Events of Default and Remedies. 9.1 The following events shall constitute an "Event of Default" under this Agreement, the occurrence of which shall entitle the Lender to pursue any and all rights and remedies, legal and equitable, available to it under any Loan Document or otherwise. The Occurrence of an Event Default under this Agreement shall constitute a default under each and every other Loan Document. The Lender's rights and remedies are cumulative and may be exercised concurrently or successively from time to time. Any action by the Lender against any property or party shall not serve to release or discharge any other security, property or party in connection with this transaction. The Events of Default are as follows: (a) Failure to pay the principal or interest on the Borrower's present or future indebtedness to the Lender, whether or not arising pursuant to this Agreement, when and as the same shall be due and payable, whether by acceleration or otherwise; provided that such default has not been cured prior to the expiration of ten (10) days following the date upon which the Lender gives the Borrower written Notice of Default. In this Section 9, Notice of Default shall be deemed to have been given (i) on the date of personal delivery of such written notice to a Guarantor, or (ii) on the date on which a duly authorized representative of the Borrower acknowledges receipt of such written notice, or (iii) on the day after sending such written notice to the Borrower by a commonly recognized overnight courier service, such as Federal Express, Purolator, UPS or the like, or (iv) on the third day after sending such written notice to the Borrower by facsimile (to both numbers set forth in Section 16.7) or by depositing the same in the United States mail, postage prepaid, for delivery to the Borrower. (b) Failure to observe, perform and comply with any of the obligations evidenced or secured by a Loan Document, other than as provided in Sections 9.1(a) above; provided that such default has not been cured prior to the expiration of thirty (30) days following the date upon which the Lender gives the Borrower written Notice of Default. (c) Failure to duly and punctually pay, observe and discharge all Indebtedness and other obligations of the Borrower to any third party, unless the same is being contested in good faith by appropriate proceedings and the Borrower has set aside on its books adequate reserves with respect to such Indebtedness or other obligations. (d) The discovery by the Lender of any material inaccuracy in any statement, assurance, representation, covenant, warranty, term or condition by the Borrower contained in this Agreement or in any document delivered or to be delivered by or on behalf of the Borrower pursuant to this Agreement, which inaccuracy would result in a Material Adverse Effect (except that inaccuracies in the Borrower's Due Diligence Documents attributable to the fault or neglect of third-parties shall not constitute a breach of this Section 9.1(d)), or in any other Loan Document, or in any other agreement between the Borrower and the Lender. (e) The filing of a petition by or against the Borrower or any Affiliate seeking relief under the Federal Bankruptcy Code, 11 U.S.C. ss. 101, et seq., and any amendments thereto, or any similar law or regulation, whether federal, state or local, not dismissed within 30 days. (f) The commencement of a proceeding by or against the Borrower or any Affiliate under any statute or other law providing for an assignment for the benefit of creditors, the appointment of a receiver, or any other similar law or regulation, whether federal, state or local, not dismissed within 30 days. (g) The garnishment, attachment, levy or other similar action taken by or on behalf of any creditor of the Borrower, any Affiliate, or any of their respective properties which could have a Material Adverse Effect. (h) Any change in control of the Borrower, Madison Liquidity Investors 104, MACG from that disclosed in Section 2 of this Agreement. 9.2 The Lender may, at its option, terminate its obligation to make advances of the Loan, without notice to the Borrower: (a) upon the occurrence and continuance of any Event of Default set forth in subsections 9.1 (a) through 9.1(h) above; or (b) upon the occurrence and continuance of any event which, with the giving of notice or the lapse of time, or both, would constitute an Event of Default or (C) upon the death or disability of ▇▇▇▇▇ ▇.
Appears in 8 contracts
Sources: Loan Agreement (Madison Liquidity Investors 104 LLC), Loan Agreement (Madison Liquidity Investors 104 LLC), Loan Agreement (Madison Liquidity Investors 104 LLC)
Events of Default and Remedies. 9.1 6.1. The following events occurrence of an Event of Default, as defined in the Credit Agreement, shall constitute an "Event of Default" under this Agreement, the occurrence of which shall entitle the Lender to pursue any and all rights and remedies, legal and equitable, available to it under any Loan Document or otherwise.
6.2. The Occurrence Administrative Agent, for the benefit of an Event Default under this Agreement the Lenders, shall constitute a default under each and every other Loan Document. The Lender's at all times have the rights and remedies are cumulative and may be exercised concurrently or successively of a secured party under the U.C.C. as in effect from time to time. Any action by the Lender against any property or party shall not serve to release or discharge any other security, property or party in connection with this transaction. The Events of Default are as follows:
(a) Failure to pay the principal or interest on the Borrower's present or future indebtedness addition to the Lender, whether or not arising pursuant to rights and remedies of a secured party provided elsewhere within this Agreement, when and as the same shall be due and payable, whether by acceleration any Note or otherwise; provided that such default has not been cured prior to the expiration of ten (10) days following the date upon which the Lender gives the Borrower written Notice of Default. In this Section 9, Notice of Default shall be deemed to have been given (i) on the date of personal delivery of such written notice to a Guarantor, or (ii) on the date on which a duly authorized representative of the Borrower acknowledges receipt of such written notice, or (iii) on the day after sending such written notice to the Borrower by a commonly recognized overnight courier service, such as Federal Express, Purolator, UPS or the like, or (iv) on the third day after sending such written notice to the Borrower by facsimile (to both numbers set forth in Section 16.7) or by depositing the same in the United States mail, postage prepaid, for delivery to the Borrower.
(b) Failure to observe, perform and comply with any of the obligations evidenced or secured by a Loan Document, other than as provided in Sections 9.1(a) above; provided that such default has not been cured prior to the expiration of thirty (30) days following the date upon which the Lender gives the Borrower written Notice of Default.
(c) Failure to duly and punctually pay, observe and discharge all Indebtedness and other obligations of the Borrower to any third party, unless the same is being contested in good faith by appropriate proceedings and the Borrower has set aside on its books adequate reserves with respect to such Indebtedness or other obligations.
(d) The discovery by the Lender of any material inaccuracy in any statement, assurance, representation, covenant, warranty, term or condition by the Borrower contained in this Agreement or in any document delivered or to be delivered by or on behalf of the Borrower pursuant to this Agreement, which inaccuracy would result in a Material Adverse Effect (except that inaccuracies in the Borrower's Due Diligence Documents attributable to the fault or neglect of third-parties shall not constitute a breach of this Section 9.1(d)), or in any other Loan Document, or otherwise provided in any other agreement between the Borrower and the Lenderlaw or equity.
(e) The filing of a petition by or against the Borrower or any Affiliate seeking relief under the Federal Bankruptcy Code, 11 U.S.C. ss6.3. 101, et seq., and any amendments thereto, or any similar law or regulation, whether federal, state or local, not dismissed within 30 days.
(f) The commencement of a proceeding by or against the Borrower or any Affiliate under any statute or other law providing for an assignment for the benefit of creditors, the appointment of a receiver, or any other similar law or regulation, whether federal, state or local, not dismissed within 30 days.
(g) The garnishment, attachment, levy or other similar action taken by or on behalf of any creditor of the Borrower, any Affiliate, or any of their respective properties which could have a Material Adverse Effect.
(h) Any change in control of the Borrower, Madison Liquidity Investors 104, MACG from that disclosed in Section 2 of this Agreement.
9.2 The Lender may, at its option, terminate its obligation to make advances of the Loan, without notice to the Borrower:
(a) upon Upon the occurrence and continuance of any Event of Default set forth in subsections 9.1
(a) through 9.1(h) above; or (b) upon the occurrence and continuance of any event which, with the giving of notice or the lapse of time, or both, would constitute an Event of Default hereunder, the Administrative Agent, in its discretion, may sell, assign, transfer and deliver any of the Collateral, at any time, or from time to time. No prior notice need be given to the Pledgor or to any other Person in the case of any sale of Collateral that the Administrative Agent determines to be declining speedily in value or that is customarily sold in any securities exchange, over-the-counter market or other recognized market, but in any other case the Administrative Agent shall give the Pledgor no fewer than ten days prior notice of either the time and place of any public sale of the Collateral or of the time after which any private sale or other intended disposition thereof is to be made. The Pledgor waives advertisement of any such sale and (Cexcept to the extent specifically required by the preceding sentence) upon waives notice of any kind in respect of any such sale. At any such public sale, the death Administrative Agent or disability any Lender may purchase the Collateral, or any part thereof, free from any right of ▇▇▇▇▇ ▇redemption, all of which rights the Pledgor hereby waives and releases. After deducting all Related Expenses, and after paying all claims, if any, secured by liens having precedence over this Agreement, the Administrative Agent may apply the net proceeds of each such sale to or toward the payment of the Obligations, whether or not then due, in such order and by such division as the Administrative Agent in its sole discretion may deem advisable. Any excess, to the extent permitted by law, shall be paid to the Pledgor, and the obligors on the Obligations shall remain liable for any deficiency. In addition, the Administrative Agent shall at all times have the right to obtain new appraisals of the Pledgor or the Collateral, the cost of which shall be paid by the Pledgor.
Appears in 4 contracts
Sources: Pledge Agreement (ZAGG Inc), Pledge Agreement (ZAGG Inc), Pledge Agreement (ZAGG Inc)
Events of Default and Remedies. 9.1 The Each of the following events shall constitute constitutes an "Event of Default" under this Agreement, Default with respect to the occurrence of which shall entitle the Lender to pursue any and all rights and remedies, legal and equitable, available to it under any Loan Document or otherwise. The Occurrence of an Event Default under this Agreement shall constitute a default under each and every other Loan Document. The Lender's rights and remedies are cumulative and may be exercised concurrently or successively from time to time. Any action by the Lender against any property or party shall not serve to release or discharge any other security, property or party in connection with this transaction. The Events of Default are as followsSecurities if:
(a1) Failure to pay the principal Company defaults for 30 days in the payment when due of interest on, or interest on Liquidated Damages with respect to, the Borrower's present or future indebtedness to the Lender, Securities (whether or not arising pursuant to this Agreementprohibited by the provisions of Article X);
(2) the Company defaults in payment when due of the principal of or premium, when and as if any, on the same shall be due and payable, Securities (whether or not prohibited by acceleration or otherwise; provided that such default has not been cured prior to the expiration provisions of ten Article X);
(103) the Company fails for 30 days following the date upon which the Lender gives the Borrower written Notice after receipt of Default. In this Section 9, a Notice of Default shall be deemed to have been given comply with the provisions in Sections 4.03, 4.04, 4.06, 4.08 and 5.01;
(i4) on the date of personal delivery of such written notice to a Guarantor, or (ii) on the date on which a duly authorized representative of the Borrower acknowledges Company fails for 60 days after receipt of a Notice of Default specifying such written notice, or (iii) on the day after sending such written notice failure to the Borrower by a commonly recognized overnight courier service, such as Federal Express, Purolator, UPS or the like, or (iv) on the third day after sending such written notice to the Borrower by facsimile (to both numbers set forth in Section 16.7) or by depositing the same in the United States mail, postage prepaid, for delivery to the Borrower.
(b) Failure to observe, perform and comply with any of its other agreements in this Indenture or the obligations evidenced Securities;
(5) the Company or secured any Restricted Subsidiary that is a Significant Subsidiary fails to pay any Debt within any applicable grace period after final maturity or acceleration by the holders thereof because of a Loan Document, other than as provided default if the total amount of such Debt unpaid or accelerated at the time exceeds $15.0 million;
(6) any judgment or decree for the payment of money in Sections 9.1(a) above; provided that such default has not been cured excess of $15.0 million (net of any insurance or indemnity payments actually received in respect thereof prior to or within 90 days from the expiration entry thereof, or to be received in respect thereof in the event any appeal thereof shall be unsuccessful) shall be entered against the Company or any Significant Subsidiary that is a Restricted Subsidiary and is not discharged, waived or stayed and either (A) an enforcement proceeding has been commenced by any creditor upon such judgment or decree or (B) there shall be a period of thirty (30) 90 days following the date upon entry of such judgment or decree during which such judgment or decree is not discharged, waived or the Lender gives the Borrower written Notice of Default.execution thereof stayed;
(c7) Failure to duly and punctually payexcept as permitted by this Indenture, observe and discharge all Indebtedness and other obligations of the Borrower to any third party, unless the same Security Guarantee by a Guarantor that is being contested in good faith by appropriate proceedings and the Borrower has set aside on its books adequate reserves with respect to such Indebtedness or other obligations.
(d) The discovery by the Lender of any material inaccuracy a Significant Subsidiary shall be held in any statement, assurance, representation, covenant, warranty, term or condition by the Borrower contained in this Agreement or in any document delivered or judicial proceeding to be delivered by unenforceable or invalid or shall cease for any reason to be in full force and effect or any Guarantor, or any Person acting on behalf of any Guarantor, shall deny or disaffirm its obligations under its Security Guarantee;
(8) the Borrower Company or any Restricted Subsidiary that is a Significant Subsidiary pursuant to this Agreement, which inaccuracy would result in or within the meaning of any Bankruptcy Law:
(A) commences a Material Adverse Effect voluntary case;
(except that inaccuracies in the Borrower's Due Diligence Documents attributable B) consents to the fault or neglect entry of third-parties shall not constitute a breach of this Section 9.1(d)), or an order for relief against it in any other Loan Document, or in any other agreement between the Borrower and the Lender.an involuntary case;
(eC) The filing consents to the appointment of a petition by Custodian of it or against the Borrower or for any Affiliate seeking relief under the Federal Bankruptcy Code, 11 U.S.C. ss. 101, et seq., and any amendments thereto, or any similar law or regulation, whether federal, state or local, not dismissed within 30 days.substantial part of its property;
(fD) The commencement of makes a proceeding by or against the Borrower or any Affiliate under any statute or other law providing for an general assignment for the benefit of its creditors, the appointment of a receiver, ; or takes any other similar law or regulation, whether federal, state or local, not dismissed within 30 days.comparable action under any foreign laws relating to insolvency; or
(g9) The garnishment, attachment, levy a court of competent jurisdiction enters an order or other similar action taken by or on behalf of decree under any creditor of the Borrower, any Affiliate, or any of their respective properties which could have a Material Adverse Effect.
(h) Any change in control of the Borrower, Madison Liquidity Investors 104, MACG from that disclosed in Section 2 of this Agreement.
9.2 The Lender may, at its option, terminate its obligation to make advances of the Loan, without notice to the BorrowerBankruptcy Law that:
(aA) upon is for relief against the occurrence Company or any Restricted Subsidiary that is a Significant Subsidiary in an involuntary case;
(B) appoints a Custodian of the Company or any Restricted Subsidiary that is a Significant Subsidiary or for any substantial part of its property; or
(C) orders the winding-up or liquidation of the Company or any Restricted Subsidiary that is a Significant Subsidiary; or any similar relief is granted under any foreign laws and continuance the order or decree relating thereto remains unstayed and in effect for 60 days: The foregoing shall constitute Events of Default whatever the reason for any such Event of Default set forth in subsections 9.1
(a) through 9.1(h) above; and whether it is voluntary or (b) upon the occurrence and continuance involuntary or is effected by operation of law or pursuant to any judgment, decree or order of any event whichcourt or any order, with the giving rule or regulation of notice any administrative or the lapse of time, or both, would constitute an Event of Default or (C) upon the death or disability of ▇▇▇▇▇ ▇governmental body.
Appears in 4 contracts
Sources: Indenture (Harborside Healthcare Corp), Indenture (Sailors Inc), Indenture (Harborside Healthcare Corp)
Events of Default and Remedies. 9.1 8.1. The entire unpaid principal amount of this Note, together with all accrued interest thereon, shall, at the option of the holder hereof exercised by written notice to the Maker at its principal executive offices, forthwith become and be due and payable if any one or more of the following events shall constitute an (herein called "Event Events of Default" under this Agreement") shall have occurred (for any reason whatsoever and whether such happening shall be voluntary or involuntary or come about or be effected by operation of law or pursuant to or in compliance with any judgment, decree or order of any court or any order, rule or regulation of any administrative or 11 11 governmental body) and be continuing at the occurrence time of which shall entitle the Lender such notice, that is to pursue any and all rights and remedies, legal and equitable, available to it under any Loan Document or otherwise. The Occurrence of an Event Default under this Agreement shall constitute a default under each and every other Loan Document. The Lender's rights and remedies are cumulative and may be exercised concurrently or successively from time to time. Any action by the Lender against any property or party shall not serve to release or discharge any other security, property or party in connection with this transaction. The Events of Default are as followssay:
(a) Failure to pay if default shall be made in the due and punctual payment of the principal or interest on the Borrower's present or future indebtedness to the Lender, whether or not arising pursuant to of this Agreement, Note when and as the same shall be become due and payable, whether at maturity, by acceleration or otherwise;
(b) if default shall be made in the due and punctual payment of any interest on this Note when and as such interest shall become due and payable, and such default shall have continued for a period of 10 days;
(c) if default shall be made in the performance or observance of any covenant, agreement or condition contained in Section 6 hereof;
(d) if default shall be made in the performance or observance of any of the other covenants, agreements or conditions of the Maker contained in this Note, and such default shall have continued for a period of 30 days;
(e) if the Maker or any Subsidiary shall default beyond any period of grace provided with respect thereto in the payment of principal of or interest on any obligation in respect of borrowed money when due, whether by acceleration or otherwise; provided that such or if the Maker or any Subsidiary shall default has not been cured prior to the expiration of ten (10) days following the date upon which the Lender gives the Borrower written Notice of Default. In this Section 9, Notice of Default shall be deemed to have been given (i) on the date of personal delivery of such written notice to a Guarantor, or (ii) on the date on which a duly authorized representative of the Borrower acknowledges receipt of such written notice, or (iii) on the day after sending such written notice to the Borrower by a commonly recognized overnight courier service, such as Federal Express, Purolator, UPS or the like, or (iv) on the third day after sending such written notice to the Borrower by facsimile (to both numbers set forth in Section 16.7) or by depositing the same in the United States mail, postage prepaid, for delivery to the Borrower.
(b) Failure to observe, perform and comply with any of the obligations evidenced performance or secured by a Loan Document, other than as provided in Sections 9.1(a) above; provided that such default has not been cured prior to the expiration of thirty (30) days following the date upon which the Lender gives the Borrower written Notice of Default.
(c) Failure to duly and punctually pay, observe and discharge all Indebtedness and other obligations of the Borrower to any third party, unless the same is being contested in good faith by appropriate proceedings and the Borrower has set aside on its books adequate reserves with respect to such Indebtedness or other obligations.
(d) The discovery by the Lender observance of any material inaccuracy in any statement, assurance, representation, covenant, warrantyother agreement, term or condition by the Borrower contained in this Agreement such obligation or in any document delivered agreement under 12 12 which any such obligation is created, if the effect of any such default is to cause or to be delivered by permit the holder or holders of such obligations (or a trustee on behalf of the Borrower pursuant such holder or holders) to this Agreement, which inaccuracy would result in a Material Adverse Effect (except that inaccuracies in the Borrower's Due Diligence Documents attributable cause such obligation to become due prior to the fault date of its stated maturity, unless such holder or neglect of third-parties holders or trustee shall not constitute have waived such default after its occurrence or unless such holder or holders or trustee shall have failed to give any notice required to create a breach of this Section 9.1(d)), or in any other Loan Document, or in any other agreement between the Borrower and the Lender.
(e) The filing of a petition by or against the Borrower or any Affiliate seeking relief under the Federal Bankruptcy Code, 11 U.S.C. ss. 101, et seq., and any amendments thereto, or any similar law or regulation, whether federal, state or local, not dismissed within 30 days.default thereunder;
(f) The commencement of a proceeding by or against if the Borrower Maker or any Affiliate under Subsidiary shall:
(i) admit in writing its inability to pay its debts generally as they become due;
(ii) file a petition in bankruptcy or a petition to take advantage of any statute or other law providing for insolvency act;
(iii) make an assignment for the benefit of creditors, ;
(iv) consent to the appointment of a receiver, receiver of itself or of the whole or any other similar law or regulationsubstantial part of its property;
(v) on a petition in bankruptcy filed against it, whether federal, state or local, not dismissed within 30 days.be adjudicated a bankrupt; or
(g) The garnishmentif a court of competent jurisdiction shall enter an order, attachmentjudgment, levy or other similar action taken by or on behalf of any creditor decree appointing, without the consent of the BorrowerMaker or any Subsidiary, a receiver of the Maker or any AffiliateSubsidiary or of the whole or any substantial part of its property, or approving a petition filed against it seeking reorganization or arrangement of the Maker or any Subsidiary under the federal bankruptcy laws or any other applicable law or statute of their respective properties which could have a Material Adverse Effect.the United States of America or any State, district or territory thereof, and such order, judgment or decree shall not be vacated or set aside or stayed within 60 days from the date of entry thereof;
(h) Any change in if, under the provisions of any other law for the relief or aid of debtors, any court of competent jurisdiction shall assume custody or control of the BorrowerMaker or any Subsidiary or of the whole or any substantial part of its property and such custody or control shall not be terminated or stayed within 60 days from the date of assumption of such custody or control; or
(i) if final judgment for the payment of money in excess of $50,000 shall be rendered by a court of record against the Maker or any Subsidiary and the Maker or such Subsidiary shall not discharge the same or provide for its discharge in accordance with its terms, Madison Liquidity Investors 104or shall not procure a stay of execution thereon within 60 days 14 14 from the date of entry thereof and within the period during which execution of such judgment shall have been stayed, MACG from that disclosed appeal therefrom, and cause the execution thereof to be stayed during such appeal.
8.2. In case any one or more of the Events of Default specified in Section 2 8.1 hereof shall have occurred and be continuing, the holder of this AgreementNote may proceed to protect and enforce its rights either by suit in equity and/or by action at law, whether for the specific performance of any covenant or agreement contained in this Note or in aid of the exercise of any power granted in this Note, or the holder of this Note may proceed to enforce the payment of all sums due upon this Note or to enforce any other legal or equitable right of the holder of this Note.
9.2 The Lender may, 8.3. No remedy herein conferred upon the holder hereof is intended to be exclusive of any other remedy and each and every such remedy shall be cumulative and shall be in addition to every other remedy given hereunder or now or hereafter existing at its option, terminate its obligation to make advances law or in equity or by statute or otherwise.
8.4. No course of dealing between the Maker and the holder hereof or any delay on the part of the Loan, without notice to the Borrower:
(a) upon the occurrence and continuance holder hereof in exercising any rights hereunder shall operate as a waiver of any Event of Default set forth in subsections 9.1
(a) through 9.1(h) above; or (b) upon the occurrence and continuance rights of any event which, with the giving of notice or the lapse of time, or both, would constitute an Event of Default or (C) upon the death or disability of ▇▇▇▇▇ ▇holder hereof.
Appears in 4 contracts
Sources: Subordinated Note (Valley Forge Dental Associates Inc), Subordinated Note (Valley Forge Dental Associates Inc), Subordinated Note (Valley Forge Dental Associates Inc)
Events of Default and Remedies. 9.1 The following events shall constitute an "Event (a) If any one or more of Default" under this Agreement, the occurrence of which shall entitle the Lender to pursue any and all rights and remedies, legal and equitable, available to it under any Loan Document or otherwise. The Occurrence of an Event Default under this Agreement shall constitute a default under each and every other Loan Document. The Lender's rights and remedies are cumulative and may be exercised concurrently or successively from time to time. Any action by the Lender against any property or party shall not serve to release or discharge any other security, property or party in connection with this transaction. The Events of Default are shall occur or shall exist, the Collateral Agent may then or at any time thereafter, so long as follows:
(a) Failure to pay the principal or interest on the Borrower's present or future indebtedness to the Lender, whether or not arising pursuant to this Agreement, when and as the same shall be due and payable, whether by acceleration or otherwise; provided that such default has not been cured prior to shall continue, foreclose the expiration of ten (10) days following lien or security interest in the date upon which the Lender gives the Borrower written Notice of Default. In this Section 9, Notice of Default shall be deemed to have been given (i) on the date of personal delivery of such written notice to a GuarantorCollateral in any way permitted by law, or upon fifteen (ii15) on the date on which a duly authorized representative of the Borrower acknowledges receipt of such written notice, or (iii) on the day after sending such days’ prior written notice to the Borrower by a commonly recognized overnight courier servicerelevant Grantor, sell any or all Collateral at private sale at any time or place in one or more sales, at such price or prices and upon such terms, either for cash or on credit, as Federal Expressthe Collateral Agent, Purolatorin its sole discretion, UPS or the likemay elect, or (iv) sell any or all Collateral at public auction, either for cash or on credit, as the third day after sending Collateral Agent, in its sole discretion, may elect, and at any such written notice to sale, the Borrower by facsimile (to both numbers set forth in Section 16.7) Collateral Agent may bid for and become the purchaser of any or by depositing all such Collateral. Pending any such action the same in Collateral Agent may liquidate the United States mail, postage prepaid, for delivery to the BorrowerCollateral.
(b) Failure If any one or more of the Events of Default shall occur or shall exist, the Collateral Agents may then, or at any time thereafter, so long as such default shall continue, grant extensions to, or adjust claims of, or make compromises or settlements with, debtors, guarantors or any other parties with respect to observeCollateral or any securities, perform and comply with guarantees or insurance applying thereon, without notice to or the consent of any Grantor, without affecting the Grantor’s liability under this Agreement or the Notes. The Grantor waives notice of acceptance, of nonpayment, protest or notice of protest of any Accounts or Chattel Paper, any of the obligations evidenced its contract rights or secured by a Loan Document, Collateral and any other than as provided in Sections 9.1(a) above; provided that such default has not been cured prior notices to the expiration of thirty (30) days following the date upon which the Lender gives the Borrower written Notice of DefaultGrantor may be entitled.
(c) Failure to duly and punctually pay, observe and discharge all Indebtedness and other obligations If any one or more of the Borrower Events of Default shall occur or shall exist and be continuing, then in any such event, the Collateral Agent shall have such additional rights and remedies in respect of the Collateral or any portion thereof as are provided by the Code and such other rights and remedies in respect thereof which it may have at law or in equity or under this Agreement, including without limitation the right to enter any third partypremises where Equipment, unless Inventory and/or Fixtures are located and take possession and control thereof without demand or notice and without prior judicial hearing or legal proceedings, which the same is being contested in good faith by appropriate proceedings and the Borrower has set aside on its books adequate reserves with respect to such Indebtedness or other obligationsGrantor expressly waives.
(d) The discovery Collateral Agent shall apply the Proceeds of any sale or liquidation of the Collateral, and, subject to Section 5, any Proceeds received by the Lender Collateral Agent from insurance, first to the payment of any material inaccuracy in any statement, assurance, representation, covenant, warranty, term or condition the reasonable costs and expenses incurred by the Borrower contained Collateral Agent in this Agreement connection with such sale or in any document delivered or collection, including without limitation reasonable attorneys’ fees and legal expenses; second to be delivered by or on behalf the payment of the Borrower pursuant Notes, pro rata, whether on account of principal or interest or otherwise as the Collateral Agent, in its sole discretion, may elect, and then to this Agreementpay the balance, which inaccuracy would result in a Material Adverse Effect (except that inaccuracies in the Borrower's Due Diligence Documents attributable if any, to the fault relevant Grantor or neglect of third-parties as otherwise required by law. If such Proceeds are insufficient to pay the amounts required by law, the Grantors shall not constitute a breach of this Section 9.1(d)), or in be liable for any other Loan Document, or in any other agreement between the Borrower and the Lenderdeficiency.
(e) The filing Upon the occurrence of a petition by or against the Borrower or any Affiliate seeking relief under the Federal Bankruptcy Code, 11 U.S.C. ss. 101, et seq., and any amendments thereto, or any similar law or regulation, whether federal, state or local, not dismissed within 30 days.
(f) The commencement Event of a proceeding by or against the Borrower or any Affiliate under any statute or other law providing for an assignment for the benefit of creditorsDefault, the appointment of Grantor shall promptly upon written demand by the Collateral Agent assemble the Equipment, Inventory and Fixtures and make them available to the Holders at a receiver, place or any other similar law or regulation, whether federal, state or local, not dismissed within 30 days.
(g) places to be designated by the Collateral Agent The garnishment, attachment, levy or other similar action taken by or on behalf of any creditor rights of the BorrowerCollateral Agent under this paragraph to have the Equipment, any Affiliate, or any of their respective properties which could have a Material Adverse Effect.
(h) Any change in control Inventory and Fixtures assembled and made available to it is of the Borrower, Madison Liquidity Investors 104, MACG from that disclosed in Section 2 essence of this Agreement.
9.2 The Lender Agreement and the Collateral Agent may, at its optionelection, terminate its obligation to make advances of the Loanenforce such right by an action in equity for injunctive relief or specific performance, without notice to the Borrower:
(a) upon the occurrence and continuance requirement of any Event of Default set forth in subsections 9.1
(a) through 9.1(h) above; or (b) upon the occurrence and continuance of any event which, with the giving of notice or the lapse of time, or both, would constitute an Event of Default or (C) upon the death or disability of ▇▇▇▇▇ ▇a bond.
Appears in 3 contracts
Sources: Security Agreement (Thompson Designs Inc), Security Agreement (Gelia Group, Corp.), Subscription Agreement (Codesmart Holdings, Inc.)
Events of Default and Remedies. 9.1 The (a) Each of the following events shall constitute be deemed an "Event of Default" under this Agreement, the occurrence of which shall entitle the Lender to pursue any and all rights and remedies, legal and equitable, available to it under any Loan Document or otherwise. The Occurrence of an Event Default under this Agreement shall constitute a default under each and every other Loan Document. The Lender's rights and remedies are cumulative and may be exercised concurrently or successively from time to time. Any action by the Lender against any property or party shall not serve to release or discharge any other security, property or party in connection with this transaction. The Events of Default are as follows:
(a) Failure to pay the principal or interest on the Borrower's present or future indebtedness to the Lender, whether or not arising pursuant to this Agreement, when and as the same shall be due and payable, whether by acceleration or otherwise; provided that such default has not been cured prior to the expiration of ten (10) days following the date upon which the Lender gives the Borrower written Notice of Default. In this Section 9, Notice of Default shall be deemed to have been given (i) Buyer's failure to make any payment required hereunder on the date of personal delivery of such written notice to a Guarantor, or payment is due;
(ii) on Buyer's failure to accept the Vessel within fourteen (14) days from the date on which a duly authorized representative of the Borrower acknowledges receipt of such written notice, or Vessel is tendered for delivery;
(iii) on the day after sending such written notice to the Borrower by a commonly recognized overnight courier service, such as Federal Express, Purolator, UPS or the like, or Buyer's material breach of any of his other obligations under this Agreement; or
(iv) on the third day after sending Buyer shall become insolvent or generally not pay his debts as such written notice to the Borrower by facsimile (to both numbers set forth in Section 16.7) or by depositing the same in the United States mail, postage prepaid, for delivery to the Borrower.
(b) Failure to observe, perform and comply with any of the obligations evidenced or secured by a Loan Document, other than as provided in Sections 9.1(a) above; provided that such default has not been cured prior to the expiration of thirty (30) days following the date upon which the Lender gives the Borrower written Notice of Default.
(c) Failure to duly and punctually pay, observe and discharge all Indebtedness and other obligations of the Borrower to any third party, unless the same is being contested in good faith by appropriate proceedings and the Borrower has set aside on its books adequate reserves with respect to such Indebtedness or other obligations.
(d) The discovery by the Lender of any material inaccuracy in any statement, assurance, representation, covenant, warranty, term or condition by the Borrower contained in this Agreement or in any document delivered or to be delivered by or on behalf of the Borrower pursuant to this Agreement, which inaccuracy would result in a Material Adverse Effect (except that inaccuracies in the Borrower's Due Diligence Documents attributable to the fault or neglect of third-parties shall not constitute a breach of this Section 9.1(d))become due, or shall admit in any other Loan Documentwriting his insolvency or his inability to pay his debts generally, or in any other agreement between the Borrower and the Lender.
(e) The filing of shall make a petition by or against the Borrower or any Affiliate seeking relief under the Federal Bankruptcy Code, 11 U.S.C. ss. 101, et seq., and any amendments thereto, or any similar law or regulation, whether federal, state or local, not dismissed within 30 days.
(f) The commencement of a proceeding by or against the Borrower or any Affiliate under any statute or other law providing for an general assignment for the benefit of creditors, the appointment of a receiver, ; or any other similar law proceeding shall be instituted by or regulation, whether federal, state against him seeking to adjudicate hire as bankrupt or local, not dismissed within 30 daysinsolvent.
(gb) The garnishmentShould an Event of Default occur, attachmentBuilder shall have, levy or other similar action taken by or on behalf in addition to the right to charge interest and case work in accordance with the terms of any creditor Section 4 hereof, the right to terminate this Agreement and dispose of the Borrower, any Affiliate, or any Vessel in accordance with the terms of their respective properties which could have a Material Adverse EffectSection 13(c) below and all other remedies permitted by law.
(hc) Any change in control In the event that an Event of the BorrowerDefault occurs and continues for a period of fifteen (15) days, Madison Liquidity Investors 104, MACG from that disclosed in Section 2 of Builder may terminate this Agreement.
9.2 The Lender Agreement by written notice to Buyer and may, at its optionsole discretion, terminate its obligation to make advances either complete the Vessel and sell the same, or sell the Vessel "as is," free of any right or claim of Buyer. Such sale of the LoanVessel by Builder shall be either by public auction or private contract at Builder's sole discretion at such price and on such other terms and conditions as Builder shall deem fit. In the event of such sale of the Vessel, without notice the amount of the sale proceeds received by Builder shall be applied firstly to all expenses attending such sale (including, but not limited to, the cost of preparing, completing and marketing the Vessel and reasonable attorneys' fees) or otherwise incurred by tape Builder as a result of Buyer's default, secondly to the Borrower:payment of all costs and expenses of construction of the Vessel incurred by Builder less the installments, Additional Labor Charges and Additional Materials Charges already paid by Buyer and the compensation to Builder for any reasonable losses due to rescission of this Contract, plus accrued interest on all such amounts at eighteen percent (18%) per annum, and finally to the repayment of Buyer without interest, if any balance remains. If the proceeds of sale are insufficient to pay such total costs and any reasonable losses as aforesaid, Buyer shall promptly pay the deficiency to the Builder upon request.
(ad) upon In addition to the foregoing, Buyer shall be liable for all legal fees and other costs and expenses incurred by Builder by reason of the occurrence and continuance of any Event of Default set forth in subsections 9.1
(a) through 9.1(h) above; or (b) upon the occurrence and continuance exercise of any event which, Builder's remedies with the giving of notice or the lapse of time, or both, would constitute an Event of Default or (C) upon the death or disability of ▇▇▇▇▇ ▇respect thereto.
Appears in 3 contracts
Sources: Vessel Construction Agreement (Lighthouse Fast Ferry Inc), Vessel Construction Agreement (Lighthouse Fast Ferry Inc), Vessel Construction Agreement (Lighthouse Landings Inc)
Events of Default and Remedies. 9.1 SECTION 3.1. Remedies in Case of an Occurrence of an Event of Default The following events occurrence of any event, or the existence of any condition, that is specified as an "Event of Default" under the Indenture or any other Security Document shall constitute an "Event of Default" under this Agreement, the occurrence of which shall entitle the Lender to pursue any and all rights and remedies, legal and equitable, available to it under any Loan Document or otherwisehereunder. The Occurrence of an An Event Default under this Agreement shall constitute a default under each and every other Loan Document. The Lender's rights and remedies are cumulative and may be exercised concurrently or successively from time to time. Any action by the Lender against any property or party shall not serve to release or discharge any other security, property or party in connection with this transaction. The Events of Default are as follows:
(a) Failure to pay the principal or interest on the Borrower's present or future indebtedness to the Lender, whether or not arising pursuant to this Agreement, when and as the same shall be due and payable, whether by acceleration or otherwise; provided that such default has not been cured prior to the expiration of ten (10) days following the date upon which the Lender gives the Borrower written Notice of Default. In this Section 9, Notice of Default shall be deemed to occur if the Collateral Agent should receive at any time following the closing of the transaction a Secretary of State's Report indicating that the Collateral Agent's security interest is not prior to all other security interests or other interests reflected in the report, other than Permitted Collateral Liens. If an Event of Default shall have been given occurred and be continuing, Mortgagee may, but shall not be obligated to, in addition to any other action permitted by law (and not limited in any manner by the remedies contained in the Notes and the Indenture), take one or more of the following actions, to the greatest extent permitted by applicable local law:
3.1.1 By written notice to Mortgagor, the Mortgagee may, and shall, upon the request of the holders of not less than 25% in aggregate principal amount of the outstanding Notes, declare the principal of and accrued interest on, all the Secured Obligations to be due and payable immediately;
3.1.2 Personally, or by its agents or attorneys, (i) enter into and upon all or any part of the Mortgaged Property and exclude Mortgagor, its agents and servants wholly therefrom, (ii) use, operate, manage and control the Premises, the Real Estate Fixtures and the Equipment and conduct the business thereof, (iii) maintain and restore the Mortgaged Property, (iv) make all reasonably necessary or proper repairs, renewals and replacements and such useful Alterations thereto and thereon as Mortgagee may deem advisable, (v) manage, lease and operate the Mortgaged Property and carry on the date business thereof and exercise all rights and powers of personal delivery Mortgagor with respect thereto either in the name of such written notice to a GuarantorMortgagor or otherwise, or (vi) collect and receive all earnings, revenues, rents, issues, profits and income of the Mortgaged Property and any or every part thereof;
3.1.3 With or without entry, personally or by its agents or attorneys, (i) sell the Mortgaged Property and all estate, right, title and interest, claim and demand therein at one or more sales in one or more parcels, in accordance with the provisions of Section 3.2 or (ii) on institute and prosecute proceedings for the date on which a duly authorized representative complete or partial foreclosure of the Borrower acknowledges receipt Lien and security interests created and evidenced hereby; or
3.1.4 Take such steps to protect and enforce its rights whether by action, suit or proceeding at law or in equity for the specific performance of such written noticeany covenant, condition or agreement in the Indenture, the Notes and any other document evidencing or securing the Secured Obligations or in aid of the execution of any power granted in this Mortgage, or (iii) on for any foreclosure hereunder, or for the day after sending such written notice enforcement of any other appropriate legal or equitable remedy or otherwise as Mortgagee shall elect. Notwithstanding anything to the Borrower contrary in this Mortgage, if Mortgagor is in breach of a covenant, obligation or representation qualified by a commonly recognized overnight courier serviceMaterial Adverse Effect, then (i) if such as Federal Express, Purolator, UPS or the like, or (iv) on the third day after sending such written notice breach is due to the Borrower by facsimile (to both numbers set forth in Section 16.7) or by depositing the same in the United States mail, postage prepaid, for delivery to the Borrower.
(b) Failure to observe, perform and comply with any existence of the obligations evidenced or secured by a Loan Document, other than as provided in Sections 9.1(a) above; provided that such default has not been cured prior to the expiration of thirty (30) days following the date upon which the Lender gives the Borrower written Notice of Default.
(c) Failure to duly and punctually pay, observe and discharge all Indebtedness and other obligations of the Borrower to any third party, unless the same is being contested in good faith by appropriate proceedings and the Borrower has set aside on its books adequate reserves with respect to such Indebtedness or other obligations.
(d) The discovery by the Lender of any material inaccuracy in any statement, assurance, representation, covenant, warranty, term or condition by the Borrower contained in this Agreement or in any document delivered or to be delivered by or on behalf of the Borrower pursuant to this Agreement, which inaccuracy would result in a Material Adverse Effect (except that inaccuracies in the Borrower's Due Diligence Documents attributable to the fault or neglect of third-parties shall not constitute a breach of this Section 9.1(d)), or in any other Loan Document, or in any other agreement between the Borrower and the Lender.
(e) The filing of a petition by or against the Borrower or any Affiliate seeking relief under the Federal Bankruptcy Code, 11 U.S.C. ss. 101, et seq., and any amendments thereto, or any similar law or regulation, whether federal, state or local, not dismissed within 30 days.
(f) The commencement of a proceeding by or against the Borrower or any Affiliate under any statute or other law providing for an assignment for the benefit of creditors, the appointment of a receiver, or any other similar law or regulation, whether federal, state or local, not dismissed within 30 days.
(g) The garnishment, attachment, levy or other similar action taken by or on behalf of any creditor of the Borrower, any Affiliate, or any of their respective properties which could have a Material Adverse Effect.
type referred to in clause (hi) Any change in control of the Borrowerdefinition of such term, Madison Liquidity Investors 104, MACG from that disclosed then Mortgagee shall be entitled to those remedies set forth in Section 2 of this Agreement.
9.2 The Lender may, at its option, terminate its obligation to make advances of the Loan, without notice to the Borrower:
(a) Article III upon the occurrence and continuance of any Event of Default set forth in subsections 9.1
(a) through 9.1(h) above; or (b) upon the occurrence and continuance of any event which, with the giving of notice or the lapse of time, or both, would constitute an Event of Default resulting from such breach, and (ii) if such breach is due to the existence of a Material Adverse Effect of the type referred to in clause (ii) of the definition of such term, then (x) Mortgagee's remedies under this Mortgage shall be limited to an action for specific performance with respect to the performance of such covenant or obligation and (Cy) upon the death or disability such breach shall be deemed not to be and not to give rise to an Event of ▇▇▇▇▇ ▇Default.
Appears in 3 contracts
Sources: Mortgage, Assignment of Leases, Security Agreement and Fixture Filing (Blue Steel Capital Corp), Mortgage, Assignment of Leases, Security Agreement and Fixture Filing (Blue Steel Capital Corp), Mortgage, Assignment of Leases, Security Agreement and Fixture Filing (Blue Steel Capital Corp)
Events of Default and Remedies. 9.1 The Termination - Time is of the essence herein and it is understood and agreed that Secured Party may terminate this Agreement, refuse to advance funds hereunder, and declare the aggregate of all Advances outstanding hereunder immediately due and payable upon the occurrence of any of the following events shall constitute (each hereinafter called an "Event of Default" "), and that Debtor's liabilities under this sentence shall constitute additional obligations of Debtor secured under this Agreement, the occurrence of which shall entitle the Lender to pursue any and all rights and remedies, legal and equitable, available to it under any Loan Document or otherwise. The Occurrence of an Event Default under this Agreement shall constitute a default under each and every other Loan Document. The Lender's rights and remedies are cumulative and may be exercised concurrently or successively from time to time. Any action by the Lender against any property or party shall not serve to release or discharge any other security, property or party in connection with this transaction. The Events of Default are as follows:.
(a) Failure Debtor shall fail to pay make any payment to Secured Party, whether constituting the principal amount of any Advance, interest thereon or interest on the Borrower's present or future indebtedness to the Lender, whether or not arising pursuant to this Agreementany other payment due hereunder, when and as due in accordance with the same terms of this Agreement or with any demand permitted to be made by Secured Party under this Agreement or any Promissory Note, or shall fail to pay when due any other amount owing to Secured Party under any other agreement between Secured Party and Debtor, or shall fail in the due performance or compliance with any other term or condition hereof or thereof, or shall be due and payable, whether by acceleration in default in the payment of any liabilities constituting indebtedness for money borrowed or otherwise; provided that such default has not been cured prior the deferred payment of the purchase price of property or a rental payment with respect to property material to the expiration conduct of ten (10) days following the date upon which the Lender gives the Borrower written Notice of Default. In this Section 9, Notice of Default shall be deemed to have been given (i) on the date of personal delivery of such written notice to a Guarantor, or (ii) on the date on which a duly authorized representative of the Borrower acknowledges receipt of such written notice, or (iii) on the day after sending such written notice to the Borrower by a commonly recognized overnight courier service, such as Federal Express, Purolator, UPS or the like, or (iv) on the third day after sending such written notice to the Borrower by facsimile (to both numbers set forth in Section 16.7) or by depositing the same in the United States mail, postage prepaid, for delivery to the Borrower.Debtor's business;
(b) Failure to observe, perform and comply with A tax lien or notice thereof shall have been filed against any of the obligations evidenced Debtor's property or secured by a Loan Documentproceeding in bankruptcy, other than as provided in Sections 9.1(a) above; provided that such default has not been cured prior to the expiration of thirty (30) days following the date upon which the Lender gives the Borrower written Notice of Default.
(c) Failure to duly and punctually pay, observe and discharge all Indebtedness and other obligations of the Borrower to any third party, unless the same is being contested in good faith by appropriate proceedings and the Borrower has set aside on its books adequate reserves with respect to such Indebtedness insolvency or other obligations.
(d) The discovery by the Lender of any material inaccuracy in any statement, assurance, representation, covenant, warranty, term or condition by the Borrower contained in this Agreement or in any document delivered or to receivership shall be delivered by or on behalf of the Borrower pursuant to this Agreement, which inaccuracy would result in a Material Adverse Effect (except that inaccuracies in the Borrower's Due Diligence Documents attributable to the fault or neglect of third-parties shall not constitute a breach of this Section 9.1(d)), or in any other Loan Document, or in any other agreement between the Borrower and the Lender.
(e) The filing of a petition instituted by or against the Borrower Debtor or any Affiliate seeking relief under the Federal Bankruptcy Code, 11 U.S.C. ss. 101, et seq., and any amendments thereto, Debtor's property or any similar law or regulation, whether federal, state or local, not dismissed within 30 days.
(f) The commencement of a proceeding by or against the Borrower or any Affiliate under any statute or other law providing for an assignment shall have been made by Debtor for the benefit of creditors;
(c) In the event that Secured Party deems itself insecure for any reason or the Vehicles are deemed by Secured Party to be in danger of misuse, loss, seizure or confiscation or other disposition not authorized by this Agreement;
(d) Termination of any franchise authorizing Debtor to sell Vehicles;
(e) A misrepresentation by Debtor for the appointment purpose of obtaining credit or an extension of credit or a receiverrefusal by Debtor to execute documents relating to the Collateral and/or Secured Party's security interest therein or to furnish financial information to Secured Party at reasonable intervals or to permit persons designated by Secured Party to examine Debtor's books or records and to make periodic inspections of the Collateral; or
(f) Debtor, without Secured Party's prior written consent, shall guarantee, endorse or otherwise become surety for or upon the obligations of others except as may be done in the ordinary course of Debtor's business, shall transfer or otherwise dispose of any proprietary, partnership or share interest Debtor has in his business, or all or substantially all of the assets thereof, shall enter into any merger or consolidation, if a corporation, or shall make any substantial disbursements or use of funds of Debtor's business, except as may be done in the ordinary course of Debtor's business, or assign this Agreement in whole or in part or any obligation hereunder. Upon the occurrence of an Event of Default, Secured Party may take immediate possession of said Vehicles without demand or further notice and without legal process; and for the purpose and furtherance thereof, Debtor shall, if Secured Party so requests, assemble the Vehicles and make them available to Secured Party at a reasonably convenient place designated by Secured Party and Secured Party shall have the right, and Debtor hereby authorizes and empowers Secured Party to enter upon the premises wherever said Vehicles may be, to remove same. In addition, Secured Party or its assigns shall have all the rights and remedies applicable under the Uniform Commercial Code or under any other similar statute or at common law or regulationin equity or under this Agreement. Such rights and remedies shall be cumulative. Debtor hereby agrees that it shall pay all expenses and reimburse Secured Party for any expenditures, whether federalincluding reasonable attorneys' fees and legal expenses, state or local, not dismissed within 30 days.
(g) The garnishment, attachment, levy or other similar action taken by or on behalf in connection with Secured Party's exercise of any creditor of the Borrower, any Affiliate, or any of their respective properties which could have a Material Adverse Effect.
(h) Any change in control of the Borrower, Madison Liquidity Investors 104, MACG from that disclosed in Section 2 of its rights and remedies under this Agreement.
9.2 The Lender may, at its option, terminate its obligation to make advances of the Loan, without notice to the Borrower:
(a) upon the occurrence and continuance of any Event of Default set forth in subsections 9.1
(a) through 9.1(h) above; or (b) upon the occurrence and continuance of any event which, with the giving of notice or the lapse of time, or both, would constitute an Event of Default or (C) upon the death or disability of ▇▇▇▇▇ ▇.
Appears in 3 contracts
Sources: Security Agreement and Master Credit Agreement (Sonic Automotive Inc), Security Agreement and Master Credit Agreement (Sonic Automotive Inc), Security Agreement and Master Credit Agreement (Sonic Automotive Inc)
Events of Default and Remedies. 9.1 8.1. The entire unpaid principal amount of this Note, together with all accrued interest thereon, shall, at the option of the holder hereof exercised by written notice to the Maker at its principal executive offices, forthwith become and be due and payable if any one or more of the following events shall constitute an (herein called "Event Events of Default" under this Agreement") shall have occurred (for any reason whatsoever and whether such happening shall be voluntary or involuntary or come about or be effected by operation of law or pursuant to or in compliance with any judgment, decree or order of any court or any order, rule or regulation of any administrative or 11 11 governmental body) and be continuing at the occurrence time of which shall entitle the Lender such notice, that is to pursue any and all rights and remedies, legal and equitable, available to it under any Loan Document or otherwise. The Occurrence of an Event Default under this Agreement shall constitute a default under each and every other Loan Document. The Lender's rights and remedies are cumulative and may be exercised concurrently or successively from time to time. Any action by the Lender against any property or party shall not serve to release or discharge any other security, property or party in connection with this transaction. The Events of Default are as followssay:
(a) Failure to pay if default shall be made in the due and punctual payment of the principal or interest on the Borrower's present or future indebtedness to the Lender, whether or not arising pursuant to of this Agreement, Note when and as the same shall be become due and payable, whether at maturity, by acceleration or otherwise;
(b) if default shall be made in the due and punctual payment of any interest on this Note when and as such interest shall become due and payable, and such default shall have continued for a period of 10 days;
(c) if default shall be made in the performance or observance of any covenant, agreement or condition contained in Section 6 hereof;
(d) if default shall be made in the performance or observance of any of the other covenants, agreements or conditions of the Maker contained in this Note, and such default shall have continued for a period of 30 days;
(e) if the Maker or any Subsidiary shall default beyond any period of grace provided with respect thereto in the payment of principal of or interest on any obligation in respect of borrowed money when due, whether by acceleration or otherwise; provided that such or if the Maker or any Subsidiary shall default has not been cured prior to the expiration of ten (10) days following the date upon which the Lender gives the Borrower written Notice of Default. In this Section 9, Notice of Default shall be deemed to have been given (i) on the date of personal delivery of such written notice to a Guarantor, or (ii) on the date on which a duly authorized representative of the Borrower acknowledges receipt of such written notice, or (iii) on the day after sending such written notice to the Borrower by a commonly recognized overnight courier service, such as Federal Express, Purolator, UPS or the like, or (iv) on the third day after sending such written notice to the Borrower by facsimile (to both numbers set forth in Section 16.7) or by depositing the same in the United States mail, postage prepaid, for delivery to the Borrower.
(b) Failure to observe, perform and comply with any of the obligations evidenced performance or secured by a Loan Document, other than as provided in Sections 9.1(a) above; provided that such default has not been cured prior to the expiration of thirty (30) days following the date upon which the Lender gives the Borrower written Notice of Default.
(c) Failure to duly and punctually pay, observe and discharge all Indebtedness and other obligations of the Borrower to any third party, unless the same is being contested in good faith by appropriate proceedings and the Borrower has set aside on its books adequate reserves with respect to such Indebtedness or other obligations.
(d) The discovery by the Lender observance of any material inaccuracy in any statement, assurance, representation, covenant, warrantyother agreement, term or condition by the Borrower contained in this Agreement such obligation or in any document delivered agreement under 12 12 which any such obligation is created, if the effect of any such default is to cause or to be delivered by permit the holder or holders of such obligations (or a trustee on behalf of the Borrower pursuant such holder or holders) to this Agreement, which inaccuracy would result in a Material Adverse Effect (except that inaccuracies in the Borrower's Due Diligence Documents attributable cause such obligation to become due prior to the fault date of its stated maturity, unless such holder or neglect of third-parties holders or trustee shall not constitute have waived such default after its occurrence or unless such holder or holders or trustee shall have failed to give any notice required to create a breach of this Section 9.1(d)), or in any other Loan Document, or in any other agreement between the Borrower and the Lender.
(e) The filing of a petition by or against the Borrower or any Affiliate seeking relief under the Federal Bankruptcy Code, 11 U.S.C. ss. 101, et seq., and any amendments thereto, or any similar law or regulation, whether federal, state or local, not dismissed within 30 days.default thereunder;
(f) The commencement of a proceeding by or against if the Borrower Maker or any Affiliate under Subsidiary shall:
(i) admit in writing its inability to pay its debts generally as they become due;
(ii) file a petition in bankruptcy or a petition to take advantage of any statute or other law providing for insolvency act;
(iii) make an assignment for the benefit of creditors, ;
(iv) consent to the appointment of a receiver, receiver of itself or of the whole or any other similar law or regulationsubstantial part of its property;
(v) on a petition in bankruptcy filed against it, whether federal, state or local, not dismissed within 30 days.be adjudicated a bankrupt; or
(g) The garnishmentif a court of competent jurisdiction shall enter an order, attachmentjudgment, levy or other similar action taken by or on behalf of any creditor decree appointing, without the consent of the BorrowerMaker or any Subsidiary, a receiver of the Maker or any AffiliateSubsidiary or of the whole or any substantial part of its property, or approving a petition filed against it seeking reorganization or arrangement of the Maker or any Subsidiary under the federal bankruptcy laws or any other applicable law or statute of their respective properties which could have a Material Adverse Effect.the United States of America or any State, district or territory thereof, and such order, judgment or decree shall not be vacated or set aside or stayed within 60 days from the date of entry thereof;
(h) Any change in if, under the provisions of any other law for the relief or aid of debtors, any court of competent jurisdiction shall assume custody or control of the BorrowerMaker or any Subsidiary or of the whole or any substantial part of its property and such custody or control shall not be terminated or stayed within 60 days from the date of assumption of such custody or control; or
(i) if final judgment for the payment of money in excess of $50,000 shall be rendered by a court of record against the Maker or any Subsidiary and the Maker or such Subsidiary shall not discharge the same or provide for its discharge in accordance with its terms, Madison Liquidity Investors 104or shall not procure a stay of execution thereon within 60 days 14 14 from the date of entry thereof and within the period during which execution of such judgment shall have been stayed, MACG from that disclosed appeal therefrom, and cause the execution thereof to be stayed during such appeal.
8.2. In case any one or more of the Events of Default specified in Section 2 8.1 hereof shall have occurred and be continuing, the holder of this AgreementNote may proceed to protect and enforce its rights either by suit in equity and/or by action at law, whether for the specific performance of any covenant or agreement contained in this Note or in aid of the exercise of any power granted in this Note, or the holder of this Note may proceed to enforce the payment of all sums due upon this Note or to enforce any other legal or equitable right of the holder of this Note.
9.2 The Lender may, at its option, terminate its obligation to make advances of the Loan, without notice to the Borrower:
(a) 8.3. No remedy herein conferred upon the occurrence and continuance holder hereof is intended to be exclusive of any Event of Default set forth other remedy and each and every such remedy shall be cumulative and shall be in subsections 9.1
(a) through 9.1(h) above; addition to every other remedy given hereunder or (b) upon the occurrence and continuance of any event which, with the giving of notice now or the lapse of time, hereafter existing at law or both, would constitute an Event of Default in equity or (C) upon the death by statute or disability of ▇▇▇▇▇ ▇otherwise.
Appears in 3 contracts
Sources: Subordinated Note (Valley Forge Dental Associates Inc), Subordinated Note (Valley Forge Dental Associates Inc), Subordinated Note (Valley Forge Dental Associates Inc)
Events of Default and Remedies. 9.1 The following events shall constitute an "Event (a) If any one or more of Default" under this Agreement, the occurrence of which shall entitle the Lender to pursue any and all rights and remedies, legal and equitable, available to it under any Loan Document or otherwise. The Occurrence of an Event Default under this Agreement shall constitute a default under each and every other Loan Document. The Lender's rights and remedies are cumulative and may be exercised concurrently or successively from time to time. Any action by the Lender against any property or party shall not serve to release or discharge any other security, property or party in connection with this transaction. The Events of Default are shall occur or shall exist, the Collateral Agent may then or at any time thereafter, so long as follows:
(a) Failure to pay the principal or interest on the Borrower's present or future indebtedness to the Lender, whether or not arising pursuant to this Agreement, when and as the same shall be due and payable, whether by acceleration or otherwise; provided that such default has not been cured prior to shall continue, foreclose the expiration of ten (10) days following lien or security interest in the date upon which the Lender gives the Borrower written Notice of Default. In this Section 9, Notice of Default shall be deemed to have been given (i) on the date of personal delivery of such written notice to a GuarantorCollateral in any way permitted by law, or upon twenty (ii20) on the date on which a duly authorized representative of the Borrower acknowledges receipt of such written notice, or (iii) on the day after sending such days’ prior written notice to the Borrower by a commonly recognized overnight courier servicerelevant Grantor, sell any or all Collateral at private sale at any time or place in one or more sales, at such price or prices and upon such terms, either for cash or on credit, as Federal Expressthe Collateral Agent, Purolatorin its sole discretion, UPS or the likemay elect, or (iv) sell any or all Collateral at public auction, either for cash or on credit, as the third day after sending Collateral Agent, in its sole discretion, may elect, and at any such written notice to sale, the Borrower by facsimile (to both numbers set forth in Section 16.7) Collateral Agent may bid for and become the purchaser of any or by depositing all such Collateral. Pending any such action the same in Collateral Agent may liquidate the United States mail, postage prepaid, for delivery to the BorrowerCollateral.
(b) Failure If any one or more of the Events of Default shall occur or shall exist, the Collateral Agent may then, or at any time thereafter, so long as such default shall continue, grant extensions to, or adjust claims of, or make compromises or settlements with, debtors, guarantors or any other parties with respect to observeCollateral or any securities, perform and comply with guarantees or insurance applying thereon, without notice to or the consent of any Grantor, without affecting each Grantor’s liability under this Agreement or the Notes. Each Grantor waives notice of acceptance, of nonpayment, protest or notice of protest of any Accounts or Chattel Paper, any of the obligations evidenced its contract rights or secured by a Loan Document, Collateral and any other than as provided in Sections 9.1(a) above; provided that such default has not been cured prior notices to the expiration of thirty (30) days following the date upon which the Lender gives the Borrower written Notice of Defaulteach Grantor may be entitled.
(c) Failure to duly and punctually pay, observe and discharge all Indebtedness and other obligations If any one or more of the Borrower Events of Default shall occur or shall exist and be continuing, then in any such event, the Collateral Agent shall have such additional rights and remedies in respect of the Collateral or any portion thereof as are provided by the Code and such other rights and remedies in respect thereof which it may have at law or in equity or under this Agreement, including without limitation the right to enter any third partypremises where Equipment, unless the same is being contested in good faith by appropriate proceedings Inventory and/or Fixtures are located and the Borrower has set aside on its books adequate reserves with respect to such Indebtedness take possession and control thereof without demand or other obligationsnotice and without prior judicial hearing or legal proceedings, which each Grantor expressly waives.
(d) The discovery Collateral Agent shall apply the Proceeds of any sale or liquidation of the Collateral, and, subject to Section 5, any Proceeds received by the Lender Collateral Agent from insurance, first to the payment of any material inaccuracy in any statement, assurance, representation, covenant, warranty, term or condition the reasonable costs and expenses incurred by the Borrower contained Collateral Agent in this Agreement connection with such sale or in any document delivered or collection, including without limitation reasonable attorneys’ fees and legal expenses; second to be delivered by or on behalf the payment of the Borrower pursuant Notes, pro rata, whether on account of principal or interest or otherwise as the Collateral Agent, in its sole discretion, may elect, and then to this Agreementpay the balance, which inaccuracy would result in a Material Adverse Effect (except that inaccuracies in the Borrower's Due Diligence Documents attributable if any, to the fault relevant Grantor or neglect of third-parties as otherwise required by law. If such Proceeds are insufficient to pay the amounts required by law, the Grantors shall not constitute a breach of this Section 9.1(d)), or in be liable for any other Loan Document, or in any other agreement between the Borrower and the Lenderdeficiency.
(e) The filing of a petition by or against Upon the Borrower or any Affiliate seeking relief under the Federal Bankruptcy Code, 11 U.S.C. ss. 101, et seq., and any amendments thereto, or any similar law or regulation, whether federal, state or local, not dismissed within 30 days.
(f) The commencement of a proceeding by or against the Borrower or any Affiliate under any statute or other law providing for an assignment for the benefit of creditors, the appointment of a receiver, or any other similar law or regulation, whether federal, state or local, not dismissed within 30 days.
(g) The garnishment, attachment, levy or other similar action taken by or on behalf occurrence of any creditor Event of Default, each Grantor shall promptly upon written demand by the Collateral Agent assemble the Equipment, Inventory and Fixtures and make them available to the Holders at a place or places to be designated by the Collateral Agent. The rights of the BorrowerCollateral Agent under this paragraph to have the Equipment, any Affiliate, or any of their respective properties which could have a Material Adverse Effect.
(h) Any change in control Inventory and Fixtures assembled and made available to it is of the Borrower, Madison Liquidity Investors 104, MACG from that disclosed in Section 2 essence of this Agreement.
9.2 The Lender Agreement and the Collateral Agent may, at its optionelection, terminate its obligation to make advances of the Loanenforce such right by an action in equity for injunctive relief or specific performance, without notice to the Borrower:
(a) upon the occurrence and continuance requirement of any Event of Default set forth in subsections 9.1
(a) through 9.1(h) above; or (b) upon the occurrence and continuance of any event which, with the giving of notice or the lapse of time, or both, would constitute an Event of Default or (C) upon the death or disability of ▇▇▇▇▇ ▇a bond.
Appears in 3 contracts
Sources: Security Agreement (Rackwise, Inc.), Security Agreement (Boldface Group, Inc.), Security Agreement (Boldface Group, Inc.)
Events of Default and Remedies. 9.1 The following events shall constitute an "Event In the event Lessee or any guarantor of Default" Lessee’s obligation under this Agreement, the occurrence of which Lease shall entitle the Lender to pursue any and all rights and remedies, legal and equitable, available to it under any Loan Document or otherwise. The Occurrence of an Event Default under this Agreement shall constitute a default under each and every other Loan Document. The Lender's rights and remedies are cumulative and may be exercised concurrently or successively from time to time. Any action by the Lender against any property or party shall not serve to release or discharge any other security, property or party in connection with this transaction. The Events of Default are as follows:
(a) Failure fail to pay the principal make any rental or interest on the Borrower's present or future indebtedness to the Lender, whether or not arising pursuant to this Agreement, when and as other payment due hereunder within ten days after the same shall be due and payable, whether by acceleration or otherwise; provided that such default has not been cured prior to the expiration of ten (10) days following the date upon which the Lender gives the Borrower written Notice of Default. In this Section 9, Notice of Default shall be deemed to have been given (i) on the date of personal delivery of such written notice to a Guarantorbecome due, or (iib) on the date on which a duly authorized representative of the Borrower acknowledges receipt of such written noticeadmit its inability to pay its debts, or (iii) on the day after sending such written notice to the Borrower by a commonly recognized overnight courier service, such as Federal Express, Purolator, UPS or the like, or (iv) on the third day after sending such written notice to the Borrower by facsimile (to both numbers set forth in Section 16.7) or by depositing the same in the United States mail, postage prepaid, for delivery to the Borrower.
(b) Failure to observe, perform and comply with any of the obligations evidenced or secured by a Loan Document, other than as provided in Sections 9.1(a) above; provided that such default has not been cured prior to the expiration of thirty (30) days following the date upon which the Lender gives the Borrower written Notice of Default.
(c) Failure to duly and punctually pay, observe and discharge all Indebtedness and other obligations of the Borrower to any third party, unless the same is being contested in good faith by appropriate proceedings and the Borrower has set aside on its books adequate reserves with respect to such Indebtedness or other obligations.
(d) The discovery by the Lender of any material inaccuracy in any statement, assurance, representation, covenant, warranty, term or condition by the Borrower contained in this Agreement or in any document delivered or to be delivered by or on behalf of the Borrower pursuant to this Agreement, which inaccuracy would result in a Material Adverse Effect (except that inaccuracies in the Borrower's Due Diligence Documents attributable to the fault or neglect of third-parties shall not constitute a breach of this Section 9.1(d)), or in any other Loan Document, or in any other agreement between the Borrower and the Lender.
(e) The filing of a petition by or against the Borrower or any Affiliate seeking relief under the Federal Bankruptcy Code, 11 U.S.C. ss. 101, et seq., and any amendments thereto, or any similar law or regulation, whether federal, state or local, not dismissed within 30 days.
(f) The commencement of a proceeding by or against the Borrower or any Affiliate under any statute or other law providing for make an assignment for the benefit of its creditors, or (d) have its leasehold estate taken upon execution or other process of law against, Lessee, except eminent domain, or (e) abandon the appointment Premises during the Term hereof, or (f) have any receiver appointed in any proceeding commenced against it based upon its insolvency and if such receiver is not discharged within ninety (90) days after appointment, or (g) breach or fail to perform any of a receiverthe material agreements, covenants and/or provisions herein or comply with any applicable rule or regulation pertaining to the Building or the Project, other than the agreement to pay rental or any other similar law payment due hereunder, and Lessee fails to use its best efforts to cure such breach or regulation, whether federal, state or local, not dismissed failure within 30 days.
(g) The garnishment, attachment, levy or other similar action taken by or on behalf of any creditor of the Borrower, any Affiliatefifteen days after written notice from Lessor, or any of their respective properties which could have a Material Adverse Effect.
(h) Any change in control any proceedings are filed against Lessee or any guarantor of this lease under the Bankruptcy Code or any similar provisions of any future federal bankruptcy law, or (i) fail to vacate the Premises immediately upon the expiration of the Borrower, Madison Liquidity Investors 104, MACG from that disclosed in Section 2 Term or the earlier termination of this Agreement.
9.2 The Lender mayLease, at its optionby lapse of time or otherwise; then Lessor, terminate its obligation to make advances of in any such event(s), shall have the Loan, without notice to the Borroweroption to:
(aI) upon the occurrence and continuance of any Event of Default set forth in subsections 9.1Sue for rents as they become due;
(aII) through 9.1(hTerminate this Lease, resume possession of the Premises (together with all additions, alterations, fixtures and improvements thereto) above; for its own account and recover immediately from Lessee any and all sums and damages for violation of Lessee’s obligations hereunder in existence or (b) upon due at the occurrence time of termination and continuance of any event which, with the giving of notice or the lapse of time, or both, would constitute an Event of Default or (C) upon the death or disability of damages for L▇▇▇▇▇ ▇’s default in an amount equal to the difference between the Rent for which provision is made in this Lease and fair rental value of the Premises for the remainder of the Lease term, together with all other charges, rental payments, costs and expenses herein agreed to be paid by L▇▇▇▇▇, all actual and verifiable costs and expenses of Lessor in connection with any attempts to re-lease or relet the Premises (including, but not limited to, broker’s fees, advertising costs and cleaning expenses), the costs of recovering the Premises, and the costs of repairs and renovations reasonably necessary in connection with any re-leasing or reletting.
(III) Resume possession and re-lease or re-rent the Premises for the remainder of the Lease term for the account of Lessee and recover from Lessee at the end of the Lease term or at the time each payment of rent becomes due under this Lease (adjusted to present value), as the Lessor may elect, the difference between the rent for which provision is made in this Lease and the rent received on the releasing or re-renting, together with all costs and expenses of Lessor in connection with such re-leasing or re-rental and collection of rent and the cost of all repairs or renovations reasonably necessary in connection with the re-leasing or re-rental, and if this option is exercised, Lessor shall, in addition, be entitled to recover from Lessee immediately any other damages occasioned by or resulting from the abandonment or a breach or default other than a default in the payment of rent;
(IV) Accelerate the whole or any part of Rent, Additional Rent and Operating Costs for the entire unexpired balance of the Term, as well as all other charges, payments, costs and expenses to be paid by Lessee hereunder, including but not limited to damages for violation of L▇▇▇▇▇’s obligations hereunder in existence at the time of acceleration, so that all sums due and payable under this Lease will be treated as payable in advance on the date of acceleration and this Lease will remain in effect. For the purposes of determining the amount due upon acceleration, Rent, Additional Rent and L▇▇▇▇▇’s pro rata share of Operating Costs shall be treated as fixed at the levels in effect on the date of acceleration for the remaining term of this Lease; but to the extent required by law, the total amount so accelerated will be reduced to present value; or
(V) Without terminating this Lease, enter upon the Premises, without being liable for prosecution or any claim for damages therefore (whether caused by the negligence of Lessor or otherwise), and do whatever Lessee is obligated to do under the terms of this Lease, in which event Lessee shall reimburse Lessor on demand for any expenses which Lessor may incur in thus effecting compliance with the terms of this Lease. Notwithstanding the foregoing, with respect to re-lease or re-renting the Premises, Lessor and Lessee agree that Lessor shall only be required to use the same efforts Lessor then uses to lease other properties Lessor owns or manages (or if the Premises is then managed for Lessor, then Lessor shall instruct such manager to use the same efforts such manager then uses to lease other space or properties which its owns or manages); provided, however, that Lessor (or its manager) shall not be required to give any preference or priority to the showing or leasing of the Premises over any other space that Lessor (or its manager) may be leasing or have available and may place a suitable prospective tenant in any such available space regardless of when such alternative space becomes available; provided, further, that Lessor shall not be required to observe any instruction given by Lessee about such re-letting or accept any tenant unless such offered tenant has a creditworthiness acceptable to Lessor, leases the entire Premises, agrees to use the Premises in a manner consistent with the Lease, and leases the Premises at the same or greater rent, for no more than the current term and on the same terms and conditions of this Lease without the expenditure by lessor for tenant improvements or broker’s commissions. The remedies for which provision is made in this Article shall not be exclusive and in addition thereto Lessor may pursue such other remedies as are now or hereinafter provided by law, equity or statue in the event of any breach, default or abandonment by L▇▇▇▇▇.
Appears in 3 contracts
Sources: Commercial Lease (Vocodia Holdings Corp), Commercial Lease (Vocodia Holdings Corp), Commercial Lease (Vocodia Holdings Corp)
Events of Default and Remedies. 9.1 The following events Securities shall constitute have the Events of Default as set forth in Section 5.01 of the Indenture. Subject to certain limitations in the Indenture, if an "Event of Default occurs and is continuing, the Trustee by notice to the Company or the holders of at least 25% in aggregate principal amount of the Outstanding Securities by notice to the Company and the Trustee may declare all amounts payable on the Securities (including any Additional Payments) to be due and payable immediately; provided that, if the Property Trustee is the sole Holder of the Security and if upon an Event of Default" under this Agreement, the occurrence Trustee or the holder of which shall entitle not less than 25% in aggregate principal amount of the Lender then outstanding Securities fail to pursue any and all rights and remedies, legal and equitable, available to it under any Loan Document or otherwise. The Occurrence of an Event Default under this Agreement shall constitute a default under each and every other Loan Document. The Lender's rights and remedies are cumulative and may be exercised concurrently or successively from time to time. Any action by the Lender against any property or party shall not serve to release or discharge any other security, property or party in connection with this transaction. The Events of Default are as follows:
(a) Failure to pay declare the principal or interest on of all the Borrower's present or future indebtedness Securities to the Lender, whether or not arising pursuant to this Agreement, when and as the same shall be immediately due and payable, whether the holders of at least 25% in aggregate liquidation amount of Preferred Securities then outstanding shall have such right by acceleration or otherwise; provided that such default has not been cured prior a notice in writing to the expiration Company and the Trustee; and upon any such declaration such principal and all accrued interest shall become immediately due and payable; and provided further that the payment of ten (10) days following principal and interest on such Securities shall remain subordinated to the date upon which extent provided in the Lender gives Indenture. In the Borrower written Notice case of an Event of Default. In this Section 9, Notice the holders of Default shall be deemed to have been given (i) on the date of personal delivery of such written notice to a Guarantor, or (ii) on the date on which a duly authorized representative majority in principal amount of the Borrower acknowledges receipt of such written notice, or (iii) on the day after sending such Outstanding Securities by written notice to the Borrower by a commonly recognized overnight courier service, such as Federal Express, Purolator, UPS Trustee may rescind an acceleration and its consequences if the rescission would not conflict with any judgment or decree and if all existing Events of Default have been cured or waived except nonpayment of principal or interest that has become due solely because of the acceleration. Holders may not enforce the Indenture or the like, or (iv) on the third day after sending such written notice to the Borrower by facsimile (to both numbers set forth in Section 16.7) or by depositing the same in the United States mail, postage prepaid, for delivery to the Borrower.
