Events of Default; Acceleration. Each of the following events shall constitute an “Event of Default”: (a) the entry of a decree or order for relief in respect of the Company by a court having jurisdiction in the premises in an involuntary case or proceeding under any applicable bankruptcy, insolvency, or reorganization law, now or hereafter in effect of the United States or any political subdivision thereof, and such decree or order will have continued unstayed and in effect for a period of sixty (60) consecutive calendar days; (b) the commencement by the Company of a voluntary case under any applicable bankruptcy, insolvency or reorganization law, now or hereafter in effect of the United States or any political subdivision thereof, or the consent by the Company to the entry of a decree or order for relief in an involuntary case or proceeding under any such law; (c) the Company (i) becomes insolvent or is unable to pay its debts as they mature, (ii) makes an assignment for the benefit of creditors, (iii) admits in writing its inability to pay its debts as they mature, or (iv) ceases to be a bank holding company or financial holding company under the Bank Holding Company Act of 1956, as amended; (d) the failure of the Company to pay any installment of interest on any of the Subordinated Notes as and when the same will become due and payable, and the continuation of such failure for a period of fifteen (15) consecutive calendar days; (e) the failure of the Company to pay all or any part of the principal of any of the Subordinated Notes as and when the same will become due and payable; (f) the liquidation of the Company (for the avoidance of doubt, “liquidation” does not include any merger, consolidation, sale of equity or assets or reorganization (exclusive of a reorganization in bankruptcy) of the Company or any of its subsidiaries); or (g) the default or breach of the Company to materially perform any other covenant or agreement on the part of the Company contained in the Subordinated Notes and the continuation of such default or breach (without such default or breach having been waived in accordance with the provisions of Section 17) for a period of 90 consecutive calendar days after there has been given to the Company by the Holders of not less than 25.0% in principal amount of the outstanding Subordinated Notes, by registered or certified mail, in the manner set forth in Section 22, a written notice specifying such default or breach and requiring it to be remedied, and stating that such notice is a “Notice of Default” hereunder. Unless the principal of this Subordinated Note already shall have become due and payable, if an Event of Default described in Section 5(a) or Section 5(b) shall have occurred and be continuing, the holder of this Subordinated Note, by notice in writing to Company, may declare the principal amount of this Subordinated Note to be due and payable immediately and, upon any such declaration, the same shall become and shall be immediately due and payable. The Company waives demand, presentment for payment, notice of nonpayment, notice of protest, and all other notices. Notwithstanding the foregoing, because the Company will treat the Subordinated Notes as Tier 2 Capital, upon the occurrence of an Event of Default other than an Event of Default described in Section 5(a) or Section 5(b), the Noteholders may not accelerate the Stated Maturity of the Subordinated Notes and make the principal of, and any accrued and unpaid interest on, the Subordinated Notes, immediately due and payable. The Company, within forty-five (45) calendar days after the receipt of written notice from any Noteholder of the occurrence of an Event of Default with respect to this Subordinated Note, shall mail to all Noteholders, at their addresses shown on the Security Register (as defined in Section 14 below), such written notice of Event of Default, unless such Event of Default shall have been cured or waived before the giving of such notice as certified by the Company in writing. Prior to any acceleration of this Subordinated Note, a Noteholder may waive pursuant to Section 18 below any past Event of Default. In addition, a Noteholder may rescind a declaration of acceleration of this Subordinated Note before any judgment has been obtained if (i) the Company pays all matured installments of principal of and interest on this Subordinated Note (other than installments due by reason of acceleration) and interest on the overdue installments; and (ii) all other Events of Default with respect to this Subordinated Note have been cured or waived.
Appears in 2 contracts
Sources: Subordinated Note Purchase Agreement (Security Federal Corp), Subordinated Note Purchase Agreement (Security Federal Corp)
Events of Default; Acceleration. Each If any of the following events shall constitute (each an “"Event of Default”") shall occur:
(a) Debtor shall fail to pay any principal of interest on this Promissory Note or any other sum due under this Promissory Note, any Transaction Document, or any other note or other agreement between Debtor and RACC when the entry same becomes due and such failure shall continue for ten (10) days beyond the due date of a decree such payment;
(b) Debtor shall fail to perform any term, covenant or order for relief agreement contained in respect any of the Company by Transaction Documents and such failure shall continue for thirty (30) days after written notice;
(c) any representation or warranty of Debtor in any of the Transaction Documents or in any certificate or notice given in connection therewith shall have been false or misleading in any material respect at the time made or deemed to have been made;
(d) Debtor shall be in default under any agreement or agreements evidencing (i) any other debt and similar monetary obligations (including, without limitation, capitalized leases, synthetic leases or securitization transactions) (collectively, "Indebtedness") owing to RACC or any of its affiliates, or (ii) any other Indebtedness in excess of $100,000.00 in aggregate principal amount, or shall fail to pay any such Indebtedness when due or within any applicable period of grace;
(e) any of the Transaction Documents shall cease to be in full force and effect;
(f) Debtor (i) shall make an assignment for the benefit of creditors; (ii) shall be adjudicated bankrupt or insolvent; (iii) shall seek the appointment of, or be the subject of an order appointing, a court having jurisdiction in the premises in an involuntary trustee, liquidator or receiver as to all or part of its assets, (iv) shall commence, approve or consent to, any case or proceeding under any applicable bankruptcy, insolvencyreorganization or similar law and, in the case of an involuntary case or reorganization lawproceeding, now such case or hereafter in effect of the United States or any political subdivision thereof, and such decree or order will have continued unstayed and in effect for a period of sixty proceeding is not dismissed within forty-five (6045) consecutive calendar days;
(b) days following the commencement by the Company of a voluntary case under any applicable bankruptcy, insolvency or reorganization law, now or hereafter in effect of the United States or any political subdivision thereof, or (v) shall be the consent by the Company to the entry subject of a decree or an order for relief in an involuntary case or proceeding under any such federal bankruptcy law;
(cg) the Company (i) becomes insolvent or is Debtor shall be unable to pay its debts as they mature, (ii) makes an assignment for the benefit of creditors, (iii) admits in writing its inability to pay its debts as they mature, or (iv) ceases to be a bank holding company or financial holding company under the Bank Holding Company Act of 1956, as amended;
(dh) there shall remain undischarged for more than thirty (30) days any final judgment or execution action against Debtor that, together with other outstanding claims and execution actions against Debtor, respectively, exceeds $100,000.00 in the aggregate;
(i) the failure prospect of payment or performance by Debtor or realization on the Company to pay any installment Collateral, in the reasonable opinion of interest on RACC, is or becomes significantly impaired;
(j) any of the Subordinated Notes Aircraft shall have been lost, stolen or confiscated or shall have incurred substantial damage or have been destroyed to such an extent that the repair thereof is impracticable (as and when the same will become due and payable, and the continuation of such failure for a period of fifteen (15) consecutive calendar days;
(e) the failure of the Company to pay all or any part of the principal of any of the Subordinated Notes as and when the same will become due and payable;
(f) the liquidation of the Company (for the avoidance of doubt, “liquidation” does not include any merger, consolidation, sale of equity or assets or reorganization (exclusive of a reorganization in bankruptcy) of the Company or any of its subsidiariesdetermined solely by RACC); or
(k) Debtor (i) sells, transfers or disposes of all or substantially all of its respective stock, assets or property, (ii) becomes the subject of, or engages in, a leveraged buy-out, or (iii) terminates its existence by merger, reorganization or consolidation. THEN, or at any time thereafter:
(1) In the case of any Event of Default under clauses (f) or (g) ), the default or breach of the Company to materially perform any other covenant or agreement on the part of the Company contained in the Subordinated Notes and the continuation of such default or breach (without such default or breach having been waived in accordance with the provisions of Section 17) for a period of 90 consecutive calendar days after there has been given to the Company by the Holders of not less than 25.0% in entire unpaid principal amount of the outstanding Subordinated Notesthis Promissory Note and all other amounts payable hereunder, by registered or certified mail, in the manner set forth in Section 22, a written notice specifying such default or breach and requiring it to be remedied, and stating that such notice is a “Notice of Default” hereunder. Unless the principal of this Subordinated Note already shall have automatically become forthwith due and payable, if an without presentment, demand, protest or notice of any kind, all of which are hereby expressly waived by Debtor; and
(2) In the case of any Event of Default described in Section 5(aother than under clauses (f) or Section 5(b) shall have occurred and be continuing(g), the holder of this Subordinated NoteRACC may, by written notice in writing to CompanyDebtor, may declare the unpaid principal amount of this Subordinated Promissory Note and all other amounts payable hereunder, to be due and payable immediately and, upon any such declaration, the same shall become and shall be immediately forthwith due and payable. The Company waives , without presentment, demand, presentment for payment, protest or further notice of nonpaymentany kind, notice all of protest, which are hereby expressly waived by Debtor. In addition to and all other notices. Notwithstanding without in any way limiting the foregoing, because the Company will treat the Subordinated Notes as Tier 2 Capital, upon the occurrence of an Event of Default or at any time thereafter, RACC may employ all remedies allowed by law, including, without limitation, those available to a secured party under the Uniform Commercial Code. No remedy herein conferred upon RACC is intended to be exclusive of any other than an Event of Default described remedy and each and every remedy shall be cumulative and in Section 5(a) addition to every other remedy hereunder, now or Section 5(b), the Noteholders may not accelerate the Stated Maturity of the Subordinated Notes and make the principal of, and any accrued and unpaid interest on, the Subordinated Notes, immediately due and payable. The Company, within forty-five (45) calendar days after the receipt of written notice from any Noteholder of the occurrence of an Event of Default with respect to this Subordinated Note, shall mail to all Noteholders, hereafter existing at their addresses shown on the Security Register (as defined law or in Section 14 below), such written notice of Event of Default, unless such Event of Default shall have been cured equity or waived before the giving of such notice as certified by the Company in writing. Prior to any acceleration of this Subordinated Note, a Noteholder may waive pursuant to Section 18 below any past Event of Default. In addition, a Noteholder may rescind a declaration of acceleration of this Subordinated Note before any judgment has been obtained if (i) the Company pays all matured installments of principal of and interest on this Subordinated Note (other than installments due by reason of acceleration) and interest on the overdue installments; and (ii) all other Events of Default with respect to this Subordinated Note have been cured or waivedotherwise.
Appears in 2 contracts
Sources: Deferral Note (Great Lakes Aviation LTD), Senior Note (Great Lakes Aviation LTD)
Events of Default; Acceleration. Each of the following events shall constitute an “Event of Default”:
(a) the entry of a decree or order for relief in respect of the Company by a court having jurisdiction in the premises in an involuntary case or proceeding under any applicable bankruptcy, insolvency, or reorganization law, now or hereafter in effect of the United States or any political subdivision thereof, and such decree or order will have continued unstayed and in effect for a period of sixty (60) consecutive calendar daysdays or a banking regulator shall have placed the Bank (as such term is defined in the Purchaser Agreement) into receivership;
(b) the commencement by the Company of a voluntary case under any applicable bankruptcy, insolvency or reorganization law, now or hereafter in effect of the United States or any political subdivision thereof, or the consent by the Company to the entry of a decree or order for relief in an involuntary case or proceeding under any such law;
(c) the Company (i) becomes insolvent or is unable to pay its debts as they mature, (ii) makes an assignment for the benefit of creditors, (iii) admits in writing its inability to pay its debts as they mature, or (iv) ceases to be a bank holding company or financial holding company under the Bank Holding Company Act of 1956, as amended;
(d) the failure of the Company to pay any installment of interest on any of the Subordinated Notes as and when the same will become due and payable, and the continuation of such failure for a period of fifteen (15) consecutive calendar days;
(e) the failure of the Company to pay all or any part of the principal of any of the Subordinated Notes as and when the same will become due and payable;
(f) the liquidation of the Company (for the avoidance of doubt, “liquidation” does not include any merger, consolidation, sale of equity or assets or reorganization (exclusive of a reorganization in bankruptcy) of the Company or any of its subsidiariesSubsidiaries); or;
(g) the default or breach failure of the Company to materially perform any other covenant or agreement on the part of the Company contained in the this Subordinated Notes Note, and the continuation of such default or breach (without such default or breach having been waived in accordance with the provisions of Section 17) failure for a period of 90 consecutive thirty (30) calendar days after there has been given to the Company by the Holders of not less than 25.0% in principal amount of the outstanding Subordinated Notes, by registered or certified mail, in the manner set forth in Section 22, a written date on which notice specifying such default or breach and requiring it to be remediedfailure, and stating that such notice is a “Notice of Default” hereunder. Unless hereunder and demanding that the Company remedy the same, will have been given, in the manner set forth in Section 19, to the Company by the holders of not less than fifteen percent (15.0%) in principal amount of the then outstanding Subordinated Notes; or
(h) the default by the Company under any bond, debenture, note or other evidence of indebtedness for money borrowed by the Company having an aggregate principal amount outstanding of at least $5,000,000, whether such indebtedness now exists or is created or incurred in the future, which default (i) constitutes a failure to pay any portion of the principal of this Subordinated Note already shall such indebtedness when due and payable after the expiration of any applicable grace period or (ii) results in such indebtedness becoming due or being declared due and payable prior to the date on which it otherwise would have become due and payablepayable without, if in the case of clause (i), such indebtedness having been discharged or, in the case of clause (ii), without such indebtedness having been discharged or such acceleration having been rescinded or annulled. If an Event of Default described in Section 5(a), Section 5(b) or Section 5(b5(f) shall have occurred and be continuingoccurs, the holder of this Subordinated Note, by notice in writing to Company, may declare then the principal amount of this all of the outstanding Subordinated Note to be due Notes, and payable immediately andaccrued and unpaid interest, upon any such declarationif any, the same shall on all outstanding Subordinated Notes will become and shall be immediately due and payable. The payable without any declaration or other act on the part of any Noteholder, and the Company waives demand, presentment for payment, notice of nonpayment, notice of protest, and all other notices. Notwithstanding the foregoingany other provision in this Section 5, because the Company will treat the Subordinated Notes as Tier 2 Capital, upon the occurrence of an Event of Default other than an Event of Default described in Section 5(a), Section 5(b) or Section 5(b5(f), the Noteholders no Noteholder may not accelerate the Stated Maturity of the Subordinated Notes and make the principal of, and any accrued and unpaid interest on, the Subordinated Notes, immediately due and payable. The Company, within forty-five thirty (4530) calendar days after the receipt of written notice from any Noteholder of the occurrence of an Event of Default with respect to this Subordinated Note, shall mail to all Noteholders, at their addresses shown on the Security Register (as defined in Section 14 13 below), such written notice of Event of Default, unless such Event of Default shall have been cured or waived before the giving of such notice as certified by the Company in writing. Prior to any acceleration of this Subordinated Note, a Noteholder may waive pursuant to Section 18 below any past Event of Default. In addition, a Noteholder may rescind a declaration of acceleration of this Subordinated Note before any judgment has been obtained if (i) the Company pays all matured installments of principal of and interest on this Subordinated Note (other than installments due by reason of acceleration) and interest on the overdue installments; and (ii) all other Events of Default with respect to this Subordinated Note have been cured or waived.
Appears in 2 contracts
Sources: Subordinated Note Purchase Agreement (ENB Financial Corp), Subordinated Note Purchase Agreement (First Keystone Corp)
Events of Default; Acceleration. Each Upon the occurrence and during the continuation of any Default, the obligation of Lender to make any additional Loan shall be suspended. The occurrence of any of the following events shall constitute (each, an “Event of Default”) shall terminate any obligation of Lender to make any additional Loan; and shall, at the option of Lender (1) make all sums of Basic Interest and principal, and any Obligations and other amounts owing under any Loan Documents immediately due and payable without notice of default (except as set forth in Section 7.1A), presentment or demand for payment, protest or notice of nonpayment or dishonor or any other notices (except as set forth in Section 7.1A) or demands, and (2) give Lender the right to exercise any other right or remedy provided by contract or applicable law:
(a) the entry of a decree Borrower shall fail to pay any principal, interest under this Agreement or order for relief in respect of the Company by a court having jurisdiction in the premises in an involuntary case any Note, or proceeding fail to pay any fees or other charges when due under any applicable bankruptcy, insolvency, or reorganization law, now or hereafter in effect of the United States or any political subdivision thereofLoan Document, and such decree failure continues for five (5) Business Days or order will more after the same first becomes due; or an Event of Default as defined in any other Loan Document shall have continued unstayed and in effect for a period of sixty (60) consecutive calendar days;occurred.
(b) the commencement Any representation or warranty made, or financial statement, certificate or other document provided, by the Company of a voluntary case Borrower under any applicable bankruptcy, insolvency Loan Document shall prove to have been false or reorganization law, now misleading in any material respect when made or hereafter in effect of the United States or any political subdivision thereof, or the consent by the Company to the entry of a decree or order for relief in an involuntary case or proceeding under any such law;deemed made herein.
(c) the Company (i) becomes insolvent or is unable Borrower shall fail to pay its debts generally as they maturebecome due or shall commence any Insolvency Proceeding with respect to itself; an involuntary Insolvency Proceeding shall be filed against Borrower, (ii) makes an assignment or a custodian, receiver, trustee, assignee for the benefit of creditors, or other similar official, shall be appointed to take possession, custody or control of the properties of Borrower, and such involuntary Insolvency Proceeding, petition or appointment is acquiesced to by Borrower or is not dismissed within sixty (iii60) admits in writing its inability to pay its debts as they mature, days; or (iv) ceases to be a bank holding company the dissolution or financial holding company under termination of the Bank Holding Company Act business of 1956, as amended;Borrower.
(d) Borrower shall be in default beyond any applicable period of grace or cure under any other material agreement involving the failure borrowing of money, the purchase of property, the advance of credit or any other monetary liability of any kind to Lender or to any Person which results in the acceleration of payment of such obligation in an amount in excess of the Company to pay any installment of interest on any of the Subordinated Notes as and when the same will become due and payable, and the continuation of such failure for a period of fifteen (15) consecutive calendar days;Threshold Amount.
(e) Any governmental or regulatory authority shall take any judicial or administrative action, or any defined benefit pension plan maintained by Borrower shall have any unfunded liabilities, any of which, in the failure reasonable judgment of Lender, could reasonably be expected to have a Material Adverse Effect. Notwithstanding the foregoing, this subsection 7.1(e) shall not apply to an action by the U.S. Food and Drug Administration, Centers for Medicare & Medicaid Services or any other similar state, federal or foreign governmental or regulatory authority with respect to matters including, without limitation, the approval or clearance of the Company to pay all sale of Borrower’s products, the recall of Borrower’s products, the coverage or any part of the principal of any of the Subordinated Notes as and when the same will become due and payable;payment for Borrower’s products.
(f) the liquidation Any sale, transfer or other disposition of all or a substantial or material part of the Company assets of Borrower, including without limitation to any trust or similar entity, shall occur.
(g) Any judgment(s) singly or in the aggregate in excess of the Threshold Amount shall be entered against Borrower which remain unsatisfied, unvacated or unstayed pending appeal for ten (10) or more days after entry thereof.
(h) At any time prior to the initial sale of Borrower’s equity securities to the public pursuant to a registration statement filed under the Securities Act of 1933, as amended, any Person or two or more Persons (other than any “Excluded Person” as defined below) acting in concert shall have acquired (in a single transaction or series of related transactions) beneficial ownership (within the meaning of Rule 13d-3 of the Securities and Exchange Commission) of outstanding shares of voting stock of Borrower representing fifty percent (50%) or more of the voting power of all shares of Borrower’s voting stock that are outstanding immediately after such acquisition, provided, however, that this provision shall not apply to any transaction that meets the requirements of Section 6.4 of this Agreement. As used in this paragraph, “Excluded Person” means: (i) any Person who is a stockholder of Borrower as of the Closing Date; (ii) a venture capital firm or similar investment fund or institution; or (iii) an affiliate of any Person described in clause (i) or (ii). For the avoidance of doubt, “liquidation” does this subsection 7.1(h) shall not include apply to any merger, consolidation, sale of equity or assets or reorganization (exclusive of a reorganization in bankruptcy) transaction that satisfies each of the Company or any of its subsidiaries); or
(g) the default or breach of the Company to materially perform any other covenant or agreement on the part of the Company contained in the Subordinated Notes and the continuation of such default or breach (without such default or breach having been waived in accordance with the provisions of Section 17) for a period of 90 consecutive calendar days after there has been given to the Company by the Holders of not less than 25.0% in principal amount of the outstanding Subordinated Notes, by registered or certified mail, in the manner conditions set forth in Section 22, a written notice specifying such default or breach and requiring it to be remedied, and stating that such notice is a “Notice of Default” hereunder. Unless the principal of this Subordinated Note already shall have become due and payable, if an Event of Default described in Section 5(a) or Section 5(b) shall have occurred and be continuing, the holder of this Subordinated Note, by notice in writing to Company, may declare the principal amount of this Subordinated Note to be due and payable immediately and, upon any such declaration, the same shall become and shall be immediately due and payable. The Company waives demand, presentment for payment, notice of nonpayment, notice of protest, and all other notices. Notwithstanding the foregoing, because the Company will treat the Subordinated Notes as Tier 2 Capital, upon the occurrence of an Event of Default other than an Event of Default described in Section 5(a) or Section 5(b), the Noteholders may not accelerate the Stated Maturity of the Subordinated Notes and make the principal of, and any accrued and unpaid interest on, the Subordinated Notes, immediately due and payable. The Company, within forty-five (45) calendar days after the receipt of written notice from any Noteholder of the occurrence of an Event of Default with respect to this Subordinated Note, shall mail to all Noteholders, at their addresses shown on the Security Register (as defined in Section 14 below), such written notice of Event of Default, unless such Event of Default shall have been cured or waived before the giving of such notice as certified by the Company in writing. Prior to any acceleration of this Subordinated Note, a Noteholder may waive pursuant to Section 18 below any past Event of Default. In addition, a Noteholder may rescind a declaration of acceleration of this Subordinated Note before any judgment has been obtained if (i) the Company pays all matured installments of principal of and interest on this Subordinated Note (other than installments due by reason of acceleration) and interest on the overdue installments; and (ii) all other Events of Default with respect to this Subordinated Note have been cured or waived6.4.
Appears in 2 contracts
Sources: Loan and Security Agreement (Emphasys Medical, Inc.), Loan and Security Agreement (Emphasys Medical, Inc.)
Events of Default; Acceleration. Each The occurrence of one or more of the following events without a cure in 30 days after occurrence of the default or within such other time period provided herein (each an "Event of Default") shall constitute an “Event of Default”:
(a) the entry of a decree or order for relief in respect of the The Company by a court having jurisdiction defaults in the premises in an involuntary case payment of principal of or proceeding under any applicable bankruptcy, insolvency, or reorganization law, now or hereafter in effect of interest on the United States Convertible Notes or any political subdivision thereofother fee or expense due under the Transaction Documents when the same becomes due and payable, whether on demand, at maturity or at a date fixed for the payment of any installment or prepayment thereof or otherwise, and such decree default is not waived or order will have continued unstayed cured within thirty (30) days after such default occurs.
(b) The Company defaults in the performance of or compliance with any covenant or provision of this Agreement, the Convertible Notes, or in any Transaction Document, or Sterling defaults in the performance of or compliance with any covenant or agreement in any of the Sterling Transaction Documents, and in effect for a period of any such default is not cured or waived within sixty (60) consecutive calendar days;
(b) the commencement by days after the Company of a voluntary or Sterling, as the case under any applicable bankruptcymay be, insolvency or reorganization law, now or hereafter in effect has notice of the United States or any political subdivision thereof, or the consent by the Company to the entry occurrence of a decree or order for relief in an involuntary case or proceeding under any such law;default.
(c) The representations or warranties made by the Company in this Agreement and in any Transaction Document, and the representations and warranties made by Sterling in the Sterling Transaction Documents shall prove to have been false or incorrect in any material respect when made.
(id) becomes insolvent SpectRx discontinues its business or is unable to pay its debts as they mature, (ii) makes an assignment for the benefit of creditors, (iii) admits in writing its inability to pay its debts as they mature, or (iv) ceases to be a bank holding company or financial holding company under the Bank Holding Company Act of 1956, as amended;
(d) the failure of the Company to pay any installment of interest on any of the Subordinated Notes as and when the same will become due and payable, and the continuation of such failure for a period of fifteen (15) consecutive calendar days;.
(e) If, within sixty (60) days after the failure commencement against any SpectRx Company of a case under the Company to pay all federal bankruptcy laws, as now or hereafter constituted, or any other applicable federal or state bankruptcy, insolvency or other similar law, such case shall have been consented to or shall not have been dismissed or all orders or proceedings thereunder affecting the operations or the business of such SpectRx Company stayed, or if the stay of any such order or proceeding shall thereafter be set aside, or if within sixty (60) days after the entry of a decree appointing a trustee, receiver or liquidator (or other similar official ) of such SpectRx Company or any substantial part of the principal property of any of the Subordinated Notes as and when the same will become due and payable;such SpectRx Company such appointment shall not have been vacated.
(f) A Change of Control or sale of a majority of the liquidation business or assets of the Company (for the avoidance of doubt, “liquidation” does not include any merger, consolidation, sale of equity unless approved by one or assets or reorganization (exclusive of a reorganization in bankruptcy) more of the Company members of the Board of Directors nominated by the Majority Noteholders, or any of its subsidiaries); orby the Majority Noteholders or by the Agent.
(g) the default Attachment or breach judgment in excess of the Company to materially perform any other covenant $500,000 that is not covered by insurance if not discharged, annulled or agreement on the part of the Company contained in the Subordinated Notes stayed within thirty (30) days thereafter.
(h) The occurrence and the continuation of such default or breach (without such default or breach having been waived in accordance with the provisions of Section 17) for a period of 90 consecutive calendar days after there has been given to the Company by the Holders of not less than 25.0% in principal amount of the outstanding Subordinated Notes, by registered or certified mail, in the manner set forth in Section 22, a written notice specifying such default or breach and requiring it to be remedied, and stating that such notice is a “Notice of Default” hereunder. Unless the principal of this Subordinated Note already shall have become due and payable, if an Event of Default described in Section 5(a) or Section 5(b) shall have occurred and be continuing, the holder of this Subordinated Note, by notice in writing to Company, may declare the principal amount of this Subordinated Note to be due and payable immediately and, upon any such declaration, the same shall become and shall be immediately due and payable. The Company waives demand, presentment for payment, notice of nonpayment, notice of protest, and all other notices. Notwithstanding the foregoing, because the Company will treat the Subordinated Notes as Tier 2 Capital, upon the occurrence continuance of an Event of Default other than that results in an Event acceleration of Default described in Section 5(a) or Section 5(b), the Noteholders may not accelerate the Stated Maturity any Indebtedness of the Subordinated Notes and make the principal of, and any accrued and unpaid interest on, the Subordinated Notes, immediately due and payable. The Company, within forty-five (45) calendar days after the receipt of written notice from any Noteholder of the occurrence of an Event of Default with respect to this Subordinated Note, shall mail to all Noteholders, at their addresses shown on the Security Register (as defined in Section 14 below), such written notice of Event of Default, unless such Event of Default shall have been cured or waived before the giving of such notice as certified by the Company in writing. Prior to any acceleration excess of this Subordinated Note, a Noteholder may waive pursuant to Section 18 below any past Event of Default. In addition, a Noteholder may rescind a declaration of acceleration of this Subordinated Note before any judgment has been obtained if (i) the Company pays all matured installments of principal of and interest on this Subordinated Note (other than installments due by reason of acceleration) and interest on the overdue installments; and (ii) all other Events of Default with respect to this Subordinated Note have been cured or waived$500,000.
Appears in 2 contracts
Sources: Loan Agreement (Spectrx Inc), Loan Agreement (Spectrx Inc)
Events of Default; Acceleration. Each Upon the occurrence and during the continuation of any Event of Default, the obligation of each Lender to make any additional Loan shall be suspended. The occurrence and continuation of any of the following events shall constitute (each, an “Event of Default”) shall at the option of Agent, at the direction of the Required Lenders (1) make all sums of Basic Interest and principal, as well as any other Obligations and amounts owing under any Loan Documents, immediately due and payable without notice of default, presentment or demand for payment, protest or notice of nonpayment or dishonor or any other notices or demands, and (2) give Agent the right to exercise any other right or remedy provided by contract or applicable law:
(a) the entry of a decree Borrower shall fail to pay any principal or order for relief in respect of the Company by a court having jurisdiction in the premises in an involuntary case interest under this Agreement or proceeding any Note, or fail to pay any fees or other charges when due under any applicable bankruptcy, insolvency, or reorganization law, now or hereafter in effect of the United States or any political subdivision thereofLoan Document, and such decree failure continues for three (3) Business Days or order will have continued unstayed more after the same first becomes due; provided, however, that Agent’s or any Lender’s failure to effect, or effort in effecting, timely automatic debits of the appropriate funds from the Primary Operating Account as provided in Sections 2.2 and in effect for a period 5.10 hereof shall not constitute an Event of sixty (60) consecutive calendar days;Default.
