Events of Default Defined; Acceleration of Maturity. If any of the following events (“Events of Default”) shall occur and be continuing (for any reason whatsoever and whether it shall be voluntary or involuntary or by operation of law or otherwise): (i) default shall be made in the payment of the Principal Amount of, or interest on, the Loan or any other Obligation when and as the same shall become due and payable, whether at stated maturity, by acceleration, upon a Mandatory Prepayment Event or otherwise; or (ii) default shall be made in the performance or observance of any covenant, agreement or condition contained in this Agreement or in any of the other Loan Documents, including but not limited to the failure of any financial covenant contained herein, and such default shall have continued for a period of ten (10) Business Days; provided, that, such ten (10) Business Day period shall not apply in the case of: (A) any failure to observe any covenant which is not capable of being cured at all or within such ten (10) Business Day period or which has been the subject of a prior failure within a six (6) month period or (B) an intentional breach by the Company of any covenant; or (iii) Company shall (1) apply for or 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 and assets, (2) be generally unable to pay its debts as such debts become due, (3) make a general assignment for the benefit of its creditors, (4) commence a voluntary case under the United States Bankruptcy Code or similar law or regulation (as now or hereafter in effect), (5) file a petition seeking to take advantage of any other law providing for the relief of debtors, (6) fail to controvert in a timely or appropriate manner, or acquiesce in writing to, any petition filed against it in an involuntary case under the United States Bankruptcy Code or other law or regulation, (7) dissolve, (8) take any corporate action under any applicable law analogous to any of the foregoing, or (9) take any corporate action for the purpose of effecting any of the foregoing; or (iv) a proceeding or case shall be commenced, without the application or consent of Company in any court of competent jurisdiction, seeking (1) the liquidation, reorganization, dissolution, winding up or composition or readjustment of its debts, (2) the appointment of a trustee, receiver, custodian, liquidator or the like of it or for all or any substantial part of its assets, or (3) similar relief in respect of Company, under any law providing for the relief of debtors, and such proceeding or case shall continue undismissed, or unstayed and in effect, for a period of sixty (60) days; or an order for relief shall be entered in an involuntary case under the United States Bankruptcy Code or other similar law or regulation, against Company; or action under the laws of any jurisdiction affecting Company analogous to any of the foregoing shall be taken with respect to Company and shall continue unstayed and in effect for any period of sixty (60) days; or (v) final judgment for the payment of money shall be rendered by a court of competent jurisdiction against Company and Company shall not discharge the same or provide for its discharge in accordance with its terms, or procure a stay of execution thereof within sixty (60) days from the date of entry thereof and within said period of sixty (60) days, or such longer period during which execution of such judgment shall have been stayed, appeal therefrom and cause the execution thereof to be stayed during such appeal, and such judgment together with all other such judgments shall exceed in the aggregate US$100,000; or (vi) any representation or warranty made by Company in this Agreement, Loan Document, or any other documents or agreements contemplated hereby and thereby or in any certificate or other instrument delivered hereunder or pursuant hereto or in connection with any provision hereof shall be false or incorrect in any material respect on the date as of which made; or (vii) the indictment by any Governmental Person under any criminal statute, or commencement or threatened commencement of criminal or civil proceedings against the Company, pursuant to which statute or proceedings the penalties or remedies sought or available include forfeiture of (i) any of the Collateral having a value in excess of $100,000 or (ii) any other property of the Company which is necessary or material to the conduct of its business; or (viii) (A) the acquisition by any person (or group of persons as defined by the Securities Exchange Act of 1934 and the regulations thereunder) of more than 20% of the outstanding voting securities of the Company, (B) the public offer by any person (or group of persons as defined by the Securities Exchange Act of 1934 and the regulations thereunder) to acquire more than 20% of the outstanding voting securities of the Company; (C) the election in a contested proxy solicitation of candidates nominated by a person other than the Company that represent more than a majority of the full board of directors; or (D) any other event or circumstance in which any person acquires the right or ability to direct the management or control of the Company who does not presently have the right or ability to direct the management or control of the Company without the prior approval of the Company’s board of directors. (ix) the occurrence of any event or condition that has a material adverse effect. then (x) upon the occurrence of any Event of Default described in Section 7(a)(iii) or (iv), the unpaid Principal Amount of the Loan, together with the interest accrued thereon and all other amounts payable by Company under this Agreement, shall automatically become immediately due and payable, without presentment, demand, protest or other requirements of any kind, all of which are hereby expressly waived by Company or (y) upon the occurrence of any other Event of Default, Lender may, by notice to Company, declare the unpaid Principal Amount of the Loan to be, and the same shall forthwith become, due and payable, together with the interest accrued thereon and all other amounts payable by Company hereunder.
Appears in 7 contracts
Samples: Loan and Security Agreement (Digerati Technologies, Inc.), Loan and Security Agreement (Atsi Communications Inc/De), Loan and Security Agreement (Atsi Communications Inc/De)
Events of Default Defined; Acceleration of Maturity. If any of the following events (“"Events of Default”") shall occur and be continuing (for any reason whatsoever and whether it shall be voluntary or involuntary or by operation of law or otherwise):
(ia) default Default shall be made in the payment of the Principal Amount principal of, or interest on, the Loan or any other Obligation Note when and as the same shall become due and payable, whether at stated maturity, by acceleration, upon demand, upon a Mandatory Prepayment Event mandatory prepayment due date, or otherwise; or;
(iib) default Default shall be made in the performance or observance of any covenant, agreement or condition contained in this Agreement herein or in any of the other Loan Documents, including but not limited to the failure of any financial covenant contained hereinNote, and such default shall have continued for a period of ten fifteen (1015) Business Days; provided, that, such ten (10) Business Day period shall not apply in the case of: (A) any failure to observe any covenant which is not capable of being cured at all or within such ten (10) Business Day period or which has been the subject of a prior failure within a six (6) month period or (B) an intentional breach by the Company of any covenant; orbusiness days;
(iiic) The Company shall (1i) apply for or 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 and assets, (2ii) be generally unable to pay its debts as such debts become due, (3iii) make a general assignment for the benefit of its creditors, (4iv) commence a voluntary case under the United States Bankruptcy Code or similar law or regulation (as now or hereafter in effect), (5v) file a petition seeking to take advantage of any other law providing for the relief of debtors, (6vi) fail to controvert in a timely or appropriate manner, or acquiesce in writing to, any petition filed against it in an involuntary case under the United States such Bankruptcy Code or other law or regulation, (7vii) dissolve, (8) viii) take any corporate action under any applicable law analogous to any of the foregoing, or (9ix) take any corporate action for the purpose of effecting any of the foregoing; or;
(ivd) a A proceeding or case shall be commenced, without the application or consent of the Company in any court of competent jurisdiction, seeking (1i) the liquidation, reorganization, dissolution, winding up or composition or readjustment of its debts, (2ii) the appointment of a trustee, receiver, custodian, liquidator or the like of it or for all or any substantial part of its assets, or (3iii) similar relief in respect of the Company, under any law providing for the relief of debtors, and such proceeding or case shall continue undismissed, or unstayed and in effect, for a period of sixty (60) days; or an order for relief shall be entered in an involuntary case under the United States Bankruptcy Code or other similar law or regulation, against the Company; or action under the laws of any jurisdiction affecting the Company analogous to any of the foregoing shall be taken with respect to the Company and shall continue unstayed and in effect for any period of sixty (60) days; or;
(ve) final Final judgment for the payment of money shall be rendered by a court of competent jurisdiction against the Company and the Company shall not discharge the same or provide for its discharge in accordance with its terms, or procure a stay of execution thereof within sixty (60) days from the date of entry thereof and within said period of sixty (60) days, or such longer period during which execution of such judgment shall have been stayed, appeal therefrom and cause the execution thereof to be stayed during such appeal, and such judgment together with all other such judgments shall exceed in the aggregate US$100,000500,000; or
(vif) any Any representation or warranty made by the Company in this Agreement, Loan Document, or any other documents or agreements contemplated hereby and thereby Agreement or in any certificate or other instrument delivered hereunder or pursuant hereto or in connection with any provision hereof shall be false or incorrect in any material respect on as of the date as of on which it was made or is deemed to have been made; or
(vii) the indictment by any Governmental Person under any criminal statute, or commencement or threatened commencement of criminal or civil proceedings against the Company, pursuant to which statute or proceedings the penalties or remedies sought or available include forfeiture of (i) any of the Collateral having a value in excess of $100,000 or (ii) any other property of the Company which is necessary or material to the conduct of its business; or
(viii) (A) the acquisition by any person (or group of persons as defined by the Securities Exchange Act of 1934 and the regulations thereunder) of more than 20% of the outstanding voting securities of the Company, (B) the public offer by any person (or group of persons as defined by the Securities Exchange Act of 1934 and the regulations thereunder) to acquire more than 20% of the outstanding voting securities of the Company; (C) the election in a contested proxy solicitation of candidates nominated by a person other than the Company that represent more than a majority of the full board of directors; or (D) any other event or circumstance in which any person acquires the right or ability to direct the management or control of the Company who does not presently have the right or ability to direct the management or control of the Company without the prior approval of the Company’s board of directors.
(ix) the occurrence of any event or condition that has a material adverse effect. then (x) upon the occurrence of any Event of Default described in Section 7(a)(iii) or (iv), the unpaid Principal Amount of the Loan, together with the interest accrued thereon and all other amounts payable by Company under this Agreement, shall automatically become immediately due and payable, without presentment, demand, protest or other requirements of any kind, all of which are hereby expressly waived by Company or (y) upon the occurrence of any other Event of Default, Lender may, by notice to Company, declare the unpaid Principal Amount of the Loan to be, and the same shall forthwith become, due and payable, together with the interest accrued thereon and all other amounts payable by Company hereunder.;
Appears in 6 contracts
Samples: Note Purchase Agreement (Genesisintermedia Com Inc), Note Purchase Agreement (Genesisintermedia Com Inc), Note Purchase Agreement (Genesisintermedia Com Inc)
Events of Default Defined; Acceleration of Maturity. If any one or more of the following events (each herein called an “Events Event of Default”) shall occur and be continuing (for any reason whatsoever and whether it shall be voluntary or involuntary or by operation of law or otherwise):have occurred:
(ia) default shall be made in the payment all or any part of the Principal Amount of, or interest on, principal of any of the Loan or any other Obligation when and as Notes is not paid on the same date such principal shall become due and payable, whether at stated maturitythe maturity thereof, by acceleration, upon a Mandatory Prepayment Event by conversion, by notice of prepayment, or all or any part of the interest of any of the Notes is not paid within five (5) Business Days after the date such interest shall become due and payable, whether at the maturity thereof, by acceleration, by conversion, by notice of prepayment, or otherwise; ;
(b) all or any part of any other amount owing by any Credit Party or any Subsidiary to the Holders pursuant to the terms of this Agreement, the Notes or any other Operative Document (including, without limitation, amounts owed or reimbursable under Section 7.14) is not paid when such other amount becomes due and payable and such non-payment is not remedied within five (5) Business Days after written demand therefor was made (if required by the Operative Documents or, otherwise, after written notice thereof to such Credit Party by the Holders);
(c) any Credit Party fails or neglects to perform, keep or observe any of its covenants, conditions or agreements contained in:
(i) Section 7.1 , 7.2(a), 7.2(b) or 7.2(d), in each case only if such failure shall continue for ten (10) days after the Collateral Agent notifies the Borrowers of such failure;
(ii) default shall be made in the performance Section 7.3, 7.4, 7.6, 7.10, 7.12, 7.20, or observance of 7.21 or ARTICLE VIII;
(iii) [reserved];
(iv) any other covenant, condition or agreement or condition contained in this Agreement or other Operative Document, including any Warrant (and, if any grace or cure period is expressly applicable thereto as set forth therein, the same shall continue past such grace period) and such failure shall continue for thirty (30) days after the earlier of (i) delivery by the Collateral Agent to any Credit Party of notice of such non-compliance or (ii) a Responsible Officer of any Credit Party becoming aware of such failure;
(d) any warranty or representation now or hereafter made by any Credit Party herein, in any of the other Loan DocumentsOperative Document, including but not limited or other certificate, report or other delivery required to be made by any Credit Party to the failure Holders hereunder, is untrue or incorrect in any material respect (or, in the case of any financial covenant contained hereinsuch representation or warranty that is qualified as to materiality or Material Adverse Effect, untrue or incorrect in any respect) when made or deemed made;
(e) a judgment or order shall be rendered against any Credit Party (except for judgments which are not a Lien on personal property and which are being contested by such Person in good faith) and such default judgment or order shall have continued remain unsatisfied or undischarged and in effect for forty five (45) consecutive days without a period stay of ten (10enforcement or execution, provided that this Section 9.1(e) Business Days; provided, that, such ten (10) Business Day period shall not apply (i) to any judgment for which such Credit Party is fully insured (except for normal deductibles in connection therewith) and with respect to which the case of: insurer has not denied its responsibility to assume the defense and with respect to which such Credit Party reasonably believes the insurer will pay the full amount thereof (Aexcept for normal deductibles in connection therewith), (ii) to any failure judgment which a Credit Party has elected not to observe any covenant which contest consistent with its legal budget allocated to the specific case, such legal budget being consistent with the Turnaround Plan, or, after the Turnaround Plan is not capable of being cured at all or within such ten (10) Business Day period or which has been no longer in effect, the subject of a prior failure within a six (6) month period or (B) an intentional breach by approved Annual Budget then in effect, and the Company of any covenant; or
has notified the Collateral Agent thereof under Section 7.3(g), or (iii) Company shall (1) apply for or consent to the appointment ofextent that the aggregate amount of all such judgments and orders in addition to (i) and (ii) above does not exceed $2,000,000;
(f) a notice of Lien, levy or the taking of possession by, a receiver, custodian, trustee assessment is filed or liquidator of itself or of recorded with respect to all or a substantial part of its property the assets of any Credit Party by the United States, or any department, agency or instrumentality thereof, or by any state, county, municipality or other governmental agency, or any Taxes or debts owing at any time or times hereafter to any one or more of them become a Lien upon all or a substantial part of the assets of any Credit Party or the Credit Parties taken as a whole, or any securities pledged to the Holders, and assets(i) such Lien, levy or assessment is not discharged or released or the enforcement thereof is not stayed within forty five (245) days of the notice or attachment thereof, or (ii) if the enforcement thereof is stayed, such stay shall cease to be generally unable in effect, provided that this Section 9.1(f) shall not apply to pay its debts as such debts become dueany Liens, levies or assessments which relate to current Taxes not yet due and payable;
(3g) make all or any part of assets of any Credit Party is attached, seized, subjected to a general assignment writ or distress warrant, or is levied upon, or comes within the possession of any receiver, trustee, custodian or assignee for the benefit of its creditors, (4) commence a voluntary case under the United States Bankruptcy Code creditors and on or similar law or regulation (as now or hereafter in effect), (5) file a petition seeking to take advantage of any other law providing for the relief of debtors, (6) fail to controvert in a timely or appropriate manner, or acquiesce in writing to, any petition filed against it in an involuntary case under the United States Bankruptcy Code or other law or regulation, (7) dissolve, (8) take any corporate action under any applicable law analogous to any of the foregoing, or (9) take any corporate action for the purpose of effecting any of the foregoing; or
(iv) a proceeding or case shall be commenced, without the application or consent of Company in any court of competent jurisdiction, seeking (1) the liquidation, reorganization, dissolution, winding up or composition or readjustment of its debts, (2) the appointment of a trustee, receiver, custodian, liquidator or the like of it or for all or any substantial part of its assets, or (3) similar relief in respect of Company, under any law providing for the relief of debtors, and such proceeding or case shall continue undismissed, or unstayed and in effect, for a period of sixty (60) days; or an order for relief shall be entered in an involuntary case under the United States Bankruptcy Code or other similar law or regulation, against Company; or action under the laws of any jurisdiction affecting Company analogous to any of the foregoing shall be taken with respect to Company and shall continue unstayed and in effect for any period of sixty (60) days; or
(v) final judgment for the payment of money shall be rendered by a court of competent jurisdiction against Company and Company shall not discharge the same or provide for its discharge in accordance with its terms, or procure a stay of execution thereof within before sixty (60) days from thereafter such assets are not returned to and/or such writ, distress warrant or levy is not dismissed, stayed or lifted and if the date amount of entry thereof such assets or collateral, together with any other assets and within said collateral that is so attached, seized, subjected to writ or distress warrant or levied upon, exceeds $2,000,000 at any time;
(h) a proceeding under any bankruptcy, reorganization, arrangement of debt, insolvency, readjustment of debt or receivership law or statute is filed (i) against any Credit Party and an adjudication or appointment is made or order for relief is entered, or such proceeding remains undismissed for a period in excess of sixty (60) days, or such longer period during which execution (ii) by any Credit Party; any Credit Party makes an assignment for the benefit of such judgment shall have been stayed, appeal therefrom and cause the execution thereof to be stayed during such appeal, and such judgment together with all other such judgments shall exceed in the aggregate US$100,000creditors; or
(vi) any representation Credit Party voluntarily or warranty made by Company in this Agreement, Loan Documentinvoluntarily dissolves or is dissolved, or terminates or is terminated; any other documents Credit Party takes any corporate, limited liability company or agreements contemplated hereby and thereby partnership, as applicable, action to authorize any of the foregoing; or in any certificate Credit Party becomes insolvent or other instrument delivered hereunder or pursuant hereto or in connection with any provision hereof shall be false or incorrect in any material respect on the date fails generally to pay its debts as of which made; orthey become due;
