Events of Default Remedies. The following events shall each constitute an "Event of Default" hereunder: (a) Debtor shall fail to pay any Obligation within 5 Business Days after Debtor's receipt of notice that timely payment has not been received (whether at the stated maturity, by acceleration or otherwise); (b) any representation or warranty made by Debtor in this Agreement or in any document, certificate or financial or other statement now or hereafter furnished by Debtor in connection with this Agreement or any Loan shall at any time prove to be untrue or misleading in any material respect as of the time when made; (c) Debtor shall fail to observe any covenant, condition or agreement contained in Sections 5.A(11) or 5.B hereof or in paragraph 4(b) of Rider A; (d) Debtor shall fail to observe or perform any other covenant or condition contained in this Agreement, and such failure shall continue unremedied for a period of 30 days after the earlier of the date on which Debtor obtains knowledge of such failure or the date on which notice thereof shall be given by CIT to Debtor; (e) Debtor or any affiliate of Debtor shall default in the payment of, or other performance under, any obligation for payment or lease (whether or not capitalized) or any guarantee (i) to CIT, any affiliate of CIT or to Debtor's main bank, beyond the period of grace, if any, provided with respect thereto, or (ii) to any other Person beyond the period of grace, if any, provided with respect thereto, where such obligation or amount guaranteed is in excess of $1,000,000.00; or (f) a complaint in bankruptcy or for arrangement or reorganization or for relief under any insolvency law is filed by or against Debtor (and when filed against Debtor is in effect for 60 days) or Debtor admits its inability to pay its debts as they mature. If an Event of Default shall occur, CIT may, by notice of default given to Debtor, do any one or more of the following: (a) terminate the Commitment and/or (b) declare the Notes to be due and payable, whereupon the principal amount of the Notes, together with accrued interest thereon and all other amounts owing under this Agreement and the Notes, shall become immediately due and payable without presentment, demand, protest or other notice of any kind, all of which are hereby expressly waived (and in the case of any Event of Default specified in clause (f) of the above paragraph, such acceleration of the Notes shall be automatic, without any notice by CIT). In addition, if an Event of Default shall occur and be continuing, CIT may exercise all other rights and remedies available to it, whether under this Agreement, under any other instrument or agreement securing, evidencing or relating to the Obligations, under the Code, or otherwise available at law or in equity. Without limiting the generality of the foregoing, Debtor agrees that in any such event, CIT, without demand of performance or other demand, advertisement or notice of any kind (except the notice specified below of time and place of public or private sale) to or upon Debtor or any other Person (all and each of which demands, advertisements and notices are hereby expressly waived), may forthwith do any one or more of the following: collect, receive, appropriate and realize upon the Collateral or any part thereof, and sell, lease, assign, give an option or options to purchase or otherwise dispose of and deliver, the Collateral (or contract to do so), or any part thereof, in one or more parcels at public or private sale or sales at such places and at such prices as it may deem best, for cash or on credit or for future delivery without the assumption of any credit risk. CIT 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 Debtor, which right or equity is hereby expressly released. Debtor further agrees, at CIT's request, to assemble (at Debtor's expense) the Collateral and make it available to CIT at such places which CIT shall select, whether at Debtor's premises or elsewhere. CIT shall apply the net proceeds of any such collection, recovery, receipt, appropriation, realization or sale (after deducting all reasonable costs and expenses of every kind incurred therein or incidental to the care, safekeeping or otherwise of any or all of the Collateral or in any way relating to the rights of CIT hereunder, including reasonable attorney's fees and legal expenses) to the payment in whole or in part of the Obligations, in such order as CIT may elect. Debtor agrees that CIT need not give more than 10 days' notice of the time and place of any public sale or of the time after which a private sale may take place and that such notice is reasonable notification of such matters. Debtor shall be liable for any deficiency if the proceeds of any sale or disposition of the Collateral are insufficient to pay all amounts to which CIT is entitled. Debtor agrees to pay all costs of CIT, including reasonable attorneys' fees, incurred with respect to collection of any of the Obligations and enforcement of any of CIT's rights hereunder. To the extent permitted by law, Debtor hereby waives presentment, demand, protest or any notice (except as expressly provided in this Section 6) of any kind in connection with this Agreement or any Collateral.
Appears in 2 contracts
Samples: Loan and Security Agreement (Teradyne Inc), Loan and Security Agreement (Megatest Corp)
Events of Default Remedies. The following events (a) It shall each constitute be an "Event of Default" hereunder: (a) Debtor shall fail to pay any Obligation within 5 Business Days after Debtor's receipt of notice that timely payment has not been received (whether at the stated maturity, by acceleration or otherwise); (b) any representation or warranty made by Debtor in this Agreement or in any document, certificate or financial or other statement now or hereafter furnished by Debtor in connection with this Agreement or any Loan shall at any time prove to be untrue or misleading in any material respect as of the time when made; (c) Debtor shall fail to observe any covenant, condition or agreement contained in Sections 5.A(11) or 5.B hereof or in paragraph 4(b) of Rider A; (d) Debtor shall fail to observe or perform any other covenant or condition contained in this Agreement, and such failure shall continue unremedied for a period of 30 days after the earlier of the date on which Debtor obtains knowledge of such failure or the date on which notice thereof shall be given by CIT to Debtor; (e) Debtor or any affiliate of Debtor shall default in the payment of, or other performance under, any obligation for payment or lease (whether or not capitalized) or any guarantee hereunder if (i) Sublessee fails to CIT, make any affiliate payment of CIT Basic Monthly Rent or to Debtor's main bank, beyond the period of grace, if any, provided with respect thereto, any Additional Rent when due or (ii) to Sublessee breaches any of its covenants, obligations or undertakings hereunder (other than as described in clause (i)), or (iii) Sublessee breaches any of its covenants, obligations or undertakings under the Dealer Agreement or any other Person agreement, instrument, note or other document executed by Sublessee and delivered to Sublessor from time to time, and in any such event, such breach continues beyond any applicable grace or cure period specified in the period of graceDealer Agreement or such other agreement, if anyinstrument, provided with respect theretonote or other document, where such obligation or amount guaranteed the Dealer Agreement is in excess of $1,000,000.00; terminated for any reason whatsoever, or (fiv) a complaint in bankruptcy Sublessee shall be dissolved or for arrangement or reorganization or for relief under any insolvency law is filed by or against Debtor (and when filed against Debtor is in effect for 60 days) or Debtor admits its inability shall become unable to pay its debts as they mature. If become due, or shall make a general assignment for the benefit of creditors or shall file any voluntary petition in bankruptcy or shall be adjudicated a bankrupt or insolvent or shall file any petition or answer seeking, consenting to, or acquiescing in reorganization, arrangement, adjustment, composition, liquidation, dissolution or similar relief, under any applicable law, statute, ordinance, order, decree, rule or regulation, or shall file an Event answer admitting or shall fail to deny the material allegation of Default shall occur, CIT may, by notice of default given to Debtor, do a petition against it for any one such relief; or more (v) any proceeding against Sublessee of the following: (a) terminate the Commitment and/or (b) declare the Notes type referred to be due and payable, whereupon the principal amount of the Notes, together with accrued interest thereon and all other amounts owing under this Agreement and the Notes, shall become immediately due and payable without presentment, demand, protest or other notice of any kind, all of which are hereby expressly waived (and in the case of any Event of Default specified in clause (fiv) of the above paragraph, seeking any such acceleration of the Notes relief shall be automaticcommenced, or (vi) a trustee, receiver, or liquidator of Sublessee of all or any substantial part of its properties or assets shall be appointed with or without the consent or acquiescence of Sublessee, or (vii) any notice by CIT). In addition, if an Event default or event of Default shall occur and be continuing, CIT may exercise all other rights and remedies available to it, whether under this Agreement, under any other instrument or agreement securing, evidencing or relating to the Obligations, default occurs under the Code, Xxxxxxxxx as a result of Sublessee's act or otherwise available at law or in equity. Without limiting the generality of the foregoing, Debtor agrees that in any such event, CIT, without demand of performance or omission (other demand, advertisement or notice of any kind (except the notice specified below of time and place of public or private sale) to or upon Debtor or any other Person (all and each of which demands, advertisements and notices are hereby expressly waived), may forthwith do any one or more of the following: collect, receive, appropriate and realize upon the Collateral or any part thereof, and sell, lease, assign, give an option or options to purchase or otherwise dispose of and deliver, the Collateral (or contract to do so), or any part thereof, in one or more parcels at public or private sale or sales at such places and at such prices as it may deem best, for cash or on credit or for future delivery without the assumption of any credit risk. CIT 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 Debtor, which right or equity is hereby expressly released. Debtor further agrees, at CIT's request, to assemble (at Debtor's expense) the Collateral and make it available to CIT at such places which CIT shall select, whether at Debtor's premises or elsewhere. CIT shall apply the net proceeds of any such collection, recovery, receipt, appropriation, realization or sale (after deducting all reasonable costs and expenses of every kind incurred therein or incidental to the care, safekeeping or otherwise of any or all of the Collateral or in any way relating to the rights of CIT hereunder, including reasonable attorney's fees and legal expenses) to the payment in whole or in part of the Obligations, in such order as CIT may elect. Debtor agrees that CIT need not give more than 10 days' notice of the time and place of any public sale or of the time after which a private sale may take place and that such notice is reasonable notification of such matters. Debtor shall be liable for any deficiency if the proceeds of any sale or disposition of the Collateral are insufficient to pay all amounts to which CIT is entitled. Debtor agrees to pay all costs of CIT, including reasonable attorneys' fees, incurred with respect to collection of any of the Obligations and enforcement of any of CIT's rights hereunder. To the extent permitted by law, Debtor hereby waives presentment, demand, protest occurrences or any notice events enumerated in clauses (except as expressly provided in this Section 6i) through (vi) of any kind in connection with this Agreement or any Collateralparagraph 6(a).
Appears in 2 contracts
Samples: Sublease (Harvey Electronics Inc), Harvey Electronics Inc
Events of Default Remedies. The Should any of the following events shall each constitute occur (any such event being referred to as an "Event of Default" hereunder: "): (ai) Debtor Default by Borrower in the payment of any obligation of Borrower under this Agreement or any of the other Loan Documents; (ii) default by Borrower of any agreement, promise or covenant of Borrower under Section 12.a(iii) or (vi) or 12.b; (iii) default by Borrower in the due performance or observance of any of the agreements, promises or covenants of Borrower under any of the Loan Documents, other than any such agreements, promises or covenants described in clause (i) or (ii) above, which default shall fail continue unremedied for ten or more days; (iv) any default or event of default by Borrower under any Ancillary Document; (v) any material representation or warranty of Borrower set forth in any of the Loan Documents, or in any certificate, instrument or statement delivered to pay Bank pursuant to any Obligation within 5 Business Days after Debtor's receipt of notice that timely Loan Documents, shall be untrue or incorrect in any material respect when made; (vi) Borrower shall default in the payment has not been received when due (whether at the stated maturity, by acceleration or otherwise)) of $100,000 or more of any Indebtedness for Borrowed Money; (bvii) Borrower shall default in the observance or performance of any representation or warranty made by Debtor in this Agreement or in any documentterm, certificate or financial or other statement now or hereafter furnished by Debtor in connection with this Agreement or any Loan shall at any time prove to be untrue or misleading in any material respect as of the time when made; (c) Debtor shall fail to observe any covenant, condition covenant or agreement contained in Sections 5.A(11) any instrument governing or 5.B hereof or in paragraph 4(b) of Rider A; (d) Debtor shall fail to observe or perform evidencing any other covenant or condition contained in this AgreementIndebtedness for Borrowed Money, and such failure default shall continue unremedied permit the holders of such Indebtedness for Borrower Money to declare immediately due and payable or otherwise accelerate Indebtedness for Borrowed Money in an aggregate amount exceeding $100,000; (viii) any Change of Control shall occur; (ix) Borrower shall become insolvent or make an assignment for the benefit of creditors; (x) Borrower shall apply for or consent to or shall permit or suffer to exist the voluntary or involuntary appointment of a trustee, receiver, custodian, or liquidator of all or any material part of its or his property; (xi) Borrower shall have commenced against it, or shall voluntarily commence, any bankruptcy, reorganization or other similar proceeding under bankruptcy or insolvency laws or any dissolution, winding up or liquidation proceeding, which, in the case of any such involuntary proceeding, shall have been consented to by Borrower, as applicable, shall have resulted in entry of an order for relief against Borrower, as applicable, or shall have remained undismissed, undischarged or unbonded for a period of 30 days after the earlier of the date on which Debtor obtains knowledge of such failure or the date on which notice thereof shall be given by CIT to Debtor; (e) Debtor or any affiliate of Debtor shall default in the payment of, or other performance under, any obligation for payment or lease (whether or not capitalized) or any guarantee (i) to CIT, any affiliate of CIT or to Debtor's main bank, beyond the period of grace, if any, provided with respect thereto, or (ii) to any other Person beyond the period of grace, if any, provided with respect thereto, where such obligation or amount guaranteed is in excess of $1,000,000.00more than 60 days; or (fxii) any other event or circumstance shall occur or arise which has had a complaint Materially Adverse Effect; THEN, in bankruptcy or for arrangement or reorganization or for relief under any insolvency law is filed by or against Debtor (and when filed against Debtor is in effect for 60 days) or Debtor admits its inability to pay its debts as they mature. If an Event of Default shall occursuch event, CIT Bank may, by at its option and without demand first made and without notice of default given to DebtorBorrower, do any one or more of the following: (a) terminate the Commitment and/or its obligation to make loans (including, without limitation, any Revolving Loans or Equipment Loans) to Borrower; (b) declare the Notes all obligations of Borrower to be due and payable, whereupon the principal amount of the Notes, together with accrued interest thereon and all other amounts owing Bank under this Agreement and the Notes, shall become other Loan Documents immediately due and payable without presentment, demand, protest payable; and (c) proceed to enforce all or other notice any of its rights under any kind, all of which are hereby expressly waived (and in the case of any Event of Default specified in clause (f) of the above paragraph, such acceleration of the Notes shall be automatic, without any notice by CIT). In addition, if an Event of Default shall occur and be continuing, CIT may exercise all other rights and remedies available to it, whether under this Agreement, under any other instrument Loan Documents or agreement securing, evidencing or relating to the Obligations, under the Code, or otherwise available at law or in equity. Without limiting In the generality of the foregoing, Debtor agrees that in any such event, CIT, without demand of performance event Bank sells or other demand, advertisement or notice disposes of any kind (except the notice specified below of time and place of public or private sale) to or upon Debtor or any other Person (all and each of which demands, advertisements and notices are hereby expressly waived), may forthwith do any one or more of the following: collect, receive, appropriate and realize Collateral upon the Collateral or any part thereof, and sell, lease, assign, give an option or options to purchase or otherwise dispose of and deliver, the Collateral (or contract to do so), or any part thereof, in one or more parcels at public or private sale or sales at such places and at such prices as it may deem best, for cash or on credit or for future delivery without the assumption of any credit risk. CIT 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 Debtor, which right or equity is hereby expressly released. Debtor further agrees, at CIT's request, to assemble (at Debtor's expense) the Collateral and make it available to CIT at such places which CIT shall select, whether at Debtor's premises or elsewhere. CIT shall apply the net proceeds exercise of any such collectionrights or remedies, recoveryand a sufficient sum is not realized from any such sale or disposition to pay all obligations of Borrower to Bank under this Agreement, receipt, appropriation, realization or sale (after deducting all reasonable costs and expenses of every kind incurred therein or incidental to the care, safekeeping or otherwise of any or all of the Collateral other Loan Documents or in any way relating to the rights of CIT hereunderotherwise, including reasonable attorney's fees and legal expenses) to the payment in whole or in part of the Obligations, in such order as CIT may elect. Debtor agrees that CIT need not give more than 10 days' notice of the time and place of any public sale or of the time after which a private sale may take place and that such notice is reasonable notification of such matters. Debtor Borrower shall be liable to Bank for any deficiency if the proceeds of any sale or disposition of the Collateral are insufficient to pay all amounts to which CIT is entitled. Debtor agrees to pay all costs of CIT, including reasonable attorneys' fees, incurred with respect to collection of any of the Obligations and enforcement of any of CIT's rights hereunder. To the extent permitted by law, Debtor hereby waives presentment, demand, protest or any notice (except as expressly provided in this Section 6) of any kind in connection with this Agreement or any Collateraldeficiency.
