay, withhold, collect or remit any tax or tax deficiency when assessed or due or notice of any state or federal tax lien shall be filed or issued; or
K. any property of the Borrower (including, without limitation, the Collateral), shall be garnished or attached in any proceeding and such garnishment or attachment shall remain undischarged for a period of thirty (30) days during which execution is not effectively stayed; or
L. the outstanding and unpaid loans under Section 2.A. hereof shall exceed the Borrowing Base Amount and the Borrower shall fail within two (2) business days following receipt of written notice to the fault Borrower to pay such loans down to an amount not greater than the Borrowing Base Amount. Upon the occurrence of an Event of Default and at any time thereafter, any one or neglect more of third-parties shall not constitute a breach of this Section 9.1(d)), or in any other Loan Document, or in any other agreement between the Borrower and the Lender.
(e) The filing of a petition by or against the Borrower or any Affiliate seeking relief under the Federal Bankruptcy Code, 11 U.S.C. ss. 101, et seq., and any amendments thereto, or any similar law or regulation, whether federal, state or local, not dismissed within 30 days.
(f) The commencement of a proceeding by or against the Borrower or any Affiliate under any statute or other law providing for an assignment for the benefit of creditors, the appointment of a receiver, or any other similar law or regulation, whether federal, state or local, not dismissed within 30 days.
(g) The garnishment, attachment, levy or other similar action following remedial steps may be taken by or the Agent, on behalf of any creditor the Banks, upon the direction of the Borrower, any Affiliate, or any of their respective properties which could have a Material Adverse Effect.Banks:
(ha) Any change in control of the Borrower, Madison Liquidity Investors 104, MACG from that disclosed in Section 2 of this Agreement.
9.2 The Lender may, at its option, terminate its obligation to make advances of the Loan, without by written notice to the Borrower:, declare all or part of the principal balance of the Notes plus accrued interest thereon to be immediately due and payable, whereupon the same shall become immediately due and payable by the Borrower;
(ab) upon take whatever action at law or in equity as may appear necessary or appropriate to collect the occurrence amounts then due and continuance thereafter to become due under the Notes and/or the other Borrower Documents; and
c) take whatever action in law or in equity as may appear necessary or appropriate to collect any other amounts then due and thereafter to become due under this Agreement and the documents related hereto and to enforce performance and observance of any Event obligation, agreement or covenant of Default set forth in subsections 9.1
(a) through 9.1(h) above; or (b) upon the occurrence and continuance of any event which, with the giving of notice or the lapse of time, or both, would constitute an Event of Default or (C) upon the death or disability of ▇▇▇▇▇ ▇Borrower thereunder.
Appears in 1 contract
Sources: Restated Revolving Credit and Term Loan Agreement (First Team Sports Inc)
Events of Default and Remedies. 9.1 The following events shall constitute an "Event of Default" under this Agreement, the occurrence of which shall entitle the Lender to pursue any and all rights and remedies, legal and equitable, available to it under any Loan Document or otherwise. The Occurrence of an Event Default under this Agreement shall constitute a default under each and every other Loan Document. The Lender's rights and remedies are cumulative and may be exercised concurrently or successively from time to time. Any action by the Lender against any property or party shall not serve to release or discharge any other security, property or party in connection with this transaction. The Events of Default are as follows:
(a) Failure to pay the principal or interest on the Borrower's present or future indebtedness to the Lender, whether or not arising pursuant to this Agreement, when and as the same shall be due and payable, whether by acceleration or otherwise; provided that such default has not been cured prior to the expiration of ten (10) days following the date upon which the Lender gives the Borrower written Notice of Default. In this Section 9, Notice of Default shall be deemed to have been given (i) on the date of personal delivery of such written notice to a Guarantor, or (ii) on the date on which a duly authorized representative of the Borrower acknowledges receipt of such written notice, or (iii) on the day after sending such written notice to the Borrower by a commonly recognized overnight courier service, such as Federal Express, Purolator, UPS or the like, or (iv) on the third day after sending such written notice to the Borrower by facsimile (to both numbers set forth in Section 16.7) or by depositing the same in the United States mail, postage prepaid, for delivery to the Borrower.
(b) Failure to observe, perform and comply with any of the obligations evidenced or secured by a Loan Document, other than as provided in Sections 9.1(a) above; provided that such default has not been cured prior to the expiration of thirty (30) days following the date upon which the Lender gives the Borrower written Notice of Default.
(c) Failure to duly and punctually pay, observe and discharge all Indebtedness and other obligations of the Borrower to any third party, unless the same is being contested in good faith by appropriate proceedings and the Borrower has set aside on its books adequate reserves with respect to such Indebtedness or other obligations.
(d) The discovery by the Lender of any material inaccuracy in any statement, assurance, representation▇▇▇▇▇▇▇▇▇▇▇▇▇▇, covenant▇▇▇▇▇▇▇▇, warranty▇▇▇▇▇▇▇▇, term or condition by the Borrower contained in this Agreement or in any document delivered or to be delivered by or on behalf of the Borrower pursuant to this Agreement, which inaccuracy would result in a Material Adverse Effect (except that inaccuracies in the Borrower's Due Diligence Documents attributable to the fault or neglect of third-parties shall not constitute a breach of this Section 9.1(d)), or in any other Loan Document, or in any other agreement between the Borrower and the Lender.
(e) The filing of a petition by or against the Borrower or any Affiliate seeking relief under the Federal Bankruptcy Code, 11 U.S.C. ss. 101, et seq., and any amendments thereto, or any similar law or regulation, whether federal, state or local, not dismissed within 30 days.
(f) The commencement of a proceeding by or against the Borrower or any Affiliate under any statute or other law providing for an assignment for the benefit of creditors, the appointment of a receiver, or any other similar law or regulation, whether federal, state or local, not dismissed within 30 days.
(g) The garnishment, attachment, levy or other similar action taken by or on behalf of any creditor of the Borrower, any Affiliate, or any of their respective properties which could have a Material Adverse Effect.
(h) Any change in control of the Borrower, Madison Liquidity Investors 104, MACG from that disclosed in Section 2 of this Agreement.
9.2 The Lender may, at its option, terminate its obligation to make advances of the Loan, without notice to the Borrower:
(a) upon the occurrence and continuance of any Event of Default set forth in subsections 9.1
(a) through 9.1(h) above; or (b) upon the occurrence and continuance of any event which, with the giving of notice or the lapse of time, or both, would constitute an Event of Default or (C) upon the death or disability of ▇▇▇▇▇ ▇.
Appears in 1 contract
Sources: Loan Agreement (Madison Liquidity Investors 104 LLC)
Events of Default and Remedies. 9.1 7.1 The following events shall constitute an "Event Principal amount of Default" under this Agreementthe Loan outstanding, the occurrence of which shall entitle plus all interest, costs and all other money owing to the Lender to pursue any and all rights and remedies, legal and equitable, available to it under any Loan Document or otherwise. The Occurrence of an Event Default under this Agreement shall constitute a default under each and every other Loan Document. The Lender's rights and remedies are cumulative and may be exercised concurrently or successively from time to time. Any action immediately become payable upon demand by the Lender against Lender, unless otherwise waived in writing by the Lender, in any property or party shall not serve to release or discharge any other security, property or party in connection with this transaction. The Events of Default are as follows:the following events (each an “Event of Default”):
(a) Failure to pay if the principal Borrower shall default in any payment of Principal, interest or interest on the Borrower's present or future indebtedness to the Lender, whether or not arising pursuant to this Agreement, other amount when and as the same shall be due is required hereunder and payable, whether by acceleration or otherwise; provided that such default has not been cured prior to the expiration continued for a period of ten seven (107) days following the date upon which after notice in writing has been given by the Lender gives the Borrower written Notice of Default. In this Section 9, Notice of Default shall be deemed to have been given (i) on the date of personal delivery of such written notice to a Guarantor, or (ii) on the date on which a duly authorized representative of the Borrower acknowledges receipt of such written notice, or (iii) on the day after sending such written notice to the Borrower by a commonly recognized overnight courier service, specifying such as Federal Express, Purolator, UPS or the like, or (iv) on the third day after sending such written notice to the Borrower by facsimile (to both numbers set forth in Section 16.7) or by depositing the same in the United States mail, postage prepaid, for delivery to the Borrower.default;
(b) Failure to observe, perform and comply with any of the obligations evidenced or secured by a Loan Document, other than as provided in Sections 9.1(a) above; provided that such default has not been cured prior to the expiration of thirty (30) days following the date upon which the Lender gives if the Borrower written Notice of Default.
(c) Failure to duly and punctually pay, observe and discharge all Indebtedness and other obligations of the Borrower to any third party, unless the same is being contested in good faith by appropriate proceedings and the Borrower has set aside on its books adequate reserves with respect to such Indebtedness shall become insolvent or other obligations.
(d) The discovery by the Lender of any material inaccuracy in any statement, assurance, representation, covenant, warranty, term or condition by the Borrower contained in this Agreement or in any document delivered or to be delivered by or on behalf of the Borrower pursuant to this Agreement, which inaccuracy would result in shall make a Material Adverse Effect (except that inaccuracies in the Borrower's Due Diligence Documents attributable to the fault or neglect of third-parties shall not constitute a breach of this Section 9.1(d)), or in any other Loan Document, or in any other agreement between the Borrower and the Lender.
(e) The filing of a petition by or against the Borrower or any Affiliate seeking relief under the Federal Bankruptcy Code, 11 U.S.C. ss. 101, et seq., and any amendments thereto, or any similar law or regulation, whether federal, state or local, not dismissed within 30 days.
(f) The commencement of a proceeding by or against the Borrower or any Affiliate under any statute or other law providing for an general assignment for the benefit of its creditors, or if an order be made or an effective resolution be passed for the appointment winding-up, merger or amalgamation of the Borrower or if the Borrower shall be declared bankrupt or if a receivercustodian or receiver be appointed for the Borrower under the Bankruptcy and Insolvency Act (Canada), or if a compromise or arrangement is proposed by the Borrower to its creditors or any class of its creditors, or if a receiver or other officer with like powers shall be appointed for the Borrower; or
(c) if the Borrower defaults in observing or performing any other similar law covenant or regulation, whether federal, state agreement of this Agreement on its part to be observed or local, not dismissed within 30 daysperformed and such default has continued for a period of seven (7) days after notice in writing has been given by the Lender to the Borrower specifying such default.
(g) 7.2 The garnishmentremedies, attachmentrights and powers of the Lender under this Agreement and at law and in equity are cumulative and not alternative and are not in substitution for any other remedies, levy rights or other similar action taken by powers of the Lender and no delay or on behalf omission in exercise of any creditor such remedy, right or power will exhaust such remedies, rights or powers or be construed as a waiver of the Borrower, any Affiliate, or any of their respective properties which could have a Material Adverse Effectthem.
(h) Any change in control of the Borrower, Madison Liquidity Investors 104, MACG from that disclosed in Section 2 of this Agreement.
9.2 The Lender may, at its option, terminate its obligation to make advances of the Loan, without notice to the Borrower:
(a) upon the occurrence and continuance of any Event of Default set forth in subsections 9.1
(a) through 9.1(h) above; or (b) upon the occurrence and continuance of any event which, with the giving of notice or the lapse of time, or both, would constitute an Event of Default or (C) upon the death or disability of ▇▇▇▇▇ ▇.
Appears in 1 contract
Sources: Credit Facility Agreement (Niocorp Developments LTD)
Events of Default and Remedies. 9.1 The following events (a) If any of Lessor's warranties and representations in Sections 3 and 4 hereof shall constitute be untrue, or it Lessor shall breach any covenant in Section 5 hereof and if such breach shall continue for a period of fifteen (15) days after written notice thereof from AFI or if any guarantor of Lessors' obligations hereunder shall be in default under any guaranty hereof, then Lessor shall, upon demand by AFI, purchase the Lease(s) to which such misrepresentation or breach pertains from AFI for cash in an "Event amount equal to any due but unpaid rentals or other amounts under the lease, plus the net present value of Default" the then unpaid balance of the rentals due under this Agreementthe Lease) for the remainder of their original terms and AFI's booked residual value of the Equipment, both discounted at the occurrence rate of which 6% per annum or such other rate as the parties hereto shall entitle agree upon in writing from time to time with respect to such Lease(s) and Equipment at the Lender to pursue time of original assignment and, in addition, any and all rights commission or other compensation paid or payable to or for the benefit of Lessor with respect to such Leases(s) shall be forfeited and remedieswaived, legal and equitable, available AFI shall recover from Lessor any such commission or other compensation previously paid to it under any Loan Document or otherwisefor the benefit of Lessor by or on behalf of AFI. The Occurrence Any Lease reacquired by Lessor in accordance with the provisions of an Event Default under this Agreement shall constitute a default under each be reassigned by AFI to Lessor without recourse and every other Loan Document. The Lender's rights and remedies are cumulative and may be exercised concurrently without warranty or successively from time to time. Any action by the Lender against representation of any property or party shall not serve to release or discharge any other security, property or party in connection with this transaction. The Events of Default are as follows:
(a) Failure to pay the principal or interest on the Borrower's present or future indebtedness to the Lender, whether or not arising pursuant to this Agreement, when and as the same shall be due and payable, whether by acceleration or otherwise; provided that such default has not been cured prior to the expiration of ten (10) days following the date upon which the Lender gives the Borrower written Notice of Default. In this Section 9, Notice of Default shall be deemed to have been given (i) on the date of personal delivery of such written notice to a Guarantor, or (ii) on the date on which a duly authorized representative of the Borrower acknowledges receipt of such written notice, or (iii) on the day after sending such written notice to the Borrower by a commonly recognized overnight courier service, such as Federal Express, Purolator, UPS or the like, or (iv) on the third day after sending such written notice to the Borrower by facsimile (to both numbers set forth in Section 16.7) or by depositing the same in the United States mail, postage prepaid, for delivery to the Borrowerkind whatsoever.
(b) Failure to observe, perform and comply with Upon the occurrence of any of the obligations evidenced material misrepresentation or secured by a Loan Document, other than breach as provided in Sections 9.1(asubparagraph (a) above; provided that such default has not , AFI may elect to rescind any pending approvals (whether given to Lessor orally or in writing) with respect to other Leases which have been cured prior presented by Lessor to the expiration of thirty (30) days following the date upon which the Lender gives the Borrower written Notice of DefaultAFI for assignment or direct lease by AFI pursuant to this Agreement.
(c) Failure to duly and punctually pay, observe and discharge all Indebtedness and In the event a Lessee defaults in the payment of rentals or other obligations sums under the Lease or in the performance of the Borrower to any third partyLessee's other covenants under the Lease, unless then AFI may exercise all rights and remedies under the same is being contested in good faith by appropriate proceedings Lease and all rights and remedies of a secured party under the Borrower has set aside on its books adequate reserves Uniform Commercial Code with respect to such Indebtedness or other obligationsthe Lease and the Equipment.
(d) The discovery by the Lender of any material inaccuracy in any statementabove remedies are cumulative and not alternative, assurance, representation, covenant, warranty, term or condition by the Borrower contained in this Agreement and AFI shall also have available all remedies at law or in any document delivered or to be delivered by or on behalf of the Borrower pursuant to this Agreement, which inaccuracy would result in a Material Adverse Effect (except that inaccuracies in the Borrower's Due Diligence Documents attributable to the fault or neglect of third-parties shall not constitute a breach of this Section 9.1(d)), or in any other Loan Document, or in any other agreement between the Borrower and the Lenderequity.
(e) The filing of a petition by or against the Borrower or any Affiliate seeking relief under the Federal Bankruptcy Code, 11 U.S.C. ss. 101, et seq., and any amendments thereto, or any similar law or regulation, whether federal, state or local, not dismissed within 30 days.
(f) The commencement of a proceeding by or against the Borrower or any Affiliate under any statute or other law providing for an assignment for the benefit of creditors, the appointment of a receiver, or any other similar law or regulation, whether federal, state or local, not dismissed within 30 days.
(g) The garnishment, attachment, levy or other similar action taken by or on behalf of any creditor of the Borrower, any Affiliate, or any of their respective properties which could have a Material Adverse Effect.
(h) Any change in control of the Borrower, Madison Liquidity Investors 104, MACG from that disclosed in Section 2 of this Agreement.
9.2 The Lender may, at its option, terminate its obligation to make advances of the Loan, without notice to the Borrower:
(a) upon the occurrence and continuance of any Event of Default set forth in subsections 9.1
(a) through 9.1(h) above; or (b) upon the occurrence and continuance of any event which, with the giving of notice or the lapse of time, or both, would constitute an Event of Default or (C) upon the death or disability of ▇▇▇▇▇ ▇.
Appears in 1 contract
Events of Default and Remedies. 9.1 The (a) Any of the following events of default by the Lessee shall constitute an "“Event of Default" ” and give rise to the rights on the part of the Lessor described in Section 25(b) hereof:
(i) default in the payment of any amount payable by the Lessee under this Agreement, Section 10(c); or
(ii) default in the payment of any other amount payable by the Lessee hereunder and the continuance of such default for 5 days; or
(iii) default in the payment or performance of any other liability or other obligation or covenant of the Lessee to the Lessor hereunder and the continuance of such default for 30 days after the occurrence thereof; or
(iv) the Lessee admits insolvency or bankruptcy or is unable to pay its debts as they mature, or makes an assignment for the benefit of which shall entitle creditors or applies for or consents to the Lender appointment of a trustee or receiver for the Lessee, or for the major part of its property other than the trustees pursuant to pursue any the Mortgage and all rights and remediesDeed of Trust; or
(v) bankruptcy, legal and equitablereorganization, available to it arrangement, insolvency or liquidation proceedings, or other proceedings for relief under any Loan Document bankruptcy law or otherwise. The Occurrence similar law for the relief of an Event Default under this Agreement shall constitute a default under each debtors, are instituted by or against the Lessee, and every other Loan Document. The Lender's rights and remedies if instituted against the Lessee are cumulative and may be exercised concurrently allowed against the Lessee or successively from time are consented to time. Any action or are not dismissed, stayed or otherwise nullified within 60 days after such institution; or
(vi) any representation or warranty made by the Lender against Lessee in this Lease, or in any property related instrument, or party shall not serve to release in any report, certificate, financial statement or discharge any other security, property or party instrument furnished in connection with this transaction. The Events of Default are as follows:Lease shall prove to be false or misleading in any material respect; or
(avii) Failure a default or event of default under any instrument evidencing indebtedness for borrowed money (or under the provisions of any agreement pursuant to pay which such instrument was issued) in excess of $10,000,000 and providing the principal or interest on holder thereof with recourse against the Borrower's present or future Lessee shall cause such indebtedness to become due prior to its stated maturity; or
(viii) one or more final judgments for the Lender, whether or not arising pursuant to this Agreement, when payment of money shall be rendered against the Lessee in an aggregate amount in excess of $10,000,000 and as the same shall be due and payable, whether by acceleration or otherwise; provided that such default has not been cured prior to the expiration remain undischarged for a period of ten (10) 30 days following the date upon during which the Lender gives the Borrower written Notice of Default. In this Section 9, Notice of Default shall be deemed to have been given (i) on the date of personal delivery execution of such written notice to a Guarantor, or (ii) on the date on which a duly authorized representative of the Borrower acknowledges receipt of such written notice, or (iii) on the day after sending such written notice to the Borrower by a commonly recognized overnight courier service, such as Federal Express, Purolator, UPS or the like, or (iv) on the third day after sending such written notice to the Borrower by facsimile (to both numbers set forth in Section 16.7) or by depositing the same in the United States mail, postage prepaid, for delivery to the Borrowerjudgment shall not be effectively stayed.
(b) Failure to observeUpon the occurrence of any Event of Default, perform and comply with the Lessor may in its discretion do any one or more of the following:
(i) treat the Event of Default as an event under Section 20(a) hereof, entitling Lessor to the consequent benefits of Section 20(b) hereof and in general proceed by appropriate judicial proceedings, either at law or in equity, to enforce performance or observance by the Lessee of the applicable provisions of this Lease, or to recover damages for the breach of any thereof; or
(ii) by notice to the Lessee terminate this Lease, whereupon the Lessee’s interest and all right of the Lessee and Persons claiming through or under the Lessee to the use of the Nuclear Fuel shall forthwith terminate but the Lessee shall remain liable with respect to obligations evidenced and liabilities, actual or secured by a Loan Documentcontingent, other than as provided in Sections 9.1(a) above; provided that such default has not been cured which arose under this Lease on or prior to the expiration date of thirty such termination and the Lessee’s obligations set forth in Section 11 and this Section 25(b)(ii) and, until the earlier of (301) days following Lessor’s taking possession of the Nuclear Fuel or Lessee’s delivering the Nuclear Fuel as set forth below or (2) final and uncontested payment of the amounts referred to in (A) and (B) below, Sections 9, 13, 14 and 17; and upon such termination the Lessor shall have the immediate right of possession of the Nuclear Fuel (to the extent not prohibited by law) and the right, at the Lessor’s election, either to enter the Generating Facility or any other premises where the Nuclear Fuel or any portion thereof is located and remove the Nuclear Fuel or such portion thereof there located (to the extent not prohibited by law) or cause the same to be done by any Person entitled by law so to do, in which case the Lessor shall not be responsible for any damage to the Generating Facility or such premises, except for damage resulting from the Lessor’s willful misconduct or gross negligence (the Lessee hereby agreeing to indemnify and hold the Lessor harmless from all losses and liabilities in respect of any such damage to the Generating Facility, such premises or the Nuclear Fuel or injury to the Lessor’s, the Lessee’s or such other Person’s employees sustained in the course of such removal, except any such damage resulting from the Lessor’s willful misconduct or gross negligence, provided that the Lessee hereby further agrees that the misconduct or negligence of the Assignee shall not be imputed to the Lessor), or to require the Lessee, at the Lessee’s expense to deliver the Nuclear Fuel or any portion thereof, properly containerized and insulated for shipping, at the Generating Facility and consigned to a Person specified by the Lessor and licensed to receive such Nuclear Fuel, in which case the risk of loss shall be upon the Lessee until such delivery is made; and the Lessor may thenceforth hold, possess and enjoy the Nuclear Fuel (to the extent not prohibited by law) and may sell the Lessor’s interest in the Nuclear Fuel or any portion thereof upon any terms deemed satisfactory to the Lessor, free from any rights of the Lessee and any Person claiming through or under the Lessee; but the Lessor shall, nevertheless, have the right to recover forthwith from the Lessee:
(A) any and all Basic Rent, Additional Rent, Advance Rent and all other amounts payable by the Lessee hereunder which may be due and unpaid immediately prior to such termination or which may then be accrued and unpaid;
(B) as liquidated damages for loss of the bargain and not as a penalty, an amount equal to the excess of (x) the sum of (i) the Stipulated Loss Value of the Nuclear Fuel as of the date upon of such termination of this Lease plus (ii) the Termination Rent, over (y) the amount, if any, realized by the Lessor in a sale of the Nuclear Fuel (at which the Lender gives Lessor may be a purchaser), without set-off, defense or reduction other than a deduction from the Borrower written Notice sale price of all the costs of such sale, including legal fees, commissions, sales taxes and other customary charges; it being understood that the Lessor shall have no obligation to conduct any such sale, and that the Lessor may, in lieu of conducting such sale, transfer and convey title to, and its entire ownership interest in, the Nuclear Fuel to the Lessee or any trustee or liquidator therefor upon the terms and conditions set forth in Section 21, but that, if the Lessor conducts such sale, the Nuclear Fuel may be sold free and clear of all rights of the Lessee; and
(C) any and all other damages and expenses (including, without limitation, attorneys’ fees and expenses), which the Lessor shall have sustained by reason of the breach of any provision of this Lease. The Lessee hereby waives, to the full extent not prohibited by law, any right it may now or hereafter have to require the sale, in mitigation of damages, of the Nuclear Fuel or any portion thereof consequent to an Event of Default.
(c) Failure Pending Lessor’s exercise of any available remedy to duly and punctually paytake or deliver to a third party possession of any Nuclear Fuel, observe and discharge all Indebtedness and other obligations the Lessee shall be responsible for the storage of the Borrower to any third party, unless the same is being contested in good faith by appropriate proceedings and the Borrower has set aside on its books adequate reserves with respect to such Indebtedness or other obligationsNuclear Fuel.
(d) The discovery by the Lender of any material inaccuracy remedies herein provided in any statement, assurance, representation, covenant, warranty, term or condition by the Borrower contained in this Agreement or in any document delivered or to be delivered by or on behalf favor of the Borrower pursuant to this Agreement, which inaccuracy would result Lessor in a Material Adverse Effect (except that inaccuracies in the Borrower's Due Diligence Documents attributable to the fault or neglect case of third-parties shall not constitute a breach of this Section 9.1(d)), or in any other Loan Document, or in any other agreement between the Borrower and the Lender.
(e) The filing of a petition by or against the Borrower or any Affiliate seeking relief under the Federal Bankruptcy Code, 11 U.S.C. ss. 101, et seq., and any amendments thereto, or any similar law or regulation, whether federal, state or local, not dismissed within 30 days.
(f) The commencement of a proceeding by or against the Borrower or any Affiliate under any statute or other law providing for an assignment for the benefit of creditors, the appointment of a receiver, or any other similar law or regulation, whether federal, state or local, not dismissed within 30 days.
(g) The garnishment, attachment, levy or other similar action taken by or on behalf of any creditor of the Borrower, any Affiliate, or any of their respective properties which could have a Material Adverse Effect.
(h) Any change in control of the Borrower, Madison Liquidity Investors 104, MACG from that disclosed in Section 2 of this Agreement.
9.2 The Lender may, at its option, terminate its obligation to make advances of the Loan, without notice to the Borrower:
(a) upon the occurrence and continuance of any Event of Default set forth in subsections 9.1
(a) through 9.1(h) above; or (b) upon the occurrence and continuance of any event which, with the giving of notice or the lapse of time, or both, would constitute an Event of Default as hereinabove set forth shall not be deemed to be exclusive, but shall be cumulative and shall be in addition to all other remedies in its favor existing at law, in equity or (C) upon the death or disability of ▇▇▇▇▇ ▇in bankruptcy.
Appears in 1 contract
Events of Default and Remedies. 9.1 The (a) If any one or more of the following events shall have occurred and be continuing with respect to the Securities, it shall constitute an "“Event of Default" under this Agreement” hereunder:
(i) the Bank shall consent to the appointment of a receiver or other similar official (other than a conservator) in any liquidation, insolvency or similar proceeding with respect to the occurrence Bank or all or substantially all of which the property of the Bank; or
(ii) a court having jurisdiction in the premises or any administrative or governmental agency or body shall entitle enter a decree or order for the Lender appointment of a receiver or other similar official (other than a conservator) in any liquidation, insolvency or similar proceeding with respect to pursue any the Bank or all or substantially all of the property of the Bank, and all rights such decree or order shall have remained in force undischarged or unstayed for a period of 60 days; then and remedies, legal and equitable, available to it under any Loan Document or otherwise. The Occurrence of an Event Default under this Agreement shall constitute a default under in each and every other Loan Document. The Lender's rights and remedies are cumulative and may be exercised concurrently or successively from time to time. Any action by the Lender against any property or party shall not serve to release or discharge any other security, property or party in connection with this transaction. The Events case that an Event of Default are as follows:
(a) Failure to pay the principal or interest on the Borrower's present or future indebtedness to the Lender, whether or not arising pursuant to this Agreement, when and as the same shall be due and payable, whether by acceleration or otherwise; provided that such default has not been cured prior to the expiration of ten (10) days following the date upon which the Lender gives the Borrower written Notice of Default. In this Section 9, Notice of Default shall be deemed to have been given described in clause (i) on the date of personal delivery of such written notice to a Guarantor), or (ii) occurs and is continuing, unless the principal of and interest on the date Securities shall have already become due and payable, the Required Holders, by notice in writing to the Bank signed by such Holders, may declare the principal of and interest on which a duly authorized representative the Securities to be due and payable immediately, and upon any such declaration the same shall become and shall be immediately due and payable, anything in this Agreement or in the Securities to the contrary notwithstanding; provided however, that (i) the foregoing remedy shall not apply, and the Holders right to accelerate as aforesaid shall be postponed, in the event that the provisions of Section 2.10 require that the payment of any indebtedness or any other obligations to the Holders must be subordinated and postponed until satisfaction in full of Senior Debt or other obligations described in Section 2.10, and (ii) the principal amount and accrued interest on the Securities shall not become due and payable pursuant to this Section 8(a) without the prior written consent of the Borrower acknowledges receipt OTS if the Bank is undercapitalized, significantly undercapitalized or critically undercapitalized as described in 12 C.F.R. §565.4(b), fails to meet its regulatory capital requirements under 12 C.F.R. Part 567, or, if after giving effect to such payment, the Bank would fail to meet any of such written notice, standards or (iii) on the day after sending such written notice to the Borrower extent otherwise prohibited by a commonly recognized overnight courier service, such as Federal Express, Purolator, UPS or the like, or (iv) on capital regulations of the third day after sending such written notice OTS. The Bank shall apply to the Borrower by facsimile (OTS for any such required prior written consent upon receipt from the registered holder of the Securities of the notice referred to both numbers set forth in Section 16.7) or by depositing the same in the United States mail, postage prepaid, for delivery to the Borrowerpreceding sentence.
(b) Failure The Holders of a majority in aggregate principal amount of the Securities by written notice to observe, perform the Bank may rescind an acceleration and comply its consequences if the rescission would not conflict with any judgment or decree of a court of competent jurisdiction already rendered and if all existing Events of Default with respect to Securities have been cured or waived except nonpayment of principal, premium, if any, or interest that has become due solely because of acceleration. Upon any such rescission, the parties hereto shall be restored respectively to their several positions and rights hereunder, and all rights, remedies and powers of the obligations evidenced or secured by a Loan Document, other than parties hereto shall continue as provided in Sections 9.1(a) above; provided that though no such default has not proceeding had been cured prior to the expiration of thirty (30) days following the date upon which the Lender gives the Borrower written Notice of Defaulttaken.