(vii) the indictment by any Governmental Person under any criminal statute, or commencement or threatened commencement of criminal or civil proceedings against the Company, pursuant to which statute or proceedings the penalties or remedies sought or available include forfeiture of (i) any Credit Party or any Subsidiary involuntarily dissolves or is involuntarily dissolved, or involuntarily terminates its existence or involuntarily has its existence terminated, that has a Material Adverse Effect;
(j) any Credit Party or any Cannabis License Holder is enjoined, restrained, or in any way prevented by the order of any Governmental Authority that prohibits the Collateral having Credit Parties, taken as a value whole, from conducting all or any material part of their collective business affairs, and such order is not dismissed, stayed or discharged within thirty (30) days;
(k) as to any Material Indebtedness of any Credit Party or any other Subsidiary,
(i) any Credit Party or any other Subsidiary shall fail to make any payment due (whether by scheduled maturity, required prepayment, acceleration, demand or otherwise) on any such Material Indebtedness and such failure shall continue after the applicable grace period, if any, specified in excess of $100,000 the agreement or instrument relating to such Material Indebtedness; (ii) any other property default or event of default under any agreement or instrument relating to any such Material Indebtedness, or any other event, shall occur and shall continue after the Company which applicable grace period, if any, specified in such agreement or instrument if the effect of such default, event of default or event is necessary to accelerate, or material to permit the conduct acceleration of, the maturity of its business; or
(viii) (A) the acquisition by any person (or group of persons as defined by the Securities Exchange Act of 1934 and the regulations thereunder) of more than 20% of the outstanding voting securities of the Company, (B) the public offer by any person (or group of persons as defined by the Securities Exchange Act of 1934 and the regulations thereunder) to acquire more than 20% of the outstanding voting securities of the Company; (C) the election in a contested proxy solicitation of candidates nominated by a person other than the Company that represent more than a majority of the full board of directorssuch Material Indebtedness; or (Diii) any such Material Indebtedness shall be declared to be due and payable or required to be prepaid (other event than by a regularly scheduled required payment) prior to the stated maturity thereof;
(l) default (after giving effect to any notice and cure periods) in the payment when due, or circumstance in the performance or observance of, any material obligation of, or condition agreed to by, any Credit Party with respect to any Material Agreement which could have a Material Adverse Effect (except only to the extent that Company is contesting the existence of any person acquires such default in good faith and by appropriate proceedings);
(m) any Guarantor shall, or shall attempt to, terminate or revoke any of its obligations under the right or ability to direct the management or control applicable guarantee agreement in favor of the Company who does not presently have Holders in connection with the right Obligations or ability to direct the management or control breach any of the Company without the prior approval terms of such guarantee agreement, or any Person executing a fidelity guaranty in favor of the Company’s board of directors.Holders in connection with the Obligations shall, or shall attempt to, terminate or revoke such guaranty;
(ixn) a Change of Control shall occur;
(o) any material adverse change in the Business of any Credit Party or any Subsidiary, from time to time, taken as a whole or the occurrence of any event or condition that is continuing that has a material adverse effect. then Material Adverse Effect;
(xp) upon any Credit Party shall, or shall attempt to, terminate, discontinue or revoke any of its obligations under any Operative Document;
(q) the occurrence of an ERISA Event results in, or would reasonably be expected to result in, a Material Adverse Effect or a Lien in excess of $2,000,000 on the assets of any Credit Party’s Property;
(r) if (i) the Company or any of its Subsidiaries is enjoined, restrained, or in any way prevented by the order of any court or any administrative or regulatory agency from conducting all or any material part of its business affairs or has its license revoked, or (ii) the Shares cease to be traded on the CSE or another national stock exchange, or (iii) the Company de- lists or is de-listed from the CSE or any other national stock exchange; provided, however, that it shall not be an Event of Default pursuant to this Section 9.1(r) if the foregoing results from a change in Law or applicable stock exchange rules and policies;
(s) subject to Section 9(c), any Cannabis License expires, terminates or fails to be renewed for any reason which, individually or in the aggregate with the expiration, termination or non-renewal of any other Cannabis License during the immediately preceding twelve (12) month period that is not re-issued or replaced within ninety (90) days of such expiration, termination or failure to be renewed and that results in a Material Adverse Effect; or
(t) any Operative Document to which any Credit Party is now or hereafter a party shall for any reason cease to be in full force and effect, or any Credit Party shall assert any of the foregoing. then, when any Event of Default (other than an Event of Default described in Section 7(a)(iiiclause (g), (h) or (iv)i) above) has occurred and shall be continuing, the unpaid Principal Amount principal of the Loan, together with Notes and the interest accrued thereon and all other amounts payable by Company due under this Agreementany Operative Document (collectively, shall automatically the “Other Payments”), shall, upon written notice from the Holders, forthwith become immediately and be due and payable, if not already due and payable, without presentment, demand, protest further demand or other requirements notice of any kind. If any Event of Default described in clause (g), (h) or (i) above occurs, the principal of all of which are hereby expressly waived by Company or (y) upon the occurrence of any other Event of DefaultNotes, Lender may, by notice to Company, declare the unpaid Principal Amount of the Loan to be, and the same shall forthwith become, due and payable, together with the interest accrued thereon and the Other Payments shall immediately become due and payable, upon the occurrence thereof, without presentment, demand, or notice of any kind. If any principal, installment of interest or Other Payment is not paid in full on the due date thereof (whether by maturity, prepayment or acceleration) or any Event of Default has occurred and is continuing, then the outstanding principal balance of the Notes, any overdue installment of interest (to the extent permitted by applicable law), including interest accruing after the commencement of any proceeding under any bankruptcy or insolvency law and all Other Payments will bear additional interest from the due date of such payment, or from and after an Event of Default, at a rate equal to the lesser of (i) the highest rate allowed by applicable law or (ii) an amount equal to the then applicable interest rate on the Notes, plus three percent (3%) per annum (such rate being referred to as the “Default Rate”), compounded quarterly, until the payment is received or the Event of Default is cured, if permitted, or waived in writing in accordance with the terms hereof. If payment of the Notes is accelerated, then the outstanding principal balance thereof shall bear interest at the Default Rate from and after the Event of Default. The Credit Parties shall pay to the Holders all invoiced out-of-pocket costs, fees and expenses incurred by the Holders in any effort to collect the Notes, and the other amounts payable payments, including reasonable attorneys’ fees and expenses for services rendered in connection therewith, and pay interest on such costs and expenses to the extent not paid when demanded at the Default Rate. Notwithstanding anything contained herein or in any other Operative Document to the contrary, to the extent any default by Company hereunderthe tenant under any lease or similar agreement between any direct or indirect subsidiary of Treehouse REIT and any direct or indirect subsidiary of any Borrower would result in a breach of any representation, warranty or covenant of such Borrower set forth herein or in any of the other Operative Documents, such default under such lease shall not constitute an Event of Default except in the case of a default under such lease beyond any applicable notice and cure periods set forth in such lease, in each case of such default and cure, if the landlord under such lease has notified any Credit Party or any of their Subsidiaries of such default in writing.
Appears in 2 contracts
Samples: Securities Purchase Agreement (MedMen Enterprises, Inc.), Securities Purchase Agreement
Events of Default Defined; Acceleration of Maturity. If any one or more of the following events (“"Events of Default”") shall occur and be continuing (whatever the reason for any reason whatsoever such Event of Default and whether it shall be voluntary or involuntary or be effected by operation of law or otherwise):pursuant to any judgment, decree or order of any court or any order, rule or regulation of any administrative or governmental body), that is to say:
(ia) if default shall be made in the due and punctual payment of all or any part of the Principal Amount principal of, or interest premium (if any) on, the Loan or any other Obligation Note when and as the same shall become due and payable, whether at the stated maturitymaturity thereof, by accelerationnotice of or demand for prepayment, upon a Mandatory Prepayment Event or otherwise; or
(b) if default shall be made in the due and punctual payment of any interest on any Note when and as such interest shall become due and payable and such default shall have continued for a period of three Business Days; or
(c) if (i) default shall be made in the performance or observance of any covenant, agreement or condition contained in section 10.1 or 10.2 and such default shall continue unremedied for ten (10) Business Days after the occurrence thereof or (ii) default shall be made in the performance or observance of any covenant, agreement or condition contained in section 10.3 or 10.4; or
(d) if default shall be made in the performance or observance of any other of the covenants, agreements or conditions contained in this Agreement or in any of the other Loan DocumentsOperative Documents (other than as covered by paragraphs (a), including but not limited to the failure (b) and (c) of any financial covenant contained herein, this Section 12.1) and such default shall have continued for a period of ten (10) Business Days; provided, that, such ten (10) Business Day period shall not apply in 30 days after the case of: (A) any failure to observe any covenant which is not capable of being cured at all or within such ten (10) Business Day period or which has been the subject of a prior failure within a six (6) month period or (B) an intentional breach by the Company of any covenantoccurrence thereof; or
(iiie) if an involuntary case shall be commenced against the Company or any of the Company's Material Subsidiaries and the petition shall not be dismissed, stayed, bonded or discharged within sixty (160) apply days after commencement of the case; or a court having jurisdiction in the premises shall enter a decree or order for relief in respect of the Company or consent to any of the Company's Material Subsidiaries in an involuntary case, under any applicable bankruptcy, insolvency or other similar law now or hereinafter in effect; or any other similar relief shall be granted under any applicable federal, state, local or foreign law.; or
(f) if a decree or order of a court having jurisdiction in the premises for the appointment of, or the taking of possession by, a receiver, custodianliquidator, sequestrator, trustee, custodian or other officer having similar powers over the Company or any of the Company's Subsidiaries or over all or a substantial part of the property of the Company or any of the Company's Subsidiaries shall be entered; or an interim receiver, trustee or liquidator other custodian of itself the Company or any of the Company's Subsidiaries or of all or a substantial part of its the property of the Company or any of the Company's Subsidiaries shall be appointed or a warrant of attachment, execution or similar process against any substantial part of the property of the Company or any of the Company's Subsidiaries shall be issued and assetsany such event shall not be stayed, dismissed, bonded or discharged within sixty (260) be generally unable days after entry, appointment or issuance provided that such Event of Default shall not arise in respect of any Subsidiary of the Company that is not a Material Subsidiary and for which a waiver of any Event of Default (or similar term within the meaning of the Bank Credit Agreement) arising from the foregoing events has been granted to pay its debts as such debts become due, the Company by the requisite percentage of Bank Lenders pursuant to the Bank Credit Agreement prior to the expiry of the preceding sixty (360) make a general assignment for day period; or
(g) if the benefit Company or any of its creditors, the Company's Subsidiaries shall (4i) commence a voluntary case under the United States Bankruptcy Code any applicable bankruptcy, insolvency or other similar law or regulation (as now or hereafter in effect), (5ii) file a petition seeking consent to take advantage the entry of any other law providing an order for the relief of debtors, (6) fail to controvert in a timely or appropriate manner, or acquiesce in writing to, any petition filed against it in an involuntary case, or to the conversion of an involuntary case to a voluntary case, under any such law, (iii) consent to the United States Bankruptcy Code appointment of or taking possession by a receiver, trustee or other law custodian for all or regulationa substantial part of its property, (7iv) dissolve, (8) take make any corporate action under any applicable law analogous to any assignment for the benefit of the foregoing, creditors or (9v) take any corporate action for the purpose of effecting to authorize any of the foregoing; or
(iv) a proceeding or case provided that such Event of Default shall be commenced, without the application or consent of Company in any court of competent jurisdiction, seeking (1) the liquidation, reorganization, dissolution, winding up or composition or readjustment of its debts, (2) the appointment of a trustee, receiver, custodian, liquidator or the like of it or for all or any substantial part of its assets, or (3) similar relief not arise in respect of Company, under any law providing Subsidiary of the Company that is not a Material Subsidiary and for the relief of debtors, and such proceeding or case shall continue undismissed, or unstayed and in effect, for which a period of sixty (60) days; or an order for relief shall be entered in an involuntary case under the United States Bankruptcy Code or other similar law or regulation, against Company; or action under the laws waiver of any jurisdiction affecting Event of Default (or similar term within the meaning of the Bank Credit Agreement) arising from the foregoing events has been granted to the Company analogous by the requisite percentage of Bank Lenders pursuant to the Bank Credit Agreement prior to taking any of the foregoing shall be taken with respect to Company and shall continue unstayed and in effect for any period of sixty (60) daysactions; or
(vh) if the Company or any of its Subsidiaries shall fail to (i) make any payment due on any Indebtedness (other than the Notes or the Senior Bank Obligations) or other obligation (including any in respect of any lease or any Capital Stock upon the exercise by any Person of any put or call option or other similar right of redemption or repurchase with regard to such Shares) when due (subject to applicable grace periods), if the aggregate outstanding amount thereof (and of any other Indebtedness or other obligation as to which the Company or any of its Subsidiaries is in default) exceeds $6,000,000 (or the equivalent thereof, as at any date of determination, in any other currency) or (ii) perform, observe or discharge any covenant, condition or obligation in any agreement, document or instrument evidencing, securing or relating to such Indebtedness or other obligation, if the effect of any such failure of the character described in this clause (ii) is to cause, or permit such Person to cause, any payment in an aggregate amount of $6,000,000 (or the equivalent thereof, as at any date of determination, in any other currency) or more to become due and payable, or if any such Indebtedness or other obligation in an aggregate amount of $6,000,000 (or the equivalent thereof, as at any date of determination, in any other currency) or more shall become due and payable by its terms and shall not be paid or extended; or
(i) if a final judgment for the payment of money which, together with all other outstanding final judgments for the payment of money against the Company or any of its Subsidiaries, exceeds an aggregate of $1,500,000 (or the equivalent thereof, as at any date of determination, in any other currency) shall be rendered by a court of competent jurisdiction record against the Company or any of its Subsidiaries, and the Company or any of its Subsidiaries shall not discharge the same or provide for its discharge in accordance with its terms, or procure a stay of execution thereof within sixty (60) 30 days from the date of entry thereof and within said such period of sixty (60) 30 days, or such longer period during which execution of such judgment shall have been stayed, move to vacate such judgment or appeal therefrom and cause the execution thereof to be stayed pending determination of such motion or during such appeal, and such judgment together with all other such judgments shall exceed in the aggregate US$100,000; or
(vij) if any representation or warranty made by or on behalf of the Company or any of its Subsidiaries in this Agreement, Loan Document, or any other documents or agreements contemplated hereby and thereby Agreement or in any certificate of the other Operative Documents or other in any agreement, document or instrument delivered hereunder under or pursuant hereto or in connection with to any provision hereof or thereof shall be prove to have been materially false or incorrect in any material respect on the date as of which made; or
(viik) if, at any time, this Agreement or any of the indictment by other Operative Documents shall for any Governmental Person under any criminal statutereason (other than the scheduled termination thereof in accordance with its terms) expire, fail to be in full force and effect or commencement be disaffirmed, repudiated, canceled, terminated or threatened commencement of criminal or civil proceedings against the Companydeclared to be unenforceable, pursuant to which statute or proceedings the penalties or remedies sought or available include forfeiture of null and void; or
(l) if (i) any Plan shall fail to satisfy the minimum funding standards of ERISA or the Code for any plan year or part thereof or a waiver of such standards or extension of any amortization period is sought or granted under section 412 of the Collateral having a value in excess of $100,000 or Code, (ii) a notice of intent to terminate any Plan shall have been or is reasonably expected to be filed with the PBGC or the PBGC shall have instituted proceedings under section 4042 of ERISA to terminate or appoint a trustee to administer any Plan or the PBGC shall have notified the Company or any ERISA Affiliate that a Plan may become a subject of any such proceedings, (iii) the aggregate "amount of unfunded benefit liabilities" (within the meaning of section 4001(a)(18) of ERISA) under all Plans, determined in accordance with Title IV of ERISA, shall exceed $1,500,000 (or the equivalent thereof, as at any date of determination, in any other property currency), (iv) the Company or any ERISA Affiliate shall have incurred or is reasonably expected to incur any liability pursuant to Title I or IV of ERISA or the penalty or excise tax provisions of the Code relating to employee benefit plans, (v) the Company or any ERISA Affiliate withdraws from any Multiemployer Plan, (vi) the Company or any Subsidiary of the Company which is necessary establishes or material amends any employee welfare benefit plan that provides post-employment welfare benefits in a manner that would increase the liability of the Company and/or its Subsidiaries thereunder, or (vii) any termination Event occurs; and any such event or events described in clauses (i) through (vii) above, either individually or together with any other such event or events, has resulted in, or could reasonably be expected to result in, a Material Adverse Effect;
(m) acceleration of any Indebtedness under the Bank Credit Agreement or the Seller Notes, subject to the conduct terms of its businessthe Subordination Agreements; or
(viii) (An) the acquisition by any person (or group IRS shall notify Borrower in writing that it has made a final determination not subject to cure that the ESOP is not a qualified plan and employee stock ownership plan within the meanings of persons as defined by the Securities Exchange Act of 1934 Section 401(a) and the regulations thereunder) of more than 20% 4975(e)(7), respectively, of the outstanding voting securities of Code; then, in the Company, (B) the public offer by any person (or group of persons as defined by the Securities Exchange Act of 1934 and the regulations thereunder) to acquire more than 20% of the outstanding voting securities of the Company; (C) the election in a contested proxy solicitation of candidates nominated by a person other than the Company that represent more than a majority of the full board of directors; or (D) any other event or circumstance in which any person acquires the right or ability to direct the management or control of the Company who does not presently have the right or ability to direct the management or control of the Company without the prior approval of the Company’s board of directors.