(b) Failure to observe, perform and comply with any of the obligations evidenced or secured by a Loan Document, other than Securities except as provided in Sections 9.1(a) above; provided that such default has not been cured prior the Indenture. Subject to certain limitations, holders of a majority in principal amount of the then outstanding Securities issued under the Indenture may direct the Trustee in its exercise of any trust or power. The Company must furnish annually compliance certificates to the expiration Trustee. The above description of thirty (30) days following Events of Default and remedies is qualified by reference to, and subject in its entirety by, the date upon which the Lender gives the Borrower written Notice of Default.
(c) Failure to duly and punctually pay, observe and discharge all Indebtedness and other obligations of the Borrower to any third party, unless the same is being contested in good faith by appropriate proceedings and the Borrower has set aside on its books adequate reserves with respect to such Indebtedness or other obligations.
(d) The discovery by the Lender of any material inaccuracy in any statement, assurance, representation, covenant, warranty, term or condition by the Borrower more complete description thereof contained in this Agreement or in any document delivered or to be delivered by or on behalf of the Borrower pursuant to this Agreement, which inaccuracy would result in a Material Adverse Effect (except that inaccuracies in the Borrower's Due Diligence Documents attributable to the fault or neglect of third-parties shall not constitute a breach of this Section 9.1(d)), or in any other Loan Document, or in any other agreement between the Borrower and the LenderIndenture.
(e) The filing of a petition by or against the Borrower or any Affiliate seeking relief under the Federal Bankruptcy Code, 11 U.S.C. ss. 101, et seq., and any amendments thereto, or any similar law or regulation, whether federal, state or local, not dismissed within 30 days.
(f) The commencement of a proceeding by or against the Borrower or any Affiliate under any statute or other law providing for an assignment for the benefit of creditors, the appointment of a receiver, or any other similar law or regulation, whether federal, state or local, not dismissed within 30 days.
(g) The garnishment, attachment, levy or other similar action taken by or on behalf of any creditor of the Borrower, any Affiliate, or any of their respective properties which could have a Material Adverse Effect.
(h) Any change in control of the Borrower, Madison Liquidity Investors 104, MACG from that disclosed in Section 2 of this Agreement.
9.2 The Lender may, at its option, terminate its obligation to make advances of the Loan, without notice to the Borrower:
(a) upon the occurrence and continuance of any Event of Default set forth in subsections 9.1
(a) through 9.1(h) above; or (b) upon the occurrence and continuance of any event which, with the giving of notice or the lapse of time, or both, would constitute an Event of Default or (C) upon the death or disability of ▇▇▇▇▇ ▇.
Appears in 3 contracts
Sources: Indenture (Chemed Capital Trust), Indenture (Chemed Corp), Indenture (Carriage Services Inc)
Events of Default and Remedies. 9.1 (a) The following events occurrence of any event or the existence of any condition which is specified as an “Event of Default” under the Credit Agreement shall constitute an "“Event of Default" under this Agreement, the occurrence of which shall entitle the Lender to pursue any and all rights and remedies, legal and equitable, available to it under any Loan Document or otherwise. The Occurrence of an Event Default under this Agreement shall constitute a default under each and every other Loan Document. The Lender's rights and remedies are cumulative and may be exercised concurrently or successively from time to time. Any action by the Lender against any property or party shall not serve to release or discharge any other security, property or party in connection with this transaction. The Events of Default are as follows:
(a) Failure to pay the principal or interest on the Borrower's present or future indebtedness to the Lender, whether or not arising pursuant to this Agreement, when and as the same shall be due and payable, whether by acceleration or otherwise; provided that such default has not been cured prior to the expiration of ten (10) days following the date upon which the Lender gives the Borrower written Notice of Default. In this Section 9, Notice of Default shall be deemed to have been given (i) on the date of personal delivery of such written notice to a Guarantor, or (ii) on the date on which a duly authorized representative of the Borrower acknowledges receipt of such written notice, or (iii) on the day after sending such written notice to the Borrower by a commonly recognized overnight courier service, such as Federal Express, Purolator, UPS or the like, or (iv) on the third day after sending such written notice to the Borrower by facsimile (to both numbers set forth in Section 16.7) or by depositing the same in the United States mail, postage prepaid, for delivery to the Borrower” hereunder.
(b) Failure Upon the occurrence and during the continuation of any Event of Default, the Agent shall have, in addition to observeall other rights provided herein or by law, perform the rights and comply remedies of a secured party under the UCC (regardless of whether the UCC is the law of the jurisdiction where the rights or remedies are asserted and regardless of whether the UCC applies to the affected Collateral), and further the Agent may, without demand and, to the extent permitted by applicable law, without advertisement, notice, hearing or process of law, all of which each Debtor hereby waives to the extent permitted by applicable law, at any time or times, sell and deliver any or all Collateral held by or for it at public or private sale, at any securities exchange or broker’s board or at the Agent’s office or elsewhere, for cash, upon credit or otherwise, at such prices and upon such terms as the Agent deems advisable, in its discretion. In the exercise of any such remedies, the Agent may sell the Collateral as a unit even though the sales price thereof may be in excess of the amount remaining unpaid on the Secured Obligations. Also, if less than all the Collateral is sold, the Agent shall have no duty to marshal or apportion the part of the Collateral so sold as between the Debtors, or any of them, but may sell and deliver any or all of the Collateral without regard to which of the Debtors are the owners thereof. In addition to all other sums due any Secured Creditor hereunder, each Debtor shall pay the Secured Creditors all reasonable costs and expenses incurred by the Secured Creditors, including reasonable attorneys’ fees and court costs, in obtaining, liquidating or enforcing payment of Collateral or the Secured Obligations or in the prosecution or defense of any action or proceeding by or against any Secured Creditor or any Debtor concerning any matter arising out of or connected with this Agreement or the Collateral or the Secured Obligations, including, without limitation, any of the obligations evidenced foregoing arising in, arising under or secured by related to a Loan Documentcase under the United States Bankruptcy Code (or any successor statute). Any requirement of reasonable notice shall be met if such notice is personally served on or mailed, other than as provided in Sections 9.1(a) above; provided that such default has not been cured prior postage prepaid, to the expiration Debtors in accordance with Section 13(b) hereof at least 10 days before the time of thirty (30) days following sale or other event giving rise to the date upon requirement of such notice. The Agent shall not be obligated to make any sale or other disposition of the Collateral regardless of notice having been given. Any Secured Creditor may be the purchaser at any such sale. Each Debtor hereby waives all of its rights of redemption from any such sale. The Agent may postpone or cause the postponement of the sale of all or any portion of the Collateral by announcement at the time and place of such sale, and such sale may, without further notice, be made at the time and place to which the Lender gives sale was postponed or the Borrower written Notice Agent may further postpone such sale by announcement made at such time and place. The Agent has no obligation to prepare the Collateral for sale. The Agent may sell or otherwise dispose of Defaultthe Collateral without giving any warranties as to the Collateral or any part thereof, including disclaimers of any warranties of title or the like, and each Debtor acknowledges and agrees that the absence of such warranties shall not render the disposition commercially unreasonable.
(c) Failure Without in any way limiting the foregoing, upon the occurrence and during the continuation of any Event of Default hereunder, in addition to duly all other rights provided herein or by law, (i) the Agent shall have the right to take physical possession of any and punctually pay, observe and discharge all Indebtedness and other obligations of the Borrower Collateral and anything found therein, the right for that purpose to enter without legal process any third partypremises where the Collateral may be found (provided such entry be done lawfully), unless the same is being contested in good faith by appropriate proceedings and the Borrower has set aside right to maintain such possession on its books adequate reserves with respect the relevant Debtor’s premises or to remove the Collateral or any part thereof to such Indebtedness or other obligationsplaces as the Agent may desire and (ii) each Debtor shall, upon the Agent’s demand, promptly assemble the Collateral and make it available to the Agent at a place reasonably designated by the Agent. If the Agent exercises its right to take possession of the Collateral, each Debtor shall also at its expense perform any and all other steps reasonably requested by the Agent to preserve and protect the security interest hereby granted in the Collateral, such as placing and maintaining signs indicating the security interest of the Agent, appointing overseers for the Collateral and maintaining Collateral records.
(d) The discovery by powers conferred upon the Lender Secured Creditors hereunder are solely to protect their interest in the Collateral and shall not impose on them any duty to exercise such powers. The Agent shall be deemed to have exercised reasonable care in the custody and preservation of the Collateral in its possession or control if such Collateral is accorded treatment substantially equivalent to that which the Agent accords its own property, consisting of similar type assets. This Agreement constitutes an assignment of rights only and not an assignment of any material inaccuracy duties or obligations of the Debtors in any statement, assurance, representation, covenant, warranty, term or condition by the Borrower contained in this Agreement or in any document delivered or to be delivered by or on behalf of the Borrower pursuant to this Agreement, which inaccuracy would result in a Material Adverse Effect (except that inaccuracies in the Borrower's Due Diligence Documents attributable way related to the fault or neglect of third-parties shall not constitute a breach of this Section 9.1(d))Collateral, or in any other Loan Document, or in any other agreement between the Borrower and the LenderAgent shall have no duty or obligation to discharge any such duty or obligation. Neither any Secured Creditor nor any party acting as attorney for any Secured Creditor shall be liable for any acts or omissions or for any error of judgment or mistake of fact or law other than such person’s gross negligence or willful misconduct.
(e) The filing of a petition Failure by the Agent to exercise any right, remedy or against the Borrower or any Affiliate seeking relief option under the Federal Bankruptcy Code, 11 U.S.C. ss. 101, et seq., and any amendments thereto, or any similar law or regulation, whether federal, state or local, not dismissed within 30 days.
(f) The commencement of a proceeding by or against the Borrower or any Affiliate under any statute or other law providing for an assignment for the benefit of creditors, the appointment of a receiver, this Agreement or any other similar law agreement between any Debtor and the Agent or regulationprovided by law, whether federalor delay by the Agent in exercising the same, state or localshall not operate as a waiver; and no waiver shall be effective unless it is in writing, signed by the party against whom such waiver is sought to be enforced and then only to the extent specifically stated. The rights and remedies of the Secured Creditors under this Agreement shall be cumulative and not dismissed within 30 days.
(g) The garnishment, attachment, levy or other similar action taken by or on behalf exclusive of any creditor of the Borrower, other right or remedy which any Affiliate, or any of their respective properties which could have a Material Adverse Effect.
(h) Any change in control of the Borrower, Madison Liquidity Investors 104, MACG from that disclosed in Section 2 Secured Creditor may have. For purposes of this Agreement.
9.2 The Lender may, at its option, terminate its obligation to make advances of the Loan, without notice to the Borrower:
(a) upon the occurrence and continuance of any Event of Default set forth in subsections 9.1
(a) through 9.1(h) above; or (b) upon the occurrence and continuance of any event which, with the giving of notice or the lapse of time, or both, would constitute an Event of Default or (C) upon shall be construed as continuing after its occurrence until the death or disability of ▇▇▇▇▇ ▇same is waived in writing by the Agent.
Appears in 2 contracts
Sources: Security Agreement (Unified Western Grocers Inc), Security Agreement (Unified Western Grocers Inc)
Events of Default and Remedies. 9.1 8.1. The following events occurrence of an Event of Default, as defined in the Credit Agreement, shall constitute an "Event of Default" under this Agreement, the occurrence of which shall entitle the Lender to pursue any and all rights and remedies, legal and equitable, available to it under any Loan Document or otherwise.
8.2. The Occurrence Administrative Agent, for the benefit of an Event Default under this Agreement the Lenders, shall constitute a default under each and every other Loan Document. The Lender's at all times have the rights and remedies are cumulative and may be exercised concurrently or successively of a secured party under the U.C.C. as in effect from time to time. Any action by the Lender against any property or party shall not serve to release or discharge any other security, property or party in connection with this transaction. The Events of Default are as follows:
(a) Failure to pay the principal or interest on the Borrower's present or future indebtedness addition to the Lender, whether or not arising pursuant to rights and remedies of a secured party provided elsewhere within this Agreement, when and as the same shall be due and payable, whether by acceleration any Note or otherwise; provided that such default has not been cured prior to the expiration of ten (10) days following the date upon which the Lender gives the Borrower written Notice of Default. In this Section 9, Notice of Default shall be deemed to have been given (i) on the date of personal delivery of such written notice to a Guarantor, or (ii) on the date on which a duly authorized representative of the Borrower acknowledges receipt of such written notice, or (iii) on the day after sending such written notice to the Borrower by a commonly recognized overnight courier service, such as Federal Express, Purolator, UPS or the like, or (iv) on the third day after sending such written notice to the Borrower by facsimile (to both numbers set forth in Section 16.7) or by depositing the same in the United States mail, postage prepaid, for delivery to the Borrower.
(b) Failure to observe, perform and comply with any of the obligations evidenced or secured by a Loan Document, other than as provided in Sections 9.1(a) above; provided that such default has not been cured prior to the expiration of thirty (30) days following the date upon which the Lender gives the Borrower written Notice of Default.
(c) Failure to duly and punctually pay, observe and discharge all Indebtedness and other obligations of the Borrower to any third party, unless the same is being contested in good faith by appropriate proceedings and the Borrower has set aside on its books adequate reserves with respect to such Indebtedness or other obligations.
(d) The discovery by the Lender of any material inaccuracy in any statement, assurance, representation, covenant, warranty, term or condition by the Borrower contained in this Agreement or in any document delivered or to be delivered by or on behalf of the Borrower pursuant to this Agreement, which inaccuracy would result in a Material Adverse Effect (except that inaccuracies in the Borrower's Due Diligence Documents attributable to the fault or neglect of third-parties shall not constitute a breach of this Section 9.1(d)), or in any other Loan Document, or otherwise provided in any other agreement between the Borrower and the Lenderlaw or equity.
(e) 8.3. The filing of a petition by or against Pledgor expressly acknowledges that the Borrower or any Affiliate seeking relief under the Federal Bankruptcy CodeAdministrative Agent, 11 U.S.C. ss. 101, et seq., and any amendments thereto, or any similar law or regulation, whether federal, state or local, not dismissed within 30 days.
(f) The commencement of a proceeding by or against the Borrower or any Affiliate under any statute or other law providing for an assignment for the benefit of creditors, the appointment of a receiver, or any other similar law or regulation, whether federal, state or local, not dismissed within 30 days.
(g) The garnishment, attachment, levy or other similar action taken by or on behalf of any creditor the Lenders, shall record this Agreement with the USCO and the USPTO, as appropriate. Contemporaneously herewith, the Pledgor shall execute and deliver to the Administrative Agent the Assignment, which Assignment shall have no force and effect and shall be held by the Administrative Agent in escrow until the occurrence of an Event of Default; provided, that, anything herein to the contrary notwithstanding, the security interest and collateral assignment granted herein shall be effective as of the Borrower, any Affiliate, or any of their respective properties which could have a Material Adverse Effect.
(h) Any change in control of the Borrower, Madison Liquidity Investors 104, MACG from that disclosed in Section 2 date of this Agreement. After the occurrence of an Event of Default, the Assignment shall immediately take effect upon certification of such fact by an authorized officer of the Administrative Agent in the form reflected on the face of the Assignment and the Administrative Agent may, in its sole discretion, record the Assignment with the USCO and the USPTO, as appropriate.
9.2 The Lender may, at its option, terminate its obligation to make advances of the Loan, without notice to the Borrower:
(a) upon the occurrence and continuance of any Event of Default set forth in subsections 9.1
(a) through 9.1(h) above; or (b) upon the occurrence and continuance of any event which, with the giving of notice or the lapse of time, or both, would constitute 8.4. If an Event of Default shall occur, the Pledgor irrevocably authorizes and empowers the Administrative Agent, on behalf of the Lenders, to terminate the Pledgor’s use of the Collateral and to exercise such rights and remedies as allowed by law. Without limiting the generality of the foregoing, after any delivery or taking of possession of the Collateral, or any thereof, pursuant to this Agreement, then, with or without resort to the Pledgor or any other Person or property, all of which the Pledgor hereby waives, and upon such terms and in such manner as the Administrative Agent may deem advisable, the Administrative Agent, on behalf of the Lenders, in its sole discretion, may sell, assign, transfer and deliver any of the Collateral, together with the associated goodwill, or any interest that the Pledgor may have therein, at any time, or from time to time. No prior notice need be given to the Pledgor or to any other Person in the case of any sale of Collateral that the Administrative Agent determines to be declining speedily in value or that is customarily sold in any recognized market, but in any other case the Administrative Agent shall give the Pledgor no fewer than ten days prior notice of either the time and place of any public sale of the Collateral or of the time after which any private sale or other intended disposition thereof is to be made. The Pledgor waives advertisement of any such sale and (Cexcept to the extent specifically required by the preceding sentence) upon waives notice of any kind in respect of any such sale. At any such public sale, the death Administrative Agent or disability any Lender may purchase the Collateral, or any part thereof, free from any right of ▇▇▇▇▇ ▇redemption, all of which rights the Pledgor hereby waives and releases. After deducting all Related Expenses, and after paying all claims, if any, secured by liens having precedence over this Agreement, the Administrative Agent may apply the net proceeds of each such sale to or toward the payment of the Secured Obligations, whether or not then due, in such order and by such division as the Administrative Agent, in its sole discretion, may deem advisable. Any excess, to the extent permitted by law, shall be paid to the Pledgor, and the obligors on the Secured Obligations shall remain liable for any deficiency.
Appears in 2 contracts
Sources: Intellectual Property Security Agreement (ZAGG Inc), Intellectual Property Security Agreement (ZAGG Inc)
Events of Default and Remedies. 9.1 The following events shall constitute If an "Event of Default" under this AgreementDefault (other than an Event of Default specified in clauses (10) and (11) of Section 6.1 of the Indenture) occurs and is continuing, all outstanding Dollar Notes will become due and payable immediately without further action or notice. If any other Event of Default occurs and is continuing, the occurrence Trustee or the Holders of which shall entitle at least 25% in aggregate principal amount of the Lender outstanding Notes may declare all the Notes to pursue any and all rights and remedies, legal and equitable, available to it under any Loan Document or otherwise. The Occurrence of an Event Default under this Agreement shall constitute a default under each and every other Loan Document. The Lender's rights and remedies are cumulative and may be exercised concurrently or successively from time to time. Any action by the Lender against any property or party shall not serve to release or discharge any other security, property or party in connection with this transaction. The Events of Default are as follows:
(a) Failure to pay the principal or interest on the Borrower's present or future indebtedness to the Lender, whether or not arising pursuant to this Agreement, when and as the same shall be due and payablepayable immediately in the manner and with the effect provided in the Indenture. Subject to certain limitations, whether by acceleration Holders of a majority in aggregate principal amount of the then outstanding Notes may direct the Trustee in its exercise of any trust or otherwisepower. The Trustee may withhold from Holders of the Notes notice of any continuing Default or Event of Default if it determines that withholding notice is in their interest, except a Default or Event of Default relating to the payment of principal, interest or premium, if any. Subject to the provisions of the Indenture relating to the duties of the Trustee, in case an Event of Default occurs and is continuing, the Trustee will be under no obligation to exercise any of the rights or powers under the Indenture at the request or direction of any Holders of Notes unless such Holders have offered to the Trustee indemnity or security satisfactory to it against any loss, liability or expense. Except to enforce the right to receive payment of principal, premium, if any, or interest, when due, no Holder of a Note may pursue any remedy with respect to the Indenture or the Notes unless: (A) such Holder has previously given the Trustee notice that an Event of Default is continuing; provided that (B) Holders of at least 25% in aggregate principal amount of the then outstanding Notes have requested the Trustee to pursue the remedy; (C) such default Holders have offered the Trustee security or indemnity satisfactory to it against any loss, liability or expense; (D) the Trustee has not been cured prior to complied with such request within 60 days after the expiration of ten (10) days following the date upon which the Lender gives the Borrower written Notice of Default. In this Section 9, Notice of Default shall be deemed to have been given (i) on the date of personal delivery of such written notice to a Guarantor, or (ii) on the date on which a duly authorized representative receipt of the Borrower acknowledges receipt request and the offer of security or indemnity; and (E) Holders of a majority in aggregate principal amount of the then outstanding Notes have not given the Trustee a direction inconsistent with such written notice, or (iii) on request within such 60-day period. The Holders of a majority in aggregate principal amount of the day after sending such written then outstanding Notes by notice to the Borrower by a commonly recognized overnight courier serviceTrustee may, such as Federal Express, Purolator, UPS or the like, or (iv) on the third day after sending such written notice to the Borrower by facsimile (to both numbers set forth in Section 16.7) or by depositing the same in the United States mail, postage prepaid, for delivery to the Borrower.
(b) Failure to observe, perform and comply with any of the obligations evidenced or secured by a Loan Document, other than as provided in Sections 9.1(a) above; provided that such default has not been cured prior to the expiration of thirty (30) days following the date upon which the Lender gives the Borrower written Notice of Default.
(c) Failure to duly and punctually pay, observe and discharge all Indebtedness and other obligations of the Borrower to any third party, unless the same is being contested in good faith by appropriate proceedings and the Borrower has set aside on its books adequate reserves with respect to such Indebtedness or other obligations.
(d) The discovery by the Lender of any material inaccuracy in any statement, assurance, representation, covenant, warranty, term or condition by the Borrower contained in this Agreement or in any document delivered or to be delivered by or on behalf of the Borrower pursuant to this Agreement, which inaccuracy would result in a Material Adverse Effect (except that inaccuracies in the Borrower's Due Diligence Documents attributable to the fault or neglect Holders of third-parties shall not constitute a breach of this Section 9.1(d)), or in any other Loan Document, or in any other agreement between the Borrower and the Lender.
(e) The filing of a petition by or against the Borrower or any Affiliate seeking relief under the Federal Bankruptcy Code, 11 U.S.C. ss. 101, et seq., and any amendments thereto, or any similar law or regulation, whether federal, state or local, not dismissed within 30 days.
(f) The commencement of a proceeding by or against the Borrower or any Affiliate under any statute or other law providing for an assignment for the benefit of creditors, the appointment of a receiver, or any other similar law or regulation, whether federal, state or local, not dismissed within 30 days.
(g) The garnishment, attachment, levy or other similar action taken by or on behalf of any creditor all of the BorrowerNotes, rescind an acceleration or waive any Affiliate, existing Default or any of their respective properties which could have a Material Adverse Effect.
(h) Any change in control of the Borrower, Madison Liquidity Investors 104, MACG from that disclosed in Section 2 of this Agreement.
9.2 The Lender may, at its option, terminate its obligation to make advances of the Loan, without notice to the Borrower:
(a) upon the occurrence and continuance of any Event of Default set forth in subsections 9.1
(a) through 9.1(h) above; and its consequences under the Indenture except a continuing Default or (b) upon the occurrence and continuance of any event which, with the giving of notice or the lapse of time, or both, would constitute an Event of Default in the payment of interest or (C) upon premium, if any, on, or the death or disability of ▇▇▇▇▇ ▇principal of, the Notes.
Appears in 2 contracts
Sources: Indenture (CEDC Finance Corp LLC), Indenture (CEDC Finance Corp LLC)
Events of Default and Remedies. 9.1 The following events shall constitute an "Event (a) If any one or more of Default" under this Agreement, the occurrence of which shall entitle the Lender to pursue any and all rights and remedies, legal and equitable, available to it under any Loan Document or otherwise. The Occurrence of an Event Default under this Agreement shall constitute a default under each and every other Loan Document. The Lender's rights and remedies are cumulative and may be exercised concurrently or successively from time to time. Any action by the Lender against any property or party shall not serve to release or discharge any other security, property or party in connection with this transaction. The Events of Default are shall occur or shall exist, the Collateral Agent may then or at any time thereafter, so long as follows:
(a) Failure to pay the principal or interest on the Borrower's present or future indebtedness to the Lender, whether or not arising pursuant to this Agreement, when and as the same shall be due and payable, whether by acceleration or otherwise; provided that such default has not been cured prior to shall continue, foreclose the expiration of ten lien or security interest in the Collateral in any way permitted by law, or upon fifteen (1015) days following the date upon which the Lender gives the Borrower written Notice of Default. In this Section 9, Notice of Default shall be deemed to have been given (i) on the date of personal delivery of such written notice to a Guarantor, or (ii) on the date on which a duly authorized representative of the Borrower acknowledges receipt of such written notice, or (iii) on the day after sending such prior written notice to the Borrower by a commonly recognized overnight courier serviceBorrower, sell any or all Collateral at private sale at any time or place in one or more sales, at such price or prices and upon such terms, either for cash or on credit, as Federal Expressthe Collateral Agent, Purolatorin its sole discretion, UPS or the likemay elect, or (iv) sell any or all Collateral at public auction, either for cash or on credit, as the third day after sending Collateral Agent, in its sole discretion, may elect, and at any such written notice to sale, the Borrower by facsimile (to both numbers set forth in Section 16.7) Collateral Agent may bid for and become the purchaser of any or by depositing all such Collateral. Pending any such action the same in Collateral Agent may liquidate the United States mail, postage prepaid, for delivery to the BorrowerCollateral.
(b) Failure If any one or more of the Events of Default shall occur or shall exist, the Collateral Agents may then, or at any time thereafter, so long as such default shall continue, grant extensions to, or adjust claims of, or make compromises or settlements with, debtors, guarantors or any other parties with respect to observeCollateral or any securities, perform and comply with guarantees or insurance applying thereon, without notice to or the consent of the Borrower, without affecting the Borrower’s liability under this Agreement or the Note. The Borrower waives notice of acceptance, of nonpayment, protest or notice of protest of any Accounts or Chattel Paper, any of the obligations evidenced its contract rights or secured by a Loan Document, Collateral and any other than as provided in Sections 9.1(a) above; provided that such default has not been cured prior notices to the expiration of thirty (30) days following the date upon which the Lender gives the Borrower written Notice of Defaultmay be entitled.
(c) Failure to duly and punctually pay, observe and discharge all Indebtedness and other obligations If any one or more of the Borrower Events of Default shall occur or shall exist and be continuing, then in any such event, the Collateral Agent shall have such additional rights and remedies in respect of the Collateral or any portion thereof as are provided by the Code and such other rights and remedies in respect thereof which it may have at law or in equity or under this Agreement, including without limitation the right to enter any third partypremises where Equipment, unless the same is being contested in good faith by appropriate proceedings Inventory and/or Fixtures are located and take possession and control thereof without demand or notice and without prior judicial hearing or legal proceedings, which the Borrower has set aside on its books adequate reserves with respect to such Indebtedness or other obligationsexpressly waives.
(d) The discovery Collateral Agent shall apply the Proceeds of any sale or liquidation of the Collateral, and, subject to Section 5, any Proceeds received by the Lender Collateral Agent from insurance, first to the payment of any material inaccuracy in any statement, assurance, representation, covenant, warranty, term or condition the reasonable costs and expenses incurred by the Borrower contained Collateral Agent in this Agreement connection with such sale or in any document delivered or collection, including without limitation reasonable attorneys’ fees and legal expenses; second to be delivered by or on behalf the payment of the Borrower pursuant Note, pro rata, whether on account of principal or interest or otherwise as the Collateral Agent, in its sole discretion, may elect, and then to this Agreementpay the balance, which inaccuracy would result in a Material Adverse Effect (except that inaccuracies in the Borrower's Due Diligence Documents attributable if any, to the fault Borrower or neglect of third-parties shall not constitute a breach of this Section 9.1(d))as otherwise required by law. If such Proceeds are insufficient to pay the amounts required by law, or in any other Loan Document, or in any other agreement between the Borrower and the Lendershall be liable for any deficiency.
(e) The filing Upon the occurrence of a petition by or against any Event of Default, the Borrower shall promptly upon written demand by the Collateral Agent assemble the Equipment, Inventory and Fixtures and make them available to the Lender at a place or any Affiliate seeking relief under places to be designated by the Federal Bankruptcy Code, 11 U.S.C. ss. 101, et seq., and any amendments thereto, or any similar law or regulation, whether federal, state or local, not dismissed within 30 days.
(f) Collateral Agent The commencement of a proceeding by or against the Borrower or any Affiliate under any statute or other law providing for an assignment for the benefit of creditors, the appointment of a receiver, or any other similar law or regulation, whether federal, state or local, not dismissed within 30 days.
(g) The garnishment, attachment, levy or other similar action taken by or on behalf of any creditor rights of the BorrowerCollateral Agent under this paragraph to have the Equipment, any Affiliate, or any of their respective properties which could have a Material Adverse Effect.
(h) Any change in control Inventory and Fixtures assembled and made available to it is of the Borrower, Madison Liquidity Investors 104, MACG from that disclosed in Section 2 essence of this Agreement.
9.2 The Lender Agreement and the Collateral Agent may, at its optionelection, terminate its obligation to make advances of the Loanenforce such right by an action in equity for injunctive relief or specific performance, without notice to the Borrower:
(a) upon the occurrence and continuance requirement of any Event of Default set forth in subsections 9.1
(a) through 9.1(h) above; or (b) upon the occurrence and continuance of any event which, with the giving of notice or the lapse of time, or both, would constitute an Event of Default or (C) upon the death or disability of ▇▇▇▇▇ ▇a bond.
Appears in 2 contracts
Sources: Security Agreement (Vynleads, Inc.), Security Agreement (Ardent Mines LTD)
Events of Default and Remedies. 9.1 The following events shall constitute If an "Event of Default" under this AgreementDefault with respect to the Notes shall occur and be continuing, the occurrence principal of which shall entitle the Lender to pursue any and all rights and remedies, legal and equitable, available to it under any Loan Document or otherwise. The Occurrence of an Event Default under this Agreement shall constitute a default under each and every other Loan Document. The Lender's rights and remedies are cumulative and Notes may be exercised concurrently or successively from time to time. Any action by the Lender against any property or party declared, and in certain cases shall not serve to release or discharge any other securityautomatically become, property or party in connection with this transaction. The Events of Default are as follows:
(a) Failure to pay the principal or interest on the Borrower's present or future indebtedness to the Lender, whether or not arising pursuant to this Agreement, when and as the same shall be due and payable, whether by acceleration or otherwisepayable in the manner and with the effect provided in the Indenture; provided that under Section 6.01(4)(A) and (B), in each case, the principal amount of any such default Indebtedness, together with the principal amount of any other such Indebtedness under which there has not been cured prior a Payment Default or the maturity of which has been so accelerated, aggregates to $50,000,000 or more. As provided in and subject to the expiration of ten (10) days following the date upon which the Lender gives the Borrower written Notice of Default. In this Section 9, Notice of Default shall be deemed to have been given (i) on the date of personal delivery of such written notice to a Guarantor, or (ii) on the date on which a duly authorized representative provisions of the Borrower acknowledges receipt Indenture, the Holder of such written notice, or (iii) on this Note shall not have the day after sending such written notice right to the Borrower by a commonly recognized overnight courier service, such as Federal Express, Purolator, UPS or the like, or (iv) on the third day after sending such written notice to the Borrower by facsimile (to both numbers set forth in Section 16.7) or by depositing the same in the United States mail, postage prepaid, for delivery to the Borrower.
(b) Failure to observe, perform and comply with institute any of the obligations evidenced or secured by a Loan Document, other than as provided in Sections 9.1(a) above; provided that such default has not been cured prior to the expiration of thirty (30) days following the date upon which the Lender gives the Borrower written Notice of Default.
(c) Failure to duly and punctually pay, observe and discharge all Indebtedness and other obligations of the Borrower to any third party, unless the same is being contested in good faith by appropriate proceedings and the Borrower has set aside on its books adequate reserves proceeding with respect to such Indebtedness the Indenture or other obligations.
(d) The discovery by the Lender of any material inaccuracy in any statement, assurance, representation, covenant, warranty, term or condition by the Borrower contained in this Agreement or in any document delivered or to be delivered by or on behalf of the Borrower pursuant to this Agreement, which inaccuracy would result in a Material Adverse Effect (except that inaccuracies in the Borrower's Due Diligence Documents attributable to the fault or neglect of third-parties shall not constitute a breach of this Section 9.1(d)), or in any other Loan Document, or in any other agreement between the Borrower and the Lender.
(e) The filing of a petition by or against the Borrower or any Affiliate seeking relief under the Federal Bankruptcy Code, 11 U.S.C. ss. 101, et seq., and any amendments thereto, or any similar law or regulation, whether federal, state or local, not dismissed within 30 days.
(f) The commencement of a proceeding by or against the Borrower or any Affiliate under any statute or other law providing for an assignment for the benefit of creditors, the appointment of a receiver, receiver or trustee or for any other similar law or regulationremedy thereunder, whether federal, state or local, not dismissed within 30 days.
(g) The garnishment, attachment, levy or other similar action taken by or on behalf unless such Holder shall have previously given the Trustee written notice of any creditor of the Borrower, any Affiliate, or any of their respective properties which could have a Material Adverse Effect.
(h) Any change in control of the Borrower, Madison Liquidity Investors 104, MACG from that disclosed in Section 2 of this Agreement.
9.2 The Lender may, at its option, terminate its obligation to make advances of the Loan, without notice to the Borrower:
(a) upon the occurrence and continuance of any continuing Event of Default set forth with respect to the Notes, the Holders of not less than 25% in subsections 9.1
(a) through 9.1(h) above; or (b) upon principal amount of the occurrence and continuance Notes at the time outstanding shall have made written request to the Trustee to pursue a remedy in respect of any event which, with the giving of notice or the lapse of time, or both, would constitute an such Event of Default and the Holders offered the Trustee and, if requested, provided security or (C) upon indemnity reasonably satisfactory to the death Trustee against any loss, liability or disability expense and the Trustee shall not have received from the Holders of ▇▇▇▇▇ ▇a majority in principal amount of the Notes at the time outstanding a direction inconsistent with such request, and shall have failed to institute any such proceeding, for 60 days after receipt of such notice, request and offer of indemnity. The foregoing shall not apply to any suit instituted by the Holder of this Note for the enforcement of any payment of principal hereof or any premium or interest hereon.
Appears in 2 contracts
Sources: Senior Notes Agreement (Flowers Foods Inc), Senior Notes Agreement (Flowers Foods Inc)
Events of Default and Remedies. 9.1 The following events shall constitute an "Event of Default" under this Agreement, (a) Upon the occurrence of which shall entitle and during the Lender to pursue any and all rights and remedies, legal and equitable, available to it under any Loan Document or otherwise. The Occurrence continuance of an Event of Default under this Agreement shall constitute a default under each and every after the acceleration of the Notes (so long as such Event of Default has not been waived), subject to the provisions of Section 7 hereof, the Collateral Agent may exercise in respect of the Collateral, in addition to other Loan Document. The Lender's rights and remedies are cumulative provided for herein or otherwise available to it, all the rights and remedies of a secured party on default under the UCC (whether or not the UCC applies to the affected Collateral), and also may (i) require the Company to, and the Company hereby agrees that the Company shall, at the Company’s expense and upon request of the Collateral Agent forthwith, assemble all or part of the Collateral as directed by the Collateral Agent and make it available to the Collateral Agent at a place to be exercised concurrently designated by the Collateral Agent which is reasonably convenient to both parties; and (ii) without notice except as specified below, sell the Collateral or successively any part thereof in one or more parcels at public or private sale, at the office of the Collateral Agent or elsewhere, for cash, on credit or for future delivery, and at such price or prices and upon such other terms as the Collateral Agent may deem commercially reasonable. The Company agrees that, to the extent notice of sale shall be required by law, at least ten (10) days prior notice to the Company of the time and place of any public or private sale is to be made shall constitute reasonable notification. The Collateral Agent shall not be obligated to make any sale of Collateral regardless of notice of sale having been given. The Collateral Agent may adjourn any public or private sale from time to time. Any action time by announcement at the time and place fixed therefor, and such sale may, without further notice, be made at the time and place to which it has been so adjourned.
(b) Subject to the provisions of Section 7 hereof and after satisfying its responsibilities to turn over funds to the Senior Lender pursuant to the Subordination Agreement, upon the occurrence and during the continuance of an Event of Default and after the acceleration of the Notes (so long as such Event of Default has not been waived), any cash held by the Lender against Collateral Agent as Collateral and all cash proceeds received by the Collateral Agent in respect of any property sale of, collection from or party other realization upon, all or any part of the Collateral shall not serve to release or discharge any other security, property or party in connection with this transaction. The Events of Default are be applied as follows:
(ai) Failure to pay the principal or interest on the Borrower's present or future indebtedness First: to the LenderCollateral Agent, whether or not arising pursuant to this Agreementits agents and attorneys for amounts due under Section 9 hereof, when including payment of all compensation, expenses and as liabilities incurred, and all advances made, by the same shall be due Collateral Agent and payable, whether by acceleration or otherwise; provided that such default has not been cured prior to the expiration of ten (10) days following the date upon which the Lender gives the Borrower written Notice of Default. In this Section 9, Notice of Default shall be deemed to have been given (i) on the date of personal delivery costs and expenses of such written notice to a Guarantor, or (ii) on the date on which a duly authorized representative of the Borrower acknowledges receipt of such written notice, or (iii) on the day after sending such written notice to the Borrower by a commonly recognized overnight courier service, such as Federal Express, Purolator, UPS or the like, or (iv) on the third day after sending such written notice to the Borrower by facsimile (to both numbers set forth in Section 16.7) or by depositing the same in the United States mail, postage prepaid, for delivery to the Borrower.
(b) Failure to observe, perform and comply with any of the obligations evidenced or secured by a Loan Document, other than as provided in Sections 9.1(a) above; provided that such default has not been cured prior to the expiration of thirty (30) days following the date upon which the Lender gives the Borrower written Notice of Default.
(c) Failure to duly and punctually pay, observe and discharge all Indebtedness and other obligations of the Borrower to any third party, unless the same is being contested in good faith by appropriate proceedings and the Borrower has set aside on its books adequate reserves with respect to such Indebtedness or other obligations.
(d) The discovery by the Lender of any material inaccuracy in any statement, assurance, representation, covenant, warranty, term or condition by the Borrower contained in this Agreement or in any document delivered or to be delivered by or on behalf of the Borrower pursuant to this Agreement, which inaccuracy would result in a Material Adverse Effect (except that inaccuracies in the Borrower's Due Diligence Documents attributable to the fault or neglect of third-parties shall not constitute a breach of this Section 9.1(d)), or in any other Loan Document, or in any other agreement between the Borrower and the Lender.
(e) The filing of a petition by or against the Borrower or any Affiliate seeking relief under the Federal Bankruptcy Code, 11 U.S.C. ss. 101, et seq., and any amendments thereto, or any similar law or regulation, whether federal, state or local, not dismissed within 30 days.
(f) The commencement of a proceeding by or against the Borrower or any Affiliate under any statute or other law providing for an assignment for the benefit of creditors, the appointment of a receiver, or any other similar law or regulation, whether federal, state or local, not dismissed within 30 days.
(g) The garnishment, attachment, levy or other similar action taken by or on behalf of any creditor of the Borrower, any Affiliate, or any of their respective properties which could have a Material Adverse Effect.
(h) Any change in control of the Borrower, Madison Liquidity Investors 104, MACG from that disclosed in Section 2 of this Agreement.
9.2 The Lender may, at its option, terminate its obligation to make advances of the Loan, without notice to the Borrower:
(a) upon the occurrence and continuance of any Event of Default set forth in subsections 9.1
(a) through 9.1(h) above; or (b) upon the occurrence and continuance of any event which, with the giving of notice or the lapse of time, or both, would constitute an Event of Default or (C) upon the death or disability of ▇▇▇▇▇ ▇.collection;
Appears in 2 contracts
Sources: Security Agreement (Mri Interventions, Inc.), Securities Purchase Agreement (Mri Interventions, Inc.)
Events of Default and Remedies. 9.1 The following events shall constitute an "Event of Default" under 10.1 Notwithstanding anything hereinabove to the contrary, the Lender may terminate this Agreement, Financing Agreement immediately upon the occurrence of which shall entitle any of the Lender to pursue any and all rights and remedies, legal and equitable, available to it under any Loan Document or otherwise. The Occurrence of an Event Default under this Agreement shall constitute a default under each and every other Loan Document. The Lender's rights and remedies are cumulative and may be exercised concurrently or successively from time to time. Any action by the Lender against any property or party shall not serve to release or discharge any other security, property or party in connection with this transaction. The following Events of Default are as followsDefault:
(a) Failure failure of the Borrower to pay any of the principal or interest Obligations within three (3) days of the due date thereof, provided that nothing contained herein shall prohibit the Lender from charging such amounts to the Revolving Loan Account on the Borrower's present due date thereof;
(b) any representation or future indebtedness warranty made or deemed to be made by the LenderBorrower or any Guarantor under this Financing Agreement or any other Loan Document shall prove to have been incorrect in any material respect when made or deemed to be made;
(c) the Borrower or any Guarantor shall fail to perform or observe any term, whether covenant or not arising pursuant agreement contained in this Financing Agreement or any other Loan Document on its part to this Agreement, when be performed or observed and as the same such failure shall be due and payable, whether by acceleration or otherwise; provided that such default has not been cured prior to the expiration of remain unremedied for ten (10) days following the date upon which the Lender gives the Borrower after written Notice of Default. In this Section 9, Notice of Default notice thereof shall be deemed to have been given (i) on the date of personal delivery of such written notice to a Guarantor, or (ii) on the date on which a duly authorized representative of the Borrower acknowledges receipt of such written notice, or (iii) on the day after sending such written notice to the Borrower by the Lender;
(d) a commonly recognized overnight courier service, such as Federal Express, Purolator, UPS or the like, or (iv) on the third day after sending such written notice to breach by the Borrower by facsimile or any Guarantor of any representation, warranty, covenant or obligation under any Material Agreement (to both numbers set forth other than the non payment of interest under the Indentures), any mortgage of any real property or any collective bargaining agreement which breach could result in Section 16.7a Material Adverse Effect and which remains unremedied within the applicable period provided for in such agreement;
(e) a default or by depositing event of default under the same Bond Indenture which remains unremedied within the applicable period provided for in the United States mail, postage prepaid, for delivery to the Borrower.Bond Indenture;
(bf) Failure to observe, perform and comply with any of the obligations evidenced or secured by a Loan Document, other than as provided in Sections 9.1(a) above; provided that such default has not been cured prior to the expiration of thirty (30) days following the date upon which the Lender gives the Borrower written Notice of Default.
(c) Failure to duly and punctually pay, observe and discharge all Indebtedness and other obligations failure of the Borrower or any Guarantor to pay any third partyand all Royalties, Taxes and Priority Payables when due, unless failure to pay such amounts is disclosed to the same is Lender, being diligently contested in good faith by appropriate proceedings and the Borrower has set aside on its books adequate reserves sufficient to prevent any enforcement with respect to such Indebtedness or other obligations.same and adequate reserves have been established in accordance with GAAP;
(dg) The discovery by if the Lender Borrower or any Guarantor breaches or is in violation of any material inaccuracy Authorization, Law or industry standard, in any statement, assurance, representation, covenant, warranty, term connection with the operation of its business which breach or condition by the Borrower contained in this Agreement or in any document delivered or to be delivered by or on behalf of the Borrower pursuant to this Agreement, which inaccuracy violation would result in have a Material Adverse Effect and which remains unremedied for ten (except that inaccuracies in the Borrower's Due Diligence Documents attributable to the fault or neglect of third-parties shall not constitute a breach of this Section 9.1(d)), or in any other Loan Document, or in any other agreement between the Borrower and the Lender.10) days;
(eh) The filing of a petition by or against the Borrower or any Affiliate seeking relief under the Federal Bankruptcy Code, 11 U.S.C. ss. 101, et seq., and any amendments theretoGuarantor shall: (i) admit in writing its inability to pay its debts generally, or any similar law or regulation, whether federal, state or local, not dismissed within 30 days.
(f) The commencement of make a proceeding by or against the Borrower or any Affiliate under any statute or other law providing for an general assignment for the benefit of creditors; (ii) file a notice of intention to file a proposal under any Law relating to bankruptcy, insolvency or reorganization or relief of creditors; (iii) institute or have instituted against it any proceeding seeking (x) to adjudicate it a bankrupt or insolvent, (y) any liquidation, winding-up, reorganization, arrangement, adjustment, protection, relief or composition of it or its debts under any Law relating to bankruptcy, insolvency or reorganization or relief of debtors, or (z) the entry of an order for relief or the appointment of a receiver, trustee or other similar official for it or for any substantial part of its Assets, and, in the case of any such proceeding instituted against it (but not instituted by it), such proceeding shall remain undismissed or unstayed for a period of ten (10) days or any of the actions sought in such proceeding (including the entry of an order for relief against it or the appointment of a receiver, trustee, custodian or other similar official for it or for any substantial part of its Assets) shall occur; or (iv) take any action to authorize any of the foregoing events;
(i) any legally binding judgment or order for the payment of money in excess of $5,000,000 shall be rendered against the Borrower or any Guarantor and, if such judgment remains unpaid, either: (i) enforcement proceedings shall have been commenced by any creditor upon such judgment or order; or (ii) there shall be any period of ten (10) consecutive days during which a stay of enforcement of such judgment or order, by reason of a pending appeal or otherwise, shall not be in effect;
(j) any failure to deal with any money in accordance with the cash management and Blocked Accounts arrangements contemplated in this Financing Agreement other than if the Borrower and the Guarantors provide their customers with appropriate notice and instructions in order to comply with such cash management and Blocked Accounts arrangements and notwithstanding such notice and instructions, a customer inadvertently uses the old, incorrect wire transfer instructions and other than in respect of inadvertent clerical errors or inadvertent errors made by The Toronto-Dominion Bank (or any other similar law or regulationapplicable cash management bank), whether federal, state or local, not dismissed within 30 days.which are forthwith rectified;
(gk) The garnishmentthe loss, attachmentdamage, levy destruction or other similar action taken by or on behalf confiscation of any creditor material part of the Borrower, any Affiliate, 's Collateral or any of their respective properties which could have the Guarantor's Collateral, unless upon such event, at the option of the Lender, the Borrower or the applicable Guarantor pays to the Lender such amount as the Lender in its absolute and sole discretion determines is satisfactory, including insurance proceeds forthwith upon receipt of such insurance proceeds, if any; or
(l) if any execution, sequestration, garnishment, claim, extent or other process of any court, tribunal or other Person becomes enforceable against the Borrower or any Guarantor for an amount in excess of $5,000,000 or if a Material Adverse Effectdistress or analogous process for an amount in excess of $5,000,000 becomes enforceable against or is levied upon the Collateral or the Guarantor Collateral and with respect to any such enforcement before judgement under the Laws of the Province of British Columbia, is not stayed or dismissed within fifteen (15) days after the date of such enforcement before judgement.
(h) Any change in control of the Borrower, Madison Liquidity Investors 104, MACG from that disclosed in Section 2 of this Agreement.
9.2 The Lender may, at its option, terminate its obligation to make advances of the Loan, without notice to the Borrower:
(a) upon 10.2 Upon the occurrence and continuance of any Event of Default set forth in subsections 9.1
(a) through 9.1(h) above; or (b) upon the occurrence and continuance of any event which, with the giving of notice or the lapse of time, or both, would constitute an Event of Default which is continuing, the Lender may declare that the Revolving Line of Credit provided for in this Financing Agreement, and the obligation of the Lender to make Revolving Loans, assist with the opening of Letters of Credit and provide Letter of Credit Guarantees or (C) make other accommodations of credit available to the Borrower, shall immediately terminate and cease without any further notice or demand to the Borrower or Guarantors whatsoever and, for greater certainty, it is hereby understood and agreed by the Borrower and the Guarantors that the Revolving Line of Credit shall be capped at the amount of the outstanding Obligations owing on the date and at the time of the occurrence of such Event of Default and at the amount of the outstanding Obligations owing at the end of business of each day thereafter, that no Accommodations shall be made or required to be made, notwithstanding any margining availability calculated in accordance with the terms and provisions hereof, that the definition of "Revolving Line of Credit" hereunder shall automatically be amended at the end of business of each day accordingly to reflect the revised maximum authorized credit limit established hereunder and that the Borrower shall continue to be required to comply with its obligations under Section 3.4 of this Financing Agreement notwithstanding the termination of the Revolving Line of Credit, unless such Event of Default is waived in writing by the Lender or cured to the Lender's satisfaction in the exercise of the Lender's reasonable judgment. In addition, upon the death occurrence of an Event of Default which is continuing, the Lender may declare that: (a) all Obligations shall become immediately due and payable, including the face amount of all outstanding Letters of Credit and any and all interest accrued thereon up to the date thereof and with respect to BA Equivalent Loans, on a pro-rated basis, given the applicable Interest Period; (b) the Lender may charge the Borrower the Default Rate of Interest on all then outstanding or disability thereafter incurred Obligations in lieu of ▇▇▇▇▇ ▇.the interest otherwise provided for in this Financing Agreement, provided that, with respect to this Section 10.2 the Lender has given the Borrower written notice of the Event of Default; and
Appears in 2 contracts
Sources: Financing Agreement (Western Forest Products Inc.), Financing Agreement (Western Forest Products Inc.)
Events of Default and Remedies. 9.1 The following events shall constitute 5.1 For determination of an "Event of Default" under , this Agreement refers to and incorporates by reference the applicable provisions of the Funding Agreement, as if fully set forth in this Agreement.
5.2 Upon the occurrence of an Event of Default and at any time thereafter, Secured Party shall have all rights and remedies provided in this Agreement, the occurrence Funding Agreement, any other agreements between Grantor and Secured Party, the Uniform Commercial Code or other applicable law, all of which shall entitle rights and remedies may be exercised without notice to Grantor, all such notices being hereby waived, except such notice as is expressly provided for hereunder or is not waivable under applicable law. All rights and remedies of Secured Party are cumulative and not exclusive and are enforceable, in Secured Party's discretion, alternatively, successively, or concurrently on any one or more occasions and in any order Secured Party may determine. Without limiting the Lender foregoing, Secured Party may (a) accelerate the payment of the Notes and all Obligations and demand immediate payment thereof to pursue Secured Party, (b) with or without judicial process or the aid or assistance of others, enter upon any premises on or in which any of the Collateral may be located and take possession of the Collateral or complete processing, manufacturing and repair of all or any portion of the Collateral, (c) require Grantor, at Grantor's expense, to assemble and make available to Secured Party any part or all of the Collateral at any place and time designated by Secured Party, (d) collect, foreclose, receive, appropriate, setoff and realize upon any and all rights Collateral, (e) extend the time of payment of, compromise or settle for cash, credit, return of merchandise, and remediesupon any terms or conditions, legal any and equitableall accounts or other Collateral which includes a monetary obligation and discharge or release the account debtor or other obligor, available to it under any Loan Document or otherwise. The Occurrence of an Event Default under this Agreement shall constitute a default under each and every other Loan Document. The Lender's rights and remedies are cumulative and may be exercised concurrently or successively from time to time. Any action by the Lender against any property or party shall not serve to release or discharge any other security, property or party in connection with this transaction. The Events of Default are as follows:
(a) Failure to pay the principal or interest on the Borrower's present or future indebtedness to the Lender, whether or not arising pursuant to this Agreement, when and as the same shall be due and payable, whether by acceleration or otherwise; provided that such default has not been cured prior to the expiration of ten (10) days following the date upon which the Lender gives the Borrower written Notice of Default. In this Section 9, Notice of Default shall be deemed to have been given (i) on the date of personal delivery of such written notice to a Guarantor, or (ii) on the date on which a duly authorized representative of the Borrower acknowledges receipt of such written notice, or (iii) on the day after sending such written notice to the Borrower by a commonly recognized overnight courier service, such as Federal Express, Purolator, UPS or the like, or (iv) on the third day after sending such written notice to the Borrower by facsimile (to both numbers set forth in Section 16.7) or by depositing the same in the United States mail, postage prepaid, for delivery to the Borrower.
(b) Failure to observe, perform and comply with without affecting any of the obligations evidenced or secured by a Loan DocumentObligations, other than as provided in Sections 9.1(a) above; provided that such default has not been cured prior to the expiration of thirty (30) days following the date upon which the Lender gives the Borrower written Notice of Default.
(c) Failure to duly and punctually pay, observe and discharge all Indebtedness and other obligations of the Borrower to any third party, unless the same is being contested in good faith by appropriate proceedings and the Borrower has set aside on its books adequate reserves with respect to such Indebtedness or other obligations.
(d) The discovery by the Lender of any material inaccuracy in any statement, assurance, representation, covenant, warranty, term or condition by the Borrower contained in this Agreement or in any document delivered or to be delivered by or on behalf of the Borrower pursuant to this Agreement, which inaccuracy would result in a Material Adverse Effect (except that inaccuracies in the Borrower's Due Diligence Documents attributable to the fault or neglect of third-parties shall not constitute a breach of this Section 9.1(d)), or in any other Loan Document, or in any other agreement between the Borrower and the Lender.
(e) The filing of a petition by or against the Borrower or any Affiliate seeking relief under the Federal Bankruptcy Code, 11 U.S.C. ss. 101, et seq., and any amendments thereto, or any similar law or regulation, whether federal, state or local, not dismissed within 30 days.
(f) The commencement sell, lease, transfer, assign, deliver or otherwise dispose of a proceeding any and all Collateral (including, without
5.3 Secured Party may apply the cash proceeds of Collateral actually received by or against the Borrower or Secured Party from any Affiliate under any statute sale, lease, foreclosure or other law providing for an assignment disposition of the Collateral to payment of any of the Notes or Obligations, in whole or in part (including reasonable attorneys' fees and legal expenses incurred by Secured Party with respect thereto or otherwise chargeable to Grantor) and in such order as Secured Party may elect, when due. Grantor shall remain liable to Secured Party for the benefit payment of creditorsany deficiency together with interest at the highest rate provided for herein and all costs and expenses of collection or enforcement, the appointment of a receiver, or any other similar law or regulation, whether federal, state or local, not dismissed within 30 daysincluding reasonable attorneys' fees and legal expenses.
(g) The garnishment, attachment, levy or other similar action taken by or on behalf of any creditor of the Borrower, any Affiliate, or any of their respective properties which could have a Material Adverse Effect.
(h) Any change in control of the Borrower, Madison Liquidity Investors 104, MACG from that disclosed in Section 2 of this Agreement.
9.2 The Lender 5.4 Secured Party may, at its option, terminate its obligation to make advances during the existence of the Loan, without notice to the Borrower:
(a) upon the occurrence and continuance of any Event of Default set forth in subsections 9.1
(a) through 9.1(h) above; or (b) upon the occurrence and continuance of any event which, with the giving of notice or the lapse of time, or both, would constitute an Event of Default cure any default by Grantor under any agreement with a third party or (C) pay or bond on appeal any judgment entered against Grantor, discharge taxes, liens, security interests or other encumbrances at any time levied on or existing with respect to the Collateral and pay any amount, incur any expense, or perform any act which, in Secured Party's sole judgment, is necessary or appropriate to preserve, protect, insure, maintain or upon the death Collateral. Secured Party may charge Grantor's loan account for any amounts so expended, such amounts to be repayable by Grantor on demand. Secured Party shall be under no obligation to effect such cure, payment, bonding or disability discharge, and shall not, by doing so, be deemed to have assumed any obligation or liability of ▇▇▇▇▇ ▇Grantor.
Appears in 2 contracts
Sources: Security Agreement (Search Capital Group Inc), Security Agreement (Search Capital Group Inc)
Events of Default and Remedies. 9.1 The following events shall constitute an "Event of Default" under this Agreement, the occurrence of which shall entitle the Lender to pursue any and all rights and remedies, legal and equitable, available to it under any Loan Document or otherwise. The Occurrence of an Event Default under this Agreement shall constitute a default under each and every other Loan Document. The Lender's rights and remedies are cumulative and may be exercised concurrently or successively from time to time. Any action by the Lender against any property or party shall not serve to release or discharge any other security, property or party in connection with this transaction. The Events of Default are as follows:
(a) Failure to pay the principal or interest on the Borrower's present or future indebtedness to the Lender, whether or not arising pursuant to this Agreement, when and as the same shall be due and payable, whether by acceleration or otherwise; provided that such default has not been cured prior to the expiration of ten (10) days following the date upon which the Lender gives the Borrower written Notice of Default. In this Section 9, Notice of Default shall be deemed to have been given (i) on the date of personal delivery of such written notice to a Guarantor, or (ii) on the date on which a duly authorized representative of the Borrower acknowledges receipt of such written notice, or (iii) on the day after sending such written notice to the Borrower by a commonly recognized overnight courier service, such as Federal Express, Purolator, UPS or the like, or (iv) on the third day after sending such written notice to the Borrower by facsimile (to both numbers set forth in Section 16.7) or by depositing the same in the United States mail, postage prepaid, for delivery to the Borrower.
(b) Failure to observe, perform and comply with any of the obligations evidenced or secured by a Loan Document, other than as provided in Sections 9.1(a) above; provided that such default has not been cured prior to the expiration of thirty (30) days following the date upon which the Lender gives the Borrower written Notice of Default.
(c) Failure to duly and punctually pay, observe and discharge all Indebtedness and other obligations of the Borrower to any third party, unless the same is being contested in good faith by appropriate proceedings and the Borrower has set aside on its books adequate reserves with respect to such Indebtedness or other obligations.
(d) The discovery by the Lender of any material inaccuracy in any statement, assurance, representation, covenant, warranty, term or condition by the Borrower contained in this Agreement or in any document delivered or to be delivered by or on behalf of the Borrower pursuant to this Agreement, which inaccuracy would result in a Material Adverse Effect (except that inaccuracies in the Borrower's Due Diligence Documents attributable to the fault or neglect of third-parties shall not constitute a breach of this Section 9.1(d)), or in any other Loan Document, or in any other agreement between the Borrower and the Lender.
(e) The filing of a petition by or against the Borrower or any Affiliate seeking relief under the Federal Bankruptcy Code, 11 U.S.C. ss. 101, et seq., and any amendments thereto, or any similar law or regulation, whether federal, state or local, not dismissed within 30 days.
(f) The commencement of a proceeding by or against the Borrower or any Affiliate under any statute or other law providing for an assignment for the benefit of creditors, the appointment of a receiver, or any other similar law or regulation, whether federal, state or local, not dismissed within 30 days.
(g) The garnishment, attachment, levy or other similar action taken by or on behalf of any creditor of the Borrower, any Affiliate, or any of their respective properties which could have a Material Adverse Effect.
(h) Any change in control of the Borrower, Madison Liquidity Investors 104, MACG from that disclosed in Section 2 of this Agreement.
9.2 The Lender may, at its option, terminate its obligation to make advances of the Loan, without notice to the Borrower:
(a) upon the occurrence and continuance of any Event of Default set forth in subsections 9.1
(a) through 9.1(h) above; or (b) upon the occurrence and continuance of any event which, with the giving of notice or the lapse of time, or both, would constitute an Event of Default or (C) upon the death or disability of ▇B▇▇▇▇ ▇.
Appears in 2 contracts
Sources: Loan Agreement (Baum & Associates /Fa/), Loan Agreement (Baum & Associates /Fa/)
Events of Default and Remedies. 9.1 The (a) Each of the following events acts or occurrences shall constitute an "a “Lease Event of Default" ” hereunder:
(i) default in the payment of the Purchase Price or the Termination Value on the Cancellation Date or the Purchase Closing Date, as applicable, or in the payment of the Purchase Price or the Final Rent Payment, as applicable, on the Lease Termination Date; or the default in the payment when due of any Basic Rent and the continuance of such default for 5 Business Days thereafter; or the default in the payment when due of any Supplemental Rent, the amount of any Indemnified Risk or any other amount due hereunder or under any other Operative Document and the continuance of such default for 30 days thereafter; or
(ii) any representation or warranty made or deemed made by the Lessee herein shall be false or misleading in any material respect on the date made or deemed made; or
(iii) an Event of Default under the Investment Agreement (other than a Limited Recourse Event of Default);
(iv) the Lessee shall fail to observe or perform any covenant or agreement contained in Sections 12 and 26 of this Lease; or
(v) the Lessee shall fail to observe or perform any covenant or agreement contained (other than those covered by subsections (i) or (iv) above), and such failure shall not have been cured within 10 days, with respect to any covenant contained in Section 14 of this Lease, and 30 days, with respect to any other provision hereof, after the earlier to occur of (A) written notice thereof has been given to the Lessee by the Lessor (acting, in accordance with Section 9.02(a) of the Investment Agreement, of its own accord or at the request of the Majority Funding Parties) or (B) the chief financial, chief operating, chief legal or chief accounting officer of the Lessee or the Guarantor otherwise becomes aware of any such failure; or
(vi) Lessee shall abandon the Facility; provided however that for purposes of this Section 17(a)(vi), the term “abandon” shall not include the mere failure of Lessee to occupy the Facility so long as Lessee continues to perform its obligations hereunder and other Operative Documents including without limitation maintenance of the Facility, maintenance of required insurance, compliance with Governmental Requirements and Insurance Requirements and payment of all Rent.
(b) Subject to Section 9.02 of the Investment Agreement, upon the occurrence and during the continuance of which any Lease Event of Default, as determined by the Lessor, the Lessor (acting, in accordance with Section 9.02(a) of the Investment Agreement, of its own accord or at the direction of the Majority Funding Parties) may do any one or more of the following (without prejudice to the obligations of the Lessee under Section 15(b)(ii)):
(i) proceed by appropriate judicial proceedings, either at law, in equity or in bankruptcy, to enforce performance or observance by the Lessee of the applicable provisions of this Lease, or to recover damages for the breach of any such provisions, or any other equitable or legal remedy, all as the Lessor shall entitle deem necessary or advisable; and/or
(ii) by notice to the Lender Lessee, either (x) terminate this Lease in accordance with Section 15, whereupon the Lessee's interest and all rights of the Lessee to pursue the use of the Facility shall forthwith terminate subject to the Lessee's rights under such Section 15 to acquire the Facility on the Purchase Closing Date as provided herein, but the Lessee shall remain liable with respect to its obligations and liabilities hereunder; or (y) terminate the Lessee's right to possession of the Facility or any part thereof; and/or
(iii) exercise any and all rights other remedies available under applicable law or at equity.
(c) After the occurrence and remediesduring the continuance of a Cancellation Event or Termination Event, legal in the event the Lessor elects not to terminate this Lease and equitablethe Lessee has not exercised its option under Section 15(c), available to it under any Loan Document or otherwise. The Occurrence this Lease shall continue in effect and the Lessor may enforce all of an Event Default under this Agreement shall constitute a default under each and every other Loan Document. The Lenderthe Lessor's rights and remedies are cumulative under this Lease, including, without limitation, the right to recover the Basic Rent and may be exercised concurrently Supplemental Rent, and any other yield protection payments and other amounts with respect thereto, as it becomes due under this Lease or successively from time to timeany other Operative Documents. Any action For the purposes hereof, the following do not constitute a cancellation or termination of this Lease: (i) acts of maintenance or preservation of the Facility or any part thereof, (ii) efforts by the Lender against Lessor to relet the Facility or any property part thereof, including, without limitation, termination of any sublease of the Facility and removal of any tenant from the Site, (iii) or party shall not serve the appointment of a receiver upon the initiative of the Lessor to release or discharge any other security, property or party in connection with protect the Lessor's interest under this transaction. The Events of Default are as follows:Lease.
(ad) Failure to pay the principal or interest on the Borrower's present or future indebtedness to the Lender, whether or not arising pursuant to this Agreement, when and as the same shall be due and payable, whether by acceleration or otherwise; provided that such default has not been cured prior to the expiration of ten (10) days following the date upon which the Lender gives the Borrower written Notice of Default. In this Section 9, Notice of Default shall be deemed to have been given If (i) on the date Lease Termination Date, the Facility is not acquired by the Lessee or its designee by payment of personal delivery of such written notice to a Guarantorthe Purchase Price, or (ii) on the date on which a duly authorized representative Cancellation Date, the Lessee or its designee has defaulted in its obligation to acquire the Facility and pay the Purchase Price, or if applicable, the Termination Value, in accordance with Lessee's election under Section 15(b)(ii), then the Lessor shall have the immediate right of possession of the Borrower acknowledges receipt Facility and the right to enter onto the Site and to remove any and all of the Property comprising the Facility, and the Lessor may thenceforth hold, possess and enjoy the Facility free from any rights of the Lessee and any Person claiming by, through or under the Lessee. The Lessor shall be under no liability by reason of any such written notice, or (iii) on the day after sending such written notice to the Borrower by a commonly recognized overnight courier service, such as Federal Express, Purolator, UPS repossession or the like, Facility or (iv) on entry onto the third day after sending such written notice to the Borrower by facsimile (to both numbers set forth in Section 16.7) or by depositing the same in the United States mail, postage prepaid, for delivery to the Borrower.
(b) Failure to observe, perform and comply with any of the obligations evidenced or secured by a Loan Document, other than as provided in Sections 9.1(a) above; provided that such default has not been cured prior to the expiration of thirty (30) days following the date upon which the Lender gives the Borrower written Notice of Default.
(c) Failure to duly and punctually pay, observe and discharge all Indebtedness and other obligations of the Borrower to any third party, unless the same is being contested in good faith by appropriate proceedings and the Borrower has set aside on its books adequate reserves with respect to such Indebtedness or other obligations.
(d) The discovery by the Lender of any material inaccuracy in any statement, assurance, representation, covenant, warranty, term or condition by the Borrower contained in this Agreement or in any document delivered or to be delivered by or on behalf of the Borrower pursuant to this Agreement, which inaccuracy would result in a Material Adverse Effect (except that inaccuracies in the Borrower's Due Diligence Documents attributable to the fault or neglect of third-parties shall not constitute a breach of this Section 9.1(d)), or in any other Loan Document, or in any other agreement between the Borrower and the LenderSite.
(e) The filing of a petition by or against Should the Borrower Lessor elect to repossess the Facility or any Affiliate seeking relief part thereof upon cancellation or termination of this Lease or otherwise in the exercise of the Lessor's remedies, the Lessee shall peaceably quit and surrender the Facility or any such part thereof to the Lessor and either (i) deliver possession of the Facility to the Lessor or (ii) allow Lessor or its agents or assigns to enter onto the Facility and the Site to remove any and all of the Property comprising the Facility at the expense of the Lessee, and neither the Lessee nor any Person claiming through or under the Federal Bankruptcy Code, 11 U.S.C. ss. 101, et seq., and any amendments thereto, Lessee shall thereafter be entitled to possession or to remain in possession of the Facility or any similar law or regulation, whether federal, state or local, not dismissed within 30 dayspart thereof but shall forthwith peaceably quit and surrender the Facility to the Lessor.
(f) The commencement At any time after the repossession of a proceeding by or against the Borrower Facility or any Affiliate under any statute part thereof, whether or other law providing for an assignment for the benefit of creditorsnot this Lease shall have been cancelled or terminated, the appointment Lessor may (but shall be under no obligation to) relet the Facility or the applicable part thereof without notice to the Lessee, for such term or terms and on such conditions and for such usage as the Lessor in its sole and absolute discretion may determine. The Lessor may collect and receive any rents payable by reason of a receiversuch reletting, and the Lessor shall not be liable for any failure to relet the Facility or for any other similar law or regulation, whether federal, state or local, not dismissed within 30 daysfailure to collect any rent due upon any such reletting.
(g) The garnishmentremedies herein provided in case of a Lease Event of Default are in addition to, attachmentand without prejudice to, levy the Lessee's continuing obligations under Section 15(b)(ii), and shall not be deemed to be exclusive, but shall be cumulative and shall be in addition to all other remedies existing at law, in equity or in bankruptcy. The Lessor may exercise any remedy without waiving its right to exercise any other similar action taken by remedy hereunder or on behalf of any creditor of the Borrowerexisting at law, any Affiliate, in equity or any of their respective properties which could have a Material Adverse Effectin bankruptcy.
(h) Any change in control No waiver by the Lessor hereunder of any Default or Event of Default shall constitute a waiver of any other or subsequent Default or Event of Default. To the Borrowerextent permitted by applicable law, Madison Liquidity Investors 104, MACG from that disclosed in Section 2 of this Agreement.
9.2 The Lender may, the Lessee waives any right it may have at its option, terminate its obligation any time to make advances of require the Loan, without notice Lessor to mitigate the Borrower:
(a) Lessor's damages upon the occurrence and continuance of any a Default or Event of Default set forth in subsections 9.1
(a) through 9.1(h) above; by taking any action or (b) upon exercising any remedy that may be available to the occurrence and continuance Lessor, the exercise of any event which, with remedies hereunder being at the giving discretion of notice or the lapse of time, or both, would constitute an Event of Default or (C) upon the death or disability of ▇▇▇▇▇ ▇Lessor.
Appears in 2 contracts
Sources: Lease Agreement (Protective Life Corp), Lease Agreement (Protective Life Insurance Co)
Events of Default and Remedies. 9.1 The If any one or more of the following events shall constitute (each an "“Event of Default" under this Agreement, the occurrence of which ”) shall entitle the Lender to pursue any occur and all rights and remedies, legal and equitable, available to it under any Loan Document or otherwise. The Occurrence of an Event Default under this Agreement shall constitute a default under each and every other Loan Document. The Lender's rights and remedies are cumulative and may be exercised concurrently or successively from time to time. Any action by the Lender against any property or party shall not serve to release or discharge any other security, property or party in connection with this transaction. The Events of Default are as followscontinuing:
(a) Failure to pay any breach or default under the principal or interest on Note executed by the Borrower's present or future indebtedness to the Lender, whether or not arising pursuant to this Agreement, when and as the same shall be due and payable, whether by acceleration or otherwise; provided that such default has not been cured prior to the expiration of ten (10) days following the date upon which the Lender gives the Borrower written Notice of Default. In this Section 9, Notice of Default shall be deemed to have been given (i) on the date of personal delivery of such written notice to a Guarantor, or (ii) on the date on which a duly authorized representative Pledgor in favor of the Borrower acknowledges receipt of such written notice, or (iii) on the day after sending such written notice to the Borrower by a commonly recognized overnight courier service, such as Federal Express, Purolator, UPS or the like, or (iv) on the third day after sending such written notice to the Borrower by facsimile (to both numbers set forth in Section 16.7) or by depositing the same in the United States mail, postage prepaid, for delivery to the Borrower.Secured Party;
(b) Failure to observe, perform and comply with the breach or default of any of the obligations evidenced representations, warranties, covenants or secured by a Loan Document, other than as provided in Sections 9.1(a) above; provided agreements of the Pledgor under this Pledge that such default has not been cured prior to the expiration of thirty continues for fifteen (3015) days following after the date upon which the Lender Secured Party gives the Borrower written Notice of Default.notice to Pledgor;
(c) Failure to duly and punctually pay, observe and discharge all Indebtedness and other obligations the subjection of the Borrower Pledged Securities to any third party, unless the same is being contested in good faith by appropriate proceedings and the Borrower has set aside on its books adequate reserves with respect to such Indebtedness levy of execution or other obligations.judicial process in connection with collection of a debt owed by Pledgor;
(d) The discovery by any direct or indirect sale or transfer of all or any part of an interest in the Lender Pledged Securities, whether voluntary or involuntary;
(e) a sale of any material inaccuracy in any statement, assurance, representation, covenant, warranty, term all or condition by the Borrower contained in this Agreement or in any document delivered or to be delivered by or on behalf substantially all of the Borrower pursuant to this Agreement, which inaccuracy would result in assets of the Companies;
(f) a Material Adverse Effect (except that inaccuracies in the Borrower's Due Diligence Documents attributable to the fault or neglect of third-parties shall not constitute a breach of this Section 9.1(d)), or in any other Loan Document, or in default by Pledgor under any other agreement between the Borrower Secured Party and the Lender.Pledgor or any other event of default under this Pledge following written notice and failure to timely cure as therein provided;
(eg) The filing any event that results in the acceleration of the maturity of the indebtedness of the Pledgor to others under any indenture, agreement, or undertaking including, without limitation, any mortgage; or
(h) the Pledgor’s insolvency, the appointment of a petition by receiver for any part of the Pledgor or against the Borrower or assets of the Pledgor, any Affiliate seeking relief under the Federal Bankruptcy Code, 11 U.S.C. ss. 101, et seq., and any amendments thereto, or any similar law or regulation, whether federal, state or local, not dismissed within 30 days.
