General Acceleration Provision upon Events of Default. If one or more of the events specified in this Section 5.4 shall have happened and be continuing beyond the applicable cure period (each, an “Event of Default”), the Required Lenders, by written notice to the Borrower (an “Acceleration Notice”), may declare the principal of, and accrued and unpaid interest on, all of the Notes or any part of any of them (together with any other amounts accrued or payable under the Loan Documents) to be, and the same shall thereupon become, immediately due and payable, without any further notice and without any presentment, demand, or protest of any kind, all of which are hereby expressly waived by the Borrower, and take any further action available at law or in equity, including, without limitation, the sale of the Loan and all other rights acquired in connection with the Loan: (a) The Borrower shall have failed to make payment of (i) principal when due, or (ii) interest or any other amounts due under the Notes or any other Obligations within five (5) Business Days of their due date. (i) Any Credit Party shall have failed to comply with the due observance or performance of any covenant contained in this Agreement (other than the covenant described in (a) above or as otherwise expressly provided in this Section 5.4) or in the other Loan Documents and such default is not remedied by the Borrower or waived by the Lenders within fifteen (15) days (inclusive of any extension periods or cure periods contained in any such covenant or provided by Applicable Laws) after the earlier of (A) receipt by any Credit Party of notice from the Lenders of such default, or (B) actual knowledge of any Credit Party of such default. (c) Any representation or warranty made by any Credit Party or any of its Subsidiaries in any Loan Document shall be incorrect, false or misleading in any material respect (except to the extent that such representation or warranty is qualified by reference to materiality or Material Adverse Effect, to which extent it shall be incorrect, false or misleading in any respect) as of the date it was made or deemed made. (i) Any Credit Party or any of its Subsidiaries shall generally be unable to pay its debts as such debts become due or be deemed to be unable to pay its debts, or shall admit in writing its inability to pay its debts as they come due or shall make a general assignment for the benefit of creditors; (ii) any Credit Party or any of its Subsidiaries shall declare a moratorium on the payment of its debts; (iii) the commencement by any Credit Party or any of its Subsidiaries of proceedings to be adjudicated bankrupt or insolvent, or the consent by it to the commencement of bankruptcy or insolvency proceedings against it, or the filing by it of a petition or answer or consent seeking reorganization, examinership, intervention or other similar relief under any applicable law, or the consent by it to the filing of any such petition or to the appointment of an intervenor, receiver, receiver-manager, liquidator, assignee, trustee, sequestrator, examiner (or other similar official) of all or substantially all of its assets; (iv) the commencement against any Credit Party or any of its Subsidiaries of a proceeding in any court of competent jurisdiction under any bankruptcy or other applicable law (as now or hereafter in effect) seeking its liquidation, winding up, dissolution, reorganization, examinership, arrangement, adjustment, or the appointment of an intervenor, receiver, receiver-manager, liquidator, assignee, trustee, sequestrator, examiner (or other similar official), and any such proceeding shall continue undismissed, or any order, judgment or decree approving or ordering any of the foregoing shall continue unstayed or otherwise in effect, for a period of forty five (45) days; (v) the making by any Credit Party or any of its Subsidiaries of an assignment for the benefit of creditors, or the admission by it in writing of its inability to pay its debt generally as they become due; or (vi) any other event shall have occurred which under any applicable law would have an effect analogous to any of those events listed above in this subsection. (e) One or more judgments against any Credit Party or any Subsidiary or attachments against any of their respective property, which in the aggregate exceed $1,000,000 (net of any anticipated insurance proceeds), and such judgment(s) remains unpaid, unstayed on appeal, undischarged, unbonded or undismissed for a period of thirty (30) days from the date of entry of such judgment. (f) Any Authorization held by any Credit Party or any of its Subsidiaries shall have been suspended, cancelled or revoked, and such suspension, cancellation or revocation would reasonably be expected to have a Material Adverse Effect. (g) Any Authorization necessary for the execution, delivery or performance of any Loan Document or for the validity or enforceability of any of the Obligations is not given or is withdrawn or ceases to remain in full force or effect. (h) There is a failure to perform under any agreement to which any Credit Party is a party resulting in the acceleration by a third party of the maturity of any Indebtedness in an amount in excess of $5,000,000. (i) The validity of any Loan Document shall be contested by any Credit Party or any Subsidiary, or any Applicable Law shall purport to render any material provision of any Loan Document invalid or unenforceable or shall purport to prevent or materially delay the performance or observance by any Credit Party of the Obligations. (j) The Common Shares of Parent cease to be listed on the Principal Trading Markets or the Common Shares cease to be registered under Section 12 of the Exchange Act. (k) The occurrence of a Conversion Failure.
Appears in 2 contracts
Samples: Facility Agreement (Pozen Inc /Nc), Facility Agreement (Tribute Pharmaceuticals Canada Inc.)
General Acceleration Provision upon Events of Default. If one or more of the events specified in this Section 5.4 5.5 (each an “Event of Default”) shall have happened and be continuing beyond the applicable cure period (each, an “Event of Default”)period, the Required LendersInvestors, by written notice to the Borrower (an “Acceleration Notice”)Borrower, may cancel the Borrower’s right to request a Disbursement and declare the principal of, and accrued and unpaid interest on, all of the Notes or any part of any of them (together with any other amounts accrued or payable under the Loan Documentsthis Agreement) to be, and the same shall thereupon become, immediately due and payable, without any further notice and without any presentment, demand, or protest of any kind, all of which are hereby expressly waived by the Borrower, and take any further action available at law or in equity, including, without limitation, the sale of the Loan and all other rights acquired in connection with the Loan:
(a) The Borrower An Investor shall have failed to make receive payment when due of (i) principal when due, or (ii) interest or any other amounts due under the Notes Loan or any other Obligations within five (5) Business Days of their due datethe Notes.
(ib) Any Credit Party The Borrower shall have failed to comply in any material respect with the due observance or performance of any other covenant contained in the April 29 Agreement and this Agreement (other than the covenant described in (a) above or as otherwise expressly provided in this Section 5.4) or in the other Loan Documents any Note and such failure shall not have been cured by Borrower within 15 days after receiving written notice of such default is not remedied by the Borrower or waived by the Lenders within fifteen (15) days (inclusive of any extension periods or cure periods contained in any such covenant or provided by Applicable Laws) after the earlier of (A) receipt by any Credit Party of notice failure from the Lenders of such default, or (B) actual knowledge of any Credit Party of such defaultInvestors.
(c) Any representation or warranty made by any Credit Party or any of its Subsidiaries the Borrower in any Loan Financing Document shall be have been incorrect, false or misleading in any material respect (except to the extent that such representation or warranty is qualified by reference to materiality or Material Adverse Effect, to which extent it shall be incorrect, false or misleading in any respect) as of the date it was made or made, deemed made, reaffirmed or confirmed.
(i) Any Credit Party or any of its Subsidiaries The Borrower shall generally be unable to pay its debts as such debts become due or be deemed to be unable to pay its debtsdue, or shall admit in writing its inability to pay its debts as they come due or shall make a general assignment for the benefit of creditors; (ii) any Credit Party or any of its Subsidiaries the Borrower shall declare a moratorium on the payment of its debts; (iii) the commencement by any Credit Party or any of its Subsidiaries the Borrower of proceedings to be adjudicated bankrupt or insolvent, or the consent by it to the commencement of bankruptcy or insolvency proceedings against it, or the filing by it of a petition or answer or consent seeking reorganization, examinership, intervention or other similar relief under any applicable law, or the consent by it to the filing of any such petition or to the appointment of an intervenor, receiver, receiver-manager, liquidator, assignee, trustee, sequestrator, examiner sequestrator (or other similar official) of all or substantially all of its assets; (iv) the commencement against any Credit Party or any of its Subsidiaries the Borrower of a proceeding in any court of competent jurisdiction under any bankruptcy or other applicable law (as now or hereafter in effect) seeking its liquidation, winding up, dissolution, reorganization, examinership, arrangement, adjustment, or the appointment of an intervenor, receiver, receiver-manager, liquidator, assignee, trustee, sequestrator, examiner sequestrator (or other similar official), and any such proceeding shall continue undismissed, or any order, judgment or decree approving or ordering any of the foregoing shall continue unstayed or otherwise in effect, for a period of forty five ninety (4590) days; (v) the making by any Credit Party or any of its Subsidiaries the Borrower of an assignment for the benefit of creditors, or the admission by it in writing of its inability to pay its debt generally as they become due; or (vi) any other event shall have occurred which under any applicable law would have an effect analogous to any of those events listed above in this subsection.
(e) One or more judgments against any Credit Party or any Subsidiary the Borrower taken as a whole or attachments against any of their respective its property, which in the aggregate exceed $1,000,000 (net of any anticipated insurance proceeds), and such judgment(swould reasonably be expected to have a Material Adverse Effect remain(s) remains unpaid, unstayed on appeal, undischarged, unbonded or undismissed for a period of thirty (30) days from the date of entry of such judgment.
(f) Any Authorization license, permit or approval held by the Borrower from any Credit Party or any of its Subsidiaries Government Authority shall have been suspended, cancelled canceled or revoked, and except where any such suspension, cancellation or revocation would not reasonably be expected to have a Material Adverse Effect.
(g) Any Authorization authorization necessary for the execution, delivery or performance of any Loan Financing Document or for the validity or enforceability of any of the Obligations under any Financing Document is not given or is withdrawn or ceases to remain in full force or effect.
(h) There is a failure to perform under any agreement to which any Credit Party is a party resulting in the acceleration by a third party of the maturity of any Indebtedness in an amount in excess of $5,000,000.
(i) The validity of any Loan Financing Document shall be contested by any Credit Party legislative, executive or judicial body of any Subsidiaryjurisdiction, or any Applicable Law treaty, law, regulation, communiqué, decree, ordinance or policy of any jurisdiction shall purport to render any material provision of any Loan Financing Document invalid or unenforceable or shall purport to prevent or materially delay the performance or observance by any Credit Party the Borrower of the Obligations, and the parties are unable to negotiate a replacement provision pursuant to Section 6.7 below.
(i) The Borrower has failed to comply in any material respect with the reporting requirements of the Exchange Act, unless corrected by Borrower promptly (if capable of correction) through the filing of an amendment to an existing report or making an appropriate subsequent filing with the SEC.
(j) The Common Shares If an Event of Parent cease Default pursuant to be listed on the Principal Trading Markets or Warrants (as such term is defined in the Common Shares cease to be registered under Section 12 of the Exchange ActWarrants) shall have occurred beyond any applicable cure periods.
(k) The amount of Cash and Cash Equivalents on the last day of each calendar quarter is less than $20,000,000.
(l) The occurrence of a Conversion Failurean “Event of Default”, as such term is defined in the Comerica Loan Agreement and Comerica Bank has exercised any of its rights and remedies under Section 9 thereof.
Appears in 2 contracts
Samples: Facility Agreement (Array Biopharma Inc), Facility Agreement (Array Biopharma Inc)
General Acceleration Provision upon Events of Default. If one or more of the events specified in this Section 5.4 6.3 shall have happened and be continuing beyond the applicable cure period (each, an “Event of Default”), the Required LendersRequisite Holders, by written notice to the Borrower (an “Acceleration Notice”)Company, may declare the principal of, and accrued and unpaid interest on, all of the Notes or any part of any of them (together with any other amounts Obligations accrued or payable under the Loan Documentspayable) to be, and the same shall thereupon become, immediately due and payable, without any further notice and without any presentment, demand, or protest of any kind, all of which are hereby expressly waived by the BorrowerCompany, and take any further action available at law or in equity, including, without limitation, including the sale of the Loan Notes and all other rights acquired in connection with the LoanNotes:
(a) The Borrower Company shall have failed to make payment of (i) principal when duedue and payable, or (ii) interest or any other amounts due and payable under the Notes or any other Obligations within five (5) Business Days of their due datedate and such default is not remedied by the Company or waived by the Requisite Holders within thirty (30) days (inclusive of any extension periods or cure periods contained in any such covenant or provided by Law) after receipt by the Company of notice from the Requisite Holders of such default.
(b) (i) Any Credit Party The Company shall have failed to comply in any material respect with the due observance compliance or performance of any covenant contained in this Agreement (other than the covenant described in (a) above or as otherwise expressly provided in this Section 5.46.3, but including, for the avoidance of doubt the covenant described in clause (c) below) or in the other Loan Documents Transaction Agreements and such default is not remedied by the Borrower Company or waived by the Lenders Requisite Holders within fifteen thirty (1530) days (inclusive of any extension periods or cure periods contained in any such covenant or provided by Applicable LawsLaw) after the earlier of (A) receipt by any Credit Party the Company of notice from the Lenders of such default, or (B) actual knowledge of any Credit Party Requisite Holders of such default.
(c) Any representation or warranty made by any Credit Party or any of its Subsidiaries the Company in any Loan Document Transaction Agreement shall be incorrect, false or misleading in any material respect (except to the extent that such representation or warranty is qualified by reference to materiality or Material Adverse Effect, to which extent it shall be incorrect, false or misleading in any respect) as of the date it was made or deemed made.
(d) (i) Any Credit Party The Company or any Subsidiary identified as a “Material Subsidiary” in Section 2.3 of its Subsidiaries the Schedule of Exceptions (each, a “Material Subsidiary”) shall fail generally be unable to pay its debts as such debts become due or be deemed to be unable to pay its debts, or shall admit in writing its inability to pay its debts as they come due or shall make a general assignment for the benefit of creditors; (ii) any Credit Party the Company or any of its Subsidiaries Material Subsidiary shall declare a moratorium on the payment of its debts; (iii) the commencement by any Credit Party the Company or any of its Subsidiaries Material Subsidiary of proceedings to be adjudicated bankrupt or insolvent, or the consent by it to the commencement of bankruptcy or insolvency proceedings against it, or the filing by it of a petition or answer or consent seeking reorganization, examinership, intervention or other similar relief under any applicable lawLaw, or the consent by it to the filing of any such petition or to the appointment of an intervenor, receiver, receiver-manager, liquidator, assignee, trustee, sequestrator, examiner sequestrator (or other similar official) of all or substantially all of its assets; or (iv) the commencement against any Credit Party the Company or any of its Subsidiaries Material Subsidiary of a proceeding in any court of competent jurisdiction under any bankruptcy or other applicable law Law (as now or hereafter in effect) seeking its liquidation, winding up, dissolution, reorganization, examinership, arrangement, adjustment, or the appointment of an intervenor, receiver, receiver-manager, liquidator, assignee, trustee, sequestrator, examiner sequestrator (or other similar official), and any such proceeding shall continue undismissed, or any order, judgment or decree approving or ordering any of the foregoing shall continue unstayed or otherwise in effect, for a period of forty five sixty (4560) consecutive days; (v) the making by any Credit Party or any of its Subsidiaries of an assignment for the benefit of creditors, or the admission by it in writing of its inability to pay its debt generally as they become due; or (vi) any other event shall have occurred which under any applicable law would have an effect analogous to any of those events listed above in this subsection.
(e) One or more final judgments against any Credit Party for the payment by the Company or any Subsidiary or attachments against any of their respective propertySubsidiary, which in the aggregate exceed $1,000,000 200,000,000 (net of excluding any amounts anticipated insurance proceedsto be covered by insurance), and such judgment(s) remains unpaid, unstayed on appeal, undischarged, unbonded or undismissed for a period of thirty sixty (3060) days from after (i) the date of entry of on which the right to appeal thereof has expired if no such judgmentappeal has commenced, or (ii) the date on which all rights to appeal have been extinguished.
(f) Any Authorization held by any Credit Party or any of its Subsidiaries shall have been suspended, cancelled or revoked, and such suspension, cancellation or revocation would reasonably be expected to have a Material Adverse Effect.
(g) Any Authorization necessary for the execution, delivery or performance of any Loan Document or for the validity or enforceability of any of the Obligations is not given or is withdrawn or ceases to remain in full force or effect.
(h) There is a failure to perform under any agreement to which any Credit Party is a party resulting in the acceleration by a third party of the maturity of any Indebtedness in an amount in excess of $5,000,000.
(i) The validity of any Loan Document Transaction Agreement shall be contested by any Credit Party the Company or any Subsidiary pursuant to a filing by the Company or a Subsidiary, or any Applicable Law shall purport to render any material provision of any Loan Document invalid or unenforceable or shall purport to prevent or materially delay the performance or observance by any Credit Party the Company of a material portion of the Obligations.
(j) The Common Shares . Any Event of Parent cease to be listed on the Principal Trading Markets or the Common Shares cease to be registered under Section 12 Default of the Exchange Acttype specified in Section 6.3(d) shall cause principal of, and accrued and unpaid interest on, all of the Notes or any part of any of them (together with any other Obligations accrued or payable) to be, and the same shall thereupon become, immediately due and payable, without any further notice and without any presentment, demand, or protest of any kind, all of which are hereby expressly waived by the Company.
(k) The occurrence of a Conversion Failure.
Appears in 2 contracts
Samples: Unsecured Pik Convertible Notes Purchase Agreement (Uber Technologies, Inc), Unsecured Pik Convertible Notes Purchase Agreement (Uber Technologies, Inc)
General Acceleration Provision upon Events of Default. If one or more of the events specified in this Section 5.4 shall have happened occurred and be continuing beyond the applicable cure period (each, an “Event of Default”), the Required LendersLender, by written notice to the Borrower (an “Acceleration Notice”)Borrowers, may declare the principal of, and accrued and unpaid interest on, all of the Notes Note or any part of any of them it (together with any other amounts accrued or payable under the Loan Transaction Documents) to be, and the same shall thereupon become, immediately due and payable, without any further notice and without any presentment, demand, or protest of any kind, all of which are hereby expressly waived by the BorrowerBorrowers, and take any further action available at law or in equity, including, without limitation, the sale of the Loan Loans and all other rights acquired in connection with the LoanLoans:
(a) The Borrower Borrowers shall have failed to make payment of (i) principal and interest under the Note when due, or (ii) interest or any other amounts due under the Notes or any other Obligations within five (5) Business Days of their due date.
(ib) Any Credit Party The Borrowers shall have failed to comply with the due observance or performance of any covenant contained in this Agreement any Transaction Document (other than the covenant covenants described in clause (a) above or as otherwise expressly provided in this Section 5.4) or in the other Loan Documents above), and such default is failure shall not remedied have been cured by the Borrower or waived by the Lenders Borrowers within fifteen thirty (1530) days (inclusive of any extension periods or cure periods contained in any such covenant or provided by Applicable Laws) after the earlier of (A) receipt by any Credit Party of notice from the Lenders of such default, or (B) actual knowledge of any Credit Party of such defaultdays.
(c) Any representation or warranty made by any Credit Party or any of its Subsidiaries the Borrowers in any Loan Transaction Document shall be have been incorrect, false or misleading in any material respect (except to the extent that such representation or warranty is qualified by reference to materiality or Material Adverse Effect, to which extent it shall be incorrect, false or misleading in any respect) as of the date it was made or deemed made.
(i) Any Credit Party or any of its Subsidiaries Borrower shall generally be unable to pay its debts as such debts become due or be deemed to be unable to pay its debtsdue, or shall admit in writing its inability to pay its debts as they come due or shall make a general assignment for the benefit of creditors; (ii) any Credit Party or any of its Subsidiaries Borrower shall declare a moratorium on the payment of its debts; (iii) the commencement by any Credit Party or any of its Subsidiaries Borrower of proceedings to be adjudicated bankrupt or insolvent, or the consent by it to the commencement of bankruptcy or insolvency proceedings against it, or the filing by it of a petition or answer or consent seeking reorganization, examinership, intervention or other similar relief under any applicable law, or the consent by it to the filing of any such petition or to the appointment of an intervenor, receiver, receiver-manager, liquidator, assignee, trustee, sequestrator, examiner sequestrator (or other similar official) of all or substantially all of its assets; (iv) the commencement against any Credit Party or any of its Subsidiaries Borrower of a proceeding in any court of competent jurisdiction under any bankruptcy or other applicable law (as now or hereafter in effect) seeking its liquidation, winding up, dissolution, reorganization, examinership, arrangement, adjustment, or the appointment of an intervenor, receiver, receiver-manager, liquidator, assignee, trustee, sequestrator, examiner sequestrator (or other similar official), and any such proceeding shall continue undismissed, or any order, judgment or decree approving or ordering any of the foregoing shall continue unstayed or otherwise in effect, for a period of forty five thirty (4530) days; (v) the making by any Credit Party or any of its Subsidiaries Borrower of an assignment for the benefit of creditors, or the admission by it in writing of its inability to pay its debt generally as they become due; or (vi) any other event shall have occurred which under any applicable law would have an effect analogous to any of those events listed above in this subsection.
(e) One or more judgments against any Credit Party Borrower or any Subsidiary or attachments against any of their respective property, which in the aggregate exceed $1,000,000 (net of any anticipated insurance proceeds), and such judgment(sproperty that could reasonably be expected to have a Material Adverse Effect remain(s) remains unpaid, unstayed on appeal, undischarged, unbonded or undismissed for a period of thirty (30) days from the date of entry of such judgment.
(f) Any Authorization held by any Credit Party or Borrower from any of its Subsidiaries Government Authority shall have been suspended, cancelled canceled or revoked, revoked and such suspension, cancellation or revocation would reasonably be expected to shall not have a Material Adverse Effectbeen cured within thirty (30) days.
(g) Any Authorization authorization necessary for the execution, delivery or performance of any Loan Transaction Document or for the validity or enforceability of any of the Obligations under any Transaction Document is not given or is withdrawn or ceases to remain in full force or effect.
(h) There is a failure to perform under any agreement to which any Credit Party is a party resulting in the acceleration by a third party of the maturity of any Indebtedness in an amount in excess of $5,000,000.
(i) The validity of any Loan Transaction Document shall be contested by any Credit Party or any Subsidiarythe Borrowers, or any Applicable Law treaty, law, regulation, communiqué, decree, ordinance or policy of any jurisdiction shall purport to render any material provision of any Loan Transaction Document invalid or unenforceable or shall purport to prevent or materially delay the performance or observance by any Credit Party the Borrowers of the Obligations.
(ji) The Common Shares of Parent cease SA has failed to be listed on comply in any material respect with the Principal Trading Markets or the Common Shares cease to be registered under Section 12 reporting requirements of the Exchange Act, if applicable and such non-compliance shall not have been remedied by the Borrowers within thirty (30) days.
(j) There is a failure to perform in any agreement to which any Borrower or any Subsidiary is a party with a third party or parties resulting in a right by such third party or parties to accelerate the maturity of any Indebtedness for borrowed money in an amount in excess of $500,000.
(k) The occurrence If an event of default occurs under the Installment Sale Note dated March 12, 2012 from the Borrowers to Éclat Holdings LLC in the principal amount of $12,000,000 and such note shall have been accelerated as a Conversion Failureresult thereof.
(l) If an event of default occurs under the Deerfield Credit Facility.
Appears in 1 contract
General Acceleration Provision upon Events of Default. If one or more of the events specified in this Section 5.4 shall have happened and be continuing beyond the applicable cure period 5.5 (each, each an “Event of Default”)) shall have happened, the Required Lenders, by written notice to the Borrower Borrower, (any such notice, an “Acceleration Notice”), may cancel the Borrower’s right to request Disbursements and declare the principal of, and accrued and unpaid interest on, all of the Notes Loan or any part of any of them thereof (together with any other amounts accrued or payable under the Loan Documentsthis Agreement) to be, and the same shall thereupon become, immediately due and payable, without any further notice and without any presentment, demand, or protest of any kind, all of which are hereby expressly waived by the Borrower, and take any further action available at law or in equity, including, without limitation, the sale of the Loan and all other rights acquired in connection with the Loan:; provided, however, that an Acceleration Notice shall be deemed to have been sent to Borrower immediately upon the occurrence of any event described in Section 5.5(d) and, in the case of a proceeding of the type described in Section 5.5(d)(iv), shall be deemed to have been withdrawn if such proceeding is dismissed or discontinued within the 90-day period provided for therein (absent the occurrence of any other Event of Default during such 90-day period):
(a) The Borrower A Lender shall have failed to make receive payment of (i) principal when duedue under the Loan or the Notes, or (ii) interest or any other amounts due under the Loan or the Notes or any other Obligations within five (5) Business Days of their due date. [ * ] = Certain confidential information contained in this document, marked by brackets, has been omitted and filed separately with the Securities and Exchange Commission pursuant to Rule 24B-2 of the Securities Exchange Act of 1934, as amended.
(ib) Any Credit Party The Borrower shall have failed to comply in any material respect with the due observance or performance of any other covenant contained in this Agreement or any Note and such failure shall not have been cured by Borrower within (other than the covenant described in (ai) above or as otherwise expressly provided in this Section 5.4) or 30 days after such failure in the other Loan Documents and case of a breach of Section 5.1(e)(ii) (it being agreed that a cure of such breach within such period is “timely”, as such term is used in such Section), or (ii) 30 days after receiving written notice of such default is not remedied by the Borrower or waived by the Lenders within fifteen (15) days (inclusive of any extension periods or cure periods contained in any such covenant or provided by Applicable Laws) after the earlier of (A) receipt by any Credit Party of notice failure from the Lenders of such default, or (B) actual knowledge in the case of any Credit Party of such defaultother covenant.
(c) Any representation or warranty made by any Credit Party or any of its Subsidiaries the Borrower in any Loan Financing Document shall be have been incorrect, false or misleading in any material respect (except to the extent that such representation or warranty is qualified by reference to materiality or Material Adverse Effect, to which extent it shall be incorrect, false or misleading in any respect) as of the date it was made or made, deemed made, reaffirmed or confirmed.
(i) Any Credit Party or any of its Subsidiaries The Borrower shall generally be unable to pay its debts as such debts become due or be deemed to be unable to pay its debtsdue, or shall admit in writing its inability to pay its debts as they come due or shall make a general assignment for the benefit of creditors; (ii) any Credit Party or any of its Subsidiaries the Borrower shall declare a moratorium on the payment of its debts; (iii) the commencement by any Credit Party or any of its Subsidiaries the Borrower of proceedings to be adjudicated bankrupt or insolvent, or the consent by it to the commencement of bankruptcy or insolvency proceedings against it, or the filing by it of a petition or answer or consent seeking reorganization, examinership, intervention or other similar relief under any applicable law, or the consent by it to the filing of any such petition or to the appointment of an intervenor, receiver, receiver-manager, liquidator, assignee, trustee, sequestrator, examiner sequestrator (or other similar official) or of all or substantially all any substantial part of its assets; (iv) the commencement against any Credit Party the Borrower or any substantial part of its Subsidiaries assets of a proceeding in any court of competent jurisdiction under any bankruptcy or other applicable law (as now or hereafter in effect) seeking its liquidation, winding up, dissolution, reorganization, examinership, arrangement, adjustment, or the appointment of an intervenor, receiver, receiver-manager, liquidator, assignee, trustee, sequestrator, examiner sequestrator (or other similar official), and any such proceeding shall continue undismissed, or any order, judgment or decree approving or ordering any of the foregoing shall continue unstayed or otherwise in effect, for a period of forty five ninety (4590) days; (v) the making by any Credit Party or any of its Subsidiaries the Borrower of an assignment for the benefit of creditors, or the admission by it in writing of its inability to pay its debt generally as they become due; or (vi) any other event shall have occurred which under any applicable law would have an effect analogous to any of those events listed above in this subsection.
(e) One or more judgments against any Credit Party or any Subsidiary the Borrower taken as a whole or attachments against any of their respective its property, which in the aggregate exceed $1,000,000 (net of any anticipated insurance proceeds), and such judgment(s) remains unpaid, [ * ] unstayed on appeal, undischarged, unbonded or undismissed for a period of thirty (30) days from the date of entry of such judgment.
(f) Any Authorization held by any Credit Party or The Borrower repudiates any of its Subsidiaries shall have the Financing Documents or challenges the validity or enforceability of Financing Documents. [ * ] = Certain confidential information contained in this document, marked by brackets, has been suspendedomitted and filed separately with the Securities and Exchange Commission pursuant to Rule 24B-2 of the Securities Exchange Act of 1934, cancelled or revoked, and such suspension, cancellation or revocation would reasonably be expected to have a Material Adverse Effectas amended.
(g) Any Authorization necessary for the execution, delivery or performance of any Loan Document or for the validity or enforceability of any of the Obligations is not given or is withdrawn or ceases to remain in full force or effect.
(h) There is a failure to perform under any agreement to which any Credit Party is a party resulting in the acceleration by a third party of the maturity of any Indebtedness in an amount in excess of $5,000,000.
(i) The validity of any Loan Financing Document shall be contested by any Credit Party legislative, executive or judicial body of any Subsidiaryjurisdiction, or any Applicable Law treaty, law, regulation, communiqué, decree, ordinance or policy of any jurisdiction shall purport to render any material provision of any Loan Financing Document invalid or unenforceable or shall purport to prevent or materially delay the performance or observance by any Credit Party the Borrower of the Obligations.
(h) There is a failure to perform in any agreement to which the Borrower is a party with a third party or parties resulting in the acceleration of the maturity of any indebtedness for borrowed money in an amount in excess of [ * ].
(i) If an Event of Default pursuant to any Warrant (as such term is defined in the Warrants) held by a Lender shall have occurred.
(j) The Common Shares of Parent cease to be listed Cash and Cash equivalents on the Principal Trading Markets or the Common Shares cease to be registered under Section 12 last day of the Exchange Acteach calendar quarter are less than $[ * ].
(k) The occurrence If Borrower makes any payment on account of a Conversion FailureIndebtedness that is subordinated to the Loan except to the extent the payment is allowed under the subordination provisions applicable to such Indebtedness.
(l) If an event of default occurs with respect to the subordinated convertible notes referred to in clause (f) of the definition of Permitted Indebtedness.
Appears in 1 contract
Samples: Facility Agreement (Exelixis Inc)
General Acceleration Provision upon Events of Default. If one or more of the events any event specified in this Section 5.4 shall have happened and be continuing beyond the applicable cure period (each, an “Event of Default”), the Required Lenders, by written notice to the Borrower (an “Acceleration Notice”)Borrower, may declare the principal of, and accrued and unpaid interest on, all of the Notes or any part of any of them (together with any other amounts Obligations accrued or payable under the Loan Documentspayable) to be, and the same shall thereupon become, immediately due and payable, without any further notice and without or any presentment, demand, or protest of any kind, all of which are hereby expressly waived by the Borrower, and take any further action available at law or in equity, including, without limitation, the sale of the Loan and all other rights acquired in connection with the Loan:
(a) The Borrower shall have failed to make payment of (i) principal when due, or (ii) and interest or any other amounts due under the Notes or any other Obligations when due and such failure shall not have been cured by the Borrower within five (5) 5 Business Days after receiving written notice of their due datesuch failure from the Lenders.
(ib) Any Credit Party The Borrower shall have failed to comply with the due observance or performance of any covenant contained in this Agreement any Transaction Document (other than the covenant as described in (a) above or as otherwise expressly provided in (i) of this Section 5.4) 5.4 or in the other Loan Documents Section 5.1(g)), and such default is failure shall not remedied have been cured by the Borrower or waived by the Lenders within fifteen (15) 45 days (inclusive after receiving written notice of any extension periods or cure periods contained in any such covenant or provided by Applicable Laws) after the earlier of (A) receipt by any Credit Party of notice failure from the Lenders of such default, or (B) actual knowledge of any Credit Party of such defaultLenders.
(c) Any representation or warranty made by any Credit Party or any of its Subsidiaries the Borrower in any Loan Transaction Document shall be have been incorrect, false or misleading in any material respect (except to the extent that such representation or warranty is qualified by reference to materiality or Material Adverse Effect, to which extent it shall be have been incorrect, false or misleading in any respect) as of the date it was made or deemed made.