(c) Failure to duly and punctually pay, observe and discharge all Indebtedness and other obligations of the Borrower to any third party, unless the same is being contested in good faith by appropriate proceedings and the Borrower has set aside on its books adequate reserves with respect to such Indebtedness or other obligations.
(d) The discovery by the Lender of any material inaccuracy in any statement, assurance, representation, covenant, warranty, term or condition by the Borrower contained in this Agreement or in any document delivered or to be delivered by or on behalf of the Borrower pursuant to this Agreement, which inaccuracy would result in a Material Adverse Effect (except that inaccuracies in the Borrower's Due Diligence Documents attributable to the fault or neglect of third-parties shall not constitute a breach of this Section 9.1(d)), or in any other Loan Document, or in any other agreement between the Borrower and the Lender.
(e) The filing of a petition by or against the Borrower or any Affiliate seeking relief under the Federal Bankruptcy Code, 11 U.S.C. ss. 101, et seq., and any amendments thereto, or any similar law or regulation, whether federal, state or local, not dismissed within 30 days.
(f) The commencement of a proceeding by or against the Borrower or any Affiliate under any statute or other law providing for an assignment for the benefit of creditors, the appointment of a receiver, or any other similar law or regulation, whether federal, state or local, not dismissed within 30 days.
(g) The garnishment, attachment, levy or other similar action taken by or on behalf of any creditor of the Borrower, any Affiliate, or any of their respective properties which could have a Material Adverse Effect.
(h) Any change in control of the Borrower, Madison Liquidity Investors 104, MACG from that disclosed in Section 2 of this Agreement.
9.2 The Lender may, at its option, terminate its obligation to make advances of the Loan, without notice to the Borrower:
(a) upon the occurrence and continuance of any Event of Default set forth in subsections 9.1
(a) through 9.1(h) above; or (b) upon the occurrence and continuance of any event which, with the giving of notice or the lapse of time, or both, would constitute If an Event of Default occurs and is continuing, subject to Section 2.10 (which shall control over and limit the exercise of any rights or (C) remedies by the Holders under this Section 8), each of the Holders may pursue any available remedy to collect the payment of principal of or interest on, the Securities or to enforce the performance of any provision of the Securities or this Agreement. A delay or omission by any of the Holders in exercising any right or remedy occurring upon an Event of Default shall not impair the death right or disability remedy or constitute a waiver of ▇▇▇▇▇ ▇or acquiescence on the Event of Default. All remedies are cumulative to the extent permitted by law.
Appears in 1 contract
Events of Default and Remedies. 9.1 (a) The term "Event of Default", wherever used herein, shall mean any of the following events under this Lease: (i) Lessee breaches its obligation to pay Rent or any other sum when due and fails to cure the breach within ten (10) days; or (ii) Lessee breaches any of its insurance obligations under Section 9; or (iii) Lessee breaches any of its other obligations and fails to cure that breach within thirty (30) days after written notice from Lessor to Lessee; or (iv) any representation or warranty made by Lessee in connection with this Lease shall constitute be false or misleading in any material respect; or (v) Lessee or any guarantor or other obligor for any of the obligations hereunder (collectively "Guarantor") becomes insolvent or ceases to do business as a going concern; or (vi) a petition is filed by or against Lessee or any Guarantor under any bankruptcy, insolvency or similar laws and in the event of an involuntary petition, the petition is not dismissed within sixty (60) days of the filing date; or (vii) if Lessee or any Guarantor is a natural person, any death or incompetency of Lessee or such Guarantor; or (viii)) there occurs an "Event of Default" under this Agreement, and as defined in any other agreement by and between Lessor and Lessee.
(b) Upon the occurrence of which shall entitle the Lender to pursue any and all rights and remedies, legal and equitable, available to it under any Loan Document or otherwise. The Occurrence of an Event Default under this Agreement shall constitute a default under each and every other Loan Document. The Lender's rights and remedies are cumulative and may be exercised concurrently or successively from time to time. Any action by the Lender against any property or party shall not serve to release or discharge any other security, property or party in connection with this transaction. The Events of Default are as follows:
(a) Failure to pay the principal or interest on the Borrower's present or future indebtedness to the Lender, whether or not arising pursuant to this Agreement, when and so long as the same shall be due and payablecontinuing, whether by acceleration Lessor may, at its option, at any time thereafter, exercise one or otherwise; provided that such default has not been cured prior to more of the expiration of ten (10) days following the date upon which the Lender gives the Borrower written Notice of Default. In this Section 9remedies, Notice of Default as Lessor in its sole discretion shall be deemed to have been given lawfully elect: (i) on demand that Lessee immediately pay as liquidated damages, for loss of a bargain and not as a penalty, an amount equal to the date Stipulated Loss Value of personal delivery the Aircraft, computed as of the Basic Term Rent Date prior to such written notice demand together with all Rent and other amounts due and payable for all periods up to a Guarantor, or and including the Basic Term Rent Date following such demand; (ii) on demand that Lessee pay all amounts due for failure to maintain or return the date on which a duly authorized representative of Aircraft as provided herein and cause Lessee to assign to Lessor Lessee's rights under any manufacturer's service program contract or any extended warranty contract in force for the Borrower acknowledges receipt of such written notice, or Aircraft; (iii) on proceed by appropriate court action, either at law or in equity, to enforce the day after sending such written notice performance by Lessee of the applicable covenants of this Lease or to the Borrower by a commonly recognized overnight courier service, such as Federal Express, Purolator, UPS or the like, or recover damages for breach hereof; (iv) on the third day after sending such written by notice in writing terminate this Lease, whereupon all rights of Lessee to the Borrower by facsimile (to both numbers set forth in Section 16.7) or by depositing the same in the United States mail, postage prepaid, for delivery to the Borrower.
(b) Failure to observe, perform and comply with any use of the obligations evidenced Aircraft or secured by a Loan Documentany part thereof shall absolutely cease and terminate, other than and Lessee shall immediately return the Aircraft in accordance with Section 10, but Lessee shall remain liable as provided in Sections 9.1(aSection 10; (v) aboverequest Lessee to return the Aircraft to a designated location in accordance with Section 10; provided that such default has not been cured prior (vi) peacefully enter the premises where the Aircraft may be and take possession of the Aircraft; (vii) sell or otherwise dispose of the Aircraft at private or public sale, in bulk or in parcels, with or without notice, and without having the Aircraft present at the place of sale; (viii) lease or keep idle all or part of the Aircraft; (ix) use Lessee's premises for storage pending lease or sale or for holding a sale without liability for rent or costs; (x) collect from Lessee all costs, charges and expenses, including reasonable legal fees and disbursements, incurred by Lessor by reason of the occurrence of any Event of Default or the exercise of Lessor's remedies with respect thereto; and/or (xi) declare any Event of Default under the terms of this Lease to the expiration of thirty (30) days following the date upon which the Lender gives the Borrower written Notice be an "Event of Default" under and as defined in any other agreement between Lessor and Lessee.
(c) Failure Lessor shall have the right to duly and punctually payany proceeds of sale, observe and discharge all Indebtedness and lease or other obligations disposition of the Borrower Aircraft, if any, and shall have the right to apply same in the following order of priorities: (i) to pay all of Lessor's costs, charges and expenses incurred in enforcing its rights under this Lease or in taking, removing, holding, repairing, selling, leasing or otherwise disposing of the Aircraft; then, (ii) to the extent not previously paid by Lessee, to pay Lessor all sums due from Lessee under this Lease; then (iii) to reimburse to Lessee any third party, unless the same is being contested sums previously paid by Lessee as liquidated damages; and (iv) any surplus shall be paid to Lessee. Lessee shall pay any deficiency in good faith by appropriate proceedings (i) and the Borrower has set aside on its books adequate reserves with respect to such Indebtedness or other obligations(ii) immediately.
(d) The discovery by the Lender of any material inaccuracy in any statement, assurance, representation, covenant, warranty, term or condition by the Borrower contained in this Agreement or in any document delivered or to be delivered by or on behalf of the Borrower pursuant to this Agreement, which inaccuracy would result in a Material Adverse Effect (except that inaccuracies in the Borrower's Due Diligence Documents attributable to the fault or neglect of third-parties shall not constitute a breach of this Section 9.1(d)), or in any other Loan Document, or in any other agreement between the Borrower and the Lender.
(e) The filing of a petition by or against the Borrower or any Affiliate seeking relief under the Federal Bankruptcy Code, 11 U.S.C. ss. 101, et seq.foregoing remedies are cumulative, and any amendments theretoor all thereof may be exercised instead of or in addition to each other or any remedies at law, in equity, or any similar law or regulation, whether federal, state or local, not dismissed within 30 days.
(f) The commencement of a proceeding by or against the Borrower or any Affiliate under any statute or other law providing for an assignment for the benefit of creditors, the appointment of a receiver, or any other similar law or regulation, whether federal, state or local, not dismissed within 30 days.
(g) The garnishment, attachment, levy or other similar action taken by or on behalf of any creditor of the Borrower, any Affiliate, or any of their respective properties which could have a Material Adverse Effect.
(h) Any change in control of the Borrower, Madison Liquidity Investors 104, MACG from that disclosed in Section 2 of this Agreement.
9.2 The Lender may, at its option, terminate its obligation to make advances of the Loan, without notice to the Borrower:
(a) upon the occurrence and continuance Waiver of any Event of Default set forth in subsections 9.1
(a) through 9.1(h) above; or (b) upon the occurrence and continuance shall not be a waiver of any event which, with the giving of notice other or the lapse of time, or both, would constitute an subsequent Event of Default or (C) upon the death or disability of ▇▇▇▇▇ ▇Default.
Appears in 1 contract
Events of Default and Remedies. 9.1 The (1) Each of the following events acts or occurrences shall constitute an "Event of Default" under this Agreement, the occurrence of which shall entitle the Lender to pursue any and all rights and remedies, legal and equitable, available to it under any Loan Document or otherwise. The Occurrence of an Event Default under this Agreement shall constitute a default under each and every other Loan Document. The Lender's rights and remedies are cumulative and may be exercised concurrently or successively from time to time. Any action by the Lender against any property or party shall not serve to release or discharge any other security, property or party in connection with this transaction. The Events of Default are as followshereunder:
(a1) Failure to pay default in the principal or interest payment of the Termination Value on the Borrower's present relevant Option Date, or future indebtedness to in the Lenderpayment of the Termination Value on the relevant Cancellation Date or Purchase Closing Date, whether as applicable, or not arising pursuant to this Agreementin the payment of the Termination Value or the Final Rent Payment or the Completion Costs Payment, as applicable, on the relevant Lease Termination Date or Purchase Closing Date, as applicable or in the payment when due of any Interim Rent or Basic Rent; or the default in the payment when due of any Supplemental Rent, or the amount of any Indemnified Risk or of any other amount due hereunder or under any other Operative Document and as the same shall be due and payable, whether by acceleration or otherwise; provided that continuance of such default has for 3 Business Days thereafter; or
(2) the Lessee shall fail to observe or perform any covenant contained in Sections 30(a)(viii) or (ix), 30(b)(ii), 30(c), (d) and (r); or
(3) the Lessee shall fail to observe or perform any covenant or agreement contained or incorporated by reference in this Lease (other than those covered by any other paragraph of this Section 17(a)), and such failure shall not have been cured prior within 30 days after the earlier to the expiration occur of ten (10) days following the date upon which the Lender gives the Borrower written Notice of Default. In this Section 9, Notice of Default shall be deemed to have been given (i) on the date of personal delivery of such written notice thereof has been given to a Guarantor, the Lessee by the Lessor or (ii) the Lessee otherwise becomes aware of any such failure; or
(4) any representation or warranty made or deemed made by the Lessee herein, in any other Operative Document by the Lessee or otherwise in writing in connection with or pursuant to this Lease or any other Operative Document, shall be false or misleading in any material respect on the date on which a duly authorized representative of the Borrower acknowledges receipt of such written notice, made or (iii) on the day after sending such written notice to the Borrower by a commonly recognized overnight courier service, such as Federal Express, Purolator, UPS or the like, or (iv) on the third day after sending such written notice to the Borrower by facsimile (to both numbers set forth in Section 16.7) or by depositing the same in the United States mail, postage prepaid, for delivery to the Borrower.deemed made; or
(b5) Failure to observe, perform and comply with any an Event of Default under the obligations evidenced or secured by a Loan Document, other than as provided in Sections 9.1(a) aboveAgency Agreement; provided that such default has not been cured prior to the expiration of thirty (30) days following the date upon which the Lender gives the Borrower written Notice of Default.or
(cA) Failure to duly and punctually pay, observe and discharge all Indebtedness and other obligations of the Borrower to any third party, unless the same is being contested in good faith by appropriate proceedings and the Borrower has set aside on its books adequate reserves with respect to such Indebtedness or other obligations.
(d) The discovery by the Lender of any material inaccuracy in any statement, assurance, representation, covenant, warranty, term or condition by the Borrower contained in this Agreement or in any document delivered or to be delivered by or on behalf of the Borrower pursuant to this Agreement, which inaccuracy would result in Lessee shall make a Material Adverse Effect (except that inaccuracies in the Borrower's Due Diligence Documents attributable to the fault or neglect of third-parties shall not constitute a breach of this Section 9.1(d)), or in any other Loan Document, or in any other agreement between the Borrower and the Lender.
(e) The filing of a petition by or against the Borrower or any Affiliate seeking relief under the Federal Bankruptcy Code, 11 U.S.C. ss. 101, et seq., and any amendments thereto, or any similar law or regulation, whether federal, state or local, not dismissed within 30 days.
(f) The commencement of a proceeding by or against the Borrower or any Affiliate under any statute or other law providing for an general assignment for the benefit of creditors; or (B) any case or proceeding shall be instituted or consented to by the Lessee seeking to adjudicate it a bankrupt or insolvent, or seeking liquidation, winding up, reorganization, arrangement, adjustment, protection, relief, or composition of it or its debts under any law relating to bankruptcy, insolvency or reorganization or relief of debtors, or seeking the entry of an order for relief or the appointment of a receiver, or any other similar law or regulationtrustee, whether federal, state or local, not dismissed within 30 days.
(g) The garnishment, attachment, levy or other similar action taken by official for it or on behalf for any substantial part of its property; or (C) any creditor of such case or proceeding shall have been instituted against the Borrower, any Affiliate, Lessee and either such case or proceeding shall not be stayed or dismissed for 60 consecutive days or any of their respective properties which could have a Material Adverse Effect.
the actions sought in such case or proceeding (h) Any change in control of the Borrower, Madison Liquidity Investors 104, MACG from that disclosed in Section 2 of this Agreement.
9.2 The Lender may, at its option, terminate its obligation to make advances of the Loanincluding, without notice to limitation, the Borrower:
(aentry of an order for relief against it or the appointment of a receiver, trustee, custodian or other similar official for it or any substantial part of its property) upon the occurrence and continuance of any Event of Default set forth in subsections 9.1
(a) through 9.1(h) aboveshall occur; or (bD) upon the occurrence and continuance Lessee shall take any corporate action to authorize any of the actions set forth above in this Section 17(a)(vi); or
(7) the Lessee or any Subsidiary shall fail to make any payment in respect of Debt outstanding in an aggregate principal amount equal to or greater than $10,000,000 after the expiry of any applicable grace period; or
(8) any other event whichor condition shall occur which (i) results in the acceleration of the maturity of Debt outstanding of the Lessee or any Subsidiary in an aggregate principal amount equal to or greater than $10,000,000 (including, without limitation, any required mandatory prepayment or "put" of such Debt to the Lessee or any Subsidiary) or (ii) enables (or, with the giving of notice or the lapse of time, time or both, would enable) the holders of such Debt or any Person acting on such holders' behalf to accelerate the maturity thereof (including, without limitation, any required mandatory prepayment or "put" of such Debt to the Lessee or any Subsidiary); or
(9) the Lessee or any member of the Controlled Group shall fail to pay when due any material amount which it shall have become liable to pay to the PBGC or to a Plan under Title IV of ERISA; or notice of intent to terminate a Plan or Plans shall be filed under Title IV of ERISA by the Lessee, any member of the Controlled Group, any plan administrator or any combination of the foregoing; or the PBGC shall institute proceedings under Title IV of ERISA to terminate or to cause a trustee to be appointed to administer any such Plan or Plans or a proceeding shall be instituted by a fiduciary of any such Plan or Plans to enforce Section 515 or 4219(c)(5) of ERISA and such proceeding shall not have been dismissed within 30 days thereafter; or a condition shall exist by reason of which the PBGC would be entitled to obtain a decree adjudicating that any such Plan or Plans must be terminated; or
(10) one or more judgments or orders for the payment of money in an aggregate amount in excess of $10,000,000 shall be rendered against the Lessee or any Consolidated Subsidiary and such judgment or order shall continue unsatisfied and unstayed for a period of 60 days; or
(11) a federal tax lien shall be filed against the Lessee or any Subsidiary under Section 6323 of the Code or a lien of the PBGC shall be filed against the Lessee or any Consolidated Subsidiary under Section 4068 of ERISA and if in either case the amount involved is in an aggregate amount in excess of $10,000,000 and such lien shall remain undischarged for a period of 25 days after the date of filing; or
(12) any of the Operative Documents shall cease, for any reason, to be in full force and effect or the Lessee shall so assert; or
(13) the occurrence of a Change of Control.
(2) Upon the occurrence and during the continuance of any Event of Default, in accordance with the determination of the Lessor, the Lessor may do any one or more of the following (without prejudice to the obligations of the Lessee under Section 15(b)(ii)):
(1) proceed by appropriate judicial proceedings, either at law, in equity or in bankruptcy, to enforce performance or observance by the Lessee of the applicable provisions of this Lease, or to recover damages for the breach of any such provisions, or any other equitable or legal remedy, all as the Lessor shall deem necessary or advisable; and/or
(2) by notice to the Lessee, either (x) terminate this Lease in accordance with Section 15, whereupon the Lessee's interest and all rights of the Lessee to the use of the Equipment shall forthwith terminate subject to the Lessee's rights under such Section 15 to acquire such Equipment on the Purchase Closing Date as provided herein, but the Lessee shall remain liable with respect to its obligations and liabilities hereunder; or (y) terminate the Lessee's right to possession of the Equipment or any portion thereof; and/or
(3) exercise any and all other remedies available under applicable law or at equity.
(3) After the occurrence and during the continuance of a Cancellation Event or Termination Event, in the event the Lessor elects not to terminate this Lease and the Lessee has not exercised its option under Section 15(c), this Lease shall continue in effect and the Lessor may enforce all of the Lessor's rights and remedies under this Lease, including, without limitation, the right to recover the Interim Rent, the Basic Rent and the Supplemental Rent, and all other yield protection payments and other amounts with respect thereto, as it becomes due under this Lease. For the purposes hereof, the following do not constitute a cancellation or termination of this Lease: (i) acts of maintenance or preservation of the Equipment or any portion thereof, (ii) efforts by the Lessor to relet the Equipment or any portion thereof, including, without limitation, termination of any sublease of the Equipment and removal of any tenant from the Applicable Site thereof, (iii) or the appointment of a receiver upon the initiative of the Lessor to protect the Lessor's interest under this Lease.
(4) If (i) on the Lease Termination Date for any all or any portion of the Equipment, as applicable, such Equipment is not acquired by the Lessee or its designee by payment of the Termination Value thereof or (ii) on the Cancellation Date or Option Date therefor, the Lessee or its designee has defaulted in its obligation to acquire such Equipment and pay the Termination Value thereof in accordance with the Lessee's election under Section 15(b)(ii), then the Lessor shall have the immediate right of possession of such Equipment and the right to enter onto any Applicable Sites, and remove the relevant Equipment therefrom if it so elects, and the Lessor may thenceforth hold, possess and enjoy such Equipment, free from any rights of the Lessee and any Person claiming by, through or under the Lessee. The Lessor shall be under no liability by reason of any such repossession or entry onto the premises of the Lessee.
(5) Should the Lessor elect to repossess the Equipment or any portion thereof upon cancellation or termination of this Lease as to such Equipment or otherwise in the exercise of the Lessor's remedies, the Lessee shall peaceably quit and surrender such Equipment or any such portion thereof to the Lessor and either (i) deliver possession of such Equipment to the Lessor or (ii) allow Lessor or its agents or assigns to enter onto the Applicable Site thereof to remove any and all of such Equipment at the expense of the Lessee, and neither the Lessee nor any Person claiming through or under the Lessee shall thereafter be entitled to possession or to remain in possession of such Equipment or any portion thereof but shall forthwith peaceably quit and surrender such Equipment to the Lessor.
(6) At any time after the repossession of the Equipment or any portion thereof, whether or not this Lease shall have been canceled or terminated as to such Equipment, the Lessor may (but shall be under no obligation to) relet such Equipment or the applicable portion thereof without notice to the Lessee, for such term or terms and on such conditions and for such usage as the Lessor in its sole and absolute discretion may determine. The Lessor may collect and receive any rents payable by reason of such reletting, and the Lessor shall not be liable for any failure to relet the Equipment or for any failure to collect any rent due upon any such reletting.
(7) The remedies herein provided in case of an Event of Default are in addition to, and without prejudice to, the Lessee's continuing obligations under Section 15(b)(ii), and shall not be deemed to be exclusive, but shall be cumulative and shall be in addition to all other remedies existing at law, in equity or in bankruptcy. The Lessor may exercise any remedy without waiving its right to exercise any other remedy hereunder or existing at law, in equity or in bankruptcy.
(C) 8) No waiver by the Lessor hereunder of any Default or Event of Default shall constitute a waiver of any other or subsequent Default or Event of Default. To the extent permitted by applicable law, the Lessee waives any right it may have at any time to require the Lessor to mitigate the Lessor's damages upon the death occurrence of a Default or disability Event of ▇▇▇▇▇ ▇Default by taking any action or exercising any remedy that may be available to the Lessor, the exercise of remedies hereunder being at the discretion of the Lessor.
Appears in 1 contract
Sources: Master Lease Agreement (Coca Cola Bottling Co Consolidated /De/)
Events of Default and Remedies. 9.1 The following events At the option of Payee (or the then ------------------------------ current holder of this Note), the entire amount of the unpaid balance of this Note together with all accrued and unpaid interest thereon, shall constitute an "Event of Default" under this Agreement, immediately become due and payable upon the occurrence of which shall entitle one or more of the Lender to pursue any and all rights and remedies, legal and equitable, available to it under any Loan Document or otherwise. The Occurrence following events of an Event Default under this Agreement shall constitute a default under each and every other Loan Document. The Lender's rights and remedies are cumulative and may be exercised concurrently or successively from time to time. Any action by the Lender against any property or party shall not serve to release or discharge any other security, property or party in connection with this transaction. The ("Events of Default are as follows:Default"):
(a) Failure of Maker to pay the principal or interest make any payment on the Borrower's present or future indebtedness to the Lender, whether or not arising pursuant to this Agreement, Note as and when and as the same shall be becomes due and payablepayable in accordance with the terms hereof, whether by acceleration or otherwise; provided that and such default has not been cured prior to the expiration of ten (10) days following the date upon which the Lender gives the Borrower written Notice of Default. In this Section 9, Notice of Default shall be deemed to have been given (i) on the date of personal delivery of such written notice to failure continues for a Guarantor, or (ii) on the date on which a duly authorized representative of the Borrower acknowledges receipt of such written notice, or (iii) on the day after sending such written notice to the Borrower by a commonly recognized overnight courier service, such as Federal Express, Purolator, UPS or the like, or (iv) on the third day after sending such written notice to the Borrower by facsimile (to both numbers set forth in Section 16.7) or by depositing the same in the United States mail, postage prepaid, for delivery to the Borrower.
(b) Failure to observe, perform and comply with any of the obligations evidenced or secured by a Loan Document, other than as provided in Sections 9.1(a) above; provided that such default has not been cured prior to the expiration period of thirty (30) days following after the date upon which the Lender gives the Borrower receipt by Maker of written Notice of Default.
(c) Failure to duly and punctually pay, observe and discharge all Indebtedness and other obligations of the Borrower to any third party, unless the same is being contested in good faith by appropriate proceedings and the Borrower has set aside on its books adequate reserves with respect to such Indebtedness or other obligations.
(d) The discovery by the Lender of any material inaccuracy in any statement, assurance, representation, covenant, warranty, term or condition by the Borrower contained in this Agreement or in any document delivered or to be delivered by or on behalf of the Borrower pursuant to this Agreement, which inaccuracy would result in a Material Adverse Effect (except that inaccuracies in the Borrower's Due Diligence Documents attributable to the fault or neglect of third-parties shall not constitute a breach of this Section 9.1(d)), or in any other Loan Document, or in any other agreement between the Borrower and the Lender.
(e) The filing of a petition by or against the Borrower or any Affiliate seeking relief under the Federal Bankruptcy Code, 11 U.S.C. ss. 101, et seq., and any amendments thereto, or any similar law or regulation, whether federal, state or local, not dismissed within 30 days.
(f) The commencement of a proceeding by or against the Borrower or any Affiliate under any statute or other law providing for an assignment for the benefit of creditors, the appointment of a receiver, or any other similar law or regulation, whether federal, state or local, not dismissed within 30 days.
(g) The garnishment, attachment, levy or other similar action taken by or on behalf of any creditor of the Borrower, any Affiliate, or any of their respective properties which could have a Material Adverse Effect.
(h) Any change in control of the Borrower, Madison Liquidity Investors 104, MACG notice from that disclosed in Section 2 of this Agreement.
9.2 The Lender may, at its option, terminate its obligation to make advances of the Loan, without notice to the Borrower:
(a) upon the occurrence and continuance of any Event of Default set forth in subsections 9.1
(a) through 9.1(h) above; or (b) upon the occurrence and continuance of any event which, with the giving of notice or the lapse of time, or both, would constitute an Event of Default or (C) upon the death or disability of ▇▇▇▇▇ ▇(or the then current holder of this Note) of the occurrence of such failure; or
(b) Maker shall (i) voluntarily seek, consent to or acquiesce in the benefit or benefits of any Debtor Relief Law (as hereinafter defined) or (ii) become party to (or be made the subject of) any proceeding provided by any Debtor Relief Law, other than as a creditor or claimant, that could suspend or otherwise adversely affect the rights of Payee (or the then current holder of this Note) granted hereunder (unless in the event such proceeding is involuntary, the petition instituting the same is dismissed within 90 days of the filing of same). As used herein, the term "Debtor Relief Law" means the Bankruptcy Code of the United States of America and all other applicable liquidation, conservatorship, bankruptcy, moratorium, rearrangement, receivership, insolvency, reorganization or similar debtor relief laws from time to time in effect affecting the rights of creditors generally. In the event any one or more of the Events of Default specified above shall have occurred, the holder of this Note may proceed to protect and enforce its rights either by suit in equity or by action at law, or by other appropriate proceedings, whether for the specific performance of any covenant or agreement contained in this Note or in aid of the exercise of any power or right granted by this Note, or to enforce any other legal or equitable right of the holder of this Note.