(ix) the occurrence of any event or condition that has a material adverse effect. then (x) upon the occurrence case of any Event of Default (other than one of the character described in Section 7(a)(iiisubdivisions (e), (f) or (ivg) of this section 12.1 with respect to the Company or any Material Subsidiary) and at the option of the Required Holders of the Notes at the time outstanding (excluding any Notes at the time owned by any of the Company or any of its Affiliates), exercised by written notice to the unpaid Principal Amount Company, the principal of the Loanall Notes shall forthwith become due and payable, together with the interest accrued thereon and all other amounts payable by Company under this Agreement, shall automatically become immediately due and payablethereon, without presentment, demand, protest or other requirements notice of any kind, all of which are hereby expressly waived waived, and the Company shall forthwith upon any such acceleration pay to the holder or holders of all the Notes then outstanding (i) the entire principal of and interest accrued on the Notes, and (ii) in addition, to the extent permitted by Company applicable law, an amount equal to the premium that would be payable upon a prepayment of the Notes pursuant to section 8.1 at such time, as liquidated damages and not as a penalty; provided that, in the case of an Event of Default of the character described in subdivisions (a) or (yb) upon of this section 12.1 and irrespective of whether all of the occurrence Notes have been declared due and payable by the Required Holders of the Notes at the time outstanding, any other holder of Notes who or which has not consented to any waiver with respect to such Event of Default, Lender Default may, at the option of such holder, by written notice to the Company, declare the unpaid Principal Amount of the Loan all Notes then held by such holder to be, and the same such Notes shall forthwith thereupon become, forthwith due and payable, together with interest accrued thereon, without presentment, demand, protest or other notice of any kind, all of which are hereby expressly waived, and the Company shall forthwith upon any such acceleration pay to such holder (i) the entire principal of and interest accrued on such Notes, and (ii) in addition, to the extent permitted by applicable law, an amount equal to the premium that would be payable upon a prepayment of the Notes pursuant to section 8.1 at such time, as liquidated damages and not as a penalty; provided, further, that, in the case of an Event of Default of the character described in subdivisions (e), (f) or (g) of this section 12.1 with respect to the Company or any Material Subsidiary, the principal of all Notes shall forthwith become due and payable, together with interest accrued thereon (including any interest accruing after the commencement of any action or proceeding under the federal bankruptcy laws, as now or hereafter constituted, or any other applicable domestic or foreign federal or state bankruptcy, insolvency or other similar law, and any other interest that would have accrued but for the commencement of such proceeding, whether or not any such interest is allowed as an enforceable claim in such proceeding), without presentment, demand, protest or other notice of any kind, all of which are hereby expressly waived, and the Company shall forthwith upon any such acceleration pay to the holder or holders of all the Notes then outstanding (i) the entire principal of and interest accrued on the Notes, and (ii) in addition, to the extent permitted by applicable law, an amount equal to the premium that would be payable upon a prepayment of the Notes pursuant to section 8.1 at such time, as liquidated damages and not as a penalty. Notwithstanding the foregoing provisions, at any time after the occurrence of any Event of Default and of notice thereof, if any, by any holder or holders of Notes and before any judgment, decree or order for payment of the money due has been obtained by or on behalf of any holder or holders of the Notes, the Required Holders of the Notes by written notice to the Company, may rescind and annul such Event of Default and/or notice of such Event of Default and the consequences thereof with respect to all of the Notes (including any Notes which were accelerated pursuant to the first proviso in the preceding paragraph by any holder or holders on account of an Event of Default of the character described in subdivision (a) or (b) of this section 12.1) if:
(1) the Company has paid a sum sufficient to pay
(A) all overdue installments of interest on all Notes at the rate specified in the Notes;
(B) the principal of (and premium, if any, on) any Notes which have become due otherwise than by such Event of Default or notice thereof and interest thereon at the rate for overdue amounts specified in such Notes; and
(C) to the extent that payment of such interest is lawful, interest upon overdue interest at the rate for overdue amounts specified in such Notes; and
(2) all Defaults and Events of Default, other amounts payable than the non-payment of the principal of Notes which have become due solely by Company hereundersuch acceleration, have been cured or waived as provided in section 12. No such rescission shall affect any subsequent default or impair any right consequent thereon.
Appears in 2 contracts
Samples: Mezzanine Note Securities Purchase Agreement (Alion Science & Technology Corp), Mezzanine Note Securities Purchase Agreement (Alion Science & Technology Corp)
Events of Default Defined; Acceleration of Maturity. If any of the following events (“"Events of Default”") shall occur and be continuing (for any reason whatsoever and whether it shall be voluntary or involuntary or by operation of law or otherwise):
(i) default shall be made in the payment of the Principal Amount principal of, or interest on, the Loan or any other Obligation loan when and as the same shall become due and payable, whether at stated maturity, by acceleration, upon a Mandatory Prepayment Event mandatory prepayment due date or otherwise; or
(ii) default shall be made in the performance or observance of any covenant, agreement or condition contained in this Agreement or in any of the other Loan Documents, including but not limited to the failure of any financial covenant contained herein, and such default shall have continued for a period of ten five (105) Business Days; providedbusiness days following receipt of written notice of such default, thatprovided however, that failure by any party to give notice of such ten (10) Business Day period default shall not apply in the case of: (A) relieve Company from any failure to observe any covenant which is not capable of being cured at all or within such ten (10) Business Day period or which has been the subject of a prior failure within a six (6) month period or (B) an intentional breach by the Company of any covenantliability under this Section; or
(iii) Company shall (1) apply for or 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 and assets, (2) be generally unable to pay its debts as such debts become due, (3) make a general assignment for the benefit of its creditors, (4) commence a voluntary case under the United States Bankruptcy Code or similar law or regulation (as now or hereafter in effect), (5) file a petition seeking to take advantage of any other law providing for the relief of debtors, (6) fail to controvert in a timely or appropriate manner, or acquiesce in writing to, any petition filed against it in an involuntary case under the United States Bankruptcy Code or other law or regulation, (7) dissolve, (8) take any corporate action under any applicable law analogous to any of the foregoing, or (9) take any corporate action for the purpose of effecting any of the foregoing; or
(iv) a proceeding or case shall be commenced, without the application or consent of Company in any court of competent jurisdiction, seeking (1) the liquidation, reorganization, dissolution, winding up or composition or readjustment of its debts, (2) the appointment of a trustee, receiver, custodian, liquidator or the like of it or for all or any substantial part of its assets, or (3) similar relief in respect of Company, under any law providing for the relief of debtors, and such proceeding or case shall continue undismissed, or unstayed and in effect, for a period of sixty (60) days; or an order for relief shall be entered in an involuntary case under the United States Bankruptcy Code or other similar law or regulation, against Company; or action under the laws of any jurisdiction affecting Company analogous to any of the foregoing shall be taken with respect to Company and shall continue unstayed and in effect for any period of sixty (60) days; or
(v) final judgment for the payment of money shall be rendered by a court of competent jurisdiction against Company and Company shall not discharge the same or provide for its discharge in accordance with its terms, or procure a stay of execution thereof within sixty (60) days from the date of entry thereof and within said period of sixty (60) days, or such longer period during which execution of such judgment shall have been stayed, appeal therefrom and cause the execution thereof to be stayed during such appeal, and such judgment together with all other such judgments shall exceed in the aggregate US$$100,000; or
(vi) any representation or warranty made by Company in this Agreement, Loan Document, or any other documents or agreements contemplated hereby and thereby or in any certificate or other instrument delivered hereunder or pursuant hereto or in connection with any provision hereof shall be false or incorrect in any material respect on the date as of which made; or;
(vii) the indictment by any Governmental Person under any criminal statute, or commencement or threatened commencement of criminal or civil proceedings against the Company, pursuant to which statute or proceedings the penalties or remedies sought or available include forfeiture of (i) any of the Collateral having a value in excess of $100,000 or (ii) any other property of the Company which is necessary or material to the conduct of its business; or
(viii) (A) the acquisition by any person (or group of persons as defined by the Securities Exchange Act of 1934 and the regulations thereunder) of more than 20% of the outstanding voting securities of the Company, (B) the public offer by any person (or group of persons as defined by the Securities Exchange Act of 1934 and the regulations thereunder) to acquire more than 20% of the outstanding voting securities of the Company; (C) the election in a contested proxy solicitation of candidates nominated by a person other than the Company that represent more than a majority of the full board of directors; or (D) any other event or circumstance in which any person acquires the right or ability to direct the management or control of the Company who does not presently have the right or ability to direct the management or control of the Company without the prior approval of the Company’s board of directors.
(ix) the occurrence of any event or condition that has a material adverse effect. then (x) upon the occurrence of any Event of Default described in Section 7(a)(iii) or (iv), the unpaid Principal Amount principal amount of the Loanloan, together with the interest accrued thereon and all other amounts payable by Company under this Agreement, shall automatically become immediately due and payable, without presentment, demand, protest or other requirements of any kind, all of which are hereby expressly waived by Company or (y) upon the occurrence of any other Event of Default, Lender Holder may, by notice to CompanyCompany indicating the Event or Events of Default, declare the unpaid Principal Amount principal amount of the Loan loan to be, and the same shall forthwith become, due and payable, together with the interest accrued thereon and all other amounts payable by Company hereunder. Failure by the Holder to indicate any Event of Default in any one notice shall not preclude the Holder from indicating such omitted Event or Events of Default in future notices and shall not relieve Company of any liability under this Agreement, nor constitute a waiver of Holder's rights under this Agreement.
Appears in 2 contracts
Samples: Loan Agreement (Headwaters Inc), Loan and Security Agreement (Headwaters Inc)
Events of Default Defined; Acceleration of Maturity. If any of the following events (“Events of Default”) shall occur and be continuing (for any reason whatsoever and whether it shall be voluntary or involuntary or by operation of law or otherwise):
(i) default shall be made in failure by the Company to make a payment of principal within ten days after the Principal Amount of, or interest on, the Loan or any other Obligation when and as the same shall become due and payabledate, whether at stated maturity, maturity or by acceleration, upon a Mandatory Prepayment Event reason of acceleration pursuant to the terms of this Agreement or otherwise; orby required prepayment;
(ii) default shall be made in failure by the performance Company to pay any interest accrued and owing within ten days after the applicable due date, or observance of failure to pay any covenantother liabilities or make any other payment, agreement fee or condition contained in this Agreement charge provided for herein or in any of other document contemplated hereby within ten days after the other Loan Documents, including but not limited to the failure of any financial covenant contained herein, and such default shall have continued for a period of ten (10) Business Days; provided, that, such ten (10) Business Day period shall not apply in the case of: (A) any failure to observe any covenant which is not capable of being cured at all or within such ten (10) Business Day period or which has been the subject of a prior failure within a six (6) month period or (B) an intentional breach by the Company of any covenant; ordue date;
(iii) any representation or warranty made or deemed made by the Company in this Agreement shall prove to have been incorrect, untrue, or misleading in any material respect on the date when made or deemed to have been made; provided, however, that the Company shall have ten Business Days from notice of default to cure any such failure that is capable of cure before an Event of Default shall be deemed to have occurred under this Section;
(iv) failure by the Company to perform any of the covenants imposed by this Agreement; provided, however, that the Company shall have ten Business Days from notice of the default to cure any such failure that is capable of cure before an Event of Default shall be deemed to have occurred under this Section;
(v) the Company shall (1) apply for or 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 and assets, (2) be generally unable to pay its debts as such debts become due, (3) make a general assignment for the benefit of its creditors, (4) commence a voluntary case under the United States Bankruptcy Code or similar law or regulation (as now or hereafter in effect), (5) file a petition seeking to take advantage of any other law providing for the relief of debtors, (6) fail to controvert in a timely or appropriate manner, or acquiesce in writing to, any petition filed against it in an involuntary case under the United States Bankruptcy Code or other law or regulation, (7) dissolve, (8) take any corporate action under any applicable law analogous to any of the foregoing, or (9) take any corporate action for the purpose of effecting any of the foregoing; or;
(ivvi) a proceeding or case shall be commenced, without the application or consent of Company in any court of competent jurisdiction, seeking (1) the liquidation, reorganization, dissolution, winding up or composition or readjustment of its debts, (2) the appointment of a trustee, receiver, custodian, liquidator or the like of it or for all or any substantial part of its assets, or (3) similar relief in respect of Company, under any law providing for the relief of debtors, and such proceeding or case shall continue undismissed, or unstayed and in effect, for a period of sixty (60) days; or an order for relief shall be entered in an involuntary case under the United States Bankruptcy Code or other similar law or regulation, against Company; or action under the laws of any jurisdiction affecting Company analogous to any of the foregoing shall be taken with respect to Company and shall continue unstayed and in effect for any period of sixty (60) days; or
(vvii) final judgment for the payment of money shall be rendered by a court of competent jurisdiction against Company and Company shall not discharge the same or provide for its discharge in accordance with its terms, or procure a stay of execution thereof within sixty (60) days from the date of entry thereof and within said period of sixty (60) days, or such longer period during which execution of such judgment shall have been stayed, appeal therefrom and cause the execution thereof to be stayed during such appeal, and such judgment together with all other such judgments shall exceed in the aggregate US$100,000; or
(vi) any representation or warranty made by Company 50,000. then, subject to the rights of the Laurus Master Fund LTD contained in this the Subordination Agreement, Loan Document, or any other documents or agreements contemplated hereby and thereby or in any certificate or other instrument delivered hereunder or pursuant hereto or in connection with any provision hereof shall be false or incorrect in any material respect on the date as of which made; or
(vii) the indictment by any Governmental Person under any criminal statute, or commencement or threatened commencement of criminal or civil proceedings against the Company, pursuant to which statute or proceedings the penalties or remedies sought or available include forfeiture of (i) any of the Collateral having a value in excess of $100,000 or (ii) any other property of the Company which is necessary or material to the conduct of its business; or
(viii) (A) the acquisition by any person (or group of persons as defined by the Securities Exchange Act of 1934 and the regulations thereunder) of more than 20% of the outstanding voting securities of the Company, (B) the public offer by any person (or group of persons as defined by the Securities Exchange Act of 1934 and the regulations thereunder) to acquire more than 20% of the outstanding voting securities of the Company; (C) the election in a contested proxy solicitation of candidates nominated by a person other than the Company that represent more than a majority of the full board of directors; or (D) any other event or circumstance in which any person acquires the right or ability to direct the management or control of the Company who does not presently have the right or ability to direct the management or control of the Company without the prior approval of the Company’s board of directors.
(ix) the occurrence of any event or condition that has a material adverse effect. then (x) upon the occurrence of any Event of Default described in Section 7(a)(iii7(a)(vi) or (ivvii), the unpaid Principal Amount principal amount of the Loanloan, together with the interest accrued thereon and all other amounts payable by Company under this Agreement, shall automatically become immediately due and payable, without presentment, demand, protest protest, notice of acceleration or intent to accelerate or other requirements of any kind, all of which are hereby expressly waived by Company or (y) upon the occurrence of any other Event of Default, Lender Holder may, by notice to Company, declare the unpaid Principal Amount principal amount of the Loan loan to be, and the same shall forthwith become, due and payable, together with the interest accrued thereon and all other amounts payable by Company hereunder. Failure by Holder to indicate any Event of Default in any one notice shall not preclude Holder from indicating such omitted Event or Events of Default in future notices and shall not relieve Company of any liability under this Agreement, nor constitute a waiver of Holder’s rights under this Agreement.