(i) Any Credit Party or any of its Subsidiaries The Borrower shall generally be unable to pay its debts as such debts become due or be deemed to be unable to pay its debtsdue, or shall admit in writing its inability to pay its debts as they come due or shall make a general assignment for the benefit of creditors; (ii) any Credit Party or any of its Subsidiaries shall declare a moratorium on the payment of its debts; (iii) the commencement by any Credit Party or any of its Subsidiaries of proceedings to be adjudicated bankrupt or insolvent, or the consent by it to the commencement of bankruptcy or insolvency proceedings against it, or the filing by it of a petition or answer or consent seeking reorganization, examinership, intervention or other similar relief under any applicable law, or the consent by it to the filing of any such petition or to the appointment of an intervenor, receiver, receiver-manager, liquidator, assignee, trustee, sequestrator, examiner (or other similar official) of all or substantially all of its assets; (iv) the commencement against any Credit Party or any of its Subsidiaries of a proceeding in any court of competent jurisdiction under any bankruptcy or other applicable law (as now or hereafter in effect) seeking its liquidation, winding up, dissolution, reorganization, examinership, arrangement, adjustment, or the appointment of an intervenor, receiver, receiver-manager, liquidator, assignee, trustee, sequestrator, examiner (or other similar official), and any such proceeding shall continue undismissed, or any order, judgment or decree approving or ordering any of the foregoing shall continue unstayed or otherwise in effect, for a period of forty five (45) days; (v) the making by any Credit Party or any of its Subsidiaries of an assignment for the benefit of creditors, or the admission by it in writing of its inability to pay its debt generally as they become due; or (vi) any other event shall have occurred which under any applicable law would have an effect analogous to any of those events listed above in this subsection.
(e) One or more judgments against any Credit Party or any Subsidiary or attachments against any of their respective property, which in the aggregate exceed $1,000,000 (net of any anticipated insurance proceeds), and such judgment(s) remains unpaid, unstayed on appeal, undischarged, unbonded or undismissed for a period of thirty (30) days from the date of entry of such judgment.
(f) Any Authorization held by any Credit Party or any of its Subsidiaries shall have been suspended, cancelled or revoked, and such suspension, cancellation or revocation would reasonably be expected to have a Material Adverse Effect.
(g) Any Authorization necessary for the execution, delivery or performance of any Loan Document or for the validity or enforceability of any of the Obligations is not given or is withdrawn or ceases to remain in full force or effect.
(h) There is a failure to perform under any agreement to which any Credit Party is a party resulting in the acceleration by a third party of the maturity of any Indebtedness in an amount in excess of $5,000,000.
(i) The validity of any Loan Document shall be contested by any Credit Party or any Subsidiary, or any Applicable Law shall purport to render any material provision of any Loan Document invalid or unenforceable or shall purport to prevent or materially delay the performance or observance by any Credit Party of the Obligations.
(j) The Common Shares of Parent cease to be listed on the Principal Trading Markets or the Common Shares cease to be registered under Section 12 of the Exchange Act.
(k) The occurrence of a Conversion Failure.make
Appears in 1 contract
Samples: Facility Agreement (Kempharm, Inc)
General Acceleration Provision upon Events of Default. (a) If one or more of the events any event specified in this Section 5.4 4.4 (other than an event specified in any of clauses (ii), (iii), (v) and (viii)) shall have happened and be continuing beyond the any applicable cure period at (each, an “Event of Default”), the Required LendersEclat, by written notice to the Borrower (an “Acceleration Notice”)Purchaser, may declare the principal of, of and accrued and unpaid interest on, all of on the Notes or any part of any of them Note (together with any other amounts accrued or payable under the Loan DocumentsObligations) to be, and the same shall thereupon become, immediately due and payable, without any further notice and without any presentment, demand, or protest of any kind, all of which are hereby the Purchaser expressly waived by the Borrowerwaives, and take any further action available at law or in equity, including, without limitation, the sale of the Loan and all other rights acquired in connection with the LoanNote:
(ai) The Borrower Purchaser shall have failed to make payment of (ia) principal when due, or (iib) interest or and any other amounts due under the Notes or any other Obligations Note within five (5) Business Days of their due date.
(iii) Any Credit Party Flamel or the Purchaser shall have failed to comply with the due observance or performance of any covenant contained in this Agreement any Purchase Document to which it is a party (other than the covenant described in (ai) above or as otherwise expressly provided in this Section 5.4above) or in the other Loan Documents and such default is failure shall not remedied have been cured by Flamel or the Borrower or waived by the Lenders Purchaser within fifteen (15) 30 days (inclusive of any extension periods or cure periods contained in any such covenant or provided by Applicable Laws) after the earlier of (A) receipt by any Credit Party of receiving notice from the Lenders of such default, or (B) actual knowledge of any Credit Party of such defaultfailure from Eclat.
(ciii) Any representation or warranty made by any Credit Party Flamel or any of its Subsidiaries the Purchaser in any Loan Purchase Document which it is a party shall be have been incorrect, false or misleading in any material respect (except to the extent that such representation or warranty is qualified by reference to materiality or Material Adverse Effect, to which extent it shall be incorrect, false or misleading in any respect) as of the date it was made or deemed made.
(iv) (i) Any Credit Party Flamel or any of its Subsidiaries the Purchaser shall generally be unable to pay its debts as such debts become due or be deemed to be unable to pay its debtsdue, or shall admit in writing its inability to pay its debts as they come due or shall make a general assignment for the benefit of creditors; (ii) any Credit Party Flamel or any of its Subsidiaries the Purchaser shall declare a moratorium on the payment of its debts; (iii) the commencement by any Credit Party Flamel or any of its Subsidiaries the Purchaser of proceedings to be adjudicated bankrupt or insolvent, or the consent by it to the commencement of bankruptcy or insolvency proceedings against it, or the filing by it of a petition or answer or consent seeking reorganization, examinership, intervention or other similar relief under any applicable law, or the consent by it to the filing of any such petition or to the appointment of an intervenor, receiver, receiver-manager, liquidator, assignee, trustee, sequestrator, examiner sequestrator (or other similar official) of all or substantially all of its assets; (iv) the commencement against any Credit Party Flamel or any of its Subsidiaries the Purchaser of a proceeding in any court of competent jurisdiction under any bankruptcy or other applicable law (as now or hereafter in effect) seeking its liquidation, winding up, dissolution, reorganization, examinership, arrangement, adjustment, or the appointment of an intervenor, receiver, receiver-manager, liquidator, assignee, trustee, sequestrator, examiner sequestrator (or other similar official), and any such proceeding shall continue undismissed, or any order, judgment or decree approving or ordering any of the foregoing shall continue unstayed or otherwise in effect, for a period of forty five ninety (4590) days; or (v) the making by any Credit Party or any of its Subsidiaries of an assignment for the benefit of creditors, or the admission by it in writing of its inability to pay its debt generally as they become due; or (vi) any other event shall have occurred which under any applicable law in the United States, France or another jurisdiction would have an effect analogous to any of those events listed above in this subsection.
(ev) One or more money judgments against any Credit Party Flamel or any Subsidiary the Purchaser or attachments against any of their respective propertyits property (not covered by insurance), which in the aggregate exceed $1,000,000 (net of any anticipated insurance proceeds)500,000, and such judgment(sor which could reasonably be expected to have a Material Adverse Effect remain(s) remains unpaid, unstayed on appeal, undischarged, unbonded or undismissed for a period of thirty (30) days from the date of entry of such judgment.
(fvi) [Reserved:]
(vii) Any Authorization held by material provision of the Purchase Documents for any Credit Party reason, other than a partial or full release in accordance with the terms thereof or any of its Subsidiaries shall have been suspended, cancelled or revoked, and such suspension, cancellation or revocation would reasonably be expected to have authorization by a Material Adverse Effect.
(g) Any Authorization Government Authority necessary for the execution, delivery or performance of any Loan Purchase Document or for the validity or enforceability of any of the Obligations is not given or is withdrawn or ceases to remain be in full force and effect or effectis declared to be null and void.
(hviii) There is a failure Flamel or any of its Subsidiaries fails to perform under any agreement relating to which Indebtedness (other than any Credit Party is Indebtedness arising out of, or in respect of the Warrant, including, without limitation, a party resulting promissory note in the acceleration by a third party form of Exhibit D to the maturity Warrant) of Flamel or any Indebtedness in of its Subsidiaries having an aggregate outstanding principal amount in excess of $5,000,000500,000, in each case after the expiration of any applicable cure period, resulting in a right by the holder of such Indebtedness to accelerate the maturity thereof.
(iix) The validity of any Loan Document shall be contested by any Credit Party or any Subsidiary, or any Applicable Law shall purport to render any material provision of any Loan Document invalid or unenforceable or shall purport to prevent or materially delay the performance or observance by any Credit Party of the Obligations[Reserved].
(jx) The Common Shares Mxxxxxx Xxxxxxxx does not become Chief Executive Officer of Parent cease to be listed on Flamel as contemplated by the Principal Trading Markets or the Common Shares cease to be registered under Section 12 of the Exchange ActEmployment Agreement.
(kxi) Mxxxxxx Xxxxxxxx is removed as the Chief Executive Officer of Flamel prior to the third anniversary of the date hereof for any reason other than on account of death, disability, or cause (as such term is defined in the Employment Agreement).
(xii) Mxxxxxx Xxxxxxxx voluntarily resigns as Chief Executive Officer of Flamel prior to the third anniversary of the date hereof because Flamel has breached its agreements in the Employment Agreement.
(xiii) Eclat Pharma shall cease conducting the business it currently conducts and proposes to conduct and such business, with the direct or indirect consent of Flamel, shall be conducted by any other Person.
(xiv) Any asset of Eclat Pharma shall be sold, assigned, licensed or otherwise transferred except in the ordinary course of business and except for (i) transfers of property subject to casualty or condemnation proceeding, (ii) used, worn-out, obsolete or surplus equipment, (iii) the abandonment of intellectual property rights which, in the reasonable good faith determination of Flamel, are no longer used or useful to the business of Eclat Pharma, (iv) Restricted Payments permitted pursuant to Section 4.2(ii)(b), and (v) any such asset with a fair market value of not more than $75,000.
(xv) The occurrence Limited Liability Company Agreement of Eclat Pharmaceuticals LLC shall be amended in any manner adverse to the interests of Eclat in any material respect under the Purchase Documents or the transactions contemplated thereby.
(b) If an Event of Default specified in clauses (ii), (iii), (v), or (viii) occurs and is continuing, and a Conversion FailureThreshold has been reached, Eclat, by notice to the Purchaser may exercise the acceleration rights with respect to the principal of and accrued and unpaid interest on the Note and the other Obligations of the Purchaser and Flamel set forth in Section 4.4(a) of this Agreement.
Appears in 1 contract
General Acceleration Provision upon Events of Default. If one or more of the events specified in this Section 5.4 shall have happened and be continuing beyond the applicable cure period (each, an “Event of Default”), the Required Lenders, by written notice to the Borrower (an “Acceleration Notice”)Borrower, may declare the principal of, and accrued and unpaid interest on, all of the Notes or any part of any of them (together with any other amounts accrued or payable under the Loan Transaction Documents) to be, and the same shall thereupon become, immediately due and payable, without any further notice and without any presentment, demand, or protest of any kind, all of which are hereby expressly waived by the Borrower, and take any further action available at law or in equity, including, without limitation, the sale of the Loan and all other rights acquired in connection with the Loan:
(a) The Borrower shall have failed to make payment of (i) principal when due, or (ii) and interest or any other amounts due under the Notes or any other Obligations within five (5) Business Days of their due datewhen due.
(ib) Any Credit Party The Borrower shall have failed to comply with the due observance or performance of any covenant contained in this Agreement any Transaction Document (other than the covenant covenants described in (a) above or as otherwise expressly provided in this Section 5.4) or in above), which failure shall have a Material Adverse Effect on the other Loan Documents Borrower and such default is failure shall not remedied have been cured by the Borrower or waived by the Lenders within fifteen (15) 30 days (inclusive after receiving written notice of any extension periods or cure periods contained in any such covenant or provided by Applicable Laws) after the earlier of (A) receipt by any Credit Party of notice failure from the Lenders of such default, or (B) actual knowledge of any Credit Party of such defaultLenders.
(c) Any representation or warranty made by any Credit Party or any of its Subsidiaries the Borrower in any Loan Transaction Document which would have a Material Adverse Effect shall be have been incorrect, false or misleading in any material respect (except to the extent that such representation or warranty is qualified by reference to materiality or Material Adverse Effect, to which extent it shall be incorrect, false or misleading in any respect) as of the date it was made or deemed made.
(i) Any Credit Party or any of its Subsidiaries The Borrower shall generally be unable to pay its debts as such debts become due or be deemed to be unable to pay its debtsdue, or shall admit in writing its inability to pay its debts as they come due or shall make a general assignment for the benefit of creditors; (ii) any Credit Party or any of its Subsidiaries the Borrower shall declare a moratorium on the payment of its debts; (iii) the commencement by any Credit Party or any of its Subsidiaries the Borrower of proceedings to be adjudicated bankrupt or insolvent, or the consent by it to the commencement of bankruptcy or insolvency proceedings against it, or the filing by it of a petition or answer or consent seeking reorganization, examinership, intervention or other similar relief under any applicable law, or the consent by it to the filing of any such petition or to the appointment of an intervenor, receiver, receiver-manager, liquidator, assignee, trustee, sequestrator, examiner sequestrator (or other similar official) of all or substantially all of its assets; (iv) the commencement against any Credit Party or any of its Subsidiaries the Borrower of a proceeding in any court of competent jurisdiction under any bankruptcy or other applicable law (as now or hereafter in effect) seeking its liquidation, winding up, dissolution, reorganization, examinership, arrangement, adjustment, or the appointment of an intervenor, receiver, receiver-manager, liquidator, assignee, trustee, sequestrator, examiner sequestrator (or other similar official), and any such proceeding shall continue undismissed, or any order, judgment or decree approving or ordering any of the foregoing shall continue unstayed or otherwise in effect, for a period of forty five ninety (4590) days; (v) the making by any Credit Party or any of its Subsidiaries the Borrower of an assignment for the benefit of creditors, or the admission by it in writing of its inability to pay its debt generally as they become due; or (vi) any other event shall have occurred which under any applicable law would have an effect analogous to any of those events listed above in this subsection.
(e) One or more judgments against any Credit Party the Borrower or any Subsidiary or attachments against any of their respective property, which in the aggregate exceed $1,000,000 (net of any anticipated insurance proceeds), and such judgment(scould have a Material Adverse Effect remain(s) remains unpaid, unstayed on appeal, undischarged, unbonded or undismissed for a period of thirty (30) 30 days from the date of entry of such judgment.
(f) Any Authorization held by the Borrower from any Credit Party or any of its Subsidiaries Government Authority shall have been suspended, cancelled canceled or revoked, revoked and such suspension, cancellation or revocation would reasonably be expected to shall not have a Material Adverse Effectbeen cured within 30 days.
(g) Any Authorization authorization necessary for the execution, delivery or performance of any Loan Transaction Document or for the validity or enforceability of any of the Obligations under any Transaction Document is not given or is withdrawn or ceases to remain in full force or effect.
(h) There is a failure to perform under any agreement to which any Credit Party is a party resulting in the acceleration by a third party of the maturity of any Indebtedness in an amount in excess of $5,000,000.
(i) The validity of any Loan Transaction Document shall be contested by any Credit Party or any Subsidiarythe Borrower, or any Applicable Law treaty, law, regulation, communiqué, decree, ordinance or policy of any jurisdiction shall purport to render any material provision of any Loan Transaction Document invalid or unenforceable or shall purport to prevent or materially delay the performance or observance by any Credit Party the Borrower of the Obligations.
(ji) The Common Shares of Parent cease SA has failed to be listed on comply in any material respect with the Principal Trading Markets or the Common Shares cease to be registered under Section 12 reporting requirements of the Exchange Act, if applicable.
(j) There is a failure to perform in any agreement to which the Borrower or any Subsidiary is a party with a third party or parties resulting in a right by such third party or parties to accelerate the maturity of any Indebtedness for borrowed money in an amount in excess of $50,000..
(k) The occurrence If an Event of Default pursuant to Section 11(a) of the Warrants (as such term is defined in the Warrants) shall have occurred.
(l) If an Event of Default under the Installment Sale Note dated March 12, 2012 from the Borrower to Eclat Holdings LLC in the principal amount of $12 million shall have occurred and such Note shall have been accelerated as a Conversion Failureresult thereof.
Appears in 1 contract
General Acceleration Provision upon Events of Default. If one or more of the events specified in this Section 5.4 shall have happened and be continuing beyond the applicable cure period 5.5 (each, each an “Event of Default”)) shall have happened, the Required Lenders, by written notice to the Borrower Borrower, (any such notice, an “Acceleration Notice”), may cancel the Borrower’s right to request Disbursements and declare the principal of, and accrued and unpaid interest on, all of the Notes Loan or any part of any of them thereof (together with any other amounts accrued or payable under the Loan Documentsthis Agreement) to be, and the same shall thereupon become, immediately due and payable, without any further notice and without any presentment, demand, or protest of any kind, all of which are hereby expressly waived by the Borrower, and take any further action available at law or in equity, including, without limitation, the sale of the Loan and all other rights acquired in connection with the Loan:; provided, however, that an Acceleration Notice shall be deemed to have been sent to Borrower immediately upon the occurrence of any event described in Section 5.5(d) and, in the case of a proceeding of the type described in Section 5.5(d)(iv), shall be deemed to have been withdrawn if such proceeding is dismissed or discontinued within the 90-day period provided for therein (absent the occurrence of any other Event of Default during such 90-day period):
(a) The Borrower A Lender shall have failed to make receive payment of (i) principal when duedue under the Loan or the Notes, or (ii) interest or any other amounts due under the Loan or the Notes or any other Obligations within five (5) Business Days of their due date.
(ib) Any Credit Party The Borrower shall have failed to comply in any material respect with the due observance or performance of any other covenant contained in this Agreement or any Note and such failure shall not have been cured by Borrower within (other than the covenant described in (ai) above or as otherwise expressly provided in this Section 5.4) or 30 days after such failure in the other Loan Documents and case of a breach of Section 5.1(e)(ii) (it being agreed that a cure of such breach within such period is “timely”, as such term is used in such Section), or (ii) 30 days after receiving written notice of such default is not remedied by the Borrower or waived by the Lenders within fifteen (15) days (inclusive of any extension periods or cure periods contained in any such covenant or provided by Applicable Laws) after the earlier of (A) receipt by any Credit Party of notice failure from the Lenders of such default, or (B) actual knowledge in the case of any Credit Party of such defaultother covenant.
(c) Any representation or warranty made by any Credit Party or any of its Subsidiaries the Borrower in any Loan Financing Document shall be have been incorrect, false or misleading in any material respect (except to the extent that such representation or warranty is qualified by reference to materiality or Material Adverse Effect, to which extent it shall be incorrect, false or misleading in any respect) as of the date it was made or made, deemed made, reaffirmed or confirmed.
(i) Any Credit Party or any of its Subsidiaries The Borrower shall generally be unable to pay its debts as such debts become due or be deemed to be unable to pay its debtsdue, or shall admit in writing its inability to pay its debts as they come due or shall make a general assignment for the benefit of creditors; (ii) any Credit Party or any of its Subsidiaries the Borrower shall declare a moratorium on the payment of its debts; (iii) the commencement by any Credit Party or any of its Subsidiaries the Borrower of proceedings to be adjudicated bankrupt or insolvent, or the consent by it to the commencement of bankruptcy or insolvency proceedings against it, or the filing by it of a petition or answer or consent seeking reorganization, examinership, intervention or other similar relief under any applicable law, or the consent by it to the filing of any such petition or to the appointment of an intervenor, receiver, receiver-manager, liquidator, assignee, trustee, sequestrator, examiner sequestrator (or other similar official) or of all or substantially all any substantial part of its assets; (iv) the commencement against any Credit Party the Borrower or any substantial part of its Subsidiaries assets of a proceeding in any court of competent jurisdiction under any bankruptcy or other applicable law (as now or hereafter in effect) seeking its liquidation, winding up, dissolution, reorganization, examinership, arrangement, adjustment, or the appointment of an intervenor, receiver, receiver-manager, liquidator, assignee, trustee, sequestrator, examiner sequestrator (or other similar official), and any such proceeding shall continue undismissed, or any order, judgment or decree approving or ordering any of the foregoing shall continue unstayed or otherwise in effect, for a period of forty five ninety (4590) days; (v) the making by any Credit Party or any of its Subsidiaries the Borrower of an assignment for the benefit of creditors, or the admission by it in writing of its inability to pay its debt generally as they become due; or (vi) any other event shall have occurred which under any applicable law would have an effect analogous to any of those events listed above in this subsection.
(e) One or more judgments against any Credit Party or any Subsidiary the Borrower taken as a whole or attachments against any of their respective its property, which in the aggregate exceed $1,000,000 (net of any anticipated insurance proceeds), and such judgment(s) remains unpaid, 2,500,000 unstayed on appeal, undischarged, unbonded or undismissed for a period of thirty (30) days from the date of entry of such judgment.
(f) Any Authorization held by any Credit Party or The Borrower repudiates any of its Subsidiaries shall have been suspended, cancelled the Financing Documents or revoked, and such suspension, cancellation challenges the validity or revocation would reasonably be expected to have a Material Adverse Effectenforceability of Financing Documents.
(g) Any Authorization necessary for the execution, delivery or performance of any Loan Document or for the validity or enforceability of any of the Obligations is not given or is withdrawn or ceases to remain in full force or effect.
(h) There is a failure to perform under any agreement to which any Credit Party is a party resulting in the acceleration by a third party of the maturity of any Indebtedness in an amount in excess of $5,000,000.
(i) The validity of any Loan Financing Document shall be contested by any Credit Party legislative, executive or judicial body of any Subsidiaryjurisdiction, or any Applicable Law treaty, law, regulation, communiqué, decree, ordinance or policy of any jurisdiction shall purport to render any material provision of any Loan Financing Document invalid or unenforceable or shall purport to prevent or materially delay the performance or observance by any Credit Party the Borrower of the Obligations.
(jh) The Common Shares of Parent cease There is a failure to be listed on perform in any agreement to which the Principal Trading Markets Borrower is a party with a third party or parties resulting in the Common Shares cease to be registered under Section 12 acceleration of the Exchange Actmaturity of any indebtedness for borrowed money in an amount in excess of $1,500,000.
(ki) The occurrence If an Event of Default pursuant to any Warrant (as such term is defined in the Warrants) held by a Conversion FailureLender shall have occurred.
(j) Cash and Cash equivalents on the last day of each calendar quarter are less than $75,000,000.
Appears in 1 contract
Samples: Facility Agreement (Exelixis Inc)
General Acceleration Provision upon Events of Default. If one or more of the events specified in this Section 5.4 shall have happened and be continuing beyond the applicable cure period 4.5 (each, each an “Event of Default”)) shall have happened and shall be continuing, the Required Lenders, by written notice to the Borrower Borrower, (any such notice, an “Acceleration Notice”), may declare the principal of, and accrued and unpaid interest on, all of the Notes Loan or any part of any of them thereof (together with any other amounts accrued or payable under the Loan Documentsthis Agreement) to be, and the same shall thereupon become, immediately due and payable, without any further notice and without any presentment, demand, or protest of any kind, all of which are hereby expressly waived by the Borrower, and take any further action available at law or in equity, including, without limitation, the sale of the Loan and all other rights acquired in connection with the Loan:, subject, however, to the assignment provisions in Section 5.5 hereof; provided, however, that an Acceleration Notice shall be deemed to have been sent to Borrower immediately upon the occurrence of any event described in Section 4.5(d) and, in the case of a proceeding of the type described in Section 4.5(d)(iv), shall be deemed to have been withdrawn if such proceeding is dismissed or discontinued within the 90-day period provided for therein (absent the occurrence of any other Event of Default during such 90-day period):
(a) The Borrower A Lender shall have failed to make receive payment of (i) principal and interest when due, or (ii) interest or any other amounts due under the Notes or any other Obligations within five (5) Business Days of their due dateNotes.
(ib) Any Credit Party The Borrower shall have failed to comply with the due observance or performance of any covenant contained in this Agreement any Financing Document and such failure to comply has not been cured by Borrower within ten (other than 10) days after the covenant described in occurrence thereof; provided, however, that if the such non-compliance cannot by its nature be cured within such ten (a10) above day period or as otherwise expressly provided in this Section 5.4cannot after diligent attempts by Borrower be cured within such ten (10) or in the other Loan Documents day period, and such default is likely to be cured within a reasonable time, then Borrower shall have an additional period (which shall not remedied by the Borrower or waived by the Lenders within fifteen (15) days (inclusive of any extension periods or cure periods contained in any case exceed thirty (30) days) to attempt to cure such covenant or provided by Applicable Laws) after non-compliance, and within such reasonable time period the earlier failure to cure such non-compliance shall not be deemed an Event of (A) receipt by any Credit Party of notice from the Lenders of such default, or (B) actual knowledge of any Credit Party of such defaultDefault.
(c) Any representation or warranty made by any Credit Party or any of its Subsidiaries the Borrower in any Loan Financing Document shall be have been incorrect, false or misleading in any material respect (except to the extent that such representation or warranty is qualified by reference to materiality or Material Adverse Effect, to which extent it shall be incorrect, false or misleading in any respect) as of the date it was made or deemed made.
(i) Any Credit Party or any of its Subsidiaries The Borrower shall generally be unable to pay its debts as such debts become due or be deemed to be unable to pay its debtsdue, or shall admit in writing its inability to pay its debts as they come due or shall make a general assignment for the benefit of creditors; (ii) any Credit Party or any of its Subsidiaries the Borrower shall declare a moratorium on the payment of its debts; (iii) the commencement by any Credit Party or any of its Subsidiaries the Borrower of proceedings to be adjudicated bankrupt or insolvent, or the consent by it to the commencement of bankruptcy or insolvency proceedings against it, or the filing by it of a petition or answer or consent seeking reorganization, examinership, intervention or other similar relief under any applicable law, or the consent by it to the filing of any such petition or to the appointment of an intervenor, receiver, receiver-manager, liquidator, assignee, trustee, sequestrator, examiner sequestrator (or other similar official) of all or substantially all any substantial part of its assets; (iv) the commencement against any Credit Party the Borrower or any substantial part of its Subsidiaries assets of a proceeding in any court of competent jurisdiction under any bankruptcy or other applicable law (as now or hereafter in effect) seeking its liquidation, winding up, dissolution, reorganization, examinership, arrangement, adjustment, or the appointment of an intervenor, receiver, receiver-manager, liquidator, assignee, trustee, sequestrator, examiner sequestrator (or other similar official), and any such proceeding shall continue undismissed, or any order, judgment or decree approving or ordering any of the foregoing shall continue unstayed or otherwise in effect, in each case, for a period of forty five ninety (4590) days; (v) the making by any Credit Party or any of its Subsidiaries the Borrower of an assignment for the benefit of creditors, or the admission by it in writing of its inability to pay its debt generally as they become due; or (vi) any other event shall have occurred which under any applicable law would have an effect analogous to any of those events listed above in this subsection.
(e) One or more judgments against any Credit Party or any Subsidiary the Borrower taken as a whole or attachments against any of their respective its property, which in the aggregate exceed amount exceeds $1,000,000 (net of any anticipated insurance proceeds)100,000, and such judgment(s) remains unpaid, remain unstayed on appeal, undischarged, unbonded or undismissed for a period of thirty (30) days from the date of entry of such judgmentjudgment(s).
(f) Any Authorization held by The Borrower repudiates any Credit Party or any of its Subsidiaries shall have been suspended, cancelled or revoked, and such suspension, cancellation or revocation would reasonably be expected to have a Material Adverse Effect.
(g) Any Authorization necessary for the execution, delivery or performance of any Loan Financing Document or for challenges the validity or enforceability of any Financing Document.
(g) The validity of any Financing Document shall be contested by any legislative, executive or judicial body of any jurisdiction, or any treaty, law, regulation, communiqué, decree, ordinance or policy of any jurisdiction shall render any provision of any Financing Document unenforceable or shall prevent or materially delay the performance or observance by the Borrower of the Obligations is not given or is withdrawn or ceases to remain in full force or effectObligations.
(h) There is a failure to perform under in any agreement to which any Credit Party the Borrower is a party resulting in the acceleration by a third party of the maturity of any Indebtedness in an amount in excess of $5,000,000100,000.
(i) The validity occurrence of any Loan Document shall be contested by any Credit Party or any Subsidiary, or any Applicable Law shall purport to render any material provision an Event of any Loan Document invalid or unenforceable or shall purport to prevent or materially delay Default under the performance or observance by any Credit Party of Warrants (as such item is defined in the ObligationsWarrants).
(j) The Common Shares Borrower breaches any of Parent cease to be listed on its agreements contained in the Principal Trading Markets or Royalty Agreement dated the Common Shares cease to be registered under Section 12 of date hereof between the Exchange ActBorrower, Deerfield TTNP Corp. and Deerfield Private Design Fund II, L.P. and such breach is not cured within thirty (30) days following written notice thereof from Lenders.
(k) The occurrence director (the “Director”) of the United States Patent and Trademark Office (the “USPTO”) does not issue a certificate of extension extending the term of the Patent #RE39,198 (the “Fanapt Patent”) prior to the expiration thereof by not less than four years from its current expiration date of November 15, 2011. Notwithstanding the foregoing, if the Director does issue a certificate of extension extending the Fanapt Patent by not less than four years from its current expiration date of November 15, 2011, but such certificate does not issue prior to November 15, 2011, and the Director and/or the USPTO has granted an interim extension(s) maintaining the Fanapt Patent pending the issuance of the certificate of extension, no Event of Default shall be deemed to have occurred unless and until the Fanapt Patent expires without the issuance of a Conversion Failurecertificate of extension extending the Fanapt Patent by not less than four years from its current expiration date of November 15, 2011.
Appears in 1 contract
General Acceleration Provision upon Events of Default. If one or more of the events specified in this Section 5.4 shall have happened and be continuing beyond the applicable cure period (each, an “Event of Default”), the Required Lenders, by written notice to the Borrower (an “Acceleration Notice”)Borrower, may declare the outstanding principal of, and accrued and unpaid interest on, all of the Notes or any part of any of them (together with any other amounts accrued or payable under the Loan Documents) to be, and the same shall thereupon become, immediately due and payable, without any further notice and without any presentment, demand, or protest of any kind, all of which are hereby expressly waived by the Borrower, and take any further action available at law or in equity, including, without limitation, the sale of the Loan and all other rights acquired in connection with the Loan:
(a) The Borrower shall have failed to (i) make payment of (i) principal or interest under the Notes when due, due and payable or (ii) interest or any other amounts due under the Notes or pay any other Obligations under the Loan Documents within five (5) Business Days of their due datethe date when due.
(ib) Any Credit Party The Borrower shall have failed to comply with the due observance or performance of any covenant contained in this Agreement any Loan Document (other than the covenant covenants described in (a) above or as otherwise expressly provided in this Section 5.4) or in the other Loan Documents above), and such default is failure shall not remedied have been cured by the Borrower or waived by the Lenders within fifteen (15) 20 days (inclusive after receiving written notice of any extension periods or cure periods contained in any such covenant or provided by Applicable Laws) after the earlier of (A) receipt by any Credit Party of notice failure from the Lenders of such default, or (B) actual knowledge of any Credit Party of such defaultLenders.
(c) Any representation or warranty made by any Credit Party or any of its Subsidiaries the Borrower in any Loan Document shall be have been incorrect, false or misleading in any material respect (except to the extent that such representation or warranty is qualified by reference to materiality or Material Adverse Effect, to which extent it shall be have been incorrect, false or misleading in any respect) as of the date it was made or deemed made.
(i) Any Credit Party or any of its Subsidiaries The Borrower shall generally be unable to pay its debts as such debts become due or be deemed to be unable to pay its debtsin the ordinary course of business, or shall admit in writing its inability to pay its debts as they come due or shall make a general assignment for the benefit of creditors; (ii) any Credit Party or any of its Subsidiaries the Borrower shall declare a moratorium on the payment of its debts; (iii) the commencement by any Credit Party or any of its Subsidiaries the Borrower of proceedings to be adjudicated bankrupt or insolvent, or the consent by it to the commencement of bankruptcy or insolvency proceedings against it, or the filing by it of a petition or answer or consent seeking reorganization, examinership, intervention or other similar relief under any applicable law, or the consent by it to the filing of any such petition or to the appointment of an intervenor, receiver, receiver-manager, liquidator, assignee, trustee, sequestrator, examiner sequestrator (or other similar official) of all or substantially all of its assets; (iv) the commencement against any Credit Party or any of its Subsidiaries the Borrower of a proceeding in any court of competent jurisdiction under any bankruptcy or other applicable law (as now or hereafter in effect) seeking its liquidation, winding up, dissolution, reorganization, examinership, arrangement, adjustment, or the appointment of an intervenor, receiver, receiver-manager, liquidator, assignee, trustee, sequestrator, examiner sequestrator (or other similar official), and any such proceeding shall continue undismissed, or any order, judgment or decree approving or ordering any of the foregoing shall continue unstayed or otherwise in effect, for a period of forty five sixty (4560) days; (v) the making by any Credit Party or any of its Subsidiaries the Borrower of an assignment for the benefit of creditors, or the admission by it in writing of its inability to pay its debt generally as they become due; or (vi) any other event shall have occurred which under any applicable law would have an effect analogous to any of those events listed above in this subsection.