(b) the commencement Any representation or warranty made, or financial statement, certificate or other document provided, by the Company of a voluntary case Borrower under any applicable bankruptcy, insolvency Loan Document shall prove to have been false or reorganization law, now misleading in any material respect when made or hereafter in effect of the United States or any political subdivision thereof, or the consent by the Company to the entry of a decree or order for relief in an involuntary case or proceeding under any such law;deemed made herein.
(c) the Company If there occurs any circumstance or circumstances that could reasonably be expected to have a Material Adverse Effect.
(i) becomes insolvent or is unable Borrower shall fail to pay its debts generally as they mature, become due; or (ii) makes Borrower shall commence any Insolvency Proceeding with respect to itself, an assignment involuntary Insolvency Proceeding shall be filed against Borrower, or a custodian, receiver, trustee, assignee for the benefit of creditors, or other similar official, shall be appointed to take possession, custody or control of the properties of Borrower, and such involuntary Insolvency Proceeding, petition or appointment is acquiesced to by Borrower or is not dismissed within forty five (45) days; (iii) admits in writing its inability the dissolution, winding up, or termination of the business or cessation of operations of Borrower (including any transaction or series of related transactions deemed to pay its debts be a liquidation, dissolution or winding up of Borrower (other than as they mature, permitted by Section 6.4 hereof) pursuant to the provisions of ▇▇▇▇▇▇▇▇’s charter documents); or (iv) ceases Borrower shall take any corporate action for the purpose of effecting, approving, or consenting to be a bank holding company or financial holding company under the Bank Holding Company Act of 1956, as amended;
(d) the failure of the Company to pay any installment of interest on any of the Subordinated Notes as and when the same will become due and payable, and the continuation of such failure for a period of fifteen (15) consecutive calendar days;foregoing.
(e) Borrower shall be in default beyond any applicable period of grace or cure under any other agreement involving the failure borrowing of money, the purchase of property on credit, the advance of credit or any other monetary liability of any kind to any Lender or to any other Person in an amount in excess of Five Hundred Thousand Dollars ($500,000), however, that the Event of Default under this Section 7.1(e) caused by the occurrence of a breach or default under such other agreement shall be cured or waived for purposes of this Agreement upon Agent receiving written notice from the party asserting such breach or default of such cure or waiver of the Company to pay all breach or any part of the principal of any of the Subordinated Notes as and when the same will become due and payable;default under such other agreement.
(f) the liquidation of the Company Any governmental or regulatory authority shall take any judicial or administrative action which is not dismissed, stayed or otherwise resolved within thirty (for the avoidance of doubt30) days, “liquidation” does not include any merger, consolidation, sale of equity or assets or reorganization (exclusive of a reorganization in bankruptcy) of the Company or any defined benefit pension plan maintained by Borrower shall have any unfunded liabilities, any of its subsidiaries); orwhich, in the reasonable judgment of Agent and each Lender, could reasonably be expected to have a Material Adverse Effect.
(g) the default Except as otherwise permitted pursuant to Sections 6.4 or breach 6.5, any sale, transfer or other disposition of the Company to materially perform any other covenant all or agreement on the a substantial or material part of the Company assets constituting Collateral of Borrower, except for the creation of Permitted Liens, including without limitation to any trust or similar entity, shall occur.
(h) Any judgment(s) (not covered by third- party insurance as to which the insurer does not dispute coverage) singly or in the aggregate in excess of Five Hundred Thousand Dollars ($500,000) (excluding amounts covered by third-party insurance as to which the insurer does not dispute coverage) shall be entered against Borrower which remain unsatisfied, unvacated or unstayed pending appeal for thirty (30) or more days after entry thereof.
(i) Borrower shall fail to perform or observe any covenant contained in Article 6 of this Agreement.
(j) Borrower shall fail to perform or observe any covenant contained in Article 5 or elsewhere in this Agreement or any other Loan Document (other than a covenant which is dealt with specifically elsewhere in this Article 7) and, if capable of being cured, the Subordinated Notes and the continuation breach of such default or breach covenant is not cured within ten (without such default or breach having been waived in accordance with the provisions of Section 1710) for a period of 90 consecutive calendar days after there has been given to the Company by the Holders of not less than 25.0% in principal amount of the outstanding Subordinated Notes, by registered or certified mail, in the manner set forth in Section 22, a written notice specifying such default or breach and requiring it to be remedied, and stating that such notice is a “Notice of Default” hereunder. Unless the principal of this Subordinated Note already shall have become due and payable, if an Event of Default described in Section 5(a) or Section 5(b) shall have occurred and be continuing, the holder of this Subordinated Note, by notice in writing to Company, may declare the principal amount of this Subordinated Note to be due and payable immediately and, upon any such declaration, the same shall become and shall be immediately due and payable. The Company waives demand, presentment for payment, notice of nonpayment, notice of protest, and all other notices. Notwithstanding the foregoing, because the Company will treat the Subordinated Notes as Tier 2 Capital, upon the occurrence of an Event of Default other than an Event of Default described in Section 5(a) or Section 5(b), the Noteholders may not accelerate the Stated Maturity of the Subordinated Notes and make the principal of, and any accrued and unpaid interest on, the Subordinated Notes, immediately due and payable. The Company, within forty-five (45) calendar days after the sooner to occur of Borrower’s receipt of written notice from any Noteholder of the occurrence of an Event of Default with respect to this Subordinated Note, shall mail to all Noteholders, at their addresses shown on the Security Register (as defined in Section 14 below), such written notice of Event of Default, unless such Event of Default shall have been cured breach from Agent or waived before the giving of date on which such notice as certified by the Company in writing. Prior breach first becomes known to any acceleration senior officer of this Subordinated NoteBorrower (the “Notice Date”); provided, a Noteholder may waive pursuant however that if such breach is not capable of being cured within such 10-day period and Borrower timely notifies Agent and Borrower diligently pursues such cure, then the cure period shall be extended to Section 18 below any past Event of Default. In addition, a Noteholder may rescind a declaration of acceleration of this Subordinated Note before any judgment has been obtained if the date requested in Borrower’s notice but in no event more than thirty (i30) days from the Company pays all matured installments of principal of and interest on this Subordinated Note (other than installments due by reason of acceleration) and interest on the overdue installments; and (ii) all other Events of Default with respect to this Subordinated Note have been cured or waivedNotice Date.
Appears in 1 contract
Events of Default; Acceleration. Each Upon the occurrence and during the continuation of any Default, the obligation of Lender to make any additional Loan shall be temporarily suspended until such time (if any) as such Default has been cured within any applicable cure period or waived by Lender. The occurrence of any of the following events shall constitute (each, an “Event of Default”) shall terminate any obligation of Lender to make any additional Loan; and shall, at the option of Lender (1) make all sums of Basic Interest and principal, as well as any other Obligations and other amounts owing under any Loan Documents, immediately due and payable without notice of default, presentment or demand for payment, protest or notice of nonpayment or dishonor or any other notices or demands, and (2) give Lender the right to exercise any other right or remedy provided by contract or applicable law:
(a) the entry of a decree Borrowers shall fail to pay any principal or order for relief in respect of the Company by a court having jurisdiction in the premises in an involuntary case interest under this Agreement or proceeding any Note, or fail to pay any fees or other charges when due under any applicable bankruptcy, insolvency, or reorganization law, now or hereafter in effect of the United States or any political subdivision thereofLoan Document, and such decree failure continues for three (3) Business Days or order will more after the same first becomes due; or an Event of Default as defined in any other Loan Document shall have continued unstayed occurred and in effect for a period of sixty (60) consecutive calendar days;be continuing.
(b) the commencement Any representation or warranty made, or financial statement, certificate or other document provided, by the Company of a voluntary case any Borrower under any applicable bankruptcy, insolvency Loan Document shall prove to have been false or reorganization law, now misleading in any material respect when made or hereafter in effect of the United States or any political subdivision thereof, or the consent by the Company to the entry of a decree or order for relief in an involuntary case or proceeding under any such law;deemed made herein.
(c) the Company (i) becomes insolvent or is unable Any Borrower shall fail to pay its debts generally as they mature, become due; or (ii) makes any Borrower shall commence any Insolvency Proceeding with respect to itself, an assignment involuntary Insolvency Proceeding shall be filed against any Borrower, or a custodian, receiver, trustee, assignee for the benefit of creditors, or other similar official, shall be appointed to take possession, custody or control of the properties of any Borrower, and such involuntary Insolvency Proceeding, petition or appointment is acquiesced to by Borrower or is not dismissed within forty five (45) days; or (iii) admits in writing its inability the dissolution, winding up, or termination of the business or cessation of operations of any Borrower (including any transaction or series of related transactions deemed to pay its debts as they maturebe a liquidation, dissolution or winding up of such Borrower pursuant to the provisions of such Borrower’s charter documents); or (iv) ceases any Borrower shall take any corporate or company action for the purpose of effecting, approving, or consenting to be a bank holding company or financial holding company under any of the Bank Holding Company Act of 1956, as amended;foregoing.
(d) Any Borrower shall be in default beyond any applicable period of grace or cure under any other material agreement involving the failure borrowing of money, the purchase of property, the advance of credit or any other monetary liability of any kind to Lender or to any Person in an amount in excess of the Company to pay any installment of interest on any of the Subordinated Notes as and when the same will become due and payable, and the continuation of such failure for a period of fifteen (15) consecutive calendar days;Threshold Amount.
(e) the failure of the Company to pay all Any governmental or regulatory authority shall take any judicial or administrative action, or any part of the principal of defined benefit pension plan maintained by any Borrower shall have any unfunded liabilities, any of which, in the Subordinated Notes as and when the same will become due and payable;reasonable judgment of Lender, could reasonably be expected to have a Material Adverse Effect.
(f) the liquidation Any sale, transfer or other disposition of all or a substantial or material part of the Company (for the avoidance assets of doubtany Borrower, “liquidation” does not include including without limitation to any mergertrust or similar entity, consolidationshall occur, sale of equity or assets or reorganization (exclusive of a reorganization in bankruptcy) of the Company or any of its subsidiaries); orexcept as otherwise permitted herein.
(g) Any judgment(s) singly or in the default aggregate in excess of the Threshold Amount shall be entered against any Borrower which remain unsatisfied, unvacated or unstayed pending appeal for ten (10) or more Business Days after entry thereof.
(h) Any Borrower shall fail to perform or observe any covenant contained in Article 6 of this Agreement.
(i) Any Borrower shall fail to perform or observe any covenant contained in Article 5 or elsewhere in this Agreement or any other Loan Document (other than a covenant which is dealt with specifically elsewhere in this Article 7) and, if capable of being cured, the breach of the Company to materially perform any other such covenant or agreement on the part of the Company contained in the Subordinated Notes and the continuation of such default or breach (without such default or breach having been waived in accordance with the provisions of Section 17) for a period of 90 consecutive calendar days after there has been given to the Company by the Holders of is not less than 25.0% in principal amount of the outstanding Subordinated Notes, by registered or certified mail, in the manner set forth in Section 22, a written notice specifying such default or breach and requiring it to be remedied, and stating that such notice is a “Notice of Default” hereunder. Unless the principal of this Subordinated Note already shall have become due and payable, if an Event of Default described in Section 5(a) or Section 5(b) shall have occurred and be continuing, the holder of this Subordinated Note, by notice in writing to Company, may declare the principal amount of this Subordinated Note to be due and payable immediately and, upon any such declaration, the same shall become and shall be immediately due and payable. The Company waives demand, presentment for payment, notice of nonpayment, notice of protest, and all other notices. Notwithstanding the foregoing, because the Company will treat the Subordinated Notes as Tier 2 Capital, upon the occurrence of an Event of Default other than an Event of Default described in Section 5(a) or Section 5(b), the Noteholders may not accelerate the Stated Maturity of the Subordinated Notes and make the principal of, and any accrued and unpaid interest on, the Subordinated Notes, immediately due and payable. The Company, cured within forty-five (45) calendar 30 days after the sooner to occur of such Borrower’s receipt of written notice from any Noteholder of the occurrence of an Event of Default with respect to this Subordinated Note, shall mail to all Noteholders, at their addresses shown on the Security Register (as defined in Section 14 below), such written notice of Event of Default, unless such Event of Default shall have been cured breach from Lender or waived before the giving date on which such breach first becomes known to any senior officer of such Borrower; provided, however that if such breach is not capable of being cured within such 30-day period and such Borrower timely notifies Lender of such fact and such Borrower diligently pursues such cure, then the cure period shall be extended to the date requested in such Borrower’s notice as certified by but in no event more than 90 days from the Company initial breach; provided, further, that such additional 60-day opportunity to cure shall not apply in writing. Prior the case of any failure to perform or observe any acceleration of this Subordinated Note, a Noteholder may waive pursuant to Section 18 below any past Event of Default. In addition, a Noteholder may rescind a declaration of acceleration of this Subordinated Note before any judgment covenant which has been obtained if (i) the Company pays all matured installments subject of principal of a prior failure within the preceding 180 days or which is a willful and interest on this Subordinated Note (other than installments due knowing breach by reason of acceleration) and interest on the overdue installments; and (ii) all other Events of Default with respect to this Subordinated Note have been cured or waivedsuch Borrower.
Appears in 1 contract
Sources: Loan and Security Agreement (Digital Caddies, Inc.)
Events of Default; Acceleration. Each If any of the following ------------------------------- events shall constitute an “Event ("Events of Default”") shall occur:
(ai) If Borrower shall default in the entry payment of any installment of principal, other than principal prepayments required by Section 3 or Section 4 of this Note, or of interest on this Note for ten (10) calendar days after the same shall become due and payable; or, with respect to principal prepayments required by Section 3 or Section 4 of this Note, after the same shall become due and payable;
(ii) Except for any technical defaults under agreements or other borrowing arrangements with Roasters Corp. or any other obligation for money borrowed in the aggregate amount of $100,000 or less, the Parent Company, Borrower or any subsidiary defaults in any payment of principal of or interest on any other obligation for money borrowed (or of any obligation under conditional sale or other title retention agreements or of any obligation secured by purchase money mortgage or of any obligation under notes payable or drafts accepted representing extensions of credit) beyond any period of grace provided with respect thereto, or the Borrower or any subsidiary defaults in the performance or observance of any other material agreement, term or condition contained in any agreement under which any such obligation is created, or if any other event of default thereunder or under any such agreement shall occur and be continuing and the effect of such event or default is to cause, or to permit the holder or holders of such obligation or a decree trustee on behalf of such holder or order for relief in respect holders, to cause, such obligation to become due prior to any stated maturity;
(iii) The Parent Company or Borrower shall commence a voluntary case concerning itself under Title 11 of the Company by a court having jurisdiction United States Code entitled "Bankruptcy" as now or hereafter in effect, or any successor thereto (the premises in "Bankruptcy Code"); or an involuntary case is commenced against the Parent Company or Borrower, and the petition is not controverted within ten (10) business days, or is not dismissed within sixty (60) calendar days, after commencement of the case; or a custodian (as defined in the Bankruptcy Code) is appointed for, or takes charge of, all or substantially all of the property of the Parent Company or Borrower, or the Parent Company or Borrower commences any other proceeding under any applicable bankruptcyreorganization, insolvencyarrangement, adjustment of debt, relief of debtors, dissolution, insolvency or reorganization law, liquidation or similar law of any jurisdiction whether now or hereafter in effect of relating to the United States Parent Company or Borrower, or there is commenced against the Parent Company or Borrower any political subdivision thereof, and such decree or order will have continued unstayed and in effect proceeding which remains undismissed for a period of sixty (60) consecutive calendar days;
(b) the commencement by the Company of a voluntary case under any applicable bankruptcy, insolvency or reorganization law, now or hereafter in effect of the United States or any political subdivision thereof, or the consent by the Parent Company to the entry or Borrower is adjudicated insolvent or bankrupt; or any order of a decree relief or other order for relief in an involuntary approving any such case or proceeding under is entered; or the Parent Company or Borrower suffers any such law;
appointment of any custodian or the like for it or any substantial part of its property to continue undischarged or unstayed for a period of sixty (c60) calendar days; or the Parent Company (i) becomes insolvent or is unable to pay its debts as they mature, (ii) Borrower makes an a general assignment for the benefit of creditors, (iii) admits in writing its inability to pay its debts as they mature, ; or (iv) ceases to be a bank holding company any corporate action is taken by the Parent Company or financial holding company under Borrower for the Bank Holding Company Act purpose of 1956, as amended;
(d) the failure of the Company to pay any installment of interest on effecting any of the Subordinated Notes as and when the same will become due and payable, and the continuation of such failure for a period of fifteen (15) consecutive calendar days;
(e) the failure of the Company to pay all or any part of the principal of any of the Subordinated Notes as and when the same will become due and payable;
(f) the liquidation of the Company (for the avoidance of doubt, “liquidation” does not include any merger, consolidation, sale of equity or assets or reorganization (exclusive of a reorganization in bankruptcy) of the Company or any of its subsidiaries)foregoing; or
(giv) Borrower or the default Parent Company defaults in the performance or breach observance of the Company to materially perform any other post-closing covenant concerning Santa ▇▇▇ reimbursement or agreement on the part Parent Company's indemnification obligations under the Agreement and Plan of the Company contained in the Subordinated Notes and the continuation Reorganization dated as of such default or breach (without such default or breach having been waived in accordance with the provisions of Section 17) for a period of 90 consecutive calendar days after there has been given to the Company by the Holders of not less than 25.0% in principal amount of the outstanding Subordinated NotesJuly 7, 1995, by registered or certified mail, in the manner set forth in Section 22, a written notice specifying such default or breach and requiring it to be remedied, and stating that such notice is a “Notice of Default” hereunder. Unless the principal of this Subordinated Note already shall have become due and payable, if an Event of Default described in Section 5(a) or Section 5(b) shall have occurred and be continuingamong Borrower, the holder of this Subordinated Note, by notice in writing to Parent Company, may declare the principal amount of this Subordinated Note to be due Lender and payable immediately and, upon any such declaration, the same shall become and shall be immediately due and payable. The Company waives demand, presentment for payment, notice of nonpayment, notice of protest, and all other notices. Notwithstanding the foregoing, because the Company will treat the Subordinated Notes as Tier 2 Capital, upon the occurrence of an Event of Default other than an Event of Default described in Section 5(a) or Section 5(b), the Noteholders may not accelerate the Stated Maturity of the Subordinated Notes and make the principal of, and any accrued and unpaid interest on, the Subordinated Notes, immediately due and payable. The Company, within forty-five (45) calendar days after the receipt of written notice from any Noteholder of the occurrence of an Event of Default with respect to this Subordinated Note, shall mail to all Noteholders, at their addresses shown on the Security Register (as defined in Section 14 below), such written notice of Event of Default, unless such Event of Default shall have been cured or waived before the giving of such notice as certified by the Company in writing. Prior to any acceleration of this Subordinated Note, a Noteholder may waive pursuant to Section 18 below any past Event of Default. In addition, a Noteholder may rescind a declaration of acceleration of this Subordinated Note before any judgment has been obtained if (i) the Company pays all matured installments of principal of and interest on this Subordinated Note (other than installments due by reason of acceleration) and interest on the overdue installments; and (ii) all other Events of Default with respect to this Subordinated Note have been cured or waived.Paradise Acquisition Corporation;
Appears in 1 contract
Events of Default; Acceleration. Each Upon the occurrence and during the continuation of any Default, the obligation of Lender to make any additional Loan shall be suspended. The occurrence of any of the following events shall constitute (each, an “Event of Default”) that has not been cured within any applicable cure period or waived by Lender shall terminate any obligation of Lender to make any additional Loan; and shall, at the option of Lender (1) make all sums of Basic Interest and principal, as well as any other Obligations and amounts owing under any Loan Documents, immediately due and payable without notice of default, presentment or demand for payment, protest or notice of nonpayment or dishonor or any other notices or demands, and (2) give Lender the right to exercise any other right or remedy provided by contract or applicable law:
(a) the entry of a decree Borrower shall fail to pay any principal or order for relief in respect of the Company by a court having jurisdiction in the premises in an involuntary case interest under this Agreement or proceeding any Note, or fail to pay any fees or other charges when due under any applicable bankruptcy, insolvency, or reorganization law, now or hereafter in effect of the United States or any political subdivision thereofLoan Document, and such decree failure continues for three (3) Business Days or order will more after the same first becomes due; or an Event of Default as defined in any other Loan Document shall have continued unstayed and in effect for a period of sixty (60) consecutive calendar days;occurred.
(b) the commencement Any representation or warranty made herein, or which is contained in any financial statement, certificate or other document provided, by the Company of a voluntary case Borrower under any applicable bankruptcyLoan Document shall prove to have been false or misleading in any material respect when made or deemed made herein; provided, insolvency that, with respect to the Intellectual Property Agreement, Borrower’s representations or reorganization lawwarranties made therein shall prove false or misleading in any material respect, now or hereafter in effect and, as to any breach that is capable of cure, Borrower fails to cure such breach within thirty (30) days of the United States or any political subdivision thereof, sooner to occur of Borrower’s receipt of notice of such breach from Lender or the consent by the Company date on which such breach first becomes known to the entry a senior officer of a decree or order for relief in an involuntary case or proceeding under any such law;Borrower.
(c) the Company (i) becomes insolvent or is unable to pay its debts as they mature, (ii) makes an assignment for the benefit of creditors, (iii) admits Borrower shall admit in writing its inability to pay its debts generally as they maturebecome due; or (ii) Borrower shall commence any Insolvency Proceeding with respect to itself, an involuntary Insolvency Proceeding shall be filed against Borrower, or a custodian, receiver, trustee, assignee for the benefit of creditors, or other similar official, shall be appointed to take possession, custody or control of the properties of Borrower, and such involuntary Insolvency Proceeding, petition or appointment is acquiesced to by Borrower or is not dismissed within sixty (60) days; or (iii) the dissolution, winding up, or termination of the business or cessation of operations of Borrower (including any transaction or series of related transactions deemed to be a liquidation, dissolution or winding up of Borrower pursuant to the provisions of Borrower’s charter documents) except as permitted under Section 6,4; or (iv) ceases Borrower shall take any corporate action for the purpose of effecting, approving, or consenting to be a bank holding company or financial holding company under any of the Bank Holding Company Act of 1956, as amended;foregoing.
(d) Borrower shall be in default beyond any applicable period of grace or cure under any other agreement involving the failure borrowing of money, the purchase of property, the advance of credit or any other monetary liability of any kind to Lender or to any Person in an amount in excess of the Company to pay any installment of interest on any of the Subordinated Notes as and when the same will become due and payable, and the continuation of such failure for a period of fifteen (15) consecutive calendar days;Threshold Amount.
(e) Any governmental or regulatory authority shall take any judicial or administrative action that has, or would reasonably be expected to have, the failure effect of suspending or terminating any material portion of Borrower’s business; or any Pension Plan shall have any unfunded liabilities in excess of the Company to pay all or any part of the principal of any of the Subordinated Notes as and when the same will become due and payable;Threshold Amount.
(f) the liquidation Except as permitted pursuant to Section 6.5, any sale, transfer or other disposition of all or substantially all of the Company (assets of Borrower, except for the avoidance creation of doubtPermitted Liens, “liquidation” does not include including without limitation to any mergertrust or similar entity, consolidation, sale of equity or assets or reorganization (exclusive of a reorganization in bankruptcy) of the Company or any of its subsidiaries); orshall occur.
(g) Any judgment(s) singly or in the default or breach aggregate in excess of the Company to materially perform any other covenant or agreement on the part of the Company contained in the Subordinated Notes and the continuation of such default or breach (without such default or breach having been waived in accordance with the provisions of Section 17) for a period of 90 consecutive calendar days after there has been given to the Company by the Holders of not less than 25.0% in principal amount of the outstanding Subordinated Notes, by registered or certified mail, in the manner set forth in Section 22, a written notice specifying such default or breach and requiring it to be remedied, and stating that such notice is a “Notice of Default” hereunder. Unless the principal of this Subordinated Note already shall have become due and payable, if an Event of Default described in Section 5(a) or Section 5(b) shall have occurred and be continuing, the holder of this Subordinated Note, by notice in writing to Company, may declare the principal amount of this Subordinated Note to be due and payable immediately and, upon any such declaration, the same shall become and Threshold Amount shall be immediately due entered against Borrower which are not covered by insurance and payable. The Company waives demandwhich remain unsatisfied, presentment unvacated or unstayed in pending appeal for payment, notice of nonpayment, notice of protest, and all other notices. Notwithstanding the foregoing, because the Company will treat the Subordinated Notes as Tier 2 Capital, upon the occurrence of an Event of Default other than an Event of Default described in Section 5(a) or Section 5(b), the Noteholders may not accelerate the Stated Maturity of the Subordinated Notes and make the principal of, and any accrued and unpaid interest on, the Subordinated Notes, immediately due and payable. The Company, within forty-five (45) calendar or more Business Days after entry thereof.
(h) Borrower shall fail to perform or observe any covenant contained in Article 6 of this Agreement.
(i) Borrower shall fail to perform or observe any covenant contained in Article 5 or elsewhere in this Agreement or any other Loan Document (other than a covenant which is dealt with specifically elsewhere in this Article 7) and, if capable of being cured, the breach of such covenant is not cured within 30 days after the sooner to occur of Borrower’s receipt of written notice from any Noteholder of the occurrence of an Event of Default with respect to this Subordinated Note, shall mail to all Noteholders, at their addresses shown on the Security Register (as defined in Section 14 below), such written notice of Event such breach from Lender or the date on which such breach first becomes known to any officer of DefaultBorrower; provided, unless however that if such Event breach is not capable of Default shall have been being- cured or waived before the giving within such 30-day period and Borrower timely notifies Lender of such fact and Borrower diligently pursues such cure, then the cure period shall be extended to the date requested in Borrower’s notice as certified by but in no event more than 90 days from the Company initial breach; provided, further, that such additional 60-day opportunity to cure shall not apply in writing. Prior the case of any failure to perform or observe any acceleration of this Subordinated Note, a Noteholder may waive pursuant to Section 18 below any past Event of Default. In addition, a Noteholder may rescind a declaration of acceleration of this Subordinated Note before any judgment covenant which has been obtained if (i) the Company pays all matured installments subject of principal of a prior failure within the preceding 180 days or which is a willful and interest on this Subordinated Note (other than installments due knowing breach by reason of acceleration) and interest on the overdue installments; and (ii) all other Events of Default with respect to this Subordinated Note have been cured or waivedBorrower.