(f) The commencement of a proceeding by or against the Borrower or any Affiliate under any statute or other law providing for an assignment for the benefit of creditors, or the appointment commencement of a receiver, any proceeding under any bankruptcy or any other similar insolvency law or regulation, whether federal, state or local, not dismissed within 30 days.
(g) The garnishment, attachment, levy or other similar action taken by or on behalf of against the Pledgor; then, in any creditor of the Borrowersuch event, any Affiliate, or any of their respective properties which could have a Material Adverse Effect.
(h) Any change in control of the Borrower, Madison Liquidity Investors 104, MACG from that disclosed in Section 2 of this Agreement.
9.2 The Lender Secured Party may, at its Secured Party’s option, terminate its obligation to make advances declare the Note and this Pledge in default, and give written notice of the Loan, without notice to the Borrower:
(a) upon the occurrence and continuance of any such Event of Default set forth in subsections 9.1
(a) through 9.1(h) above; or (b) upon to Escrow Agent under Section 4, to obtain the occurrence and continuance release of any event which, with the giving of notice or the lapse of time, or both, would constitute an Event of Default or (C) upon the death or disability of ▇▇▇▇▇ ▇Pledged Securities from this Pledge.
Appears in 2 contracts
Sources: Securities Pledge and Escrow Agreement (Spar Group Inc), Securities Pledge and Escrow Agreement (Spar Group Inc)
Events of Default and Remedies. 9.1 The following events shall constitute an "Event (1) In the event of Default" under any breach or default by any party (a “Defaulting Party”) in any of its obligations or representations contained in this Agreement, the occurrence non-defaulting party shall give written notice of such breach or default to the Defaulting Party. Such a Notice (a “Default Notice”) shall state with particularity the breach or default on which shall entitle the Lender notice is based and request the Defaulting Party to pursue remedy or cure the breach or default within the following periods (a “Remedy Period”): (i) if the breach or default occurs on or before July 31, 2004 the Remedy Period is 30 days after receipt of the Default Notice; and (ii) if the breach or default occurs after July 31, 2004 the Remedy Period is 60 days after receipt of the Default Notice.
(2) During the applicable Remedy Period the parties will use all reasonable efforts to resolve amicably the breach or default by negotiations in good faith. However, any and all rights and remedies, legal and equitable, available to it breach or default which is not remedied or cured or resolved by negotiations in good faith within the applicable Remedy Period will constitute an event of default under any Loan Document or otherwise. The Occurrence this Agreement (hereafter: Event of Default).
(3) Upon the happening of an Event of Default under this Agreement by Seller, the Buyer shall constitute be entitled to a default under each reduction in the purchase price paid for the Shares and/or the PMMA Business and every other Loan DocumentAssets, as the case may be, in accordance with §§ 437 N▇. ▇, ▇▇▇ ▇▇▇ (▇▇▇▇▇▇ Civil Code) or refund of the purchase price paid in excess. The Lender's rights and remedies are cumulative and may be exercised concurrently or successively from time to time. Any action by the Lender against any property or party Buyer shall not serve be entitled to release withhold payment (right of retention) in respect of any instalment of the purchase price or discharge any other security, property or party in connection with this transaction. The Events of Default are as follows:
(a) Failure to pay the principal or interest on the Borrower's present or future indebtedness to the Lender, whether or not arising pursuant to this Agreement, when and as the same shall be due and payable, whether by acceleration or otherwise; provided that such default has not been cured prior to the expiration of ten (10) days following the date upon which the Lender gives the Borrower written Notice of Default. In this Section 9, Notice of Default shall be deemed to have been given part thereof except (i) on with the date prior written consent of personal delivery of such written notice to a GuarantorSeller, or (ii) on the date on which a duly authorized representative upon ascertainment of the Borrower acknowledges receipt of such written notice, or (iii) on the day after sending such written notice to the Borrower by a commonly recognized overnight courier service, such as Federal Express, Purolator, UPS or the like, or (iv) on the third day after sending such written notice to the Borrower by facsimile (to both numbers set forth in Section 16.7) or by depositing the same in the United States mail, postage prepaid, for delivery to the Borrower.
(b) Failure to observe, perform and comply with any of the obligations evidenced or secured by a Loan Document, other than as provided in Sections 9.1(a) above; provided that such default has not been cured prior to the expiration of thirty (30) days following the date upon which the Lender gives the Borrower written Notice of Default.
(c) Failure to duly and punctually pay, observe and discharge all Indebtedness and other obligations of the Borrower to any third party, unless the same is being contested in good faith by appropriate proceedings and the Borrower has set aside on its books adequate reserves with respect to such Indebtedness or other obligations.
(d) The discovery by the Lender of any material inaccuracy in any statement, assurance, representation, covenant, warranty, term or condition by the Borrower contained in this Agreement or in any document delivered or to be delivered by or on behalf of the Borrower pursuant to this Agreement, which inaccuracy would result in a Material Adverse Effect (except that inaccuracies in the Borrower's Due Diligence Documents attributable to the fault or neglect of third-parties shall not constitute a breach of this Section 9.1(d)), or in any other Loan Document, or in any other agreement between the Borrower and the Lender.
(e) The filing of a petition by or against the Borrower or any Affiliate seeking relief under the Federal Bankruptcy Code, 11 U.S.C. ss. 101, et seq., and any amendments thereto, or any similar law or regulation, whether federal, state or local, not dismissed within 30 days.
(f) The commencement of a proceeding by or against the Borrower or any Affiliate under any statute or other law providing for an assignment for the benefit of creditors, the appointment of a receiver, or any other similar law or regulation, whether federal, state or local, not dismissed within 30 days.
(g) The garnishment, attachment, levy or other similar action taken by or on behalf of any creditor of the Borrower, any Affiliate, or any of their respective properties which could have a Material Adverse Effect.
(h) Any change in control of the Borrower, Madison Liquidity Investors 104, MACG from that disclosed in Section 2 of this Agreement.
9.2 The Lender may, at its option, terminate its obligation to make advances of the Loan, without notice to the Borrower:
(a) upon the occurrence and continuance of any Event of Default set forth in subsections 9.1
(a) through 9.1(h) above; or (b) upon the occurrence and continuance of any event which, with the giving of notice or the lapse of time, or both, would constitute an Event of Default or by Seller by final decision of a court of competent jurisdiction.
(C4) upon The parties are agreed that the death or disability representations of Seller contained in Article C of this Agreement, including the Schedule of Additional Representation attached to this Agreement as Exhibit F , do not constitute guarantees of quality within the meaning of § 4▇▇ ▇▇▇ (▇▇▇▇▇▇ Civil Code) but are to be regarded as “Beschaffenheitsmerkmale.”
(5) The Seller shall be liable solely in accordance with the regulations of this Agreement, save in the case of fraud or intentional misrepresentation. The right to rescind, save in the case of fraud or intentional misrepresentation, and the right to improvement or subsequent performance under §§ 437 N▇. ▇, ▇▇▇ ▇▇▇ (▇▇▇▇▇▇ Civil Code) are expressly excluded.
(6) Upon the happening of an Event of Default by the Buyer, the Seller shall be entitled to exercise all rights and remedies to which it may be entitled according to German law and this Agreement including, if applicable, its rights and remedies under the Assignment Agreement and Security Agreement attached to this Agreement as, respectively, Exhibit G and Exhibit H, and its rights and remedies under the Pledge Agreement attached to this Agreement as Exhibit I.
(7) All claims arising from or in connection with this Agreement shall become time-barred two years after the date of signature of this Agreement.
Appears in 2 contracts
Sources: Purchase Agreement (Artes Medical Inc), Purchase Agreement (Artes Medical Inc)
Events of Default and Remedies. 9.1 The (a) Owner Trustee shall be in default upon the occurrence of any one of the following events shall constitute (each an "Event of Default" under this Agreement"):
(i) Owner Trustee shall fail to pay any amount payable in respect of any Secured Obligations when due (including the expiration of any applicable grace periods);
(ii) any representation, warranty or information herein, heretofore or hereafter furnished to Mortgagee by Owner Trustee in connection with any of the occurrence Secured Obligations, including any warranty made by Owner Trustee through the submission of which shall entitle the Lender any schedule, statement, certificate or other document pursuant to pursue any and all rights and remedies, legal and equitable, available to it under any Loan Document or otherwise. The Occurrence of an Event Default under this Agreement shall constitute a default under each and every other Loan Document. The Lender's rights and remedies are cumulative and may be exercised concurrently or successively from time to time. Any action by the Lender against any property or party shall not serve to release or discharge any other security, property or party in connection with this transaction. The Events Mortgage, shall be false or misleading in any material respect; or
(iii) there shall exist any Event of Default are as follows:
(a) Failure to pay defined under the principal or interest on Loan Agreement. Upon the Borrower's present or future indebtedness to the Lender, whether or not arising pursuant to this Agreement, when and as the same shall be due and payable, whether by acceleration or otherwise; provided that such default has not been cured prior to the expiration occurrence of ten (10) days following the date upon which the Lender gives the Borrower written Notice any Event of Default. In this Section 9, Notice of Default shall be deemed Mortgagee, at its option, may exercise any rights and remedies provided to have been given Agent under the Loan Agreement and/or available at law or equity, including all rights and remedies provided under the Uniform Commercial Code in any jurisdiction where enforcement is sought, which include but are not limited to, the following: (i) on without notice accelerate the date maturity of personal delivery any part or all of such written notice the Secured Obligations and terminate any agreement for the granting of further credit to a Guarantor, or Borrower; (ii) on the date on which a duly authorized representative sell, lease or otherwise dispose of the Borrower acknowledges receipt of such written notice, Collateral at public or private sale; (iii) on the day after sending such written notice to the Borrower by a commonly recognized overnight courier service, such as Federal Express, Purolator, UPS transfer any Collateral into its own name or the like, or that of its nominee; (iv) retain Collateral in satisfaction of the Secured Obligations, with notice of such retention sent to Owner Trustee as required by law; (v) notify any parties obligated on any Collateral consisting of Accounts, Instruments, Chattel Paper, choses in action or the third day after sending such written notice like to make payment to Mortgagee and enforce collection of any Collateral; (vi) file any action or proceeding which Mortgagee deems necessary or appropriate to protect and preserve the right, title and interest of Mortgagee in the Collateral; (vii) exercise its banker's lien or right of setoff in the same manner as though the credit were unsecured and (viii) apply all or a portion of sums received or collected from or on account of Collateral, including the proceeds of any sales thereof, to the Borrower payment of the costs and expenses incurred in preserving and enforcing rights of Mortgagee including reasonable attorneys' fees (including the reasonably allocated costs of Mortgagee's in-house counsel, but in no event including general overhead and administrative expenses or expenses in excess of the cost of work if performed by facsimile (comparable outside counsel), and after application of such sums to both numbers the Secured Obligations as set forth in Section 16.7) or by depositing the same Loan Agreement, Mortgagee shall account to Owner Trustee for any surplus remaining thereafter, and shall pay such surplus to the party entitled thereto, including any second secured party who has made a proper demand upon Mortgagee and has furnished proof to Mortgagee as requested in the United States mailmanner provided by law; in like manner, postage prepaid, for delivery Owner Trustee agrees to the Borrowerpay to Mortgagee without demand any deficiency after any Collateral has been disposed of and proceeds applied as aforesaid.
(b) Failure to observeThe exercise by Mortgagee of any one right or remedy shall not be deemed a waiver or release of or any election against any other right or remedy, perform and comply with any of the obligations evidenced or secured by a Loan Document, other than as provided in Sections 9.1(a) above; provided that such default has not been cured prior to the expiration of thirty (30) days following the date upon which the Lender gives the Borrower written Notice of Default.
(c) Failure to duly and punctually pay, observe and discharge all Indebtedness and other obligations of the Borrower to any third party, unless the same is being contested in good faith by appropriate proceedings Mortgagee may proceed against Owner Trustee and the Borrower has set aside Collateral and any other collateral granted by Owner Trustee to Mortgagee under any other agreement, all in any order and through any available remedies. A waiver on its books adequate reserves with respect to such Indebtedness any one occasion shall not be construed as a waiver or other obligations.
(d) The discovery by the Lender bar on any future occasion. All property of any material inaccuracy in kind held at any statement, assurance, representation, covenant, warranty, term or condition time by Mortgagee as Collateral shall stand as one general continuing collateral security for all the Borrower contained in this Agreement or in any document delivered or to Secured Obligations and may be delivered retained by or on behalf of Mortgagee as security until all the Borrower pursuant to this Agreement, which inaccuracy would result in a Material Adverse Effect (except that inaccuracies in the Borrower's Due Diligence Documents attributable to the fault or neglect of third-parties shall not constitute a breach of this Section 9.1(d)), or in any other Loan Document, or in any other agreement between the Borrower and the LenderSecured Obligations are fully satisfied.
(e) The filing of a petition by or against the Borrower or any Affiliate seeking relief under the Federal Bankruptcy Code, 11 U.S.C. ss. 101, et seq., and any amendments thereto, or any similar law or regulation, whether federal, state or local, not dismissed within 30 days.
(f) The commencement of a proceeding by or against the Borrower or any Affiliate under any statute or other law providing for an assignment for the benefit of creditors, the appointment of a receiver, or any other similar law or regulation, whether federal, state or local, not dismissed within 30 days.
(g) The garnishment, attachment, levy or other similar action taken by or on behalf of any creditor of the Borrower, any Affiliate, or any of their respective properties which could have a Material Adverse Effect.
(h) Any change in control of the Borrower, Madison Liquidity Investors 104, MACG from that disclosed in Section 2 of this Agreement.
9.2 The Lender may, at its option, terminate its obligation to make advances of the Loan, without notice to the Borrower:
(a) upon the occurrence and continuance of any Event of Default set forth in subsections 9.1
(a) through 9.1(h) above; or (b) upon the occurrence and continuance of any event which, with the giving of notice or the lapse of time, or both, would constitute an Event of Default or (C) upon the death or disability of ▇▇▇▇▇ ▇.
Appears in 1 contract
Events of Default and Remedies. 9.1 The (a) It shall be an event of default hereunder if any of the following events shall constitute (each, an "“Event of Default" under this Agreement, the occurrence of which ”) shall entitle the Lender to pursue any occur and all rights and remedies, legal and equitable, available to it under any Loan Document or otherwise. The Occurrence of an Event Default under this Agreement shall constitute a default under each and every other Loan Document. The Lender's rights and remedies are cumulative and may be exercised concurrently or successively from time to time. Any action by the Lender against any property or party shall not serve to release or discharge any other security, property or party in connection with this transaction. The Events of Default are as followscontinuing:
(ai) Failure any failure to pay the principal or interest remit any amounts due and owing on the Borrower's present or future indebtedness to the Lender, whether or not arising pursuant to this Agreement, any Participation Interest when and as the same shall be due and payable, whether by acceleration or otherwise; provided that such default has not been cured prior to the expiration of ten (10) days following the date upon which the Lender gives the Borrower written Notice of Default. In this Section 9, Notice of Default shall be deemed to have been given (i) on the date of personal delivery continuance of such written notice to a Guarantor, or failure for two (2) Business Days;
(ii) on any failure by the date on which a duly authorized representative of Servicer to deliver monthly reports required to be delivered by any Subservicer pursuant to the Borrower acknowledges receipt of such written noticerelated Subservicing Agreement, or any financial statements or reports required to be delivered pursuant to Section 10 of this Agreement which continues unremedied for a period of five (5) Business Days;
(iii) on except for the day after sending such written notice to the Borrower by a commonly recognized overnight courier service, such as Federal Express, Purolator, UPS or the like, or (iv) on the third day after sending such written notice to the Borrower by facsimile (to both numbers set forth in Section 16.7) or by depositing the same in the United States mail, postage prepaid, for delivery to the Borrower.
(b) Failure to observe, perform and comply with any Events of the obligations evidenced or secured by a Loan Document, other than as provided Default described in Sections 9.1(a5(a)(i)-(ii) above; provided that such default has not been cured prior to the expiration of thirty (30) days following the date upon which the Lender gives the Borrower written Notice of Default.
(c) Failure to duly and punctually payherein, observe and discharge all Indebtedness and other obligations of the Borrower to any third party, unless the same is being contested in good faith by appropriate proceedings and the Borrower has set aside on its books adequate reserves with respect to such Indebtedness representation or other obligations.
(d) The discovery warranty made by the Lender of any material inaccuracy in any statement, assurance, representation, covenant, warranty, term or condition by the Borrower contained Servicer in this Agreement or in any document delivered Basic Document shall prove to have been incorrect in any material respect when made or, if made as of a specific date, as of such date, and such breach shall not have been remedied or to be delivered waived within ten (10 calendar days after the earlier of (A) the date that the Servicer becomes aware of such breach or (B) notice thereof from the Certificateholder or the Owner;
(iv) except for the Events of Default described in Sections 5(a)(i)-(iii) herein, a breach or violation by the Servicer of any covenant or on behalf of the Borrower other agreement made pursuant to this AgreementAgreement or any other Basic Document which breach or violation continues for a period of ten (10) calendar days after the earlier of (A) the date that the Servicer becomes aware of such breach or (B) notice thereof from the Certificateholder or the Owner;
(v) the entry of decree of a judgment against the Servicer in excess of that portion not paid or covered by insurance, of greater than $[ ] and the same shall remain undischarged, unvacated or unbonded for a period of forty five (45) consecutive days during which inaccuracy would result in a Material Adverse Effect (except that inaccuracies in the Borrower's Due Diligence Documents attributable to the fault or neglect of third-parties execution shall not constitute a breach of this Section 9.1(d))be effectively stayed;
(vi) the Servicer shall generally not pay its debts as such debts become due, or shall admit in any other Loan Documentwriting its inability to pay its debts generally, or in any other agreement between the Borrower and the Lender.
(e) The filing of shall make a petition by or against the Borrower or any Affiliate seeking relief under the Federal Bankruptcy Code, 11 U.S.C. ss. 101, et seq., and any amendments thereto, or any similar law or regulation, whether federal, state or local, not dismissed within 30 days.
(f) The commencement of a proceeding by or against the Borrower or any Affiliate under any statute or other law providing for an general assignment for the benefit of creditors; or any proceeding shall be instituted by or against any creditor seeking to adjudicate it a bankrupt or insolvent, or seeking liquidation, winding up, reorganization, arrangement, adjustment, protection, relief, or composition of it or its debts under any law relating to bankruptcy, insolvency or reorganization or relief of debtors, or seeking the entry of an order for relief or the appointment of a receiver, or any other similar law or regulation, whether federal, state or local, not dismissed within 30 days.
(g) The garnishment, attachment, levy trustee or other similar action taken by official for it or on behalf for any substantial part of its property and, in the case of any creditor such proceeding instituted against it (but not instituted by it) that is being diligently contested by it in good faith, either such proceeding shall remain undismissed or unstayed for a period of the Borrower, any Affiliate, sixty (60) calendar days or any of their respective properties which could have the actions sought in such proceeding (including, without limitation, the entry of an order for relief against, or the appointment of a Material Adverse Effect.receiver, trustee, custodian or other similar official for, it or any substantial part of its property) shall occur;
(hvii) Any change in control of the Borrower, Madison Liquidity Investors 104, MACG from that disclosed in Section 2 of this Agreement.
9.2 The Lender may, at its option, terminate its obligation to make advances of the Loan, without notice to the Borrower:
(a) upon the occurrence and continuance of any Event of Default set forth in subsections 9.1
(a) through 9.1(h) above; or (b) upon the occurrence and continuance of any event which, with the giving of notice or the lapse of time, or both, would constitute an Event of Default or (C) upon the death or disability of ▇▇▇▇▇▇ ▇▇▇ issues a notice of termination or sale pursuant to the Agency Agreement;
(viii) ▇▇▇▇▇▇ Mae declares the Servicer in default under the Agency Agreement; or
(ix) The Letter of Credit Provider declares the Servicer in default under the Credit Agreement.
(b) The Servicer shall inform the Certificateholder promptly, in writing, upon the occurrence of an Event of Default hereunder.
(c) If any Event of Default shall have occurred and be continuing, subject to any restrictions imposed by the Agency Agreement:
(i) The Certificateholder shall have the right to appoint a successor subservicer to replace any Subservicer under any Subservicing Agreement;
(ii) The Certificateholder may exercise in respect of the Collateral, in addition to other rights and remedies provided for herein or otherwise available to it, all the rights and remedies of a secured party upon default under the UCC (whether or not the UCC applies to the affected Collateral) and also may: (A) require the Servicer to, and the Servicer hereby agrees that it will at its expense and upon request of any the Certificateholder forthwith, assemble all or part of the Collateral as directed by the Certificateholder and make it available to the Certificateholder at a place and time to be designated by the Certificateholder that is reasonably convenient to both parties; (B) without notice except as specified below, sell the Collateral or any part thereof in one or more parcels at public or private sale, at any of the Certificateholder’s offices or elsewhere, for cash, on credit or for future delivery, and upon such other terms as the Certificateholder may deem commercially reasonable; (C) occupy any premises owned or leased by the Servicer where the Collateral or any part thereof is located, in order to remove such Collateral (or make copies or extracts thereof) and otherwise affect its rights and remedies hereunder or under any law with respect thereto; and (D) exercise any and all rights and remedies of the Servicer under or in connection with the Collateral, or otherwise in respect of the Collateral, including, without limitation, (1) any and all rights of the Servicer to demand or otherwise require payment of any amount under, or performance of any provision of the Agency Agreement or Subservicing Agreements with respect to the related Collateral, (2) withdraw, or cause or direct the withdrawal, of all funds relating to the related Collateral (for the avoidance of doubt, other than advance reimbursement amounts owed to any third party financing such advance amounts, which shall not be deemed Collateral), and (3) exercise all other rights and remedies with respect to the Agency Agreement, Credit Agreement, or Subservicing Agreements with respect to the related Collateral including, without limitation, those set forth in Section 9-607 of the UCC. The Certificateholder shall not be obligated to make any sale of Collateral regardless of notice of sale having been given. The Certificateholder may adjourn any public or private sale from time to time by announcement at the time and place fixed therefor, and such sale may, without further notice, be made at the time and place to which it was so adjourned;
(iii) all payments owing to and received by the Servicer under or in connection with the Agency Agreement or Subservicing Agreement with respect to the Collateral shall be received in trust for the benefit of the Certificateholder, shall be segregated from other funds of the Servicer and shall be forthwith paid over to the Certificateholder in the same form as so received (with any necessary endorsement);
(iv) the Certificateholder shall foreclose upon or otherwise enforce its security interest in the Collateral, or on such portions or elements thereof as the Certificateholder shall elect to proceed against from time to time;
(v) the Certificateholder may (i) notify any or all obligors of Servicing Rights from which the Collateral arises that such Servicing Rights have been assigned to the Certificateholder and that all payments thereon are to be made directly to the the Certificateholder or such other Person as may be designated by the Certificateholder; (ii) settle, compromise, or release, in whole or in part, any amounts owing on the Servicing Rights from which the Collateral arises or any portion of the Servicing Rights from which the Collateral arises, on terms reasonably acceptable to the Certificateholder and (iii) take reasonable steps to enforce payment and performance and to prosecute any reasonable action or proceeding with respect to any and all Servicing Rights from which the Collateral arises and where any such Servicing Rights are in default, take reasonable steps to collect, foreclose on and enforce liens or security interests securing, such Servicing Rights from which the Collateral arises by any available judicial procedure or without judicial process, whichever is reasonable under the circumstances, and sell property acquired as a result of any such foreclosure;
(vi) the Certificateholder shall act, or contract with one or more third Persons to act, as servicer, special servicer or subservicer of the Servicing Rights from which the Collateral arises requiring servicing and perform all obligations required in connection with the Agency Agreement, and the Servicer shall pay such third Persons’ reasonable fees to the extent (if any) that the Certificateholder is unable, despite reasonable efforts made by the Certificateholder in light of the necessity that there be no material break in the continuity of servicing, to contract for such servicing and performance of such obligations for fees equal to or less than the fees under the Agency Agreement, provided such third Person reimburses the Servicer for outstanding advances of principal and interest and other advances reimbursable under such Agency Agreement to the extent such amounts are owed or pledged to third parties that provided financing for such advance amounts; and
(vii) the Certificateholder shall exercise all rights and remedies of a secured creditor under the UCC or any other relevant jurisdiction, including selling the interests of the Servicer in the Collateral at public or private sale. The Certificateholder shall give the Servicer not less than ten (10) calendar days’ notice of any such public sale or of the date after which a private sale may be held, unless the circumstances of the applicable Event of Default require the immediate transfer of the Collateral. The Servicer agrees that ten (10) calendar days’ notice shall be reasonable notice, unless the circumstances of the applicable Event of Default require the immediate transfer of the Collateral, in which event the Servicer hereby waives any right to prior notice. At any such sale the Collateral may be sold as an entirety or in separate parts, as any Certificateholder may determine. The Certificateholder may, without notice or publication, adjourn any public or private sale or cause the same to be adjourned from time to time by announcement at the time and place fixed for the sale, and such sale may be made at any time or place to which the same may be so adjourned. The Certificateholder is authorized at any such sale, if the Certificateholder deems it advisable so to do, to restrict the prospective bidders or purchasers to Persons who are acceptable to the credit rating agencies and other parties to the Agency Agreement. Upon any such sale, the Certificateholder shall have the right to deliver, assign and transfer to the purchaser thereof the Collateral so sold. Each purchaser at any such sale shall hold the property sold absolutely free from any claim or right of whatsoever kind, including any equity or right of redemption, stay or appraisal which the Servicer have or may have under any rule of law or statute now existing or hereafter adopted. In case of any sale of all or any part of the Collateral on credit or for future delivery, the Collateral so sold may be retained by the Certificateholder until the selling price is paid by the purchaser, but the Certificateholder shall not incur any liability in case of such purchaser’s failure to take up and pay for the Collateral so sold and, in case of any such failure, such Collateral may again be sold upon like notice. The Certificateholder may, however, instead of exercising the power of sale herein conferred upon it, proceed by a suit or suits at law or in equity to collect all amounts due upon the Collateral or to foreclose the pledge and sell the Collateral or any portion of it under a judgment or decree of a court or courts of competent jurisdiction, or both;
(viii) The Certificateholder shall not incur any liability as a result of the sale of the Collateral, or any part of it, at any private sale and so long as the Certificateholder acts in accordance with any non-waivable requirements imposed by the UCC, the Servicer hereby waives any claims it may have against the Certificateholder arising by reason of the fact that the price at which the Collateral may have been sold at such private sale was less than the price that might have been obtained at a public sale, even if the Certificateholder accepts the first offer received and does not offer the Collateral to more than one offeree, but not if the Certificateholder or an affiliate thereof acquires the Collateral;
(ix) the Servicer waives any right to require the Certificateholder (A) to proceed against any Person, (B) proceed against or exhaust any of the Collateral or pursue its rights and remedies as against the Collateral in any particular order or (C) pursue any other remedy in its power;
(x) the Certificateholder may, but shall not be obligated to do any act or thing necessary to enforce, collect, preserve or reinstate any Collateral and costs and expenses, including reasonable attorneys’ fees and disbursements, incurred or paid by the Certificateholder in exercising any right, power or remedy conferred by this Agreement together with interest thereon, shall be reimbursed by the Servicer.
(d) In addition, the Servicer shall execute a valid power of attorney (“Power of Attorney”) as of the date of the Subordination of Interest Agreement to take any actions with respect to the Collateral on the Servicer’s behalf. Such Power of Attorney shall only be effective upon an occurrence of an Event of Default by the Servicer under the Basic Documents.
(e) Notwithstanding anything to the contrary herein or in any Basic Document, nothing herein or therein shall be construed as the Servicer’s waiver of, or agreement to waive, any requirement imposed by applicable law that any sale of Collateral be commercially reasonable.
Appears in 1 contract
Events of Default and Remedies. 9.1 The In the event of the happening of any one of the following events shall constitute an (hereinafter referred to as a "Event of Default" under this Agreement, the occurrence of which shall entitle the Lender to pursue any and all rights and remedies, legal and equitable, available to it under any Loan Document or otherwise. The Occurrence of an Event Default under this Agreement shall constitute a default under each and every other Loan Document. The Lender's rights and remedies are cumulative and may be exercised concurrently or successively from time to time. Any action by the Lender against any property or party shall not serve to release or discharge any other security, property or party in connection with this transaction. The Events of Default are as follows:"):
(a) Failure the Tenant shall have failed to pay an instalment of Base Rental or of Additional Rent or any other amount payable hereunder when due and such default shall be continuing for a period of more than two (2) days after written notice by the principal Landlord to the Tenant of the amount due;
(b) there shall be a default of or interest with any condition, covenant, agreement or other obligation on the Borrower's present part of the Tenant to be kept, observed or future indebtedness performed hereunder (other than the obligation to the Lenderpay Base Rental, whether Additional Rent or not arising pursuant to this Agreement, when any other amount of money) and as the same such Default shall be due and payable, whether by acceleration or otherwise; provided that such default has not been cured prior to the expiration continuing for a period of more than ten (10) days after written notice by the Landlord to the Tenant specifying the Default and requiring that it discontinue;
(c) if any policy of insurance upon the Building or any part thereof from time to time affected by the Landlord shall be cancelled or about to be cancelled by the insurer by reason of the use or occupation of the Leased Premises by the Tenant or any assignee, sub-tenant or licensee of the Tenant or anyone permitted by the Tenant to be upon the Leased Premises and the Tenant, after receipt of notice in writing from the Landlord, shall have failed to take such immediate steps in respect of such use or occupation as shall enable the Landlord to reinstate or avoid cancellation (as the case may be) of such policy of insurance;
(d) the Leased Premises shall, without the prior written consent of the Landlord, be used by any other persons than the Tenant or its permitted assigns or sub-tenants or for any purpose other than that for which they were leased or occupied or by any persons whose occupancy is prohibited by this Lease;
(e) the Leased Premises shall be vacated or abandoned, or remain unoccupied, without the prior written consent of the Landlord for seven (7) consecutive days or more while capable of being occupied;
(f) the balance of the Term of this Lease or any of the goods and chattels of the Tenant located in the Leased Premises, shall at any time be seized in execution or attachment; or
(g) the Tenant shall make any assignment for the benefit of creditors or become bankrupt or insolvent or take the benefit of any statute for bankrupt or insolvent debtors or, if a corporation, shall take any steps or suffer any order to be made for its winding-up or other termination of its corporate existence; or a trustee, receiver or receiver-manager or agent or other like person shall be appointed of any of the assets of the Tenant; the Landlord shall have the following rights and remedies all of which are cumulative and not alternative and not to the exclusion of any other or additional rights and remedies in law or equity available to the Landlord by statute or otherwise:
(i) to remedy or attempt to remedy any Default of the Tenant, and in so doing to make any payments due or alleged to be due by the Tenant to third parties and to enter upon the Leased Premises to do any work or other things therein, and in such event all reasonable expenses of the Landlord in remedying or attempting to remedy such Default shall be payable by the Tenant to the Landlord on demand;
(ii) with respect to unpaid overdue Rent, to the payment by the Tenant of the Rent and of interest (which said interest shall be deemed included herein in the term "Rent") thereon at a rate per annum equal to three percent (3%) above the prime commercial loan rate charged to borrowers having the highest credit rating from time to time by the Landlord's principal bank from the date upon which the Lender gives same was due until actual payment thereof and the Borrower written Notice of Default. In this Section 9, Notice of Default shall be deemed to have been given (i) on maximum amount allowed under the date of personal delivery of such written notice to a Guarantor, or (ii) on the date on which a duly authorized representative laws of the Borrower acknowledges receipt of such written notice, or jurisdiction in which the Building is located;
(iii) on to terminate this Lease forthwith by leaving upon the day after sending Leased Premises or by affixing to an entrance door to the Leased Premises notice terminating the Lease and to immediately thereafter cease to furnish any services hereunder and enter into and upon the Leased Premises or any part thereof in the name of the whole and the same to have again, repossess and enjoy as of its former estate, anything in this Lease contained to the contrary notwithstanding; and
(iv) to enter the Leased Premises as agent of the Tenant and as such agent to re-let them and to receive the rent therefor and as the agent of the Tenant to take possession of any furniture or other property thereon and upon giving ten (10) days' written notice to the Borrower by a commonly recognized overnight courier service, such as Federal Express, Purolator, UPS Tenant to store the same at the expense and risk of the Tenant or to sell or otherwise dispose of the like, same at public or (iv) on private sale without further notice and to apply the third day after sending such written notice proceeds thereof and any rent derived from re-letting the Leased Premises upon the account of the Rent due and to become due under this Lease and the Tenant shall be liable to the Borrower by facsimile (to both numbers set forth in Section 16.7) or by depositing the same in the United States mail, postage prepaid, for delivery to the Borrower.
(b) Failure to observe, perform and comply with any of the obligations evidenced or secured by a Loan Document, other than as provided in Sections 9.1(a) above; provided that such default has not been cured prior to the expiration of thirty (30) days following the date upon which the Lender gives the Borrower written Notice of Default.
(c) Failure to duly and punctually pay, observe and discharge all Indebtedness and other obligations of the Borrower to any third party, unless the same is being contested in good faith by appropriate proceedings and the Borrower has set aside on its books adequate reserves with respect to such Indebtedness or other obligations.
(d) The discovery by the Lender of any material inaccuracy in any statement, assurance, representation, covenant, warranty, term or condition by the Borrower contained in this Agreement or in any document delivered or to be delivered by or on behalf of the Borrower pursuant to this Agreement, which inaccuracy would result in a Material Adverse Effect (except that inaccuracies in the Borrower's Due Diligence Documents attributable to the fault or neglect of third-parties shall not constitute a breach of this Section 9.1(d)), or in any other Loan Document, or in any other agreement between the Borrower and the Lender.
(e) The filing of a petition by or against the Borrower or any Affiliate seeking relief under the Federal Bankruptcy Code, 11 U.S.C. ss. 101, et seq., and any amendments thereto, or any similar law or regulation, whether federal, state or local, not dismissed within 30 days.
(f) The commencement of a proceeding by or against the Borrower or any Affiliate under any statute or other law providing for an assignment Landlord for the benefit of creditors, the appointment of a receiver, or any other similar law or regulation, whether federal, state or local, not dismissed within 30 daysdeficiency if any.
(g) The garnishment, attachment, levy or other similar action taken by or on behalf of any creditor of the Borrower, any Affiliate, or any of their respective properties which could have a Material Adverse Effect.
(h) Any change in control of the Borrower, Madison Liquidity Investors 104, MACG from that disclosed in Section 2 of this Agreement.
9.2 The Lender may, at its option, terminate its obligation to make advances of the Loan, without notice to the Borrower:
(a) upon the occurrence and continuance of any Event of Default set forth in subsections 9.1
(a) through 9.1(h) above; or (b) upon the occurrence and continuance of any event which, with the giving of notice or the lapse of time, or both, would constitute an Event of Default or (C) upon the death or disability of ▇▇▇▇▇ ▇.
Appears in 1 contract
Sources: Lease (Certicom Corp)
Events of Default and Remedies. 9.1 The (a) Any of the following events of default by the Lessee shall constitute an "“Event of Default" ” and give rise to the rights on the part of the Lessor described in Section 25(b) hereof:
(i) default in the payment of any amount payable by the Lessee under this Agreement, Section 10(c); or
(ii) default in the payment of any other amount payable by the Lessee hereunder and the continuance of such default for 5 days; or
(iii) default in the payment or performance of any other liability or other obligation or covenant of the Lessee to the Lessor hereunder and the continuance of such default for 30 days after the occurrence thereof; or
(iv) the Lessee or any Guarantor admits insolvency or bankruptcy or is unable to pay its debts as they mature, or makes an assignment for the benefit of which shall entitle creditors or applies for or consents to the Lender appointment of a trustee or receiver for the Lessee or for any Guarantor, or for the major part of its property other than the trustees pursuant to pursue any the Mortgage and all rights and remediesDeed of Trust; or
(v) bankruptcy, legal and equitablereorganization, available to it arrangement, insolvency or liquidation proceedings, or other proceedings for relief under any Loan Document bankruptcy law or otherwise. The Occurrence similar law for the relief of an Event Default under this Agreement shall constitute a default under each debtors, are instituted by or against the Lessee or any Guarantor, and every other Loan Document. The Lender's rights and remedies if instituted against the Lessee or any Guarantor are cumulative and may be exercised concurrently allowed against the Lessee or successively from time any Guarantor or are consented to time. Any action or are not dismissed, stayed or otherwise nullified within 60 days after such institution; or
(vi) any representation or warranty made by the Lender against Lessee in this Lease or by any property Guarantor in its Guaranty, or party shall not serve to release in any related instrument, or discharge in any report, certificate, financial statement or other security, property or party instrument furnished in connection with this transaction. The Events of Default are as follows:Lease or any Guaranty shall prove to be false or misleading in any material respect; or
(avii) Failure a default or event of default under any instrument evidencing indebtedness for borrowed money (or under the provisions of any agreement pursuant to pay which such instrument was issued) in excess of $10,000,000 and providing the principal holder thereof with recourse against the Lessee or interest on the Borrower's present or future any Guarantor shall cause such indebtedness to become due prior to its stated maturity; or
(viii) one or more final judgments for the Lender, whether payment of money shall be rendered against the Lessee or not arising pursuant to this Agreement, when any Guarantor in an aggregate amount in excess of $10,000,000 and as the same shall remain undischarged for a period of 30 days during which execution of such judgment shall not be due and payable, whether by acceleration or otherwise; provided that such default has not been cured prior effectively stayed. The references to the expiration of ten (10) days following the date upon which the Lender gives the Borrower written Notice of Default. In this Section 9, Notice of Default shall be deemed to have been given (i) on the date of personal delivery of such written notice to a Guarantor, or (ii) on the date on which a duly authorized representative of the Borrower acknowledges receipt of such written notice, or (iii) on the day after sending such written notice to the Borrower by a commonly recognized overnight courier service, such as Federal Express, Purolator, UPS or the like, or (iv) on the third day after sending such written notice to the Borrower by facsimile (to both numbers Guarantor set forth in Section 16.725(a)(iv)-(viii) or by depositing the same in the United States mail, postage prepaid, for delivery hereof shall have no force and effect with respect to the Borrowera Guarantor under any Guaranty which shall have been terminated.
(b) Failure to observeUpon the occurrence of any Event of Default, perform and comply with the Lessor may in its discretion do any one or more of the following:
(i) treat the Event of Default as an event under Section 20(a) hereof, entitling Lessor to the consequent benefits of Section 20(b) hereof and in general proceed by appropriate judicial proceedings, either at law or in equity, to enforce performance or observance by the Lessee of the applicable provisions of this Lease, or to recover damages for the breach of any thereof; or
(ii) by notice to the Lessee terminate this Lease, whereupon the Lessee’s interest and all rights of the Lessee and Persons claiming through or under the Lessee to the use of the Nuclear Fuel shall forthwith terminate but the Lessee shall remain liable with respect to obligations evidenced and liabilities, actual or secured by a Loan Documentcontingent, other than as provided in Sections 9.1(a) above; provided that such default has not been cured which arose under this Lease on or prior to the expiration date of thirty such termination and the Lessee’s obligations set forth in Section 11 and this Section 25(b)(ii) and, until the earlier of (301) days following Lessor’s taking possession of the Nuclear Fuel or Lessee’s delivering the Nuclear Fuel as set forth below or (2) final and uncontested payment of the amounts referred to in (A) and (B) below, Sections 9, 13, 14 and 17; and upon such termination the Lessor shall have the immediate right of possession of the Nuclear Fuel (to the extent not prohibited by law) and the right, at the Lessor’s election, either to enter the Generating Facility or any other premises where the Nuclear Fuel or any portion thereof is located and remove the Nuclear Fuel or such portion thereof there located (to the extent not prohibited by law) or cause the same to be done by any Person entitled by law so to do, in which case the Lessor shall not be responsible for any damage to the Generating Facility or such premises, except for damage resulting from the Lessor’s willful misconduct or gross negligence (the Lessee hereby agreeing to indemnify and hold the Lessor harmless from all losses and liabilities in respect of any such damage to the Generating Facility, such premises or the Nuclear Fuel or injury to the Lessor’s, the Lessee’s or such other Person’s employees sustained in the course of such removal, except any such damage resulting from the Lessor’s willful misconduct or gross negligence, provided that the Lessee hereby further agrees that the misconduct or negligence of the Assignee shall not be imputed to the Lessor), or to require the Lessee, at the Lessee’s expense, to deliver the Nuclear Fuel or any portion thereof, properly containerized and insulated for shipping, at the Generating Facility and consigned to a Person specified by the Lessor and licensed to receive such Nuclear Fuel, in which case the risk of loss shall be upon the Lessee until such delivery is made; and the Lessor may thenceforth hold, possess and enjoy the Nuclear Fuel (to the extent not prohibited by law) and may sell the Lessor’s interest in the Nuclear Fuel or any portion thereof upon any terms deemed satisfactory to the Lessor, free from any rights of the Lessee and any Person claiming through or under the Lessee; but the Lessor shall, nevertheless, have the right to recover forthwith from the Lessee:
(A) any and all Basic Rent, Additional Rent, Advance Rent and all other amounts payable by the Lessee hereunder which may be due and unpaid immediately prior to such termination or which may then be accrued and unpaid;
(B) as liquidated damages for loss of the bargain and not as a penalty, an amount equal to the excess of (x) the sum of (i) the Stipulated Loss Value of the Nuclear Fuel as of the date upon of such termination of this Lease plus (ii) the Termination Rent, over (y) the amount, if any, realized by the Lessor in a sale of the Nuclear Fuel (at which the Lender gives Lessor may be a purchaser), without set-off, defense or reduction other than a deduction from the Borrower written Notice sale price of all the costs of such sale, including reasonable legal fees, commissions, sales taxes and other customary charges; it being understood that the Lessor shall have no obligation to conduct any such sale, and that the Lessor may, in lieu of conducting such sale, transfer and convey title to, and its entire ownership interest in, the Nuclear Fuel to the Lessee or any trustee or liquidator therefor upon the terms and conditions set forth in Section 21, but that, if the Lessor conducts such sale, the Nuclear Fuel may be sold free and clear of all rights of the Lessee; and
(C) any and all other damages and expenses (including, without limitation, reasonable attorneys’ fees and expenses), which the Lessor shall have sustained by reason of the breach of any provision of this Lease. The Lessee hereby waives, to the full extent not prohibited by law, any right it may now or hereafter have to require the sale, in mitigation of damages, of the Nuclear Fuel or any portion thereof consequent to an Event of Default.
(c) Failure Pending Lessor’s exercise of any available remedy to duly and punctually paytake or deliver to a third party possession of any Nuclear Fuel, observe and discharge all Indebtedness and other obligations the Lessee shall be responsible for the storage of the Borrower to any third party, unless the same is being contested in good faith by appropriate proceedings and the Borrower has set aside on its books adequate reserves with respect to such Indebtedness or other obligationsNuclear Fuel.
(d) The discovery by the Lender of any material inaccuracy remedies herein provided in any statement, assurance, representation, covenant, warranty, term or condition by the Borrower contained in this Agreement or in any document delivered or to be delivered by or on behalf favor of the Borrower pursuant to this Agreement, which inaccuracy would result Lessor in a Material Adverse Effect (except that inaccuracies in the Borrower's Due Diligence Documents attributable to the fault or neglect case of third-parties shall not constitute a breach of this Section 9.1(d)), or in any other Loan Document, or in any other agreement between the Borrower and the Lender.
(e) The filing of a petition by or against the Borrower or any Affiliate seeking relief under the Federal Bankruptcy Code, 11 U.S.C. ss. 101, et seq., and any amendments thereto, or any similar law or regulation, whether federal, state or local, not dismissed within 30 days.
(f) The commencement of a proceeding by or against the Borrower or any Affiliate under any statute or other law providing for an assignment for the benefit of creditors, the appointment of a receiver, or any other similar law or regulation, whether federal, state or local, not dismissed within 30 days.
(g) The garnishment, attachment, levy or other similar action taken by or on behalf of any creditor of the Borrower, any Affiliate, or any of their respective properties which could have a Material Adverse Effect.
(h) Any change in control of the Borrower, Madison Liquidity Investors 104, MACG from that disclosed in Section 2 of this Agreement.
9.2 The Lender may, at its option, terminate its obligation to make advances of the Loan, without notice to the Borrower:
(a) upon the occurrence and continuance of any Event of Default set forth in subsections 9.1
(a) through 9.1(h) above; or (b) upon the occurrence and continuance of any event which, with the giving of notice or the lapse of time, or both, would constitute an Event of Default as hereinabove set forth shall not be deemed to be exclusive, but shall be cumulative and shall be in addition to all other remedies in its favor existing at law, in equity or (C) upon the death or disability of ▇▇▇▇▇ ▇in bankruptcy.
Appears in 1 contract
Events of Default and Remedies. 9.1 The If any of the following events shall constitute occur, each such event shall be an "Event of Default" under this Agreement, the occurrence of which shall entitle the Lender to pursue any and all rights and remedies, legal and equitable, available to it under any Loan Document or otherwise. The Occurrence of an Event Default under this Agreement shall constitute a default under each and every other Loan Document. The Lender's rights and remedies are cumulative and may be exercised concurrently or successively from time to time. Any action by the Lender against any property or party shall not serve to release or discharge any other security, property or party in connection with this transaction. The Events of Default are as follows":
(a) Failure any material representation or warranty made by the Applicant in this Agreement (or incorporated herein by reference) or in any of the other Related Documents or in any certificate, document, instrument, opinion or financial or other statement contemplated by or made or delivered pursuant to or in connection with this Agreement or with any of the other Related Documents, shall prove to have been incorrect, incomplete or misleading in any material respect;
(b) any "event of default" shall have occurred under any of the Related Documents or that certain Note Purchase Agreement Dated as of August 30, 1994 regarding the $45,000,000 8.30% Senior Notes, Series A of Grif▇▇▇▇ ▇▇▇s (as defined respectively therein);
(c) failure to pay the principal or interest on the Borrower's present or future indebtedness to the Lender, whether or not arising pursuant to this Agreement, Bank any Obligations when and as due hereunder and such failure shall continue for five days after the same shall be occurrence thereof;
(d) default in the due observance or performance by the Applicant of any covenant set forth in Article Five hereof and payable, whether by acceleration or otherwise; provided that such default has not been cured prior to shall continue for fifteen days after the expiration earlier of ten (10) days following the date upon which the Lender gives the Borrower written Notice of Default. In this Section 9, Notice of Default shall be deemed to have been given (i) the day on which the date President, the Chief Financial Officer or the Treasurer of personal delivery the Applicant first obtains knowledge of such default or (ii) the day on which written notice thereof is given to a Guarantorthe Applicant by the Bank;
(e) default in the due observance or performance by the Applicant of any other term, covenant or agreement set forth in this Agreement which is not remedied within 30 days after the earlier of (i) the day on which the President, the Chief Financial Officer or the Treasurer of the Applicant first obtains knowledge of such default, or (ii) on the date day on which a duly authorized representative of the Borrower acknowledges receipt of such written notice, or (iii) on the day after sending such written notice thereof is given to the Borrower Applicant by a commonly recognized overnight courier service, such as Federal Express, Purolator, UPS or the like, or (iv) on the third day after sending such written notice to the Borrower by facsimile (to both numbers set forth in Section 16.7) or by depositing the same in the United States mail, postage prepaid, for delivery to the Borrower.
(b) Failure to observe, perform and comply with any of the obligations evidenced or secured by a Loan Document, other than as provided in Sections 9.1(a) aboveBank; provided that if any such default has not been cured prior to the expiration of thirty (30) days following the date upon which the Lender gives the Borrower written Notice of Default.
(c) Failure to duly and punctually pay, observe and discharge all Indebtedness and other obligations of the Borrower to any third party, unless the same is being contested in good faith by appropriate proceedings and the Borrower has set aside on its books adequate reserves with respect to such Indebtedness or other obligations.
(d) The discovery than one curable by the Lender payment of any material inaccuracy in any statementmoney) may be cured, assurancebut not within such 30 day period, representation, covenant, warranty, term or condition by the Borrower contained in this Agreement or in any document delivered or to be delivered by or on behalf of the Borrower pursuant to this Agreement, which inaccuracy would result in a Material Adverse Effect (except that inaccuracies in the Borrower's Due Diligence Documents attributable to the fault or neglect of third-parties it shall not constitute a breach an Event of this Section 9.1(d))Default hereunder if the Applicant promptly commences to cure such default, or diligently pursues such cure to completion and such defaults is in any other Loan Document, or in any other agreement between the Borrower and the Lender.
(e) The filing of a petition by or against the Borrower or any Affiliate seeking relief under the Federal Bankruptcy Code, 11 U.S.C. ss. 101, et seq., and any amendments thereto, or any similar law or regulation, whether federal, state or local, not dismissed fact cured within 30 days.90 days thereafter;
(f) The commencement any material provision of a proceeding by or against the Borrower this Agreement or any Affiliate of the Related Documents shall cease to be valid and binding, or the Applicant shall contest any such provision, or the Applicant or any agent or trustee on behalf of an Applicant shall deny that it has any or further liability under this Agreement or any statute of the Related Documents;
(g) Grif▇▇▇▇ ▇▇▇s, the Applicant or other law providing any Significant Restricted Subsidiary of Grif▇▇▇▇ ▇▇▇s shall (i) have entered involuntarily against it an order for relief under the Bankruptcy Code of 1978, as amended, (ii) not pay, or admit in writing its inability to pay, its debts generally as they become due or suspend payment of its obligations, (iii) make an assignment for the benefit of creditors, (iv) apply for, seek, consent to, or acquiesce in, the appointment of or a receiver, custodian, trustee, conservator, liquidator or similar official for it or any other similar substantial part of its property, (v) institute any proceeding seeking to have entered against it an order for relief under the Bankruptcy Code of 1978, as amended, to adjudicate it insolvent, or seeking dissolution, winding up, liquidation, reorganization, arrangement, marshaling of assets, adjustment or composition of it or its debts under any law relating to bankruptcy, insolvency or regulation, whether federal, state reorganization or local, not dismissed within 30 days.
(g) The garnishment, attachment, levy relief of debtors or fail to file an answer or other similar action taken by or on behalf pleading denying the material allegations of any creditor such proceeding filed against it, (vi) fail to contest in good faith any appointment or proceeding described in Section 6.1(h) hereof, or (vii) take any action in furtherance of any of the Borrower, any Affiliate, or any of their respective properties which could have a Material Adverse Effect.foregoing purposes;
(h) Any change in control of the Borrowera custodian receiver, Madison Liquidity Investors 104trustee, MACG from that disclosed in Section 2 of this Agreement.
9.2 The Lender mayconservator, at its option, terminate its obligation to make advances of the Loan, without notice to the Borrower:
(a) upon the occurrence and continuance of any Event of Default set forth in subsections 9.1
(a) through 9.1(h) above; liquidator or (b) upon the occurrence and continuance of any event which, with the giving of notice or the lapse of time, or both, would constitute an Event of Default or (C) upon the death or disability of ▇similar official shall be appointed for Grif▇▇▇▇ ▇▇▇s, the Applicant or any Significant Restricted Subsidiary of Grif▇▇▇▇ ▇▇▇s or any substantial part of its property, or a proceeding described in Section 6.1(g)(v) shall be instituted against Grif▇▇▇▇ ▇▇▇s, the Applicant or any Significant Restricted Subsidiary of Grif▇▇▇▇ ▇▇▇s and such appointment continues undischarged or any such proceeding continues undismissed or unstayed for a period of 60 or more days;
(i) default shall occur and remain uncured for five days under any evidence of Indebtedness in an amount not less than $5,000,000 issued, assumed or guaranteed by Grif▇▇▇▇ Labs, the Applicant or any Restricted Subsidiary or under any indenture, agreement or other instrument under which the same may be issued, and such default shall continue for a period of time sufficient to permit the acceleration of the maturity of any such Indebtedness (whether or not such maturity is in fact accelerated) or any such Indebtedness shall not be paid when and as due (whether by lapse of time, acceleration or otherwise);
(j) Final judgment or judgments for the payment of money aggregating in excess of $2,500,000 is or are outstanding against Grif▇▇▇▇ ▇▇▇s, the Applicant or any Restricted Subsidiary or against any Property of Grif▇▇▇▇ Labs, the Applicant or any Restricted Subsidiary and any one or more of such judgments aggregating at least $1,000,000 have remained unpaid, unvacated, unbonded or unstayed by appeal or otherwise for a period equal to the longer of (i) 30 days from the date of its entry or (ii) the expiration of the period during which no judgment creditor of Grif▇▇▇▇ Labs, the Applicant or such Restricted Subsidiary may execute such judgment against any such Property;
(k) either Grif▇▇▇▇ ▇▇▇s, the Applicant or any member of its Controlled Group shall fail to pay when due an amount or amounts aggregating in excess of $4,000,000 which it shall have become liable to pay to the PBGC or to a Plan under Title IV of ERISA; or notice of intent to terminate a Plan or Plans having aggregate Unfunded Vested Liabilities in excess of $4,000,000 (collectively, a "Material Plan") shall be filed under Title IV of ERISA by Grif▇▇▇▇ ▇▇▇s, the Applicant or any other member of its Controlled Group, any plan administrator or any combination of the foregoing; or the PBGC shall institute proceedings under Title IV of ERISA to terminate or to cause a trustee to be appointed to administer any Material Plan or a proceeding shall be instituted by a fiduciary of any Material Plan against Grif▇▇▇▇ ▇▇▇s, the Applicant or any member of its Controlled Group to enforce Section 515 or 4219(c)(5) of ERISA and such proceeding shall not have been dismissed within thirty (30) days thereafter; or a condition shall exist by reason of which the PBGC would be entitled to obtain a decree adjudicating that any Material Plan must be terminated; or
(l) a default shall occur and be continuing under any agreement between either Grif▇▇▇▇ ▇▇▇s, the Applicant and the Bank or under any obligation owed by the Applicant to the Bank; or
(m) Grif▇▇▇▇ ▇▇▇s shall, at any time, fail to maintain and keep the ratio of Consolidated Current Assets to Adjusted Consolidated Current Liabilities of not less than 1.1 to 1.0; or
(n) Grif▇▇▇▇ ▇▇▇s shall, at any time, fail to maintain and keep Adjusted Consolidated Tangible Net Worth at an amount of not less than $70,000,000; or
(o) the sum of (x) Consolidated Funded Debt of Grif▇▇▇▇ ▇▇▇s and its Restricted Subsidiaries plus (y) Excess Current Debt treated as Funded Debt plus (z) all Excess Transferred Property shall exceed 55% of Consolidated total Capitalization; or
(p) Grif▇▇▇▇ ▇▇▇s shall default in the performance of any of its obligations under the Grif▇▇▇▇ ▇▇▇s Guaranty or disavow any obligation it may have thereunder; or
(q) the occurrence of a Change in Control.
Appears in 1 contract
Sources: Reimbursement Agreement (Griffith Micro Science International Inc)
Events of Default and Remedies. 9.1 The (a) Each of the following events acts or occurrences shall constitute an "a “Lease Event of Default" ” hereunder:
(i) default in the payment of the Purchase Price or the Termination Value on the Cancellation Date or the Purchase Closing Date, as applicable, or in the payment of the Purchase Price or the Final Rent Payment, as applicable, on the Lease Termination Date; or the default in the payment when due of any Basic Rent and the continuance of such default for 5 Business Days thereafter; or the default in the payment when due of any Supplemental Rent, the amount of any Indemnified Risk or any other amount due hereunder or under any other Operative Document and the continuance of such default for 30 days thereafter; or
(ii) any representation or warranty made or deemed made by the Lessee herein shall be false or misleading in any material respect on the date made or deemed made; or
(iii) an Event of Default under the Investment Agreement (other than a Limited Recourse Event of Default);
(iv) the Lessee shall fail to observe or perform any covenant or agreement contained in Sections 12 and 26 of this Lease; or
(v) the Lessee shall fail to observe or perform any covenant or agreement contained (other than those covered by subsections (i) or (iv) above), and such failure shall not have been cured within 10 days, with respect to any covenant contained in Section 14 of this Lease, and 30 days, with respect to any other provision hereof, after the earlier to occur of (A) written notice thereof has been given to the Lessee by the Lessor (acting, in accordance with Section 9.02(a) of the Investment Agreement, of its own accord or at the request of the Majority Funding Parties) or (B) the chief financial, chief operating, chief legal or chief accounting officer of the Lessee or the Guarantor otherwise becomes aware of any such failure; or
(vi) Lessee shall abandon the Facility; provided however that for purposes of this Section 17(a)(vi), the term “abandon” shall not include the mere failure of Lessee to occupy the Facility so long as Lessee continues to perform its obligations hereunder and other Operative Documents including without limitation maintenance of the Facility, maintenance of required insurance, compliance with Governmental Requirements and Insurance Requirements and payment of all Rent.
(b) Subject to Section 9.02 of the Investment Agreement, upon the occurrence and during the continuance of which any Lease Event of Default, as determined by the Lessor, the Lessor (acting, in accordance with Section 9.02(a) of the Investment Agreement, of its own accord or at the direction of the Majority Funding Parties) may do any one or more of the following (without prejudice to the obligations of the Lessee under Section 15(b)(ii)):
(i) proceed by appropriate judicial proceedings, either at law, in equity or in bankruptcy, to enforce performance or observance by the Lessee of the applicable provisions of this Lease, or to recover damages for the breach of any such provisions, or any other equitable or legal remedy, all as the Lessor shall entitle deem necessary or advisable; and/or
(ii) by notice to the Lender Lessee, either (x) terminate this Lease in accordance with Section 15, whereupon the Lessee’s interest and all rights of the Lessee to pursue the use of the Facility shall forthwith terminate subject to the Lessee’s rights under such Section 15 to acquire the Facility on the Purchase Closing Date as provided herein, but the Lessee shall remain liable with respect to its obligations and liabilities hereunder; or (y) terminate the Lessee’s right to possession of the Facility or any part thereof; and/or
(iii) exercise any and all rights other remedies available under applicable law or at equity.
(c) After the occurrence and remediesduring the continuance of a Cancellation Event or Termination Event, legal in the event the Lessor elects not to terminate this Lease and equitablethe Lessee has not exercised its option under Section 15(c), available to it under any Loan Document or otherwise. The Occurrence this Lease shall continue in effect and the Lessor may enforce all of an Event Default under this Agreement shall constitute a default under each and every other Loan Document. The Lender's the Lessor’s rights and remedies are cumulative under this Lease, including, without limitation, the right to recover the Basic Rent and may be exercised concurrently Supplemental Rent, and any other yield protection payments and other amounts with respect thereto, as it becomes due under this Lease or successively from time to timeany other Operative Documents. Any action For the purposes hereof, the following do not constitute a cancellation or termination of this Lease: (i) acts of maintenance or preservation of the Facility or any part thereof, (ii) efforts by the Lender against Lessor to relet the Facility or any property part thereof, including, without limitation, termination of any sublease of the Facility and removal of any tenant from the Site, (iii) or party shall not serve the appointment of a receiver upon the initiative of the Lessor to release or discharge any other security, property or party in connection with protect the Lessor’s interest under this transaction. The Events of Default are as follows:Lease.
(ad) Failure to pay the principal or interest on the Borrower's present or future indebtedness to the Lender, whether or not arising pursuant to this Agreement, when and as the same shall be due and payable, whether by acceleration or otherwise; provided that such default has not been cured prior to the expiration of ten (10) days following the date upon which the Lender gives the Borrower written Notice of Default. In this Section 9, Notice of Default shall be deemed to have been given If (i) on the date Lease Termination Date, the Facility is not acquired by the Lessee or its designee by payment of personal delivery of such written notice to a Guarantorthe Purchase Price, or (ii) on the date on which a duly authorized representative Cancellation Date, the Lessee or its designee has defaulted in its obligation to acquire the Facility and pay the Purchase Price, or if applicable, the Termination Value, in accordance with Lessee’s election under Section 15(b)(ii), then the Lessor shall have the immediate right of possession of the Borrower acknowledges receipt Facility and the right to enter onto the Site and to remove any and all of the Property comprising the Facility, and the Lessor may thenceforth hold, possess and enjoy the Facility free from any rights of the Lessee and any Person claiming by, through or under the Lessee. The Lessor shall be under no liability by reason of any such written notice, or (iii) on the day after sending such written notice to the Borrower by a commonly recognized overnight courier service, such as Federal Express, Purolator, UPS repossession or the like, Facility or (iv) on entry onto the third day after sending such written notice to the Borrower by facsimile (to both numbers set forth in Section 16.7) or by depositing the same in the United States mail, postage prepaid, for delivery to the Borrower.
(b) Failure to observe, perform and comply with any of the obligations evidenced or secured by a Loan Document, other than as provided in Sections 9.1(a) above; provided that such default has not been cured prior to the expiration of thirty (30) days following the date upon which the Lender gives the Borrower written Notice of Default.
(c) Failure to duly and punctually pay, observe and discharge all Indebtedness and other obligations of the Borrower to any third party, unless the same is being contested in good faith by appropriate proceedings and the Borrower has set aside on its books adequate reserves with respect to such Indebtedness or other obligations.
(d) The discovery by the Lender of any material inaccuracy in any statement, assurance, representation, covenant, warranty, term or condition by the Borrower contained in this Agreement or in any document delivered or to be delivered by or on behalf of the Borrower pursuant to this Agreement, which inaccuracy would result in a Material Adverse Effect (except that inaccuracies in the Borrower's Due Diligence Documents attributable to the fault or neglect of third-parties shall not constitute a breach of this Section 9.1(d)), or in any other Loan Document, or in any other agreement between the Borrower and the LenderSite.
(e) The filing of a petition by or against Should the Borrower Lessor elect to repossess the Facility or any Affiliate seeking relief part thereof upon cancellation or termination of this Lease or otherwise in the exercise of the Lessor’s remedies, the Lessee shall peaceably quit and surrender the Facility or any such part thereof to the Lessor and either (i) deliver possession of the Facility to the Lessor or (ii) allow Lessor or its agents or assigns to enter onto the Facility and the Site to remove any and all of the Property comprising the Facility at the expense of the Lessee, and neither the Lessee nor any Person claiming through or under the Federal Bankruptcy Code, 11 U.S.C. ss. 101, et seq., and any amendments thereto, Lessee shall thereafter be entitled to possession or to remain in possession of the Facility or any similar law or regulation, whether federal, state or local, not dismissed within 30 dayspart thereof but shall forthwith peaceably quit and surrender the Facility to the Lessor.
(f) The commencement At any time after the repossession of a proceeding by or against the Borrower Facility or any Affiliate under any statute part thereof, whether or other law providing for an assignment for the benefit of creditorsnot this Lease shall have been cancelled or terminated, the appointment Lessor may (but shall be under no obligation to) relet the Facility or the applicable part thereof without notice to the Lessee, for such term or terms and on such conditions and for such usage as the Lessor in its sole and absolute discretion may determine. The Lessor may collect and receive any rents payable by reason of a receiversuch reletting, and the Lessor shall not be liable for any failure to relet the Facility or for any other similar law or regulation, whether federal, state or local, not dismissed within 30 daysfailure to collect any rent due upon any such reletting.
(g) The garnishmentremedies herein provided in case of a Lease Event of Default are in addition to, attachmentand without prejudice to, levy the Lessee’s continuing obligations under Section 15(b)(ii), and shall not be deemed to be exclusive, but shall be cumulative and shall be in addition to all other remedies existing at law, in equity or in bankruptcy. The Lessor may exercise any remedy without waiving its right to exercise any other similar action taken by remedy hereunder or on behalf of any creditor of the Borrowerexisting at law, any Affiliate, in equity or any of their respective properties which could have a Material Adverse Effectin bankruptcy.
(h) Any change in control No waiver by the Lessor hereunder of any Default or Event of Default shall constitute a waiver of any other or subsequent Default or Event of Default. To the Borrowerextent permitted by applicable law, Madison Liquidity Investors 104, MACG from that disclosed in Section 2 of this Agreement.
9.2 The Lender may, the Lessee waives any right it may have at its option, terminate its obligation any time to make advances of require the Loan, without notice Lessor to mitigate the Borrower:
(a) Lessor’s damages upon the occurrence and continuance of any a Default or Event of Default set forth in subsections 9.1
(a) through 9.1(h) above; by taking any action or (b) upon exercising any remedy that may be available to the occurrence and continuance Lessor, the exercise of any event which, with remedies hereunder being at the giving discretion of notice or the lapse of time, or both, would constitute an Event of Default or (C) upon the death or disability of ▇▇▇▇▇ ▇Lessor.
Appears in 1 contract
Events of Default and Remedies. 9.1 The following events shall constitute an "Event of Default" under this Agreement, Upon the occurrence of which an Event of Default as defined in the Credit Agreement the Bank may, among other actions, so notify the Trustee, and upon receipt of such notice the Trustee shall entitle declare the Lender to pursue any principal of all Bonds then outstanding and all rights accrued and remedies, legal unpaid interest thereon to be due and equitable, available to it under any Loan Document or otherwisepayable immediately. The Occurrence Events of an Event Default under this the Credit Agreement shall constitute a default under each and every other Loan Document. The Lender's rights and remedies are cumulative and may be exercised concurrently or successively from time to time. Any action include, without limitation, failure by the Lender against Lessee to pay any property amount payable under the Credit Agreement; any default or party shall not serve to release Event of Default under the Bond Documents (as defined in the Credit Agreement); any representation or discharge warranty made by the Lessee (or any other security, property or party of its officers) in connection with this transaction. The Events the Credit Agreement or certain other agreements relating to the Bonds being incorrect in any material respect when made; failure by the Lessee to perform or observe any other term, covenant or agreement in the Credit Agreement for a period of Default are as follows:
(a) Failure 20 days after the earlier of a responsible officer of the Lessee having knowledge thereof or receipt of written notice from the Bank; failure to pay any portion of amounts due under the principal or interest on the Borrower's present or future indebtedness to the Lender, whether or not arising pursuant to this Agreement, when and as the same shall be due and payable, whether by acceleration or otherwise; provided that such default has not been cured prior to Revolving Credit Agreement after the expiration of ten (10) days following the date upon which the Lender gives the Borrower written Notice of Default. In this Section 9, Notice of Default shall be deemed to have been given (i) on the date of personal delivery of such written notice to a Guarantor, or (ii) on the date on which a duly authorized representative of the Borrower acknowledges receipt of such written notice, or (iii) on the day after sending such written notice to the Borrower by a commonly recognized overnight courier service, such as Federal Express, Purolator, UPS or the like, or (iv) on the third day after sending such written notice to the Borrower by facsimile (to both numbers set forth in Section 16.7) or by depositing the same in the United States mail, postage prepaid, for delivery to the Borrower.
(b) Failure to observe, perform any applicable grace period and comply with any of the obligations evidenced or secured by a Loan Document, other than as provided in Sections 9.1(a) above; provided that such default has not been cured prior to the expiration of thirty (30) days following the date upon which the Lender gives the Borrower written Notice of Default.
(c) Failure to duly and punctually pay, observe and discharge all Indebtedness and other obligations of the Borrower to any third party, unless the same is being contested in good faith by appropriate proceedings and the Borrower has set aside on its books adequate reserves with respect to such Indebtedness or other obligations.
(d) The discovery waived by the Lender of any material inaccuracy in any statement, assurance, representation, covenant, warranty, term or condition by the Borrower contained in this Agreement or in any document delivered or to be delivered by or on behalf of the Borrower pursuant to this Agreement, which inaccuracy would result in a Material Adverse Effect (except that inaccuracies in the Borrower's Due Diligence Documents attributable to the fault or neglect of third-parties shall not constitute a breach of this Section 9.1(d)), or in any other Loan Document, or in any other agreement between the Borrower and the Lender.
(e) The filing of a petition by or against the Borrower or any Affiliate seeking relief under the Federal Bankruptcy Code, 11 U.S.C. ss. 101, et seq., and any amendments thereto, or any similar law or regulation, whether federal, state or local, not dismissed within 30 days.
(f) The commencement of a proceeding by or against the Borrower or any Affiliate under any statute or other law providing for an assignment for the benefit of creditors, the appointment of a receiver, or any other similar law or regulation, whether federal, state or local, not dismissed within 30 days.
(g) The garnishment, attachment, levy or other similar action taken by or on behalf of any creditor of the Borrower, any Affiliate, or any of their respective properties which could have a Material Adverse Effect.
(h) Any change in control of the Borrower, Madison Liquidity Investors 104, MACG from that disclosed in Section 2 of this Agreement.
9.2 The Lender may, at its option, terminate its obligation to make advances of the Loan, without notice to the Borrower:
(a) upon Bank; the occurrence and continuance of any Event of Default set forth in subsections 9.1
(a) through 9.1(h) aboveunder the Revolving Credit Agreement; acts of insolvency, bankruptcy, dissolution, liquidation or (b) upon receivership of the Lessee; the rendering of certain judgments against the Lessee; the occurrence of a Material Adverse Effect; if any of the documents related to the Letter of Credit cease to be in full force and continuance effect or any party (other than the Bank) contests or disavows its obligations thereunder; more than one Business Day expires after any principal drawing made to purchase Bonds and no Bonds in an aggregate face amount at least equal to the amount of any event which, with the giving of notice drawing are delivered to the Trustee or the lapse Bank; and the abandonment or change in ownership of time, or both, would constitute an Event of Default or (C) upon the death or disability of ▇▇▇▇▇ ▇Project.
Appears in 1 contract
Events of Default and Remedies. 9.1 8.1. The following events occurrence of an Event of Default, as defined in the Credit Agreement, shall constitute an "Event of Default" under this Agreement, .
8.2. Lender shall at all times have the occurrence of which shall entitle the Lender to pursue any and all rights and remedies, legal and equitable, available to it under any Loan Document or otherwise. The Occurrence of an Event Default under this Agreement shall constitute a default under each and every other Loan Document. The Lender's rights and remedies are cumulative of a secured party under the U.C.C. and may be exercised concurrently or successively the Ohio Revised Code as in effect from time to time. Any action by the Lender against any property or party shall not serve to release or discharge any other security, property or party in connection with this transaction. The Events of Default are as follows:
(a) Failure to pay the principal or interest on the Borrower's present or future indebtedness addition to the Lender, whether or not arising pursuant to rights and remedies of a secured party provided elsewhere within this Agreement, when and as the same shall be due and payable, whether by acceleration any Note or otherwise; provided that such default has not been cured prior to the expiration of ten (10) days following the date upon which the Lender gives the Borrower written Notice of Default. In this Section 9, Notice of Default shall be deemed to have been given (i) on the date of personal delivery of such written notice to a Guarantor, or (ii) on the date on which a duly authorized representative of the Borrower acknowledges receipt of such written notice, or (iii) on the day after sending such written notice to the Borrower by a commonly recognized overnight courier service, such as Federal Express, Purolator, UPS or the like, or (iv) on the third day after sending such written notice to the Borrower by facsimile (to both numbers set forth in Section 16.7) or by depositing the same in the United States mail, postage prepaid, for delivery to the Borrower.