Appears in 2 contracts
Samples: Loan Agreement (Aspect Medical Systems Inc), Loan Agreement (Aspect Medical Systems Inc)
Events of Default Remedies. The following events shall each constitute an "Event of Default" hereunder: (a) Debtor shall fail to pay any Obligation within 5 Business Days after Debtor's receipt of notice that timely payment has not been received (whether at the stated maturity, by acceleration or otherwise); (b) any representation or warranty made by Debtor in this Agreement or in any document, certificate or financial or other statement now or hereafter furnished by Debtor in connection with this Agreement or any Loan shall at any time prove to be untrue or misleading in any material respect as of the time when made; (c) Debtor shall fail to observe any covenant, condition or agreement contained in Sections 5.A(11) or 5.B hereof or in paragraph 4(b) of Rider A; (d) Debtor shall fail to observe or perform any other covenant or condition contained in this Agreement, and such failure shall continue unremedied for a period of 30 days after the earlier of the date on which Debtor obtains knowledge of such failure or the date on which notice thereof shall be given by CIT to Debtor; (e) Debtor or any affiliate of Debtor shall default in the payment of, or other performance under, any obligation for payment or lease (whether or not capitalized) or any guarantee (i) to CIT, any affiliate of CIT or to Debtor's main bank, beyond the period of grace, if any, provided with respect thereto, or (ii) to any other Person beyond the period of grace, if any, provided with respect thereto, where such obligation or amount guaranteed is in excess of $1,000,000.00; or (f) a complaint in bankruptcy or for arrangement or reorganization or for relief under any insolvency law is filed by or against Debtor (and when filed against Debtor is in effect for 60 days) or Debtor admits its inability to pay its debts as they mature. If an Event of Default shall occur, CIT may, by notice of default given to Debtor, do any one or more of the following: (a) terminate the Commitment and/or (b) declare the Notes to be due and payable, whereupon the principal amount of the Notes, together with accrued interest thereon and all other amounts owing All Obligations under this Agreement and the NotesNote shall, shall at the option of the Lender, become immediately due and payable without presentment, notice or demand, protest upon the happening of any one of the following specified events (each a “Default,” and the occurrence of such, an “Event of Default”) by or with respect to Obligor (the “Accelerated Obligations”) and the Accelerated Obligations shall bear interest at the Default Rate: (a) failure to pay any amount as set forth in this Agreement and/or the Note; (b) failure or omission to perform, keep, or observe any other term, provision, condition, covenant or agreement contained in this Agreement and/or under the Note, and such default is not cured within ten (10) days after written notice of such default from the Lender pursuant to Section 12; provided, however, with respect to failure to maintain the Manufacturing Facility Equipment pursuant Section 7(j), such period shall be [***] days; (c) a material breach by the Obligor of the Purchase Agreement not cured within any kindapplicable cure period, all whether having occurred on or after the effective date thereof; (d) a material breach by the Obligor of which are hereby expressly waived (and the Equity Investment Agreements, as defined in the case Purchase Agreement, not cured within any applicable cure period, whether having occurred on or after the effective date thereof; (e) the making of any Event a general assignment for the benefit of Default specified in clause creditors; (f) the filing of any petition or the commencement of any proceeding for any relief under any bankruptcy or insolvency laws, or any laws relating to the relief of debtors; (g) suspension of the above paragraph, such acceleration transaction of the Notes shall be automaticObligor’s usual business; or (9) a material breach by the Obligor of the Sublease not cured within any applicable cure period, without any notice by CIT)whether having occurred on or after the effective date thereof, or cancellation, for whatever reason, of the Sublease. In addition, if If an Event of Default shall occur and be continuing, CIT the Lender may exercise exercise, in addition to all other rights and remedies available granted to it, whether under it in this Agreement, under Agreement and in any other instrument or agreement securing, evidencing or relating to the Obligations, all rights and remedies of a secured party under the Code, or otherwise available at law or in equity. Without limiting the generality of the foregoing, Debtor agrees that in any such eventif an Event of Default shall have occurred and be continuing, CITthe Lender, without demand of performance or other demand, advertisement presentment, protest, or notice of any kind (except the any notice specified below of time and place of public or private salerequired by law referred to below) to or upon Debtor the Obligor or any other Person person or entity (all and each of which demands, advertisements and notices are hereby expressly waived), may in such circumstances forthwith do any one or more of the following: collect, receive, appropriate and realize upon the Collateral Collateral, or any part thereof, and and/or may forthwith sell, lease, assign, give an option or options to purchase purchase, or otherwise dispose of and deliver, deliver the Collateral or any part thereof (or contract to do soany of the foregoing), or any part thereof, in one or more parcels at public or private sale or sales sales, at any exchange, broker’s board or office of the Lender or elsewhere upon such places terms and conditions as it may deem advisable and at such prices as it may deem best, for cash or on credit or for future delivery without the assumption of any credit risk. CIT The Lender 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 or redemption of Debtorin the Obligor, which right or equity is hereby expressly waived or released. Debtor The Obligor further agrees, if an Event of Default shall have occurred and be continuing, at CIT's the Lender’s request, to assemble (at Debtor's expense) the Collateral and make it available to CIT the Lender at such places which CIT the Lender shall reasonably select, whether at Debtor's the Obligor’s premises or elsewhere. CIT The Lender shall apply the net proceeds of any such collection, recovery, receipt, appropriation, realization or sale (sale, after deducting all reasonable costs and expenses of every kind incurred therein or incidental to the care, care or safekeeping or otherwise of any or all of the Collateral or in any way relating to the Collateral or the rights of CIT the Lender hereunder, including including, without limitation, reasonable attorney's attorneys’ fees and legal expenses) disbursements, to THIS EXHIBIT HAS BEEN REDACTED AND IS THE SUBJECT OF A CONFIDENTIAL TREATMENT REQUEST. REDACTED MATERIAL IS MARKED WITH [* * *] AND HAS BEEN FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION. the payment in whole or in part of the Obligations, in such order as CIT the Lender may elect, and only after such application and after the payment by the Lender of any other amount required by any provision of law, including, without limitation, Section 9-615 of the Code, shall the Lender be required to account for the surplus, if any, to the Obligor. Debtor agrees To the extent permitted by applicable law, the Obligor waives all claims, damages and demands it may acquire against the Lender arising out of the exercise by the Lender of any of its rights hereunder, provided that CIT need such release shall not give more than 10 days' apply to any claim, damage or demand resulting directly from the gross negligence, actual willful misconduct or bad faith of the Lender. If any notice of the time and place of any public a proposed sale or other disposition of the time after which a private sale may take place and that Collateral shall be required by law, such notice is reasonable notification of such matters. Debtor shall be deemed reasonable and proper if given at least [***] days before such sale or other disposition. The Obligor shall remain liable for any deficiency if the proceeds of any sale or other disposition of the Collateral are insufficient to pay all amounts to which CIT is entitled. Debtor agrees to pay all costs of CIT, including reasonable attorneys' fees, incurred with respect to collection of any of the Obligations and enforcement the fees and disbursements of any of CIT's rights hereunder. To attorneys employed by the extent permitted by law, Debtor hereby waives presentment, demand, protest or any notice (except as expressly provided in this Section 6) of any kind in connection with this Agreement or any CollateralLender to collect such deficiency.
Appears in 2 contracts
Samples: Asset Purchase and License Agreement (Civitas Therapeutics, Inc.), Asset Purchase and License Agreement (Civitas Therapeutics, Inc.)
Events of Default Remedies. The Should any of the following events shall each constitute occur (any such event being referred to as an "Event of Default" hereunder: "): (ai) Debtor default by any Principal Company in the payment when due of any obligation of such Principal Company under this Agreement or any of the other Loan Documents; (ii) default by Borrower of any agreement, promise or covenant of Borrower under SECTION 10(a)(i), 10(a)(ii), 10(a)(iii), 10(a)(iv), 10(a)(vi) or 10(b); (iii) default by any Principal Company in the due performance or observance of any of the agreements, promises or covenants of such Principal Company under any of the Loan Documents or any Warrant, other than, with respect to Borrower, any such agreements, promises or covenants described in clause (i) or (ii) above, which default shall fail continue unremedied for ten or more days after notice from Bank to pay Borrower; (iv) any Obligation within 5 Business Days material representation or warranty of any Principal Company set forth in any of the Loan Documents or any Warrant, or in any certificate, instrument or statement delivered to Bank pursuant to any Loan Document or any Warrant, shall be untrue or incorrect in any material respect when made; (v) default by any Principal Company or any other party of any of its material obligations or agreements under any Ancillary Document, which default continues unremedied for ten or more days after Debtor's receipt of notice that timely from Bank to Borrower; (vi) any Principal Company shall default in the payment has not been received when due (whether at the stated maturity, by acceleration or otherwise); (b) of $100,000 or more of any representation or warranty made by Debtor in this Agreement or in any documentIndebtedness for Borrowed Money, certificate or financial or other statement now or hereafter furnished by Debtor in connection with this Agreement or any Loan Principal Company shall at default in the observance or performance of any time prove to be untrue or misleading in any material respect as of the time when made; (c) Debtor shall fail to observe any covenantterm, condition covenant or agreement contained in Sections 5.A(11) any instrument governing or 5.B hereof or in paragraph 4(b) of Rider A; (d) Debtor shall fail to observe or perform evidencing any other covenant or condition contained in this AgreementIndebtedness for Borrowed Money, and such failure default shall continue unremedied permit the holders of such Indebtedness for Borrowed Money to declare immediately due and payable or to otherwise accelerate Indebtedness for Borrowed Money in an aggregate amount exceeding $100,000; (vii) any Change of Control shall occur; (viii) Borrower shall have failed to complete a Qualified Financing on terms reasonably satisfactory to Bank on or prior to March 15, 1998; (ix) any Principal Company shall become insolvent or make an assignment for the benefit of creditors; (x) any Principal Company shall apply for or consent to or shall permit or suffer to exist the voluntary or involuntary appointment of a trustee, receiver, custodian, or liquidator of all or any material part of its property; (xi) any Principal Company shall have commenced against it, or shall voluntarily commence, any bankruptcy, reorganization or other similar proceeding under bankruptcy or insolvency laws or any dissolution, winding up or liquidation proceeding, which, in the case of any such involuntary proceeding, shall have been consented to by such Principal Company, shall have resulted in entry of an order for relief against such Principal Company, or shall have remained undismissed, undischarged or unbonded for a period of 30 days after the earlier of the date on which Debtor obtains knowledge of such failure or the date on which notice thereof shall be given by CIT to Debtor; (e) Debtor or any affiliate of Debtor shall default in the payment of, or other performance under, any obligation for payment or lease (whether or not capitalized) or any guarantee (i) to CIT, any affiliate of CIT or to Debtor's main bank, beyond the period of grace, if any, provided with respect thereto, or (ii) to any other Person beyond the period of grace, if any, provided with respect thereto, where such obligation or amount guaranteed is in excess of $1,000,000.00more than 60 days; or (fxii) any other event or circumstance shall occur or arise which, in the reasonable judgment of Bank, has had or is reasonably likely to have a complaint Materially Adverse Effect; then, in bankruptcy or for arrangement or reorganization or for relief under any insolvency law is filed by or against Debtor (and when filed against Debtor is in effect for 60 days) or Debtor admits its inability to pay its debts as they mature. If an Event of Default shall occursuch event, CIT Bank may, by at its option and without demand first made and without notice of default given to Debtorany Principal Company, do any one or more of the following: (a) terminate the Commitment and/or Commitment; (b) declare the Notes to be due and payable, whereupon the principal amount all obligations of the Notes, together with accrued interest thereon and all other amounts owing under this Agreement and the Notes, shall become immediately due and payable without presentment, demand, protest or other notice of any kind, all of which are hereby expressly waived (and in the case of any Event of Default specified in clause (f) of the above paragraph, such acceleration of the Notes shall be automatic, without any notice by CIT). In addition, if an Event of Default shall occur and be continuing, CIT may exercise all other rights and remedies available Principal Companies to it, whether Bank under this Agreement, the Guaranty Agreement and the other Loan Documents immediately due and payable; and (c) proceed to enforce all or any of its rights under any other instrument of the Loan Documents or agreement securing, evidencing or relating to the Obligations, under the Code, or otherwise available at law or in equity. Without limiting In the generality event Bank sells or disposes of any Collateral, and a sufficient sum is not realized from any such sale or disposition to pay all obligations of the foregoingPrincipal Companies to Bank under this Agreement, Debtor agrees that in the Guaranty Agreement, any such eventof the other Loan Documents or otherwise, CIT, without demand of performance or other demand, advertisement or notice of any kind (except the notice specified below of time and place of public or private sale) to or upon Debtor or any other Person (all and each of which demands, advertisements and notices are hereby expressly waived), may forthwith do any one or more of the following: collect, receive, appropriate and realize upon the Collateral or any part thereof, and sell, lease, assign, give an option or options to purchase or otherwise dispose of and deliver, the Collateral (or contract to do so), or any part thereof, in one or more parcels at public or private sale or sales at such places and at such prices as it may deem best, for cash or on credit or for future delivery without the assumption of any credit risk. CIT 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 Debtor, which right or equity is hereby expressly released. Debtor further agrees, at CIT's request, to assemble (at Debtor's expense) the Collateral and make it available to CIT at such places which CIT shall select, whether at Debtor's premises or elsewhere. CIT shall apply the net proceeds of any such collection, recovery, receipt, appropriation, realization or sale (after deducting all reasonable costs and expenses of every kind incurred therein or incidental to the care, safekeeping or otherwise of any or all of the Collateral or in any way relating to the rights of CIT hereunder, including reasonable attorney's fees and legal expenses) to the payment in whole or in part of the Obligations, in such order as CIT may elect. Debtor agrees that CIT need not give more than 10 days' notice of the time and place of any public sale or of the time after which a private sale may take place and that such notice is reasonable notification of such matters. Debtor Principal Companies shall be liable to Bank for any deficiency if deficiency. In addition, in the proceeds event of the occurrence of any sale Event of Default under CLAUSE (viii) above, Borrower will issue to Bank (x) on and as of March 15, 1997, a Warrant entitling the Bank to purchase 80,000 shares of Borrower's Common Stock (as proportionately adjusted for any stock splits, split-ups, stock dividends or disposition other recapitalizations or other similar transactions effecting Borrower's Common Stock), at a purchase price per share calculated in the same manner as the initial Warrant hereunder (but as of March 15, 1998), and (y) on the last day of each calendar month thereafter (commencing March 31, 1998) on which such Event of Default is continuing, a Warrant entitling Bank to purchase 10,000 shares of Borrower's Common Stock (as proportionately adjusted for any stock splits, split-ups, stock dividends or other recapitalizations or other similar transactions affecting Borrower's Common Stock), at a purchase price per share calculated in the same manner as the initial Warrant hereunder (but as of the Collateral are insufficient to pay all amounts to which CIT is entitleddate of issuance of such additional Warrants). Debtor agrees to pay all costs of CIT, including reasonable attorneys' fees, incurred with respect to collection of any Each of the Obligations and enforcement additional Warrants will be in substantially the form of any of CIT's rights the initial Warrant issued hereunder. To the extent permitted by law, Debtor hereby waives presentment, demand, protest or any notice (except as expressly provided in this Section 6) of any kind in connection with this Agreement or any Collateral.