(e) One or more final uninsured judgments in excess of $500,000 against any Credit Party the Borrower or any Subsidiary or attachments against any of their respective property, which in the aggregate exceed $1,000,000 (net of any anticipated insurance proceeds), and such judgment(sproperty remain(s) remains unpaid, unstayed on appeal, undischarged, unbonded or undismissed for a period of thirty (30) 30 days from the date of entry of such judgment.
(f) Any Authorization held by any Credit Party or any material authorization of its Subsidiaries shall have been suspended, cancelled or revoked, and such suspension, cancellation or revocation would reasonably be expected to have a Material Adverse Effect.
(g) Any Authorization Government Authority necessary for the execution, delivery or performance of any Loan Document or for the validity or enforceability of any of the Obligations under any Loan Document is not given or is withdrawn or ceases to remain in full force or effect.
(h) There is a failure to perform under any agreement to which any Credit Party is a party resulting in the acceleration by a third party of the maturity of any Indebtedness in an amount in excess of $5,000,000.
(ig) The validity of any Loan Document shall be contested by any Credit Party or any Subsidiarythe Borrower, or any Applicable Law shall purport to render any material provision of any Loan Document invalid or unenforceable or shall purport cause the Obligations to prevent or materially delay the performance or observance by any Credit Party of the Obligationscease to be in full force and effect.
(jh) The Common Shares There is a failure to perform in any agreement involving obligations in excess of Parent cease to be listed on the Principal Trading Markets or the Common Shares cease to be registered under Section 12 $500,000 of the Exchange ActBorrower or any Subsidiary to which the Borrower or any Subsidiary is a party with a third party or parties resulting in such third party’s or parties acceleration of the maturity of any Indebtedness for borrowed money in an amount in excess of $500,000.
(ki) The occurrence If any Governmental Authority issues any injunction or other order that prohibits Borrower or its Subsidiaries from marketing, selling or manufacturing any of Borrower’s products currently approved by the FDA or any future products of Borrower or its Subsidiaries once approved by the FDA (collectively, the “Commercial Products”) if sales of such products covered by such injunction or order accounted for more than 50% of total sales revenue of Borrower and its Subsidiaries for the most recently ended four fiscal quarter periods, and such injunction or other prohibition shall continue to be in force or otherwise effective for more than 60 consecutive calendar days; provided, however, that with respect to manufacturing, if there is one or more alternative manufacturers of the Commercial Product manufacturing on Borrower’s or its Subsidiaries’ behalf that is not enjoined or otherwise prohibited from manufacturing the Commercial Product and are able to deliver product on Borrower’s or its Subsidiaries’ behalf in a Conversion Failuremanner that is consistent with prior levels without a commercial distribution delay, it shall not be an Event of Default under this clause (i) if the Borrower or any of its Subsidiaries are enjoined or otherwise prohibited from manufacturing the Commercial Product.
Appears in 1 contract
General Acceleration Provision upon Events of Default. If one or more of the events specified in this Section 5.4 shall have happened and be continuing beyond the applicable cure period 6.1 (each, each an “Event of Default”)) shall have happened and be continuing, Deerfield Private Design may cancel the Required Lenders, by written notice Borrower’s right to the Borrower (an “Acceleration Notice”), may request Disbursements and declare the principal of, and accrued and unpaid interest all fees on, all of the Notes Loan or any part of any of them (together with any other amounts accrued or payable under the Loan Documentsthis Agreement) to be, and the same shall thereupon become, immediately due and payable, payable without prepayment premium without any further notice and without any presentment, demand, demand or protest of any kind, all of which are hereby expressly waived by the Borrower, and take any further action available at law or in equity, including, without limitation, the sale of the Loan and all other rights acquired in connection with the Loan:
(a) The Borrower A Lender shall have failed to make receive its respective Warrant when required to be issued under this Agreement or payment when due of (i) principal when dueprincipal, or (ii) interest Commitment Fee, or any other amounts due under the Notes Loan or the Note and any other Obligations such failure shall not have been cured by the Borrower within five (5) 3 Business Days after receiving written notice of their due datesuch failure from Deerfield Private Design.
(ib) Any Credit Party The Borrower shall have defaulted or failed to comply in any material respect with the due observance or performance of any covenant contained in this Agreement (other than or the covenant described in (a) above or as otherwise expressly provided in this Section 5.4) or in the other Loan Documents Note and such default is or failure to comply shall not remedied have been cured by the Borrower or waived by the Lenders within fifteen (15) 15 days (inclusive of any extension periods or cure periods contained in any such covenant or provided by Applicable Laws) after the earlier of (A) receipt by any Credit Party of receiving written notice from the Lenders of such default, default or (B) actual knowledge of any Credit Party of such defaultfailure from Deerfield Private Design.
(c) Any representation or warranty made by any Credit Party or any of its Subsidiaries the Borrower in any Loan Financing Document shall be found to have been incorrect, false or misleading in any material respect (except to the extent that such representation or warranty is qualified by reference to materiality or Material Adverse Effect, to which extent it shall be incorrect, false or misleading in any respect) as of the date it was made or made, deemed made, reaffirmed or confirmed.
(i) Any Credit Party or any of its Subsidiaries The Borrower shall generally be unable to not pay its debts as such debts become due or be deemed to be unable to pay its debtsdue, or shall admit in writing its inability to pay its debts as they come due or shall make a general assignment for the benefit of creditors; (ii) any Credit Party or any of its Subsidiaries the Borrower shall declare a moratorium on the payment of its debts; (iii) the commencement by any Credit Party or any of its Subsidiaries the Borrower of proceedings to be adjudicated bankrupt or insolvent, or the consent by it to the commencement of bankruptcy or insolvency proceedings against it, or the filing by it of a petition or answer or consent seeking reorganization, examinership, intervention or other similar relief under any applicable law, or the consent by it to the filing of any such petition or to the appointment of an intervenor, receiver, receiver-manager, liquidator, assignee, trustee, sequestrator, examiner sequestrator (or other similar official) or of all or substantially all any substantial part of its assets; (iv) the commencement against any Credit Party the Borrower or any substantial part of its Subsidiaries assets of a proceeding in any court of competent jurisdiction under any bankruptcy or other applicable law (as now or hereafter in effect) seeking its liquidation, winding up, dissolution, reorganization, examinership, arrangement, adjustment, or the appointment of an intervenor, receiver, receiver-manager, liquidator, assignee, trustee, sequestrator, examiner sequestrator (or other similar official), and any such proceeding shall continue undismissed, or any order, judgment or decree approving or ordering any of the foregoing shall continue unstayed or otherwise in effect, for a period of forty five ninety (4590) days; (v) the making by any Credit Party or any of its Subsidiaries the Borrower of an assignment for the benefit of creditors, or the admission by it in writing of its inability to pay its debt generally as they become due; or (vi) any other event shall have occurred which under any applicable law would have an effect analogous to any of those events listed above in this subsection.
(e) One or more judgments against any Credit Party or any Subsidiary the Borrower taken as a whole or attachments against any of their respective its property, which in the aggregate exceed three million Dollars ($1,000,000 (net of any anticipated insurance proceeds3,000,000), or which could reasonably expected to interfere materially and such judgment(sadversely with the conduct of the business of the Borrower remain(s) remains unpaid, unstayed on appeal, undischarged, unbonded or undismissed for a period of thirty (30) days from the date of entry of such judgment.
(f) Any Authorization license, permit or approval held by the Borrower including, without limitation from any Credit Party or any of its Subsidiaries Governmental Authority shall have been suspended, cancelled canceled or revoked, revoked and such suspension, cancellation or revocation would (i) could reasonably be expected to interfere materially and adversely with the conduct of the business of the Borrower and (ii) shall not have a Material Adverse Effectbeen cured by Borrower within 15 days after receiving written notice of such default or failure from Deerfield Private Design.
(g) Any Authorization authorization necessary for the execution, delivery or performance of any Loan Financing Document or for the validity or enforceability of any of the Obligations Borrower’s obligations under any Financing Document is not effected or given or is withdrawn or ceases to remain in full force or effect.
(h) There is a failure to perform under any agreement to which any Credit Party is a party resulting in the acceleration by a third party of the maturity of any Indebtedness in an amount in excess of $5,000,000.
(i) The validity of or any Loan Financing Document shall be contested by any Credit Party legislative, executive or judicial body of any Subsidiaryjurisdiction, or any Applicable Law treaty, law, regulation, communiqué, decree, ordinance or policy of any jurisdiction shall purport to render any material provision of any Loan Financing Document invalid or unenforceable or shall purport to prevent or materially delay the performance or observance by any Credit Party the Borrower of its obligations hereunder or thereunder (as applicable).
(i) The Borrower has failed to comply with the requirements of the ObligationsSecurities and Exchange Act of 1934 in a manner which could reasonably expected to interfere materially and adversely with the conduct of the business of the Borrower.
(j) The Common Shares If there is a default or other failure to perform in any agreement to which Borrower is a party with a third party or parties resulting in a right by such third party or parties, whether or not exercised, to accelerate the maturity of Parent cease to be listed on the Principal Trading Markets or the Common Shares cease to be registered under Section 12 any Indebtedness in an amount in excess of the Exchange Act$5,000,000.
(k) The occurrence If Borrower makes any payment on account of Subordinated Debt, except to the extent the payment is allowed under any subordination agreement entered into with the Lenders.
(l) If an Event of Default pursuant to the Warrants (as such term is defined in the Warrants) shall have occurred, but only if a Conversion FailureLender or any of the Deerfield Entities (as such term is defined in the Registration Rights Agreement) is a holder of any of the Warrants at the time of such Event of Default.
Appears in 1 contract
General Acceleration Provision upon Events of Default. If one or more of the events specified in this Section 5.4 6.3 shall have happened and be continuing beyond the applicable cure period (each, an “Event of Default”), the Required LendersRequisite Holders, by written notice to the Borrower (an “Acceleration Notice”)Company, may declare the principal of, and accrued and unpaid interest on, all of the Notes or any part of any of them (together with any other amounts Obligations accrued or payable under the Loan Documentspayable) to be, and the same shall thereupon become, immediately due and payable, without any further notice and without any presentment, demand, or protest of any kind, all of which are hereby expressly waived by the BorrowerCompany, and take any further action available at law or in equity, including, without limitation, including the sale of the Loan Notes and all other rights acquired in connection with the LoanNotes:
(a) The Borrower Company shall have failed to make payment of (i) principal when duedue and payable, or (ii) interest or any other amounts due and payable under the Notes or any other Obligations within five (5) Business Days of on their due datedate and such default is not remedied by the Company or waived by the Requisite Holders within thirty (30) days (inclusive of any extension periods or cure periods contained in any such covenant or provided by Law) after receipt by the Company of notice from the Requisite Holders of such default.
(b) (i) Any Credit Party The Company shall have failed to comply in any material respect with the due observance compliance or performance of any covenant contained in this Agreement (other than the covenant described in (a) above or as otherwise expressly provided in this Section 5.46.3) or in the other Loan Documents Transaction Agreements and such default is not remedied by the Borrower Company or waived by the Lenders Requisite Holders within fifteen thirty (1530) days (inclusive of any extension periods or cure periods contained in any such covenant or provided by Applicable LawsLaw) after the earlier of (A) receipt by any Credit Party the Company of notice from the Lenders of such default, or (B) actual knowledge of any Credit Party Requisite Holders of such default.
(c) Any representation or warranty made by any Credit Party or any of its Subsidiaries the Company in any Loan Document Transaction Agreement shall be incorrect, false or misleading in any material respect (except to the extent that such representation or warranty is qualified by reference to materiality or Material Adverse Effect, to which extent it shall be incorrect, false or misleading in any respect) as of the date it was made or deemed made.
(i) Any Credit Party or any of its Subsidiaries The Company shall fail generally be unable to pay its debts as such debts become due or be deemed to be unable to pay its debts, or shall admit in writing its inability to pay its debts as they come due or shall make a general assignment for the benefit of creditors; (ii) any Credit Party or any of its Subsidiaries the Company shall declare a moratorium on the payment of its debts; (iii) the commencement by any Credit Party or any of its Subsidiaries the Company of proceedings to be adjudicated bankrupt or insolvent, or the consent by it to the commencement of bankruptcy or insolvency proceedings against it, or the filing by it of a petition or answer or consent seeking reorganization, examinership, intervention or other similar relief under any applicable lawLaw, or the consent by it to the filing of any such petition or to the appointment of an intervenor, receiver, receiver-manager, liquidator, assignee, trustee, sequestrator, examiner sequestrator (or other similar official) of all or substantially all of its assets; or (iv) the commencement against any Credit Party or any of its Subsidiaries the Company of a proceeding in any court of competent jurisdiction under any bankruptcy or other applicable law Law (as now or hereafter in effect) seeking its liquidation, winding up, dissolution, reorganization, examinership, arrangement, adjustment, or the appointment of an intervenor, receiver, receiver-manager, liquidator, assignee, trustee, sequestrator, examiner sequestrator (or other similar official), and any such proceeding shall continue undismissed, or any order, judgment or decree approving or ordering any of the foregoing shall continue unstayed or otherwise in effect, for a period of forty five sixty (4560) consecutive days; (v) the making by any Credit Party or any of its Subsidiaries of an assignment for the benefit of creditors, or the admission by it in writing of its inability to pay its debt generally as they become due; or (vi) any other event shall have occurred which under any applicable law would have an effect analogous to any of those events listed above in this subsection.
(e) One or more final judgments against any Credit Party or any Subsidiary or attachments against any of their respective propertyfor the payment by the Company, which in the aggregate exceed $1,000,000 100,000,000 (net of excluding any amounts anticipated insurance proceedsto be covered by insurance), and such judgment(s) remains unpaid, unstayed on appeal, undischarged, unbonded or undismissed for a period of thirty sixty (3060) days from after (i) the date of entry of on which the right to appeal thereof has expired if no such judgmentappeal has commenced, or (ii) the date on which all rights to appeal have been extinguished.
(f) Any Authorization held by any Credit Party or any of its Subsidiaries shall have been suspended, cancelled or revoked, and such suspension, cancellation or revocation would reasonably be expected to have a Material Adverse Effect.
(g) Any Authorization necessary for the execution, delivery or performance of any Loan Document or for the validity or enforceability of any of the Obligations is not given or is withdrawn or ceases to remain in full force or effect.
(h) There is a failure to perform under any agreement to which any Credit Party is a party resulting in the acceleration by a third party of the maturity of any Indebtedness in an amount in excess of $5,000,000.
(i) The validity of any Loan Document Transaction Agreement shall be contested by any Credit Party the Company or any Subsidiary pursuant to a filing by the Company or a Subsidiary, or any Applicable Law shall purport to render any material provision of any Loan Document invalid or unenforceable or shall purport to prevent or materially delay the performance or observance by any Credit Party the Company of a material portion of the Obligations.
(j) The Common Shares . Any Event of Parent cease to be listed on the Principal Trading Markets or the Common Shares cease to be registered under Section 12 Default of the Exchange Acttype specified in Section 6.3(d) shall cause principal of, and accrued and unpaid interest on, all of the Notes or any part of any of them (together with any other Obligations accrued or payable) to be, and the same shall thereupon become, immediately due and payable, without any further notice and without any presentment, demand, or protest of any kind, all of which are hereby expressly waived by the Company.
(k) The occurrence of a Conversion Failure.
Appears in 1 contract
Samples: Unsecured Pik Convertible Notes Purchase Agreement (Uber Technologies, Inc)
General Acceleration Provision upon Events of Default. If one or more of the events specified in this Section 5.4 5.5 shall have happened and be continuing beyond the applicable cure period (each, an “Event of Default”), the Required Lenders, by written notice to the Borrower (an “Acceleration Notice”)Borrower, may cancel the Borrower’s right to request Disbursements and declare the principal of, and accrued and unpaid interest on, all of the Notes or any part of any of them (together with any other amounts accrued or payable under the Loan Documentsthis Agreement) to be, and the same shall thereupon become, immediately due and payable, without any further notice and without any presentment, demand, or protest of any kind, all of which are hereby expressly waived by the Borrower, and take any further action available at law or in equity, including, without limitation, the sale of the Loan and all other rights acquired in connection with the Loan:
(a) The Borrower A Lender shall have failed to make receive payment of (i) principal when due, or (ii) interest or and any other amounts due under the Loan or the Notes or any other Obligations within five (5) Business Days of their due date.
(ib) Any Credit Party The Borrower shall have failed to comply with the due observance or performance of any other covenant contained in this Agreement (other than the covenant described in (a) above or as otherwise expressly provided in this Section 5.4) or in the other Loan Documents any Note and such failure shall not have been cured by Borrower within 30 days after receiving written notice of such default is not remedied by the Borrower or waived by the Lenders within fifteen (15) days (inclusive of any extension periods or cure periods contained in any such covenant or provided by Applicable Laws) after the earlier of (A) receipt by any Credit Party of notice failure from the Lenders of such default, or (B) actual knowledge of any Credit Party of such defaultLenders.
(c) Any representation or warranty made by any Credit Party or any of its Subsidiaries the Borrower in any Loan Financing Document shall be have been incorrect, false or misleading in any material respect (except to the extent that such representation or warranty is qualified by reference to materiality or Material Adverse Effect, to which extent it shall be incorrect, false or misleading in any respect) as of the date it was made or made, deemed made, reaffirmed or confirmed.
(i) Any Credit Party or any of its Subsidiaries The Borrower shall generally be unable to pay its debts as such debts become due or be deemed to be unable to pay its debtsdue, or shall admit in writing its inability to pay its debts as they come due or shall make a general assignment for the benefit of creditors; (ii) any Credit Party or any of its Subsidiaries the Borrower shall declare a moratorium on the payment of its debts; (iii) the commencement by any Credit Party or any of its Subsidiaries the Borrower of proceedings to be adjudicated bankrupt or insolvent, or the consent by it to the commencement of bankruptcy or insolvency proceedings against it, or the filing by it of a petition or answer or consent seeking reorganization, examinership, intervention or other similar relief under any applicable law, or the consent by it to the filing of any such petition or to the appointment of an intervenor, receiver, receiver-manager, liquidator, assignee, trustee, sequestrator, examiner sequestrator (or other similar official) of all or substantially all of its assets; (iv) the commencement against any Credit Party or any of its Subsidiaries the Borrower of a proceeding in any court of competent jurisdiction under any bankruptcy or other applicable law (as now or hereafter in effect) seeking its liquidation, winding up, dissolution, reorganization, examinership, arrangement, adjustment, or the appointment of an intervenor, receiver, receiver-manager, liquidator, assignee, trustee, sequestrator, examiner sequestrator (or other similar official), and any such proceeding shall continue undismissed, or any order, judgment or decree approving or ordering any of the foregoing shall continue unstayed or otherwise in effect, for a period of forty five ninety (4590) days; (v) the making by any Credit Party or any of its Subsidiaries the Borrower of an assignment for the benefit of creditors, or the admission by it in writing of its inability to pay its debt generally as they become due; or (vi) any other event shall have occurred which under any applicable law would have an effect analogous to any of those events listed above in this subsection.
(e) One or more judgments against any Credit Party or any Subsidiary the Borrower taken as a whole or attachments against any of their respective its property, which in the aggregate exceed $1,000,000 (net of any anticipated insurance proceeds)500,000, and such judgment(sor which could have a Material Adverse Effect remain(s) remains unpaid, unstayed on appeal, undischarged, unbonded or undismissed for a period of thirty (30) days from the date of entry of such judgment.
(f) Any Authorization license, permit or approval held by the Borrower from any Credit Party or any of its Subsidiaries Government Authority shall have been suspended, cancelled canceled or revoked, revoked and such suspension, cancellation or revocation would could reasonably be expected to have a Material Adverse Effect, and such suspension, cancellation or revocation shall not have been cured within 30 days.
(g) Any Authorization authorization necessary for the execution, delivery or performance of any Loan Financing Document or for the validity or enforceability of any of the Obligations under any Financing Document is not given or is withdrawn or ceases to remain in full force or effect.
(h) There is a failure to perform under any agreement to which any Credit Party is a party resulting in the acceleration by a third party of the maturity of any Indebtedness in an amount in excess of $5,000,000.
(i) The validity of or any Loan Financing Document shall be contested by any Credit Party legislative, executive or judicial body of any Subsidiaryjurisdiction, or any Applicable Law treaty, law, regulation, communiqué, decree, ordinance or policy of any jurisdiction shall purport to render any material provision of any Loan Financing Document invalid or unenforceable or shall purport to prevent or materially delay the performance or observance by any Credit Party the Borrower of the Obligations, and the parties are unable to negotiate a replacement provision pursuant to Section 6.7 below.
(i) The Borrower has failed to comply in any material respect with the reporting requirements of the Exchange Act, unless corrected by the Borrower promptly (if capable of such correction) through the filing of an amendment to an existing report or making an appropriate subsequent filing with the SEC.
(j) The Common Shares There is a failure to perform in any agreement to which the Borrower is a party with a third party or parties resulting in a right by such third party or parties to accelerate the maturity of Parent cease to be listed on the Principal Trading Markets or the Common Shares cease to be registered under Section 12 any Indebtedness for borrowed money in an amount in excess of the Exchange Act$1,000,000.
(k) The occurrence If an Event of Default pursuant to the Warrants (as such term is defined in the Warrants) shall have occurred, but only if a Conversion FailureLender is a holder of any of the Warrants at the time of such Event of Default.
(l) Cash and Cash Equivalents on the last day of each calendar quarter are less than $10,000,000.
Appears in 1 contract
General Acceleration Provision upon Events of Default. If one or more of the events any event specified in this Section 5.4 shall have happened occurred and be continuing beyond the applicable cure period (each, an “Event of Default”), the Required Lenders, by written notice to the Borrower (an “Acceleration Notice”)Borrower, may declare the principal of, and accrued and unpaid interest on, all of the Notes or any part of any of them (together with any other amounts Obligations accrued or payable under the Loan Documentspayable) to be, and the same shall thereupon become, immediately due and payable, without any further notice and without or any presentment, demand, or protest of any kind, all of which are hereby expressly waived by the Borrower, and take any further action available at law or in equity, including, without limitation, the sale of the Loan and all other rights acquired in connection with the Loan:
(a) The Borrower shall have failed to make payment of (i) principal when due, or (ii) and interest or any other amounts due under the Notes or any other Obligations when due and such failure shall not have been cured by the Borrower within five (5) 5 Business Days after receiving written notice of their due datesuch failure from the Required Lenders (with a copy to each other Lender).
(ib) Any Credit Party The Borrower shall have failed to comply with the due observance or performance of any covenant contained in this Agreement any Transaction Document (other than the covenant as described in (a) above or as otherwise expressly provided in (i) of this Section 5.4) 5.4 or in the other Loan Documents Section 5.1(g)), and such default is failure shall not remedied have been cured by the Borrower or waived by the Lenders within fifteen (15) 45 days (inclusive after receiving written notice of any extension periods or cure periods contained in any such covenant or provided by Applicable Laws) after the earlier of (A) receipt by any Credit Party of notice failure from the Lenders of such default, or (B) actual knowledge of any Credit Party of such defaultRequired Lenders.
(c) Any representation or warranty made by any Credit Party or any of its Subsidiaries the Borrower in any Loan Transaction Document shall be have been incorrect, false or misleading in any material respect (except to the extent that such representation or warranty is qualified by reference to materiality or Material Adverse Effect, to which extent it shall be have been incorrect, false or misleading in any respect) as of the date it was made or deemed made.
(i) Any Credit Party or any of its Subsidiaries The Borrower shall generally be unable to pay its debts as such debts become due or be deemed to be unable to pay its debtsdue, or shall admit in writing its inability to pay its debts as they come due or shall make a general assignment for the benefit of creditors; (ii) any Credit Party or any of its Subsidiaries the Borrower shall declare a moratorium on the payment of its debts; (iii) the commencement by any Credit Party or any of its Subsidiaries the Borrower of proceedings to be adjudicated bankrupt or insolvent, or the consent by it to the commencement of bankruptcy or insolvency proceedings against it, or the filing by it of a petition or answer or consent seeking reorganization, examinership, intervention or other similar relief under any applicable law, or the consent by it to the filing of any such petition or to the appointment of an intervenor, receiver, receiver-manager, liquidator, assignee, trustee, sequestrator, examiner sequestrator (or other similar official) of all or substantially all of its assets; (iv) the commencement against any Credit Party or any of its Subsidiaries the Borrower of a proceeding in any court of competent jurisdiction under any bankruptcy or other applicable law (as now or hereafter in effect) seeking its liquidation, winding up, dissolution, reorganization, examinership, arrangement, adjustment, or the appointment of an intervenor, receiver, receiver-manager, liquidator, assignee, trustee, sequestrator, examiner sequestrator (or other similar official), and any such proceeding shall continue undismissed, or any order, judgment or decree approving or ordering any of the foregoing shall continue unstayed or otherwise in effect, for a period of forty five (45) days; (v) the making by any Credit Party 45 days or any of its Subsidiaries of an assignment for the benefit of creditors, or the admission by it in writing of its inability to pay its debt generally as they become due; or (vi) any other event shall have occurred which under any applicable law would have an effect analogous to any of those events listed above in this subsection.
(e) One or more judgments against any Credit Party or any Subsidiary the Borrower or attachments against any of their respective its property, which in the aggregate exceed excess of $1,000,000 (net of any anticipated insurance proceeds)250,000, and such judgment(sor remain(s) remains unpaid, unstayed on appeal, undischarged, unbonded or undismissed for a period of thirty (30) 45 days from the date of entry of such judgment.
(f) Any Authorization held by any Credit Party or any authorization of its Subsidiaries shall have been suspended, cancelled or revoked, and such suspension, cancellation or revocation would reasonably be expected to have a Material Adverse Effect.
(g) Any Authorization Governmental Authority necessary for the execution, delivery or performance of any Loan Transaction Document or for the validity or enforceability of any of the Obligations is not given or is withdrawn or ceases to remain in full force or effect.
(h) There is a failure to perform under any agreement to which any Credit Party is a party resulting in the acceleration by a third party of the maturity of any Indebtedness in an amount in excess of $5,000,000.
(ig) The validity of any Loan Transaction Document shall be contested by any Credit Party or any Subsidiarythe Borrower, or any Applicable Law shall purport to render any material provision of any Loan Transaction Document invalid or unenforceable or shall purport to prevent or materially delay the performance or observance by any Credit Party the Borrower of the Obligations.
(jh) The Common Shares There is a failure to perform in any agreement to which the Borrower is a party with a third party or parties resulting in a right by such third party or parties to accelerate the maturity of Parent cease to be listed on the Principal Trading Markets or the Common Shares cease to be registered under Section 12 any Indebtedness for borrowed money in an amount in excess of the Exchange Act$250,000.
(ki) The occurrence An Event of Default shall have occurred and be continuing under the Warrants or the Borrower shall have failed to comply with any of its obligations under the Senior Secured Convertible Notes other than as provided in (a) above and such failure is not cured within 15 days after receiving written notice of such failure from the Required Lenders.
(j) If any Governmental Authority terminates, suspends, or imposes any material restrictions on the business or operations of Borrower or any Subsidiary, and such event results in a Conversion FailureMaterial Adverse Effect.
Appears in 1 contract
Samples: Exchange Agreement and Amendment to Facility Agreement (Kempharm, Inc)
General Acceleration Provision upon Events of Default. If one or more of the events specified in this Section 5.4 shall have happened and be continuing beyond the applicable cure period (each, an “Event of Default”), the Required Lenders, by written notice to the Borrower (an “Acceleration Notice”)Borrower, may declare the principal of, and accrued and unpaid interest on, all of the Notes or any part of any of them (together with any other amounts accrued or payable under the Loan Transaction Documents) to be, and the same shall thereupon become, immediately due and payable, without any further notice and without any presentment, demand, or protest of any kind, all of which are hereby expressly waived by the Borrower, and take any further action available at law or in equity, including, without limitation, the sale of the Loan and all other rights acquired in connection with the Loan:
(a) The Borrower shall have failed to make payment of (i) principal when due, or (ii) and interest or any other amounts due under the Notes or any other Obligations within five (5) Business Days of their due datewhen due.
(ib) Any Credit Party The Borrower shall have failed to comply with the due observance or performance of any covenant contained in this Agreement any Transaction Document (other than the covenant covenants described in (a) above or as otherwise expressly provided in this Section 5.4) or in the other Loan Documents and above), such default is failure shall not remedied have been cured by the Borrower or waived by the Lenders within fifteen (15) 30 days (inclusive after receiving written notice of any extension periods or cure periods contained in any such covenant or provided by Applicable Laws) after the earlier of (A) receipt by any Credit Party of notice failure from the Lenders of such default, or (B) actual knowledge of any Credit Party of such defaultLenders.
(c) Any representation or warranty made by any Credit Party or any of its Subsidiaries the Borrower in any Loan Transaction Document shall be have been incorrect, false or misleading in any material respect (except to the extent that such representation or warranty is qualified by reference to materiality or Material Adverse Effect, to which extent it shall be incorrect, false or misleading in any respect) as of the date it was made or deemed made.
(i) Any Credit Party or any of its Subsidiaries The Borrower shall generally be unable to pay its debts as such debts become due or be deemed to be unable to pay its debtsdue, or shall admit in writing its inability to pay its debts as they come due or shall make a general assignment for the benefit of creditors; (ii) any Credit Party or any of its Subsidiaries the Borrower shall declare a moratorium on the payment of its debts; (iii) the commencement by any Credit Party or any of its Subsidiaries the Borrower of proceedings to be adjudicated bankrupt or insolvent, or the consent by it to the commencement of bankruptcy or insolvency proceedings against it, or the filing by it of a petition or answer or consent seeking reorganization, examinership, intervention or other similar relief under any applicable law, or the consent by it to the filing of any such petition or to the appointment of an intervenor, receiver, receiver-manager, liquidator, assignee, trustee, sequestrator, examiner sequestrator (or other similar official) of all or substantially all of its assets; (iv) the commencement against any Credit Party or any of its Subsidiaries the Borrower of a proceeding in any court of competent jurisdiction under any bankruptcy or other applicable law (as now or hereafter in effect) seeking its liquidation, winding up, dissolution, reorganization, examinership, arrangement, adjustment, or the appointment of an intervenor, receiver, receiver-manager, liquidator, assignee, trustee, sequestrator, examiner sequestrator (or other similar official), and any such proceeding shall continue undismissed, or any order, judgment or decree approving or ordering any of the foregoing shall continue unstayed or otherwise in effect, for a period of forty five ninety (4590) days; (v) the making by any Credit Party or any of its Subsidiaries the Borrower of an assignment for the benefit of creditors, or the admission by it in writing of its inability to pay its debt generally as they become due; or (vi) any other event shall have occurred which under any applicable law would have an effect analogous to any of those events listed above in this subsection.
(e) One or more judgments against any Credit Party the Borrower or any Subsidiary or attachments against any of their respective propertyproperty not covered by insurance, which in the aggregate exceed $1,000,000 (net of any anticipated insurance proceeds), and such judgment(sremain(s) remains unpaid, unstayed on appeal, undischarged, unbonded or undismissed for a period of thirty (30) 30 days from the date of entry of such judgment.
(f) Any Authorization held by any Credit Party or any of its Subsidiaries shall have been suspended, cancelled or revoked, and such suspension, cancellation or revocation would reasonably be expected to have a Material Adverse Effect.
(g) Any Authorization authorization necessary for the execution, delivery or performance of any Loan Transaction Document or for the validity or enforceability of any of the Obligations under any Transaction Document is not given or is withdrawn or ceases to remain in full force or effect.
(h) There is a failure to perform under any agreement to which any Credit Party is a party resulting in the acceleration by a third party of the maturity of any Indebtedness in an amount in excess of $5,000,000.
(ig) The validity of any Loan Transaction Document shall be contested by any Credit Party or any Subsidiarythe Borrower, or any Applicable Law treaty, law, regulation, communiqué, decree, ordinance or policy of any jurisdiction shall purport to render any material provision of any Loan Transaction Document invalid or unenforceable or shall purport to prevent or materially delay the performance or observance by any Credit Party the Borrower of the Obligations.