(b) Failure to observe, perform and comply with any of the obligations evidenced or secured by a Loan Document, other than as provided in Sections 9.1(a) above; provided that such default has not been cured prior to the expiration of thirty (30) days following the date upon which the Lender gives the Borrower written Notice of Default.
(c) Failure to duly and punctually pay, observe and discharge all Indebtedness and other obligations of the Borrower to any third party, unless the same is being contested in good faith by appropriate proceedings and the Borrower has set aside on its books adequate reserves with respect to such Indebtedness or other obligations.
(d) The discovery by the Lender of any material inaccuracy in any statement, assurance, representation, covenant, warranty, term or condition by the Borrower contained in this Agreement or in any document delivered or to be delivered by or on behalf of the Borrower pursuant to this Agreement, which inaccuracy would result in a Material Adverse Effect (except that inaccuracies in the Borrower's Due Diligence Documents attributable to the fault or neglect of third-parties shall not constitute a breach of this Section 9.1(d)), or in any other Loan Document, or otherwise provided in any other agreement between law or equity.
8.3. Pledgor expressly acknowledges that Lender shall record this Agreement with the Borrower USCO and the Lender.
(e) The filing USPTO, as appropriate. Contemporaneously herewith, Pledgor shall execute and deliver to Lender the Assignment, which Assignment shall have no force and effect and shall be held by Lender in escrow until the occurrence of a petition by or against an Event of Default; provided, that, anything herein to the Borrower or any Affiliate seeking relief under the Federal Bankruptcy Code, 11 U.S.C. ss. 101, et seq., and any amendments thereto, or any similar law or regulation, whether federal, state or local, not dismissed within 30 days.
(f) The commencement of a proceeding by or against the Borrower or any Affiliate under any statute or other law providing for an assignment for the benefit of creditorscontrary notwithstanding, the appointment of a receiver, or any other similar law or regulation, whether federal, state or local, not dismissed within 30 days.
(g) The garnishment, attachment, levy or other similar action taken by or on behalf of any creditor security interest and collateral assignment granted herein shall be effective as of the Borrower, any Affiliate, or any of their respective properties which could have a Material Adverse Effect.
(h) Any change in control of the Borrower, Madison Liquidity Investors 104, MACG from that disclosed in Section 2 date of this Agreement.
9.2 The . After the occurrence of an Event of Default, the Assignment shall immediately take effect upon certification of such fact by an authorized officer of Lender in the form reflected on the face of the Assignment and Lender may, at in its optionsole discretion, terminate its obligation to make advances of record the Loan, without notice to the Borrower:
(a) upon the occurrence and continuance of any Event of Default set forth in subsections 9.1
(a) through 9.1(h) above; or (b) upon the occurrence and continuance of any event which, Assignment with the giving of notice or USCO and the lapse of timeUSPTO, or both, would constitute as appropriate.
8.4. If an Event of Default shall occur, Pledgor irrevocably authorizes and empowers Lender to terminate Pledgor's use of the Collateral and to exercise such rights and remedies as allowed by law. Without limiting the generality of the foregoing, after any delivery or taking of possession of the Collateral, or any thereof, pursuant to this Agreement, then, with or without resort to Pledgor or any other Person or property, all of which Pledgor hereby waives, and upon such terms and in such manner as Lender may deem advisable but subject to the provisions of the Intercreditor Agreement, Lender, in its sole discretion, may sell, assign, transfer and deliver any of the Collateral, together with the associated goodwill, or any interest that Pledgor may have therein, at any time, or from time to time. No prior notice need be given to Pledgor or to any other Person in the case of any sale of Collateral that Lender determines to be declining speedily in value or that is customarily sold in any recognized market, but in any other case Lender shall give Pledgor no fewer than ten days prior notice of either the time and place of any public sale of the Collateral or of the time after which any private sale or other intended disposition thereof is to be made. Pledgor waives advertisement of any such sale and (Cexcept to the extent specifically required by the preceding sentence) upon waives notice of any kind in respect of any such sale. At any such public sale, Lender may purchase the death Collateral, or disability any part thereof, free from any right of ▇▇▇▇▇ ▇redemption, all of which rights Pledgor hereby waives and releases. After deducting all Related Expenses, and after paying all claims, if any, secured by liens having precedence over this Agreement, Lender may apply the net proceeds of each such sale to or toward the payment of the Obligations, whether or not then due, in such order and by such division as Lender in its sole discretion may deem advisable. Any excess, to the extent permitted by law, shall be paid to Pledgor, and the obligors on the Obligations shall remain liable for any deficiency. In addition, Lender shall at all times have the right to obtain new appraisals of Pledgor or the Collateral, the cost of which shall be paid by Pledgor.
Appears in 1 contract
Sources: Intellectual Property Security Agreement (S&W Seed Co)
Events of Default and Remedies. 9.1 The (a) Borrower shall be in default upon the occurrence of any one of the following events shall constitute (each an "Event of Default" under this Agreement"):
(i) Borrower shall fail to pay any amount payable in respect of any Secured Obligations when due (including the expiration of any applicable grace periods);
(ii) any representation, warranty or information herein, heretofore or hereafter furnished to Mortgagee by Borrower in connection with any of the occurrence Secured Obligations, including any warranty made by Borrower through the submission of which shall entitle the Lender any schedule, statement, certificate or other document pursuant to pursue any and all rights and remedies, legal and equitable, available to it under any Loan Document or otherwise. The Occurrence of an Event Default under this Agreement shall constitute a default under each and every other Loan Document. The Lender's rights and remedies are cumulative and may be exercised concurrently or successively from time to time. Any action by the Lender against any property or party shall not serve to release or discharge any other security, property or party in connection with this transaction. The Events Mortgage, shall be false or misleading in any material respect; or
(iii) there shall exist any Event of Default are as follows:
(a) Failure to pay defined under the principal or interest on Loan Agreement. Upon the Borrower's present or future indebtedness to the Lender, whether or not arising pursuant to this Agreement, when and as the same shall be due and payable, whether by acceleration or otherwise; provided that such default has not been cured prior to the expiration occurrence of ten (10) days following the date upon which the Lender gives the Borrower written Notice any Event of Default. In this Section 9, Notice of Default shall be deemed Mortgagee, at its option, may exercise any rights and remedies provided to have been given Agent under the Loan Agreement and/or available at law or equity, including all rights and remedies provided under the Uniform Commercial Code in any jurisdiction where enforcement is sought, which include but are not limited to, the following: (i) on without notice accelerate the date maturity of personal delivery any part or all of such written notice the Secured Obligations and terminate any agreement for the granting of further credit to a Guarantor, or Borrower; (ii) on the date on which a duly authorized representative sell, lease or otherwise dispose of the Borrower acknowledges receipt of such written notice, Collateral at public or private sale; (iii) on the day after sending such written notice to the Borrower by a commonly recognized overnight courier service, such as Federal Express, Purolator, UPS transfer any Collateral into its own name or the like, or that of its nominee; (iv) retain Collateral in satisfaction of the Secured Obligations, with notice of such retention sent to Borrower as required by law; (v) notify any parties obligated on any Collateral consisting of Accounts, Instruments, Chattel Paper, choses in action or the third day after sending such written notice like to make payment to Mortgagee and enforce collection of any Collateral; (vi) file any action or proceeding which Mortgagee deems necessary or appropriate to protect and preserve the right, title and interest of Mortgagee in the Collateral; (vii) exercise its banker's lien or right of setoff in the same manner as though the credit were unsecured and (viii) apply all or a portion of sums received or collected from or on account of Collateral, including the proceeds of any sales thereof, to the Borrower payment of the costs and expenses incurred in preserving and enforcing rights of Mortgagee including reasonable attorneys' fees (including the reasonably allocated costs of Mortgagee's in-house counsel, but in no event including general overhead and administrative expenses or expenses in excess of the cost of work if performed by facsimile (comparable outside counsel), and after application of such sums to both numbers the Secured Obligations as set forth in Section 16.7) or by depositing the same Loan Agreement, Mortgagee shall account to Borrower for any surplus remaining thereafter, and shall pay such surplus to the party entitled thereto, including any second secured party who has made a proper demand upon Mortgagee and has furnished proof to Mortgagee as requested in the United States mailmanner provided by law; in like manner, postage prepaid, for delivery Borrower agrees to the Borrowerpay to Mortgagee without demand any deficiency after any Collateral has been disposed of and proceeds applied as aforesaid.
(b) Failure to observe, perform and comply with any of the obligations evidenced or secured The exercise by a Loan Document, other than as provided in Sections 9.1(a) above; provided that such default has not been cured prior to the expiration of thirty (30) days following the date upon which the Lender gives the Borrower written Notice of Default.
(c) Failure to duly and punctually pay, observe and discharge all Indebtedness and other obligations of the Borrower to any third party, unless the same is being contested in good faith by appropriate proceedings and the Borrower has set aside on its books adequate reserves with respect to such Indebtedness or other obligations.
(d) The discovery by the Lender Mortgagee of any material inaccuracy in any statement, assurance, representation, covenant, warranty, term one right or condition by the Borrower contained in this Agreement or in any document delivered or to be delivered by or on behalf of the Borrower pursuant to this Agreement, which inaccuracy would result in a Material Adverse Effect (except that inaccuracies in the Borrower's Due Diligence Documents attributable to the fault or neglect of third-parties remedy shall not constitute be deemed a breach waiver or release of this Section 9.1(d)), or in any election against any other Loan Documentright or remedy, or in any other agreement between the and Mortgagee may proceed against Borrower and the Lender.
(e) The filing of a petition by or against the Borrower or any Affiliate seeking relief under the Federal Bankruptcy Code, 11 U.S.C. ss. 101, et seq., Collateral and any amendments thereto, or any similar law or regulation, whether federal, state or local, not dismissed within 30 days.
(f) The commencement of a proceeding other collateral granted by or against the Borrower or any Affiliate to Mortgagee under any statute other agreement, all in any order and through any available remedies. A waiver on any one occasion shall not be construed as a waiver or other law providing for an assignment for the benefit of creditors, the appointment of a receiver, or bar on any other similar law or regulation, whether federal, state or local, not dismissed within 30 days.
(g) The garnishment, attachment, levy or other similar action taken by or on behalf future occasion. All property of any creditor of kind held at any time by Mortgagee as Collateral shall stand as one general continuing collateral security for all the Borrower, any Affiliate, or any of their respective properties which could have a Material Adverse EffectSecured Obligations and may be retained by Mortgagee as security until all the Secured Obligations are fully satisfied.
(h) Any change in control of the Borrower, Madison Liquidity Investors 104, MACG from that disclosed in Section 2 of this Agreement.
9.2 The Lender may, at its option, terminate its obligation to make advances of the Loan, without notice to the Borrower:
(a) upon the occurrence and continuance of any Event of Default set forth in subsections 9.1
(a) through 9.1(h) above; or (b) upon the occurrence and continuance of any event which, with the giving of notice or the lapse of time, or both, would constitute an Event of Default or (C) upon the death or disability of ▇▇▇▇▇ ▇.
Appears in 1 contract
Events of Default and Remedies. 9.1 The following events shall constitute an "Event of Default" under this Agreement, the occurrence of which shall entitle the Lender to pursue any and all rights and remedies, legal and equitable, available to it under any Loan Document or otherwise. The Occurrence of an Event Default under this Agreement shall constitute a default under each and every other Loan Document. The Lender's rights and remedies are cumulative and may be exercised concurrently or successively from time to time. Any action by the Lender against any property or party shall not serve to release or discharge any other security, property or party in connection with this transaction. The Events of Default are as follows:
(a) Failure to pay the principal or interest on the Borrower's present or future indebtedness to the Lender, whether or not arising pursuant to this Agreement, when and as the same shall be due and payable, whether by acceleration or otherwise; provided that such default has not been cured prior to the expiration of ten (10) days following the date upon which the Lender gives the Borrower written Notice of Default. In this Section 9, Notice of Default shall be deemed to have been given (i) on the date of personal delivery of such written notice to a Guarantor, or (ii) on the date on which a duly authorized representative of the Borrower acknowledges receipt of such written notice, or (iii) on the day after sending such written notice to the Borrower by a commonly recognized overnight courier service, such as Federal Express, Purolator, UPS or the like, or (iv) on the third day after sending such written notice to the Borrower by facsimile (to both numbers set forth in Section 16.7) or by depositing the same in the United States mail, postage prepaid, for delivery to the Borrower.
(b) Failure to observe, perform and comply with any of the obligations evidenced or secured by a Loan Document, other than as provided in Sections 9.1(a) above; provided that such default has not been cured prior to the expiration of thirty (30) days following the date upon which the Lender gives the Borrower written Notice of Default.
(c) Failure to duly and punctually pay, observe and discharge all Indebtedness and other obligations of the Borrower to any third party, unless the same is being contested in good faith by appropriate proceedings and the Borrower has set aside on its books adequate reserves with respect to such Indebtedness or other obligations.
(d) The discovery by the Lender of any material inaccuracy in any statement, assurance, representation, covenant, warranty, term or condition by the Borrower contained in this Agreement or in any document delivered or to be delivered by or on behalf of the Borrower pursuant to this Agreement, which inaccuracy would result in a Material Adverse Effect (except that inaccuracies in the Borrower's Due Diligence Documents attributable to the fault or neglect of third-parties shall not constitute a breach of this Section 9.1(d)), or in any other Loan Document, or in any other agreement between the Borrower and the Lender.
(e) The filing of a petition by or against the Borrower or any Affiliate seeking relief under the Federal Bankruptcy Code, 11 U.S.C. ss. 101, et seq., and any amendments thereto, or any similar law or regulation, whether federal, state or local, not dismissed within 30 days.
(f) The commencement of a proceeding by or against the Borrower or any Affiliate under any statute or other law providing for an assignment for the benefit of creditors, the appointment of a receiver, or any other similar law or regulation, whether federal, state or local, not dismissed within 30 days.
(g) The garnishment, attachment, levy or other similar action taken by or on behalf of any creditor of the Borrower, any Affiliate, or any of their respective properties which could have a Material Adverse Effect.
(h) Any change in control of the Borrower, Madison Liquidity Investors 104, MACG from that disclosed in Section 2 of this Agreement.
9.2 The Lender may, at its option, terminate its obligation to make advances of the Loan, without notice to the Borrower:
(a) upon the occurrence and continuance of any Event of Default set forth in subsections 9.1
(a) through 9.1(h) above; or (b) upon the occurrence and continuance of any event which, with the giving of notice or the lapse of time, or both, would constitute an Event of Default or (C) upon the death or disability of ▇▇▇▇▇ ▇.Bryan E.
Appears in 1 contract
Sources: Loan Agreement (Madison Liquidity Investors 104 LLC)
Events of Default and Remedies. 9.1 The (a) Each of the following events shall constitute constitutes an "“Event of Default" ” under this AgreementIndenture:
(1) default for 30 days in the payment when due of interest, including Additional Interest, if any, on the Securities (whether or not prohibited by Article 10);
(2) default in payment when due of the principal of or premium, if any, on the Securities (including upon mandatory redemption), and any failure of the Issuer to make a Change of Control Offer or Asset Sale Offer when required or to purchase Securities required to be purchased in connection therewith (whether or not prohibited by Article 10);
(3) failure by the Issuer to comply with Section 5.01 or 5.03;
(4) failure by the Issuer for 30 days after receipt of notice from the Trustee or the Holders of at least 25% in principal amount of the then outstanding Securities specifying such failure to comply with Section 4.03 or Section 4.04; provided, however, at all times while the GS Parties constitute the Required Holders, an Event of Default shall occur upon receipt of any such notice by the Issuer;
(5) failure by the Issuer for 60 days after receipt of notice given to the Issuer by the Trustee or to the Issuer and the Trustee by the Holders of at least 25% in aggregate principal amount of the Securities outstanding specifying such failure to comply with any other Sections of this Indenture or the Securities; provided, however, at all times while the GS Parties constitute the Required Holders, such 60 day period shall be reduced to 30 days for any failure to comply with Section 4.07;
(6) (A) the failure by the Issuer or any Restricted Subsidiary that is a Guarantor to pay any Debt within any applicable grace period after final maturity or acceleration by the holders thereof because of a default or (B) or a default occurs with respect to any Debt of the Issuer or any Restricted Subsidiary that is a Guarantor that ranks pari passu with the Securities or the relevant Security Guarantee or constitutes Subordinated Debt, which default permits the holder or holders thereof (or any trustee or agent on their behalf) to accelerate that Debt (giving effect to any applicable grace period), and, in the case of (A) or (B) the total amount of such Debt unpaid or accelerated or in default at the time exceeds $30.0 million;
(7) any judgment or decree for the payment of money in excess of $30.0 million (net of any insurance or indemnity payments actually received in respect thereof prior to or within 60 days from the entry thereof, or which are covered by insurance (unless the Issuer’s insurance carriers have denied coverage in respect thereof) in the event any appeal thereof shall be unsuccessful) is entered against the Issuer or any Restricted Subsidiary that is a Significant Subsidiary and is not discharged, waived or stayed and either (A) an enforcement proceeding has been commenced by any creditor upon such judgment or decree or (B) there is a period of 60 days following the entry of such judgment or decree during which such judgment or decree is not discharged, waived or the execution thereof stayed;
(8) except as permitted by this Indenture, any Security Guarantee by a Guarantor that is a Significant Subsidiary shall be held in any judicial proceeding to be unenforceable or invalid or shall cease for any reason to be in full force and effect or any Guarantor, or any Person acting on behalf of any Guarantor, shall deny or disaffirm its obligations under its Security Guarantee;
(9) Holdco (for so long as the Issuer is a Subsidiary of Holdco), the Issuer or any Restricted Subsidiary that is a Significant Subsidiary pursuant to or within the meaning of any Bankruptcy Law:
(i) commences a voluntary case;
(ii) consents to the entry of an order for relief against it in an involuntary case;
(iii) consents to the appointment of a Custodian of it or for any substantial part of its property;
(iv) makes a general assignment for the benefit of its creditors;
(v) or takes any comparable action under any foreign laws relating to insolvency;
(10) a court of competent jurisdiction enters an order or decree under any Bankruptcy Law that:
(i) is for relief against Holdco (for so long as the Issuer is a Subsidiary of Holdco), the Issuer or any Restricted Subsidiary that is a Significant Subsidiary in an involuntary case;
(ii) appoints a Custodian of Holdco (for so long as the Issuer is a Subsidiary of Holdco), the Issuer or any Restricted Subsidiary that is a Significant Subsidiary or for any substantial part of its property; or
(iii) orders the winding up or liquidation of Holdco (for so long as the Issuer is a Subsidiary of Holdco), the Issuer or any Restricted Subsidiary that is a Significant Subsidiary; or any similar relief is granted under any foreign laws and the order or decree relating thereto remains unstayed and in effect for 60 days; or
(11) while the GS Parties constitute the Required Holders: (A) the occurrence of (x) any material breach of the representations and warranties contained in Section 4 of the Purchase Agreement which shall entitle do not contain materiality or material adverse effect qualifiers or (y) any breach of the Lender to pursue any representations and all rights and remedies, legal and equitable, available to it under any Loan Document warranties contained in Section 4 of the Purchase Agreement which contain materiality or otherwise. The Occurrence of an Event Default under this Agreement shall constitute a default under each and every other Loan Document. The Lender's rights and remedies are cumulative and may be exercised concurrently material adverse effect qualifiers or successively from time to time. Any action (B) failure by the Lender against any property or party shall not serve Issuer for 30 days after receipt of notice from the GS Parties specifying such failure to release or discharge any other security, property or party in connection with this transaction. The Events of Default are as follows:
(a) Failure to pay the principal or interest on the Borrower's present or future indebtedness to the Lender, whether or not arising pursuant to this Agreement, when and as the same shall be due and payable, whether by acceleration or otherwise; provided that such default has not been cured prior to the expiration of ten (10) days following the date upon which the Lender gives the Borrower written Notice of Default. In this Section 9, Notice of Default shall be deemed to have been given (i) on the date of personal delivery of such written notice to a Guarantorcomply, or (ii) on cause the date on which a duly authorized representative compliance of, with any of the Borrower acknowledges receipt of such written notice, or (iii) on the day after sending such written notice to the Borrower by a commonly recognized overnight courier service, such as Federal Express, Purolator, UPS or the like, or (iv) on the third day after sending such written notice to the Borrower by facsimile (to both numbers set forth in Section 16.7) or by depositing the same covenants contained in the United States mail, postage prepaid, for delivery to the BorrowerPurchase Agreement.
(b) Failure to observe, perform and comply with The foregoing shall constitute Events of Default whatever the reason for any of the obligations evidenced or secured by a Loan Document, other than as provided in Sections 9.1(a) above; provided that such default has not been cured prior to the expiration of thirty (30) days following the date upon which the Lender gives the Borrower written Notice of Default.
(c) Failure to duly and punctually pay, observe and discharge all Indebtedness and other obligations of the Borrower to any third party, unless the same is being contested in good faith by appropriate proceedings and the Borrower has set aside on its books adequate reserves with respect to such Indebtedness or other obligations.
(d) The discovery by the Lender of any material inaccuracy in any statement, assurance, representation, covenant, warranty, term or condition by the Borrower contained in this Agreement or in any document delivered or to be delivered by or on behalf of the Borrower pursuant to this Agreement, which inaccuracy would result in a Material Adverse Effect (except that inaccuracies in the Borrower's Due Diligence Documents attributable to the fault or neglect of third-parties shall not constitute a breach of this Section 9.1(d)), or in any other Loan Document, or in any other agreement between the Borrower and the Lender.
(e) The filing of a petition by or against the Borrower or any Affiliate seeking relief under the Federal Bankruptcy Code, 11 U.S.C. ss. 101, et seq., and any amendments thereto, or any similar law or regulation, whether federal, state or local, not dismissed within 30 days.
(f) The commencement of a proceeding by or against the Borrower or any Affiliate under any statute or other law providing for an assignment for the benefit of creditors, the appointment of a receiver, or any other similar law or regulation, whether federal, state or local, not dismissed within 30 days.
(g) The garnishment, attachment, levy or other similar action taken by or on behalf of any creditor of the Borrower, any Affiliate, or any of their respective properties which could have a Material Adverse Effect.
(h) Any change in control of the Borrower, Madison Liquidity Investors 104, MACG from that disclosed in Section 2 of this Agreement.
9.2 The Lender may, at its option, terminate its obligation to make advances of the Loan, without notice to the Borrower:
(a) upon the occurrence and continuance of any Event of Default set forth in subsections 9.1
(a) through 9.1(h) above; and whether it is voluntary or (b) upon the occurrence and continuance involuntary or is effect by operation of law or pursuant to any judgment, decree or order of any event whichcourt or any order, with the giving rule or regulation of notice any administrative or the lapse of time, or both, would constitute an Event of Default or (C) upon the death or disability of ▇▇▇▇▇ ▇governmental body.
Appears in 1 contract
Events of Default and Remedies. 9.1 6.1 The entire unpaid principal amount of this Note, together with all accrued interest hereon, at the option of the holder hereof exercised by written notice to the Maker, shall forthwith become and be due and payable if any one or more of the following events shall constitute an "Event (herein called “Events of Default" under this Agreement”) shall have occurred (for any reason whatsoever and whether such happening shall be voluntary or involuntary or come about or be effected by operation of law or pursuant to or in compliance with any judgment, decree or order of any court or any order, rule or regulation of any administrative or governmental body) and be continuing at the occurrence time of which shall entitle the Lender such notice, that is to pursue any and all rights and remedies, legal and equitable, available to it under any Loan Document or otherwise. The Occurrence of an Event Default under this Agreement shall constitute a default under each and every other Loan Document. The Lender's rights and remedies are cumulative and may be exercised concurrently or successively from time to time. Any action by the Lender against any property or party shall not serve to release or discharge any other security, property or party in connection with this transaction. The Events of Default are as followssay:
(a) Failure to pay if default shall be made in the due and punctual payment of the principal or interest on the Borrower's present or future indebtedness to the Lender, whether or not arising pursuant to of this Agreement, Note when and as the same shall be become due and payable, whether at maturity, by acceleration or otherwise, and such default shall have continued for a period of ten days;
(b) if default shall be made in the due and punctual payment of any interest on this Note when and as such interest shall become due and payable, and such default shall have continued for a period of ten days;
(c) if default shall be made in the performance or observance of any covenant, agreement or condition contained in Section 5 or Section 7.6 hereof;
(d) if default shall be made in the performance or observance of any of the other covenants, agreements or conditions of the Maker or any Subsidiary contained in this Note or in the Purchase Agreement, and such default shall have continued for a period of 30 days;
(e) if any representation or warranty made by the Maker under the Purchase Agreement or in any document or certificate furnished by the Maker pursuant thereto shall prove to be inaccurate in any material respect when made;
(f) if this Note or the Purchase Agreement shall cease to be enforceable in accordance with its terms against the Maker, or the Maker shall so state in writing;
(g) if the Maker or any Subsidiary shall default beyond any period of grace provided with respect thereto in the payment of principal of, premium, if any, or interest on any obligation in respect of borrowed money when due, whether by acceleration or otherwise; provided that such or if the Maker or any Subsidiary shall default has not been cured prior to the expiration of ten (10) days following the date upon which the Lender gives the Borrower written Notice of Default. In this Section 9, Notice of Default shall be deemed to have been given (i) on the date of personal delivery of such written notice to a Guarantor, or (ii) on the date on which a duly authorized representative of the Borrower acknowledges receipt of such written notice, or (iii) on the day after sending such written notice to the Borrower by a commonly recognized overnight courier service, such as Federal Express, Purolator, UPS or the like, or (iv) on the third day after sending such written notice to the Borrower by facsimile (to both numbers set forth in Section 16.7) or by depositing the same in the United States mail, postage prepaid, for delivery to the Borrower.
(b) Failure to observe, perform and comply with any of the obligations evidenced performance or secured by a Loan Document, other than as provided in Sections 9.1(a) above; provided that such default has not been cured prior to the expiration of thirty (30) days following the date upon which the Lender gives the Borrower written Notice of Default.
(c) Failure to duly and punctually pay, observe and discharge all Indebtedness and other obligations of the Borrower to any third party, unless the same is being contested in good faith by appropriate proceedings and the Borrower has set aside on its books adequate reserves with respect to such Indebtedness or other obligations.
(d) The discovery by the Lender observance of any material inaccuracy in any statement, assurance, representation, covenant, warrantyother agreement, term or condition by the Borrower contained in this Agreement such obligation or in any document delivered agreement under which any such obligation is created, if the effect of any such default is to cause the holder or to be delivered by holders of such obligations (or a trustee on behalf of the Borrower pursuant such holder or holders) to this Agreement, which inaccuracy would result in a Material Adverse Effect (except that inaccuracies in the Borrower's Due Diligence Documents attributable cause such obligation to become due prior to the fault date of its stated maturity, unless such holder or neglect holders or trustee shall have waived such default after its occurrence or unless such holder or holders or trustee shall have failed to give any notice required to create an event of third-parties default thereunder;
(h) if final judgment for the payment of money shall be rendered by a court of record against the Maker or any Subsidiary and the Maker or such Subsidiary shall not constitute a breach of this Section 9.1(d))discharge the same or provide for its discharge in accordance with its terms, or in any other Loan Documentshall not procure a stay of execution thereon within 30 days from the date of entry thereof and, or in any other agreement between within the Borrower period during which execution of such judgment shall have been stayed, appeal therefrom, and cause the Lender.execution thereof to be stayed during such appeal;
(ei) The filing of if the Maker or any Subsidiary shall: (i) admit in writing its inability to pay its debts generally as they become due; (ii) file a petition by in bankruptcy or against the Borrower or a petition to take advantage of any Affiliate seeking relief under the Federal Bankruptcy Code, 11 U.S.C. ss. 101, et seq., and any amendments thereto, or any similar law or regulation, whether federal, state or local, not dismissed within 30 days.
insolvency act; (fiii) The commencement of a proceeding by or against the Borrower or any Affiliate under any statute or other law providing for make an assignment for the benefit of creditors, ; (iv) consent to the appointment of a receiverreceiver of itself or of the whole or any substantial part of its property; (v) on a petition in bankruptcy filed against it, be adjudicated a bankrupt; or (vi) file a petition or answer seeking reorganization or arrangement under the Federal bankruptcy laws or any other similar applicable law or regulationstatute of the United States of America or any State, whether federal, state district or local, not dismissed within 30 days.territory thereof;
(gj) The garnishmentif a court of competent jurisdiction shall enter, attachmentexcept at the direct or indirect request of the holder of this Note, levy an order, judgment, or decree appointing, without the consent of the Maker or any Subsidiary, a receiver of the Maker or any Subsidiary or of the whole or any substantial part of its property, or approving a petition filed against it seeking reorganization or arrangement of the Maker or any Subsidiary under the Federal bankruptcy laws or any other similar action taken by applicable law or on behalf statute of the United States of America or any State, district or territory thereof, and such order, judgment or decree shall not be vacated or set aside or stayed within 60 days from the date of entry thereof; or
(k) if, under the provisions of any creditor other law for the relief or aid of the Borrowerdebtors, any Affiliate, court of competent jurisdiction shall assume custody or any of their respective properties which could have a Material Adverse Effect.
(h) Any change in control of the Borrower, Madison Liquidity Investors 104, MACG Maker or any Subsidiary or of the whole or any substantial part of its property and such custody or control shall not be terminated or stayed within 60 days from that disclosed the date of assumption of such custody or control.
6.2 In the case any one or more of the Events of Default specified in Section 2 6.1 hereof shall have occurred and be continuing, the holder of this Agreement.
9.2 The Lender mayNote may proceed to protect and enforce its rights either by suit in equity and/or by action at law, at its optionwhether for the specific performance of any covenant or agreement contained in this Note, terminate its obligation or the holder of this Note may proceed to make advances enforce the payment of all sums due upon this Note or to enforce any other legal or equitable right of the Loan, without notice to holder of this Note. In the Borrower:
(a) upon the occurrence and continuance of any Event of Default set forth in subsections 9.1
(a) through 9.1(h) above; or (b) upon the occurrence and continuance of any event which, with the giving of notice or the lapse of time, or both, would constitute an Event of Default shall have occurred and the holder of this Note shall employ attorneys, or (C) incur other costs and expenses for the collection of payments due or to become due, or for the enforcement or performance or observance of any obligation or agreement of the Maker under this Note, the Maker agrees that it will pay to the holder, on demand, the reasonable fees of such attorney together with all other costs and expenses incurred by the holder.
6.3 No remedy herein conferred upon the death holder is intended to be exclusive of any other remedy and each and every such remedy shall be cumulative and shall be in addition to every other remedy given hereunder or disability now or hereafter existing at law or in equity or by statute or otherwise.
6.4 No course of ▇▇▇▇▇ ▇dealing between the Maker and the holder or any delay on the part of the holder hereof in exercising any rights hereunder shall operate as a waiver of any rights of the holder hereof.
Appears in 1 contract
Sources: Convertible Note Purchase Agreement (Bone Biologics, Corp.)
Events of Default and Remedies. 9.1 The following events shall constitute an "Event of Default" under this Agreement, the occurrence of which shall entitle the Lender to pursue any and all rights and remedies, legal and equitable, available to it under any Loan Document or otherwise. The Occurrence of an Event Default under this Agreement shall constitute a default under each and every other Loan Document. The Lender's rights and remedies are cumulative and may be exercised concurrently or successively from time to time. Any action by the Lender against any property or party shall not serve to release or discharge any other security, property or party in connection with this transaction. The Events of Default are as follows:
(a) Failure to pay the principal or interest on the Borrower's present or future indebtedness Notwithstanding anything to the Lendercontrary stated herein, whether or the Collateral Agent shall not arising pursuant to this Agreement, when and as the same shall be due and payable, whether by acceleration or otherwise; provided that such default has not been cured prior to the expiration of ten (10) days following the date upon which the Lender gives the Borrower written Notice of Default. In this Section 9, Notice of Default shall be deemed to have been given (i) on the date of personal delivery of such written notice to a Guarantor, or (ii) on the date on which a duly authorized representative exercise any of the Borrower acknowledges receipt of such written notice, or (iii) on the day after sending such written notice to the Borrower by a commonly recognized overnight courier service, such as Federal Express, Purolator, UPS or the like, or (iv) on the third day after sending such written notice to the Borrower by facsimile (to both numbers remedies set forth in Section 16.7) or by depositing the same in the United States mail, postage prepaid, for delivery to the Borrowerthis Agreement unless and until an Event of Default has occurred and is continuing.
(b) Failure to observe, perform and comply with any of the obligations evidenced or secured by a Loan Document, other than as provided in Sections 9.1(a) above; provided that such default has not been cured prior to the expiration of thirty (30) days following the date upon which the Lender gives the Borrower written Notice of Default.
(c) Failure to duly and punctually pay, observe and discharge all Indebtedness and other obligations of the Borrower to any third party, unless the same is being contested in good faith by appropriate proceedings and the Borrower has set aside on its books adequate reserves with respect to such Indebtedness or other obligations.
(d) The discovery by the Lender of any material inaccuracy in any statement, assurance, representation, covenant, warranty, term or condition by the Borrower contained in this Agreement or in any document delivered or to be delivered by or on behalf of the Borrower pursuant to this Agreement, which inaccuracy would result in a Material Adverse Effect (except that inaccuracies in the Borrower's Due Diligence Documents attributable to the fault or neglect of third-parties shall not constitute a breach of this Section 9.1(d)), or in any other Loan Document, or in any other agreement between the Borrower and the Lender.
(e) The filing of a petition by or against the Borrower or any Affiliate seeking relief under the Federal Bankruptcy Code, 11 U.S.C. ss. 101, et seq., and any amendments thereto, or any similar law or regulation, whether federal, state or local, not dismissed within 30 days.
(f) The commencement of a proceeding by or against the Borrower or any Affiliate under any statute or other law providing for an assignment for the benefit of creditors, the appointment of a receiver, or any other similar law or regulation, whether federal, state or local, not dismissed within 30 days.
(g) The garnishment, attachment, levy or other similar action taken by or on behalf of any creditor of the Borrower, any Affiliate, or any of their respective properties which could have a Material Adverse Effect.
(h) Any change in control of the Borrower, Madison Liquidity Investors 104, MACG from that disclosed in Section 2 of this Agreement.
9.2 The Lender may, at its option, terminate its obligation to make advances of the Loan, without notice to the Borrower:
(a) upon the occurrence and continuance of any Event of Default set forth in subsections 9.1
(a) through 9.1(h) above; or (b) upon the occurrence and continuance of any event which, with the giving of notice or the lapse of time, or both, would constitute If an Event of Default shall have occurred and be continuing:
(i) The Collateral Agent may exercise in respect of the Pledged Collateral, in addition to other rights and remedies provided for herein or in the Note Documents, as the case may be or otherwise available to it, all the rights and remedies of a secured party on default under the law of the State of New York or any other applicable law in effect at that time. The Collateral Agent may also, without notice except as specified below, sell the Pledged Collateral or any part thereof in one or more parcels at public or private sale, at any exchange, broker’s board or at any of the Collateral Agent’s offices or elsewhere, for cash, on credit or for future delivery, and upon such other terms as the Collateral Agent may deem commercially reasonable, provided that at least ten (C10) days’ prior written notice of the time and place of any such sale shall be given to the Pledgor. The Collateral Agent shall not be obligated to make any sale of Pledged Collateral regardless of notice of sale having been given. The Collateral Agent may adjourn any public or private sale from time to time by announcement at the time and place fixed therefor, and such sale may, without further notice, be made at the time and place to which it was so adjourned.
(ii) Any cash held by the Collateral Agent as Pledged Collateral and all cash proceeds received by the Collateral Agent in respect of any sale of, collection from, or other realization upon all or any part of the death Pledged Collateral may, in the discretion of the Collateral Agent, be held by the Collateral Agent as collateral for, and/or then or disability at any time thereafter applied (after payment of ▇▇▇▇▇ ▇any amounts payable to the Collateral Agent pursuant to Section 10) in whole or in part by the Collateral Agent against, all or any part of the Notes Obligations in accordance with the terms of the Indenture. Any surplus of such cash or cash proceeds held by the Collateral Agent and remaining after payment and performance in full of the Notes Obligations shall be paid over to the Pledgor or its order.
Appears in 1 contract
Sources: Indenture (Transocean Ltd.)
Events of Default and Remedies. 9.1 (a) The term "Event of Default", wherever used herein, shall mean any of the following events under this Lease: (i) Lessee breaches its obligation to pay Rent or any other sum when due and fails to cure the breach within ten (10) days; or (ii) Lessee breaches any of its insurance obligations under Section 9; or (iii) Lessee breaches any of its other obligations and fails to cure that breach within thirty (30) days after written notice from Lessor to Lessee; or (iv) any representation or warranty made by Lessee in connection with this Lease shall constitute be false or misleading in any material respect; or (v) Lessee or any guarantor or other obligor for any of the obligations hereunder (collectively "Guarantor") becomes insolvent or ceases to do business as a going concern; or (vi) a petition is filed by or against Lessee or any Guarantor under any bankruptcy, insolvency or similar laws and in the event of an involuntary petition, the petition is not dismissed within sixty (60) days of the filing date; or (vii) if Lessee or any Guarantor is a natural person, any death or incompetency of Lessee or such Guarantor; or (viii)) there occurs an "Event of Default" under this Agreement, and as defined in any other agreement by and between Lessor and Lessee.
(b) Upon the occurrence of which shall entitle the Lender to pursue any and all rights and remedies, legal and equitable, available to it under any Loan Document or otherwise. The Occurrence of an Event Default under this Agreement shall constitute a default under each and every other Loan Document. The Lender's rights and remedies are cumulative and may be exercised concurrently or successively from time to time. Any action by the Lender against any property or party shall not serve to release or discharge any other security, property or party in connection with this transaction. The Events of Default are as follows:
(a) Failure to pay the principal or interest on the Borrower's present or future indebtedness to the Lender, whether or not arising pursuant to this Agreement, when and so long as the same shall be due and payablecontinuing, whether by acceleration Lessor may, at its option, at any time thereafter, exercise one or otherwise; provided that such default has not been cured prior to more of the expiration of ten (10) days following the date upon which the Lender gives the Borrower written Notice of Default. In this Section 9remedies, Notice of Default as Lessor in its sole discretion shall be deemed to have been given lawfully elect: (i) on demand that Lessee immediately pay as liquidated damages, for loss of a bargain and not as a penalty, an amount equal to the date Stipulated Loss Value of personal delivery the Aircraft, computed as of the Basic Term Rent Date prior to such written notice demand together with all Rent and other amounts due and payable for all periods up to a Guarantor, or and including the Basic Term Rent Date following such demand; (ii) on demand that Lessee pay all amounts due for failure to maintain or return the date on which a duly authorized representative of Aircraft as provided herein and cause Lessee to assign to Lessor Lessee's rights under any manufacturer's service program contract or any extended warranty contract in force for the Borrower acknowledges receipt of such written notice, or Aircraft; (iii) on proceed by appropriate court action, either at law or in equity, to enforce the day after sending such written notice performance by Lessee of the applicable covenants of this Lease or to the Borrower by a commonly recognized overnight courier service, such as Federal Express, Purolator, UPS or the like, or recover damages for breach hereof; (iv) on the third day after sending such written by notice in writing terminate this Lease, whereupon all rights of Lessee to the Borrower by facsimile (to both numbers set forth in Section 16.7) or by depositing the same in the United States mail, postage prepaid, for delivery to the Borrower.
(b) Failure to observe, perform and comply with any use of the obligations evidenced Aircraft or secured by a Loan Documentany part thereof shall absolutely cease and terminate, other than and Lessee shall immediately return the Aircraft in accordance with Section 10, but Lessee shall remain liable as provided in Sections 9.1(aSection 10; (v) aboverequest Lessee to return the Aircraft to a designated location in accordance with Section 10; provided that such default has not been cured prior (vi) peacefully enter the premises where the Aircraft may be and take possession of the Aircraft; (vii) sell or otherwise dispose of the Aircraft at private or public sale, in bulk or in parcels, with or without notice, and without having the Aircraft present at the place of sale; (viii) lease or keep idle all or part of the Aircraft; (ix) use Lessee's premises for storage pending lease or sale or for holding a sale without liability for rent or costs; (x) collect from Lessee all costs, charges and expenses, including reasonable legal fees and disbursements, incurred by Lessor by reason of the occurrence of any Event of Default or the exercise of Lessor's remedies with respect thereto; and/or (xi) declare any Event of Default under the terms of this Lease to the expiration of thirty (30) days following the date upon which the Lender gives the Borrower written Notice be an "Event of Default" under and as defined in any other agreement between Lessor and Lessee.
(c) Failure Lessor shall have the right to duly and punctually payany proceeds of sale, observe and discharge all Indebtedness and lease or other obligations disposition of the Borrower Aircraft, if any, and shall have the right to apply same in the following order of priorities: (i) to pay all of Lessor's costs, charges and expenses incurred in enforcing its rights under this Lease or in taking, removing, holding, repairing, selling, leasing or otherwise disposing of the Aircraft; then, (ii) to the extent not previously paid by Lessee, to pay Lessor all sums due from Lessee under this Lease; then (iii) to reimburse to Lessee any third party, unless the same is being contested sums previously paid by Lessee as liquidated damages; and (iv) any surplus shall be paid to Lessee. Lessee shall pay any deficiency in good faith by appropriate proceedings (i) and the Borrower has set aside on its books adequate reserves with respect to such Indebtedness or other obligations(ii) immediately.
(d) The discovery by the Lender of any material inaccuracy in any statement, assurance, representation, covenant, warranty, term or condition by the Borrower contained in this Agreement or in any document delivered or to be delivered by or on behalf of the Borrower pursuant to this Agreement, which inaccuracy would result in a Material Adverse Effect (except that inaccuracies in the Borrower's Due Diligence Documents attributable to the fault or neglect of third-parties shall not constitute a breach of this Section 9.1(d)), or in any other Loan Document, or in any other agreement between the Borrower and the Lender.
(e) The filing of a petition by or against the Borrower or any Affiliate seeking relief under the Federal Bankruptcy Code, 11 U.S.C. ss. 101, et seq.foregoing remedies are cumulative, and any amendments theretoor all thereof may be exercised instead of or in addition to each other or any remedies at law, in equity, or any similar law or regulation, whether federal, state or local, not dismissed within 30 days.
(f) The commencement of a proceeding by or against the Borrower or any Affiliate under any statute or other law providing for an assignment for the benefit of creditors, the appointment of a receiver, or any other similar law or regulation, whether federal, state or local, not dismissed within 30 days.
(g) The garnishment, attachment, levy or other similar action taken by or on behalf of any creditor of the Borrower, any Affiliate, or any of their respective properties which could have a Material Adverse Effect.
(h) Any change in control of the Borrower, Madison Liquidity Investors 104, MACG from that disclosed in Section 2 of this Agreement.
9.2 The Lender may, at its option, terminate its obligation to make advances of the Loan, without notice to the Borrower:
(a) upon the occurrence and continuance Waiver of any Event of Default set forth in subsections 9.1
(a) through 9.1(h) above; or (b) upon the occurrence and continuance shall not be a waiver of any event which, with the giving of notice other or the lapse of time, or both, would constitute an subsequent Event of Default or (C) upon the death or disability of ▇▇▇▇▇ ▇Default.
Appears in 1 contract
Events of Default and Remedies. 9.1 (a) The following events shall constitute an "Event of Default" under this Agreement, the occurrence of which shall entitle the Lender to pursue any and all rights and remedies, legal and equitable, available to it under any Loan Document or otherwise. The Occurrence of an Event Default under this Agreement shall constitute a default under each and every other Loan Document. The Lender's rights and remedies are cumulative and may be exercised concurrently or successively from time to time. Any action by the Lender against any property or party shall not serve to release or discharge any other security, property or party in connection with this transaction. The Events of Default are as follows:
for purposes of the remedies set forth in Section 18.01(b) hereof: (ai) Failure any failure of Tenant to pay the principal any rental or interest on the Borrower's present or future indebtedness to the Lender, whether or not arising pursuant to this Agreement, when and as the same shall be other charges due and payable, whether by acceleration or otherwise; provided that such default has not been cured prior to the expiration of hereunder within ten (10) days following the date upon which the Lender gives the Borrower after written Notice notice of Default. In this Section 9, Notice of Default such default shall be deemed to have been given (i) on the date of personal delivery of such written notice mailed to a GuarantorTenant, or (ii) if Tenant (A) fails to take possession of and open for business from the Premises fully fixtured, stocked and staffed on by the date on which a duly authorized representative of the Borrower acknowledges receipt of such written notice, or (iii) on the day after sending such written notice to the Borrower by a commonly recognized overnight courier service, such as Federal Express, Purolator, UPS or the like, or (iv) on the third day after sending such written notice to the Borrower by facsimile (to both numbers set forth in Section 16.7) or by depositing the same in the United States mail, postage prepaid, for delivery to the Borrower.
(b) Failure to observe, perform and comply with any of the obligations evidenced or secured by a Loan Document, other than as provided in Sections 9.1(a) above; provided that such default has not been cured prior to the expiration of thirty (30) days following the date upon Commencement Date, (B) fails to perform any obligation hereunder prior to such Commencement Date, (C) fails to continuously operate its business pursuant to Section 7.02 for the purpose specified in Section 7.01 hereof except for the occasional failure which is beyond Tenant’s reasonable anticipation and control, (D) fails or refuses to maintain business hours on such days or nights or any parts thereof as provided in Section 7.03 hereof, (E) fails to operate under the Lender gives name specified in Section 1.01(l) hereof except for the Borrower occasional failure which is beyond Tenant’s reasonable anticipation and control, (F) abandons, leaves vacant or deserts the Premises, or (G) permits this Lease to be taken under any writ of execution, or (iii) if there shall be any default by Tenant (or by any person or entity which directly or indirectly controls, is controlled by, or is under common control with Tenant) under any other lease with Landlord (or any person or entity which is affiliated with Landlord or which, directly or indirectly, controls, is controlled by, or is under common control with Landlord, or which is managed by the managing agent utilized by Landlord for the Shopping Center) which shall not be remedied within the applicable grace period, if any, provided therefor under such other lease, or if there shall be any default by Tenant or any entity affiliated with Tenant with respect to any financing or arrangement, if any, relating to items used in, or the operation of business in the Premises, or (iv) any failure to perform any other of the terms, conditions or covenants of this Lease to be observed or performed by Tenant for more than thirty (30) days after written Notice notice of such default shall have been mailed to Tenant (provided, however, such period shall be extended by Landlord for an additional reasonable period if the default is of such a nature that it cannot be cured within thirty [30] days and Tenant has diligently commenced the curing of such default and is diligently pursuing the same to completion).
(b) Upon the occurrence of any Event of Default, Landlord, in addition to any other rights or remedies it may have under this Lease, in law or in equity, may without any notice or demand:
(i) Terminate this Lease, in which case Tenant shall immediately surrender the Premises to Landlord and Landlord may, without prejudice to any other remedy which it may have for damages as set forth in Section 18.02(b) hereof, enter upon, expel or remove Tenant and any other person occupying the Premises as set forth in Section 18.01(c), and take possession of the Premises for the account of Landlord.
(ii) Enter upon, expel or remove Tenant and any other person occupying the Premises as set forth in Section 18.01(c), and take possession of the Premises for the account of Tenant, in which case Landlord shall have the right to relet the Premises as set forth in Section 18.02(a) hereof, and Tenant shall continue to be liable for damages as set forth in Section 18.02(b) hereof and for payment of any deficiencies in rent payable subsequent to such default (computed as set forth in Section 18.02(c) hereof) and any other charges hereunder. In addition, Landlord may accelerate and declare all rent due and to become due immediately payable, and obtain immediate payment thereof (subject to an accounting at the end of the term for amounts received from any reletting of the Premises, which amounts shall be applied as set forth in Section 18.02(a)). Such entry and or such acceleration shall not be construed as an election to terminate this Lease unless Landlord so states in writing, and shall not absolve or discharge Tenant from any obligations or liabilities under this Lease for the remainder of the term.
(iii) Without entering into possession of the Premises or canceling this Lease, accelerate and declare all rent due and to become due (computed as set forth in Section 18.02(c) hereof) and other charges equivalent to rent reserved in this Lease due and to become due immediately due and payable, and bring suit for collection thereof and for damages as set forth in Section 18.02(b) hereof. Such acceleration and commencement of any such action shall not be construed as an election to terminate this Lease and shall not absolve or discharge Tenant from any obligations or liabilities under this Lease for the remainder of the term.
(c) Failure to duly Upon exercise of Landlord’s rights under Section 18.01(b)(i) or (ii), Landlord may, without notice, re-enter the Premises either by force or otherwise, and punctually paydispossess, observe by summary proceedings or otherwise, Tenant and discharge all Indebtedness and the legal representative of Tenant or other obligations occupant of the Borrower Premises and remove their effects and hold the Premises, and Tenant hereby waives the service of notice of intention to re-enter, any third partystatutory notice (3-day or otherwise), unless or notice to institute legal proceedings. In the same is event of re-entry by Landlord, Landlord may remove all persons and property from the Premises and such property may be removed and stored in a public warehouse or elsewhere at the cost of, and for the account of Tenant, without notice or resort to legal process and without being contested in good faith by appropriate proceedings and the Borrower has set aside on its books adequate reserves with respect to such Indebtedness deemed guilty of trespass, or other obligationsbecoming liable for any loss or damage which may be occasioned thereby.
(d) The discovery If Tenant has not removed its property from the Premises within ten (10) days after Tenant has vacated the Premises, then such property shall be deemed abandoned by the Lender of any material inaccuracy in any statement, assurance, representation, covenant, warranty, term or condition by the Borrower contained in this Agreement or in any document delivered or to be delivered by or on behalf Tenant and Landlord may dispose of the Borrower pursuant same without liability to this Agreement, which inaccuracy would result in a Material Adverse Effect (except that inaccuracies in the Borrower's Due Diligence Documents attributable to the fault or neglect of third-parties shall not constitute a breach of this Section 9.1(d)), or in any other Loan Document, or in any other agreement between the Borrower and the LenderTenant.
(e) The filing of a petition by or against the Borrower or any Affiliate seeking relief under the Federal Bankruptcy Code, 11 U.S.C. ss. 101, et seq., and any amendments thereto, or any similar law or regulation, whether federal, state or local, not dismissed within 30 days.
(f) The commencement of a proceeding by or against the Borrower or any Affiliate under any statute or other law providing for an assignment for the benefit of creditors, the appointment of a receiver, or any other similar law or regulation, whether federal, state or local, not dismissed within 30 days.
(g) The garnishment, attachment, levy or other similar action taken by or on behalf of any creditor of the Borrower, any Affiliate, or any of their respective properties which could have a Material Adverse Effect.
(h) Any change in control of the Borrower, Madison Liquidity Investors 104, MACG from that disclosed in Section 2 of this Agreement.
9.2 The Lender may, at its option, terminate its obligation to make advances of the Loan, without notice to the Borrower:
(a) upon the occurrence and continuance of any Event of Default set forth in subsections 9.1
(a) through 9.1(h) above; or (b) upon the occurrence and continuance of any event which, with the giving of notice or the lapse of time, or both, would constitute an Event of Default or (C) upon the death or disability of ▇▇▇▇▇ ▇.
Appears in 1 contract
Sources: Lease Agreement (Impossible Kicks Holding Company, Inc.)
Events of Default and Remedies. 9.1 The following events shall constitute an "Event of Default" under this Agreement, the occurrence of which shall entitle the Lender to pursue any and all rights and remedies, legal and equitable, available to it under any Loan Document or otherwise. The Occurrence of an Event Default under this Agreement shall constitute a default under each and every other Loan Document. The Lender's rights and remedies are cumulative and may be exercised concurrently or successively from time to time. Any action by the Lender against any property or party shall not serve to release or discharge any other security, property or party in connection with this transaction. The Events of Default are as follows:
(a) Failure to pay the principal or interest on the Borrower's present or future indebtedness Notwithstanding anything to the Lendercontrary stated herein, whether or the Pledgee shall not arising pursuant to this Agreement, when and as the same shall be due and payable, whether by acceleration or otherwise; provided that such default has not been cured prior to the expiration of ten (10) days following the date upon which the Lender gives the Borrower written Notice of Default. In this Section 9, Notice of Default shall be deemed to have been given (i) on the date of personal delivery of such written notice to a Guarantor, or (ii) on the date on which a duly authorized representative exercise any of the Borrower acknowledges receipt of such written notice, or (iii) on the day after sending such written notice to the Borrower by a commonly recognized overnight courier service, such as Federal Express, Purolator, UPS or the like, or (iv) on the third day after sending such written notice to the Borrower by facsimile (to both numbers remedies set forth in Section 16.7) or by depositing the same in the United States mail, postage prepaid, for delivery to the Borrowerthis Agreement unless and until an Event of Default has occurred and is continuing.
(b) Failure to observe, perform and comply with any of the obligations evidenced or secured by a Loan Document, other than as provided in Sections 9.1(a) above; provided that such default has not been cured prior to the expiration of thirty (30) days following the date upon which the Lender gives the Borrower written Notice of Default.
(c) Failure to duly and punctually pay, observe and discharge all Indebtedness and other obligations of the Borrower to any third party, unless the same is being contested in good faith by appropriate proceedings and the Borrower has set aside on its books adequate reserves with respect to such Indebtedness or other obligations.
(d) The discovery by the Lender of any material inaccuracy in any statement, assurance, representation, covenant, warranty, term or condition by the Borrower contained in this Agreement or in any document delivered or to be delivered by or on behalf of the Borrower pursuant to this Agreement, which inaccuracy would result in a Material Adverse Effect (except that inaccuracies in the Borrower's Due Diligence Documents attributable to the fault or neglect of third-parties shall not constitute a breach of this Section 9.1(d)), or in any other Loan Document, or in any other agreement between the Borrower and the Lender.
(e) The filing of a petition by or against the Borrower or any Affiliate seeking relief under the Federal Bankruptcy Code, 11 U.S.C. ss. 101, et seq., and any amendments thereto, or any similar law or regulation, whether federal, state or local, not dismissed within 30 days.
(f) The commencement of a proceeding by or against the Borrower or any Affiliate under any statute or other law providing for an assignment for the benefit of creditors, the appointment of a receiver, or any other similar law or regulation, whether federal, state or local, not dismissed within 30 days.
(g) The garnishment, attachment, levy or other similar action taken by or on behalf of any creditor of the Borrower, any Affiliate, or any of their respective properties which could have a Material Adverse Effect.
(h) Any change in control of the Borrower, Madison Liquidity Investors 104, MACG from that disclosed in Section 2 of this Agreement.
9.2 The Lender may, at its option, terminate its obligation to make advances of the Loan, without notice to the Borrower:
(a) upon the occurrence and continuance of any Event of Default set forth in subsections 9.1
(a) through 9.1(h) above; or (b) upon the occurrence and continuance of any event which, with the giving of notice or the lapse of time, or both, would constitute If an Event of Default shall have occurred and be continuing:
(i) The Pledgee may exercise in respect of the Pledged Collateral, in addition to other rights and remedies provided for herein or in the Pari Passu Documents, as the case may be or otherwise available to it, all the rights and remedies of a secured party on default under the law of the State of New York or any other applicable law in effect at that time. The Pledgee may also, without notice except as specified below, sell the Pledged Collateral or any part thereof in one or more parcels at public or private sale, at any exchange, broker’s board or at any of the Pledgee’s offices or elsewhere, for cash, on credit or for future delivery, and upon such other terms as the Pledgee may deem commercially reasonable, provided that at least ten (C10) days’ prior written notice of the time and place of any such sale shall be given to the Pledgor. The Pledgee shall not be obligated to make any sale of Pledged Collateral regardless of notice of sale having been given. The Pledgee may adjourn any public or private sale from time to time by announcement at the time and place fixed therefor, and such sale may, without further notice, be made at the time and place to which it was so adjourned.
(ii) Any cash held by the Pledgee as Pledged Collateral and all cash proceeds received by the Pledgee in respect of any sale of, collection from, or other realization upon all or any part of the death Pledged Collateral may, in the discretion of the Pledgee, be held by the Pledgee as collateral for, and/or then or disability at any time thereafter applied (after payment of ▇▇▇▇▇ ▇any amounts payable to the Pledgee pursuant to Section 10) in whole or in part by the Pledgee against, all or any part of the Obligations in accordance with the terms of the Intercreditor Agreement. Any surplus of such cash or cash proceeds held by the Pledgee and remaining after payment and performance in full of the Obligations shall be paid over to the Borrower or its order.
Appears in 1 contract
Events of Default and Remedies. 9.1 The following events shall constitute an "Event of Default" under this Agreement, the occurrence of which shall entitle the Lender to pursue any and all rights and remedies, legal and equitable, available to it under any Loan Document or otherwise. The Occurrence of an Event Default under this Agreement shall constitute a default under each and every other Loan Document. The Lender's rights and remedies are cumulative and may be exercised concurrently or successively from time to time. Any action by the Lender against any property or party shall not serve to release or discharge any other security, property or party in connection with this transaction. The Events of Default are as follows:
(a) Failure to pay the principal or interest on the Borrower's present or future indebtedness to the Lender, whether or not arising pursuant to this Agreement, when and as the same shall be due and payable, whether by acceleration or otherwise; provided that such default has not been cured prior to the expiration of ten (10) days following the date upon which the Lender gives the Borrower written Notice of Default. In this Section 9, Notice of Default shall be deemed to have been given (i) on the date of personal delivery of such written notice to a Guarantor, or (ii) on the date on which a duly authorized representative of the Borrower acknowledges receipt of such written notice, or (iii) on the day after sending such written notice to the Borrower by a commonly recognized overnight courier service, such as Federal Express, Purolator, UPS or the like, or (iv) on the third day after sending such written notice to the Borrower by facsimile (to both numbers set forth in Section 16.7) or by depositing the same in the United States mail, postage prepaid, for delivery to the Borrower.
(b) Failure to observe, perform and comply with any of the obligations evidenced or secured by a Loan Document, other than as provided in Sections 9.1(a) above; provided that such default has not been cured prior to the expiration of thirty (30) days following the date upon which the Lender gives the Borrower written Notice of Default.
(c) Failure to duly and punctually pay, observe and discharge all Indebtedness and other obligations of the Borrower to any third party, unless the same is being contested in good faith by appropriate proceedings and the Borrower has set aside on its books adequate reserves with respect to such Indebtedness or other obligations.
(d) The discovery by the Lender of any material inaccuracy in any statement, assurance, representation, covenant, warranty, term or condition by the Borrower contained in this Agreement or in any document delivered or to be delivered by or on behalf of the Borrower pursuant to this Agreement, which inaccuracy would result in a Material Adverse Effect (except that inaccuracies in the Borrower's Due Diligence Documents attributable to the fault or neglect of third-parties shall not constitute a breach of this Section 9.1(d)), or in any other Loan Document, or in any other agreement between the Borrower and the Lender.
(e) The filing of a petition by or against the Borrower or any Affiliate seeking relief under the Federal Bankruptcy Code, 11 U.S.C. ss. ' 101, et seq., and any amendments thereto, or any similar law or regulation, whether federal, state or local, not dismissed within 30 days.
(f) The commencement of a proceeding by or against the Borrower or any Affiliate under any statute or other law providing for an assignment for the benefit of creditors, the appointment of a receiver, or any other similar law or regulation, whether federal, state or local, not dismissed within 30 days.
(g) The garnishment, attachment, levy or other similar action taken by or on behalf of any creditor of the Borrower, any Affiliate, or any of their respective properties which could have a Material Adverse Effect.
(h) Any change in control of the Borrower, Madison Liquidity Investors 104, MACG from that disclosed in Section 2 of this Agreement.
9.2 The Lender may, at its option, terminate its obligation to make advances of the Loan, without notice to the Borrower:
(a) upon the occurrence and continuance of any Event of Default set forth in subsections 9.1
(a) through 9.1(h) above; or (b) upon the occurrence and continuance of any event which, with the giving of notice or the lapse of time, or both, would constitute an Event of Default or (C) upon the death or disability of ▇▇▇▇▇ ▇.
Appears in 1 contract
Sources: Loan Agreement (Madison Liquidity Investors 104 LLC)
Events of Default and Remedies. 9.1 (a) The Borrower shall be in default upon the occurrence of any one of the following events shall constitute (each an "Event of Default" under this Agreement"):
(i) the Borrower shall fail to pay any amount payable in respect of any Obligation when due (including the expiration of any applicable grace periods).
(ii) any representation, warranty or information herein, heretofore or hereafter furnished to the occurrence of which shall entitle the Lender to pursue any and all rights and remedies, legal and equitable, available to it under any Loan Document or otherwise. The Occurrence of an Event Default under this Agreement shall constitute a default under each and every other Loan Document. The Lender's rights and remedies are cumulative and may be exercised concurrently or successively from time to time. Any action Mortgagee by the Lender against Borrower in connection with any property of the Liabilities, including any warranty made by the Borrower through the submission of any schedule, statement, certificate or party shall not serve other document pursuant to release or discharge any other security, property or party in connection with this transaction. The Events of Default are as follows:
(a) Failure to pay the principal or interest on the Borrower's present or future indebtedness to the Lender, whether or not arising pursuant to this Agreement, when and as the same shall be due and payable, whether by acceleration or otherwise; provided that such default has not been cured prior to the expiration of ten (10) days following the date upon which the Lender gives the Borrower written Notice of Default. In this Section 9, Notice of Default shall be deemed to have been given (i) on the date of personal delivery of such written notice to a Guarantor, or (ii) on the date on which a duly authorized representative of the Borrower acknowledges receipt of such written notice, or false in any material respect.
(iii) on there shall exist any Event of Default as defined under the day after sending Credit Agreement.
(b) Upon the occurrence of any Event of Default which shall be continuing, unless the Mortgagee elects otherwise, the entire unpaid amount of such written of the Liabilities as is not then otherwise due and payable shall become immediately due and payable as provided in the Credit Agreement without notice to the Borrower by a commonly recognized overnight courier service, such as Federal Express, Purolator, UPS or the like, or (iv) demand on the third day after sending such written notice to the Borrower by facsimile (to both numbers set forth in Section 16.7) or by depositing the same in the United States mail, postage prepaid, for delivery to the Borrower.
(b) Failure to observe, perform and comply with any of the obligations evidenced or secured by a Loan Document, other than as provided in Sections 9.1(a) above; provided that such default has not been cured prior to the expiration of thirty (30) days following the date upon which the Lender gives the Borrower written Notice of Default.
(c) Failure to duly and punctually payThe exercise by the Mortgagee of any one right or remedy shall not be deemed a waiver or release of or any election against any other right or remedy, observe and discharge all Indebtedness and other obligations of the Borrower to any third party, unless the same is being contested in good faith by appropriate proceedings and the Borrower has set aside on its books adequate reserves with respect to such Indebtedness or other obligations.
(d) The discovery by the Lender of any material inaccuracy in any statement, assurance, representation, covenant, warranty, term or condition by the Borrower contained in this Agreement or in any document delivered or to be delivered by or on behalf of the Borrower pursuant to this Agreement, which inaccuracy would result in a Material Adverse Effect (except that inaccuracies in the Borrower's Due Diligence Documents attributable to the fault or neglect of third-parties shall not constitute a breach of this Section 9.1(d)), or in any other Loan Document, or in any other agreement between Mortgagee may proceed against the Borrower and the Lender.
(e) The filing of a petition Collateral and any other collateral granted by or against the Borrower or any Affiliate seeking relief under to the Federal Bankruptcy Code, 11 U.S.C. ss. 101, et seq., and any amendments thereto, or any similar law or regulation, whether federal, state or local, not dismissed within 30 days.
(f) The commencement of a proceeding by or against the Borrower or any Affiliate Mortgagee under any statute other agreement, all in any order and through any available remedies. A waiver on any one occasion shall not be construed as a waiver or other law providing for an assignment for the benefit of creditors, the appointment of a receiver, or bar on any other similar law or regulation, whether federal, state or local, not dismissed within 30 days.
(g) The garnishment, attachment, levy or other similar action taken by or on behalf future occasion. All property of any creditor of kind held at any time by the Borrower, any Affiliate, or any of their respective properties which could have a Material Adverse EffectMortgagee as Collateral shall stand as one general continuing collateral security for all the Obligations and may be retained by the Mortgagee as security until all the Obligations are fully satisfied.
(h) Any change in control of the Borrower, Madison Liquidity Investors 104, MACG from that disclosed in Section 2 of this Agreement.
9.2 The Lender may, at its option, terminate its obligation to make advances of the Loan, without notice to the Borrower:
(a) upon the occurrence and continuance of any Event of Default set forth in subsections 9.1
(a) through 9.1(h) above; or (b) upon the occurrence and continuance of any event which, with the giving of notice or the lapse of time, or both, would constitute an Event of Default or (C) upon the death or disability of ▇▇▇▇▇ ▇.
Appears in 1 contract
Events of Default and Remedies. 9.1 8.1. The entire unpaid principal amount of this Note, together with all accrued interest thereon, shall, at the option of the holder hereof exercised by written notice to the Maker at its principal executive offices, forthwith become and be due and payable if any one or more of the following events shall constitute an (herein called "Event Events of Default" under this Agreement") shall have occurred (for any reason whatsoever and whether such happening shall be voluntary or involuntary or come about or be effected by operation of law or pursuant to or in 11 11 compliance with any judgment, decree or order of any court or any order, rule or regulation of any administrative or governmental body) and be continuing at the occurrence time of which shall entitle the Lender such notice, that is to pursue any and all rights and remedies, legal and equitable, available to it under any Loan Document or otherwise. The Occurrence of an Event Default under this Agreement shall constitute a default under each and every other Loan Document. The Lender's rights and remedies are cumulative and may be exercised concurrently or successively from time to time. Any action by the Lender against any property or party shall not serve to release or discharge any other security, property or party in connection with this transaction. The Events of Default are as followssay:
(a) Failure to pay if default shall be made in the due and punctual payment of the principal or interest on the Borrower's present or future indebtedness to the Lender, whether or not arising pursuant to of this Agreement, Note when and as the same shall be become due and payable, whether at maturity, by acceleration or otherwise;
(b) if default shall be made in the due and punctual payment of any interest on this Note when and as such interest shall become due and payable, and such default shall have continued for a period of 10 days;
(c) if default shall be made in the performance or observance of any covenant, agreement or condition contained in Section 6 hereof;
(d) if default shall be made in the performance or observance of any of the other covenants, agreements or conditions of the Maker contained in this Note, and such default shall have continued for a period of 30 days;
(e) if the Maker or any Subsidiary shall default beyond any period of grace provided with respect thereto in the payment of principal of or interest on any obligation in respect of borrowed money when due, whether by acceleration or otherwise; provided that such or if the Maker or any Subsidiary shall default has not been cured prior to the expiration of ten (10) days following the date upon which the Lender gives the Borrower written Notice of Default. In this Section 9, Notice of Default shall be deemed to have been given (i) on the date of personal delivery of such written notice to a Guarantor, or (ii) on the date on which a duly authorized representative of the Borrower acknowledges receipt of such written notice, or (iii) on the day after sending such written notice to the Borrower by a commonly recognized overnight courier service, such as Federal Express, Purolator, UPS or the like, or (iv) on the third day after sending such written notice to the Borrower by facsimile (to both numbers set forth in Section 16.7) or by depositing the same in the United States mail, postage prepaid, for delivery to the Borrower.
(b) Failure to observe, perform and comply with any of the obligations evidenced performance or secured by a Loan Document, other than as provided in Sections 9.1(a) above; provided that such default has not been cured prior to the expiration of thirty (30) days following the date upon which the Lender gives the Borrower written Notice of Default.
(c) Failure to duly and punctually pay, observe and discharge all Indebtedness and other obligations of the Borrower to any third party, unless the same is being contested in good faith by appropriate proceedings and the Borrower has set aside on its books adequate reserves with respect to such Indebtedness or other obligations.
(d) The discovery by the Lender 12 12 observance of any material inaccuracy in any statement, assurance, representation, covenant, warrantyother agreement, term or condition by the Borrower contained in this Agreement such obligation or in any document delivered agreement under which any such obligation is created, if the effect of any such default is to cause or to be delivered by permit the holder or holders of such obligations (or a trustee on behalf of the Borrower pursuant such holder or holders) to this Agreement, which inaccuracy would result in a Material Adverse Effect (except that inaccuracies in the Borrower's Due Diligence Documents attributable cause such obligation to become due prior to the fault date of its stated maturity, unless such holder or neglect of third-parties holders or trustee shall not constitute have waived such default after its occurrence or unless such holder or holders or trustee shall have failed to give any notice required to create a breach of this Section 9.1(d)), or in any other Loan Document, or in any other agreement between the Borrower and the Lender.
(e) The filing of a petition by or against the Borrower or any Affiliate seeking relief under the Federal Bankruptcy Code, 11 U.S.C. ss. 101, et seq., and any amendments thereto, or any similar law or regulation, whether federal, state or local, not dismissed within 30 days.default thereunder;
(f) The commencement of a proceeding by or against if the Borrower Maker or any Affiliate under Subsidiary shall:
(i) admit in writing its inability to pay its debts generally as they become due;
(ii) file a petition in bankruptcy or a petition to take advantage of any statute or other law providing for insolvency act;
(iii) make an assignment for the benefit of creditors, ;
(iv) consent to the appointment of a receiverreceiver of itself or of the whole or any substantial part of its property;
(v) on a petition in bankruptcy filed against it, be adjudicated a bankrupt; or
(vi) file a petition or answer seeking reorganization or arrangement under the federal bankruptcy laws or any other similar applicable law or regulation13 13 statute of the United States of America or any State, whether federal, state district or local, not dismissed within 30 days.territory thereof;
(g) The garnishmentif a court of competent jurisdiction shall enter an order, attachmentjudgment, levy or other similar action taken by or on behalf of any creditor decree appointing, without the consent of the BorrowerMaker or any Subsidiary, a receiver of the Maker or any AffiliateSubsidiary or of the whole or any substantial part of its property, or approving a petition filed against it seeking reorganization or arrangement of the Maker or any Subsidiary under the federal bankruptcy laws or any other applicable law or statute of their respective properties which could have a Material Adverse Effect.the United States of America or any State, district or territory thereof, and such order, judgment or decree shall not be vacated or set aside or stayed within 60 days from the date of entry thereof;
(h) Any change in if, under the provisions of any other law for the relief or aid of debtors, any court of competent jurisdiction shall assume custody or control of the BorrowerMaker or any Subsidiary or of the whole or any substantial part of its property and such custody or control shall not be terminated or stayed within 60 days from the date of assumption of such custody or control; or
(i) if final judgment for the payment of money in excess of $50,000 shall be rendered by a court of record against the Maker or any Subsidiary and the Maker or such Subsidiary shall not discharge the same or provide 14 14 for its discharge in accordance with its terms, Madison Liquidity Investors 104or shall not procure a stay of execution thereon within 60 days from the date of entry thereof and within the period during which execution of such judgment shall have been stayed, MACG from that disclosed appeal therefrom, and cause the execution thereof to be stayed during such appeal.
8.2. In case any one or more of the Events of Default specified in Section 2 8.1 hereof shall have occurred and be continuing, the holder of this AgreementNote may proceed to protect and enforce its rights either by suit in equity and/or by action at law, whether for the specific performance of any covenant or agreement contained in this Note or in aid of the exercise of any power granted in this Note, or the holder of this Note may proceed to enforce the payment of all sums due upon this Note or to enforce any other legal or equitable right of the holder of this Note.
9.2 The Lender may, at its option, terminate its obligation to make advances of the Loan, without notice to the Borrower:
(a) 8.3. No remedy herein conferred upon the occurrence and continuance holder hereof is intended to be exclusive of any Event of Default set forth other remedy and each and every such remedy shall be cumulative and shall be in subsections 9.1
(a) through 9.1(h) above; addition to every other remedy given hereunder or (b) upon the occurrence and continuance of any event which, with the giving of notice now or the lapse of time, hereafter existing at law or both, would constitute an Event of Default in equity or (C) upon the death by statute or disability of ▇▇▇▇▇ ▇otherwise.