Appears in 1 contract
Events of Default; Acceleration. Each If any of the following events shall constitute an “Event ("Events of Default”") occurs:
(a) the entry of a decree or order for relief in respect of the Company by a court having jurisdiction defaults in the premises in an involuntary case or proceeding under any applicable bankruptcy, insolvency, or reorganization law, now or hereafter in effect payment of interest on this Senior Note when the United States or any political subdivision thereof, same becomes due and such decree or order will have continued unstayed payable and in effect the default continues for a period of sixty (60) consecutive calendar days;thirty days following the date of such default, and the Holder delivers written notice of such default; or
(b) the commencement by Company defaults in the Company payment of a voluntary case under any applicable bankruptcy, insolvency or reorganization law, now or hereafter in effect of the United States Principal Amount when the same becomes due and payable at maturity or otherwise and, in the case of any political subdivision thereofMandatory Prepayment, or such default continues for a period of thirty days following the consent by date of such default and the Company to the entry Holder delivers written notice of a decree or order for relief in an involuntary case or proceeding under any such law;default; or
(c) there occurs an "Event of Default" (as such term is defined in any Related Senior Note) under any other Related Senior Note; or
(d) there occurs any default by Cayman Parent under the Guaranty Agreement and such default continues for a period of thirty days following the date of such default; or
(e) the Company materially breaches any covenant provided in this Senior Note; or
(if) becomes insolvent Cayman Parent materially breaches any covenant provided for in the Guaranty Agreement; or
(g) The Company, Cayman Parent or is unable to pay its debts as they mature, (ii) any of their respective subsidiaries makes an assignment for the benefit of creditors, (iii) or admits in writing its inability to pay its debts as they maturebecome due, or (iv) ceases files a voluntary petition in bankruptcy, or is adjudicated a bankrupt or insolvent, or files any petition or answer seeking for itself any reorganization, arrangement, composition, readjustment, liquidation, dissolution or similar relief under any present or future statute, law or regulation, or files any answer admitting or failing to be deny the material allegations of a bank holding company petition filed against the Company, Cayman Parent or financial holding company under any of their respective subsidiaries for any such relief, or seeks or consents to or acquiesces in the Bank Holding Company Act appointment of 1956any trustee, as amended;
(d) the failure receiver or liquidator of the Company to pay any installment of interest on Company, Cayman Parent or any of the Subordinated Notes as and when the same will become due and payable, and the continuation their respective subsidiaries or of such failure for a period of fifteen (15) consecutive calendar days;
(e) the failure of the Company to pay all or any substantial part of the principal properties of the Company, Cayman Parent or any of their respective subsidiaries, or the Subordinated Notes as and when Company, Cayman Parent or any of their respective subsidiaries or the same will become due and payable;
(f) directors or majority stockholders of the Company, Cayman Parent or any of their respective subsidiaries take any action looking to the dissolution or liquidation of the Company (for the avoidance of doubtCompany, “liquidation” does not include any merger, consolidation, sale of equity or assets or reorganization (exclusive of a reorganization in bankruptcy) of the Company Cayman Parent or any of its their respective subsidiaries); or
(gh) if, within 60 days after the default commencement of any proceeding against the Company, Cayman Parent or breach any of their respective subsidiaries seeking any reorganization, arrangement, composition, readjustment, liquidation, dissolution or similar relief under any present or future statute, law or regulation, such proceeding has not been dismissed or if, within 60 days after the appointment, without the consent or acquiescence of the Company to materially perform Company, Cayman Parent or any other covenant of their respective subsidiaries, of any trustee, receiver or agreement on liquidator of the Company, Cayman Parent or any of their respective subsidiaries or of all or any substantial part of the Company contained properties of the Company, Cayman Parent or any of their respective subsidiaries, such appointment has not been vacated; then and, in any such event, the Subordinated Notes and the continuation of such default Holder at its option may, by written notice or breach (without such default or breach having been waived in accordance with the provisions of Section 17) for a period of 90 consecutive calendar days after there has been given notices to the Company by the Holders of not less than 25.0% in principal amount of the outstanding Subordinated Notes, by registered or certified mail, in the manner set forth in Section 22, a written notice specifying such default or breach and requiring it to be remedied, and stating that such notice is a “Notice of Default” hereunder. Unless the principal of this Subordinated Note already shall have become due and payable, if an Event of Default described in Section 5(a) or Section 5(b) shall have occurred and be continuing, the holder of this Subordinated Note, by notice in writing to Company, may declare the principal amount of this Subordinated Senior Note to be due and payable immediately andpayable, upon any such declaration, whereupon the same shall forthwith mature and become and shall be immediately due and payable. The Company waives payable together with interest accrued thereon, without presentment, demand, presentment for paymentprotest or notice, all of which are hereby waived; provided, however, that such acceleration is automatic without the necessity of any such notice in the case of nonpayment, notice of protest, and all other notices. Notwithstanding the foregoing, because the Company will treat the Subordinated Notes as Tier 2 Capital, upon the occurrence of an Event Events of Default other than an Event of Default described in Section 5(aunder clause (g) or (h) of this Section 5(b), the Noteholders may not accelerate the Stated Maturity of the Subordinated Notes and make the principal of, and any accrued and unpaid interest on, the Subordinated Notes, immediately due and payable. The Company, within forty-five (45) calendar days after the receipt of written notice from any Noteholder of the occurrence of an Event of Default 4 with respect to this Subordinated Note, shall mail to all Noteholders, at their addresses shown on the Security Register (as defined in Section 14 below), such written notice of Event of Default, unless such Event of Default shall have been cured or waived before the giving of such notice as certified by the Company in writing. Prior to any acceleration of this Subordinated Note, a Noteholder may waive pursuant to Section 18 below any past Event of Default. In addition, a Noteholder may rescind a declaration of acceleration of this Subordinated Note before any judgment has been obtained if (i) the Company pays all matured installments of principal of and interest on this Subordinated Note (other than installments due by reason of acceleration) and interest on the overdue installments; and (ii) all other Events of Default with respect to this Subordinated Note have been cured or waivedCayman Parent.
Appears in 1 contract
Events of Default; Acceleration. Each Upon the occurrence and during the continuation of any Default, the obligation of Lender to make any additional Loan shall be suspended. The occurrence of any of the following events shall constitute (each, an “Event of Default”) shall at Lender’s option, terminate any obligation of Lender to make any additional Loan; and shall, at the option of Lender (1) make all sums of Basic Interest and principal, all Terminal Payments, and any Obligations and other amounts owing under any Loan Documents immediately due and payable without notice of default, presentment or demand for payment, protest or notice of nonpayment or dishonor or any other notices or demands, and (2) give Lender the right to exercise any other right or remedy provided by contract or applicable law:
(a) the entry of a decree Borrower shall fail to pay any principal, interest or order for relief in respect of the Company by a court having jurisdiction in the premises in an involuntary case Terminal Payment under this Agreement or proceeding any Note, or fail to pay any fees or other charges when due under any applicable bankruptcy, insolvency, or reorganization law, now or hereafter in effect of the United States or any political subdivision thereofLoan Document, and such decree failure continues for three (3) Business Days or order will more after the same first becomes due; or an Event of Default as defined in any other Loan Document shall have continued unstayed and in effect for a period of sixty (60) consecutive calendar days;occurred.
(b) the commencement Any representation or warranty made, or financial statement, certificate or other document provided, by the Company of a voluntary case Borrower under any applicable bankruptcy, insolvency Loan Document shall prove to have been false or reorganization law, now misleading in any material respect when made or hereafter in effect of the United States or any political subdivision thereof, or the consent by the Company to the entry of a decree or order for relief in an involuntary case or proceeding under any such law;deemed made herein.
(c) the Company (i) becomes insolvent or is unable Borrower shall fail to pay its debts generally as they maturebecome due or shall commence any Insolvency Proceeding with respect to itself; an involuntary Insolvency Proceeding shall be filed against Borrower, (ii) makes an assignment or a custodian, receiver, trustee, assignee for the benefit of creditors, or other similar official, shall be appointed to take possession, custody or control of the properties of Borrower, and such involuntary Insolvency Proceeding, petition or appointment is acquiesced to by Borrower or is not dismissed within sixty (iii60) admits in writing its inability to pay its debts as they mature, days; or (iv) ceases to be a bank holding company the dissolution or financial holding company under termination of the Bank Holding Company Act business of 1956, as amended;Borrower.
(d) Borrower shall be in default beyond any applicable period of grace or cure under any other agreement involving the failure borrowing of money, the purchase of property, the advance of credit or any other monetary liability of any kind to Lender or to any Person which results in the acceleration of payment of such obligation in an amount in excess of the Company to pay any installment of interest on any of the Subordinated Notes as and when the same will become due and payable, and the continuation of such failure for a period of fifteen (15) consecutive calendar days;Threshold Amount.
(e) the failure of the Company to pay all Any governmental or regulatory authority shall take any judicial or administrative action, or any part of the principal of defined benefit pension plan maintained by Borrower shall have any unfunded liabilities, any of which, in the Subordinated Notes as and when the same will become due and payable;reasonable judgment of Lender, would reasonably be expected to have a Material Adverse Effect.
(f) the liquidation Unless otherwise permitted in this Agreement, any sale, transfer or other disposition of all or a substantial or material part of the Company (for the avoidance assets of doubtBorrower, “liquidation” does not include including without limitation to any mergertrust or similar entity, consolidation, sale of equity or assets or reorganization (exclusive of a reorganization in bankruptcy) of the Company or any of its subsidiaries); orshall occur.
(g) Any judgment(s) singly or in the default or breach aggregate in excess of the Company to materially perform any other covenant Threshold Amount that is not covered by insurance, shall be entered against Borrower which remain unsatisfied, unvacated or agreement on the part unstayed pending appeal for ten (10) or more days after entry thereof.
(h) Any Person or two or more Persons who are not (i) stockholders of the Company contained Borrower as of the Closing Date or (ii) independent venture capital financial investors, acting in concert shall have acquired beneficial ownership (within the Subordinated Notes meaning of Rule 13d-3 of the Securities and the continuation Exchange Commission) of such default fifty percent (50%) or breach (without such default or breach having been waived in accordance with the provisions of Section 17) for a period of 90 consecutive calendar days after there has been given to the Company by the Holders of not less than 25.0% in principal amount more of the outstanding Subordinated Notes, by registered shares of voting stock of Borrower.
(i) Borrower shall fail to perform or certified mail, observe any covenant contained in the manner set forth Article 6 of this Agreement.
(j) Borrower shall fail to perform or observe any covenant contained in Section 22, a written notice specifying such default or breach and requiring it to be remedied, and stating that such notice is a “Notice of Default” hereunder. Unless the principal 5.9 of this Subordinated Note already Agreement.
(k) Borrower shall have become due and payablefail to perform or observe any covenant contained in this Agreement or any other Loan Document (other than a covenant which is dealt with specifically elsewhere in this Article 7) and, if an Event capable of Default described in Section 5(a) or Section 5(b) shall have occurred and be continuingbeing cured, the holder breach of this Subordinated Note, by notice in writing to Company, may declare the principal amount of this Subordinated Note to be due and payable immediately and, upon any such declaration, the same shall become and shall be immediately due and payable. The Company waives demand, presentment for payment, notice of nonpayment, notice of protest, and all other notices. Notwithstanding the foregoing, because the Company will treat the Subordinated Notes as Tier 2 Capital, upon the occurrence of an Event of Default other than an Event of Default described in Section 5(a) or Section 5(b), the Noteholders may covenant is not accelerate the Stated Maturity of the Subordinated Notes and make the principal of, and any accrued and unpaid interest on, the Subordinated Notes, immediately due and payable. The Company, cured within forty-five (45) calendar 30 days after the sooner to occur of Borrower’s receipt of written notice from any Noteholder of the occurrence of an Event of Default with respect to this Subordinated Note, shall mail to all Noteholders, at their addresses shown on the Security Register (as defined in Section 14 below), such written notice of Event such breach from Lender or the date on which such breach first becomes known to any officer of DefaultBorrower; provided, unless however that if such Event breach is not capable of Default shall have been being cured or waived before the giving within such 30-day period and Borrower timely notifies Lender of such fact and Borrower diligently pursues such cure, then the cure period shall be extended to the date requested in Borrower’s notice as certified by but in no event more than 90 days from the Company initial breach; provided, further, that such additional 60-day opportunity to cure shall not apply in writing. Prior the case of any failure to perform or observe any acceleration of this Subordinated Note, a Noteholder may waive pursuant to Section 18 below any past Event of Default. In addition, a Noteholder may rescind a declaration of acceleration of this Subordinated Note before any judgment covenant which has been obtained if (i) the Company pays all matured installments subject of principal of a prior failure within the preceding 180 days or which is a willful and interest on this Subordinated Note (other than installments due knowing breach by reason of acceleration) and interest on the overdue installments; and (ii) all other Events of Default with respect to this Subordinated Note have been cured or waivedBorrower.
Appears in 1 contract
Events of Default; Acceleration. Each The occurrence of any of the following events shall constitute (each, an “Event of Default”) shall, at the option of Lender (1) make all sums of Basic Interest and principal and any Obligations and other amounts owing under any Loan Documents immediately due and payable without notice of default, presentment or demand for payment, protest or notice of nonpayment or dishonor or any other notices or demands, and (2) give Lender the right to exercise any other right or remedy provided by contract or applicable law:
(a) the entry of a decree Borrower shall fail to pay any principal, interest or order for relief in respect of the Company by a court having jurisdiction in the premises in an involuntary case other payment under this Agreement or proceeding any Note, or fail to pay any fees or other charges when due under any applicable bankruptcy, insolvency, or reorganization law, now or hereafter in effect of the United States or any political subdivision thereofLoan Document, and such decree failure continues for fifteen (15) Business Days or order will more after the same first becomes due; or an Event of Default as defined in any other Loan Document shall have continued unstayed and in effect for a period of sixty (60) consecutive calendar days;occurred.
(b) the commencement Any representation or warranty made, or financial statement, certificate or other document provided, by the Company of a voluntary case Borrower under any applicable bankruptcy, insolvency Loan Document shall prove to have been false or reorganization law, now misleading in any material respect when made or hereafter in effect of the United States or any political subdivision thereof, or the consent by the Company to the entry of a decree or order for relief in an involuntary case or proceeding under any such law;deemed made herein.
(c) the Company (i) becomes insolvent or is unable Borrower shall fail to pay its debts generally as they maturebecome due or shall commence any Insolvency Proceeding with respect to itself; an involuntary Insolvency Proceeding shall be filed against Borrower, (ii) makes an assignment or a custodian, receiver, trustee, assignee for the benefit of creditors, or other similar official, shall be appointed to take possession, custody or control of the properties of Borrower, and such involuntary Insolvency Proceeding, petition or appointment is acquiesced to by Borrower or is not dismissed within forty five (iii45) admits in writing its inability to pay its debts as they maturedays; or the dissolution or termination of the business of Borrower; or Borrower shall take any corporate action for the purpose of effecting, approving, or (iv) ceases consenting to be a bank holding company or financial holding company under any of the Bank Holding Company Act of 1956, as amended;foregoing.
(d) Borrower shall be in default beyond any applicable period of grace or cure under any other agreement involving the failure borrowing of money, the Company purchase of property, the advance of credit or any other monetary liability of any kind to pay Lender or to any installment Person which results in the acceleration of interest on any of the Subordinated Notes as and when the same will become due and payable, and the continuation payment of such failure for a period obligation in an amount in excess of fifteen (15) consecutive calendar days;$50,000.
(e) the failure of the Company to pay all Any governmental or regulatory authority shall take any judicial or administrative action, or any part of the principal of defined benefit pension plan maintained by Borrower shall have any unfunded liabilities, any of which, in the Subordinated Notes as and when the same will become due and payable;reasonable judgment of Lender, might have a Material Adverse Effect.
(f) the liquidation Any sale, transfer or other disposition of all or a substantial or material part of the Company (for the avoidance assets of doubtBorrower, “liquidation” does not include including without limitation to any mergertrust or similar entity, consolidation, sale of equity or assets or reorganization (exclusive of a reorganization in bankruptcy) of the Company or any of its subsidiaries); orshall occur.
(g) Any judgment(s) singly or in the default aggregate in excess of $50,000 shall be entered against Borrower which remain unsatisfied, unvacated or breach unstayed pending appeal for twenty (20) or more days after entry thereof.
(h) Any Person or two or more Persons (other than any “Excluded Person” as defined below) acting in concert shall have acquired (in a single transaction or series of related transactions) beneficial ownership (within the meaning of Rule 13d-3 of the Company to materially perform any other covenant Securities and Exchange Commission) of outstanding shares of voting stock of Borrower representing fifty percent (50%) or agreement on the part more of the Company contained voting power of all shares of Borrower’s voting stock that are outstanding immediately after such acquisition. As used in the Subordinated Notes and the continuation of such default or breach (without such default or breach having been waived in accordance with the provisions of Section 17) for a period of 90 consecutive calendar days after there has been given to the Company by the Holders of not less than 25.0% in principal amount of the outstanding Subordinated Notesthis paragraph, by registered or certified mail, in the manner set forth in Section 22, a written notice specifying such default or breach and requiring it to be remedied, and stating that such notice is a “Notice of DefaultExcluded Person” hereunder. Unless the principal of this Subordinated Note already shall have become due and payable, if an Event of Default described in Section 5(a) or Section 5(b) shall have occurred and be continuing, the holder of this Subordinated Note, by notice in writing to Company, may declare the principal amount of this Subordinated Note to be due and payable immediately and, upon any such declaration, the same shall become and shall be immediately due and payable. The Company waives demand, presentment for payment, notice of nonpayment, notice of protest, and all other notices. Notwithstanding the foregoing, because the Company will treat the Subordinated Notes as Tier 2 Capital, upon the occurrence of an Event of Default other than an Event of Default described in Section 5(a) or Section 5(b), the Noteholders may not accelerate the Stated Maturity of the Subordinated Notes and make the principal of, and any accrued and unpaid interest on, the Subordinated Notes, immediately due and payable. The Company, within forty-five (45) calendar days after the receipt of written notice from any Noteholder of the occurrence of an Event of Default with respect to this Subordinated Note, shall mail to all Noteholders, at their addresses shown on the Security Register (as defined in Section 14 below), such written notice of Event of Default, unless such Event of Default shall have been cured or waived before the giving of such notice as certified by the Company in writing. Prior to any acceleration of this Subordinated Note, a Noteholder may waive pursuant to Section 18 below any past Event of Default. In addition, a Noteholder may rescind a declaration of acceleration of this Subordinated Note before any judgment has been obtained if means: (i) any Person who is a stockholder of Borrower as of the Company pays all matured installments of principal of and interest on this Subordinated Note (other than installments due by reason of acceleration) and interest on the overdue installmentsClosing Date; and (ii) all other Events a venture capital firm or similar investment fund or institution; or (iii) an affiliate of Default with respect to this Subordinated Note have been cured any Person described in clause (i) or waived(ii).
Appears in 1 contract
Events of Default; Acceleration. Each Upon the occurrence and during the continuation of any Default, the obligation of Lender to make any additional Loan shall be suspended. The occurrence of any of the following events shall constitute (each, an “Event of Default”) that has not been cured within any applicable cure period or waived by Lender shall terminate any obligation of Lender to make any additional Loan; and shall, at the option of Lender (1) make all sums of Basic Interest and principal, and any other Obligations and amounts owing under any Loan Documents immediately due and payable without notice of default, presentment or demand for payment, protest or notice of nonpayment or dishonor or any other notices or demands, and (2) give Lender the right to exercise any other right or remedy provided by contract or applicable law:
(a) the entry of a decree Borrower shall fail to pay any principal, or order for relief in respect of the Company by a court having jurisdiction in the premises in an involuntary case interest under this Agreement or proceeding any Note, or fail to pay any fees or other charges when due under any applicable bankruptcy, insolvency, or reorganization law, now or hereafter in effect of the United States or any political subdivision thereofLoan Document, and such decree failure continues for three (3) Business Days or order will more after the same first becomes due; or an Event of Default as defined in any other Loan Document shall have continued unstayed and in effect for a period of sixty (60) consecutive calendar days;occurred.
(b) the commencement Any representation or warranty made, or financial statement, certificate or other document provided, by the Company of a voluntary case Borrower under any applicable bankruptcy, insolvency Loan Document shall prove to have been false or reorganization law, now misleading in any material respect when made or hereafter in effect of the United States or any political subdivision thereof, or the consent by the Company to the entry of a decree or order for relief in an involuntary case or proceeding under any such law;deemed made herein.
(c) the Company (i) becomes insolvent or is unable Borrower shall fail to pay its debts generally as they mature, become due or shall commence any Insolvency Proceeding with respect to itself; or (ii) makes an assignment involuntary Insolvency Proceeding shall be filed against Borrower, or a custodian, receiver, trustee, assignee for the benefit of creditors, or other similar official, shall be appointed to take possession, custody or control of the properties of Borrower, and such involuntary Insolvency Proceeding, petition or appointment is acquiesced to by Borrower or is not dismissed within sixty (60) days; or (iii) admits in writing its inability the dissolution or termination of the business or permanent cessation of operations of Borrower (including any transaction or series of related transactions deemed to pay its debts as they maturebe a liquidation, dissolution or winding up of Borrower pursuant to the provisions of Borrower’s charter documents); or (iv) ceases Borrower shall take any corporate action for the purpose of effecting, approving, or consenting to be a bank holding company or financial holding company under any of the Bank Holding Company Act of 1956, as amended;foregoing.
(d) Borrower shall be in default beyond any applicable period of grace or cure under any other agreement involving the borrowing of money, the purchase of property, the advance of credit or any other monetary liability of any kind to Lender or to any Person due to the failure to pay principal, interest, fees or other charges when due, and such failure results in the acceleration of payment of such obligation in an amount in excess of the Company to pay any installment of interest on any of the Subordinated Notes as and when the same will become due and payable, and the continuation of such failure for a period of fifteen (15) consecutive calendar days;Threshold Amount.
(e) the failure of the Company to pay all Any governmental or regulatory authority shall take any judicial or administrative action, or any part of the principal of defined benefit pension plan maintained by Borrower shall have any unfunded liabilities, any of the Subordinated Notes as and when the same will become due and payable;which would reasonably be expected to have a Material Adverse Effect.
(f) the liquidation Any sale, transfer or other disposition of all or a substantial or material part of the Company (for the avoidance assets of doubtBorrower, “liquidation” does not include including without limitation to any mergertrust or similar entity, consolidationshall occur, sale of equity other than in accordance with Section 6.4 or assets or reorganization (exclusive of a reorganization in bankruptcy) of the Company or any of its subsidiaries); orSection 6.5.
(g) Any judgment(s) singly or in the default or breach aggregate in excess of the Company to materially perform any other covenant Threshold Amount shall be entered against Borrower which remain unsatisfied, unvacated or agreement on the part of the Company contained in the Subordinated Notes and the continuation of such default unstayed pending appeal for thirty (30) or breach (without such default or breach having been waived in accordance with the provisions of Section 17) for a period of 90 consecutive calendar more days after there has been given to the Company by the Holders of not less than 25.0% in principal amount of the outstanding Subordinated Notes, by registered or certified mail, in the manner set forth in Section 22, a written notice specifying such default or breach and requiring it to be remedied, and stating that such notice is a “Notice of Default” hereunder. Unless the principal of this Subordinated Note already shall have become due and payable, if an Event of Default described in Section 5(a) or Section 5(b) shall have occurred and be continuing, the holder of this Subordinated Note, by notice in writing to Company, may declare the principal amount of this Subordinated Note to be due and payable immediately and, upon any such declaration, the same shall become and shall be immediately due and payable. The Company waives demand, presentment for payment, notice of nonpayment, notice of protest, and all other notices. Notwithstanding the foregoing, because the Company will treat the Subordinated Notes as Tier 2 Capital, upon the occurrence of an Event of Default other than an Event of Default described in Section 5(a) or Section 5(b), the Noteholders may not accelerate the Stated Maturity of the Subordinated Notes and make the principal of, and any accrued and unpaid interest on, the Subordinated Notes, immediately due and payable. The Company, within forty-five (45) calendar days after the receipt of written notice from any Noteholder of the occurrence of an Event of Default with respect to this Subordinated Note, shall mail to all Noteholders, at their addresses shown on the Security Register (as defined in Section 14 below), such written notice of Event of Default, unless such Event of Default shall have been cured or waived before the giving of such notice as certified by the Company in writing. Prior to any acceleration of this Subordinated Note, a Noteholder may waive pursuant to Section 18 below any past Event of Default. In addition, a Noteholder may rescind a declaration of acceleration of this Subordinated Note before any judgment has been obtained if (i) the Company pays all matured installments of principal of and interest on this Subordinated Note (other than installments due by reason of acceleration) and interest on the overdue installments; and (ii) all other Events of Default with respect to this Subordinated Note have been cured or waivedentry thereof.
Appears in 1 contract
Events of Default; Acceleration. Each If any of the following events shall constitute (each an “"Event of Default”") shall occur:
(a) Debtor shall fail to pay any principal of interest on this Subordinated Note or any other sum due under this Subordinated Note, any Transaction Document, or any other note or other agreement between Debtor and RACC when the entry same becomes due and such failure shall continue for ten (10) days beyond the due date of a decree such payment;
(b) Debtor shall fail to perform any term, covenant or order for relief agreement contained in respect any of the Company by Transaction Documents and such failure shall continue for thirty (30) days after written notice;
(c) any representation or warranty of Debtor in any of the Transaction Documents or in any certificate or notice given in connection therewith shall have been false or misleading in any material respect at the time made or deemed to have been made;
(d) Debtor shall be in default under any agreement or agreements evidencing (i) any other debt and similar monetary obligations (including, without limitation, capitalized leases, synthetic leases or securitization transactions) (collectively, "Indebtedness") owing to RACC or any of its affiliates or (ii) any other Indebtedness in excess of $100,000.00 in aggregate principal amount, or shall fail to pay any such Indebtedness when due or within any applicable period of grace;
(e) any of the Transaction Documents shall cease to be in full force and effect;
(f) Debtor (i) shall make an assignment for the benefit of creditors; (ii) shall be adjudicated bankrupt or insolvent; (iii) shall seek the appointment of, or be the subject of an order appointing, a court having jurisdiction in the premises in an involuntary trustee, liquidator or receiver as to all or part of its assets, (iv) shall commence, approve or consent to, any case or proceeding under any applicable bankruptcy, insolvencyreorganization or similar law and, in the case of an involuntary case or reorganization lawproceeding, now such case or hereafter in effect of the United States or any political subdivision thereof, and such decree or order will have continued unstayed and in effect for a period of sixty proceeding is not dismissed within forty-five (6045) consecutive calendar days;
(b) days following the commencement by the Company of a voluntary case under any applicable bankruptcy, insolvency or reorganization law, now or hereafter in effect of the United States or any political subdivision thereof, or (v) shall be the consent by the Company to the entry subject of a decree or an order for relief in an involuntary case or proceeding under any such federal bankruptcy law;
(cg) the Company (i) becomes insolvent or is Debtor shall be unable to pay its debts as they mature, (ii) makes an assignment for the benefit of creditors, (iii) admits in writing its inability to pay its debts as they mature, or (iv) ceases to be a bank holding company or financial holding company under the Bank Holding Company Act of 1956, as amended;
(dh) there shall remain undischarged for more than thirty (30) days any final judgment or execution action against Debtor that, together with other outstanding claims and execution actions against Debtor, respectively, exceeds $100,000.00 in the aggregate;
(i) the failure prospect of payment or performance by Debtor or realization on the Company to pay any installment Collateral, in the reasonable opinion of interest on RACC, is or becomes significantly impaired;
(j) any of the Subordinated Notes Aircraft shall have been lost, stolen or confiscated or shall have incurred substantial damage or have been destroyed to such an extent that the repair thereof is impracticable (as and when the same will become due and payable, and the continuation of such failure for a period of fifteen (15) consecutive calendar days;
(e) the failure of the Company to pay all or any part of the principal of any of the Subordinated Notes as and when the same will become due and payable;
(f) the liquidation of the Company (for the avoidance of doubt, “liquidation” does not include any merger, consolidation, sale of equity or assets or reorganization (exclusive of a reorganization in bankruptcy) of the Company or any of its subsidiariesdetermined solely by RACC); or
(gk) Debtor (i) sells, transfers or disposes of all or substantially all of its respective stock, assets or property, (ii) becomes the default subject of, or breach of the Company to materially perform any other covenant or agreement on the part of the Company contained in the Subordinated Notes and the continuation of such default or breach (without such default or breach having been waived in accordance with the provisions of Section 17) for a period of 90 consecutive calendar days after there has been given to the Company by the Holders of not less than 25.0% in principal amount of the outstanding Subordinated Notes, by registered or certified mail, in the manner set forth in Section 22engages in, a written notice specifying such default leveraged buy-out, or breach and requiring it to be remedied(iii) terminates its existence by merger, and stating that such notice is a “Notice reorganization or consolidation. THEN, or at any time thereafter:
(1) In the case of Default” hereunder. Unless the principal of this Subordinated Note already shall have become due and payable, if an any Event of Default described in Section 5(aunder clauses (f) or Section 5(b) shall have occurred and be continuing(g), the holder of this Subordinated Note, by notice in writing to Company, may declare the entire unpaid principal amount of this Subordinated Note to be due and all other amounts payable immediately andhereunder, upon any such declaration, the same shall automatically become and shall be immediately forthwith due and payable. The Company waives , without presentment, demand, presentment for payment, protest or notice of nonpaymentany kind, all of which are hereby expressly waived by Debtor; and
(2) In the case of any Event of Default other than under clauses (f) or (g), RACC may, by written notice to Debtor, declare the unpaid principal amount of protest, this Subordinated Note and all other noticesamounts payable hereunder, to be forthwith due and payable, without presentment, demand, protest or further notice of any kind, all of which are hereby expressly waived by Debtor. Notwithstanding In addition to and without in any way limiting the foregoing, because the Company will treat the Subordinated Notes as Tier 2 Capital, upon the occurrence of an Event of Default or at any time thereafter, RACC may employ all remedies allowed by law, including, without limitation, those available to a secured party under the Uniform Commercial Code. No remedy herein conferred upon RACC is intended to be exclusive of any other than an Event of Default described remedy and each and every remedy shall be cumulative and in Section 5(a) addition to every other remedy hereunder, now or Section 5(b), the Noteholders may not accelerate the Stated Maturity of the Subordinated Notes and make the principal of, and any accrued and unpaid interest on, the Subordinated Notes, immediately due and payable. The Company, within forty-five (45) calendar days after the receipt of written notice from any Noteholder of the occurrence of an Event of Default with respect to this Subordinated Note, shall mail to all Noteholders, hereafter existing at their addresses shown on the Security Register (as defined law or in Section 14 below), such written notice of Event of Default, unless such Event of Default shall have been cured equity or waived before the giving of such notice as certified by the Company in writing. Prior to any acceleration of this Subordinated Note, a Noteholder may waive pursuant to Section 18 below any past Event of Default. In addition, a Noteholder may rescind a declaration of acceleration of this Subordinated Note before any judgment has been obtained if (i) the Company pays all matured installments of principal of and interest on this Subordinated Note (other than installments due by reason of acceleration) and interest on the overdue installments; and (ii) all other Events of Default with respect to this Subordinated Note have been cured or waivedotherwise.