Appears in 1 contract
Sources: Promissory Note (U S Remodelers Inc)
Events of Default and Remedies. 9.1 8.1 The entire unpaid principal amount of this Note, together with all accrued interest hereon, at the option of the holder of this Note exercised by written notice to the Maker at its principal executive offices, shall forthwith become and be due and payable if any one or more of the following events shall constitute an (herein called "Event Events of Default" under this Agreement") shall have occurred (for any reason whatsoever and whether such happening shall be voluntary or involuntary or come about 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) and be continuing at the occurrence time of which shall entitle the Lender such notice, that is to pursue any and all rights and remedies, legal and equitable, available to it under any Loan Document or otherwise. The Occurrence of an Event Default under this Agreement shall constitute a default under each and every other Loan Document. The Lender's rights and remedies are cumulative and may be exercised concurrently or successively from time to time. Any action by the Lender against any property or party shall not serve to release or discharge any other security, property or party in connection with this transaction. The Events of Default are as followssay:
(a) Failure to pay if default shall be made in the due and punctual payment of the principal or interest on the Borrower's present or future indebtedness to the Lender, whether or not arising pursuant to of this Agreement, Note when and as the same shall be become due and payable, whether at maturity, by acceleration or otherwise; provided that such default has not been cured prior to the expiration of ten (10) days following the date upon which the Lender gives the Borrower written Notice of Default. In this Section 9, Notice of Default shall be deemed to have been given (i) on the date of personal delivery of such written notice to a Guarantor, or (ii) on the date on which a duly authorized representative of the Borrower acknowledges receipt of such written notice, or (iii) on the day after sending such written notice to the Borrower by a commonly recognized overnight courier service, such as Federal Express, Purolator, UPS or the like, or (iv) on the third day after sending such written notice to the Borrower by facsimile (to both numbers set forth in Section 16.7) or by depositing the same in the United States mail, postage prepaid, for delivery to the Borrower.;
(b) Failure to observe, perform if default shall be made in the due and comply with punctual payment of any of the obligations evidenced or secured by a Loan Document, other than interest on this Note when and as provided in Sections 9.1(a) above; provided that such default has not been cured prior to the expiration of thirty (30) days following the date upon which the Lender gives the Borrower written Notice of Default.interest shall become due and payable;
(c) Failure to duly and punctually pay, observe and discharge all Indebtedness and other obligations if default shall be made in the performance or observance of any of the Borrower other covenants, agreements or conditions of the Maker contained in this Note, and such default shall have continued for a period of 30 days after notice thereof by the holder hereof to any third party, unless the same is being contested in good faith by appropriate proceedings and the Borrower has set aside on its books adequate reserves with respect to such Indebtedness or other obligations.Maker;
(d) The discovery if any representation made by the Lender of Maker contained herein shall prove to be inaccurate in any material inaccuracy in any statementrespect when made, assurance, representation, covenant, warranty, term or condition by the Borrower contained in if this Agreement or in any document delivered or Note shall cease to be delivered by or on behalf of enforceable in accordance with its terms against the Borrower pursuant to this Agreement, which inaccuracy would result in a Material Adverse Effect (except that inaccuracies in the Borrower's Due Diligence Documents attributable to the fault or neglect of third-parties shall not constitute a breach of this Section 9.1(d))Maker, or the Maker shall so state in any other Loan Document, or in any other agreement between the Borrower and the Lender.writing;
(e) The filing if an Event of a petition by Default under any of the other Notes shall have occurred and be continuing, if the effect thereof is to cause the holder or against holders thereof to cause such obligations, respectively, to become due prior to the Borrower date of stated maturity or default shall be made in the due and punctual payment of the principal of or any Affiliate seeking relief under interest on any of the Federal Bankruptcy Code, 11 U.S.C. ss. 101, et seq., and any amendments thereto, other Notes on the respective dates of stated maturity (unless such holder or any similar law holders shall subsequently have waived such Event of Default or regulation, whether federal, state or local, not dismissed within 30 days.default);
(f) The commencement if the Maker shall:
(i) admit in writing its inability to pay its debts generally as they become due or it shall generally not pay its debts as such debts became due;
(ii) file a petition in bankruptcy or a petition to take advantage of a proceeding by or against the Borrower or any Affiliate under any statute or other law providing for insolvency act;
(iii) make an assignment for the benefit of creditors, ;
(iv) consent to the appointment of a receiverreceiver of itself or of the whole or any substantial part of its property;
(v) on a petition in bankruptcy filed against it, be adjudicated a bankrupt; or
(vi) file a petition or answer seeking reorganization or arrangement under the federal bankruptcy laws or any other similar applicable law or regulationstatute of the United States of America or any State, whether federal, state district or local, not dismissed within 30 days.territory thereof;
(g) The garnishmentif a court of competent jurisdiction shall enter, attachment, levy except at the direct or other similar action taken by or on behalf of any creditor indirect request of the Borrowerholder of this Note, any Affiliatean order, judgment, or decree appointing, without the consent of the Maker, a receiver of the Maker or of the whole or any substantial part of their respective properties which could have its property, or approving a Material Adverse Effect.petition filed against it seeking reorganization or arrangement of the Maker under the federal bankruptcy laws or any other applicable law or statute of the United States of America or any State, district or territory thereof, and such order, judgment or decree shall not be vacated or set aside or stayed within 60 days from the date of entry thereof; or
(h) Any change in if, under the provisions of any other law for the relief or aid of debtors, any court of competent jurisdiction shall assume custody or control of the Borrower, Madison Liquidity Investors 104, MACG Maker or of the whole or any substantial part of its property and such custody or control shall not be terminated or stayed within 60 days from that disclosed the date of assumption of such custody or control.
8.2 In the case any one or more of the Events of Default specified in Section 2 8.1 hereof shall have occurred and be continuing, the holder of this Agreement.
9.2 The Lender mayNote may proceed to protect and enforce its rights either by suit in equity and/or by action at law, whether for the specific performance of any covenant or agreement contained in this Note, or the holder of this Note may at its option, terminate its obligation to make advances of the Loan, without option exercised by written notice to the Borrower:
(a) Maker at its principal executive offices declare the unpaid principal balance hereof, together with all accrued interest thereon, immediately due and payable, and otherwise proceed to enforce the payment of all sums due upon this Note or to enforce any other legal or equitable right of the occurrence and continuance holder of any Event of Default set forth in subsections 9.1
(a) through 9.1(h) above; or (b) upon this Note. In the occurrence and continuance of any event which, with the giving of notice or the lapse of time, or both, would constitute an Event of Default shall have occurred and the holder of this Note shall employ attorneys, or (C) incur other costs and expenses for the collection of payments due or to become due, or for the enforcement or performance or observance of any obligation or agreement of the Maker under this Note, the Maker agrees that it will pay to the holder, on demand, the reasonable fees of such attorney together with all other costs and expenses incurred by the holder.
8.3 No remedy herein conferred upon the death holder of this Note is intended to be exclusive of any other remedy and each and every such remedy shall be cumulative and shall be in addition to every other remedy given hereunder or disability now or hereafter existing at law or in equity or by statute or otherwise.
8.4 No course of ▇▇▇▇▇ ▇dealing between the Maker and the holder of this Note or any delay on the part of the Holder hereof in exercising any rights hereunder shall operate as a waiver of any rights of the holder hereof.
Appears in 1 contract
Sources: Securityholders Agreement (Electronic Retailing Systems International Inc)
Events of Default and Remedies. 9.1 The following events shall constitute If an "Event of Default" under this AgreementDefault (other than an Event of Default specified in clauses (10) and (11) of Section 6.1 of the Indenture) occurs and is continuing, all outstanding Dollar Notes will become due and payable immediately without further action or notice. If any other Event of Default occurs and is continuing, the occurrence Trustee or the Holders of which shall entitle at least 25% in aggregate principal amount of the Lender outstanding Notes may declare all the Notes to pursue any and all rights and remedies, legal and equitable, available to it under any Loan Document or otherwise. The Occurrence of an Event Default under this Agreement shall constitute a default under each and every other Loan Document. The Lender's rights and remedies are cumulative and may be exercised concurrently or successively from time to time. Any action by the Lender against any property or party shall not serve to release or discharge any other security, property or party in connection with this transaction. The Events of Default are as follows:
(a) Failure to pay the principal or interest on the Borrower's present or future indebtedness to the Lender, whether or not arising pursuant to this Agreement, when and as the same shall be due and payablepayable immediately in the manner and with the effect provided in the Indenture. Subject to certain limitations, whether by acceleration Holders of a majority in aggregate principal amount of the then outstanding Notes may direct the Trustee in its exercise of any trust or otherwisepower. The Trustee may withhold from Holders of the Notes notice of any continuing Default or Event of Default if it determines that withholding notice is in their interest, except a Default or Event of Default relating to the payment of principal, interest or premium, if any. Subject to the provisions of the Indenture relating to the duties of the Trustee, in case an Event of Default occurs and is continuing, the Trustee will be under no obligation to exercise any of the rights or powers under the Indenture at the request or direction of any Holders of Notes unless such Holders have offered to the Trustee indemnity or security satisfactory to it against any loss, liability or expense. Except to enforce the right to receive payment of principal, premium, if any, or interest, when due, no Holder of a Dollar Note may pursue any remedy with respect to the Indenture or the Notes unless: (A) such Holder has previously given the Trustee notice that an Event of Default is continuing; provided that (B) Holders of at least 25% in aggregate principal amount of the then outstanding Notes have requested the Trustee to pursue the remedy; (C) such default Holders have offered the Trustee security or indemnity satisfactory to it against any loss, liability or expense; (D) the Trustee has not been cured prior to complied with such request within 60 days after the expiration of ten (10) days following the date upon which the Lender gives the Borrower written Notice of Default. In this Section 9, Notice of Default shall be deemed to have been given (i) on the date of personal delivery of such written notice to a Guarantor, or (ii) on the date on which a duly authorized representative receipt of the Borrower acknowledges receipt request and the offer of security or indemnity; and (E) Holders of a majority in aggregate principal amount of the then outstanding Notes have not given the Trustee a direction inconsistent with such written notice, or (iii) on request within such 60-day period. The Holders of a majority in aggregate principal amount of the day after sending such written then outstanding Notes by notice to the Borrower by a commonly recognized overnight courier serviceTrustee may, such as Federal Express, Purolator, UPS or the like, or (iv) on the third day after sending such written notice to the Borrower by facsimile (to both numbers set forth in Section 16.7) or by depositing the same in the United States mail, postage prepaid, for delivery to the Borrower.
(b) Failure to observe, perform and comply with any of the obligations evidenced or secured by a Loan Document, other than as provided in Sections 9.1(a) above; provided that such default has not been cured prior to the expiration of thirty (30) days following the date upon which the Lender gives the Borrower written Notice of Default.
(c) Failure to duly and punctually pay, observe and discharge all Indebtedness and other obligations of the Borrower to any third party, unless the same is being contested in good faith by appropriate proceedings and the Borrower has set aside on its books adequate reserves with respect to such Indebtedness or other obligations.
(d) The discovery by the Lender of any material inaccuracy in any statement, assurance, representation, covenant, warranty, term or condition by the Borrower contained in this Agreement or in any document delivered or to be delivered by or on behalf of the Borrower pursuant to this Agreement, which inaccuracy would result in a Material Adverse Effect (except that inaccuracies in the Borrower's Due Diligence Documents attributable to the fault or neglect Holders of third-parties shall not constitute a breach of this Section 9.1(d)), or in any other Loan Document, or in any other agreement between the Borrower and the Lender.
(e) The filing of a petition by or against the Borrower or any Affiliate seeking relief under the Federal Bankruptcy Code, 11 U.S.C. ss. 101, et seq., and any amendments thereto, or any similar law or regulation, whether federal, state or local, not dismissed within 30 days.
(f) The commencement of a proceeding by or against the Borrower or any Affiliate under any statute or other law providing for an assignment for the benefit of creditors, the appointment of a receiver, or any other similar law or regulation, whether federal, state or local, not dismissed within 30 days.
(g) The garnishment, attachment, levy or other similar action taken by or on behalf of any creditor all of the BorrowerNotes, rescind an acceleration or waive any Affiliate, existing Default or any of their respective properties which could have a Material Adverse Effect.
(h) Any change in control of the Borrower, Madison Liquidity Investors 104, MACG from that disclosed in Section 2 of this Agreement.
9.2 The Lender may, at its option, terminate its obligation to make advances of the Loan, without notice to the Borrower:
(a) upon the occurrence and continuance of any Event of Default set forth in subsections 9.1
(a) through 9.1(h) above; and its consequences under the Indenture except a continuing Default or (b) upon the occurrence and continuance of any event which, with the giving of notice or the lapse of time, or both, would constitute an Event of Default in the payment of interest or (C) upon premium, if any, on, or the death or disability of ▇▇▇▇▇ ▇principal of, the Notes.
Appears in 1 contract
Events of Default and Remedies. 9.1 The following events shall constitute an "Event (a) If any one or more of Default" under this Agreement, the occurrence of which shall entitle the Lender to pursue any and all rights and remedies, legal and equitable, available to it under any Loan Document or otherwise. The Occurrence of an Event Default under this Agreement shall constitute a default under each and every other Loan Document. The Lender's rights and remedies are cumulative and may be exercised concurrently or successively from time to time. Any action by the Lender against any property or party shall not serve to release or discharge any other security, property or party in connection with this transaction. The Events of Default are shall occur or shall exist, the Collateral Agent may then or at any time thereafter, so long as follows:
(a) Failure to pay the principal or interest on the Borrower's present or future indebtedness to the Lender, whether or not arising pursuant to this Agreement, when and as the same shall be due and payable, whether by acceleration or otherwise; provided that such default has not been cured prior to shall continue, foreclose the expiration of ten lien or security interest in the Collateral in any way permitted by law, or upon fifteen (1015) days following the date upon which the Lender gives the Borrower written Notice of Default. In this Section 9, Notice of Default shall be deemed to have been given (i) on the date of personal delivery of such written notice to a Guarantor, or (ii) on the date on which a duly authorized representative of the Borrower acknowledges receipt of such written notice, or (iii) on the day after sending such prior written notice to the Borrower by a commonly recognized overnight courier service, such as Federal Express, Purolator, UPS or the likeSubsidiary, sell any or all Collateral at private sale at any time or place in one or more sales, at such price or prices and upon such terms, either for cash or on credit, as the Collateral Agent, in its sole discretion, may elect, or (iv) sell any or all Collateral at public auction, either for cash or on credit, as the third day after sending Collateral Agent, in its sole discretion, may elect, and at any such written notice to sale, the Borrower by facsimile (to both numbers set forth in Section 16.7) Collateral Agent may bid for and become the purchaser of any or by depositing all such Collateral. Pending any such action the same in Collateral Agent may liquidate the United States mail, postage prepaid, for delivery to the BorrowerCollateral.
(b) Failure If any one or more of the Events of Default shall occur or shall exist, the Collateral Agents may then, or at any time thereafter, so long as such default shall continue, grant extensions to, or adjust claims of, or make compromises or settlements with, debtors, guarantors or any other parties with respect to observeCollateral or any securities, perform guarantees or insurance applying thereon, without notice to or the consent of the Borrower or the Subsidiary, without affecting the Borrower’s or the Subsidiary’s liability under this Agreement or the Notes. Each of the Borrower and comply with the Subsidiary waives notice of acceptance, of nonpayment, protest or notice of protest of any Accounts or Chattel Paper, any of the obligations evidenced its contract rights or secured by a Loan Document, Collateral and any other than as provided in Sections 9.1(a) above; provided that such default has not been cured prior notices to the expiration of thirty (30) days following the date upon which the Lender gives Borrower or the Borrower written Notice of DefaultSubsidiary may be entitled.
(c) Failure to duly and punctually pay, observe and discharge all Indebtedness and other obligations If any one or more of the Events of Default shall occur or shall exist and be continuing, then in any such event, the Collateral Agent shall have such additional rights and remedies in respect of the Collateral or any portion thereof as are provided by the Code and such other rights and remedies in respect thereof which it may have at law or in equity or under this Agreement, including without limitation the right to enter any premises where Equipment, Inventory and/or Fixtures are located and take possession and control thereof without demand or notice and without prior judicial hearing or legal proceedings, which the Borrower to any third party, unless the same is being contested in good faith by appropriate proceedings and the Borrower has set aside on its books adequate reserves with respect to such Indebtedness or other obligationsSubsidiary expressly waive.
(d) The discovery Collateral Agent shall apply the Proceeds of any sale or liquidation of the Collateral, and, subject to Section 5, any Proceeds received by the Lender Collateral Agent from insurance, first to the payment of any material inaccuracy in any statement, assurance, representation, covenant, warranty, term or condition the reasonable costs and expenses incurred by the Borrower contained Collateral Agent in this Agreement connection with such sale or in any document delivered or collection, including without limitation reasonable attorneys’ fees and legal expenses, second to be delivered by or on behalf the payment of the Borrower pursuant Notes, pro rata , whether on account of principal or interest or otherwise as the Collateral Agent, in its sole discretion, may elect, and then to this Agreementpay the balance, which inaccuracy would result in a Material Adverse Effect (except that inaccuracies in the Borrower's Due Diligence Documents attributable if any, to the fault Borrower or neglect of third-parties shall not constitute a breach of this Section 9.1(d))the Subsidiary or as otherwise required by law. If such Proceeds are insufficient to pay the amounts required by law, or in any other Loan Document, or in any other agreement between the Borrower and the Lendershall be liable for any deficiency.
(e) The filing Upon the occurrence of a petition by or against any Event of Default, the Borrower or any Affiliate seeking relief under the Federal Bankruptcy CodeSubsidiary shall promptly upon written demand by the Collateral Agent assemble the Equipment, 11 U.S.C. ss. 101, et seq., Inventory and any amendments thereto, Fixtures and make them available to the Buyers at a place or any similar law or regulation, whether federal, state or local, not dismissed within 30 days.
(f) places to be designated by the Collateral Agent The commencement of a proceeding by or against the Borrower or any Affiliate under any statute or other law providing for an assignment for the benefit of creditors, the appointment of a receiver, or any other similar law or regulation, whether federal, state or local, not dismissed within 30 days.
(g) The garnishment, attachment, levy or other similar action taken by or on behalf of any creditor rights of the BorrowerCollateral Agent under this paragraph to have the Equipment, any Affiliate, or any of their respective properties which could have a Material Adverse Effect.
(h) Any change in control Inventory and Fixtures assembled and made available to it is of the Borrower, Madison Liquidity Investors 104, MACG from that disclosed in Section 2 essence of this Agreement.
9.2 The Lender Agreement and the Collateral Agent may, at its optionelection, terminate its obligation to make advances of the Loanenforce such right by an action in equity for injunctive relief or specific performance, without notice to the Borrower:
(a) upon the occurrence and continuance requirement of any Event of Default set forth in subsections 9.1
(a) through 9.1(h) above; or (b) upon the occurrence and continuance of any event which, with the giving of notice or the lapse of time, or both, would constitute an Event of Default or (C) upon the death or disability of ▇▇▇▇▇ ▇a bond.
Appears in 1 contract
Events of Default and Remedies. 9.1 The following events shall constitute If an "Event of Default" under this AgreementDefault (other than an Event of Default specified in clauses (xii) of Section 6.1 of the Indenture) occurs and is continuing, all outstanding Dollar Notes will become due and payable immediately without further action or notice. If any other Event of Default occurs and is continuing, the occurrence Trustee or the Holders of which shall entitle at least 25% in aggregate principal amount of the Lender outstanding Notes may declare all the Notes to pursue any and all rights and remedies, legal and equitable, available to it under any Loan Document or otherwise. The Occurrence of an Event Default under this Agreement shall constitute a default under each and every other Loan Document. The Lender's rights and remedies are cumulative and may be exercised concurrently or successively from time to time. Any action by the Lender against any property or party shall not serve to release or discharge any other security, property or party in connection with this transaction. The Events of Default are as follows:
(a) Failure to pay the principal or interest on the Borrower's present or future indebtedness to the Lender, whether or not arising pursuant to this Agreement, when and as the same shall be due and payablepayable immediately in the manner and with the effect provided in the Indenture. Subject to certain limitations, whether by acceleration Holders of a majority in aggregate principal amount of the then outstanding Notes may direct the Trustee in its exercise of any trust or otherwisepower. The Trustee may withhold from Holders of the Notes notice of any continuing Default or Event of Default if it determines that withholding notice is in their interest, except a Default or Event of Default relating to the payment of principal, interest or premium, if any. Subject to the provisions of the Indenture relating to the duties of the Trustee, in case an Event of Default occurs and is continuing, the Trustee will be under no obligation to exercise any of the rights or powers under the Indenture at the request or direction of any Holders of Notes unless such Holders have offered to the Trustee indemnity or security satisfactory to it against any loss, liability or expense. Except to enforce the right to receive payment of principal, premium, if any, or interest, when due, no Holder of a Note may pursue any remedy with respect to the Indenture or the Notes unless: (A) such Holder has previously given the Trustee notice that an Event of Default is continuing; provided that (B) Holders of at least 25% in aggregate principal amount of the then outstanding Notes have requested the Trustee to pursue the remedy; (C) such default Holders have offered the Trustee security or indemnity satisfactory to it against any loss, liability or expense; (D) the Trustee has not been cured prior to complied with such request within 60 days after the expiration of ten (10) days following the date upon which the Lender gives the Borrower written Notice of Default. In this Section 9, Notice of Default shall be deemed to have been given (i) on the date of personal delivery of such written notice to a Guarantor, or (ii) on the date on which a duly authorized representative receipt of the Borrower acknowledges receipt request and the offer of security or indemnity; and (E) Holders of a majority in aggregate principal amount of the then outstanding Notes have not given the Trustee a direction inconsistent with such written notice, or (iii) on request within such 60-day period. The Holders of a majority in aggregate principal amount of the day after sending such written then outstanding Notes by notice to the Borrower by a commonly recognized overnight courier serviceTrustee may, such as Federal Express, Purolator, UPS or the like, or (iv) on the third day after sending such written notice to the Borrower by facsimile (to both numbers set forth in Section 16.7) or by depositing the same in the United States mail, postage prepaid, for delivery to the Borrower.
(b) Failure to observe, perform and comply with any of the obligations evidenced or secured by a Loan Document, other than as provided in Sections 9.1(a) above; provided that such default has not been cured prior to the expiration of thirty (30) days following the date upon which the Lender gives the Borrower written Notice of Default.
(c) Failure to duly and punctually pay, observe and discharge all Indebtedness and other obligations of the Borrower to any third party, unless the same is being contested in good faith by appropriate proceedings and the Borrower has set aside on its books adequate reserves with respect to such Indebtedness or other obligations.
(d) The discovery by the Lender of any material inaccuracy in any statement, assurance, representation, covenant, warranty, term or condition by the Borrower contained in this Agreement or in any document delivered or to be delivered by or on behalf of the Borrower pursuant to this Agreement, which inaccuracy would result in a Material Adverse Effect (except that inaccuracies in the Borrower's Due Diligence Documents attributable to the fault or neglect Holders of third-parties shall not constitute a breach of this Section 9.1(d)), or in any other Loan Document, or in any other agreement between the Borrower and the Lender.
(e) The filing of a petition by or against the Borrower or any Affiliate seeking relief under the Federal Bankruptcy Code, 11 U.S.C. ss. 101, et seq., and any amendments thereto, or any similar law or regulation, whether federal, state or local, not dismissed within 30 days.
(f) The commencement of a proceeding by or against the Borrower or any Affiliate under any statute or other law providing for an assignment for the benefit of creditors, the appointment of a receiver, or any other similar law or regulation, whether federal, state or local, not dismissed within 30 days.
(g) The garnishment, attachment, levy or other similar action taken by or on behalf of any creditor all of the BorrowerNotes, rescind an acceleration or waive any Affiliate, existing Default or any of their respective properties which could have a Material Adverse Effect.
(h) Any change in control of the Borrower, Madison Liquidity Investors 104, MACG from that disclosed in Section 2 of this Agreement.
9.2 The Lender may, at its option, terminate its obligation to make advances of the Loan, without notice to the Borrower:
(a) upon the occurrence and continuance of any Event of Default set forth in subsections 9.1
(a) through 9.1(h) above; and its consequences under the Indenture except a continuing Default or (b) upon the occurrence and continuance of any event which, with the giving of notice or the lapse of time, or both, would constitute an Event of Default in the payment of interest or (C) upon premium, if any, on, or the death or disability of ▇▇▇▇▇ ▇principal of, the Notes.
Appears in 1 contract
Sources: Indenture (CEDC Finance Corp LLC)
Events of Default and Remedies. 9.1 The 15.1. Any of the following events shall constitute an "Event of Default under this Agreement: (a) an Event of Default" , as defined in the Notes, shall occur under the Notes; (b) any representation, warranty or statement made by Pledgor in or pursuant to this Agreement or in any other writing received by a Secured Party in connection with the Obligations shall be false or erroneous in any material respect when made; or (c) Pledgor shall fail or omit to perform or observe any agreement made by Pledgor in or pursuant to this Agreement or in any other writing received by a Secured Party pursuant hereto, and such failure or omission shall continue beyond the end of any applicable grace or cure period.
15.2. Secured Parties shall at all times have the rights and remedies of a secured party under the U.C.C. as in effect from time to time, in addition to the rights and remedies of a secured party provided elsewhere within this Agreement, any Note or any other Transaction Document, or otherwise provided in law or equity. Upon the occurrence of an Event of Default and at all times thereafter, Secured Parties may require Pledgor to assemble the Collateral, which shall entitle the Lender Pledgor agrees to pursue any do, and all rights and remedies, legal and equitable, make it available to it under any Loan Document Secured Parties at a reasonably convenient place to be designated by Secured Parties. Secured Parties may, with or otherwise. The Occurrence without notice to or demand upon Pledgor and with or without the aid of an Event Default under this Agreement shall constitute a default under each and every other Loan Document. The Lender's rights and remedies are cumulative and legal process, make use of such force as may be exercised concurrently necessary to enter any premises where the Collateral, or successively any part thereof, may be found and to take possession thereof (including anything found in or on the Collateral that is not specifically described in this Agreement, each of which findings shall be considered to be an accession to and a part of the Collateral) and for that purpose may pursue the Collateral wherever the same may be found, without liability for trespass or damage caused thereby to Pledgor. After any delivery or taking of possession of the Collateral, or any thereof, pursuant to this Agreement, then, with or without resort to Pledgor or any other Person or property, all of which Pledgor hereby waives, and upon such terms and in such manner as Secured Parties may deem advisable, Secured Parties, in their sole discretion, may sell, assign, transfer and deliver any of the Collateral, at any time, or from time to time. Any action No prior notice need be given to Pledgor or to any other Person in the case of any sale of Collateral that Secured Parties determine to be perishable or to be declining speedily in value or that is customarily sold in any recognized market, but in any other case Secured Parties shall give Pledgor no fewer than ten days prior notice of either the time and place of any public sale of the Collateral or of the time after which any private sale or other intended disposition thereof is to be made. Pledgor waives advertisement of any such sale and (except to the extent specifically required by the Lender against preceding sentence) waives notice of any property kind in respect of any such sale. At any such public sale, any Secured Party may purchase the Collateral, or party shall not serve any part thereof, free from any right of redemption, all of which rights Pledgor hereby waives and releases. After deducting all Related Expenses, and after paying all claims, if any, secured by liens having precedence over this Agreement, Secured Parties may apply the net proceeds of each such sale to release or discharge any other security, property or party in connection with this transaction. The Events toward the payment of Default are as follows:
(a) Failure to pay the principal or interest on the Borrower's present or future indebtedness to the LenderObligations, whether or not arising pursuant then due, in such order and by such division as Secured Parties, in their sole discretion, may deem advisable. Any excess, to this Agreementthe extent permitted by law, when and as the same shall be due paid to Pledgor, and payable, whether by acceleration or otherwise; provided that such default has not been cured prior to the expiration of ten (10) days following the date upon which the Lender gives the Borrower written Notice of Default. In this Section 9, Notice of Default shall be deemed to have been given (i) obligors on the date of personal delivery of such written notice to a Guarantor, or (ii) on the date on which a duly authorized representative of the Borrower acknowledges receipt of such written notice, or (iii) on the day after sending such written notice to the Borrower by a commonly recognized overnight courier service, such as Federal Express, Purolator, UPS or the like, or (iv) on the third day after sending such written notice to the Borrower by facsimile (to both numbers set forth in Section 16.7) or by depositing the same in the United States mail, postage prepaid, Obligations shall remain liable for delivery to the Borrowerany deficiency.
(b) Failure to observe, perform and comply with any of the obligations evidenced or secured by a Loan Document, other than as provided in Sections 9.1(a) above; provided that such default has not been cured prior to the expiration of thirty (30) days following the date upon which the Lender gives the Borrower written Notice of Default.
(c) Failure to duly and punctually pay, observe and discharge all Indebtedness and other obligations of the Borrower to any third party, unless the same is being contested in good faith by appropriate proceedings and the Borrower has set aside on its books adequate reserves with respect to such Indebtedness or other obligations.
(d) The discovery by the Lender of any material inaccuracy in any statement, assurance, representation, covenant, warranty, term or condition by the Borrower contained in this Agreement or in any document delivered or to be delivered by or on behalf of the Borrower pursuant to this Agreement, which inaccuracy would result in a Material Adverse Effect (except that inaccuracies in the Borrower's Due Diligence Documents attributable to the fault or neglect of third-parties shall not constitute a breach of this Section 9.1(d)), or in any other Loan Document, or in any other agreement between the Borrower and the Lender.
(e) The filing of a petition by or against the Borrower or any Affiliate seeking relief under the Federal Bankruptcy Code, 11 U.S.C. ss. 101, et seq., and any amendments thereto, or any similar law or regulation, whether federal, state or local, not dismissed within 30 days.
(f) The commencement of a proceeding by or against the Borrower or any Affiliate under any statute or other law providing for an assignment for the benefit of creditors, the appointment of a receiver, or any other similar law or regulation, whether federal, state or local, not dismissed within 30 days.
(g) The garnishment, attachment, levy or other similar action taken by or on behalf of any creditor of the Borrower, any Affiliate, or any of their respective properties which could have a Material Adverse Effect.
(h) Any change in control of the Borrower, Madison Liquidity Investors 104, MACG from that disclosed in Section 2 of this Agreement.
9.2 The Lender may, at its option, terminate its obligation to make advances of the Loan, without notice to the Borrower:
(a) upon the occurrence and continuance of any Event of Default set forth in subsections 9.1
(a) through 9.1(h) above; or (b) upon the occurrence and continuance of any event which, with the giving of notice or the lapse of time, or both, would constitute an Event of Default or (C) upon the death or disability of ▇▇▇▇▇ ▇.