(jh) The Common Shares There is a failure to perform in any agreement to which the Borrower or any Subsidiary is a party with a third party or parties resulting in a right by such third party or parties to accelerate the maturity of Parent cease to be listed on the Principal Trading Markets or the Common Shares cease to be registered under Section 12 any Indebtedness for borrowed money in an amount in excess of the Exchange Act[ ***].
(ki) The occurrence If an Event of a Conversion FailureDefault (as such term is defined in the Warrants) shall have occurred.
Appears in 1 contract
Samples: Facility Agreement (Discovery Laboratories Inc /De/)
General Acceleration Provision upon Events of Default. If one or more of the events any event specified in this Section 5.4 shall have happened and be continuing beyond the applicable cure period (each, an “Event of Default”), the Required Lenders, by written notice to the Borrower (an “Acceleration Notice”)Borrower, may declare the principal of, and accrued and unpaid interest on, all of the Notes or any part of any of them (together with any other amounts accrued or payable under the Loan Transaction Documents) to be, and the same shall thereupon become, immediately due and payable, without any further notice and without any presentment, demand, or protest of any kind, all of which are hereby expressly waived by the Borrower, and take any further action available at law or in equity, including, without limitation, the sale of the Loan and all other rights acquired in connection with the Loan:
(a) The Borrower shall have failed to make payment of (i) principal when duedue on the Notes, or (ii) interest or and any other amounts due under the Notes or any other Obligations within five (5) Business Days of their due date.
(ib) Any Credit Party shall have failed to comply with the due observance or performance of any covenant contained in this Agreement any Transaction Document (other than the covenant described in (a) above or as otherwise expressly provided in this Section 5.4) or in the other Loan Documents above), and such default is failure shall not remedied have been cured by the Borrower or waived by the Lenders within fifteen (15) days (inclusive of any extension periods or cure periods contained in any such covenant or provided by Applicable Laws) after the earlier of (A) receipt by any Credit Party within 30 days after receiving written notice of notice such failure from the Lenders of such default, or (B) actual knowledge of any Credit Party of such defaultLenders.
(c) Any representation or warranty made by any Credit Party or any of its Subsidiaries in any Loan Transaction Document shall be have been incorrect, false or misleading in any material respect (except to the extent that such representation or warranty is qualified by reference to materiality or Material Adverse Effect, to which extent it shall be incorrect, false or misleading in any respect) as of the date it was made or deemed made.
(i) Any Credit Party or any of its Subsidiaries shall generally be unable to pay its debts as such debts become due or be deemed to be unable to pay its debtsdue, or shall admit in writing its inability to pay its debts as they come due or shall make a general assignment for the benefit of creditors; (ii) any Credit Party or any of its Subsidiaries shall declare a moratorium on the payment of its debts; (iii) the commencement by any a Credit Party or any of its Subsidiaries of proceedings to be adjudicated bankrupt or insolvent, or the consent by it to the commencement of bankruptcy or insolvency proceedings against it, or the filing by it of a petition or answer or consent seeking reorganization, examinership, intervention or other similar relief under any applicable law, or the consent by it to the filing of any such petition or to the appointment of an intervenor, receiver, receiver-manager, liquidator, assignee, trustee, sequestrator, examiner sequestrator (or other similar official) of all or substantially all of its assets; (iv) the commencement against any a Credit Party or any of its Subsidiaries of a proceeding in any court of competent jurisdiction under any bankruptcy or other applicable law (as now or hereafter in effect) seeking its liquidation, winding up, dissolution, reorganization, examinership, arrangement, adjustment, or the appointment of an intervenor, receiver, receiver-manager, liquidator, assignee, trustee, sequestrator, examiner sequestrator (or other similar official), and any such proceeding shall continue undismissed, or any order, judgment or decree approving or ordering any of the foregoing shall continue unstayed or otherwise in effect, for a period of forty five ninety (4590) days; or (v) the making by any Credit Party or any of its Subsidiaries of an assignment for the benefit of creditors, or the admission by it in writing of its inability to pay its debt generally as they become due; or (vi) any other event shall have occurred which under any applicable law would have an effect analogous to any of those events listed above in this subsection.
(e) One or more judgments against any a Credit Party or any Subsidiary or attachments against any of their respective its property, which in the aggregate exceed $1,000,000 (net of any anticipated insurance proceeds)100,000, and such judgment(sor which could have a Material Adverse Effect, remain(s) remains unpaid, unstayed on appeal, undischarged, unbonded or undismissed for a period of thirty (30) 45 days from the date of entry of such judgment.
(f) Any Authorization held by any Credit Party or any of its Subsidiaries shall have been suspended, cancelled or revoked, and such suspension, cancellation or revocation would reasonably be expected to have a Material Adverse Effect.
(g) Any Authorization authorization necessary for the execution, delivery or performance of any Loan Transaction Document or for the validity or enforceability of any of the Obligations is not given or is withdrawn or ceases to remain in full force or effect.
(h) There is a failure to perform under any agreement to which any Credit Party is a party resulting in the acceleration by a third party of the maturity of any Indebtedness in an amount in excess of $5,000,000.
(ig) The validity of any Loan Transaction Document shall be contested by any a Credit Party or any SubsidiaryParty, or any Applicable Law treaty, law, regulation, communiqué, decree, ordinance or policy of any jurisdiction shall purport to render any material provision of any Loan Transaction Document invalid or unenforceable or shall purport to prevent or materially delay the performance or observance by any a Credit Party of the Obligations.
(jh) The Common Shares There is a failure to perform in any agreement to which a Credit Party is a party with a third party or parties resulting in a right by such third party or parties to accelerate the maturity of Parent cease to be listed on the Principal Trading Markets or the Common Shares cease to be registered under Section 12 any indebtedness for borrowed money in an amount in excess of $100,000 other than any acceleration arising by virtue of the Exchange ActBorrower’s failure to create jobs as required by the loan agreement in respect of the Minnesota Loan.
(ki) The occurrence An event of a Conversion Failuredefault (however classified) shall have occurred under the Warrants or the Registration Rights Agreement.
(j) Cash and Cash Equivalents at the end of any calendar quarter is less than $7,500,000.
Appears in 1 contract
Samples: Facility Agreement (IMRIS Inc.)
General Acceleration Provision upon Events of Default. If one or more of the events specified in this Section 5.4 6.3 shall have happened and be continuing beyond the applicable cure period (each, an “Event of Default”), the Required LendersRequisite Holders, by written notice to the Borrower (an “Acceleration Notice”)Company, may declare the principal of, and accrued and unpaid interest on, all of the Notes or any part of any of them (together with any other amounts Obligations accrued or payable under the Loan Documentspayable) to be, and the same shall thereupon become, immediately due and payable, without any further notice and without any presentment, demand, or protest of any kind, all of which are hereby expressly waived by the BorrowerCompany, and take any further action available at law or in equity, including, without limitation, including the sale of the Loan Notes and all other rights acquired in connection with the LoanNotes:
(a) The Borrower Company shall have failed to make payment of (i) principal when duedue and payable, or (ii) interest or any other amounts due and payable under the Notes or any other Obligations within five (5) Business Days of on their due datedate and such default is not remedied by the Company or waived by the Requisite Holders within thirty (30) days (inclusive of any extension periods or cure periods contained in any such covenant or provided by Law) after receipt by the Company of notice from the Requisite Holders of such default.
(i) Any Credit Party The Company shall have failed to comply in any material respect with the due observance compliance or performance of any covenant contained in this Agreement (other than the covenant described in (a) above or as otherwise expressly provided in this Section 5.46.3) or in the other Loan Documents Transaction Agreements and such default is not remedied by the Borrower Company or waived by the Lenders Requisite Holders within fifteen thirty (1530) days (inclusive of any extension periods or cure periods contained in any such covenant or provided by Applicable LawsLaw) after the earlier of (A) receipt by any Credit Party the Company of notice from the Lenders of such default, or (B) actual knowledge of any Credit Party Requisite Holders of such default.
(c) Any representation or warranty made by any Credit Party or any of its Subsidiaries the Company in any Loan Document Transaction Agreement shall be incorrect, false or misleading in any material respect (except to the extent that such representation or warranty is qualified by reference to materiality or Material Adverse Effect, to which extent it shall be incorrect, false or misleading in any respect) as of the date it was made or deemed made.
(i) Any Credit Party or any of its Subsidiaries The Company shall fail generally be unable to pay its debts as such debts become due or be deemed to be unable to pay its debts, or shall admit in writing its inability to pay its debts as they come due or shall make a general assignment for the benefit of creditors; (ii) any Credit Party or any of its Subsidiaries the Company shall declare a moratorium on the payment of its debts; (iii) the commencement by any Credit Party or any of its Subsidiaries the Company of proceedings to be adjudicated bankrupt or insolvent, or the consent by it to the commencement of bankruptcy or insolvency proceedings against it, or the filing by it of a petition or answer or consent seeking reorganization, examinership, intervention or other similar relief under any applicable lawLaw, or the consent by it to the filing of any such petition or to the appointment of an intervenor, receiver, receiver-manager, liquidator, assignee, trustee, sequestrator, examiner sequestrator (or other similar official) of all or substantially all of its assets; or (iv) the commencement against any Credit Party or any of its Subsidiaries the Company of a proceeding in any court of competent jurisdiction under any bankruptcy or other applicable law Law (as now or hereafter in effect) seeking its liquidation, winding up, dissolution, reorganization, examinership, arrangement, adjustment, or the appointment of an intervenor, receiver, receiver-manager, liquidator, assignee, trustee, sequestrator, examiner sequestrator (or other similar official), and any such proceeding shall continue undismissed, or any order, judgment or decree approving or ordering any of the foregoing shall continue unstayed or otherwise in effect, for a period of forty five sixty (4560) consecutive days; (v) the making by any Credit Party or any of its Subsidiaries of an assignment for the benefit of creditors, or the admission by it in writing of its inability to pay its debt generally as they become due; or (vi) any other event shall have occurred which under any applicable law would have an effect analogous to any of those events listed above in this subsection.
(e) One or more final judgments against any Credit Party or any Subsidiary or attachments against any of their respective propertyfor the payment by the Company, which in the aggregate exceed $1,000,000 100,000,000 (net of excluding any amounts anticipated insurance proceedsto be covered by insurance), and such judgment(s) remains unpaid, unstayed on appeal, undischarged, unbonded or undismissed for a period of thirty sixty (3060) days from after (i) the date of entry of on which the right to appeal thereof has expired if no such judgmentappeal has commenced, or (ii) the date on which all rights to appeal have been extinguished.
(f) Any Authorization held by any Credit Party or any of its Subsidiaries shall have been suspended, cancelled or revoked, and such suspension, cancellation or revocation would reasonably be expected to have a Material Adverse Effect.
(g) Any Authorization necessary for the execution, delivery or performance of any Loan Document or for the validity or enforceability of any of the Obligations is not given or is withdrawn or ceases to remain in full force or effect.
(h) There is a failure to perform under any agreement to which any Credit Party is a party resulting in the acceleration by a third party of the maturity of any Indebtedness in an amount in excess of $5,000,000.
(i) The validity of any Loan Document Transaction Agreement shall be contested by any Credit Party the Company or any Subsidiary pursuant to a filing by the Company or a Subsidiary, or any Applicable Law shall purport to render any material provision of any Loan Document invalid or unenforceable or shall purport to prevent or materially delay the performance or observance by any Credit Party the Company of a material portion of the Obligations.
(j) The Common Shares . Any Event of Parent cease to be listed on the Principal Trading Markets or the Common Shares cease to be registered under Section 12 Default of the Exchange Acttype specified in Section 6.3(d) shall cause principal of, and accrued and unpaid interest on, all of the Notes or any part of any of them (together with any other Obligations accrued or payable) to be, and the same shall thereupon become, immediately due and payable, without any further notice and without any presentment, demand, or protest of any kind, all of which are hereby expressly waived by the Company.
(k) The occurrence of a Conversion Failure.
Appears in 1 contract
Samples: Unsecured Pik Convertible Notes Purchase Agreement (Uber Technologies, Inc)
General Acceleration Provision upon Events of Default. If one or more of the events specified in this Section 5.4 5.1 (each an “Event of Default”) shall have happened and be continuing beyond the applicable cure period (each, an “Event of Default”)period, the Required LendersLender, by written notice to the Borrower (an “Acceleration Notice”)Borrower, may cancel the Borrower’s right to request Disbursements and declare the principal of, and accrued and unpaid interest on, all of the Notes entire outstanding Balance or any part of any of them thereof (together with any other amounts accrued or payable under the Loan Documentsthis Agreement) to be, and the same shall thereupon become, immediately due and payable, payable without any further notice and without any presentment, demand, demand or protest of any kind, all of which are hereby expressly waived by the Borrower, and take any further action available at law or in equity, including, without limitation, the sale of the Loan and all other rights acquired in connection with the Loan:
(a) The Borrower shall have failed to make payment of (i) principal when due, defaulted or (ii) interest or any other amounts due under the Notes or any other Obligations within five (5) Business Days of their due date.
(i) Any Credit Party shall have failed to comply in any material respect with the due observance or performance of any covenant contained in this Agreement (other than the covenant described in (a) above or as otherwise expressly provided in this Section 5.4) or in the other Loan Documents any Note and such default is or failure to comply shall not remedied have been cured by the Borrower within 15 calendar days after receiving written notice of such default or waived by the Lenders within fifteen (15) days (inclusive of any extension periods or cure periods contained in any such covenant or provided by Applicable Laws) after the earlier of (A) receipt by any Credit Party of notice failure from the Lenders of such default, or (B) actual knowledge of any Credit Party of such defaultLender.
(cb) Any representation or warranty made by any Credit Party or any of its Subsidiaries the Borrower in any Loan Financing Document shall be found to have been incorrect, false or misleading in any material respect (except to the extent that such representation or warranty is qualified by reference to materiality or Material Adverse Effect, to which extent it shall be incorrect, false or misleading in any respect) as of the date it was made or made, deemed made, reaffirmed or confirmed.
(i) Any Credit Party or any of its Subsidiaries The Borrower shall generally be unable to not pay its debts as such debts become due or be deemed to be unable to pay its debtsdue, or shall admit in writing its inability to pay its debts as they come due or shall make a general assignment for the benefit of creditors; (ii) any Credit Party or any of its Subsidiaries the Borrower shall declare a moratorium on the payment of its debts; (iii) the commencement by any Credit Party or any of its Subsidiaries the Borrower of proceedings to be adjudicated bankrupt or insolvent, or the consent by it to the commencement of bankruptcy or insolvency proceedings against it, or the filing by it of a petition or answer or consent seeking reorganization, examinership, intervention or other similar relief under any applicable law, or the consent by it to the filing of any such petition or to the appointment of an intervenor, receiver, receiver-manager, liquidator, assignee, trustee, sequestrator, examiner sequestrator (or other similar official) or of all or substantially all any substantial part of its assets; (iv) the commencement against any Credit Party the Borrower or any substantial part of its Subsidiaries assets of a proceeding in any court of competent jurisdiction under any bankruptcy or other applicable law (as now or hereafter in effect) seeking its liquidation, winding up, dissolution, reorganization, examinership, arrangement, adjustment, or the appointment of an intervenor, receiver, receiver-manager, liquidator, assignee, trustee, sequestrator, examiner sequestrator (or other similar official), and any such proceeding shall continue undismissed, or any order, judgment or decree approving or ordering any of the foregoing shall continue unstayed or otherwise in effect, for a period of forty five ninety (4590) days; (v) the making by any Credit Party or any of its Subsidiaries the Borrower of an assignment for the benefit of creditors, or the admission by it in writing of its inability to pay its debt generally as they become due; or (vi) any other event shall have occurred which under any applicable law would have an effect analogous to any of those events listed above in this subsection.
(ed) One or more judgments against any Credit Party or any Subsidiary the Borrower taken as a whole or attachments against any of their respective its property, which in the aggregate exceed $1,000,000 (net 100,000, or which could reasonable expected to interfere materially and adversely with the conduct of any anticipated insurance proceeds), and such judgment(sthe business of the borrower remain(s) remains unpaid, unstayed on appeal, undischarged, unbonded or undismissed for a period of thirty (30) days from the date of entry of such judgment.
(fe) Any Authorization held by any Credit Party or any of its Subsidiaries shall have been suspended, cancelled or revoked, and such suspension, cancellation or revocation would reasonably be expected to have a Material Adverse Effect.
(g) Any Authorization authorization necessary for the execution, delivery or performance of any Loan Financing Document or for the validity or enforceability of any of the Obligations Borrower’s obligations under any Financing Document is not effected or given or is withdrawn or ceases to remain in full force or effect.
(h) There is a failure to perform under any agreement to which any Credit Party is a party resulting in the acceleration by a third party of the maturity of any Indebtedness in an amount in excess of $5,000,000.
(if) The validity of or any Loan Financing Document shall be contested by any Credit Party legislative, executive or judicial body of any Subsidiaryjurisdiction, or any Applicable Law treaty, law, regulation, communiqué, decree, ordinance or policy of any jurisdiction shall purport to render any material provision of any Loan Financing Document invalid or unenforceable or shall purport to prevent or materially delay the performance or observance by any Credit Party the Borrower of the Obligationsits obligations hereunder or thereunder (as applicable).
(jg) The Common Shares If there is a default or other failure to perform in any agreement to which Borrower is a party with a third party or parties resulting in a right by such third party or parties, whether or not exercised, to accelerate the maturity of Parent cease to be listed on the Principal Trading Markets or the Common Shares cease to be registered under Section 12 any Indebtedness in an amount in excess of the Exchange Act$100,000.
(k) The occurrence of a Conversion Failure.
Appears in 1 contract
Samples: Loan Agreement (Nephros Inc)
General Acceleration Provision upon Events of Default. If one or more of the events specified in this Section 5.4 shall have happened and be continuing beyond the applicable cure period (each, an “Event of Default”), the Required Lenders, by written notice to the Borrower (an “Acceleration Notice”)Borrower, may declare the principal of, and accrued and unpaid interest on, all of the Notes or any part of any of them (together with any other amounts accrued or payable under the Loan Documents) to be, and the same shall thereupon become, immediately due and payable, without any further notice and without any presentment, demand, or protest of any kind, all of which are hereby expressly waived by the Borrower, and take any further action available at law or in equity, including, without limitation, the sale of the Loan and all other rights acquired in connection with the Loan:
(a) The Borrower shall have failed to make payment of (i) principal when due, or (ii) and interest or any other amounts due under the Notes or any other Obligations within when due and such failure continues for a period of five (5) Business Days of their due datedays.
(i) Any Credit Party The Borrower shall have failed to comply with the due observance or performance of any covenant contained in Section 5.1(iv)(i) or Section 5.2 of this Agreement or (ii) the Borrower shall have failed to comply with the due observance or performance of any other covenant contained in the Loan Documents (other than the covenant occurrences described in (a) above or as otherwise expressly provided in other provisions of this Section 5.45.4 for which a different grace or cure period is specified or for which no grace or cure period is specified and thereby constitute immediate Events of Default) or in the other Loan Documents and such default is not remedied by the Borrower or waived by the Lenders within fifteen (15) days (inclusive of any extension periods or cure periods contained in any such covenant or provided by Applicable Laws) after the earlier of (A) receipt by any Credit Party the Borrower of notice from the Lenders of such default, or (B) actual knowledge of the Borrower or any other Credit Party of such default.
(c) Any representation or warranty made by any Credit Party or any of its Subsidiaries the Borrower in any Loan Document shall be have been incorrect, false or misleading in any material respect (except to the extent that such representation or warranty is qualified by reference to materiality or Material Adverse Effect, to which extent it shall be have been incorrect, false or misleading in any respect) as of the date it was made or deemed made.
(i) Any Credit Party or any of its Subsidiaries The Borrower shall generally be unable to pay its debts as such debts become due or be deemed to be unable to pay its debtsdue, or shall admit in writing its inability to pay its debts as they come due or shall make a general assignment for the benefit of creditors; creditors; (ii) any Credit Party or any of its Subsidiaries the Borrower shall declare a moratorium on the payment of its debts; debts; (iii) the commencement by any Credit Party or any of its Subsidiaries the Borrower of proceedings to be adjudicated bankrupt or insolvent, or the consent by it to the commencement of bankruptcy or insolvency proceedings against it, or the filing by it of a petition or answer or consent seeking reorganization, examinership, intervention or other similar relief under any applicable law, or the consent by it to the filing of any such petition or to the appointment of an intervenor, receiver, receiver-manager, liquidator, assignee, trustee, sequestrator, examiner sequestrator (or other similar official) of all or substantially all of its assets; assets; (iv) the commencement against any Credit Party or any of its Subsidiaries the Borrower of a proceeding in any court of competent jurisdiction under any bankruptcy or other applicable law (as now or hereafter in effect) seeking its liquidation, winding up, dissolution, reorganization, examinership, arrangement, adjustment, or the appointment of an intervenor, receiver, receiver-manager, liquidator, assignee, trustee, sequestrator, examiner sequestrator (or other similar official), and any such proceeding shall continue undismissed, or any order, judgment or decree approving or ordering any of the foregoing shall continue unstayed or otherwise in effect, for a period of forty five fortyfive (45) days; days; (v) the making by any Credit Party or any of its Subsidiaries the Borrower of an assignment for the benefit of creditors, or the admission by it in writing of its inability to pay its debt generally as they become due; due; or (vi) any other event shall have occurred which under any applicable law would have an effect analogous to any of those events listed above in this subsection.
(e) One or more judgments against any Credit Party or any Subsidiary or attachments against any of their respective property, which in the aggregate exceed $1,000,000 (net of any anticipated insurance proceeds), and such judgment(s) remains unpaid, unstayed on appeal, undischarged, unbonded or undismissed for a period of thirty (30) days from the date of entry of such judgment.
(f) Any Authorization held by any Credit Party or any of its Subsidiaries shall have been suspended, cancelled or revoked, and such suspension, cancellation or revocation would reasonably be expected to have a Material Adverse Effect.
(g) Any Authorization necessary orders for the execution, delivery payment of money (not paid or performance of any Loan Document or for the validity or enforceability of any of the Obligations is not given or is withdrawn or ceases to remain in full force or effect.
(h) There is a failure to perform under any agreement fully covered by insurance and as to which any Credit Party is a party resulting in the acceleration by a third party of the maturity of any Indebtedness in an amount relevant insurance company has acknowledged coverage) aggregating in excess of $5,000,000.
1,000,000 shall be rendered against any or all Credit Parties (other than in connection with the Litigation) and either (i) The validity of enforcement proceedings shall have been commenced by any Loan Document creditor upon any such judgments or orders, or (ii) there shall be contested by any Credit Party or any Subsidiary, or any Applicable Law shall purport to render any material provision period of any Loan Document invalid or unenforceable or shall purport to prevent or materially delay the performance or observance by any Credit Party of the Obligations.
(j) The Common Shares of Parent cease to be listed on the Principal Trading Markets or the Common Shares cease to be registered under Section 12 of the Exchange Act.
(k) The occurrence of a Conversion Failure.twenty
Appears in 1 contract
General Acceleration Provision upon Events of Default. If one or more of the events specified in this Section 5.4 shall have happened and be continuing beyond the applicable cure period (each, each an “Event of Default”)) shall have happened other than a XxXxxx Default, the Required LendersLender, by written notice to the Borrower Borrower, (any such notice, an “Acceleration Notice”), may declare the principal of, and accrued and unpaid interest on, all of the Notes Loan or any part of any of them thereof (together with any other amounts accrued or payable under the Loan Documentsthis Agreement) to be, and the same shall thereupon become, immediately due and payable, without any further notice and without any presentment, demand, or protest of any kind, all of which are hereby expressly waived by the Borrower, and take any further action available at law or in equity, including, without limitation, the sale of the Loan and all other rights acquired in connection with the Loan:
(a) The Borrower A Lender shall have failed to make receive payment of (i) principal when duedue under the Note, or (ii) interest or any other amounts due under the Notes or any other Obligations and Facility Document within five (5) Business Days of their due date.
(ib) Any Credit Party The Borrower shall have failed to comply with the due observance or performance of any other covenant contained in this Agreement (other than the covenant described in (a) above or as otherwise expressly provided in this Section 5.4) or in the other Loan Documents any Financing Document and such default is failure shall not remedied have been cured by the Borrower or waived by the Lenders within fifteen (15) 30 days (inclusive of any extension periods or cure periods contained in any such covenant or provided by Applicable Laws) after the earlier of (A) receipt by any Credit Party of notice from the Lenders of such default, or (B) actual knowledge of any Credit Party of such defaultfailure by Lender.
(c) Any representation or warranty made by any Credit Party or any of its Subsidiaries the Borrower in any Loan Financing Document shall be have been incorrect, false or misleading in any material respect (except to the extent that such representation or warranty is qualified by reference to materiality or Material Adverse Effect, to which extent it shall be incorrect, false or misleading in any respect) as of the date it was made or made, deemed made, reaffirmed or confirmed.
(i) Any Credit Party The Borrower or any of its Subsidiaries a Major Subsidiary shall generally be unable to pay its debts as such debts become due or be deemed to be unable to pay its debtsdue, or shall admit in writing its inability to pay its debts as they come due or shall make a general assignment for the benefit of creditors; (ii) any Credit Party the Borrower or any of its Subsidiaries a Major Subsidiary shall declare a moratorium on the payment of its debts; (iii) the commencement by any Credit Party the Borrower or any of its Subsidiaries a Major Subsidiary of proceedings to be adjudicated bankrupt or insolvent, or the consent by it to the commencement of bankruptcy or insolvency proceedings against it, or the filing by it of a petition or answer or consent seeking reorganization, examinership, intervention or other similar relief under any applicable law, or the consent by it to the filing of any such petition or to the appointment of an intervenor, receiver, receiver-manager, liquidator, assignee, trustee, sequestrator, examiner sequestrator (or other similar official) or of all or substantially all any substantial part of its their respective assets; (iv) the commencement against any Credit Party the Borrower or a Major Subsidiary or any substantial part of its Subsidiaries assets of a proceeding in any court of competent jurisdiction under any bankruptcy or other applicable law (as now or hereafter in effect) seeking its liquidation, winding up, dissolution, reorganization, examinership, arrangement, adjustment, or the appointment of an intervenor, receiver, receiver-manager, liquidator, assignee, trustee, sequestrator, examiner sequestrator (or other similar official), and any such proceeding shall continue undismissed, or any order, judgment or decree approving or ordering any of the foregoing shall continue unstayed or otherwise in effect, for a period of forty five ninety (4590) days; or (v) the making by any Credit Party or any of its Subsidiaries of an assignment for the benefit of creditors, or the admission by it in writing of its inability to pay its debt generally as they become due; or (vi) any other event shall have occurred which under any applicable law would have an effect analogous to any of those events listed above in this subsection.
(e) One or more judgments other than an Excluded Judgment against any Credit Party the Borrower or any a Major Subsidiary or attachments against any of their respective property, which in the aggregate exceed $1,000,000 (net of any anticipated insurance proceeds)100,000 prior to the XxXxxx Sale and $200,000 thereafter, and such judgment(s) remains unpaid, is unstayed on appeal, undischarged, unbonded or undismissed for a period of thirty (30) days from the date of entry of such judgment.
(f) Any Authorization held by any Credit Party or The Borrower repudiates any of its Subsidiaries shall have been suspended, cancelled the Financing Documents or revoked, and such suspension, cancellation challenges the validity or revocation would reasonably be expected to have a Material Adverse Effectenforceability of Financing Documents.
(g) Any Authorization necessary for The Borrower repudiates any of the execution, delivery Financing Documents or performance of any Loan Document or for challenges the validity or enforceability of any of the Obligations is not given or is withdrawn or ceases to remain in full force or effect.
(h) There is a failure to perform under any agreement to which any Credit Party is a party resulting in the acceleration by a third party of the maturity of any Indebtedness in an amount in excess of $5,000,000.
(i) Financing Documents. The validity of any Loan Financing Document shall be contested by any Credit Party legislative, executive or judicial body of any Subsidiaryjurisdiction, or any Applicable Law treaty, law, regulation, communiqué, decree, ordinance or policy of any jurisdiction shall purport to render any material provision of any Loan Financing Document invalid or unenforceable or shall purport to prevent or materially delay the performance or observance by any Credit Party the Borrower of the Obligations.
(jh) The Common Shares of Parent cease There is a failure to be listed on perform in any agreement to which the Principal Trading Markets Borrower is a party with a third party or parties resulting in the Common Shares cease to be registered under Section 12 acceleration of the Exchange Actmaturity of any indebtedness for borrowed money in an amount in excess of $100,000 prior to the XxXxxx Sale and $200,000 thereafter.
(ki) The occurrence If the Borrower breaches any of a Conversion Failurethe terms of the Warrant.
Appears in 1 contract
General Acceleration Provision upon Events of Default. If one or more of the events specified in this Section 5.4 shall have happened and be continuing beyond the applicable cure period (each, an “Event of Default”), the Required Lenders, by written notice to the Borrower (an “Acceleration Notice”)Borrower, may declare the principal of, and accrued and unpaid interest on, all of the Notes or any part of any of them (together with any other amounts accrued or payable under the Loan Documents) to be, and the same shall thereupon become, immediately due and payable, without any further notice and without any presentment, demand, or protest of any kind, all of which are hereby expressly waived by the Borrower, and take any further action available at law or in equity, including, without limitation, the sale of the Loan and all other rights acquired in connection with the Loan:
(a) The Borrower shall have failed to make payment of (i) principal when due, or (ii) and interest or any other amounts due under the Notes or any other Obligations within when due and such failure continues for a period of five (5) Business Days of their due datedays.
(i) Any Credit Party The Borrower shall have failed to comply with the due observance or performance of any covenant contained in Section 5.1(iv)(i) or Section 5.2 of this Agreement or (ii) the Borrower shall have failed to comply with the due observance or performance of any other covenant contained in the Loan Documents (other than the covenant occurrences described in (a) above or as otherwise expressly provided in other provisions of this Section 5.45.4 for which a different grace or cure period is specified or for which no grace or cure period is specified and thereby constitute immediate Events of Default) or in the other Loan Documents and such default is not remedied by the Borrower or waived by the Lenders within fifteen (15) days (inclusive of any extension periods or cure periods contained in any such covenant or provided by Applicable Laws) after the earlier of (A) receipt by any Credit Party the Borrower of notice from the Lenders of such default, or (B) actual knowledge of the Borrower or any other Credit Party of such default.
(c) Any representation or warranty made by any Credit Party or any of its Subsidiaries the Borrower in any Loan Document shall be have been incorrect, false or misleading in any material respect (except to the extent that such representation or warranty is qualified by reference to materiality or Material Adverse Effect, to which extent it shall be have been incorrect, false or misleading in any respect) as of the date it was made or deemed made.
(i) Any Credit Party or any of its Subsidiaries The Borrower shall generally be unable to pay its debts as such debts become due or be deemed to be unable to pay its debtsdue, or shall admit in writing its inability to pay its debts as they come due or shall make a general assignment for the benefit of creditors; (ii) any Credit Party or any of its Subsidiaries the Borrower shall declare a moratorium on the payment of its debts; (iii) the commencement by any Credit Party or any of its Subsidiaries the Borrower of proceedings to be adjudicated bankrupt or insolvent, or the consent by it to the commencement of bankruptcy or insolvency proceedings against it, or the filing by it of a petition or answer or consent seeking reorganization, examinership, intervention or other similar relief under any applicable law, or the consent by it to the filing of any such petition or to the appointment of an intervenor, receiver, receiver-manager, liquidator, assignee, trustee, sequestrator, examiner sequestrator (or other similar official) of all or substantially all of its assets; (iv) the commencement against any Credit Party or any of its Subsidiaries the Borrower of a proceeding in any court of competent jurisdiction under any bankruptcy or other applicable law (as now or hereafter in effect) seeking its liquidation, winding up, dissolution, reorganization, examinership, arrangement, adjustment, or the appointment of an intervenor, receiver, receiver-manager, liquidator, assignee, trustee, sequestrator, examiner sequestrator (or other similar official), and any such proceeding shall continue undismissed, or any order, judgment or decree approving or ordering any of the foregoing shall continue unstayed or otherwise in effect, for a period of forty forty-five (45) days; (v) the making by any Credit Party or any of its Subsidiaries the Borrower of an assignment for the benefit of creditors, or the admission by it in writing of its inability to pay its debt generally as they become due; or (vi) any other event shall have occurred which under any applicable law would have an effect analogous to any of those events listed above in this subsection.