Appears in 1 contract
Events of Default; Acceleration. Each Upon the occurrence and during the continuation of any Event of Default, the obligation of Lender to make any additional Loan shall be suspended. The occurrence and continuation of any of the following events shall constitute (each, an “Event of Default”) shall at the option of Agent or at the direction of Lender (1) make all sums of Basic Interest and principal, as well as any other Obligations and amounts owing under any Loan Documents, immediately due and payable without notice of default, presentment or demand for payment, protest or notice of nonpayment or dishonor or any other notices or demands, and (2) give Agent the right to exercise any other right or remedy provided by contract or applicable law:
(a) the entry of a decree Borrower shall fail to pay any principal or order for relief in respect of the Company by a court having jurisdiction in the premises in an involuntary case interest under this Agreement or proceeding any Note, or fail to pay any fees or other charges when due under any applicable bankruptcy, insolvency, or reorganization law, now or hereafter in effect of the United States or any political subdivision thereofLoan Document, and such decree failure continues for three (3) Business Days or order will more after the same first becomes due; or an Event of Default as defined in any other Loan Document shall have continued unstayed and in effect for a period of sixty (60) consecutive calendar days;occurred.
(b) the commencement Any representation or warranty made, or financial statement, certificate or other document provided, by the Company of a voluntary case Borrower under any applicable bankruptcyLoan Document, insolvency taken together with all such representations, warranties, statements, certificates and documents, shall prove to have been false or reorganization law, now misleading in any material respect when made or hereafter in effect of the United States or any political subdivision thereof, or the consent by the Company to the entry of a decree or order for relief in an involuntary case or proceeding under any such law;deemed made herein.
(c) the Company If there occurs any circumstance or circumstances that could reasonably be expected to have a Material Adverse Effect.
(i) becomes insolvent or is unable Borrower shall fail to pay its debts generally as they mature, become due; or (ii) makes Borrower shall commence any Insolvency Proceeding with respect to itself, an assignment involuntary Insolvency Proceeding shall be filed against Borrower, or a custodian, receiver, trustee, assignee for the benefit of creditors, or other similar official, shall be appointed to take possession, custody or control of the properties of Borrower, and such involuntary Insolvency Proceeding, petition or appointment is acquiesced to by Borrower or is not dismissed within forty five (45) days; or (iii) admits in writing its inability the dissolution, winding up, or termination of the business or cessation of operations of Borrower (including any transaction or series of related transactions deemed to pay its debts as they maturebe a liquidation, dissolution or winding up of Borrower pursuant to the provisions of Borrower’s charter documents); or (iv) ceases Borrower shall take any corporate action for the purpose of effecting, approving, or consenting to be a bank holding company or financial holding company under the Bank Holding Company Act of 1956, as amended;
(d) the failure of the Company to pay any installment of interest on any of the Subordinated Notes as and when the same will become due and payable, and the continuation of such failure for a foregoing.
(e) Borrower shall be in default beyond any applicable period of grace or cure under any other agreement involving the borrowing of money, the purchase of property, the advance of credit or any other monetary liability of any kind to Lender or to any Person in an amount in excess of the Threshold Amount.
(f) Any governmental or regulatory authority shall take any judicial or administrative action, or any defined benefit pension plan maintained by Borrower shall have any unfunded liabilities, any of which, in the reasonable judgment of L▇▇▇▇▇, could reasonably be expected to have a Material Adverse Effect.
(g) Any sale, transfer or other disposition of all or a substantial or material part of the assets of Borrower, including without limitation to any trust or similar entity, shall occur.
(h) Any judgment(s) singly or in the aggregate in excess of the Threshold Amount shall be entered against Borrower which remain unsatisfied, unvacated or unstayed pending appeal for fifteen (15) consecutive calendar days;or more days after entry thereof (to the extent not covered by independent third-party insurance as to which the insurer does not dispute coverage).
(ei) the failure Borrower shall fail to perform or observe any covenant contained in Article 6 of the Company this Agreement.
(j) Borrower shall fail to pay all perform or observe any covenant contained in Article 5 or elsewhere in this Agreement or any part other Loan Document (other than a covenant which is dealt with specifically elsewhere in this Article 7) and, if capable of being cured, the principal of any of the Subordinated Notes as and when the same will become due and payable;
(f) the liquidation of the Company (for the avoidance of doubt, “liquidation” does not include any merger, consolidation, sale of equity or assets or reorganization (exclusive of a reorganization in bankruptcy) of the Company or any of its subsidiaries); or
(g) the default or breach of the Company to materially perform any other such covenant or agreement on the part of the Company contained in the Subordinated Notes and the continuation of such default or breach (without such default or breach having been waived in accordance with the provisions of Section 17) for a period of 90 consecutive calendar days after there has been given to the Company by the Holders of is not less than 25.0% in principal amount of the outstanding Subordinated Notes, by registered or certified mail, in the manner set forth in Section 22, a written notice specifying such default or breach and requiring it to be remedied, and stating that such notice is a “Notice of Default” hereunder. Unless the principal of this Subordinated Note already shall have become due and payable, if an Event of Default described in Section 5(a) or Section 5(b) shall have occurred and be continuing, the holder of this Subordinated Note, by notice in writing to Company, may declare the principal amount of this Subordinated Note to be due and payable immediately and, upon any such declaration, the same shall become and shall be immediately due and payable. The Company waives demand, presentment for payment, notice of nonpayment, notice of protest, and all other notices. Notwithstanding the foregoing, because the Company will treat the Subordinated Notes as Tier 2 Capital, upon the occurrence of an Event of Default other than an Event of Default described in Section 5(a) or Section 5(b), the Noteholders may not accelerate the Stated Maturity of the Subordinated Notes and make the principal of, and any accrued and unpaid interest on, the Subordinated Notes, immediately due and payable. The Company, cured within forty-five (45) calendar 10 days after the sooner to occur of Borrower’s receipt of written notice from any Noteholder of the occurrence of an Event of Default with respect to this Subordinated Note, shall mail to all Noteholders, at their addresses shown on the Security Register (as defined in Section 14 below), such written notice of Event such breach from Agent or Lender or the date on which such breach first becomes known to any officer of DefaultBorrower (the “Notice Date”); provided, unless however that if such Event breach is not capable of Default shall have been being cured or waived before the giving within such 10-day period and Borrower timely notifies Lender of such fact and Borrower diligently pursues such cure, then the cure period shall be extended to the date requested in Borrower’s notice as certified by but in no event more than 30 days from the Company Notice Date; provided, further, that such 30-day opportunity to cure shall not apply in writing. Prior the case of any failure to perform or observe any acceleration of this Subordinated Note, a Noteholder may waive pursuant to Section 18 below any past Event of Default. In addition, a Noteholder may rescind a declaration of acceleration of this Subordinated Note before any judgment covenant which has been obtained if (i) the Company pays all matured installments subject of principal of a prior failure within the preceding 180 days or which is a willful and interest on this Subordinated Note (other than installments due knowing breach by reason of acceleration) and interest on the overdue installments; and (ii) all other Events of Default with respect to this Subordinated Note have been cured or waivedBorrower.
Appears in 1 contract
Events of Default; Acceleration. Each Upon the occurrence and during the continuance of any Default, the obligation of Lender to make any additional Loan shall be temporarily suspended. The occurrence of any of the following events shall constitute (each, an “Event of Default”) shall terminate any obligation of Lender to make any additional Loan; and shall, at the option of Lender (1) make all sums of Basic Interest and principal, as well as any other Obligations and other amounts owing under any Loan Documents, immediately due and payable without notice of default, presentment or demand for payment, protest or notice of nonpayment or dishonor or any other notices or demands, and (2) give Lender the right to exercise any other right or remedy provided by contract or applicable law:
(a) the entry of a decree Borrowers shall fail to pay any principal or order for relief in respect of the Company by a court having jurisdiction in the premises in an involuntary case interest under this Agreement or proceeding any Note, or fail to pay any fees or other charges when due under any applicable bankruptcy, insolvency, or reorganization law, now or hereafter in effect of the United States or any political subdivision thereofLoan Document, and such decree failure continues for three (3) Business Days or order will more after the same first becomes due; or an Event of Default as defined in any other Loan Document shall have continued unstayed occurred and in effect for a period of sixty (60) consecutive calendar days;be continuing.
(b) the commencement Any representation or warranty made, or financial statement, certificate or other document provided, by the Company of a voluntary case any Borrower under any applicable bankruptcy, insolvency Loan Document shall prove to have been false or reorganization law, now misleading in any material respect when made or hereafter in effect of the United States or any political subdivision thereof, or the consent by the Company to the entry of a decree or order for relief in an involuntary case or proceeding under any such law;deemed made herein.
(c) the Company (i) becomes insolvent or is unable Any Borrower shall fail to pay its debts generally as they mature, become due; or (ii) makes any Borrower shall commence any Insolvency Proceeding with respect to itself, an assignment involuntary Insolvency Proceeding shall be filed against any Borrower, or a custodian, receiver, trustee, assignee for the benefit of creditors, or other similar official, shall be appointed to take possession, custody or control of the properties of any Borrower, and such involuntary Insolvency Proceeding, petition or appointment is acquiesced to by Borrower or is not dismissed within forty five (45) days; or (iii) admits in writing its inability the dissolution, winding up, or termination of the business or cessation of operations of any Borrower (including any transaction or series of related transactions deemed to pay its debts as they maturebe a liquidation, dissolution or winding up of such Borrower pursuant to the provisions of such Borrower’s charter documents); or (iv) ceases any Borrower shall take any corporate action for the purpose of effecting, approving, or consenting to be a bank holding company or financial holding company under any of the Bank Holding Company Act of 1956, as amended;foregoing.
(d) Any Borrower shall be in default beyond any applicable period of grace or cure under any other material agreement involving the failure borrowing of money, the purchase of property, the advance of credit or any other monetary liability of any kind to Lender or to any Person in an amount in excess of the Company to pay any installment of interest on any of the Subordinated Notes as and when the same will become due and payable, and the continuation of such failure for a period of fifteen (15) consecutive calendar days;Threshold Amount.
(e) the failure of the Company to pay all Any governmental or regulatory authority shall take any judicial or administrative action, or any part of the principal of defined benefit pension plan maintained by any Borrower shall have any unfunded liabilities, any of which, in the Subordinated Notes as and when the same will become due and payable;reasonable judgment of Lender, could reasonably be expected to have a Material Adverse Effect.
(f) the liquidation Any sale, transfer or other disposition of all or a substantial or material part of the Company (for the avoidance assets of doubtany Borrower, “liquidation” does not include including without limitation to any mergertrust or similar entity, consolidationshall occur, sale of equity or assets or reorganization (exclusive of a reorganization in bankruptcy) of the Company or any of its subsidiaries); orexcept as otherwise permitted herein.
(g) Any judgment(s) singly or in the default aggregate in excess of the Threshold Amount shall be entered against any Borrower which remain unsatisfied, unvacated or unstayed pending appeal for ten (10) or more Business Days after entry thereof.
(h) Any Borrower shall fail to perform or observe any covenant contained in Article 6 of this Agreement.
(i) Any Borrower shall fail to perform or observe any covenant contained in Article 5 or elsewhere in this Agreement or any other Loan Document (other than a covenant which is dealt with specifically elsewhere in this Article 7) and, if capable of being cured, the breach of the Company to materially perform any other such covenant or agreement on the part of the Company contained in the Subordinated Notes and the continuation of such default or breach (without such default or breach having been waived in accordance with the provisions of Section 17) for a period of 90 consecutive calendar days after there has been given to the Company by the Holders of is not less than 25.0% in principal amount of the outstanding Subordinated Notes, by registered or certified mail, in the manner set forth in Section 22, a written notice specifying such default or breach and requiring it to be remedied, and stating that such notice is a “Notice of Default” hereunder. Unless the principal of this Subordinated Note already shall have become due and payable, if an Event of Default described in Section 5(a) or Section 5(b) shall have occurred and be continuing, the holder of this Subordinated Note, by notice in writing to Company, may declare the principal amount of this Subordinated Note to be due and payable immediately and, upon any such declaration, the same shall become and shall be immediately due and payable. The Company waives demand, presentment for payment, notice of nonpayment, notice of protest, and all other notices. Notwithstanding the foregoing, because the Company will treat the Subordinated Notes as Tier 2 Capital, upon the occurrence of an Event of Default other than an Event of Default described in Section 5(a) or Section 5(b), the Noteholders may not accelerate the Stated Maturity of the Subordinated Notes and make the principal of, and any accrued and unpaid interest on, the Subordinated Notes, immediately due and payable. The Company, cured within forty-five (45) calendar 30 days after the sooner to occur of such Borrower’s receipt of written notice from any Noteholder of the occurrence of an Event of Default with respect to this Subordinated Note, shall mail to all Noteholders, at their addresses shown on the Security Register (as defined in Section 14 below), such written notice of Event of Default, unless such Event of Default shall have been cured breach from Lender or waived before the giving date on which such breach first becomes known to any senior officer of such Borrower; provided, however that if such breach is not capable of being cured within such 30-day period and such Borrower timely notifies Lender of such fact and such Borrower diligently pursues such cure, then the cure period shall be extended to the date requested in such Borrower’s notice as certified by but in no event more than 90 days from the Company initial breach; provided, further, that such additional 60-day opportunity to cure shall not apply in writing. Prior the case of any failure to perform or observe any acceleration of this Subordinated Note, a Noteholder may waive pursuant to Section 18 below any past Event of Default. In addition, a Noteholder may rescind a declaration of acceleration of this Subordinated Note before any judgment covenant which has been obtained if (i) the Company pays all matured installments subject of principal of a prior failure within the preceding 180 days or which is a willful and interest on this Subordinated Note (other than installments due knowing breach by reason of acceleration) and interest on the overdue installments; and (ii) all other Events of Default with respect to this Subordinated Note have been cured or waivedsuch Borrower.
Appears in 1 contract
Sources: Loan and Security Agreement (Virtuix Holdings Inc.)
Events of Default; Acceleration. Each Upon the occurrence and during the continuation of any Event of Default, the obligation of Lender to make any additional Loan shall be suspended. The occurrence and continuation of any of the following events shall constitute (each, an “Event of Default”) shall at the option of Lender (1) make all sums of Basic Interest and principal, as well as any other Obligations and amounts owing under any Loan Documents, immediately due and payable without notice of default, presentment or demand for payment, protest or notice of nonpayment or dishonor or any other notices or demands, and (2) give Lender the right to exercise any other right or remedy provided by contract or applicable law:
(a) the entry of a decree Borrower shall fail to pay any principal or order for relief in respect of the Company by a court having jurisdiction in the premises in an involuntary case interest under this Agreement or proceeding any Note, or fail to pay any fees or other charges when due under any applicable bankruptcy, insolvency, or reorganization law, now or hereafter in effect of the United States or any political subdivision thereofLoan Document, and such decree failure continues for three (3) Business Days or order will more after the same first becomes due; or an Event of Default as defined in any other Loan Document shall have continued unstayed and in effect for a period of sixty (60) consecutive calendar days;occurred.
(b) the commencement Any representation or warranty made, or financial statement, certificate or other written document provided, by the Company of a voluntary case Borrower or any Guarantor under any applicable bankruptcyLoan Document, insolvency taken together with all such representations, warranties, statements, certificates and documents, shall prove to have been false or reorganization law, now misleading in any material respect when made or hereafter in effect of the United States or any political subdivision thereof, or the consent by the Company to the entry of a decree or order for relief in an involuntary case or proceeding under any such law;deemed made herein.
(c) the Company If there occurs any circumstance or circumstances that could reasonably be expected to have a Material Adverse Effect; it being acknowledged and agreed by Lender that a CMC CRL, in and of itself, will not trigger an Event of Default under this Section 7.1(c).
(i) becomes insolvent Borrower or is unable any Guarantor shall fail to pay its debts generally as they mature, become due; or (ii) makes Borrower or any Guarantor shall commence any Insolvency Proceeding with respect to itself, an assignment involuntary Insolvency Proceeding shall be filed against Borrower or any Guarantor, or a custodian, receiver, trustee, assignee for the benefit of creditors, (iii) admits in writing its inability or other similar official, shall be appointed to pay its debts as they maturetake possession, custody or (iv) ceases to be a bank holding company or financial holding company under the Bank Holding Company Act of 1956, as amended;
(d) the failure control of the Company to pay properties of Borrower or any installment of interest on any of the Subordinated Notes as and when the same will become due and payableGuarantor, and the continuation of such failure for a period of fifteen (15) consecutive calendar days;
(e) the failure of the Company involuntary Insolvency Proceeding, petition or appointment is acquiesced to pay all by Borrower or any part of the principal of any of the Subordinated Notes as and when the same will become due and payable;
(f) the liquidation of the Company (for the avoidance of doubt, “liquidation” does such Guarantor or is not include any merger, consolidation, sale of equity or assets or reorganization (exclusive of a reorganization in bankruptcy) of the Company or any of its subsidiaries); or
(g) the default or breach of the Company to materially perform any other covenant or agreement on the part of the Company contained in the Subordinated Notes and the continuation of such default or breach (without such default or breach having been waived in accordance with the provisions of Section 17) for a period of 90 consecutive calendar days after there has been given to the Company by the Holders of not less than 25.0% in principal amount of the outstanding Subordinated Notes, by registered or certified mail, in the manner set forth in Section 22, a written notice specifying such default or breach and requiring it to be remedied, and stating that such notice is a “Notice of Default” hereunder. Unless the principal of this Subordinated Note already shall have become due and payable, if an Event of Default described in Section 5(a) or Section 5(b) shall have occurred and be continuing, the holder of this Subordinated Note, by notice in writing to Company, may declare the principal amount of this Subordinated Note to be due and payable immediately and, upon any such declaration, the same shall become and shall be immediately due and payable. The Company waives demand, presentment for payment, notice of nonpayment, notice of protest, and all other notices. Notwithstanding the foregoing, because the Company will treat the Subordinated Notes as Tier 2 Capital, upon the occurrence of an Event of Default other than an Event of Default described in Section 5(a) or Section 5(b), the Noteholders may not accelerate the Stated Maturity of the Subordinated Notes and make the principal of, and any accrued and unpaid interest on, the Subordinated Notes, immediately due and payable. The Company, dismissed within forty-five (45) calendar days; or (iii) the dissolution, winding up, or termination of the business or cessation of operations of Borrower or any Guarantor (including any transaction or series of related transactions deemed to be a liquidation, dissolution or winding up of Borrower or any Guarantor pursuant to the provisions of Borrower’s or such Guarantor’s charter documents); or (iv) Borrower or any Guarantor shall take any corporate action for the purpose of effecting, approving, or consenting to any of the foregoing.
(e) Borrower or any Guarantor shall be in default beyond any applicable period of grace or cure under any other agreement involving the borrowing of money, the purchase of property, the advance of credit or any other monetary liability of any kind to Lender or to any Person in an amount in excess of the Threshold Amount.
(f) Any governmental or regulatory authority shall take any final and non-appealable judicial or administrative action, or any defined benefit pension plan maintained by Borrower or any Guarantor shall have any unfunded liabilities, any of which, in the reasonable judgment of Lender, could reasonably be expected to have a Material Adverse Effect.
(g) Any sale, transfer or other disposition of all or a substantial or material part of the assets of Borrower or any Guarantor, including without limitation to any trust or similar entity, shall occur.
(h) Any judgment(s) singly or in the aggregate in excess of the Threshold Amount (not covered by independent third party insurance as to which liability has been accepted by such insurance carrier) shall be entered against Borrower or any Guarantor which remain unsatisfied, unvacated or unstayed pending appeal for ten (10) or more days after entry thereof.
(i) Borrower or any Guarantor shall fail to perform or observe any covenant contained in Article 6 of this Agreement.
(j) Borrower or any Guarantor shall fail to perform or observe any covenant contained in Article 5 or elsewhere in this Agreement or any other Loan Document (other than a covenant which is dealt with specifically elsewhere in this Article 7) and, if capable of being cured, the breach of such covenant is not cured within ten (10) days after the sooner to occur of Borrower’s or such Guarantor’s receipt of written notice from any Noteholder of the occurrence of an Event of Default with respect to this Subordinated Note, shall mail to all Noteholders, at their addresses shown on the Security Register (as defined in Section 14 below), such written notice of Event such breach from Lender or the date on which such breach first becomes known to any officer of DefaultBorrower or such Guarantor (the “Notice Date”); provided, unless however that if such Event breach is not capable of Default shall have been being cured or waived before the giving within such 10-day period and Borrower timely notifies Lender of such fact and Borrower diligently pursues such cure, then the cure period shall be extended to the date requested in Borrower’s notice as certified by but in no event more than thirty (30) days from the Company Notice Date; provided, further, that such 30-day opportunity to cure shall not apply in writing. Prior the case of any failure to perform or observe any acceleration of this Subordinated Note, a Noteholder may waive pursuant to Section 18 below any past Event of Default. In addition, a Noteholder may rescind a declaration of acceleration of this Subordinated Note before any judgment covenant which has been obtained if the subject of a prior failure within the preceding one hundred eighty (i180) the Company pays all matured installments of principal of days or which is a willful and interest on this Subordinated Note (other than installments due knowing breach by reason of acceleration) and interest on the overdue installments; and (ii) all other Events of Default with respect to this Subordinated Note have been cured or waivedBorrower.
Appears in 1 contract
Sources: Loan and Security Agreement (Delcath Systems, Inc.)
Events of Default; Acceleration. Each If any of the following events shall constitute an (“Event Events of Default”) shall occur:
(a) the entry if any Borrower shall fail to pay any principal of a decree or order for relief in respect of the Company by a court having jurisdiction in the premises in an involuntary case or proceeding under interest on any applicable bankruptcy, insolvency, or reorganization law, now or hereafter in effect of the United States or any political subdivision thereofLoan to it when due and payable, and such decree or order will have continued unstayed and in effect failure shall continue for a period of sixty (60) consecutive calendar daysthree Business Days;
(b) the commencement if any Borrower shall fail to perform, discharge, observe or comply with any other term, covenant and agreement contained herein, and such failure shall continue unremedied for 30 days after written notice of such failure has been given to such Borrower by the Company of a voluntary case under any applicable bankruptcy, insolvency or reorganization law, now or hereafter in effect of the United States or any political subdivision thereof, or the consent by the Company to the entry of a decree or order for relief in an involuntary case or proceeding under any such lawABA;
(c) the Company if an representation or warranty of any Borrower contained in this Agreement shall prove to have been materially false or misleading when made;
(id) becomes insolvent if any Borrower (or a Trust of which it is unable to pay its debts as they mature, (iia portfolio or fund) makes an assignment for the benefit of creditors, (iii) or admits in writing its inability to pay or generally fails to pay its debts as they maturethe mature or become due, or (iv) ceases petitions or applies for the appointment of a trustee in bankruptcy or other custodian, liquidator or receiver for such Borrower or of any substantial part of its assets, or commences any case or other proceeding relating to be a bank holding company such Borrower under any bankruptcy, reorganization, arrangement, insolvency, dissolution or financial holding company under liquidation or similar law of any jurisdiction, now or hereafter in effect, or authorizes the Bank Holding Company Act of 1956, as amended;
(d) the failure of the Company to pay any installment of interest on any of the Subordinated Notes as and when the same will become due and payable, and the continuation of such failure for a period of fifteen (15) consecutive calendar days;foregoing; or
(e) the failure of the Company to pay all if any such petition or application is filed or any part of the principal of such case or other proceeding is commenced against such Borrower (or Trust) and such Borrower (or Trust) indicates its approval thereof or consent thereto, or an order for relief or appointing any of the Subordinated Notes as such trustee in bankruptcy or other custodian, liquidator or receiver is entered adjudicating such Borrower (or Trust) bankrupt or insolvent, or approving a petition in any such case or other proceeding, and when the same will such order remains unstayed and in effect for more than 60 days; then, in such event and without notice or demand by ABA, all outstanding Loans to such Borrower, all interest thereon and all other amounts payable by such Borrower under this Agreement shall become and be due and payable;
(f) the liquidation payable without presentment, demand, protest or notice, all of the Company (for the avoidance of doubt, “liquidation” does not include which are expressly waived by such Borrower. If any merger, consolidation, sale of equity or assets or reorganization (exclusive of a reorganization in bankruptcy) of the Company or any of its subsidiaries); or
(g) the default or breach of the Company to materially perform any other covenant or agreement on the part of the Company contained in the Subordinated Notes and the continuation of such default or breach (without such default or breach having been waived in accordance with the provisions of Section 17) for a period of 90 consecutive calendar days after there has been given to the Company by the Holders of not less than 25.0% in principal amount of the outstanding Subordinated Notes, by registered or certified mail, in the manner set forth in Section 22, a written notice specifying such default or breach and requiring it to be remedied, and stating that such notice is a “Notice of Default” hereunder. Unless the principal of this Subordinated Note already shall have become due and payable, if an Event of Default described in Section 5(a) or Section 5(b) shall have occurred and be continuing, ABA may proceed to protect or enforce its rights against such Borrower by suit in equity, action at law or other appropriate proceeding, and may proceed to enforce the holder payment of this Subordinated Note, by notice in writing to Company, may declare the principal amount of this Subordinated Note all amounts that shall have become due. No remedy conferred upon ABA herein is intended to be due exclusive of any other remedy and payable immediately and, upon any such declaration, the same each and every remedy shall become be cumulative and shall be immediately due and payable. The Company waives demand, presentment for payment, notice of nonpayment, notice of protest, and all in addition to every other notices. Notwithstanding the foregoing, because the Company will treat the Subordinated Notes as Tier 2 Capital, upon the occurrence of an Event of Default other than an Event of Default described remedy given hereunder or existing at law or in Section 5(a) or Section 5(b), the Noteholders may not accelerate the Stated Maturity of the Subordinated Notes and make the principal of, and any accrued and unpaid interest on, the Subordinated Notes, immediately due and payable. The Company, within forty-five (45) calendar days after the receipt of written notice from any Noteholder of the occurrence of an Event of Default with respect to this Subordinated Note, shall mail to all Noteholders, at their addresses shown on the Security Register (as defined in Section 14 below), such written notice of Event of Default, unless such Event of Default shall have been cured or waived before the giving of such notice as certified by the Company in writing. Prior to any acceleration of this Subordinated Note, a Noteholder may waive pursuant to Section 18 below any past Event of Default. In addition, a Noteholder may rescind a declaration of acceleration of this Subordinated Note before any judgment has been obtained if (i) the Company pays all matured installments of principal of and interest on this Subordinated Note (other than installments due by reason of acceleration) and interest on the overdue installments; and (ii) all other Events of Default with respect to this Subordinated Note have been cured or waivedequity.