Appears in 1 contract
Sources: Security Agreement (Birner Dental Management Services Inc)
Events of Default and Remedies. 9.1 The following events Securities shall constitute have the Events of Default as set forth in Section 5.01 of the Indenture. Subject to certain limitations in the Indenture, if an "Event of Default occurs and is continuing, the Trustee by notice to the Company or the Holders of at least 25% in aggregate principal amount of the Outstanding Securities by notice to the Company and the Trustee may declare all amounts payable on the Securities (including any Additional Payments) to be due and payable immediately; provided that, if the Property Trustee is the sole Holder of the Securities and if upon an Event of Default" under this Agreement, the occurrence Trustee or the Holders of which shall entitle not less than 25% in aggregate principal amount of the Lender then Outstanding Securities fail to pursue any and all rights and remedies, legal and equitable, available to it under any Loan Document or otherwise. The Occurrence of an Event Default under this Agreement shall constitute a default under each and every other Loan Document. The Lender's rights and remedies are cumulative and may be exercised concurrently or successively from time to time. Any action by the Lender against any property or party shall not serve to release or discharge any other security, property or party in connection with this transaction. The Events of Default are as follows:
(a) Failure to pay declare the principal or interest on of all the Borrower's present or future indebtedness Securities to the Lender, whether or not arising pursuant to this Agreement, when and as the same shall be immediately due and payable, whether the Holders of at least 25% in aggregate liquidation amount of Preferred Securities then outstanding shall have such right by acceleration or otherwise; provided that such default has not been cured prior a notice in writing to the expiration Company and the Trustee, and upon any such declaration such principal and all accrued interest (and Additional Payments, if any) shall become immediately due and payable; and provided further that any such declaration will not be effective until the earlier to occur of ten (10) days following the date upon which the Lender gives the Borrower written Notice of Default. In this Section 9, Notice of Default shall be deemed to have been given (i) on ten business days after receipt by the date Company and the administrative agent under the Senior Credit Agreement of personal delivery written notice of such written notice to a Guarantor, or declaration and (ii) on acceleration of obligations under the date on which Senior Credit Agreement. The Holders of a duly authorized representative majority in aggregate principal amount of the Borrower acknowledges receipt of Outstanding Securities may annul such written notice, or (iii) on declaration and waive the day after sending such default by written notice to the Borrower Property Trustee, the Company and the Trustee if the default (other than the nonpayment of the principal of these Securities which has become due solely by such acceleration) has been cured and a commonly recognized overnight courier servicesum sufficient to pay all matured installments of interest (and Additional Payments, if any) and principal due otherwise than by acceleration has been deposited with the Trustee. Should the Holders of the Securities of such as Federal Expressa series fail to annul such declaration and waive such default, Purolator, UPS the Holders of a majority in aggregate liquidation amount of the Preferred Securities shall have such right. Upon the effectiveness of any such declaration such principal amount (or specified amount) of and the like, or accrued interest (ivincluding any Additional Payments) on all the third day after sending Securities of such series shall then become immediately due and payable; and provided further that the payment of principal and interest on such Securities shall remain subordinated to the extent provided in the Indenture. In the case of an Event of Default, the Holders of a majority in principal amount of the Securities then Outstanding by written notice to the Borrower by facsimile (to both numbers set forth in Section 16.7) or by depositing Trustee may rescind an acceleration and its consequences if the same in the United States mail, postage prepaid, for delivery to the Borrower.
(b) Failure to observe, perform and comply rescission would not conflict with any judgment or decree and if all existing Events of Default have been cured or waived except nonpayment of principal or interest that has become due solely because of the obligations evidenced acceleration. Holders may not enforce the Indenture or secured by a Loan Document, other than the Securities except as provided in Sections 9.1(a) above; provided that such default has not been cured prior the Indenture. Subject to certain limitations, Holders of a majority in principal amount of the Outstanding Securities issued under the Indenture may direct the Trustee in its exercise of any trust or power. The Company must furnish annually compliance certificates to the expiration Trustee. The above description of thirty (30) days following Events of Default and remedies is qualified by reference to, and subject in its entirety by, the date upon which the Lender gives the Borrower written Notice of Default.
(c) Failure to duly and punctually pay, observe and discharge all Indebtedness and other obligations of the Borrower to any third party, unless the same is being contested in good faith by appropriate proceedings and the Borrower has set aside on its books adequate reserves with respect to such Indebtedness or other obligations.
(d) The discovery by the Lender of any material inaccuracy in any statement, assurance, representation, covenant, warranty, term or condition by the Borrower more complete description thereof contained in this Agreement or in any document delivered or to be delivered by or on behalf of the Borrower pursuant to this Agreement, which inaccuracy would result in a Material Adverse Effect (except that inaccuracies in the Borrower's Due Diligence Documents attributable to the fault or neglect of third-parties shall not constitute a breach of this Section 9.1(d)), or in any other Loan Document, or in any other agreement between the Borrower and the LenderIndenture.
(e) The filing of a petition by or against the Borrower or any Affiliate seeking relief under the Federal Bankruptcy Code, 11 U.S.C. ss. 101, et seq., and any amendments thereto, or any similar law or regulation, whether federal, state or local, not dismissed within 30 days.
(f) The commencement of a proceeding by or against the Borrower or any Affiliate under any statute or other law providing for an assignment for the benefit of creditors, the appointment of a receiver, or any other similar law or regulation, whether federal, state or local, not dismissed within 30 days.
(g) The garnishment, attachment, levy or other similar action taken by or on behalf of any creditor of the Borrower, any Affiliate, or any of their respective properties which could have a Material Adverse Effect.
(h) Any change in control of the Borrower, Madison Liquidity Investors 104, MACG from that disclosed in Section 2 of this Agreement.
9.2 The Lender may, at its option, terminate its obligation to make advances of the Loan, without notice to the Borrower:
(a) upon the occurrence and continuance of any Event of Default set forth in subsections 9.1
(a) through 9.1(h) above; or (b) upon the occurrence and continuance of any event which, with the giving of notice or the lapse of time, or both, would constitute an Event of Default or (C) upon the death or disability of ▇▇▇▇▇ ▇.
Appears in 1 contract
Sources: Indenture (Budget Group Inc)
Events of Default and Remedies. 9.1 The 20.1. Each of the following events occurrences shall constitute an "“Event of Default" ” by Lessee under this Agreement, the occurrence of which shall entitle the Lender to pursue any and all rights and remedies, legal and equitable, available to it under any Loan Document or otherwise. The Occurrence of an Event Default under this Agreement shall constitute a default under each and every other Loan Document. The Lender's rights and remedies are cumulative and may be exercised concurrently or successively from time to time. Any action by the Lender against any property or party shall not serve to release or discharge any other security, property or party in connection with this transaction. The Events of Default are as followsFacilities Lease:
(a) Failure The failure of Lessee to pay Rent or rental as and when due hereunder and the principal or interest on the Borrower's present or future indebtedness to the Lender, whether or not arising pursuant to this Agreement, when and as the same shall be due and payable, whether by acceleration or otherwise; provided that continuance of such default has not been cured prior to the expiration failure for a period of ten sixty (1060) days following the date upon which the Lender gives the Borrower written Notice of Default. In this Section 9, Notice of Default shall be deemed to have been given (i) on the date of personal delivery of such written notice to a Guarantor, or (ii) on the date on which a duly authorized representative of the Borrower acknowledges receipt of such written notice, or (iii) on the day after sending such written notice to the Borrower by a commonly recognized overnight courier service, such as Federal Express, Purolator, UPS or the like, or (iv) on the third day after sending such written notice to the Borrower by facsimile (to both numbers set forth in Section 16.7) or by depositing the same in the United States mail, postage prepaid, for delivery to the Borrower.thereafter;
(b) Failure The failure of Lessee to observeprocure and maintain the insurance required by Section 11 of this Facilities Lease, perform or to provide evidence of such insurance as required herein, and comply the continuance of either such failure for a period of three (3) business days after written request therefor by Lessor; furthermore, in such event, Lessor shall be authorized (but not required) to procure such insurance coverage(s) in the amount(s) required by this Facilities Lease with any of the obligations evidenced or secured all costs thereof to be reimbursed to Lessor by a Loan Document, other than as provided in Sections 9.1(a) above; provided that such default has not been cured prior to the expiration of Lessee within thirty (30) days following after written demand by Lessor with interest thereon at the rate set forth in Section 28 hereof from the date upon which incurred by Lessor to the Lender gives the Borrower written Notice of Default.date reimbursed and paid by Lessee;
(c) Failure The failure of Lessee to duly perform, comply with or observe any other agreement, obligation, covenant, condition, or undertaking of Lessee, or any other term, condition or provision, in each case under this Facilities Lease in any material respect, and punctually paythe continuance of such failure for a period of one-hundred and twenty (120) days after written notice from Lessor to Lessee specifying the failure; or if such default is of a nature that it cannot with reasonable effort be completely remedied within said period of 120 days, observe then such additional time as is reasonably necessary to complete such cure provided that Lessee has commenced such cure within the initial one-hundred and discharge all Indebtedness twenty (120) day period and other obligations of the Borrower diligent continues to any third party, unless pursue the same is being contested in good faith by appropriate proceedings and the Borrower has set aside on its books adequate reserves with respect to such Indebtedness or other obligations.completion;
(d) The discovery by the Lender of any material inaccuracy in any statement, assurance, representation, covenant, warranty, term or condition by the Borrower contained in this Agreement or in any document delivered or to be delivered by or on behalf of the Borrower pursuant to this Agreement, which inaccuracy would result in a Material Adverse Effect (except that inaccuracies in the Borrower's Due Diligence Documents attributable to the fault or neglect of third-parties shall not constitute a breach of this Section 9.1(d)), or in any other Loan Document, or in any other agreement between the Borrower and the Lender.
(e) The filing of a petition by or against the Borrower Lessee (i) in any bankruptcy or other insolvency proceeding, (ii) seeking any Affiliate seeking relief under the Federal Bankruptcy Code, 11 U.S.C. ss. 101, et seq., and any amendments thereto, Code of the United States or any similar law debtor relief law, or regulation(iii) for the appointment of a liquidator or receiver for all or substantially all of Lessee’s property or for Lessee’s interest in this Facilities Lease and as to any such matter commenced against Lessee by an unrelated third party that remains undismissed, whether federalundischarged, state unstayed or localunbonded for a period of ninety (90) days;
(e) If the interest of Lessee under this Facilities Lease shall, not dismissed within 30 days.by operation of law, be transferred or passed to or devolve upon any other person, firm or corporation in violation of the terms of this Facilities Lease without Lessor’s written consent in cases in which such written consent is required hereunder;
(f) If Lessee shall voluntarily abandon, desert, or vacate the Bond Financed Property, or voluntarily discontinue its operation thereon for a period of more than two (2) consecutive months and such periods as may be extended by Force Majeure;
(g) The commencement admission by Lessee in writing that it cannot meet its obligations generally as they become due or the making by Lessee of a proceeding by or against the Borrower or any Affiliate under any statute or other law providing for an assignment for the benefit of its creditors, the appointment of a receiver, or any other similar law or regulation, whether federal, state or local, not dismissed within 30 days.
(g) The garnishment, attachment, levy or other similar action taken by or on behalf of any creditor of the Borrower, any Affiliate, or any of their respective properties which could have a Material Adverse Effect.; and
(h) Any change in control of the Borrower, Madison Liquidity Investors 104, MACG from that disclosed in Section 2 of this Agreement.
9.2 The Lender may, at its option, terminate its obligation to make advances of the Loan, without notice to the Borrower:
(a) upon the occurrence and continuance of any Event of Default set forth in subsections 9.1
(a) through 9.1(h) above; or (b) upon the occurrence and continuance of any event which, with the giving of notice or the lapse of time, or both, would constitute an Event of Default Default, as therein defined, occurs and continues beyond any cure under the Ground Lease or (C) upon the death or disability of ▇▇▇▇▇ ▇Indenture.
Appears in 1 contract
Sources: Lease and Development Agreement (Fortress Transportation & Infrastructure Investors LLC)
Events of Default and Remedies. 9.1 7.1 The following events shall constitute an "Event of Default" Default under this Agreement, the occurrence of which shall entitle the Subordinated Lender to pursue any and all rights and remedies, legal and equitable, remedies available to it under this Agreement, any of the other Subordinated Loan Document Documents, by statute or otherwisein law or equity. The Occurrence of an Event Default under this Agreement shall constitute a default under each and every other Loan Document. The Subordinated Lender's rights and remedies are cumulative and may be exercised concurrently or successively from time to time. Any action by the Subordinated Lender against any property or party shall not serve to release or discharge any other security, property or party in connection with this transaction. The Events of Default are as follows:
(a) Failure to pay make any payment as and when due under the principal or interest on the Borrower's present or future indebtedness to the Lender, whether or not arising pursuant to this Agreement, when and as the same shall be due and payableSubordinated Note, whether by acceleration or otherwise; , provided in each case that such default has not been cured prior to the expiration of ten (10) 10 days following the date upon which the Lender gives the Borrower written Notice of Default. In this Section 9, Notice of Default shall be deemed to have been given (i) on the date of personal delivery or mailing of written notice of such written notice to a Guarantor, or (ii) on the date on which a duly authorized representative of the Borrower acknowledges receipt of such written notice, or (iii) on the day after sending such written notice to the Borrower by a commonly recognized overnight courier service, such as Federal Express, Purolator, UPS or the like, or (iv) on the third day after sending such written notice to the Borrower by facsimile (to both numbers set forth in Section 16.7) or by depositing the same in the United States mail, postage prepaid, for delivery default to the Borrower.
(b) Failure to make any payment as and when under any document evidencing indebtedness of the Borrower to the Subordinated Lender other than the Subordinated Note, whether by acceleration or otherwise, provided in each case that such default has not been cured prior to the expiration of 10 days following the date of personal delivery or mailing of written notice of such default to the Borrower.
(c) Failure to observe, perform and comply with any of the Borrower's obligations evidenced or secured by a under any Subordinated Loan Document, other than as provided in Sections 9.1(asubsections 7.1(a) and 7.1(b) above; provided that such default has not been cured prior to the expiration of thirty (30) 20 days following the date upon which the Lender gives the Borrower of personal delivery or mailing of written Notice notice of Default.
(c) Failure to duly and punctually pay, observe and discharge all Indebtedness and other obligations of the Borrower to any third party, unless the same is being contested in good faith by appropriate proceedings and the Borrower has set aside on its books adequate reserves with respect to such Indebtedness or other obligationsdefault.
(d) The discovery Failure to observe, perform and comply with any of the Borrower's obligations under any Senior Loan Document, provided that such default has not been cured after the expiration of any applicable cure period provided by the Lender Senior Loan Documents.
(e) The existence of any a material inaccuracy in any statement, assurance, representation, covenant, warranty, term or condition by the Borrower contained in this Agreement or in any document delivered or to be delivered by or on behalf of the Borrower pursuant to this Agreement, which inaccuracy would result in a Material Adverse Effect (except that inaccuracies in the Borrower's Due Diligence Documents attributable to the fault or neglect of third-parties shall not constitute a breach of this Section 9.1(d)), or in any other Subordinated Loan Document, or in any other agreement between the Borrower and the Lender.
(ef) The filing of a petition by or against the Borrower or any Affiliate seeking relief under the Federal Bankruptcy Code, 11 U.S.C. ss. 101, et seq., and any amendments thereto, or any similar law or regulation, whether federal, state or local, not dismissed within 30 days.
(f) The commencement of a proceeding by or against the Borrower or any Affiliate under any statute or other law providing for an assignment for the benefit of creditors, the appointment of a receiver, or any other similar law or regulation, whether federal, state or local, not dismissed within 30 days.
(g) The garnishment, attachment, levy or other similar action taken by or on behalf of any creditor of the Borrower, any Affiliate, or any of their respective properties which could have a Material Adverse Effect.
(h) Any change in control of the Borrower, Madison Liquidity Investors 104, MACG from that disclosed in Section 2 of this Agreement.
9.2 The Lender may, at its option, terminate its obligation to make advances of the Loan, without notice to the Borrower:
(a) upon the occurrence and continuance of any Event of Default set forth in subsections 9.1
(a) through 9.1(h) above; or (b) upon the occurrence and continuance of any event which, with the giving of notice or the lapse of time, or both, would constitute an Event of Default or (C) upon the death or disability of ▇▇▇▇▇ ▇.U.S.
Appears in 1 contract
Events of Default and Remedies. 9.1 The (a) Each of the following events acts or occurrences shall constitute an "Event of Default" under this Agreementhereunder:
(i) default in the payment of the Purchase Price or the Termination Value on the Cancellation Date or the Purchase Closing Date, as applicable, or in the payment of the Purchase Price or the Final Rent Payment or Completion Costs Payment, as applicable, on the Lease Termination Date; or the default in the payment when due of any Basic Rent and the continuance of such default for 5 Business Days thereafter; or the default in the payment when due of any Supplemental Rent, the amount of any Indemnified Risk or any other amount due hereunder or under any other Operative Document and the continuance of such default for 30 days thereafter; or
(ii) any representation or warranty made or deemed made by the Lessee herein, or by the Lessee or the Guarantor in any other Operative Document or otherwise in writing in connection with or pursuant to this Lease or any other Operative Document, shall be false or misleading in any material respect on the date made or deemed made; or
(iii) an Event of Default under the Investment Agreement;
(iv) The Lessee shall fail to observe or perform any covenant or agreement contained in Sections 12 and 26 of this Lease; or
(v) The Lessee shall fail to observe or perform any covenant or agreement contained or incorporated by reference in this Lease (other than those covered by subsections (i) or (iv) above), and such failure shall not have been cured within 10 days, with respect to any covenant contained in Section 14 of this Lease, and 30 days, with respect to any other provision hereof, after the earlier to occur of (A) written notice thereof has been given to the Lessee and the Guarantor by the Lessor at the request of the Majority Funding Parties or (B) the chief financial, chief operating, chief legal or chief accounting officer of the Lessee or the Guarantor otherwise becomes aware of any such failure; or
(vi) Lessee shall abandon the Facility; provided however that for purposes of this Section 17(a)(vi), the term "abandon" shall not include the mere failure of Lessee to occupy the Facility so long as Lessee continues to perform its obligations hereunder and other Operative Documents including without limitation maintenance of the Facility, maintenance of required insurance, compliance with Governmental Requirements and Insurance Requirements and payment of all Rent.
(b) Upon the occurrence and during the continuance of which any Event of Default, as determined by the Lessor, the Lessor (acting at the direction of the Majority Funding Parties) may do any one or more of the following (without prejudice to the obligations of the Lessee under Section 15(b)(ii)):
(i) proceed by appropriate judicial proceedings, either at law, in equity or in bankruptcy, to enforce performance or observance by the Lessee of the applicable provisions of this Lease, or to recover damages for the breach of any such provisions, or any other equitable or legal remedy, all as the Lessor shall entitle deem necessary or advisable; and/or
(ii) by notice to the Lender Lessee, either (x) terminate this Lease in accordance with Section 15, whereupon the Lessee's interest and all rights of the Lessee to pursue the use of the Facility shall forthwith terminate subject to the Lessee's rights under such Section 15 to acquire the Facility on the Purchase Closing Date as provided herein, but the Lessee shall remain liable with respect to its obligations and liabilities hereunder; or (y) terminate the Lessee's right to possession of the Facility or any part thereof; and/or
(iii) exercise any and all rights other remedies available under applicable law or at equity.
(c) After the occurrence and remediesduring the continuance of a Cancellation Event or Termination Event, legal in the event the Lessor elects not to terminate this Lease and equitablethe Lessee has not exercised its option under Section 15(c), available to it under any Loan Document or otherwise. The Occurrence this Lease shall continue in effect and the Lessor may enforce all of an Event Default under this Agreement shall constitute a default under each and every other Loan Document. The Lenderthe Lessor's rights and remedies are cumulative under this Lease, including, without limitation, the right to recover the Basic Rent and may be exercised concurrently Supplemental Rent, and any Completion Costs and all other yield protection payments and other amounts with respect thereto, as it becomes due under this Lease or successively from time to timeany other Operative Documents. Any action For the purposes hereof, the following do not constitute a cancellation or termination of this Lease: (i) acts of maintenance or preservation of the Facility or any part thereof, (ii) efforts by the Lender against Lessor to relet the Facility or any property part thereof, including, without limitation, termination of any sublease of the Facility and removal of any tenant from the Site, (iii) or party shall not serve the appointment of a receiver upon the initiative of the Lessor to release or discharge any other security, property or party in connection with protect the Lessor's interest under this transaction. The Events of Default are as follows:Lease.
(ad) Failure to pay the principal or interest on the Borrower's present or future indebtedness to the Lender, whether or not arising pursuant to this Agreement, when and as the same shall be due and payable, whether by acceleration or otherwise; provided that such default has not been cured prior to the expiration of ten (10) days following the date upon which the Lender gives the Borrower written Notice of Default. In this Section 9, Notice of Default shall be deemed to have been given If (i) on the date Lease Termination Date, the Facility is not acquired by the Lessee or its designee by payment of personal delivery of such written notice to a Guarantorthe Purchase Price, or (ii) on the date on which a duly authorized representative Cancellation Date, the Lessee or its designee has defaulted in its obligation to acquire the Facility and pay the Purchase Price, or if applicable, the Termination Value, in accordance with Lessee's election under Section 15(b)(ii), then the Lessor shall have the immediate right of possession of the Borrower acknowledges receipt Facility and the right to enter onto the Site and to remove any and all of the Property comprising the Facility, and the Lessor may thenceforth hold, possess and enjoy the Facility free from any rights of the Lessee and any Person claiming by, through or under the Lessee. The Lessor shall be under no liability by reason of any such written notice, or (iii) on the day after sending such written notice to the Borrower by a commonly recognized overnight courier service, such as Federal Express, Purolator, UPS repossession or the like, Facility or (iv) on entry onto the third day after sending such written notice to the Borrower by facsimile (to both numbers set forth in Section 16.7) or by depositing the same in the United States mail, postage prepaid, for delivery to the Borrower.
(b) Failure to observe, perform and comply with any of the obligations evidenced or secured by a Loan Document, other than as provided in Sections 9.1(a) above; provided that such default has not been cured prior to the expiration of thirty (30) days following the date upon which the Lender gives the Borrower written Notice of Default.
(c) Failure to duly and punctually pay, observe and discharge all Indebtedness and other obligations of the Borrower to any third party, unless the same is being contested in good faith by appropriate proceedings and the Borrower has set aside on its books adequate reserves with respect to such Indebtedness or other obligations.
(d) The discovery by the Lender of any material inaccuracy in any statement, assurance, representation, covenant, warranty, term or condition by the Borrower contained in this Agreement or in any document delivered or to be delivered by or on behalf of the Borrower pursuant to this Agreement, which inaccuracy would result in a Material Adverse Effect (except that inaccuracies in the Borrower's Due Diligence Documents attributable to the fault or neglect of third-parties shall not constitute a breach of this Section 9.1(d)), or in any other Loan Document, or in any other agreement between the Borrower and the LenderSite.
(e) The filing of a petition by or against Should the Borrower Lessor elect to repossess the Facility or any Affiliate seeking relief part thereof upon cancellation or termination of this Lease or otherwise in the exercise of the Lessor's remedies, the Lessee shall peaceably quit and surrender the Facility or any such part thereof to the Lessor and either (i) deliver possession of the Facility to the Lessor or (ii) allow Lessor or its agents or assigns to enter onto the Facility and the Site to remove any and all of the Property comprising the Facility at the expense of the Lessee, and neither the Lessee nor any Person claiming through or under the Federal Bankruptcy Code, 11 U.S.C. ss. 101, et seq., and any amendments thereto, Lessee shall thereafter be entitled to possession or to remain in possession of the Facility or any similar law or regulation, whether federal, state or local, not dismissed within 30 dayspart thereof but shall forthwith peaceably quit and surrender the Facility to the Lessor.
(f) The commencement At any time after the repossession of a proceeding by or against the Borrower Facility or any Affiliate under any statute part thereof, whether or other law providing for an assignment for the benefit of creditorsnot this Lease shall have been cancelled or terminated, the appointment Lessor may (but shall be under no obligation to) relet the Facility or the applicable part thereof without notice to the Lessee, for such term or terms and on such conditions and for such usage as the Lessor in its sole and absolute discretion may determine. The Lessor may collect and receive any rents payable by reason of a receiversuch reletting, and the Lessor shall not be liable for any failure to relet the Facility or for any other similar law or regulation, whether federal, state or local, not dismissed within 30 daysfailure to collect any rent due upon any such reletting.
(g) The garnishmentremedies herein provided in case of an Event of Default are in addition to, attachmentand without prejudice to, levy the Lessee's continuing obligations under Section 15(b)(ii), and shall not be deemed to be exclusive, but shall be cumulative and shall be in addition to all other remedies existing at law, in equity or in bankruptcy. The Lessor may exercise any remedy without waiving its right to exercise any other similar action taken by remedy hereunder or on behalf of any creditor of the Borrowerexisting at law, any Affiliate, in equity or any of their respective properties which could have a Material Adverse Effectin bankruptcy.
(h) Any change in control No waiver by the Lessor hereunder of any Default or Event of Default shall constitute a waiver of any other or subsequent Default or Event of Default. To the Borrowerextent permitted by applicable law, Madison Liquidity Investors 104, MACG from that disclosed in Section 2 of this Agreement.
9.2 The Lender may, the Lessee waives any right it may have at its option, terminate its obligation any time to make advances of require the Loan, without notice Lessor to mitigate the Borrower:
(a) Lessor's damages upon the occurrence and continuance of any a Default or Event of Default set forth in subsections 9.1
(a) through 9.1(h) above; by taking any action or (b) upon exercising any remedy that may be available to the occurrence and continuance Lessor, the exercise of any event which, with remedies hereunder being at the giving discretion of notice or the lapse of time, or both, would constitute an Event of Default or (C) upon the death or disability of ▇▇▇▇▇ ▇Lessor.
Appears in 1 contract
Events of Default and Remedies. 9.1 The following events shall constitute an "Event of Default" under this Agreement, the occurrence of which shall entitle the Lender to pursue any and all rights and remedies, legal and equitable, available to it under any Loan Document or otherwise. The Occurrence of an Event Default under this Agreement shall constitute a default under each and every other Loan Document. The Lender's rights and remedies are cumulative and may be exercised concurrently or successively from time to time. Any action by the Lender against any property or party shall not serve to release or discharge any other security, property or party in connection with this transaction. The Events of Default are as follows:
(a) Failure to pay the principal or interest on the Borrower's present or future indebtedness to the Lender, whether or not arising pursuant to this Agreement, when and as the same shall be due and payable, whether by acceleration or otherwise; provided that such default has not been cured prior to the expiration of ten (10) days following the date upon which the Lender gives the Borrower written Notice of Default. In this Section 9, Notice of Default shall be deemed to have been given (i) on the date of personal delivery of such written notice to a Guarantor, or (ii) on the date on which a duly authorized representative of the Borrower acknowledges receipt of such written notice, or (iii) on the day after sending such written notice to the Borrower by a commonly recognized overnight courier service, such as Federal Express, Purolator, UPS or the like, or (iv) on the third day after sending such written notice to the Borrower by facsimile (to both numbers set forth in Section 16.7) or by depositing the same in the United States mail, postage prepaid, for delivery to the Borrower.
(b) Failure to observe, perform and comply with any of the obligations evidenced or secured by a Loan Document, other than as provided in Sections 9.1(a) above; provided that such default has not been cured prior to the expiration of thirty (30) days following the date upon which the Lender gives the Borrower written Notice of Default.
(c) Failure to duly and punctually pay, observe and discharge all Indebtedness and other obligations of the Borrower to any third party, unless the same is being contested in good faith by appropriate proceedings and the Borrower has set aside on its books adequate reserves with respect to such Indebtedness or other obligations.
(d) The discovery by the Lender of any material inaccuracy in any statement, assurance, representation, covenant, warranty, term or condition by the Borrower contained in this Agreement or in any document delivered or to be delivered by or on behalf of the Borrower pursuant to this Agreement, which inaccuracy would result in a Material Adverse Effect (except that inaccuracies in the Borrower's Due Diligence Documents attributable to the fault or neglect of third-parties shall not constitute a breach of this Section 9.1(d)), or in any other Loan Document, or in any other agreement between the Borrower and the Lender.
(e) The filing of a petition by or against the Borrower or any Affiliate seeking relief under the Federal Bankruptcy Code, 11 U.S.C. ss. 101, et seq., and any amendments thereto, or any similar law or regulation, whether federal, state or local, not dismissed within 30 days.
(f) The commencement of a proceeding by or against the Borrower or any Affiliate under any statute or other law providing for an assignment for the benefit of creditors, the appointment of a receiver, or any other similar law or regulation, whether federal, state or local, not dismissed within 30 days.
(g) The garnishment, attachment, levy or other similar action taken by or on behalf of any creditor of the Borrower, any Affiliate, or any of their respective properties which could have a Material Adverse Effect.
(h) Any change in control of the Borrower, Madison Liquidity Investors 104, MACG from that disclosed in Section 2 of this Agreement.
9.2 The Lender may, at its option, terminate its obligation to make advances of the Loan, without notice to the Borrower:
(a) upon the occurrence and continuance of any Event of Default set forth in subsections 9.1
(a) through 9.1(h) above; or (b) upon the occurrence and continuance of any event which, with the giving of notice or the lapse of time, or both, would constitute an Event of Default or (C) upon the death or disability of ▇▇▇▇▇ ▇.Bryan E.
Appears in 1 contract
Sources: Loan Agreement (Madison Liquidity Investors 104 LLC)
Events of Default and Remedies. 9.1 The Termination - Time is of the essence herein and it is understood and agreed that Secured Party may terminate this Agreement, refuse to advance funds hereunder, and declare the aggregate of all Advances outstanding hereunder immediately due and payable upon the occurrence of any of the following events shall constitute (each hereinafter called an "Event of Default" "), and that Debtor's liabilities under this sentence shall constitute additional obligations of Debtor secured under this Agreement, the occurrence of which shall entitle the Lender to pursue any and all rights and remedies, legal and equitable, available to it under any Loan Document or otherwise. The Occurrence of an Event Default under this Agreement shall constitute a default under each and every other Loan Document. The Lender's rights and remedies are cumulative and may be exercised concurrently or successively from time to time. Any action by the Lender against any property or party shall not serve to release or discharge any other security, property or party in connection with this transaction. The Events of Default are as follows:.