Appears in 1 contract
Events of Default Remedies. The following events shall each constitute an "Event of Default" hereunder: If (a) Debtor the Borrower shall fail to pay any Obligation within 5 Business Days after Debtor's receipt principal of notice that timely payment has not been received (whether at the stated maturityLoans when due in accordance with the terms hereof and of the Note, by acceleration or otherwise); (b) the Borrower shall fail to pay any interest on the Loans, or any other amount payable hereunder or under the Note, within five days after any such interest or other amount becomes due in accordance with the terms thereof or hereof, or (c) any representation or warranty made or deemed made by Debtor in this Agreement the Borrower herein or in any documentdocument delivered by the Borrower in connection herewith or which is contained in any certificate, certificate document or financial or other statement now or hereafter furnished by Debtor it at any time under or in connection with this Agreement or any Loan such other document shall at any time prove to be untrue or misleading have been incorrect in any material respect on or as of the time when date made or deemed made; (c) Debtor shall fail , and the facts or circumstances in respect of which such representation or warranty was incorrect have not changed to observe any covenantmake such representation or warranty correct within 30 days after it was made, condition or agreement contained in Sections 5.A(11) or 5.B hereof or in paragraph 4(b) of Rider A; (d) Debtor any Event of Default under (and as defined in) the Credit Agreement shall fail to observe or perform any other covenant or condition contained in this Agreementoccur and be continuing, then, and in any such failure shall continue unremedied for a period of 30 days after the earlier of the date on which Debtor obtains knowledge of such failure or the date on which notice thereof shall be given by CIT to Debtor; (e) Debtor or any affiliate of Debtor shall default in the payment ofevent, or other performance under, any obligation for payment or lease (whether or not capitalized) or any guarantee (i) to CIT, any affiliate if such event is an Event of CIT or to Debtor's main bank, beyond the period of grace, if any, provided with respect thereto, Default specified in clause (i) or (ii) to any other Person beyond the period of grace, if any, provided with respect thereto, where such obligation or amount guaranteed is in excess of $1,000,000.00; or paragraph (f) a complaint in bankruptcy or for arrangement or reorganization or for relief under any insolvency law is filed by or against Debtor (and when filed against Debtor is in effect for 60 days) or Debtor admits its inability to pay its debts as they mature. If an Event of Default shall occur, CIT may, by notice of default given to Debtor, do any one or more Section 9 of the following: (a) terminate Credit Agreement, automatically the Commitment and/or (b) declare the Notes to be due and payable, whereupon the principal amount commitment of the Notes, together Lender to make Loans hereunder shall be terminated and the Loans (with accrued interest thereon thereon) and all other amounts owing under this Agreement and the NotesNote shall immediately become due and payable, shall become immediately (ii) if such event is any other default described in clause (a), (b),(c) or (d) above, the Lender may by notice to the Borrower declare the commitment of the Lender to make Loans hereunder to be terminated and the Loans (with accrued interest thereon) and all other amounts owing under this Agreement and the Note to be due and payable without presentmentforthwith, demand, protest or other notice of any kind, all of which are hereby expressly waived (whereupon the same shall immediately become due and in the case of any Event of Default specified in clause (f) of the above paragraph, such acceleration of the Notes shall be automatic, without any notice by CIT). In addition, if an Event of Default shall occur and be continuing, CIT may exercise all other rights and remedies available to it, whether under this Agreement, under any other instrument or agreement securing, evidencing or relating to the Obligations, under the Code, or otherwise available at law or in equity. Without limiting the generality of the foregoing, Debtor agrees that in any such event, CIT, without demand of performance or other demand, advertisement or notice of any kind (except the notice specified below of time and place of public or private sale) to or upon Debtor or any other Person (all and each of which demands, advertisements and notices are hereby expressly waived), may forthwith do any one or more of the following: collect, receive, appropriate and realize upon the Collateral or any part thereofpayable, and sell, lease, assign, give an option or options to purchase or otherwise dispose of and deliver, (iii) the Collateral (or contract to do so), or any part thereof, in one or more parcels at public or private sale or sales at such places and at such prices as it may deem best, for cash or on credit or for future delivery without the assumption of any credit risk. CIT Lender 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 Debtor, which right or equity is hereby expressly released. Debtor further agrees, at CIT's request, to assemble (at Debtor's expense) the Collateral and make it available to CIT at such places which CIT shall select, whether at Debtor's premises or elsewhere. CIT shall apply the net proceeds of any such collection, recovery, receipt, appropriation, realization or sale (after deducting all reasonable costs and expenses of every kind incurred therein or incidental to the care, safekeeping or otherwise of any or all of the Collateral or in any way relating to the rights of CIT hereunder, including reasonable attorney's fees and legal expenses) to the payment in whole or in part of the Obligations, in such order as CIT may elect. Debtor agrees that CIT need not give more than 10 days' notice of the time and place of any public sale or of the time after which a private sale may take place and that such notice is reasonable notification of such matters. Debtor shall be liable for any deficiency if the proceeds of any sale or disposition of the Collateral are insufficient to pay all amounts to which CIT is entitled. Debtor agrees to pay all costs of CIT, including reasonable attorneys' fees, incurred remedies with respect to collection of any of the Obligations Collateral as are set forth in the HomeSide Security Agreement (as incorporated and enforcement of any of CIT's rights hereunder. To the extent permitted by law, Debtor hereby waives presentment, demand, protest or any notice (except as expressly provided in this Section 6) of any kind in connection with this Agreement or any Collateralmodified pursuant to paragraph 4 hereof).
Appears in 1 contract
Samples: Loan Agreement (Homeside Inc)
Events of Default Remedies. The If any of the following events (“Events ofDefault”) shall each constitute occur:(a) default shall be made in the payment of any principal of any Loan when and as the sameshall become due and payable, whether at the due date thereof or at a date fixed for prepaymentthereof or by acceleration thereof or otherwise;(b) default shall be made in the payment of any interest on any Loan or any fee or any otheramount (other than an "Event of Default" hereunder: amount referred to in clause (a) Debtor of this Section) payable under thisAgreement or any other Loan Document, when and as the same shall fail to pay any Obligation within 5 become due and payable,and such failure shall continue unremedied for a period of five Business Days after Debtor's receipt of notice that timely payment has not been received (whether at the stated maturity, by acceleration or otherwise); (bDays;(c) any representation representation, warranty or warranty statement made by Debtor in this Agreement or deemed made in any document, certificate Loan Documentor any amendment or financial modification thereof or other statement now or hereafter furnished by Debtor in connection with this Agreement or any Loan waiver thereunder shall at any time prove to be untrue or misleading have beenincorrect in any material respect as when made or deemed made and, solely to the extent suchrepresentation, warranty or statement is capable of being corrected or cured, shall remainincorrect for 30 days after the time when made; earlier of (cx) Debtor shall fail to observe the Borrower’s knowledge of such default and (y)receipt by the Borrower of written notice thereof from the Administrative Agent;(d) the Borrower or any covenant, condition or agreement contained in Sections 5.A(11) or 5.B hereof or in paragraph 4(b) of Rider A; (d) Debtor Guarantor shall fail to observe or perform any other covenant or covenant, condition oragreement contained in this AgreementSections 5.02(a), 5.03 (with respect to the existence of the Borrower) or5.09 or in Article VI;(e) the Borrower or any Guarantor shall fail to observe or perform any covenant, condition oragreement contained in any Loan Document (other than those specified in clause (a), (b) or (d) ofthis Section), and such failure shall continue unremedied for a period of 30 days after the earlier of the date on which Debtor obtains knowledge of such failure or the date on which notice thereof shall be given by CIT to Debtor; (e) Debtor or any affiliate of Debtor shall default in the payment of, or other performance under, any obligation for payment or lease (whether or not capitalized) or any guarantee (i) to CIT, any affiliate of CIT or to Debtor's main bank, beyond the period of grace, if any, provided with respect thereto, or (ii) to any other Person beyond the period of grace, if any, provided with respect thereto, where such obligation or amount guaranteed is in excess of $1,000,000.00; or (f) a complaint in bankruptcy or for arrangement or reorganization or for relief under any insolvency law is filed by or against Debtor (and when filed against Debtor is in effect for 60 days) or Debtor admits its inability to pay its debts as they mature. If an Event of Default shall occur, CIT may, by notice of default given to Debtor, do any one or more of the following: (a) terminate the Commitment and/or (b) declare the Notes to be due and payable, whereupon the principal amount of the Notes, together with accrued interest thereon and all other amounts owing under this Agreement and the Notes, shall become immediately due and payable without presentment, demand, protest or other notice of any kind, all of which are hereby expressly waived (and in the case of any Event of Default specified in clause (f) of the above paragraph, such acceleration of the Notes shall be automatic, without any notice by CIT). In addition, if an Event of Default shall occur and be continuing, CIT may exercise all other rights and remedies available to it, whether under this Agreement, under any other instrument or agreement securing, evidencing or relating to the Obligations, under the Code, or otherwise available at law or in equity. Without limiting the generality of the foregoing, Debtor agrees that in any such event, CIT, without demand of performance or other demand, advertisement or notice of any kind (except the notice specified below of time and place of public or private sale) to or upon Debtor or any other Person (all and each of which demands, advertisements and notices are hereby expressly waived), may forthwith do any one or more of the following: collect, receive, appropriate and realize upon the Collateral or any part thereof, and sell, lease, assign, give an option or options to purchase or otherwise dispose of and deliver, the Collateral (or contract to do so), or any part thereof, in one or more parcels at public or private sale or sales at such places and at such prices as it may deem best, for cash or on credit or for future delivery without the assumption of any credit risk. CIT 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 Debtor, which right or equity is hereby expressly released. Debtor further agrees, at CIT's request, to assemble (at Debtor's expense) the Collateral and make it available to CIT at such places which CIT shall select, whether at Debtor's premises or elsewhere. CIT shall apply the net proceeds of any such collection, recovery, receipt, appropriation, realization or sale (after deducting all reasonable costs and expenses of every kind incurred therein or incidental to the care, safekeeping or otherwise of any or all of the Collateral or in any way relating to the rights of CIT hereunder, including reasonable attorney's fees and legal expenses) to the payment in whole or in part of the Obligations, in such order as CIT may elect. Debtor agrees that CIT need not give more than 10 days' notice of the time and place of any public sale or of the time after which a private sale may take place and that such notice is reasonable notification of such matters. Debtor shall be liable for any deficiency if the proceeds of any sale or disposition of the Collateral are insufficient to pay all amounts to which CIT is entitled. Debtor agrees to pay all costs of CIT, including reasonable attorneys' fees, incurred with respect to collection of any of the Obligations and enforcement of any of CIT's rights hereunder. To the extent permitted by law, Debtor hereby waives presentment, demand, protest or any notice (except as expressly provided in this Section 6) of any kind in connection with this Agreement or any Collateral.written81
Appears in 1 contract
Samples: Credit Agreement (CDW Corp)
Events of Default Remedies. The occurrence of any one of the following events shall constitute a default (each constitute an "“Event of Default" hereunder”) by Borrower under this Agreement: (a) Debtor if Borrower shall fail to pay any Obligation within 5 Business Days after Debtor's receipt of notice that timely payment has not been received (whether at the stated maturity, by acceleration or otherwise); (b) any representation or warranty made by Debtor in this Agreement or in any document, certificate or financial or other statement now or hereafter furnished by Debtor in connection with this Agreement or any Loan shall at any time prove to be untrue or misleading in any material respect as of the time when made; (c) Debtor shall fail to observe any covenant, condition or agreement contained in Sections 5.A(11) or 5.B hereof or in paragraph 4(b) of Rider A; (d) Debtor shall fail to observe or perform any other covenant or condition contained in this Agreement, and such failure shall continue unremedied for a period of 30 days after the earlier of the date on which Debtor obtains knowledge of such failure or the date on which notice thereof shall be given by CIT to Debtor; (e) Debtor or any affiliate of Debtor shall default in the payment of, or other performance under, any obligation for payment or lease (whether or not capitalized) or any guarantee (i) to CITprincipal amount of any Advance, any affiliate of CIT when due and payable, or to Debtor's main bank, beyond the period of grace, if any, provided with respect theretodeclared due and payable, or (ii) interest on any Advance within five (5) days after the date on which such payment of interest shall become due and payable, or declared due and payable; (b) if Borrower shall fail to pledge additional Pledged Securities as required under Section 9(b) above; (c) if Borrower shall default in the performance or observance of any other Person beyond of its obligations under this Agreement or any of the other Credit Documents, and such default shall remain uncured for a period of gracefifteen (15) days after notice from Lender; (d) if any representation, warranty, statement, report or certificate made or delivered by Borrower, or any of its officers, employees or agents, to Lender is not true and correct in any material respect when made or deemed made; (e) If Borrower shall (i) become insolvent, (ii) not be paying its debts generally as such debts become due, (iii) make an assignment for the benefit of creditors or cause or suffer any of their respective assets to come within the possession of any receiver, trustee or custodian, (iv) have a petition filed by or against Borrower under the Bankruptcy Reform Act of 1978, as amended, or any similar law or regulation, (v) have any of its assets attached, seized or levied upon, or (vi) otherwise become the subject of any insolvency or creditor enforcement proceedings, provided however, that any involuntary petition or other proceeding against Borrower shall not be an Event of Default unless an order for relief is entered or such proceeding remains undismissed for at least sixty (60) days; (f) if Borrower shall default in the payment, when due, whether by acceleration or otherwise, of any indebtedness of Borrower in excess of $1,000,000, and such default is declared and is not cured within the time, if any, provided with respect theretospecified there for in any agreement governing the same, where or any event or condition shall occur which results in the acceleration of the maturity of any such obligation Indebtedness of Borrower; (g) if one or amount guaranteed is more judgments or decrees shall be entered against Borrower involving, individually, or in excess the aggregate, a liability of $1,000,000.001,000,000 or more and such judgments or decrees shall not have been satisfied, vacated, discharged or stayed pending appeal within thirty (30) days after the entry thereof; or (fh) a complaint if this Agreement, the Note, or any other Credit Documents executed by Borrower at any time after their respective execution and delivery, shall cease to be in bankruptcy full force and effect, shall be declared null and void, shall be revoked or terminated or shall be subject to any contest by Borrower as to their validity and/or enforceability, for any reason, or if Borrower shall for any reason deny any further liability to Lender hereunder and thereunder. Upon the occurrence and during the continuance of any Event of Default, Borrower may not request any Advance under this Agreement, Lender may then forthwith cease making Advances to or for arrangement or reorganization or the benefit of Borrower under this Agreement without any notice to Borrower, and Lender may terminate this Agreement; provided that this Agreement shall automatically terminate, and all amounts Borrower owes Lender hereunder and under the Note shall become due, without any notice should an order for relief be entered with respect to Borrower under any insolvency law is filed the United States Bankruptcy Code. Upon an Event of Default, with notice by Lender to or against Debtor (demand by Lender of Borrower, Lender may declare all Advances to be immediately due and when filed against Debtor is payable. Lender, in effect for 60 days) or Debtor admits its inability to pay its debts as they mature. If sole discretion, upon the occurrence of and during the continuance of an Event of Default shall occur, CIT may, by notice of default given to Debtor, do any may exercise one or more of the following: (a) terminate the Commitment and/or (b) declare the Notes rights and remedies accruing to be due and payable, whereupon the principal amount of the Notes, together with accrued interest thereon and all other amounts owing Lender under this Agreement and or the Notesother Credit Documents, shall become immediately due and payable without presentmentand/or applicable law upon default by Borrower, demand, protest or other notice of any kind, all of which are hereby expressly waived (and in the case of any Event of Default specified in clause (f) of the above paragraph, such acceleration of the Notes shall be automaticincluding, without any notice by CIT). In addition, if an Event of Default shall occur and be continuing, CIT may exercise all other rights and remedies available to it, whether under this Agreement, under any other instrument or agreement securing, evidencing or relating to the Obligations, under the Code, or otherwise available at law or in equity. Without limiting the generality of the foregoing, Debtor agrees that in any such event, CIT, without demand of performance or other demand, advertisement or notice of any kind (except the notice specified below of time and place of public or private sale) to or upon Debtor or any other Person (all and each of which demands, advertisements and notices are hereby expressly waived), may forthwith do any one or more of the following: collect, receive, appropriate and realize upon the Collateral or any part thereof, and sell, lease, assign, give an option or options to purchase or otherwise dispose of and deliverlimitation, the Collateral (or contract right to do so), or any part thereof, in one or more parcels at public or private sale or sales at such places set off and/or reduce to cash and at such prices as it may deem best, for cash or on credit or for future delivery without the assumption of any credit risk. CIT 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 Debtor, which right or equity is hereby expressly released. Debtor further agrees, at CIT's request, to assemble (at Debtor's expense) the Collateral and make it available to CIT at such places which CIT shall select, whether at Debtor's premises or elsewhere. CIT shall apply the net proceeds of any such collection, recovery, receipt, appropriation, realization or sale (after deducting all reasonable costs and expenses of every kind incurred therein or incidental to the care, safekeeping or otherwise of any or all of the Collateral or in any way relating to the rights of CIT hereunder, including reasonable attorney's fees and legal expenses) to the payment in whole or in part of the Obligations, in such order as CIT may elect. Debtor agrees that CIT need not give more than 10 days' notice of the time and place of any public sale or of the time after which a private sale may take place and that such notice is reasonable notification of such matters. Debtor shall be liable for any deficiency if the proceeds of any sale or disposition of the Collateral are insufficient to pay all amounts to which CIT is entitled. Debtor agrees to pay all costs of CIT, including reasonable attorneys' fees, incurred with respect to collection of any of Borrower’s obligations, any monies, reserves, deposits, certificates of deposit, deposit accounts and interest and dividends thereon, securities, investment property, cash and other property in the Obligations and enforcement possession of or under the control of Lender or any of CIT's rights hereunder. To the extent permitted by law, Debtor hereby waives presentment, demand, protest or any notice (except as expressly provided in this Section 6) of any kind in connection with this Agreement or any CollateralLender’s affiliates.