Appears in 1 contract
Events of Default; Acceleration. Each If any of the following conditions or events shall constitute an “Event ("Events of Default”") shall occur and be continuing:
(a) if the entry of a decree Joint Issuers or order for relief in respect of the Company by a court having jurisdiction Holdings, as guarantor, shall default in the premises in an involuntary case payment of any principal of any Note when the same becomes due and payable, whether at maturity or proceeding under any applicable bankruptcy, insolvency, at a date fixed for prepayment or reorganization law, now by acceleration or hereafter in effect of the United States or any political subdivision thereof, and such decree or order will have continued unstayed and in effect for a period of sixty (60) consecutive calendar days;otherwise; or
(b) if the commencement Joint Issuers or Holdings, as guarantor, shall default in the payment of any interest on any Note (whether by issuance of a Note or payment in cash as required by the Company terms hereof) for more than 5 days after the same becomes due and payable; or
(c) if Holdings or any Joint Issuer shall default in the performance of or compliance with any other material term contained in this Agreement or any other Note Purchase Document and such default shall continue unremedied for 30 days after such failure shall first have become known to any officer of Holdings or written notice thereof shall have been received by Holdings from any holder of any Note; or
(d) if any representation or warranty made in writing by or on behalf of Holdings or any Joint Issuer in this Agreement, any other Note Purchase Document, or in any instrument furnished in compliance with or in reference to this Agreement shall prove to have been false or incorrect in any material respect on the date as of which made; or
(e) if any event shall occur or condition shall exist in respect of any Indebtedness of Holdings or any Joint Issuer in excess of $1,000,000 or under any evidence of any such Indebtedness or of any mortgage, indenture or other agreement relating thereto, the effect of which event or condition is to cause the acceleration of such Indebtedness before its stated maturity or before its regularly scheduled dates of payment; or
(1) An order for relief is entered with respect to Holdings or any Joint Issuer or any such Person commences a voluntary case under any applicable bankruptcy, insolvency or reorganization law, now or hereafter in effect of the United States or any political subdivision thereofBankruptcy Code, or the consent by the Company consents to the entry of a decree or an order for relief in an involuntary case or proceeding to the conversion of an involuntary case to a voluntary case under any such law;law or consents to the appointment of or taking possession by a receiver, trustee or other custodian 25 for all or a substantial part of its property; or
(c2) the Company (i) becomes insolvent Holdings or is unable to pay its debts as they mature, (ii) any Joint Issuer makes an any assignment for the benefit of creditors, (iii) admits in writing its inability to pay its debts as they mature, ; or (iv) ceases to be a bank holding company or financial holding company under the Bank Holding Company Act of 1956, as amended;
(d3) the failure Board of the Company Directors of Holdings or any Joint Issuer adopts any resolution or otherwise authorizes action to pay any installment of interest on approve any of the Subordinated Notes as and when the same will become due and payable, and the continuation of such failure for a period of fifteen (15) consecutive calendar days;
(e) the failure of the Company actions referred to pay all or any part of the principal of any of the Subordinated Notes as and when the same will become due and payable;
(f) the liquidation of the Company (for the avoidance of doubt, “liquidation” does not include any merger, consolidation, sale of equity or assets or reorganization (exclusive of a reorganization in bankruptcy) of the Company or any of its subsidiariesthis subsection 13(f); or
(g1) A court enters a decree or order for relief with respect to Holdings or any Joint Issuer in an involuntary case under the Bankruptcy Code, which decree or order is not stayed or other similar relief is not granted under any applicable federal or state law within sixty (60) days after the entry thereof; or (2) the default or breach continuance of any of the Company to materially perform following events for sixty (60) days or more unless dismissed, bonded or discharged:
(a) an involuntary case is commenced against Holdings or any Joint Issuer under any applicable bankruptcy, insolvency or other covenant similar law now or agreement on hereafter in effect; or (b) a decree or order of a court for the appointment of a receiver, liquidator, sequestrator, trustee, custodian or other officer having similar powers over Holdings or any Joint Issuer or over all or a substantial part of its property, is entered; or (c) an interim receiver, trustee or other custodian is appointed without the consent of Holdings or any Joint Issuer, as applicable, for all or a substantial part of the Company contained property of such Person; or
(h) A final judgment or judgments in any individual case or in the Subordinated Notes aggregate at any time, in excess of $500,000 (in either case not adequately covered by insurance as to which the insurance company has acknowledged coverage) is entered or filed against Holdings or any Joint Issuer or any of their respective assets and remains undischarged, unvacated, unbonded or unstayed for a period of thirty (30) days or more; or
(1) Holdings or any Joint Issuer fails to make full payment when due of all amounts which, under the continuation provisions of any employee benefit plans or any applicable provisions of the Internal Revenue Code as amended from time to time ("IRC"), such default Person is required to pay as contributions thereto and such failure results in the imposition of a lien on the assets of Holdings or breach any Joint Issuer; or (without 2) an accumulated funding deficiency in excess of $1,000,000 occurs or exists, whether or not waived, with respect to any Holdings' or any Joint Issuer's employee benefit plans; or (3) any such default employee benefit plans lose their status as a qualified plan under the IRC which results in the imposition of a material lien on the assets of Holdings or breach having been waived any Joint Issuer; or
(j) Any of the Note Purchase Documents for any reason, 26 other than a partial or full release in accordance with the provisions terms thereof, ceases to be in full force and effect or is declared to be null and void, or Holdings or any Joint Issuer denies that it has any further liability under any Note Purchase Document to which it is party, or gives notice to such effect; or
(k) A Change of Control as defined under the Credit Agreement (as in effect on the date hereof) shall occur and be continuing:
(1) upon the occurrence of any Event of Default described in subdivision (f) or (g) of this Section 1713, the unpaid principal amount of and accrued interest on the Notes shall automatically become due and payable immediately; or (2) for a period upon the occurrence of 90 consecutive calendar days after there has been given to the Company by the Holders any other Event of not less than 25.0Default, any holder or holders of 25% or more in principal amount of the Notes at the time outstanding Subordinated Notesmay at any time (unless all Events of Default shall theretofore have been remedied) at its or their option, by registered or certified mail, in the manner set forth in Section 22, a written notice specifying such default or breach and requiring it notices to Holdings as agent for the Joint Issuers, declare all the Notes to be remedied, and stating that such notice is a “Notice of Default” hereunder. Unless the principal of this Subordinated Note already shall have become due and payable, if an Event of Default described in Section 5(a) or Section 5(b) whereupon the same shall have occurred forthwith mature and be continuing, the holder of this Subordinated Note, by notice in writing to Company, may declare the principal amount of this Subordinated Note to be become due and payable immediately and, upon any such declaration, the same shall become and shall be immediately due and payable. The Company waives demand, presentment for payment, notice of nonpayment, notice of protest, and all other notices. Notwithstanding the foregoing, because the Company will treat the Subordinated Notes as Tier 2 Capital, upon the occurrence of an Event of Default other than an Event of Default described in Section 5(a) or Section 5(b), the Noteholders may not accelerate the Stated Maturity of the Subordinated Notes and make the principal of, and any accrued and unpaid interest on, the Subordinated Notes, immediately due and payable. The Company, within forty-five (45) calendar days after the receipt of written notice from any Noteholder of the occurrence of an Event of Default with respect to this Subordinated Note, shall mail to all Noteholders, at their addresses shown on the Security Register (as defined in Section 14 below), such written notice of Event of Default, unless such Event of Default shall have been cured or waived before the giving of such notice as certified by the Company in writing. Prior to any acceleration of this Subordinated Note, a Noteholder may waive pursuant to Section 18 below any past Event of Default. In addition, a Noteholder may rescind a declaration of acceleration of this Subordinated Note before any judgment has been obtained if (i) the Company pays all matured installments of principal of and interest on this Subordinated Note (other than installments due by reason of acceleration) and interest on the overdue installments; and (ii) all other Events of Default with respect to this Subordinated Note have been cured or waivedno Senior Loans are then outstanding.
Appears in 1 contract
Sources: Note Purchase Agreement (Home Products International Inc)
Events of Default; Acceleration. Each If any of the following conditions or events shall constitute an “Event ("Events of Default”:") shall occur and be continuing (whether such occurrence shall be voluntary or involuntary or come about or be effected by operation of law or otherwise):
(a) the entry Company fails to (i) make any payment or prepayment of a decree or order for relief in respect principal of the Company by a court having jurisdiction in the premises in an involuntary case or proceeding under any applicable bankruptcy, insolvencythis Debenture when due, or reorganization law, now or hereafter in effect of the United States or (ii) pay any political subdivision thereof, interest on this Debenture when due and such decree failure to pay interest or order will have continued unstayed and in effect such other amounts remains unremedied for a period of sixty (60) consecutive calendar days;ten Business Days; or
(b) the commencement any representation or warranty made by the Company of a voluntary case under in the Purchase Agreement proves to have been incorrect, in any applicable bankruptcy, insolvency or reorganization law, now or hereafter in effect of the United States or any political subdivision thereof, or the consent by the Company to the entry of a decree or order for relief in an involuntary case or proceeding under any such law;material respect when made; or
(c) the Company fails to perform or observe any other term, covenant or agreement contained in this Debenture or the Purchase Agreement on its part to be performed or observed, and any such failure remains unremedied for 30 days after notice thereof is given to the Company by the registered holder of this Debenture; or
(d) the Company or PaineWebber Incorporated ("PWI"):
(i) becomes insolvent voluntarily commences any proceeding or is unable to pay its debts as they maturefiles any petition seeking relief under Title 11 of the United States Code or any other Federal or state bankruptcy, insolvency or similar law,
(ii) consents to the institution of, or fails to controvert in a timely and appropriate manner, any such proceeding or the filing of any such petition,
(iii) applies for or consents to the appointment of a receiver, trustee, custodian, sequestrator or similar official for the Company or PWI or for a substantial part of the property of either of them, or
(iv) makes an a general assignment for the benefit of creditors; or
(e) an involuntary proceeding is commenced or a voluntary petition is filed in a court of competent jurisdiction seeking:
(i) relief against the Company or PWI, or all or a substantial part of the property of either of them, under Title 11 of the United States Code or any other federal or state bankruptcy, insolvency or similar law,
(ii) the appointment of a receiver, trustee, custodian, sequestrator or similar official for the Company or PWI or for a substantial part of the property of either of them, or
(iii) admits in writing its inability to pay its debts as they mature, the winding-up or (iv) ceases to be a bank holding company or financial holding company under the Bank Holding Company Act of 1956, as amended;
(d) the failure liquidation of the Company to pay any installment of interest on or PWI; and such proceeding or petition continues undismissed for 60 days or an order or decree approving or ordering any of the Subordinated Notes as foregoing is entered; then, at any time thereafter during the continuance of any such event, the registered holder hereof may, by written notice to the Company, declare this Debenture to be due and when the same will payable, whereupon it shall forthwith mature and become due and payable, and the continuation together with all interest accrued thereon, without presentment, demand, protest or further notice, all of such failure for a period of fifteen (15) consecutive calendar days;
(e) the failure of the Company to pay all or any part of the principal of any of the Subordinated Notes as and when the same will become due and payable;
(f) the liquidation of the Company (for the avoidance of doubt, “liquidation” does not include any merger, consolidation, sale of equity or assets or reorganization (exclusive of a reorganization in bankruptcy) of the Company or any of its subsidiaries); or
(g) the default or breach of the Company to materially perform any other covenant or agreement on the part of the Company contained in the Subordinated Notes and the continuation of such default or breach (without such default or breach having been which are hereby expressly waived in accordance with the provisions of Section 17) for a period of 90 consecutive calendar days after there has been given to the Company by the Holders of not less than 25.0% in principal amount of the outstanding Subordinated Notes, by registered or certified mail, in the manner set forth in Section 22, a written notice specifying such default or breach and requiring it to be remedied, and stating that such notice is a “Notice of Default” hereunder. Unless the principal of this Subordinated Note already shall have become due and payable, if an Event of Default described in Section 5(a) or Section 5(b) shall have occurred and be continuing, the holder of this Subordinated Note, by notice in writing to Company, may declare the principal amount of this Subordinated Note to be due and payable immediately and, upon any such declaration, the same shall become and shall be immediately due and payable. The Company waives demand, presentment for payment, notice of nonpayment, notice of protest, and all other notices. Notwithstanding the foregoing, because the Company will treat the Subordinated Notes as Tier 2 Capital, upon the occurrence of an Event of Default other than an Event of Default described in Section 5(a) or Section 5(b), the Noteholders may not accelerate the Stated Maturity of the Subordinated Notes and make the principal of, and any accrued and unpaid interest on, the Subordinated Notes, immediately due and payable. The Company, within forty-five (45) calendar days after the receipt of written notice from any Noteholder of the occurrence of an Event of Default with respect to this Subordinated Note, shall mail to all Noteholders, at their addresses shown on the Security Register (as defined in Section 14 below), such written notice of Event of Default, unless such Event of Default shall have been cured or waived before the giving of such notice as certified by the Company in writing. Prior to any acceleration of this Subordinated Note, a Noteholder may waive pursuant to Section 18 below any past Event of Default. In addition, a Noteholder may rescind a declaration of acceleration of this Subordinated Note before any judgment has been obtained if (i) the Company pays all matured installments of principal of and interest on this Subordinated Note (other than installments due by reason of acceleration) and interest on the overdue installments; and (ii) all other Events of Default with respect to this Subordinated Note have been cured or waived.
Appears in 1 contract
Sources: Convertible Debenture Agreement (Paine Webber Group Inc)
Events of Default; Acceleration. Each Upon the occurrence and during the continuation of any Default, the obligation of Lender to make any additional Loan shall be suspended. The occurrence of any of the following events shall constitute (each, an “Event of Default”) shall terminate any obligation of Lender to make any additional Loan; and shall, at the option of Lender (1) make all sums of Basic Interest and principal, as well as any other Obligations and amounts owing under any Loan Documents, immediately due and payable without notice of default, presentment or demand for payment, protest or notice of nonpayment or dishonor or any other notices or demands, and (2) give Lender the right to exercise any other right or remedy provided by contract or applicable law:
(a) the entry of a decree Borrower shall fail to pay any principal or order for relief in respect of the Company by a court having jurisdiction in the premises in an involuntary case interest under this Agreement or proceeding any Note, or fail to pay any fees or other charges when due under any applicable bankruptcy, insolvency, or reorganization law, now or hereafter in effect of the United States or any political subdivision thereofLoan Document, and such decree failure continues for three (3) Business Days or order will more after the same first becomes due; or an Event of Default as defined in any other Loan Document shall have continued unstayed and in effect for a period of sixty (60) consecutive calendar days;occurred.
(b) the commencement Any representation or warranty made, or financial statement, certificate or other document provided, by the Company of a voluntary case Borrower under any applicable bankruptcy, insolvency Loan Document shall prove to have been false or reorganization law, now misleading in any material respect when made or hereafter in effect of the United States or any political subdivision thereof, or the consent by the Company to the entry of a decree or order for relief in an involuntary case or proceeding under any such law;deemed made herein.
(c) the Company (i) becomes insolvent or is unable Borrower shall fail to pay its debts generally as they mature, become due; or (ii) makes Borrower shall commence any Insolvency Proceeding with respect to itself, an assignment involuntary Insolvency Proceeding shall be filed against Borrower, or a custodian, receiver, trustee, assignee for the benefit of creditors, or other similar official, shall be appointed to take possession, custody or control of the properties of Borrower, and such involuntary Insolvency Proceeding, petition or appointment is acquiesced to by Borrower or is not dismissed within forty five (45) days; or (iii) admits in writing its inability the dissolution, winding up, or termination of the business or cessation of operations of Borrower (including any transaction or series of related transactions deemed to pay its debts as they maturebe a liquidation, dissolution or winding up of Borrower pursuant to the provisions of Borrower’s charter documents); or (iv) ceases Borrower shall take any corporate action for the purpose of effecting, approving, or consenting to be a bank holding company or financial holding company under any of the Bank Holding Company Act of 1956, as amended;foregoing.
(d) Borrower shall be in default beyond any applicable period of grace or cure under any other agreement involving the failure borrowing of money, the purchase of property, the advance of credit or any other monetary liability of any kind to Lender or to any Person in an amount in excess of the Company to pay any installment of interest on any of the Subordinated Notes as and when the same will become due and payable, and the continuation of such failure for a period of fifteen (15) consecutive calendar days;Threshold Amount.
(e) the failure of the Company to pay all Any governmental or regulatory authority shall take any judicial or administrative action, or any part of the principal of defined benefit pension plan maintained by Borrower shall have any unfunded liabilities, any of which, in the Subordinated Notes as and when the same will become due and payable;reasonable judgment of Lender, might have a Material Adverse Effect.
(f) the liquidation Except as permitted under Section 6.5, any sale, transfer or other disposition of all or a substantial or material part of the Company (for the avoidance assets of doubtBorrower, “liquidation” does not include including without limitation to any mergertrust or similar entity, consolidation, sale of equity or assets or reorganization (exclusive of a reorganization in bankruptcy) of the Company or any of its subsidiaries); orshall occur.
(g) Any judgment(s) singly or in the aggregate in excess of the Threshold Amount shall be entered against Borrower which remain unsatisfied, unvacated or unstayed pending appeal for ten (10) or more days after entry thereof.
(h) Borrower shall fail to perform or observe any covenant contained in Article 6 of this Agreement.
(i) Borrower shall fail to perform or observe any covenant contained in Article 5 or elsewhere in this Agreement or any other Loan Document (other than a covenant which is dealt with specifically elsewhere in this Article 7) and, if capable of being cured, the breach of such covenant is not cured within 30 days after the sooner to occur of Borrower’s receipt of notice of such breach from Lender or the date on which such breach first becomes known to any officer of Borrower; provided, however that if such breach is not capable of being cured within such 30-day period and Borrower timely notifies Lender of such fact and Borrower diligently pursues such cure, then the cure period shall be extended to the date requested in Borrower’s notice but in no event more than 90 days from the initial breach; provided, further, that such additional 60-day opportunity to cure shall not apply in the case of any failure to perform or observe any covenant which has been the subject of a prior failure within the preceding 180 days or which is a willful and knowing breach by Borrower.
(j) The occurrence of any default or event of default (however defined) under any document evidencing or executed or delivered in connection with Borrower’s Indebtedness and obligations to EWB under the EWB Working Capital Facility; provided, however, that if EWB has not previously accelerated Borrower’s Indebtedness and obligations to EWB then a breach by Borrower of the Company to materially perform any other a covenant or agreement on the part of the Company contained in the Subordinated Notes and the continuation of such default or breach (without such default or breach having been waived in accordance with the provisions of Section 17) for a period of 90 consecutive calendar days after there has been given applicable to the Company by the Holders of EWB Working Capital Facility shall not less than 25.0% in principal amount of the outstanding Subordinated Notes, by registered or certified mail, in the manner set forth in Section 22, a written notice specifying such default or breach and requiring it be deemed to be remedied, and stating that such notice is a “Notice of Default” hereunder. Unless the principal of this Subordinated Note already shall have become due and payable, if constitute an Event of Default described in under this Section 5(a7.1(j).
(k) or Section 5(b) ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ shall have occurred and be continuingcease for any reason to serve as Borrower’s Chief Executive Officer, the holder of this Subordinated Note, by notice in writing to Company, may declare the principal amount of this Subordinated Note to be due and payable immediately and, upon any such declaration, the same shall become and shall be immediately due and payable. The Company waives demand, presentment for payment, notice of nonpayment, notice of protest, and all other notices. Notwithstanding the foregoing, because the Company will treat the Subordinated Notes as Tier 2 Capital, upon the occurrence of an Event of Default other than an Event of Default described in Section 5(a) or Section 5(b), the Noteholders may not accelerate the Stated Maturity of the Subordinated Notes and make the principal of, and any accrued and unpaid interest on, the Subordinated Notes, immediately due and payable. The Company, within forty-five (45) calendar days after the receipt of written notice from any Noteholder of the occurrence of an Event of Default with respect to this Subordinated Note, shall mail to all Noteholders, at their addresses shown on the Security Register (as defined in Section 14 below), such written notice of Event of Default, unless such Event of Default shall have been cured or waived before the giving of such notice as certified by the Company in writing. Prior to any acceleration of this Subordinated Note, a Noteholder may waive pursuant to Section 18 below any past Event of Default. In addition, a Noteholder may rescind a declaration of acceleration of this Subordinated Note before any judgment has been obtained if (i) the Company pays all matured installments of principal of and interest on this Subordinated Note (other than installments due whether by reason of acceleration) and interest on the overdue installments; and (ii) all other Events death, disability, resignation, action by Borrower’s Board of Default with respect to this Subordinated Note have been cured Directors or waivedstockholders, or otherwise.
Appears in 1 contract
Events of Default; Acceleration. Each Upon the occurrence and during the continuation of any Default, the obligation of Lender to make any additional Loan shall be suspended. The occurrence of any of the following events shall constitute (each, an “Event of Default”) that has not been cured within any applicable cure period or waived by Lender shall terminate any obligation of Lender to make any additional Loan; and shall, at the option of Lender (1) make all sums of Basic Interest and principal, as well as any other Obligations and amounts owing under any Loan Documents, immediately due and payable without notice of default, presentment or demand for payment, protest or notice of nonpayment or dishonor or any other notices or demands, and (2) give Lender the right to exercise any other right or remedy provided by contract or applicable law:
(a) the entry of a decree Borrower shall fail to pay any principal or order for relief in respect of the Company by a court having jurisdiction in the premises in an involuntary case interest under this Agreement or proceeding any Note, or fail to pay any fees or other charges when due under any applicable bankruptcy, insolvency, or reorganization law, now or hereafter in effect of the United States or any political subdivision thereofLoan Document, and such decree failure continues for three (3) Business Days or order will more after the same first becomes due; or an Event of Default as defined in any other Loan Document shall have continued unstayed and in effect for a period of sixty (60) consecutive calendar days;occurred.
(b) the commencement Any representation or warranty made herein, or which is contained in any financial statement, certificate or other document provided, by the Company of a voluntary case Borrower under any applicable bankruptcyLoan Document shall prove to have been false or misleading in any material respect when made or deemed made herein; provided, insolvency that, with respect to the Intellectual Property Agreement, Borrower’s representations or reorganization lawwarranties made therein shall prove false or misleading in any material respect, now or hereafter in effect and, as to any breach that is capable of cure, Borrower fails to cure such breach within thirty (30) days of the United States or any political subdivision thereof, sooner to occur of Borrower’s receipt of notice of such breach from Lender or the consent by the Company date on which such breach first becomes known to the entry a senior officer of a decree or order for relief in an involuntary case or proceeding under any such law;Borrower.
(c) the Company (i) becomes insolvent or is unable to pay its debts as they mature, (ii) makes an assignment for the benefit of creditors, (iii) admits Borrower shall admit in writing its inability to pay its debts generally as they maturebecome due; or (ii) Borrower shall commence any Insolvency Proceeding with respect to itself, an involuntary Insolvency Proceeding shall be filed against Borrower, or a custodian, receiver, trustee, assignee for the benefit of creditors, or other similar official, shall be appointed to take possession, custody or control of the properties of Borrower, and such involuntary Insolvency Proceeding, petition or appointment is acquiesced to by Borrower or is not dismissed within sixty (iv60) ceases days; or (ii) the dissolution, winding up, or termination of the business or cessation of operations of Borrower (including any transaction or series of related transactions deemed to be a bank holding company liquidation, dissolution or financial holding company winding up of Borrower pursuant to the provisions of Borrower’s charter documents) except as permitted under Section 6.4; or (iii) Borrower shall take any corporate action for the Bank Holding Company Act purpose of 1956effecting, as amended;approving, or consenting to any of the foregoing.
(d) Borrower shall be in default beyond any applicable period of grace or cure under any other agreement involving the failure borrowing of money, the purchase of property, the advance of credit or any other monetary liability of any kind to Lender or to any Person in an amount in excess of the Company to pay any installment of interest on any of the Subordinated Notes as and when the same will become due and payable, and the continuation of such failure for a period of fifteen (15) consecutive calendar days;Threshold Amount.
(e) Any governmental or regulatory authority shall take any judicial or administrative action that has, or would reasonably be expected to have, the failure effect of suspending or terminating any material portion of Borrower’s business; or any Pension Plan shall have any unfunded liabilities in excess of the Company to pay all or any part of the principal of any of the Subordinated Notes as and when the same will become due and payable;Threshold Amount.
(f) the liquidation Except as permitted pursuant to Section 6.5, any sale, transfer or other disposition of all or substantially all of the Company (assets of Borrower, except for the avoidance creation of doubtPermitted Liens, “liquidation” does not include including without limitation to any mergertrust or similar entity, consolidation, sale of equity or assets or reorganization (exclusive of a reorganization in bankruptcy) of the Company or any of its subsidiaries); orshall occur.
(g) Any judgment(s) singly or in the default or breach aggregate in excess of the Company to materially perform any other covenant or agreement on the part of the Company contained in the Subordinated Notes and the continuation of such default or breach (without such default or breach having been waived in accordance with the provisions of Section 17) for a period of 90 consecutive calendar days after there has been given to the Company by the Holders of not less than 25.0% in principal amount of the outstanding Subordinated Notes, by registered or certified mail, in the manner set forth in Section 22, a written notice specifying such default or breach and requiring it to be remedied, and stating that such notice is a “Notice of Default” hereunder. Unless the principal of this Subordinated Note already shall have become due and payable, if an Event of Default described in Section 5(a) or Section 5(b) shall have occurred and be continuing, the holder of this Subordinated Note, by notice in writing to Company, may declare the principal amount of this Subordinated Note to be due and payable immediately and, upon any such declaration, the same shall become and Threshold Amount shall be immediately due entered against Borrower which are not covered by insurance and payable. The Company waives demandwhich remain unsatisfied, presentment unvacated or unstayed in pending appeal for payment, notice of nonpayment, notice of protest, and all other notices. Notwithstanding the foregoing, because the Company will treat the Subordinated Notes as Tier 2 Capital, upon the occurrence of an Event of Default other than an Event of Default described in Section 5(a) or Section 5(b), the Noteholders may not accelerate the Stated Maturity of the Subordinated Notes and make the principal of, and any accrued and unpaid interest on, the Subordinated Notes, immediately due and payable. The Company, within forty-five (45) calendar or more Business Days after entry thereof.
(h) Borrower shall fail to perform or observe any covenant contained in Article 6 of this Agreement.
(i) Borrower shall fail to perform or observe any covenant contained in Article 5 or elsewhere in this Agreement or any other Loan Document (other than a covenant which is dealt with specifically elsewhere in this Article 7) and, if capable of being cured, the breach of such covenant is not cured within 30 days after the sooner to occur of Borrower’s receipt of written notice from any Noteholder of the occurrence of an Event of Default with respect to this Subordinated Note, shall mail to all Noteholders, at their addresses shown on the Security Register (as defined in Section 14 below), such written notice of Event such breach from Lender or the date on which such breach first becomes known to any officer of DefaultBorrower; provided, unless however that if such Event breach is not capable of Default shall have been being cured or waived before the giving within such 30-day period and Borrower timely notifies Lender of such fact and Borrower diligently pursues such cure, then the cure period shall be extended to the date requested in Borrower’s notice as certified by but in no event more than 90 days from the Company initial breach; provided, further, that such additional 60-day opportunity to cure shall not apply in writing. Prior the case of any failure to perform or observe any acceleration of this Subordinated Note, a Noteholder may waive pursuant to Section 18 below any past Event of Default. In addition, a Noteholder may rescind a declaration of acceleration of this Subordinated Note before any judgment covenant which has been obtained if (i) the Company pays all matured installments subject of principal of a prior failure within the preceding 180 days or which is a willful and interest on this Subordinated Note (other than installments due knowing breach by reason of acceleration) and interest on the overdue installments; and (ii) all other Events of Default with respect to this Subordinated Note have been cured or waivedBorrower.
Appears in 1 contract
Events of Default; Acceleration. Each If any of the following events occurs, the Credit Facilities shall constitute an “Event terminate and all borrowings and other obligations under them shall be due immediately, without notice, at the Bank's option whether or not the Bank has made demand.