(a) Failure Debtor shall fail to pay make any payment to Secured Party, whether constituting the principal amount of any Advance, interest thereon or interest on the Borrower's present or future indebtedness to the Lender, whether or not arising pursuant to this Agreementany other payment due hereunder, when and as due in accordance with the same terms of this Agreement or with any demand permitted to be made by Secured Party under this Agreement or any Promissory Note, or shall fail to pay when due any other amount owing to Secured Party under any other agreement between Secured Party and Debtor, or shall fail in the due performance or compliance with any other term or condition hereof or thereof, or shall be due and payable, whether by acceleration in default in the payment of any liabilities constituting indebtedness for money borrowed or otherwise; provided that such default has not been cured prior the deferred payment of the purchase price of property or rental payment with respect to property material to the expiration conduct of ten (10) days following the date upon which the Lender gives the Borrower written Notice of Default. In this Section 9, Notice of Default shall be deemed to have been given (i) on the date of personal delivery of such written notice to a Guarantor, or (ii) on the date on which a duly authorized representative of the Borrower acknowledges receipt of such written notice, or (iii) on the day after sending such written notice to the Borrower by a commonly recognized overnight courier service, such as Federal Express, Purolator, UPS or the like, or (iv) on the third day after sending such written notice to the Borrower by facsimile (to both numbers set forth in Section 16.7) or by depositing the same in the United States mail, postage prepaid, for delivery to the Borrower.Debtor's business;
(b) Failure to observe, perform and comply with A tax lien or notice thereof shall have been filed against any of the obligations evidenced Debtor's property or secured a proceeding in bankruptcy, insolvency or receivership shall be instituted by a Loan Document, other than as provided in Sections 9.1(a) above; provided that such default has not or against Debtor or Debtor's property or an assignment shall have been cured prior to made by Debtor for the expiration benefit of thirty (30) days following the date upon which the Lender gives the Borrower written Notice of Default.Creditors;
(c) Failure In the event that Secured Party deems itself insecure for any reason or the Vehicles are deemed by Secured Party to duly and punctually paybe in danger of misuse, observe and discharge all Indebtedness and other obligations of the Borrower to any third partyloss, unless the same is being contested in good faith by appropriate proceedings and the Borrower has set aside on its books adequate reserves with respect to such Indebtedness seizure or confiscation or other obligations.disposition not authorized by this Agreement;
(d) The discovery by the Lender Termination of any material inaccuracy in any statement, assurance, representation, covenant, warranty, term or condition by the Borrower contained in this Agreement or in any document delivered or franchise authorizing Debtor to be delivered by or on behalf of the Borrower pursuant to this Agreement, which inaccuracy would result in a Material Adverse Effect (except that inaccuracies in the Borrower's Due Diligence Documents attributable to the fault or neglect of third-parties shall not constitute a breach of this Section 9.1(d)), or in any other Loan Document, or in any other agreement between the Borrower and the Lender.sell Vehicles;
(e) The filing A misrepresentation by Debtor for the purpose of obtaining credit or an extension of credit or a petition refusal by Debtor to execute documents relating to the Collateral and/or Secured Party's security interest therein or against to furnish financial information to Secured Party at reasonable intervals or to permit persons designated by Secured Party to examine Debtor's books or records and to make periodic inspections of the Borrower or any Affiliate seeking relief under the Federal Bankruptcy Code, 11 U.S.C. ss. 101, et seq., and any amendments thereto, or any similar law or regulation, whether federal, state or local, not dismissed within 30 days.Collateral; or
(f) The commencement Debtor, without Secured Party's prior written consent, shall guarantee, endorse or otherwise become surety for or upon the obligations of others except as may be done in the ordinary course of Debtor's business, shall transfer or otherwise dispose of any proprietary, partnership or share interest Debtor has in his business, or all or substantially all of the assets thereof, shall enter into any merger or consolidation, if a proceeding by corporation, or against shall make any substantial disbursements or use of funds of Debtor's business except as may be done in the Borrower ordinary course of Debtor's business, or assign this Agreement in whole or in part or any Affiliate obligation hereunder. Upon the occurrence of an Event of Default, Secured Party may take immediate possession of said Vehicles without demand or further notice and without legal process; and for the purpose and furtherance thereof, Debtor shall, if Secured Party so requests, assemble the Vehicles and make them available to Secured Party at a reasonably convenient place designated by Secured Party and Secured Party shall have the right, and Debtor hereby authorizes and empowers Secured Party to enter upon the premises wherever said Vehicles may be, to remove same. In addition, Secured Party or its assigns shall have all the rights and remedies applicable under the Uniform Commercial Code or under any other statute or other law providing for an assignment for the benefit of creditors, the appointment of a receiver, or any other similar at common law or regulationin equity or under this Agreement. Such rights and remedies shall be cumulative. Debtor hereby agrees that it shall pay all expenses and reimburse Secured Party for any expenditures, whether federalincluding reasonable attorneys' fees and legal expenses, state or local, not dismissed within 30 days.
(g) The garnishment, attachment, levy or other similar action taken by or on behalf in connection with Secured Party's exercise of any creditor of the Borrower, any Affiliate, or any of their respective properties which could have a Material Adverse Effect.
(h) Any change in control of the Borrower, Madison Liquidity Investors 104, MACG from that disclosed in Section 2 of its rights and remedies under this Agreement.
9.2 The Lender may, at its option, terminate its obligation to make advances of the Loan, without notice to the Borrower:
(a) upon the occurrence and continuance of any Event of Default set forth in subsections 9.1
(a) through 9.1(h) above; or (b) upon the occurrence and continuance of any event which, with the giving of notice or the lapse of time, or both, would constitute an Event of Default or (C) upon the death or disability of ▇▇▇▇▇ ▇.
Appears in 1 contract
Sources: Security Agreement and Master Credit Agreement (Sonic Automotive Inc)
Events of Default and Remedies. 9.1 The following events (a) In the event the LESSEE fails to pay or cause to be paid the Rent when due, and such failure shall constitute an "Event continue for a period of Default" under this Agreementten (1o) days after notice thereof is given LESSEE, the occurrence of which CITY shall entitle have the Lender right, at its election, to pursue any and all rights and remedies, legal and equitable, available to it under any Loan Document or otherwise. The Occurrence of an Event Default under this Agreement shall constitute a default under each and every other Loan Document. The Lender's rights and remedies are cumulative and may be exercised concurrently or successively from time to time. Any action by the Lender against any property or party shall not serve to release or discharge any other security, property or party in connection with this transaction. The Events of Default are as follows:
(a) Failure to pay the principal or interest on the Borrower's present or future indebtedness to the Lender, whether or not arising pursuant to this Agreement, when and as the same shall be due and payable, whether by acceleration or otherwise; provided that such default has not been cured prior to the expiration of ten (10) days following the date upon which the Lender gives the Borrower written Notice of Default. In this Section 9, Notice of Default shall be deemed to have been given (i) on the date of personal delivery of such written notice to a Guarantor, or (ii) on the date on which a duly authorized representative of the Borrower acknowledges receipt of such written notice, or (iii) on the day after sending such written notice to the Borrower by a commonly recognized overnight courier service, such as Federal Express, Purolator, UPS or the like, or (iv) on the third day after sending such written notice to the Borrower by facsimile (to both numbers remedies set forth in Section 16.7) or by depositing herein, and including without limitation, termination of the same in the United States mail, postage prepaid, for delivery to the BorrowerAgreement.
(b) Failure In the event of a default on the part of LESSEE in the payment of amounts due (other than the Rent) or insurance premiums, or any other moneys required to observebe paid by LESSEE under this Agreement, perform if the CITY shall deliver to LESSEE a written notice specifying such default and comply with if the default as specified by such notice shall continue for a period of fifteen (15) days after the date of delivery of such notice, then in such event the CITY shall have the right at its election to pursue any of the obligations evidenced or secured remedies set forth herein.
(c) In the event of any breach of any covenant of this Agreement by a Loan Document▇▇▇▇▇▇, other than as provided specified in Sections 9.1(a(a) above; provided that and (b) of this Article VII, if the CITY shall deliver to LESSEE a written notice specifying such default has not been cured prior to breach and if the expiration breach so specified by such notice shall continue for a period of thirty (30) days following after the date upon which of delivery of such notice without LESSEE having commenced to remove or cure such breach (and thereafter proceeding with reasonable diligence to completely remove or cure such breach), then in such event the Lender gives CITY shall have the Borrower written Notice of Default.
(c) Failure right at its election to duly and punctually pay, observe and discharge all Indebtedness and other obligations pursue any of the Borrower to any third party, unless the same is being contested in good faith by appropriate proceedings and the Borrower has remedies set aside on its books adequate reserves with respect to such Indebtedness or other obligationsforth herein.
(d) The discovery by Upon the Lender of CITY becoming entitled to pursue its remedies against ▇▇▇▇▇▇, the CITY may exercise any material inaccuracy in any statementremedies available to it under this Agreement; provided that if the Rent has been paid, assurance, representation, covenant, warranty, term or condition by the Borrower contained CITY may only terminate LESSEE’s interests in this Agreement or in any document delivered or to be delivered by or on behalf at the CITY’s discretion, as the CITY’s sole remedy against ▇▇▇▇▇▇; provided, however, the CITY may recover against LESSEE the amount of unpaid past due Rent as of the Borrower pursuant date of such termination. Upon the CITY’s electing to terminate, this Agreement, which inaccuracy would result in a Material Adverse Effect (except that inaccuracies in Agreement shall cease and come to an end as if the Borrower's Due Diligence Documents attributable date of notice thereof to LESSEE were the fault or neglect day originally fixed herein for the expiration of third-parties shall not constitute a breach of this Section 9.1(d)), or in any other Loan Document, or in any other agreement between the Borrower and the Lenderterm hereof.
(e) The filing No waiver by the CITY of any default or breach of any covenant, condition, or stipulation contained in this Agreement shall be treated as a petition by waiver of any subsequent default or against breach of the Borrower same or any Affiliate seeking relief under the Federal Bankruptcy Codeother covenant, 11 U.S.C. ss. 101, et seq., and any amendments theretocondition, or any similar law or regulation, whether federal, state or local, not dismissed within 30 daysstipulation in this Agreement.
(f) The commencement of a proceeding by or against the Borrower or any Affiliate under any statute or other law providing for an Neither bankruptcy, insolvency, assignment for the benefit of creditors, the appointment of a receiver, nor the granting of voluntary or any other similar law involuntary relief against LESSEE under applicable debtor’s relief laws, from time to time in effect, shall affect this Agreement nor give the CITY the right to terminate this Agreement so long as all covenants of LESSEE are continued in performance by LESSEE or regulationits sublessee or its LESSEE’s or sublessee’s successors, whether federalassigns, state or local, not dismissed within 30 dayslegal representatives.
(g) The garnishmentCITY shall not be obligated to provide LESSEE with any notices of intent to terminate this Agreement for failure to pay Rent or afford any grace periods thereof in addition to the notices and grace periods provided in (a), attachment(b), levy or other similar action taken by or on behalf and (c) of this Article VII. Anything contained in this Agreement to the contrary notwithstanding, if any creditor default shall occur which entitles the CITY to terminate LESSEE’s interests in this Agreement, the CITY shall have no right to so terminate this Agreement, so long as the installments of “Rent” have been paid to date, unless, following the expiration of the Borrower, any Affiliate, or any period of their respective properties which could have a Material Adverse Effect.
(h) Any change in control of the Borrower, Madison Liquidity Investors 104, MACG from that disclosed in Section 2 of this Agreement.
9.2 The Lender may, at its option, terminate its obligation time given LESSEE to make advances of the Loan, without notice to the Borrower:
cure such default under (a) upon the occurrence and continuance of any Event of Default set forth in subsections 9.1
(a) through 9.1(h) above; or ), (b) upon the occurrence and continuance (c) of any event which, with the giving of notice or the lapse of time, or both, would constitute an Event of Default or (C) upon the death or disability of ▇▇▇▇▇ ▇this Article VII.
Appears in 1 contract
Sources: Ground Lease Agreement
Events of Default and Remedies. 9.1 The Any one or more of the following events shall constitute an "Event of Default" under this Agreement, the occurrence of which shall entitle the Lender to pursue any and all rights and remedies, legal and equitable, available to it under any Loan Document or otherwise. The Occurrence of an Event Default under this Agreement shall constitute a default under each and every other Loan Document. The Lender's rights and remedies are cumulative and may be exercised concurrently or successively from time to time. Any action by the Lender against any property or party shall not serve to release or discharge any other security, property or party in connection with this transaction. The Events of Default are as followshereunder:
(a) Failure The Borrower shall default in the payment of principal interest in respect of the Note or any other amounts payable under this Agreement when due;
(b) Any representation, warranty or statement made by the Borrower herein or in connection with the making of the Loan proves to pay be incorrect in any material respect as of the date of the issuance or making thereof,
(c) The Borrower shall default in the due performance or observance by it of any term, covenant or agreement (other than those referred to in subparts (a) and (b), inclusive, of this Section 9.1) contained in this Agreement and such default shall continue unremedied for a period of 30 days after notice to the Borrower by the Lender or any other holder of the Note;
9.2 When any Event of Default described in subsections (a) to (c), of Section 9.1 has occurred and is continuing, the Lender or the holder of the Note shall have no rights to assets of the Trust other than (i) contributions (other than contributions of employer securities) that are made by the Lender to enable the Borrower to meet its obligations pursuant to the Loan, cash dividends received by the Borrower on the Shares and earnings attributable to the investment of such contributions and dividends and (ii) the Pledged Stock; provided further, however, that the value of Trust assets transferred to the Lender as a result of an Event of Default shall not exceed the amount of the repayment then in default, and, provided further, that so long as the Lender is a "party in interest" within the meaning of ERISA Section 3(14) and a "disqualified person" within the meaning of Section 4975(e)(2) of the Code, a transfer of Trust assets upon default shall be made only if, and to the extent of, the Borrower's failure to meet the loan's payment schedule.
9.3 When any Event of Default has occurred and is continuing the Lender may, in addition to such other rights or remedies as it may have, then or at any time or times thereafter exercise with respect to the Collateral any and all of the rights, options and remedies of a secured party under the Uniform Commercial Code of New York (the "UCC") including without limitation the sale of all or any part of the Collateral at any brokers' board any public or private sale, provided, however that the Lender shall only be able to exercise such rights and remedies to the extent of all interest and principal payments which are due and payable as of the date of the Event of Default and provided further that prior to such exercise the Lender shall release from the Collateral so much thereof as it would have been required to release under Section 3.4 hereof if the period from the previous December 31 to the date of such release constituted a Plan Year and no Event of Default had occurred. The net proceeds of any such sale, after deducting all costs and expenses incurred in the collection, protection, sale and delivery of the Collateral (which expenses the Borrower promises to pay) shall be applied first to the payment of any costs and expenses incurred by the Lender in selling or otherwise disposing of the Collateral; second, to the payment of the principal or of and the interest on the Borrower's present or future Note; and, third, ratably as among any other items of the indebtedness hereby secured. Any surplus remaining after the full payment and satisfaction of the foregoing shall be returned to the Lender, whether Borrower or not arising pursuant to this Agreement, when and whomsoever a court of competent jurisdiction shall determine to be entitled thereto. Any requirement of said UCC as the same to reasonable notice shall be due and payable, whether met by acceleration or otherwise; provided that such default has not been cured prior the Lender personally delivering mailing notice (by certified mail - return receipt requested) to the expiration of Borrower at its address as provided in Section 11.6 hereof at least ten (10) days following prior to the date upon event giving rise to the requirement of such notice. In connection with any offer, solicitation or sale of the Collateral, the Lender may restrict bidders and otherwise proceed in whatever manner it reasonably believes appropriate in order to comply or assure compliance with applicable legal requirements pertaining to the offer and sale of securities of the same type as the Collateral.
9.4 The number of shares of Pledged Stock as to which the Lender gives may exercise the Borrower written Notice of Default. In rights set forth in this Section 9, Notice 9 may not exceed that number of Default shall be deemed shares (then remaining subject to have been given (ipledge hereunder) on the date of personal delivery of such written notice to a Guarantor, or (ii) on the date on which a duly authorized representative of the Borrower acknowledges receipt of such written notice, or (iii) on the day after sending such written notice is then equal in current value to the Borrower by a commonly recognized overnight courier service, such as Federal Express, Purolator, UPS or amount in default under the like, or (iv) on the third day after sending such written notice Note. The remedies set forth in this Section 8 may only be exercised to the Borrower by facsimile (to both numbers extent consistent with the restrictions on remedies set forth in Section 16.7408(b)(3) or by depositing of ERISA and the same in the United States mail, postage prepaid, for delivery to the Borrower.
(bregulations thereunder and Section 4975(d)(3) Failure to observe, perform and comply with any of the obligations evidenced or secured by a Loan Document, other than as provided in Sections 9.1(a) above; provided that such default has not been cured prior to the expiration of thirty (30) days following the date upon which the Lender gives the Borrower written Notice of Default.
(c) Failure to duly and punctually pay, observe and discharge all Indebtedness and other obligations of the Borrower to any third party, unless the same is being contested in good faith by appropriate proceedings Code and the Borrower has set aside on its books adequate reserves with respect to such Indebtedness or other obligationsregulations thereunder.
(d) The discovery by the Lender of any material inaccuracy in any statement, assurance, representation, covenant, warranty, term or condition by the Borrower contained in this Agreement or in any document delivered or to be delivered by or on behalf of the Borrower pursuant to this Agreement, which inaccuracy would result in a Material Adverse Effect (except that inaccuracies in the Borrower's Due Diligence Documents attributable to the fault or neglect of third-parties shall not constitute a breach of this Section 9.1(d)), or in any other Loan Document, or in any other agreement between the Borrower and the Lender.
(e) The filing of a petition by or against the Borrower or any Affiliate seeking relief under the Federal Bankruptcy Code, 11 U.S.C. ss. 101, et seq., and any amendments thereto, or any similar law or regulation, whether federal, state or local, not dismissed within 30 days.
(f) The commencement of a proceeding by or against the Borrower or any Affiliate under any statute or other law providing for an assignment for the benefit of creditors, the appointment of a receiver, or any other similar law or regulation, whether federal, state or local, not dismissed within 30 days.
(g) The garnishment, attachment, levy or other similar action taken by or on behalf of any creditor of the Borrower, any Affiliate, or any of their respective properties which could have a Material Adverse Effect.
(h) Any change in control of the Borrower, Madison Liquidity Investors 104, MACG from that disclosed in Section 2 of this Agreement.
9.2 The Lender may, at its option, terminate its obligation to make advances of the Loan, without notice to the Borrower:
(a) upon the occurrence and continuance of any Event of Default set forth in subsections 9.1
(a) through 9.1(h) above; or (b) upon the occurrence and continuance of any event which, with the giving of notice or the lapse of time, or both, would constitute an Event of Default or (C) upon the death or disability of ▇▇▇▇▇ ▇.
Appears in 1 contract
Sources: Loan and Security Agreement (Astoria Financial Corp)
Events of Default and Remedies. 9.1 The Section 9.1. Any one or more of the following events shall constitute an "Event of Default" under this Agreement, the occurrence of which shall entitle the Lender to pursue any and all rights and remedies, legal and equitable, available to it under any Loan Document or otherwise. The Occurrence of an Event Default under this Agreement shall constitute a default under each and every other Loan Document. The Lender's rights and remedies are cumulative and may be exercised concurrently or successively from time to time. Any action by the Lender against any property or party shall not serve to release or discharge any other security, property or party in connection with this transaction. The Events of Default are as followshereunder:
(a) Failure to pay default in the payment when due of any principal on any Note or Application, whether at the stated maturity thereof or at any other time provided for in this Agreement; or default in the payment when due of any interest on any Note or Application or fee, charge or other amount payable by the Borrower's present Company hereunder or future indebtedness under any other Loan Document and the continuance of such default for 2 Business Days after notice thereof to the Company from the Administrative Agent or any Lender;
(b) default in the observance or performance of any covenant set forth in Sections 8.10, whether 8.11, 8.12 or 8.13 hereof;
(c) default in the observance or performance of any other provision hereof or any of the other Loan Documents which is not arising pursuant remedied within 20 days after written notice thereof to this Agreement, the Company by the Administrative Agent or any Lender or by the holder of any Note;
(d) default shall occur in the payment when and as the same shall be due and payable, (whether by lapse of time, acceleration or otherwise; ) of any indebtedness (including as such all obligations included in Consolidated Total Indebtedness as such term is defined herein) aggregating in excess of $10,000,000 issued, assumed or guaranteed by the Company or any Subsidiary or any other event of default shall occur with respect to any such indebtedness beyond any period of grace provided that therefor if the effect thereof is to permit the maturity of such default indebtedness to be accelerated or to permit the holders thereof to elect a majority of the Board of Directors of the Company;
(e) any representation or warranty made herein or in any of the other Loan Documents or in any statement or certificate furnished pursuant hereto or thereto, or in connection with any advance or issuance made hereunder or by any person in connection with the transactions contemplated hereby, proves untrue in any material respect as of the date of the issuance or making thereof, and shall not be made good within 30 days after notice thereof to the Company by the Administrative Agent;
(f) any judgment or judgments, writ or writs or warrant or warrants or attachment, or any similar process or processes in an aggregate amount in excess of $15,000,000 more than the amount, if any, covered by insurance (as to which the insurer has not been cured prior disclaimed or disputed in writing its obligations for coverage or otherwise failed to pay when due) shall be entered or filed against the Company or any Subsidiary or against any of the property or assets of any of them and remains undischarged, unvacated, unbonded or unstayed for a period of 30 days;
(g) any event occurs or condition exists which is specified as an event of default under any of the other Loan Documents after the expiration of ten any applicable notice or grace periods;
(10h) days following any of the date upon which Loan Documents shall for any reason not be or shall cease to be in full force and effect, or any of the Lender gives Loan Documents is declared to be null and void, or the Borrower written Notice Company or any Guarantor takes any action for the purpose of Default. In this Section 9repudiating or rescinding any Loan Document executed by it or the obligations of such Person thereunder;
(i) 50% or more of the issued and outstanding Voting Stock of the Company is owned or controlled, Notice either legally or beneficially, by any Person or by any group of Default Persons affiliated with each other or acting in concert (Persons shall not be deemed to have been given acted in concert merely as a result of voting the same way or taking the same position if the decision to vote or to take a position were made independently and without prior consultation) other than ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇ and/or his wife and/or his descendants and/or trusts or estates for the benefit of his wife and/or descendants;
(ij) on the date Company or any Material Subsidiary or any Material Foreign Subsidiary becomes insolvent or bankrupt or bankruptcy, reorganization, arrangement, insolvency or liquidation proceedings or other proceedings for relief under any bankruptcy law or laws for the relief of personal delivery debtors are instituted against the Company or any Material Subsidiary or any Material Foreign Subsidiary and are not dismissed within 60 days after such institution or a decree or order of a court having jurisdiction in the premises for the appointment of a trustee or receiver or custodian for the Company or any Material Subsidiary or any Material Foreign Subsidiary or for the major part of any of their property is entered and the trustee or receiver or custodian appointed pursuant to such decree or order is not discharged within 60 days after such appointment; or
(k) the Company or any Material Subsidiary or any Material Foreign Subsidiary shall institute bankruptcy, reorganization, arrangement, insolvency or liquidation proceedings or other proceedings for relief under any bankruptcy law or laws for the relief of debtors or shall consent to the institution of such written notice to a Guarantor, proceedings against it by others or (ii) on the date on which a duly authorized representative of the Borrower acknowledges receipt of such written notice, or (iii) on the day after sending such written notice to the Borrower by a commonly recognized overnight courier service, such as Federal Express, Purolator, UPS or the like, or (iv) on the third day after sending such written notice to the Borrower by facsimile (to both numbers set forth in Section 16.7) or by depositing the same in the United States mail, postage prepaid, for delivery to the Borrower.
(b) Failure to observe, perform and comply with any of the obligations evidenced or secured by a Loan Document, other than as provided in Sections 9.1(a) above; provided that such default has not been cured prior to the expiration of thirty (30) days following the date upon which the Lender gives the Borrower written Notice of Default.
(c) Failure to duly and punctually pay, observe and discharge all Indebtedness and other obligations of the Borrower to any third party, unless the same is being contested in good faith by appropriate proceedings and the Borrower has set aside on its books adequate reserves with respect to such Indebtedness or other obligations.
(d) The discovery by the Lender entry of any material inaccuracy in decree or order adjudging it bankrupt or insolvent or approving as filed any statement, assurance, representation, covenant, warranty, term petition seeking reorganization under any bankruptcy or condition by the Borrower contained in this Agreement or in any document delivered or to be delivered by or on behalf of the Borrower pursuant to this Agreement, which inaccuracy would result in a Material Adverse Effect (except that inaccuracies in the Borrower's Due Diligence Documents attributable to the fault or neglect of third-parties shall not constitute a breach of this Section 9.1(d)), or in any other Loan Document, or in any other agreement between the Borrower and the Lender.
(e) The filing of a petition by or against the Borrower or any Affiliate seeking relief under the Federal Bankruptcy Code, 11 U.S.C. ss. 101, et seq., and any amendments thereto, or any similar law or regulation, whether federal, state shall apply for or local, not dismissed within 30 days.
(f) The commencement shall consent to the appointment of a proceeding by receiver or against trustee or custodian for it or for the Borrower major part of its property or any Affiliate under any statute or other law providing for shall make an assignment for the benefit of creditors, creditors or shall admit in writing its inability to pay its debts as they mature or shall take any corporate action in contemplation or in furtherance of any of the appointment of a receiver, or any other similar law or regulation, whether federal, state or local, not dismissed within 30 days.foregoing purposes; or
(gl) The garnishment, attachment, levy any event occurs or other similar action taken by or on behalf condition exists which is specified as an "Event of any creditor of Default" under the Borrower, any Affiliate, or any of their respective properties which could have a Material Adverse Effect.
(h) Any change in control of the Borrower, Madison Liquidity Investors 104, MACG from that disclosed in Section 2 of this Five-Year Credit Agreement.
9.2 The Lender maySection 9.2. When any Event of Default described in subsections 9.1(a) to 9.1(i), at its optionboth inclusive, terminate its obligation to make advances or subsection 9.1(l) has occurred and is continuing, the Administrative Agent may (and shall, upon request of the LoanRequired Lenders), without by notice to the BorrowerCompany, take any or all of the following actions:
(a) terminate the obligation of the Lenders to extend any further credit hereunder on the date (which may be the date thereof) stated in such notice (such termination shall be effective upon verbal notification, the occurrence Administrative Agent hereby agreeing to provide written notification thereof to the Company as soon as practical thereafter);
(b) declare the principal of and continuance the accrued interest on the Notes to be forthwith due and payable and thereupon the Notes, including both principal and interest, and all fees, charges, commissions and other Obligations payable under the Loan Documents, shall be and become immediately due and payable without further demand, presentment, protest or notice of any kind; and
(c) enforce any and all rights and remedies available under the Loan Documents or applicable law.
Section 9.3. When any Event of Default set forth described in subsections 9.1
9.1(j) or (k) has occurred and is continuing, then (a) through 9.1(h) above; the then unpaid balance of the Notes, including both principal and interest, and all fees, charges, commissions and other Obligations payable under the Loan Documents, shall immediately become due and payable without presentment, demand, protest or notice of any kind, (b) upon the occurrence obligation of the Lenders to extend further credit pursuant to any of the terms hereof shall immediately and continuance of any event whichautomatically terminate, with and (c) the giving of notice Administrative Agent may exercise all remedies available to it under the Loan Documents or the lapse of time, or both, would constitute an Event of Default or (C) upon the death or disability of ▇▇▇▇▇ ▇applicable law.
Appears in 1 contract
Events of Default and Remedies. 9.1 8.1. The following events occurrence of an Event of Default, as defined in the Credit Agreement, shall constitute an "Event of Default" under this Agreement, .
8.2. Lender shall at all times have the occurrence of which shall entitle the Lender to pursue any and all rights and remedies, legal and equitable, available to it under any Loan Document or otherwise. The Occurrence of an Event Default under this Agreement shall constitute a default under each and every other Loan Document. The Lender's rights and remedies are cumulative of a secured party under the U.C.C. and may be exercised concurrently or successively the Ohio Revised Code as in effect from time to time. Any action by the Lender against any property or party shall not serve to release or discharge any other security, property or party in connection with this transaction. The Events of Default are as follows:
(a) Failure to pay the principal or interest on the Borrower's present or future indebtedness addition to the Lender, whether or not arising pursuant to rights and remedies of a secured party provided elsewhere within this Agreement, when and as the same shall be due and payable, whether by acceleration any Note or otherwise; provided that such default has not been cured prior to the expiration of ten (10) days following the date upon which the Lender gives the Borrower written Notice of Default. In this Section 9, Notice of Default shall be deemed to have been given (i) on the date of personal delivery of such written notice to a Guarantor, or (ii) on the date on which a duly authorized representative of the Borrower acknowledges receipt of such written notice, or (iii) on the day after sending such written notice to the Borrower by a commonly recognized overnight courier service, such as Federal Express, Purolator, UPS or the like, or (iv) on the third day after sending such written notice to the Borrower by facsimile (to both numbers set forth in Section 16.7) or by depositing the same in the United States mail, postage prepaid, for delivery to the Borrower.
(b) Failure to observe, perform and comply with any of the obligations evidenced or secured by a Loan Document, other than as provided in Sections 9.1(a) above; provided that such default has not been cured prior to the expiration of thirty (30) days following the date upon which the Lender gives the Borrower written Notice of Default.
(c) Failure to duly and punctually pay, observe and discharge all Indebtedness and other obligations of the Borrower to any third party, unless the same is being contested in good faith by appropriate proceedings and the Borrower has set aside on its books adequate reserves with respect to such Indebtedness or other obligations.
(d) The discovery by the Lender of any material inaccuracy in any statement, assurance, representation, covenant, warranty, term or condition by the Borrower contained in this Agreement or in any document delivered or to be delivered by or on behalf of the Borrower pursuant to this Agreement, which inaccuracy would result in a Material Adverse Effect (except that inaccuracies in the Borrower's Due Diligence Documents attributable to the fault or neglect of third-parties shall not constitute a breach of this Section 9.1(d)), or in any other Loan Document, or otherwise provided in any other agreement between law or equity.
8.3. Pledgor expressly acknowledges that Lender shall record this Agreement with the Borrower USCO and the Lender.
(e) The filing USPTO, as appropriate. Contemporaneously herewith, Pledgor shall execute and deliver to Lender the Assignment, which Assignment shall have no force and effect and shall be held by Lender in escrow until the occurrence of a petition by or against an Event of Default; provided, that, anything herein to the Borrower or any Affiliate seeking relief under the Federal Bankruptcy Code, 11 U.S.C. ss. 101, et seq., and any amendments thereto, or any similar law or regulation, whether federal, state or local, not dismissed within 30 days.