Appears in 1 contract
Events of Default Remedies. The (a) If any one of the following events shall each constitute (each, an "Event of Default" hereunder") shall occur, then to the extent permitted by applicable law, the Lender shall have the right to exercise any one or more of the remedies set forth in Section 17(b) hereof: (ai) Debtor shall fail the Borrower fails to make any payment when due hereunder or any Obligor fails to pay when due any Obligation within 5 Business Days after Debtor's receipt of notice that timely payment has not been received the Obligations; or (whether at ii) an Obligor fails to observe or perform (A) any other agreement or obligation to be observed or performed hereunder or under any Loan Schedule or other agreement, document or instrument delivered to the stated maturityLender by or on behalf of an Obligor or otherwise relating to any of the Obligations (collectively, by acceleration the "Other Documents"), or otherwise)(B) any other obligation of an Obligor to the Lender; or (biii) any representation or warranty made by Debtor or on behalf of any Obligor in this Agreement or any Loan Schedule or in any document, certificate of the Other Documents shall at any time prove to have been incorrect or financial untrue in any material respect when made; or other statement now (iv) an Obligor makes any material misrepresentation to the Lender or hereafter furnished by Debtor fails to disclose to the Lender any material fact in connection with this Agreement or any Loan shall Schedule or otherwise, either contemporaneously herewith or at any time prove prior or subsequent to be untrue the execution hereof; or misleading in (v) an Obligor breaches any material respect as of the time when made; (c) Debtor shall fail to observe any covenant, condition warranty or agreement contained in Sections 5.A(11) or 5.B hereof herein or in paragraph 4(b) of Rider A; (d) Debtor shall fail to observe or perform any other covenant or condition contained in this Agreement, and such failure shall continue unremedied for a period of 30 days after the earlier of the date on which Debtor obtains knowledge of such Other Documents, including, without limitation, the Borrower's failure to obtain or maintain any insurance required by the date on which notice thereof shall be given by CIT to DebtorLender hereunder; or (evi) Debtor or any affiliate of Debtor shall a default occurs in the payment ofof any indebtedness owed to any individual or entity other than the Lender, or other a default occurs in the performance underor observance of the terms of any agreement, document or instrument pursuant to which such indebtedness was created, secured or guaranteed, the effect of which default is to cause or permit the holder of any obligation for payment or lease such indebtedness in an amount exceeding $100,000 to cause the same to be due prior to its stated maturity (whether or not capitalized) or any guarantee (i) to CIT, any affiliate of CIT or to Debtor's main bank, beyond such default is waived by the period of grace, if any, provided with respect thereto, or (ii) to any other Person beyond the period of grace, if any, provided with respect thereto, where such obligation or amount guaranteed is in excess of $1,000,000.00holder thereof); or (fvii) an Obligor fails to pay, withhold, collect or remit when asserted or due any tax, assessment or other sum payable with respect to the Collateral or any security for any of the Obligations (including, without limitation, any premium on any insurance policy with respect to any of the Collateral or any security for any of the Obligations, or any insurance policy assigned to the Lender as security for any of the Obligations), or the making of any tax assessment against any Obligor by the United States or any state or local government; or (viii) a complaint final judgment is entered against an Obligor and not timely appealed or any attachment, levy or execution is made against any property of an Obligor and not stayed, or any part of any property of an Obligor is condemned or seized by any governmental authority or court at the instance of such governmental authority; or (ix) the death of an Obligor, if an individual, or the death of any individual member of an Obligor, if a partnership or joint venture; or (x) a change in bankruptcy the control, management, ownership or operations of an Obligor, or a suspension of the usual business of an Obligor, or the dissolution, liquidation or other termination of existence of an Obligor, or the adoption of any resolution for arrangement the dissolution, liquidation or reorganization other termination of existence of an Obligor; or for relief under any insolvency law is filed by (xi) an Obligor fails (or against Debtor (and when filed against Debtor is an Obligor admits in effect for 60 dayswriting its inability) or Debtor admits its inability to generally pay its debts as they mature. If become due or the insolvency or business failure of an Event of Default shall occur, CIT may, by notice of default given to Debtor, do any one Obligor; or more of the following: (a) terminate the Commitment and/or (b) declare the Notes to be due and payable, whereupon the principal amount of the Notes, together with accrued interest thereon and all other amounts owing under this Agreement and the Notes, shall become immediately due and payable without presentment, demand, protest or other notice of any kind, all of which are hereby expressly waived (and in the case of any Event of Default specified in clause (f) of the above paragraph, such acceleration of the Notes shall be automatic, without any notice by CIT). In addition, if an Event of Default shall occur and be continuing, CIT may exercise all other rights and remedies available to it, whether under this Agreement, under any other instrument or agreement securing, evidencing or relating to the Obligations, under the Code, or otherwise available at law or in equity. Without limiting the generality of the foregoing, Debtor agrees that in any such event, CIT, without demand of performance or other demand, advertisement or notice of any kind (except the notice specified below of time and place of public or private sale) to or upon Debtor or any other Person (all and each of which demands, advertisements and notices are hereby expressly waived), may forthwith do any one or more of the following: collect, receive, appropriate and realize upon the Collateral or any part thereof, and sell, lease, assign, give an option or options to purchase or otherwise dispose of and deliver, the Collateral (or contract to do so), or any part thereof, in one or more parcels at public or private sale or sales at such places and at such prices as it may deem best, for cash or on credit or for future delivery without the assumption of any credit risk. CIT 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 Debtor, which right or equity is hereby expressly released. Debtor further agrees, at CIT's request, to assemble (at Debtor's expensexii) the Collateral and make it available to CIT at such places which CIT shall selectfiling of an application for appointment of a trustee, whether at Debtor's premises custodian or elsewhere. CIT shall apply the net proceeds of any such collection, recovery, receipt, appropriation, realization or sale (after deducting all reasonable costs and expenses of every kind incurred therein or incidental to the care, safekeeping or otherwise of any or all of the Collateral or in any way relating to the rights of CIT hereunder, including reasonable attorney's fees and legal expenses) to the payment in whole or in part of the Obligations, in such order as CIT may elect. Debtor agrees that CIT need not give more than 10 days' notice of the time and place of any public sale or of the time after which a private sale may take place and that such notice is reasonable notification of such matters. Debtor shall be liable receiver for any deficiency if the proceeds of any sale or disposition of the Collateral are insufficient to pay all amounts to which CIT is entitled. Debtor agrees to pay all costs of CIT, including reasonable attorneys' fees, incurred with respect to collection of any of the Obligations and enforcement of any of CIT's rights hereunder. To the extent permitted by law, Debtor hereby waives presentment, demand, protest or any notice (except as expressly provided in this Section 6) of any kind in connection with this Agreement or any Collateral.an Obligor or
Appears in 1 contract
Samples: Master Note and Security Agreement (Neotherapeutics Inc)
Events of Default Remedies. The following events shall each constitute an "Event of Default" hereunder: (a) Debtor shall fail to pay any Obligation within 5 Business Days after Debtor's receipt of notice that timely payment has not been received (whether at the stated maturity, by acceleration or otherwise); (b) any representation or warranty made by Debtor in this Agreement or in any document, certificate or financial or other statement now or hereafter furnished by Debtor in connection with this Agreement or any Loan shall at any time prove to be untrue or misleading in any material respect as of the time when made; (c) Debtor shall fail to observe any covenant, condition or agreement contained in Sections 5.A(11) or 5.B hereof or in paragraph 4(b) of Rider A; (d) Debtor shall fail to observe or perform any other covenant or condition contained in this Agreement, and such failure shall continue unremedied for a period of 30 days after the earlier of the date on which Debtor obtains knowledge of such failure or the date on which notice thereof shall be given by CIT to Debtor; (e) Debtor or any affiliate of Debtor shall default in the payment of, or other performance under, any obligation for payment or lease (whether or not capitalized) or any guarantee (i) to CIT, any affiliate of CIT or to Debtor's main bank, beyond the period of grace, if any, provided with respect thereto, or (ii) to any other Person beyond the period of grace, if any, provided with respect thereto, where such obligation or amount guaranteed is in excess of $1,000,000.00; or (f) a complaint in bankruptcy or for arrangement or reorganization or for relief under any insolvency law is filed by or against Debtor (and when filed against Debtor is in effect for 60 days) or Debtor admits its inability to pay its debts as they mature. If an Event event of Default default as specifically set forth herein shall occur, CIT may, by notice of default given to Debtor, do or in the event any one or more of the following: following events shall occur (an “event of default”): (a) terminate If default shall be made in the Commitment and/or (b) declare payment of any of the Notes to be Indebtedness secured hereby, or any interest thereon, within fifteen days of the date as and when the same shall become due and payable, whereupon whether by reason of demand, acceleration or otherwise; (b) If default shall be made by Grantor in the principal amount due performance or observance of any covenant, agreement or condition herein contained or required to be performed or observed by Grantor and such default shall continue for a period of thirty (30) days after the date of the Notesmailing of a written notice addressed to Grantor at the address hereinabove set forth, together or to such other address as may be designated by Grantor in written notice delivered to Beneficiary during which time such default is neither cured by Grantor nor waived in writing by Beneficiary, provided that, if the failure stated in the notice cannot be corrected within said 30-day period, Beneficiary may, with accrued interest thereon Bondowner Consent (as defined in that certain Indenture of Trust dated as of September 1, 2002 by and all other amounts owing under this Agreement between Beneficiary and UMB Bank, N.A., as Trustee), consent in writing to an extension of such time prior to its expiration if corrective action is instituted by Grantor within the Notes, 30-day period and diligently pursued to completion; (c) If any representation or warranty of Grantor contained herein shall become immediately due and payable without presentment, demand, protest prove to be in any material respect incorrect or other notice if there shall be any breach of any kindsuch representation or warranty; (d) If the Mortgaged Property or any portion thereof or ownership interest therein is sold, all transferred, assigned or in any manner conveyed without the prior written consent of which are hereby expressly waived Beneficiary; (and in e) If a default or event of default shall occur under or within the case meaning of any Event other deed of Default specified in clause trust or mortgage covering any of the Mortgaged Property; or (f) If any event of default shall occur under or within the meaning of the above paragraph, such acceleration of the Notes shall be automatic, without any notice by CIT). In addition, if an Event of Default shall occur and be continuing, CIT may exercise all other rights and remedies available to it, whether under this Agreement, Loan Agreement or under any other agreement, document or instrument or agreement securing, (including any guaranty) evidencing or relating to the Obligations, under the Code, or otherwise available at law or in equity. Without limiting the generality of the foregoing, Debtor agrees that in any such event, CIT, without demand of performance or other demand, advertisement or notice of any kind (except the notice specified below of time and place of public or private sale) to or upon Debtor or any other Person (all and each of which demands, advertisements and notices are hereby expressly waived), may forthwith do any one or more of the following: collect, receive, appropriate and realize upon the Collateral or any part thereof, and sell, lease, assign, give an option or options to purchase or otherwise dispose of and deliver, the Collateral (or contract to do so), or any part thereof, in one or more parcels at public or private sale or sales at such places and at such prices as it may deem best, for cash or on credit or for future delivery without the assumption of any credit risk. CIT 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 Debtor, which right or equity is hereby expressly released. Debtor further agrees, at CIT's request, to assemble (at Debtor's expense) the Collateral and make it available to CIT at such places which CIT shall select, whether at Debtor's premises or elsewhere. CIT shall apply the net proceeds of any such collection, recovery, receipt, appropriation, realization or sale (after deducting all reasonable costs and expenses of every kind incurred therein or incidental to the care, safekeeping or otherwise of any or all of the Collateral or in any way relating to the rights of CIT hereunder, including reasonable attorney's fees and legal expenses) to the payment in whole or in part of the Obligations, in such order as CIT may elect. Debtor agrees that CIT need not give more than 10 days' notice of the time and place of any public sale or of the time after which a private sale may take place and that such notice is reasonable notification of such matters. Debtor shall be liable for any deficiency if the proceeds of any sale or disposition of the Collateral are insufficient to pay all amounts to which CIT is entitled. Debtor agrees to pay all costs of CIT, including reasonable attorneys' fees, incurred with respect to collection of securing any of the Obligations and enforcement Indebtedness secured hereby; (g) If pursuant to § 443.055 R.X.Xx., as amended, Grantor shall notify Beneficiary of any Grantor’s election to terminate the operation of CIT's rights hereunder. To the extent permitted by law, Debtor hereby waives presentment, demand, protest this Deed of Trust as security for future advances or any notice (except as expressly provided in this Section 6) of any kind in connection with this Agreement or any Collateral.future obligations;
Appears in 1 contract
Events of Default Remedies. The following events shall each constitute an "Event of Default" hereunder: ---------------- (a) Debtor shall fail to pay any Obligation within 5 Business Days 10 days after Debtor's receipt of notice that timely payment has not been received the same becomes due (whether at the stated maturity, by acceleration or otherwise); (b) any representation or warranty made by Debtor in this Agreement or in any document, certificate or financial or other statement now or hereafter furnished by Debtor in connection with this Agreement or any Loan shall at any time prove to be untrue or misleading in any material respect as of the time when made; (c) Debtor shall fail to observe any covenant, condition or agreement contained in Sections 5.A(11) or 5.B hereof or in paragraph paragraphs 4(b) or 7 of Rider A; (d) Debtor shall fail to observe or perform in any material respect any other covenant or condition contained in this Agreement, and such failure shall continue unremedied for a period of 30 days after the earlier of the date on which Debtor obtains knowledge of such failure or the date on which notice thereof shall be given by CIT to Debtor; (e) Debtor or any affiliate of Debtor shall default in the payment of, or other performance under, any obligation for payment or lease (whether or not capitalized) or any guarantee (i) to CIT, CIT or any affiliate of CIT or to Debtor's main bank, beyond the period of grace, if any, provided with respect thereto, or (ii) to any other Person beyond the period of grace, if any, provided with respect thereto, where such obligation or amount guaranteed is in excess of $1,000,000.002,000,000.00; or (f) a complaint in bankruptcy or for arrangement or reorganization or for relief under any insolvency law is filed by or against Debtor (and when filed against Debtor is in effect for 60 days) or Debtor admits its inability to pay its debts as they mature. If an Event of Default shall occur, CIT may, by notice of default given to Debtor, do any one or more of the following: (a) terminate the Commitment and/or (b) declare the Notes to be due and payable, whereupon the principal amount of the Notes, together with accrued interest thereon and all other amounts owing under this Agreement and the Notes, shall become immediately due and payable without presentment, demand, protest or other notice of any kind, all of which are hereby expressly waived (and in the case of any Event of Default specified in clause (f) of the above paragraph, such acceleration of the Notes shall be automatic, without any notice by CIT). In addition, if an Event of Default shall occur and be continuing, CIT may exercise all other rights and remedies available to it, whether under this Agreement, under any other instrument or agreement securing, evidencing or relating to the Obligations, under the Code, or otherwise available at law or in equity. Without limiting the generality of the foregoing, Debtor agrees that in any such event, CIT, without demand of performance or other demand, advertisement or notice of any kind (except the notice specified below of time and place of public or private sale) to or upon Debtor or any other Person (all and each of which demands, advertisements and notices are hereby expressly waived), may forthwith do any one or more of the following: collect, receive, appropriate and realize upon the Collateral or any part thereof, and sell, lease, assign, give an option or options to purchase or otherwise dispose of and deliver, the Collateral (or contract to do so), or any part thereof, in one or more parcels at public or private sale or sales at such places and at such prices as it may deem best, for cash or on credit or for future delivery without the assumption of any credit risk. CIT shall have the right upon any such public sale or sales, and, 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 Debtor, which right or equity is hereby expressly released. Debtor further agrees, at CIT's request, to assemble (at Debtor's expense) the Collateral and make it available to CIT at such places which CIT shall select, whether at Debtor's premises or elsewhere. CIT shall apply the net proceeds of any such collection, recovery, receipt, appropriation, realization or sale (after deducting all reasonable costs and expenses of every kind incurred therein or incidental to the care, safekeeping or otherwise of any or all of the Collateral or in any way relating to the rights of CIT hereunder, including reasonable attorney's fees and legal expenses) to the payment in whole or in part of the Obligations, in such order as CIT may elect. Debtor agrees that CIT need not give more than 10 days' notice of the time and place of any public sale or of the time after which a private sale may take place and that such notice is reasonable notification of such matters. Debtor shall be liable for any deficiency if the proceeds of any sale or disposition of the Collateral are insufficient to pay all amounts to which CIT is entitled. Debtor agrees to pay all costs of CIT, including reasonable attorneys' fees, incurred with respect to collection of any of the Obligations and enforcement of any of CIT's rights hereunder. To the extent permitted by law, Debtor hereby waives presentment, demand, protest or any notice (except as expressly provided in this Section 6) of any kind in connection with this Agreement or any Collateral.