A. The Borrower or any guarantor of Default”:any of the Credit Facilities, the Notes, the Leases or any other Liabilities (each, a "Guarantor") fails to pay when due any amount payable under the Credit Facilities, under any other Liabilities, or under any agreement or instrument evidencing debt to any creditor;
B. The Borrower or any Guarantor (a) fails to observe or perform any other term of this agreement, the entry of a decree or order for relief in respect of the Company by a court having jurisdiction in the premises in an involuntary case or proceeding under any applicable bankruptcy, insolvencyNotes, or reorganization law, now or hereafter in effect of the United States or any political subdivision thereof, and such decree or order will have continued unstayed and in effect for a period of sixty (60) consecutive calendar days;
Leases; (b) the commencement by the Company of a voluntary case under makes any applicable bankruptcymaterially incorrect or misleading representation, insolvency or reorganization law, now or hereafter in effect of the United States or any political subdivision thereofwarranty, or the consent by the Company certificate to the entry of a decree or order for relief in an involuntary case or proceeding under any such law;
Bank; (c) makes any materially incorrect or misleading representation in any financial statement or other information delivered to the Company Bank; or (id) defaults under the terms of any agreement or instrument relating to any debt for borrowed money (other than borrowings under the Credit Facilities) such that the creditor declares the debt due before its maturity;
C. There is a default under the terms of any loan agreement, mortgage, security agreement or any other document executed as part of the Credit Facilities or any other Liabilities, or any guaranty of the obligations under the Credit Facilities or any other Liabilities becomes unenforceable in whole or in part, or any Guarantor fails to promptly perform under its guaranty;
D. A "reportable event" (as defined in the Employee Retirement Income Security Act of 1974 as amended) occurs that would permit the Pension Benefit Guaranty Corporation to terminate any employee benefit plan of the Borrower or any affiliate of the Borrower;
E. The Borrower or any Guarantor becomes insolvent or is unable to pay its debts as they mature, become due;
F. The Borrower or any Guarantor (iia) makes an assignment for the benefit of creditors; (b) consents to the appointment of a custodian, receiver or trustee for it or for a substantial part of its assets; or (c) commences any proceeding under any bankruptcy, reorganization, liquidation or similar laws of any jurisdiction;
G. A custodian, receiver or trustee is appointed for the Borrower or any Guarantor or for a substantial part of its assets without its consent and is not removed within 60 days after such appointment;
H. Proceedings are commenced against the Borrower or any Guarantor under any bankruptcy, reorganization, liquidation, or similar laws of any jurisdiction, and such proceedings remain undismissed for 60 days after commencement; or the Borrower or Guarantor consents to the commencement of such proceedings;
I. Any judgment is entered against the Borrower or any Guarantor, or any attachment, levy or garnishment is issued against any property of the Borrower or any Guarantor;
J. The Borrower or any Guarantor dies;
K. The Borrower or any Guarantor, without the Bank's written consent, (iiia) admits is dissolved, (b) merges or consolidates with any third party, (c) leases, sells or otherwise conveys a material part of its assets or business outside the ordinary course of business, (d) leases, purchases, or otherwise acquires a material part of the assets of any other corporation or business entity, except in writing its inability to pay its debts as they maturethe ordinary course of business, or (ive) ceases agrees to be a bank holding company or financial holding company under the Bank Holding Company Act of 1956, as amended;
(d) the failure of the Company to pay any installment of interest on do any of the Subordinated Notes foregoing, (notwithstanding the foregoing, any subsidiary may merge or consolidate with any other subsidiary, or with the Borrower, so long as and when the same will become due and payableBorrower is the survivor);
L. The loan-to-value ratio of any pledged securities at any time exceeds N/A%, and such excess continues for five (5) days after notice from the continuation of such failure for a period of fifteen (15) consecutive calendar daysBank to the Borrower;
(e) M. There is a substantial change in the failure existing or prospective financial condition of the Company to pay all Borrower or any part of Guarantor which the principal of any of the Subordinated Notes as and when the same will become due and payable;
(f) the liquidation of the Company (for the avoidance of doubt, “liquidation” does not include any merger, consolidation, sale of equity or assets or reorganization (exclusive of a reorganization Bank in bankruptcy) of the Company or any of its subsidiaries)good faith determines to be materially adverse; or
(g) the default or breach of the Company to materially perform any other covenant or agreement on the part of the Company contained N. The Bank in the Subordinated Notes and the continuation of such default or breach (without such default or breach having been waived in accordance with the provisions of Section 17) for a period of 90 consecutive calendar days after there has been given to the Company by the Holders of not less than 25.0% in principal amount of the outstanding Subordinated Notes, by registered or certified mail, in the manner set forth in Section 22, a written notice specifying such default or breach and requiring it to be remedied, and stating that such notice is a “Notice of Default” hereunder. Unless the principal of this Subordinated Note already good faith shall have become due and payable, if an Event of Default described in Section 5(a) or Section 5(b) shall have occurred and be continuing, the holder of this Subordinated Note, by notice in writing to Company, may declare the principal amount of this Subordinated Note to be due and payable immediately and, upon any such declaration, the same shall become and shall be immediately due and payable. The Company waives demand, presentment for payment, notice of nonpayment, notice of protest, and all other notices. Notwithstanding the foregoing, because the Company will treat the Subordinated Notes as Tier 2 Capital, upon the occurrence of an Event of Default other than an Event of Default described in Section 5(a) or Section 5(b), the Noteholders may not accelerate the Stated Maturity of the Subordinated Notes and make the principal of, and any accrued and unpaid interest on, the Subordinated Notes, immediately due and payable. The Company, within forty-five (45) calendar days after the receipt of written notice from any Noteholder of the occurrence of an Event of Default with respect to this Subordinated Note, shall mail to all Noteholders, at their addresses shown on the Security Register (as defined in Section 14 below), such written notice of Event of Default, unless such Event of Default shall have been cured or waived before the giving of such notice as certified by the Company in writing. Prior to any acceleration of this Subordinated Note, a Noteholder may waive pursuant to Section 18 below any past Event of Default. In addition, a Noteholder may rescind a declaration of acceleration of this Subordinated Note before any judgment has been obtained if (i) the Company pays all matured installments of principal of and interest on this Subordinated Note (other than installments due by reason of acceleration) and interest on the overdue installments; and (ii) all other Events of Default with respect to this Subordinated Note have been cured or waiveddeem itself insecure.
Appears in 1 contract
Events of Default; Acceleration. Each Upon the occurrence and during the continuation of any Default, the obligation of Lender to make any additional Loan shall be suspended. The occurrence of any of the following events shall constitute (each, an “"Event of Default”") shall terminate any obligation of Lender to make any additional Loan; and shall, at the option of Lender (1) make all sums of Basic Interest and principal, all Terminal Payments, and any Obligations and other amounts owing under any Loan Documents immediately due and payable without notice of default, presentment or demand for payment, protest or notice of nonpayment or dishonor or any other notices or demands, and (2) give Lender the right to exercise any other right or remedy provided by contract or applicable law:
(a) the entry of a decree Borrower shall fail to pay any principal, interest or order for relief in respect of the Company by a court having jurisdiction in the premises in an involuntary case Terminal Payment under this Agreement, or proceeding fail to pay any fees or other charges when due under any applicable bankruptcy, insolvency, or reorganization law, now or hereafter in effect of the United States or any political subdivision thereofLoan Document, and such decree failure continues for five (5) Business Days or order will more after the same first becomes due; or an Event of Default as defined in any other Loan Document shall have continued unstayed and in effect for a period of sixty (60) consecutive calendar days;occurred.
(b) the commencement Any representation or warranty made, or financial statement, certificate or other document provided, by the Company of a voluntary case Borrower under any applicable bankruptcy, insolvency Loan Document shall prove to have been false or reorganization law, now misleading in any material respect when made or hereafter in effect of the United States or any political subdivision thereof, or the consent by the Company to the entry of a decree or order for relief in an involuntary case or proceeding under any such law;deemed made herein.
(c) the Company (i) becomes insolvent or is unable Borrower shall fail to pay its debts generally as they maturebecome due or shall commence any Insolvency Proceeding with respect to itself; an involuntary Insolvency Proceeding shall be filed against Borrower, (ii) makes an assignment or a custodian, receiver, trustee, assignee for the benefit of creditors, or other similar official, shall be appointed to take possession, custody or control of the properties of Borrower, and such involuntary Insolvency Proceeding, petition or appointment is acquiesced to by Borrower or is not dismissed within sixty (iii60) admits in writing its inability to pay its debts as they mature, days; or (iv) ceases to be a bank holding company the dissolution or financial holding company under termination of the Bank Holding Company Act business of 1956, as amended;Borrower.
(d) Borrower shall be in default beyond any applicable period of grace or cure under any other agreement involving the failure borrowing of money, the purchase of property, the advance of credit or any other monetary liability of any kind to Lender or to any Person which results in the acceleration of payment of such obligation in an amount in excess of the Company to pay any installment of interest on any of the Subordinated Notes as and when the same will become due and payable, and the continuation of such failure for a period of fifteen (15) consecutive calendar days;Threshold Amount.
(e) the failure of the Company to pay all Any governmental or regulatory authority shall take any judicial or administrative action, or any part of the principal of defined benefit pension plan maintained by Borrower shall have any unfunded liabilities, any of which, in the Subordinated Notes as and when the same will become due and payable;reasonable judgment of Lender, might have a Material Adverse Effect.
(f) the liquidation Any sale, transfer or other disposition of all or a substantial or material part of the Company (for the avoidance assets of doubtBorrower, “liquidation” does not include including without limitation to any mergertrust or similar entity, consolidation, sale of equity or assets or reorganization (exclusive of a reorganization in bankruptcy) of the Company or any of its subsidiaries); orshall occur.
(g) Any judgment(s) singly or in the default or breach aggregate in excess of the Company to materially perform any other covenant Threshold Amount shall be entered against Borrower which remain unsatisfied, unvacated or agreement on unstayed pending appeal for ten (10) or more days after entry thereof.
(h) Any Person or two or more Persons acting in concert, excluding current investors, shall have acquired beneficial ownership (within the part meaning of Rule 13d-3 of the Company contained in the Subordinated Notes Securities and the continuation Exchange Commission) of such default fifty percent (50%) or breach (without such default or breach having been waived in accordance with the provisions of Section 17) for a period of 90 consecutive calendar days after there has been given to the Company by the Holders of not less than 25.0% in principal amount more of the outstanding Subordinated Notes, by registered shares of voting stock of Borrower.
(i) Borrower shall fail to perform or certified mail, observe any covenant contained in the manner set forth in Section 22, a written notice specifying such default or breach and requiring it to be remedied, and stating that such notice is a “Notice of Default” hereunder. Unless the principal Article 6 of this Subordinated Note already Agreement.
(j) Borrower shall have become due and payable, if an Event of Default described fail to perform or observe any covenant contained in Section 5(a) this Agreement or Section 5(b) shall have occurred and be continuing, the holder of this Subordinated Note, by notice in writing to Company, may declare the principal amount of this Subordinated Note to be due and payable immediately and, upon any such declaration, the same shall become and shall be immediately due and payable. The Company waives demand, presentment for payment, notice of nonpayment, notice of protest, and all other notices. Notwithstanding the foregoing, because the Company will treat the Subordinated Notes as Tier 2 Capital, upon the occurrence of an Event of Default Loan Document (other than an Event a covenant which is dealt with specifically elsewhere in this Article 7) and the breach of Default described in Section 5(a) or Section 5(b), the Noteholders may such covenant is not accelerate the Stated Maturity of the Subordinated Notes and make the principal of, and any accrued and unpaid interest on, the Subordinated Notes, immediately due and payable. The Company, cured within forty-five (45) calendar 30 days after the sooner to occur of Borrower's receipt of written notice from any Noteholder of the occurrence of an Event of Default with respect to this Subordinated Note, shall mail to all Noteholders, at their addresses shown on the Security Register (as defined in Section 14 below), such written notice of Event such breach from Lender or the date on which such breach first becomes known to any officer of DefaultBorrower; provided, unless however that if such Event breach is not capable -------- ------- of Default shall have been being cured or waived before the giving within such 30-day period and Borrower timely notifies Lender of such fact and Borrower diligently pursues such cure, then the cure period shall be extended to the date requested in Borrower's notice as certified by but in no event more than 90 days from the Company initial breach; provided, further, that such additional 60-day -------- ------- opportunity to cure shall not apply in writing. Prior the case of any failure to perform or observe any acceleration of this Subordinated Note, a Noteholder may waive pursuant to Section 18 below any past Event of Default. In addition, a Noteholder may rescind a declaration of acceleration of this Subordinated Note before any judgment covenant which has been obtained if (i) the Company pays all matured installments subject of principal of a prior failure within the preceding 180 days or which is a willful and interest on this Subordinated Note (other than installments due knowing breach by reason of acceleration) and interest on the overdue installments; and (ii) all other Events of Default with respect to this Subordinated Note have been cured or waivedBorrower.
Appears in 1 contract
Events of Default; Acceleration. Each Upon the occurrence and during the continuation of any Default, the obligation of Lender to make any additional Loan shall be suspended. The occurrence of any of the following events shall constitute (each, an “Event of Default”) shall terminate any obligation of Lender to make any additional Loan; and shall, at the option of Lender (1) make all sums of Basic Interest, principal and any Obligations and other amounts owing under any Loan Documents immediately due and payable without notice of default, presentment or demand for payment, protest or notice of nonpayment or dishonor or any other notices or demands, and (2) give Lender the right to exercise any other right or remedy provided by contract or applicable law:
(a) the entry of a decree Borrower shall fail to pay any principal or order for relief in respect of the Company by a court having jurisdiction in the premises in an involuntary case interest under this Agreement or proceeding any Note, or fail to pay any fees or other charges when due under any applicable bankruptcy, insolvency, or reorganization law, now or hereafter in effect of the United States or any political subdivision thereofLoan Document, and such decree failure continues for five (5) Business Days or order will more after the same first becomes due; or an Event of Default as defined in any other Loan Document shall have continued unstayed and in effect for a period of sixty (60) consecutive calendar days;occurred.
(b) the commencement Any representation or warranty made, or financial statement, certificate or other document provided, by the Company of a voluntary case Borrower to Lender or to induce Lender to enter this Agreement under any applicable bankruptcy, insolvency Loan Document shall prove to have been false or reorganization law, now or hereafter misleading in effect of the United States or any political subdivision thereof, or the consent by the Company to the entry of a decree or order for relief in an involuntary case or proceeding under any such law;material respect when made.
(c) the Company (i) becomes insolvent or is unable Borrower shall fail to pay its debts generally as they mature, become due; or (ii) makes Borrower shall commence any Insolvency Proceeding with respect to itself, an assignment involuntary Insolvency Proceeding shall be filed against Borrower, or a custodian, receiver, trustee, assignee for the benefit of creditors, or other similar official, shall be appointed to take possession, custody or control of the properties of Borrower, and such involuntary Insolvency Proceeding, petition or appointment is acquiesced to by Borrower or is not dismissed within forty five (iii45) admits in writing its inability to pay its debts as they maturedays; or the dissolution, winding up, or termination of the business or cessation of operations of Borrower (iv) ceases including any transaction or series of related transactions deemed to be a bank holding company liquidation, dissolution or financial holding company under winding up of Borrower pursuant to the Bank Holding Company Act provisions of 1956Borrower’s charter documents); or Borrower shall take any corporate action for the purpose of effecting, as amended;approving, or consenting to any of the foregoing.
(d) Borrower shall be in default beyond any applicable period of grace or cure under any other agreement involving the failure borrowing of money, the purchase of property, the advance of credit or any other monetary liability of any kind to Lender or to any Person which results in the acceleration of payment of such obligation in an amount in excess of the Company to pay any installment of interest on any of the Subordinated Notes as and when the same will become due and payable, and the continuation of such failure for a period of fifteen (15) consecutive calendar days;Threshold Amount.
(e) the failure of the Company to pay all Any governmental or regulatory authority shall take any judicial or administrative action, or any part of the principal of defined benefit pension plan maintained by Borrower shall have any unfunded liabilities, any of the Subordinated Notes as and when the same will become due and payable;which, would reasonably be expected to have a Material Adverse Effect.
(f) the liquidation Any sale, transfer or other disposition of all or a substantial or material part of the Company (for the avoidance assets of doubtBorrower, “liquidation” does not include including without limitation to any mergertrust or similar entity, consolidation, sale of equity or assets or reorganization (exclusive of a reorganization in bankruptcy) of the Company or any of its subsidiaries); orshall occur.
(g) the default Any judgment(s) singly or breach of the Company to materially perform any other covenant or agreement on the part of the Company contained in the Subordinated Notes and the continuation aggregate in excess of $250,000 (not covered by independent third-party insurance as to which liability has been accepted by such default insurance carrier) shall be entered against Borrower which remain unsatisfied, unvacated or breach unstayed pending appeal for ten (without such default 10) or breach having been waived in accordance with the provisions of Section 17) for a period of 90 consecutive calendar more days after there has been given to the Company by the Holders of not less than 25.0% in principal amount of the outstanding Subordinated Notes, by registered or certified mail, in the manner set forth in Section 22, a written notice specifying such default or breach and requiring it to be remedied, and stating that such notice is a “Notice of Default” hereunder. Unless the principal of this Subordinated Note already shall have become due and payable, if an Event of Default described in Section 5(a) or Section 5(b) shall have occurred and be continuing, the holder of this Subordinated Note, by notice in writing to Company, may declare the principal amount of this Subordinated Note to be due and payable immediately and, upon any such declaration, the same shall become and shall be immediately due and payable. The Company waives demand, presentment for payment, notice of nonpayment, notice of protest, and all other notices. Notwithstanding the foregoing, because the Company will treat the Subordinated Notes as Tier 2 Capital, upon the occurrence of an Event of Default other than an Event of Default described in Section 5(a) or Section 5(b), the Noteholders may not accelerate the Stated Maturity of the Subordinated Notes and make the principal of, and any accrued and unpaid interest on, the Subordinated Notes, immediately due and payable. The Company, within forty-five (45) calendar days after the receipt of written notice from any Noteholder of the occurrence of an Event of Default with respect to this Subordinated Note, shall mail to all Noteholders, at their addresses shown on the Security Register (as defined in Section 14 below), such written notice of Event of Default, unless such Event of Default shall have been cured or waived before the giving of such notice as certified by the Company in writing. Prior to any acceleration of this Subordinated Note, a Noteholder may waive pursuant to Section 18 below any past Event of Default. In addition, a Noteholder may rescind a declaration of acceleration of this Subordinated Note before any judgment has been obtained if (i) the Company pays all matured installments of principal of and interest on this Subordinated Note (other than installments due by reason of acceleration) and interest on the overdue installments; and (ii) all other Events of Default with respect to this Subordinated Note have been cured or waivedentry thereof.
Appears in 1 contract
Events of Default; Acceleration. Each of the following events shall constitute an “"Event of Default”" for purposes of this Mortgage:
a. Mortgagor fails to pay (ai) any installment of principal or interest payable pursuant to the entry Note on the date when due, or (ii) any other amount payable to Lender under the Note, this Mortgage or any of the other Loan Documents within five (5) days after the date when any such payment is due in accordance with the terms hereof or thereof;
b. Mortgagor fails to perform or cause to be performed any other obligation or observe any other condition, covenant, term, agreement or provision required to be performed or observed by Mortgagor under the Note, this Mortgage or any of the other Loan Documents; provided, however, that if such failure by its nature can be cured, then so long as the continued operation and safety of the Premises, and the priority, validity and enforceability of the liens created by the Mortgage or any of the other Loan Documents and the value of the Premises are not impaired, threatened or jeopardized, then Mortgagor shall have a period ("Cure Period") of thirty (30) days after Mortgagor obtains actual knowledge of such failure or receives written notice of such failure to cure the same and an Event of Default shall not be deemed to exist during the Cure Period, provided further that if Mortgagor commences to cure such failure during the Cure Period and is diligently and in good faith attempting to effect such cure, the Cure Period shall be extended for thirty (30) additional days, but in no event shall the Cure Period be longer than sixty (60) days in the aggregate;
c. the existence of any inaccuracy or untruth in any material respect in any representation or warranty contained in this Mortgage or any of the other Loan Documents or of any statement or certification as to facts delivered to Mortgagee by Mortgagor or any guarantor of the Note;
d. Mortgagor or any guarantor of the Note files a voluntary petition in bankruptcy or is adjudicated a bankrupt or insolvent or files any petition or answer seeking any reorganization, arrangement, composition, readjustment, liquidation, dissolution or similar relief under the present or any future federal, state, or other statute or law, or seeks or consents to or acquiesces in the appointment of any trustee, receiver or similar officer of Mortgagor or of all or any substantial part of the property of Mortgagor or any guarantor of the Note or any of the Premises or all or a substantial part of the assets of Mortgagor or any guarantor of the Note are attached, seized, subjected to a writ or distress warrant or are levied upon unless the same is released or located within ninety (90) days;
e. the commencement of any involuntary petition in bankruptcy against Mortgagor or any guarantor of the Note or the institution against Mortgagor or any guarantor of the Note of any reorganization, arrangement, composition, readjustment, dissolution, liquidation or similar proceedings under any present or future federal, state or other statute or law, or the appointment of a decree receiver, trustee or order similar officer for relief in respect all or any substantial part of the Company by a court having jurisdiction in the premises in an involuntary case property of Mortgagor or proceeding under any applicable bankruptcy, insolvency, or reorganization law, now or hereafter in effect guarantor of the United States Note which shall remain undismissed or any political subdivision thereof, and such decree or order will have continued unstayed and in effect undischarged for a period of sixty ninety (6090) consecutive calendar days;
(b) f. the commencement by dissolution, termination or merger of Mortgagor or any guarantor of the Company Note;
g. the occurrence of a voluntary case Prohibited Transfer;
h. the occurrence of an "Event of Default" under the Note or any applicable bankruptcy, insolvency or reorganization law, now or hereafter in effect of the United States or any political subdivision thereofother Loan Documents; or
i. the occurrence of a default in payment under, or the consent by acceleration of indebtedness created by, the Company to the entry of a decree or order for relief in an involuntary case or proceeding under any such law;
(c) the Company (i) becomes insolvent or is unable to pay its debts as they mature, (ii) makes an assignment for the benefit of creditors, (iii) admits in writing its inability to pay its debts as they matureSenior Credit Facility, or (iv) ceases to be a bank holding company or financial holding company under the Bank Holding Company Act of 1956, as amended;
(d) the failure of the Company to pay any installment of interest on any of the Subordinated Notes as and when the same will become due and payable, and the continuation of such failure for a period of fifteen (15) consecutive calendar days;
(e) the failure of the Company to pay all or any part of the principal of any of the Subordinated Notes as and when the same will become due and payable;
(f) the liquidation of the Company (for the avoidance of doubt, “liquidation” does not include any merger, consolidation, sale of equity or assets or reorganization (exclusive of a reorganization in bankruptcy) of the Company or any of its subsidiaries); or
(g) the default or breach of the Company to materially perform any other covenant or agreement on the part of the Company contained in the Subordinated Notes loan documents evidencing and the continuation of securing such default or breach (without such default or breach having been waived in accordance with the provisions of Section 17) for a period of 90 consecutive calendar days after there has been given to the Company by the Holders of not less than 25.0% in principal amount of the outstanding Subordinated Notes, by registered or certified mail, in the manner set forth in Section 22, a written notice specifying such default or breach and requiring it to be remedied, and stating that such notice is a “Notice of Default” hereunderindebtedness. Unless the principal of this Subordinated Note already shall have become due and payable, if If an Event of Default described in Section 5(a) or Section 5(b) shall have occurred and be continuingoccurs, the holder of this Subordinated NoteMortgagee may, by notice in writing to Companyat its option, may declare the principal amount whole of this Subordinated Note the Indebtedness to be due and payable immediately and, upon any such declaration, the same shall become and shall be immediately due and payable. The Company waives demandpayable without further notice to Mortgagor, presentment for payment, notice with interest thereon accruing from the date of nonpayment, notice of protest, and all other notices. Notwithstanding the foregoing, because the Company will treat the Subordinated Notes as Tier 2 Capital, upon the occurrence of an Event of Default other than an Event of Default described in Section 5(a) or Section 5(b), the Noteholders may not accelerate the Stated Maturity of the Subordinated Notes and make the principal of, and any accrued and unpaid interest on, the Subordinated Notes, immediately due and payable. The Company, within forty-five (45) calendar days after the receipt of written notice from any Noteholder of the occurrence of an Event of Default with respect to this Subordinated Note, shall mail to all Noteholders, at their addresses shown on the Security Register (as defined in Section 14 below), such written notice of Event of Default, unless such Event of Default shall have been cured or waived before until paid at the giving of such notice as certified by the Company in writing. Prior to any acceleration of this Subordinated Note, a Noteholder may waive pursuant to Section 18 below any past Event of Default. In addition, a Noteholder may rescind a declaration of acceleration of this Subordinated Note before any judgment has been obtained if (i) the Company pays all matured installments of principal of and interest on this Subordinated Note (other than installments due by reason of acceleration) and interest on the overdue installments; and (ii) all other Events of Default with respect to this Subordinated Note have been cured or waivedRate.
Appears in 1 contract
Events of Default; Acceleration. Each Upon the occurrence and during the continuation of any Default, the obligation of Lender to make any additional Loan shall be suspended. The occurrence of any of the following events shall constitute (each, an “Event of Default”) shall terminate any obligation of Lender to make any additional Loan; and shall, at the option of Lender (1) make all sums of Basic Interest and principal, as well as any other Obligations and amounts owing under any Loan Documents, immediately due and payable without notice of default, presentment or demand for payment, protest or notice of nonpayment or dishonor or any other notices or demands, and (2) give Lender the right to exercise any other right or remedy provided by contract or applicable law:
(a) the entry of a decree Borrower shall fail to pay any principal or order for relief in respect of the Company by a court having jurisdiction in the premises in an involuntary case interest under this Agreement or proceeding any Note, or fail to pay any fees or other charges when due under any applicable bankruptcy, insolvency, or reorganization law, now or hereafter in effect of the United States or any political subdivision thereofLoan Document, and such decree failure continues for three (3) Business Days or order will more after the same first becomes due; or an Event of Default as defined in any other Loan Document shall have continued unstayed occurred and in effect for a period of sixty (60) consecutive calendar days;is continuing.
(b) the commencement Any representation or warranty made, or financial statement, certificate or other document provided, by the Company of a voluntary case Borrower under any applicable bankruptcy, insolvency Loan Document shall prove to have been false or reorganization law, now misleading in any material respect when made or hereafter in effect of the United States or any political subdivision thereof, or the consent by the Company to the entry of a decree or order for relief in an involuntary case or proceeding under any such law;deemed made herein.
(c) the Company (i) becomes insolvent or is unable Borrower shall fail to pay its debts generally as they mature, become due; or (ii) makes Borrower shall commence any Insolvency Proceeding with respect to itself, an assignment involuntary Insolvency Proceeding shall be filed against Borrower, or a custodian, receiver, trustee, assignee for the benefit of creditors, or other similar official, shall be appointed to take possession, custody or control of the properties of Borrower, and such involuntary Insolvency Proceeding, petition or appointment is acquiesced to by Borrower or is not dismissed within forty five (45) days; or (iii) admits in writing its inability the dissolution, winding up, or termination of the business or cessation of operations of Borrower (including any transaction or series of related transactions deemed to pay its debts as they maturebe a liquidation, dissolution or winding up of Borrower pursuant to the provisions of Borrower’s charter documents); or (iv) ceases Borrower shall take any action for the purpose of effecting, approving, or consenting to be a bank holding company or financial holding company under any of the Bank Holding Company Act of 1956, as amended;foregoing.
(d) Borrower shall be in default beyond any applicable period of grace or cure under any other agreement involving the failure borrowing of money, the purchase of property, the advance of credit or any other monetary liability of any kind to Lender or to any Person in an amount in excess of the Company to pay any installment of interest on any of the Subordinated Notes as and when the same will become due and payable, and the continuation of such failure for a period of fifteen (15) consecutive calendar days;Threshold Amount.
(e) the failure of the Company to pay all Any governmental or regulatory authority shall take any judicial or administrative action, or any part of the principal of defined benefit pension plan maintained by Borrower shall have any unfunded liabilities, any of which, in the Subordinated Notes as and when the same will become due and payable;reasonable judgment of Lender, could reasonably be expected to have a Material Adverse Effect.
(f) the liquidation Any sale, transfer or other disposition of all or a substantial or material part of the Company (for the avoidance assets of doubtBorrower, “liquidation” does not include including without limitation to any mergertrust or similar entity, consolidation, sale of equity or assets or reorganization (exclusive of a reorganization in bankruptcy) of the Company or any of its subsidiaries); orshall occur.
(g) Any judgment(s) singly or in the default aggregate in excess of the Threshold Amount shall be entered against Borrower which remain unsatisfied, unvacated or unstayed pending appeal in the case of any judgment rendered in a federal court for ten (10) or more days after entry thereof, or in the case of any judgment rendered in a state court, for twenty (20) Business Days or more.
(h) Borrower shall fail to perform or observe any covenant contained in Article 6 of this Agreement.
(i) Borrower shall fail to perform or observe any covenant contained in Article 5 or elsewhere in this Agreement or any other Loan Document (other than a covenant which is dealt with specifically elsewhere in this Article 7) and, if capable of being cured, the breach of the Company to materially perform any other such covenant or agreement on the part of the Company contained in the Subordinated Notes and the continuation of such default or breach (without such default or breach having been waived in accordance with the provisions of Section 17) for a period of 90 consecutive calendar days after there has been given to the Company by the Holders of is not less than 25.0% in principal amount of the outstanding Subordinated Notes, by registered or certified mail, in the manner set forth in Section 22, a written notice specifying such default or breach and requiring it to be remedied, and stating that such notice is a “Notice of Default” hereunder. Unless the principal of this Subordinated Note already shall have become due and payable, if an Event of Default described in Section 5(a) or Section 5(b) shall have occurred and be continuing, the holder of this Subordinated Note, by notice in writing to Company, may declare the principal amount of this Subordinated Note to be due and payable immediately and, upon any such declaration, the same shall become and shall be immediately due and payable. The Company waives demand, presentment for payment, notice of nonpayment, notice of protest, and all other notices. Notwithstanding the foregoing, because the Company will treat the Subordinated Notes as Tier 2 Capital, upon the occurrence of an Event of Default other than an Event of Default described in Section 5(a) or Section 5(b), the Noteholders may not accelerate the Stated Maturity of the Subordinated Notes and make the principal of, and any accrued and unpaid interest on, the Subordinated Notes, immediately due and payable. The Company, cured within forty-five (45) calendar 30 days after the sooner to occur of Borrower’s receipt of written notice from any Noteholder of the occurrence of an Event of Default with respect to this Subordinated Note, shall mail to all Noteholders, at their addresses shown on the Security Register (as defined in Section 14 below), such written notice of Event such breach from Lender or the date on which such breach first becomes known to any senior officer of DefaultBorrower; provided, unless however that if such Event breach is not capable of Default shall have been being cured or waived before the giving within such 30-day period and Borrower timely notifies Lender of such fact and Borrower diligently pursues such cure, then the cure period shall be extended to the date requested in Borrower’s notice as certified by but in no event more than 90 days from the Company initial breach; provided, further, that such additional 60-day opportunity to cure shall not apply in writing. Prior the case of any failure to perform or observe any acceleration of this Subordinated Note, a Noteholder may waive pursuant to Section 18 below any past Event of Default. In addition, a Noteholder may rescind a declaration of acceleration of this Subordinated Note before any judgment covenant which has been obtained if (i) the Company pays all matured installments subject of principal of a prior failure within the preceding 180 days or which is a willful and interest on this Subordinated Note (other than installments due knowing breach by reason of acceleration) and interest on the overdue installments; and (ii) all other Events of Default with respect to this Subordinated Note have been cured or waivedBorrower.