(f) The commencement of a proceeding by or against the Borrower or any Affiliate under any statute or other law providing for an assignment for the benefit of creditorscontrary notwithstanding, the appointment of a receiver, or any other similar law or regulation, whether federal, state or local, not dismissed within 30 days.
(g) The garnishment, attachment, levy or other similar action taken by or on behalf of any creditor security interest and collateral assignment granted herein shall be effective as of the Borrower, any Affiliate, or any of their respective properties which could have a Material Adverse Effect.
(h) Any change in control of the Borrower, Madison Liquidity Investors 104, MACG from that disclosed in Section 2 date of this Agreement.
9.2 The . After the occurrence of an Event of Default, the Assignment shall immediately take effect upon certification of such fact by an authorized officer of Lender in the form reflected on the face of the Assignment and Lender may, at in its optionsole discretion, terminate its obligation to make advances of record the Loan, without notice to the Borrower:
(a) upon the occurrence and continuance of any Event of Default set forth in subsections 9.1
(a) through 9.1(h) above; or (b) upon the occurrence and continuance of any event which, Assignment with the giving of notice or USCO and the lapse of timeUSPTO, or both, would constitute as appropriate.
8.4. If an Event of Default shall occur, Pledgor irrevocably authorizes and empowers Lender to terminate Pledgor's use of the Collateral and to exercise such rights and remedies as allowed by law. Without limiting the generality of the foregoing, after any delivery or taking of possession of the Collateral, or any thereof, pursuant to this Agreement, then, with or without resort to Pledgor or any other Person or property, all of which Pledgor hereby waives, and upon such terms and in such manner as Lender may deem advisable but subject to the provisions of the Intercreditor Agreement, Lender, in its sole discretion, may sell, assign, transfer and deliver any of the Collateral, together with the associated goodwill, or any interest that Pledgor may have therein, at any time, or from time to time. No prior notice need be given to Pledgor or to any other Person in the case of any sale of Collateral that Lender determines to be declining speedily in value or that is customarily sold in any recognized market, but in any other case Lender shall give Pledgor no fewer than ten days prior notice of either the time and place of any public sale of the Collateral or of the time after which any private sale or other intended disposition thereof is to be made. Pledgor waives advertisement of any such sale and (Cexcept to the extent specifically required by the preceding sentence) upon waives notice of any kind in respect of any such sale. At any such public sale, Lender may purchase the death Collateral, or disability any part thereof, free from any right of ▇▇▇▇▇ ▇redemption, all of which rights Pledgor hereby waives and releases. After deducting all Related Expenses, and after paying all claims, if any, secured by liens having precedence over this Agreement, Lender may apply the net proceeds of each such sale to or toward the payment of the Obligations, whether or not then due, in such order and by such division as Lender in its sole discretion may deem advisable. Any excess, to the extent permitted by law, shall be paid to Pledgor, and the obligors on the Obligations shall remain liable for any deficiency. In addition, Lender shall at all times have the right to obtain new appraisals of Pledgor or the Collateral, the cost of which shall be paid by Pledgor.
Appears in 1 contract
Sources: Intellectual Property Security Agreement (S&W Seed Co)
Events of Default and Remedies. 9.1 7.1 The following events shall constitute an "Event Principal amount of Default" under this Agreementthe Loan outstanding, the occurrence of which shall entitle plus all interest, costs and all other money owing to the Lender to pursue any and all rights and remedies, legal and equitable, available to it under any Loan Document or otherwise. The Occurrence of an Event Default under this Agreement shall constitute a default under each and every other Loan Document. The Lender's rights and remedies are cumulative and may be exercised concurrently or successively from time to time. Any action immediately become payable upon demand by the Lender against Lender, unless otherwise waived in writing by the Lender, in any property or party shall not serve to release or discharge any other security, property or party in connection with this transaction. The Events of Default are as follows:the following events (each an “Event of Default”):
(a) Failure to pay if the principal Borrower shall default in any payment of Principal, interest or interest on the Borrower's present or future indebtedness to the Lender, whether or not arising pursuant to this Agreement, other amount when and as the same shall be due is required hereunder and payable, whether by acceleration or otherwise; provided that such default has not been cured prior to the expiration continued for a period of ten seven (107) days following the date upon which after notice in writing has been given by the Lender gives the Borrower written Notice of Default. In this Section 9, Notice of Default shall be deemed to have been given (i) on the date of personal delivery of such written notice to a Guarantor, or (ii) on the date on which a duly authorized representative of the Borrower acknowledges receipt of such written notice, or (iii) on the day after sending such written notice to the Borrower by a commonly recognized overnight courier service, specifying such as Federal Express, Purolator, UPS or the like, or (iv) on the third day after sending such written notice to the Borrower by facsimile (to both numbers set forth in Section 16.7) or by depositing the same in the United States mail, postage prepaid, for delivery to the Borrower.default;
(b) Failure to observe, perform and comply with any of the obligations evidenced or secured by a Loan Document, other than as provided in Sections 9.1(a) above; provided that such default has not been cured prior to the expiration of thirty (30) days following the date upon which the Lender gives if the Borrower written Notice of Default.
(c) Failure to duly and punctually pay, observe and discharge all Indebtedness and other obligations of the Borrower to any third party, unless the same is being contested in good faith by appropriate proceedings and the Borrower has set aside on its books adequate reserves with respect to such Indebtedness shall become insolvent or other obligations.
(d) The discovery by the Lender of any material inaccuracy in any statement, assurance, representation, covenant, warranty, term or condition by the Borrower contained in this Agreement or in any document delivered or to be delivered by or on behalf of the Borrower pursuant to this Agreement, which inaccuracy would result in shall make a Material Adverse Effect (except that inaccuracies in the Borrower's Due Diligence Documents attributable to the fault or neglect of third-parties shall not constitute a breach of this Section 9.1(d)), or in any other Loan Document, or in any other agreement between the Borrower and the Lender.
(e) The filing of a petition by or against the Borrower or any Affiliate seeking relief under the Federal Bankruptcy Code, 11 U.S.C. ss. 101, et seq., and any amendments thereto, or any similar law or regulation, whether federal, state or local, not dismissed within 30 days.
(f) The commencement of a proceeding by or against the Borrower or any Affiliate under any statute or other law providing for an general assignment for the benefit of its creditors, or if an order be made or an effective resolution be passed for the appointment winding-up, merger or amalgamation of the Borrower or if the Borrower shall be declared bankrupt or if a receivercustodian or receiver be appointed for the Borrower under the Bankruptcy and Insolvency Act (Canada), or if a compromise or arrangement is proposed by the Borrower to its creditors or any class of its creditors, or if a receiver or other officer with like powers shall be appointed for the Borrower; or
(c) if the Borrower defaults in observing or performing any other similar law covenant or regulation, whether federal, state agreement of this Agreement on its part to be observed or local, not dismissed within 30 daysperformed and such default has continued for a period of seven (7) days after notice in writing has been given by the Lender to the Borrower specifying such default.
(g) 7.2 The garnishmentremedies, attachmentrights and powers of the Lender under this Agreement, levy any Drawdown Note and at law and in equity are cumulative and not alternative and are not in substitution for any other remedies, rights or other similar action taken by powers of the Lender and no delay or on behalf omission in exercise of any creditor such remedy, right or power will exhaust such remedies, rights or powers or be construed as a waiver of the Borrower, any Affiliate, or any of their respective properties which could have a Material Adverse Effectthem.
(h) Any change in control of the Borrower, Madison Liquidity Investors 104, MACG from that disclosed in Section 2 of this Agreement.
9.2 The Lender may, at its option, terminate its obligation to make advances of the Loan, without notice to the Borrower:
(a) upon the occurrence and continuance of any Event of Default set forth in subsections 9.1
(a) through 9.1(h) above; or (b) upon the occurrence and continuance of any event which, with the giving of notice or the lapse of time, or both, would constitute an Event of Default or (C) upon the death or disability of ▇▇▇▇▇ ▇.
Appears in 1 contract
Events of Default and Remedies. 9.1 The Without notice or demand (which are hereby waived), the entire unpaid principal balance of and all accrued interest on this Note shall immediately become due and payable at the option of the holder hereof upon the occurrence of any one or more of the following events shall constitute of default (individually or collectively, herein called an "Event of Default" under this Agreement, the occurrence of which shall entitle the Lender to pursue any and all rights and remedies, legal and equitable, available to it under any Loan Document or otherwise. The Occurrence of an Event Default under this Agreement shall constitute a default under each and every other Loan Document. The Lender's rights and remedies are cumulative and may be exercised concurrently or successively from time to time. Any action by the Lender against any property or party shall not serve to release or discharge any other security, property or party in connection with this transaction. The Events of Default are as follows:"):
(a) Failure the failure or refusal of Maker to pay all or any part of the principal of or accrued interest on the Borrower's present or future indebtedness to the Lender, whether or not arising pursuant to this Agreement, Note as and when and as the same shall be becomes due and payablepayable in accordance with the terms hereof;
(b) the occurrence of a breach, whether by acceleration default, or otherwise; provided event of default under Sections 8.4, 8.6 or 8.7 of that certain Securities Purchase Agreement dated as of September 25, 1996 (the "Securities Purchase Agreement") between Payee and Maker;
(c) the occurrence of a breach, default, or event of default under the Securities Purchase Agreement (other than as specified in Section 2(b) above), and the continuation of such breach, default, or event of default has not been cured prior to the expiration for a period of ten (10) twenty days following the date upon which the Lender gives the Borrower written Notice of Default. In this Section 9, Notice of Default shall be deemed to have been given after (i) on the date of personal delivery of such written notice thereof is delivered by Payee to a Guarantor, Maker or (ii) on the date on which a duly authorized representative failure of Maker to deliver the compliance certificate required by Section 8.2(b) of the Borrower acknowledges receipt of such written notice, Securities Purchase Agreement or (iii) on the day after sending date specified in the compliance certificate as the date of the occurrence of such written notice to the Borrower by a commonly recognized overnight courier servicebreach, such as Federal Express, Purolator, UPS or the likedefault, or (iv) on event of default, whichever is the third day after sending such written notice earliest to the Borrower by facsimile (to both numbers set forth in Section 16.7) or by depositing the same in the United States mail, postage prepaid, for delivery to the Borrower.
(b) Failure to observe, perform and comply with any of the obligations evidenced or secured by a Loan Document, other than as provided in Sections 9.1(a) above; provided that such default has not been cured prior to the expiration of thirty (30) days following the date upon which the Lender gives the Borrower written Notice of Default.
(c) Failure to duly and punctually pay, observe and discharge all Indebtedness and other obligations of the Borrower to any third party, unless the same is being contested in good faith by appropriate proceedings and the Borrower has set aside on its books adequate reserves with respect to such Indebtedness or other obligations.occur;
(d) The discovery any representation or warranty made by Pledgor (as defined in those certain Pledge and Security Agreements (herein so called), dated on or about the Lender of any material inaccuracy in any statementdate hereof, assurance, representation, covenant, warranty, term or condition executed by the Borrower contained in this Agreement or in any document delivered or to be delivered by or on behalf Payee and each of the Borrower pursuant to this Agreement, which inaccuracy would result in a Material Adverse Effect (except that inaccuracies in the Borrower's Due Diligence Documents attributable to the fault or neglect of third-parties shall not constitute a breach of this Section 9.1(d)), or in any other Loan Document, or in any other agreement between the Borrower and the Lender.
(e) The filing of a petition by or against the Borrower or any Affiliate seeking relief under the Federal Bankruptcy Code, 11 U.S.C. ss. 101, et seq., and any amendments thereto, or any similar law or regulation, whether federal, state or local, not dismissed within 30 days.
(f) The commencement of a proceeding by or against the Borrower or any Affiliate under any statute or other law providing for an assignment for the benefit of creditorsMayn▇▇▇ ▇▇▇ily Trust, the appointment of a receiver, or any other similar law or regulation, whether federal, state or local, not dismissed within 30 days.
(g) The garnishment, attachment, levy or other similar action taken by or on behalf of any creditor of the Borrower, any Affiliate, or any of their respective properties which could have a Material Adverse Effect.
(h) Any change in control of the Borrower, Madison Liquidity Investors 104, MACG from that disclosed in Section 2 of this Agreement.
9.2 The Lender may, at its option, terminate its obligation to make advances of the Loan, without notice to the Borrower:
(a) upon the occurrence and continuance of any Event of Default set forth in subsections 9.1
(a) through 9.1(h) above; or (b) upon the occurrence and continuance of any event which, with the giving of notice or the lapse of time, or both, would constitute an Event of Default or (C) upon the death or disability of John ▇. ▇▇▇▇▇ ▇▇▇st, and Tim ▇▇▇▇▇▇), or any of such Pledgor's officers or trustees, under or in connection with any of the Pledge and Security Agreements shall prove to have been incorrect in any material respect when made;
(e) the occurrence of breach or event of default under that certain Voting Agreement dated on or about the date hereof among Will▇▇▇ ▇. ▇▇▇▇, ▇▇s spouse, the Will▇▇▇ ▇▇▇▇ ▇▇▇irement Trust, B&G Partnership, Ltd., BCG Partnership, Ltd. and Maker;
(f) Maker, Pledgor or any guarantor of this Note shall (i) become insolvent within the meaning of the Bankruptcy Code of the United States, as amended, (ii) admit in writing its or his inability to pay or otherwise fail to pay its or his debts generally as they become due, (iii) voluntarily seek, consent to, or acquiesce in the benefit or benefits of any Debtor Relief Law (meaning the Bankruptcy Code of the United States, as amended, and all other applicable liquidation, conservatorship, bankruptcy, moratorium, rearrangement, receivership, insolvency, reorganization, or similar debtor relief laws from time to time in effect affecting the rights of creditors generally), or (iv) be made the subject of any proceeding provided for by any Debtor Relief Law that could suspend or otherwise affect any of the rights of the holder hereof; 26
(g) the nonpayment when due of any other material indebtedness owed by Maker, or the occurrence of any event under any document or instrument evidencing, securing, or executed in connection with any such indebtedness which could give the holder thereof the right to declare such indebtedness or any part thereof due prior to its scheduled maturity;
(h) the discovery by the holder hereof that any statement, representation, or warranty made by Maker in any writing, document, or instrument ever delivered to the holder hereof in connection herewith was at the time made false, misleading, or erroneous in any material respect;
(i) the occurrence of a breach, default, or event of default under any security agreement, deed of trust, mortgage, assignment, or other collateral document or instrument executed and delivered by Maker (other than as specified above in this Section 2), any Pledgor or any guarantor in connection herewith and the continuation of such default or event of default for a period of twenty days after notice thereof from Payee to Maker;
(j) any guarantor or Pledgor that is an entity dissolves; a final judgment is entered against Maker, Pledgor or any guarantor of this Note for the payment of money in excess of $25,000 in the aggregate and remains unsatisfied for thirty days after entry, or any property of Maker or any such guarantor or Pledgor is attached, garnished or otherwise made such to legal process; or
(k) Robe▇▇ ▇▇▇▇▇▇▇ ▇▇ no longer the Chief Executive Officer of Maker. Upon the occurrence of an Event of Default, the holder of this Note may (a) offset against this Note any sum or sums owed by the holder hereof to Maker or any guarantor of this Note, (b) foreclose any or all liens or security interests given to secure the repayment of the indebtedness evidenced by this Note, and (c) proceed to protect and enforce its rights either by suit in equity and/or by action at law, or by other appropriate proceedings, whether for the specific performance of any covenant or agreement contained in this Note or any document or instrument executed and delivered by Maker or any guarantor of this Note in connection with this Note or in aid of the exercise of any power or right granted by this Note or any document or instrument executed and delivered by Maker or any guarantor of this Note in connection with this Note or to enforce any other legal or equitable right of the holder of this Note.
Appears in 1 contract
Sources: Securities Purchase Agreement (Internet America Inc)
Events of Default and Remedies. 9.1 The parties covenant and agree to the following events shall constitute an "Event of Default" under this Agreement, the occurrence of which shall entitle the Lender to pursue any and all rights and remedies, legal and equitable, available to it under any Loan Document or otherwise. The Occurrence of an Event Default under this Agreement shall constitute a default under each and every other Loan Document. The Lender's rights and remedies are cumulative and may be exercised concurrently or successively from time to time. Any action by the Lender against any property or party shall not serve to release or discharge any other security, property or party in connection with this transaction. The Events of Default are as followsprovisions:
(a) Failure to pay If any one or more of the principal Events of Default shall occur or shall exist, the Bank may then, or at any time thereafter, so long as such Event of Default shall continue, foreclose its lien or security interest on in the Borrower's present Collateral in any way permitted by law, or future indebtedness to the Lender, whether or not arising pursuant to this Agreement, when and as the same shall be due and payable, whether by acceleration or otherwise; provided that such default has not been cured prior to the expiration of upon ten (10) days following the date upon which the Lender gives the Borrower written Notice of Default. In this Section 9, Notice of Default shall be deemed to have been given (i) on the date of personal delivery of such written notice to a Guarantor, or (ii) on the date on which a duly authorized representative of the Borrower acknowledges receipt of such written notice, or (iii) on the day after sending such prior written notice to the Borrower by a commonly recognized overnight courier serviceBorrower, sell any or all Collateral at private sale at any time or place in one or more sales, at such price or prices and upon such terms, either for cash or on credit, as Federal Expressthe Bank, Purolatorin its sole discretion, UPS or the likemay elect, or (iv) sell any or all Collateral at public auction, either for cash or on credit, as the third day after sending Bank, in its sole discretion, may elect, and at any such written notice to sale, the Bank may bid for and become the purchaser of any or all such Collateral. Borrower shall be credited with the net proceeds of such sale or assignment only when they are actually received by the Bank, and the Borrower by facsimile (shall continue to both numbers set forth in Section 16.7) be liable for any deficiency remaining after the Collateral is sold, assigned or by depositing collected. The Bank may be the same in purchaser of any or all of the United States mail, postage prepaidCollateral at any such sale or assignment and shall be entitled, for delivery the purpose of bidding and making settlement or payment of the purchase price for all or any portion of the Collateral sold at any such sale or assignment, to use and apply all or any part of the Borrower.Obligations as a credit on account of the purchase price of any collateral payable by the Bank at such sale. Pending any such action the Bank may liquidate the Collateral in accordance with applicable law;
(b) Failure If any one or more of the Events of Default shall occur or shall exist, the Bank may then, or at any time thereafter, so long as such Event of Default shall continue, grant extensions to, or adjust claims of, or make compromises or settlements with, debtors, guarantors or any other parties with respect to observeCollateral or any securities, perform and comply with guarantees or insurance applying thereon, without notice to or the consent of the Borrower, without affecting the Borrower’s liability under this Security Agreement, the Credit Agreement, the Notes or any of the obligations evidenced other Loan Documents. The Borrower waives notice of acceptance, of nonpayment, protest or secured by a Loan Document, notice of protest of any Accounts or Chattel Paper or any of its contract rights and any other than as provided in Sections 9.1(a) above; provided that such default has not been cured prior notices to the expiration of thirty (30) days following the date upon which the Lender gives the Borrower written Notice of Default.may be entitled;
(c) Failure to duly and punctually pay, observe and discharge all Indebtedness and other obligations If any one or more of the Borrower Events of Default shall occur or shall exist and be continuing, then in any such event, the Bank shall have such additional rights and remedies in respect of the Collateral or any portion thereof as are provided by the Code and such other rights and remedies in respect thereof which it may have at law or in equity or under the Credit Agreement, including without limitation the right to enter any third partypremises where Equipment, unless the same is being contested in good faith by appropriate proceedings Inventory and/or Fixtures are located and take possession and control thereof without demand or notice and without prior judicial hearing or legal proceedings, which the Borrower has set aside on its books adequate reserves with respect to such Indebtedness or other obligations.expressly waives;
(d) The discovery Bank shall apply the Proceeds of any sale or liquidation of the Collateral, and, subject to Section 9, any Proceeds received by the Lender Bank from insurance, first to the payment of any material inaccuracy in any statement, assurance, representation, covenant, warranty, term or condition the reasonable costs and expenses incurred by the Borrower contained Bank in this Agreement connection with such sale or in any document delivered or collection, including without limitation reasonable attorneys’ fees and legal expenses, second to be delivered by or on behalf the payment of the Borrower pursuant Debt, whether on account of principal or interest or otherwise as the Bank in its sole discretion may elect, and then to this Agreementpay the balance, which inaccuracy would result in a Material Adverse Effect (except that inaccuracies in the Borrower's Due Diligence Documents attributable if any, to the fault Borrower or neglect of third-parties shall not constitute a breach of this Section 9.1(d))as otherwise required by law. If such Proceeds are insufficient to pay the amounts required by law, or in any other Loan Document, or in any other agreement between the Borrower and the Lender.shall be liable for any deficiency;
(e) The filing Upon the occurrence of a petition by or against any Event of Default, the Borrower shall promptly upon demand by the Bank assemble the Equipment, Inventory and Fixtures and make them available to the Bank at a place or any Affiliate seeking places to be designated by the Bank. The right of the Bank under this paragraph to have the Equipment, Inventory and Fixtures assembled and made available to it is of the essence of this Security Agreement and the Bank may, at its election, enforce such right by an action in equity for injunctive relief under the Federal Bankruptcy Code, 11 U.S.C. ss. 101, et seq., and any amendments thereto, or any similar law or regulation, whether federal, state or local, not dismissed within 30 days.specific performance;
(f) The commencement If any one or more of a proceeding by the Events of Default shall occur or against shall exist and be continuing, then in any event, the Bank has the right to use and operate under all trade names under which the Borrower or any Affiliate under any statute or other law providing for an assignment for the benefit of creditors, the appointment of a receiver, or any other similar law or regulation, whether federal, state or local, not dismissed within 30 days.does business; and
(g) The garnishmentFor the purpose of enabling the Bank to exercise rights and remedies under this Security Agreement, attachmentand as a supplement to any other rights and remedies available to the Bank, levy the Borrower grants to the Bank an irrevocable, non-exclusive license (without payment of any royalty or other similar action taken compensation to the Borrower) to use, license or sublicense and to change, alter or otherwise modify, any Intellectual Property now owned or hereafter created, arising or acquired by or on behalf of any creditor of the Borrower, any Affiliate, or and including in such license reasonable access to all media in which any of their respective properties which could have a Material Adverse Effectthe licensed items may be recorded or stored and to all computer and automatic machinery software and programs used for the compilation or printout thereof.
(h) Any change in control of the Borrower, Madison Liquidity Investors 104, MACG from that disclosed in Section 2 of this Agreement.
9.2 The Lender may, at its option, terminate its obligation to make advances of the Loan, without notice to the Borrower:
(a) upon the occurrence and continuance of any Event of Default set forth in subsections 9.1
(a) through 9.1(h) above; or (b) upon the occurrence and continuance of any event which, with the giving of notice or the lapse of time, or both, would constitute an Event of Default or (C) upon the death or disability of ▇▇▇▇▇ ▇.
Appears in 1 contract
Events of Default and Remedies. 9.1 (a) The following occurrence of any of the events shall constitute an "Event of Default" under identified in this Agreement, the occurrence Indenture or the Indenture Documents as an “Event of which shall entitle Default,” any breach of the Lender representations or warranties contained herein or in the Indenture Documents and/or the failure of Pledgor to pursue any comply with the terms and all rights and remedies, legal and equitable, available to it under any Loan Document or otherwise. The Occurrence provisions of an Event Default under this Agreement shall constitute a default under each and every other Loan Document. The Lender's rights and remedies are cumulative and may be exercised concurrently or successively from time to time. Any action by the Lender against any property or party shall not serve to release or discharge any other security, property or party in connection with this transaction. The Events of Default are as follows:
(a) Failure to pay the principal or interest on the Borrower's present or future indebtedness to the Lender, whether or not arising pursuant to this Agreement, when and as the same shall be due and payable, whether by acceleration or otherwise; provided that such default has not been cured prior to the expiration of ten (10) days following the date upon which the Lender gives the Borrower written Notice an “Event of Default. In this Section 9, Notice of Default shall be deemed to have been given (i) on the date of personal delivery of such written notice to a Guarantor, or (ii) on the date on which a duly authorized representative of the Borrower acknowledges receipt of such written notice, or (iii) on the day after sending such written notice to the Borrower by a commonly recognized overnight courier service, such as Federal Express, Purolator, UPS or the like, or (iv) on the third day after sending such written notice to the Borrower by facsimile (to both numbers set forth in Section 16.7) or by depositing the same in the United States mail, postage prepaid, for delivery to the Borrower” hereunder.
(b) Failure to observe, perform Upon the occurrence and comply with any during the continuance of the obligations evidenced or secured by a Loan Document, other than as provided in Sections 9.1(a) above; provided that such default has not been cured prior to the expiration of thirty (30) days following the date upon which the Lender gives the Borrower written Notice an Event of Default.
(c) Failure to duly , Trustee, if and punctually pay, observe and discharge all Indebtedness and other obligations of the Borrower to any third party, unless the same is being contested in good faith by appropriate proceedings and the Borrower has set aside on its books adequate reserves with respect to such Indebtedness or other obligations.
(d) The discovery as directed by the Lender of any material inaccuracy direction the Majority Holders, shall, in any statement, assurance, representation, covenant, warranty, term or condition by the Borrower contained addition to all other rights and remedies granted in this Agreement or in any document delivered other Indenture Document:
(i) exercise all rights and remedies of a secured party under the Code (whether or not the Code is in effect in the jurisdiction where the rights and remedies are asserted) and such additional rights and remedies to which a secured party is entitled under the laws in effect in any jurisdiction where any rights and remedies hereunder may be asserted, including, without limitation, the right, to the maximum extent permitted by law, to exercise all voting, consensual and other powers of ownership pertaining to the Collateral as if Trustee were the sole and absolute owner thereof (and Pledgor agrees to take all such action as may be appropriate to give effect to such rights);
(ii) make any reasonable compromise or settlement deemed desirable with respect to any of the Collateral and may extend the time of payment, arrange for payment in installments, or otherwise modify the terms of, any of the Collateral;
(iii) in its discretion, in its name or in the name of Pledgor or otherwise, demand, ▇▇▇ for, collect, direct payment of or receive any money or property at any time payable or receivable on account of or in exchange for any of the Collateral, but Trustee, except to the extent so directed by the Majority Holders in their discretion, shall be under no obligation to do so; and
(iv) without limiting the generality of the foregoing clause (iii) above, without demand of performance or other demand, presentment, protest, advertisement or notice of any kind (except any notice required by law referred to below or otherwise required hereby) to or upon Pledgor, Pledged Entity or any other Person (all and each of which demands, presentments, protests, advertisements and notices, or other defenses, are hereby waived to the extent permitted under applicable law), forthwith collect, receive, appropriate and realize upon the Collateral, or any part thereof, and/or forthwith sell, assign, give option or options to purchase or otherwise dispose of and deliver the Collateral or any part thereof (or contract to do any of the foregoing), in one or more parcels at public or private sale or sales, in the over-the-counter market, at any exchange, broker’s board or office of Trustee or elsewhere upon such terms and conditions as Trustee may deem advisable and at such prices as the Majority Holders may deem best in their sole discretion, for cash or on credit or for future delivery without assumption of any credit risk; provided, however, that Trustee shall provide Pledgor with not less than ten (10) days written notice prior to conducting any public or private sale of the Collateral, and Pledgor hereby agrees and stipulates that such notice shall be deemed to be delivered by or on behalf commercially reasonable notice in satisfaction of the Borrower pursuant requirements of the Code. In the event Trustee shall be directed to this Agreementsell all or any part of the Collateral by the Majority Holders, the Trustee may sell such Collateral without giving any representations or warranties of title or the like and shall be permitted to specifically disclaim any representations and warranties of title or the like. Trustee, at the direction of the Majority Holders, shall have the right, without notice or publication, to adjourn any public or private sale or cause the same to be adjourned from time to time by announcement at the time and place fixed for such sale, and any such sale may be made at any time or place to which the same may be adjourned without further notice. Trustee, at the direction of the Majority Holders, or the Holders, shall have the right upon any such public sale or sales, and, to the extent permitted by law, upon any such private sale or sales, to purchase the whole or any part of the Collateral so sold, free of any right or equity of redemption of Pledgor, which inaccuracy would result in a Material Adverse Effect (except that inaccuracies in right or equity of redemption is hereby waived and released. Trustee, at the Borrower's Due Diligence Documents attributable direction of the Majority Holders, shall apply any Proceeds from time to time held by it and the net proceeds of any such collection, recovery, receipt, appropriation, realization or sale, after deducting all reasonable costs and expenses of every kind incurred therein or incidental to the fault care or neglect safekeeping of third-parties shall not constitute a breach any of this Section 9.1(d)), the Collateral or in any other Loan Documentway relating to the Collateral or the rights of Trustee hereunder, including, without limitation, reasonable attorneys’ fees and disbursements, to the payment in whole or in part of the Obligations, in such order as the Majority Holders may elect, and only after such application and after the payment by Trustee of any other agreement between amount required by any provision of law, including, without limitation, Sections 9-610 and 9-615 of the Borrower Code, need Trustee account for the surplus, if any, to Pledgor. To the extent permitted by applicable law, Pledgor waives all claims, damages and demands it may acquire against Trustee, the LenderHolders and Taberna Capital Management, LLC arising out of the exercise by Trustee of any of its rights hereunder.