Appears in 1 contract
Sources: Subordinated Note (Valley Forge Dental Associates Inc)
Events of Default and Remedies. 9.1 The following events shall constitute an "Event (a) In addition to the Events of Default" under this Default specified in Section 5(a) of the Master Agreement, the occurrence at any time with respect to Pledgor of which shall entitle any of the Lender to pursue any and all rights and remedies, legal and equitable, available following events will constitute an Event of Default with respect to it hereunder and under any Loan Document or otherwise. The Occurrence of an Event Default under this Agreement shall constitute a default under each and every other Loan Document. The Lender's rights and remedies are cumulative and may be exercised concurrently or successively from time to time. Any action by the Lender against any property or party shall not serve to release or discharge any other security, property or party in connection with this transaction. The Events of Default are as followsMaster Agreement:
(ai) Failure failure to pay the principal deliver Collateral to Secured Party in accordance with Section 3 hereof; or
(ii) failure of any representation or interest on the Borrower's present warranty made or future indebtedness deemed made herein or in any instrument or document delivered pursuant hereto to the Lender, whether be correct or not arising pursuant to this Agreement, when and as the same shall be due and payable, whether by acceleration or otherwise; provided that such default has not been cured prior to the expiration of ten (10) days following misleading in any material respect upon the date upon which the Lender gives the Borrower written Notice of Default. In this Section 9when made or deemed made; or
(iii) failure to perform any term, Notice of Default shall be deemed to have been given covenant or agreement contained herein (other than that specified in clauses (i) on the date of personal delivery of such written notice to a Guarantor, or (ii) above), if such failure is not remedied on or before the date on which a duly authorized representative of the Borrower acknowledges receipt fifth Business Day after notice of such written notice, or (iii) on the day after sending such written notice failure is given to the Borrower by a commonly recognized overnight courier service, such as Federal Express, Purolator, UPS or the like, or (iv) on the third day after sending such written notice to the Borrower by facsimile (to both numbers set forth in Section 16.7) or by depositing the same in the United States mail, postage prepaid, for delivery to the BorrowerPledgor.
(b) Failure If an Event of Default with respect to observe, perform Pledgor shall have occurred:
(i) Secured Party shall have and comply may exercise with reference to the Collateral and the Secured Obligations any or all of the obligations evidenced rights and remedies of a secured party under the UCC, and as otherwise granted herein or secured under any other applicable law or under any other agreement now or hereafter in effect executed by Pledgor, including, without limitation, the right and power to sell, at public or private sale or sales, or otherwise dispose of, or otherwise utilize the Collateral and any part or parts thereof in any manner authorized or permitted under the UCC after default by a Loan Documentdebtor, and to apply the proceeds thereof toward payment of any costs and expenses and attorneys' fees and expenses thereby incurred by Secured Party and toward payment of the Secured Obligations in such order or manner as Secured Party may elect. Any sale or other than as provided in Sections 9.1(a) abovedisposition of collateral pursuant hereto shall be free from any claim or right of any nature whatsoever of Pledgor, including any equity or right of redemption by Pledgor (with Secured Party having the right to purchase any or all of the Collateral to be sold). To the extent permitted by law, Pledgor expressly waives any notice of sale or other disposition of the Collateral and all other rights or remedies of Pledgor or formalities prescribed by law relative to sale or disposition of the Collateral or exercise of any other right or remedy of Secured Party existing after default hereunder; provided that such default has not been cured prior and to the expiration of thirty extent any such notice is required and cannot be waived, Pledgor agrees that if such notice is given at least three (303) days following before the date time of the sale or disposition, such notice shall be deemed reasonable and shall fully satisfy any requirement for giving of said notice. Notwithstanding the foregoing, Pledgor acknowledges and agrees that any Pledged Securities may decline speedily in value and are of a type customarily sold on a recognized market, and, accordingly, Pledgor is not entitled to prior notice of any sale of Pledged Securities by Secured Party, except any notice that is required under applicable law and cannot be waived. Secured Party shall not be obligated to make any sale of Collateral regardless of notice of sale having been given. Secured Party may adjourn any public or private sale;
(ii) upon which notice by Secured Party to Pledgor, Secured Party or its nominee or nominees shall have the Lender gives sole and exclusive right to exercise all voting and consensual powers pertaining to the Borrower written Notice Collateral or any part thereof and may exercise such powers in such manner as Secured Party may elect; and
(iii) all dividends, payments of Defaultinterest and other distributions of every character made upon or in respect of the Collateral or any part thereof shall be deemed to be Collateral and shall be paid directly to and shall be held by Secured Party as additional Collateral pledged under and subject to this Pledge Agreement.
(c) Failure All rights to duly and punctually paymarshalling of assets of Pledgor, observe and discharge all Indebtedness and including any such right with respects to the Collateral, are hereby waived by Pledgor. All recitals in any instrument of assignment or any other obligations instrument executed by Secured Party incident to sale, lease, transfer, assignment or other disposition, lease or utilization of the Borrower Collateral or any part thereof hereunder shall be full proof of the matters stated therein and no other proof shall be requisite to any third party, unless establish full legal propriety of the same is being contested in good faith by appropriate proceedings and the Borrower has set aside on its books adequate reserves with respect to such Indebtedness sale or other obligationsaction taken by Secured Party or of any fact, condition or thing incident thereto and all prerequisites of such sale or other action or of any fact, condition or thing incident thereto shall be presumed conclusively to have been performed or to have occurred.
(d) The discovery Pledgor hereby acknowledges that the sale by the Lender Secured Party of any material inaccuracy in any statement, assurance, representation, covenant, warranty, term or condition by the Borrower contained in this Agreement or in any document delivered or to be delivered by or on behalf of the Borrower Pledged Securities pursuant to this Agreementthe terms hereof in compliance with the Securities Act, which inaccuracy would result in a Material Adverse Effect (except that inaccuracies in the Borrower's Due Diligence Documents attributable as well as applicable Blue Sky or other state securities laws, may require strict limitations as to the fault or neglect of third-parties shall not constitute a breach of this Section 9.1(d)), or manner in any other Loan Document, or in any other agreement between the Borrower and the Lender.
(e) The filing of a petition by or against the Borrower which Secured Party or any Affiliate seeking relief subsequent transferee of Pledged Securities may dispose of such securities. Pledgor understands that in order to protect Secured Party's interest it may be necessary for Secured Party in order to comply with such limitations to sell the Pledged Securities at a price less than the maximum price attainable were a sale delayed or made in another manner, such as a public offering requested under the Federal Bankruptcy Code, 11 U.S.C. ssSecurities Act. 101, et seq., Pledgor has no objection to sale in such a manner under such circumstances and any amendments thereto, or any similar law or regulation, whether federal, state or local, not dismissed within 30 days.
(f) The commencement of a proceeding by or against agrees that under such circumstances Secured Party shall have no obligation to obtain the Borrower or any Affiliate under any statute or other law providing for an assignment maximum possible price for the benefit of creditors, the appointment of a receiver, or any other similar law or regulation, whether federal, state or local, not dismissed within 30 daysPledged Securities.
(g) The garnishment, attachment, levy or other similar action taken by or on behalf of any creditor of the Borrower, any Affiliate, or any of their respective properties which could have a Material Adverse Effect.
(h) Any change in control of the Borrower, Madison Liquidity Investors 104, MACG from that disclosed in Section 2 of this Agreement.
9.2 The Lender may, at its option, terminate its obligation to make advances of the Loan, without notice to the Borrower:
(a) upon the occurrence and continuance of any Event of Default set forth in subsections 9.1
(a) through 9.1(h) above; or (b) upon the occurrence and continuance of any event which, with the giving of notice or the lapse of time, or both, would constitute an Event of Default or (C) upon the death or disability of ▇▇▇▇▇ ▇.
Appears in 1 contract
Sources: Pledge Agreement (Conseco Inc)
Events of Default and Remedies. 9.1 10.1 The occurrence of any of the following events shall constitute an "Event of Default" under this Agreement, the occurrence of which shall entitle the Lender to pursue any and all rights and remedies, legal and equitable, available to it under any Loan Document or otherwise. The Occurrence of an Event Default under this Agreement shall constitute a default under each and every other Loan Document. The Lender's rights and remedies are cumulative and may be exercised concurrently or successively from time to time. Any action by the Lender against any property or party shall not serve to release or discharge any other security, property or party in connection with this transaction. The Events of Default are as followshereunder:
(a) Failure to pay breach by the principal Company in any material respect of the provisions of either the Interim Financing Order or interest on the Borrower's present or future indebtedness to the LenderFinal Financing Order, whether or not arising pursuant to this Agreement, when and as the same shall be due and payable, whether by acceleration or otherwise; provided that such default has not been cured prior to the expiration which breach continues for a period of ten (10) days following after the date upon which the Lender gives the Borrower written Notice of Default. In this Section 9, Notice of Default shall be deemed to have been given (i) on the date of personal delivery of such written notice to a Guarantor, or (ii) on the date on which a duly authorized representative of the Borrower acknowledges Company’s receipt of such written notice, or (iii) on the day after sending such written notice to the Borrower by a commonly recognized overnight courier service, such as Federal Express, Purolator, UPS or the like, or (iv) on the third day after sending such written notice to the Borrower by facsimile (to both numbers set forth in Section 16.7) or by depositing the same in the United States mail, postage prepaid, for delivery to the Borrower.thereof from CIT;
(b) Failure cessation of the operations of the Company;
(c) breach by the Company in any material respect of any warranty, representation or covenant contained herein (other than those referred to observein sub-Paragraph (d) below) or in any other written agreement between the Company or CIT, perform which continues for a period of ten (10) days after the Company’s receipt of notice thereof from CIT;
(d) breach by the Company in any material respect of any warranty, representation or covenant of Paragraphs 3.3 and comply with 3.5 hereof; Paragraphs 6.3 and 6.4 (other than the first sentence of Paragraph 6.4) hereof; and Paragraphs 7.2(d), 7.2(e), 7.2(f) and 7.2(h) through (t) and 7.2 (v) hereof;
(e) failure of the Company to pay any of the obligations evidenced Obligations outstanding under the Revolving Loan Account within five (5) Business Days after the due date thereof;
(f) the Company shall (i) engage in any “prohibited transaction” as defined in ERISA, (ii) have any “accumulated funding deficiency” as defined in ERISA, (iii) have any “reportable event” as defined in ERISA, (iv) terminate any “plan”, as defined in ERISA or secured by (v) be engaged in any proceeding in which the Pension Benefit Guaranty Corporation shall seek appointment, or is appointed, as trustee or administrator of any “plan”, as defined in ERISA, and with respect to this sub-Paragraph (h) such event or condition (x) remains uncured for a Loan Document, other than as provided in Sections 9.1(a) above; provided that such default has not been cured prior to the expiration period of thirty (30) days following from date of occurrence and (y) would reasonably be expected, in the date upon which commercially reasonable credit judgment of CIT, subject the Lender gives Company to any material tax, penalty or other liability material to the Borrower written Notice of Default.
(c) Failure to duly and punctually paybusiness, observe and discharge all Indebtedness and other obligations operations or financial condition of the Borrower to any third party, unless the same is being contested in good faith by appropriate proceedings and the Borrower has set aside on its books adequate reserves with respect to such Indebtedness or other obligations.
(d) The discovery by the Lender of any material inaccuracy in any statement, assurance, representation, covenant, warranty, term or condition by the Borrower contained in this Agreement or in any document delivered or to be delivered by or on behalf of the Borrower pursuant to this Agreement, which inaccuracy would result in a Material Adverse Effect (except that inaccuracies in the Borrower's Due Diligence Documents attributable to the fault or neglect of third-parties shall not constitute a breach of this Section 9.1(d)), or in any other Loan Document, or in any other agreement between the Borrower and the Lender.
(e) The filing of a petition by or against the Borrower or any Affiliate seeking relief under the Federal Bankruptcy Code, 11 U.S.C. ss. 101, et seq., and any amendments thereto, or any similar law or regulation, whether federal, state or local, not dismissed within 30 days.
(f) The commencement of a proceeding by or against the Borrower or any Affiliate under any statute or other law providing for an assignment for the benefit of creditors, the appointment of a receiver, or any other similar law or regulation, whether federal, state or local, not dismissed within 30 days.Company;
(g) The garnishment, attachment, levy or other similar action taken by or on behalf the occurrence of any creditor default or event of default (after giving effect to any applicable grace or cure periods) under any instrument or agreement evidencing any Indebtedness of the Borrower, any Affiliate, or any Company entered into subsequent to the Petition Date and having a principal amount in excess of their respective properties which could have a Material Adverse Effect.$250,000;
(h) Any change any judgment or judgments aggregating in control excess of $250,000 or any injunction or attachment is obtained or enforced against the Company and which remains unstayed for more than ten (10) Business Days, unless such judgment is stayed pursuant to Section 362 of the BorrowerBankruptcy Code; or
(i) (A) the Bankruptcy Court shall enter an order appointing a trustee under Section 1104(a) of the Bankruptcy Code in the Bankruptcy Case; or (B) the Interim Financing Order shall cease to be in full force and effect and the Final Financing Order shall not have been entered prior to such cessation; or (C) the Final Financing Order shall not have been entered by the Bankruptcy Court within sixty (60) days after the commencement of the Bankruptcy Case; or (D) at any time after the date of entry thereof, Madison Liquidity Investors 104the Final Financing Order shall cease to be in full force and effect; or (E) the Interim Financing Order or the Final Financing Order, MACG from that disclosed as the case may be, shall be amended, supplemented, stayed, reversed, vacated or otherwise modified (or the Company shall apply for authority to do so) without CIT’s prior written consent, which consent CIT agrees not to unreasonably withhold or delay; or (F) the Bankruptcy Court shall enter an order appointing a responsible officer or an examiner with powers beyond those set forth in Section 2 1106(a)(3) and (4) of the Bankruptcy Code or under Section 1106(b) of the Bankruptcy Code, in the Bankruptcy Case; or (G) there shall arise any Allowed Claim having priority senior to or that is pari passu with the Claims of CIT under the Loan Documents or any other Claim having priority over any and all administrative expenses of the kind specified in Section 503(b) or 507(b) of the Bankruptcy Code (other than Permitted Expenses and Indebtedness), or there shall arise any lien on any asset of the Company, in each case except as expressly permitted under the terms of the Loan Documents; (H) an order of a court of competent jurisdiction shall be entered reversing, staying, vacating or rescinded the Interim Financing Order or Final Financing Order, as the case may be; or (I) the Bankruptcy Court shall enter an order converting the Bankruptcy Case to a case under Chapter 7 of the Bankruptcy Code or dismissing the Bankruptcy Case; or (J) the entry of an order granting relief from the automatic stay to allow any third party to proceed against assets of the Company that are necessary for the continued operation of the Company; or (K) the failure of the Company to comply with the Cash Budget Projections, subject to (i) the variances and (ii) authority to carry over and spend unspent amounts previously authorized as permitted by the Interim Financing Order and the Final Financing Order; or (L) the filing of any plan or reorganization by the Company that does not provide for the payment or provision in full of the Obligations;
10.2 Upon the occurrence of a Default and/or an Event of Default, at the option of CIT, the obligation of CIT to make Revolving Loans and provide Letter of Credit Guaranties shall cease unless such Default is cured or waived in writing by CIT, and at the option of CIT upon the occurrence of an Event of Default: (a) all Obligations outstanding under the Revolving Loan Account shall become immediately due and payable; (b) CIT may charge the Company the Default Rate of Interest on all Obligations then outstanding under the Revolving Loan Account in lieu of the interest provided for in Section 8 of this Agreement.
9.2 The Lender may, at its option, and (c) CIT may immediately terminate its obligation to make advances of the Loan, without this Agreement upon notice to the BorrowerCompany. The exercise of any option is not exclusive of any other option, which may be exercised at any time by CIT.
10.3 In addition to the rights and remedies described in Paragraph 10.2, upon the occurrence of any Event of Default, CIT shall be entitled to file, and the Company hereby agrees not to oppose, CIT’s motion for an expedited hearing to modify the automatic stay provided by Section 362 of the Bankruptcy Code for the purpose of authorizing CIT to pursue any and all of its rights and remedies against the Company and the Collateral, and to seek payment in respect of all Obligations outstanding under the Revolving Loan Account, and the Company hereby acknowledges that CIT may request that such hearing be conducted no less than five (5) Business Days after CIT files such motion. CIT’s rights and remedies against the Company and the Collateral referred to in the preceding sentence shall include the following:
(a) upon the occurrence right to remove from any premises where same may be located any and continuance all books and records, computers, electronic media and software programs associated with any Collateral (including any electronic records, contracts and signatures pertaining thereto), documents, instruments, files and records, and any receptacles or cabinets containing same, relating to the Accounts, or CIT may use, at the Company’s expense, such of any Event the Company’s personnel, supplies or space at the Company’s places of Default set forth in subsections 9.1business or otherwise, as may be necessary to properly administer and control the Accounts or the handling of collections and realizations thereon;
(a) through 9.1(h) above; or (b) the right to bring suit, in the name of the Company or CIT, and generally shall have all other rights respecting said Accounts, including without limitation the right to: accelerate or extend the time of payment, settle, compromise, release in whole or in part any amounts owing on any Accounts and issue credits in the name of the Company or CIT;
(c) the right to sell, assign and deliver the Collateral and any returned, reclaimed or repossessed Inventory, with or without advertisement, at public or private sale, for cash, on credit or otherwise, at CIT’s sole option and discretion, and CIT may bid or become a purchaser at any such sale, free from any right of redemption, which right is hereby expressly waived by the Company;
(d) the right to foreclose the security interests in the Collateral created herein or by the Loan Documents by any available judicial procedure, or to take possession of any or all of the Collateral, including any Inventory, Equipment and/or Other Collateral without judicial process, and to enter any premises where any Inventory and Equipment and/or Other Collateral may be located for the purpose of taking possession of or removing the same; and
(e) the right to exercise any other rights and remedies provided in law, in equity, by contract or otherwise;
(f) the right, without notice or advertisement except as required by the UCC or other applicable law, to sell, lease, or otherwise dispose of all or any part of the Collateral, whether in its then condition or after further preparation or processing, in the name of the Company or CIT, or in the name of such other party as CIT may designate, either at public or private sale or at any broker’s board, in lots or in bulk, for cash or for credit, with or without warranties or representations (including but not limited to warranties of title, possession, quiet enjoyment and the like), and upon such other terms and conditions as CIT in its sole discretion may deem advisable, and CIT shall have the right to purchase at any such sale;
(g) if any Inventory and Equipment shall require rebuilding, repairing, maintenance or preparation, the right, at CIT’s option, to do such of the aforesaid as is necessary, for the purpose of putting the Inventory and Equipment in such saleable form as CIT shall deem appropriate and the reasonable costs thereof shall be deemed an Obligation hereunder. Notwithstanding anything contained to the contrary herein or elsewhere, it is not the Company’s intention to waive, and the Company does not waive, any requirement that any sale, lease or other disposition of the Collateral or any part thereof be commercially reasonable. The Company agrees, at the request of CIT, to assemble the Inventory and Equipment and to make it available to CIT at premises of the Company or elsewhere and to make available to CIT the premises and facilities of the Company for the purpose of CIT’s taking possession of, removing or putting the Inventory and Equipment in saleable form. If notice of intended disposition of any Collateral is required by law, it is agreed that ten (10) days notice shall constitute reasonable notification and full compliance with the law. The net cash proceeds resulting from CIT’s exercise of any of the foregoing rights, (after deducting all charges, costs and expenses, including reasonable attorneys’ fees) shall be applied by CIT to the payment of the Obligations then due under the Revolving Loan Account in such order as CIT may elect, and the Company shall remain liable to CIT for any deficiencies, and CIT in turn agrees to remit to the Company or its successors or assigns, any surplus resulting therefrom. The enumeration of the foregoing rights is not intended to be exhaustive and the exercise of any right shall not preclude the exercise of any other rights, all of which shall be cumulative. The Company hereby indemnifies CIT and holds CIT harmless from any and all reasonable costs and expenses, claims, liabilities, Out-of-Pocket Expenses or otherwise, incurred or imposed on CIT by reason of the proper exercise of any of its rights, remedies and interests hereunder, including, without limitation, from any sale or transfer of Collateral, preserving, maintaining or securing the Collateral, defending its interests in Collateral (including pursuant to any claims brought by the Company, the Company as debtor-in-possession, any secured or unsecured creditors of the Company, any trustee or receiver in bankruptcy, or otherwise), and the Company hereby agrees to so indemnify and hold CIT harmless, absent CIT’s gross negligence or willful misconduct as finally determined by a court of competent jurisdiction. The foregoing indemnification shall survive termination of this Agreement until such time as all Obligations (including the foregoing) have been finally and indefeasibly paid in full or provided for in accordance with Section 11 hereof.
10.4 Upon the occurrence and continuance of any event which, with the giving of notice or the lapse of time, or both, would constitute an Event of Default Default, CIT may direct the Company how and when to exercise all rights of the Company under Bankruptcy Code Section 365 in connection with an election by CIT to exercise its remedies under Paragraph 10.3. Notwithstanding anything to the contrary contained herein, if the Company does not fully honor and take and all actions requested in any such direction within three (3) Business Days of the delivery of such direction, CIT may move the Bankruptcy Court on behalf of the Company for the relief specified in the direction. The Company agrees that it will not contest a request by CIT for expedited consideration of any such motion to take place on at least five (5) Business Days’ prior written notice to the Company, any creditors committee and any landlord or (C) upon other counter-party to the death relevant lease or disability contract.
10.5 Upon the occurrence of ▇▇▇▇▇ ▇an Event of Default, CIT may exercise all other rights and remedies provided to CIT in the Interim Financing Order and the Final Financing Order, respectively.
Appears in 1 contract
Sources: Post Petition Financing Agreement (Crown Pacific Partners L P)
Events of Default and Remedies. 9.1 (a) The following events shall constitute an "Event of Default" under this Agreement, the occurrence of which shall entitle the Lender to pursue any and all rights and remedies, legal and equitable, available to it under any Loan Document or otherwise. The Occurrence of an Event Default under this Agreement shall constitute a default under each and every other Loan Document. The Lender's rights and remedies are cumulative and may be exercised concurrently or successively from time to time. Any action by the Lender against any property or party shall not serve to release or discharge any other security, property or party in connection with this transaction. The Events of Default are as follows:
for purposes of the remedies set forth in Section 18.01(b) hereof: (ai) Failure any failure of Tenant to pay the principal any rental or interest on the Borrower's present or future indebtedness to the Lender, whether or not arising pursuant to this Agreement, when and as the same shall be other charges due and payable, whether by acceleration or otherwise; provided that such default has not been cured prior to the expiration of hereunder within ten (10) days following the date upon which the Lender gives the Borrower after written Notice notice of Default. In this Section 9, Notice of Default such default shall be deemed to have been given (i) on the date of personal delivery of such written notice mailed to a GuarantorTenant, or (ii) if Tenant (A) fails to take possession of and open for business from the Premises fully fixtured, stocked and staffed on by the date on which a duly authorized representative of the Borrower acknowledges receipt of such written notice, or (iii) on the day after sending such written notice to the Borrower by a commonly recognized overnight courier service, such as Federal Express, Purolator, UPS or the like, or (iv) on the third day after sending such written notice to the Borrower by facsimile (to both numbers set forth in Section 16.7) or by depositing the same in the United States mail, postage prepaid, for delivery to the Borrower.
(b) Failure to observe, perform and comply with any of the obligations evidenced or secured by a Loan Document, other than as provided in Sections 9.1(a) above; provided that such default has not been cured prior to the expiration of thirty (30) days following the date upon Commencement Date, (B) fails to perform any obligation hereunder prior to such Commencement Date, (C) fails to continuously operate its business pursuant to Section 7.02 for the purpose specified in Section 7.01 hereof except for the occasional failure which is beyond Tenant’s reasonable anticipation and control, (D) fails or refuses to maintain business hours on such days or nights or any parts thereof as provided in Section 7.03 hereof, (E) fails to operate under the Lender gives name specified in Section 1.01(l) hereof except for the Borrower written Notice occasional failure which is beyond Tenant’s reasonable anticipation and control, (F) abandons, leaves vacant or deserts the Premises, or (G) permits this Lease to be taken under any writ of Default.
execution, or (ciii) Failure to duly and punctually payif there shall be any default by Tenant (or by any person or entity which directly or indirectly controls, observe and discharge all Indebtedness and is controlled by, or is under common control with Tenant) under any other obligations of lease with Landlord (or any person or entity which is affiliated with Landlord or which, directly or indirectly, controls, is controlled by, or is under common control with Landlord, or which is managed by the Borrower to managing agent utilized by Landlord for the Shopping Center) which shall not be remedied within the applicable grace period, if any, provided therefor under such other lease, or if there shall be any third party, unless the same is being contested in good faith default by appropriate proceedings and the Borrower has set aside on its books adequate reserves Tenant or any entity affiliated with Tenant with respect to such Indebtedness any financing or arrangement, if any, relating to items used in, or the operation of business in the Premises, or (iv) any failure to perform any other obligations.
(d) The discovery by of the Lender terms, conditions or covenants of any material inaccuracy in any statement, assurance, representation, covenant, warranty, term or condition by the Borrower contained in this Agreement or in any document delivered or Lease to be delivered observed or performed by or on behalf Tenant for more than thirty (30) days after written notice of the Borrower pursuant such default shall have been mailed to this AgreementTenant (provided, which inaccuracy would result in a Material Adverse Effect (except that inaccuracies in the Borrower's Due Diligence Documents attributable to the fault or neglect of third-parties however, such period shall not constitute a breach of this Section 9.1(d)), or in any other Loan Document, or in any other agreement between the Borrower and the Lender.
(e) The filing of a petition be extended by or against the Borrower or any Affiliate seeking relief under the Federal Bankruptcy Code, 11 U.S.C. ss. 101, et seq., and any amendments thereto, or any similar law or regulation, whether federal, state or local, not dismissed within 30 days.
(f) The commencement of a proceeding by or against the Borrower or any Affiliate under any statute or other law providing Landlord for an assignment for additional reasonable period if the benefit default is of creditors, such a nature that it cannot be cured within thirty [30] days and Tenant has diligently commenced the appointment curing of a receiver, or any other similar law or regulation, whether federal, state or local, not dismissed within 30 dayssuch default and is diligently pursuing the same to completion).
(g) The garnishment, attachment, levy or other similar action taken by or on behalf of any creditor of the Borrower, any Affiliate, or any of their respective properties which could have a Material Adverse Effect.
(h) Any change in control of the Borrower, Madison Liquidity Investors 104, MACG from that disclosed in Section 2 of this Agreement.
9.2 The Lender may, at its option, terminate its obligation to make advances of the Loan, without notice to the Borrower:
(a) upon the occurrence and continuance of any Event of Default set forth in subsections 9.1
(a) through 9.1(h) above; or (b) upon the occurrence and continuance of any event which, with the giving of notice or the lapse of time, or both, would constitute an Event of Default or (C) upon the death or disability of ▇▇▇▇▇ ▇.
Appears in 1 contract
Sources: Lease Agreement (Impossible Kicks Holding Company, Inc.)
Events of Default and Remedies. 9.1 The following events Payee shall constitute an "Event have the ------------------------------ right, without demand or notice, to accelerate this Note and to declare the entire unpaid balance hereof and the obligations evidenced hereby immediately due and payable and to seek and obtain payment of Default" under this Agreement, Note upon the occurrence of which shall entitle any of the Lender to pursue any and all rights and remedies, legal and equitable, available to it under any Loan Document or otherwise. The Occurrence following events of an Event Default under this Agreement shall constitute a default under each and every other Loan Document. The Lender's rights and remedies are cumulative and may be exercised concurrently or successively from time to time. Any action by the Lender against any property or party shall not serve to release or discharge any other security, property or party in connection with this transaction. The Events of Default are as follows:
default: (a) Failure the Maker fails to pay the any installment of principal payable under this Note or interest on thereon within twenty (20) days after the Borrower's present or future indebtedness to due date therefor; provided that, without limiting the Lender, whether or not arising pursuant to this terms and conditions of Section 11.07 of the Stock Purchase Agreement, when and as it shall not constitute an event of default hereunder if the same shall be due and payableMaker exercises its rights of offset under Section 11.07 of the Stock Purchase Agreement, whether by acceleration or otherwise; provided that the Maker also complies with all escrow requirements applicable to it set forth in such default has not been cured prior to the expiration of ten (10) days following the date upon which the Lender gives the Borrower written Notice of Default. In this Section 9, Notice of Default shall be deemed to have been given (i) on the date of personal delivery of such written notice to a Guarantor11.07, or (ii) on the date on which a duly authorized representative of the Borrower acknowledges receipt of such written notice, or (iii) on the day after sending such written notice to the Borrower by a commonly recognized overnight courier service, such as Federal Express, Purolator, UPS or the like, or (iv) on the third day after sending such written notice to the Borrower by facsimile (to both numbers set forth in Section 16.7) or by depositing the same in the United States mail, postage prepaid, for delivery to the Borrower.
(b) Failure the Maker admits in writing its inability to observepay its debts generally as they become due, perform and comply with any of the obligations evidenced files a case or secured by petition in bankruptcy or a Loan Document, other than as provided in Sections 9.1(a) above; provided that such default has not been cured prior case or petition to the expiration of thirty (30) days following the date upon which the Lender gives the Borrower written Notice of Default.
(c) Failure to duly and punctually pay, observe and discharge all Indebtedness and other obligations of the Borrower to any third party, unless the same is being contested in good faith by appropriate proceedings and the Borrower has set aside on its books adequate reserves with respect to such Indebtedness or other obligations.
(d) The discovery by the Lender take advantage of any material inaccuracy in any statementbankruptcy, assurancereorganization or insolvency act, representation, covenant, warranty, term or condition by the Borrower contained in this Agreement or in any document delivered or to be delivered by or on behalf of the Borrower pursuant to this Agreement, which inaccuracy would result in a Material Adverse Effect (except that inaccuracies in the Borrower's Due Diligence Documents attributable to the fault or neglect of third-parties shall not constitute a breach of this Section 9.1(d)), or in any other Loan Document, or in any other agreement between the Borrower and the Lender.
(e) The filing of a petition by or against the Borrower or any Affiliate seeking relief under the Federal Bankruptcy Code, 11 U.S.C. ss. 101, et seq., and any amendments thereto, or any similar law or regulation, whether federal, state or local, not dismissed within 30 days.
(f) The commencement of a proceeding by or against the Borrower or any Affiliate under any statute or other law providing for makes an assignment for the benefit of creditors, or consents to the appointment of a receiverreceiver for itself or for all or substantially all of its property or, on a petition in bankruptcy filed against it, is adjudicated a bankrupt, which judgment, order or any other similar law or regulationdecree shall not be appealed within the permitted time period from the date of entry thereof and subsequently vacated. Upon such declaration by the Payee, whether federal, state or local, the obligations evidenced by this Note shall be immediately due and payable. If the indebtedness evidenced by this Note shall not dismissed within 30 days.
be paid on the date when due (g) The garnishment, attachment, levy or other similar action taken by or on behalf of any creditor of the Borrower, any Affiliate, or any of their respective properties which could have a Material Adverse Effect.
(h) Any change in control of the Borrower, Madison Liquidity Investors 104, MACG from that disclosed in Section 2 of this Agreement.
9.2 The Lender may, at its option, terminate its obligation to make advances of the Loan, without notice subject to the Borrower:
proviso set forth in clause (a) upon above), thereafter the occurrence and continuance unpaid principal balance of any Event of Default such indebtedness shall bear interest at the rate per annum set forth in subsections 9.1
Section 1.1 above plus 3% until the past due portion of the indebtedness (aincluding all accrued and unpaid interest) through 9.1(h) above; or (b) upon is paid, but in no event shall such rate of interest exceed the occurrence highest rate permitted by applicable law. The parties hereto agree that the failure timely to make a payment hereunder would cause harm to the Payee, and continuance it is impracticable and extremely difficult to fix the actual damages that would be sustained should the Maker fail timely to make a required payment hereunder. Accordingly, the Maker shall pay to the Payee an amount equal to 5% of any delinquent payment due under this Note as a late payment fee and/or liquidated damages. The parties agree that the foregoing liquidated damages are reasonable considering all the facts and circumstances existing as of the date hereof and constitute the parties' good faith estimate of the actual damages reasonably expected to result from the failure to pay timely. In the event of any event whichof default hereunder, with the giving Maker agrees to pay to the Payee all expenses incurred by the Payee, including, without limitation, reasonable fees and disbursements of notice or counsel, incurred by the lapse Payee in the enforcement and collection of time, or both, would constitute an Event of Default or (C) upon the death or disability of ▇▇▇▇▇ ▇this Note.
Appears in 1 contract
Sources: Note (Guest Supply Inc)
Events of Default and Remedies. 9.1 The (a) Any of the following events of default by El Paso shall constitute an "Event of Default" under this Agreement, and give rise to the occurrence of which shall entitle the Lender to pursue any and all rights and remedies, legal and equitable, available to it under any Loan Document or otherwise. The Occurrence of an Event Default under this Agreement shall constitute a default under each and every other Loan Document. The Lender's rights and remedies are cumulative and may be exercised concurrently or successively from time to time. Any action by the Lender against any property or party shall not serve to release or discharge any other security, property or party in connection with this transaction. The Events of Default are as follows:
(a) Failure to pay the principal or interest on the Borrower's present or future indebtedness to part of the Lender, whether or not arising pursuant to this Agreement, when and as the same shall be due and payable, whether by acceleration or otherwise; provided that such default has not been cured prior to the expiration of ten (10) days following the date upon which the Lender gives the Borrower written Notice of Default. In this Trustee described in Section 9, Notice of Default shall be deemed to have been given 19(b):
(i) on default in the date payment of personal delivery of any amount payable by El Paso hereunder for 30 days after such written notice to a Guarantor, or payment is due; or
(ii) on the date on which a duly authorized representative of the Borrower acknowledges receipt of such written noticefailure to perform or observe any other term, covenant or (iii) on the day after sending such written notice to the Borrower by a commonly recognized overnight courier service, such as Federal Express, Purolator, UPS or the like, or (iv) on the third day after sending such written notice to the Borrower by facsimile (to both numbers set forth in Section 16.7) or by depositing the same in the United States mail, postage prepaid, for delivery to the Borrower.
(b) Failure to observe, perform and comply with any of the obligations evidenced or secured by a Loan Document, other than as provided in Sections 9.1(a) above; provided that such default has not been cured prior to the expiration of thirty (30) days following the date upon which the Lender gives the Borrower written Notice of Default.
(c) Failure to duly and punctually pay, observe and discharge all Indebtedness and other obligations of the Borrower to any third party, unless the same is being contested in good faith by appropriate proceedings and the Borrower has set aside on its books adequate reserves with respect to such Indebtedness or other obligations.
(d) The discovery by the Lender of any material inaccuracy in any statement, assurance, representation, covenant, warranty, term or condition by the Borrower agreement contained in this Agreement or in any document delivered or to be delivered by or on behalf of the Borrower pursuant to this Agreement, which inaccuracy would result in a Material Adverse Effect (except that inaccuracies in the Borrower's Due Diligence Documents attributable to the fault or neglect of third-parties shall not constitute a breach of this Section 9.1(d)), or in any other Loan Document, Contract or in any other agreement between the Borrower El Paso and the Lender.Trustee on El Paso's part to be performed or observed, which such failure shall remain unremedied for 30 days after written notice thereof shall have been given to El Paso by the Trustee; or
(eiii) The filing of a petition any representation or warranty made by El Paso herein, in the Assignment Agreements or against in any document or certificate furnished to the Borrower Trustee or any Affiliate seeking relief under other party in connection herewith or therewith or pursuant hereto or thereto shall prove at any time to be incorrect as of the Federal Bankruptcy Code, 11 U.S.C. ss. 101, et seq., and date made in any amendments thereto, or any similar law or regulation, whether federal, state or local, not dismissed within 30 days.material respect; or
(fiv) The commencement the institution of a any proceeding by or against the Borrower El Paso seeking to adjudicate it a bankrupt or any Affiliate insolvent or seeking reorganization, arrangement, adjustment, liquidation or compensation of it or its debts under any statute law relating to bankruptcy, insolvency or other law providing reorganization or relief of debtors, or seeking appointment of a receiver, trustee, or similar official or for any substantial part of its property and, if instituted against El Paso, consent thereto by El Paso or failure by El Paso for 60 days to stay such proceeding, or the taking of any action by El Paso to authorize any of the actions set forth above; or
(v) the termination of existence or business failure of, or the making of an assignment for the benefit of creditors, creditors by El Paso; or
(vi) admission in writing by El Paso of its in- ability to pay its debts; or
(vii) this Contract or the appointment of a receiver, Trust Agreement shall terminate or cease to be in full force and effect for any reason (other similar law or regulation, whether federal, state or local, not dismissed within 30 daysthan pursuant to Section 17 hereof).
(gb) The garnishment, attachment, levy or other similar action taken by or on behalf Upon the occurrence and during the continuance of any creditor Event of Default, the Trustee may in its discretion do any one or more of the Borrowerfollowing:
(i) proceed by appropriate judicial proceedings, any Affiliateeither at law or in equity, to enforce performance or observance by El Paso of the applicable provisions of this Contract, or any of their respective properties which could have a Material Adverse Effect.to recover damages for the breach thereof; or
(hii) Any change in control without limiting the generality of clause (i) above, the Borrower, Madison Liquidity Investors 104, MACG from that disclosed in Section 2 of this Agreement.
9.2 The Lender Trustee may, at its option, terminate in addition to all other rights and remedies provided hereunder or under applicable law, without regard to whether any· or all of such other rights and remedies have been or are to be exercised, in its obligation own name or the name of El Paso, demand, ▇▇▇ upon or otherwise enforce the Assigned Agreements with full power as though the Trustee were the party named in the Assigned Agreements, and amend, revise, release or otherwise change the same as may seem proper to make advances the Trustee in its sole discretion and exercise all other rights of El Paso under the Assigned Agreements in such manner as it may determine. The exercise by the Trustee of the Loan, without notice to the Borrower:rights and remedies granted it in this clause (ii) shall not be considered a waiver of any Event of Default.
(aiii) without limiting the generality of Clauses (i) or (ii) above, upon the occurrence and during the continuance of any Event of Default set forth in subsections 9.1
(a) through 9.1(h) above; or (b) upon the occurrence and continuance of any event which, with the giving of notice or the lapse of time, or both, would constitute an Event of Default or Default, El Paso agrees that the Trustee may (Cbut shall not be obliged to), at its sole election, perform for El Paso under any and all Assigned Agreements.
(iv) upon terminate this Contract.
(c) In addition to the death or disability remedies of ▇▇▇▇▇ ▇the Trustee provided in Section 19(b) above, the Trustee shall be entitled to recover from El Paso all losses, damages and expenses sustained by the Trustee by reason of such default and to all other remedies provided by law.
Appears in 1 contract
Events of Default and Remedies. 9.1 The following events shall constitute an "Event of Default" under this Agreement, the occurrence of which shall entitle the Lender to pursue any and all rights and remedies, legal and equitable, available to it under any Loan Document or otherwise. The Occurrence of an Event Default under this Agreement shall constitute a default under each and every other Loan Document. The Lender's rights and remedies are cumulative and may be exercised concurrently or successively from time to time. Any action by the Lender against any property or party shall not serve to release or discharge any other security, property or party in connection with this transaction. The Events of Default are as follows:
(a) Failure to pay the principal or interest on the Borrower's present or future indebtedness to the Lender, whether or not arising pursuant to this Agreement, when and as the same shall be due and payable, whether by acceleration or otherwise; provided that such default has not been cured prior to the expiration of ten (10) days following the date upon which the Lender gives the Borrower written Notice of Default. In this Section 9, Notice of Default shall be deemed to have been given (i) on the date of personal delivery of such written notice to a Guarantor, or (ii) on the date on which a duly authorized representative of the Borrower acknowledges receipt of such written notice, or (iii) on the day after sending such written notice to the Borrower by a commonly recognized overnight courier service, such as Federal Express, Purolator, UPS or the like, or (iv) on the third day after sending such written notice to the Borrower by facsimile (to both numbers set forth in Section 16.7) or by depositing the same in the United States mail, postage prepaid, for delivery to the Borrower.
(b) Failure to observe, perform and comply with any of the obligations evidenced or secured by a Loan Document, other than as provided in Sections 9.1(a) above; provided that such default has not been cured prior to the expiration of thirty (30) days following the date upon which the Lender gives the Borrower written Notice of Default.
(c) Failure to duly and punctually pay, observe and discharge all Indebtedness and other obligations of the Borrower to any third party, unless the same is being contested in good faith by appropriate proceedings and the Borrower has set aside on its books adequate reserves with respect to such Indebtedness or other obligations.
(d) The discovery by the Lender of any material inaccuracy in any statement, assurance, representation▇▇▇▇▇▇▇▇▇▇▇▇▇▇, covenant▇▇▇▇▇▇▇▇, warranty▇▇▇▇▇▇▇▇, term or condition by the Borrower contained in this Agreement or in any document delivered or to be delivered by or on behalf of the Borrower pursuant to this Agreement, which inaccuracy would result in a Material Adverse Effect (except that inaccuracies in the Borrower's Due Diligence Documents attributable to the fault or neglect of third-parties shall not constitute a breach of this Section 9.1(d)), or in any other Loan Document, or in any other agreement between the Borrower and the Lender.
(e) The filing of a petition by or against the Borrower or any Affiliate seeking relief under the Federal Bankruptcy Code, 11 U.S.C. ss. ' 101, et seq., and any amendments thereto, or any similar law or regulation, whether federal, state or local, not dismissed within 30 days.
(f) The commencement of a proceeding by or against the Borrower or any Affiliate under any statute or other law providing for an assignment for the benefit of creditors, the appointment of a receiver, or any other similar law or regulation, whether federal, state or local, not dismissed within 30 days.
(g) The garnishment, attachment, levy or other similar action taken by or on behalf of any creditor of the Borrower, any Affiliate, or any of their respective properties which could have a Material Adverse Effect.
(h) Any change in control of the Borrower, Madison Liquidity Investors 104, MACG from that disclosed in Section 2 of this Agreement.
9.2 The Lender may, at its option, terminate its obligation to make advances of the Loan, without notice to the Borrower:
(a) upon the occurrence and continuance of any Event of Default set forth in subsections 9.1
(a) through 9.1(h) above; or (b) upon the occurrence and continuance of any event which, with the giving of notice or the lapse of time, or both, would constitute an Event of Default or (C) upon the death or disability of ▇▇▇▇▇ ▇.
Appears in 1 contract
Sources: Loan Agreement (Madison Liquidity Investors 104 LLC)
Events of Default and Remedies. 9.1 The following events shall constitute an "Event of Default" under 1. Notwithstanding anything hereinabove to the contrary, the Agent, acting for the Lenders, may terminate this Agreement, Financing Agreement immediately upon the occurrence of which shall entitle any of the Lender to pursue any and all rights and remedies, legal and equitable, available to it under any Loan Document or otherwise. The Occurrence of an Event Default under this Agreement shall constitute a default under each and every other Loan Document. The Lender's rights and remedies are cumulative and may be exercised concurrently or successively from time to time. Any action by the Lender against any property or party shall not serve to release or discharge any other security, property or party in connection with this transaction. The following (herein "Events of Default are as follows:Default"):
(a) Failure cessation of the business of a Company or the calling of a meeting of the creditors of any Company for purposes of compromising the debts and obligations of any Company; (b) the failure of any Company to pay generally meet debts as they mature; (c) the principal commencement by any Company of any bankruptcy, insolvency, arrangement, reorganization, receivership or interest on similar proceedings under any federal or state law; (d) the Borrower's present commencement against any Company of any bankruptcy, insolvency, arrangement, reorganization, receivership or future indebtedness similar proceedings under any federal or state law, provided, however, that such Default shall not constitute an Event of Default if the proceeding, case, petition or arrangement is dismissed within sixty (60) days of such filing or commencement; (e) material breach by any Company of any warranty, representation or covenant contained herein (other than those referred to in sub-paragraph f below) or in any other written agreement between the LenderAgent and/or the Lenders and any Company, whether or not arising pursuant to this Agreement, when and as the same shall be due and payable, whether by acceleration or otherwise; provided that such default has Default by any Company of any of the warranties, representations or covenants referred in this clause e shall not been cured prior to the expiration of ten (10) days following the date upon which the Lender gives the Borrower written Notice of Default. In this Section 9, Notice of Default shall be deemed to have been given (i) on the date be an Event of personal delivery of Default unless and until such written notice to a Guarantor, or (ii) on the date on which a duly authorized representative of the Borrower acknowledges receipt of such written notice, or (iii) on the day after sending such written notice Default shall remain unremedied to the Borrower by Agent's satisfaction for a commonly recognized overnight courier service, such as Federal Express, Purolator, UPS or the like, or (iv) on the third day after sending such written notice to the Borrower by facsimile (to both numbers set forth in Section 16.7) or by depositing the same in the United States mail, postage prepaid, for delivery to the Borrower.
(b) Failure to observe, perform and comply with any of the obligations evidenced or secured by a Loan Document, other than as provided in Sections 9.1(a) above; provided that such default has not been cured prior to the expiration period of thirty (30) days following from the date upon of such breach; (f) breach by any Company of any warranty, representation or covenant of Section 3, Paragraphs 3 (other than the third sentence of paragraph 3) and 4; Section 6, Paragraphs 3 and 4 (other than the first sentence of paragraph 4); Section 7, Paragraphs 1,5,6, and 9 through 15; (g) failure of any Company to pay any of the Obligations within five (5) Business Days of the due date thereof, provided that nothing contained herein shall prohibit the Agent from charging such amounts to the Collective Loan Account on the due date thereof; (h) the Companies, on a consolidated basis, sustain a loss in any fiscal year as determined in accordance with GAAP; and (i) any Company shall i) engage in any "prohibited transaction" as defined in ERISA, ii) have any "accumulated funding deficiency" as defined in ERISA, iii) have any Reportable Event as defined in ERISA, iv) terminate any underfunded Plan, as defined in ERISA or v) be engaged in any proceeding in which the Lender gives Pension Benefit Guaranty Corporation shall seek appointment, or is appointed, as trustee or administrator of any Plan, as defined in ERISA, and with respect to this sub-paragraph i such event or condition x) remains uncured for a period of ninety (90) days from date of occurrence and y) could, in the Borrower reasonable opinion of the Agent, subject any Company to any tax, penalty or other liability material to the business, operations or financial condition of any Company.
2. Upon the occurrence of a Default and/or an Event of Default, at the option of the Agent, all loans and advances provided for in paragraph 1 of Section 3 of this Financing Agreement shall be thereafter in the Agent's sole discretion and the obligation of the Lenders, acting through the Agent, to make revolving loans, Acquisition Term Loans, and/or open Letters of Credit shall cease unless such Default is cured to the Agent's satisfaction or such Event of Default is waived, and at the option of the Agent, or at the direction of the Required Lenders, upon the occurrence of an Event of Default: i) all Obligations shall become immediately due and payable; ii) the Agent may charge the Default Rate of Interest on all then outstanding or thereafter incurred Obligations in lieu of the interest provided for in Section 8 of this Financing Agreement provided a) the Agent has given the Companies written Notice notice of the Event of Default, provided, however, that no notice is required if the Event of Default is the event listed in paragraph l(c) or l(d) of this Section 10 and b) the Companies have failed to cure the Event of Default within ten (10) days after x) the Agent deposited such notice in the United States mail or y) the occurrence of the Event of Default listed in paragraph l(c) or l(d) of this Section 10; and iii) the Agent may immediately terminate this Financing Agreement upon notice to ROA, provided, however, that no notice of termination is required if the Event of Default is the event listed in paragraph 1 (c) or 1 (d) of this Section 10. The exercise of any option is not exclusive of any other option which may be exercised at any time by the Agent. A Default Rate of Interest shall cease as soon as the Event of Default giving rise to the Default Rate of Interest is waived. In the event the Default Rate of Interest is charged as a result of a breach or violation of paragraphsl4 or 15 of Section 7 of this Financing Agreement, the Default Rate of Interest shall cease as soon as the Companies demonstrate on the next succeeding test date that they have not breached or violated the covenants applicable for said test date and that there is not another outstanding Event of Default.
3. Immediately upon the occurrence of any Event of Default, the Agent may to the extent permitted by law: (a) remove from any premises where same may be located any and all documents, instruments, files and records, and any receptacles or cabinets containing same, relating to the Accounts, or the Agent may use, at any Company's expense, such of a Company's personnel, supplies or space at any Company's places of business or otherwise, as may be necessary to properly administer and control the Accounts or the handling of collections and realizations thereon; (b) bring suit, in the name of any Company or the Agent, and generally shall have all other rights respecting said Accounts, including without limitation the right to: accelerate or extend the time of payment, settle, compromise, release in whole or in part any amounts owing on any Accounts and issue credits in the name of the applicable Company or the Agent; (c) Failure to duly sell, assign and punctually paydeliver the Collateral and any returned, observe reclaimed or repossessed merchandise, with or without advertisement, at public or private sale, for cash, on credit or otherwise, at the Agent's sole option and discharge all Indebtedness and other obligations of the Borrower to any third partydiscretion, unless the same is being contested in good faith by appropriate proceedings and the Borrower has set aside on its books adequate reserves with respect to Agent may bid or become a purchaser at any such Indebtedness or other obligations.
sale, free from any right of redemption, which right is hereby expressly waived by the Companies; (d) The discovery foreclose the security interests created herein by the Lender any available judicial procedure, or to take possession of any material inaccuracy in any statement, assurance, representation, covenant, warranty, term or condition by the Borrower contained in this Agreement or in any document delivered or to be delivered by or on behalf all of the Borrower pursuant Inventory and Equipment without judicial process, and to this Agreemententer any premises where any Inventory and Equipment may be located for the purpose of taking possession of or removing the same and (e) exercise any other rights and remedies provided in law, which inaccuracy would result in a Material Adverse Effect (except that inaccuracies equity, by contract or otherwise. The Agent shall have the right, without notice or advertisement, to sell, lease, or otherwise dispose of all or any part of the Collateral whether in its then condition or after further preparation or processing, in the Borrower's Due Diligence Documents attributable to name of any Company or the fault or neglect of third-parties shall not constitute a breach of this Section 9.1(d))Agent, or in the name of such other party as the Agent may designate, either at public or private sale or at any other Loan Documentbroker's board, in lots or in any bulk, for cash or for credit, with or without warranties or representations, and upon such other agreement between terms and conditions as the Borrower Agent in its sole discretion may deem advisable, and the Lender.
(e) The filing of a petition by Agent shall have the right to purchase at any such sale. If any Inventory and Equipment shall require rebuilding, repairing, maintenance or against the Borrower or any Affiliate seeking relief under the Federal Bankruptcy Code, 11 U.S.C. ss. 101, et seq., and any amendments thereto, or any similar law or regulation, whether federal, state or local, not dismissed within 30 days.
(f) The commencement of a proceeding by or against the Borrower or any Affiliate under any statute or other law providing for an assignment for the benefit of creditorspreparation, the appointment of a receiver, or any other similar law or regulation, whether federal, state or local, not dismissed within 30 days.
(g) The garnishment, attachment, levy or other similar action taken by or on behalf of any creditor of Agent shall have the Borrower, any Affiliate, or any of their respective properties which could have a Material Adverse Effect.
(h) Any change in control of the Borrower, Madison Liquidity Investors 104, MACG from that disclosed in Section 2 of this Agreement.
9.2 The Lender mayright, at its option, terminate its obligation to do such of the aforesaid as is necessary, for the purpose of putting the Inventory and Equipment in such saleable form as the Agent shall deem appropriate. Each Company agrees, at the request of the Agent, to assemble the Inventory and Equipment and to make advances it available to the Agent at premises of any Company where then located and to make available to the Agent the premises and facilities of any Company for the purpose of the LoanAgent's taking possession of, without removing or putting the Inventory located there and Equipment located there in saleable form. However, if notice of intended disposition of any Collateral is required by law, it is agreed that ten (10) days notice shall constitute reasonable notification and full compliance with the law. The net cash proceeds resulting from the Agent's exercise of any of the foregoing rights, (after deducting all charges, costs and expenses, including reasonable attorneys' fees) shall be applied by the Agent to the Borrower:
(a) upon payment of the occurrence Obligations, whether due or to become due, in such order as the Agent may elect, and continuance each Company shall remain liable to the Agent for any deficiencies, and the Agent in turn agrees to remit to ROA or its successors or assigns, any surplus resulting therefrom. The enumeration of the foregoing rights is not intended to be exhaustive and the exercise of any Event of Default set forth in subsections 9.1
(a) through 9.1(h) above; or (b) upon right shall not preclude the occurrence and continuance exercise of any event whichother rights, with all of which shall be cumulative. The mortgage, deed of trust or assignment on the giving Real Estate shall govern the rights and remedies of notice or the lapse of time, or both, would constitute an Event of Default or (C) upon the death or disability of ▇▇▇▇▇ ▇Agent thereto.
Appears in 1 contract
Events of Default and Remedies. 9.1 The following events shall constitute If an "Event of Default" under this AgreementDefault with respect to the Notes shall occur and be continuing, the occurrence principal of which shall entitle the Lender to pursue any and all rights and remedies, legal and equitable, available to it under any Loan Document or otherwise. The Occurrence of an Event Default under this Agreement shall constitute a default under each and every other Loan Document. The Lender's rights and remedies are cumulative and Notes may be exercised concurrently or successively from time to time. Any action by the Lender against any property or party declared, and in certain cases shall not serve to release or discharge any other securityautomatically become, property or party in connection with this transaction. The Events of Default are as follows:
(a) Failure to pay the principal or interest on the Borrower's present or future indebtedness to the Lender, whether or not arising pursuant to this Agreement, when and as the same shall be due and payable, whether by acceleration or otherwisepayable in the manner and with the effect provided in the Indenture; provided that under Section 6.01(4)(A) and (B), in each case, the principal amount of any such default Indebtedness, together with the principal amount of any other such Indebtedness under which there has not been cured prior a Payment Default or the maturity of which has been so accelerated, aggregates to $150,000,000 or more. As provided in and subject to the expiration of ten (10) days following the date upon which the Lender gives the Borrower written Notice of Default. In this Section 9, Notice of Default shall be deemed to have been given (i) on the date of personal delivery of such written notice to a Guarantor, or (ii) on the date on which a duly authorized representative provisions of the Borrower acknowledges receipt Indenture, the Holder of such written notice, or (iii) on this Note shall not have the day after sending such written notice right to the Borrower by a commonly recognized overnight courier service, such as Federal Express, Purolator, UPS or the like, or (iv) on the third day after sending such written notice to the Borrower by facsimile (to both numbers set forth in Section 16.7) or by depositing the same in the United States mail, postage prepaid, for delivery to the Borrower.
(b) Failure to observe, perform and comply with institute any of the obligations evidenced or secured by a Loan Document, other than as provided in Sections 9.1(a) above; provided that such default has not been cured prior to the expiration of thirty (30) days following the date upon which the Lender gives the Borrower written Notice of Default.
(c) Failure to duly and punctually pay, observe and discharge all Indebtedness and other obligations of the Borrower to any third party, unless the same is being contested in good faith by appropriate proceedings and the Borrower has set aside on its books adequate reserves proceeding with respect to such Indebtedness the Indenture or other obligations.
(d) The discovery by the Lender of any material inaccuracy in any statement, assurance, representation, covenant, warranty, term or condition by the Borrower contained in this Agreement or in any document delivered or to be delivered by or on behalf of the Borrower pursuant to this Agreement, which inaccuracy would result in a Material Adverse Effect (except that inaccuracies in the Borrower's Due Diligence Documents attributable to the fault or neglect of third-parties shall not constitute a breach of this Section 9.1(d)), or in any other Loan Document, or in any other agreement between the Borrower and the Lender.
(e) The filing of a petition by or against the Borrower or any Affiliate seeking relief under the Federal Bankruptcy Code, 11 U.S.C. ss. 101, et seq., and any amendments thereto, or any similar law or regulation, whether federal, state or local, not dismissed within 30 days.
(f) The commencement of a proceeding by or against the Borrower or any Affiliate under any statute or other law providing for an assignment for the benefit of creditors, the appointment of a receiver, receiver or trustee or for any other similar law or regulationremedy thereunder, whether federal, state or local, not dismissed within 30 days.
(g) The garnishment, attachment, levy or other similar action taken by or on behalf unless such Holder shall have previously given the Trustee written notice of any creditor of the Borrower, any Affiliate, or any of their respective properties which could have a Material Adverse Effect.
(h) Any change in control of the Borrower, Madison Liquidity Investors 104, MACG from that disclosed in Section 2 of this Agreement.
9.2 The Lender may, at its option, terminate its obligation to make advances of the Loan, without notice to the Borrower:
(a) upon the occurrence and continuance of any continuing Event of Default set forth with respect to the Notes, the Holders of not less than 25% in subsections 9.1
(a) through 9.1(h) above; or (b) upon principal amount of the occurrence and continuance Notes at the time outstanding shall have made written request to the Trustee to pursue a remedy in respect of any event which, with the giving of notice or the lapse of time, or both, would constitute an such Event of Default and the Holders offered the Trustee and, if requested, provided security or (C) upon indemnity reasonably satisfactory to the death Trustee against any loss, liability or disability expense and the Trustee shall not have received from the Holders of ▇▇▇▇▇ ▇a majority in principal amount of the Notes at the time outstanding a direction inconsistent with such request, and shall have failed to institute any such proceeding, for 60 days after receipt of such notice, request and offer of indemnity. The foregoing shall not apply to any suit instituted by the Holder of this Note for the enforcement of any payment of principal hereof or any premium or interest hereon.
Appears in 1 contract
Events of Default and Remedies. 9.1 The following events (a) If any of Lessor's warranties and representations in Sections 3 and 4 hereof shall constitute be untrue, or it Lessor shall breach any covenant in Section 5 hereof and if such breach shall continue for a period of fifteen (15) days after written notice thereof from AFI or if any guarantor of Lessors' obligations hereunder shall be in default under any guaranty hereof, then Lessor shall, upon demand by AFI, purchase the Lease(s) to which such misrepresentation or breach pertains from AFI for cash in an "Event amount equal to any due but unpaid rentals or other amounts under the lease, plus the net present value of Default" the then unpaid balance of the rentals due under this Agreementthe Lease) for the remainder of their original terms and AFI's booked residual value of the Equipment, both discounted at the occurrence rate of which 6% per annum or such other rate as the parties hereto shall entitle agree upon in writing from time to time with respect to such Lease(s) and Equipment at the Lender to pursue time of original assignment and, in addition, any and all rights commission or other compensation paid or payable to or for the benefit of Lessor with respect to such Leases(s) shall be forfeited and remedieswaived, legal and equitable, available AFI shall recover from Lessor any such commission or other compensation previously paid to it under any Loan Document or otherwisefor the benefit of Lessor by or on behalf of AFI. The Occurrence Any Lease reacquired by Lessor in accordance with the provisions of an Event Default under this Agreement shall constitute a default under each be reassigned by AFI to Lessor without recourse and every other Loan Document. The Lender's rights and remedies are cumulative and may be exercised concurrently without warranty or successively from time to time. Any action by the Lender against representation of any property or party shall not serve to release or discharge any other security, property or party in connection with this transaction. The Events of Default are as follows:
(a) Failure to pay the principal or interest on the Borrower's present or future indebtedness to the Lender, whether or not arising pursuant to this Agreement, when and as the same shall be due and payable, whether by acceleration or otherwise; provided that such default has not been cured prior to the expiration of ten (10) days following the date upon which the Lender gives the Borrower written Notice of Default. In this Section 9, Notice of Default shall be deemed to have been given (i) on the date of personal delivery of such written notice to a Guarantor, or (ii) on the date on which a duly authorized representative of the Borrower acknowledges receipt of such written notice, or (iii) on the day after sending such written notice to the Borrower by a commonly recognized overnight courier service, such as Federal Express, Purolator, UPS or the like, or (iv) on the third day after sending such written notice to the Borrower by facsimile (to both numbers set forth in Section 16.7) or by depositing the same in the United States mail, postage prepaid, for delivery to the Borrowerkind whatsoever.
(b) Failure to observe, perform and comply with Upon the occurrence of any of the obligations evidenced material misrepresentation or secured by a Loan Document, other than breach as provided in Sections 9.1(asubparagraph (a) above; provided that such default has not , AFI may elect to rescind any pending approvals (whether given to Lessor orally or in writing) with respect to other Leases which have been cured prior presented by Lessor to the expiration of thirty (30) days following the date upon which the Lender gives the Borrower written Notice of DefaultAFI for assignment or direct lease by AFI pursuant to this Agreement.
(c) Failure to duly and punctually pay, observe and discharge all Indebtedness and In the event a Lessee defaults in the payment of rentals or other obligations sums under the Lease or in the performance of the Borrower to any third partyLessee's other covenants under the Lease, unless then AFI may exercise all rights and remedies under the same is being contested in good faith by appropriate proceedings Lease and all rights and remedies of a secured party under the Borrower has set aside on its books adequate reserves Uniform Commercial Code with respect to such Indebtedness or other obligationsthe Lease and the Equipment.
(d) The discovery by the Lender of any material inaccuracy in any statementabove remedies are cumulative and not alternative, assurance, representation, covenant, warranty, term or condition by the Borrower contained in this Agreement and AFI shall also have available all remedies at law or in any document delivered or to be delivered by or on behalf of the Borrower pursuant to this Agreement, which inaccuracy would result in a Material Adverse Effect (except that inaccuracies in the Borrower's Due Diligence Documents attributable to the fault or neglect of third-parties shall not constitute a breach of this Section 9.1(d)), or in any other Loan Document, or in any other agreement between the Borrower and the Lenderequity.
(e) The filing of a petition by or against the Borrower or any Affiliate seeking relief under the Federal Bankruptcy Code, 11 U.S.C. ss. 101, et seq., and any amendments thereto, or any similar law or regulation, whether federal, state or local, not dismissed within 30 days.
(f) The commencement of a proceeding by or against the Borrower or any Affiliate under any statute or other law providing for an assignment for the benefit of creditors, the appointment of a receiver, or any other similar law or regulation, whether federal, state or local, not dismissed within 30 days.
(g) The garnishment, attachment, levy or other similar action taken by or on behalf of any creditor of the Borrower, any Affiliate, or any of their respective properties which could have a Material Adverse Effect.
(h) Any change in control of the Borrower, Madison Liquidity Investors 104, MACG from that disclosed in Section 2 of this Agreement.
9.2 The Lender may, at its option, terminate its obligation to make advances of the Loan, without notice to the Borrower:
(a) upon the occurrence and continuance of any Event of Default set forth in subsections 9.1
(a) through 9.1(h) above; or (b) upon the occurrence and continuance of any event which, with the giving of notice or the lapse of time, or both, would constitute an Event of Default or (C) upon the death or disability of ▇▇▇▇▇ ▇.
Appears in 1 contract
Events of Default and Remedies. 9.1 The following events shall constitute an "Event of Default" under this Agreement, the occurrence of which shall entitle the Lender to pursue any and all rights and remedies, legal and equitable, available to it under any Loan Document or otherwise. The Occurrence of an Event Default under this Agreement shall constitute a default under each and every other Loan Document. The Lender's rights and remedies are cumulative and may be exercised concurrently or successively from time to time. Any action by the Lender against any property or party shall not serve to release or discharge any other security, property or party in connection with this transaction. The Events of Default are as follows:
(a) Failure to pay the principal or interest on the Borrower's present or future indebtedness to the Lender, whether or not arising pursuant to this Agreement, when and as the same shall be due and payable, whether by acceleration or otherwise; provided that such default has not been cured prior to the expiration of ten (10) days following the date upon which the Lender gives the Borrower written Notice of Default. In this Section 9, Notice of Default shall be deemed to have been given (i) on the date of personal delivery of such written notice to a Guarantor, or (ii) on the date on which a duly authorized representative of the Borrower acknowledges receipt of such written notice, or (iii) on the day after sending such written notice to the Borrower by a commonly recognized overnight courier service, such as Federal Express, Purolator, UPS or the like, or (iv) on the third day after sending such written notice to the Borrower by facsimile (to both numbers set forth in Section 16.7) or by depositing the same in the United States mail, postage prepaid, for delivery to the Borrower.
(b) Failure to observe, perform and comply with any of the obligations evidenced or secured by a Loan Document, other than as provided in Sections 9.1(a) above; provided that such default has not been cured prior to the expiration of thirty (30) days following the date upon which the Lender gives the Borrower written Notice of Default.
(c) Failure to duly and punctually pay, observe and discharge all Indebtedness and other obligations of the Borrower to any third party, unless the same is being contested in good faith by appropriate proceedings and the Borrower has set aside on its books adequate reserves with respect to such Indebtedness or other obligations.
(d) The discovery by the Lender of any material inaccuracy in any statement, assurance, representation▇▇▇▇▇▇▇▇▇▇▇▇▇▇, covenant▇▇▇▇▇▇▇▇, warranty▇▇▇▇▇▇▇▇, term or condition by the Borrower contained in this Agreement or in any document delivered or to be delivered by or on behalf of the Borrower pursuant to this Agreement, which inaccuracy would result in a Material Adverse Effect (except that inaccuracies in the Borrower's Due Diligence Documents attributable to the fault or neglect of third-parties shall not constitute a breach of this Section 9.1(d)), or in any other Loan Document, or in any other agreement between the Borrower and the Lender.
(e) The filing of a petition by or against the Borrower or any Affiliate seeking relief under the Federal Bankruptcy Code, 11 U.S.C. ss. 101, et seq., and any amendments thereto, or any similar law or regulation, whether federal, state or local, not dismissed within 30 days.
(f) The commencement of a proceeding by or against the Borrower or any Affiliate under any statute or other law providing for an assignment for the benefit of creditors, the appointment of a receiver, or any other similar law or regulation, whether federal, state or local, not dismissed within 30 days.
(g) The garnishment, attachment, levy or other similar action taken by or on behalf of any creditor of the Borrower, any Affiliate, or any of their respective properties which could have a Material Adverse Effect.
(h) Any change in control of the Borrower, Madison Liquidity Investors 104, MACG from that disclosed in Section 2 of this Agreement.
9.2 The Lender may, at its option, terminate its obligation to make advances of the Loan, without notice to the Borrower:
(a) upon the occurrence and continuance of any Event of Default set forth in subsections 9.1
(a) through 9.1(h) above; or (b) upon the occurrence and continuance of any event which, with the giving of notice or the lapse of time, or both, would constitute an Event of Default or (C) upon the death or disability of ▇▇▇▇▇ ▇.
Appears in 1 contract
Sources: Loan Agreement (Madison Liquidity Investors 104 LLC)
Events of Default and Remedies. 9.1 The Termination - Time is of the essence herein and it is understood and agreed that Secured Party may, at its option and notwithstanding any inconsistent terms in any agreement between Debtor and Chrysler Corporation and/or Secured Party with respect to the receivable underlying any Receivable Purchase Advance by Secured Party, terminate this Agreement, refuse to advance funds hereunder, convert outstanding installment payment obligations to payment on Vehicle sale obligations, and declare the aggregate of all Advances outstanding hereunder immediately due and payable upon the occurrence of any of the following events shall constitute (each hereinafter called an "Event of Default" ), and that Debtor's liabilities under this sentence shall constitute additional obligations of Debtor secured under this Agreement, the occurrence of which shall entitle the Lender to pursue any and all rights and remedies, legal and equitable, available to it under any Loan Document or otherwise. The Occurrence of an Event Default under this Agreement shall constitute a default under each and every other Loan Document. The Lender's rights and remedies are cumulative and may be exercised concurrently or successively from time to time. Any action by the Lender against any property or party shall not serve to release or discharge any other security, property or party in connection with this transaction. The Events of Default are as follows:.
(a) Failure Debtor shall fail to pay make any payment to Secured Party, whether constituting the principal amount of any Advance, interest thereon or interest on the Borrower's present or future indebtedness to the Lender, whether or not arising pursuant to this Agreementany other payment due hereunder, when and as due in accordance with the same terms of this Agreement or with any demand permitted to be made by Secured Party under this Agreement or any Promissory Note, or shall fail to pay when due any other amount owing to Secured Party under any other agreement between Secured Party and Debtor, or shall fail in the due performance or compliance with any other term or condition hereof or thereof, or shall be due and payable, whether by acceleration in default in the payment of any liabilities constituting indebtedness for money borrowed or otherwise; provided that such default has not been cured prior the deferred payment of the purchase price of property or a rental payment with respect to property material to the expiration conduct of ten (10) days following the date upon which the Lender gives the Borrower written Notice of Default. In this Section 9, Notice of Default shall be deemed to have been given (i) on the date of personal delivery of such written notice to a Guarantor, or (ii) on the date on which a duly authorized representative of the Borrower acknowledges receipt of such written notice, or (iii) on the day after sending such written notice to the Borrower by a commonly recognized overnight courier service, such as Federal Express, Purolator, UPS or the like, or (iv) on the third day after sending such written notice to the Borrower by facsimile (to both numbers set forth in Section 16.7) or by depositing the same in the United States mail, postage prepaid, for delivery to the Borrower.Debtor's business;
(b) Failure to observe, perform and comply with A tax lien or notice thereof shall have been filed against any of the obligations evidenced Debtor's property or secured by a Loan Documentproceeding in bankruptcy, other than as provided in Sections 9.1(a) above; provided that such default has not been cured prior to the expiration of thirty (30) days following the date upon which the Lender gives the Borrower written Notice of Default.
(c) Failure to duly and punctually pay, observe and discharge all Indebtedness and other obligations of the Borrower to any third party, unless the same is being contested in good faith by appropriate proceedings and the Borrower has set aside on its books adequate reserves with respect to such Indebtedness insolvency or other obligations.
(d) The discovery by the Lender of any material inaccuracy in any statement, assurance, representation, covenant, warranty, term or condition by the Borrower contained in this Agreement or in any document delivered or to receivership shall be delivered by or on behalf of the Borrower pursuant to this Agreement, which inaccuracy would result in a Material Adverse Effect (except that inaccuracies in the Borrower's Due Diligence Documents attributable to the fault or neglect of third-parties shall not constitute a breach of this Section 9.1(d)), or in any other Loan Document, or in any other agreement between the Borrower and the Lender.
(e) The filing of a petition instituted by or against the Borrower Debtor or any Affiliate seeking relief under the Federal Bankruptcy Code, 11 U.S.C. ss. 101, et seq., and any amendments thereto, Debtor's property or any similar law or regulation, whether federal, state or local, not dismissed within 30 days.
(f) The commencement of a proceeding by or against the Borrower or any Affiliate under any statute or other law providing for an assignment shall have been made by Debtor for the benefit of creditors;
(c) In the event that Secured Party deems itself insecure for any reason or the Vehicles are deemed by Secured Party to be in danger of misuse, loss, seizure or confiscation or other disposition not authorized by this Agreement;
(d) Termination of any franchise authorizing Debtor to sell Vehicles;
(e) A misrepresentation by Debtor for the appointment purpose of obtaining credit or an extension of credit or a receiverrefusal by Debtor to execute documents relating to the Collateral and/or Secured Party's security interest therein or to furnish financial information to Secured Party at reasonable intervals or to permit persons designated by Secured Party to examine Debtor's books or records and to make periodic inspections of the Collateral; or
(f) Debtor, without Secured Party's prior written consent, shall guarantee, endorse or otherwise become surety for or upon the obligations of others except as may be done in the ordinary course of Debtor's business, shall transfer or otherwise dispose of any proprietary, partnership or share interest Debtor has in his business, or all or substantially all of the assets thereof, shall enter into any merger or consolidation, if a corporation, or shall make any substantial disbursements or use of funds of Debtor's business, except as may be done in the ordinary course of Debtor's business, or assign this Agreement in whole or in part or any obligation hereunder. Upon the occurrence of an Event of Default, Secured Party may take immediate possession of said Vehicles without demand or further notice and without legal process; and for the purpose and furtherance thereof, Debtor shall, if Secured Party so requests, assemble the Vehicles and make them available to Secured Party at a reasonably convenient place designated by Secured Party and Secured Party shall have the right, and Debtor hereby authorizes and empowers Secured Party to enter upon the premises wherever said Vehicles may be, to remove same. In addition, Secured Party or its assigns shall have all the rights and remedies applicable under the Uniform Commercial Code or under any other similar statute or at common law or regulationin equity or under this Agreement. Such rights and remedies shall be cumulative. Debtor hereby agrees that it shall pay all expenses and reimburse Secured Party for any expenditures, whether federalincluding reasonable attorneys fees and legal expenses, state or local, not dismissed within 30 days.