Appears in 2 contracts
Samples: Loan and Security Agreement (Auxilio Inc), Loan and Security Agreement (Auxilio Inc)
Events of Default Defined; Acceleration of Maturity. If any of --------------------------------------------------- the following events (“"Events of Default”") shall occur and be continuing (for ----------------- any reason whatsoever and whether it shall be voluntary or involuntary or by operation of law or otherwise):
(i) A. default shall be made in the payment of the Principal Amount principal of, or interest on, the Loan or any other Obligation Note when and as the same shall become due and payable, whether at stated maturity, by acceleration, upon a Mandatory Prepayment Event mandatory prepayment due date or otherwise; or
B. default shall be made in the performance or observance of any covenant, agreement or condition contained herein or in any of the other Loan Documents, and such default shall have continued for a period of five (ii5) Business Days; or
C. default shall be made in the performance or observance of any covenant, agreement or condition contained in this the Nomura Agreement or in any of the other Loan Documents, including but not limited to the failure of any financial covenant contained herein, and such default shall have continued for a period resulted in an acceleration of ten (10) Business Days; provided, that, such ten (10) Business Day period shall not apply in the case of: (A) any failure to observe any covenant which is not capable of being cured at all or within such ten (10) Business Day period or which has been obligations under the subject of a prior failure within a six (6) month period or (B) an intentional breach by the Company of any covenantNomura Agreement; or
(iii) D. the Company shall (1) apply for or 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 and assets, (2) be generally unable to pay its debts as such debts become due, (3) make a general assignment for the benefit of its creditors, (4) commence a voluntary case under the United States Bankruptcy Code or similar law or regulation (as now or hereafter in effect), (5) file a petition seeking to take advantage of any other law providing for the relief of debtors, (6) fail to controvert in a timely or appropriate manner, or acquiesce in writing to, any petition filed against it in an involuntary case under the United States such Bankruptcy Code or other law or regulation, (7) dissolve, (8) take any corporate action under any applicable law analogous to any of the foregoing, or (9) take any corporate action for the purpose of effecting any of the foregoing; or
(iv) E. a proceeding or case shall be commenced, without the application or consent of the Company in any court of competent jurisdiction, seeking (1) the liquidation, reorganization, dissolution, winding up or composition or readjustment of its debts, (2) the appointment of a trustee, receiver, custodian, liquidator or the like of it or for all or any substantial part of its assets, or (3) similar relief in respect of the Company, under any law providing for the relief of debtors, and such proceeding or case shall continue undismissed, or unstayed and in effect, for a period of sixty (60) days; or an order for relief shall be entered in an involuntary case under the United States Bankruptcy Code or other similar law or regulation, against the Company; or action under the laws of any jurisdiction affecting the Company analogous to any of the foregoing shall be taken with respect to the Company and shall continue unstayed and in effect for any period of sixty (60) days; or
(v) F. final judgment for the payment of money shall be rendered by a court of competent jurisdiction against the Company and the Company shall not discharge the same or provide for its discharge in accordance with its terms, or procure a stay of execution thereof within sixty (60) days from the date of entry thereof and within said period of sixty (60) days, or such longer period during which execution of such judgment shall have been stayed, appeal therefrom and cause the execution thereof to be stayed during such appeal, and such judgment together with all other such judgments shall exceed in the aggregate US$100,00050,000; or
(vi) G. any representation or warranty made by the Company in this Agreement, Loan Document, or any other documents or agreements contemplated hereby and thereby or in any certificate or other instrument delivered hereunder or pursuant hereto or in connection with any provision hereof shall be false or incorrect in any material respect on the date as of which made; or
(vii) the indictment by any Governmental Person under any criminal statute, or commencement or threatened commencement of criminal or civil proceedings against the Company, pursuant to which statute or proceedings the penalties or remedies sought or available include forfeiture of (i) any of the Collateral having a value in excess of $100,000 or (ii) any other property of the Company which is necessary or material to the conduct of its business; or
(viii) (A) the acquisition by any person (or group of persons as defined by the Securities Exchange Act of 1934 and the regulations thereunder) of more than 20% of the outstanding voting securities of the Company, (B) the public offer by any person (or group of persons as defined by the Securities Exchange Act of 1934 and the regulations thereunder) to acquire more than 20% of the outstanding voting securities of the Company; (C) the election in a contested proxy solicitation of candidates nominated by a person other than the Company that represent more than a majority of the full board of directors; or (D) any other event or circumstance in which any person acquires the right or ability to direct the management or control of the Company who does not presently have the right or ability to direct the management or control of the Company without the prior approval of the Company’s board of directors.
(ix) the occurrence of any event or condition that has a material adverse effect. then (x) upon the occurrence of any Event of Default described in Section 7(a)(iii) or (iv), the unpaid Principal Amount of the Loan, together with the interest accrued thereon and all other amounts payable by Company under this Agreement, shall automatically become immediately due and payable, without presentment, demand, protest or other requirements of any kind, all of which are hereby expressly waived by Company or (y) upon the occurrence of any other Event of Default, Lender may, by notice to Company, declare the unpaid Principal Amount of the Loan to be, and the same shall forthwith become, due and payable, together with the interest accrued thereon and all other amounts payable by Company hereunder.;
Appears in 1 contract
Events of Default Defined; Acceleration of Maturity. If any of --------------------------------------------------- the following events (“"Events of Default”") shall occur and be continuing (for ----------------- any reason whatsoever and whether it shall be voluntary or involuntary or by operation of law or otherwise):
(i) default shall be made in the payment of the Principal Amount principal of, or interest on, the Loan or any other Obligation loan when and as the same shall become due and payable, whether at stated maturity, by acceleration, upon a Mandatory Prepayment Event mandatory prepayment due date or otherwise; or
(ii) default shall be made in the performance or observance of any covenant, agreement or condition contained in this Agreement or in any of the other Loan Documents, including but not limited to the failure of any financial covenant contained herein, and such default shall have continued for a period of ten five (105) Business Days; providedbusiness days following receipt of written notice of such default, thatprovided however, that failure by any party to give notice of such ten (10) Business Day period default shall not apply in the case of: (A) relieve Company from any failure to observe any covenant which is not capable of being cured at all or within such ten (10) Business Day period or which has been the subject of a prior failure within a six (6) month period or (B) an intentional breach by the Company of any covenantliability under this Section; or
(iii) Company shall (1) apply for or 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 and assets, (2) be generally unable to pay its debts as such debts become due, (3) make a general assignment for the benefit of its creditors, (4) commence a voluntary case under the United States Bankruptcy Code or similar law or regulation (as now or hereafter in effect), (5) file a petition seeking to take advantage of any other law providing for the relief of debtors, (6) fail to controvert in a timely or appropriate manner, or acquiesce in writing to, any petition filed against it in an involuntary case under the United States Bankruptcy Code or other law or regulation, (7) dissolve, (8) take any corporate action under any applicable law analogous to any of the foregoing, or (9) take any corporate action for the purpose of effecting any of the foregoing; or
(iv) a proceeding or case shall be commenced, without the application or consent of Company in any court of competent jurisdiction, seeking (1) the liquidation, reorganization, dissolution, winding up or composition or readjustment of its debts, (2) the appointment of a trustee, receiver, custodian, liquidator or the like of it or for all or any substantial part of its assets, or (3) similar relief in respect of Company, under any law providing for the relief of debtors, and such proceeding or case shall continue undismissed, or unstayed and in effect, for a period of sixty (60) days; or an order for relief shall be entered in an involuntary case under the United States Bankruptcy Code or other similar law or regulation, against Company; or action under the laws of any jurisdiction affecting Company analogous to any of the foregoing shall be taken with respect to Company and shall continue unstayed and in effect for any period of sixty (60) days; or
(v) final judgment for the payment of money shall be rendered by a court of competent jurisdiction against Company and Company shall not discharge the same or provide for its discharge in accordance with its terms, or procure a stay of execution thereof within sixty (60) days from the date of entry thereof and within said period of sixty (60) days, or such longer period during which execution of such judgment shall have been stayed, appeal therefrom and cause the execution thereof to be stayed during such appeal, and such judgment together with all other such judgments shall exceed in the aggregate US$100,00050,000; or
(vi) any representation or warranty made by Company in this Agreement, Loan Document, or any other documents or agreements contemplated hereby and thereby or in any certificate or other instrument delivered hereunder or pursuant hereto or in connection with any provision hereof shall be false or incorrect in any material respect on the date as of which made; or
(vii) the indictment by any Governmental Person under any criminal statute, or commencement or threatened commencement of criminal or civil proceedings against the Company, pursuant to which statute or proceedings the penalties or remedies sought or available include forfeiture of (i) any of the Collateral having a value in excess of $100,000 or (ii) any other property of the Company which is necessary or material to the conduct of its business; or
(viii) (A) the acquisition by any person (or group of persons as defined by the Securities Exchange Act of 1934 and the regulations thereunder) of more than 20% of the outstanding voting securities of the Company, (B) the public offer by any person (or group of persons as defined by the Securities Exchange Act of 1934 and the regulations thereunder) to acquire more than 20% of the outstanding voting securities of the Company; (C) the election in a contested proxy solicitation of candidates nominated by a person other than the Company that represent more than a majority of the full board of directors; or (D) any other event or circumstance in which any person acquires the right or ability to direct the management or control of the Company who does not presently have the right or ability to direct the management or control of the Company without the prior approval of the Company’s board of directors.
(ix) the occurrence of any event or condition that has a material adverse effect. then (x) upon the occurrence of any Event of Default described in Section 7(a)(iii) or (iv), the unpaid Principal Amount of the Loan, together with the interest accrued thereon and all other amounts payable by Company under this Agreement, shall automatically become immediately due and payable, without presentment, demand, protest or other requirements of any kind, all of which are hereby expressly waived by Company or (y) upon the occurrence of any other Event of Default, Lender may, by notice to Company, declare the unpaid Principal Amount of the Loan to be, and the same shall forthwith become, due and payable, together with the interest accrued thereon and all other amounts payable by Company hereunder.;
Appears in 1 contract
Samples: Loan and Security Agreement (Holiday Rv Superstores Inc)
Events of Default Defined; Acceleration of Maturity. If any of the following events (“"Events of Default”") shall occur and be continuing (for any reason whatsoever and whether it shall be voluntary or involuntary or by operation of law or otherwise):
(i) default shall be made in the payment of the Principal Amount principal of, or interest on, the Loan or any other Obligation loan when and as the same shall become due and payable, whether at stated maturity, by acceleration, upon a Mandatory Prepayment Event mandatory prepayment due date, in the repayment of amounts advanced in excess of the Borrowing Base, or otherwise; or
(ii) default shall be made in the performance or observance of any covenant, agreement or condition contained in this Agreement or in any of the other Loan Documents, including but not limited to the failure of any financial covenant contained herein, and such default shall have continued for a period of ten five (105) Business Days; provided, that, such ten (10) Business Day period shall not apply in the case of: (A) any failure to observe any covenant which is not capable of being cured at all or within such ten (10) Business Day period or which has been the subject of a prior failure within a six (6) month period or (B) an intentional breach by the Company of any covenantbusiness days; or
(iii) Company shall (1) apply for or 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 and assets, (2) be generally unable to pay its debts as such debts become due, (3) make a general assignment for the benefit of its creditors, (4) commence a voluntary case under the United States Bankruptcy Code or similar law or regulation (as now or hereafter in effect), (5) file a petition seeking to take advantage of any other law providing for the relief of debtors, (6) fail to controvert in a timely or appropriate manner, or acquiesce in writing to, any petition filed against it in an involuntary case under the United States Bankruptcy Code or other law or regulation, (7) dissolve, (8) take any corporate action under any applicable law analogous to any of the foregoing, or (9) take any corporate action for the purpose of effecting any of the foregoing; or
(iv) a proceeding or case shall be commenced, without the application or consent of Company in any court of competent jurisdiction, seeking (1) the liquidation, reorganization, dissolution, winding up or composition or readjustment of its debts, (2) the appointment of a trustee, receiver, custodian, liquidator or the like of it or for all or any substantial part of its assets, or (3) similar relief in respect of Company, under any law providing for the relief of debtors, and such proceeding or case shall continue undismissed, or unstayed and in effect, for a period of sixty (60) days; or an order for relief shall be entered in an involuntary case under the United States Bankruptcy Code or other similar law or regulation, against Company; or action under the laws of any jurisdiction affecting Company analogous to any of the foregoing shall be taken with respect to Company and shall continue unstayed and in effect for any period of sixty (60) days; or
(v) final judgment for the payment of money shall be rendered by a court of competent jurisdiction against Company and Company shall not discharge the same or provide for its discharge in accordance with its terms, or procure a stay of execution thereof within sixty (60) days from the date of entry thereof and within said period of sixty (60) days, or such longer period during which execution of such judgment shall have been stayed, appeal therefrom and cause the execution thereof to be stayed during such appeal, and such judgment together with all other such judgments shall exceed in the aggregate US$100,00050,000; or
(vi) any representation or warranty made by Company in this Agreement, Loan Document, or any other documents or agreements contemplated hereby and thereby or in any certificate or other instrument delivered hereunder or pursuant hereto or in connection with any provision hereof shall be false or incorrect in any material respect on the date as of which made; or
(vii) the indictment by any Governmental Person under any criminal statute, or commencement or threatened commencement of criminal or civil proceedings against the Company, pursuant to which statute or proceedings the penalties or remedies sought or available include forfeiture of (i) any of the Collateral having a value in excess of $100,000 or (ii) any other property of the Company which is necessary or material to the conduct of its business; or
(viii) (A) the acquisition by any person (or group of persons as defined by the Securities Exchange Act of 1934 and the regulations thereunder) of more than 20% of the outstanding voting securities of the Company, (B) the public offer by any person (or group of persons as defined by the Securities Exchange Act of 1934 and the regulations thereunder) to acquire more than 20% of the outstanding voting securities of the Company; (C) the election in a contested proxy solicitation of candidates nominated by a person other than the Company that represent more than a majority of the full board of directors; or (D) any other event or circumstance in which any person acquires the right or ability to direct the management or control of the Company who does not presently have the right or ability to direct the management or control of the Company without the prior approval of the Company’s board of directors.
(ix) the occurrence of any event or condition that has a material adverse effect. then (x) upon the occurrence of any Event of Default described in Section 7(a)(iii) or (iv), the unpaid Principal Amount principal amount of the Loanloan, together with the interest accrued thereon and all other amounts payable by Company under this Agreement, shall automatically become immediately due and payable, without presentment, demand, protest protest, notice of acceleration or intent to accelerate or other requirements of any kind, all of which are hereby expressly waived by Company or (y) upon the occurrence of any other Event of Default, Lender Holder may, by notice to Company, declare the unpaid Principal Amount principal amount of the Loan loan to be, and the same shall forthwith become, due and payable, together with the interest accrued thereon and all other amounts payable by Company hereunder. Failure by Holder to indicate any Event of Default in any one notice shall not preclude Holder from indicating such omitted Event or Events of Default in future notices and shall not relieve Company of any liability under this Agreement, nor constitute a waiver of Holder's rights under this Agreement.