(e) One or more judgments or orders for the payment of money (not paid or fully covered by insurance and as to which the relevant insurance company has acknowledged coverage) aggregating in excess of $[***] shall be rendered against any or all Credit Party Parties (other than in connection with the Litigation) and either (i) enforcement proceedings shall have been commenced by any creditor upon any such judgments or orders, or (ii) there shall be any Subsidiary or attachments against any period of their respective property, twenty (20) consecutive days during which in the aggregate exceed $1,000,000 (net a stay of enforcement of any anticipated insurance proceeds)such judgments or orders, and such judgment(s) remains unpaid, unstayed on by reason of a pending appeal, undischargedbond or otherwise, unbonded or undismissed for a period of thirty (30) days from the date of entry of such judgmentshall not be in effect.
(f) Any Authorization held by any Credit Party or any authorization of its Subsidiaries shall have been suspended, cancelled or revoked, and such suspension, cancellation or revocation would reasonably be expected to have a Material Adverse Effect.
(g) Any Authorization Government Authority necessary for the execution, delivery or performance of any Loan Document or for the validity or enforceability of any of the Obligations under any Loan Document is not given or is withdrawn or ceases to remain in full force or effect.
(h) There is a failure to perform under any agreement to which any Credit Party is a party resulting in the acceleration by a third party of the maturity of any Indebtedness in an amount in excess of $5,000,000.
(ig) The validity of any Loan Document shall be contested by any Credit Party the Borrower or any Subsidiary, or any Applicable Law shall purport to render any material provision of any Loan Document invalid or unenforceable or shall purport to prevent or materially delay the performance or observance by any Credit Party the Borrower of the Obligations.
(jh) The Common Shares There is a failure to perform in any agreement to which the Borrower or any Credit Party is a party with a third party or Portions of Parent cease to be listed on this page were omitted , as indicated by [***], and have been filed separately with the Principal Trading Markets or the Common Shares cease to be registered under Section 12 Secretary of the Commission pursuant to the Registrant’s application requesting confidential treatment under Rule 24b-2 of the Securities Exchange ActAct of 1934, as amended. parties resulting in a right by such third party or parties to accelerate the maturity of any Indebtedness for borrowed money in an amount in excess of $500,000.
(ki) The receipt of notice by Lenders from Borrower of the occurrence of a Conversion FailureMajor Transaction and the election by Lenders, within five (5) days after the receipt of such notice, in the exercise of their sole discretion, to declare that the Final Payment shall be due and payable.
Appears in 1 contract
General Acceleration Provision upon Events of Default. If one or more of the events specified in this Section 5.4 5.5 (each an “Event of Default”) shall have happened and be continuing beyond the applicable cure period (each, an “Event of Default”)period, the Required Lenders, by written notice to the Borrower (an “Acceleration Notice”)Borrower, may cancel the Borrower’s right to request Disbursements and declare the principal of, and accrued and unpaid interest on, all of the Notes or any part of any of them (together with any other amounts accrued or payable under the Loan Documentsthis Agreement) to be, and the same shall thereupon become, immediately due and payable, without any further notice and without any presentment, demand, or protest of any kind, all of which are hereby expressly waived by the Borrower, and take any further action available at law or in equity, including, without limitation, the sale of the Loan and all other rights acquired in connection with the Loan:
(a) The Borrower A Lender shall have failed to make receive payment when due of (i) principal when due, or (ii) interest or any other amounts due under the Notes Loan or any other Obligations within five (5) Business Days of their due datethe Notes.
(ib) Any Credit Party The Borrower shall have failed to comply in any material respect with the due observance or performance of any other covenant contained in this Agreement (other than the covenant described in (a) above or as otherwise expressly provided in this Section 5.4) or in the other Loan Documents any Note and such failure shall not have been cured by Borrower within 15 days after receiving written notice of such default is not remedied by the Borrower or waived by the Lenders within fifteen (15) days (inclusive of any extension periods or cure periods contained in any such covenant or provided by Applicable Laws) after the earlier of (A) receipt by any Credit Party of notice failure from the Lenders of such default, or (B) actual knowledge of any Credit Party of such defaultLenders.
(c) Any representation or warranty made by any Credit Party or any of its Subsidiaries the Borrower in any Loan Financing Document shall be have been incorrect, false or misleading in any material respect (except to the extent that such representation or warranty is qualified by reference to materiality or Material Adverse Effect, to which extent it shall be incorrect, false or misleading in any respect) as of the date it was made or made, deemed made, reaffirmed or confirmed.
(i) Any Credit Party or any of its Subsidiaries The Borrower shall generally be unable to pay its debts as such debts become due or be deemed to be unable to pay its debtsdue, or shall admit in writing its inability to pay its debts as they come due or shall make a general assignment for the benefit of creditors; (ii) any Credit Party or any of its Subsidiaries the Borrower shall declare a moratorium on the payment of its debts; (iii) the commencement by any Credit Party or any of its Subsidiaries the Borrower of proceedings to be adjudicated bankrupt or insolvent, or the consent by it to the commencement of bankruptcy or insolvency proceedings against it, or the filing by it of a petition or answer or consent seeking reorganization, examinership, intervention or other similar relief under any applicable law, or the consent by it to the filing of any such petition or to the appointment of an intervenor, receiver, receiver-manager, liquidator, assignee, trustee, sequestrator, examiner sequestrator (or other similar official) of all or substantially all of its assets; (iv) the commencement against any Credit Party or any of its Subsidiaries the Borrower of a proceeding in any court of competent jurisdiction under any bankruptcy or other applicable law (as now or hereafter in effect) seeking its liquidation, winding up, dissolution, reorganization, examinership, arrangement, adjustment, or the appointment of an intervenor, receiver, receiver-manager, liquidator, assignee, trustee, sequestrator, examiner sequestrator (or other similar official), and any such proceeding shall continue undismissed, or any order, judgment or decree approving or ordering any of the foregoing shall continue unstayed or otherwise in effect, for a period of forty five ninety (4590) days; (v) the making by any Credit Party or any of its Subsidiaries the Borrower of an assignment for the benefit of creditors, or the admission by it in writing of its inability to pay its debt generally as they become due; or (vi) any other event shall have occurred which under any applicable law would have an effect analogous to any of those events listed above in this subsection.
(e) One or more judgments against any Credit Party or any Subsidiary the Borrower taken as a whole or attachments against any of their respective its property, which in the aggregate exceed $1,000,000 (net of any anticipated insurance proceeds), and such judgment(swould reasonably be expected to have a Material Adverse Effect remain(s) remains unpaid, unstayed on appeal, undischarged, unbonded or undismissed for a period of thirty (30) days from the date of entry of such judgment.
(f) Any Authorization license, permit or approval held by the Borrower from any Credit Party or any of its Subsidiaries Government Authority shall have been suspended, cancelled canceled or revoked, and except where any such suspension, cancellation or revocation would not reasonably be expected to have a Material Adverse Effect.
(g) Any Authorization authorization necessary for the execution, delivery or performance of any Loan Financing Document or for the validity or enforceability of any of the Obligations under any Financing Document is not given or is withdrawn or ceases to remain in full force or effect.
(h) There is a failure to perform under any agreement to which any Credit Party is a party resulting in the acceleration by a third party of the maturity of any Indebtedness in an amount in excess of $5,000,000.
(i) The validity of any Loan Financing Document shall be contested by any Credit Party legislative, executive or judicial body of any Subsidiaryjurisdiction, or any Applicable Law treaty, law, regulation, communiqué, decree, ordinance or policy of any jurisdiction shall purport to render any material provision of any Loan Financing Document invalid or unenforceable or shall purport to prevent or materially delay the performance or observance by any Credit Party the Borrower of the Obligations, and the parties are unable to negotiate a replacement provision pursuant to Section 6.7 below.
(i) The Borrower has failed to comply in any material respect with the reporting requirements of the Exchange Act, unless corrected by Borrower promptly (if capable of correction) through the filing of an amendment to an existing report or making an appropriate subsequent filing with the SEC.
(j) The Common Shares If an Event of Parent cease Default pursuant to be listed on the Principal Trading Markets or Warrants (as such term is defined in the Common Shares cease to be registered under Section 12 of the Exchange ActWarrants) shall have occurred beyond any applicable cure periods.
(k) Cash and Cash Equivalents on the last day of each calendar quarter are less than Forty Million Dollars ($40,000,000); provided, however, that if the aggregate amount of the Cash Extensions (as such term is defined in the Comerica Loan Agreement) is increased, such amount shall be increased by the same percentage as the increase in such Cash Extensions.
(l) The occurrence of a Conversion Failurean “Event of Default”, as such term is defined in the Comerica Loan Agreement and Comerica Bank has exercised any of its rights and remedies under Section 9 thereof.
Appears in 1 contract
General Acceleration Provision upon Events of Default. If one or more of the events specified in this Section 5.4 6.1 (each an “Event of Default”) shall have happened and be continuing beyond the applicable cure period (each, an “Event of Default”)period, the Required Lenders, by written notice to the Borrower (an “Acceleration Notice”)Borrower, may cancel the Borrower’s right to request Disbursements and declare the principal of, and accrued and unpaid interest all fees on, all of the Notes Loan or any part of any of them (together with any other amounts accrued or payable under the Loan Documentsthis Agreement) to be, and the same shall thereupon become, immediately due and payable, payable without prepayment premium without any further notice and without any presentment, demand, demand or protest of any kind, all of which are hereby expressly waived by the Borrower, and take any further action available at law or in equity, including, without limitation, the sale of the Loan and all other rights acquired in connection with the Loan:
(a) The Borrower A Lender shall have failed to make receive the Warrants when required to be issued under this Agreement or payment when due of (i) principal when dueprincipal, or (ii) interest or any other amounts due under the Notes Loan or any other Obligations within five (5) Business Days of their due datethe Note.
(ib) Any Credit Party The Borrower shall have defaulted or failed to comply in any material respect with the due observance or performance of any covenant contained in this Agreement (other than the covenant described in (a) above or as otherwise expressly provided in this Section 5.4) or in the other Loan Documents any Note and such default is or failure to comply shall not remedied have been cured by the Borrower or waived by the Lenders within fifteen (15) 15 days (inclusive of any extension periods or cure periods contained in any such covenant or provided by Applicable Laws) after the earlier of (A) receipt by any Credit Party of receiving written notice from the Lenders of such default, default or (B) actual knowledge of any Credit Party of such defaultfailure from Deerfield Private Design.
(c) Any representation or warranty made by any Credit Party or any of its Subsidiaries the Borrower in any Loan Financing Document shall be found to have been incorrect, false or misleading in any material respect (except to the extent that such representation or warranty is qualified by reference to materiality or Material Adverse Effect, to which extent it shall be incorrect, false or misleading in any respect) as of the date it was made or made, deemed made, reaffirmed or confirmed.
(i) Any Credit Party or any of its Subsidiaries The Borrower shall generally be unable to not pay its debts as such debts become due or be deemed to be unable to pay its debtsdue, or shall admit in writing its inability to pay its debts as they come due or shall make a general assignment for the benefit of creditors; (ii) any Credit Party or any of its Subsidiaries the Borrower shall declare a moratorium on the payment of its debts; (iii) the commencement by any Credit Party or any of its Subsidiaries the Borrower of proceedings to be adjudicated bankrupt or insolvent, or the consent by it to the commencement of bankruptcy or insolvency proceedings against it, or the filing by it of a petition or answer or consent seeking reorganization, examinership, intervention or other similar relief under any applicable law, or the consent by it to the filing of any such petition or to the appointment of an intervenor, receiver, receiver-manager, liquidator, assignee, trustee, sequestrator, examiner sequestrator (or other similar official) or of all or substantially all any substantial part of its assets; (iv) the commencement against any Credit Party the Borrower or any substantial part of its Subsidiaries assets of a proceeding in any court of competent jurisdiction under any bankruptcy or other applicable law (as now or hereafter in effect) seeking its liquidation, winding up, dissolution, reorganization, examinership, arrangement, adjustment, or the appointment of an intervenor, receiver, receiver-manager, liquidator, assignee, trustee, sequestrator, examiner sequestrator (or other similar official), and any such proceeding shall continue undismissed, or any order, judgment or decree approving or ordering any of the foregoing shall continue unstayed or otherwise in effect, for a period of forty five ninety (4590) days; (v) the making by any Credit Party or any of its Subsidiaries the Borrower of an assignment for the benefit of creditors, or the admission by it in writing of its inability to pay its debt generally as they become due; or (vi) any other event shall have occurred which under any applicable law would have an effect analogous to any of those events listed above in this subsection.
(e) One or more judgments against any Credit Party or any Subsidiary the Borrower taken as a whole or attachments against any of their respective its property, which in the aggregate exceed one million dollars ($1,000,000 (net of any anticipated insurance proceeds1,000,000), or which could reasonable expected to interfere materially and such judgment(sadversely with the conduct of the business of the borrower remain(s) remains unpaid, unstayed on appeal, undischarged, unbonded or undismissed for a period of thirty (30) days from the date of entry of such judgment.
(f) Any Authorization license, permit or approval held by the Borrower including, without limitation from any Credit Party or any of its Subsidiaries Government Authority shall have been suspended, cancelled canceled or revokedrevoked provided, and such suspensionhowever, cancellation that an Event of Default shall not have been deemed to occur if the FDA (or revocation would reasonably be expected to have a Material Adverse Effectcomparable Government Authority in any foreign jurisdiction) (i) suspends a clinical trial of any Borrower product candidate, including issuing a “clinical hold” letter, or (ii) denies a new drug application, or similar application requesting marketing approval of a Borrower drug candidate.
(g) Any Authorization authorization necessary for the execution, delivery or performance of any Loan Financing Document or for the validity or enforceability of any of the Obligations Borrower’s obligations under any Financing Document is not effected or given or is withdrawn or ceases to remain in full force or effect.
(h) There is a failure to perform under any agreement to which any Credit Party is a party resulting in the acceleration by a third party of the maturity of any Indebtedness in an amount in excess of $5,000,000.
(i) The validity of or any Loan Financing Document shall be contested by any Credit Party legislative, executive or judicial body of any Subsidiaryjurisdiction, or any Applicable Law treaty, law, regulation, communiqué, decree, ordinance or policy of any jurisdiction shall purport to render any material provision of any Loan Financing Document invalid or unenforceable or shall purport to prevent or materially delay the performance or observance by any Credit Party the Borrower of its obligations hereunder or thereunder (as applicable).
(i) The Borrower has failed to comply with the requirements of the ObligationsSecurities Exchange Act in a manner which could reasonably expected to interfere materially and adversely with the conduct of the business of the Borrower.
(j) The Common Shares If there is a default or other failure to perform in any agreement to which Borrower is a party with a third party or parties resulting in a right by such third party or parties, whether or not exercised, to accelerate the maturity of Parent cease to be listed on the Principal Trading Markets or the Common Shares cease to be registered under Section 12 any Indebtedness in an amount in excess of the Exchange Act$1,000,000.
(k) The occurrence If an Event of a Conversion FailureDefault pursuant to the Warrants (as such term is defined in the Warrants) shall have occurred.
Appears in 1 contract
General Acceleration Provision upon Events of Default. If one or more of the events specified in this Section 5.4 5.5 shall have happened and be continuing beyond the applicable cure period period, (each, each an “Event of Default”), ) the Required Lenders, by written notice to the Borrower (an “Acceleration Notice”)Borrower, may cancel the Borrower’s right to request Disbursements and declare the principal of, and accrued and unpaid interest on, all of the Notes or any part of any of them (together with any other amounts accrued or payable under the Loan Documentsthis Agreement) to be, and the same shall thereupon become, immediately due and payablepayable with a prepayment premium equal to 10% of such principal, without any further notice and without any presentment, demand, or protest of any kind, all of which are hereby expressly waived by the Borrower, and take any further action available at law or in equity, including, without limitation, the sale of the Loan and all other rights acquired in connection with the Loan:
(a) The Borrower A Lender shall have failed to make receive payment when due of (i) principal when due, and interest due under the Notes or Fund Availability Return or (ii) interest or any other amounts due under the Loan or the Notes or any other Obligations within five (5) 5 Business Days of their due date.
(ib) Any Credit Party The Borrower shall have failed to comply in any material respect with the due observance or performance of any other covenant contained in this Agreement (other than the covenant described in (a) above or as otherwise expressly provided in this Section 5.4) or in the other Loan Documents any Note and such default is failure shall not remedied have been cured by the Borrower or waived by the Lenders within fifteen (15) 15 days (inclusive of any extension periods or cure periods contained in any such covenant or provided by Applicable Laws) after the earlier of (A) receipt by any Credit Party of receiving written notice from the Lenders of such default, default or (B) actual knowledge of any Credit Party of such defaultfailure from Deerfield Private Design Fund.
(c) Any representation or warranty made by any Credit Party or any of its Subsidiaries the Borrower in any Loan Financing Document shall be have been incorrect, false or misleading in any material respect (except to the extent that such representation or warranty is qualified by reference to materiality or Material Adverse Effect, to which extent it shall be incorrect, false or misleading in any respect) as of the date it was made or made, deemed made, reaffirmed or confirmed.
(i) Any Credit Party or any of its Subsidiaries The Borrower shall generally be unable to not pay its debts as such debts become due or be deemed to be unable to pay its debtsdue, or shall admit in writing its inability to pay its debts as they come due or shall make a general assignment for the benefit of creditors; (ii) any Credit Party or any of its Subsidiaries the Borrower shall declare a moratorium on the payment of its debts; (iii) the commencement by any Credit Party or any of its Subsidiaries the Borrower of proceedings to be adjudicated bankrupt or insolvent, or the consent by it to the commencement of bankruptcy or insolvency proceedings against it, or the filing by it of a petition or answer or consent seeking reorganization, examinership, intervention or other similar relief under any applicable law, or the consent by it to the filing of any such petition or to the appointment of an intervenor, receiver, receiver-manager, liquidator, assignee, trustee, sequestrator, examiner sequestrator (or other similar official) or of all or substantially all any substantial part of its assets; (iv) the commencement against any Credit Party the Borrower or any substantial part of its Subsidiaries assets of a proceeding in any court of competent jurisdiction under any bankruptcy or other applicable law (as now or hereafter in effect) seeking its liquidation, winding up, dissolution, reorganization, examinership, arrangement, adjustment, or the appointment of an intervenor, receiver, receiver-manager, liquidator, assignee, trustee, sequestrator, examiner sequestrator (or other similar official), and any such proceeding shall continue undismissed, or any order, judgment or decree approving or ordering any of the foregoing shall continue unstayed or otherwise in effect, for a period of forty five ninety (4590) days; (v) the making by any Credit Party or any of its Subsidiaries the Borrower of an assignment for the benefit of creditors, or the admission by it in writing of its inability to pay its debt generally as they become due; or (vi) any other event shall have occurred which under any applicable law would have an effect analogous to any of those events listed above in this subsection.
(e) One or more judgments against any Credit Party or any Subsidiary the Borrower taken as a whole or attachments against any of their respective its property, which in the aggregate exceed $1,000,000 (net of any anticipated insurance proceeds)500,000, and such judgment(sor which could reasonably be expected to have a Material Adverse Effect remain(s) remains unpaid, unstayed on appeal, undischarged, unbonded or undismissed for a period of thirty (30) days from the date of entry of such judgment.
(f) Any Authorization license, permit or approval held by the Borrower from any Credit Party or any of its Subsidiaries Government Authority shall have been suspended, cancelled canceled or revoked, revoked and such suspension, cancellation or revocation would could reasonably be expected to have a Material Adverse Effect, and such suspension, cancellation or revocation shall not have been cured within 30 days.
(g) Any Authorization authorization necessary for the execution, delivery or performance of any Loan Financing Document or for the validity or enforceability of any of the Obligations under any Financing Document is not given or is withdrawn or ceases to remain in full force or effect.
(h) There is a failure to perform under any agreement to which any Credit Party is a party resulting in the acceleration by a third party of the maturity of any Indebtedness in an amount in excess of $5,000,000.
(i) The validity of or any Loan Financing Document shall be contested by any Credit Party legislative, executive or judicial body of any Subsidiaryjurisdiction, or any Applicable Law treaty, law, regulation, communiqué, decree, ordinance or policy of any jurisdiction shall purport to render any material provision of any Loan Financing Document invalid or unenforceable or shall purport to prevent or materially delay the performance or observance by any Credit Party the Borrower of the Obligations.
(ji) The Common Shares of Parent cease Borrower has failed to be listed on comply with the Principal Trading Markets or the Common Shares cease to be registered under Section 12 requirements of the Securities Exchange ActAct in a manner which could reasonably be expected to have a Material Adverse Effect.
(kj) The occurrence There is a failure to perform in any agreement to which the Borrower is a party with a third party or parties resulting in a right by such third party or parties to accelerate the maturity of a Conversion Failureany Indebtedness in an amount in excess of $500,000, and such acceleration right is exercised.
Appears in 1 contract
Samples: Facility Agreement (Third Wave Technologies Inc /Wi)
General Acceleration Provision upon Events of Default. If one or more of the events specified in this Section 5.4 shall have happened and be continuing beyond the applicable cure period (each, an “Event of Default”), the Required Lenders, by written notice to the Borrower (an “Acceleration Notice”), may declare the principal of, and accrued and unpaid interest on, all of the Notes or any part of any of them (together with any other amounts accrued or payable under the Loan Documents) to be, and the same shall thereupon become, immediately due and payable, without any further notice and without any presentment, demand, or protest of any kind, all of which are hereby expressly waived by the Borrower, and take any further action available at law or in equity, including, without limitation, the sale of the Loan and all other rights acquired in connection with the Loan:
(a) The Borrower shall have failed to make payment of (i) principal when due, or (ii) interest or any other amounts due under the Notes or any other Obligations within five (5) Business Days of their due date.
(i) Any Credit Party shall have failed to comply with the due observance or performance of any covenant contained in this Agreement (other than the covenant described in (a) above or as otherwise expressly provided in this Section 5.4) or in the other Loan Documents and such default is not remedied by the Borrower or waived by the Lenders within fifteen (15) days (inclusive of any extension periods or cure periods contained in any such covenant or provided by Applicable Laws) after the earlier of (A) receipt by any Credit Party of notice from the Lenders of such default, or (B) actual knowledge of any Credit Party of such default.
(c) Any representation or warranty made by any Credit Party or any of its Subsidiaries in any Loan Document shall be incorrect, false or misleading in any material respect (except to the extent that such representation or warranty is qualified by reference to materiality or Material Adverse Effect, to which extent it shall be incorrect, false or misleading in any respect) as of the date it was made or deemed made.
(i) Any Credit Party or any of its Subsidiaries shall generally be unable to pay its debts as such debts become due or be deemed to be unable to pay its debts, or shall admit in writing its inability to pay its debts as they come due or shall make a general assignment for the benefit of creditors; (ii) any Credit Party or any of its Subsidiaries shall declare a moratorium on the payment of its debts; (iii) the commencement by any Credit Party or any of its Subsidiaries of proceedings to be adjudicated bankrupt or insolvent, or the consent by it to the commencement of bankruptcy or insolvency proceedings against it, or the filing by it of a petition or answer or consent seeking reorganization, examinership, intervention or other similar relief under any applicable law, or the consent by it to the filing of any such petition or to the appointment of an intervenor, receiver, receiver-manager, liquidator, assignee, trustee, sequestrator, examiner (or other similar official) of all or substantially all of its assets; (iv) the commencement against any Credit Party or any of its Subsidiaries of a proceeding in any court of competent jurisdiction under any bankruptcy or other applicable law (as now or hereafter in effect) seeking its liquidation, winding up, dissolution, reorganization, examinership, arrangement, adjustment, or the appointment of an intervenor, receiver, receiver-manager, liquidator, assignee, trustee, sequestrator, examiner (or other similar official), and any such proceeding shall continue undismissed, or any order, judgment or decree approving or ordering any of the foregoing shall continue unstayed or otherwise in effect, for a period of forty five (45) days; (v) the making by any Credit Party or any of its Subsidiaries of an assignment for the benefit of creditors, or the admission by it in writing of its inability to pay its debt generally as they become due; or (vi) any other event shall have occurred which under any applicable law would have an effect analogous to any of those events listed above in this subsection.
(e) One or more judgments against any Credit Party or any Subsidiary or attachments against any of their respective property, which in the aggregate exceed $1,000,000 (net of any anticipated insurance proceeds), and such judgment(s) remains unpaid, unstayed on appeal, undischarged, unbonded or undismissed for a period of thirty (30) days from the date of entry of such judgment.
(f) Any Authorization held by any Credit Party or any of its Subsidiaries shall have been suspended, cancelled or revoked, and such suspension, cancellation or revocation would reasonably be expected to have a Material Adverse Effect.
(g) Any Authorization necessary for the execution, delivery or performance of any Loan Document or for the validity or enforceability of any of the Obligations is not given or is withdrawn or ceases to remain in full force or effect.
(h) There is a failure to perform under any agreement to which any Credit Party is a party resulting in the acceleration by a third party of the maturity of any Indebtedness in an amount in excess of $5,000,000.
(i) The validity of any Loan Document shall be contested by any Credit Party or any Subsidiary, or any Applicable Law shall purport to render any material provision of any Loan Document invalid or unenforceable or shall purport to prevent or materially delay the performance or observance by any Credit Party of the Obligations.
(j) The Common Shares of Parent cease to be listed on the Principal Trading Markets or the Common Shares cease to be registered under Section 12 of the Exchange Act.
(k) The occurrence of a Conversion an Exchange Failure.
Appears in 1 contract
Samples: Facility Agreement (Pozen Inc /Nc)
General Acceleration Provision upon Events of Default. If one or more of the events specified in this Section 5.4 shall have happened and be continuing beyond the applicable cure period (each, an “Event of Default”), the Required Lenders, by written notice to the Borrower (an “Acceleration Notice”), may declare the principal of, and accrued and unpaid interest on, all of the Notes or any part of any of them (together with any other amounts accrued or payable under the Loan Documents) to be, and the same shall thereupon become, immediately due and payable, without any further notice and without any presentment, demand, or protest of any kind, all of which are hereby expressly waived by the Borrower, and take any further action available at law or in equity, including, without limitation, the sale of the Loan and all other rights acquired in connection with the Loan:
(a) The Borrower shall have failed to make payment of (i) principal when due, or (ii) interest or any other amounts due under the Notes or any other Obligations within five (5) Business Days of their due date.
(b) (i) Any Credit Party shall have failed to comply with the due observance or performance of any covenant contained in this Agreement (other than the covenant described in (a) above or as otherwise expressly provided in this Section 5.4) or in the other Loan Documents and such default is not remedied by the Borrower or waived by the Lenders within fifteen (15) days (inclusive of any extension periods or cure periods contained in any such covenant or provided by Applicable Laws) after the earlier of (A) receipt by any Credit Party of notice from the Lenders of such default, or (B) actual knowledge of any Credit Party of such default.
(c) Any representation or warranty made by any Credit Party or any of its Subsidiaries in any Loan Document shall be incorrect, false or misleading in any material respect (except to the extent that such representation or warranty is qualified by reference to materiality or Material Adverse Effect, to which extent it shall be incorrect, false or misleading in any respect) as of the date it was made or deemed made.
(i) Any Credit Party or any of its Subsidiaries shall generally be unable to pay its debts as such debts become due or be deemed to be unable to pay its debts, or shall admit in writing its inability to pay its debts as they come due or shall make a general assignment for the benefit of creditors; (ii) any Credit Party or any of its Subsidiaries shall declare a moratorium on the payment of its debts; (iii) the commencement by any Credit Party or any of its Subsidiaries of proceedings to be adjudicated bankrupt or insolvent, or the consent by it to the commencement of bankruptcy or insolvency proceedings against it, or the filing by it of a petition or answer or consent seeking reorganization, examinership, intervention or other similar relief under any applicable law, or the consent by it to the filing of any such petition or to the appointment of an intervenor, receiver, receiver-manager, liquidator, assignee, trustee, sequestrator, examiner (or other similar official) of all or substantially all of its assets; (iv) the commencement against any Credit Party or any of its Subsidiaries of a proceeding in any court of competent jurisdiction under any bankruptcy or other applicable law (as now or hereafter in effect) seeking its liquidation, winding up, dissolution, reorganization, examinership, arrangement, adjustment, or the appointment of an intervenor, receiver, receiver-manager, liquidator, assignee, trustee, sequestrator, examiner (or other similar official), and any such proceeding shall continue undismissed, or any order, judgment or decree approving or ordering any of the foregoing shall continue unstayed or otherwise in effect, for a period of forty five (45) days; (v) the making by any Credit Party or any of its Subsidiaries of an assignment for the benefit of creditors, or the admission by it in writing of its inability to pay its debt generally as they become due; or (vi) any other event shall have occurred which under any applicable law would have an effect analogous to any of those events listed above in this subsection.
(e) One or more judgments against any Credit Party or any Subsidiary or attachments against any of their respective property, which in the aggregate exceed $1,000,000 (net of any anticipated insurance proceeds), and such judgment(s) remains unpaid, unstayed on appeal, undischarged, unbonded or undismissed for a period of thirty (30) days from the date of entry of such judgment.
(f) Any Authorization held by any Credit Party or any of its Subsidiaries shall have been suspended, cancelled or revoked, and such suspension, cancellation or revocation would reasonably be expected to have a Material Adverse Effect.
(g) Any Authorization necessary for the execution, delivery or performance of any Loan Document or for the validity or enforceability of any of the Obligations is not given or is withdrawn or ceases to remain in full force or effect.
(h) There is a failure to perform under any agreement to which any Credit Party is a party resulting in the acceleration by a third party of the maturity of any Indebtedness in an amount in excess of $5,000,000.
(i) The validity of any Loan Document shall be contested by any Credit Party or any Subsidiary, or any Applicable Law shall purport to render any material provision of any Loan Document invalid or unenforceable or shall purport to prevent or materially delay the performance or observance by any Credit Party of the Obligations.
(j) The Common Shares of Parent cease to be listed on the Principal Trading Markets or the Common Shares cease to be registered under Section 12 of the Exchange Act.
(k) The occurrence of a Conversion Failure.
Appears in 1 contract
Samples: Facility Agreement (Pozen Inc /Nc)
General Acceleration Provision upon Events of Default. If one or more of the events specified in this Section 5.4 shall have happened and be continuing beyond the applicable cure period (each, an “Event of Default”), the Required LendersPurchasers, by written notice to the Borrower (an “Acceleration Notice”)Borrower, may declare the principal of, and accrued and unpaid interest on, all of the Notes or any part of any of them (together with any other amounts Obligations accrued or payable under the Loan Documentspayable) to be, and the same shall thereupon become, immediately due and payable, without any further notice and without any presentment, demand, or protest of any kind, all of which are hereby expressly waived by the Borrower, and take any further action available at law or in equity, including, without limitation, the sale of the Loan Notes and all other rights acquired in connection with the LoanNotes:
(a) The Borrower shall have failed to make payment of (i) principal when due, or (ii) interest or any other amounts due under the Notes or any other Obligations within five (5) Business Days of their due date.
(i) Any Credit Party The Borrower shall have failed to comply with the due observance or performance of any covenant contained in this Agreement (other than the covenant described in (a) above or as otherwise expressly provided in this Section 5.4) or in the other Loan Note Documents and such default is not remedied by the Borrower or waived by the Lenders Purchasers within fifteen thirty (1530) days (inclusive of any extension periods or cure periods contained in any such covenant or provided by Applicable LawsLaw) after the earlier of (A) receipt by any Credit Party the Borrower of notice from the Lenders Required Purchasers of such default, or (B) in the case of Section 5.1(d), the actual knowledge of any Credit Party Borrower of such default.
(c) Any representation or warranty made by any Credit Party or any of its Subsidiaries the Borrower in any Loan Note Document shall be incorrect, false or misleading in any material respect (except to the extent that such representation or warranty is qualified by reference to materiality or Material Adverse Effect, to which extent it shall be incorrect, false or misleading in any respect) as of the date it was made or deemed made.