(g) The garnishment, attachment, levy or other similar action taken by or on behalf in connection with Secured Party's exercise of any creditor of the Borrower, any Affiliate, or any of their respective properties which could have a Material Adverse Effect.
(h) Any change in control of the Borrower, Madison Liquidity Investors 104, MACG from that disclosed in Section 2 of its rights and remedies under this Agreement.
9.2 The Lender may, at its option, terminate its obligation to make advances of the Loan, without notice to the Borrower:
(a) upon the occurrence and continuance of any Event of Default set forth in subsections 9.1
(a) through 9.1(h) above; or (b) upon the occurrence and continuance of any event which, with the giving of notice or the lapse of time, or both, would constitute an Event of Default or (C) upon the death or disability of ▇▇▇▇▇ ▇.
Appears in 1 contract
Sources: Security Agreement and Master Credit Agreement (Sonic Automotive Inc)
Events of Default and Remedies. 9.1 The SECTION 8.1 Any one or more of the following events shall constitute an "Event of Default" under this Agreement, the occurrence of which shall entitle the Lender to pursue any and all rights and remedies, legal and equitable, available to it under any Loan Document or otherwise. The Occurrence of an Event Default under this Agreement shall constitute a default under each and every other Loan Document. The Lender's rights and remedies are cumulative and may be exercised concurrently or successively from time to time. Any action by the Lender against any property or party shall not serve to release or discharge any other security, property or party in connection with this transaction. The Events of Default are as followshereunder:
(a) Failure to pay a. default in the payment when due of any part of the principal of or interest on the Borrower's present Note or future indebtedness to the Lender, whether or not arising pursuant to of any other amounts payable under this Agreement, when and as the same shall be due and payable, whether by acceleration or otherwise; provided that such default has not been cured prior to the expiration of ten (10) days following the date upon which the Lender gives ;
b. the Borrower written Notice of Default. In this Section 9, Notice of Default shall be deemed to have been given (i) on the date of personal delivery of such written notice to a Guarantor, or (ii) on the date on which a duly authorized representative of the Borrower acknowledges receipt of such written notice, or (iii) on the day after sending such written notice to the Borrower by a commonly recognized overnight courier service, such as Federal Express, Purolator, UPS or the like, or (iv) on the third day after sending such written notice to the Borrower by facsimile (to both numbers set forth in Section 16.7) or by depositing the same default in the United States mail, postage prepaid, for delivery observance or performance by it of any other provision hereof or in any other instrument or document securing the Note or setting forth terms and conditions applicable to the Borrower.
(b) Failure to observe, perform and comply with any of the obligations indebtedness evidenced or secured by a Loan Document, other than as provided in Sections 9.1(a) above; provided that thereby and such default has not been cured prior to the expiration shall continue unremedied for a period of thirty (30) days following after notice to the Borrower by the Bank or any other holder of the Note;
c. any representation, warranty or statement made by the Borrower herein or in connection with the making of the Loan proves to be incorrect in any material respect as of the date upon which the Lender gives the Borrower written Notice of Default.
(c) Failure to duly and punctually pay, observe and discharge all Indebtedness and other obligations of the Borrower to any third party, unless the same is being contested in good faith by appropriate proceedings and the Borrower has set aside on its books adequate reserves issuance or making thereof or (with respect to such Indebtedness or other obligations.
(dthe representations contained in Sections 5.1 and 5.2 above) The discovery by the Lender as of any material inaccuracy in subsequent date during the term of this Agreement;
d. default shall occur under any statementevidence of indebtedness issued, assurance, representation, covenant, warranty, term assumed or condition guaranteed by the Borrower contained in this Agreement or in any document delivered Guarantor or under any indenture, agreement or other instrument under which the same may be issued, and such default shall continue for a period of time sufficient to be delivered by or on behalf permit the acceleration of the Borrower pursuant to this Agreementmaturity of any such indebtedness, which inaccuracy would result in a Material Adverse Effect (except that inaccuracies in the Borrower's Due Diligence Documents attributable to the fault or neglect of third-parties any such indebtedness shall not constitute a breach be paid when due (whether by lapse of this Section 9.1(dtime, acceleration or otherwise));
e. any judgment or judgments, writ or writs, or in any other Loan Documentwarrant or warrants of attachment, or any similar process or processes in any other agreement between the Borrower and the Lender.
(e) The filing an aggregate amount in excess of a petition by $100,000 shall be entered or filed against the Borrower or any Affiliate seeking relief under Guarantor or against any of their respective properties or assets and which remains unvacated, unbonded, unstayed or unsatisfied for a period of thirty (30) days;
f. any indebtedness, obligation or liability of any Guarantor at any time owing to the Federal Bankruptcy CodeBank shall not be paid when due (whether by demand, 11 U.S.C. ss. 101lapse of time, et seq.acceleration, and any amendments theretoor otherwise), or any similar law event occurs or regulationcondition exists which is specified as an event of default under the Guarantor Security Agreement, whether federalor any Guarantor shall purport to terminate, state repudiate, revoke or localdisavow its Guaranty or the Guarantor Security Agreement or any of its obligations thereunder, or the Guaranty or the Guarantor Security Agreement (or any part thereof) shall for any reason not dismissed within 30 days.be or shall cease to be in full force and effect or is declared to be null and void;
(f) The commencement g. dissolution or termination of a proceeding by the existence of any Guarantor or against the Borrower;
h. the Borrower or any Affiliate Guarantor shall (i) have entered involuntarily against it an order for relief under any statute the United States Bankruptcy Code, as amended, (ii) not pay, or other law providing for admit in writing its inability to pay, its debts generally as they become due, (iii) make an assignment for the benefit of creditors, (iv) apply for, seek, consent to, or acquiesce in, the appointment of a receiver, custodian, trustee, examiner, liquidator or similar official for it or any substantial part of its property, (v) institute any proceeding seeking to have entered against it an order for relief under the United States Bankruptcy Code, as amended, to adjudicate it insolvent, or seeking dissolution, winding up, liquidation, reorganization, arrangement, adjustment or composition of it or its debts under any law relating to bankruptcy, insolvency or reorganization or relief of debtors or fail to file an answer or other pleading denying the material allegations of any such proceeding filed against it, or (vi) fail to contest in good faith any appointment, proceeding described in Section 8.1(i) hereof; or
i. a custodian, receiver, trustee, examiner, liquidator or similar law official shall be appointed for the Borrower or regulationany Guarantor or any substantial part of any of their properties or assets, whether federalor a proceeding described in Section 8.1(j)(v) shall be instituted against the Borrower or such Guarantor, state and such appointment continues undischarged or local, not dismissed within 30 such proceeding continues undismissed or unstayed for a period of thirty (30) days.
SECTION 8.2 When any Event of Default described in clauses (a) through (g) The garnishment), attachmentboth inclusive, levy of Section
8.1 has occurred and is continuing, the Bank or other similar action taken by or on behalf of any creditor the holder of the Borrower, any Affiliate, or any of their respective properties which could have a Material Adverse Effect.
(h) Any change in control of the Borrower, Madison Liquidity Investors 104, MACG from that disclosed in Section 2 of this Agreement.
9.2 The Lender Note may, at its option, terminate its obligation to make advances of the Loan, without by notice to the Borrower:, declare the principal of and the accrued interest on the Note to be forthwith due and payable and thereupon the Note, including both principal and interest and all other sums payable under this Agreement, shall be and become due and payable without further demand, presentment, protest or notice of any kind.
(a) upon the occurrence and continuance of SECTION 8.3 When any Event of Default set forth described in subsections 9.1
clauses (ah) through 9.1(h) above; or (bi) upon of Section 8.1 hereof has occurred and is continuing, then the occurrence entire principal balance of the Note and continuance all interest thereon and all other amounts payable under this Agreement shall immediately become due and payable without presentment, demand, protest or notice of any event which, with the giving of notice or the lapse of time, or both, would constitute an kind.
SECTION 8.4 When any Event of Default has occurred and is continuing, the Bank may, in addition to such other rights or remedies as it may have, then or at any time or times thereafter exercise with respect to the Collateral any and all of the rights, options and remedies of a secured party under the Uniform Commercial Code of Illinois (Cthe "UCC") upon including, without limitation, the death sale of all or disability any part of ▇▇▇▇▇ ▇the Collateral at any brokers' board or any public or private sale, provided that prior to such exercise the Bank shall release from the Collateral so much thereof as it would have been required to release under Section 3.5 hereof if no Event of Default had occurred. The net proceeds of any such sale, after deducting all costs and expenses incurred in the collection, protection, sale and delivery of the Collateral (which expenses Borrower hereby promises to pay) shall be applied first to the payment of any costs and expenses incurred by the Bank in selling or otherwise disposing of the Collateral, second, to the payment of the principal of and the interest on the Note, and, third, ratably as among any other items of the indebtedness hereby secured. Any surplus remaining after the full payment and satisfaction of the foregoing shall be returned to the Borrower or to whomsoever the Bank reasonably determines to be entitled thereto. Any requirement of said UCC as to reasonable notice shall be met by the Bank personally delivering or mailing notice (by certified or registered mail - return receipt requested) to the Borrower at its address as provided in Section 10.7 hereof at least ten (10) days prior to the event giving rise to the requirement of such notice. In connection with any offer, solicitation or sale of the Collateral, the Bank may restrict bidders and otherwise proceed in whatever manner it reasonably believes appropriate in order to comply or assure compliance with applicable legal requirements pertaining to the offer and sale of securities of the same type as the Collateral (the Borrower agreeing that such restrictions may include restrictions appropriate to assure that the offering and sale of the Collateral does not require registration under applicable state and federal laws and regulations and that Bank shall not be required to conduct a public offering of the Collateral) and to the change of control of corporations such as the Parent Company, and the Borrower acknowledges and agrees that the foregoing shall not affect the commercial reasonableness of any sale of the Collateral.
Appears in 1 contract
Sources: Esop Loan and Security Agreement (Aasche Transportation Services Inc)
Events of Default and Remedies. 9.1 7.1 The following events shall constitute an "Event Principal amount of Default" under this Agreementthe Loan outstanding, the occurrence of which shall entitle plus all interest, costs and all other money owing to the Lender to pursue any and all rights and remedies, legal and equitable, available to it under any Loan Document or otherwise. The Occurrence of an Event Default under this Agreement shall constitute a default under each and every other Loan Document. The Lender's rights and remedies are cumulative and may be exercised concurrently or successively from time to time. Any action immediately become payable upon demand by the Lender against Lender, unless otherwise waived in writing by the Lender, in any property or party shall not serve to release or discharge any other security, property or party in connection with this transaction. The Events of Default are as follows:the following events (each an “Event of Default”):
(a) Failure to pay if the principal Borrower shall default in any payment of Principal, interest or interest on the Borrower's present or future indebtedness to the Lender, whether or not arising pursuant to this Agreement, other amount when and as the same shall be due is required hereunder and payable, whether by acceleration or otherwise; provided that such default has not been cured prior to the expiration continued for a period of ten seven (107) days following the date upon which after notice in writing has been given by the Lender gives the Borrower written Notice of Default. In this Section 9, Notice of Default shall be deemed to have been given (i) on the date of personal delivery of such written notice to a Guarantor, or (ii) on the date on which a duly authorized representative of the Borrower acknowledges receipt of such written notice, or (iii) on the day after sending such written notice to the Borrower by a commonly recognized overnight courier service, specifying such as Federal Express, Purolator, UPS or the like, or (iv) on the third day after sending such written notice to the Borrower by facsimile (to both numbers set forth in Section 16.7) or by depositing the same in the United States mail, postage prepaid, for delivery to the Borrower.default;
(b) Failure to observe, perform and comply with any of the obligations evidenced or secured by a Loan Document, other than as provided in Sections 9.1(a) above; provided that such default has not been cured prior to the expiration of thirty (30) days following the date upon which the Lender gives if the Borrower written Notice of Default.
(c) Failure to duly and punctually pay, observe and discharge all Indebtedness and other obligations of the Borrower to any third party, unless the same is being contested in good faith by appropriate proceedings and the Borrower has set aside on its books adequate reserves with respect to such Indebtedness shall become insolvent or other obligations.
(d) The discovery by the Lender of any material inaccuracy in any statement, assurance, representation, covenant, warranty, term or condition by the Borrower contained in this Agreement or in any document delivered or to be delivered by or on behalf of the Borrower pursuant to this Agreement, which inaccuracy would result in shall make a Material Adverse Effect (except that inaccuracies in the Borrower's Due Diligence Documents attributable to the fault or neglect of third-parties shall not constitute a breach of this Section 9.1(d)), or in any other Loan Document, or in any other agreement between the Borrower and the Lender.
(e) The filing of a petition by or against the Borrower or any Affiliate seeking relief under the Federal Bankruptcy Code, 11 U.S.C. ss. 101, et seq., and any amendments thereto, or any similar law or regulation, whether federal, state or local, not dismissed within 30 days.
(f) The commencement of a proceeding by or against the Borrower or any Affiliate under any statute or other law providing for an general assignment for the benefit of its creditors, or if an order be made or an effective resolution be passed for the appointment winding-up, merger or amalgamation of the Borrower or if the Borrower shall be declared bankrupt or if a receivercustodian or receiver be appointed for the Borrower under the Bankruptcy and Insolvency Act (Canada), or if a compromise or arrangement is proposed by the Borrower to its creditors or any class of its creditors, or if a receiver or other officer with like powers shall be appointed for the Borrower; or
(c) if the Borrower defaults in observing or performing any other similar law covenant or regulation, whether federal, state agreement of this Agreement on its part to be observed or local, not dismissed within 30 daysperformed and such default has continued for a period of seven (7) days after notice in writing has been given by the Lender to the Borrower specifying such default.
(g) 7.2 The garnishmentremedies, attachmentrights and powers of the Lender under this Agreement and at law and in equity are cumulative and not alternative and are not in substitution for any other remedies, levy rights or other similar action taken by powers of the Lender and no delay or on behalf omission in exercise of any creditor such remedy, right or power will exhaust such remedies, rights or powers or be construed as a waiver of the Borrower, any Affiliate, or any of their respective properties which could have a Material Adverse Effectthem.
(h) Any change in control of the Borrower, Madison Liquidity Investors 104, MACG from that disclosed in Section 2 of this Agreement.
9.2 The Lender may, at its option, terminate its obligation to make advances of the Loan, without notice to the Borrower:
(a) upon the occurrence and continuance of any Event of Default set forth in subsections 9.1
(a) through 9.1(h) above; or (b) upon the occurrence and continuance of any event which, with the giving of notice or the lapse of time, or both, would constitute an Event of Default or (C) upon the death or disability of ▇▇▇▇▇ ▇.
Appears in 1 contract
Sources: Credit Facility Agreement (Niocorp Developments LTD)
Events of Default and Remedies. 9.1 The If any of the following events shall constitute an "Event of Default" under this Agreement, the occurrence of which shall entitle the Lender to pursue any occur and all rights and remedies, legal and equitable, available to it under any Loan Document or otherwise. The Occurrence of an Event Default under this Agreement shall constitute a default under each and every other Loan Document. The Lender's rights and remedies are cumulative and may be exercised concurrently or successively from time to time. Any action by the Lender against any property or party shall not serve to release or discharge any other security, property or party in connection with this transaction. The Events of Default are as followscontinuing:
(a) Failure The Borrowers shall fail to pay the any principal of or interest on the Borrower's present Note when due in accordance with the terms hereof; or future indebtedness the Borrowers shall fail to pay any other amount payable hereunder or under the LenderStock Pledge Agreement within three Business Days after any such other amount becomes due in accordance with the terms hereof or thereof; or
(b) Any representation or warranty made or deemed made by any Borrower in the Stock Pledge Agreement or which is contained in any certificate, whether document or not arising pursuant statement furnished by any Borrower under or in connection with this Note or the Stock Pledge Agreement shall prove, either individually or in the aggregate, to have been incorrect or misleading in any material respect on or as of the date made or deemed made; or
(c) Any Borrower shall default in the observance or performance of any covenant or other agreement contained in this Note or in the Stock Pledge Agreement (including, without limitation, the satisfaction of any post-closing condition set forth in Section 5 of this Note); or
(d) Any Borrower shall fail to pay any of the Secured Obligations (as defined in and set forth in the Stock Pledge Agreement, ) when and as the same shall be become due and payable, whether by acceleration or otherwise; provided that such default has not been cured prior to the expiration of ten or
(10e) days following the date upon which the Lender gives the Any Borrower written Notice of Default. In this Section 9, Notice of Default shall be deemed to have been given (i) default in any payment of principal of or interest on any indebtedness (other than the date loan that is the subject of personal delivery this Note) or in the payment of any guarantee obligation, aggregating $250,000 or more, beyond the period of grace (not to exceed 30 days), if any, provided in the instrument or agreement under which such written notice to a Guarantor, indebtedness or guarantee obligation was created; or (ii) default in the observance or performance of any other agreement or condition following any applicable grace periods relating to any indebtedness or guarantee obligation referred to in clause (i) immediately above or contained in any instrument or agreement evidencing, securing or relating thereto, or any other event shall occur or condition exist, the effect of which default or other event or condition is to cause, or to permit the holder or holders of any indebtedness referred to in clause (i) immediately above or beneficiary or beneficiaries of such guarantee obligation referred to in clause (i) immediately above (or a trustee or agent on behalf of such holder or holders or beneficiary or beneficiaries) to cause, with the date giving of notice, lapse of time or both, if required, such indebtedness to become due prior to its stated maturity or such guarantee obligation to become payable, provided, however, that if the default described in this clause (e) is cured, the Event of Default under this clause (e) shall simultaneously be cured; or
(f) One or more judgments or decrees shall be entered against any Borrower involving in the aggregate (for such Borrower or for all Borrowers combined) a liability (to the extent not paid or covered by insurance less any applicable and customary retention or deductible) of $250,000 or more, and all such judgments or decrees shall not have been vacated, discharged, stayed or bonded pending appeal within 30 days from the entry thereof; or
(i) The Stock Pledge Agreement shall cease, for any reason, to be in full force and effect (other than pursuant to the terms hereof or thereof), or any Borrower shall so assert in writing or (ii) the Lien created by the Stock Pledge Agreement on which a duly authorized representative any material portion of the Collateral shall cease to be enforceable and of the same effect and priority purported to be created thereby and, if such condition is correctable, such condition is not corrected within 30 days;
(i) Any Borrower acknowledges receipt shall commence any case, proceeding or other action (A) under any existing or future law of any jurisdiction, domestic or foreign, relating to bankruptcy, insolvency, reorganization or relief of debtors, seeking to have an order for relief entered with respect to it, or seeking to adjudicate it a bankrupt or insolvent, or seeking reorganization, arrangement, adjustment, winding-up, liquidation, dissolution, composition or other relief with respect to it or its debts, or (B) seeking appointment of a receiver, trustee, custodian, conservator or other similar official for it or for all or any substantial part of its assets, or any Borrower shall make a general assignment for the benefit of its creditors; or (ii) there shall be commenced against any Borrower any case, proceeding or other action of a nature referred to in clause (i) above which (A) results in the entry of an order for relief or any such written noticeadjudication or appointment or (B) remains undismissed, undischarged or unbonded for a period of 60 days; or (iii) there shall be commenced against any Borrower any case, proceeding or other action seeking issuance of a warrant of attachment, execution, distraint or similar process against all or any substantial part of its assets which results in the entry of an order for any such relief which shall not have been vacated, discharged, or stayed or bonded pending appeal within 60 days from the entry thereof; or
(iv) any Borrower shall take any action in furtherance of, or indicating its consent to, approval of, or acquiescence in, any of the acts set forth in clause (i), (ii), or (iii) on above; or
(v) any Borrower shall generally not, or shall be unable to, or shall admit in writing its inability to, pay its debts as they become due; then, and in any such event the day after sending such written notice to the Borrower by a commonly recognized overnight courier serviceprincipal of, such as Federal Expressand all accrued interest on, Purolatorthis Note, UPS and all other amounts owing under this Note or the like, or (iv) on the third day after sending such written notice to the Borrower by facsimile (to both numbers set forth in Section 16.7) or by depositing the same in the United States mail, postage prepaid, for delivery to the Borrower.
(b) Failure to observe, perform and comply with any of the obligations evidenced or secured by a Loan Document, other than as provided in Sections 9.1(a) above; provided that such default has not been cured prior to the expiration of thirty (30) days following the date upon which the Lender gives the Borrower written Notice of Default.
(c) Failure to duly and punctually pay, observe and discharge all Indebtedness and other obligations of the Borrower to any third party, unless the same is being contested in good faith by appropriate proceedings and the Borrower has set aside on its books adequate reserves with respect to such Indebtedness or other obligations.
(d) The discovery by the Lender of any material inaccuracy in any statement, assurance, representation, covenant, warranty, term or condition by the Borrower contained in this Agreement or in any document delivered or to be delivered by or on behalf of the Borrower pursuant to this Stock Pledge Agreement, which inaccuracy would result in a Material Adverse Effect (except that inaccuracies in the Borrower's Due Diligence Documents attributable to the fault or neglect shall immediately become due and payable upon written demand of third-parties shall not constitute a breach of this Section 9.1(d)), or in any other Loan Document, or in any other agreement between the Borrower and the Lender.
(e) The filing of a petition by or against the Borrower or any Affiliate seeking relief under the Federal Bankruptcy Code, 11 U.S.C. ss. 101, et seq., and any amendments thereto, or any similar law or regulation, whether federal, state or local, not dismissed within 30 days.
(f) The commencement of a proceeding by or against the Borrower or any Affiliate under any statute or other law providing for an assignment for the benefit of creditors, the appointment of a receiver, or any other similar law or regulation, whether federal, state or local, not dismissed within 30 days.
(g) The garnishment, attachment, levy or other similar action taken by or on behalf of any creditor of the Borrower, any Affiliate, or any of their respective properties which could have a Material Adverse Effect.
(h) Any change in control of the Borrower, Madison Liquidity Investors 104, MACG from that disclosed in Section 2 of this Agreement.
9.2 The Lender may, at its option, terminate its obligation to make advances of the Loan, without notice to the Borrower:
(a) upon the occurrence and continuance of any Event of Default set forth in subsections 9.1
(a) through 9.1(h) above; or (b) upon the occurrence and continuance of any event which, with the giving of notice or the lapse of time, or both, would constitute an Event of Default or (C) upon the death or disability of ▇▇▇▇▇ ▇.
Appears in 1 contract
Events of Default and Remedies. 9.1 7.1 The following events shall constitute an "Event Principal amount of Default" under this Agreementthe Loan outstanding, the occurrence of which shall entitle plus all interest, costs and all other money owing to the Lender to pursue any and all rights and remedies, legal and equitable, available to it under any Loan Document or otherwise. The Occurrence of an Event Default under this Agreement shall constitute a default under each and every other Loan Document. The Lender's rights and remedies are cumulative and may be exercised concurrently or successively from time to time. Any action immediately become payable upon demand by the Lender against Lender, unless otherwise waived in writing by the Lender, in any property or party shall not serve to release or discharge any other security, property or party in connection with this transaction. The Events of Default are as follows:the following events (each an “Event of Default”):
(a) Failure to pay if the principal Borrower shall default in any payment of Principal, interest or interest on the Borrower's present or future indebtedness to the Lender, whether or not arising pursuant to this Agreement, other amount when and as the same shall be due is required hereunder and payable, whether by acceleration or otherwise; provided that such default has not been cured prior to the expiration continued for a period of ten seven (107) days following the date upon which after notice in writing has been given by the Lender gives the Borrower written Notice of Default. In this Section 9, Notice of Default shall be deemed to have been given (i) on the date of personal delivery of such written notice to a Guarantor, or (ii) on the date on which a duly authorized representative of the Borrower acknowledges receipt of such written notice, or (iii) on the day after sending such written notice to the Borrower by a commonly recognized overnight courier service, specifying such as Federal Express, Purolator, UPS or the like, or (iv) on the third day after sending such written notice to the Borrower by facsimile (to both numbers set forth in Section 16.7) or by depositing the same in the United States mail, postage prepaid, for delivery to the Borrower.default;
(b) Failure to observe, perform and comply with any of the obligations evidenced or secured by a Loan Document, other than as provided in Sections 9.1(a) above; provided that such default has not been cured prior to the expiration of thirty (30) days following the date upon which the Lender gives if the Borrower written Notice of Default.
(c) Failure to duly and punctually pay, observe and discharge all Indebtedness and other obligations of the Borrower to any third party, unless the same is being contested in good faith by appropriate proceedings and the Borrower has set aside on its books adequate reserves with respect to such Indebtedness shall become insolvent or other obligations.
(d) The discovery by the Lender of any material inaccuracy in any statement, assurance, representation, covenant, warranty, term or condition by the Borrower contained in this Agreement or in any document delivered or to be delivered by or on behalf of the Borrower pursuant to this Agreement, which inaccuracy would result in shall make a Material Adverse Effect (except that inaccuracies in the Borrower's Due Diligence Documents attributable to the fault or neglect of third-parties shall not constitute a breach of this Section 9.1(d)), or in any other Loan Document, or in any other agreement between the Borrower and the Lender.
(e) The filing of a petition by or against the Borrower or any Affiliate seeking relief under the Federal Bankruptcy Code, 11 U.S.C. ss. 101, et seq., and any amendments thereto, or any similar law or regulation, whether federal, state or local, not dismissed within 30 days.
(f) The commencement of a proceeding by or against the Borrower or any Affiliate under any statute or other law providing for an general assignment for the benefit of its creditors, or if an order be made or an effective resolution be passed for the appointment winding-up, merger or amalgamation of the Borrower or if the Borrower shall be declared bankrupt or if a receivercustodian or receiver be appointed for the Borrower under the Bankruptcy and Insolvency Act (Canada), or if a compromise or arrangement is proposed by the Borrower to its creditors or any class of its creditors, or if a receiver or other officer with like powers shall be appointed for the Borrower; or
(c) if the Borrower defaults in observing or performing any other similar law covenant or regulation, whether federal, state agreement of this Agreement on its part to be observed or local, not dismissed within 30 daysperformed and such default has continued for a period of seven (7) days after notice in writing has been given by the Lender to the Borrower specifying such default.
(g) 7.2 The garnishmentremedies, attachmentrights and powers of the Lender under this Agreement, levy any Drawdown Note and at law and in equity are cumulative and not alternative and are not in substitution for any other remedies, rights or other similar action taken by powers of the Lender and no delay or on behalf omission in exercise of any creditor such remedy, right or power will exhaust such remedies, rights or powers or be construed as a waiver of the Borrower, any Affiliate, or any of their respective properties which could have a Material Adverse Effectthem.
(h) Any change in control of the Borrower, Madison Liquidity Investors 104, MACG from that disclosed in Section 2 of this Agreement.
9.2 The Lender may, at its option, terminate its obligation to make advances of the Loan, without notice to the Borrower:
(a) upon the occurrence and continuance of any Event of Default set forth in subsections 9.1
(a) through 9.1(h) above; or (b) upon the occurrence and continuance of any event which, with the giving of notice or the lapse of time, or both, would constitute an Event of Default or (C) upon the death or disability of ▇▇▇▇▇ ▇.
Appears in 1 contract
Events of Default and Remedies. 9.1 The following events Securities shall constitute have the Events of Default as set forth in Section 5.01 of the Indenture. Subject to certain limitations in the Indenture, if an "Event of Default occurs and is continuing, the Trustee by notice to the Company or the Holders of at least 25% in aggregate principal amount of the Outstanding Securities by notice to the Company and the Trustee may declare all amounts payable on the Securities (including any Additional Payments) to be due and payable immediately; provided that, if the Property Trustee is the sole Holder of the Securities and if upon an Event of Default" under this Agreement, the occurrence Trustee or the Holders of which shall entitle not less than 25% in aggregate principal amount of the Lender then Outstanding Securities fail to pursue any and all rights and remedies, legal and equitable, available to it under any Loan Document or otherwise. The Occurrence of an Event Default under this Agreement shall constitute a default under each and every other Loan Document. The Lender's rights and remedies are cumulative and may be exercised concurrently or successively from time to time. Any action by the Lender against any property or party shall not serve to release or discharge any other security, property or party in connection with this transaction. The Events of Default are as follows:
(a) Failure to pay declare the principal or interest on of all the Borrower's present or future indebtedness Securities to the Lender, whether or not arising pursuant to this Agreement, when and as the same shall be immediately due and payable, whether the Holders of at least 25% in aggregate liquidation amount of Preferred Securities then outstanding shall have such right by acceleration or otherwise; provided that such default has not been cured prior a notice in writing to the expiration Company and the Trustee, and upon any such declaration such principal and all accrued interest (and Additional Payments, if any) shall become immediately due and payable; and provided further that any such declaration will not be effective until the earlier to occur of ten (10) days following the date upon which the Lender gives the Borrower written Notice of Default. In this Section 9, Notice of Default shall be deemed to have been given (i) on ten business days after receipt by the date Company and the administrative agent under the Senior Credit Agreement of personal delivery written notice of such written notice to a Guarantor, or declaration and (ii) on acceleration of obligations under the date on which Senior Credit Agreement. The Holders of a duly authorized representative majority in aggregate principal amount of the Borrower acknowledges receipt of Outstanding Securities may annul such written notice, or (iii) on declaration and waive the day after sending such default by written notice to the Borrower Property Trustee, the Company and the Trustee if the default (other than the nonpayment of the principal of these Securities which has become due solely by such acceleration) has been cured and a commonly recognized overnight courier servicesum sufficient to pay all matured installments of interest (and Additional Payments, if any) and principal due otherwise than by acceleration has been deposited with the Trustee. Should the Holders of the Securities of such as Federal Expressa series fail to annul such declaration and waive such default, Purolator, UPS the Holders of a majority in aggregate liquidation amount of the Preferred Securities shall have such right. Upon the effectiveness of any such declaration such principal amount (or specified amount) of and the like, or accrued interest (ivincluding any Additional Payments) on all the third day after sending Securities of such series shall then become immediately due and payable; and provided further that the payment of principal and interest on such Securities shall remain subordinated to the extent provided in the Indenture. In the case of an Event of Default, the Holders of a majority in principal amount of the Securities then Outstanding by written notice to the Borrower by facsimile (to both numbers set forth in Section 16.7) or by depositing Trustee may rescind an acceleration and its consequences if the same in the United States mail, postage prepaid, for delivery to the Borrower.
(b) Failure to observe, perform and comply rescission would not conflict with any judgment or decree and if all existing Events of Default have been cured or waived except nonpayment of principal or interest that has become due solely because of the obligations evidenced acceleration. Holders may not enforce the Indenture or secured by a Loan Document, other than the Securities except as provided in Sections 9.1(a) above; provided that such default has not been cured prior the Indenture. Subject to certain limitations, Holders of a majority in principal amount of the Outstanding Securities issued under the Indenture may direct the Trustee in its exercise of any trust or power. The Company must furnish annually compliance certificates to the expiration Trustee. The above description of thirty (30) days following Events of Default and remedies is qualified by reference to, and subject in its entirety by, the date upon which the Lender gives the Borrower written Notice of Default.
(c) Failure to duly and punctually pay, observe and discharge all Indebtedness and other obligations of the Borrower to any third party, unless the same is being contested in good faith by appropriate proceedings and the Borrower has set aside on its books adequate reserves with respect to such Indebtedness or other obligations.
(d) The discovery by the Lender of any material inaccuracy in any statement, assurance, representation, covenant, warranty, term or condition by the Borrower more complete description thereof contained in this Agreement or in any document delivered or to be delivered by or on behalf of the Borrower pursuant to this Agreement, which inaccuracy would result in a Material Adverse Effect (except that inaccuracies in the Borrower's Due Diligence Documents attributable to the fault or neglect of third-parties shall not constitute a breach of this Section 9.1(d)), or in any other Loan Document, or in any other agreement between the Borrower and the LenderIndenture.
(e) The filing of a petition by or against the Borrower or any Affiliate seeking relief under the Federal Bankruptcy Code, 11 U.S.C. ss. 101, et seq., and any amendments thereto, or any similar law or regulation, whether federal, state or local, not dismissed within 30 days.
(f) The commencement of a proceeding by or against the Borrower or any Affiliate under any statute or other law providing for an assignment for the benefit of creditors, the appointment of a receiver, or any other similar law or regulation, whether federal, state or local, not dismissed within 30 days.
(g) The garnishment, attachment, levy or other similar action taken by or on behalf of any creditor of the Borrower, any Affiliate, or any of their respective properties which could have a Material Adverse Effect.
(h) Any change in control of the Borrower, Madison Liquidity Investors 104, MACG from that disclosed in Section 2 of this Agreement.
9.2 The Lender may, at its option, terminate its obligation to make advances of the Loan, without notice to the Borrower:
(a) upon the occurrence and continuance of any Event of Default set forth in subsections 9.1
(a) through 9.1(h) above; or (b) upon the occurrence and continuance of any event which, with the giving of notice or the lapse of time, or both, would constitute an Event of Default or (C) upon the death or disability of ▇▇▇▇▇ ▇.
Appears in 1 contract
Sources: Indenture (Budget Group Inc)
Events of Default and Remedies. 9.1 The Section 8.1. Any one or more of the following events shall constitute an "Event of Default" under this Agreement, the occurrence of which shall entitle the Lender to pursue any and all rights and remedies, legal and equitable, available to it under any Loan Document or otherwise. The Occurrence of an Event Default under this Agreement shall constitute a default under each and every other Loan Document. The Lender's rights and remedies are cumulative and may be exercised concurrently or successively from time to time. Any action by the Lender against any property or party shall not serve to release or discharge any other security, property or party in connection with this transaction. The Events of Default are as followshereunder:
(a) Failure to pay default in the payment of any part of the principal of any Note when due, whether at the stated maturity thereof or at any other time provided for in this Agreement;
(b) default in the payment of any part of the interest on the Borrower's present or future indebtedness to the Lenderany Note when due, whether at the stated maturity thereof or not arising pursuant to at any time provided for in this Agreement, or default in the payment when and as due of any fee, commission, charge or other amount payable by any Borrower hereunder;
(c) default in the same shall be due and payableobservance or performance of any covenant set forth in Sections 7.6 through 7.23 hereof or of any covenant in any Collateral Document dealing with the use, whether by acceleration disposition or otherwise; provided that such default has not been cured prior to the expiration of ten (10) days following the date upon which the Lender gives the Borrower written Notice of Default. In this Section 9, Notice of Default shall be deemed to have been given (i) on the date of personal delivery of such written notice to a Guarantor, or (ii) on the date on which a duly authorized representative remittance of the Borrower acknowledges receipt proceeds of such written notice, Collateral or (iii) on the day maintenance of insurance thereon or default after sending such written notice to the Borrower by a commonly recognized overnight courier service, such as Federal Express, Purolator, UPS Borrowers in the observance or the like, or (iv) on the third day after sending such written notice to the Borrower by facsimile (to both numbers performance of any covenant set forth in Section 16.7) or by depositing the same in the United States mail, postage prepaid, for delivery to the Borrower.
(b) Failure to observe, perform and comply with any of the obligations evidenced or secured by a Loan Document, other than as provided in Sections 9.1(a) above; provided that such default has not been cured prior to the expiration of thirty (30) days following the date upon which the Lender gives the Borrower written Notice of Default.
(c) Failure to duly and punctually pay, observe and discharge all Indebtedness and other obligations of the Borrower to any third party, unless the same is being contested in good faith by appropriate proceedings and the Borrower has set aside on its books adequate reserves with respect to such Indebtedness or other obligations.7.5 hereof;
(d) The discovery default in the observance or performance of any other provision hereof or of any of the Collateral Documents which is not remedied within 20 days after notice thereof to the Borrowers by the Lender of Agent or any material inaccuracy in any statement, assurance, representation, covenant, warranty, term or condition by the Borrower contained in this Agreement or in any document delivered or to be delivered by or on behalf of the Borrower pursuant to this Agreement, which inaccuracy would result in a Material Adverse Effect (except that inaccuracies in the Borrower's Due Diligence Documents attributable to the fault or neglect of third-parties shall not constitute a breach of this Section 9.1(d)), or in any other Loan Document, or in any other agreement between the Borrower and the Lender.;
(e) The filing default shall occur in the payment when due (subject to any applicable grace period) of any indebtedness for money borrowed (including as such all indebtedness so treated for purposes of Section 7.11 hereof) aggregating greater than $100,000 which was incurred, assumed or guaranteed by a petition by or against the Borrower or any Affiliate seeking relief Subsidiary, or default or the happening of any event shall occur under any indenture, agreement or other instrument under which any such indebtedness was incurred, assumed or guaranteed if the Federal Bankruptcy Codeeffect of such default or event is to accelerate, 11 U.S.C. ss. 101or permit the acceleration of, et seq.the maturity of such indebtedness and such default continues uncured, unremedied and unwaived beyond any amendments theretoapplicable period of grace;
(f) any representation or warranty made herein or in any of the Collateral Documents or pursuant hereto or thereto or in connection with any transaction contemplated hereby or thereby proves untrue in any material respect as of the date of or making thereof;
(g) any judgment or judgments, writ or writs or warrant or warrants of attachment, or any similar process or processes in an aggregate amount in excess of $100,000 and which is not fully covered by insurance shall be entered or filed against any Borrower or any Subsidiary or against any of the property or assets of either and remains undischarged, unvacated, unbonded or unstayed for a period of 30 days;
(h) Badger shall at any time and for any reason cease to own, both legally and beneficially, 100% of the issued and outstanding Voting Stock of PlasTechs;
(i) an event occurs or condition exists which is specified as an event of default in any of the Collateral Documents;
(j) any party obligated on any guarantee of any Obligations shall purport to disavow, revoke, repudiate or terminate such guarantee;
(k) bankruptcy, reorganization, arrangement, insolvency or liquidation proceedings or other proceedings for relief under any bankruptcy law or regulation, whether federal, state similar law for the relief of debtors are instituted against any Borrower or local, any Subsidiary and are not dismissed within 30 days.
(f) The commencement 60 days after such institution or a decree or order of a proceeding by court having jurisdiction in the premises for the appointment of a trustee, custodian or against the receiver for any Borrower or any Affiliate Subsidiary or for the major part of its property is entered and the trustee, custodian or receiver appointed pursuant to such decree or order is not discharged within 60 days after such appointment; or
(l) any Borrower or any Subsidiary shall institute bankruptcy, reorganization, arrangement, insolvency or liquidation proceedings or other proceedings for relief under any statute bankruptcy law or other laws for the relief of debtors or shall consent to the institution of such proceedings against it by others or to the entry of any decree or order adjudging it bankrupt or insolvent or approving as filed any petition seeking reorganization under any bankruptcy or similar law providing or shall apply for or shall consent to the appointment of a receiver, custodian or trustee for it or for the major part of its property or shall make an assignment for the benefit of creditorscreditors or shall take any corporate action authorizing any of the foregoing.
Section 8.2. When any Event of Default described in subsections 8.1
(a) to 8.1(j), both inclusive, has occurred and is continuing, the appointment of a receiverAgent shall, or any other similar law or regulation, whether federal, state or local, not dismissed within 30 days.
(g) The garnishment, attachment, levy or other similar action taken by or on behalf of any creditor upon request of the BorrowerLenders, any Affiliate, or any of their respective properties which could have a Material Adverse Effect.
(h) Any change in control of the Borrower, Madison Liquidity Investors 104, MACG from that disclosed in Section 2 of this Agreement.
9.2 The Lender may, at its option, terminate its obligation to make advances of the Loan, without by notice to the BorrowerBorrowers, take any or all of the following actions:
(a) upon terminate the occurrence obligation of the Lenders to extend any further credit hereunder on the date (which may be the date thereof) stated in such notice; and
(b) declare the principal of and continuance the accrued interest on the Notes to be forthwith due and payable and thereupon the Notes, including both principal and interest, and all fees, charges, commissions and other Obligations payable hereunder, shall be and become immediately due and payable without further demand, presentment, protest or notice of any kind.
Section 8.3. When any Event of Default set forth described in subsections 9.1
(asubsection 8.1(k) through 9.1(h) above; or (b) upon the occurrence and continuance of any event which, with the giving of notice or the lapse of time, or both, would constitute an Event of Default or (C) upon the death or disability of ▇▇▇▇▇ ▇.8.1
Appears in 1 contract
Events of Default and Remedies. 9.1 The following events shall constitute ▇▇▇▇ ▇he happening of any Event of Default under the Note (an "Event of Default" under this Agreement"), the occurrence of which shall entitle the Lender to pursue any and all rights and remedies, legal and equitable, available to it under any Loan Document or otherwise. The Occurrence of an as long as such Event Default under this Agreement shall constitute a default under each and every other Loan Document. The Lender's rights and remedies are cumulative and may be exercised concurrently or successively from time to time. Any action by the Lender against any property or party shall not serve to release or discharge any other security, property or party in connection with this transaction. The Events of Default are as follows:
(a) Failure to pay the principal or interest on the Borrower's present or future indebtedness to the Lendercontinues, whether or not arising pursuant to this Agreement, when and as the same shall be due and payable, whether by acceleration or otherwise; provided that such default has not been cured prior to the expiration of ten (10) days following the date upon which the Lender gives the Borrower written Notice of Default. In this Section 9, Notice of Default shall be deemed to have been given (i) on the date of personal delivery of such written notice to a Guarantor, or (ii) on the date on which a duly authorized representative of the Borrower acknowledges receipt of such written notice, or (iii) on the day after sending such written notice to the Borrower by a commonly recognized overnight courier service, such as Federal Express, Purolator, UPS or the like, or (iv) on the third day after sending such written notice to the Borrower by facsimile (to both numbers set forth in Section 16.7) or by depositing the same in the United States mail, postage prepaid, for delivery to the Borrower.
(b) Failure to observe, perform and comply with any of the obligations evidenced or secured by a Loan Document, other than as provided in Sections 9.1(a) above; provided that such default has not been cured prior to the expiration of thirty (30) days following the date upon which the Lender gives the Borrower written Notice of Default.
(c) Failure to duly and punctually pay, observe and discharge all Indebtedness and other obligations of the Borrower to any third party, unless the same is being contested in good faith by appropriate proceedings and the Borrower has set aside on its books adequate reserves with respect to such Indebtedness or other obligations.
(d) The discovery by the Lender of any material inaccuracy in any statement, assurance, representation, covenant, warranty, term or condition by the Borrower contained in this Agreement or in any document delivered or to be delivered by or on behalf of the Borrower pursuant to this Agreement, which inaccuracy would result in a Material Adverse Effect (except that inaccuracies in the Borrower's Due Diligence Documents attributable to the fault or neglect of third-parties shall not constitute a breach of this Section 9.1(d)), or in any other Loan Document, or in any other agreement between the Borrower and the Lender.
(e) The filing of a petition by or against the Borrower or any Affiliate seeking relief under the Federal Bankruptcy Code, 11 U.S.C. ss. 101, et seq., and any amendments thereto, or any similar law or regulation, whether federal, state or local, not dismissed within 30 days.
(f) The commencement of a proceeding by or against the Borrower or any Affiliate under any statute or other law providing for an assignment for the benefit of creditors, the appointment of a receiver, or any other similar law or regulation, whether federal, state or local, not dismissed within 30 days.
(g) The garnishment, attachment, levy or other similar action taken by or on behalf of any creditor of the Borrower, any Affiliate, or any of their respective properties which could have a Material Adverse Effect.
(h) Any change in control of the Borrower, Madison Liquidity Investors 104, MACG from that disclosed in Section 2 of this Agreement.
9.2 The Lender Creditor may, at its option, terminate its obligation to make advances without notice or demand declare all of the LoanObligations to be immediately due and payable, without notice and Creditor shall then have the right to the Borrower:
(a) upon the occurrence and continuance take immediate possession of any Event Collateral not already in its possession, and for that purpose Creditor may, so far as Martin can give authority therefor, enter upon any premises on which ▇▇▇ ▇ollateral, or any part thereof, may be situated and remove the same therefrom. Martin will make the Collateral available to Creditor at a place and ▇▇▇▇ designated by Creditor which is reasonably convenient to both parties. Except for Collateral which is of Default set forth a type customarily sold on a recognized market, Creditor will give Martin at least ten days' prior written notice of the time and place ▇▇ ▇▇y public sale of the Collateral or of the time after which any private sale thereof is to be made. The Creditor shall also have in subsections 9.1
(a) through 9.1(h) above; or (b) upon any jurisdiction where enforcement hereof is sought, in addition to all other rights and remedies, the occurrence rights and continuance remedies of a secured party under the Uniform Commercial Code of Massachusetts. From the proceeds of any event whichsale or collection, Creditor shall be entitled to retain (i) all sums secured hereby, (ii) its reasonable expenses of retaking, holding, preparing for sale and selling, and (iii) reasonable legal expenses, attorneys' fees and all other costs incurred by it in connection with the giving interpretation, administration and enforcement of notice this Agreement or the lapse any Collateral or with such sale or other disposition or any collection. The residue, if any, of timeany proceeds of collection or sale shall be paid to Martin; Martin, or bothhowever, would constitute an Event of Default or (C) upon the death or disability of shall remain liable for any deficiency. No ▇▇▇▇▇▇ b▇ ▇▇▇▇itor of any default shall be effective unless in writing nor operate as a waiver of any other default or of the same default on another occasion.
Appears in 1 contract
Events of Default and Remedies. 9.1 The following events shall constitute an "Subject to the limitations set forth in the provisions of (b) - (d) of this Paragraph 14, in the event (“Event of Default" under this Agreement, the occurrence ”) of which shall entitle the Lender to pursue any and all rights and remedies, legal and equitable, available to it under any Loan Document or otherwise. The Occurrence of an Event Default under this Agreement shall constitute a default under each and every other Loan Document. The Lender's rights and remedies are cumulative and may be exercised concurrently or successively from time to time. Any action by the Lender against any property or party shall not serve to release or discharge any other security, property or party in connection with this transaction. The Events of Default are as follows:
(a) Failure to pay the principal or interest on the Borrower's present or future indebtedness to the Lender, whether or not arising pursuant to this Agreement, when and as the same shall be due and payable, whether by acceleration or otherwise; provided that such default has not been cured prior to the expiration of ten (10) days following the date upon which the Lender gives the Borrower written Notice of Default. In this Section 9, Notice of Default shall be deemed to have been given (i) on the date failure of personal delivery either Party to make when due, any payment required hereunder if such failure is not remedied within five working days after notice of such written notice failure is given to a Guarantorthe defaulting Party by the other Party, or (ii) on the date on which a duly authorized representative failure of either party to comply with any or all of its other respective obligations in good faith as herein set forth and such non-compliance is not cured within five days after notice thereof to the Borrower acknowledges receipt of such written noticedefaulting party, or (iii) on the day either Party (a) filing a petition in bankruptcy and such petition is not withdrawn or dismissed for 30 days after sending such written notice filing; (b) having such a petition filed against it, and such petition is not withdrawn or dismissed within thirty (30) days after such filing; (c) becoming otherwise insolvent or unable to the Borrower by a commonly recognized overnight courier service, such pay its debts as Federal Express, Purolator, UPS or the likethey become due, or (iv) on the third day after sending failure of a Party’s guarantor (such written Party being deemed to be the defaulting party) to perform any covenant set forth in its guaranty, or such guaranty shall expire or be terminated or shall cease to guarantee the obligations of such Party hereunder, or such guarantor shall become subject to any of the events specified in (iii) (a), (b) or (c) above, the non-defaulting party may, for so long as such Event of Default is continuing, (A) establish by notice to the Borrower by facsimile defaulting party a date on which this Agreement shall terminate early (to both numbers set forth the “Early Termination Date”), and the non-defaulting party shall calculate, using the formula described in Section 16.7) or by depositing the same in the United States mail, postage prepaid, for delivery to the Borrower.
14 (b) Failure to observe, perform and comply with any of the obligations evidenced or secured by a Loan Document, other than as provided in Sections 9.1(a) above; provided that such default has not been cured prior to the expiration of thirty (30) days following the date upon which the Lender gives the Borrower written Notice of Default.
(c) Failure below, as applicable, and otherwise in a commercially reasonable manner, its damages, including any associated costs, resulting from the early termination of this Agreement. Such damages and costs, if any, shall be paid by the defaulting party to duly and punctually pay, observe and discharge all Indebtedness and other obligations the nondefaulting party within five working days of the Borrower to any third defaulting party’s receipt of Notice of the damages amount, unless the same is being contested in good faith by appropriate proceedings and the Borrower has set aside on and/or (B) suspend performance of its books adequate reserves with respect to such Indebtedness or other obligations.
(d) The discovery by the Lender of any material inaccuracy in any statement, assurance, representation, covenant, warranty, term or condition by the Borrower contained in obligations under this Agreement or in any document delivered or to be delivered by or on behalf until such Event of Default is cured. The failure of the Borrower pursuant Parties to this Agreement, which inaccuracy would result in agree on a Material Adverse Effect (except that inaccuracies in the Borrower's Due Diligence Documents attributable to the fault or neglect of third-parties price adjustment shall not constitute a breach of this Section 9.1(d)), grounds for rescission or in any other Loan Document, or in any other agreement between the Borrower and the Lender.
(e) The filing of a petition by or against the Borrower or any Affiliate seeking relief under the Federal Bankruptcy Code, 11 U.S.C. ss. 101, et seq., and any amendments thereto, or any similar law or regulation, whether federal, state or local, not dismissed within 30 days.
(f) The commencement of a proceeding by or against the Borrower or any Affiliate under any statute or other law providing for an assignment for the benefit of creditors, the appointment of a receiver, or any other similar law or regulation, whether federal, state or local, not dismissed within 30 days.
(g) The garnishment, attachment, levy or other similar action taken by or on behalf of any creditor of the Borrower, any Affiliate, or any of their respective properties which could have a Material Adverse Effect.
(h) Any change in control of the Borrower, Madison Liquidity Investors 104, MACG from that disclosed in Section 2 termination of this Agreement.
9.2 The Lender may, at its option, terminate its obligation to make advances of the Loan, without notice to the Borrower:
(a) upon the occurrence and continuance of any Event of Default set forth in subsections 9.1
(a) through 9.1(h) above; or (b) upon the occurrence and continuance of any event which, with the giving of notice or the lapse of time, or both, would constitute an Event of Default or (C) upon the death or disability of ▇▇▇▇▇ ▇.
Appears in 1 contract
Sources: Coal Purchase and Sale Agreement
Events of Default and Remedies. 9.1 The SECTION 9.1. Any one or more of the following events shall constitute an "Event of DefaultEVENT OF DEFAULT" under this Agreement, the occurrence of which shall entitle the Lender to pursue any and all rights and remedies, legal and equitable, available to it under any Loan Document or otherwise. The Occurrence of an Event Default under this Agreement shall constitute a default under each and every other Loan Document. The Lender's rights and remedies are cumulative and may be exercised concurrently or successively from time to time. Any action by the Lender against any property or party shall not serve to release or discharge any other security, property or party in connection with this transaction. The Events of Default are as followshereunder:
(a) Failure to pay default in the payment of any installment of the principal of or interest on any Note or Application when due, whether at the Borrower's present stated maturity thereof or future indebtedness at any other time provided for in this Agreement and the continuance of such default for two Business Days after notice thereof to the LenderCompany from the Agent or any Bank, whether or default in the payment when due of any fee, charge or other amount payable by the Company hereunder or under any other Loan Document and the continuance of such default for five Business Days after notice thereof to the Company from the Agent or any Bank;
(b) default in the observance or performance of any covenant set forth in Sections 8.13, 8.14, 8.15 or 8.16 hereof or of any Collateral Document dealing with the use, disposition or remittance of the proceeds of Collateral or the maintenance of insurance thereon;
(c) default in the observance or performance of any other provision hereof or any of the other Loan Documents which is not arising pursuant remedied within 30 days after written notice thereof to this Agreement, the Company by any Bank or by the holder of any Note;
(d) default shall occur in the payment when and as the same shall be due and payable, (whether by lapse of time, acceleration or otherwise; ) of any indebtedness (including as such all obligations included in Consolidated Total Indebtedness as such term is defined herein) aggregating in excess of $10,000,000 issued, assumed or guaranteed by the Company or any Subsidiary or any other event of default shall occur with respect to any such indebtedness beyond any period of grace provided that therefor if the effect thereof is to permit the maturity of such default indebtedness to be accelerated or to permit the holders thereof to elect a majority of the Board of Directors of the Company;
(e) any representation or warranty made herein or in any of the other Loan Documents or in any statement or certificate furnished pursuant hereto or thereto, or in connection with any advance or issuance made hereunder or by any person in connection with the transactions contemplated hereby, proves untrue in any material respect as of the date of the issuance or making thereof, and shall not be made good within 30 days after notice thereof to the Company by any Bank or by the holder of any Note;
(f) any judgment or judgments, writ or writs or warrant or warrants or attachment, or any similar process or processes in an aggregate amount in excess of $2,000,000 more than the amount, if any, covered by insurance (as to which the insurer has not been cured prior disclaimed or disputed in writing its obligations for coverage or otherwise failed to pay when due) shall be entered or filed against the Company or any Subsidiary or against any of the property or assets of any of them and remains undischarged, unvacated, unbonded or unstayed for a period of 30 days;
(g) any event occurs or condition exists which is specified as an event of default under any of the other Loan Documents after the expiration of ten any applicable notice or grace periods;
(10h) days following any of the date upon which Loan Documents shall for any reason not be or shall cease to be in full force and effect, or any of the Lender gives Loan Documents is declared to be null and void, or the Borrower written Notice Company or any Material Subsidiary takes any action for the purpose of Default. In this Section 9repudiating or rescinding any Loan Document executed by it or the obligations of such Person thereunder;
(i) 50% or more of the issued and outstanding Voting Stock of the Company is owned or controlled, Notice either legally or beneficially, by any Person or by any group of Default Persons affiliated with each other or acting in concert (Persons shall not be deemed to have been given acted in concert merely as a result of voting the same way or taking the same position if the decision to vote or to take a position were made independently and without prior consultation) other than ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇ and/or his wife and/or his descendants and/or trusts or estates for the benefit of his wife and/or descendants;
(ij) on the date Company or any Material Subsidiary or any Material Foreign Subsidiary becomes insolvent or bankrupt or bankruptcy, reorganization, arrangement, insolvency or liquidation proceedings or other proceedings for relief under any bankruptcy law or laws for the relief of personal delivery debtors are instituted against the Company or any Material Subsidiary or any Material Foreign Subsidiary and are not dismissed within 60 days after such institution or a decree or order of a court having jurisdiction in the premises for the appointment of a trustee or receiver or custodian for the Company or any Material Subsidiary or any Material Foreign Subsidiary or for the major part of any of their property is entered and the trustee or receiver or custodian appointed pursuant to such decree or order is not discharged within 60 days after such appointment; or
(k) the Company or any Material Subsidiary or any Material Foreign Subsidiary shall institute bankruptcy, reorganization, arrangement, insolvency or liquidation proceedings or other proceedings for relief under any bankruptcy law or laws for the relief of debtors or shall consent to the institution of such written notice to a Guarantor, proceedings against it by others or (ii) on the date on which a duly authorized representative of the Borrower acknowledges receipt of such written notice, or (iii) on the day after sending such written notice to the Borrower by a commonly recognized overnight courier service, such as Federal Express, Purolator, UPS or the like, or (iv) on the third day after sending such written notice to the Borrower by facsimile (to both numbers set forth in Section 16.7) or by depositing the same in the United States mail, postage prepaid, for delivery to the Borrower.
(b) Failure to observe, perform and comply with any of the obligations evidenced or secured by a Loan Document, other than as provided in Sections 9.1(a) above; provided that such default has not been cured prior to the expiration of thirty (30) days following the date upon which the Lender gives the Borrower written Notice of Default.
(c) Failure to duly and punctually pay, observe and discharge all Indebtedness and other obligations of the Borrower to any third party, unless the same is being contested in good faith by appropriate proceedings and the Borrower has set aside on its books adequate reserves with respect to such Indebtedness or other obligations.
(d) The discovery by the Lender entry of any material inaccuracy in decree or order adjudging it bankrupt or insolvent or approving as filed any statement, assurance, representation, covenant, warranty, term petition seeking reorganization under any bankruptcy or condition by the Borrower contained in this Agreement or in any document delivered or to be delivered by or on behalf of the Borrower pursuant to this Agreement, which inaccuracy would result in a Material Adverse Effect (except that inaccuracies in the Borrower's Due Diligence Documents attributable to the fault or neglect of third-parties shall not constitute a breach of this Section 9.1(d)), or in any other Loan Document, or in any other agreement between the Borrower and the Lender.
(e) The filing of a petition by or against the Borrower or any Affiliate seeking relief under the Federal Bankruptcy Code, 11 U.S.C. ss. 101, et seq., and any amendments thereto, or any similar law or regulation, whether federal, state shall apply for or local, not dismissed within 30 days.
(f) The commencement shall consent to the appointment of a proceeding by receiver or against trustee or custodian for it or for the Borrower major part of its property or any Affiliate under any statute or other law providing for shall make an assignment for the benefit of creditors, creditors or shall admit in writing its inability to pay its debts as they mature or shall take any corporate action in contemplation or in furtherance of any of the appointment of a receiver, or any other similar law or regulation, whether federal, state or local, not dismissed within 30 daysforegoing purposes.
(g) The garnishment, attachment, levy or other similar action taken by or on behalf of any creditor of the Borrower, any Affiliate, or any of their respective properties which could have a Material Adverse Effect.
(h) Any change in control of the Borrower, Madison Liquidity Investors 104, MACG from that disclosed in Section 2 of this Agreement.
9.2 The Lender may, at its option, terminate its obligation to make advances of the Loan, without notice to the Borrower:
(a) upon the occurrence and continuance of SECTION 9.2. When any Event of Default set forth described in subsections 9.1
(a) through 9.1(hto 9.1(i), both inclusive, has occurred and is continuing, the Agent may (and shall, upon request of the Required Banks), by notice to the Company, take any or all of the following actions:
(a) above; or terminate the obligation of the Banks to extend any further credit hereunder on the date (which may be the date thereof) stated in such notice (such termination shall be effective upon verbal notification, the Agent hereby agreeing to provide written notification thereof to the Company as soon as practical thereafter);
(b) upon declare the occurrence principal of and continuance the accrued interest on the Notes to be forthwith due and payable and thereupon the Notes, including both principal and interest, and all fees, charges and commissions payable hereunder, shall be and become immediately due and payable without further demand, presentment, protest or notice of any event whichkind;
(c) demand that the Company immediately provide to the Agent cash collateral for the full amount of each Letter of Credit and the Company agrees to immediately provide such cash collateral and acknowledges and agrees that the Banks would not have an adequate remedy at law for failure by the Company to honor any such demand and that the Banks shall have the right to require the Company to specifically perform such undertaking whether or not any draws have been made under the Letters of Credit, with the giving of notice funds so paid to, if the Company so requests, be invested in short-term high-grade debt securities, acceptable and pledged to and held by the Agent in accordance with Section 4.6(d) hereof; and
(d) enforce any and all rights and remedies available under the Loan Documents or the lapse of time, or both, would constitute an applicable law.
SECTION 9.3. When any Event of Default described in subsections 9.1(j) or (Ck) upon has occurred and is continuing, then (a) the death then unpaid balance of the Notes, including both principal and interest, and all fees, charges and commissions payable hereunder or disability under the Applications, shall immediately become due and payable without presentment, demand, protest or notice of ▇▇▇▇▇ ▇any kind, (b) the obligation of the Banks to extend further credit pursuant to any of the terms hereof shall immediately and automatically terminate, (c) the Company shall immediately provide to the Agent cash collateral for the full amount of all Letters of Credit, whether or not draws have been made thereon, the Company acknowledging that the Banks would not have an adequate remedy at law for failure by the Company to honor any such demand, and the Banks shall have the right to require the Company to specifically perform such undertaking whether or not any draws have been made under the Letters of Credit, and (d) the Agent may exercise all remedies available to it under the Loan Documents or applicable law.
Appears in 1 contract
Events of Default and Remedies. 9.1 The Termination - Time is of the essence herein and it is understood and agreed that Secured Party may, at its option and notwithstanding any inconsistent terms in any agreement between Debtor and Chrysler Corporation and/or Secured Party with respect to the receivable underlying any Receivable Purchase Advance by Secured Party, terminate this Agreement, refuse to advance funds hereunder, convert outstanding installment payment obligations to payment on Vehicle sale obligations, and declare the aggregate of all Advances outstanding hereunder immediately due and payable upon the occurrence of any of the following events shall constitute (each hereinafter called an "Event of Default" "), and that Debtor's liabilities under this sentence shall constitute additional obligations of Debtor secured under this Agreement, the occurrence of which shall entitle the Lender to pursue any and all rights and remedies, legal and equitable, available to it under any Loan Document or otherwise. The Occurrence of an Event Default under this Agreement shall constitute a default under each and every other Loan Document. The Lender's rights and remedies are cumulative and may be exercised concurrently or successively from time to time. Any action by the Lender against any property or party shall not serve to release or discharge any other security, property or party in connection with this transaction. The Events of Default are as follows:.
(a) Failure Debtor shall fail to pay make any payment to Secured Party, whether constituting the principal amount of any Advance, interest thereon or interest on the Borrower's present or future indebtedness to the Lender, whether or not arising pursuant to this Agreementany other payment due hereunder, when and as due in accordance with the same terms of this Agreement or with any demand permitted to be made by Secured Party under this Agreement or any Promissory Note, or shall fail to pay when due any other amount owing to Secured Party under any other agreement between Secured Party and Debtor, or shall fail in the due performance or compliance with any other term of condition hereof or thereof, or shall be due and payable, whether by acceleration in default in the payment of any liabilities constituting indebtedness for money borrowed or otherwise; provided that such default has not been cured prior the deferred payment of the purchase price of property or a rental payment with respect to property material to the expiration conduct of ten (10) days following the date upon which the Lender gives the Borrower written Notice of Default. In this Section 9, Notice of Default shall be deemed to have been given (i) on the date of personal delivery of such written notice to a Guarantor, or (ii) on the date on which a duly authorized representative of the Borrower acknowledges receipt of such written notice, or (iii) on the day after sending such written notice to the Borrower by a commonly recognized overnight courier service, such as Federal Express, Purolator, UPS or the like, or (iv) on the third day after sending such written notice to the Borrower by facsimile (to both numbers set forth in Section 16.7) or by depositing the same in the United States mail, postage prepaid, for delivery to the Borrower.Debtor's business;
(b) Failure to observe, perform and comply with A tax lien or notice thereof shall have been filed against any of the obligations evidenced Debtor's property or secured by a Loan Documentproceeding in bankruptcy, other than as provided in Sections 9.1(a) above; provided that such default has not been cured prior to the expiration of thirty (30) days following the date upon which the Lender gives the Borrower written Notice of Default.
(c) Failure to duly and punctually pay, observe and discharge all Indebtedness and other obligations of the Borrower to any third party, unless the same is being contested in good faith by appropriate proceedings and the Borrower has set aside on its books adequate reserves with respect to such Indebtedness insolvency or other obligations.
(d) The discovery by the Lender of any material inaccuracy in any statement, assurance, representation, covenant, warranty, term or condition by the Borrower contained in this Agreement or in any document delivered or to receivership shall be delivered by or on behalf of the Borrower pursuant to this Agreement, which inaccuracy would result in a Material Adverse Effect (except that inaccuracies in the Borrower's Due Diligence Documents attributable to the fault or neglect of third-parties shall not constitute a breach of this Section 9.1(d)), or in any other Loan Document, or in any other agreement between the Borrower and the Lender.
(e) The filing of a petition instituted by or against the Borrower Debtor or any Affiliate seeking relief under the Federal Bankruptcy Code, 11 U.S.C. ss. 101, et seq., and any amendments thereto, Debtor's property or any similar law or regulation, whether federal, state or local, not dismissed within 30 days.
(f) The commencement of a proceeding by or against the Borrower or any Affiliate under any statute or other law providing for an assignment shall have been made by Debtor for the benefit of creditors;
(c) In the event that Secured Party deems itself insecure for any reason or the Vehicles are deemed by Secured Party to be in danger of misuse, loss, seizure or confiscation or other disposition not authorized by this Agreement;
(d) Termination of any franchise authorizing Debtor to sell Vehicles;
(e) A misrepresentation by Debtor for the appointment purpose of obtaining credit or an extension of credit or a receiverrefusal by Debtor to execute documents relating to the Collateral and/or Secured Party's security interest therein or to furnish financial information to Secured Party at reasonable intervals to or permit persons designated by Secured Party to examine Debtor's books or records and to make periodic inspections of the Collateral; or
(f) Debtor, without Secured Party's prior written consent, shall guarantee, endorse or otherwise become surety for or upon the obligations of others except as may be done in the ordinary course of Debtor's business, shall transfer or otherwise dispose of any proprietary, partnership or share interest Debtor has in his business, or all or substantially all of the assets thereof, shall enter into any merger or consolidation, if a corporation, or shall make any substantial disbursements or use of funds of Debtor's business, except as may be done in the ordinary course of Debtor's business, or assign this Agreement in whole or in part or any obligation hereunder. Upon the occurrence of an Event of Default, Secured Party may take immediate possession of said Vehicles without demand or further notice and without legal process; and for the purpose and furtherance thereof, Debtor shall, if Secured Party so requests, assemble the Vehicles and make them available to Secured Party at a reasonably convenient place designated by Secured Party and Secured Party shall have the right, and Debtor hereby authorizes and empowers Secured Party to enter upon the premises wherever said Vehicles may be, to remove same. In addition, Secured Party or its assigns shall have all the rights and remedies applicable under the Uniform Commercial Code or under any other similar statute or at common law or regulationin equity or under this Agreement. Such rights and remedies shall be cumulative. Debtor hereby agrees that it shall pay all expenses and reimburse Secured Party for any expenditures, whether federalincluding reasonable attorneys' fees and legal expenses, state or local, not dismissed within 30 days.
(g) The garnishment, attachment, levy or other similar action taken by or on behalf in connection with Secured Party's exercise of any creditor of the Borrower, any Affiliate, or any of their respective properties which could have a Material Adverse Effect.
(h) Any change in control of the Borrower, Madison Liquidity Investors 104, MACG from that disclosed in Section 2 of its rights and remedies under this Agreement.
9.2 The Lender may, at its option, terminate its obligation to make advances of the Loan, without notice to the Borrower:
(a) upon the occurrence and continuance of any Event of Default set forth in subsections 9.1
(a) through 9.1(h) above; or (b) upon the occurrence and continuance of any event which, with the giving of notice or the lapse of time, or both, would constitute an Event of Default or (C) upon the death or disability of ▇▇▇▇▇ ▇.
Appears in 1 contract
Sources: Security Agreement and Master Credit Agreement (Hometown Auto Retailers Inc)
Events of Default and Remedies. 9.1 (a) The following occurrence of any of the events shall constitute an "Event of Default" under identified in this Agreement, the occurrence Indenture or the Indenture Documents as an “Event of which shall entitle Default,” any breach of the Lender representations or warranties contained herein or in the Indenture Documents and/or the failure of Pledgor to pursue any comply with the terms and all rights and remedies, legal and equitable, available to it under any Loan Document or otherwise. The Occurrence provisions of an Event Default under this Agreement shall constitute a default under each and every other Loan Document. The Lender's rights and remedies are cumulative and may be exercised concurrently or successively from time to time. Any action by the Lender against any property or party shall not serve to release or discharge any other security, property or party in connection with this transaction. The Events of Default are as follows:
(a) Failure to pay the principal or interest on the Borrower's present or future indebtedness to the Lender, whether or not arising pursuant to this Agreement, when and as the same shall be due and payable, whether by acceleration or otherwise; provided that such default has not been cured prior to the expiration of ten (10) days following the date upon which the Lender gives the Borrower written Notice an “Event of Default. In this Section 9, Notice of Default shall be deemed to have been given (i) on the date of personal delivery of such written notice to a Guarantor, or (ii) on the date on which a duly authorized representative of the Borrower acknowledges receipt of such written notice, or (iii) on the day after sending such written notice to the Borrower by a commonly recognized overnight courier service, such as Federal Express, Purolator, UPS or the like, or (iv) on the third day after sending such written notice to the Borrower by facsimile (to both numbers set forth in Section 16.7) or by depositing the same in the United States mail, postage prepaid, for delivery to the Borrower” hereunder.
(b) Failure to observe, perform Upon the occurrence and comply with any during the continuance of the obligations evidenced or secured by a Loan Document, other than as provided in Sections 9.1(a) above; provided that such default has not been cured prior to the expiration of thirty (30) days following the date upon which the Lender gives the Borrower written Notice an Event of Default.
(c) Failure to duly , Trustee, if and punctually pay, observe and discharge all Indebtedness and other obligations of the Borrower to any third party, unless the same is being contested in good faith by appropriate proceedings and the Borrower has set aside on its books adequate reserves with respect to such Indebtedness or other obligations.
(d) The discovery as directed by the Lender of any material inaccuracy direction the Majority Holders, shall, in any statement, assurance, representation, covenant, warranty, term or condition by the Borrower contained addition to all other rights and remedies granted in this Agreement or in any document delivered other Indenture Document:
(i) exercise all rights and remedies of a secured party under the Code (whether or not the Code is in effect in the jurisdiction where the rights and remedies are asserted) and such additional rights and remedies to which a secured party is entitled under the laws in effect in any jurisdiction where any rights and remedies hereunder may be asserted, including, without limitation, the right, to the maximum extent permitted by law, to exercise all voting, consensual and other powers of ownership pertaining to the Collateral as if Trustee were the sole and absolute owner thereof (and Pledgor agrees to take all such action as may be appropriate to give effect to such rights);
(ii) make any reasonable compromise or settlement deemed desirable with respect to any of the Collateral and may extend the time of payment, arrange for payment in installments, or otherwise modify the terms of, any of the Collateral;
(iii) in its discretion, in its name or in the name of Pledgor or otherwise, demand, ▇▇▇ for, collect, direct payment of or receive any money or property at any time payable or receivable on account of or in exchange for any of the Collateral, but Trustee, except to the extent so directed by the Majority Holders in their discretion, shall be under no obligation to do so; and
(iv) without limiting the generality of the foregoing clause (iii) above, without demand of performance or other demand, presentment, protest, advertisement or notice of any kind (except any notice required by law referred to below or otherwise required hereby) to or upon Pledgor, Pledged Entity or any other Person (all and each of which demands, presentments, protests, advertisements and notices, or other defenses, are hereby waived to the extent permitted under applicable law), forthwith collect, receive, appropriate and realize upon the Collateral, or any part thereof, and/or forthwith sell, assign, give option or options to purchase or otherwise dispose of and deliver the Collateral or any part thereof (or contract to do any of the foregoing), in one or more parcels at public or private sale or sales, in the over-the-counter market, at any exchange, broker’s board or office of Trustee or elsewhere upon such terms and conditions as Trustee may deem advisable and at such prices as the Majority Holders may deem best in their sole discretion, for cash or on credit or for future delivery without assumption of any credit risk; provided, however, that Trustee shall provide Pledgor with not less than ten (10) days written notice prior to conducting any public or private sale of the Collateral, and Pledgor hereby agrees and stipulates that such notice shall be deemed to be delivered by or on behalf commercially reasonable notice in satisfaction of the Borrower pursuant requirements of the Code. In the event Trustee shall be directed to this Agreementsell all or any part of the Collateral by the Majority Holders, the Trustee may sell such Collateral without giving any representations or warranties of title or the like and shall be permitted to specifically disclaim any representations and warranties of title or the like. Trustee, at the direction of the Majority Holders, shall have the right, without notice or publication, to adjourn any public or private sale or cause the same to be adjourned from time to time by announcement at the time and place fixed for such sale, and any such sale may be made at any time or place to which the same may be adjourned without further notice. Trustee, at the direction of the Majority Holders, or the Holders, shall have the right upon any such public sale or sales, and, to the extent permitted by law, upon any such private sale or sales, to purchase the whole or any part of the Collateral so sold, free of any right or equity of redemption of Pledgor, which inaccuracy would result in a Material Adverse Effect (except that inaccuracies in right or equity of redemption is hereby waived and released. Trustee, at the Borrower's Due Diligence Documents attributable direction of the Majority Holders, shall apply any Proceeds from time to time held by it and the net proceeds of any such collection, recovery, receipt, appropriation, realization or sale, after deducting all reasonable costs and expenses of every kind incurred therein or incidental to the fault care or neglect safekeeping of third-parties shall not constitute a breach any of this Section 9.1(d)), the Collateral or in any other Loan Documentway relating to the Collateral or the rights of Trustee hereunder, including, without limitation, reasonable attorneys’ fees and disbursements, to the payment in whole or in part of the Obligations, in such order as the Majority Holders may elect, and only after such application and after the payment by Trustee of any other agreement between amount required by any provision of law, including, without limitation, Sections 9-610 and 9-615 of the Borrower Code, need Trustee account for the surplus, if any, to Pledgor. To the extent permitted by applicable law, Pledgor waives all claims, damages and demands it may acquire against Trustee, the LenderHolders and Taberna Capital Management, LLC arising out of the exercise by Trustee of any of its rights hereunder.