Appears in 1 contract
Samples: Revolving Loan and Security Agreement (Auxilio Inc)
Events of Default Defined; Acceleration of Maturity. If any of the following events (“"Events of Default”") shall occur and be continuing (for any reason whatsoever and whether it shall be voluntary or involuntary or by operation of law or otherwise):
(ia) default The Company shall be made in the payment fail to pay any installment of the Principal Amount of, principal of or interest on, on the Loan or any other Obligation Notes when and as the same shall become due and payable, whether at stated maturity, any such failure shall not be cured by acceleration, upon a Mandatory Prepayment Event or otherwisefull performance thereof within ten (10) days after written notice thereof shall have been given to the Company by any registered Holder; or
(iib) The Company shall default shall be made in the performance or observance of any covenant, agreement covenant contained in Article 5 and any such failure shall not be cured by full performance thereof within ten (10) days after written notice thereof shall have been given to the Company by any Holder; or
(c) Any representation or condition contained warranty made by the Company in this Agreement or in any of the other Loan Documents, including but not limited to the failure of any financial covenant contained herein, and such default shall have continued for a period of ten (10) Business Days; provided, that, such ten (10) Business Day period shall not apply in the case of: (A) any failure to observe any covenant which is not capable of being cured at all or within such ten (10) Business Day period or which has been the subject of a prior failure within a six (6) month period or (B) an intentional breach by the Company (or any officers of the Company) in any covenantcertificate, instrument or written statement contemplated by or made or delivered pursuant to or in connection with this Agreement, shall prove to have been incorrect when made in any material respect; or
(iiid) The Company shall fail to perform or observe any other term, covenant or agreement contained in this Agreement, or a Note on its part to be performed or observed and any such failure shall not be cured by full performance thereof within ten (20) days after written notice thereof shall have been given to the Company by any Holder; or
(e) The Company shall (1i) apply admit in writing its inability to pay its debts generally as they become due; (ii) commence a voluntary case under Title 11 of the United States Code as from time to time in effect, or authorize, by appropriate proceedings of its Board of Directors or other governing body, the commencement of such a voluntary case; (iii) file an answer or other pleading omitting or failing to deny the material allegations of a petition filed against it commencing an involuntary case under such Title 11, or seek, consent to or acquiesce in the relief therein provided, or fail to controvert timely the material allegations of any such petition; (iv) suffer the entry an order for relief in any involuntary case commenced under said Title 11; (v) seek relief as a debtor under any applicable law, other than said Title 11, of any jurisdiction relating to the liquidation or reorganization of debtors or to the modification or alteration of the rights of creditors, or consent to or acquiesce in such relief; (vi) suffer the appointment entry of an order by a court of competent jurisdiction (A) finding it to be bankrupt or insolvent, (B) ordering or approving its liquidation, reorganization or any modification or alteration of the rights of its creditors, or (C) assuming custody of, or the taking of possession byappointing a receiver or other custodian for, a receiver, custodian, trustee or liquidator of itself or of all or a substantial part of its property and assets, property; or (2) be generally unable to pay its debts as such debts become due, (3D) make a general an assignment for the benefit of of, or enter into a composition with, its creditors, (4) commence or appoint or consent to the appointment of a voluntary case under the United States Bankruptcy Code or similar law or regulation (as now or hereafter in effect), (5) file a petition seeking to take advantage of any other law providing for the relief of debtors, (6) fail to controvert in a timely or appropriate manner, or acquiesce in writing to, any petition filed against it in an involuntary case under the United States Bankruptcy Code receiver or other law custodian or regulation, (7) dissolve, (8) take any corporate action under any applicable law analogous to any all or a substantial part of the foregoing, or (9) take any corporate action for the purpose of effecting any of the foregoingits property; or
(ivf) a proceeding Any judgment, writ, warrant of attachment or case execution or similar process shall be commenced, without issued or levied against the application or consent property of the Company in any court of competent jurisdictionan aggregate amount which exceeds $2,500,000 and such judgment, seeking (1) the liquidation, reorganization, dissolution, winding up or composition or readjustment of its debts, (2) the appointment of a trustee, receiver, custodian, liquidator or the like of it or for all or any substantial part of its assetswrit, or (3) similar relief in respect of Company, under any law providing for the relief of debtors, and such proceeding or case shall continue undismissed, or unstayed and in effect, for a period of sixty (60) days; or an order for relief shall be entered in an involuntary case under the United States Bankruptcy Code or other similar law or regulation, against Company; or action under the laws of any jurisdiction affecting Company analogous to any of the foregoing shall be taken with respect to Company and shall continue unstayed and in effect for any period of sixty (60) days; or
(v) final judgment for the payment of money shall be rendered by a court of competent jurisdiction against Company and Company process shall not discharge the same be released, vacated or provide for its discharge in accordance with its terms, fully bonded or procure a stay of execution thereof stayed pending appeal within sixty (60) days from the date of entry thereof and within said period of sixty (60) days, after its issue or such longer period during which execution of such judgment shall have been stayed, appeal therefrom and cause the execution thereof to be stayed during such appeal, and such judgment together with all other such judgments shall exceed in the aggregate US$100,000; or
(vi) any representation or warranty made by Company in this Agreement, Loan Document, or any other documents or agreements contemplated hereby and thereby or in any certificate or other instrument delivered hereunder or pursuant hereto or in connection with any provision hereof shall be false or incorrect in any material respect on the date as of which made; or
(vii) the indictment by any Governmental Person under any criminal statute, or commencement or threatened commencement of criminal or civil proceedings against the Company, pursuant to which statute or proceedings the penalties or remedies sought or available include forfeiture of (i) any of the Collateral having a value in excess of $100,000 or (ii) any other property of the Company which is necessary or material to the conduct of its business; or
(viii) (A) the acquisition by any person (or group of persons as defined by the Securities Exchange Act of 1934 and the regulations thereunder) of more than 20% of the outstanding voting securities of the Company, (B) the public offer by any person (or group of persons as defined by the Securities Exchange Act of 1934 and the regulations thereunder) to acquire more than 20% of the outstanding voting securities of the Company; (C) the election in a contested proxy solicitation of candidates nominated by a person other than the Company that represent more than a majority of the full board of directors; or (D) any other event or circumstance in which any person acquires the right or ability to direct the management or control of the Company who does not presently have the right or ability to direct the management or control of the Company without the prior approval of the Company’s board of directors.
(ix) the occurrence of any event or condition that has a material adverse effectlevy. then (x) upon Upon the occurrence of any Event of Default described Default, and in Section 7(a)(iii) any such event, Purchaser or (iv)any other Holder of any Note may, by notice to the Company, declare the entire unpaid Principal Amount principal amount of the Loansuch Note, together with the all interest accrued and unpaid thereon and all other amounts payable by Company to such holder under such Note or this AgreementAgreement to be forthwith due and payable, whereupon such Note, all such accrued interest and all such amounts shall automatically become immediately and be forthwith due and payable, without presentment, demand, protest or other requirements further notice of any kind, all of which are hereby expressly waived by the Company or (y) upon the occurrence of any other Event of Default, Lender may, by notice with respect to Company, declare the unpaid Principal Amount of the Loan to be, itself and the same shall forthwith become, due and payable, together with the interest accrued thereon and all other amounts payable by Company hereunderits Subsidiaries.
Appears in 1 contract
Events of Default Defined; Acceleration of Maturity. If any of the following events (“"Events of Default”") shall occur and be continuing (for any reason whatsoever and whether it shall be voluntary or involuntary or by operation of law or otherwise):
(ia) default The Company shall be made in the payment fail to pay any of the Principal Amount of, or interest on, principal on the Loan or any other Obligation Notes when and as the same shall become due and payable, whether at stated maturity, any such failure shall not be cured by acceleration, upon a Mandatory Prepayment Event or otherwisefull performance thereof within ten (10) days after written notice thereof shall have been given to the Company by any registered Holder; or
(iib) The Company shall default shall be made in the performance or observance of any covenant, agreement covenant contained in Section 5 and any such failure shall not be cured by full performance thereof within thirty (30) days after written notice thereof shall have been given to the Company by Holders of not less than 25% in aggregate principal amount of the Notes; or
(c) Any material representation or condition contained warranty made by the Company in this Agreement or in any of the other Loan Documents, including but not limited to the failure of any financial covenant contained herein, and such default shall have continued for a period of ten (10) Business Days; provided, that, such ten (10) Business Day period shall not apply in the case of: (A) any failure to observe any covenant which is not capable of being cured at all or within such ten (10) Business Day period or which has been the subject of a prior failure within a six (6) month period or (B) an intentional breach by the Company (or any officers of the Company) in any covenantcertificate, instrument or written statement contemplated by or made or delivered pursuant to or in connection with this Agreement, shall prove to have been incorrect when made in any material respect; or
(iiid) The Company shall fail to perform or observe any other term, covenant or agreement contained in this Agreement, or a Note on its part to be performed or observed and any such failure shall not be cured by full performance thereof within sixty (60) days after written notice thereof shall have been given to the Company by Holders of not less than 25% in aggregate principal amount of the Notes; or
(e) The Company shall (1i) apply commence a voluntary case under Title 11 of the United States Code as from time to time in effect, or authorize, by appropriate proceedings of its Board of Directors or other governing body, the commencement of such a voluntary case; (ii) file an answer or other pleading omitting or failing to deny the material allegations of a petition filed against it commencing an involuntary case under such Title 11, or seek, consent to or acquiesce in the relief therein provided, or fail to controvert timely the material allegations of any such petition; (iii) suffer the entry of an order for relief in any involuntary case commenced under said Title 11; (iv) seek relief as a debtor under any applicable law, other than said Title 11, of any jurisdiction relating to the liquidation or reorganization of debtors or to the modification or alteration of the rights of creditors, or consent to or acquiesce in such relief; (v) suffer the entry of an order by a court of competent jurisdiction (A) finding it to be bankrupt or insolvent, (B) ordering or approving its liquidation, reorganization or any modification or alteration of the rights of its creditors, (C) assuming custody of, or appointing a receiver or other custodian for, all or a substantial part of its property, or (D) make an assignment for the benefit of, or enter into a composition with, its creditors, or appoint or consent to the appointment of, of a receiver or the taking of possession by, a receiver, custodian, trustee or liquidator of itself or other custodian of all or a substantial part of its property and assets, (2) be generally unable to pay its debts as such debts become due, (3) make a general assignment for the benefit of its creditors, (4) commence a voluntary case under the United States Bankruptcy Code or similar law or regulation (as now or hereafter in effect), (5) file a petition seeking to take advantage of any other law providing for the relief of debtors, (6) fail to controvert in a timely or appropriate manner, or acquiesce in writing to, any petition filed against it in an involuntary case under the United States Bankruptcy Code or other law or regulation, (7) dissolve, (8) take any corporate action under any applicable law analogous to any of the foregoing, or (9) take any corporate action for the purpose of effecting any of the foregoingproperty; or
(ivf) a proceeding Any judgment, writ, warrant of attachment or case execution or similar process shall be commenced, without issued or levied against the application or consent property of the Company in any court of competent jurisdictionan aggregate amount which exceeds $2,500,000 and such judgment, seeking (1) the liquidation, reorganization, dissolution, winding up or composition or readjustment of its debts, (2) the appointment of a trustee, receiver, custodian, liquidator or the like of it or for all or any substantial part of its assetswrit, or (3) similar relief in respect of Company, under any law providing for the relief of debtors, and such proceeding or case shall continue undismissed, or unstayed and in effect, for a period of sixty (60) days; or an order for relief shall be entered in an involuntary case under the United States Bankruptcy Code or other similar law or regulation, against Company; or action under the laws of any jurisdiction affecting Company analogous to any of the foregoing shall be taken with respect to Company and shall continue unstayed and in effect for any period of sixty (60) days; or
(v) final judgment for the payment of money shall be rendered by a court of competent jurisdiction against Company and Company process shall not discharge the same be released, vacated or provide for its discharge in accordance with its terms, fully bonded or procure a stay of execution thereof stayed pending appeal within sixty (60) days from the date of entry thereof and within said period of sixty (60) days, after its issue or such longer period during which execution of such judgment shall have been stayed, appeal therefrom and cause the execution thereof to be stayed during such appeal, and such judgment together with all other such judgments shall exceed in the aggregate US$100,000; or
(vi) any representation or warranty made by Company in this Agreement, Loan Document, or any other documents or agreements contemplated hereby and thereby or in any certificate or other instrument delivered hereunder or pursuant hereto or in connection with any provision hereof shall be false or incorrect in any material respect on the date as of which made; or
(vii) the indictment by any Governmental Person under any criminal statute, or commencement or threatened commencement of criminal or civil proceedings against the Company, pursuant to which statute or proceedings the penalties or remedies sought or available include forfeiture of (i) any of the Collateral having a value in excess of $100,000 or (ii) any other property of the Company which is necessary or material to the conduct of its business; or
(viii) (A) the acquisition by any person (or group of persons as defined by the Securities Exchange Act of 1934 and the regulations thereunder) of more than 20% of the outstanding voting securities of the Company, (B) the public offer by any person (or group of persons as defined by the Securities Exchange Act of 1934 and the regulations thereunder) to acquire more than 20% of the outstanding voting securities of the Company; (C) the election in a contested proxy solicitation of candidates nominated by a person other than the Company that represent more than a majority of the full board of directors; or (D) any other event or circumstance in which any person acquires the right or ability to direct the management or control of the Company who does not presently have the right or ability to direct the management or control of the Company without the prior approval of the Company’s board of directors.
(ix) the occurrence of any event or condition that has a material adverse effectlevy. then (x) upon Upon the occurrence of any Event of Default described Default, and in Section 7(a)(iii) or (iv)any such event, the unpaid Principal Amount Holders of not less than 25% in aggregate principal amount of the LoanNotes may, together with by notice to the interest accrued thereon Company, declare the entire unpaid principal amount of the Notes and all other amounts payable by Company to such Holders under such Notes or this AgreementAgreement to be immediately due and payable, whereupon such Notes and all such amounts shall automatically become and be immediately due and payable, without presentment, demand, protest or other requirements further notice of any kind, all of which are hereby expressly waived by the Company or (y) upon the occurrence of any other Event of Default, Lender may, by notice with respect to Company, declare the unpaid Principal Amount of the Loan to be, itself and the same shall forthwith become, due and payable, together with the interest accrued thereon and all other amounts payable by Company hereunderits Subsidiaries.
Appears in 1 contract
Samples: Securities Purchase Agreement (Right Start Inc /Ca)
Events of Default Defined; Acceleration of Maturity. If any one or more of the following events (“herein called "Events of Default”") shall occur and be continuing (for any reason whatsoever and whether it shall be voluntary or involuntary or by operation of law or otherwise):have occurred:
(ia) default shall be made in the payment all or any part of the Principal Amount of, or interest on, principal of the Loan or any other Obligation Notes is not paid when and as the same shall become due and payable, whether at stated maturitymaturity thereof, by acceleration, upon a Mandatory Prepayment Event by notice of prepayment, whether mandatory or optional, or otherwise; or;
(iib) all of any part of the interest on the Notes is not paid, whether in cash or by the issuance of Interest Payment Shares, as applicable, when due and payable;
(c) default shall be made occur in the observance or performance or observance of any covenant, agreement covenant contained in Article VIII of this Agreement;
(d) default shall occur in the observance or condition performance of any of the other covenants or agreements of the Corporation contained in this Agreement or in any the other Operative Documents (including, without limitation, the Corporation's obligation to register the Interest Payment Shares and the Common Stock issuable upon conversion of the other Loan Documents, including but Notes in accordance with the terms of the Registration Rights Agreement) which is not limited to the failure of any financial covenant contained herein, and such default shall have continued for a period of remedied within ten (10) Business Days; provided, that, such ten (10) Business Day period shall not apply in days after notice thereof to the case of: (A) any failure to observe any covenant which is not capable of being cured at all or within such ten (10) Business Day period or which has been the subject of a prior failure within a six (6) month period or (B) an intentional breach by the Company of any covenant; orCorporation;
(iiie) Company shall (1) apply for or consent to the appointment of, or the taking of possession by, a receiver, conservator, custodian, liquidator or trustee or liquidator of itself the Corporation or of all or a substantial part any of its property and assetsassets is appointed by court order; or an order for relief is entered under the federal bankruptcy laws with respect to the Corporation; or any of the material assets of the Corporation is sequestered by court order; or a petition is filed against the Corporation under the bankruptcy, reorganization, arrangement, insolvency, readjustment of debt, dissolution or liquidation law of any jurisdiction, whether now or hereafter in effect;
(2f) be generally unable the Corporation files a petition in voluntary bankruptcy or seeking relief under any provision of any bankruptcy, reorganization, arrangement, insolvency, readjustment of debt, dissolution or liquidation law of any jurisdiction, whether now or hereafter in effect, or consents to pay its debts as the filing of any petition against it under any such debts become due, law;
(3g) make the Corporation makes a general assignment for the benefit of its creditors, (4) commence a voluntary case under the United States Bankruptcy Code or similar law or regulation (admits in writing its inability to pay its debts generally as now or hereafter in effect), (5) file a petition seeking to take advantage of any other law providing for the relief of debtors, (6) fail to controvert in a timely or appropriate mannerthey become due, or acquiesce in writing to, any petition filed against it in an involuntary case under the United States Bankruptcy Code or other law or regulation, (7) dissolve, (8) take any corporate action under any applicable law analogous consents to any of the foregoing, or (9) take any corporate action for the purpose of effecting any of the foregoing; or
(iv) a proceeding or case shall be commenced, without the application or consent of Company in any court of competent jurisdiction, seeking (1) the liquidation, reorganization, dissolution, winding up or composition or readjustment of its debts, (2) the appointment of a trusteereceiver, receiverconservator, custodian, liquidator or trustee of the like Corporation or of it or for all or any substantial part of its assets, or (3) similar relief in respect of Company, under any law providing for the relief of debtors, and such proceeding or case shall continue undismissed, or unstayed and in effect, for a period of sixty (60) days; or an order for relief shall be entered in an involuntary case under the United States Bankruptcy Code or other similar law or regulation, against Company; or action under the laws of any jurisdiction affecting Company analogous to any of the foregoing shall be taken with respect to Company and shall continue unstayed and in effect for any period of sixty (60) days; or;
(vh) final judgment for the payment of money in excess of $10,000 which is not fully covered by insurance shall be rendered by a court of competent jurisdiction record against Company the Corporation and Company the Corporation shall not (i) discharge the same or provide for its discharge in accordance with its terms, terms or (ii) procure a stay of execution thereof within sixty (60) 30 days from the date of entry thereof and within said period of sixty (60) 30 days, or such longer period during which execution of such judgment shall have been stayed, appeal therefrom and cause the execution thereof to be stayed during such appealappeal including, and without limitation, by providing adequate bond for such judgment together with all other such judgments shall exceed in the aggregate US$100,000; orjudgment;
(vii) any representation representation, warranty or warranty certification made by Company the Corporation or any of its officers in this Agreement, Loan Document, or any other documents or agreements contemplated hereby and thereby Agreement or in any certificate other Operative Document or in any certificate, report, financial statement or other instrument delivered hereunder under or pursuant hereto or in connection with to any provision hereof or thereof shall be prove to have been false or incorrect in any material respect on the date or dates as of which madethey were made or delivered; or
(viij) a default shall occur in the indictment by any Governmental Person under any criminal statute, observance or commencement or threatened commencement performance of criminal or civil proceedings against the Company, pursuant to which statute or proceedings the penalties or remedies sought or available include forfeiture of (i) any of the Collateral having covenants, conditions, promises, agreements or obligations under any Contract if such failure might have a value in excess of $100,000 Material Adverse Effect on the Corporation's business, property, assets, operations or condition, financial or otherwise, and such default is not remedied within ten (ii10) any other property of the Company which is necessary or material days after notice thereof to the conduct of its businessdefaulting party; or
(viii) (A) the acquisition by any person (or group of persons as defined by the Securities Exchange Act of 1934 and the regulations thereunder) of more than 20% of the outstanding voting securities of the Companythen, (B) the public offer by any person (or group of persons as defined by the Securities Exchange Act of 1934 and the regulations thereunder) to acquire more than 20% of the outstanding voting securities of the Company; (C) the election in a contested proxy solicitation of candidates nominated by a person other than the Company that represent more than a majority of the full board of directors; or (D) any other event or circumstance in which any person acquires the right or ability to direct the management or control of the Company who does not presently have the right or ability to direct the management or control of the Company without the prior approval of the Company’s board of directors.