Appears in 1 contract
Sources: Loan and Security Agreement (Stable Road Acquisition Corp.)
Events of Default; Acceleration. Each Upon the occurrence and during the continuation of any Event of Default, the obligation of each Lender to make any additional Loan shall be suspended. The occurrence and continuation of any of the following events shall constitute (each, an “Event of Default”) shall at the option of Agent, at the direction of the Required Lenders (1) make all sums of Basic Interest and principal, as well as any other Obligations and amounts owing under any Loan Documents, immediately due and payable without notice of default, presentment or demand for payment, protest or notice of nonpayment or dishonor or any other notices or demands, and (2) give Agent the right to exercise any other right or remedy provided by contract or applicable law:
(a) the entry of a decree Borrower shall fail to pay any principal or order for relief in respect of the Company by a court having jurisdiction in the premises in an involuntary case interest under this Agreement or proceeding any Note, or fail to pay any fees or other charges when due under any applicable bankruptcy, insolvency, or reorganization law, now or hereafter in effect of the United States or any political subdivision thereofLoan Document, and such decree failure continues for three (3) Business Days or order will more after the same first becomes due; or an Event of Default as defined in any other Loan Document shall have continued unstayed and in effect for a period of sixty (60) consecutive calendar days;occurred.
(b) the commencement Any representation or warranty made, or financial statement, certificate or other document provided, by the Company of Borrower or a voluntary case Loan Party under any applicable bankruptcy, insolvency Loan Document shall prove to have been false or reorganization law, now misleading in any material respect when made or hereafter in effect of the United States or any political subdivision thereof, or the consent by the Company to the entry of a decree or order for relief in an involuntary case or proceeding under any such law;deemed made herein.
(c) the Company If there occurs any circumstance or circumstances that could reasonably be expected to have a Material Adverse Effect.
(i) becomes insolvent Borrower or is unable Israeli Subsidiary shall fail to pay its debts generally as they mature, become due; or (ii) makes Borrower or Israeli Subsidiary shall commence any Insolvency Proceeding with respect to itself, an assignment involuntary Insolvency Proceeding shall be filed against Borrower or Israeli Subsidiary, or a custodian, receiver, trustee, assignee for the benefit of creditors, or other similar official, shall be appointed to take possession, custody or control of the properties of Borrower or Israeli Subsidiary, and such involuntary Insolvency Proceeding, petition or appointment is acquiesced to by Borrower or Israeli Subsidiary (as applicable) or is not dismissed within fifty (50) days; or (iii) admits in writing its inability to pay its debts as they maturethe dissolution, winding up, or termination of the business or cessation of operations of Borrower or Israeli Subsidiary (iv) ceases including any transaction or series of related transactions deemed to be a bank holding company liquidation, dissolution or financial holding company under winding up of Borrower or Israeli Subsidiary pursuant to the Bank Holding Company Act provisions of 1956, as amended;
(d) the failure of the Company to pay any installment of interest on any of the Subordinated Notes as and when the same will become due and payable, and the continuation of such failure for a period of fifteen (15) consecutive calendar days;
(e) the failure of the Company to pay all Borrower’s or any part of the principal of any of the Subordinated Notes as and when the same will become due and payable;
(f) the liquidation of the Company (for the avoidance of doubt, “liquidation” does not include any merger, consolidation, sale of equity or assets or reorganization (exclusive of a reorganization in bankruptcy) of the Company or any of its subsidiariesIsraeli Subsidiary’s respective charter documents); or
(g) the default or breach of the Company to materially perform any other covenant or agreement on the part of the Company contained in the Subordinated Notes and the continuation of such default or breach (without such default or breach having been waived in accordance with the provisions of Section 17) for a period of 90 consecutive calendar days after there has been given to the Company by the Holders of not less than 25.0% in principal amount of the outstanding Subordinated Notes, by registered or certified mail, in the manner set forth in Section 22, a written notice specifying such default or breach and requiring it to be remedied, and stating that such notice is a “Notice of Default” hereunder. Unless the principal of this Subordinated Note already shall have become due and payable, if an Event of Default described in Section 5(a) or Section 5(b) shall have occurred and be continuing, the holder of this Subordinated Note, by notice in writing to Company, may declare the principal amount of this Subordinated Note to be due and payable immediately and, upon any such declaration, the same shall become and shall be immediately due and payable. The Company waives demand, presentment for payment, notice of nonpayment, notice of protest, and all other notices. Notwithstanding the foregoing, because the Company will treat the Subordinated Notes as Tier 2 Capital, upon the occurrence of an Event of Default other than an Event of Default described in Section 5(a) or Section 5(b), the Noteholders may not accelerate the Stated Maturity of the Subordinated Notes and make the principal of, and any accrued and unpaid interest on, the Subordinated Notes, immediately due and payable. The Company, within forty-five (45) calendar days after the receipt of written notice from any Noteholder of the occurrence of an Event of Default with respect to this Subordinated Note, shall mail to all Noteholders, at their addresses shown on the Security Register (as defined in Section 14 below), such written notice of Event of Default, unless such Event of Default shall have been cured or waived before the giving of such notice as certified by the Company in writing. Prior to any acceleration of this Subordinated Note, a Noteholder may waive pursuant to Section 18 below any past Event of Default. In addition, a Noteholder may rescind a declaration of acceleration of this Subordinated Note before any judgment has been obtained if (i) the Company pays all matured installments of principal of and interest on this Subordinated Note (other than installments due by reason of acceleration) and interest on the overdue installments; and (ii) all other Events of Default with respect to this Subordinated Note have been cured or waived.
Appears in 1 contract
Events of Default; Acceleration. Each Upon the occurrence and during the continuation of any Default, the obligation of Lender to make any additional Loan shall be suspended. The occurrence of any of the following events shall constitute (each, an “Event of Default”) shall terminate any obligation of Lender to make any additional Loan; and shall, at the option of Lender (1) make all sums of interest and principal, as well as any other Obligations and amounts owing under any Loan Documents immediately due and payable without notice of default, presentment or demand for payment, protest or notice of nonpayment or dishonor or any other notices or demands and (2) give Lender the right to exercise any other right or remedy provided by contract or applicable law:
(a) the entry of a decree Borrower shall fail to pay any principal or order for relief in respect of the Company by a court having jurisdiction in the premises in an involuntary case interest under this Agreement or proceeding any Note, or fail to pay any fees or other charges when due under any applicable bankruptcyLoan Document; provided that with respect to the first such failure, insolvency, or reorganization law, now or hereafter in effect of the United States or any political subdivision thereof, and such decree or order will Borrower shall have continued unstayed and in effect for a period of sixty five (605) consecutive calendar days;days from the date such payment first became due in which to cure such Default before it shall be an Event of Default hereunder.
(b) the commencement by the Company An Event of a voluntary case under Default as defined in any applicable bankruptcy, insolvency or reorganization law, now or hereafter in effect of the United States or any political subdivision thereof, or the consent by the Company to the entry of a decree or order for relief in an involuntary case or proceeding under any such law;other Loan Document shall have occurred.
(c) the Company Any representation or warranty made, or financial statement, certificate or other document provided, by Borrower under any Loan Document shall prove to have been false or misleading in any material respect when made or deemed made herein.
(i) becomes insolvent or is unable Borrower shall fail to pay its debts generally as they mature, become due; or (ii) makes Borrower shall commence any Insolvency Proceeding with respect to itself, an assignment involuntary Insolvency Proceeding shall be filed against Borrower, or a custodian, receiver, trustee, assignee for the benefit of creditors, or other similar official, shall be appointed to take possession, custody or control of the properties of Borrower, and such involuntary Insolvency Proceeding, petition or appointment is acquiesced to by Borrower or is not dismissed within forty five (iii45) admits in writing its inability days; or
(ii) the dissolution, winding up, or termination of the business or cessation of operations of Borrower (including any transaction or series of related transactions deemed to pay its debts as they maturebe a liquidation, dissolution or winding up of Borrower pursuant to the provisions of Borrower’s charter documents); or (iv) ceases Borrower shall take any corporate action for the purpose of effecting, approving, or consenting to be a bank holding company or financial holding company under the Bank Holding Company Act of 1956, as amended;
(d) the failure of the Company to pay any installment of interest on any of the Subordinated Notes as and when the same will become due and payable, and the continuation of such failure for a period of fifteen (15) consecutive calendar days;foregoing.
(e) Borrower shall be in default beyond any applicable period of grace or cure under any other agreement involving the failure borrowing of money, the purchase of property, the advance of credit or any other monetary liability of any kind to Lender or to any Person in an amount in excess of the Company to pay all or any part of the principal of any of the Subordinated Notes as and when the same will become due and payable;Threshold Amount.
(f) the liquidation of the Company (for the avoidance of doubtAny governmental or regulatory authority shall take any judicial or administrative action, “liquidation” does not include any merger, consolidation, sale of equity or assets or reorganization (exclusive of a reorganization in bankruptcy) of the Company or any defined benefit pension plan maintained by Borrower shall have any unfunded liabilities, any of its subsidiaries); orwhich, in the reasonable judgment of Lender, could reasonably be expected to have a Material Adverse Effect.
(g) Any sale, transfer or other disposition of all or substantially all of the default assets of Borrower, including without limitation to any trust or similar entity, shall occur.
(h) Any judgment(s) singly or in the aggregate in excess of the Threshold Amount shall be entered against Borrower which, if not fully covered by insurance, remain unsatisfied, unvacated or unstayed pending appeal for ten (10) or more days after entry thereof.
(i) Borrower shall fail to perform or observe any covenant contained in Sections 5.11 through 5.16 or Article 6 of this Agreement, and, with respect to the covenants contained in Section 5.15, if capable of being cured, the breach of the Company to materially perform any other such covenant or agreement on the part of the Company contained in the Subordinated Notes and the continuation of such default or breach (without such default or breach having been waived in accordance with the provisions of Section 17) for a period of 90 consecutive calendar days after there has been given to the Company by the Holders of is not less than 25.0% in principal amount of the outstanding Subordinated Notes, by registered or certified mail, in the manner set forth in Section 22, a written notice specifying such default or breach and requiring it to be remedied, and stating that such notice is a “Notice of Default” hereunder. Unless the principal of this Subordinated Note already shall have become due and payable, if an Event of Default described in Section 5(a) or Section 5(b) shall have occurred and be continuing, the holder of this Subordinated Note, by notice in writing to Company, may declare the principal amount of this Subordinated Note to be due and payable immediately and, upon any such declaration, the same shall become and shall be immediately due and payable. The Company waives demand, presentment for payment, notice of nonpayment, notice of protest, and all other notices. Notwithstanding the foregoing, because the Company will treat the Subordinated Notes as Tier 2 Capital, upon the occurrence of an Event of Default other than an Event of Default described in Section 5(a) or Section 5(b), the Noteholders may not accelerate the Stated Maturity of the Subordinated Notes and make the principal of, and any accrued and unpaid interest on, the Subordinated Notes, immediately due and payable. The Company, cured within forty-five (45) calendar 5 days after the receipt of written notice from date on which such breach occurred.
(j) Borrower shall fail to perform or observe any Noteholder of the occurrence of an Event of Default with respect to this Subordinated Note, shall mail to all Noteholders, at their addresses shown on the Security Register (as defined covenant contained in Section 14 below), such written notice of Event of Default, unless such Event of Default shall have been cured or waived before the giving of such notice as certified by the Company in writing. Prior to any acceleration of this Subordinated Note, a Noteholder may waive pursuant to Section 18 below any past Event of Default. In addition, a Noteholder may rescind a declaration of acceleration of this Subordinated Note before any judgment has been obtained if (i) the Company pays all matured installments of principal of and interest on this Subordinated Note Article 5 (other than installments due Sections 5.11 through 5.16) or elsewhere in this Agreement or any other Loan Document (other than a covenant which is dealt with specifically elsewhere in this Article 7) and, if capable of being cured, the breach of such covenant is not cured within 30 days after the sooner to occur of Borrower’s receipt of notice of such breach from Lender or the date on which such breach first becomes known to any officer of Borrower; provided, however that if such breach is not capable of being cured within such 30-day period and Borrower timely notifies Lender of such fact and Borrower diligently pursues such cure, then the cure period shall be extended to the date requested in Borrower’s notice but in no event more than 90 days from the initial breach; provided, further, that such additional 60-day opportunity to cure shall not apply in the case of any failure to perform or observe any covenant which has been the subject of a prior failure within the preceding 180 days or which is a willful and knowing breach by reason of acceleration) and interest on the overdue installments; and (ii) all other Events of Default with respect to this Subordinated Note have been cured or waivedBorrower.
Appears in 1 contract
Sources: Bridge Loan and Security Agreement (Tauriga Sciences, Inc.)
Events of Default; Acceleration. Each If any one or more of the following events shall constitute an (hereinafter defined and designated as “Event Events of Default”) shall occur:
(a) failure to make any payment as and when due under the entry of a decree or order for relief in respect terms of the Company Debentures, or payment of any other sum due under this Mortgage when due and payable and such failure continues for ten (10) days after written notice thereof to Mortgagor; or
(b) any warranty or representation made by a court having jurisdiction Mortgagor in the premises in an involuntary case or proceeding under any applicable bankruptcyDebentures, insolvencythis Mortgage, or reorganization law, now in any statement or hereafter in effect certificate furnished pursuant to any of the United States foregoing, shall be false, materially misleading or any political subdivision thereof, inaccurate and such decree or order will have continued unstayed and in effect continues for a period of thirty (30) days after written notice thereof to Mortgagor provided, however, if any such default is of a nature that cannot be remedied or cured within the thirty (30) day period, Mortgagor may have such additional time as is reasonably necessary to remedy or cure the default if Mortgagor commences to remedy or cure such default within the thirty (30) day period and thereafter continues with due diligence to remedy or cure the same; or
(c) failure in the due observance or performance of any other covenant, condition, or agreement on the part of Mortgagor to be observed or performed pursuant to the provisions of the Debentures or this Mortgage and such failure continues for a period of thirty (30) days after written notice thereof to Mortgagor; provided, however, if any such default is of a nature that cannot be remedied or cured within the thirty (30) day period, Mortgagor may have such additional time as is reasonably necessary to remedy or cure the default if Mortgagor commences to remedy or cure such default within the thirty (30) day period and thereafter continues with due diligence to remedy or cure the same; or
(d) any judgment shall be recovered against Mortgagor or any attachment or other court process shall issue, which shall become or create a lien upon the Collateral or any part thereof and such judgment, attachment or other court process shall not be discharged or effectually secured or execution thereon stayed within sixty (60) consecutive calendar days;
(b) days from the commencement by entry thereof; then and in any such case, Mortgagee may declare the Company of a voluntary case under any applicable bankruptcy, insolvency or reorganization law, now or hereafter in effect then outstanding principal of the United States or any political subdivision thereof, or the consent by the Company to the entry of a decree or order for relief in an involuntary case or proceeding under any such law;
(c) the Company (i) becomes insolvent or is unable to pay its debts as they mature, (ii) makes an assignment for the benefit of creditors, (iii) admits in writing its inability to pay its debts as they mature, or (iv) ceases Debentures to be a bank holding company or financial holding company under the Bank Holding Company Act of 1956, as amended;
(d) the failure of the Company to pay any installment of interest on any of the Subordinated Notes as and when the same will become forthwith due and payable, and upon such declaration, the continuation principal, together with interest accrued thereon, shall become due and payable forthwith at the place of such failure for a period of fifteen (15) consecutive calendar days;
(e) payment specified in the failure of Debentures, anything in this Mortgage or in the Company Debentures to pay the contrary notwithstanding. In addition, Mortgagee may proceed to protect and enforce its rights under the Debentures and the Mortgage by foreclosure proceedings as against all or any part of the principal of any of the Subordinated Notes as and when the same will become due and payable;
(f) the liquidation of the Company (for the avoidance of doubt, “liquidation” does not include any merger, consolidation, sale of equity or assets or reorganization (exclusive of a reorganization in bankruptcy) of the Company or any of its subsidiaries); or
(g) the default or breach of the Company to materially perform any other covenant or agreement on the part of the Company contained in the Subordinated Notes and the continuation of such default or breach (without such default or breach having been waived in accordance with the provisions of Section 17) for a period of 90 consecutive calendar days after there has been given to the Company by the Holders of not less than 25.0% in principal amount of the outstanding Subordinated Notes, by registered or certified mail, in the manner set forth in Section 22, a written notice specifying such default or breach and requiring it to be remedied, and stating that such notice is a “Notice of Default” hereunder. Unless the principal of this Subordinated Note already shall have become due and payable, if an Event of Default described in Section 5(a) or Section 5(b) shall have occurred and be continuing, the holder of this Subordinated Note, by notice in writing to Company, may declare the principal amount of this Subordinated Note to be due and payable immediately and, upon any such declaration, the same shall become and shall be immediately due and payable. The Company waives demand, presentment for payment, notice of nonpayment, notice of protest, and all other notices. Notwithstanding the foregoing, because the Company will treat the Subordinated Notes as Tier 2 Capital, upon the occurrence of an Event of Default other than an Event of Default described in Section 5(a) or Section 5(b), the Noteholders may not accelerate the Stated Maturity of the Subordinated Notes and make the principal of, and any accrued and unpaid interest on, the Subordinated Notes, immediately due and payable. The Company, within forty-five (45) calendar days after the receipt of written notice from any Noteholder of the occurrence of an Event of Default with respect to this Subordinated Note, shall mail to all Noteholders, at their addresses shown on the Security Register (as defined in Section 14 below), such written notice of Event of Default, unless such Event of Default shall have been cured or waived before the giving of such notice as certified by the Company in writing. Prior to any acceleration of this Subordinated Note, a Noteholder may waive pursuant to Section 18 below any past Event of Default. In addition, a Noteholder may rescind a declaration of acceleration of this Subordinated Note before any judgment has been obtained if (i) the Company pays all matured installments of principal of and interest on this Subordinated Note (other than installments due by reason of acceleration) and interest on the overdue installments; and (ii) all other Events of Default with respect to this Subordinated Note have been cured or waivedCollateral.
Appears in 1 contract
Sources: Mortgage, Security Agreement, Fixture Filing and Financing Statement (Santa Fe Gold CORP)
Events of Default; Acceleration. Each A very important element of this Agreement is that Lessee make all its payments promptly as agreed upon. Also essential is that the Aircraft continue to be in good condition and adequate security for the indebtedness. The following are events shall constitute an “Event of Default”default under this Agreement which will allow Lessor to take such action under this Section and under Section 9 as it deems necessary:
(a) the entry any of a decree or order for relief in respect of the Company by a court having jurisdiction in the premises in an involuntary case or proceeding Lessee's obligations to Lessor under any applicable bankruptcy, insolvency, agreement with Lessor is not paid on or reorganization law, now or hereafter in effect of before the United States or any political subdivision thereof, tenth day following the date when the same becomes due and such decree or order will have continued unstayed and in effect for a period of sixty (60) consecutive calendar dayspayable;
(b) the commencement by the Company of a voluntary case under Lessee breaches any applicable bankruptcy, insolvency warranty or reorganization law, now or hereafter in effect of the United States or any political subdivision thereofprovision hereof, or the consent of any note or of any instrument or agreement delivered by the Company Lessee to the entry Lessor and such breach continues for a period in excess of a decree or order for relief in an involuntary case or proceeding under any such lawthirty (30) days after Lessor shall have given Lessee written notice of default with respect thereto;
(c) Lessee breaches any policy of insurance covering the Company Aircraft; or if any such policy be canceled;
(id) Lessee becomes insolvent insolent or ceases to do business as a going concern;
(e) it is unable determined that Lessee has given Lessor materially mis- leading information regarding its financial condition and such information shall not be made good within thirty (30) days after written notice thereof to pay its debts as they matureLessee;
(f) any of the Aircraft is lost, secreted, misused, destroyed, encumbered, seized, confiscated or disposed of in violation of the terms hereof;
(iig) makes an assignment for the benefit of creditors, (iii) a petition in bankruptcy or reorganization be filed by or against Lessee or Lessee admits in writing its inability to pay its debts as they mature, or (iv) ceases to be a bank holding company or financial holding company under the Bank Holding Company Act of 1956, as amended;
(dh) property of Lessee be attached unless the failure attachment doesn't result in the threatened or actual foreclosure of the Company to pay any installment of interest on any of property and, further, that the Subordinated Notes as and when the same will become due and payable, and the continuation attachment is either bonded or released within thirty (30) days of such failure attachment or a receiver be appointed for a period of fifteen (15) consecutive calendar daysLessee;
(ei) whenever Lessor in good faith believes the failure of Aircraft is insecure; If Lessee shall be in default hereunder, the Company indebtedness herein described and all other debts then owing by Lessee to pay all Lessor under this or any part of the principal of any of the Subordinated Notes as and when the same will become due and payable;
(f) the liquidation of the Company (for the avoidance of doubt, “liquidation” does not include any merger, consolidation, sale of equity other present or assets or reorganization (exclusive of a reorganization in bankruptcy) of the Company or any of its subsidiaries); or
(g) the default or breach of the Company to materially perform any other covenant or future agreement on the part of the Company contained in the Subordinated Notes and the continuation of such default or breach (without such default or breach having been waived in accordance with the provisions of Section 17) for a period of 90 consecutive calendar days after there has been given to the Company by the Holders of not less than 25.0% in principal amount of the outstanding Subordinated Notes, by registered or certified mail, in the manner set forth in Section 22, a written notice specifying such default or breach and requiring it to be remedied, and stating that such notice is a “Notice of Default” hereunder. Unless the principal of this Subordinated Note already shall have become due and payableshall, if an Event of Default described in Section 5(a) or Section 5(b) Lessor shall have occurred and be continuingso elect, the holder of this Subordinated Note, by notice in writing to Company, may declare the principal amount of this Subordinated Note to be due and payable immediately and, upon any such declaration, the same shall become and shall be immediately due and payable. The Company waives demandThis acceleration of all indebtedness, presentment for payment, notice of nonpayment, notice of protest, and all other notices. Notwithstanding the foregoing, because the Company will treat the Subordinated Notes as Tier 2 Capital, upon the occurrence of an Event of Default other than an Event of Default described in Section 5(a) or Section 5(b), the Noteholders may not accelerate the Stated Maturity of the Subordinated Notes and make the principal of, and any accrued and unpaid interest on, the Subordinated Notes, immediately due and payable. The Company, within forty-five (45) calendar days after the receipt of written notice from any Noteholder of the occurrence of an Event of Default with respect to this Subordinated Noteif elected by Lessor, shall mail be subject to all Noteholdersapplicable laws, at their addresses shown on the Security Register (including laws as defined in Section 14 below), such written notice to rebates and refunds of Event of Default, unless such Event of Default shall have been cured or waived before the giving of such notice as certified by the Company in writing. Prior to any acceleration of this Subordinated Note, a Noteholder may waive pursuant to Section 18 below any past Event of Default. In addition, a Noteholder may rescind a declaration of acceleration of this Subordinated Note before any judgment has been obtained if (i) the Company pays all matured installments of principal of and interest on this Subordinated Note (other than installments due by reason of acceleration) and interest on the overdue installments; and (ii) all other Events of Default with respect to this Subordinated Note have been cured or waivedunearned charges.
Appears in 1 contract
Sources: Aircraft Lease Agreement (Sequent Computer Systems Inc /Or/)
Events of Default; Acceleration. Each The occurrence of one or more of the following events without a permitted cure within the time period provided herein (each an "Event of Default") shall constitute an “Event of Default”:
(a) The Company shall default in the entry payment of principal of or interest on the Note or any other fee due hereunder when the same becomes due and payable, whether on demand, at maturity or at a decree date fixed for the payment of any installment or order for relief prepayment thereof or otherwise and, with respect to payment of interest, such default is not cured within five (5) days after notice of such default is given to the Company. Notwithstanding the foregoing, the Company shall twice each year be allowed ten (10) days to cure any such default in respect lieu of the Company by a court having jurisdiction in five (5) day cure period after notice of such default is given to the premises in an involuntary case or proceeding under any applicable bankruptcy, insolvency, or reorganization law, now or hereafter in effect of the United States or any political subdivision thereof, and such decree or order will have continued unstayed and in effect for a period of sixty (60) consecutive calendar days;Company.
(b) The Company shall default in the commencement by performance of or compliance with any covenant or agreement contained in the Investment Documents, and such default shall continue for more than fifteen (15) days after notice of such default is given to the Company reduced, however, for any period of a voluntary case under any applicable bankruptcy, insolvency or reorganization law, now or hereafter in effect of the United States or any political subdivision thereof, or the consent by the Company to the entry of a decree or order for relief in an involuntary case or proceeding grace allowed under any such law;Investment Document or, in the case of a default under Sections 0, 0 and 0 thirty (30) days after notice of such default is given to the Company. Notwithstanding the foregoing, the Company shall have the right to cure a default under any or all of Section 7.2, 7.3, and 7.4 a total of two (2) times while the Note is unpaid (i) by causing the Principal Stockholders to invest in the Common Stock of the Company at the then market value of the Common Stock, or (ii) by invoking a grace period until the status of the Company under such Section is determined at the end of the subsequent quarter, and if there is no default under such Section at the end of the subsequent quarter, the default shall be deemed to have not occurred. Any ratio determined after a period of grace shall be determined based on the previous six-month or twelve-month period, as applicable.
(c) A default occurs under any document evidencing the Senior Indebtedness;
(d) Any material representation or warranty made by the Company herein or pursuant hereto shall prove to have been false or incorrect in any material respect when made;
(ie) becomes insolvent The Company shall discontinue its business or is unable to pay its debts as they mature, (ii) makes shall make an assignment for the benefit of creditors, (iii) admits in writing its inability or shall fail generally to pay its debts as they maturesuch debts become due, or shall apply for or consent to the appointment of or taking possession by a trustee, receiver or liquidator (iv) ceases to be a bank holding company or financial holding company under the Bank Holding Company Act of 1956, as amended;
(d) the failure of the Company to pay any installment of interest on any of the Subordinated Notes as and when the same will become due and payable, and the continuation of such failure for a period of fifteen (15) consecutive calendar days;
(e) the failure of the Company to pay all or any part of the principal of any of the Subordinated Notes as and when the same will become due and payable;
(f) the liquidation of the Company (for the avoidance of doubt, “liquidation” does not include any merger, consolidation, sale of equity or assets or reorganization (exclusive of a reorganization in bankruptcyother similar official) of the Company or any substantial part of its subsidiaries); orthe property of the Company, or shall commence a case or have an order for relief entered against it under the federal bankruptcy laws, as now or hereafter constituted, or any other applicable federal or state bankruptcy, insolvency or other similar law, or if the Company shall take any action to dissolve or liquidate the Company;
(f) If, within sixty (60) days after the commencement against the Company of a case under the federal bankruptcy laws, as now or hereafter constituted, or any other applicable federal or state bankruptcy, insolvency or other similar law, such case shall have been consented to or shall not have been dismissed or all orders or proceedings thereunder affecting the operations or the business of the Company stayed, or if the stay of any such order or proceeding shall thereafter be set aside, or if within sixty (60) days after the entry of a decree appointing a trustee, receiver or liquidator (or other similar official) of the Company or any substantial part of the property of the Company, such appointment shall not have been vacated;
(g) An uninsured final judgment which, with other outstanding uninsured final judgments against the default Company, exceeds the greater of (i) five percent (5%) of the Company's annual revenue for the preceding twelve month period or breach (ii) $250,000 shall be rendered against the Company unless such judgment has been appealed and an execution thereof stayed pending appeal or unless, within sixty (60) days after the expiration of any such stay, such judgment has been discharged, or if any such judgment shall not be discharged forthwith upon the commencement of proceedings to foreclose any lien, attachment or charge which may attach as security therefor and before any of the property or assets of the Company to materially perform any other covenant or agreement on shall have been seized in satisfaction thereof;
(h) A change in ownership of more than sixty percent (60%) of the part outstanding voting stock of the Company contained on a fully diluted basis in the Subordinated Notes and the continuation a single transaction or a series of such default or breach unrelated transactions, excluding public transactions within a twelve (without such default or breach having been waived in accordance with the provisions of Section 1712) for a period of 90 consecutive calendar days after there has been given month period;
(i) Schaden shall cease to be employed by the Company by the Holders of not less than 25.0% in principal amount of the outstanding Subordinated Notes, by registered or certified mail, in the manner set forth in Section 22, a written notice specifying such default or breach and requiring it to be remedied, and stating that such notice is a “Notice of Default” hereunder. Unless the principal of this Subordinated Note already shall have become due and payable, if an Event of Default described in Section 5(a) or Section 5(b) shall have occurred and be continuing, the holder of this Subordinated Note, by notice in writing to Company, may declare the principal amount of this Subordinated Note to be due and payable immediately and, upon any such declaration, the same shall become and shall be immediately due and payable. The Company waives demand, presentment for payment, notice of nonpayment, notice of protest, and all other noticesas Chief Executive Officer. Notwithstanding the foregoing, because the Company will treat the Subordinated Notes as Tier 2 Capital, upon the occurrence of an Event of Default other shall not occur upon Schaden's death so long as the Company maintains a Key Man Life Insurance Policy on Schaden payable to the Company in the amount of $1 million.