(ec) The filing rights, powers, privileges and remedies of a petition by or against the Borrower or any Affiliate seeking relief Trustee under the Federal Bankruptcy Codethis Agreement are cumulative and shall be in addition to all rights, 11 U.S.C. ss. 101powers, et seq., privileges and any amendments thereto, or any similar remedies available to Trustee at law or regulationin equity. All such rights, whether federal, state powers and remedies shall be cumulative and may be exercised successively or local, not dismissed within 30 daysconcurrently without impairing the rights of Trustee hereunder.
(f) The commencement of a proceeding by or against the Borrower or any Affiliate under any statute or other law providing for an assignment for the benefit of creditors, the appointment of a receiver, or any other similar law or regulation, whether federal, state or local, not dismissed within 30 days.
(g) The garnishment, attachment, levy or other similar action taken by or on behalf of any creditor of the Borrower, any Affiliate, or any of their respective properties which could have a Material Adverse Effect.
(h) Any change in control of the Borrower, Madison Liquidity Investors 104, MACG from that disclosed in Section 2 of this Agreement.
9.2 The Lender may, at its option, terminate its obligation to make advances of the Loan, without notice to the Borrower:
(a) upon the occurrence and continuance of any Event of Default set forth in subsections 9.1
(a) through 9.1(h) above; or (b) upon the occurrence and continuance of any event which, with the giving of notice or the lapse of time, or both, would constitute an Event of Default or (C) upon the death or disability of ▇▇▇▇▇ ▇.
Appears in 1 contract
Sources: Pledge and Security Agreement (Newcastle Investment Corp)
Events of Default and Remedies. 9.1 (a) The Borrower shall be in default upon the occurrence of any one of the following events shall constitute (each an "Event of Default" under this Agreement"):
(i) the Borrower shall fail to pay any amount payable in respect of any Obligation when due (including the expiration of any applicable grace periods).
(ii) any representation, warranty or information herein, heretofore or hereafter furnished to the occurrence of which shall entitle the Lender to pursue any and all rights and remedies, legal and equitable, available to it under any Loan Document or otherwise. The Occurrence of an Event Default under this Agreement shall constitute a default under each and every other Loan Document. The Lender's rights and remedies are cumulative and may be exercised concurrently or successively from time to time. Any action Mortgagee by the Lender against Borrower in connection with any property of the Liabilities, including any warranty made by the Borrower through the submission of any schedule, statement, certificate or party shall not serve other document pursuant to release or discharge any other security, property or party in connection with this transaction. The Events of Default are as follows:
(a) Failure to pay the principal or interest on the Borrower's present or future indebtedness to the Lender, whether or not arising pursuant to this Agreement, when and as the same shall be due and payable, whether by acceleration or otherwise; provided that such default has not been cured prior to the expiration of ten (10) days following the date upon which the Lender gives the Borrower written Notice of Default. In this Section 9, Notice of Default shall be deemed to have been given (i) on the date of personal delivery of such written notice to a Guarantor, or (ii) on the date on which a duly authorized representative of the Borrower acknowledges receipt of such written notice, or false in any material respect.
(iii) on there shall exist any Event of Default as defined under the day after sending Credit Agreement.
(b) Upon the occurrence of any Event of Default which shall be continuing, unless the Mortgagee elects otherwise, the entire unpaid amount of such written of the Liabilities as is not then otherwise due and payable shall become immediately due and payable as provided in the Credit Agreement without notice to the Borrower by a commonly recognized overnight courier service, such as Federal Express, Purolator, UPS or the like, or (iv) demand on the third day after sending such written notice to the Borrower by facsimile (to both numbers set forth in Section 16.7) or by depositing the same in the United States mail, postage prepaid, for delivery to the Borrower.
(b) Failure to observe, perform and comply with any of the obligations evidenced or secured by a Loan Document, other than as provided in Sections 9.1(a) above; provided that such default has not been cured prior to the expiration of thirty (30) days following the date upon which the Lender gives the Borrower written Notice of Default.
(c) Failure to duly and punctually payThe exercise by the Mortgagee of any one right or remedy shall not be deemed a waiver or release of or any election against any other right or remedy, observe and discharge all Indebtedness and other obligations of the Borrower to any third party, unless the same is being contested in good faith by appropriate proceedings and the Borrower has set aside on its books adequate reserves with respect to such Indebtedness or other obligations.
(d) The discovery by the Lender of any material inaccuracy in any statement, assurance, representation, covenant, warranty, term or condition by the Borrower contained in this Agreement or in any document delivered or to be delivered by or on behalf of the Borrower pursuant to this Agreement, which inaccuracy would result in a Material Adverse Effect (except that inaccuracies in the Borrower's Due Diligence Documents attributable to the fault or neglect of third-parties shall not constitute a breach of this Section 9.1(d)), or in any other Loan Document, or in any other agreement between Mortgagee may proceed against the Borrower and the Lender.
(e) The filing of a petition Collateral and any other collateral granted by or against the Borrower or any Affiliate seeking relief under to the Federal Bankruptcy Code, 11 U.S.C. ss. 101, et seq., and any amendments thereto, or any similar law or regulation, whether federal, state or local, not dismissed within 30 days.
(f) The commencement of a proceeding by or against the Borrower or any Affiliate Mortgagee under any statute other agreement, all in any order and through any available remedies. A waiver on any one occasion shall not be construed as a waiver or other law providing for an assignment for the benefit of creditors, the appointment of a receiver, or bar on any other similar law or regulation, whether federal, state or local, not dismissed within 30 days.
(g) The garnishment, attachment, levy or other similar action taken by or on behalf future occasion. All property of any creditor of kind held at any time by the Borrower, any Affiliate, or any of their respective properties which could have a Material Adverse EffectMortgagee as Collateral shall stand as one general continuing collateral security for all the Obligations and may be retained by the Mortgagee as security until all the Obligations are fully satisfied.
(h) Any change in control of the Borrower, Madison Liquidity Investors 104, MACG from that disclosed in Section 2 of this Agreement.
9.2 The Lender may, at its option, terminate its obligation to make advances of the Loan, without notice to the Borrower:
(a) upon the occurrence and continuance of any Event of Default set forth in subsections 9.1
(a) through 9.1(h) above; or (b) upon the occurrence and continuance of any event which, with the giving of notice or the lapse of time, or both, would constitute an Event of Default or (C) upon the death or disability of ▇▇▇▇▇ ▇.
Appears in 1 contract
Events of Default and Remedies. 9.1 The following events shall constitute an "Event of Default" under this Agreement, (a) Upon the occurrence of which shall entitle and during the Lender to pursue any and all rights and remedies, legal and equitable, available to it under any Loan Document or otherwise. The Occurrence continuance of an Event of Default under this Agreement shall constitute a default under each and every after the acceleration of the Notes (so long as such Event of Default has not been waived), subject to the provisions of Section 7 hereof, the Collateral Agent may exercise in respect of the Collateral, in addition to other Loan Document. The Lender's rights and remedies are cumulative provided for herein or otherwise available to it, all the rights and remedies of a secured party on default under the UCC (whether or not the UCC applies to the affected Collateral), and also may (i) require the Company to, and the Company hereby agrees that the Company shall, at the Company’s expense and upon request of the Collateral Agent forthwith, assemble all or part of the Collateral as directed by the Collateral Agent and make it available to the Collateral Agent at a place to be exercised concurrently designated by the Collateral Agent which is reasonably convenient to both parties; and (ii) without notice except as specified below, sell the Collateral or successively any part thereof in one or more parcels at public or private sale, at the office of the Collateral Agent or elsewhere, for cash, on credit or for future delivery, and at such price or prices and upon such other terms as the Collateral Agent may deem commercially reasonable. The Company agrees that, to the extent notice of sale shall be required by law, at least ten (10) days prior notice to the Company of the time and place of any public or private sale is to be made shall constitute reasonable notification. The Collateral Agent shall not be obligated to make any sale of Collateral regardless of notice of sale having been given. The Collateral Agent may adjourn any public or private sale from time to time. Any action time by announcement at the time and place fixed therefor, and such sale may, without further notice, be made at the time and place to which it has been so adjourned.
(b) Subject to the provisions of Section 7 hereof and after satisfying its responsibilities to turn over funds to the Senior Lender pursuant to any Subordination Agreement, upon the occurrence and during the continuance of an Event of Default and after the acceleration of the Notes (so long as such Event of Default has not been waived), any cash held by the Lender against Collateral Agent as Collateral and all cash proceeds received by the Collateral Agent in respect of any property sale of, collection from or party other realization upon, all or any part of the Collateral shall not serve to release or discharge any other security, property or party in connection with this transaction. The Events of Default are be applied as follows:
(ai) Failure First: to the Collateral Agent, its agents and attorneys for amounts due under Section 9 hereof, including payment of all compensation, expenses and liabilities incurred, and all advances made, by the Collateral Agent and the costs and expenses of such collection;
(ii) Second: to Holders of Notes for amounts due and unpaid on the Notes for principal and interest, ratably, without preference or priority of any kind, according to the amounts due and payable on the Notes for principal and interest, respectively; and
(iii) Third: to the Company or to such party as a court of competent jurisdiction shall direct. In the event that the proceeds of any such sale, collection or realization are insufficient to pay all Secured Obligations in full, the principal Company shall remain liable for any deficiency, including any attorney’s fees and other expenses incurred by the Collateral Agent or interest on any Holder to collect such deficiency.
(c) Notwithstanding any of the Borrower's present or future indebtedness to foregoing, neither the Lender, whether or not arising pursuant to this Agreement, when and as Collateral Agent nor the same Holders shall be due and payable, whether by acceleration or otherwise; provided that such default has not been cured prior required to the expiration of ten (10) days following the date upon which the Lender gives the Borrower written Notice of Default. In this Section 9, Notice of Default shall be deemed to have been given (i) on make any demand upon, pursue or exhaust any of their rights or remedies against the date Company with respect to the payment of personal delivery the Secured Obligations or to pursue or exhaust any of such written notice their rights or remedies with respect to a Guarantorany Collateral therefor, or (ii) on marshal the date on which a duly authorized representative of the Borrower acknowledges receipt of such written notice, Collateral or (iii) on the day after sending such written notice resort to the Borrower by a commonly recognized overnight courier service, such as Federal Express, Purolator, UPS or the like, or (iv) on the third day after sending such written notice to the Borrower by facsimile (to both numbers set forth in Section 16.7) or by depositing the same in the United States mail, postage prepaid, for delivery to the Borrower.
(b) Failure to observe, perform and comply with any of the obligations evidenced or secured by a Loan Document, other than as provided in Sections 9.1(a) above; provided that such default has not been cured prior to the expiration of thirty (30) days following the date upon which the Lender gives the Borrower written Notice of Default.
(c) Failure to duly and punctually pay, observe and discharge all Indebtedness and other obligations of the Borrower to any third party, unless the same is being contested in good faith by appropriate proceedings and the Borrower has set aside on its books adequate reserves with respect to such Indebtedness or other obligations.
(d) The discovery by the Lender of any material inaccuracy Collateral in any statement, assurance, representation, covenant, warranty, term or condition by the Borrower contained in this Agreement or in any document delivered or to be delivered by or on behalf of the Borrower pursuant to this Agreement, which inaccuracy would result in a Material Adverse Effect (except that inaccuracies in the Borrower's Due Diligence Documents attributable to the fault or neglect of third-parties shall not constitute a breach of this Section 9.1(d)), or in any other Loan Document, or in any other agreement between the Borrower and the Lenderparticular order.
(e) The filing of a petition by or against the Borrower or any Affiliate seeking relief under the Federal Bankruptcy Code, 11 U.S.C. ss. 101, et seq., and any amendments thereto, or any similar law or regulation, whether federal, state or local, not dismissed within 30 days.
(f) The commencement of a proceeding by or against the Borrower or any Affiliate under any statute or other law providing for an assignment for the benefit of creditors, the appointment of a receiver, or any other similar law or regulation, whether federal, state or local, not dismissed within 30 days.
(g) The garnishment, attachment, levy or other similar action taken by or on behalf of any creditor of the Borrower, any Affiliate, or any of their respective properties which could have a Material Adverse Effect.
(h) Any change in control of the Borrower, Madison Liquidity Investors 104, MACG from that disclosed in Section 2 of this Agreement.
9.2 The Lender may, at its option, terminate its obligation to make advances of the Loan, without notice to the Borrower:
(a) upon the occurrence and continuance of any Event of Default set forth in subsections 9.1
(a) through 9.1(h) above; or (b) upon the occurrence and continuance of any event which, with the giving of notice or the lapse of time, or both, would constitute an Event of Default or (C) upon the death or disability of ▇▇▇▇▇ ▇.
Appears in 1 contract
Events of Default and Remedies. 9.1 The In the event of the happening of any one of the following events (hereinafter referred to as a "DEFAULT"):
(a) the Tenant shall constitute have failed to pay an "Event instalment of Base Rental or of Additional Rent or any other amount payable hereunder within 5 days following when due. No notice shall be required in the event of a monetary Default" under this Agreement, the occurrence of which ;
(b) there shall entitle the Lender to pursue any and all rights and remedies, legal and equitable, available to it under any Loan Document or otherwise. The Occurrence of an Event Default under this Agreement shall constitute be a default under each of or with any condition, covenant, agreement or other obligation on the part of the Tenant to be kept, observed or performed hereunder (other than the obligation to pay Base Rental, Additional Rent or any other amount of money) and every such Default shall be continuing for a period of more than fifteen (15) days after written notice by the Landlord to the Tenant specifying the Default and requiring that it discontinue;
(c) if any policy of insurance upon the Building or any part thereof from time to time affected by the Landlord shall be cancelled or about to be cancelled by the insurer by reason of the use or occupation of the Leased Premises by the Tenant or any assignee, sub-tenant or licensee of the Tenant or anyone permitted by the Tenant to be upon the Leased Premises and the Tenant, after receipt of notice in writing from the Landlord, shall have failed to take such immediate steps in respect of such use or occupation as shall enable the Landlord to reinstate or avoid cancellation (as the case may be) of such policy of insurance;
(d) the Leased Premises shall, without the prior written consent of the Landlord, be used by any other Loan Document. The Lender's persons than the Tenant or its permitted assigns or sub-tenants or for any purpose other than that for which they were leased or occupied or by any persons whose occupancy is prohibited by this Lease;
(e) the Leased Premises shall be vacated or abandoned, or remain unoccupied, without the prior written consent of the Landlord for fourteen (14) consecutive days or more while capable of being occupied;
(f) the balance of the Term of this Lease or any of the goods and chattels of the Tenant located in the Leased Premises, shall at any time be seized in execution or attachment; or
(g) the Tenant shall make any assignment for the benefit of creditors or become bankrupt or insolvent or take the benefit of any statute for bankrupt or insolvent debtors or, if a corporation, shall take any steps or suffer any order to be made for its winding-up or other termination of its corporate existence; or a trustee, receiver or receiver-manager or agent or other like person shall be appointed of any of the assets of the Tenant; the Landlord shall have the following rights and remedies all of which are cumulative and may be exercised concurrently or successively from time not alternative and not to time. Any action by the Lender against any property or party shall not serve to release or discharge exclusion of any other security, property or party additional rights and remedies in connection with this transaction. The Events of Default are as followslaw or equity available to the Landlord by statute or otherwise:
(a) Failure to pay remedy or attempt to remedy any Default of the principal Tenant, and in so doing to make any payments due or interest on alleged to be due by the Borrower's present Tenant to third parties and to enter upon the Leased Premises to do any work or future indebtedness other things therein, and in such event all reasonable expenses of the Landlord in remedying or attempting to remedy such Default shall be payable by the Tenant to the LenderLandlord on demand;
(b) with respect to unpaid overdue Rent, whether or not arising pursuant to this Agreement, when the payment by the Tenant of the Rent and as the same of interest (which said interest shall be due and payable, whether deemed included herein in the term "RENT") thereon at a rate equal to three percent (3%) above the prime commercial loan rate charged to borrowers having the highest credit rating from time to time by acceleration or otherwise; provided that such default has not been cured prior to the expiration of ten (10) days following Landlord's principal bank from the date upon which the Lender gives same was due until actual payment thereof and the Borrower written Notice maximum amount allowed under the laws of Default. In the jurisdiction in which the Building is located;
(c) to terminate this Section 9, Notice Lease forthwith by leaving upon the Leased Premises or by affixing to an entrance door to the Leased Premises notice terminating the Lease and to immediately thereafter cease to furnish any services hereunder and enter into and upon the Leased Premises or any part thereof in the name of Default shall be deemed the whole and the same to have been given again, repossess and enjoy as of its former estate, anything in this Lease contained to the contrary notwithstanding; and
(id) on to enter the date of personal delivery of such written notice to a Guarantor, or (ii) on the date on which a duly authorized representative Leased Premises as agent of the Borrower acknowledges receipt Tenant and as such agent to re-let them and to receive the rent therefor and as the agent of such written notice, the Tenant to take possession of any furniture or other property thereon and upon giving ten (iii10) on the day after sending such days' written notice to the Borrower by a commonly recognized overnight courier service, such as Federal Express, Purolator, UPS Tenant to store the same at the expense and risk of the Tenant or to sell or otherwise dispose of the like, same at public or (iv) on private sale without further notice and to apply the third day after sending such written notice proceeds thereof and any rent derived from re-letting the Leased Premises upon the account of the Rent due and to become due under this Lease and the Tenant shall be liable to the Borrower by facsimile (to both numbers set forth in Section 16.7) or by depositing the same in the United States mail, postage prepaid, for delivery to the Borrower.
(b) Failure to observe, perform and comply with any of the obligations evidenced or secured by a Loan Document, other than as provided in Sections 9.1(a) above; provided that such default has not been cured prior to the expiration of thirty (30) days following the date upon which the Lender gives the Borrower written Notice of Default.
(c) Failure to duly and punctually pay, observe and discharge all Indebtedness and other obligations of the Borrower to any third party, unless the same is being contested in good faith by appropriate proceedings and the Borrower has set aside on its books adequate reserves with respect to such Indebtedness or other obligations.
(d) The discovery by the Lender of any material inaccuracy in any statement, assurance, representation, covenant, warranty, term or condition by the Borrower contained in this Agreement or in any document delivered or to be delivered by or on behalf of the Borrower pursuant to this Agreement, which inaccuracy would result in a Material Adverse Effect (except that inaccuracies in the Borrower's Due Diligence Documents attributable to the fault or neglect of third-parties shall not constitute a breach of this Section 9.1(d)), or in any other Loan Document, or in any other agreement between the Borrower and the Lender.
(e) The filing of a petition by or against the Borrower or any Affiliate seeking relief under the Federal Bankruptcy Code, 11 U.S.C. ss. 101, et seq., and any amendments thereto, or any similar law or regulation, whether federal, state or local, not dismissed within 30 days.
(f) The commencement of a proceeding by or against the Borrower or any Affiliate under any statute or other law providing for an assignment Landlord for the benefit of creditors, the appointment of a receiver, or any other similar law or regulation, whether federal, state or local, not dismissed within 30 daysdeficiency if any.
(g) The garnishment, attachment, levy or other similar action taken by or on behalf of any creditor of the Borrower, any Affiliate, or any of their respective properties which could have a Material Adverse Effect.
(h) Any change in control of the Borrower, Madison Liquidity Investors 104, MACG from that disclosed in Section 2 of this Agreement.
9.2 The Lender may, at its option, terminate its obligation to make advances of the Loan, without notice to the Borrower:
(a) upon the occurrence and continuance of any Event of Default set forth in subsections 9.1
(a) through 9.1(h) above; or (b) upon the occurrence and continuance of any event which, with the giving of notice or the lapse of time, or both, would constitute an Event of Default or (C) upon the death or disability of ▇▇▇▇▇ ▇.
Appears in 1 contract
Sources: Lease Agreement (Changepoint Corp)
Events of Default and Remedies. 9.1 The following events shall constitute ▇▇▇▇ ▇he happening of any Event of Default under the Note (an "Event of Default" under this Agreement"), the occurrence of which shall entitle the Lender to pursue any and all rights and remedies, legal and equitable, available to it under any Loan Document or otherwise. The Occurrence of an as long as such Event Default under this Agreement shall constitute a default under each and every other Loan Document. The Lender's rights and remedies are cumulative and may be exercised concurrently or successively from time to time. Any action by the Lender against any property or party shall not serve to release or discharge any other security, property or party in connection with this transaction. The Events of Default are as follows:
(a) Failure to pay the principal or interest on the Borrower's present or future indebtedness to the Lendercontinues, whether or not arising pursuant to this Agreement, when and as the same shall be due and payable, whether by acceleration or otherwise; provided that such default has not been cured prior to the expiration of ten (10) days following the date upon which the Lender gives the Borrower written Notice of Default. In this Section 9, Notice of Default shall be deemed to have been given (i) on the date of personal delivery of such written notice to a Guarantor, or (ii) on the date on which a duly authorized representative of the Borrower acknowledges receipt of such written notice, or (iii) on the day after sending such written notice to the Borrower by a commonly recognized overnight courier service, such as Federal Express, Purolator, UPS or the like, or (iv) on the third day after sending such written notice to the Borrower by facsimile (to both numbers set forth in Section 16.7) or by depositing the same in the United States mail, postage prepaid, for delivery to the Borrower.
(b) Failure to observe, perform and comply with any of the obligations evidenced or secured by a Loan Document, other than as provided in Sections 9.1(a) above; provided that such default has not been cured prior to the expiration of thirty (30) days following the date upon which the Lender gives the Borrower written Notice of Default.
(c) Failure to duly and punctually pay, observe and discharge all Indebtedness and other obligations of the Borrower to any third party, unless the same is being contested in good faith by appropriate proceedings and the Borrower has set aside on its books adequate reserves with respect to such Indebtedness or other obligations.
(d) The discovery by the Lender of any material inaccuracy in any statement, assurance, representation, covenant, warranty, term or condition by the Borrower contained in this Agreement or in any document delivered or to be delivered by or on behalf of the Borrower pursuant to this Agreement, which inaccuracy would result in a Material Adverse Effect (except that inaccuracies in the Borrower's Due Diligence Documents attributable to the fault or neglect of third-parties shall not constitute a breach of this Section 9.1(d)), or in any other Loan Document, or in any other agreement between the Borrower and the Lender.
(e) The filing of a petition by or against the Borrower or any Affiliate seeking relief under the Federal Bankruptcy Code, 11 U.S.C. ss. 101, et seq., and any amendments thereto, or any similar law or regulation, whether federal, state or local, not dismissed within 30 days.
(f) The commencement of a proceeding by or against the Borrower or any Affiliate under any statute or other law providing for an assignment for the benefit of creditors, the appointment of a receiver, or any other similar law or regulation, whether federal, state or local, not dismissed within 30 days.
(g) The garnishment, attachment, levy or other similar action taken by or on behalf of any creditor of the Borrower, any Affiliate, or any of their respective properties which could have a Material Adverse Effect.
(h) Any change in control of the Borrower, Madison Liquidity Investors 104, MACG from that disclosed in Section 2 of this Agreement.
9.2 The Lender Creditor may, at its option, terminate its obligation to make advances without notice or demand declare all of the LoanObligations to be immediately due and payable, without notice and Creditor shall then have the right to the Borrower:
(a) upon the occurrence and continuance take immediate possession of any Event Collateral not already in its possession, and for that purpose Creditor may, so far as Martin can give authority therefor, enter upon any premises on which ▇▇▇ ▇ollateral, or any part thereof, may be situated and remove the same therefrom. Martin will make the Collateral available to Creditor at a place and ▇▇▇▇ designated by Creditor which is reasonably convenient to both parties. Except for Collateral which is of Default set forth a type customarily sold on a recognized market, Creditor will give Martin at least ten days' prior written notice of the time and place ▇▇ ▇▇y public sale of the Collateral or of the time after which any private sale thereof is to be made. The Creditor shall also have in subsections 9.1
(a) through 9.1(h) above; or (b) upon any jurisdiction where enforcement hereof is sought, in addition to all other rights and remedies, the occurrence rights and continuance remedies of a secured party under the Uniform Commercial Code of Massachusetts. From the proceeds of any event whichsale or collection, Creditor shall be entitled to retain (i) all sums secured hereby, (ii) its reasonable expenses of retaking, holding, preparing for sale and selling, and (iii) reasonable legal expenses, attorneys' fees and all other costs incurred by it in connection with the giving interpretation, administration and enforcement of notice this Agreement or the lapse any Collateral or with such sale or other disposition or any collection. The residue, if any, of timeany proceeds of collection or sale shall be paid to Martin; Martin, or bothhowever, would constitute an Event of Default or (C) upon the death or disability of shall remain liable for any deficiency. No ▇▇▇▇▇▇ b▇ ▇▇▇▇itor of any default shall be effective unless in writing nor operate as a waiver of any other default or of the same default on another occasion.
Appears in 1 contract
Events of Default and Remedies. 9.1 The following events shall constitute an "Event (a) If any one or more of Default" under this Agreement, the occurrence of which shall entitle the Lender to pursue any and all rights and remedies, legal and equitable, available to it under any Loan Document or otherwise. The Occurrence of an Event Default under this Agreement shall constitute a default under each and every other Loan Document. The Lender's rights and remedies are cumulative and may be exercised concurrently or successively from time to time. Any action by the Lender against any property or party shall not serve to release or discharge any other security, property or party in connection with this transaction. The Events of Default are shall occur or shall exist, the Lenders' Agent may then, or at any time thereafter, so long as follows:
(a) Failure to pay the principal or interest on the Borrower's present or future indebtedness to the Lender, whether or not arising pursuant to this Agreement, when and as the same shall be due and payable, whether by acceleration or otherwise; provided that such default has not been cured prior to shall continue, foreclose the expiration of Lenders' lien or security interest in the Collateral in any way permitted by law, or upon ten (10) days following the date upon which the Lender gives the Borrower written Notice of Default. In this Section 9, Notice of Default shall be deemed to have been given (i) on the date of personal delivery of such written notice to a Guarantor, or (ii) on the date on which a duly authorized representative of the Borrower acknowledges receipt of such written notice, or (iii) on the day after sending such prior written notice to the Borrower by a commonly recognized overnight courier serviceBorrower, sell any or all Collateral at private sale at any time or place in one or more sales, at such price or prices and upon such terms, either for cash or on credit, as Federal Expressthe Lenders' Agent, Purolatorin its sole discretion, UPS or the likemay elect, or (iv) sell any or all Collateral at public auction, either for cash or on credit, as the third day after sending Lenders' Agent, in its sole discretion, may elect, and at any such written notice to sale, the Borrower by facsimile (to both numbers set forth in Section 16.7) Lenders may bid for and become the purchaser of any or by depositing all such Collateral. Pending any such action the same in Lenders' Agent may liquidate the United States mail, postage prepaid, for delivery to the BorrowerCollateral.
(b) Failure If any one or more of the Events of Default shall occur or shall exist, the Lenders may then, or at any time thereafter, so long as such default shall continue, grant extensions to, or adjust claims of, or make compromises or settlements with, debtors, guarantors or any other parties with respect to observeCollateral or any securities, perform and comply with guarantees or insurance applying thereon, without notice to or the consent of the Borrower, without affecting the Borrower's liability under this Agreement or the Notes. The Borrower waives notice of acceptance, of nonpayment, protest or notice of protest of any Accounts or Chattel Paper or any of the obligations evidenced or secured by a Loan Document, its contract rights and any other than as provided in Sections 9.1(a) above; provided that such default has not been cured prior notices to the expiration of thirty (30) days following the date upon which the Lender gives the Borrower written Notice of Defaultmay be entitled.
(c) Failure to duly and punctually pay, observe and discharge all Indebtedness and other obligations If any one or more of the Borrower Events of Default shall occur or shall exist and be continuing, then in any such event, the Lenders' Agent shall have such additional rights and remedies in respect of the Collateral or any portion thereof as are provided by the Code and such other rights and remedies in respect thereof which it may have at law or in equity or under this Agreement, including without limitation the right to enter any third partypremises where Equipment, unless the same is being contested in good faith by appropriate proceedings Inventory and/or Fixtures are located and take possession and control thereof without demand or notice and without prior judicial hearing or legal proceedings, which the Borrower has set aside on its books adequate reserves with respect to such Indebtedness or other obligationsexpressly waives.
(d) The discovery Lenders' Agent shall apply the Proceeds of any sale or liquidation of the Collateral, and, subject to Section 7, any Proceeds received by the Lender Lenders' Agent from insurance, first to the payment of any material inaccuracy in any statement, assurance, representation, covenant, warranty, term or condition the reasonable costs and expenses incurred by the Borrower contained Lenders in this Agreement connection with such sale or in any document delivered or collection, including without limitation reasonable attorneys' fees and legal expenses, second to be delivered by or on behalf the payment of the Borrower pursuant Debt, whether on account of principal or interest or otherwise as the Lenders' Agent in its sole discretion may elect, and then to this Agreementpay the balance, which inaccuracy would result in a Material Adverse Effect (except that inaccuracies in the Borrower's Due Diligence Documents attributable if any, to the fault Borrower or neglect of third-parties shall not constitute a breach of this Section 9.1(d))as otherwise required by law. If such Proceeds are insufficient to pay the amounts required by law, or in any other Loan Document, or in any other agreement between the Borrower and the Lendershall be liable for any deficiency.
(e) The filing of a petition by or against the Borrower or any Affiliate seeking relief under the Federal Bankruptcy Code, 11 U.S.C. ss. 101, et seq., and any amendments thereto, or any similar law or regulation, whether federal, state or local, not dismissed within 30 days.
(f) The commencement of a proceeding by or against the Borrower or any Affiliate under any statute or other law providing for an assignment for the benefit of creditors, the appointment of a receiver, or any other similar law or regulation, whether federal, state or local, not dismissed within 30 days.
(g) The garnishment, attachment, levy or other similar action taken by or on behalf of any creditor of the Borrower, any Affiliate, or any of their respective properties which could have a Material Adverse Effect.