(ix) the occurrence of any event or condition that has a material adverse effect. then (x) upon the occurrence of when any Event of Default described in Section 7(a)(iii) clause (a), (b), (c), (d), (h), (i), or (iv)j) above has occurred and shall be continuing, the unpaid Principal Amount principal of each Note shall, upon written notice from the Loanholder thereof to the Corporation, together with the interest accrued thereon forthwith become and all other amounts payable by Company under this Agreementbe due and payable, shall automatically become immediately if not already due and payable, without presentment, demand, protest or other requirements notice of any kind. When any Event of Default described in clause (e), all of which are hereby expressly waived by Company (f) or (yg) above has occurred, the principal of each Note shall immediately become due and payable upon the occurrence thereof, without presentment, demand, or notice of any other kind. If any principal is not paid in full on the due date thereof (whether by maturity, prepayment, or acceleration) or any Event of Default has occurred and is continuing, then the outstanding principal balance of each Note will bear interest from the due date of such payment, or from and after an Event of Default, Lender mayat a rate equal to eighteen percent (18%) per annum, compounded quarterly, until the payment is received or the Event of Default is cured, if permitted, or waived. The Corporation shall pay to the holders of each Note all reasonable out-of-pocket costs and expenses incurred by notice any such holder in any effort to Company, declare the unpaid Principal Amount of the Loan to be, and the same shall forthwith become, due and payable, together with the interest accrued thereon and all other amounts payable by Company hereundercollect such Note.
Appears in 1 contract
Events of Default Defined; Acceleration of Maturity. If any of the following events (“"Events of Default”") shall occur and be continuing (for any reason whatsoever and whether it shall be voluntary or involuntary or by operation of law or otherwise):
(ia) default Default shall be made in the payment of the Principal Amount principal of, or interest on, the Loan or any other Obligation Note when and as the same shall become due and payable, whether at stated maturity, by acceleration, upon demand, upon a Mandatory Prepayment Event mandatory prepayment due date, or otherwise; orotherwise and such default shall have continued for a period of five (5) days after written notice to Borrower;
(iib) default Default shall be made in the performance or observance of any covenant, agreement or condition contained in this Agreement herein or the Note, or in any of the other Loan Documents, including but not limited to the failure of any financial covenant contained hereindocument issued in connection therewith, and such default shall have continued for a period of ten (10) Business Days; provided, that, such ten (10) Business Day period shall not apply in the case of: (A) any failure days after written notice to observe any covenant which is not capable of being cured at all or within such ten (10) Business Day period or which has been the subject of a prior failure within a six (6) month period or (B) an intentional breach by the Company of any covenant; orBorrower;
(iiic) Company The Borrower shall (1i) apply for or 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 and assets, (2ii) be generally unable to pay its debts as such debts become due, (3iii) make a general assignment for the benefit of its creditors, (4iv) commence a voluntary case under the United States Bankruptcy Code or similar law or regulation (as now or hereafter in effect), (5v) file a petition seeking to take advantage of any other law providing for the relief of debtors, (6vi) fail to controvert in a timely or appropriate manner, or acquiesce in writing to, any petition filed against it in an involuntary case under the United States such Bankruptcy Code or other law or regulation, (7vii) dissolve, (8) viii) take any corporate action under any applicable law analogous to any of the foregoing, or (9ix) take any corporate action for the purpose of effecting any of the foregoing; or;
(ivd) a A proceeding or case shall be commenced, without the application or consent of Company the Borrower in any court of competent jurisdiction, seeking (1i) the liquidation, reorganization, dissolution, winding up or composition or readjustment of its debts, (2ii) the appointment of a trustee, receiver, custodian, liquidator or the like of it or for all or any substantial part of its assets, or (3iii) similar relief in respect of Companythe Borrower, under any law providing for the relief of debtors, and such proceeding or case shall continue undismissed, or unstayed and in effect, for a period of sixty (60) days; or an order for relief shall be entered in an involuntary case under the United States Bankruptcy Code or other similar law or regulation, against Companythe Borrower; or action under the laws of any jurisdiction affecting Company the Borrower analogous to any of the foregoing shall be taken with respect to Company the Borrower and shall continue unstayed and in effect for any period of sixty (60) days; or;
(ve) final Final judgment for the payment of money shall be rendered by a court of competent jurisdiction against Company the Borrower and Company the Borrower shall not discharge the same or provide for its discharge in accordance with its terms, or procure a stay of execution thereof within sixty thirty (6030) days from the date of entry thereof and within said period of sixty thirty (6030) days, or such longer period during which execution of such judgment shall have been stayed, appeal therefrom and cause the execution thereof to be stayed during such appeal, and such judgment together with all other such judgments shall exceed in the aggregate US$100,000200,000; or
(vif) any Any representation or warranty made by Company the Borrower in this Agreement, Loan Document, or any other documents or agreements contemplated hereby and thereby or in any certificate or other instrument delivered hereunder or pursuant hereto or in connection with any provision hereof shall be false or incorrect in any material respect on as of the date as of on which it was made or is deemed to have been made; or
(vii) the indictment by any Governmental Person under any criminal statute, or commencement or threatened commencement of criminal or civil proceedings against the Company, pursuant to which statute or proceedings the penalties or remedies sought or available include forfeiture of (i) any of the Collateral having a value in excess of $100,000 or (ii) any other property of the Company which is necessary or material to the conduct of its business; or
(viii) (A) the acquisition by any person (or group of persons as defined by the Securities Exchange Act of 1934 and the regulations thereunder) of more than 20% of the outstanding voting securities of the Company, (B) the public offer by any person (or group of persons as defined by the Securities Exchange Act of 1934 and the regulations thereunder) to acquire more than 20% of the outstanding voting securities of the Company; (C) the election in a contested proxy solicitation of candidates nominated by a person other than the Company that represent more than a majority of the full board of directors; or (D) any other event or circumstance in which any person acquires the right or ability to direct the management or control of the Company who does not presently have the right or ability to direct the management or control of the Company without the prior approval of the Company’s board of directors.
(ix) the occurrence of any event or condition that has a material adverse effect. then (x) upon the occurrence of any Event of Default described in Section 7(a)(iii) or (iv), the unpaid Principal Amount of the Loan, together with the interest accrued thereon and all other amounts payable by Company under this Agreement, shall automatically become immediately due and payable, without presentment, demand, protest or other requirements of any kind, all of which are hereby expressly waived by Company or (y) upon the occurrence of any other Event of Default, Lender may, by notice to Company, declare the unpaid Principal Amount of the Loan to be, and the same shall forthwith become, due and payable, together with the interest accrued thereon and all other amounts payable by Company hereunder.;
Appears in 1 contract
Events of Default Defined; Acceleration of Maturity. If any one or more of the following events (“herein called "Events of Default”") shall occur and be continuing (for any reason whatsoever and whether it shall be voluntary or involuntary or by operation of law or otherwise):have occurred:
(ia) default shall be made in the payment all or any part of the Principal Amount of, or interest on, principal of the Loan or any other Obligation Notes is not paid when and as the same shall become due and payable, whether at stated maturitymaturity thereof, by acceleration, upon a Mandatory Prepayment Event by notice of prepayment, whether mandatory or optional, or otherwise; or;
(iib) all of any part of the interest on the Notes is not paid, whether in cash or by the issuance of Interest Payment Shares, as applicable, when due and payable;
(c) default shall be made occur in the observance or performance or observance of any covenant, agreement covenant contained in Article VIII of this Agreement;
(d) default shall occur in the observance or condition performance of any of the other covenants or agreements of the Corporation contained in this Agreement or in any the other Operative Documents (including, without limitation, the Corporation's obligation to register the Interest Payment Shares and the Common Stock issuable upon conversion of the other Loan Documents, including but Notes in accordance with the terms of the Registration Rights Agreement) which is not limited to the failure of any financial covenant contained herein, and such default shall have continued for a period of remedied within ten (10) Business Days; provided, that, such ten (10) Business Day period shall not apply in days after notice thereof to the case of: (A) any failure to observe any covenant which is not capable of being cured at all or within such ten (10) Business Day period or which has been the subject of a prior failure within a six (6) month period or (B) an intentional breach by the Company of any covenant; orCorporation;
(iiie) Company shall (1) apply for or consent to the appointment of, or the taking of possession by, a receiver, conservator, custodian, liquidator or trustee or liquidator of itself the Corporation or of all or a substantial part any of its property and assetsassets is appointed by court order; or an order for relief is entered under the federal bankruptcy laws with respect to the Corporation; or any of the material assets of the Corporation is sequestered by court order; or a petition is filed against the Corporation under the bankruptcy, reorganization, arrangement, insolvency, readjustment of debt, dissolution or liquidation law of any jurisdiction, whether now or hereafter in effect;
(2f) be generally unable the Corporation files a petition in voluntary bankruptcy or seeking relief under any provision of any bankruptcy, reorganization, arrangement, insolvency, readjustment of debt, dissolution or liquidation law of any jurisdiction, whether now or hereafter in effect, or consents to pay its debts as the filing of any petition against it under any such debts become due, law;
(3g) make the Corporation makes a general assignment for the benefit of its creditors, (4) commence a voluntary case under the United States Bankruptcy Code or similar law or regulation (admits in writing its inability to pay its debts generally as now or hereafter in effect), (5) file a petition seeking to take advantage of any other law providing for the relief of debtors, (6) fail to controvert in a timely or appropriate mannerthey become due, or acquiesce in writing to, any petition filed against it in an involuntary case under the United States Bankruptcy Code or other law or regulation, (7) dissolve, (8) take any corporate action under any applicable law analogous consents to any of the foregoing, or (9) take any corporate action for the purpose of effecting any of the foregoing; or
(iv) a proceeding or case shall be commenced, without the application or consent of Company in any court of competent jurisdiction, seeking (1) the liquidation, reorganization, dissolution, winding up or composition or readjustment of its debts, (2) the appointment of a trusteereceiver, receiverconservator, custodian, liquidator or trustee of the like Corporation or of it or for all or any substantial part of its assets, or (3) similar relief in respect of Company, under any law providing for the relief of debtors, and such proceeding or case shall continue undismissed, or unstayed and in effect, for a period of sixty (60) days; or an order for relief shall be entered in an involuntary case under the United States Bankruptcy Code or other similar law or regulation, against Company; or action under the laws of any jurisdiction affecting Company analogous to any of the foregoing shall be taken with respect to Company and shall continue unstayed and in effect for any period of sixty (60) days; or;
(vh) final judgment for the payment of money in excess of $10,000 which is not fully covered by insurance shall be rendered by a court of competent jurisdiction record against Company the Corporation and Company the Corporation shall not (i) discharge the same or provide for its discharge in accordance with its terms, terms or (ii) procure a stay of execution thereof within sixty (60) 30 days from the date of entry thereof and within said period of sixty (60) 30 days, or such longer period during which execution of such judgment shall have been stayed, appeal therefrom and cause the execution thereof to be stayed during such appealappeal including, and without limitation, by providing adequate bond for such judgment together with all other such judgments shall exceed in the aggregate US$100,000; orjudgment;
(vii) any representation representation, warranty or warranty certification made by Company the Corporation or any of its officers in this Agreement, Loan Document, or any other documents or agreements contemplated hereby and thereby Agreement or in any certificate other Operative Document or in any certificate, report, financial statement or other instrument delivered hereunder under or pursuant hereto or in connection with to any provision hereof or thereof shall be prove to have been false or incorrect in any material respect on the date or dates as of which madethey were made or delivered;
(j) a default shall occur in the observance or performance of any of the covenants, conditions, promises, agreements or obligations under any Contract if such failure might have a Material Adverse Effect on the Corporation's business, property, assets, operations or condition, financial or otherwise, and such default is not remedied within ten (10) days after notice thereof to the defaulting party; or
(viik) the indictment exercise of any rights of default by any Governmental Person under any criminal statute, Xxxxxx Xxxxxx or commencement or threatened commencement of criminal or civil proceedings against the Company, pursuant to which statute or proceedings the penalties or remedies sought or available include forfeiture of (i) any of her successors or assigns under the Collateral having a value in excess of $100,000 Rotman Agreement or (ii) any other property of the Company which is necessary or material to the conduct of its businessagreement involving Xxxxxx Xxxxxx; or
(viii) (A) the acquisition by any person (or group of persons as defined by the Securities Exchange Act of 1934 and the regulations thereunder) of more than 20% of the outstanding voting securities of the Companythen, (B) the public offer by any person (or group of persons as defined by the Securities Exchange Act of 1934 and the regulations thereunder) to acquire more than 20% of the outstanding voting securities of the Company; (C) the election in a contested proxy solicitation of candidates nominated by a person other than the Company that represent more than a majority of the full board of directors; or (D) any other event or circumstance in which any person acquires the right or ability to direct the management or control of the Company who does not presently have the right or ability to direct the management or control of the Company without the prior approval of the Company’s board of directors.
(ix) the occurrence of any event or condition that has a material adverse effect. then (x) upon the occurrence of when any Event of Default described in Section 7(a)(iiiclause (a), (b), (c), (d), (h), (i), (j) or (iv)k) above has occurred and shall be continuing, the unpaid Principal Amount principal of each Note shall, upon written notice from the Loanholder thereof to the Corporation, together with the interest accrued thereon forthwith become and all other amounts payable by Company under this Agreementbe due and payable, shall automatically become immediately if not already due and payable, without presentment, demand, protest or other requirements notice of any kind. When any Event of Default described in clause (e), all of which are hereby expressly waived by Company (f) or (yg) above has occurred, the principal of each Note shall immediately become due and payable upon the occurrence thereof, without presentment, demand, or notice of any other kind. If any principal is not paid in full on the due date thereof (whether by maturity, prepayment, or acceleration) or any Event of Default has occurred and is continuing, then the outstanding principal balance of each Note will bear interest from the due date of such payment, or from and after an Event of Default, Lender mayat a rate equal to eighteen percent (18%) per annum, compounded quarterly, until the payment is received or the Event of Default is cured, if permitted, or waived. The Corporation shall pay to the holders of each Note all reasonable out-of-pocket costs and expenses incurred by notice any such holder in any effort to Company, declare the unpaid Principal Amount of the Loan to be, and the same shall forthwith become, due and payable, together with the interest accrued thereon and all other amounts payable by Company hereundercollect such Note.