(i) Any Credit Party or any of its Subsidiaries The Borrower shall generally be unable to pay its debts as such debts become due or be deemed to be unable to pay its debtsdue, or shall admit in writing its inability to pay its debts as they come due or shall make a general assignment for the benefit of creditors; (ii) any Credit Party or any of its Subsidiaries the Borrower shall declare a moratorium on the payment of its debts; (iii) the commencement by any Credit Party or any of its Subsidiaries the Borrower of proceedings to be adjudicated bankrupt or insolvent, or the consent by it to the commencement of bankruptcy or insolvency proceedings against it, or the filing by it of a petition or answer or consent seeking reorganization, examinership, intervention or other similar relief under any applicable law, or the consent by it to the filing of any such petition or to the appointment of an intervenor, receiver, receiver-manager, liquidator, assignee, trustee, sequestrator, examiner sequestrator (or other similar official) of all or substantially all of its assets; (iv) the commencement against any Credit Party or any of its Subsidiaries the Borrower of a proceeding in any court of competent jurisdiction under any bankruptcy or other applicable law (as now or hereafter in effect) seeking its liquidation, winding up, dissolution, reorganization, examinership, arrangement, adjustment, or the appointment of an intervenor, receiver, receiver-manager, liquidator, assignee, trustee, sequestrator, examiner sequestrator (or other similar official), and any such proceeding shall continue undismissed, or any order, judgment or decree approving or ordering any of the foregoing shall continue unstayed or otherwise in effect, for a period of forty five sixty (4560) days; or (v) the making by any Credit Party or any of its Subsidiaries of an assignment for the benefit of creditors, or the admission by it in writing of its inability to pay its debt generally as they become due; or (vi) any other event shall have occurred which under any applicable law would have an effect analogous to any of those events listed above in this subsection.
(e) One or more judgments against any Credit Party the Borrower or any Subsidiary or attachments against any of their respective property, which in the aggregate exceed $1,000,000 5,000,000 (net of any anticipated insurance proceeds), and such judgment(s) remains unpaid, unstayed on appeal, undischarged, unbonded or undismissed for a period of thirty sixty (3060) days from the date of entry of such judgment.
(f) Any Authorization held by any Credit Party the Borrower or any of its Subsidiaries Subsidiary shall have been suspended, cancelled or revoked, and such suspension, cancellation or revocation would reasonably be expected to have a Material Adverse Effect, and such suspension, cancellation or revocation shall not have been cured within 30 days.
(g) Any Authorization necessary for the execution, delivery or performance of any Loan Note Document or for the validity or enforceability of any of the Obligations is not given or is withdrawn or ceases to remain in full force or effect.
(h) There is a failure to perform under default in the payment of any agreement Indebtedness to which any Credit Party the Borrower is a party resulting in the acceleration by with a third party, such third party of accelerates the maturity of any such Indebtedness, the principal amount of such Indebtedness is in an amount in excess of $5,000,0002,500,000 and such acceleration is not rescinded or such Indebtedness is not contested in good faith or paid or otherwise discharged.
(i) The validity of any Loan Note Document shall be contested by any Credit Party the Borrower or any Subsidiary, or any Applicable Law shall purport to render any material provision of any Loan Note Document invalid or unenforceable or shall purport to prevent or materially delay the performance or observance by any Credit Party the Borrower of the Obligations.
(j) The Common Shares Stock of Parent cease Borrower ceases to be listed on the Principal Trading Markets Market or the Common Shares cease Stock ceases to be registered under Section 12 of the Exchange Act.
(k) The occurrence of a Conversion Failure.
Appears in 1 contract
Samples: Note Purchase Agreement (Aerie Pharmaceuticals Inc)
General Acceleration Provision upon Events of Default. If one or more of the events specified in this Section 5.4 6.01 (each an “Event of Default”) shall have happened and be continuing beyond the applicable cure period (each, an “Event of Default”)period, the Required LendersLender, by written notice to the Borrower (an “Acceleration Notice”)Borrower, may declare the principal of, all accrued interest and accrued and unpaid interest fees on, and all interest and fees yet to be accrued from the date of the Notes Event of Default until the Maturity Date, the Loan or any part of any of them (together with any other amounts accrued or payable under the Loan Documentsthis Agreement) to be, and the same shall thereupon become, immediately due and payablepayable (anything in this Agreement to the contrary notwithstanding), without any further notice and without any presentment, demand, demand or protest of any kind, all of which are hereby expressly waived by the Borrower, and take any further action available at law or in equity, including, without limitation, the sale of the Loan and all other rights acquired in connection with the Loan:
(a) The Borrower Lender shall have failed to make receive payment when due of principal or interest due under the Note within five (i5) principal when due, days of the date due or (ii) interest shall have failed to receive any fees or any other amounts due under the Notes Loan, the Note or any other Obligations Transaction Document within five (5) Business Days days of their due datethe date due.
(ib) Any Credit Party The Security Parties shall have defaulted or failed to comply with the due observance or performance of any term, covenant or agreement contained in this Agreement (other than the covenant described in (a) above or as otherwise expressly provided in this Section 5.4) or in any Transaction Document, or any other document or agreement between the Lender and any Security Party entered into pursuant to this Agreement or any of the other Loan Documents Transaction Documents, and such default is not remedied by the Borrower or waived by the Lenders within fifteen failure to comply shall continue uncured for ten (1510) days (inclusive of any extension periods or cure periods contained in any such covenant or provided by Applicable Laws) after the earlier delivery of (A) receipt by any Credit Party written notice of notice such default or failure from the Lenders of such default, or (B) actual knowledge of any Credit Party of such defaultLender.
(c) Any representation or warranty of the Security Parties made by any Credit Party in this Agreement or any of its Subsidiaries in any Loan other Transaction Document shall be found to have been incorrect, false or misleading in any material respect (except to the extent that such representation or warranty is qualified by reference to materiality or Material Adverse Effect, to which extent it shall be incorrect, false or misleading in any respect) as of the date it was made or deemed madeas of date of Closing, as if made again on such date, and shall continue to be incorrect, false or misleading.
(d) Any Government Authority shall have condemned, nationalized, seized, confiscated or otherwise expropriated all or any substantial part of the property or other assets or share capital of any Security Party, or shall have assumed custody or control of such-property or other assets or of the business or operations or share capital, or shall have taken any action for the dissolution, winding up or liquidation of any Security Party or any action that would prevent any Security Party from meeting its obligations to the Lender under the Transaction Documents.
(i) Any Credit Security Party or any of its Subsidiaries shall generally be unable to not pay its debts as such debts become due or be deemed to be unable to pay its debtsdue, or shall admit in writing its inability to pay its debts as they come due or shall make a general assignment for the benefit of creditors; (ii) any Credit Security Party or any of its Subsidiaries shall declare a moratorium on the payment of its debts; (iii) the commencement by any Credit Security Party or any of its Subsidiaries of proceedings to be adjudicated bankrupt or insolvent, or the consent by it to the commencement of bankruptcy or insolvency proceedings against it, or the filing by it of a petition or answer or consent seeking reorganization, examinership, intervention or other similar relief under any applicable law, or the consent by it to the filing of any such petition or to the appointment of an intervenor, receiver, receiver-manager, liquidator, assignee, trustee, sequestrator, examiner sequestrator (or other similar official) or of all or substantially all any substantial part of its assetsproperty; (iv) the commencement against any Credit Security Party or any substantial part of its Subsidiaries their real property or any other assets of a proceeding in any court of competent jurisdiction under any bankruptcy or other applicable law (as now or hereafter in effect) seeking its their liquidation, winding up, dissolution, reorganization, examinership, arrangement, adjustment, or the appointment of an intervenor, receiver, receiver-manager, liquidator, assignee, trustee, sequestrator, examiner sequestrator (or other similar official), and any such proceeding shall continue undismissed, or any order, judgment or decree approving or ordering any of the foregoing shall continue unstayed or otherwise in effect, for a period of forty five thirty (4530) days; or (v) the making by any Credit Party or any of its Subsidiaries of an assignment for the benefit of creditors, or the admission by it in writing of its inability to pay its debt generally as they become due; or (vi) any other event shall have occurred which under any applicable law would have an effect analogous to any of those events listed above in this subsection.
(ef) Any Security Party shall have failed to make any payment when due (whether at stated maturity, by acceleration or otherwise) or otherwise to perform its obligations under any Debt (other than the Loan) or under any agreement pursuant to which there is outstanding any Debt of any Security Party and such failure shall have continued for more than the applicable grace period (if any), and such Debt shall be in an aggregate amount of at least Fifty Thousand Dollars ($50,000) or its equivalent.
(g) One or more judgments against any Credit Security Party or any Subsidiary or attachments against any of their its respective property, which in the aggregate exceed Fifty Thousand Dollars ($1,000,000 (net 50,000) or its equivalent in local operating currency, or which could reasonably expected to interfere materially and adversely with the conduct of the business of any anticipated insurance proceeds), and such judgment(sSecurity Party remain(s) remains unpaid, unstayed on appeal, undischarged, unbonded or undismissed for a period of thirty (30) days from the date of entry of such judgmentjudgment or attachment.
(fh) This Agreement or any other Transaction Document (or any component thereof relating to payment obligations, enforcement rights or other material rights or other material obligations) is or shall have become invalid, illegal or unenforceable under applicable law, and continues to be invalid, illegal or unenforceable for a period of thirty (30) days.
(i) Any Authorization license, permit or approval held by any Credit Security Party or any of its Subsidiaries shall have been suspended, cancelled canceled or revoked, and except to the extent such suspension, cancellation or revocation would does not have and is not reasonably be expected to have a Material Adverse Effect.
(gj) Any Authorization authorization necessary for the execution, delivery or performance by the Security Parties of any Loan payment or other material obligations under this Agreement or any other Transaction Document or for the validity or enforceability of any of the Obligations Security Parties’ obligations under this Agreement or under any other Transaction Document is not effectuated or given or is withdrawn or ceases to remain in full force or effect.
(h) There is a failure to perform under any agreement to which any Credit Party is a party resulting in the acceleration by a third party of the maturity of any Indebtedness in an amount in excess of $5,000,000.
(ik) The validity of this Agreement or any Loan other Transaction Document shall be contested by any Credit Party legislative, executive or judicial body of any Subsidiaryjurisdiction, or any Applicable Law treaty, law, regulation, decree, or ordinance of any jurisdiction shall purport to render any material provision of this Agreement or any Loan other Transaction Document invalid or unenforceable (including, but not limited to, any nationalization, expropriation or moratorium on debt payment) or shall purport to prevent or materially delay the performance or observance by any Credit Security Party of the Obligationsits obligations hereunder or thereunder (as applicable).
(j) The Common Shares of Parent cease to be listed on the Principal Trading Markets or the Common Shares cease to be registered under Section 12 of the Exchange Act.
(k) The occurrence of a Conversion Failure.
Appears in 1 contract
Samples: Loan Agreement (Comarco Inc)
General Acceleration Provision upon Events of Default. If one or more of the events specified in this Section 5.4 shall have happened and be continuing beyond the applicable cure period (each, an “Event of Default”), the Required Lenders, by written notice to the Borrower (an “Acceleration Notice”), may declare the principal of, and accrued and unpaid interest on, all of the Notes or any part of any of them (together with any other amounts accrued or payable under the Loan Documents) to be, and the same shall thereupon become, immediately due and payable, without any further notice and without any presentment, demand, or protest of any kind, all of which are hereby expressly waived by the Borrower, and take any further action available at law or in equity, including, without limitation, the sale of the Loan and all other rights acquired in connection with the Loan:
(a) The Borrower shall have failed to make payment of (i) principal when due, or (ii) interest or any other amounts due under the Notes or any other Obligations within five (5) Business Days of their due date.
(i) Any Credit Party shall have failed to comply with the due observance or performance of any covenant contained in this Agreement (other than the covenant described in (a) above or as otherwise expressly provided in this Section 5.4) or in the other Loan Documents and such default is not remedied by the Borrower or waived by the Lenders within fifteen (15) days (inclusive of any extension periods or cure periods contained in any such covenant or provided by Applicable Laws) after the earlier of (A) receipt by any Credit Party of notice from the Lenders of such default, or (B) actual knowledge of any Credit Party of such default.
(c) Any representation or warranty made by any Credit Party or any of its Subsidiaries in any Loan Document shall be incorrect, false or misleading in any material respect (except to the extent that such representation or warranty is qualified by reference to materiality or Material Adverse Effect, to which extent it shall be incorrect, false or misleading in any respect) as of the date it was made or deemed made.
(i) Any Credit Party or any of its Subsidiaries shall generally be unable to pay its debts as such debts become due or be deemed to be unable to pay its debts, or shall admit in writing its inability to pay its debts as they come due or shall make a general assignment for the benefit of creditors; (ii) any Credit Party or any of its Subsidiaries shall declare a moratorium on the payment of its debts; (iii) the commencement by any Credit Party or any of its Subsidiaries of proceedings to be adjudicated bankrupt or insolvent, or the consent by it to the commencement of bankruptcy or insolvency proceedings against it, or the filing by it of a petition or answer or consent seeking reorganization, examinership, intervention or other similar relief under any applicable law, or the consent by it to the filing of any such petition or to the appointment of an intervenor, receiver, receiver-manager, liquidator, assignee, trustee, sequestrator, examiner (or other similar official) of all or substantially all of its assets; (iv) the commencement against any Credit Party or any of its Subsidiaries of a proceeding in any court of competent jurisdiction under any bankruptcy or other applicable law (as now or hereafter in effect) seeking its liquidation, winding up, dissolution, reorganization, examinership, arrangement, adjustment, or the appointment of an intervenor, receiver, receiver-manager, liquidator, assignee, trustee, sequestrator, examiner (or other similar official), and any such proceeding shall continue undismissed, or any order, judgment or decree approving or ordering any of the foregoing shall continue unstayed or otherwise in effect, for a period of forty five (45) days; (v) the making by any Credit Party or any of its Subsidiaries of an assignment for the benefit of creditors, or the admission by it in writing of its inability to pay its debt generally as they become due; or (vi) any other event shall have occurred which under any applicable law would have an effect analogous to any of those events listed above in this subsection.
(e) One or more judgments against any Credit Party or any Subsidiary or attachments against any of their respective property, which in the aggregate exceed $1,000,000 (net of any anticipated insurance proceeds), and such judgment(s) remains unpaid, unstayed on appeal, undischarged, unbonded or undismissed for a period of thirty (30) days from the date of entry of such judgment.
(f) Any Authorization held by any Credit Party or any of its Subsidiaries shall have been suspended, cancelled or revoked, and such suspension, cancellation or revocation would reasonably be expected to have a Material Adverse Effect.
(g) Any Authorization necessary for the execution, delivery or performance of any Loan Document or for the validity or enforceability of any of the Obligations is not given or is withdrawn or ceases to remain in full force or effect.
(h) There is a failure to perform under any agreement to which any Credit Party is a party resulting in the acceleration by a third party of the maturity of any Indebtedness in an amount in excess of $5,000,000.
(i) The validity of any Loan Document shall be contested by any Credit Party or any Subsidiary, or any Applicable Law shall purport to render any material provision of any Loan Document invalid or unenforceable or shall purport to prevent or materially delay the performance or observance by any Credit Party of the Obligations.
(j) The Common Shares of Parent cease to be listed on the Principal Trading Markets or the Common Shares cease to be registered under Section 12 of the Exchange Act.
(k) The occurrence of a Conversion Failure.
Appears in 1 contract
Samples: Facility Agreement (Tribute Pharmaceuticals Canada Inc.)
General Acceleration Provision upon Events of Default. If one or more of the events specified in this Section 5.4 shall have happened and be continuing beyond the applicable cure period 5.5 (each, each an “Event of Default”)) shall have occurred and be continuing beyond any applicable cure period, the Required LendersPurchasers, by written notice to the Borrower Borrower, (any such notice, an “Acceleration Notice”), may declare the principal of, and accrued and unpaid interest on, all of the Notes Put Price or any part of any of them (together with any other amounts accrued or payable under the Loan Documents) thereof to be, and the same shall thereupon become, immediately due and payable, without any further notice and without any presentment, demand, or protest of any kind, all of which are hereby expressly waived by the Borrower, and take any further action available at law or in equity, including, without limitation, the sale of the Loan Notes and all other rights acquired in connection with the Loan:Notes; provided, however, that an Acceleration Notice shall be deemed to have been sent to Borrower immediately upon the occurrence of any event described in Section 5.5(e) and, in the case of a proceeding of the type described in Section 5.5(e)(iv), shall be deemed to have been withdrawn if such proceeding is dismissed or discontinued within the 90-day period provided for therein (absent the occurrence of any other Event of Default during such 90-day period):
(a) The Borrower A Purchaser shall have failed to make receive payment of (i) principal when duedue under the Notes, or (ii) interest or any other amounts due under the Notes or any other Obligations within five (5) Business Days of their due date; provided, however, that any amounts that the Borrower shall have elected to pay pursuant to a Share Issuance Notice shall not be deemed due under the Notes until (A) in the case of Daily Share Issuance Shares, the applicable Share Issuance Closing Date, and (B) in the case of any amounts to be paid in cash by the Borrower pursuant to Section 2.9(e), the first Trading Day immediately following the end of the applicable Share Issuance Period.
(ib) Any Credit Party The Borrower shall have failed to comply with the covenant set forth in Section 5.4.
(c) The Borrower shall have failed to comply in any material respect with the due observance or performance of any other covenant contained in this Agreement or any Note and such failure shall not have been cured by the Borrower within (i) 30 days after such failure in the case of a breach of Section 5.1(e)(i) (it being agreed that a cure of such breach within such period is “timely”, as such term is used in such Section), or (ii) 30 days after receiving written notice of such failure from the Purchasers in the case of any other covenant (other than the covenant described that contained in (a) above or as otherwise expressly provided in this Section 5.4) or in the other Loan Documents and such default is not remedied by the Borrower or waived by the Lenders within fifteen (15) days (inclusive of any extension periods or cure periods contained in any such covenant or provided by Applicable Laws) after the earlier of (A) receipt by any Credit Party of notice from the Lenders of such default, or (B) actual knowledge of any Credit Party of such default).
(cd) Any representation or warranty made by any Credit Party or any of its Subsidiaries the Borrower in any Loan Financing Document shall be have been incorrect, false or misleading in any material respect (except to the extent that such representation or warranty is qualified by reference to materiality or Material Adverse Effect, to which extent it shall be incorrect, false or misleading in any respect) as of the date it was made or deemed made.
(i) Any Credit Party or any of its Subsidiaries The Borrower shall generally be unable to pay its debts as such debts become due or be deemed to be unable to pay its debtsdue, or shall admit in writing its inability to pay its debts as they come due or shall make a general assignment for the benefit of creditors; (ii) any Credit Party or any of its Subsidiaries the Borrower shall declare a moratorium on the payment of its debts; (iii) the commencement by any Credit Party or any of its Subsidiaries the Borrower of proceedings to be adjudicated bankrupt or insolvent, or the consent by it to the commencement of bankruptcy or insolvency proceedings against it, or the filing by it of a petition or answer or consent seeking reorganization, examinership, intervention or other similar relief under any applicable law, or the consent by it to the filing of any such petition or to the appointment of an intervenor, receiver, receiver-manager, liquidator, assignee, trustee, sequestrator, examiner sequestrator (or other similar official) of all or substantially all any substantial part of its assets; (iv) the commencement against any Credit Party the Borrower or any all or substantially all of its Subsidiaries assets of a proceeding in any court of competent jurisdiction under any bankruptcy or other applicable law (as now or hereafter in effect) seeking its liquidation, winding up, dissolution, reorganization, examinership, arrangement, adjustment, or the appointment of an intervenor, receiver, receiver-manager, liquidator, assignee, trustee, sequestrator, examiner sequestrator (or other similar official), and any such proceeding shall continue undismissed, or any order, judgment or decree approving or ordering any of the foregoing shall continue unstayed or otherwise in effect, for a period of forty five ninety (4590) days; (v) the making by any Credit Party or any of its Subsidiaries the Borrower of an assignment for the benefit of creditors, or the admission by it in writing of its inability to pay its debt generally as they become due; or (vi) any other event shall have occurred which under any applicable law would have an effect analogous to any of those events listed above in this subsection.
(ef) One or more judgments against any Credit Party or any Subsidiary the Borrower taken as a whole or attachments against any of their respective its property, which in the aggregate exceed amount exceeds $1,000,000 (net of any anticipated insurance proceeds)2,500,000, and such judgment(s) remains unpaid, remain unstayed on appeal, undischarged, unbonded or undismissed for a period of thirty sixty (3060) days from the date of entry of such judgment.
(f) Any Authorization held by any Credit Party or any of its Subsidiaries shall have been suspended, cancelled or revoked, and such suspension, cancellation or revocation would reasonably be expected to have a Material Adverse Effectjudgment(s).
(g) Any Authorization necessary for The Borrower repudiates any of the execution, delivery Financing Documents or performance of any Loan Document or for challenges the validity or enforceability of any of the Obligations is not given or is withdrawn or ceases to remain in full force or effectFinancing Documents.
(h) There is a failure to perform under any agreement to which any Credit Party is a party resulting in the acceleration by a third party of the maturity of any Indebtedness in an amount in excess of $5,000,000.
(i) The validity of any Loan provision of any of the Financing Document shall be contested by any Credit Party legislative, executive or judicial body of any Subsidiaryjurisdiction, or any Applicable Law treaty, law, regulation, communiqué, decree, ordinance or policy of any jurisdiction shall purport to render any material provision of any Loan Financing Document invalid or unenforceable or shall purport to prevent or materially delay the performance or observance by any Credit Party the Borrower of the ObligationsObligations and the Parties are unable to negotiate a replacement provision pursuant to Section 6.7 below.
(i) There is a failure to perform in any agreement to which the Borrower is a party with a third party or parties resulting in the acceleration of the maturity of any Indebtedness in an amount in excess of $1,500,000 and such acceleration is not rescinded, or such Indebtedness is not contested in good faith or paid or otherwise discharged, within thirty (30) days after such acceleration.
(j) The Common Shares Cash and Cash Equivalents as of Parent cease December 30, 2011 are less than $10,000,000 or Cash and Cash Equivalents as of December 28, 2012 are less than $20,000,000. Notwithstanding the foregoing, no Event of Default shall be deemed to be listed on have occurred pursuant to Section 5.5(a) to the extent Borrower has failed to make any payment or effect any redemption pursuant to Section 2.2(a) as a result of a good faith dispute with the Purchasers as to the calculation of any Mandatory Prepayment Amount; provided that the Borrower shall have redeemed the Notes in accordance with Section 2.2(a) in an aggregate Principal Trading Markets or Amount equal to the Common Shares cease undisputed portion of such Mandatory Redemption Amount and that to be registered under Section 12 the extent the parties have not resolved such dispute within 30 days, the parties shall have referred such dispute to a firm of independent certified public accountants as the Borrower and the Purchasers shall mutually select (the “Auditor”). Each of the Exchange ActBorrower and the Purchasers shall submit to the Auditor a calculation of the Mandatory Prepayment Amount. The Auditor shall review the such calculations and the financial statements and other records of the Borrower and shall determine the amount of any Mandatory Prepayment Amount, which determination shall be binding upon the Purchasers and the Borrower (absent manifest error) and made and certified to the Purchasers and the Borrower as promptly as practicable but in any event not later than 30 days after its engagement . The Auditor shall be given full access to the books and records of the Borrower to enable it to make such determination. The fees of the Auditor shall be paid by the parties whose calculation of the Mandatory Prepayment Amount was the furthest from the Mandatory Prepayment Amount determined by the Auditors.
(k) The occurrence of a Conversion Failure.
Appears in 1 contract
General Acceleration Provision upon Events of Default. If one or more of the events specified in this Section 5.4 shall have happened and be continuing beyond the applicable cure period (each, an “Event of Default”), the Required Lenders, by written notice to the Borrower (an “Acceleration Notice”)Borrower, may declare the principal of, and accrued and unpaid interest on, all of the Notes or any part of any of them (together with any other amounts accrued or payable under the Loan Documents) to be, and the same shall thereupon become, immediately due and payable, without any further notice and without any presentment, demand, or protest of any kind, all of which are hereby expressly waived by the Borrower, and take any further action available at law or in equity, including, without limitation, the sale of the Loan and all other rights acquired in connection with the Loan:
(a) The Borrower shall have failed to make payment of (i) principal when due, or (ii) and interest or any other amounts due under the Notes or any other Obligations within five (5) Business Days of their due datewhen due.
(ib) Any Credit Party The Borrower shall have failed to comply with the due observance or performance of any covenant contained in this Agreement any Loan Document (other than the covenant covenants described in (a) above or as otherwise expressly provided in this Section 5.4above) or in the other Loan Documents and such default is failure shall not remedied have been cured by the Borrower or waived by the Lenders within fifteen (15) 30 days (inclusive after receiving written notice of any extension periods or cure periods contained in any such covenant or provided by Applicable Laws) after the earlier of (A) receipt by any Credit Party of notice failure from the Lenders of such default, or (B) actual knowledge of any Credit Party of such defaultLenders.
(c) Any representation or warranty made by any Credit Party or any of its Subsidiaries the Borrower in any Loan Document shall be have been incorrect, false or misleading in any material respect (except to the extent that such representation or warranty is qualified by reference to materiality or Material Adverse Effect, to which extent it shall be have been incorrect, false or misleading in any respect) as of the date it was made or deemed made.
(i) Any Credit Party or any of its Subsidiaries The Borrower shall generally be unable to pay its debts as such debts become due or be deemed to be unable to pay its debtsdue, or shall admit in writing its inability to pay its debts as they come due or shall make a general assignment for the benefit of creditors; (ii) any Credit Party or any of its Subsidiaries the Borrower shall declare a moratorium on the payment of its debts; (iii) the commencement by any Credit Party or any of its Subsidiaries the Borrower of proceedings to be adjudicated bankrupt or insolvent, or the consent by it to the commencement of bankruptcy or insolvency proceedings against it, or the filing by it of a petition or answer or consent seeking reorganization, examinership, intervention or other similar relief under any applicable law, or the consent by it to the filing of any such petition or to the appointment of an intervenor, receiver, receiver-manager, liquidator, assignee, trustee, sequestrator, examiner sequestrator (or other similar official) of all or substantially all of its assets; (iv) the commencement against any Credit Party or any of its Subsidiaries the Borrower of a proceeding in any court of competent jurisdiction under any bankruptcy or other applicable law (as now or hereafter in effect) seeking its liquidation, winding up, dissolution, reorganization, examinership, arrangement, adjustment, or the appointment of an intervenor, receiver, receiver-manager, liquidator, assignee, trustee, sequestrator, examiner sequestrator (or other similar official), and any such proceeding shall continue undismissed, or any order, judgment or decree approving or ordering any of the foregoing shall continue unstayed or otherwise in effect, for a period of forty forty-five (45) days; (v) the making by any Credit Party or any of its Subsidiaries the Borrower of an assignment for the benefit of creditors, or the admission by it in writing of its inability to pay its debt debts generally as they become due; or (vi) any other event shall have occurred which under any applicable law would have an effect analogous to any of those events listed above in this subsection.
(e) One or more final judgments in excess of $100,000 (net of any applicable insurance) against any Credit Party the Borrower or any Subsidiary or attachments against any material portion (taken as a whole) of their respective property, which in the aggregate exceed $1,000,000 (net of any anticipated insurance proceeds), and such judgment(sproperty remain(s) remains unpaid, unstayed on appeal, undischarged, unbonded or undismissed for a period of thirty (30) 60 days from the date of entry of such judgment.
(f) Any Authorization held by any Credit Party or any authorization of its Subsidiaries shall have been suspended, cancelled or revoked, and such suspension, cancellation or revocation would reasonably be expected to have a Material Adverse Effect.
(g) Any Authorization Government Authority necessary for the execution, delivery or performance of any Loan Document or for the validity or enforceability of any of the Obligations under any Loan Document is not given or is withdrawn or ceases to remain in full force or effect.
(h) There is a failure to perform under any agreement to which any Credit Party is a party resulting in the acceleration by a third party of the maturity of any Indebtedness in an amount in excess of $5,000,000.
(ig) The validity of any material provision of any Loan Document shall be contested by any Credit Party the Borrower or any Subsidiary, or any Applicable Law shall purport to render any material provision of any Loan Document invalid or unenforceable or shall purport to prevent or materially delay the performance or observance by any Credit Party the Borrower of the Obligations.
(jh) The Common Shares There is a failure to perform in any agreement to which the Borrower or any Subsidiary is a party with a third party or parties resulting in a right by such third party or parties to accelerate the maturity of Parent cease to be listed on the Principal Trading Markets or the Common Shares cease to be registered under Section 12 any Indebtedness for borrowed money in an amount in excess of the Exchange Act$200,000 and such acceleration is not rescinded within 60 days.
(ki) The occurrence If any Governmental Authority terminates, suspends, or imposes any material restrictions on the business or operations of Borrower or any Subsidiary which has a Conversion FailureMaterial Adverse Effect.
(j) [**].
Appears in 1 contract
Samples: Facility Agreement (Infinity Pharmaceuticals, Inc.)
General Acceleration Provision upon Events of Default. If one or more of the events specified in this Section 5.4 shall have happened and be continuing beyond the applicable cure period (each, an “Event of Default”), the Required Lenders, by written notice to the Borrower (an “Acceleration Notice”)Borrower, may declare the principal of, and accrued and unpaid interest on, all of the Notes or any part of any of them (together with any other amounts accrued or payable under the Loan Transaction Documents) to be, and the same shall thereupon become, immediately due and payable, without any further notice and without any presentment, demand, or protest of any kind, all of which are hereby expressly waived by the Borrower, and take any further action available at law or in equity, including, without limitation, the sale of the Loan and all other rights acquired in connection with the Loan:
(a) The Borrower shall have failed to make payment of (i) principal when due, or (ii) and interest or any other amounts due under the Notes or any other Obligations within five (5) Business Days of their due datewhen due.
(ib) Any Credit Party The occurrence of a Conversion Failure or a Registration Failure (as such terms are fined in the Notes).
(c) The Borrower shall have failed to comply with the due observance or performance of any covenant contained in this Agreement any Transaction Document (other than the covenant covenants described in (a) above or as otherwise expressly provided in this Section 5.4and (b) or in the other Loan Documents above) and such default is failure shall not remedied have been cured by the Borrower or waived by the Lenders within fifteen (15) 30 days (inclusive after receiving written notice of any extension periods or cure periods contained in any such covenant or provided by Applicable Laws) after the earlier of (A) receipt by any Credit Party of notice failure from the Lenders of such default, or (B) actual knowledge of any Credit Party of such defaultLenders.
(cd) Any representation or warranty made by any Credit Party or any of its Subsidiaries the Borrower in any Loan Transaction Document shall be have been incorrect, false or misleading in any material respect (except to the extent that such representation or warranty is qualified by reference to materiality or Material Adverse Effect, to which extent it shall be incorrect, false or misleading in any respect) as of the date it was made or deemed made.
(i) Any Credit Party or any of its Subsidiaries The Borrower shall generally be unable to pay its debts as such debts become due or be deemed to be unable to pay its debtsdue, or shall admit in writing its inability to pay its debts as they come due or shall make a general assignment for the benefit of creditors; (ii) any Credit Party or any of its Subsidiaries the Borrower shall declare a moratorium on the payment of its debts; (iii) the commencement by any Credit Party or any of its Subsidiaries the Borrower of proceedings to be adjudicated bankrupt or insolvent, or the consent by it to the commencement of bankruptcy or insolvency proceedings against it, or the filing by it of a petition or answer or consent seeking reorganization, examinership, intervention or other similar relief under any applicable law, or the consent by it to the filing of any such petition or to the appointment of an intervenor, receiver, receiver-manager, liquidator, assignee, trustee, sequestrator, examiner sequestrator (or other similar official) of all or substantially all of its assets; (iv) the commencement against any Credit Party or any of its Subsidiaries the Borrower of a proceeding in any court of competent jurisdiction under any bankruptcy or other applicable law (as now or hereafter in effect) seeking its liquidation, winding up, dissolution, reorganization, examinership, arrangement, adjustment, or the appointment of an intervenor, receiver, receiver-manager, liquidator, assignee, trustee, sequestrator, examiner sequestrator (or other similar official), and any such proceeding shall continue undismissed, or any order, judgment or decree approving or ordering any of the foregoing shall continue unstayed or otherwise in effect, for a period of forty five ninety (4590) days; (v) the making by any Credit Party or any of its Subsidiaries the Borrower of an assignment for the benefit of creditors, or the admission by it in writing of its inability to pay its debt generally as they become due; or (vi) any other event shall have occurred which under any applicable law would have an effect analogous to any of those events listed above in this subsection.
(ef) One or more judgments against any Credit Party the Borrower or any Subsidiary or attachments against any of their respective property, which in the aggregate exceed $1,000,000 50,000 (net of any anticipated insurance proceedsnot covered by insurance), and such judgment(sor which could have a Material Adverse Effect remain(s) remains unpaid, unstayed on appeal, undischarged, unbonded or undismissed for a period of thirty (30) 30 days from the date of entry of such judgment.