Appears in 1 contract
Samples: Loan and Security Agreement (Southwall Technologies Inc /De/)
Events of Default Remedies. (a) The occurrence of any of the following events shall each constitute and be an event of default (an "Event of Default" hereunder: "): (a1) Debtor shall fail Lessee fails to pay any Obligation installment of principal or interest, or any other payment due and owing, under the Promissory Note or this Agreement within 5 Business Days ten (10) days after Debtor's receipt of notice that timely payment has not been received (whether at the stated maturity, by acceleration or otherwise)same shall have become due; (b2) Lessee becomes insolvent or makes an assignment for the benefit of its creditors; (3) a receiver, trustee, conservator or liquidator of Lessee or of all or a substantial part of Lessee's assets is appointed with or without the application or consent of Lessee; (4) a petition is filed by or against Lessee under any bankruptcy, insolvency or similar legislation, and, if against, the proceeding shall continue undismissed, or the order, judgment or decree ordering the proceeding shall continue unstayed, for thirty (30) or more days; (5) Lessee violates or fails to perform any provision of either this Agreement, the Promissory Note, the Lease or any other loan, lease or credit agreement or any acquisition or purchase agreement with Lessor or any other party (a default under which third party agreement would materially and adversely effect Lessee), and such failure shall continue unremedied for 30 days after notice from Lessor to Lessee, specifying the failure and demanding the same to be remedied; (6) Lessee violates or fails to perform any covenant or representation made by Lessee in this Agreement or the Promissory Note, and such violation or failure shall continue unremedied for 30 days after notice from Lessor to Lessee, specifying the violation or failure and demanding the same to be remedied; (7) any representation or warranty made by Debtor in this Agreement or in any documentAgreement, certificate or the Promissory Note, the Lease, certificate, financial statement or other statement now or hereafter furnished by Debtor in connection with this Agreement or any Loan to Lessor shall at any time prove to be untrue false or misleading in any material respect as of the time when date on which the same was made; (c) Debtor shall fail to observe any covenant, condition or agreement contained in Sections 5.A(11) or 5.B hereof or in paragraph 4(b) 8) an event of Rider Adefault has occurred and is continuing under the Promissory Note; (d9) Debtor shall fail an additional lien attaches to observe the Equipment; or perform any other covenant or condition contained in this Agreement10) Lessee makes a bulk transfer of furniture, and such failure shall continue unremedied for a period of 30 days after the earlier of the date on which Debtor obtains knowledge of such failure or the date on which notice thereof shall be given by CIT to Debtor; (e) Debtor or any affiliate of Debtor shall default in the payment offurnishings, fixtures or other performance under, any obligation for payment equipment or lease (whether or not capitalized) or any guarantee (i) to CIT, any affiliate of CIT or to Debtor's main bank, beyond the period of grace, if any, provided with respect thereto, or (ii) to any other Person beyond the period of grace, if any, provided with respect thereto, where such obligation or amount guaranteed is in excess of $1,000,000.00inventory; or (f11) there is a complaint material adverse change in bankruptcy Lessee's or for arrangement or reorganization or for relief under any insolvency law is filed by or against Debtor (and when filed against Debtor is in effect for 60 days) or Debtor admits its inability to pay its debts as they mature. If an Event Guarantor's financial condition since the dated of Default shall occur, CIT may, by notice of default given to Debtor, do any one or more of the following: (a) terminate the Commitment and/or (b) declare the Notes to be due and payable, whereupon the principal amount of the Notes, together with accrued interest thereon and all other amounts owing under this Agreement and the Notes, shall become immediately due and payable without presentment, demand, protest or other notice of any kind, all of which are hereby expressly waived (and in the case of any Event of Default specified in clause (f) of the above paragraph, such acceleration of the Notes shall be automatic, without any notice by CIT). In addition, if an Event of Default shall occur and be continuing, CIT may exercise all other rights and remedies available to it, whether under this Agreement, under any other instrument or agreement securing, evidencing or relating to the Obligations, under the Code, or otherwise available at law or in equity. Without limiting the generality of the foregoing, Debtor agrees that in any such event, CIT, without demand of performance or other demand, advertisement or notice of any kind (except the notice specified below of time and place of public or private sale) to or upon Debtor or any other Person (all and each of which demands, advertisements and notices are hereby expressly waived), may forthwith do any one or more of the following: collect, receive, appropriate and realize upon the Collateral or any part thereof, and sell, lease, assign, give an option or options to purchase or otherwise dispose of and deliver, the Collateral (or contract to do so), or any part thereof, in one or more parcels at public or private sale or sales at such places and at such prices as it may deem best, for cash or on credit or for future delivery without the assumption of any credit risk. CIT 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 Debtor, which right or equity is hereby expressly released. Debtor further agrees, at CIT's request, to assemble (at Debtor's expense) the Collateral and make it available to CIT at such places which CIT shall select, whether at Debtor's premises or elsewhere. CIT shall apply the net proceeds of any such collection, recovery, receipt, appropriation, realization or sale (after deducting all reasonable costs and expenses of every kind incurred therein or incidental to the care, safekeeping or otherwise of any or all of the Collateral or in any way relating to the rights of CIT hereunder, including reasonable attorney's fees and legal expenses) to the payment in whole or in part of the Obligations, in such order as CIT may elect. Debtor agrees that CIT need not give more than 10 days' notice of the time and place of any public sale or of the time after which a private sale may take place and that such notice is reasonable notification of such matters. Debtor shall be liable for any deficiency if the proceeds of any sale or disposition of the Collateral are insufficient to pay all amounts to which CIT is entitled. Debtor agrees to pay all costs of CIT, including reasonable attorneys' fees, incurred with respect to collection of any of the Obligations and enforcement of any of CIT's rights hereunder. To the extent permitted by law, Debtor hereby waives presentment, demand, protest or any notice (except as expressly provided in this Section 6) of any kind in connection with this Agreement or any Collateral.
Appears in 1 contract
Samples: Funding Loan and Security Agreement (R B Rubber Products Inc)
Events of Default Remedies. The Any one or more of the following events shall each constitute an a "Maintenance Event of Default" hereunderunder this Agreement: (a) Debtor if the Investor shall fail to pay pay, when and as due, any Obligation within 5 Business Days after Debtor's receipt of notice that timely payment has not been received Required Capital Contribution and such failure shall continue for five (whether at the stated maturity, by acceleration or otherwise)5) days; (b) any representation or warranty made by Debtor in this Agreement or in any document, certificate or financial or other statement now or hereafter furnished by Debtor in connection with this Agreement or any Loan shall at any time prove to be untrue or misleading in any material respect as of if the time when made; (c) Debtor Investor shall fail to observe any covenant, condition or agreement contained in Sections 5.A(11) or 5.B hereof or in paragraph 4(b) of Rider A; (d) Debtor shall fail to observe or perform any other covenant or condition contained of the Investor's obligations in this Agreement, and such failure shall continue unremedied for a period of 30 days after fifteen (15) days, (c) if any warranty or statement made or information provided by the earlier of Investor in connection with this Agreement is untrue or misleading in any material respect on the date made; (d) if Investor shall, at any time, fail to have committed capital in an aggregate minimum amount equal to $5,000,000 less the sum of all Required Capital Contributions (if any) actually made by the Investor during the term of this Agreement, as determined based on which Debtor obtains knowledge of such failure the most recent information made available by the Investor to the Agent pursuant to Section 20 below; or the date on which notice thereof shall be given by CIT to Debtor; (e) Debtor the Investor shall become insolvent or any affiliate of Debtor shall default in the payment ofgenerally fail to pay, or other performance under, any obligation for payment or lease (whether or not capitalized) or any guarantee (i) to CIT, any affiliate of CIT or to Debtor's main bank, beyond the period of grace, if any, provided with respect thereto, or (ii) to any other Person beyond the period of grace, if any, provided with respect thereto, where such obligation or amount guaranteed is admit in excess of $1,000,000.00; or (f) a complaint in bankruptcy or for arrangement or reorganization or for relief under any insolvency law is filed by or against Debtor (and when filed against Debtor is in effect for 60 days) or Debtor admits writing its inability to pay pay, its debts as they maturemature or apply for or consent to the appointment of a trustee or other custodian for its properties, or make a general assignment for the benefit of creditors, or any bankruptcy, reorganization, debt arrangement or other proceeding under any bankruptcy or insolvency law, is instituted by or against the Investor. If an Upon the occurrence of any Maintenance Event of Default shall occurhereunder, CIT maythe Agent, by notice of default given to Debtor, do any one or more for itself and on behalf of the following: (a) terminate the Commitment and/or (b) declare the Notes to be due and payableLenders, whereupon the principal amount of the Notes, together with accrued interest thereon and all other amounts owing under this Agreement and the Notes, shall become immediately due and payable without presentment, demand, protest or other notice of any kind, all of which are hereby expressly waived (and in the case of any Event of Default specified in clause (f) of the above paragraph, such acceleration of the Notes shall be automatic, without any notice by CIT). In addition, if an Event of Default shall occur and be continuing, CIT may exercise all other any of its rights and remedies available to it, whether under this Agreement, under any other instrument or agreement securing, evidencing or relating to the Obligations, under the Code, or otherwise available at law or in equity. Without limiting the generality of the foregoing, Debtor agrees that in any such event, CITequity (including, without demand of performance or other demandlimitation, advertisement or notice the rights and remedies described in Section 4 above). The Investor and the Borrowers each expressly acknowledge and agree that the occurrence of any kind Maintenance Event of Default hereunder shall constitute an "Event of Default" (except as defined therein) under the notice specified below of time and place of public or private sale) to or upon Debtor or any other Person (all and each of which demands, advertisements and notices are hereby expressly waived), may forthwith do any one or more of the following: collect, receive, appropriate and realize upon the Collateral or any part thereof, and sell, lease, assign, give an option or options to purchase or otherwise dispose of and deliver, the Collateral (or contract to do so), or any part thereof, in one or more parcels at public or private sale or sales at such places and at such prices as it may deem best, for cash or on credit or for future delivery without the assumption of any credit risk. CIT 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 Debtor, which right or equity is hereby expressly released. Debtor further agrees, at CIT's request, to assemble (at Debtor's expense) the Collateral and make it available to CIT at such places which CIT shall select, whether at Debtor's premises or elsewhere. CIT shall apply the net proceeds of any such collection, recovery, receipt, appropriation, realization or sale (after deducting all reasonable costs and expenses of every kind incurred therein or incidental to the care, safekeeping or otherwise of any or all of the Collateral or in any way relating to the rights of CIT hereunder, including reasonable attorney's fees and legal expenses) to the payment in whole or in part of the Obligations, in such order as CIT may elect. Debtor agrees that CIT need not give more than 10 days' notice of the time and place of any public sale or of the time after which a private sale may take place and that such notice is reasonable notification of such matters. Debtor shall be liable for any deficiency if the proceeds of any sale or disposition of the Collateral are insufficient to pay all amounts to which CIT is entitled. Debtor agrees to pay all costs of CIT, including reasonable attorneys' fees, incurred with respect to collection of any of the Obligations and enforcement of any of CIT's rights hereunder. To the extent permitted by law, Debtor hereby waives presentment, demand, protest or any notice (except as expressly provided in this Section 6) of any kind in connection with this Agreement or any CollateralFinancing Agreement.