Appears in 1 contract
Events of Default Defined; Acceleration of Maturity. If any one or more of the following events (“herein called "Events of Default”") shall occur and be continuing (for any reason whatsoever and whether it shall be voluntary or involuntary or by operation of law or otherwise):have occurred:
(ia) default shall be made in the payment all or any part of the Principal Amount of, or interest on, principal of the Loan or any other Obligation Notes is not paid when and as the same shall become due and payable, whether at stated maturitymaturity thereof, by acceleration, upon a Mandatory Prepayment Event by notice of prepayment, whether mandatory or optional, or otherwise; or;
(iib) all of any part of the interest on the Notes is not paid, whether in cash or by the issuance of Interest Payment Shares, as applicable, when due and payable;
(c) default shall be made occur in the observance or performance or observance of any covenant, agreement covenant contained in Article VIII of this Agreement;
(d) default shall occur in the observance or condition performance of any of the other covenants or agreements of the Corporation contained in this Agreement or in any the other Operative Documents (including, without limitation, the Corporation's obligation to register the Interest Payment Shares and the Common Stock issuable upon conversion of the other Loan Documents, including but Notes in accordance with the terms of the Registration Rights Agreement) which is not limited to the failure of any financial covenant contained herein, and such default shall have continued for a period of remedied within ten (10) Business Days; provided, that, such ten (10) Business Day period shall not apply in days after notice thereof to the case of: (A) any failure to observe any covenant which is not capable of being cured at all or within such ten (10) Business Day period or which has been the subject of a prior failure within a six (6) month period or (B) an intentional breach by the Company of any covenant; orCorporation;
(iiie) Company shall (1) apply for or consent to the appointment of, or the taking of possession by, a receiver, conservator, custodian, liquidator or trustee or liquidator of itself the Corporation or of all or a substantial part any of its property and assetsassets is appointed by court order; or an order for relief is entered under the federal bankruptcy laws with respect to the Corporation; or any of the material assets of the Corporation is sequestered by court order; or a petition is filed against the Corporation under the bankruptcy, reorganization, arrangement, insolvency, readjustment of debt, dissolution or liquidation law of any jurisdiction, whether now or hereafter in effect;
(2f) be generally unable the Corporation files a petition in voluntary bankruptcy or seeking relief under any provision of any bankruptcy, reorganization, arrangement, insolvency, readjustment of debt, dissolution or liquidation law of any jurisdiction, whether now or hereafter in effect, or consents to pay its debts as the filing of any petition against it under any such debts become due, law;
(3g) make the Corporation makes a general assignment for the benefit of its creditors, (4) commence a voluntary case under the United States Bankruptcy Code or similar law or regulation (admits in writing its inability to pay its debts generally as now or hereafter in effect), (5) file a petition seeking to take advantage of any other law providing for the relief of debtors, (6) fail to controvert in a timely or appropriate mannerthey become due, or acquiesce in writing to, any petition filed against it in an involuntary case under the United States Bankruptcy Code or other law or regulation, (7) dissolve, (8) take any corporate action under any applicable law analogous consents to any of the foregoing, or (9) take any corporate action for the purpose of effecting any of the foregoing; or
(iv) a proceeding or case shall be commenced, without the application or consent of Company in any court of competent jurisdiction, seeking (1) the liquidation, reorganization, dissolution, winding up or composition or readjustment of its debts, (2) the appointment of a trusteereceiver, receiverconservator, custodian, liquidator or trustee of the like Corporation or of it or for all or any substantial part of its assets, or (3) similar relief in respect of Company, under any law providing for the relief of debtors, and such proceeding or case shall continue undismissed, or unstayed and in effect, for a period of sixty (60) days; or an order for relief shall be entered in an involuntary case under the United States Bankruptcy Code or other similar law or regulation, against Company; or action under the laws of any jurisdiction affecting Company analogous to any of the foregoing shall be taken with respect to Company and shall continue unstayed and in effect for any period of sixty (60) days; or;
(vh) final judgment for the payment of money in excess of $10,000 which is not fully covered by insurance shall be rendered by a court of competent jurisdiction record against Company the Corporation and Company the Corporation shall not (i) discharge the same or provide for its discharge in accordance with its terms, terms or (ii) procure a stay of execution thereof within sixty (60) 30 days from the date of entry thereof and within said period of sixty (60) 30 days, or such longer period during which execution of such judgment shall have been stayed, appeal therefrom and cause the execution thereof to be stayed during such appealappeal including, and without limitation, by providing adequate bond for such judgment together with all other such judgments shall exceed in the aggregate US$100,000; orjudgment;
(vii) any representation representation, warranty or warranty certification made by Company made by the Corporation or any of its officers in this Agreement, Loan Document, or any other documents or agreements contemplated hereby and thereby Agreement or in any certificate other Operative Document or in any certificate, report, financial statement or other instrument delivered hereunder under or pursuant hereto or in connection with to any provision hereof or thereof shall be prove to have been false or incorrect in any material respect on the date or dates as of which madethey were made or delivered; or
(viij) a default shall occur in the indictment by any Governmental Person under any criminal statute, observance or commencement or threatened commencement performance of criminal or civil proceedings against the Company, pursuant to which statute or proceedings the penalties or remedies sought or available include forfeiture of (i) any of the Collateral having a value in excess of $100,000 covenants, conditions, promises, agreements or (ii) obligations under any other property of the Company which is necessary or material to the conduct of its business; or
(viii) (A) the acquisition by any person (or group of persons as defined by the Securities Exchange Act of 1934 and the regulations thereunder) of more than 20% of the outstanding voting securities of the Company, (B) the public offer by any person (or group of persons as defined by the Securities Exchange Act of 1934 and the regulations thereunder) to acquire more than 20% of the outstanding voting securities of the Company; (C) the election in a contested proxy solicitation of candidates nominated by a person other than the Company that represent more than a majority of the full board of directors; or (D) any other event or circumstance in which any person acquires the right or ability to direct the management or control of the Company who does not presently Contract if such failure might have the right or ability to direct the management or control of the Company without the prior approval of the Company’s board of directors.
(ix) the occurrence of any event or condition that has a material adverse effect. then effect on the Corporation's business, property, assets, operations or condition, financial or otherwise, and such default is not remedied within ten (x10) upon days after notice thereof to the occurrence defaulting party (for purposes of this subsection (j), any default under the Lease shall be deemed material); then, when any Event of Default described in Section 7(a)(iiiclause (a), (b), (c), (d), (h), (i) or (iv)j) above has occurred and shall be continuing, the unpaid Principal Amount principal of each Note shall, upon written notice from the Loanholder thereof to the Corporation, together with the interest accrued thereon forthwith become and all other amounts payable by Company under this Agreementbe due and payable, shall automatically become immediately if not already due and payable, without presentment, demand, protest or other requirements notice of any kind. Each Lender agrees to provide the other Lender with a copy of any such notice of default at or prior to the time such notice is delivered to the Corporation. When any Event of Default described in clause (e), all of which are hereby expressly waived by Company (f) or (yg) above has occurred, the principal of each Note shall immediately become due and payable upon the occurrence thereof, without presentment, demand, or notice of any other kind. If any principal is not paid in full on the due date thereof (whether by maturity, prepayment, or acceleration) or any Event of Default has occurred and is continuing, then the outstanding principal balance of each Note will bear interest from the due date of such payment, or from and after an Event of Default, Lender mayat a rate equal to eighteen percent (18%) per annum, compounded quarterly, until the payment is received or the Event of Default is cured, if permitted, or waived. The Corporation shall pay to the holders of each Note all reasonable out-of-pocket costs and expenses incurred by notice any such holder in any effort to Company, declare the unpaid Principal Amount of the Loan to be, and the same shall forthwith become, due and payable, together with the interest accrued thereon and all other amounts payable by Company hereundercollect such Note.
Appears in 1 contract
Events of Default Defined; Acceleration of Maturity. If any In case one or more of the following events (“"Events of Default”") shall occur have occurred and be continuing (for any reason whatsoever and whether it shall be voluntary or involuntary or by operation of law or otherwise):continuing:
(ia) default the Issuer shall be made in fail to pay the payment principal amount of this Note within 10 days of the Principal Amount of, or interest on, due date thereof; (b) the Loan or any other Obligation when and as Issuer shall fail to observe the same shall become due and payable, whether at stated maturity, by acceleration, upon a Mandatory Prepayment Event or otherwise; or
(ii) default shall be made in the performance or observance of any covenant, agreement or condition contained in this Agreement or in any of the other Loan Documents, including but not limited to the failure of any financial covenant contained herein, under Section 3.02 hereof and such default failure shall have continued remain unremedied for a period of ten 30 days after the Issuer shall have received notice of such failure from the Holder; (10c) Business Days; provided, that, such ten (10) Business Day period the Issuer shall not apply in permit or suffer to exist the case of: (A) any failure to observe any covenant which is not capable of being cured at all or within such ten (10) Business Day period or which has been the subject entrance of a prior failure within decree or order for relief, entered by a six court of competent jurisdiction, in respect of the Issuer in an involuntary case under any applicable bankruptcy, insolvency or other similar law relating to or affecting creditors' rights generally now or hereafter in effect, or appointing a receiver, liquidator, custodian, trustee, sequestrator (6or similar official) month of the Issuer or for any substantial part of the property of the Issuer or ordering the winding up or liquidation of the affairs of the Issuer and such decree or order shall remain unstayed and in effect for a period of 60 days; or (Bd) the Issuer shall commence a voluntary case under any applicable bankruptcy, insolvency or other similar law relating to or affecting creditors' rights generally now or hereafter in effect, or consent to the entry of an intentional breach by the Company of order for relief in an involuntary case under any covenant; or
(iii) Company shall (1) apply for such law, or consent to the appointment of, or the taking of possession by, by a receiver, liquidator, custodian, trustee trustee, sequestrator (or liquidator similar official) of itself the Issuer or of all or a for any substantial part of its the property and assets, (2) be generally unable to pay its debts as such debts become due, (3) of the Issuer or the Issuer shall make a any general assignment for the benefit of its creditors; then, (4) commence a voluntary case under subject to Article 5 hereof, the United States Bankruptcy Code or similar law or regulation (Holder may, in each and every such case, by notice to the Issuer declare the principal amount of this Note, determined as now or hereafter in effect)set forth below, (5) file a petition seeking to take advantage of any other law providing for the relief of debtors, (6) fail to controvert in a timely or appropriate manner, or acquiesce in writing to, any petition filed against it in an involuntary case under the United States Bankruptcy Code or other law or regulation, (7) dissolve, (8) take any corporate action under any applicable law analogous to any of the foregoing, or (9) take any corporate action for the purpose of effecting any of the foregoing; or
(iv) a proceeding or case shall be commenced, without the application or consent of Company in any court of competent jurisdiction, seeking (1) the liquidation, reorganization, dissolution, winding up or composition or readjustment of its debts, (2) the appointment of a trustee, receiver, custodian, liquidator or the like of it or for all or any substantial part of its assets, or (3) similar relief in respect of Company, under any law providing for the relief of debtorsbe, and such proceeding or case principal amount shall continue undismissedthereupon become, or unstayed and in effect, for a period of sixty (60) days; or an order for relief shall be entered in an involuntary case under the United States Bankruptcy Code or other similar law or regulation, against Company; or action under the laws of any jurisdiction affecting Company analogous to any of the foregoing shall be taken with respect to Company and shall continue unstayed and in effect for any period of sixty (60) days; or
(v) final judgment for the payment of money shall be rendered by a court of competent jurisdiction against Company and Company shall not discharge the same or provide for its discharge in accordance with its terms, or procure a stay of execution thereof within sixty (60) days from the date of entry thereof and within said period of sixty (60) days, or such longer period during which execution of such judgment shall have been stayed, appeal therefrom and cause the execution thereof to be stayed during such appeal, and such judgment together with all other such judgments shall exceed in the aggregate US$100,000; or
(vi) any representation or warranty made by Company in this Agreement, Loan Document, or any other documents or agreements contemplated hereby and thereby or in any certificate or other instrument delivered hereunder or pursuant hereto or in connection with any provision hereof shall be false or incorrect in any material respect on the date as of which made; or
(vii) the indictment by any Governmental Person under any criminal statute, or commencement or threatened commencement of criminal or civil proceedings against the Company, pursuant to which statute or proceedings the penalties or remedies sought or available include forfeiture of (i) any of the Collateral having a value in excess of $100,000 or (ii) any other property of the Company which is necessary or material to the conduct of its business; or
(viii) (A) the acquisition by any person (or group of persons as defined by the Securities Exchange Act of 1934 and the regulations thereunder) of more than 20% of the outstanding voting securities of the Company, (B) the public offer by any person (or group of persons as defined by the Securities Exchange Act of 1934 and the regulations thereunder) to acquire more than 20% of the outstanding voting securities of the Company; (C) the election in a contested proxy solicitation of candidates nominated by a person other than the Company that represent more than a majority of the full board of directors; or (D) any other event or circumstance in which any person acquires the right or ability to direct the management or control of the Company who does not presently have the right or ability to direct the management or control of the Company without the prior approval of the Company’s board of directors.
(ix) the occurrence of any event or condition that has a material adverse effect. then (x) upon the occurrence of any Event of Default described in Section 7(a)(iii) or (iv), the unpaid Principal Amount of the Loan, together with the interest accrued thereon and all other amounts payable by Company under this Agreement, shall automatically become immediately due and payable, without presentment, demand, protest or other requirements of any kind, all of which are hereby expressly waived by Company or (y) upon the occurrence of any other Event of Default, Lender may, by notice to Company, declare the unpaid Principal Amount of the Loan to be, and the same shall forthwith become, . The principal amount so due and payable, together with payable shall be deemed for this purpose to be equal to the interest accrued thereon and all other amounts payable by Company hereunderAccreted Value on the date such declaration is made.
Appears in 1 contract
Events of Default Defined; Acceleration of Maturity. If any of the following events (“"Events of Default”") shall occur and be continuing (for any reason whatsoever and whether it shall be voluntary or involuntary or by operation of law or otherwise):
(ia) default Default shall be made in the payment of the Principal Amount principal of, or interest on, the Loan or any other Obligation Note when and as the same shall become due and payable, whether at stated maturity, by acceleration, upon demand, upon a Mandatory Prepayment Event mandatory prepayment due date, or otherwise; or;
(iib) default Default shall be made in the performance or observance of any covenant, agreement or condition contained in this Agreement herein or in any of the other Loan Documents, including but not limited to the failure of any financial covenant contained hereinNote, and such default shall have continued for a period of ten fifteen (1015) Business Days; provided, that, such ten (10) Business Day period shall not apply in the case of: (A) any failure to observe any covenant which is not capable of being cured at all or within such ten (10) Business Day period or which has been the subject of a prior failure within a six (6) month period or (B) an intentional breach by the Company of any covenant; orbusiness days;
(iiic) The Company shall (1i) apply for or 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 and assets, (2ii) be generally unable to pay its debts as such debts become due, (3iii) make a general assignment for the benefit of its creditors, (4iv) commence a voluntary case under the United States Bankruptcy Code or similar law or regulation (as now or hereafter in effect), (5v) file a petition seeking to take advantage of any other law providing for the relief of debtors, (6vi) fail to controvert in a timely or appropriate manner, or acquiesce in writing to, any petition filed against it in an involuntary case under the United States such Bankruptcy Code or other law or regulation, (7vii) dissolve, (8) viii) take any corporate action under any applicable law analogous to any of the foregoing, or (9ix) take any corporate action for the purpose of effecting any of the foregoing; or;
(ivd) a A proceeding or case shall be commenced, without the application or consent of the Company in any court of competent jurisdiction, seeking (1i) the liquidation, reorganization, dissolution, winding up or composition or readjustment of its debts, (2ii) the appointment of a trustee, receiver, custodian, liquidator or the like of it or for all or any substantial part of its assets, or (3iii) similar relief in respect of the Company, under any law providing for the relief of debtors, and such proceeding or case shall continue undismissed, or unstayed and in effect, for a period of sixty (60) days; or an order for relief shall be entered in an involuntary case under the United States Bankruptcy Code or other similar law or regulation, against the Company; or action under the laws of any jurisdiction affecting the Company analogous to any of the foregoing shall be taken with respect to the Company and shall continue unstayed and in effect for any period of sixty (60) days; or;
(ve) final Final judgment for the payment of money shall be rendered by a court of competent jurisdiction against the Company and the Company shall not discharge the same or provide for its discharge in accordance with its terms, or procure a stay of execution thereof within sixty (60) days from the date of entry thereof and within said period of sixty (60) days, or such longer period during which execution of such judgment shall have been stayed, appeal therefrom and cause the execution thereof to be stayed during such appeal, and such judgment together with all other such judgments shall exceed in the aggregate US$100,000500,000; or
(vif) any Any representation or warranty made by the Company in this Agreement, Loan Document, or any other documents or agreements contemplated hereby and thereby Agreement or in any certificate or other instrument delivered hereunder or pursuant hereto or in connection with any provision hereof shall be false or incorrect in any material respect on as of the date as of on which it was made or is deemed to have been made; or
(vii) the indictment by any Governmental Person under any criminal statute, or commencement or threatened commencement of criminal or civil proceedings against the Company, pursuant to which statute or proceedings the penalties or remedies sought or available include forfeiture of (i) any of the Collateral having a value in excess of $100,000 or (ii) any other property of the Company which is necessary or material to the conduct of its business; or
(viii) (A) the acquisition by any person (or group of persons as defined by the Securities Exchange Act of 1934 and the regulations thereunder) of more than 20% of the outstanding voting securities of the Company, (B) the public offer by any person (or group of persons as defined by the Securities Exchange Act of 1934 and the regulations thereunder) to acquire more than 20% of the outstanding voting securities of the Company; (C) the election in a contested proxy solicitation of candidates nominated by a person other than the Company that represent more than a majority of the full board of directors; or (D) any other event or circumstance in which any person acquires the right or ability to direct the management or control of the Company who does not presently have the right or ability to direct the management or control of the Company without the prior approval of the Company’s board of directors.