(ec) The filing rights, powers, privileges and remedies of a petition by or against the Borrower or any Affiliate seeking relief Trustee under the Federal Bankruptcy Codethis Agreement are cumulative and shall be in addition to all rights, 11 U.S.C. ss. 101powers, et seq., privileges and any amendments thereto, or any similar remedies available to Trustee at law or regulationin equity. All such rights, whether federal, state powers and remedies shall be cumulative and may be exercised successively or local, not dismissed within 30 daysconcurrently without impairing the rights of Trustee hereunder.
(f) The commencement of a proceeding by or against the Borrower or any Affiliate under any statute or other law providing for an assignment for the benefit of creditors, the appointment of a receiver, or any other similar law or regulation, whether federal, state or local, not dismissed within 30 days.
(g) The garnishment, attachment, levy or other similar action taken by or on behalf of any creditor of the Borrower, any Affiliate, or any of their respective properties which could have a Material Adverse Effect.
(h) Any change in control of the Borrower, Madison Liquidity Investors 104, MACG from that disclosed in Section 2 of this Agreement.
9.2 The Lender may, at its option, terminate its obligation to make advances of the Loan, without notice to the Borrower:
(a) upon the occurrence and continuance of any Event of Default set forth in subsections 9.1
(a) through 9.1(h) above; or (b) upon the occurrence and continuance of any event which, with the giving of notice or the lapse of time, or both, would constitute an Event of Default or (C) upon the death or disability of ▇▇▇▇▇ ▇.
Appears in 1 contract
Sources: Pledge and Security Agreement (Newcastle Investment Corp)
Events of Default and Remedies. 9.1 The (a) Each of the following events acts or occurrences shall constitute an "Event of Default" under this Agreement, the occurrence of which shall entitle the Lender to pursue any and all rights and remedies, legal and equitable, available to it under any Loan Document or otherwise. The Occurrence of an Event Default under this Agreement shall constitute a default under each and every other Loan Document. The Lender's rights and remedies are cumulative and may be exercised concurrently or successively from time to time. Any action by the Lender against any property or party shall not serve to release or discharge any other security, property or party in connection with this transaction. The Events of Default are as followshereunder:
(ai) Failure to pay default in the principal or interest payment of the Termination Value for any Phase on the Borrower's present relevant Option Date, or future indebtedness to in the Lenderpayment of the Termination Value for any Phase on the relevant Cancellation Date or Purchase Closing Date, whether as applicable, or not arising pursuant to this Agreementin the payment of the Termination Value or the Final Rent Payment for any Phase on the relevant Lease Termination Date or Purchase Closing Date, as applicable or in the payment when due of the Scheduled Payment component of Basic Rent for any Phase; or in the payment when due of any Interim Rent or the Floating Rate Payment or Fixed Rate Payment component of Basic Rent for any Phase, and as the same shall be due and payable, whether by acceleration or otherwise; provided that continuance of such default has not been cured prior to for 10 days thereafter; or the expiration default in the payment when due of ten (10) days following any Supplemental Rent for any Phase, or the date upon which amount of any Indemnified Risk or of any other amount due hereunder or under any other Operative Document and the Lender gives the Borrower written Notice of Default. In this Section 9, Notice of Default shall be deemed to have been given (i) on the date of personal delivery continuance of such written notice to a Guarantor, or (ii) on the date on which a duly authorized representative of the Borrower acknowledges receipt of such written notice, or (iii) on the day after sending such written notice to the Borrower by a commonly recognized overnight courier service, such as Federal Express, Purolator, UPS or the like, or (iv) on the third day after sending such written notice to the Borrower by facsimile (to both numbers set forth in Section 16.7) or by depositing the same in the United States mail, postage prepaid, default for delivery to the Borrower.
(b) Failure to observe, perform and comply with any of the obligations evidenced or secured by a Loan Document, other than as provided in Sections 9.1(a) above; provided that such default has not been cured prior to the expiration of thirty (30) days following the date upon which the Lender gives the Borrower written Notice of Default.thereafter; or
(cii) Failure the Lessee shall fail to duly observe or perform any covenant contained in Sections 30(a)(vi) or (vii), 30(b)(ii), 30(c) through 30(f), inclusive, and punctually pay30(o) through 30(u), inclusive; or
(iii) the Lessee shall fail to observe or perform any covenant or agreement contained or incorporated by reference in this Lease (other than those covered by any other paragraph of this Section 17(a)) and discharge all Indebtedness and other obligations such failure shall not have been cured within thirty (30) days after the earlier to occur of (i) written notice thereof has been given to the Lessee by the Lessor or (ii) any officer of the Borrower to Lessee otherwise becomes aware of any third party, unless the same is being contested in good faith by appropriate proceedings and the Borrower has set aside on its books adequate reserves with respect to such Indebtedness or other obligations.failure; or
(div) The discovery any representation or warranty made or deemed made by the Lender of any material inaccuracy Lessee herein, in any statement, assurance, representation, covenant, warranty, term or condition other Operative Document by the Borrower contained Lessee or otherwise in this Agreement writing in connection with or in any document delivered or to be delivered by or on behalf of the Borrower pursuant to this Agreement, which inaccuracy would result in a Material Adverse Effect (except that inaccuracies in the Borrower's Due Diligence Documents attributable to the fault or neglect of third-parties shall not constitute a breach of this Section 9.1(d)), or in any other Loan Document, or in any other agreement between the Borrower and the Lender.
(e) The filing of a petition by or against the Borrower or any Affiliate seeking relief under the Federal Bankruptcy Code, 11 U.S.C. ss. 101, et seq., and any amendments thereto, or any similar law or regulation, whether federal, state or local, not dismissed within 30 days.
(f) The commencement of a proceeding by or against the Borrower or any Affiliate under any statute or other law providing for an assignment for the benefit of creditors, the appointment of a receiver, Lease or any other similar law Operative Document, shall be false or regulation, whether federal, state misleading in any material respect on the date made or local, not dismissed within 30 days.deemed made; or
(gv) The garnishmentan event of default under the Agency Agreement, attachment, levy and such failure shall not have been cured within thirty (30) days after the earlier to occur of (i) written notice thereof has been given to the Lessee by the Lessor or other similar action taken by or on behalf (ii) any officer of the Lessee otherwise becomes aware of any creditor of the Borrower, any Affiliate, or any of their respective properties which could have a Material Adverse Effect.such failure; or
(hA) Any change in control of the Borrower, Madison Liquidity Investors 104, MACG from that disclosed in Section 2 of this Agreement.
9.2 The Lender may, at Lessee shall (1) generally not pay its option, terminate its obligation to make advances of the Loan, without notice to the Borrower:
(a) upon the occurrence and continuance of any Event of Default set forth in subsections 9.1
(a) through 9.1(h) abovedebts as such debts become due; or (b) upon the occurrence and continuance of any event which, with the giving of notice or the lapse of time, or both, would constitute an Event of Default or (C) upon the death or disability of ▇▇▇▇▇ ▇.or
Appears in 1 contract
Sources: Master Lease Agreement (Flowers Industries Inc /Ga)
Events of Default and Remedies. 9.1 The following events (a) It shall constitute be considered an "“Event of Default" under this Agreement” if:
1. a Registration Statement is not declared effective by the Commission on or prior to its required Effectiveness Date;
2. by the Business Day immediately following the Effective Date, the occurrence of which shall entitle the Lender to pursue any and all rights and remedies, legal and equitable, available to it under any Loan Document or otherwise. The Occurrence of an Event Default under this Agreement shall constitute a default under each and every other Loan Document. The Lender's rights and remedies are cumulative and may be exercised concurrently or successively from time to time. Any action by the Lender against any property or party Company shall not serve to release or discharge any other security, property or party have filed a “final” prospectus for the Registration Statement with the Commission under Rule 424(b) in connection accordance with this transaction. The Events of Default are as follows:
the terms hereof (a) Failure to pay the principal or interest on the Borrower's present or future indebtedness to the Lender, whether or not arising pursuant such a prospectus is technically required by such Rule);
3. after its Effective Date, without regard for the reason thereunder or efforts therefor, such Registration Statement ceases for any reason to this Agreement, when be effective and available to the Holders as the same shall be due to all Registrable Securities and payable, whether by acceleration or otherwise; provided that such default has not been cured Warrants to which it is required to cover at any time prior to the expiration of ten its Effectiveness Period for more than an aggregate of 60 Trading Days during any 12-month period (10) days following which need not be consecutive);
4. after a Registration Statement has been declared effective by the date upon SEC, sales cannot be made pursuant to such Registration Statement for any reason (including by reason of a stop order or the Company’s failure to update the Registration Statement), except as excused pursuant to Section 2(b); or
5. the Company defaults in any way with its obligations under Section 5 or Section 6, and such default (other than with respect to Section 5 for which the Lender gives the Borrower written Notice of Default. In this Section 9, Notice of Default there shall be deemed to have been given (ino cure period) on the date of personal delivery of such written notice to a Guarantor, or (ii) on the date on which a duly authorized representative of the Borrower acknowledges receipt of such written notice, or (iii) on the day after sending such written notice to the Borrower by a commonly recognized overnight courier service, such as Federal Express, Purolator, UPS or the like, or (iv) on the third day after sending such written notice to the Borrower by facsimile (to both numbers set forth in Section 16.7) or by depositing the same in the United States mail, postage prepaid, continues for delivery to the Borrowerlonger than 30 days.
(b) Failure For purposes of this Section 8, the date on which such Event of Default occurs, or for purposes of clause (a)(3) the date which such 60 Trading Day-period is exceeded, being referred to observeas “Event Date”), perform then in addition to any other rights the Holders may have hereunder or under applicable law, on each such Event Date and comply with any on each monthly anniversary of each such Event Date (if the applicable Event shall not have been cured by such date) until the applicable Event is cured, the Company shall pay to each Holder an amount in cash, as partial liquidated damages and not as a penalty, equal to one percent (1.0%) of the obligations evidenced or secured aggregate Per Share Purchase Price paid by a Loan Documentsuch Holder for Shares pursuant to the Purchase Agreement for the first 30 days of continuation of such Event of Default, other than as provided in Sections 9.1(awhich amount shall increase by one percent (1.0%) above; provided each thirtieth day thereafter that such default the applicable Event of Default has not been cured cured, subject to a maximum amount of three percent (3.0%) per 30-day period. The parties agree that (1) the Company will not be liable for liquidated damages under this Agreement with respect to any Cut Back Shares and (2) in no event will the Company be liable for liquidated damages under this Agreement in excess of one percent (1.0%) of the aggregate Investment Amount of the Holders in any 30-day period and the maximum aggregate liquidated damages payable to a Holder under this Agreement shall be three percent (3.0%) of the aggregate Per Share Purchase Price paid by such Holder pursuant to the Purchase Agreement per 30-day period. The partial liquidated damages pursuant to the terms hereof shall apply on a daily pro-rata basis for any portion of a month prior to the expiration cure of thirty (30) days following the date upon which the Lender gives the Borrower written Notice of Default.
(c) Failure to duly and punctually pay, observe and discharge all Indebtedness and other obligations of the Borrower to any third party, unless the same is being contested in good faith by appropriate proceedings and the Borrower has set aside on its books adequate reserves with respect to such Indebtedness or other obligations.
(d) The discovery by the Lender of any material inaccuracy in any statement, assurance, representation, covenant, warranty, term or condition by the Borrower contained in this Agreement or in any document delivered or to be delivered by or on behalf of the Borrower pursuant to this Agreement, which inaccuracy would result in a Material Adverse Effect (except that inaccuracies in the Borrower's Due Diligence Documents attributable to the fault or neglect of third-parties shall not constitute a breach of this Section 9.1(d)), or in any other Loan Document, or in any other agreement between the Borrower and the Lender.
(e) The filing of a petition by or against the Borrower or any Affiliate seeking relief under the Federal Bankruptcy Code, 11 U.S.C. ss. 101, et seq.an Event, and any amendments thereto, or any similar law or regulation, whether federal, state or local, not dismissed within 30 days.
shall cease to accrue (f) The commencement of a proceeding by or against the Borrower or any Affiliate under any statute or other law providing for an assignment for the benefit of creditors, the appointment of a receiver, or any other similar law or regulation, whether federal, state or local, not dismissed within 30 days.
(g) The garnishment, attachment, levy or other similar action taken by or on behalf of any creditor of the Borrower, any Affiliate, or any of their respective properties which could have a Material Adverse Effect.
(h) Any change in control of the Borrower, Madison Liquidity Investors 104, MACG from that disclosed in Section 2 of this Agreement.
9.2 The Lender may, at its option, terminate its obligation to make advances of the Loan, without notice to the Borrower:
(aunless earlier cured) upon the occurrence and continuance expiration of any Event of Default set forth in subsections 9.1
(a) through 9.1(h) above; or (b) upon the occurrence and continuance of any event which, with the giving of notice or the lapse of time, or both, would constitute Effectiveness Period. The period during which an Event of Default is continuing is referred to herein as a “Blackout Period”. If the Company fails to pay any partial liquidated damages pursuant to this Section 8 in full within seven days after the date payable, the Company will pay interest thereon at a rate of 18% per annum (or (Csuch lesser maximum amount that is permitted to be paid by applicable law) upon to the death Holder, accruing daily from the date such partial liquidated damages are due until such amounts, plus all such interest thereon, are paid in full. The payments described above shall not affect the right of the Investors to seek any other relief including injunctive relief or disability request registration pursuant to Section 2. The amounts payable pursuant to this paragraph shall be paid monthly within five Business Days of ▇▇▇▇▇ ▇the last day of each month following the commencement of the Blackout Period until the termination of the Blackout Period. Such payments shall be made to the Investor in cash.
Appears in 1 contract
Events of Default and Remedies. 9.1 7.1 The following events shall constitute an "Event of Default" Default under this Agreement, the occurrence of which shall entitle the Subordinated Lender to pursue any and all rights and remedies, legal and equitable, remedies available to it under this Agreement, any of the other Subordinated Loan Document Documents, by statute or otherwisein law or equity. The Occurrence of an Event Default under this Agreement shall constitute a default under each and every other Loan Document. The Subordinated Lender's rights and remedies are cumulative and may be exercised concurrently or successively from time to time. Any action by the Subordinated Lender against any property or party shall not serve to release or discharge any other security, property or party in connection with this transaction. The Events of Default are as follows:
(a) Failure to pay make any payment as and when due under the principal or interest on the Borrower's present or future indebtedness to the Lender, whether or not arising pursuant to this Agreement, when and as the same shall be due and payableSubordinated Note, whether by acceleration or otherwise; , provided in each case that such default has not been cured prior to the expiration of ten (10) 10 days following the date upon which the Lender gives the Borrower written Notice of Default. In this Section 9, Notice of Default shall be deemed to have been given (i) on the date of personal delivery or mailing of written notice of such written notice to a Guarantor, or (ii) on the date on which a duly authorized representative of the Borrower acknowledges receipt of such written notice, or (iii) on the day after sending such written notice to the Borrower by a commonly recognized overnight courier service, such as Federal Express, Purolator, UPS or the like, or (iv) on the third day after sending such written notice to the Borrower by facsimile (to both numbers set forth in Section 16.7) or by depositing the same in the United States mail, postage prepaid, for delivery default to the Borrower.
(b) Failure to make any payment as and when under any document evidencing indebtedness of the Borrower to the Subordinated Lender other than the Subordinated Note, whether by acceleration or otherwise, provided in each case that such default has not been cured prior to the expiration of 10 days following the date of personal delivery or mailing of written notice of such default to the Borrower.
(c) Failure to observe, perform and comply with any of the Borrower's obligations evidenced or secured by a under any Subordinated Loan Document, other than as provided in Sections 9.1(asubsections 7.1(a) and 7.1(b) above; provided that such default has not been cured prior to the expiration of thirty (30) 20 days following the date upon which the Lender gives the Borrower of personal delivery or mailing of written Notice notice of Default.
(c) Failure to duly and punctually pay, observe and discharge all Indebtedness and other obligations of the Borrower to any third party, unless the same is being contested in good faith by appropriate proceedings and the Borrower has set aside on its books adequate reserves with respect to such Indebtedness or other obligationsdefault.
(d) The discovery Failure to observe, perform and comply with any of the Borrower's obligations under any Senior Loan Document, provided that such default has not been cured after the expiration of any applicable cure period provided by the Lender Senior Loan Documents.
(e) The existence of any a material inaccuracy in any statement, assurance, representation, covenant, warranty, term or condition by the Borrower contained in this Agreement or in any document delivered or to be delivered by or on behalf of the Borrower pursuant to this Agreement, which inaccuracy would result in a Material Adverse Effect (except that inaccuracies in the Borrower's Due Diligence Documents attributable to the fault or neglect of third-parties shall not constitute a breach of this Section 9.1(d)), or in any other Subordinated Loan Document, or in any other agreement between the Borrower and the Lender.
(ef) The filing of a petition by or against the Borrower or any Affiliate seeking relief under the Federal Bankruptcy Code, 11 U.S.C. ss. 101, et seq., and any amendments thereto, or any similar law or regulation, whether federal, state or local, not dismissed within 30 days.
(f) The commencement of a proceeding by or against the Borrower or any Affiliate under any statute or other law providing for an assignment for the benefit of creditors, the appointment of a receiver, or any other similar law or regulation, whether federal, state or local, not dismissed within 30 days.
(g) The garnishment, attachment, levy or other similar action taken by or on behalf of any creditor of the Borrower, any Affiliate, or any of their respective properties which could have a Material Adverse Effect.
(h) Any change in control of the Borrower, Madison Liquidity Investors 104, MACG from that disclosed in Section 2 of this Agreement.
9.2 The Lender may, at its option, terminate its obligation to make advances of the Loan, without notice to the Borrower:
(a) upon the occurrence and continuance of any Event of Default set forth in subsections 9.1
(a) through 9.1(h) above; or (b) upon the occurrence and continuance of any event which, with the giving of notice or the lapse of time, or both, would constitute an Event of Default or (C) upon the death or disability of ▇▇▇▇▇ ▇.U.S.
Appears in 1 contract
Events of Default and Remedies. 9.1 The (a) Each of the following events acts or occurrences shall constitute an "Event of Default" under this Agreementhereunder:
(i) default in the payment of the Purchase Price or the Termination Value on the Cancellation Date or the Purchase Closing Date, as applicable, or in the payment of the Purchase Price or the Final Rent Payment or Completion Costs Payment, as applicable, on the Lease Termination Date; or the default in the payment when due of any Basic Rent and the continuance of such default for 5 Business Days thereafter; or the default in the payment when due of any Supplemental Rent, the amount of any Indemnified Risk or any other amount due hereunder or under any other Operative Document and the continuance of such default for 30 days thereafter; or
(ii) any representation or warranty made or deemed made by the Lessee herein, or by the Lessee or the Guarantor in any other Operative Document or otherwise in writing in connection with or pursuant to this Lease or any other Operative Document, shall be false or misleading in any material respect on the date made or deemed made; or
(iii) an Event of Default under the Investment Agreement;
(iv) The Lessee shall fail to observe or perform any covenant or agreement contained in Sections 12 and 26 of this Lease; or
(v) The Lessee shall fail to observe or perform any covenant or agreement contained or incorporated by reference in this Lease (other than those covered by subsections (i) or (iv) above), and such failure shall not have been cured within 10 days, with respect to any covenant contained in Section 14 of this Lease, and 30 days, with respect to any other provision hereof, after the earlier to occur of (A) written notice thereof has been given to the Lessee and the Guarantor by the Lessor at the request of the Majority Funding Parties or (B) the chief financial, chief operating, chief legal or chief accounting officer of the Lessee or the Guarantor otherwise becomes aware of any such failure; or
(vi) Lessee shall abandon the Facility; provided however that for purposes of this Section 17(a)(vi), the term "abandon" shall not include the mere failure of Lessee to occupy the Facility so long as Lessee continues to perform its obligations hereunder and other Operative Documents including without limitation maintenance of the Facility, maintenance of required insurance, compliance with Governmental Requirements and Insurance Requirements and payment of all Rent.
(b) Upon the occurrence and during the continuance of which any Event of Default, as determined by the Lessor, the Lessor (acting at the direction of the Majority Funding Parties) may do any one or more of the following (without prejudice to the obligations of the Lessee under Section 15(b)(ii)):
(i) proceed by appropriate judicial proceedings, either at law, in equity or in bankruptcy, to enforce performance or observance by the Lessee of the applicable provisions of this Lease, or to recover damages for the breach of any such provisions, or any other equitable or legal remedy, all as the Lessor shall entitle deem necessary or advisable; and/or
(ii) by notice to the Lender Lessee, either (x) terminate this Lease in accordance with Section 15, whereupon the Lessee's interest and all rights of the Lessee to pursue the use of the Facility shall forthwith terminate subject to the Lessee's rights under such Section 15 to acquire the Facility on the Purchase Closing Date as provided herein, but the Lessee shall remain liable with respect to its obligations and liabilities hereunder; or (y) terminate the Lessee's right to possession of the Facility or any part thereof; and/or
(iii) exercise any and all rights other remedies available under applicable law or at equity.
(c) After the occurrence and remediesduring the continuance of a Cancellation Event or Termination Event, legal in the event the Lessor elects not to terminate this Lease and equitablethe Lessee has not exercised its option under Section 15(c), available to it under any Loan Document or otherwise. The Occurrence this Lease shall continue in effect and the Lessor may enforce all of an Event Default under this Agreement shall constitute a default under each and every other Loan Document. The Lenderthe Lessor's rights and remedies are cumulative under this Lease, including, without limitation, the right to recover the Basic Rent and may be exercised concurrently Supplemental Rent, and any Completion Costs and all other yield protection payments and other amounts with respect thereto, as it becomes due under this Lease or successively from time to timeany other Operative Documents. Any action For the purposes hereof, the following do not constitute a cancellation or termination of this Lease: (i) acts of maintenance or preservation of the Facility or any part thereof, (ii) efforts by the Lender against Lessor to relet the Facility or any property part thereof, including, without limitation, termination of any sublease of the Facility and removal of any tenant from the Site, (iii) or party shall not serve the appointment of a receiver upon the initiative of the Lessor to release or discharge any other security, property or party in connection with protect the Lessor's interest under this transaction. The Events of Default are as follows:Lease.
(ad) Failure to pay the principal or interest on the Borrower's present or future indebtedness to the Lender, whether or not arising pursuant to this Agreement, when and as the same shall be due and payable, whether by acceleration or otherwise; provided that such default has not been cured prior to the expiration of ten (10) days following the date upon which the Lender gives the Borrower written Notice of Default. In this Section 9, Notice of Default shall be deemed to have been given If (i) on the date Lease Termination Date, the Facility is not acquired by the Lessee or its designee by payment of personal delivery of such written notice to a Guarantorthe Purchase Price, or (ii) on the date on which a duly authorized representative Cancellation Date, the Lessee or its designee has defaulted in its obligation to acquire the Facility and pay the Purchase Price, or if applicable, the Termination Value, in accordance with Lessee's election under Section 15(b)(ii), then the Lessor shall have the immediate right of possession of the Borrower acknowledges receipt Facility and the right to enter onto the Site and to remove any and all of the Property comprising the Facility, and the Lessor may thenceforth hold, possess and enjoy the Facility free from any rights of the Lessee and any Person claiming by, through or under the Lessee. The Lessor shall be under no liability by reason of any such written notice, or (iii) on the day after sending such written notice to the Borrower by a commonly recognized overnight courier service, such as Federal Express, Purolator, UPS repossession or the like, Facility or (iv) on entry onto the third day after sending such written notice to the Borrower by facsimile (to both numbers set forth in Section 16.7) or by depositing the same in the United States mail, postage prepaid, for delivery to the Borrower.
(b) Failure to observe, perform and comply with any of the obligations evidenced or secured by a Loan Document, other than as provided in Sections 9.1(a) above; provided that such default has not been cured prior to the expiration of thirty (30) days following the date upon which the Lender gives the Borrower written Notice of Default.
(c) Failure to duly and punctually pay, observe and discharge all Indebtedness and other obligations of the Borrower to any third party, unless the same is being contested in good faith by appropriate proceedings and the Borrower has set aside on its books adequate reserves with respect to such Indebtedness or other obligations.
(d) The discovery by the Lender of any material inaccuracy in any statement, assurance, representation, covenant, warranty, term or condition by the Borrower contained in this Agreement or in any document delivered or to be delivered by or on behalf of the Borrower pursuant to this Agreement, which inaccuracy would result in a Material Adverse Effect (except that inaccuracies in the Borrower's Due Diligence Documents attributable to the fault or neglect of third-parties shall not constitute a breach of this Section 9.1(d)), or in any other Loan Document, or in any other agreement between the Borrower and the LenderSite.
(e) The filing of a petition by or against Should the Borrower Lessor elect to repossess the Facility or any Affiliate seeking relief part thereof upon cancellation or termination of this Lease or otherwise in the exercise of the Lessor's remedies, the Lessee shall peaceably quit and surrender the Facility or any such part thereof to the Lessor and either (i) deliver possession of the Facility to the Lessor or (ii) allow Lessor or its agents or assigns to enter onto the Facility and the Site to remove any and all of the Property comprising the Facility at the expense of the Lessee, and neither the Lessee nor any Person claiming through or under the Federal Bankruptcy Code, 11 U.S.C. ss. 101, et seq., and any amendments thereto, Lessee shall thereafter be entitled to possession or to remain in possession of the Facility or any similar law or regulation, whether federal, state or local, not dismissed within 30 dayspart thereof but shall forthwith peaceably quit and surrender the Facility to the Lessor.
(f) The commencement At any time after the repossession of a proceeding by or against the Borrower Facility or any Affiliate under any statute part thereof, whether or other law providing for an assignment for the benefit of creditorsnot this Lease shall have been cancelled or terminated, the appointment Lessor may (but shall be under no obligation to) relet the Facility or the applicable part thereof without notice to the Lessee, for such term or terms and on such conditions and for such usage as the Lessor in its sole and absolute discretion may determine. The Lessor may collect and receive any rents payable by reason of a receiversuch reletting, and the Lessor shall not be liable for any failure to relet the Facility or for any other similar law or regulation, whether federal, state or local, not dismissed within 30 daysfailure to collect any rent due upon any such reletting.
(g) The garnishmentremedies herein provided in case of an Event of Default are in addition to, attachmentand without prejudice to, levy the Lessee's continuing obligations under Section 15(b)(ii), and shall not be deemed to be exclusive, but shall be cumulative and shall be in addition to all other remedies existing at law, in equity or in bankruptcy. The Lessor may exercise any remedy without waiving its right to exercise any other similar action taken by remedy hereunder or on behalf of any creditor of the Borrowerexisting at law, any Affiliate, in equity or any of their respective properties which could have a Material Adverse Effectin bankruptcy.
(h) Any change in control No waiver by the Lessor hereunder of any Default or Event of Default shall constitute a waiver of any other or subsequent Default or Event of Default. To the Borrowerextent permitted by applicable law, Madison Liquidity Investors 104, MACG from that disclosed in Section 2 of this Agreement.
9.2 The Lender may, the Lessee waives any right it may have at its option, terminate its obligation any time to make advances of require the Loan, without notice Lessor to mitigate the Borrower:
(a) Lessor's damages upon the occurrence and continuance of any a Default or Event of Default set forth in subsections 9.1
(a) through 9.1(h) above; by taking any action or (b) upon exercising any remedy that may be available to the occurrence and continuance Lessor, the exercise of any event which, with remedies hereunder being at the giving discretion of notice or the lapse of time, or both, would constitute an Event of Default or (C) upon the death or disability of ▇▇▇▇▇ ▇Lessor.
Appears in 1 contract
Events of Default and Remedies. 9.1 The Termination - Time is of the essence herein and it is understood and agreed that Secured Party may terminate this Agreement, refuse to advance funds hereunder, and declare the aggregate of all Advances outstanding hereunder immediately due and payable upon the occurrence of any of the following events shall constitute {each hereinafter called an "Event of Default" "), and that Debtor's liabilities under this sentence shall constitute additional obligations of Debtor secured under this Agreement, the occurrence of which shall entitle the Lender to pursue any and all rights and remedies, legal and equitable, available to it under any Loan Document or otherwise. The Occurrence of an Event Default under this Agreement shall constitute a default under each and every other Loan Document. The Lender's rights and remedies are cumulative and may be exercised concurrently or successively from time to time. Any action by the Lender against any property or party shall not serve to release or discharge any other security, property or party in connection with this transaction. The Events of Default are as follows:.
(a) Failure Debtor shall fail to pay make any payment to Secured Party, whether constituting the principal amount of any Advance, interest thereon or interest on the Borrower's present or future indebtedness to the Lender, whether or not arising pursuant to this Agreementany other payment due hereunder, when and as due in accordance with the same terms of this Agreement or with any demand permitted to be made by Secured Party under this Agreement or any Promissory Note, or shall fail to pay when due any other amount owing to Secured Party under any other agreement between Secured Party and Debtor, or shall fail in the due performance or compliance with any other term or condition hereof or thereof, or shall be due and payable, whether by acceleration in default in the payment of any liabilities constituting indebtedness for money borrowed or otherwise; provided that such default has not been cured prior the deferred payment of the purchase price of property or a rental payment with respect to property material to the expiration conduct of ten (10) days following the date upon which the Lender gives the Borrower written Notice of Default. In this Section 9, Notice of Default shall be deemed to have been given (i) on the date of personal delivery of such written notice to a Guarantor, or (ii) on the date on which a duly authorized representative of the Borrower acknowledges receipt of such written notice, or (iii) on the day after sending such written notice to the Borrower by a commonly recognized overnight courier service, such as Federal Express, Purolator, UPS or the like, or (iv) on the third day after sending such written notice to the Borrower by facsimile (to both numbers set forth in Section 16.7) or by depositing the same in the United States mail, postage prepaid, for delivery to the Borrower.Debtor's business;
(b) Failure to observe, perform and comply with A tax lien or notice thereof shall have been filed against any of the obligations evidenced Debtor's property or secured by a Loan Documentproceeding in bankruptcy, other than as provided in Sections 9.1(a) above; provided that such default has not been cured prior to the expiration of thirty (30) days following the date upon which the Lender gives the Borrower written Notice of Default.
(c) Failure to duly and punctually pay, observe and discharge all Indebtedness and other obligations of the Borrower to any third party, unless the same is being contested in good faith by appropriate proceedings and the Borrower has set aside on its books adequate reserves with respect to such Indebtedness insolvency or other obligations.
(d) The discovery by the Lender of any material inaccuracy in any statement, assurance, representation, covenant, warranty, term or condition by the Borrower contained in this Agreement or in any document delivered or to receivership shall be delivered by or on behalf of the Borrower pursuant to this Agreement, which inaccuracy would result in a Material Adverse Effect (except that inaccuracies in the Borrower's Due Diligence Documents attributable to the fault or neglect of third-parties shall not constitute a breach of this Section 9.1(d)), or in any other Loan Document, or in any other agreement between the Borrower and the Lender.
(e) The filing of a petition instituted by or against the Borrower Debtor or any Affiliate seeking relief under the Federal Bankruptcy Code, 11 U.S.C. ss. 101, et seq., and any amendments thereto, Debtor's property or any similar law or regulation, whether federal, state or local, not dismissed within 30 days.
(f) The commencement of a proceeding by or against the Borrower or any Affiliate under any statute or other law providing for an assignment shall have been made by Debtor for the benefit of creditors;
(c) In the event that Secured Party deems itself insecure for any reason or the Vehicles are deemed by Secured Party to be in danger of misuse, loss, seizure or confiscation or other disposition not authorized by this Agreement;
(d) Termination of any franchise authorizing Debtor to sell Vehicles;
(e) A misrepresentation by Debtor for the appointment purpose of obtaining credit or an extension of credit or a receiverrefusal by Debtor to execute documents relating to the Collateral and/or Secured Party's security interest therein or to furnish financial information to Secured Party at reasonable intervals or to permit persons designated by Secured Party to examine Debtor's books or records and to make periodic inspections of the Collateral; or
(f) Debtor, without Secured Party's prior written consent, shall guarantee, endorse or otherwise become surety for or upon the obligations of others except as may be done in the ordinary course of Debtor's business, shall transfer or otherwise dispose of any proprietary, partnership or share interest Debtor has in his business, or all or substantially all of the assets thereof, shall enter into any merger or consolidation, if a corporation, or shall make any substantial disbursements or use of funds of Debtor's business, except as may be done in the ordinary course of Debtor's business, or assign this Agreement in whole or in part or any obligation hereunder. Upon the occurrence of an Event of Default, Secured Party may take immediate possession of said Vehicles without demand or further notice and without legal process; and for the purpose and furtherance thereof, Debtor shall, if Secured Party so requests, assemble the Vehicles and make them available to Secured Party at a reasonably convenient place designated by Secured Party and Secured Party shall have the right, and Debtor hereby authorizes and empowers Secured Party to enter upon the premises wherever said Vehicles may be, to remove same. In addition, Secured Party or its assigns shall have all the rights and remedies applicable under the Uniform Commercial Code or under any other similar statute or at common law or regulationin equity or under this Agreement. Such rights and remedies shall be cumulative. Debtor hereby agrees that it shall pay all expenses and reimburse Secured Party for any expenditures, whether federalincluding reasonable attorneys' fees and legal expenses, state or local, not dismissed within 30 days.
(g) The garnishment, attachment, levy or other similar action taken by or on behalf in connection with Secured Party's exercise of any creditor of the Borrower, any Affiliate, or any of their respective properties which could have a Material Adverse Effect.
(h) Any change in control of the Borrower, Madison Liquidity Investors 104, MACG from that disclosed in Section 2 of its rights and remedies under this Agreement.
9.2 The Lender may, at its option, terminate its obligation to make advances of the Loan, without notice to the Borrower:
(a) upon the occurrence and continuance of any Event of Default set forth in subsections 9.1
(a) through 9.1(h) above; or (b) upon the occurrence and continuance of any event which, with the giving of notice or the lapse of time, or both, would constitute an Event of Default or (C) upon the death or disability of ▇▇▇▇▇ ▇.
Appears in 1 contract
Sources: Security Agreement and Master Credit Agreement (Sonic Automotive Inc)
Events of Default and Remedies. 9.1 The Without notice or demand (which are hereby waived), the entire unpaid principal balance of and all accrued interest on this Note shall immediately become due and payable at the option of the holder hereof upon the occurrence of any one or more of the following events shall constitute of default (individually or collectively, herein called an "Event of Default" under this Agreement, the occurrence of which shall entitle the Lender to pursue any and all rights and remedies, legal and equitable, available to it under any Loan Document or otherwise. The Occurrence of an Event Default under this Agreement shall constitute a default under each and every other Loan Document. The Lender's rights and remedies are cumulative and may be exercised concurrently or successively from time to time. Any action by the Lender against any property or party shall not serve to release or discharge any other security, property or party in connection with this transaction. The Events of Default are as follows:"):
(a) Failure the failure or refusal of Maker to pay all or any part of the principal of or accrued interest on the Borrower's present or future indebtedness to the Lender, whether or not arising pursuant to this Agreement, Note as and when and as the same shall be becomes due and payablepayable in accordance with the terms hereof;
(b) the occurrence of a breach, whether by acceleration default, or otherwise; provided event of default under Sections 8.4, 8.6 or 8.7 of that certain Securities Purchase Agreement dated as of September 25, 1996 (the "Securities Purchase Agreement") between Payee and Maker;
(c) the occurrence of a breach, default, or event of default under the Securities Purchase Agreement (other than as specified in Section 2(b) above), and the continuation of such breach, default, or event of default has not been cured prior to the expiration for a period of ten (10) twenty days following the date upon which the Lender gives the Borrower written Notice of Default. In this Section 9, Notice of Default shall be deemed to have been given after (i) on the date of personal delivery of such written notice thereof is delivered by Payee to a Guarantor, Maker or (ii) on the date on which a duly authorized representative failure of Maker to deliver the compliance certificate required by Section 8.2(b) of the Borrower acknowledges receipt of such written notice, Securities Purchase Agreement or (iii) on the day after sending date specified in the compliance certificate as the date of the occurrence of such written notice to the Borrower by a commonly recognized overnight courier servicebreach, such as Federal Express, Purolator, UPS or the likedefault, or (iv) on event of default, whichever is the third day after sending such written notice earliest to the Borrower by facsimile (to both numbers set forth in Section 16.7) or by depositing the same in the United States mail, postage prepaid, for delivery to the Borrower.
(b) Failure to observe, perform and comply with any of the obligations evidenced or secured by a Loan Document, other than as provided in Sections 9.1(a) above; provided that such default has not been cured prior to the expiration of thirty (30) days following the date upon which the Lender gives the Borrower written Notice of Default.
(c) Failure to duly and punctually pay, observe and discharge all Indebtedness and other obligations of the Borrower to any third party, unless the same is being contested in good faith by appropriate proceedings and the Borrower has set aside on its books adequate reserves with respect to such Indebtedness or other obligations.occur;
(d) The discovery any representation or warranty made by Pledgor (as defined in those certain Pledge and Security Agreements (herein so called), dated on or about the Lender of any material inaccuracy in any statementdate hereof, assurance, representation, covenant, warranty, term or condition executed by the Borrower contained in this Agreement or in any document delivered or to be delivered by or on behalf Payee and each of the Borrower pursuant to this Agreement, which inaccuracy would result in a Material Adverse Effect (except that inaccuracies in the Borrower's Due Diligence Documents attributable to the fault or neglect of third-parties shall not constitute a breach of this Section 9.1(d)), or in any other Loan Document, or in any other agreement between the Borrower and the Lender.
(e) The filing of a petition by or against the Borrower or any Affiliate seeking relief under the Federal Bankruptcy Code, 11 U.S.C. ss. 101, et seq., and any amendments thereto, or any similar law or regulation, whether federal, state or local, not dismissed within 30 days.
(f) The commencement of a proceeding by or against the Borrower or any Affiliate under any statute or other law providing for an assignment for the benefit of creditorsMayn▇▇▇ ▇▇▇ily Trust, the appointment of a receiver, or any other similar law or regulation, whether federal, state or local, not dismissed within 30 days.
(g) The garnishment, attachment, levy or other similar action taken by or on behalf of any creditor of the Borrower, any Affiliate, or any of their respective properties which could have a Material Adverse Effect.
(h) Any change in control of the Borrower, Madison Liquidity Investors 104, MACG from that disclosed in Section 2 of this Agreement.
9.2 The Lender may, at its option, terminate its obligation to make advances of the Loan, without notice to the Borrower:
(a) upon the occurrence and continuance of any Event of Default set forth in subsections 9.1
(a) through 9.1(h) above; or (b) upon the occurrence and continuance of any event which, with the giving of notice or the lapse of time, or both, would constitute an Event of Default or (C) upon the death or disability of John ▇. ▇▇▇▇▇ ▇▇▇st, and Tim ▇▇▇▇▇▇), or any of such Pledgor's officers or trustees, under or in connection with any of the Pledge and Security Agreements shall prove to have been incorrect in any material respect when made;
(e) the occurrence of breach or event of default under that certain Voting Agreement dated on or about the date hereof among Will▇▇▇ ▇. ▇▇▇▇, ▇▇s spouse, the Will▇▇▇ ▇▇▇▇ ▇▇▇irement Trust, B&G Partnership, Ltd., BCG Partnership, Ltd. and Maker;
(f) Maker, Pledgor or any guarantor of this Note shall (i) become insolvent within the meaning of the Bankruptcy Code of the United States, as amended, (ii) admit in writing its or his inability to pay or otherwise fail to pay its or his debts generally as they become due, (iii) voluntarily seek, consent to, or acquiesce in the benefit or benefits of any Debtor Relief Law (meaning the Bankruptcy Code of the United States, as amended, and all other applicable liquidation, conservatorship, bankruptcy, moratorium, rearrangement, receivership, insolvency, reorganization, or similar debtor relief laws from time to time in effect affecting the rights of creditors generally), or (iv) be made the subject of any proceeding provided for by any Debtor Relief Law that could suspend or otherwise affect any of the rights of the holder hereof; 26
(g) the nonpayment when due of any other material indebtedness owed by Maker, or the occurrence of any event under any document or instrument evidencing, securing, or executed in connection with any such indebtedness which could give the holder thereof the right to declare such indebtedness or any part thereof due prior to its scheduled maturity;
(h) the discovery by the holder hereof that any statement, representation, or warranty made by Maker in any writing, document, or instrument ever delivered to the holder hereof in connection herewith was at the time made false, misleading, or erroneous in any material respect;
(i) the occurrence of a breach, default, or event of default under any security agreement, deed of trust, mortgage, assignment, or other collateral document or instrument executed and delivered by Maker (other than as specified above in this Section 2), any Pledgor or any guarantor in connection herewith and the continuation of such default or event of default for a period of twenty days after notice thereof from Payee to Maker;
(j) any guarantor or Pledgor that is an entity dissolves; a final judgment is entered against Maker, Pledgor or any guarantor of this Note for the payment of money in excess of $25,000 in the aggregate and remains unsatisfied for thirty days after entry, or any property of Maker or any such guarantor or Pledgor is attached, garnished or otherwise made such to legal process; or
(k) Robe▇▇ ▇▇▇▇▇▇▇ ▇▇ no longer the Chief Executive Officer of Maker. Upon the occurrence of an Event of Default, the holder of this Note may (a) offset against this Note any sum or sums owed by the holder hereof to Maker or any guarantor of this Note, (b) foreclose any or all liens or security interests given to secure the repayment of the indebtedness evidenced by this Note, and (c) proceed to protect and enforce its rights either by suit in equity and/or by action at law, or by other appropriate proceedings, whether for the specific performance of any covenant or agreement contained in this Note or any document or instrument executed and delivered by Maker or any guarantor of this Note in connection with this Note or in aid of the exercise of any power or right granted by this Note or any document or instrument executed and delivered by Maker or any guarantor of this Note in connection with this Note or to enforce any other legal or equitable right of the holder of this Note.
Appears in 1 contract
Sources: Securities Purchase Agreement (Internet America Inc)
Events of Default and Remedies. 9.1 The following events shall constitute an "Event In the event Lessee or any ------------------------------ guarantor of Default" Lessee's obligation under this Agreement, the occurrence of which Lease shall entitle the Lender to pursue any and all rights and remedies, legal and equitable, available to it under any Loan Document or otherwise. The Occurrence of an Event Default under this Agreement shall constitute a default under each and every other Loan Document. The Lender's rights and remedies are cumulative and may be exercised concurrently or successively from time to time. Any action by the Lender against any property or party shall not serve to release or discharge any other security, property or party in connection with this transaction. The Events of Default are as follows:
(a) Failure fail to pay the principal make any rental or interest on the Borrower's present or future indebtedness to the Lender, whether or not arising pursuant to this Agreement, when and as other payment due hereunder within ten days after the same shall be due and payable, whether by acceleration or otherwise; provided that such default has not been cured prior to the expiration of ten (10) days following the date upon which the Lender gives the Borrower written Notice of Default. In this Section 9, Notice of Default shall be deemed to have been given (i) on the date of personal delivery of such written notice to a Guarantorbecome due, or (iib) on the date on which a duly authorized representative of the Borrower acknowledges receipt of such written noticeadmit its inability to pay its debts, or (iii) on the day after sending such written notice to the Borrower by a commonly recognized overnight courier service, such as Federal Express, Purolator, UPS or the like, or (iv) on the third day after sending such written notice to the Borrower by facsimile (to both numbers set forth in Section 16.7) or by depositing the same in the United States mail, postage prepaid, for delivery to the Borrower.
(b) Failure to observe, perform and comply with any of the obligations evidenced or secured by a Loan Document, other than as provided in Sections 9.1(a) above; provided that such default has not been cured prior to the expiration of thirty (30) days following the date upon which the Lender gives the Borrower written Notice of Default.
(c) Failure to duly and punctually pay, observe and discharge all Indebtedness and other obligations of the Borrower to any third party, unless the same is being contested in good faith by appropriate proceedings and the Borrower has set aside on its books adequate reserves with respect to such Indebtedness or other obligations.
(d) The discovery by the Lender of any material inaccuracy in any statement, assurance, representation, covenant, warranty, term or condition by the Borrower contained in this Agreement or in any document delivered or to be delivered by or on behalf of the Borrower pursuant to this Agreement, which inaccuracy would result in a Material Adverse Effect (except that inaccuracies in the Borrower's Due Diligence Documents attributable to the fault or neglect of third-parties shall not constitute a breach of this Section 9.1(d)), or in any other Loan Document, or in any other agreement between the Borrower and the Lender.
(e) The filing of a petition by or against the Borrower or any Affiliate seeking relief under the Federal Bankruptcy Code, 11 U.S.C. ss. 101, et seq., and any amendments thereto, or any similar law or regulation, whether federal, state or local, not dismissed within 30 days.
(f) The commencement of a proceeding by or against the Borrower or any Affiliate under any statute or other law providing for make an assignment for the benefit of its creditors, or (d) have its leasehold estate taken upon execution or other process of law against Lessee, except eminent domain, or (e) abandon the appointment Premises during the Term hereof, or (f) have any receiver appointed in any proceeding commenced against it based upon its insolvency and if such receiver is not discharged within ninety (90) days after appointment, or (g) breach or fail to perform any of a receiverthe agreements, covenants and/or provisions herein or comply with any applicable rule or regulation pertaining to the Building or the Project, other than the agreement to pay /s/ SHA JR rental or any other similar law payment due hereunder, and Lessee fails to use its best efforts to cure such breach or regulation, whether federal, state failure within fifteen days after written notice from Lessor or local, not dismissed within 30 days.
(g) The garnishment, attachment, levy or other similar action taken by or on behalf of any creditor of the Borrower, any Affiliate, or any of their respective properties which could have a Material Adverse Effect.
(h) Any change in control any proceedings are flied against Lessee or any guarantor of this Lease under the Bankruptcy code or any similar provisions of any future federal bankruptcy law, or (i) fail to vacate the Premises immediately upon the expiration of the Borrower, Madison Liquidity Investors 104, MACG from that disclosed in Section 2 Term or the earlier termination of this Agreement.
9.2 The Lender mayLease, at its optionby lapse of time or otherwise; then Lessor, terminate its obligation to make advances of in any such event(s), shall have the Loan, without notice to the Borroweroption to:
(aI) upon the occurrence and continuance of any Event of Default set forth in subsections 9.1
(a) through 9.1(h) above; or (b) upon the occurrence and continuance of any event which, with the giving of notice or the lapse of time, or both, would constitute an Event of Default or (C) upon the death or disability of ▇▇▇▇▇ ▇for rents as they become due;
(II) Terminate this Lease, resume possession of the Premises (together with all additions, alterations, fixtures and improvements thereto) for its own account and recover immediately from Lessee any and all sums and damages for violation of Lessee's obligations hereunder in existence or due at the time of termination and damages for Lessee's default in an amount equal to the difference between the Rent for which provision is made in this Lease and fair rental value of the Premises for the remainder of the Lease term, together with all other charges, rental payments, costs and expenses herein agreed to be paid by Lessee, all costs and expenses of Lessor in connection with any attempts to re-lease or relet the Premises (including, but not limited to, broker's fees, advertising costs and cleaning expenses), the costs of recovering the Premises, and the costs of repairs and renovations reasonably necessary in connection with any re-leasing or reletting;
(III) Resume possession and re-lease or re-rent the Premises for the remainder of the Lease term for the account of Lessee and recover from Lessee at the end of the Lease term or at the time each payment of rent becomes due under this Lease (adjusted to present value), as the Lessor may elect, the difference between the rent for which provision is made in this Lease and the rent received on the re-leasing or re-renting, together with all costs and expenses of Lessor in connection with such re-leasing or re- rental and collection of rent and the cost of all repairs or renovations reasonably necessary in connection with the releasing or re-rental, and if this option is exercised, Lessor shall, in addition, be entitled to recover from Lessee immediately any other damages occasioned by or resulting from the abandonment or a breach or default other than a default in the payment of rent;
(IV) Accelerate the whole or any part of Rent, Additional Rent and Operating Costs for the entire unexpired balance of the Term, as well as all other charges, payments, costs and expenses to be paid by Lessee hereunder, including but not limited to damages for violation of Lessee's obligations hereunder in existence at the time of acceleration, so that all sums due and payable under this Lease will be treated as payable in advance on the date of acceleration and this Lease will remain in effect. For the purposes of determining the amounts due upon acceleration, Rent, Additional Rent and Lessee's pro rata share of Operating Costs shall be treated as fixed at the levels in effect on the date of acceleration for the remaining term of this Lease; but to the extent required by law, the total amount so accelerated will be reduced to present value; or
(V) Without terminating this Lease, enter upon the Premises, without being liable for prosecution or any claim for damages therefor (whether caused by the negligence of Lessor or otherwise), and do whatever Lessee is obligated to do under the terms of this Lease, in which event Lessee shall reimburse Lessor on demand for any expenses which Lessor may incur in thus effecting compliance with the terms of this Lease. Notwithstanding the foregoing, with respect to re-lease or re-renting the Premises, Lessor and Lessee agree that Lessor shall only be required to use the same efforts Lessor then uses to lease other properties Lessor owns or manages (or if the Premises is then managed for Lessor, then Lessor shall instruct such manager to use the same efforts such manager then uses to lease other space or properties which it owns or manages); provided, however, that Lessor (or its manager) shall not be required to give any preference or priority to the showing or leasing of the Premises over any other space that Lessor (or its manager) may be leasing or have available and may place a suitable prospective tenant in any such available space regardless of when such alternative space becomes available; provided, further, that Lessor shall not be required to observe any instruction given by Lessee about such re-letting or accept any tenant unless such offered tenant has a creditworthiness acceptable to Lessor, leases the entire Premises, agrees to use the Premises in a manner consistent with the Lease, and leases the Premises at the same or greater rent, for no more than the current term and on the same terms and conditions of this Lease without the expenditure by Lessor for tenant improvements or broker's commissions. /s/ SHA JR The remedies for which provision is made in this Article shall not be exclusive and in addition thereto Lessor may pursue such other remedies as are now or hereinafter provided by law, equity or statute in the event of any breach, default or abandonment by Lessee.
Appears in 1 contract
Events of Default and Remedies. 9.1 The Termination - Time is of the essence herein and it is understood and agreed that Secured Party may, at its option and notwithstanding any inconsistent terms in any agreement between Debtor and Chrysler Corporation and/or Secured Party with respect to the receivable underlying any Receivable Purchase Advance by Secured Party, terminate this Agreement, refuse to advance funds hereunder, convert outstanding installment payment obligations to payment on Vehicle sale obligations, and declare the aggregate of all Advances outstanding hereunder immediately due and payable upon the occurrence of any of the following events shall constitute (each hereinafter called an "Event of Default" "), and that Debtor's liabilities under this sentence shall constitute additional obligations of Debtor secured under this Agreement, the occurrence of which shall entitle the Lender to pursue any and all rights and remedies, legal and equitable, available to it under any Loan Document or otherwise. The Occurrence of an Event Default under this Agreement shall constitute a default under each and every other Loan Document. The Lender's rights and remedies are cumulative and may be exercised concurrently or successively from time to time. Any action by the Lender against any property or party shall not serve to release or discharge any other security, property or party in connection with this transaction. The Events of Default are as follows:.
(a) Failure Debtor shall fail to pay make any payment to Secured Party, whether constituting the principal amount of any Advance, interest thereon or interest on the Borrower's present or future indebtedness to the Lender, whether or not arising pursuant to this Agreementany other payment due hereunder, when and as due in accordance with the same terms of this Agreement or with any demand permitted to be made by Secured Party under this Agreement or any Promissory Note, or shall fail to pay when due any other amount owing to Secured Party under this Agreement or any Promissory Note, or shall fail in the due performance or compliance with any other term or condition hereof or thereof, or shall be due and payable, whether by acceleration in default in the payment of any liabilities constituting indebtedness for money borrowed or otherwise; provided that such default has not been cured prior the deferred payment of the purchase price of property or a rental payment with respect to property material to the expiration conduct of ten (10) days following the date upon which the Lender gives the Borrower written Notice of Default. In this Section 9, Notice of Default shall be deemed to have been given (i) on the date of personal delivery of such written notice to a Guarantor, or (ii) on the date on which a duly authorized representative of the Borrower acknowledges receipt of such written notice, or (iii) on the day after sending such written notice to the Borrower by a commonly recognized overnight courier service, such as Federal Express, Purolator, UPS or the like, or (iv) on the third day after sending such written notice to the Borrower by facsimile (to both numbers set forth in Section 16.7) or by depositing the same in the United States mail, postage prepaid, for delivery to the Borrower.Debtor's business;
(b) Failure to observe, perform and comply with A tax lien or notice thereof shall have been filed against any of the obligations evidenced Debtor's property or secured by a Loan Documentproceeding in bankruptcy, other than as provided in Sections 9.1(a) above; provided that such default has not been cured prior to the expiration of thirty (30) days following the date upon which the Lender gives the Borrower written Notice of Default.
(c) Failure to duly and punctually pay, observe and discharge all Indebtedness and other obligations of the Borrower to any third party, unless the same is being contested in good faith by appropriate proceedings and the Borrower has set aside on its books adequate reserves with respect to such Indebtedness insolvency or other obligations.
(d) The discovery by the Lender of any material inaccuracy in any statement, assurance, representation, covenant, warranty, term or condition by the Borrower contained in this Agreement or in any document delivered or to receivership shall be delivered by or on behalf of the Borrower pursuant to this Agreement, which inaccuracy would result in a Material Adverse Effect (except that inaccuracies in the Borrower's Due Diligence Documents attributable to the fault or neglect of third-parties shall not constitute a breach of this Section 9.1(d)), or in any other Loan Document, or in any other agreement between the Borrower and the Lender.
(e) The filing of a petition instituted by or against the Borrower Debtor or any Affiliate seeking relief under the Federal Bankruptcy Code, 11 U.S.C. ss. 101, et seq., and any amendments thereto, Debtor's property or any similar law or regulation, whether federal, state or local, not dismissed within 30 days.
(f) The commencement of a proceeding by or against the Borrower or any Affiliate under any statute or other law providing for an assignment shall have been made by Debtor for the benefit of creditors;
(c) In the event that Secured Party deems itself insecure for any reason or the Vehicles are deemed by Secured Party to be in danger of misuse, loss, seizure or confiscation or other disposition not authorized by this Agreement;
(d) Termination of any franchise authorizing Debtor to sell Vehicles;
(e) A misrepresentation by Debtor for the appointment purpose of obtaining credit or an extension of credit or a receiverrefusal by Debtor to execute documents relating to the Collateral and/or Secured Party's security interest therein or to furnish financial information to Secured Party at reasonable intervals or to permit persons designated by Secured Party to examine Debtor's books or records and to make periodic inspections of the Collateral; or
(f) Debtor, without Secured Party's prior written consent, shall guarantee, endorse or otherwise become surety for or upon the obligations of others except as may be done in the ordinary course of Debtor's business, shall transfer or otherwise dispose of any proprietary, partnership or share interest Debtor has in his business, or all or substantially all of the assets thereof, shall enter into any merger or consolidation, if a corporation, or shall make any substantial disbursements or use of funds of Debtor's business, except as may be done in the ordinary course of Debtor's business, or assign this Agreement in whole or in part or any obligation hereunder. Upon the occurrence of an Event of Default, Secured Party may take immediate possession of said Vehicles without demand or further notice and without legal process; and for the purpose and furtherance thereof, Debtor shall, if Secured Party so requests, assemble the Vehicles and make them available to Secured Party at a reasonably convenient place designated by Secured Party and Secured Party shall have the right, and Debtor hereby authorizes and empowers Secured Party to enter upon the premises wherever said Vehicles may be, to remove same. In addition, Secured Party or its assigns shall have all the rights and remedies applicable under the Uniform Commercial Code or under any other similar statute or at common law or regulationin equity or under this Agreement. Such rights and remedies shall be cumulative. Debtor hereby agrees that it shall pay all expenses and reimburse Secured Party for any expenditures, whether federalincluding reasonable attorneys' fees and legal expenses, state or local, not dismissed within 30 days.
(g) The garnishment, attachment, levy or other similar action taken by or on behalf in connection with Secured Party's exercise of any creditor of the Borrower, any Affiliate, or any of their respective properties which could have a Material Adverse Effect.
(h) Any change in control of the Borrower, Madison Liquidity Investors 104, MACG from that disclosed in Section 2 of its rights and remedies under this Agreement.
9.2 The Lender may, at its option, terminate its obligation to make advances of the Loan, without notice to the Borrower:
(a) upon the occurrence and continuance of any Event of Default set forth in subsections 9.1
(a) through 9.1(h) above; or (b) upon the occurrence and continuance of any event which, with the giving of notice or the lapse of time, or both, would constitute an Event of Default or (C) upon the death or disability of ▇▇▇▇▇ ▇.
Appears in 1 contract
Sources: Security Agreement and Master Credit Agreement (Sonic Automotive Inc)
Events of Default and Remedies. 9.1 The (a) Each of the following events items shall constitute an "“Event of Default" under this Agreement, the occurrence of which shall entitle the Lender to pursue any and all rights and remedies, legal and equitable, available to it under any Loan Document or otherwise. The Occurrence of an Event Default under this Agreement shall constitute a default under each and every other Loan Document. The Lender's rights and remedies are cumulative and may be exercised concurrently or successively from time to time. Any action by the Lender against any property or party shall not serve to release or discharge any other security, property or party in connection with this transaction. The Events of Default are as follows:
(a) Failure to pay the principal or interest on the Borrower's present or future indebtedness to the Lender, whether or not arising pursuant to this Agreement, when and as the same shall be due and payable, whether by acceleration or otherwise; provided that such default has not been cured prior to the expiration of ten (10) days following the date upon which the Lender gives the Borrower written Notice of Default. In this Section 9, Notice of Default shall be deemed to have been given ”: (i) on the date if Maker fails to make a payment of personal delivery of such written notice to a Guarantorany Secured Obligations, including, without limitation, any interest or principal due hereunder when due, (ii) on the date on which a duly authorized representative if Maker fails to observe or perform any term of this Note or if Guarantor (as defined below) fails to observe or perform any term of the Borrower acknowledges receipt of such written noticePersonal Guaranty (as defined below), or (iii) on the day after sending such written notice if Maker or Guarantor becomes insolvent or unable to the Borrower by a commonly recognized overnight courier servicepay its debts as they become due, such as Federal Express, Purolator, UPS or the like, or (iv) on the third day after sending such written notice to the Borrower by facsimile (to both numbers set forth in Section 16.7) if Maker or by depositing the same in the United States mail, postage prepaid, for delivery to the Borrower.
(b) Failure to observe, perform and comply with any of the obligations evidenced or secured by a Loan Document, other than as provided in Sections 9.1(a) above; provided that such default has not been cured prior to the expiration of thirty (30) days following the date upon which the Lender gives the Borrower written Notice of Default.
(c) Failure to duly and punctually pay, observe and discharge all Indebtedness and other obligations of the Borrower to any third party, unless the same is being contested in good faith by appropriate proceedings and the Borrower has set aside on its books adequate reserves with respect to such Indebtedness or other obligations.
(d) The discovery by the Lender of any material inaccuracy in any statement, assurance, representation, covenant, warranty, term or condition by the Borrower contained in this Agreement or in any document delivered or to be delivered by or on behalf of the Borrower pursuant to this Agreement, which inaccuracy would result in a Material Adverse Effect (except that inaccuracies in the Borrower's Due Diligence Documents attributable to the fault or neglect of third-parties shall not constitute a breach of this Section 9.1(d)), or in any other Loan Document, or in any other agreement between the Borrower and the Lender.
(e) The filing of a petition by or against the Borrower or any Affiliate seeking relief under the Federal Bankruptcy Code, 11 U.S.C. ss. 101, et seq., and any amendments thereto, or any similar law or regulation, whether federal, state or local, not dismissed within 30 days.
(f) The commencement of a proceeding by or against the Borrower or any Affiliate under any statute or other law providing for Guarantor makes an assignment for the benefit of creditors, consents to the appointment of a custodian, receiver, or trustee for itself or for a substantial part of its assets, or commences any other proceeding under any bankruptcy, reorganization, liquidation, insolvency or similar law laws of any jurisdiction; (v) if Maker or regulationGuarantor fails to remove any custodian, whether federalreceiver, state or localtrustee that is appointed for Maker or Guarantor, not dismissed as the case may be, or for a substantial part of Maker’s or Guarantor’s assets, as the case may be, without its consent within 45 days after such appointment; (vi) if Maker or Guarantor fails to dismiss proceedings that are commenced against Maker or Guarantor, as the case may be, under any bankruptcy, reorganization, liquidation, or similar laws of any jurisdiction within 60 days after commencement of such proceedings; or (vii) fails to satisfy any final judgment that is entered against Maker within 30 days.
(g) The garnishment, attachment, levy or other similar action taken by or on behalf of any creditor of the Borrower, any Affiliate, or any of their respective properties which could have a Material Adverse Effect.
(h) Any change in control of the Borrowerattachment, Madison Liquidity Investors 104, MACG from that disclosed in Section 2 of this Agreement.
9.2 The Lender may, at its option, terminate its obligation to make advances of the Loan, without notice to the Borrower:
(a) upon the occurrence and continuance of any Event of Default set forth in subsections 9.1
(a) through 9.1(h) above; or (b) upon the occurrence and continuance of any event which, with the giving of notice or the lapse of timelevy, or bothgarnishment is issued against any material part of property. As used in this Section 9(a), would constitute an Event of Default or (C) upon the death or disability of term “Guarantor” means ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ and the term “Personal Guaranty” means that certain Guaranty of even date herewith executed by ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ in favor of the Holders, as the same now exists or as it may be amended, amended and restated, modified or supplemented from time to time.
Appears in 1 contract
Events of Default and Remedies. 9.1 The Section 9.1. Any one or more of the following events shall constitute an "Event of Default" under this Agreement, the occurrence of which shall entitle the Lender to pursue any and all rights and remedies, legal and equitable, available to it under any Loan Document or otherwise. The Occurrence of an Event Default under this Agreement shall constitute a default under each and every other Loan Document. The Lender's rights and remedies are cumulative and may be exercised concurrently or successively from time to time. Any action by the Lender against any property or party shall not serve to release or discharge any other security, property or party in connection with this transaction. The Events of Default are as followshereunder:
(a) Failure to pay default in the payment when due of any principal on any Note or Application, whether at the stated maturity thereof or at any other time provided for in this Agreement; or default in the payment when due of any interest on any Note or Application or fee, charge or other amount payable by the Borrower's present Company hereunder or future indebtedness under any other Loan Document and the continuance of such default for 2 Business Days after notice thereof to the Company from the Administrative Agent or any Lender;
(b) default in the observance or performance of any covenant set forth in Sections 8.10, whether 8.11, 8.12 or 8.13 hereof;
(c) default in the observance or performance of any other provision hereof or any of the other Loan Documents which is not arising pursuant remedied within 20 days after written notice thereof to this Agreement, the Company by the Administrative Agent or any Lender or by the holder of any Note;
(d) default shall occur in the payment when and as the same shall be due and payable, (whether by lapse of time, acceleration or otherwise; ) of any indebtedness (including as such all obligations included in Consolidated Total Indebtedness as such term is defined herein) aggregating in excess of $10,000,000 issued, assumed or guaranteed by the Company or any Subsidiary or any other event of default shall occur with respect to any such indebtedness beyond any period of grace provided that therefor if the effect thereof is to permit the maturity of such default indebtedness to be accelerated or to permit the holders thereof to elect a majority of the Board of Directors of the Company;
(e) any representation or warranty made herein or in any of the other Loan Documents or in any statement or certificate furnished pursuant hereto or thereto, or in connection with any advance or issuance made hereunder or by any person in connection with the transactions contemplated hereby, proves untrue in any material respect as of the date of the issuance or making thereof, and shall not be made good within 30 days after notice thereof to the Company by the Administrative Agent;
(f) any judgment or judgments, writ or writs or warrant or warrants or attachment, or any similar process or processes in an aggregate amount in excess of $15,000,000 more than the amount, if any, covered by insurance (as to which the insurer has not been cured prior disclaimed or disputed in writing its obligations for coverage or otherwise failed to pay when due) shall be entered or filed against the Company or any Subsidiary or against any of the property or assets of any of them and remains undischarged, unvacated, unbonded or unstayed for a period of 30 days;
(g) any event occurs or condition exists which is specified as an event of default under any of the other Loan Documents after the expiration of ten any applicable notice or grace periods; (10h) days following any of the date upon which Loan Documents shall for any reason not be or shall cease to be in full force and effect, or any of the Lender gives Loan Documents is declared to be null and void, or the Borrower written Notice Company or any Guarantor takes any action for the purpose of Default. In this Section 9repudiating or rescinding any Loan Document executed by it or the obligations of such Person thereunder;
(i) 50% or more of the issued and outstanding Voting Stock of the Company is owned or controlled, Notice either legally or beneficially, by any Person or by any group of Default Persons affiliated with each other or acting in concert (Persons shall not be deemed to have been given acted in concert merely as a result of voting the same way or taking the same position if the decision to vote or to take a position were made independently and without prior consultation) other than ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇ and/or his wife and/or his descendants and/or trusts or estates for the benefit of his wife and/or descendants;
(ij) on the date Company or any Material Subsidiary or any Material Foreign Subsidiary becomes insolvent or bankrupt or bankruptcy, reorganization, arrangement, insolvency or liquidation proceedings or other proceedings for relief under any bankruptcy law or laws for the relief of personal delivery debtors are instituted against the Company or any Material Subsidiary or any Material Foreign Subsidiary and are not dismissed within 60 days after such institution or a decree or order of a court having jurisdiction in the premises for the appointment of a trustee or receiver or custodian for the Company or any Material Subsidiary or any Material Foreign Subsidiary or for the major part of any of their property is entered and the trustee or receiver or custodian appointed pursuant to such decree or order is not discharged within 60 days after such appointment; or
(k) the Company or any Material Subsidiary or any Material Foreign Subsidiary shall institute bankruptcy, reorganization, arrangement, insolvency or liquidation proceedings or other proceedings for relief under any bankruptcy law or laws for the relief of debtors or shall consent to the institution of such written notice to a Guarantor, proceedings against it by others or (ii) on the date on which a duly authorized representative of the Borrower acknowledges receipt of such written notice, or (iii) on the day after sending such written notice to the Borrower by a commonly recognized overnight courier service, such as Federal Express, Purolator, UPS or the like, or (iv) on the third day after sending such written notice to the Borrower by facsimile (to both numbers set forth in Section 16.7) or by depositing the same in the United States mail, postage prepaid, for delivery to the Borrower.
(b) Failure to observe, perform and comply with any of the obligations evidenced or secured by a Loan Document, other than as provided in Sections 9.1(a) above; provided that such default has not been cured prior to the expiration of thirty (30) days following the date upon which the Lender gives the Borrower written Notice of Default.
(c) Failure to duly and punctually pay, observe and discharge all Indebtedness and other obligations of the Borrower to any third party, unless the same is being contested in good faith by appropriate proceedings and the Borrower has set aside on its books adequate reserves with respect to such Indebtedness or other obligations.
(d) The discovery by the Lender entry of any material inaccuracy in decree or order adjudging it bankrupt or insolvent or approving as filed any statement, assurance, representation, covenant, warranty, term petition seeking reorganization under any bankruptcy or condition by the Borrower contained in this Agreement or in any document delivered or to be delivered by or on behalf of the Borrower pursuant to this Agreement, which inaccuracy would result in a Material Adverse Effect (except that inaccuracies in the Borrower's Due Diligence Documents attributable to the fault or neglect of third-parties shall not constitute a breach of this Section 9.1(d)), or in any other Loan Document, or in any other agreement between the Borrower and the Lender.
(e) The filing of a petition by or against the Borrower or any Affiliate seeking relief under the Federal Bankruptcy Code, 11 U.S.C. ss. 101, et seq., and any amendments thereto, or any similar law or regulation, whether federal, state shall apply for or local, not dismissed within 30 days.
(f) The commencement shall consent to the appointment of a proceeding by receiver or against trustee or custodian for it or for the Borrower major part of its property or any Affiliate under any statute or other law providing for shall make an assignment for the benefit of creditors, creditors or shall admit in writing its inability to pay its debts as they mature or shall take any corporate action in contemplation or in furtherance of any of the appointment of a receiver, or any other similar law or regulation, whether federal, state or local, not dismissed within 30 days.foregoing purposes; or
(gl) The garnishment, attachment, levy any event occurs or other similar action taken by or on behalf condition exists which is specified as an "Event of any creditor of Default" under the Borrower, any Affiliate, or any of their respective properties which could have a Material Adverse Effect.
(h) Any change in control of the Borrower, Madison Liquidity Investors 104, MACG from that disclosed in Section 2 of this 364-Day Credit Agreement.
9.2 The Lender maySection 9.2. When any Event of Default described in subsections 9.1(a) to 9.1(i), at its optionboth inclusive, terminate its obligation to make advances or subsection 9.1(l) has occurred and is continuing, the Administrative Agent may (and shall, upon request of the LoanRequired Lenders), without by notice to the BorrowerCompany, take any or all of the following actions:
(a) terminate the obligation of the Lenders to extend any further credit hereunder on the date (which may be the date thereof) stated in such notice (such termination shall be effective upon verbal notification, the occurrence Administrative Agent hereby agreeing to provide written notification thereof to the Company as soon as practical thereafter);
(b) declare the principal of and continuance the accrued interest on the Notes to be forthwith due and payable and thereupon the Notes, including both principal and interest, and all fees, charges, commissions and other Obligations payable under the Loan Documents, shall be and become immediately due and payable without further demand, presentment, protest or notice of any kind;
(c) demand that the Company immediately provide to the Administrative Agent cash collateral for the full amount of each Letter of Credit and the Company agrees to immediately provide such cash collateral and acknowledges and agrees that the Lenders would not have an adequate remedy at law for failure by the Company to honor any such demand and that the Lenders shall have the right to require the Company to specifically perform such undertaking whether or not any draws have been made under the Letters of Credit, with the funds so paid to, if the Company so requests, be invested in short-term high-grade debt securities, acceptable and pledged to and held by the Administrative Agent in accordance with Section 4.7 hereof; and
(d) enforce any and all rights and remedies available under the Loan Documents or applicable law.