Appears in 1 contract
Samples: Maintenance Agreement (Suntron Corp)
Events of Default Remedies. (a) The occurrence of any of the following events shall each constitute and be an event of default (an "Event of Default" hereunder: "): (a1) Debtor shall fail Lessee fails to pay any Obligation installment of principal or interest, or any other payment due and owing, under the Promissory Note or this Agreement within 5 Business Days ten (10) days after Debtor's receipt of notice that timely payment has not been received (whether at the stated maturity, by acceleration or otherwise)same shall have become due; (b2) Lessee becomes insolvent or makes an assignment for the benefit of its creditors; (3) a receiver, trustee, conservator or liquidator of Lessee or of all or a substantial part of Lessee's assets is appointed with or without the application or consent of Lessee; (4) a petition is filed by or against Lessee under any bankruptcy, insolvency or similar legislation, and, if against, the proceeding shall continue undismissed, or the order, judgment or decree ordering the proceeding shall continue unstayed, for thirty (30) or more days; (5) Lessee violates or fails to perform any provision of either this Agreement, the Promissory Note, the Lease or any other loan, lease or credit agreement or any acquisition or purchase agreement with Lessor or any other party (a default under which third party agreement would materially and adversely effect Lessee), and such failure shall continue unremedied for 30 days after notice from Lessor to Lessee, specifying the failure and demanding the same to be remedied; (6) Lessee violates or fails to perform any covenant or representation made by Lessee in this Agreement or the Promissory Note, and such violation or failure shall continue unremedied for 30 days after notice from Lessor to Lessee, specifying the violation or failure and demanding the same to be remedied; (7) any representation or warranty made by Debtor in this Agreement or in any documentAgreement, certificate or the Promissory Note, the Lease, certificate, financial statement or other statement now or hereafter furnished by Debtor in connection with this Agreement or any Loan to Lessor shall at any time prove to be untrue false or misleading in any material respect as of the time when date on which the same was made; (c) Debtor shall fail to observe any covenant, condition or agreement contained in Sections 5.A(11) or 5.B hereof or in paragraph 4(b) 8) an event of Rider Adefault has occurred and is continuing under the Promissory Note; (d9) Debtor shall fail an additional lien attaches to observe or perform any other covenant or condition contained in this Agreement, and such failure shall continue unremedied for a period of 30 days after the earlier of the date on which Debtor obtains knowledge of such failure or the date on which notice thereof shall be given by CIT to Debtor; (e) Debtor or any affiliate of Debtor shall default in the payment of, or other performance under, any obligation for payment or lease (whether or not capitalized) or any guarantee (i) to CIT, any affiliate of CIT or to Debtor's main bank, beyond the period of grace, if any, provided with respect thereto, or (ii) to any other Person beyond the period of grace, if any, provided with respect thereto, where such obligation or amount guaranteed is in excess of $1,000,000.00Equipment; or (f10) Lessee makes a complaint in bankruptcy or for arrangement or reorganization or for relief under any insolvency law is filed by or against Debtor (and when filed against Debtor is in effect for 60 days) or Debtor admits its inability to pay its debts as they mature. If an Event bulk transfer of Default shall occurfurniture, CIT mayfurnishings, by notice of default given to Debtor, do any one or more of the following: (a) terminate the Commitment and/or (b) declare the Notes to be due and payable, whereupon the principal amount of the Notes, together with accrued interest thereon and all other amounts owing under this Agreement and the Notes, shall become immediately due and payable without presentment, demand, protest fixtures or other notice equipment or inventory; or (11) there is a material adverse change in Lessee's or any Guarantor's financial condition since the dated of any kind, all of which are hereby expressly waived (and in the case of any Event of Default specified in clause (f) of the above paragraph, such acceleration of the Notes shall be automatic, without any notice by CIT). In addition, if an Event of Default shall occur and be continuing, CIT may exercise all other rights and remedies available to it, whether under this Agreement, under any other instrument or agreement securing, evidencing or relating to the Obligations, under the Code, or otherwise available at law or in equity. Without limiting the generality of the foregoing, Debtor agrees that in any such event, CIT, without demand of performance or other demand, advertisement or notice of any kind (except the notice specified below of time and place of public or private sale) to or upon Debtor or any other Person (all and each of which demands, advertisements and notices are hereby expressly waived), may forthwith do any one or more of the following: collect, receive, appropriate and realize upon the Collateral or any part thereof, and sell, lease, assign, give an option or options to purchase or otherwise dispose of and deliver, the Collateral (or contract to do so), or any part thereof, in one or more parcels at public or private sale or sales at such places and at such prices as it may deem best, for cash or on credit or for future delivery without the assumption of any credit risk. CIT 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 Debtor, which right or equity is hereby expressly released. Debtor further agrees, at CIT's request, to assemble (at Debtor's expense) the Collateral and make it available to CIT at such places which CIT shall select, whether at Debtor's premises or elsewhere. CIT shall apply the net proceeds of any such collection, recovery, receipt, appropriation, realization or sale (after deducting all reasonable costs and expenses of every kind incurred therein or incidental to the care, safekeeping or otherwise of any or all of the Collateral or in any way relating to the rights of CIT hereunder, including reasonable attorney's fees and legal expenses) to the payment in whole or in part of the Obligations, in such order as CIT may elect. Debtor agrees that CIT need not give more than 10 days' notice of the time and place of any public sale or of the time after which a private sale may take place and that such notice is reasonable notification of such matters. Debtor shall be liable for any deficiency if the proceeds of any sale or disposition of the Collateral are insufficient to pay all amounts to which CIT is entitled. Debtor agrees to pay all costs of CIT, including reasonable attorneys' fees, incurred with respect to collection of any of the Obligations and enforcement of any of CIT's rights hereunder. To the extent permitted by law, Debtor hereby waives presentment, demand, protest or any notice (except as expressly provided in this Section 6) of any kind in connection with this Agreement or any Collateral.
Appears in 1 contract
Samples: Master Equipment Lease Agreement (R B Rubber Products Inc)
Events of Default Remedies. The (a) If any one of the following events shall each constitute (each, an "Event of Default" hereunder") shall occur, then to the extent permitted by applicable law, the Lender shall have the right to exercise any one or more of the remedies set forth in Section 18(b) hereof: (ai) Debtor the Borrower fails to make any payment when due hereunder and such failure continues for a period of ten days; or (ii) Borrower fails to observe or perform (A) any other agreement or obligation to be observed or performed hereunder or under any Loan Schedule or other agreement, document or instrument delivered to the Lender by or on behalf of an Obligor or otherwise relating to any of the Obligations (collectively, the "Other Documents")and unless expressly set forth in this Agreement or any Loan Schedule, such failure continues uncured for a period of thirty (30) days following notice by Lender, or (B) any other obligation of Borrower to the Lender and the failure to observe or perform shall fail to pay any Obligation within 5 Business Days after Debtor's receipt of continue uncured for thirty (30) days following notice that timely payment has not been received by Lender; or (whether at the stated maturity, by acceleration or otherwise); (biii) any representation or warranty made by Debtor or on behalf of Borrower in this Agreement or in any document, certificate or financial or other statement now or hereafter furnished by Debtor in connection with this Agreement or any Loan Schedule or in any of the Other Documents shall at any time prove to be have been incorrect or untrue or misleading in any material respect as of the time when made; or (civ) Debtor shall fail the Borrower's failure to observe obtain or maintain any covenant, condition or agreement contained in Sections 5.A(11) or 5.B hereof or in paragraph 4(b) of Rider A; (d) Debtor shall fail to observe or perform any other covenant or condition contained in this Agreement, insurance required by the Lender hereunder and such failure shall continue unremedied continues uncured for a period of 30 ten (10) days after the earlier of the date on which Debtor obtains knowledge of such failure following notice by Lender; or the date on which notice thereof shall be given by CIT to Debtor; (ev) Debtor or any affiliate of Debtor shall a default occurs in the payment ofof any indebtedness in an amount in excess of $25,000 owed by Borrower to any individual or entity other than the Lender and such default continues beyond any applicable cure period; or (vi) a default occurs in the performance or observance of the terms of any agreement, document or other performance underinstrument pursuant to which such indebtedness was created, secured or guaranteed, the effect of which default is to cause or permit the holder of any obligation for payment or lease such indebtedness to cause the same to be due prior to its stated maturity (whether or not capitalizedsuch default is waived by the holder thereof); or (vii) Borrower fails (after ten (10) days prior notice thereof) to pay, withhold, collect or remit when asserted or due any tax, assessment or other sum payable with respect to the Collateral or any guarantee security for any of the Obligations (i) to CITincluding, without limitation, any affiliate of CIT or to Debtor's main bank, beyond the period of grace, if any, provided premium on any insurance policy with respect theretoto any of the Collateral or any security for any of the Obligations, or any insurance policy assigned to the Lender as security for any of the Obligations), or (iiviii) to any other Person beyond a judgment is entered against the period of grace, if any, provided with respect thereto, where such obligation or Borrower in an amount guaranteed is in excess of $1,000,000.0025,000 and such judgment is not satisfied, dismissed or stayed with 30 days, or any attachment, levy or execution is made against any Collateral; or (fix) Borrower enters into any transaction which adversely affects a complaint significant portion of the business value of Borrower and which affects the ability of the Borrower to repay the Borrower's obligations under the Agreement; or (x) Borrower fails (or Borrower admits in bankruptcy or for arrangement or reorganization or for relief under any insolvency law is filed by or against Debtor (and when filed against Debtor is in effect for 60 dayswriting its inability) or Debtor admits its inability to generally pay its debts as they mature. If become due or the insolvency or business failure of Borrower; or (xi) the filing of an Event application for appointment of Default shall occura trustee, CIT may, by notice of default given to Debtor, do any one custodian or more of the following: (a) terminate the Commitment and/or (b) declare the Notes to be due and payable, whereupon the principal amount of the Notes, together with accrued interest thereon and all other amounts owing under this Agreement and the Notes, shall become immediately due and payable without presentment, demand, protest receiver for Borrower or other notice of any kind, all part of which are hereby expressly waived Borrower's property (and in the case of any Event of Default specified in clause (f) of an involuntary filing against the above paragraphBorrower, such acceleration filing is not dismissed within 60 days); or (xii) the filing of a petition in bankruptcy by or against Borrower, or the Notes shall be automatic, without commencement by or against Borrower of any notice by CIT). In addition, if an Event of Default shall occur and be continuing, CIT may exercise all other rights and remedies available to it, whether under this Agreement, proceeding under any other instrument bankruptcy or agreement securinginsolvency law or statute, evidencing or any law or statute relating to the Obligationsrelief of debtors or arrangement of debt, under the Codereadjustment of indebtedness, reorganization, receivership or composition, or otherwise available at law the extension of indebtedness (and in the case of an involuntary filing against the Borrower, such filing is not dismissed within 60 days); or (xiii) a material adverse change in equity. Without limiting the generality condition or affairs (financial or otherwise) of Borrower such that the likelihood of Borrower to meet the obligations hereunder is materially impaired; or (xiv) Borrower attempts to remove, sell, transfer, encumber, sublet or part with possession of the foregoing, Debtor agrees that in any such event, CIT, without demand of performance or other demand, advertisement or notice of any kind (except the notice specified below of time and place of public or private sale) to or upon Debtor Equipment or any other Person (all and each of which demands, advertisements and notices are hereby expressly waived), may forthwith do any one or more of the following: collect, receive, appropriate and realize upon the Collateral or any part item thereof, and sell, lease, assign, give an option or options to purchase or otherwise dispose of and deliver, the Collateral (or contract to do so), or any part thereof, in one or more parcels at public or private sale or sales at such places and at such prices as it may deem best, for cash or on credit or for future delivery without the assumption of any credit risk. CIT 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 Debtor, which right or equity is hereby expressly released. Debtor further agrees, at CIT's request, to assemble (at Debtor's expense) the Collateral and make it available to CIT at such places which CIT shall select, whether at Debtor's premises or elsewhere. CIT shall apply the net proceeds of any such collection, recovery, receipt, appropriation, realization or sale (after deducting all reasonable costs and expenses of every kind incurred therein or incidental to the care, safekeeping or otherwise of any or all of the Collateral or in any way relating to the rights of CIT hereunder, including reasonable attorney's fees and legal expenses) to the payment in whole or in part of the Obligations, in such order as CIT may elect. Debtor agrees that CIT need not give more than 10 days' notice of the time and place of any public sale or of the time after which a private sale may take place and that such notice is reasonable notification of such matters. Debtor shall be liable for any deficiency if the proceeds of any sale or disposition of the Collateral are insufficient to pay all amounts to which CIT is entitled. Debtor agrees to pay all costs of CIT, including reasonable attorneys' fees, incurred with respect to collection of any of the Obligations and enforcement of any of CIT's rights hereunder. To the extent permitted by law, Debtor hereby waives presentment, demand, protest or any notice (except as expressly provided in permitted herein; no cure period shall apply to this Section 6) of any kind in connection with this Agreement or any Collateral18 (xiv).
Appears in 1 contract
Samples: Master Note and Security Agreement (Array Biopharma Inc)
Events of Default Remedies. The If any of the following events shall each constitute (each, an "“Event of Default" hereunder: ”) shall have occurred and be continuing for any reason whatsoever (whether voluntary or involuntary, arising or effected by operation of law or otherwise): (a) Debtor any payment of principal of the Loans shall fail to pay any Obligation within 5 Business Days after Debtor's receipt of notice that timely payment has not been received be paid when and as due (whether at the stated maturity, by reason of acceleration or otherwise)) and in accordance with the terms of this Agreement; (b) any representation payment of interest on the Loans shall not be paid when and as due (whether at maturity, by reason of acceleration or warranty made by Debtor otherwise) and in this Agreement or in any document, certificate or financial or other statement now or hereafter furnished by Debtor in connection accordance with this Agreement or any Loan shall at any time prove to be untrue or misleading in any material respect as the terms of the time when made; (c) Debtor shall fail to observe any covenant, condition or agreement contained in Sections 5.A(11) or 5.B hereof or in paragraph 4(b) of Rider A; (d) Debtor shall fail to observe or perform any other covenant or condition contained in this Agreement, and such failure default is not cured within two days; (c) the Borrower shall default in the performance or observance of any other term, covenant or agreement contained herein, and such default shall continue unremedied without cure for a period of 30 days after the earlier receipt of the date on which Debtor obtains knowledge of such failure or the date on which written notice thereof shall be given by CIT to Debtor; (e) Debtor from the Lender, or any affiliate of Debtor representation or warranty contained herein or therein shall default at any time prove to have been incorrect or misleading in the payment of, or other performance under, any obligation for payment or lease (whether or not capitalized) or any guarantee (i) to CIT, any affiliate of CIT or to Debtor's main bank, beyond the period of grace, if any, provided with material respect thereto, or (ii) to any other Person beyond the period of grace, if any, provided with respect thereto, where such obligation or amount guaranteed is in excess of $1,000,000.00when made; or (fd) a complaint case or proceeding shall be commenced against the Borrower, or the Borrower shall commence a voluntary case, in bankruptcy or for arrangement or reorganization or for either case seeking relief under any insolvency law is filed by Bankruptcy Law, in each case as now or against Debtor (and when filed against Debtor is hereafter in effect effect, or the Borrower shall apply for, consent to, or fail to contest, the appointment of a receiver, liquidator, custodian, trustee or the like of the Borrower or for 60 days) all or Debtor admits any part of its inability property, or the Borrower shall make a general assignment for the benefit of its creditors, or the Borrower shall fail, or admit in writing its inability, to pay pay, or generally not be paying, its debts as they mature. If an Event of Default shall occur, CIT may, by notice of default given to Debtor, do any one or more of the following: (a) terminate the Commitment and/or (b) declare the Notes to be due and payable, whereupon the principal amount of the Notes, together with accrued interest thereon and all other amounts owing under this Agreement and the Notes, shall become immediately due and payable without presentment, demand, protest or other notice of any kind, all of which are hereby expressly waived (and in the case of any Event of Default specified in clause (f) of the above paragraph, such acceleration of the Notes shall be automatic, without any notice by CIT). In addition, if an Event of Default shall occur and be continuing, CIT may exercise all other rights and remedies available to it, whether under this Agreement, under any other instrument or agreement securing, evidencing or relating to the Obligations, under the Code, or otherwise available at law or in equity. Without limiting the generality of the foregoing, Debtor agrees that in any such event, CIT, without demand of performance or other demand, advertisement or notice of any kind (except the notice specified below of time and place of public or private sale) to or upon Debtor or any other Person (all and each of which demands, advertisements and notices are hereby expressly waived), may forthwith do any one or more of the following: collect, receive, appropriate and realize upon the Collateral or any part thereof, and sell, lease, assign, give an option or options to purchase or otherwise dispose of and deliver, the Collateral (or contract to do so), or any part thereof, in one or more parcels at public or private sale or sales at such places and at such prices as it may deem best, for cash or on credit or for future delivery without the assumption of any credit risk. CIT 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 Debtor, which right or equity is hereby expressly released. Debtor further agrees, at CIT's request, to assemble (at Debtor's expense) the Collateral and make it available to CIT at such places which CIT shall select, whether at Debtor's premises or elsewhere. CIT shall apply the net proceeds of any such collection, recovery, receipt, appropriation, realization or sale (after deducting all reasonable costs and expenses of every kind incurred therein or incidental to the care, safekeeping or otherwise of any or all of the Collateral or in any way relating to the rights of CIT hereunder, including reasonable attorney's fees and legal expenses) to the payment in whole or in part of the Obligations, in such order as CIT may elect. Debtor agrees that CIT need not give more than 10 days' notice of the time and place of any public sale or of the time after which a private sale may take place and that such notice is reasonable notification of such matters. Debtor shall be liable for any deficiency if the proceeds of any sale or disposition of the Collateral are insufficient to pay all amounts to which CIT is entitled. Debtor agrees to pay all costs of CIT, including reasonable attorneys' fees, incurred with respect to collection of any of the Obligations and enforcement of any of CIT's rights hereunder. To the extent permitted by law, Debtor hereby waives presentment, demand, protest or any notice (except as expressly provided in this Section 6) of any kind in connection with this Agreement or any Collateral.due; 3
Appears in 1 contract
Samples: Revolving Loan Agreement (Golub Capital BDC 3, Inc.)