(fg) Any Authorization held by the Borrower from any Credit Party or any of its Subsidiaries Government Authority shall have been suspended, cancelled canceled or revoked, revoked and such suspension, cancellation or revocation would reasonably be expected to shall not have a Material Adverse Effectbeen cured within 30 days.
(gh) Any Authorization authorization necessary for the execution, delivery or performance of any Loan Transaction Document or for the validity or enforceability of any of the Obligations under any Transaction Document is not given or is withdrawn or ceases to remain in full force or effect.
(h) There is a failure to perform under any agreement to which any Credit Party is a party resulting in the acceleration by a third party of the maturity of any Indebtedness in an amount in excess of $5,000,000.
(i) The validity of any Loan Transaction Document shall be contested by any Credit Party or any Subsidiarythe Borrower, or any Applicable Law treaty, law, regulation, communiqué, decree, ordinance or policy of any jurisdiction shall purport to render any material provision of any Loan Transaction Document invalid or unenforceable or shall purport to prevent or materially delay the performance or observance by any Credit Party the Borrower of the Obligations.
(j) The Common Shares of Parent cease Borrower has failed to be listed on comply in any material respect with the Principal Trading Markets or the Common Shares cease to be registered under Section 12 reporting requirements of the Exchange Act, if applicable.
(k) The occurrence There is a failure to perform in any agreement to which the Borrower or any Subsidiary is a party with a third party or parties resulting in a right by such third party or parties to accelerate the maturity of a Conversion Failureany Indebtedness for borrowed money in an amount in excess of $50,000.
(l) If an Event of Default pursuant to the Warrants (as such term is defined in the Warrants) shall have occurred.
(m) If the Proposal is not approved by December 1, 2012.
Appears in 1 contract
Samples: Facility Agreement (Tengion Inc)
General Acceleration Provision upon Events of Default. If one or more of the events specified in this Section 5.4 4.6 shall have happened and be continuing beyond the applicable cure period (each, an “Event of Default”), the Required Lenders, by written notice to the Borrower (an “Acceleration Notice”), may declare the principal of, and accrued and unpaid interest on, all of the Notes or any part of any of them (together with any other amounts accrued or payable under the Loan Documents) to be, and the same shall thereupon become, immediately due and payable, without any further notice and without any presentment, demand, or protest of any kind, all of which are hereby expressly waived by the Borrower, and take any further action available at law or in equity, including, without limitation, the sale of the Loan and all other rights acquired in connection with the Loan:
(a) The Borrower shall have failed to make payment of (i) principal when due, or (ii) and interest or any other amounts due under the Notes or any other Obligations within when due and such failure continues for a period of five (5) Business Days of their due datedays.
(i) Any Credit Party The Borrower shall have failed to comply with the due observance or performance of any covenant contained in Section 4.3 (iv)(i) or Section 4.4 of this Agreement or (ii) the Borrower shall have failed to comply with the due observance or performance of any other covenant contained in the Loan Documents (other than the covenant occurrences described in (a) above or as otherwise expressly provided in other provisions of this Section 5.44.6 for which a different grace or cure period is specified or for which no grace or cure period is specified and thereby constitute immediate Events of Default) or in the other Loan Documents and such default is not remedied by the Borrower or waived by the Lenders within fifteen (15) days (inclusive of any extension periods or cure periods contained in any such covenant or provided by Applicable Laws) after the earlier of (A) receipt by any Credit Party the Borrower of notice from the Lenders of such default, or (B) actual knowledge of the Borrower or any other Credit Party of such default.
(c) If an Event of Default (as such term is defined in the Warrants) shall have occurred.
(d) Any representation or warranty made by any Credit Party or any of its Subsidiaries the Borrower in any Loan Document shall be have been incorrect, false or misleading in any material respect (except to the extent that such representation or warranty is qualified by reference to materiality or Material Adverse Effect, to which extent it shall be have been incorrect, false or misleading in any respect) as of the date it was made or deemed made.
(i) Any Credit Party or any of its Subsidiaries The Borrower shall generally be unable to pay its debts as such debts become due or be deemed to be unable to pay its debtsdue, or shall admit in writing its inability to pay its debts as they come due or shall make a general assignment for the benefit of creditors; (ii) any Credit Party or any of its Subsidiaries the Borrower shall declare a moratorium on the payment of its debts; (iii) the commencement by any Credit Party or any of its Subsidiaries the Borrower of proceedings to be adjudicated bankrupt or insolvent, or the consent by it to the commencement of bankruptcy or insolvency proceedings against it, or the filing by it of a petition or answer or consent seeking reorganization, examinership, intervention or other similar relief under any applicable law, or the consent by it to the filing of any such petition or to the appointment of an intervenor, receiver, receiver-manager, liquidator, assignee, trustee, sequestrator, examiner sequestrator (or other similar official) of all or substantially all of its assets; (iv) the commencement against any Credit Party or any of its Subsidiaries the Borrower of a proceeding in any court of competent jurisdiction under any bankruptcy or other applicable law (as now or hereafter in effect) seeking its liquidation, winding up, dissolution, reorganization, examinership, arrangement, adjustment, or the appointment of an intervenor, receiver, receiver-manager, liquidator, assignee, trustee, sequestrator, examiner sequestrator (or other similar official), and any such proceeding shall continue undismissed, or any order, judgment or decree approving or ordering any of the foregoing shall continue unstayed or otherwise in effect, for a period of forty forty-five (45) days; (v) the making by any Credit Party or any of its Subsidiaries the Borrower of an assignment for the benefit of creditors, or the admission by it in writing of its inability to pay its debt generally as they become due; or (vi) any other event shall have occurred which under any applicable law would have an effect analogous to any of those events listed above in this subsection.
(ef) One or more judgments in excess of $250,000 against any Credit Party the Borrower or any Subsidiary or attachments against any of their respective property, which in the aggregate exceed $1,000,000 (net of any anticipated insurance proceeds), and such judgment(sproperty remain(s) remains unpaid, unstayed on appeal, undischarged, unbonded or undismissed for a period of thirty (30) 30 days from the date of entry of such judgment.
(f) Any Authorization held by any Credit Party or any of its Subsidiaries shall have been suspended, cancelled or revoked, and such suspension, cancellation or revocation would reasonably be expected to have a Material Adverse Effect.
(g) Any Authorization authorization of a Government Authority necessary for the execution, delivery or performance of any Loan Document or for the validity or enforceability of any of the Obligations under any Loan Document is not given or is withdrawn or ceases to remain in full force or effect.
(h) There is a failure to perform under any agreement to which any Credit Party is a party resulting in the acceleration by a third party of the maturity of any Indebtedness in an amount in excess of $5,000,000.
(i) The validity of any Loan Document shall be contested by any Credit Party the Borrower or any Subsidiary, or any Applicable Law shall purport to render any material provision of any Loan Document invalid or unenforceable or shall purport to prevent or materially delay the performance or observance by any Credit Party the Borrower of the Obligations.
(i) There is a failure to perform in any Material Agreement to which the Borrower or any Subsidiary is a party with a third party or parties resulting in a right by such third party or parties to accelerate the maturity of any Indebtedness for borrowed money in an amount in excess of $100,000.
(j) The Common Shares of Parent cease to be listed If any Governmental Authority terminates, suspends, or imposes any material restrictions on the Principal Trading Markets business or the Common Shares cease to be registered under Section 12 operations of the Exchange ActBorrower or any Subsidiary.
(k) The occurrence If at any time after a Share Authorization, Borrower fails to have authorized and unissued shares of a Conversion FailureCommon Stock to cover (in addition to any shares issuable upon conversion or exercise of any convertible or exercisable shares of the Borrower outstanding) all shares issuable on exercise of the Warrants or conversion of the Notes.
Appears in 1 contract
Samples: Facility Agreement (Cytomedix Inc)
General Acceleration Provision upon Events of Default. If one or more of the events specified in this Section 5.4 shall have happened and be continuing beyond the applicable cure period (each, an “Event Events of Default”)) shall have occurred and be continuing, (x) the Required LendersLender, by written notice to the Borrower Borrower, declare the Commitments to be terminated forthwith, whereupon the Commitments shall forthwith terminate and/or (an “Acceleration Notice”)y) the Lender, may by notice to the Borrower, declare the principal of, of and all accrued and unpaid interest on, all of on the Notes Loans or any part of any of them (together with any other amounts accrued or payable under the Loan Documentsthis Agreement) to be, and the same shall thereupon become, immediately due and payablepayable (anything in this Agreement to the contrary notwithstanding), without any further notice and without any presentment, demand, demand or protest of any kind, all of which are hereby expressly waived by the Borrower, and take any further action available at law or in equity, including, without limitation, the sale of the Loan and all other rights acquired in connection with the Loan:
(a) The Borrower default shall have failed to make occurred in the payment when due (whether by acceleration or otherwise) of any principal of the Loans;
(b) default shall have occurred in the payment when due (whether by acceleration or otherwise) of any interest on the Loans or any other amount whatsoever payable hereunder or under any of the other Loan Documents, and such default under this clause (b) shall have continued unremedied for a period of three Business Days;
(c) (i) principal when due, or (ii) interest or any other amounts due under the Notes or any other Obligations within five (5) Business Days of their due date.
(i) Any Credit Party default shall have failed to comply with occurred in the due observance or performance of any term, covenant or agreement contained in this Agreement clause (other than the covenant described in a)(iii), (ab) above through (e) (inclusive), or as otherwise expressly provided in this (h) through (j) (inclusive) of Section 5.4) 6.01 or in Section 6.02; or (ii) default shall have occurred in the observance or performance of any other term, covenant or agreement contained in any Loan Documents Document, and such default is not remedied shall have continued unremedied for a period of 30 days after the Borrower becomes aware, or should have become aware, of such default;
(d) any representation, warranty or statement made by the Borrower or waived by in the Lenders within fifteen (15) days (inclusive Loan Documents in connection with the execution and delivery of any extension periods or cure periods contained in any such covenant or provided by Applicable Laws) after the earlier of (A) receipt by any Credit Party of notice from the Lenders of such default, or (B) actual knowledge of any Credit Party of such default.
(c) Any representation or warranty made by any Credit Party or any of its Subsidiaries in any Loan Document shall or any Disbursement or any other Loan Document or in any report, certificate, or other document delivered by or on behalf of the Borrower to the Lender pursuant to any Loan Document, proves to be incorrect, false materially incorrect or misleading in any material respect (except to the extent that such representation when made or warranty is qualified by reference to materiality or deemed made and would cause a Material Adverse Effect;
(e) any government or Governmental Authority shall have condemned, to which extent it shall be incorrectnationalized, false seized, or misleading in otherwise expropriated all or any respect) as substantial part of the date it was made Property of the Borrower, or deemed made.shall have assumed custody or control of such Property or of the business or operations of the Borrower, or shall have taken any action for the dissolution or disestablishment of the Borrower or any action that would prevent or otherwise interrupt the Borrower from carrying on its business or operations or a substantial part thereof;
(f) the Borrower shall (i) Any Credit Party institute any proceeding or voluntary case seeking to adjudicate it as bankrupt or insolvent, or seeking dissolution, liquidation, winding up, reorganization, arrangement, adjustment, protection, relief or composition of it or its debts under any Law relating to bankruptcy, insolvency, reorganization or relief of debtors, or seeking the entry of an order for relief or the appointment of a receiver, trustee, receiver and manager, interim receiver, sequestration, administrator, monitor, custodian or other similar official for the Borrower or all or a substantial part of its Subsidiaries shall Property; (ii) consent to the entry of an order for relief in an involuntary bankruptcy case or to the conversion of an involuntary case to a voluntary case under bankruptcy, insolvency or reorganization Law; (iii) be generally be unable to pay not paying its debts generally as such debts become due or be deemed to be unable to pay its debts, (except such debts are being contested by the Borrower) or shall admit in writing its inability to pay its debts as they come due or shall generally; (iv) make a general assignment for the benefit of creditors; (iiv) any Credit Party offer, solicit, or any seek the consent of its Subsidiaries shall declare a moratorium on the payment of its debts; (iii) the commencement by any Credit Party or any of its Subsidiaries of proceedings to be adjudicated bankrupt or insolvent, or the consent by it creditors to the commencement of bankruptcy or insolvency proceedings against it, or the filing by it execution of a petition or answer or consent seeking reorganization, examinership, intervention or other similar relief under any applicable law, or the consent by it to the filing pre-packaged out of any such petition or to the appointment of an intervenor, receiver, receiver-manager, liquidator, assignee, trustee, sequestrator, examiner court agreement (or other similar officialacuerdo preventivo extrajudicial) of all or substantially all of its assets; (iv) the commencement against any Credit Party or any of its Subsidiaries of a proceeding in any court of competent jurisdiction under any bankruptcy or other applicable law (as now or hereafter in effect) seeking its liquidation, winding up, dissolution, reorganization, examinership, arrangement, adjustment, or the appointment of an intervenor, receiver, receiver-manager, liquidator, assignee, trustee, sequestrator, examiner (or other similar official), and any such proceeding shall continue undismissed, or any order, judgment or decree approving or ordering any of the foregoing shall continue unstayed or otherwise in effect, for a period of forty five (45) days; (v) the making by any Credit Party or any of its Subsidiaries of an assignment for the benefit of creditors, or the admission by it in writing of its inability to pay its debt generally as they become due; or (vi) take any other event shall have occurred which under any applicable law would have an action to authorize or effect analogous to any of those events listed the actions set forth above in this subsection.Section 7.01(f);
(eg) One Any Indebtedness of the Borrower to finance the Acquisition shall have been accelerated and not cured within 15 calendar days after such acceleration;
(h) a court having jurisdiction in the premises shall enter a decree or order for relief, including the appointment of a receiver, liquidator, sequestrator, trustee, conservator, manager, administrator, monitor, custodian or similar official for the Borrower or over all or a substantial part of its Property and, in any such case, such proceeding or petition shall not be dismissed, stayed, bonded or discharged within 120 days;
(i) Any Indebtedness of the Borrower for an aggregate outstanding principal amount of US$25,000,000 or more or its equivalent in any other currency (“Material Debt”), shall have been accelerated and the Borrower has not paid or cured such acceleration within 15 calendar days after such acceleration;
(j) one or more final judgments against any Credit Party or any Subsidiary the Borrower or attachments against any of their respective propertyits Property, which in the aggregate exceed $1,000,000 US$50,000,000 (net to the extent not covered by independent third party insurance provided by insurers (x) of any anticipated insurance proceedsthe highest claims paying rating or financial strength, which do not dispute such coverage and (y) which are not subject to an insolvency proceeding), and such judgment(s) remains if the operation or result of which could cause a Material Adverse Effect, remain unpaid, unstayed on appeal, undischarged, unbonded unbonded, or undismissed for a period of thirty (30) 90 days from the date of entry of such judgment.or more;
(fk) Any Authorization held by any Credit Party Governmental Authority shall take any action (i) canceling, suspending or deferring the obligation of the Borrower to pay any amount of principal or interest payable under this Agreement or any other Loan Document, including a general moratorium, (ii) preventing the fulfillment by the Borrower of its Subsidiaries payment obligations under this Agreement or any other Loan Document, (iii) requiring the Borrower to participate in any facility or exercise involving the rescheduling of the Borrower’s debts, or (iv) which has the effect of prohibiting the payment of Dollars by the Borrower to the Lender; or
(l) the Borrower shall have been suspendedcontest the validity, cancelled legality or revoked, and such suspension, cancellation or revocation would reasonably be expected enforceability of any provision of this Agreement;
(m) the Lender shall cease at any time to have a Material Adverse Effect.legal, valid and perfected pledge of PEPASA’s shares under the Stock Pledge Agreement;
(gn) Any Authorization necessary for default shall have occurred and not been cured in the execution, delivery due observance or performance of any Loan Document term, covenant or for agreement contained in the validity Stock Pledge Agreement. Notwithstanding any other provisions of this Agreement, if an Event of Default under Section 7.01(f) or enforceability of any of the Obligations is not given or is withdrawn or ceases to remain in full force or effect.
(h) There is a failure to perform shall occur, the principal of, and all accrued interest on, the Loans (together with any other amounts accrued or payable under this Agreement) shall thereupon become immediately due and payable without any agreement to which any Credit Party is a party resulting in the acceleration by a third party of the maturity presentment, demand, protest or notice of any Indebtedness kind, all of which are hereby expressly waived by the Borrower. No course of dealing and no delay in an amount in excess of $5,000,000.
(i) The validity of exercising, or omission to exercise, any Loan Document shall be contested by right, power or remedy accruing to the Lender upon any Credit Party or any Subsidiarydefault under this Agreement, or any Applicable Law other agreement, shall purport impair any such right, power or remedy or be construed to render any material provision be a waiver thereof or an acquiescence therein; nor shall the action of the Lender in respect of any Loan Document invalid such default, or unenforceable any acquiescence by it therein, affect or shall purport to prevent impair any right, power or materially delay the performance or observance by any Credit Party remedy of the ObligationsLender in respect of any other default.
(j) The Common Shares of Parent cease to be listed on the Principal Trading Markets or the Common Shares cease to be registered under Section 12 of the Exchange Act.
(k) The occurrence of a Conversion Failure.
Appears in 1 contract
Samples: Credit Agreement (Pampa Energy Inc.)
General Acceleration Provision upon Events of Default. If one or more of the events specified in this Section 5.4 5.5 shall have happened and be continuing beyond the applicable cure period (each, an “Event of Default”), the Required Requisite Lenders, by written notice to the Borrower (an “Acceleration Notice”)Borrower, may cancel the Borrower’s right to request Disbursements and declare the principal of, and accrued and unpaid interest on, all of the Notes or any part of any of them (together with any other amounts accrued or payable under the Loan Documentsthis Agreement) to be, and the same shall thereupon become, immediately due and payable, without any further notice and without any presentment, demand, or protest of any kind, all of which are hereby expressly waived by the Borrower, and take any further action available at law or in equity, including, without limitation, the sale of the Loan and all other rights acquired in connection with the Loan:
(a) The Borrower A Lender shall have failed to make receive payment of (i) principal when due, or (ii) interest or and any other amounts due under the Loan or the Notes or any other Obligations within five (5) Business Days of their due date.
(ib) Any Credit Party The Borrower shall have failed to comply with the due observance or performance of any other covenant contained in this Agreement (other than the covenant described in (a) above or as otherwise expressly provided in this Section 5.4) or in the other Loan Documents any Note and such default is failure could reasonable be expected to result in a Material Adverse Effect and shall not remedied have been cured by the Borrower or waived by the Lenders within fifteen (15) 30 days (inclusive after receiving written notice of any extension periods or cure periods contained in any such covenant or provided by Applicable Laws) after the earlier of (A) receipt by any Credit Party of notice failure from the Lenders of such default, or (B) actual knowledge of any Credit Party of such defaultLenders.
(c) Any representation or warranty made by any Credit Party or any of its Subsidiaries the Borrower in any Loan Financing Document shall be have been incorrect, false or misleading in any material respect (except to the extent that such representation or warranty is qualified by reference to materiality or Material Adverse Effect, to which extent it shall be incorrect, false or misleading in any respect) as of the date it was made or made, deemed made, reaffirmed or confirmed and as a result thereof, the Borrower could reasonably be expected to incur a Material Adverse Effect.
(i) Any Credit Party or any of its Subsidiaries The Borrower shall generally be unable to pay its debts as such debts become due or be deemed to be unable to pay its debtsdue, or shall admit in writing its inability to pay its debts as they come due or shall make a general assignment for the benefit of creditors; (ii) any Credit Party or any of its Subsidiaries the Borrower shall declare a moratorium on the payment of its debts; (iii) the commencement by any Credit Party or any of its Subsidiaries the Borrower of proceedings to be adjudicated bankrupt or insolvent, or the consent by it to the commencement of bankruptcy or insolvency proceedings against it, or the filing by it of a petition or answer or consent seeking reorganization, examinership, intervention or other similar relief under any applicable law, or the consent by it to the filing of any such petition or to the appointment of an intervenor, receiver, receiver-manager, liquidator, assignee, trustee, sequestrator, examiner sequestrator (or other similar official) of all or substantially all of its assets; (iv) the commencement against any Credit Party or any of its Subsidiaries the Borrower of a proceeding in any court of competent jurisdiction under any bankruptcy or other applicable law (as now or hereafter in effect) seeking its liquidation, winding up, dissolution, reorganization, examinership, arrangement, adjustment, or the appointment of an intervenor, receiver, receiver-manager, liquidator, assignee, trustee, sequestrator, examiner sequestrator (or other similar official), and any such proceeding shall continue undismissed, or any order, judgment or decree approving or ordering any of the foregoing shall continue unstayed or otherwise in effect, for a period of forty five ninety (4590) days; (v) the making by any Credit Party or any of its Subsidiaries the Borrower of an assignment for the benefit of creditors, or the admission by it in writing of its inability to pay its debt generally as they become due; or (vi) any other event shall have occurred which under any applicable law would have an effect analogous to any of those events listed above in this subsection.
(e) One or more judgments against any Credit Party or any Subsidiary the Borrower taken as a whole or attachments against any of their respective its property, which in the aggregate exceed $1,000,000 (net of any anticipated insurance proceeds)250,000, and such judgment(sor which could have a Material Adverse Effect remain(s) remains unpaid, unstayed on appeal, undischarged, unbonded or undismissed for a period of thirty (30) days from the date of entry of such judgment.
(f) Any Authorization license, permit or approval held by the Borrower from any Credit Party or any of its Subsidiaries Government Authority shall have been suspended, cancelled canceled or revoked, revoked and such suspension, cancellation or revocation would could reasonably be expected to have a Material Adverse Effect, and such suspension, cancellation or revocation shall not have been cured within 30 days.
(g) Any Authorization authorization necessary for the execution, delivery or performance of any Loan Financing Document or for the validity or enforceability of any of the Obligations under any Financing Document is not given or is withdrawn or ceases to remain in full force or effect.
(h) There is a failure to perform under any agreement to which any Credit Party is a party resulting in the acceleration by a third party of the maturity of any Indebtedness in an amount in excess of $5,000,000.
(i) The validity of or any Loan Financing Document shall be contested by any Credit Party legislative, executive or judicial body of any Subsidiaryjurisdiction, or any Applicable Law treaty, law, regulation, communiqué, decree, ordinance or policy of any jurisdiction shall purport to render any material provision of any Loan Financing Document invalid or unenforceable or shall purport to prevent or materially delay the performance or observance by any Credit Party the Borrower of the Obligations, and the parties are unable to negotiate a replacement provision pursuant to Section 6.7 below.
(i) The Borrower has failed to comply in any material respect with the reporting requirements of the Exchange Act, unless corrected by the Borrower promptly (if capable of such correction) through the filing of an amendment to an existing report or making an appropriate subsequent filing with the SEC.
(j) The Common Shares There is a failure to perform in any agreement to which the Borrower is a party with a third party or parties resulting in a right by such third party or parties to accelerate the maturity of Parent cease to be listed on the Principal Trading Markets or the Common Shares cease to be registered under Section 12 any Indebtedness for borrowed money in an amount in excess of the Exchange Act$250,000.
(k) The occurrence of a Conversion Failure.
Appears in 1 contract
Samples: Facility Agreement (Insulet Corp)
General Acceleration Provision upon Events of Default. If one or more of the events specified in this Section 5.4 shall have happened and be continuing beyond the applicable cure period 5.5 (each, each an “Event of Default”)) shall have happened, the Required Lenders, by written notice to the Borrower (any such notice, an “Acceleration Notice”), may cancel the Borrower’s right to request Disbursements and declare the principal of, and accrued and unpaid interest on, all of the Notes Loan or any part of any of them thereof (together with any other amounts accrued or payable under the Loan Documentsthis Agreement) to be, and the same shall thereupon become, immediately due and payable, without any further notice and without any presentment, demand, or protest of any kind, all of which are hereby expressly waived by the Borrower, and take any further action available at law or in equity, including, without limitation, the sale of the Loan and all other rights acquired in connection with the Loan:; provided, however, that an Acceleration Notice shall be deemed to have been sent to Borrower immediately upon the occurrence of any event described in Section 5.5(d) and, in the case of a proceeding of the type described in Section 5.5(d)(iv), shall be deemed to have been withdrawn if such proceeding is dismissed or discontinued within the 90-day period provided for therein (absent the occurrence of any other Event of Default during such 90-day period):
(a) A Lender shall have failed to receive payment (i) when due of principal or interest under the Loan or (ii) within five days of the due date of any other amounts due under this Agreement or the Notes.
(b) The Borrower shall have failed to make payment of (i) principal when due, or (ii) interest or comply in any other amounts due under the Notes or any other Obligations within five (5) Business Days of their due date.
(i) Any Credit Party shall have failed to comply material respect with the due observance or performance of any other covenant contained in this Agreement (other than the covenant described in (a) above or as otherwise expressly provided in this Section 5.4) or in the other Loan Documents any Note and such failure shall not have been cured by Borrower within 15 days after receiving written notice of such default is not remedied by the Borrower or waived by the Lenders within fifteen (15) days (inclusive of any extension periods or cure periods contained in any such covenant or provided by Applicable Laws) after the earlier of (A) receipt by any Credit Party of notice failure from the Lenders of such default, or (B) actual knowledge of any Credit Party of such defaultLenders.
(c) Any representation or warranty made by any Credit Party or any of its Subsidiaries the Borrower in any Loan Financing Document shall be have been incorrect, false or misleading in any material respect (except to the extent that such representation or warranty is qualified by reference to materiality or Material Adverse Effect, to which extent it shall be incorrect, false or misleading in any respect) as of the date it was made or made, deemed made, reaffirmed or confirmed.
(i) Any Credit Party or any of its Subsidiaries The Borrower shall generally be unable to pay its debts as such debts become due or be deemed to be unable to pay its debtsdue, or shall admit in writing its inability to pay its debts as they come due or shall make a general assignment for the benefit of creditors; (ii) any Credit Party or any of its Subsidiaries the Borrower shall declare a moratorium on the payment of its debts; (iii) the commencement by any Credit Party or any of its Subsidiaries the Borrower of proceedings to be adjudicated bankrupt or insolvent, or the consent by it to the commencement of bankruptcy or insolvency proceedings against it, or the filing by it of a petition or answer or consent seeking reorganization, examinership, intervention or other similar relief under any applicable law, or the consent by it to the filing of any such petition or to the appointment of an intervenor, receiver, receiver-manager, liquidator, assignee, trustee, sequestrator, examiner sequestrator (or other similar official) of all or substantially all of its assets; (iv) the commencement against any Credit Party or any of its Subsidiaries the Borrower of a proceeding in any court of competent jurisdiction under any bankruptcy or other applicable law (as now or hereafter in effect) seeking its liquidation, winding up, dissolution, reorganization, examinership, arrangement, adjustment, or the appointment of an intervenor, receiver, receiver-manager, liquidator, assignee, trustee, sequestrator, examiner sequestrator (or other similar official), and any such proceeding shall continue undismissed, or any order, judgment or decree approving or ordering any of the foregoing shall continue unstayed or otherwise in effect, for a period of forty five ninety (4590) days; (v) the making by any Credit Party or any of its Subsidiaries the Borrower of an assignment for the benefit of creditors, or the admission by it in writing of its inability to pay its debt generally as they become due; or (vi) any other event shall have occurred which under any applicable law would have an effect analogous to any of those events listed above in this subsection, and, if such event or proceeding is commenced by a Person other than the Borrower or an affiliate of the Borrower, such event is not dismissed, stayed or satisfied for a period of ninety (90) days.
(e) One or more judgments against any Credit Party or any Subsidiary the Borrower taken as a whole or attachments against any of their respective its property, which in the aggregate exceed $1,000,000 (net of any anticipated insurance proceeds), and such judgment(swould reasonably be expected to have a Material Adverse Effect remain(s) remains unpaid, unstayed on appeal, undischarged, unbonded or undismissed for a period of thirty (30) days from the date of entry of such judgment.
(f) Any Authorization license, permit or approval held by the Borrower from any Credit Party or any of its Subsidiaries Government Authority shall have been suspended, cancelled canceled or revoked, and except where any such suspension, cancellation or revocation would not reasonably be expected to have a Material Adverse Effect.
(g) Any Authorization authorization necessary for the execution, delivery or performance of any Loan Financing Document or for the validity or enforceability of any of the Obligations under any Financing Document is not given or is withdrawn or ceases to remain in full force or effect.
(h) There is a failure to perform under any agreement to which any Credit Party is a party resulting in the acceleration by a third party of the maturity of any Indebtedness in an amount in excess of $5,000,000.
(i) The validity of any Loan Financing Document shall be contested by any Credit Party legislative, executive or judicial body of any Subsidiaryjurisdiction, or any Applicable Law treaty, law, regulation, communiqué, decree, ordinance or policy of any jurisdiction shall purport to render any material provision of any Loan Financing Document invalid or unenforceable or shall purport to prevent or materially delay the performance or observance by any Credit Party the Borrower of the Obligations, and the Borrower fails or refuses to negotiate a reasonable replacement provision pursuant to Section 6.7.
(i) The Borrower has failed to comply in any material respect with the reporting requirements of the Exchange Act that apply to the Borrower under applicable law, unless corrected by Borrower promptly (if capable of correction) through the filing of an amendment to an existing report or making an appropriate subsequent filing with the SEC.
(j) The Common Shares If an Event of Parent cease Default pursuant to be listed on the Principal Trading Markets or Warrants (as such term is defined in the Common Shares cease to be registered under Section 12 of the Exchange ActWarrants) shall have occurred beyond any applicable cure periods.
(k) The occurrence aggregate amount of Cash and Cash Equivalents on the last day of any fiscal quarter of the Borrower is less than $20,000,000 and such deficiency is not cured within 10 days after the last day of such fiscal quarter.
(l) The Borrower breaches its obligation to pay the Royalty to the Lenders, as such term is defined in the Royalty Agreement, within 5 days of its due date..
(m) The Borrower makes any payment on account of Permitted Indebtedness that is subordinated to the Loan except to the extent the payment is allowed under the subordination provisions applicable to such Permitted Indebtedness.
(n) If there occurs an event of default (after the expiration of any applicable cure period) occurs with respect to any Permitted Indebtedness and the outstanding amount of such Permitted Indebtedness is in excess of $5,000,000 and (ii) the holder of such Permitted Indebtedness has given the Borrower a Conversion Failurenotice of default or otherwise taken steps to exercise any remedies as a result thereof.
Appears in 1 contract
General Acceleration Provision upon Events of Default. If one or more any of the events specified in this Section 5.4 shall have happened and be continuing beyond the applicable cure period (each, an “Event of Default”), the Required LendersPurchasers, by written notice to the Borrower (an “Acceleration Notice”)Borrower, may declare the principal of, and interest (whether accrued and unpaid interest or not accrued) on, all of the Notes or any part of any of them (together with any other amounts Obligations accrued or payable under the Loan Documentspayable) to be, and the same shall thereupon become, immediately due and payable, without any further notice and without any presentment, demand, or protest of any kind, all of which are hereby expressly waived by the Borrower, and take any further action available at law or in equity, including, without limitation, the sale of the Loan Notes and all other rights acquired in connection with the LoanNotes:
(a) The Borrower shall have failed to make payment of pay (i) principal when due, or (ii) interest or and any other amounts due under the Notes or any other Obligations within five (5) Business Days of their due date.
(ib) Any Credit Party The Borrower shall have failed to comply with the due observance observe or performance of perform any covenant contained in this any Transaction Document and the Milestone Agreement (other than the covenant described in (a) above or as otherwise expressly provided in this Section 5.4) or in the other Loan Documents above), and such default is failure shall not remedied have been cured by the Borrower within (i) 60 days after such failure in the case of a breach of Section 5.1(e)(ii) (it being agreed that a cure of such breach within such period is “timely”, as such term is used in such Section) or waived by (ii) 30 days after receiving written notice of such failure from the Lenders within fifteen (15) days (inclusive Purchasers in the case of any extension periods or cure periods contained in any such covenant or provided by Applicable Laws) after the earlier of (A) receipt by any Credit Party of notice from the Lenders of such default, or (B) actual knowledge of any Credit Party of such defaultother covenant.
(c) Any representation or warranty made by any Credit Party or any of its Subsidiaries the Borrower in any Loan Transaction Document shall be have been incorrect, false or misleading in any material respect (except to the extent that such representation or warranty is qualified by reference to materiality or Material Adverse Effect, to which extent it shall be incorrect, false or misleading in any respect) as of the date it was made or made, deemed made, reaffirmed or confirmed.