Section 9.3. When any Event of Default set forth described in subsections 9.1
9.1(j) or (k) has occurred and is continuing, then (a) through 9.1(h) above; the then unpaid balance of the Notes, including both principal and interest, and all fees, charges, commissions and other Obligations payable under the Loan Documents, shall immediately become due and payable without presentment, demand, protest or notice of any kind, (b) upon the occurrence obligation of the Lenders to extend further credit pursuant to any of the terms hereof shall immediately and continuance automatically terminate, (c) the Company shall immediately provide to the Administrative Agent cash collateral for the full amount of all Letters of Credit, whether or not draws have been made thereon, the Company acknowledging that the Lenders would not have an adequate remedy at law for failure by the Company to honor any event whichsuch demand, with and the giving Lenders shall have the right to require the Company to specifically perform such undertaking whether or not any draws have been made under the Letters of notice Credit, and (d) the Administrative Agent may exercise all remedies available to it under the Loan Documents or the lapse of time, or both, would constitute an Event of Default or (C) upon the death or disability of ▇▇▇▇▇ ▇applicable law.
Appears in 1 contract
Events of Default and Remedies. 9.1 The following events shall constitute an "Event of Default" under this Agreement, the occurrence of which shall entitle the Lender to pursue any and all rights and remedies, legal and equitable, available to it under any Loan Document or otherwise. The Occurrence of an Event Default under this Agreement shall constitute a default under each and every other Loan Document. The Lender's rights and remedies are cumulative and may be exercised concurrently or successively from time to time. Any action by the Lender against any property or party shall not serve to release or discharge any other security, property or party in connection with this transaction. The Events of Default are as follows:
(a) Failure to pay the principal or interest on the Borrower's present or future indebtedness Notwithstanding anything to the Lendercontrary stated herein, whether or the Pledgee shall not arising pursuant to this Agreement, when and as the same shall be due and payable, whether by acceleration or otherwise; provided that such default has not been cured prior to the expiration of ten (10) days following the date upon which the Lender gives the Borrower written Notice of Default. In this Section 9, Notice of Default shall be deemed to have been given (i) on the date of personal delivery of such written notice to a Guarantor, or (ii) on the date on which a duly authorized representative exercise any of the Borrower acknowledges receipt of such written notice, or (iii) on the day after sending such written notice to the Borrower by a commonly recognized overnight courier service, such as Federal Express, Purolator, UPS or the like, or (iv) on the third day after sending such written notice to the Borrower by facsimile (to both numbers remedies set forth in Section 16.7) or by depositing the same in the United States mail, postage prepaid, for delivery to the Borrowerthis Agreement unless and until an Event of Default has occurred and is continuing.
(b) Failure to observe, perform and comply with any of the obligations evidenced or secured by a Loan Document, other than as provided in Sections 9.1(a) above; provided that such default has not been cured prior to the expiration of thirty (30) days following the date upon which the Lender gives the Borrower written Notice of Default.
(c) Failure to duly and punctually pay, observe and discharge all Indebtedness and other obligations of the Borrower to any third party, unless the same is being contested in good faith by appropriate proceedings and the Borrower has set aside on its books adequate reserves with respect to such Indebtedness or other obligations.
(d) The discovery by the Lender of any material inaccuracy in any statement, assurance, representation, covenant, warranty, term or condition by the Borrower contained in this Agreement or in any document delivered or to be delivered by or on behalf of the Borrower pursuant to this Agreement, which inaccuracy would result in a Material Adverse Effect (except that inaccuracies in the Borrower's Due Diligence Documents attributable to the fault or neglect of third-parties shall not constitute a breach of this Section 9.1(d)), or in any other Loan Document, or in any other agreement between the Borrower and the Lender.
(e) The filing of a petition by or against the Borrower or any Affiliate seeking relief under the Federal Bankruptcy Code, 11 U.S.C. ss. 101, et seq., and any amendments thereto, or any similar law or regulation, whether federal, state or local, not dismissed within 30 days.
(f) The commencement of a proceeding by or against the Borrower or any Affiliate under any statute or other law providing for an assignment for the benefit of creditors, the appointment of a receiver, or any other similar law or regulation, whether federal, state or local, not dismissed within 30 days.
(g) The garnishment, attachment, levy or other similar action taken by or on behalf of any creditor of the Borrower, any Affiliate, or any of their respective properties which could have a Material Adverse Effect.
(h) Any change in control of the Borrower, Madison Liquidity Investors 104, MACG from that disclosed in Section 2 of this Agreement.
9.2 The Lender may, at its option, terminate its obligation to make advances of the Loan, without notice to the Borrower:
(a) upon the occurrence and continuance of any Event of Default set forth in subsections 9.1
(a) through 9.1(h) above; or (b) upon the occurrence and continuance of any event which, with the giving of notice or the lapse of time, or both, would constitute If an Event of Default shall have occurred and be continuing:
(i) The Pledgee may exercise in respect of the Pledged Collateral, in addition to other rights and remedies provided for herein or in the Credit Documents, as the case may be or otherwise available to it, all the rights and remedies of a secured party on default under the law of the State of New York or any other applicable law in effect at that time. The Pledgee may also, without notice except as specified below, sell the Pledged Collateral or any part thereof in one or more parcels at public or private sale, at any exchange, broker's board or at any of the Pledgee's offices or elsewhere, for cash, on credit or for future delivery, and upon such other terms as the Pledgee may deem commercially reasonable, provided that at least ten (C10) days' prior written notice of the time and place of any such sale shall be given to the Pledgor. The Pledgee shall not be obligated to make any sale of Pledged Collateral regardless of notice of sale having been given. The Pledgee may adjourn any public or private sale from time to time by announcement at the time and place fixed therefor, and such sale may, without further notice, be made at the time and place to which it was so adjourned.
(ii) Any cash held by the Pledgee as Pledged Collateral and all cash proceeds received by the Pledgee in respect of any sale of, collection from, or other realization upon all or any part of the death Pledged Collateral may, in the discretion of the Pledgee, be held by the Pledgee as collateral for, and/or then or disability at any time thereafter applied (after payment of ▇▇▇▇▇ ▇any amounts payable to the Pledgee pursuant to Section 10) in whole or in part by the Pledgee against, all or any part of the Obligations in accordance with the terms of the Credit Agreement. Any surplus of such cash or cash proceeds held by the Pledgee and remaining after payment and performance in full of the Obligations shall be paid over to the Borrower or its order.
Appears in 1 contract
Events of Default and Remedies. 9.1 The Termination - Time is of the essence herein and it is understood and agreed that Secured Party may terminate this Agreement, refuse to advance funds hereunder, and declare the aggregate of all Advances outstanding hereunder immediately due and payable upon the occurrence of any of the following events shall constitute (each hereinafter called an "Event of Default" "), and that Debtor's liabilities under this sentence shall constitute additional obligations of Debtor secured under this Agreement, the occurrence of which shall entitle the Lender to pursue any and all rights and remedies, legal and equitable, available to it under any Loan Document or otherwise. The Occurrence of an Event Default under this Agreement shall constitute a default under each and every other Loan Document. The Lender's rights and remedies are cumulative and may be exercised concurrently or successively from time to time. Any action by the Lender against any property or party shall not serve to release or discharge any other security, property or party in connection with this transaction. The Events of Default are as follows:.
(a) Failure Debtor shall fail to pay make any payment to Secured Party, whether constituting the principal amount of any Advance, interest thereon or interest on the Borrower's present or future indebtedness to the Lender, whether or not arising pursuant to this Agreementany other payment due hereunder, when and as due in accordance with the same terms of this Agreement or with any demand permitted to be made by Secured Party under this Agreement or any Promissory Note, or shall fail to pay when due any other amount owing to Secured Party under any other agreement between Secured Party and Debtor, or shall fail in the due performance or compliance with any other term or condition hereof or thereof, or shall be due and payable, whether by acceleration in default in the payment of any liabilities constituting indebtedness for money borrowed or otherwise; provided that such default has not been cured prior the deferred payment of the purchase price of property or rental payment with respect to property material to the expiration conduct of ten (10) days following the date upon which the Lender gives the Borrower written Notice of Default. In this Section 9, Notice of Default shall be deemed to have been given (i) on the date of personal delivery of such written notice to a Guarantor, or (ii) on the date on which a duly authorized representative of the Borrower acknowledges receipt of such written notice, or (iii) on the day after sending such written notice to the Borrower by a commonly recognized overnight courier service, such as Federal Express, Purolator, UPS or the like, or (iv) on the third day after sending such written notice to the Borrower by facsimile (to both numbers set forth in Section 16.7) or by depositing the same in the United States mail, postage prepaid, for delivery to the Borrower.Debtor's business;
(b) Failure to observe, perform and comply with A tax lien or notice thereof shall have been filed against any of the obligations evidenced Debtor's property or secured a proceeding in bankruptcy, insolvency or receivership shall be instituted by a Loan Document, other than as provided in Sections 9.1(a) above; provided that such default has not or against Debtor or Debtor's property or an assignment shall have been cured prior to made by Debtor for the expiration benefit of thirty (30) days following the date upon which the Lender gives the Borrower written Notice of Default.Creditors;
(c) Failure In the event that Secured Party deems itself insecure for any reason or the Vehicles are deemed by Secured Party to duly and punctually paybe in danger of misuse, observe and discharge all Indebtedness and other obligations of the Borrower to any third partyloss, unless the same is being contested in good faith by appropriate proceedings and the Borrower has set aside on its books adequate reserves with respect to such Indebtedness seizure or confiscation or other obligations.disposition not authorized by this Agreement;
(d) The discovery by the Lender Termination of any material inaccuracy in any statement, assurance, representation, covenant, warranty, term or condition by the Borrower contained in this Agreement or in any document delivered or franchise authorizing Debtor to be delivered by or on behalf of the Borrower pursuant to this Agreement, which inaccuracy would result in a Material Adverse Effect (except that inaccuracies in the Borrower's Due Diligence Documents attributable to the fault or neglect of third-parties shall not constitute a breach of this Section 9.1(d)), or in any other Loan Document, or in any other agreement between the Borrower and the Lender.sell Vehicles;
(e) The filing A misrepresentation by Debtor for the purpose of obtaining credit or an extension of credit or a petition refusal by Debtor to execute documents relating to the Collateral and/or Secured Party's security interest therein or against to furnish financial information to Secured Party at reasonable intervals or to permit persons designated by Secured Party to examine Debtor's books or records and to make periodic inspections of the Borrower or any Affiliate seeking relief under the Federal Bankruptcy Code, 11 U.S.C. ss. 101, et seq., and any amendments thereto, or any similar law or regulation, whether federal, state or local, not dismissed within 30 days.Collateral; or
(f) The commencement Debtor, without Secured Party's prior written consent, shall guarantee, endorse or otherwise become surety for or upon the obligations of others except as may be done in the ordinary course of Debtor's business, shall transfer or otherwise dispose of any proprietary, partnership or share interest Debtor has in his business, or all or substantially all of the assets thereof, shall enter into any merger or consolidation, if a proceeding by corporation, or against shall make any substantial disbursements or use of funds of Debtor's business except as may be done in the Borrower ordinary course of Debtor's business, or assign this Agreement in whole or in part or any Affiliate obligation hereunder. Upon the occurrence of an Event of Default, Secured Party may take immediate possession of said Vehicles without demand or further notice and without legal process; and for the purpose and furtherance thereof, Debtor shall, if Secured Party so requests, assemble the Vehicles and make them available to Secured Party at a reasonably convenient place designated by Secured Party and Secured Party shall have the right, and Debtor hereby authorizes and empowers Secured Party to enter upon the premises wherever said Vehicles may be, to remove same. In addition, Secured Party or its assigns shall have all the rights and remedies applicable under the Uniform Commercial Code or under any other statute or other law providing for an assignment for the benefit of creditors, the appointment of a receiver, or any other similar at common law or regulationin equity or under this Agreement. Such rights and remedies shall be cumulative. Debtor hereby agrees that it shall pay all expenses and reimburse Secured Party for any expenditures, whether federalincluding reasonable attorneys' fees and legal expenses, state or local, not dismissed within 30 days.
(g) The garnishment, attachment, levy or other similar action taken by or on behalf in connection with Secured Party's exercise of any creditor of the Borrower, any Affiliate, or any of their respective properties which could have a Material Adverse Effect.
(h) Any change in control of the Borrower, Madison Liquidity Investors 104, MACG from that disclosed in Section 2 of its rights and remedies under this Agreement.
9.2 The Lender may, at its option, terminate its obligation to make advances of the Loan, without notice to the Borrower:
(a) upon the occurrence and continuance of any Event of Default set forth in subsections 9.1
(a) through 9.1(h) above; or (b) upon the occurrence and continuance of any event which, with the giving of notice or the lapse of time, or both, would constitute an Event of Default or (C) upon the death or disability of ▇▇▇▇▇ ▇.
Appears in 1 contract
Sources: Security Agreement and Master Credit Agreement (Sonic Automotive Inc)
Events of Default and Remedies. 9.1 The following events (a) Notwithstanding anything to the contrary stated herein, the Collateral Agent shall constitute not exercise any of the remedies set forth in this Agreement unless and until an "Event of Default" under this Agreement, the occurrence of which shall entitle the Lender to pursue any Default has occurred and all rights and remedies, legal and equitable, available to it under any Loan Document or otherwise. The Occurrence of an Event Default under this Agreement shall constitute a default under each and every other Loan Document. The Lender's rights and remedies are cumulative and may be exercised concurrently or successively from time to time. Any action by the Lender against any property or party shall not serve to release or discharge any other security, property or party in connection with this transaction. The Events of Default are as follows:is continuing.
(a) Failure If an Event of Default shall have occurred and be continuing:
(i) The Collateral Agent may exercise in respect of the Pledged Collateral, in addition to pay other rights and remedies provided for herein or in the principal or interest on the Borrower's present or future indebtedness to the LenderNote Documents, whether or not arising pursuant to this Agreement, when and as the same shall case may be due or otherwise available to it, all the rights and payableremedies of a secured party on default under the law of the State of New York or any other applicable law in effect at that time. The Collateral Agent may also, whether by acceleration without notice except as specified below, sell the Pledged Collateral or otherwise; any part thereof in one or more parcels at public or private sale, at any exchange, broker’s board or at any of the Collateral Agent’s offices or elsewhere, for cash, on credit or for future delivery, and upon such other terms as the Collateral Agent may deem commercially reasonable, provided that such default has not been cured prior to the expiration of at least ten (10) days following days’ prior written notice of the date upon which the Lender gives the Borrower written Notice time and place of Default. In this Section 9, Notice of Default any such sale shall be deemed given to have the Pledgor. The Collateral Agent shall not be obligated to make any sale of Pledged Collateral regardless of notice of sale having been given (i) on given. The Collateral Agent may adjourn any public or private sale from time to time by announcement at the date of personal delivery of time and place fixed therefor, and such written notice sale may, without further notice, be made at the time and place to a Guarantor, or which it was so adjourned.
(ii) on Any cash held by the date on which a duly authorized representative Collateral Agent as Pledged Collateral and all cash proceeds received by the Collateral Agent in respect of any sale of, collection from, or other realization upon all or any part of the Borrower acknowledges receipt Pledged Collateral may, in the discretion of the Collateral Agent, be held by the Collateral Agent as collateral for, and/or then or at any time thereafter applied (after payment of any amounts payable to the Collateral Agent pursuant to Section 10) in whole or in part by the Collateral Agent against, all or any part of the Notes Obligations in accordance with the terms of the Indenture. Any surplus of such written notice, cash or (iii) on cash proceeds held by the day Collateral Agent and remaining after sending such written notice payment and performance in full of the Notes Obligations shall be paid over to the Borrower by a commonly recognized overnight courier service, such as Federal Express, Purolator, UPS Pledgor or the like, or (iv) on the third day after sending such written notice to the Borrower by facsimile (to both numbers set forth in Section 16.7) or by depositing the same in the United States mail, postage prepaid, for delivery to the Borrowerits order.
(b) Failure to observe, perform and comply with any of the obligations evidenced or secured by a Loan Document, other than as provided in Sections 9.1(a) above; provided that such default has not been cured prior to the expiration of thirty (30) days following the date upon which the Lender gives the Borrower written Notice of Default.
(c) Failure to duly and punctually pay, observe and discharge all Indebtedness and other obligations of the Borrower to any third party, unless the same is being contested in good faith by appropriate proceedings and the Borrower has set aside on its books adequate reserves with respect to such Indebtedness or other obligations.
(d) The discovery by the Lender of any material inaccuracy in any statement, assurance, representation, covenant, warranty, term or condition by the Borrower contained in this Agreement or in any document delivered or to be delivered by or on behalf of the Borrower pursuant to this Agreement, which inaccuracy would result in a Material Adverse Effect (except that inaccuracies in the Borrower's Due Diligence Documents attributable to the fault or neglect of third-parties shall not constitute a breach of this Section 9.1(d)), or in any other Loan Document, or in any other agreement between the Borrower and the Lender.
(e) The filing of a petition by or against the Borrower or any Affiliate seeking relief under the Federal Bankruptcy Code, 11 U.S.C. ss. 101, et seq., and any amendments thereto, or any similar law or regulation, whether federal, state or local, not dismissed within 30 days.
(f) The commencement of a proceeding by or against the Borrower or any Affiliate under any statute or other law providing for an assignment for the benefit of creditors, the appointment of a receiver, or any other similar law or regulation, whether federal, state or local, not dismissed within 30 days.
(g) The garnishment, attachment, levy or other similar action taken by or on behalf of any creditor of the Borrower, any Affiliate, or any of their respective properties which could have a Material Adverse Effect.
(h) Any change in control of the Borrower, Madison Liquidity Investors 104, MACG from that disclosed in Section 2 of this Agreement.
9.2 The Lender may, at its option, terminate its obligation to make advances of the Loan, without notice to the Borrower:
(a) upon the occurrence and continuance of any Event of Default set forth in subsections 9.1
(a) through 9.1(h) above; or (b) upon the occurrence and continuance of any event which, with the giving of notice or the lapse of time, or both, would constitute an Event of Default or (C) upon the death or disability of ▇▇▇▇▇ ▇.
Appears in 1 contract
Sources: Indenture (Transocean Ltd.)
Events of Default and Remedies. 9.1 The following events At the option of Payee (or the then ------------------------------ current holder of this Note), the entire amount of the unpaid balance of this Note together with all accrued and unpaid interest thereon, shall constitute an "Event of Default" under this Agreement, immediately become due and payable upon the occurrence of which shall entitle one or more of the Lender to pursue any and all rights and remedies, legal and equitable, available to it under any Loan Document or otherwise. The Occurrence following events of an Event Default under this Agreement shall constitute a default under each and every other Loan Document. The Lender's rights and remedies are cumulative and may be exercised concurrently or successively from time to time. Any action by the Lender against any property or party shall not serve to release or discharge any other security, property or party in connection with this transaction. The ("Events of Default are as follows:Default"):
(a) Failure of Maker to pay the principal or interest make any payment on the Borrower's present or future indebtedness to the Lender, whether or not arising pursuant to this Agreement, Note as and when and as the same shall be becomes due and payablepayable in accordance with the terms hereof, whether by acceleration or otherwise; provided that and such default has not been cured prior to the expiration of ten (10) days following the date upon which the Lender gives the Borrower written Notice of Default. In this Section 9, Notice of Default shall be deemed to have been given (i) on the date of personal delivery of such written notice to failure continues for a Guarantor, or (ii) on the date on which a duly authorized representative of the Borrower acknowledges receipt of such written notice, or (iii) on the day after sending such written notice to the Borrower by a commonly recognized overnight courier service, such as Federal Express, Purolator, UPS or the like, or (iv) on the third day after sending such written notice to the Borrower by facsimile (to both numbers set forth in Section 16.7) or by depositing the same in the United States mail, postage prepaid, for delivery to the Borrower.
(b) Failure to observe, perform and comply with any of the obligations evidenced or secured by a Loan Document, other than as provided in Sections 9.1(a) above; provided that such default has not been cured prior to the expiration period of thirty (30) days following after the date upon which the Lender gives the Borrower receipt by Maker of written Notice of Default.
(c) Failure to duly and punctually pay, observe and discharge all Indebtedness and other obligations of the Borrower to any third party, unless the same is being contested in good faith by appropriate proceedings and the Borrower has set aside on its books adequate reserves with respect to such Indebtedness or other obligations.
(d) The discovery by the Lender of any material inaccuracy in any statement, assurance, representation, covenant, warranty, term or condition by the Borrower contained in this Agreement or in any document delivered or to be delivered by or on behalf of the Borrower pursuant to this Agreement, which inaccuracy would result in a Material Adverse Effect (except that inaccuracies in the Borrower's Due Diligence Documents attributable to the fault or neglect of third-parties shall not constitute a breach of this Section 9.1(d)), or in any other Loan Document, or in any other agreement between the Borrower and the Lender.
(e) The filing of a petition by or against the Borrower or any Affiliate seeking relief under the Federal Bankruptcy Code, 11 U.S.C. ss. 101, et seq., and any amendments thereto, or any similar law or regulation, whether federal, state or local, not dismissed within 30 days.
(f) The commencement of a proceeding by or against the Borrower or any Affiliate under any statute or other law providing for an assignment for the benefit of creditors, the appointment of a receiver, or any other similar law or regulation, whether federal, state or local, not dismissed within 30 days.
(g) The garnishment, attachment, levy or other similar action taken by or on behalf of any creditor of the Borrower, any Affiliate, or any of their respective properties which could have a Material Adverse Effect.
(h) Any change in control of the Borrower, Madison Liquidity Investors 104, MACG notice from that disclosed in Section 2 of this Agreement.
9.2 The Lender may, at its option, terminate its obligation to make advances of the Loan, without notice to the Borrower:
(a) upon the occurrence and continuance of any Event of Default set forth in subsections 9.1
(a) through 9.1(h) above; or (b) upon the occurrence and continuance of any event which, with the giving of notice or the lapse of time, or both, would constitute an Event of Default or (C) upon the death or disability of ▇▇▇▇▇ ▇(or the then current holder of this Note) of the occurrence of such failure; or
(b) Maker shall (i) voluntarily seek, consent to or acquiesce in the benefit or benefits of any Debtor Relief Law (as hereinafter defined) or (ii) become party to (or be made the subject of) any proceeding provided by any Debtor Relief Law, other than as a creditor or claimant, that could suspend or otherwise adversely affect the rights of Payee (or the then current holder of this Note) granted hereunder (unless in the event such proceeding is involuntary, the petition instituting the same is dismissed within 90 days of the filing of same). As used herein, the term "Debtor Relief Law" means the Bankruptcy Code of the United States of America and all other applicable liquidation, conservatorship, bankruptcy, moratorium, rearrangement, receivership, insolvency, reorganization or similar debtor relief laws from time to time in effect affecting the rights of creditors generally. In the event any one or more of the Events of Default specified above shall have occurred, the holder of this Note may proceed to protect and enforce its rights either by suit in equity or by action at law, or by other appropriate proceedings, whether for the specific performance of any covenant or agreement contained in this Note or in aid of the exercise of any power or right granted by this Note, or to enforce any other legal or equitable right of the holder of this Note.
Appears in 1 contract
Sources: Promissory Note (U S Remodelers Inc)
Events of Default and Remedies. 9.1 The following events shall constitute an are "Event Events of Default" under this Agreement, the occurrence of which shall entitle the Lender to pursue any and all rights and remedies, legal and equitable, available to it under any Loan Document or otherwise. The Occurrence of an Event Default under this Agreement shall constitute a default under each and every other Loan Document. The Lender's rights and remedies are cumulative and may be exercised concurrently or successively from time to time. Any action by the Lender against any property or party shall not serve to release or discharge any other security, property or party in connection with this transaction. The Events of Default are as follows":
(a) Failure the failure to pay interest on any Senior Subordinated Securities when the same becomes due and payable and such default continues for a period of 30 days (whether or not such payment shall be prohibited by the provisions of Article X or XII);
(b) the failure to pay the principal or interest on the Borrower's present or future indebtedness to the Lender, whether or not arising pursuant to this Agreement, any Senior Subordinated Securities when and as the same shall be such principal becomes due and payable, at maturity, upon redemption or otherwise (including the failure to make a payment to purchase Senior Subordinated Securities tendered pursuant to a Change of Control Offer or a Net Proceeds Offer) (whether by acceleration or otherwise; provided that not such default has not been cured prior to the expiration of ten (10) days following the date upon which the Lender gives the Borrower written Notice of Default. In this Section 9, Notice of Default payment shall be deemed to have been given (i) on prohibited by the date provisions of personal delivery of such written notice to a Guarantor, Article X or (ii) on the date on which a duly authorized representative of the Borrower acknowledges receipt of such written notice, or (iii) on the day after sending such written notice to the Borrower by a commonly recognized overnight courier service, such as Federal Express, Purolator, UPS or the like, or (iv) on the third day after sending such written notice to the Borrower by facsimile (to both numbers set forth in Section 16.7) or by depositing the same in the United States mail, postage prepaid, for delivery to the Borrower.
(b) Failure to observe, perform and comply with any of the obligations evidenced or secured by a Loan Document, other than as provided in Sections 9.1(a) above; provided that such default has not been cured prior to the expiration of thirty (30) days following the date upon which the Lender gives the Borrower written Notice of Default.XII);
(c) Failure a default in the observance or performance of any other covenant or agreement contained in this Indenture which default continues for a period of 30 days after the written notice specifying the default (and demanding that such default be remedied) is furnished to duly the Company by or to the Company and punctually pay, observe and discharge all Indebtedness and other obligations the Trustee by the Holders of least 25% of the Borrower to any third party, unless outstanding principal amount of the same is being contested Senior Subordinated Securities (except in good faith by appropriate proceedings and the Borrower has set aside on its books adequate reserves case of a default with respect to the provisions of Article V, which will constitute an Event of Default with such Indebtedness or other obligations.notice requirement but without such passage of time requirement);
(d) The discovery by the Lender failure to pay at final stated maturity (giving effect to any applicable grace periods and any extensions thereof) the principal amount of any material inaccuracy in any statement, assurance, representation, covenant, warranty, term or condition by the Borrower contained in this Agreement or in any document delivered or to be delivered by or on behalf of the Borrower pursuant to this Agreement, which inaccuracy would result in Junior Subordinated Notes or any other Indebtedness of the Company or any Restricted Subsidiary of the Company (other than a Material Adverse Effect (except that inaccuracies in the Borrower's Due Diligence Documents attributable to the fault or neglect of third-parties shall not constitute a breach of this Section 9.1(d)Securitization Entity), or the acceleration of the final stated maturity of any of the Junior Subordinated Notes or any such other Indebtedness (which acceleration is not rescinded, annulled or otherwise cured within 20 days after receipt by the Company or such Restricted Subsidiary of notice of any such acceleration), if, in the case of any such other Indebtedness, the aggregate principal amount of such Indebtedness, together with the principal amount of any other Loan DocumentIndebtedness in default for failure to pay principal at final maturity or which has been accelerated, aggregate $10.0 million or in more at any other agreement between the Borrower and the Lender.time;
(e) The filing one or more judgments in an aggregate amount in excess of a petition $10.0 million (which are not covered by or third party insurance as to which the insurer has not disclaimed coverage) shall have been rendered against the Borrower Company or any Affiliate seeking relief under the Federal Bankruptcy Codeof its Restricted Subsidiaries and such judgments remain undischarged, 11 U.S.C. ss. 101, et seq., unpaid or unstayed for a period of 60 days after such judgment or judgments become final and any amendments thereto, or any similar law or regulation, whether federal, state or local, not dismissed within 30 days.non-appealable; or
(f) The commencement the Company or any Subsidiary of the Company that is a Significant Subsidiary, pursuant to or within the meaning of any Bankruptcy Law: (A) commences a voluntary case or proceeding; (B) consents to the entry of an order for relief against it in an involuntary case or proceeding; (C) consents to the appointment of a proceeding by custodian of it or against the Borrower or for any Affiliate under any statute or other law providing for an substantial part of its property; (D) makes a general assignment for the benefit of its creditors, the appointment of a receiver, takes any comparable action under any foreign laws relating to insolvency or any other similar law of them takes any action to authorize or regulation, whether federal, state or local, not dismissed within 30 days.effect any of the foregoing;
(g) The garnishment, attachment, levy a court of competent jurisdiction enters an order or other similar action taken by decree under any Bankruptcy Law that: (A) is for relief against the Company or on behalf of any creditor Subsidiary of the Borrower, any Affiliate, Company that is a Significant Subsidiary in an involuntary case or proceeding; (B) appoints a custodian of the Company or any Subsidiary of their respective properties which could have the Company that is a Material Adverse Effect.Significant Subsidiary or for any substantial part of its property; (C) orders the winding up or liquidation of the Company or any Subsidiary of the Company that is a Significant Subsidiary; or (D) any similar relief is granted under any foreign laws and, in each case, the order or decree relating thereto remains unstayed and in effect for 60 days; and
(h) Any change in control any Subsidiary Guarantee of a Subsidiary of the Borrower, Madison Liquidity Investors 104, MACG from Company that disclosed is a Significant Subsidiary ceases to be in full force and effect or any Subsidiary Guarantee of a Subsidiary of the Company that is a Significant Subsidiary is declared to be null and void and unenforceable or any Subsidiary Guarantee of a Subsidiary of the Company that is a Significant Subsidiary is found to be invalid or any Guarantor that is a Significant Subsidiary of the Company denies its liability under its Subsidiary Guarantee (other than by reason of release of a Guarantor in accordance with Section 2 11.05 of this Agreement.
9.2 Indenture). The Lender may, at its option, terminate its obligation to make advances foregoing shall constitute Events of Default whatever the Loan, without notice to the Borrower:
(a) upon the occurrence and continuance of reason for any such Event of Default set forth in subsections 9.1
(a) through 9.1(h) above; and whether it is voluntary or (b) upon the occurrence and continuance involuntary or is effected by operation of law or pursuant to any judgment, decree or order of any event whichcourt or any order, with the giving rule or regulation of notice any administrative or the lapse of time, or both, would constitute an Event of Default or (C) upon the death or disability of ▇▇▇▇▇ ▇governmental body.
Appears in 1 contract
Events of Default and Remedies. 9.1 The Section 9.1. Any one or more of the following events shall constitute an "Event of Default" under this Agreement, the occurrence of which shall entitle the Lender to pursue any and all rights and remedies, legal and equitable, available to it under any Loan Document or otherwise. The Occurrence of an Event Default under this Agreement shall constitute a default under each and every other Loan Document. The Lender's rights and remedies are cumulative and may be exercised concurrently or successively from time to time. Any action by the Lender against any property or party shall not serve to release or discharge any other security, property or party in connection with this transaction. The Events of Default are as followshereunder:
(a) Failure to pay default in the payment when due of any principal on any Note or Application, whether at the stated maturity thereof or at any other time provided for in this Agreement; or default in the payment when due of any interest on any Note or Application or fee, charge or other amount payable by the Borrower's present Company hereunder or future indebtedness under any other Loan Document and the continuance of such default for 2 Business Days after notice thereof to the Company from the Administrative Agent or any Lender;
(b) default in the observance or performance of any covenant set forth in Sections 8.10, whether 8.11, 8.12 or 8.13 hereof;
(c) default in the observance or performance of any other provision hereof or any of the other Loan Documents which is not arising pursuant remedied within 20 days after written notice thereof to this Agreement, the Company by the Administrative Agent or any Lender or by the holder of any Note;
(d) default shall occur in the payment when and as the same shall be due and payable, (whether by lapse of time, acceleration or otherwise; ) of any indebtedness (including as such all obligations included in Consolidated Total Indebtedness as such term is defined herein) aggregating in excess of $10,000,000 issued, assumed or guaranteed by the Company or any Subsidiary or any other event of default shall occur with respect to any such indebtedness beyond any period of grace provided that therefor if the effect thereof is to permit the maturity of such default indebtedness to be accelerated or to permit the holders thereof to elect a majority of the Board of Directors of the Company;
(e) any representation or warranty made herein or in any of the other Loan Documents or in any statement or certificate furnished pursuant hereto or thereto, or in connection with any advance or issuance made hereunder or by any person in connection with the transactions contemplated hereby, proves untrue in any material respect as of the date of the issuance or making thereof, and shall not be made good within 30 days after notice thereof to the Company by the Administrative Agent;
(f) any judgment or judgments, writ or writs or warrant or warrants or attachment, or any similar process or processes in an aggregate amount in excess of $15,000,000 more than the amount, if any, covered by insurance (as to which the insurer has not been cured prior disclaimed or disputed in writing its obligations for coverage or otherwise failed to pay when due) shall be entered or filed against the Company or any Subsidiary or against any of the property or assets of any of them and remains undischarged, unvacated, unbonded or unstayed for a period of 30 days;
(g) any event occurs or condition exists which is specified as an event of default under any of the other Loan Documents after the expiration of ten any applicable notice or grace periods;
(10h) days following any of the date upon which Loan Documents shall for any reason not be or shall cease to be in full force and effect, or any of the Lender gives Loan Documents is declared to be null and void, or the Borrower written Notice Company or any Guarantor takes any action for the purpose of Default. In this Section 9repudiating or rescinding any Loan Document executed by it or the obligations of such Person thereunder;
(i) 50% or more of the issued and outstanding Voting Stock of the Company is owned or controlled, Notice either legally or beneficially, by any Person or by any group of Default Persons affiliated with each other or acting in concert (Persons shall not be deemed to have been given acted in concert merely as a result of voting the same way or taking the same position if the decision to vote or to take a position were made independently and without prior consultation) other than ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇ and/or his wife and/or his descendants and/or trusts or estates for the benefit of his wife and/or descendants;
(ij) on the date Company or any Material Subsidiary or any Material Foreign Subsidiary becomes insolvent or bankrupt or bankruptcy, reorganization, arrangement, insolvency or liquidation proceedings or other proceedings for relief under any bankruptcy law or laws for the relief of personal delivery debtors are instituted against the Company or any Material Subsidiary or any Material Foreign Subsidiary and are not dismissed within 60 days after such institution or a decree or order of a court having jurisdiction in the premises for the appointment of a trustee or receiver or custodian for the Company or any Material Subsidiary or any Material Foreign Subsidiary or for the major part of any of their property is entered and the trustee or receiver or custodian appointed pursuant to such decree or order is not discharged within 60 days after such appointment; or
(k) the Company or any Material Subsidiary or any Material Foreign Subsidiary shall institute bankruptcy, reorganization, arrangement, insolvency or liquidation proceedings or other proceedings for relief under any bankruptcy law or laws for the relief of debtors or shall consent to the institution of such written notice to a Guarantor, proceedings against it by others or (ii) on the date on which a duly authorized representative of the Borrower acknowledges receipt of such written notice, or (iii) on the day after sending such written notice to the Borrower by a commonly recognized overnight courier service, such as Federal Express, Purolator, UPS or the like, or (iv) on the third day after sending such written notice to the Borrower by facsimile (to both numbers set forth in Section 16.7) or by depositing the same in the United States mail, postage prepaid, for delivery to the Borrower.
(b) Failure to observe, perform and comply with any of the obligations evidenced or secured by a Loan Document, other than as provided in Sections 9.1(a) above; provided that such default has not been cured prior to the expiration of thirty (30) days following the date upon which the Lender gives the Borrower written Notice of Default.
(c) Failure to duly and punctually pay, observe and discharge all Indebtedness and other obligations of the Borrower to any third party, unless the same is being contested in good faith by appropriate proceedings and the Borrower has set aside on its books adequate reserves with respect to such Indebtedness or other obligations.
(d) The discovery by the Lender entry of any material inaccuracy in decree or order adjudging it bankrupt or insolvent or approving as filed any statement, assurance, representation, covenant, warranty, term petition seeking reorganization under any bankruptcy or condition by the Borrower contained in this Agreement or in any document delivered or to be delivered by or on behalf of the Borrower pursuant to this Agreement, which inaccuracy would result in a Material Adverse Effect (except that inaccuracies in the Borrower's Due Diligence Documents attributable to the fault or neglect of third-parties shall not constitute a breach of this Section 9.1(d)), or in any other Loan Document, or in any other agreement between the Borrower and the Lender.
(e) The filing of a petition by or against the Borrower or any Affiliate seeking relief under the Federal Bankruptcy Code, 11 U.S.C. ss. 101, et seq., and any amendments thereto, or any similar law or regulation, whether federal, state shall apply for or local, not dismissed within 30 days.
(f) The commencement shall consent to the appointment of a proceeding by receiver or against trustee or custodian for it or for the Borrower major part of its property or any Affiliate under any statute or other law providing for shall make an assignment for the benefit of creditors, creditors or shall admit in writing its inability to pay its debts as they mature or shall take any corporate action in contemplation or in furtherance of any of the appointment of a receiver, or any other similar law or regulation, whether federal, state or local, not dismissed within 30 days.foregoing purposes; or
(gl) The garnishment, attachment, levy any event occurs or other similar action taken by or on behalf condition exists which is specified as an "Event of any creditor of Default" under the Borrower, any Affiliate, or any of their respective properties which could have a Material Adverse Effect.
(h) Any change in control of the Borrower, Madison Liquidity Investors 104, MACG from that disclosed in Section 2 of this Five-Year Credit Agreement.
9.2 The Lender maySection 9.2. When any Event of Default described in subsections 9.1(a) to 9.1(i), at its optionboth inclusive, terminate its obligation to make advances or subsection 9.1(l) has occurred and is continuing, the Administrative Agent may (and shall, upon request of the LoanRequired Lenders), without by notice to the BorrowerCompany, take any or all of the following actions:
(a) terminate the obligation of the Lenders to extend any further credit hereunder on the date (which may be the date thereof) stated in such notice (such termination shall be effective upon verbal notification, the occurrence Administrative Agent hereby agreeing to provide written notification thereof to the Company as soon as practical thereafter);
(b) declare the principal of and continuance the accrued interest on the Notes to be forthwith due and payable and thereupon the Notes, including both principal and interest, and all fees, charges, commissions and other Obligations payable under the Loan Documents, shall be and become immediately due and payable without further demand, presentment, protest or notice of any kind; and
(c) enforce any and all rights and remedies available under the Loan Documents or applicable law.
Section 9.3. When any Event of Default set forth described in subsections 9.1
9.1(j) or (k) has occurred and is continuing, then (a) through 9.1(h) above; the then unpaid balance of the Notes, including both principal and interest, and all fees, charges, commissions and other Obligations payable under the Loan Documents, shall immediately become due and payable without presentment, demand, protest or notice of any kind, (b) upon the occurrence obligation of the Lenders to extend further credit pursuant to any of the terms hereof shall immediately and continuance of any event whichautomatically terminate, with and (c) the giving of notice Administrative Agent may exercise all remedies available to it under the Loan Documents or the lapse of time, or both, would constitute an Event of Default or (C) upon the death or disability of ▇▇▇▇▇ ▇applicable law.
Appears in 1 contract
Events of Default and Remedies. 9.1 The following events entire unpaid principal balance of, and all accrued and unpaid interest on, this Note shall constitute an "Event immediately become due and payable at the option of Default" under this Agreement, Payee upon the occurrence of which shall entitle one or more of the Lender to pursue any following events of default (individually and all rights and remediescollectively, legal and equitable, available to it under any Loan Document or otherwise. The Occurrence of an Event Default under this Agreement shall constitute hereinafter called a default under each and every other Loan Document. The Lender's rights and remedies are cumulative and may be exercised concurrently or successively from time to time. Any action by the Lender against any property or party shall not serve to release or discharge any other security, property or party in connection with this transaction. The Events of Default are as follows:"DEFAULT"):
(a) Failure The failure or refusal of Maker to pay all or any part of the principal of or accrued interest on the Borrower's present or future indebtedness to the Lender, whether or not arising pursuant to this Agreement, Note as and when and as the same shall be becomes due and payablepayable in accordance with the terms hereof, whether by acceleration and the continuation of such failure or otherwise; provided that such default has not been cured prior to the expiration refusal for a period of ten days after notice thereof to Maker from Payee; or
(10b) days following bankruptcy, moratorium, rearrangement, receivership, insolvency, reorganization, suspension of payments, or similar debtor relief law from time to time in effect affecting the date upon which the Lender gives the Borrower written Notice rights of Default. In this Section 9, Notice of Default shall be deemed to have been given creditors generally (i"DEBTOR RELIEF LAWS") on the date of personal delivery of such written notice to a Guarantoror dissolve or liquidate, or (ii) on be made the date on which a duly authorized representative subject of the Borrower acknowledges receipt of such written notice, any proceeding provided for by any Debtor Relief Law that could suspend or (iii) on the day after sending such written notice to the Borrower by a commonly recognized overnight courier service, such as Federal Express, Purolator, UPS or the like, or (iv) on the third day after sending such written notice to the Borrower by facsimile (to both numbers set forth in Section 16.7) or by depositing the same in the United States mail, postage prepaid, for delivery to the Borrower.
(b) Failure to observe, perform and comply with otherwise affect any of the obligations evidenced rights of the holder hereof; PROVIDED, HOWEVER, if such proceeding described in this clause (ii) is withdrawn or secured by a Loan Document, other than as provided in Sections 9.1(a) above; provided that such default has not been cured prior to the expiration of thirty (30) dismissed within 60 days following from the date upon which of the Lender gives the Borrower written Notice institution of Default.such proceeding, then such event shall no longer be deemed a Default hereunder; or
(c) Failure The failure of Armani to duly deliver the Collateral (as defined in the Stock Pledge Agreement) pursuant to and punctually payas required by the Stock Pledge Agreement by the close of business on January 17, observe and discharge all Indebtedness and other obligations 2000, or the failure of any of the Borrower representations or warranties made by Armani in the Stock Pledge Agreement to any third party, unless the same is being contested in good faith by appropriate proceedings be true and the Borrower has set aside on its books adequate reserves with respect to such Indebtedness or other obligations.correct when made; or
(d) The discovery failure or refusal by the Lender Maker to perform any of any material inaccuracy its obligations under this Note (other than those described in any statement, assurance, representation, covenant, warranty, term (a) immediately above) if such failure or condition by the Borrower contained in this Agreement or in any document delivered or refusal continues for a period of 30 days after notice thereof to be delivered by or on behalf of the Borrower pursuant to this Agreement, which inaccuracy would result in a Material Adverse Effect (except that inaccuracies in the Borrower's Due Diligence Documents attributable to the fault or neglect of third-parties shall not constitute a breach of this Section 9.1(d)), or in any other Loan Document, or in any other agreement between the Borrower and the Lender.Maker from Payee; or
(e) The filing occurrence of a petition by or against the Borrower or any Affiliate seeking relief default under the Federal Bankruptcy Code, 11 U.S.C. ss. 101, et seq., and any amendments thereto, Stock Pledge Agreement or any similar law or regulation, whether federal, state or local, not dismissed within 30 days.
(f) The commencement of a proceeding by or against the Borrower or any Affiliate under any statute or other law providing for an assignment for the benefit of creditors, the appointment of a receiver, Guaranty or any other similar law or regulationdocument, whether federal, state or local, not dismissed within 30 days.
(g) The garnishment, attachment, levy or other similar action taken by or on behalf of any creditor of the Borrower, any Affiliateinstrument, or any agreement executed to provide a guaranty of their respective properties which could or security for this Note (each, a "NOTE DOCUMENT"). In the event a Default shall have a Material Adverse Effect.
(h) Any change in control of the Borroweroccurred and be continuing, Madison Liquidity Investors 104, MACG from that disclosed in Section 2 of this Agreement.
9.2 The Lender may, at its option, terminate its obligation to make advances of the Loan, without notice to the Borrower:
(a) upon the occurrence and continuance of any Event of Default set forth in subsections 9.1
(a) through 9.1(h) above; or (b) upon the occurrence and continuance of any event which, with the giving of notice or the lapse of time, or both, would constitute an Event of Default or (C) upon the death or disability of ▇▇▇▇▇ ▇may proceed to protect and enforce its rights hereunder and under the Note Documents either by suit in equity and/or by action at law, or by other appropriate proceedings, whether for the specific performance of any covenant or agreement contained herein or in any of the Note Documents or in aid of the exercise of any power or right granted by this Note or any of the Note Documents or to enforce any other legal or equitable right of Payee.
Appears in 1 contract
Sources: Promissory Note (Telenetics Corp)
Events of Default and Remedies. 9.1 The 8.01 Events of Default. Any of the following events shall constitute an "Event of Default" under this Agreement, the occurrence of which shall entitle the Lender to pursue any and all rights and remedies, legal and equitable, available to it under any Loan Document or otherwise. The Occurrence of an Event Default under this Agreement shall constitute a default under each and every other Loan Document. The Lender's rights and remedies are cumulative and may be exercised concurrently or successively from time to time. Any action by the Lender against any property or party shall not serve to release or discharge any other security, property or party in connection with this transaction. The Events of Default are as follows:
(a) Failure The Borrower shall default in the payment when due of any principal of any Borrowing or any L/C Obligation to pay any Lender hereunder (and, provided that the Borrower shall deliver to such Lender on such due date a copy of the written instructions given by the Borrower to any commercial bank in New York City irrevocably instructing such commercial bank to make payment on such date in immediately available funds of the full amount of principal owing to such Lender on such date, such default shall continue for a period exceeding two days) or shall default for a period exceeding five Business Days in the payment when due of any interest on the Borrower's present any Borrowing or future indebtedness on any L/C Obligations or of any other amount payable to the Lender, whether Administrative Agent or not arising pursuant to this Agreement, when and as the same shall be due and payable, whether by acceleration or otherwiseany Lender hereunder; provided that such default has not been cured prior to the expiration of ten (10) days following the date upon which the Lender gives the Borrower written Notice of Default. In this Section 9, Notice of Default shall be deemed to have been given (i) on the date of personal delivery of such written notice to a Guarantor, or (ii) on the date on which a duly authorized representative of the Borrower acknowledges receipt of such written notice, or (iii) on the day after sending such written notice to the Borrower by a commonly recognized overnight courier service, such as Federal Express, Purolator, UPS or the like, or (iv) on the third day after sending such written notice to the Borrower by facsimile (to both numbers set forth in Section 16.7) or by depositing the same in the United States mail, postage prepaid, for delivery to the Borrower.or
(b) Failure to observe, perform and comply with any of the obligations evidenced Any representation or secured by a Loan Document, other than as provided in Sections 9.1(a) above; provided that such default has not been cured prior to the expiration of thirty (30) days following the date upon which the Lender gives the Borrower written Notice of Default.
(c) Failure to duly and punctually pay, observe and discharge all Indebtedness and other obligations of the Borrower to any third party, unless the same is being contested in good faith by appropriate proceedings and the Borrower has set aside on its books adequate reserves with respect to such Indebtedness or other obligations.
(d) The discovery by the Lender of any material inaccuracy in any statement, assurance, representation, covenant, warranty, term or condition warranty made by the Borrower contained in this Agreement herein or in any document delivered writing or to be delivered certificate furnished by or on behalf of the Borrower pursuant under this Agreement (including, but not limited to, any Committed Loan Notice) shall prove to this Agreement, which inaccuracy would result have been incorrect in a Material Adverse Effect any material respect when made; or
(except that inaccuracies c) The Borrower shall default in the Borrower's Due Diligence Documents attributable to the fault or neglect performance of third-parties shall not constitute a breach of this Section 9.1(d)any agreement in Sections 6.10(a), 6.11 or 6.13 or in any other Loan DocumentArticle VII; provided that, or in the case of Section 7.01, an Event of Default shall exist only if (i) all indebtedness secured by Liens prohibited by Section 7.01(a) and (ii) all guaranteed obligations prohibited by Section 7.01(b) exceed $50,000,000 for a period of ten days; or
(d) The Borrower shall default in the performance of any other agreement between herein which shall remain unremedied for 30 days after written notice specifying such nonperformance and requesting that the same be remedied shall have been given to the Borrower and by the Lender.Required Lenders; or
(e) The filing A final judgment for the payment of money in excess of $50,000,000 shall be rendered against any Corporation other than Northern SC Paper Corporation, and the same shall have remained unsatisfied and in effect, and there shall be any period of 60 consecutive days during which a stay of enforcement of such judgment, by reason of a petition by pending appeal or against otherwise, shall not be in effect; or
(i) The Borrower or any Significant Subsidiary other than Northern SC Paper Corporation shall fail to pay when due (A) after any applicable period of grace, any payments of principal or (B) within ten Business Days after any applicable period of grace, any payments of interest on any Debt the aggregate outstanding principal amount of which is equal to, or greater than $50,000,000; or
(ii) Any Indebtedness of the Borrower or any Affiliate seeking relief under Significant Subsidiary other than Northern SC Paper Corporation shall become due before stated maturity by the Federal Bankruptcy Code, 11 U.S.C. ss. 101, et seq., acceleration of the maturity thereof and the aggregate amount in respect of such Indebtedness so due from such Corporation other than Northern SC Paper Corporation exceeds at any amendments thereto, or any similar law or regulation, whether federal, state or local, not dismissed within 30 days.one time $50,000,000; or
(fg) The commencement of a proceeding by or against the Borrower or any Affiliate under Consolidated Subsidiary which, as of the date of any statute action referred to in any of clauses (i) through (viii) below with respect to such Consolidated Subsidiary, constitutes a Significant Subsidiary, excluding Northern SC Paper Corporation, shall
(i) apply for or other law providing for an consent to the appointment of, or the taking of possession by, a receiver, custodian, trustee, or liquidator of itself or of all or a substantial part of its property,
(ii) admit in writing its inability, or be generally unable, to pay its debts as they become due,
(iii) make a general assignment for the benefit of creditors,
(iv) commence a voluntary case under the federal bankruptcy laws (as now or hereafter in effect),
(v) be adjudicated a bankrupt or insolvent,
(vi) file a petition seeking to take advantage of any other laws relating to bankruptcy, insolvency, reorganization, winding up or composition or adjustment of debts,
(vii) acquiesce in writing to, or fail to controvert in a timely and appropriate manner, any petition filed against it in an involuntary case under the aforesaid federal bankruptcy laws, or
(viii) take any corporate action for the purpose of effecting any of the foregoing; or
(h) A case or other proceeding shall be commenced, without the application or consent of the Borrower or any Consolidated Subsidiary that, as of the date any such case or proceeding shall be commenced with respect to such Consolidated Subsidiary, constitutes a Significant Subsidiary, excluding Northern SC Paper Corporation, in any court of competent jurisdiction, seeking
(i) the liquidation, reorganization, dissolution, winding up, or composition or readjustment of debts, of the Borrower or such Consolidated Subsidiary,
(ii) the appointment of a trustee, receiver, custodian, liquidator or the like of the Borrower or such Consolidated Subsidiary or of all or any other similar law or regulationsubstantial part of its assets, whether federal, state or local, not dismissed within 30 days.or
(giii) The garnishment, attachment, levy or other any similar action taken by with respect to the Borrower or on behalf such Consolidated Subsidiary under any laws relating to bankruptcy, insolvency, reorganization, winding up or composition or adjustment of debts, and, in any creditor of the Borrowerforegoing instances, any Affiliatesuch case or proceeding shall continue undismissed, or an order, judgment or decree approving or ordering any of their respective properties which could the foregoing shall be entered and continue unstayed and in effect, for a period of 60 consecutive days, or an order for relief in respect of the Borrower or such Consolidated Subsidiary shall be entered in an involuntary case under the federal bankruptcy laws (as now or hereafter in effect);
(i) Any Termination Event shall have occurred, except a Termination Event that (i) does not involve any liability or liabilities of the Borrower and its ERISA Affiliates in excess of $50,000,000 in the aggregate, or (ii) in the reasonable opinion of the Required Lenders, will not have a Material Adverse Effect.; or
(hj) Any change in control The parties hereto shall have failed to enter into a New Agreement before the end of the Borrower, Madison Liquidity Investors 104, MACG Negotiation Period and 30 days shall have elapsed from that disclosed in Section 2 the end of this Agreementsuch Negotiation Period.
9.2 The Lender may, at its option, terminate its obligation to make advances of the Loan, without notice to the Borrower:
(a) upon the occurrence and continuance of any Event of Default set forth in subsections 9.1
(a) through 9.1(h) above; or (b) upon the occurrence and continuance of any event which, with the giving of notice or the lapse of time, or both, would constitute an Event of Default or (C) upon the death or disability of ▇▇▇▇▇ ▇.
Appears in 1 contract
Sources: Credit Agreement (New York Times Co)
Events of Default and Remedies. 9.1 8.1. The entire unpaid principal amount of this Note, together with all accrued interest thereon, shall, at the option of the holder hereof exercised by written notice to the Maker at its principal executive offices, forthwith become and be due and payable if any one or more of the following events shall constitute an (herein called "Event Events of Default" under this Agreement") shall have occurred (for any reason whatsoever and whether such happening shall be voluntary or involuntary or come about or be effected by operation of law or pursuant to or in compliance with any judgment, decree or order of any court or any order, rule or regulation of any administrative or 11 11 governmental body) and be continuing at the occurrence time of which shall entitle the Lender such notice, that is to pursue any and all rights and remedies, legal and equitable, available to it under any Loan Document or otherwise. The Occurrence of an Event Default under this Agreement shall constitute a default under each and every other Loan Document. The Lender's rights and remedies are cumulative and may be exercised concurrently or successively from time to time. Any action by the Lender against any property or party shall not serve to release or discharge any other security, property or party in connection with this transaction. The Events of Default are as followssay:
(a) Failure to pay if default shall be made in the due and punctual payment of the principal or interest on the Borrower's present or future indebtedness to the Lender, whether or not arising pursuant to of this Agreement, Note when and as the same shall be become due and payable, whether at maturity, by acceleration or otherwise;
(b) if default shall be made in the due and punctual payment of any interest on this Note when and as such interest shall become due and payable, and such default shall have continued for a period of 10 days;
(c) if default shall be made in the performance or observance of any covenant, agreement or condition contained in Section 6 hereof;
(d) if default shall be made in the performance or observance of any of the other covenants, agreements or conditions of the Maker contained in this Note, and such default shall have continued for a period of 30 days;
(e) if the Maker or any Subsidiary shall default beyond any period of grace provided with respect thereto in the payment of principal of or interest on any obligation in respect of borrowed money when due, whether by acceleration or otherwise; provided that such or if the Maker or any Subsidiary shall default has not been cured prior to the expiration of ten (10) days following the date upon which the Lender gives the Borrower written Notice of Default. In this Section 9, Notice of Default shall be deemed to have been given (i) on the date of personal delivery of such written notice to a Guarantor, or (ii) on the date on which a duly authorized representative of the Borrower acknowledges receipt of such written notice, or (iii) on the day after sending such written notice to the Borrower by a commonly recognized overnight courier service, such as Federal Express, Purolator, UPS or the like, or (iv) on the third day after sending such written notice to the Borrower by facsimile (to both numbers set forth in Section 16.7) or by depositing the same in the United States mail, postage prepaid, for delivery to the Borrower.
(b) Failure to observe, perform and comply with any of the obligations evidenced performance or secured by a Loan Document, other than as provided in Sections 9.1(a) above; provided that such default has not been cured prior to the expiration of thirty (30) days following the date upon which the Lender gives the Borrower written Notice of Default.
(c) Failure to duly and punctually pay, observe and discharge all Indebtedness and other obligations of the Borrower to any third party, unless the same is being contested in good faith by appropriate proceedings and the Borrower has set aside on its books adequate reserves with respect to such Indebtedness or other obligations.
(d) The discovery by the Lender observance of any material inaccuracy in any statement, assurance, representation, covenant, warrantyother agreement, term or condition by the Borrower contained in this Agreement such obligation or in any document delivered agreement under 12 12 which any such obligation is created, if the effect of any such default is to cause or to be delivered by permit the holder or holders of such obligations (or a trustee on behalf of the Borrower pursuant such holder or holders) to this Agreement, which inaccuracy would result in a Material Adverse Effect (except that inaccuracies in the Borrower's Due Diligence Documents attributable cause such obligation to become due prior to the fault date of its stated maturity, unless such holder or neglect of third-parties holders or trustee shall not constitute have waived such default after its occurrence or unless such holder or holders or trustee shall have failed to give any notice required to create a breach of this Section 9.1(d)), or in any other Loan Document, or in any other agreement between the Borrower and the Lender.
(e) The filing of a petition by or against the Borrower or any Affiliate seeking relief under the Federal Bankruptcy Code, 11 U.S.C. ss. 101, et seq., and any amendments thereto, or any similar law or regulation, whether federal, state or local, not dismissed within 30 days.default thereunder;
(f) The commencement of a proceeding by or against if the Borrower Maker or any Affiliate under Subsidiary shall:
(i) admit in writing its inability to pay its debts generally as they become due;
(ii) file a petition in bankruptcy or a petition to take advantage of any statute or other law providing for insolvency act;
(iii) make an assignment for the benefit of creditors, ;
(iv) consent to the appointment of a receiver, receiver of itself or of the whole or any other similar law or regulationsubstantial part of its property;
(v) on a petition in bankruptcy filed against it, whether federal, state or local, not dismissed within 30 days.be adjudicated a bankrupt; or
(g) The garnishmentif a court of competent jurisdiction shall enter an order, attachmentjudgment, levy or other similar action taken by or on behalf of any creditor decree appointing, without the consent of the BorrowerMaker or any Subsidiary, a receiver of the Maker or any AffiliateSubsidiary or of the whole or any substantial part of its property, or approving a petition filed against it seeking reorganization or arrangement of the Maker or any Subsidiary under the federal bankruptcy laws or any other applicable law or statute of their respective properties which could have a Material Adverse Effect.the United States of America or any State, district or territory thereof, and such order, judgment or decree shall not be vacated or set aside or stayed within 60 days from the date of entry thereof;
(h) Any change in if, under the provisions of any other law for the relief or aid of debtors, any court of competent jurisdiction shall assume custody or control of the Borrower, Madison Liquidity Investors 104, MACG from that disclosed in Section 2 of this Agreement.
9.2 The Lender may, at its option, terminate its obligation to make advances Maker or any Subsidiary or of the Loan, without notice to whole or any substantial part of its property and such custody or control shall not be terminated or stayed within 60 days from the Borrower:date of assumption of such custody or control; or
(ai) upon if final judgment for the occurrence payment of money in excess of $50,000 shall be rendered by a court of record against the Maker or any Subsidiary and continuance of any Event of Default set forth the Maker or such Subsidiary shall not discharge the same or provide for its discharge in subsections 9.1
(a) through 9.1(h) above; or (b) upon the occurrence and continuance of any event which, accordance with the giving of notice or the lapse of timeits terms, or bothshall not procure a stay of execution thereon within 60 days 14 14 from the date of entry thereof and within the period during which execution of such judgment shall have been stayed, would constitute an Event of Default or (C) upon appeal therefrom, and cause the death or disability of ▇▇▇▇▇ ▇execution thereof to be stayed during such appeal.
Appears in 1 contract
Sources: Subordinated Note (Valley Forge Dental Associates Inc)
Events of Default and Remedies. 9.1 The following events shall constitute an "Event of Default" under this Agreement, the occurrence of which shall entitle the Lender Bank to pursue any and all rights and remedies, legal and equitable, remedies available to it under any this Agreement, the Notes, the other Loan Document or otherwiseDocuments, and under applicable law. The Occurrence of an Event Default under this Agreement shall constitute a default under each and every other Loan Document. The LenderBank's rights and remedies are cumulative and may be exercised concurrently or successively from time to time. Any action by the Lender Bank against any property or party shall not serve to release or discharge any other security, property or party in connection with this transaction. The Events of Default are as follows:
(a) Failure to pay the principal or interest on the Borrower's present or future indebtedness to the Lender, whether or not arising pursuant to any loan provided for under this Agreement, Agreement when and as the same shall be due and payable, whether by acceleration or otherwise, provided in each case that such default has not been cured prior to the expiration of 10 days following the date of personal delivery or mailing of written notice of such default to the Borrower.
(b) Failure to pay the principal or interest on any other indebtedness now or hereafter owed by the Borrower to the Bank as the same shall be due and payable, whether by acceleration or otherwise, provided in each case that such default has not been cured prior to the expiration of 10 days following the date of personal delivery or mailing of written notice of such default to the Borrower.
(c) Failure to observe, perform and comply with any of the Borrower's obligations under any Loan Document or failure to observe, perform and comply with any of the Borrower's other obligations under any other document that evidences, secures or otherwise relates to indebtedness of the Borrower to the Bank, whether arising under this Agreement or otherwise, and failure to observe, perform and comply with any and all other agreements between the Borrower and the Bank to be observed, performed or complied with by the Borrower; provided that such default has not been cured prior to the expiration of ten (10) 20 days following the date upon which the Lender gives the Borrower written Notice of Default. In this Section 9, Notice of Default shall be deemed to have been given (i) on the date of personal delivery or mailing of written notice of such written notice to a Guarantor, or (ii) on the date on which a duly authorized representative of the Borrower acknowledges receipt of such written notice, or (iii) on the day after sending such written notice to the Borrower by a commonly recognized overnight courier service, such as Federal Express, Purolator, UPS or the like, or (iv) on the third day after sending such written notice to the Borrower by facsimile (to both numbers set forth in Section 16.7) or by depositing the same in the United States mail, postage prepaid, for delivery to the Borrowerdefault.
(bd) Failure to observe, perform and comply with pay any of the obligations evidenced Indebtedness or secured by a Loan Document, other than as provided in Sections 9.1(a) above; provided that such default has not been cured prior to the expiration of thirty (30) days following the date upon which the Lender gives the Borrower written Notice of Default.
(c) Failure to duly and punctually pay, observe and discharge all Indebtedness and other obligations trade debt of the Borrower to any third partyparty (i) when due upon agreed upon terms, unless a grace period applies or the Borrower satisfies the conditions described in 9.1(d)(iii) below, (ii) upon the expiration of an applicable grace period, unless the same Borrower satisfies the conditions described in 9.1(d)(iii), or (iii) provided that the payment of such Indebtedness or trade debt is being contested in good faith by appropriate proceedings proceedings, and the Borrower has shall have set aside on its books adequate reserves with respect to such Indebtedness or other obligationsdebt, at the time that a final non-appealable decision is rendered in such proceedings.
(de) The discovery by the Lender Bank of any material inaccuracy in any statement, assurance, representation, covenant, warranty, term or condition by the Borrower contained in this Agreement or in any document delivered or to be delivered by or on behalf of the Borrower pursuant to this Agreement, which inaccuracy would result in a Material Adverse Effect (except that inaccuracies in the Borrower's Due Diligence Documents attributable to the fault or neglect of third-parties shall not constitute a breach of this Section 9.1(d)), or in any other Loan Document, or in any other agreement between the Borrower and the LenderBank.
(ef) The filing of a petition by or against the Borrower or any Affiliate other obligor of any Loan seeking relief under the Federal Bankruptcy Code, 11 U.S.C. ss. 101, et seq., and any amendments theretothereto (the "Code"), or any similar law or regulation, whether federal, state or local, not dismissed within 30 days.
(fg) The commencement of a proceeding by or against the Borrower or any Affiliate other obligor of a Loan under any statute or other law providing for an assignment for the benefit of creditors, the appointment of a receiver, or any other similar law or regulation, whether federal, state or local, not dismissed within 30 days.
(gh) The garnishment, attachment, levy or other similar action taken by or on behalf of any creditor of the Borrower, any Affiliate, Borrower or any of their respective its properties which could have a Material Adverse Effect.
(hi) Any change The determination by the Bank or any one of its agents or representatives that there exists any Hazardous Substances in control violation of any Environmental Laws on, in or under any of the Borrower, Madison Liquidity Investors 104, MACG from that disclosed collateral in Section 2 of which the Bank holds an interest as security for any loan made pursuant to this Agreement.
9.2 The Lender mayUpon the occurrence of any Event of Default set forth in subsections 9.1(a) through 9.1(i) above, at its optionthe option of the Bank, terminate its the Bank's obligation to make additional loan advances under this Agreement shall terminate and the Bank shall have the right to declare all or any part of the Loanunpaid principal balance of, and accrued interest on, outstanding loans hereunder to be immediately due and payable, without presentment, demand, or notice to of any kind, all of which are hereby expressly waived by the Borrower:.
(a) upon 9.3 Upon the occurrence and continuance of any Event of Default set forth in subsections 9.1
(a) through 9.1(h9.1(i) above; , the Bank shall have the right to exercise any and all remedies that it may have for default under any Loan Document or (b) upon at law or in equity, and such remedies may be exercised concurrently or separately until each and every one of the occurrence and continuance Borrower's obligations under the Loan Documents has been fully satisfied. In connection with the enforcement of any event whichsuch remedies of the Bank, with the giving Bank and its employees, attorneys, agents, and other persons and entities designated by the Bank, shall have the right, without notice, to enter the Borrower's plant and other places of notice business for such purposes as may be reasonably required to permit the Bank to preserve, protect, take possession of and/or sell or otherwise dispose of any Collateral, and to store the lapse Collateral at the Borrower's plant and other places of timebusiness, or bothwithout charge, would constitute an Event of Default or (C) upon for such periods as may be determined by the death or disability of ▇▇▇▇▇ ▇Bank.
Appears in 1 contract
Sources: Loan Agreement (Riviera Tool Co)
Events of Default and Remedies. 9.1 The In addition to any other remedies the holders of Preferred Stock may have, if any of the following events shall constitute occur:
(a) the Corporation shall fail to redeem any shares of Preferred Stock required to be so redeemed under Section 5(a), (b) or (c) at the applicable redemption price (whether or not there are funds legally available therefor) and on the date fixed, or by the last day of the period within which the Corporation is to required to fix a date, for redemption (a "Missed Redemption Date"); or
(b) the Corporation shall be in breach of any of the covenants set forth under Section 7(a), (b), (c) or (d) hereof and such breach shall not have been cured within thirty (30) days of the Corporation's first having actual knowledge of such breach (including by notice from a holder of Preferred Stock); or
(c) if any shares of Preferred Stock, par value $.001 per share, of NPAL ("NPAL Preferred Stock") are issued and outstanding, an Event of Default (as such term is defined in Article FOURTH of the Certificate of Incorporation of NPAL) under the terms of the NPAL Preferred Stock shall have occurred and be continuing; then, upon the occurrence of any of the events set forth in clauses (a), (b) or (c) above (each, an "Event of Default" under this Agreement") and at all times thereafter until such time as such Event of Default has been cured in full and no other Event of Default remains uncured, (i) the dividend rate applicable to the Preferred Stock shall increase to a rate per annum equal to 11.5% of the Liquidation Price (if not already at such dividend rate pursuant to Section 3 hereof) effective upon (A) the Missed Redemption Date, (B) the expiration of the 30-day period described in clause (b) above if the breached covenant(s) specified in clause (b) have not then been cured within such period or (C) the occurrence of which shall entitle an Event of Default under the Lender to pursue any and all rights and remediesterms of the NPAL Preferred Stock, legal and equitableas the case may be, available to it under any Loan Document or otherwise. The Occurrence (ii) in the case of an Event of Default referred to in clauses (b) or (c) above, each holder of Preferred Stock shall have the right, at such holder's option, to require the redemption by the Corporation, in whole or in part, of such holder's shares of Preferred Stock (in accordance with the procedures set forth in Section 5 (b) hereof), (iii) if a holder exercises its right of redemption pursuant to the immediately preceding clause (ii) or in the case of an Event of Default under this Agreement shall constitute a default under each and every other Loan Document. The Lender's rights and remedies are cumulative and may be exercised concurrently or successively from time to time. Any action by the Lender against any property or party shall not serve to release or discharge any other security, property or party in connection with this transaction. The Events of Default are as follows:
clause (a) Failure above where the Corporation shall have failed to pay the principal or interest on the Borrower's present or future indebtedness to the Lender, whether or not arising pursuant to this Agreement, when and as the same shall be due and payable, whether by acceleration or otherwise; provided that cure such default has not been cured prior to the expiration Event of Default within ten (10) days following after the original date fixed for redemption (or the last day, if any, of the period within which the Corporation is required to fix a date for redemption), the redemption price for the shares of Preferred Stock to be redeemed shall be (or shall be increased to) the amount determined by dividing the Liquidation Price as of the date upon which of such redemption by the Lender gives Discounted ADS Price and multiplying the Borrower written Notice resulting quotient by the Actual ADS Price and (iv) the holders of Defaulta majority of the outstanding shares of Preferred Stock shall have the right to cause the Corporation to enforce the Corporation's rights under the Funding Agreement and to direct the time, method and place of conducting any remedy available to the Corporation thereunder. In the event the Corporation breaches any of the provisions of Section 7(c) of this Certificate of Designations, or if any of the provisions of Section 97(c) of Article FOURTH of the Certificate of Incorporation of NPAL or Section 4 of the Funding Agreement shall be breached, Notice of Default such breach shall be deemed cured at such time as all accrued and unpaid dividends, if any, on the Preferred Stock that has been cumulatively added to the Liquidation Price, together with all other dividends accrued and unpaid on the Preferred Stock, shall have been given (i) on declared and paid in full to the date holders of personal delivery the Preferred Stock. For greater certainty, if a holder of such written notice Preferred Stock exercises its rights of redemption pursuant to a Guarantor, or clause (ii) on above, then the date on which a duly authorized representative of the Borrower acknowledges receipt of such written noticeredemption price, or (iii) on the day after sending such written notice to the Borrower by a commonly recognized overnight courier service, such as Federal Express, Purolator, UPS or the like, or (iv) on the third day after sending such written notice to the Borrower by facsimile (to both numbers set forth in Section 16.7) or by depositing the same in the United States mail, postage prepaid, for delivery to the Borrower.
(b) Failure to observe, perform and comply with any of the obligations evidenced or secured by a Loan Document, other than as provided in Sections 9.1(a) above; provided that such default has not been cured prior to the expiration of thirty (30) days following the date upon which the Lender gives the Borrower written Notice of Default.
(c) Failure to duly and punctually pay, observe and discharge all Indebtedness and other obligations of the Borrower to any third party, unless the same is being contested in good faith by appropriate proceedings and the Borrower has set aside on its books adequate reserves with respect to such Indebtedness or other obligations.
(d) The discovery by the Lender of any material inaccuracy in any statement, assurance, representation, covenant, warranty, term or condition by the Borrower contained in this Agreement or in any document delivered or to be delivered by or on behalf of the Borrower adjusted pursuant to this AgreementSection 8, which inaccuracy would result in a Material Adverse Effect (except that inaccuracies in shall be payable by the Borrower's Due Diligence Documents attributable to the fault or neglect of third-parties shall not constitute a breach of this Section 9.1(d)), or in any other Loan Document, or in any other agreement between the Borrower and the Lender.
(e) The filing of a petition by or against the Borrower or any Affiliate seeking relief under the Federal Bankruptcy Code, 11 U.S.C. ss. 101, et seq., and any amendments thereto, or any similar law or regulation, whether federal, state or local, not dismissed within 30 days.
(f) The commencement of a proceeding by or against the Borrower or any Affiliate under any statute or other law providing for an assignment for the benefit of creditors, the appointment of a receiver, or any other similar law or regulation, whether federal, state or local, not dismissed within 30 days.
(g) The garnishment, attachment, levy or other similar action taken by or on behalf Corporation irrespective of any creditor subsequent cure of the Borrower, any Affiliate, or any of their respective properties which could have a Material Adverse Effect.
(h) Any change in control of the Borrower, Madison Liquidity Investors 104, MACG from that disclosed in Section 2 of this Agreement.
9.2 The Lender may, at its option, terminate its obligation to make advances of the Loan, without notice to the Borrower:
(a) upon the occurrence and continuance of any Event of Default set forth Default(s) that resulted in subsections 9.1
such right of redemption under clause (a) through 9.1(hii) above; or (b) upon the occurrence and continuance of any event which, with the giving of notice or the lapse of time, or both, would constitute an Event of Default or (C) upon the death or disability of ▇▇▇▇▇ ▇.
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