Events of Default Remedies. The following events shall each constitute an "Event of DefaultEVENT OF DEFAULT" hereunder: (a) Debtor shall fail to pay any Obligation principal or interest on any Note within 5 Business Days 10 days after Debtor's receipt of notice that timely payment has not been received the same becomes due (whether at the stated maturity, by acceleration or otherwise)) or shall fail to pay any other Obligation when due (whether at the stated maturity, by acceleration or otherwise) which failure is not cured within 10 days after Debtor's receipt of notice from CIT; (b) any representation or warranty made by Debtor in this Agreement or in any document, certificate or financial or other statement now or hereafter furnished by Debtor in connection with this Agreement or any Loan shall at any time prove to be untrue or misleading in any material respect as of the time when made; (c) Debtor shall fail to observe any covenant, condition or agreement contained in Sections 5.A(11) or 5.B hereof or in paragraph 4(bparagraphs 4 or 5(b) of Rider A, which failure shall continue for a period of ten (10) days after receipt of notice from CIT; (d) Debtor shall fail to observe or perform any other covenant or condition contained in this Agreement, and such failure shall continue unremedied for a period of 30 days after the earlier of the date on which Debtor obtains knowledge of such failure or the date on which notice thereof shall be given by CIT to Debtor; (e) Debtor or any affiliate of Debtor shall default (i) in the payment of, or other performance under, any obligation for payment or lease (whether or not capitalized) or any guarantee (i) to CIT, CIT or any affiliate of CIT or to Debtor's main bank, beyond the period of grace, if any, provided with respect thereto, or (ii) in the payment or performance of any obligation for borrowed money to any other Person beyond the period of grace, if any, provided with respect thereto, where such obligation or amount guaranteed is in excess of $1,000,000.00100,000 if such obligation for borrowed money is accelerated as a result thereof; or (f) a complaint in bankruptcy or for arrangement or reorganization or for relief under any insolvency law is filed by or against Debtor (and when filed against Debtor is in effect for 60 days) or Debtor admits its inability to pay its debts as they mature; or (g) upon the expiration of Debtor's current revolving loan facility with Congress, Debtor shall fail to renew such facility with Congress or shall fail to replace such facility with another lender reasonably acceptable to CIT with terms and conditions reasonably acceptable to CIT. If an Event of Default shall occuroccur and be continuing, CIT may, by notice of default given to Debtor, do any one or more of the following: (a) terminate the Commitment and/or (b) declare the Notes to be due and payable, whereupon the principal amount of the Notes, together with accrued interest thereon and all other amounts owing under this Agreement and the Notes, shall become immediately due and payable without presentment, demand, protest or other notice of any kind, all of which are hereby expressly waived (and in the case of any Event of Default specified in clause (f) of the above paragraph, such acceleration of the Notes shall be automatic, without any notice by CIT). In addition, if an Event of Default shall occur and be continuing, CIT may exercise all other rights and remedies available to it, whether under this Agreement, under any other instrument or agreement securing, evidencing or relating to the Obligations, under the Code, or otherwise available at law or in equity. Without limiting the generality of the foregoing, Debtor agrees that in any such event, CIT, without demand of performance or other demand, advertisement or notice of any kind (except the notice specified below of time and place of public or private sale) to or upon Debtor or any other Person (all and each of which demands, advertisements and notices are hereby expressly waived), may forthwith do any one or more of the following: collect, receive, appropriate and realize upon the Collateral or any part thereof, and sell, lease, assign, give an option or options to purchase or otherwise dispose of and deliver, the Collateral (or contract to do so), or any part thereof, in one or more parcels at public or private sale or sales at such places and at such prices as it may deem best, for cash or on credit or for future delivery without the assumption of any credit risk. CIT 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 Debtor, which right or equity is hereby expressly released. Debtor further agrees, at CIT's request, to assemble (at Debtor's expense) the Collateral and make it available to CIT at such places which CIT shall select, whether at Debtor's premises or elsewhere. CIT shall apply the net proceeds of any such collection, recovery, receipt, appropriation, realization or sale (after deducting all reasonable costs and expenses of every kind incurred therein or incidental to the care, safekeeping or otherwise of any or all of the Collateral or in any way relating to the rights of CIT hereunder, including reasonable attorney's fees and legal expenses) to the payment in whole or in part of the Obligations, in such order as CIT may elect. Debtor agrees that CIT need not give more than 10 days' notice of the time and place of any public sale or of the time after which a private sale may take place and that such notice is reasonable notification of such matters. Debtor shall be liable for any deficiency if the proceeds of any sale or disposition of the Collateral are insufficient to pay all amounts to which CIT is entitled. Debtor agrees to pay all costs of CIT, including reasonable attorneys' fees, incurred with respect to collection of any of the Obligations and enforcement of any of CIT's rights hereunder. To the extent permitted by law, Debtor hereby waives presentment, demand, protest or any notice (except as expressly provided in this Section 6) of any kind in connection with this Agreement or any Collateral.,
Appears in 1 contract
Samples: Loan and Security Agreement (Lexington Precision Corp)
Events of Default Remedies. The following events shall each constitute an "Event of Default" hereunder: (a) Debtor shall fail to pay any Obligation within 5 10 Business Days days after Debtor's receipt of notice that timely payment has not been received the same becomes due (whether at the stated maturity, by acceleration or otherwise); (b) any representation or warranty made by Debtor in this Agreement or in any document, certificate or financial or other statement now or hereafter furnished by Debtor in connection with this Agreement or any Loan shall at any time prove to be untrue or misleading in any material respect as of the time when made; (( c) Debtor shall fail to observe any covenant, condition condition, or agreement contained in Sections Section 5.A(11) or 5.B hereof or in paragraph 4(b) 4 or 7 of Rider A; (d) Debtor shall fail to observe or perform any other covenant or condition contained in this Agreement, and such failure shall continue unremedied for a period of 30 days after the earlier of the date on which Debtor obtains knowledge of such failure or the date on which the notice thereof shall be given by CIT to Debtor; (e) Debtor or any affiliate of Debtor shall default in the payment of, or other performance under, any obligation for payment or lease (whether or not capitalized) or any guarantee (i) to CIT, any affiliate of CIT or to Debtor's main bank, beyond the period of grace, if any, provided with respect thereto, or (ii) to Imperial Bank, or any other Person bank or financial institution providing revolving credit to Debtor, beyond the period of grace, if any, provided with respect thereto, where such obligation or amount guaranteed is in excess of $1,000,000.00; or (f) a complaint in bankruptcy or for the arrangement or reorganization or for relief under any insolvency law is filed by or against Debtor (and when filed against Debtor is in effect for 60 days) or Debtor admits its it inability to pay its debts as they mature. If an Event of Default shall occur, CIT may, by notice of default given to Debtor, do any one or more of the following: (a) terminate the Commitment and/or (b) declare the Notes to be due and payable, whereupon the principal amount of the Notes, together with the accrued interest thereon and all other amounts owing under this Agreement and the Notes, shall become immediately due and payable without presentment, demand, protest or other notice of any kind, all of which are hereby expressly waived (and in the case of any Event of Default specified in clause (f) of the above paragraph, such acceleration of the Notes shall be automatic, without any notice by CIT). In addition, if an Event of Default shall occur and be continuing, CIT may exercise all other rights and remedies available to it, whether under this Agreement, under any other instrument or agreement securing, evidencing or relating to the Obligations, under the Code, or otherwise available at law or in equity. Without limiting the generality of the foregoing, Debtor agrees that in any such event, CIT, without demand of performance or other demand, advertisement or notice of any kind (except the notice specified below of time and place of public or private sale) to or upon Debtor or any other Person (all and each of which demands, advertisements and notices are hereby expressly waived), may forthwith do any one or more of the following: collect, receive, appropriate and realize upon the Collateral or any part thereof, and sell, lease, assign, give an option or options to purchase or otherwise dispose of and deliver, the Collateral (or contract to do so), or any part thereof, in one or more parcels at public or private sale or sales at such places and at such prices as it may deem best, for cash or on credit or for future delivery without the assumption of any credit risk. CIT 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 and sold, free of any right or equity of redemption of Debtor, which right or equity is hereby expressly released. Debtor further agrees, at CIT's request, to assemble (at Debtor's expense) the Collateral and make it available to CIT at such places which CIT shall select, whether at Debtor's premises or elsewhere. CIT shall apply the net proceeds of any such collection, recovery, receipt, appropriation, realization or sale (after deducting deduction all reasonable out-of pocket costs and expenses of every kind incurred therein or incidental to the care, safekeeping or otherwise of any or all of the Collateral or in any way relating to the rights of CIT hereunder, including reasonable attorney's fees and legal expenses) to the payment in whole or in part of the Obligations, in such order as CIT may elect. Debtor agrees that CIT need not give more than 10 days' notice of the time and place of any public sale or of the time after which a private sale may take place and that such notice is reasonable notification of such matters. Debtor shall be liable for any deficiency if the proceeds of any sale or disposition of the Collateral are insufficient to pay all amounts to which CIT is entitled. Debtor agrees to pay all costs of CIT, including reasonable attorneys' attorney's fees, incurred with respect to collection of any of the Obligations and enforcement of any of CIT's rights hereunder. To the extent permitted by law, Debtor hereby waives presentment, presentment demand, protest or any notice (except as expressly provided in this Section 6) of any kind in connection with this Agreement or any Collateral.
Appears in 1 contract
Events of Default Remedies. The Should any of the following events shall each constitute occur (any such event being referred to as an "Event of Default" hereunder: "): (ai) Debtor Default by Borrower in the payment of any obligation of Borrower under this Agreement or any of the other Loan Documents; (ii) default by Borrower of any agreement, promise or covenant of Borrower under Section 10.a(iii) or (vi) or 10.b; (iii) default by Borrower in the due performance or observance of any of the agreements, promises or covenants of Borrower under any of the Loan Documents, other than any such agreements, promises or covenants described in clause (i) or (ii) above, which default shall fail continue unremedied for ten or more days following written notice thereof from Bank to pay Borrower; (iv) any Obligation within 5 Business Days after Debtor's receipt default or event of notice that timely default by Borrower under any Ancillary Document; (v) any material representation or warranty of Borrower set forth in any of the Loan Documents, or in any certificate, instrument or statement delivered to Bank pursuant to any Loan Documents, shall be untrue or incorrect in any material respect when made; (vi) Borrower shall default in the payment has not been received when due (whether at the stated maturity, by acceleration or otherwise)) of $50,000 or more of any Indebtedness for Borrowed Money; (bvii) Borrower shall default in the observance or performance of any representation or warranty made by Debtor in this Agreement or in any documentterm, certificate or financial or other statement now or hereafter furnished by Debtor in connection with this Agreement or any Loan shall at any time prove to be untrue or misleading in any material respect as of the time when made; (c) Debtor shall fail to observe any covenant, condition covenant or agreement contained in Sections 5.A(11) any instrument governing or 5.B hereof or in paragraph 4(b) of Rider A; (d) Debtor shall fail to observe or perform evidencing any other covenant or condition contained in this AgreementIndebtedness for Borrowed Money, and such failure default shall continue unremedied permit the holders of such Indebtedness for Borrower Money to declare immediately due and payable or otherwise accelerate Indebtedness for Borrowed Money in an aggregate amount exceeding $50,000; (viii) any Change of Control shall occur; (ix) Borrower shall become insolvent or make an assignment for the benefit of creditors; (x) Borrower shall apply for or consent to or shall permit or suffer to exist the voluntary or involuntary appointment of a trustee, receiver, custodian, or liquidator of all or any material part of its or his property; or (xi) Borrower shall have commenced against it, or shall voluntarily commence, any bankruptcy, reorganization or other similar proceeding under bankruptcy or insolvency laws or any dissolution, winding up or liquidation proceeding, which, in the case of any such involuntary proceeding, shall have been consented to by Borrower, as applicable, shall have resulted in entry of an order for relief against Borrower, as applicable, or shall have remained undismissed, undischarged or unbonded for a period of 30 days after the earlier of the date on which Debtor obtains knowledge of such failure or the date on which notice thereof shall be given by CIT to Debtor; (e) Debtor or any affiliate of Debtor shall default in the payment of, or other performance under, any obligation for payment or lease (whether or not capitalized) or any guarantee (i) to CIT, any affiliate of CIT or to Debtor's main bank, beyond the period of grace, if any, provided with respect thereto, or (ii) to any other Person beyond the period of grace, if any, provided with respect thereto, where such obligation or amount guaranteed is in excess of $1,000,000.00; or (f) a complaint in bankruptcy or for arrangement or reorganization or for relief under any insolvency law is filed by or against Debtor (and when filed against Debtor is in effect for more than 60 days) or Debtor admits its inability to pay its debts as they mature. If an Event of Default shall occur; then, CIT in any such ---- event, Bank may, by at its option and without demand first made and without further notice of default given to DebtorBorrower, do any one or more of the following: (a) terminate the Commitment and/or its obligation to make loans (including, without limitation, any Equipment Loans) to Borrower; (b) declare the Notes all obligations of Borrower to be due and payable, whereupon the principal amount of the Notes, together with accrued interest thereon and all other amounts owing Bank under this Agreement and the Notes, shall become other Loan Documents immediately due and payable without presentment, demand, protest payable; and (c) proceed to enforce all or other notice any of its rights under any kind, all of which are hereby expressly waived (and in the case of any Event of Default specified in clause (f) of the above paragraph, such acceleration of the Notes shall be automatic, without any notice by CIT). In addition, if an Event of Default shall occur and be continuing, CIT may exercise all other rights and remedies available to it, whether under this Agreement, under any other instrument Loan Documents or agreement securing, evidencing or relating to the Obligations, under the Code, or otherwise available at law or in equity. Without limiting In the generality event Bank sells or disposes of any Collateral, and a sufficient sum is not realized from any such sale or disposition to pay all obligations of Borrower to Bank under this Agreement, any of the foregoingother Loan Documents or otherwise, Debtor agrees that in any such event, CIT, without demand of performance or other demand, advertisement or notice of any kind (except the notice specified below of time and place of public or private sale) to or upon Debtor or any other Person (all and each of which demands, advertisements and notices are hereby expressly waived), may forthwith do any one or more of the following: collect, receive, appropriate and realize upon the Collateral or any part thereof, and sell, lease, assign, give an option or options to purchase or otherwise dispose of and deliver, the Collateral (or contract to do so), or any part thereof, in one or more parcels at public or private sale or sales at such places and at such prices as it may deem best, for cash or on credit or for future delivery without the assumption of any credit risk. CIT 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 Debtor, which right or equity is hereby expressly released. Debtor further agrees, at CIT's request, to assemble (at Debtor's expense) the Collateral and make it available to CIT at such places which CIT shall select, whether at Debtor's premises or elsewhere. CIT shall apply the net proceeds of any such collection, recovery, receipt, appropriation, realization or sale (after deducting all reasonable costs and expenses of every kind incurred therein or incidental to the care, safekeeping or otherwise of any or all of the Collateral or in any way relating to the rights of CIT hereunder, including reasonable attorney's fees and legal expenses) to the payment in whole or in part of the Obligations, in such order as CIT may elect. Debtor agrees that CIT need not give more than 10 days' notice of the time and place of any public sale or of the time after which a private sale may take place and that such notice is reasonable notification of such matters. Debtor Borrower shall be liable to Bank for any deficiency if the proceeds of any sale or disposition of the Collateral are insufficient to pay all amounts to which CIT is entitled. Debtor agrees to pay all costs of CIT, including reasonable attorneys' fees, incurred with respect to collection of any of the Obligations and enforcement of any of CIT's rights hereunder. To the extent permitted by law, Debtor hereby waives presentment, demand, protest or any notice (except as expressly provided in this Section 6) of any kind in connection with this Agreement or any Collateraldeficiency.