(h) Any change in control of the Borrower, Madison Liquidity Investors 104, MACG from that disclosed in Section 2 of this Agreement.
9.2 The Lender may, at its option, terminate its obligation to make advances of the Loan, without notice to the Borrower:
(a) upon Upon the occurrence and continuance of any Event of Default set forth and delivery of a written request, the Borrower shall promptly upon demand by the Lenders' Agent assemble the Equipment, Inventory and Fixtures and make them available to the Lenders' Agent at a place or places to be designated by the Lenders' Agent. The rights of the Lenders' Agent under this paragraph to have the Equipment, Inventory and Fixtures assembled and made available to it is of the essence of this Agreement and the Lenders may, at their election, enforce such right by an action in subsections 9.1
(a) through 9.1(h) above; equity for injunctive relief or (b) upon specific performance. If any one or more of the occurrence and continuance of any event which, with the giving of notice or the lapse of time, or both, would constitute an Event Events of Default shall occur or (C) upon shall exist and be continuing, then in any event, the death or disability of ▇▇▇▇▇ ▇Lenders have the right to use and operate under all trade names under which the Borrower does business.
Appears in 1 contract
Events of Default and Remedies. 9.1 14.1 The following events shall constitute an "Event of Default" under this Agreement, the occurrence of which shall entitle any of the Lender to pursue any and all rights and remedies, legal and equitable, available to it under any Loan Document or otherwise. The Occurrence of an Event Default under this Agreement following shall constitute a breach and an event of default under each and every other Loan Document. The Lender's rights and remedies are cumulative and may be exercised concurrently or successively from time to time. Any action by the Lender against any property or party shall not serve to release or discharge any other security, property or party in connection with this transaction. The Events of Default are as followsTenant:
(a) Failure The Rent payable under this Lease Agreement is not paid within 10 business days after the date on which Tenant receives written notice that it is past due;
(b) Tenant breaches or fails to comply substantially with any material term, provision, condition, or covenant of this Lease Agreement, other than the payment of Rent hereunder.
14.2 Upon the occurrence of an event of default, in the case of an event of default under subsection 14.1(a) above, and, in the case of an event of default under subsection 14.1(b) above if such event of default is not cured within thirty (30) days after written notice of such event of default is given by Landlord to Tenant, or such longer period of time as is reasonably necessary under the circumstances, Landlord shall have the option to do and perform any one or more of the following in addition to, and not in limitation of, any other remedy or right permitted it by law or in equity or by this Lease Agreement:
(a) Landlord, with or without terminating this Lease Agreement, may re-enter the Property without any breach of the peace or damage to Tenant's property and perform, correct or repair any condition which shall constitute a failure on Tenant's part to keep, observe, perform, satisfy, or abide by any material term, condition, covenant, agreement, or obligation of this Lease Agreement, and Tenant shall fully reimburse Landlord on demand for all costs and expenses reasonably incurred by Landlord in such performance, correction or repairing.
(b) Landlord, with or without terminating this Lease Agreement, may immediately, or at any time thereafter, demand in writing that Tenant vacate the Property and thereupon Tenant shall vacate the Property and remove therefrom all property thereon belonging to or placed on the Property by, at the direction of, or with consent of Landlord within thirty (30) days after receipt by Tenant of such notice from Landlord, whereupon Landlord shall have the right to re-enter and take possession of the Property.
(c) Landlord, with or without terminating this Lease Agreement, may immediately or at any time thereafter, re-let the Property or any part thereof for such time or times, at such rental or rentals and upon such other terms and conditions as Landlord in its commercially reasonable discretion may deem advisable, and Landlord may make any alterations or repairs to the Property which it may deem necessary or proper to facilitate such re-letting; and if this Lease Agreement shall not have been terminated, Tenant shall continue to pay all rent and all other charges due under this Lease Agreement up to and including the principal date of beginning of payment of rent by any subsequent tenant of part or interest on all of the Borrower's present Property, and thereafter Tenant shall pay monthly during the remainder of the Lease Term the difference, if any, between the rent and other charges collected from any such subsequent tenant or future indebtedness to tenants and the Lender, whether or not arising pursuant to rent and other charges reserved in this Lease Agreement, when but Tenant shall not be entitled to receive any excess of any such rents collected over the rents reserved herein.
(d) Landlord may immediately or at any time thereafter terminate this Lease Agreement, and as the same shall be due and payable, whether by acceleration or otherwise; provided that such default has not been cured prior to the expiration of ten (10) days following the date upon which the Lender gives the Borrower written Notice of Default. In this Section 9, Notice of Default Lease Agreement shall be deemed to have been given (i) on the date terminated upon receipt by Tenant of personal delivery written notice of such written notice to a Guarantortermination; upon such termination Landlord shall recover from Tenant all damages Landlord may suffer by reason of such termination, or including, without limitation, all arrearages in rentals, costs, charges, reimbursements, the cost (iiincluding court costs and reasonable attorneys' fees) on the date on which a duly authorized representative of recovering possession of the Borrower acknowledges receipt Property.
14.3 The occurrence of such written noticethe following shall constitute a breach and an event of default by the Landlord:
(a) Any representation or warranty of Landlord herein contained shall be determined to be incorrect, false or (iii) on the day after sending such written notice to the Borrower by a commonly recognized overnight courier service, such as Federal Express, Purolator, UPS or the like, or (iv) on the third day after sending such written notice to the Borrower by facsimile (to both numbers set forth in Section 16.7) or by depositing the same in the United States mail, postage prepaid, for delivery to the Borrowermisleading when made.
(b) Failure Landlord breaches or fails to observe, perform and comply substantially with any material term, provision, condition or covenant of this Lease Agreement.
14.4 If an event of default should occur on the obligations evidenced or secured by a Loan Documentpart of Landlord, other than as provided in Sections 9.1(a) above; provided that at any time after its occurrence, upon written notice to Landlord and Landlord's failure to cure such event of default has not been cured prior to the expiration of within thirty (30) days following the date upon which the Lender gives the Borrower written Notice of Default.
(c) Failure to duly and punctually pay, observe and discharge all Indebtedness and other obligations of the Borrower to any third party, unless the same is being contested in good faith by appropriate proceedings and the Borrower has set aside on its books adequate reserves with respect to after such Indebtedness or other obligations.
(d) The discovery by the Lender of any material inaccuracy in any statement, assurance, representation, covenant, warranty, term or condition by the Borrower contained in this Agreement or in any document delivered or to be delivered by or on behalf of the Borrower pursuant to this Agreement, which inaccuracy would result in a Material Adverse Effect (except that inaccuracies in the Borrower's Due Diligence Documents attributable to the fault or neglect of third-parties shall not constitute a breach of this Section 9.1(d)), or in any other Loan Document, or in any other agreement between the Borrower and the Lender.
(e) The filing of a petition by or against the Borrower or any Affiliate seeking relief under the Federal Bankruptcy Code, 11 U.S.C. ss. 101, et seq.notice, and without limiting Tenant's other rights or remedies, Tenant may cure such default and deduct or offset any amendments thereto, or any similar law or regulation, whether federal, state or local, not dismissed within 30 days.
(f) The commencement of a proceeding by or against the Borrower or any Affiliate such amounts from sums due to Landlord under any statute or other law providing for an assignment this Lease Agreement until Tenant is fully compensated for the benefit expenses it may incur and losses it may sustain as a result of creditors, the appointment of a receiver, or any other similar law or regulation, whether federal, state or local, not dismissed within 30 dayssuch breach.
(g) The garnishment, attachment, levy or other similar action taken by or on behalf of any creditor of the Borrower, any Affiliate, or any of their respective properties which could have a Material Adverse Effect.
(h) Any change in control of the Borrower, Madison Liquidity Investors 104, MACG from that disclosed in Section 2 of this Agreement.
9.2 The Lender may, at its option, terminate its obligation to make advances of the Loan, without notice to the Borrower:
(a) upon the occurrence and continuance of any Event of Default set forth in subsections 9.1
(a) through 9.1(h) above; or (b) upon the occurrence and continuance of any event which, with the giving of notice or the lapse of time, or both, would constitute an Event of Default or (C) upon the death or disability of ▇▇▇▇▇ ▇.
Appears in 1 contract
Sources: Lease Agreement (Syndicated Food Service International Inc)
Events of Default and Remedies. 9.1 The If any of the following events shall constitute occur, each such event shall be an "“Event of Default" under this Agreement, the occurrence of which shall entitle the Lender to pursue any and all rights and remedies, legal and equitable, available to it under any Loan Document or otherwise. The Occurrence of an Event Default under this Agreement shall constitute a default under each and every other Loan Document. The Lender's rights and remedies are cumulative and may be exercised concurrently or successively from time to time. Any action by the Lender against any property or party shall not serve to release or discharge any other security, property or party in connection with this transaction. The Events of Default are as follows”:
(a) Failure the City shall fail to pay the (i) any principal of or interest on the Borrower's present any Drawing, any Liquidity Advance or future indebtedness to the LenderBank Bond as and when due hereunder, whether or not arising pursuant to this Agreement, when and as the same shall be due and payable, whether by acceleration or otherwise; provided that such default has not been cured prior to the expiration of ten (10) days following the date upon which the Lender gives the Borrower written Notice of Default. In this Section 9, Notice of Default shall be deemed to have been given (i) on the date of personal delivery of such written notice to a Guarantor, or (ii) any principal of or interest on any Bonds for any reason other than the date on which a duly authorized representative failure of the Borrower acknowledges receipt Bank to honor a properly presented and conforming Drawing under the Letter of such written notice, Credit as and when due or (iii) on any other Obligations (other than Reimbursement Obligations) within five (5) calendar days of receipt by the day after sending such written notice to City of an invoice from the Borrower by a commonly recognized overnight courier service, such as Federal Express, Purolator, UPS or the like, or (iv) on the third day after sending such written notice to the Borrower by facsimile (to both numbers set forth in Section 16.7) or by depositing the same in the United States mail, postage prepaid, for delivery to the Borrower.Bank therefor; or
(b) Failure any material representation or warranty made by the City or the Authority in this Agreement (or incorporated herein by reference) or in any of the other Related Documents or in any certificate, document, instrument, opinion or financial or other statement contemplated by or made or delivered pursuant to observe, perform and comply or in connection with this Agreement or with any of the obligations evidenced other Related Documents, shall prove to have been incorrect, incomplete or secured by a Loan Document, other than as provided misleading in Sections 9.1(a) above; provided that such default has not been cured prior to the expiration of thirty (30) days following the date upon which the Lender gives the Borrower written Notice of Default.any material respect when made;
(c) Failure to duly and punctually pay, observe and discharge all Indebtedness and other obligations any “event of default” shall have occurred under any of the Borrower to any third partyRelated Documents (as defined respectively therein), unless including, without limitation the same is being contested in good faith by appropriate proceedings and the Borrower has set aside on its books adequate reserves with respect to such Indebtedness or other obligations.Indenture;
(d) The discovery by default in the Lender due observance or performance of any material inaccuracy covenant set forth in any statementSections 6.04, assurance6.05, representation6.06, covenant6.08, warranty6.12, term 6.18, 6.20, 6.22 or condition by the Borrower contained in this Agreement or in any document delivered or to be delivered by or on behalf of the Borrower pursuant to this Agreement, which inaccuracy would result in a Material Adverse Effect (except that inaccuracies in the Borrower's Due Diligence Documents attributable to the fault or neglect of third-parties shall not constitute a breach of this Section 9.1(d)), or in any other Loan Document, or in any other agreement between the Borrower and the Lender.Article VII hereof;
(e) The filing default in the due observance or performance of a petition by any other term, covenant or against agreement set forth in this Agreement and the Borrower or any Affiliate seeking relief under the Federal Bankruptcy Code, 11 U.S.C. ss. 101, et seq., and any amendments thereto, or any similar law or regulation, whether federal, state or local, not dismissed within continuance of such default for 30 days.days thereafter;
(f) The commencement any material provision of a proceeding by or against the Borrower this Agreement or any Affiliate of the Related Documents shall cease to be valid and binding, or the City shall contest any such provision, or the City or any agent or trustee on its behalf shall deny that it has any or further liability under this Agreement or any statute of the Related Documents to which it is a party;
(g) the City shall (i) have entered involuntarily against it an order for relief under the United States Bankruptcy Code, as amended, (ii) not pay, or other law providing for admit in writing its inability to pay, its debts generally as they become due, (iii) make an assignment for the benefit of creditors, (iv) apply for, seek, consent to, or acquiesce in, the appointment of a receiver, custodian, trustee, examiner, liquidator or similar official for it or any other similar substantial part of its Property, (v) institute any proceeding seeking to have entered against it an order for relief under the United States Bankruptcy Code, as amended, to adjudicate it insolvent, or seeking dissolution, winding up, liquidation, reorganization, arrangement, marshalling of assets, adjustment or composition of it or its debts under any law relating to bankruptcy, insolvency or regulation, whether federal, state reorganization or local, not dismissed within 30 days.
(g) The garnishment, attachment, levy relief of debtors or fail to file an answer or other similar action taken by or on behalf pleading denying the material allegations of any creditor such proceeding filed against it, (vi) take any corporate action in furtherance of the Borrower, any Affiliatematter described in parts (i) through (v) above, or (vii) fail to contest in good faith any of their respective properties which could have a Material Adverse Effect.appointment or proceeding described in Section 8.01(h) hereof;
(h) Any change a custodian, receiver, trustee, examiner, liquidator or similar official shall be appointed for the City or any substantial part of any of its respective Property, or a proceeding described in control Section 8.01(g)(v) shall be instituted against the City and such appointment continues undischarged or any such proceeding continues undismissed or unstayed for a period of 30 or more days;
(i) a default shall occur under any evidence of Indebtedness secured by or payable from the Net System Revenues on a basis that is senior to or on parity with the Installment Payments and the Reimbursement Obligations due hereunder issued, assumed, or guaranteed by the City or under any indenture, agreement or other instrument under which the same may be issued and such default shall continue for a period of time sufficient to permit the acceleration of the Borrower, Madison Liquidity Investors 104, MACG from that disclosed in Section 2 of this Agreement.
9.2 The Lender may, at its option, terminate its obligation to make advances of the Loan, without notice to the Borrower:
(a) upon the occurrence and continuance maturity of any Event of Default set forth such Indebtedness (whether or not such maturity is in subsections 9.1
(a) through 9.1(h) abovefact accelerated); or (b) upon any Indebtedness secured by or payable from the occurrence and continuance of any event which, Net System Revenues on a basis that is senior to or on parity with the giving of notice or Installment Payments and the Reimbursement Obligations due hereunder shall not be paid when and as due (whether by lapse of time, acceleration or bothotherwise);
(j) any judgment or judgments, would constitute writ or writs or warrant or warrants of attachment, or any similar process or processes in an Event aggregate amount in excess of Default $5,000,000 shall be entered or filed against the City or against any of its Property and payable by the Net System Revenues (and not fully covered by insurance) and remain unvacated, unsatisfied, unbonded or unstayed for a period of 30 days;
(k) (i) any of Fitch, Moody’s or S&P shall downgrade their respective ratings of any long-term unenhanced indebtedness of the City secured by the Net System Revenues that ranks on a parity with the Installments Payments to below “BBB-” (or its equivalent) by Fitch or “BBB-” (or its equivalent) by S&P or “Baa3” (or its equivalent) by Moody’s or (Cii) upon any of Fitch, Moody’s, or S&P shall suspend or withdraw their respective ratings of any long-term, unenhanced Indebtedness of the death City secured by the Net System Revenues that ranks on a parity with the Installments Payments for credit-related reasons;
(l) any pledge or disability security interest created by the Indenture, the Installment Purchase Contract or this Agreement to secure any amount due under any Bonds or this Agreement shall fail to be fully enforceable or fail to have the priority required under the Indenture, the Installment Purchase Contract or this Agreement, in either case, by reason of ▇▇▇▇▇ ▇a final, non-appealable judgment of a court of competent jurisdiction; or
(m) a debt moratorium, debt restructuring, debt adjustment or comparable restriction is imposed on any Indebtedness of the City secured by Net System Revenues by any Governmental Authority with appropriate jurisdiction.
Appears in 1 contract
Sources: Reimbursement Agreement
Events of Default and Remedies. 9.1 The If any one or more of the following events shall constitute (each an "“Event of Default" under this Agreement, the occurrence of which ”) shall entitle the Lender to pursue any occur and all rights and remedies, legal and equitable, available to it under any Loan Document or otherwise. The Occurrence of an Event Default under this Agreement shall constitute a default under each and every other Loan Document. The Lender's rights and remedies are cumulative and may be exercised concurrently or successively from time to time. Any action by the Lender against any property or party shall not serve to release or discharge any other security, property or party in connection with this transaction. The Events of Default are as followscontinuing:
(a) Failure to pay any breach or default under the principal or interest on Note executed by the Borrower's present or future indebtedness to the Lender, whether or not arising pursuant to this Agreement, when and as the same shall be due and payable, whether by acceleration or otherwise; provided that such default has not been cured prior to the expiration of ten (10) days following the date upon which the Lender gives the Borrower written Notice of Default. In this Section 9, Notice of Default shall be deemed to have been given (i) on the date of personal delivery of such written notice to a Guarantor, or (ii) on the date on which a duly authorized representative Pledgor in favor of the Borrower acknowledges receipt of such written notice, or (iii) on the day after sending such written notice to the Borrower by a commonly recognized overnight courier service, such as Federal Express, Purolator, UPS or the like, or (iv) on the third day after sending such written notice to the Borrower by facsimile (to both numbers set forth in Section 16.7) or by depositing the same in the United States mail, postage prepaid, for delivery to the Borrower.Secured Party;
(b) Failure to observe, perform and comply with the breach or default of any of the obligations evidenced representations, warranties, covenants or secured by a Loan Document, other than as provided in Sections 9.1(a) above; provided agreements of the Pledgor under this Pledge that such default has not been cured prior to the expiration of thirty continues for fifteen (3015) days following after the date upon which the Lender Secured Party gives the Borrower written Notice of Default.notice to Pledgor;
(c) Failure to duly and punctually pay, observe and discharge all Indebtedness and other obligations the subjection of the Borrower Pledged Securities to any third party, unless the same is being contested in good faith by appropriate proceedings and the Borrower has set aside on its books adequate reserves with respect to such Indebtedness levy of execution or other obligations.judicial process in connection with collection of a debt owed by ▇▇▇▇▇▇▇;
(d) The discovery by any direct or indirect sale or transfer of all or any part of an interest in the Lender Pledged Securities, whether voluntary or involuntary;
(e) a sale of any material inaccuracy in any statement, assurance, representation, covenant, warranty, term all or condition by the Borrower contained in this Agreement or in any document delivered or to be delivered by or on behalf substantially all of the Borrower pursuant to this Agreement, which inaccuracy would result in assets of the Corporation;
(f) a Material Adverse Effect (except that inaccuracies in the Borrower's Due Diligence Documents attributable to the fault or neglect of third-parties shall not constitute a breach of this Section 9.1(d)), or in any other Loan Document, or in default by Pledgor under any other agreement between the Borrower Secured Party and the Lender.Pledgor or any other event of default under this Pledge following written notice and failure to timely cure as therein provided;
(eg) The filing any event that results in the acceleration of the maturity of the indebtedness of the Pledgor to others under any indenture, agreement, or undertaking including, without limitation, any mortgage; or
(h) the Pledgor’s insolvency, the appointment of a petition by receiver for any part of the Pledgor or against the Borrower or assets of the Pledgor, any Affiliate seeking relief under the Federal Bankruptcy Code, 11 U.S.C. ss. 101, et seq., and any amendments thereto, or any similar law or regulation, whether federal, state or local, not dismissed within 30 days.
(f) The commencement of a proceeding by or against the Borrower or any Affiliate under any statute or other law providing for an assignment for the benefit of creditors, or the appointment commencement of a receiver, any proceeding under any bankruptcy or any other similar insolvency law or regulation, whether federal, state or local, not dismissed within 30 days.
(g) The garnishment, attachment, levy or other similar action taken by or on behalf of against the Pledgor; then, in any creditor of the Borrowersuch event, any Affiliate, or any of their respective properties which could have a Material Adverse Effect.
(h) Any change in control of the Borrower, Madison Liquidity Investors 104, MACG from that disclosed in Section 2 of this Agreement.
9.2 The Lender Secured Party may, at its Secured Party’s option, terminate its obligation to make advances declare the Note and this Pledge in default, and give written notice of the Loan, without notice to the Borrower:
(a) upon the occurrence and continuance of any such Event of Default set forth in subsections 9.1
(a) through 9.1(h) above; or (b) upon to Escrow Agent under Section 4, to obtain the occurrence and continuance release of any event which, with the giving of notice or the lapse of time, or both, would constitute an Event of Default or (C) upon the death or disability of ▇▇▇▇▇ ▇Pledged Securities from this Pledge.
Appears in 1 contract
Sources: Securities Pledge and Escrow Agreement (SPAR Group, Inc.)
Events of Default and Remedies. 9.1 The following events shall constitute an "Event of Default" under this Agreement, the occurrence of which shall entitle the Lender to pursue any and all rights and remedies, legal and equitable, available to it under any Loan Document or otherwise. The Occurrence of an Event Default under this Agreement shall constitute a default under each and every other Loan Document. The Lender's rights and remedies are cumulative and may be exercised concurrently or successively from time to time. Any action by the Lender against any property or party shall not serve to release or discharge any other security, property or party in connection with this transaction. The Events of Default are as follows:
(a) Failure to pay the principal or interest on the Borrower's present or future indebtedness Notwithstanding anything to the Lendercontrary stated herein, whether or the Pledgee shall not arising pursuant to this Agreement, when and as the same shall be due and payable, whether by acceleration or otherwise; provided that such default has not been cured prior to the expiration of ten (10) days following the date upon which the Lender gives the Borrower written Notice of Default. In this Section 9, Notice of Default shall be deemed to have been given (i) on the date of personal delivery of such written notice to a Guarantor, or (ii) on the date on which a duly authorized representative exercise any of the Borrower acknowledges receipt of such written notice, or (iii) on the day after sending such written notice to the Borrower by a commonly recognized overnight courier service, such as Federal Express, Purolator, UPS or the like, or (iv) on the third day after sending such written notice to the Borrower by facsimile (to both numbers remedies set forth in Section 16.7) or by depositing the same in the United States mail, postage prepaid, for delivery to the Borrowerthis Agreement unless and until an Event of Default has occurred and is continuing.
(b) Failure to observe, perform and comply with any of the obligations evidenced or secured by a Loan Document, other than as provided in Sections 9.1(a) above; provided that such default has not been cured prior to the expiration of thirty (30) days following the date upon which the Lender gives the Borrower written Notice of Default.
(c) Failure to duly and punctually pay, observe and discharge all Indebtedness and other obligations of the Borrower to any third party, unless the same is being contested in good faith by appropriate proceedings and the Borrower has set aside on its books adequate reserves with respect to such Indebtedness or other obligations.
(d) The discovery by the Lender of any material inaccuracy in any statement, assurance, representation, covenant, warranty, term or condition by the Borrower contained in this Agreement or in any document delivered or to be delivered by or on behalf of the Borrower pursuant to this Agreement, which inaccuracy would result in a Material Adverse Effect (except that inaccuracies in the Borrower's Due Diligence Documents attributable to the fault or neglect of third-parties shall not constitute a breach of this Section 9.1(d)), or in any other Loan Document, or in any other agreement between the Borrower and the Lender.
(e) The filing of a petition by or against the Borrower or any Affiliate seeking relief under the Federal Bankruptcy Code, 11 U.S.C. ss. 101, et seq., and any amendments thereto, or any similar law or regulation, whether federal, state or local, not dismissed within 30 days.
(f) The commencement of a proceeding by or against the Borrower or any Affiliate under any statute or other law providing for an assignment for the benefit of creditors, the appointment of a receiver, or any other similar law or regulation, whether federal, state or local, not dismissed within 30 days.
(g) The garnishment, attachment, levy or other similar action taken by or on behalf of any creditor of the Borrower, any Affiliate, or any of their respective properties which could have a Material Adverse Effect.
(h) Any change in control of the Borrower, Madison Liquidity Investors 104, MACG from that disclosed in Section 2 of this Agreement.
9.2 The Lender may, at its option, terminate its obligation to make advances of the Loan, without notice to the Borrower:
(a) upon the occurrence and continuance of any Event of Default set forth in subsections 9.1
(a) through 9.1(h) above; or (b) upon the occurrence and continuance of any event which, with the giving of notice or the lapse of time, or both, would constitute If an Event of Default shall have occurred and be continuing:
(i) The Pledgee may exercise in respect of the Pledged Collateral, in addition to other rights and remedies provided for herein or in the Pari Passu Documents, as the case may be or otherwise available to it, all the rights and remedies of a secured party on default under the law of the State of New York or any other applicable law in effect at that time. The Pledgee may also, without notice except as specified below, sell the Pledged Collateral or any part thereof in one or more parcels at public or private sale, at any exchange, broker’s board or at any of the Pledgee’s offices or elsewhere, for cash, on credit or for future delivery, and upon such other terms as the Pledgee may deem commercially reasonable, provided that at least ten (C10) days’ prior written notice of the time and place of any such sale shall be given to the Pledgor. The Pledgee shall not be obligated to make any sale of Pledged Collateral regardless of notice of sale having been given. The Pledgee may adjourn any public or private sale from time to time by announcement at the time and place fixed therefor, and such sale may, without further notice, be made at the time and place to which it was so adjourned.
(ii) Any cash held by the Pledgee as Pledged Collateral and all cash proceeds received by the Pledgee in respect of any sale of, collection from, or other realization upon all or any part of the death Pledged Collateral may, in the discretion of the Pledgee, be held by the Pledgee as collateral for, and/or then or disability at any time thereafter applied (after payment of ▇▇▇▇▇ ▇any amounts payable to the Pledgee pursuant to Section 10) in whole or in part by the Pledgee against, all or any part of the Obligations in accordance with the terms of the Intercreditor Agreement. Any surplus of such cash or cash proceeds held by the Pledgee and remaining after payment and performance in full of the Obligations shall be paid over to the Borrower or its order.
Appears in 1 contract
Events of Default and Remedies. 9.1 The following events shall constitute an "Event of Default" under this Agreement, the occurrence of which shall entitle the Lender to pursue any and all rights and remedies, legal and equitable, available to it under any Loan Document or otherwise. The Occurrence of an Event Default under this Agreement shall constitute a default under each and every other Loan Document. The Lender's rights and remedies are cumulative and may be exercised concurrently or successively from time to time. Any action by the Lender against any property or party shall not serve to release or discharge any other security, property or party in connection with this transaction. The Events of Default are as follows:
(a) Failure to pay the principal or interest on the Borrower's present or future indebtedness to the Lender, whether or not arising pursuant to this Agreement, when and as the same shall be due and payable, whether by acceleration or otherwise; provided that such default has not been cured prior to the expiration of ten (10) days following the date upon which the Lender gives the Borrower written Notice of Default. In this Section 9, Notice of Default shall be deemed to have been given (i) on the date of personal delivery of such written notice to a Guarantor, or (ii) on the date on which a duly authorized representative of the Borrower acknowledges receipt of such written notice, or (iii) on the day after sending such written notice to the Borrower by a commonly recognized overnight courier service, such as Federal Express, Purolator, UPS or the like, or (iv) on the third day after sending such written notice to the Borrower by facsimile (to both numbers set forth in Section 16.7) or by depositing the same in the United States mail, postage prepaid, for delivery to the Borrower.
(b) Failure to observe, perform and comply with any of the obligations evidenced or secured by a Loan Document, other than as provided in Sections 9.1(a) above; provided that such default has not been cured prior to the expiration of thirty (30) days following the date upon which the Lender gives the Borrower written Notice of Default.
(c) Failure to duly and punctually pay, observe and discharge all Indebtedness and other obligations of the Borrower to any third party, unless the same is being contested in good faith by appropriate proceedings and the Borrower has set aside on its books adequate reserves with respect to such Indebtedness or other obligations.
(d) The discovery by the Lender of any material inaccuracy in any statement, assurance, representation, covenant, warranty, term or condition by the Borrower contained in this Agreement or in any document delivered or to be delivered by or on behalf of the Borrower pursuant to this Agreement, which inaccuracy would result in a Material Adverse Effect (except that inaccuracies in the Borrower's Due Diligence Documents attributable to the fault or neglect of third-parties shall not constitute a breach of this Section 9.1(d)), or in any other Loan Document, or in any other agreement between the Borrower and the Lender.
(e) The filing of a petition by or against the Borrower or any Affiliate seeking relief under the Federal Bankruptcy Code, 11 U.S.C. ss. ' 101, et seq., and any amendments thereto, or any similar law or regulation, whether federal, state or local, not dismissed within 30 days.
(f) The commencement of a proceeding by or against the Borrower or any Affiliate under any statute or other law providing for an assignment for the benefit of creditors, the appointment of a receiver, or any other similar law or regulation, whether federal, state or local, not dismissed within 30 days.
(g) The garnishment, attachment, levy or other similar action taken by or on behalf of any creditor of the Borrower, any Affiliate, or any of their respective properties which could have a Material Adverse Effect.
(h) Any change in control of the Borrower, Madison Liquidity Investors 104, MACG from that disclosed in Section 2 of this Agreement.
9.2 The Lender may, at its option, terminate its obligation to make advances of the Loan, without notice to the Borrower:
(a) upon the occurrence and continuance of any Event of Default set forth in subsections 9.1
(a) through 9.1(h) above; or (b) upon the occurrence and continuance of any event which, with the giving of notice or the lapse of time, or both, would constitute an Event of Default or (C) upon the death or disability of ▇▇▇▇▇ ▇.
Appears in 1 contract
Sources: Loan Agreement (Madison Liquidity Investors 104 LLC)