(i) Any Credit Party The Borrower or any of its Subsidiaries Significant Subsidiary shall generally be unable to pay its debts as such debts become due or be deemed to be unable to pay its debtsdue, or shall admit in writing its inability to pay its debts as they come due or shall make a general assignment for the benefit of creditors; (ii) any Credit Party the Borrower or any of its Subsidiaries Significant Subsidiary shall declare a moratorium on the payment of its debts; (iii) the commencement by any Credit Party the Borrower or any of its Subsidiaries Significant Subsidiary of proceedings to be adjudicated bankrupt or insolvent, or the consent by it to the commencement of bankruptcy or insolvency proceedings against it, or the filing by it of a petition or answer or consent seeking reorganization, examinership, intervention or other similar relief under any applicable lawApplicable Law, or the consent by it to the filing of any such petition or to the appointment of an intervenor, receiver, receiver-manager, liquidator, assignee, trustee, sequestrator, examiner sequestrator (or other similar official) of all or substantially all of its assets; (iv) the commencement against any Credit Party the Borrower or any of its Subsidiaries Significant Subsidiary of a proceeding in any court of competent jurisdiction under any bankruptcy or other applicable law Applicable Laws (as now or hereafter in effect) seeking its liquidation, winding up, dissolution, reorganization, examinership, arrangement, adjustment, or the appointment of an intervenor, receiver, receiver-manager, liquidator, assignee, trustee, sequestrator, examiner sequestrator (or other similar official), and any such proceeding shall continue undismissed, or any order, judgment or decree approving or ordering any of the foregoing shall continue unstayed or otherwise in effect, for a period of forty five ninety (4590) days; (v) the making by any Credit Party days or any of its Subsidiaries of an assignment for the benefit of creditors, or the admission by it in writing of its inability to pay its debt generally as they become due; or (vi) any other event shall have occurred which under any applicable law Applicable Laws would have an effect analogous to any of those events listed above in this subsection.
(e) One or more judgments against any Credit Party or any Subsidiary the Borrower taken as a whole or attachments against any of their respective its property, which in the aggregate exceed $1,000,000 100,000 (net of any anticipated insurance proceeds), and such judgment(s) remains unpaid, unstayed on appeal, undischarged, unbonded or undismissed for a period of thirty (30) 90 days from the date of entry of such judgment.
(f) Any Authorization held by any Credit Party or any of its Subsidiaries the Borrower shall have been suspended, cancelled canceled or revoked, and such suspension, cancellation or revocation would reasonably be expected to have a Material Adverse Effect, and such suspension, cancellation or revocation shall not have been cured within 30 days.
(g) Any Authorization necessary for the execution, delivery or performance of any Loan Transaction Document or for the validity or enforceability of any of the Obligations is not given or is withdrawn or ceases to remain in full force or effect.
(h) There is a failure to perform under any agreement to which any Credit Party is a party resulting in the acceleration by a third party of the maturity of any Indebtedness in an amount in excess of $5,000,000.
(i) The validity of any Loan material provisions of any of the Transaction Document shall be contested by any Credit Party the Borrower or any Subsidiarytreaty, law, regulation, communiqué, decree, ordinance or policy of any Applicable Law jurisdiction in the United States shall purport to render any material provision of any Loan Transaction Document invalid or unenforceable or shall purport to prevent or materially delay the performance or observance by any Credit Party the Borrower of the Obligations.
(i) There is a failure to perform in any agreement to which the Borrower is a party resulting in a right by a third party to accelerate the maturity of any Indebtedness in an amount in excess of $500,000 and such acceleration is not rescinded or such Indebtedness is not contested in good faith or paid or otherwise discharged.
(j) The Common Shares amount of Parent cease to be listed Cash and Cash Equivalents on the Principal Trading Markets or the Common Shares cease to be registered under Section 12 last day of the Exchange Acteach fiscal quarter is less than $25,000,000.
(k) The A Delivery Failure (as defined in the Notes) shall have occurred and such Delivery Failure is not cured within 5 Business Days.
(l) At any time following the Registration Deadline (as defined in the Registration Rights Agreement) with respect to any Note but prior to the six month anniversary of the issuance of such Note, both (i) the Conversion Shares (as defined in the Notes) are not eligible for resale under the Securities Act under an effective registration statement covering the resale of the Conversion Shares (a “Clause (l) Failure”) and, (ii) the Borrower has failed to use its best efforts to prevent the occurrence of a Conversion such Clause (l) Failure.
(m) At any time following the six month anniversary of the issuance of any Note, the shares of Common Stock issuable upon conversion of such Notes are not Freely Tradeable.
Appears in 1 contract
Samples: Facility Agreement (Mannkind Corp)
General Acceleration Provision upon Events of Default. If one or more of the events specified in this Section 5.4 shall have happened and be continuing beyond the applicable cure period 5.5 (each, each an “Event of Default”)) shall have happened and is continuing, the Required Requisite Lenders, by written notice to the Borrower Borrower, (any such notice, an “Acceleration Notice”), may declare the principal of, and accrued and unpaid interest on, all of the Notes Loan or any part of any of them thereof (together with any other amounts accrued or payable under the Loan Documentsthis Agreement) to be, and the same shall thereupon become, immediately due and payable, without any further notice and without any presentment, demand, or protest of any kind, all of which are hereby expressly waived by the Borrower, and take any further action available at law or in equity, including, without limitation, the sale of the Loan and all other rights acquired in connection with the Loan:
(a) The Borrower shall have failed fails to make payment of pay (i) principal when duedue under the Loan or the Notes, or (ii) interest or any other amounts due under the Loan or the Notes or any other Obligations within five (5) Business Days of their due date.
(ib) Any Credit Party The Borrower shall have failed to comply in any material respect with the due observance or performance of any other covenant contained in this Agreement (other than the covenant described or any Note, such failure could reasonably be expected to result in (a) above or as otherwise expressly provided in this Section 5.4) or in the other Loan Documents a Material Adverse Effect and such default is failure shall not remedied have been cured by the Borrower or waived by the Lenders within fifteen (15) 60 days (inclusive of any extension periods or cure periods contained in any such covenant or provided by Applicable Laws) after the earlier of (A) receipt by any Credit Party of receiving written notice from the Lenders of such default, or (B) actual knowledge of any Credit Party of such defaultfailure.
(c) Any representation or warranty made by any Credit Party or any of its Subsidiaries the Borrower in any Loan Financing Document shall be have been incorrect, false or misleading in any material respect (except to the extent that such representation or warranty is qualified by reference to materiality or Material Adverse Effect, to which extent it shall be incorrect, false or misleading in any respect) as of the date it was made or made, deemed made, reaffirmed or confirmed and as a result thereof the Borrower could reasonably be expected to incur a Material Adverse Effect.
(i) Any Credit Party or any of its Subsidiaries The Borrower shall generally be unable to pay its debts as such debts become due or be deemed to be unable to pay its debtsdue, or shall admit in writing its inability to pay its debts as they come due or shall make a general assignment for the benefit of creditors; (ii) any Credit Party or any of its Subsidiaries the Borrower shall declare a moratorium on the payment of its debts; (iii) the commencement by any Credit Party or any of its Subsidiaries the Borrower of proceedings to be adjudicated bankrupt or insolvent, or the consent by it to the commencement of bankruptcy or insolvency proceedings against it, or the filing by it of a petition or answer or consent seeking reorganization, examinership, intervention or other similar relief under any applicable law, or the consent by it to the filing of any such petition or to the appointment of an intervenor, receiver, receiver-manager, liquidator, assignee, trustee, sequestrator, examiner sequestrator (or other similar official) or of all or substantially all any substantial part of its assets; (iv) the commencement against any Credit Party the Borrower or any substantial part of its Subsidiaries assets of a proceeding in any court of competent jurisdiction under any bankruptcy or other applicable law (as now or hereafter in effect) seeking its liquidation, winding up, dissolution, reorganization, examinership, arrangement, adjustment, or the appointment of an intervenor, receiver, receiver-manager, liquidator, assignee, trustee, sequestrator, examiner sequestrator (or other similar official), and any such proceeding shall continue undismissed, or any order, judgment or decree approving or ordering any of the foregoing shall continue unstayed or otherwise in effect, for a period of forty five ninety (4590) days; (v) the making by any Credit Party or any of its Subsidiaries of an assignment for the benefit of creditors, or the admission by it in writing of its inability to pay its debt generally as they become due; or (vi) any other event shall have occurred which under any applicable law would have an effect analogous to any of those events listed above in this subsection.
(e) One or more judgments against any Credit Party or any Subsidiary the Borrower taken as a whole or attachments against any of their respective its property, which in the aggregate exceed $1,000,000 (net of any anticipated insurance proceeds), and such judgment(s) remains unpaid, unstayed is not stayed on appeal, undischargeddischarged, unbonded bonded or undismissed dismissed for a period of thirty sixty (3060) days from the date of entry of such judgment.
(f) Any Authorization held by any Credit Party or The Borrower repudiates any of its Subsidiaries shall have been suspended, cancelled the Facility Documents or revoked, and such suspension, cancellation challenges the validity or revocation would reasonably be expected to have a Material Adverse Effectenforceability of the Facility Documents.
(g) Any Authorization necessary for the execution, delivery or performance The validity of any Loan Document or for the validity or enforceability material provision of any of the Obligations is not given or is withdrawn or ceases to remain in full force or effect.
(h) There is a failure to perform under any agreement to which any Credit Party is a party resulting in the acceleration by a third party of the maturity of any Indebtedness in an amount in excess of $5,000,000.
(i) The validity of any Loan Document Financing Documents shall be contested by any Credit Party legislative, executive or judicial body of any SubsidiaryUnited States jurisdiction, or any Applicable Law treaty, law, regulation, communiqué, decree, ordinance or policy of any jurisdiction shall purport to render any material provision of any Loan Financing Document invalid or unenforceable or shall purport to prevent or materially delay the performance or observance by any Credit Party the Borrower of the ObligationsObligations and the Parties are unable to negotiate a replacement provision pursuant to Section 6.7 below.
(jh) The Common Shares of Parent cease There is a failure to be listed on perform in any agreement to which the Principal Trading Markets Borrower is a party with a third party or parties resulting in the Common Shares cease to be registered under Section 12 acceleration of the Exchange Actmaturity of any indebtedness for borrowed money in an amount in excess of $500,000 and such acceleration is not rescinded, or such indebtedness is not contested in good faith or paid or otherwise discharged, within thirty (30) days after such acceleration.
(ki) The occurrence An Event of Default (as such term is defined in the Warrants) occurs pursuant to any Warrant held by a Conversion FailureLender.
Appears in 1 contract
General Acceleration Provision upon Events of Default. If one or more of the events specified in this Section 5.4 shall have happened and be continuing beyond the applicable cure period (each, an “Event of Default”), the Required Lenders, by written notice to the Borrower (an “Acceleration Notice”)Borrower, may cancel the Borrower’s right to request the Disbursement and declare the principal of, and accrued and unpaid interest on, all of the Notes or any part of any of them (together with any other amounts accrued or payable under the Loan Financing Documents) to be, and the same shall thereupon become, immediately due and payable, without any further notice and without any presentment, demand, or protest of any kind, all of which are hereby expressly waived by the Borrower, and take any further action available at law or in equity, including, without limitation, the sale of the Loan and all other rights acquired in connection with the Loan:
(a) The Borrower shall have failed to make payment of (i) principal when due, or (ii) interest or and any other amounts due under the Loan or the Notes or any other Obligations within five (5) Business Days of their due date.
(ib) Any Credit Party Each of the Borrower or a Subsidiary party to any Security Agreement shall have failed to comply with the due observance or performance of any covenant contained in this any Financing Document (other than the Warrants) or such Security Agreement (other than the covenant described in (a) above or as otherwise expressly provided in this Section 5.4above) or in the other Loan Documents and such default is failure shall not remedied have been cured by the Borrower or waived by the Lenders such Subsidiary within fifteen (15) 30 days (inclusive after receiving written notice of any extension periods or cure periods contained in any such covenant or provided by Applicable Laws) after the earlier of (A) receipt by any Credit Party of notice failure from the Lenders of such default, or (B) actual knowledge of any Credit Party of such defaultLenders.
(c) Any representation or warranty made by any Credit Party or any of its Subsidiaries the Borrower in any Loan Financing Document shall be have been incorrect, false or misleading in any material respect (except to the extent that such representation or warranty is qualified by reference to materiality or Material Adverse Effect, to which extent it shall be incorrect, false or misleading in any respect) as of the date it was made or deemed madereaffirmed.
(i) Any Credit Party or any of its Subsidiaries The Borrower shall generally be unable to pay its debts as such debts become due or be deemed to be unable to pay its debtsdue, or shall admit in writing its inability to pay its debts as they come due or shall make a general assignment for the benefit of creditors; (ii) any Credit Party or any of its Subsidiaries the Borrower shall declare a moratorium on the payment of its debts; (iii) the commencement by any Credit Party or any of its Subsidiaries the Borrower of proceedings to be adjudicated bankrupt or insolvent, or the consent by it to the commencement of bankruptcy or insolvency proceedings against it, or the filing by it of a petition or answer or consent seeking reorganization, examinership, intervention or other similar relief under any applicable law, or the consent by it to the filing of any such petition or to the appointment of an intervenor, receiver, receiver-manager, liquidator, assignee, trustee, sequestrator, examiner sequestrator (or other similar official) of all or substantially all of its assets; (iv) the commencement against any Credit Party or any of its Subsidiaries the Borrower of a proceeding in any court of competent jurisdiction under any bankruptcy or other applicable law (as now or hereafter in effect) seeking its liquidation, winding up, dissolution, reorganization, examinership, arrangement, adjustment, or the appointment of an intervenor, receiver, receiver-manager, liquidator, assignee, trustee, sequestrator, examiner sequestrator (or other similar official), and any such proceeding shall continue undismissed, or any order, judgment or decree approving or ordering any of the foregoing shall continue unstayed or otherwise in effect, for a period of forty five ninety (4590) days; (v) the making by any Credit Party or any of its Subsidiaries the Borrower of an assignment for the benefit of creditors, or the admission by it in writing of its inability to pay its debt generally as they become due; or (vi) any other event shall have occurred which under any applicable law would have an effect analogous to any of those events listed above in this subsection.
(e) One or more judgments against any Credit Party or any Subsidiary the Borrower or attachments against any of their respective its property, which in the aggregate exceed $1,000,000 500,000 (net of any anticipated insurance proceedsnot covered by insurance), and such judgment(sor which could have a Material Adverse Effect remain(s) remains unpaid, unstayed on appeal, undischarged, unbonded or undismissed for a period of thirty (30) days from the date of entry of such judgment.
(f) Any Authorization held by the Borrower from any Credit Party or any of its Subsidiaries Government Authority shall have been suspended, cancelled canceled or revoked, revoked and such suspension, cancellation or revocation would could reasonably be expected to have a Material Adverse Effect, and such suspension, cancellation or revocation shall not have been cured within 30 days.
(g) Any Authorization authorization necessary for the execution, delivery or performance of any Loan Financing Document or for the validity or enforceability of any of the Obligations under any Financing Document is not given or is withdrawn or ceases to remain in full force or effect.
(h) There is a failure to perform under any agreement to which any Credit Party is a party resulting in the acceleration by a third party of the maturity of any Indebtedness in an amount in excess of $5,000,000.
(i) The validity of any Loan Financing Document shall be contested by any Credit Party legislative, executive or judicial body of any Subsidiaryjurisdiction, or any Applicable Law treaty, law, regulation, communiqué, decree, ordinance or policy of any jurisdiction shall purport to render any material provision of any Loan Financing Document invalid or unenforceable or shall purport to prevent or materially delay the performance or observance by any Credit Party the Borrower of the Obligations.
(ji) The Common Shares of Parent cease Borrower has failed to be listed on comply in any material respect with the Principal Trading Markets or the Common Shares cease to be registered under Section 12 reporting requirements of the Exchange Act, if applicable.
(j) There is a failure to perform in any agreement to which the Borrower is a party with a third party or parties resulting in a right by such third party or parties to accelerate the maturity of any Indebtedness for borrowed money in an amount in excess of $250,000.
(k) The occurrence If an Event of a Conversion FailureDefault pursuant to the Warrants (as such term is defined in the Warrants) shall have occurred.
(l) If Cash and Cash Equivalents on the last day of any calendar quarter are less than $5,000,000.
Appears in 1 contract
Samples: Facility Agreement (Icad Inc)
General Acceleration Provision upon Events of Default. If one or more of the events specified in this Section 5.4 shall have happened and be continuing beyond the applicable cure period (each, an “Event of Default”), the Required Lenders, by written notice to the Borrower (an “Acceleration Notice”), may declare the principal of, and accrued and unpaid interest on, all of the Notes or any part of any of them (together with any other amounts accrued or payable under the Loan Documents) to be, and the same shall thereupon become, immediately due and payable, without any further notice and without any presentment, demand, or protest of any kind, all of which are hereby expressly waived by the Borrower, and take any further action available at law or in equity, including, without limitation, the sale of the Loan and all other rights acquired in connection with the Loan:
(a) The Borrower shall have failed to make payment of (i) principal when due, or (ii) interest or any other amounts due under the Notes or any other Obligations within five (5) Business Days of their due date.
(ib) Any Credit Party shall have failed to comply with the due observance or performance of (i) Section 5.1(v), other than the failure to timely file an 8-K, (ii) Section 5.1(v) solely as a result of the failure to timely file an 8-K and such failure is not remedied by Borrower within five (5) days of the due date for such filing, or (iii) any other covenant contained in this Agreement or the other Loan Documents (other than the covenant described in (a) above above, or as otherwise expressly provided in this Section 5.4) or in the other Loan Documents and and, in the case of (iii) above, such default is not remedied by the Borrower or waived by the Required Lenders within fifteen thirty (1530) days (inclusive of any extension periods or cure periods contained in any such covenant or provided by Applicable Laws) after the earlier of (A) receipt by any Credit Party of notice from the Lenders of such default, or (B) actual knowledge of any Credit Party of such default.
(c) Any representation or warranty made by any Credit Party or any of its Subsidiaries in any Loan Document shall be incorrect, false or misleading in any material respect (except to the extent that such representation or warranty is qualified by reference to materiality or Material Adverse Effect, to which extent it shall be incorrect, false or misleading in any respect) as of the date it was made or deemed made.
(i) Any Credit Party or any of its Subsidiaries shall generally be unable to pay its debts as such debts become due or be deemed to be unable to pay its debts, or shall admit in writing its inability to pay its debts as they come due or shall make a general assignment for the benefit of creditors; (ii) any Credit Party or any of its Subsidiaries shall declare a moratorium on the payment of its debts; (iii) the commencement by any Credit Party or any of its Subsidiaries of proceedings to be adjudicated bankrupt or insolvent, or the consent by it to the commencement of bankruptcy or insolvency proceedings against it, or the filing by it of a petition or answer or consent seeking reorganization, examinership, intervention or other similar relief under any applicable law, or the consent by it to the filing of any such petition or to the appointment of an intervenor, receiver, receiver-manager, liquidator, assignee, trustee, sequestrator, examiner (or other similar official) of all or substantially all of its assets; (iv) the commencement against any Credit Party or any of its Subsidiaries of a proceeding in any court of competent jurisdiction under any bankruptcy or other applicable law (as now or hereafter in effect) seeking its liquidation, winding up, dissolution, reorganization, examinership, arrangement, adjustment, or the appointment of an intervenor, receiver, receiver-manager, liquidator, assignee, trustee, sequestrator, examiner (or other similar official), and any such proceeding shall continue undismissed, or any order, judgment or decree approving or ordering any of the foregoing shall continue unstayed or otherwise in effect, for a period of forty five sixty (4560) days; (v) the making by any Credit Party or any of its Subsidiaries of an assignment for the benefit of creditors, or the admission by it in writing of its inability to pay its debt generally as they become due; or (vi) any other event shall have occurred which under any applicable law would have an effect analogous to any of those events listed above in this subsection.
(e) One or more final judgments against any Credit Party or any Subsidiary or attachments against any of their respective property, which in the aggregate exceed $1,000,000 3,000,000 (net of any anticipated insurance proceeds), and such judgment(s) remains unpaid, unstayed on appeal, undischarged, unbonded or undismissed for a period of thirty (30) days from the date of entry of such judgment.
(f) Any Authorization held by any Credit Party or any of its Subsidiaries shall have been suspended, cancelled or revoked, and such suspension, cancellation or revocation would reasonably be expected to have a Material Adverse Effect.
(g) Any Authorization necessary for the execution, delivery or performance of any Loan Document or for the validity or enforceability of any of the Obligations is not given or is withdrawn or ceases to remain in full force or effect.
(h) There is a failure to perform under any agreement to which any Credit Party is a party resulting in the acceleration by a third party of the maturity of any Indebtedness in an amount in excess of $5,000,0003,000,000.
(i) The validity of any Loan Document shall be contested by any Credit Party or any SubsidiaryParty, or any Applicable Law shall purport to render any material provision of any Loan Document invalid or unenforceable or shall purport to prevent or materially delay the performance or observance by any Credit Party of the Obligations.
(j) The shares of Common Shares Stock of Parent Borrower cease to be listed on the Principal Trading Markets or the shares of Common Shares Stock cease to be registered under Section 12 of the Exchange Act.
(k) The occurrence of a Conversion Failure.
(l) The occurrence of any Change of Control.
Appears in 1 contract
General Acceleration Provision upon Events of Default. If one or more of the events specified in this Section 5.4 shall have happened and be continuing beyond the applicable cure period (each, an “Event of Default”), the Required LendersPurchasers holding a Majority in Interest of the Notes, by written notice to the Borrower (an “Acceleration Notice”)Company, may declare the principal of, and accrued and unpaid interest on, all of the Notes or any part of any of them (together with any other amounts accrued or payable under the Loan Transaction Documents) to be, and the same shall thereupon become, immediately due and payable, without any further notice and without any presentment, demand, or protest of any kind, all of which are hereby expressly waived by the BorrowerCompany, and take any further action available at law or in equity, including, without limitation, the sale of the collateral securing the Loan and all other rights acquired in connection with the Loan:
(a) The Borrower Company shall have failed to make payment of (i) principal under the Notes when due, due or (ii) any interest or any other amounts due under the Notes or any other Obligations within five when due and such failure shall have continued for three (53) Business Days of their due dateDays.
(ib) Any Credit Party The Company shall have failed to comply with the due observance or performance of any covenant contained in this Agreement, the Security Agreement or the Notes (other than the covenant covenants described in (a) above or as otherwise expressly provided in this Section 5.4) or in the other Loan Documents above), and such default is failure shall not remedied have been cured by the Borrower or waived by the Lenders Company within fifteen (15) 10 days (inclusive of any extension periods or cure periods contained in any such covenant or provided by Applicable Laws) after the earlier of (A) receipt by any Credit Party of receiving written notice from the Lenders of such default, or (B) actual knowledge failure from a Majority in Interest of any Credit Party of such defaultthe Purchasers.
(c) Any representation or warranty made by any Credit Party or any of its Subsidiaries the Company in any Loan Transaction Document shall be have been incorrect, false or misleading in any material respect (except to the extent that such representation or warranty is qualified by reference to materiality or Material Adverse Effect, to which extent it shall be incorrect, false or misleading in any respect) as of the date it was made or deemed made.
(i) Any Credit Party or any of its Subsidiaries The Company shall generally be unable to pay its debts as such debts become due or be deemed to be unable to pay its debtsdue, or shall admit in writing its inability to pay its debts as they come due or shall make a general assignment for the benefit of creditors; (ii) any Credit Party or any of its Subsidiaries the Company shall declare a moratorium on the payment of its debts; (iii) the commencement by any Credit Party or any of its Subsidiaries the Company of proceedings to be adjudicated bankrupt or insolvent, or the consent by it to the commencement of bankruptcy or insolvency proceedings against it, or the filing by it of a petition or answer or consent seeking reorganization, examinership, intervention or other similar relief under any applicable law, or the consent by it to the filing of any such petition or to the appointment of an intervenor, receiver, receiver-manager, liquidator, assignee, trustee, sequestrator, examiner sequestrator (or other similar official) of all or substantially all of its assets; (iv) the commencement against any Credit Party or any of its Subsidiaries the Company of a proceeding in any court of competent jurisdiction under any bankruptcy or other applicable law (as now or hereafter in effect) seeking its liquidation, winding up, dissolution, reorganization, examinership, arrangement, adjustment, or the appointment of an intervenor, receiver, receiver-manager, liquidator, assignee, trustee, sequestrator, examiner sequestrator (or other similar official), and any such proceeding shall continue undismissed, or any order, judgment or decree approving or ordering any of the foregoing shall continue unstayed or otherwise in effect, for a period of forty five ninety (4590) days; or (v) the making by any Credit Party or any of its Subsidiaries of an assignment for the benefit of creditors, or the admission by it in writing of its inability to pay its debt generally as they become due; or (vi) any other event shall have occurred which under any applicable law would have an effect analogous to any of those events listed above in this subsection.
(e) One or more judgments against any Credit Party the Company or any Subsidiary or attachments against any of their respective property, which property not covered by insurance in an amount individually or in the aggregate exceed in excess of $1,000,000 (net of any anticipated insurance proceeds)500,000, and such judgment(sremain(s) remains unpaid, unstayed on appeal, undischarged, unbonded or undismissed for a period of thirty (30) 60 days from the date of entry of such judgment.
(f) Any Authorization held by any Credit Party or any of its Subsidiaries shall have been suspended, cancelled or revoked, and such suspension, cancellation or revocation would reasonably be expected to have a Material Adverse Effect.
(g) Any Authorization authorization necessary for the execution, delivery or performance by the Company of any Loan Transaction Document or for the validity or enforceability of any of the Obligations under any Transaction Document is not given or is withdrawn or ceases to remain in full force or effect.
(h) There is a failure to perform under any agreement to which any Credit Party is a party resulting in the acceleration by a third party of the maturity of any Indebtedness in an amount in excess of $5,000,000.
(ig) The validity of any Loan Transaction Document shall be contested by any Credit Party or any Subsidiarythe Company, or any Applicable Law treaty, law, regulation, communiqué, decree, ordinance or policy of any jurisdiction shall purport to render any material provision of any Loan Transaction Document invalid or unenforceable or shall purport to prevent or materially delay the performance or observance by any Credit Party the Company of the Obligations.
(jh) The Common Shares There is a failure to perform any agreement to which the Company of Parent cease any Subsidiary is a party resulting in a right by a third party to be listed on accelerate the Principal Trading Markets or the Common Shares cease to be registered under Section 12 maturity of the Exchange Actany Indebtedness for borrowed money in an amount in excess of $500,000.
(ki) The So long as the Purchasers hold the Warrants, the occurrence of a Conversion Failurean Event of Default (as such term is defined in the Warrants).
Appears in 1 contract
Samples: Subordinated Note and Warrant Purchase Agreement (Trigran Investments, Inc.)
General Acceleration Provision upon Events of Default. If one or more of the events specified in this Section 5.4 shall have happened and be continuing beyond the applicable cure period (each, an “Event of Default”), the Required Lenderseach Lender, by written notice to the Borrower (an “Acceleration Notice”)Borrower, may declare the principal of, and accrued and unpaid interest on, all of the Notes held by such Lender or any part of any of them (together with any other amounts accrued or payable under the Loan Transaction Documents) to be, and the same shall thereupon become, immediately due and payable, without any further notice and without any presentment, demand, or protest of any kind, all of which are hereby expressly waived by the Borrower, and take any further action available at law or in equity, including, without limitation, the sale of the Loan and all other rights acquired in connection with the Loan:
(a) The Borrower shall have failed to make payment of (i) principal when due, or (ii) and interest or any other amounts due under the Notes or any other Obligations within five (5) Business Days of their due datewhen due.
(ib) Any Credit Party The occurrence of a Conversion Failure or a Registration Failure (as such terms are fined in the Notes).
(c) The Borrower shall have failed to comply with the due observance or performance of any covenant contained in this Agreement any Transaction Document (other than the covenant covenants described in (a) above or as otherwise expressly provided in this Section 5.4and (b) or in the other Loan Documents above) and such default is failure shall not remedied have been cured by the Borrower or waived by the Lenders within fifteen (15) 30 days (inclusive after receiving written notice of any extension periods or cure periods contained in any such covenant or provided by Applicable Laws) after the earlier of (A) receipt by any Credit Party of notice failure from the Lenders of such default, or (B) actual knowledge of any Credit Party of such defaultLenders.
(cd) Any representation or warranty made by any Credit Party or any of its Subsidiaries the Borrower in any Loan Transaction Document shall be have been incorrect, false or misleading in any material respect (except to the extent that such representation or warranty is qualified by reference to materiality or Material Adverse Effect, to which extent it shall be incorrect, false or misleading in any respect) as of the date it was made or deemed made.
(i) Any Credit Party or any of its Subsidiaries The Borrower shall generally be unable to pay its debts as such debts become due or be deemed to be unable to pay its debtsdue, or shall admit in writing its inability to pay its debts as they come due or shall make a general assignment for the benefit of creditors; (ii) any Credit Party or any of its Subsidiaries the Borrower shall declare a moratorium on the payment of its debts; (iii) the commencement by any Credit Party or any of its Subsidiaries the Borrower of proceedings to be adjudicated bankrupt or insolvent, or the consent by it to the commencement of bankruptcy or insolvency proceedings against it, or the filing by it of a petition or answer or consent seeking reorganization, examinership, intervention or other similar relief under any applicable law, or the consent by it to the filing of any such petition or to the appointment of an intervenor, receiver, receiver-manager, liquidator, assignee, trustee, sequestrator, examiner sequestrator (or other similar official) of all or substantially all of its assets; (iv) the commencement against any Credit Party or any of its Subsidiaries the Borrower of a proceeding in any court of competent jurisdiction under any bankruptcy or other applicable law (as now or hereafter in effect) seeking its liquidation, winding up, dissolution, reorganization, examinership, arrangement, adjustment, or the appointment of an intervenor, receiver, receiver-manager, liquidator, assignee, trustee, sequestrator, examiner sequestrator (or other similar official), and any such proceeding shall continue undismissed, or any order, judgment or decree approving or ordering any of the foregoing shall continue unstayed or otherwise in effect, for a period of forty five ninety (4590) days; (v) the making by any Credit Party or any of its Subsidiaries the Borrower of an assignment for the benefit of creditors, or the admission by it in writing of its inability to pay its debt generally as they become due; or (vi) any other event shall have occurred which under any applicable law would have an effect analogous to any of those events listed above in this subsection.
(ef) One or more judgments against any Credit Party the Borrower or any Subsidiary or attachments against any of their respective property, which in the aggregate exceed $1,000,000 50,000 (net of any anticipated insurance proceedsnot covered by insurance), and such judgment(sor which could have a Material Adverse Effect remain(s) remains unpaid, unstayed on appeal, undischarged, unbonded or undismissed for a period of thirty (30) 30 days from the date of entry of such judgment.
(fg) Any Authorization held by the Borrower from any Credit Party or any of its Subsidiaries Government Authority shall have been suspended, cancelled canceled or revoked, revoked and such suspension, cancellation or revocation would reasonably be expected to shall not have a Material Adverse Effectbeen cured within 30 days.
(gh) Any Authorization authorization necessary for the execution, delivery or performance of any Loan Transaction Document or for the validity or enforceability of any of the Obligations under any Transaction Document is not given or is withdrawn or ceases to remain in full force or effect.
(h) There is a failure to perform under any agreement to which any Credit Party is a party resulting in the acceleration by a third party of the maturity of any Indebtedness in an amount in excess of $5,000,000.
(i) The validity of any Loan Transaction Document shall be contested by any Credit Party or any Subsidiarythe Borrower, or any Applicable Law treaty, law, regulation, communiqué, decree, ordinance or policy of any jurisdiction shall purport to render any material provision of any Loan Transaction Document invalid or unenforceable or shall purport to prevent or materially delay the performance or observance by any Credit Party the Borrower of the Obligations.
(j) The Common Shares of Parent cease Borrower has failed to be listed on comply in any material respect with the Principal Trading Markets or the Common Shares cease to be registered under Section 12 reporting requirements of the Exchange Act, if applicable.
(k) The occurrence There is a failure to perform in any agreement to which the Borrower or any Subsidiary is a party with a third party or parties resulting in a right by such third party or parties to accelerate the maturity of a Conversion Failureany Indebtedness for borrowed money in an amount in excess of $50,000.
(l) If an Event of Default pursuant to the Warrants (as such term is defined in the Warrants) shall have occurred.
Appears in 1 contract
Samples: Facility Agreement (Tengion Inc)