Appears in 1 contract
Samples: Loan Agreement (Rowecom Inc)
Events of Default Remedies. The (a) If any of the following events shall each constitute (each, an "_Event of Default" hereunder") shall occur: (ai) Debtor Seller shall fail to pay default in the payment of any Obligation within 5 Business Days after Debtor's receipt of notice that timely payment has not been received the Obligations on the due date thereof (whether due at the stated maturity, by on demand, upon acceleration or otherwise); (bii) any representation or warranty made by Debtor Seller to Purchaser in this Agreement or in any documentwritten statement, report, financial statement or certificate made or financial or other statement now or hereafter furnished delivered to Purchaser by Debtor in connection with this Agreement or any Loan Seller shall at any time prove to be untrue incorrect or misleading in any material respect as of the time when mademade or furnished; (ciii) Debtor Seller shall fail to observe breach any covenant, condition covenant or agreement contained in Sections 5.A(11) this Agreement or 5.B hereof any supplement hereto or in paragraph 4(b) any other Transaction Document or any agreement between Seller of Rider Aany affiliate of Purchaser; (div) Debtor an event of default shall fail to observe or perform occur under any contractual obligation of Seller (other covenant or condition contained in than this Agreement), and such event of default (A) involves the failure shall continue unremedied for a period of 30 days after the earlier of the date on which Debtor obtains knowledge of such failure or the date on which notice thereof shall be given by CIT to Debtor; (e) Debtor or make any affiliate of Debtor shall default in the payment of, or other performance under, any obligation for payment or lease (whether or not capitalizedsuch payment is blocked pursuant to the terms of a subordination or an intercreditor agreement or otherwise), whether of principal, interest or otherwise, and whether due by scheduled maturity, required prepayment, acceleration, demand or otherwise, in respect of any indebtedness (other than the Obligations) of Seller; or (B) causes (or permits any holder of such indebtedness or a trustee to cause) such indebtedness, or a portion thereof to become due prior to its stated maturity or prior to its regularly scheduled dates of payment; (v) there shall be commenced against Seller any litigation seeking issuance of a warrant of attachment, execution, distraint or similar process against all or any guarantee substantial part of its assets; (ivi) Seller shall have concealed, removed or permitted to CITbe concealed or removed, any affiliate part of CIT its property with intent to hinder, delay or to Debtor's main bankdefraud its creditors or any of them or made or suffered a transfer of any of its property or the incurring of an obligation that may be fraudulent under any bankruptcy, beyond fraudulent transfer or other similar law; (vii) Seller fails, closes, suspends or goes out of business; (viii) a case or proceeding shall have been commenced involuntarily against Seller or any guarantor of the period Obligations in a court having competent jurisdiction seeking a decree or order: (A) under the United States Bankruptcy Code or any other applicable federal, state or foreign bankruptcy or other similar law, and seeking either (1) the appointment of gracea custodian, if anyreceiver, provided with respect theretoliquidator, assignee, trustee or sequestrator (or similar official) for such person or entity or of any substantial part of its properties, or (iiII) to the reorganization or winding up or liquidation of the affairs of any other Person beyond such person or entity, or such court shall enter a decree or order granting the period of grace, if any, provided with respect thereto, where relief sought in such obligation case or amount guaranteed is in excess of $1,000,000.00proceeding; or (fB) a complaint in bankruptcy invalidating or for arrangement denying any person's or reorganization entity's right, power, or competence to enter into or perform any of its obligations under any Transaction Document or invalidating or denying the validity or enforceability of this Agreement or any other Transaction Document or any action taken hereunder or thereunder; (ix) Seller or any guarantor ofthe Obligations shall (A) commence any case, proceeding or other action under any existing or future law of any jurisdiction, domestic or foreign, relating to bankruptcy, insolvency, reorganization, conservatorship or relief of debtors, seeking to have an order for relief under entered with respect to it or seeking appointment of a custodian, receiver, liquidator, assignee, trustee or sequestrator (or similar official) for it or any insolvency law is filed by substantial part of its properties, (B) make a general assignment for the benefit of creditors, (C) consent to or against Debtor take any action in furtherance of, or, indicating its consent to, approval of, or acquiescence in, any of such acts, or (and when filed against Debtor is D) shall admit in effect for 60 days) or Debtor admits writing its inability to to, or shall be generally unable to, pay its debts as they mature. If an Event such debts become due; (x) any provision of Default any Transaction Document shall occurfor any reason cease to be valid, CIT binding and enforceable in accordance with its terms, or any Lien or security interest granted, or intended by the Transaction Documents to be granted, to Purchaser shall cease to be a valid and perfected lien or security interest having the first priority in any of the Collateral (or Seller shall so assert any of the foregoing); (xi) any guarantor of the Obligations fails to perform or observe any of such guarantor's obligations to Purchaser or shall notify Purchaser of its intention to rescind, modify, terminate or revoke any guaranty of the Obligations, or any such guaranty shall cease to be in full force and effect for any reason whatever; (xii) a final judgment or judgments for the payment of money shall be rendered against Seller, unless the same shall be (A) fully covered by insurance and the issuer(s) of the applicable policies shall have acknowledged full coverage in writing within fifteen (15) Days of judgment, or (B) vacated, stayed, bonded, paid or discharged within a period of fifteen (15) Days from the date of such judgment; (xiii) there is a change (by death or otherwise) in Seller's principal stockholders or owners; (xiv) there is a change in the senior management of Seller; or (xv) Purchaser for any reason, in good faith, deems itself insecure with respect to the prospect of repayment or performance of the Obligations; then Purchaser may, by notice of default given to Debtorwithout notice, do any one take anyone or more of the followingfollowing actions: (ai) terminate the Commitment and/or this Agreement; (bii) declare all or any portion of the Notes Obligations to be forthwith due and payable whereupon such Obligations shall become and be due and payable; or (iii) exercise any rights and remedies provided to Purchaser under any ofthe Transaction Documents or at law or equity, whereupon including all remedies provided under the principal amount of UCC; provided, that upon the Notes, together with accrued interest thereon and all other amounts owing under this Agreement and the Notes, shall become immediately due and payable without presentment, demand, protest or other notice of any kind, all of which are hereby expressly waived (and in the case occurrence of any Event of Default specified in clause clauses (fviii) of the above paragraph, such acceleration of the Notes shall be automatic, without any notice by CIT). In addition, if an Event of Default shall occur and be continuing, CIT may exercise all other rights and remedies available to it, whether under this Agreement, under any other instrument or agreement securing, evidencing or relating to the Obligations, under the Code, or otherwise available at law or in equity. Without limiting the generality of the foregoing, Debtor agrees that in any such event, CIT, without demand of performance or other demand, advertisement or notice of any kind (except the notice specified below of time and place of public or private saleix) to or upon Debtor or any other Person (all and each of which demands, advertisements and notices are hereby expressly waived), may forthwith do any one or more of the following: collect, receive, appropriate and realize upon the Collateral or any part thereof, and sell, lease, assign, give an option or options to purchase or otherwise dispose of and deliverabove, the Collateral (Obligations shall become immediately due and without declaration, notice or contract to do so), or any part thereof, in one or more parcels at public or private sale or sales at such places and at such prices as it may deem best, for cash or on credit or for future delivery without the assumption of any credit risk. CIT shall have the right upon any such public sale or sales, and, to the extent permitted demand 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 Debtor, which right or equity is hereby expressly released. Debtor further agrees, at CIT's request, to assemble (at Debtor's expense) the Collateral and make it available to CIT at such places which CIT shall select, whether at Debtor's premises or elsewhere. CIT shall apply the net proceeds of any such collection, recovery, receipt, appropriation, realization or sale (after deducting all reasonable costs and expenses of every kind incurred therein or incidental to the care, safekeeping or otherwise of any or all of the Collateral or in any way relating to the rights of CIT hereunder, including reasonable attorney's fees and legal expenses) to the payment in whole or in part of the Obligations, in such order as CIT may elect. Debtor agrees that CIT need not give more than 10 days' notice of the time and place of any public sale or of the time after which a private sale may take place and that such notice is reasonable notification of such matters. Debtor shall be liable for any deficiency if the proceeds of any sale or disposition of the Collateral are insufficient to pay all amounts to which CIT is entitled. Debtor agrees to pay all costs of CIT, including reasonable attorneys' fees, incurred with respect to collection of any of the Obligations and enforcement of any of CIT's rights hereunder. To the extent permitted by law, Debtor hereby waives presentment, demand, protest or any notice (except as expressly provided in this Section 6) of any kind in connection with this Agreement or any CollateralPurchaser.
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Samples: Account Receivable Purchase Agreement (Cd International Enterprises, Inc.)
Events of Default Remedies. The If any of the following events shall each constitute an "Event (“Events of Default" hereunder”) shall occur: (a) Debtor any Borrower shall fail to pay any Obligation within 5 Business Days after Debtor's receipt principal of notice that timely payment has not been received (any Loan when and as the same shall become due and payable, whether at the stated maturity, by acceleration due date thereof or at a date fixed for prepayment thereof or otherwise); or any Borrower shall fail to pay any reimbursement obligation in respect of any LC Disbursement when and as the same shall become due and payable, and such failure with respect to such reimbursement obligations shall continue unremedied for a period of five (5) Business Days; (b) any representation Borrower shall fail to pay any interest on any Loan or warranty made by Debtor any fee or any other amount (other than an amount referred to in clause (a) of this Agreement or in any document, certificate or financial or other statement now or hereafter furnished by Debtor in connection with Section 8.01) payable under this Agreement or any other Loan Document, when and as the same shall at any time prove to be untrue or misleading in any material respect as of the time when made; (c) Debtor shall fail to observe any covenant, condition or agreement contained in Sections 5.A(11) or 5.B hereof or in paragraph 4(b) of Rider A; (d) Debtor shall fail to observe or perform any other covenant or condition contained in this Agreementbecome due and payable, and such failure shall continue unremedied for a period of 30 days after the earlier five (5) Business Days; (c) any representation, warranty or certification made or deemed made by or on behalf of the date on which Debtor obtains knowledge any Borrower or any Restricted Subsidiary herein or in any Loan Document, or in any report, certificate, financial statement or other document required to be delivered pursuant hereto or thereto, shall prove to have been materially inaccurate when made or deemed made; (d) any Loan Party shall fail to observe or perform any covenant, condition or agreement contained in Section 5.02(a), Section 5.03(a) (with respect to any Borrower), Section 5.11 or in Article VI or in Article VII of such failure or the date on which notice thereof shall be given by CIT to Debtorthis Agreement; (e) Debtor any Loan Party shall fail to observe or perform any affiliate of Debtor shall default covenant, condition or agreement contained in the payment of, or any Loan Document (other performance under, any obligation for payment or lease (whether or not capitalized) or any guarantee (i) to CIT, any affiliate of CIT or to Debtor's main bank, beyond the period of grace, if any, provided with respect thereto, or (ii) to any other Person beyond the period of grace, if any, provided with respect thereto, where such obligation or amount guaranteed is in excess of $1,000,000.00; or (f) a complaint in bankruptcy or for arrangement or reorganization or for relief under any insolvency law is filed by or against Debtor (and when filed against Debtor is in effect for 60 days) or Debtor admits its inability to pay its debts as they mature. If an Event of Default shall occur, CIT may, by notice of default given to Debtor, do any one or more of the following: (a) terminate the Commitment and/or (b) declare the Notes to be due and payable, whereupon the principal amount of the Notes, together with accrued interest thereon and all other amounts owing under this Agreement and the Notes, shall become immediately due and payable without presentment, demand, protest or other notice of any kind, all of which are hereby expressly waived (and in the case of any Event of Default than those specified in clause (a), (b) or (d) of this Section 8.01), and such failure shall continue unremedied for a period of thirty (30) days after written notice thereof from the Administrative Agent to the Parent Borrower; (f) any Borrower or any Restricted Subsidiary (other than an Immaterial Subsidiary) shall fail to make any payment (whether of principal or interest and regardless of amount) in respect of any Material Indebtedness other than the Obligations, when and as the same shall become due and payable beyond any applicable grace period or any event or condition occurs that results in any Material Indebtedness becoming due prior to its scheduled maturity or that enables or permits, after giving effect to any applicable grace period, the holder or holders of any Material Indebtedness or any trustee or agent on its or their behalf to cause any Material Indebtedness to become due, or to require the prepayment, repurchase, redemption or defeasance thereof, prior to its scheduled maturity; provided that this clause (f) shall not apply to (i) secured Indebtedness that becomes due as a result of the Disposition (including as a result of a casualty or condemnation event) of the above paragraphproperty or assets securing such Indebtedness, such acceleration (ii) Guarantees of the Notes shall be automatic, without any notice by CIT). In addition, if an Event of Default shall occur and be continuing, CIT may exercise all other rights and remedies available to it, whether under this Agreement, under any other instrument Indebtedness that are satisfied promptly on demand or agreement securing, evidencing or relating to the Obligations, under the Code, or otherwise available at law or in equity. Without limiting the generality of the foregoing, Debtor agrees that in any such event, CIT, without demand of performance or other demand, advertisement or notice of any kind (except the notice specified below of time and place of public or private saleiii) to or upon Debtor or any other Person (all and each of which demands, advertisements and notices are hereby expressly waived), may forthwith do any one or more of the following: collect, receive, appropriate and realize upon the Collateral or any part thereof, and sell, lease, assign, give an option or options to purchase or otherwise dispose of and deliver, the Collateral (or contract to do so), or any part thereof, in one or more parcels at public or private sale or sales at such places and at such prices as it may deem best, for cash or on credit or for future delivery without the assumption of any credit risk. CIT 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 Debtor, which right or equity is hereby expressly released. Debtor further agrees, at CIT's request, to assemble (at Debtor's expense) the Collateral and make it available to CIT at such places which CIT shall select, whether at Debtor's premises or elsewhere. CIT shall apply the net proceeds of any such collection, recovery, receipt, appropriation, realization or sale (after deducting all reasonable costs and expenses of every kind incurred therein or incidental to the care, safekeeping or otherwise of any or all of the Collateral or in any way relating to the rights of CIT hereunder, including reasonable attorney's fees and legal expenses) to the payment in whole or in part of the Obligations, in such order as CIT may elect. Debtor agrees that CIT need not give more than 10 days' notice of the time and place of any public sale or of the time after which a private sale may take place and that such notice is reasonable notification of such matters. Debtor shall be liable for any deficiency if the proceeds of any sale or disposition of the Collateral are insufficient to pay all amounts to which CIT is entitled. Debtor agrees to pay all costs of CIT, including reasonable attorneys' fees, incurred with respect to collection Indebtedness incurred under any Swap Agreement, termination events or equivalent events pursuant to the terms of the relevant Swap Agreement which are not the result of any of the Obligations and enforcement of default thereunder by any of CIT's rights hereunder. To the extent permitted by law, Debtor hereby waives presentment, demand, protest Loan Party or any notice (except as expressly provided in this Section 6) of any kind in connection with this Agreement or any Collateral.Restricted Subsidiary; provided, further, that such failure is unremedied and is not waived by the holders
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