(ix) the occurrence of any event or condition that has a material adverse effect. then (x) upon the occurrence of any Event of Default described in Section 7(a)(iii) or (iv), the unpaid Principal Amount of the Loan, together with the interest accrued thereon and all other amounts payable by Company under this Agreement, shall automatically become immediately due and payable, without presentment, demand, protest or other requirements of any kind, all of which are hereby expressly waived by Company or (y) upon the occurrence of any other Event of Default, Lender may, by notice to Company, declare the unpaid Principal Amount of the Loan to be, and the same shall forthwith become, due and payable, together with the interest accrued thereon and all other amounts payable by Company hereunder.then
Appears in 1 contract
Samples: Stock Purchase Agreement (Genesisintermedia Com Inc)
Events of Default Defined; Acceleration of Maturity. If --------------------------------------------------- any of the following events (“"Events of Default”") shall occur and be continuing ----------------- (for any reason whatsoever and whether it shall be voluntary or involuntary or by operation of law or otherwise):
(ia) default The Company shall be made in the payment fail to pay any installment of the Principal Amount of, principal of or interest on, on the Loan or any other Obligation Notes when and as the same shall become due and payable, whether at stated maturity, any such failure shall not be cured by acceleration, upon a Mandatory Prepayment Event or otherwisefull performance thereof within ten (10) days after written notice thereof shall have been given to the Company by any registered Holder; or
(iib) The Company shall default shall be made in the performance or observance of any covenant, agreement covenant contained in Article 5 and any such failure shall not be cured by full performance thereof within ten (10) days after written notice thereof shall have been given to the Company by any Holder; or
(c) Any representation or condition contained warranty made by the Company in this Agreement or in any of the other Loan Documents, including but not limited to the failure of any financial covenant contained herein, and such default shall have continued for a period of ten (10) Business Days; provided, that, such ten (10) Business Day period shall not apply in the case of: (A) any failure to observe any covenant which is not capable of being cured at all or within such ten (10) Business Day period or which has been the subject of a prior failure within a six (6) month period or (B) an intentional breach by the Company (or any officers of the Company) in any covenantcertificate, instrument or written statement contemplated by or made or delivered pursuant to or in connection with this Agreement, shall prove to have been incorrect when made in any material respect; or
(iiid) The Company shall fail to perform or observe any other term, covenant or agreement contained in this Agreement, or a Note on its part to be performed or observed and any such failure shall not be cured by full performance thereof within ten (20) days after written notice thereof shall have been given to the Company by any Holder; or
(e) The Company shall (1i) apply admit in writing its inability to pay its debts generally as they become due; (ii) commence a voluntary case under Title 11 of the United States Code as from time to time in effect, or authorize, by appropriate proceedings of its Board of Directors or other governing body, the commencement of such a voluntary case; (iii) file an answer or other pleading omitting or failing to deny the material allegations of a petition filed against it commencing an involuntary case under such Title 11, or seek, consent to or acquiesce in the relief therein provided, or fail to controvert timely the material allegations of any such petition; (iv) suffer the entry an order for relief in any involuntary case commenced under said Title 11; (v) seek relief as a debtor under any applicable law, other than said Title 11, of any jurisdiction relating to the liquidation or reorganization of debtors or to the modification or alteration of the rights of creditors, or consent to or acquiesce in such relief; (vi) suffer the appointment entry of an order by a court of competent jurisdiction (A) finding it to be bankrupt or insolvent, (B) ordering or approving its liquidation, reorganization or any modification or alteration of the rights of its creditors, or (C) assuming custody of, or the taking of possession byappointing a receiver or other custodian for, a receiver, custodian, trustee or liquidator of itself or of all or a substantial part of its property and assets, property; or (2) be generally unable to pay its debts as such debts become due, (3D) make a general an assignment for the benefit of of, or enter into a composition with, its creditors, (4) commence or appoint or consent to the appointment of a voluntary case under the United States Bankruptcy Code or similar law or regulation (as now or hereafter in effect), (5) file a petition seeking to take advantage of any other law providing for the relief of debtors, (6) fail to controvert in a timely or appropriate manner, or acquiesce in writing to, any petition filed against it in an involuntary case under the United States Bankruptcy Code receiver or other law custodian or regulation, (7) dissolve, (8) take any corporate action under any applicable law analogous to any all or a substantial part of the foregoing, or (9) take any corporate action for the purpose of effecting any of the foregoingits property; or
(ivf) a proceeding Any judgment, writ, warrant of attachment or case execution or similar process shall be commenced, without issued or levied against the application or consent property of the Company in any court of competent jurisdictionan aggregate amount which exceeds $2,500,000 and such judgment, seeking (1) the liquidation, reorganization, dissolution, winding up or composition or readjustment of its debts, (2) the appointment of a trustee, receiver, custodian, liquidator or the like of it or for all or any substantial part of its assetswrit, or (3) similar relief in respect of Company, under any law providing for the relief of debtors, and such proceeding or case shall continue undismissed, or unstayed and in effect, for a period of sixty (60) days; or an order for relief shall be entered in an involuntary case under the United States Bankruptcy Code or other similar law or regulation, against Company; or action under the laws of any jurisdiction affecting Company analogous to any of the foregoing shall be taken with respect to Company and shall continue unstayed and in effect for any period of sixty (60) days; or
(v) final judgment for the payment of money shall be rendered by a court of competent jurisdiction against Company and Company process shall not discharge the same be released, vacated or provide for its discharge in accordance with its terms, fully bonded or procure a stay of execution thereof stayed pending appeal within sixty (60) days from the date of entry thereof and within said period of sixty (60) days, after its issue or such longer period during which execution of such judgment shall have been stayed, appeal therefrom and cause the execution thereof to be stayed during such appeal, and such judgment together with all other such judgments shall exceed in the aggregate US$100,000; or
(vi) any representation or warranty made by Company in this Agreement, Loan Document, or any other documents or agreements contemplated hereby and thereby or in any certificate or other instrument delivered hereunder or pursuant hereto or in connection with any provision hereof shall be false or incorrect in any material respect on the date as of which made; or
(vii) the indictment by any Governmental Person under any criminal statute, or commencement or threatened commencement of criminal or civil proceedings against the Company, pursuant to which statute or proceedings the penalties or remedies sought or available include forfeiture of (i) any of the Collateral having a value in excess of $100,000 or (ii) any other property of the Company which is necessary or material to the conduct of its business; or
(viii) (A) the acquisition by any person (or group of persons as defined by the Securities Exchange Act of 1934 and the regulations thereunder) of more than 20% of the outstanding voting securities of the Company, (B) the public offer by any person (or group of persons as defined by the Securities Exchange Act of 1934 and the regulations thereunder) to acquire more than 20% of the outstanding voting securities of the Company; (C) the election in a contested proxy solicitation of candidates nominated by a person other than the Company that represent more than a majority of the full board of directors; or (D) any other event or circumstance in which any person acquires the right or ability to direct the management or control of the Company who does not presently have the right or ability to direct the management or control of the Company without the prior approval of the Company’s board of directors.
(ix) the occurrence of any event or condition that has a material adverse effectlevy. then (x) upon Upon the occurrence of any Event of Default described Default, and in Section 7(a)(iii) any such event, Purchaser or (iv)any other Holder of any Note may, by notice to the Company, declare the entire unpaid Principal Amount principal amount of the Loansuch Note, together with the all interest accrued and unpaid thereon and all other amounts payable by Company to such holder under such Note or this AgreementAgreement to be forthwith due and payable, whereupon such Note, all such accrued interest and all such amounts shall automatically become immediately and be forthwith due and payable, without presentment, demand, protest or other requirements further notice of any kind, all of which are hereby expressly waived by the Company or (y) upon the occurrence of any other Event of Default, Lender may, by notice with respect to Company, declare the unpaid Principal Amount of the Loan to be, itself and the same shall forthwith become, due and payable, together with the interest accrued thereon and all other amounts payable by Company hereunderits Subsidiaries.
Appears in 1 contract
Samples: Securities Purchase Agreement (Right Start Inc /Ca)
Events of Default Defined; Acceleration of Maturity. If --------------------------------------------------- any of the following events (“"Events of Default”") shall occur and be continuing ----------------- (for any reason whatsoever and whether it shall be voluntary or involuntary or by operation of law or otherwise):
(ia) default The Company shall be made in the payment fail to pay any of the Principal Amount of, or interest on, principal on the Loan or any other Obligation Notes when and as the same shall become due and payable, whether at stated maturity, any such failure shall not be cured by acceleration, upon a Mandatory Prepayment Event or otherwisefull performance thereof within ten (10) days after written notice thereof shall have been given to the Company by any registered Holder; or
(iib) The Company shall default shall be made in the performance or observance of any covenant, agreement covenant contained in Article 5 and any such failure shall not be cured by full performance thereof within ten (10) days after written notice thereof shall have been given to the Company by any Holder; or
(c) Any representation or condition contained warranty made by the Company in this Agreement or in any of the other Loan Documents, including but not limited to the failure of any financial covenant contained herein, and such default shall have continued for a period of ten (10) Business Days; provided, that, such ten (10) Business Day period shall not apply in the case of: (A) any failure to observe any covenant which is not capable of being cured at all or within such ten (10) Business Day period or which has been the subject of a prior failure within a six (6) month period or (B) an intentional breach by the Company (or any officers of the Company) in any covenantcertificate, instrument or written statement contemplated by or made or delivered pursuant to or in connection with this Agreement, shall prove to have been incorrect when made in any material respect; or
(iiid) The Company shall fail to perform or observe any other term, covenant or agreement contained in this Agreement, or a Note on its part to be performed or observed and any such failure shall not be cured by full performance thereof within ten (20) days after written notice thereof shall have been given to the Company by any Holder; or
(e) The Company shall (1i) apply admit in writing its inability to pay its debts generally as they become due; (ii) commence a voluntary case under Title 11 of the United States Code as from time to time in effect, or authorize, by appropriate proceedings of its Board of Directors or other governing body, the commencement of such a voluntary case; (iii) file an answer or other pleading omitting or failing to deny the material allegations of a petition filed against it commencing an involuntary case under such Title 11, or seek, consent to or acquiesce in the relief therein provided, or fail to controvert timely the material allegations of any such petition; (iv) suffer the entry of an order for relief in any involuntary case commenced under said Title 11; (v) seek relief as a debtor under any applicable law, other than said Title 11, of any jurisdiction relating to the liquidation or reorganization of debtors or to the modification or alteration of the rights of creditors, or consent to or acquiesce in such relief; (vi) suffer the entry of an order by a court of competent jurisdiction (A) finding it to be bankrupt or insolvent, (B) ordering or approving its liquidation, reorganization or any modification or alteration of the rights of its creditors, (C) assuming custody of, or appointing a receiver or other custodian for, all or a substantial part of its property, or (D) make an assignment for the benefit of, or enter into a composition with, its creditors, or appoint or consent to the appointment of, of a receiver or the taking of possession by, a receiver, custodian, trustee or liquidator of itself or other custodian of all or a substantial part of its property and assets, (2) be generally unable to pay its debts as such debts become due, (3) make a general assignment for the benefit of its creditors, (4) commence a voluntary case under the United States Bankruptcy Code or similar law or regulation (as now or hereafter in effect), (5) file a petition seeking to take advantage of any other law providing for the relief of debtors, (6) fail to controvert in a timely or appropriate manner, or acquiesce in writing to, any petition filed against it in an involuntary case under the United States Bankruptcy Code or other law or regulation, (7) dissolve, (8) take any corporate action under any applicable law analogous to any of the foregoing, or (9) take any corporate action for the purpose of effecting any of the foregoingproperty; or
(ivf) a proceeding Any judgment, writ, warrant of attachment or case execution or similar process shall be commenced, without issued or levied against the application or consent property of the Company in any court of competent jurisdictionan aggregate amount which exceeds $2,500,000 and such judgment, seeking (1) the liquidation, reorganization, dissolution, winding up or composition or readjustment of its debts, (2) the appointment of a trustee, receiver, custodian, liquidator or the like of it or for all or any substantial part of its assetswrit, or (3) similar relief in respect of Company, under any law providing for the relief of debtors, and such proceeding or case shall continue undismissed, or unstayed and in effect, for a period of sixty (60) days; or an order for relief shall be entered in an involuntary case under the United States Bankruptcy Code or other similar law or regulation, against Company; or action under the laws of any jurisdiction affecting Company analogous to any of the foregoing shall be taken with respect to Company and shall continue unstayed and in effect for any period of sixty (60) days; or
(v) final judgment for the payment of money shall be rendered by a court of competent jurisdiction against Company and Company process shall not discharge the same be released, vacated or provide for its discharge in accordance with its terms, fully bonded or procure a stay of execution thereof stayed pending appeal within sixty (60) days from the date of entry thereof and within said period of sixty (60) days, after its issue or such longer period during which execution of such judgment shall have been stayed, appeal therefrom and cause the execution thereof to be stayed during such appeal, and such judgment together with all other such judgments shall exceed in the aggregate US$100,000; or
(vi) any representation or warranty made by Company in this Agreement, Loan Document, or any other documents or agreements contemplated hereby and thereby or in any certificate or other instrument delivered hereunder or pursuant hereto or in connection with any provision hereof shall be false or incorrect in any material respect on the date as of which made; or
(vii) the indictment by any Governmental Person under any criminal statute, or commencement or threatened commencement of criminal or civil proceedings against the Company, pursuant to which statute or proceedings the penalties or remedies sought or available include forfeiture of (i) any of the Collateral having a value in excess of $100,000 or (ii) any other property of the Company which is necessary or material to the conduct of its business; or
(viii) (A) the acquisition by any person (or group of persons as defined by the Securities Exchange Act of 1934 and the regulations thereunder) of more than 20% of the outstanding voting securities of the Company, (B) the public offer by any person (or group of persons as defined by the Securities Exchange Act of 1934 and the regulations thereunder) to acquire more than 20% of the outstanding voting securities of the Company; (C) the election in a contested proxy solicitation of candidates nominated by a person other than the Company that represent more than a majority of the full board of directors; or (D) any other event or circumstance in which any person acquires the right or ability to direct the management or control of the Company who does not presently have the right or ability to direct the management or control of the Company without the prior approval of the Company’s board of directors.
(ix) the occurrence of any event or condition that has a material adverse effectlevy. then (x) upon Upon the occurrence of any Event of Default described Default, and in Section 7(a)(iii) any such event, Purchaser or (iv)any other Holder of any Note may, by notice to the Company, declare the entire unpaid Principal Amount principal amount of the Loan, together with the interest accrued thereon such Note and all other amounts payable by Company to such holder under such Note or this AgreementAgreement to be forthwith due and payable, whereupon such Note and all such amounts shall automatically become immediately and be forthwith due and payable, without presentment, demand, protest or other requirements further notice of any kind, all of which are hereby expressly waived by the Company or (y) upon the occurrence of any other Event of Default, Lender may, by notice with respect to Company, declare the unpaid Principal Amount of the Loan to be, itself and the same shall forthwith become, due and payable, together with the interest accrued thereon and all other amounts payable by Company hereunderits Subsidiaries.
Appears in 1 contract
Samples: Securities Purchase Agreement (Right Start Inc /Ca)