(j) After 90 days of the date hereof, the Company fails to maintain insurance payable to the Company on Schaden in the amount of $1,000,000;
(k) A material adverse change shall occur with respect to the assets, liabilities, operations or prospects of the Company;
(l) The Company shall use the proceeds of the Note for a purpose not permitted pursuant to Exhibit 0.
(m) Litigation is commenced against the Company which, materially restricts the ability of the Company to carry on its business;
(n) a merger or consolidation involving the Company (in a single transaction or a series of related or unrelated transactions) excluding one or more mergers or consolidations in which the Company or a wholly owned subsidiary of the Company is the survivor and following such merger or consolidation, the shareholders of the Company immediately prior to such event shall own a majority of the stock of the surviving corporation in which no more than 200 retail food outlets are acquired in the aggregate, for the purposes of operation of or conversion to the Quizno's store concept, as so long as such merger or consolidation does not violate any of the terms of the Transaction Documents;
(o) a sale of all or a material part of the Company's assets unless the Note is retired upon such sale;
(p) the completion of a Qualified Public Offering unless the Note is retired upon such Qualified Public Offering;
(q) an Event of Default described in Section 5(a) or Section 5(b), the Noteholders may not accelerate the Stated Maturity of the Subordinated Notes and make the principal of, and any accrued and unpaid interest on, the Subordinated Notes, immediately due and payable. The Company, within forty-five (45) calendar days after the receipt of written notice from any Noteholder of the occurrence of an Event of Default with respect to this Subordinated Note, shall mail to all Noteholders, at their addresses shown on occurs under the Security Register (as defined in Section 14 below), such written notice of Event of Default, unless such Event of Default shall have been cured Agreement or waived before the giving of such notice as certified by the Company in writing. Prior to any acceleration of this Subordinated Note, a Noteholder may waive pursuant to Section 18 below any past Event of Default. In addition, a Noteholder may rescind a declaration of acceleration of this Subordinated Note before any judgment has been obtained if (i) the Company pays all matured installments of principal of and interest on this Subordinated Note (other than installments due by reason of acceleration) and interest on the overdue installments; and (ii) all other Events of Default with respect to this Subordinated Note have been cured or waivedPledge Agreement.
Appears in 1 contract
Sources: Investment Agreement (Quiznos Corp)
Events of Default; Acceleration. Each Upon the occurrence and during the continuation of any Default, the obligation of Lender to make any additional Loan shall be suspended. The occurrence of any of the following events shall constitute (each, an “Event of Default”) that has not been cured within any applicable cure period or waived by Lender shall terminate any obligation of Lender to make any additional Loan; and shall, at the option of Lender (1) make all sums of Basic Interest and principal, as well as any other Obligations and amounts owing under any Loan Documents, immediately due and payable without notice of default, presentment or demand for payment, protest or notice of nonpayment or dishonor or any other notices or demands, and (2) give Lender the right to exercise any other right or remedy provided by contract or applicable law:
(a) the entry of a decree Borrower shall fail to pay any principal or order for relief in respect of the Company by a court having jurisdiction in the premises in an involuntary case interest under this Agreement or proceeding any Note, or fail to pay any fees or other charges when due under any applicable bankruptcy, insolvency, or reorganization law, now or hereafter in effect of the United States or any political subdivision thereofLoan Document, and such decree failure continues for three (3) Business Days or order will more after the same first becomes due; or an Event of Default as defined in any other Loan Document shall have continued unstayed and in effect for a period of sixty (60) consecutive calendar days;occurred.
(b) the commencement Any representation or warranty made, or financial statement, certificate or other document provided, by the Company of a voluntary case Borrower under any applicable bankruptcy, insolvency Loan Document shall prove to have been false or reorganization law, now misleading in any material respect when made or hereafter in effect of the United States or any political subdivision thereof, or the consent by the Company to the entry of a decree or order for relief in an involuntary case or proceeding under any such law;deemed made herein.
(c) the Company (i) becomes insolvent or is unable Borrower shall fail to pay its debts generally as they mature, become due; or (ii) makes Borrower shall commence any Insolvency Proceeding with respect to itself, an assignment involuntary Insolvency Proceeding shall be filed against Borrower, or a custodian, receiver, trustee, assignee for the benefit of creditors, or other similar official, shall be appointed to take possession, custody or control of the properties of Borrower, and such involuntary Insolvency Proceeding, petition or appointment is acquiesced to by Borrower or is not dismissed within forty five (45) days; or (iii) admits in writing its inability the dissolution, winding up, or termination of the business or cessation of operations of Borrower (including any transaction or series of related transactions deemed to pay its debts as they maturebe a liquidation, dissolution or winding up of Borrower pursuant to the provisions of Borrower’s charter documents); or (iv) ceases Borrower shall take any action for the purpose of effecting, approving, or consenting to be a bank holding company or financial holding company under any of the Bank Holding Company Act of 1956, as amended;foregoing.
(d) Borrower shall be in default beyond any applicable period of grace or cure under any other agreement involving Indebtedness (other than the failure Loans and other Indebtedness evidenced by the Loan Documents) owed to Lender or to any Person in an amount in excess of the Company to pay any installment of interest on any of the Subordinated Notes as and when the same will become due and payable, and the continuation of such failure for a period of fifteen (15) consecutive calendar days;Threshold Amount.
(e) the failure of the Company to pay all Any governmental or regulatory authority shall take any judicial or administrative action against Borrower or any part of the principal of defined benefit pension plan maintained by Borrower shall have any of the Subordinated Notes as and when the same will become due and payable;unfunded liabilities, in each case, which could reasonably be expected to have a Material Adverse Effect.
(f) the liquidation Except as permitted by Section 6.5, any sale, transfer or other disposition of all or a substantial or material part of the Company (for the avoidance assets of doubtBorrower, “liquidation” does not include including without limitation to any mergertrust or similar entity, consolidation, sale of equity or assets or reorganization (exclusive of a reorganization in bankruptcy) of the Company or any of its subsidiaries); orshall occur.
(g) Any judgment(s) singly or in the default aggregate in excess of the Threshold Amount shall be entered against Borrower which remain unsatisfied, unvacated or unstayed pending appeal for thirty (30) or more days after entry thereof.
(h) Borrower shall fail to perform or observe any covenant contained in Article 6 of this Agreement.
(i) Borrower shall fail to perform or observe any covenant contained in Article 5 or elsewhere in this Agreement or any other Loan Document (other than a covenant which is dealt with specifically elsewhere in this Article 7) and, if capable of being cured, the breach of the Company to materially perform any other such covenant or agreement on the part of the Company contained in the Subordinated Notes and the continuation of such default or breach (without such default or breach having been waived in accordance with the provisions of Section 17) for a period of 90 consecutive calendar days after there has been given to the Company by the Holders of is not less than 25.0% in principal amount of the outstanding Subordinated Notes, by registered or certified mail, in the manner set forth in Section 22, a written notice specifying such default or breach and requiring it to be remedied, and stating that such notice is a “Notice of Default” hereunder. Unless the principal of this Subordinated Note already shall have become due and payable, if an Event of Default described in Section 5(a) or Section 5(b) shall have occurred and be continuing, the holder of this Subordinated Note, by notice in writing to Company, may declare the principal amount of this Subordinated Note to be due and payable immediately and, upon any such declaration, the same shall become and shall be immediately due and payable. The Company waives demand, presentment for payment, notice of nonpayment, notice of protest, and all other notices. Notwithstanding the foregoing, because the Company will treat the Subordinated Notes as Tier 2 Capital, upon the occurrence of an Event of Default other than an Event of Default described in Section 5(a) or Section 5(b), the Noteholders may not accelerate the Stated Maturity of the Subordinated Notes and make the principal of, and any accrued and unpaid interest on, the Subordinated Notes, immediately due and payable. The Company, cured within forty-five (45) calendar 30 days after the sooner to occur of Borrower’s receipt of written notice from any Noteholder of the occurrence of an Event of Default with respect to this Subordinated Note, shall mail to all Noteholders, at their addresses shown on the Security Register (as defined in Section 14 below), such written notice of Event such breach from Lender or the date on which such breach first becomes known to any officer of DefaultBorrower; provided, unless however that if such Event breach is not capable of Default shall have been being cured or waived before the giving within such 30-day period and Borrower timely notifies Lender of such fact and Borrower diligently pursues such cure, then the cure period shall be extended to the date requested in Borrower’s notice as certified by but in no event more than 90 days from the Company initial breach; provided, further, that such additional 60-day opportunity to cure shall not apply in writing. Prior the case of any failure to perform or observe any acceleration of this Subordinated Note, a Noteholder may waive pursuant to Section 18 below any past Event of Default. In addition, a Noteholder may rescind a declaration of acceleration of this Subordinated Note before any judgment covenant which has been obtained if (i) the Company pays all matured installments subject of principal of a prior failure within the preceding 180 days or which is a willful and interest on this Subordinated Note (other than installments due knowing breach by reason of acceleration) and interest on the overdue installments; and (ii) all other Events of Default with respect to this Subordinated Note have been cured or waivedBorrower.
Appears in 1 contract
Events of Default; Acceleration. Each Upon the occurrence and during the continuation of any Event of Default, the obligation of each Lender to make any additional Loan shall be suspended. The occurrence and continuation of any of the following events shall constitute (each, an “Event of Default”) shall at the option of Agent, at the direction of Lenders (1) make all sums of Basic Interest and principal, as well as any other Obligations and amounts owing under any Loan Documents, immediately due and payable without notice of default, presentment or demand for payment, protest or notice of nonpayment or dishonor or any other notices or demands, and (2) give Agent the right to exercise any other right or remedy provided by contract or applicable law:
(a) the entry of a decree Borrower shall fail to pay any principal or order for relief in respect of the Company by a court having jurisdiction in the premises in an involuntary case interest under this Agreement or proceeding any Note, or fail to pay any fees or other charges when due under any applicable bankruptcy, insolvency, or reorganization law, now or hereafter in effect of the United States or any political subdivision thereofLoan Document, and such decree failure continues for three (3) Business Days or order will more after the same first becomes due; or an Event of Default as defined in any other Loan Document shall have continued unstayed and in effect for a period of sixty (60) consecutive calendar days;occurred.
(b) the commencement Any representation or warranty made, or financial statement, certificate or other document provided, by the Company of a voluntary case Borrower under any applicable bankruptcy, insolvency Loan Document shall prove to have been false or reorganization law, now misleading in any material respect when made or hereafter in effect of the United States or any political subdivision thereof, or the consent by the Company to the entry of a decree or order for relief in an involuntary case or proceeding under any such law;deemed made herein.
(c) the Company [reserved].
(i) becomes insolvent or is unable Borrower shall fail to pay its debts generally as they mature, become due; or (ii) makes Borrower shall commence any Insolvency Proceeding with respect to itself, an assignment involuntary Insolvency Proceeding shall be filed against Borrower, or a custodian, receiver, trustee, assignee for the benefit of creditors, or other similar official, shall be appointed to take possession, custody or control of the properties of Borrower, and such involuntary Insolvency Proceeding, petition or appointment is acquiesced to by Borrower or is not dismissed within forty five (45) days; or (iii) admits in writing its inability the dissolution, winding up, or termination of the business or cessation of operations of Borrower (including any transaction or series of related transactions deemed to pay its debts as they maturebe a liquidation, dissolution or winding up of Borrower pursuant to the provisions of Borrower’s charter documents); or (iv) ceases Borrower shall take any corporate action for the purpose of effecting, approving, or consenting to be a bank holding company or financial holding company under the Bank Holding Company Act of 1956, as amended;
(d) the failure of the Company to pay any installment of interest on any of the Subordinated Notes as and when the same will become due and payable, and the continuation of such failure for a period of fifteen (15) consecutive calendar days;foregoing.
(e) Borrower shall be in default beyond any applicable period of grace or cure under any other agreement involving the failure borrowing of money, the purchase of property, the advance of credit or any other monetary liability of any kind to any Lender or to any Person in an amount in excess of the Company to pay all or any part of the principal of any of the Subordinated Notes as and when the same will become due and payable;Threshold Amount.
(f) the liquidation of the Company (for the avoidance of doubtAny governmental or regulatory authority shall take any judicial or administrative action, “liquidation” does not include any merger, consolidation, sale of equity or assets or reorganization (exclusive of a reorganization in bankruptcy) of the Company or any defined benefit pension plan maintained by Borrower shall have any unfunded liabilities, any of its subsidiaries); orwhich, in the reasonable judgment of Agent and each Lender, could reasonably be expected to have a Material Adverse Effect.
(g) the default Any sale, transfer or breach other disposition of the Company to materially perform any other covenant all or agreement on the a substantial or material part of the Company assets of Borrower, including without limitation to any trust or similar entity, other than to the extent permitted herein, shall occur.
(h) Any judgment(s) singly or in the aggregate in excess of the Threshold Amount (not covered by independent third-party insurance as to which liability has been accepted by such insurance carrier) shall be entered against Borrower which remain unsatisfied, unvacated or unstayed pending appeal for ten (10) or more Business Days after entry thereof.
(i) Borrower shall fail in any material respect to perform or observe any covenant contained in Article 6 of this Agreement.
(j) Borrower shall fail to perform or observe any covenant contained in Article 5 or elsewhere in this Agreement or any other Loan Document (other than a covenant which is dealt with specifically elsewhere in this Article 7) and, if capable of being cured, the Subordinated Notes and the continuation breach of such default or breach covenant is not cured within ten (without such default or breach having been waived in accordance with the provisions of Section 1710) for a period of 90 consecutive calendar days after there has been given to the Company by the Holders of not less than 25.0% in principal amount of the outstanding Subordinated Notes, by registered or certified mail, in the manner set forth in Section 22, a written notice specifying such default or breach and requiring it to be remedied, and stating that such notice is a “Notice of Default” hereunder. Unless the principal of this Subordinated Note already shall have become due and payable, if an Event of Default described in Section 5(a) or Section 5(b) shall have occurred and be continuing, the holder of this Subordinated Note, by notice in writing to Company, may declare the principal amount of this Subordinated Note to be due and payable immediately and, upon any such declaration, the same shall become and shall be immediately due and payable. The Company waives demand, presentment for payment, notice of nonpayment, notice of protest, and all other notices. Notwithstanding the foregoing, because the Company will treat the Subordinated Notes as Tier 2 Capital, upon the occurrence of an Event of Default other than an Event of Default described in Section 5(a) or Section 5(b), the Noteholders may not accelerate the Stated Maturity of the Subordinated Notes and make the principal of, and any accrued and unpaid interest on, the Subordinated Notes, immediately due and payable. The Company, within forty-five (45) calendar days after the sooner to occur of Borrower’s receipt of written notice from any Noteholder of the occurrence of an Event of Default with respect to this Subordinated Note, shall mail to all Noteholders, at their addresses shown on the Security Register (as defined in Section 14 below), such written notice of Event such breach from Agent or the date on which such breach first becomes known to any officer of DefaultBorrower (the “Notice Date”); provided, unless however that if such Event breach is not capable of Default shall have been being cured or waived before the giving within such 10-day period and Borrower timely notifies Agent and each Lender of such fact and Borrower diligently pursues such cure, then the cure period shall be extended to the date requested in Borrower’s notice as certified by but in no event more than thirty (30) days from the Company in writing. Prior to any acceleration of this Subordinated Note, a Noteholder may waive pursuant to Section 18 below any past Event of Default. In addition, a Noteholder may rescind a declaration of acceleration of this Subordinated Note before any judgment has been obtained if (i) the Company pays all matured installments of principal of and interest on this Subordinated Note (other than installments due by reason of acceleration) and interest on the overdue installments; and (ii) all other Events of Default with respect to this Subordinated Note have been cured or waivedNotice Date.
Appears in 1 contract
Events of Default; Acceleration. Each If any of the following follow- ing events shall constitute (each an “"Event of Default”") shall occur and be continuing:
(a) the entry of if a decree or order for relief in respect of the Company by a court having jurisdiction in the premises in an involuntary case or proceeding under any applicable bankruptcy, insolvency, or reorganization law, now or hereafter in effect of the United States or any political subdivision thereof, and such decree or order will have continued unstayed and in effect for a period of sixty (60) consecutive calendar days;
(b) the commencement by the Company of a voluntary case under any applicable bankruptcy, insolvency or reorganization law, now or hereafter in effect of the United States or any political subdivision thereof, or the consent by the Company to the entry of a decree or order for relief in an involuntary case or proceeding under any such law;
(c) the Company (i) becomes insolvent or is unable to pay its debts as they mature, (ii) makes an assignment for the benefit of creditors, (iii) admits in writing its inability to pay its debts as they mature, or (iv) ceases to be a bank holding company or financial holding company under the Bank Holding Company Act of 1956, as amended;
(d) the failure of the Company Borrower shall fail to pay any installment principal of or interest on any of the Subordinated Notes as and Loan when the same will become due and payableis due, and the continuation of such failure for a period of fifteen (15) consecutive calendar days;
(e) the failure of the Company or fail to pay all any other sums due hereunder or under any part of the principal of any of the Subordinated Notes as and when other Loan Document, within 10 days after the same will become due and payable;
(f) the liquidation of the Company (for the avoidance of doubt, “liquidation” does not include any merger, consolidation, sale of equity or assets or reorganization (exclusive of a reorganization in bankruptcy) of the Company or any of its subsidiaries); or
(g) the default or breach of the Company to materially perform any other covenant or agreement on the part of the Company contained in the Subordinated Notes and the continuation of such default or breach (without such default or breach having been waived in accordance with the provisions of Section 17) for a period of 90 consecutive calendar days after there has been given to the Company by the Holders of not less than 25.0% in principal amount of the outstanding Subordinated Notes, by registered or certified mail, in the manner set forth in Section 22, a written notice specifying such default or breach and requiring it to be remedied, and stating that such notice is a “Notice of Default” hereunder. Unless the principal of this Subordinated Note already shall have become due and payable, whether on demand, at the stated date of maturity or any accelerated date of maturity or at any other date fixed for payment;
(b) if a Borrower shall fail to comply with any of its other covenants contained herein or in any other Loan Document or outstanding letters of credit (or applications or reimbursement agreements related thereto) and not remedy such failure within 30 days after notice thereof from the Lender;
(c) if any representation or warranty made by a Borrower in this Agreement or in any other Loan Document or information contained in any other document or instrument delivered pursuant to or in connection with this Agreement shall prove to have been false in any material respect upon the date when, or when deemed, made;
(d) if a Borrower or a Subsidiary thereof shall be involved in financial difficulties as evidenced:
(i) by its commencement of a voluntary case under Title 11 of the United States Code as from time to time in effect, or by its authorizing, by appropriate proceedings of its board of directors or other governing body, the commencement of such a voluntary case;
(ii) by the entry of an Event order for relief against it in any involuntary case commenced under said Title 11 which remains undischarged or unstayed for more than thirty (30) days;
(iii) by its seeking relief as a debtor under any applicable law, other than said Title 11, of Default described any juris- diction relating to the liquidation or reorganization of debtors or to the modification or alteration of the rights of creditors, or by its consenting to or acquiescing in Section 5(asuch relief;
(iv) by entry of an order by a court of competent jurisdiction (A) finding it to be bankrupt or Section 5(binsolvent or (B) ordering or approving its liquidation, reorganization or any modification or alteration of the rights of its creditors which remains undischarged or unstayed for more than thirty (30) days;
(v) by the entry of an order by a court of competent jurisdiction levying or executing upon, assuming custody of, or appointing a receiver or other custodian for, all or a substantial part of its property;
(vi) by its making an assignment for the benefit of, or entering into a composition with, its creditors, or appointing or consenting to the appointment of a receiver or other custodian for all or a substantial part of its property;
(e) if there shall remain in force, undischarged, unsatisfied, unstayed and unbonded, for more than thirty (30) days, any final judgment against a Borrower or a Subsidiary from which no further appeal may be taken and which, with any other outstanding final judgments, undischarged, unsatisfied, unstayed and unbonded, against one or more such Person(s) exceeds $100,000 in aggregate amount;
(f) if a Borrower is dissolved;
(g) If AAI or any Subsidiary shall default (after giving effect to any applicable grace period) in the due and punctual payment of the principal of or interest on any Indebtedness exceeding in the aggregate $100,000 (other than the Obligations), or if any default shall have occurred and be continuingcontinuing after any applicable grace period under any mortgage, note or other agreement evidencing, securing or providing for the creation of such Indebtedness which results in the acceleration of such Indebtedness or which permits, or with the giving of notice would permit, any holder or holders of any such Indebtedness to accelerate the stated maturity thereof;
(h) Loss, theft, damage or destruction of any material portion of the property of a Borrower for which there is no insurance coverage;
(i) If there shall be an attachment of any deposits or other property of AAI and/or any Subsidiary in the possession of Lender or an attachment of any other property of AAI and/or any Subsidiary which shall not be discharged within thirty (30) days of the date of such attachment;
(j) If a Borrower is enjoined, restrained or in any way prevented by court order from conducting all or any material part of its business affairs; or
(k) If there shall be a default or event of default in respect of the Bond Reimbursement Agreement or, as defined therein, any Related Document; THEN, the holder of this Subordinated Note, Lender may by notice in writing to Companythe Borrowers terminate its commitments under this Agreement and upon such termination shall have no further obligation to make Loans to the Borrowers, and may declare all amounts owing with respect to this Agreement and the principal amount of this Subordinated Note Notes to be due and payable immediately and, upon any such declaration, the same shall become and shall be immediately due and payable. The Company waives demand, presentment for payment, notice of nonpayment, notice of protestbe, and all other notices. Notwithstanding the foregoing, because the Company will treat the Subordinated Notes as Tier 2 Capital, upon the occurrence of an Event of Default other than an Event of Default described in Section 5(a) or Section 5(b), the Noteholders may not accelerate the Stated Maturity of the Subordinated Notes they shall thereupon forthwith mature and make the principal of, and any accrued and unpaid interest on, the Subordinated Notesbecome, immediately due and payablepayable without presentment, demand, protest or other notice of any kind, all of which are hereby expressly waived by the Borrowers. The Company, within forty-five (45) calendar days after No remedy herein conferred upon the receipt Lender or the holder of written notice from any Noteholder of the occurrence Notes is intended to be exclusive of an Event any other remedy and each and every remedy shall be cumulative and shall be in addition to every other remedy given hereunder, in the other Loan Documents or now or hereafter existing at law or in equity or by statute or any other provision of Default with respect to this Subordinated Note, shall mail to all Noteholders, at their addresses shown on the Security Register (as defined in Section 14 below), such written notice of Event of Default, unless such Event of Default shall have been cured or waived before the giving of such notice as certified by the Company in writing. Prior to any acceleration of this Subordinated Note, a Noteholder may waive pursuant to Section 18 below any past Event of Default. In addition, a Noteholder may rescind a declaration of acceleration of this Subordinated Note before any judgment has been obtained if (i) the Company pays all matured installments of principal of and interest on this Subordinated Note (other than installments due by reason of acceleration) and interest on the overdue installments; and (ii) all other Events of Default with respect to this Subordinated Note have been cured or waivedlaw.
Appears in 1 contract
Sources: Credit Agreement (Asahi America Inc)
Events of Default; Acceleration. Each If any of the following events shall constitute occur and be continuing (each an “Event of Default”:):
(a) the entry of a decree Company or order any major subsidiary depository institution (as defined for relief in respect purposes of the Capital Adequacy Regulations, a “Major Subsidiary Depository Institution”) of Company by a court having jurisdiction in the premises in an involuntary case or proceeding under any applicable bankruptcy, insolvency, or reorganization law, now or hereafter in effect of the United States or any political subdivision thereof, and such decree or order will have continued unstayed and in effect for a period of sixty (60) consecutive calendar days;
(b) the commencement by the Company of shall commence a voluntary case under any applicable bankruptcy, insolvency insolvency, liquidation, reorganization or reorganization law, other similar law now or hereafter in effect of the United States or any political subdivision thereofeffect, or the Company shall consent by the Company to the entry appointment of a receiver, liquidator, trustee or other similar official in any liquidation, insolvency or similar proceeding with respect to Company or all or substantially all of its property, or shall make an assignment for the benefit of creditors; or
(b) a court or other governmental agency or body having jurisdiction shall enter a decree or order for relief the appointment of a receiver, liquidator, trustee or other similar official in an involuntary case any liquidation, insolvency or similar proceeding under any with respect to Company or a Major Subsidiary Depository Institution of Company or all or substantially all of the property of Company or a Major Subsidiary Depository Institution of Company, or for the winding up of the affairs or business of Company or a Major Subsidiary Depository Institution, and such law;decree or order shall have remained in force for sixty (60) calendar days after the entry thereof; or
(c) Company is notified that it is considered an institution in “troubled condition” within the meaning of 12 U.S.C. Section 1831i and the regulations promulgated thereunder; or
(d) Company (i) becomes insolvent or is unable to pay its debts as they mature, or (ii) makes an assignment for the benefit of creditors, (iii) admits in writing its inability to pay its debts as they mature, or (iv) ceases to be a bank holding company or financial holding company under the Bank Holding Company Act of 1956, as amended;
(d) the failure of the Company to pay any installment of interest on any of the Subordinated Notes as and when the same will become due and payable, and the continuation of such failure for a period of fifteen (15) consecutive calendar days;; or
(e) the failure of the Company to pay all or any part of the principal of materially breaches any of the Subordinated Notes as and when representations, warranties or covenants made by it in the same will become due and payable;Agreement; or
(f) the liquidation Company fails to make any required payment of the Company principal or interest hereunder when due and payable (for the avoidance of doubt, “liquidation” does not include any merger, consolidation, sale of equity or assets or reorganization (exclusive of a reorganization in bankruptcy) of the Company or any of its subsidiaries); or
(g) the default or breach of the Company to materially perform any other covenant or agreement on the part of the Company contained in the Subordinated Notes and the continuation of such default or breach (without such default or breach having been waived in accordance with the provisions of Section 17) for a period of 90 consecutive calendar days after there has been given to the Company by the Holders of not less than 25.0% in principal amount of the outstanding Subordinated Notes, by registered or certified mailand, in the manner set forth case of payment of interest, such failure to pay shall have continued for thirty (30) calendar days); then, in Section 22the case of an Event of Default described in the foregoing clauses (a) or (b), a written notice specifying such default or breach and requiring it to be remedied, and stating that such notice is a “Notice of Default” hereunder. Unless unless the principal of this Subordinated Note already shall have become due and payable, if an Event of Default described in Section 5(a) or Section 5(b) shall have occurred and be continuing, the holder Noteholder of this Subordinated Note, by notice in writing to Company, may declare the principal amount of, and accrued and unpaid interest to the date of such occurrence on, this Subordinated Note to be due and payable immediately and, upon any such declaration, the same shall become and shall be immediately due and payable. The Company waives demand, presentment for payment, notice of nonpayment, notice of protest, and all other notices. Notwithstanding the foregoing, because the Company will treat the Subordinated Notes as Tier 2 Capital, upon the occurrence of an Event of Default other than an Event of Default described in Section 5(a) or Section 5(b), the Noteholders may not accelerate the Stated Maturity of the Subordinated Notes and make the principal of, and any accrued and unpaid interest on, the Subordinated Notes, immediately due and payable. The Company, within forty-five ninety (4590) calendar days after the receipt of written notice from the Noteholder or any Noteholder other holder of the Subordinated Notes of the occurrence of an Event of Default with respect to this Subordinated Note, shall mail to all the Noteholders, at their addresses shown on the Security Register (as defined in Section 14 10 below), such written notice of Event of Default, unless such Event of Default shall have been cured or waived before the giving of such notice notice, as certified by the Company in writing. Prior to any acceleration of this Subordinated Note, a Noteholder may waive pursuant to Section 18 below any past Event of Default. In addition, a Noteholder may rescind a declaration of acceleration of this Subordinated Note before any judgment has been obtained if (i) the Company pays all matured installments of principal of and interest on this Subordinated Note (other than installments due by reason of acceleration) and interest on the overdue installments; and (ii) all other Events of Default with respect to this Subordinated Note have been cured or waived.
Appears in 1 contract
Sources: Subordinated Note Purchase Agreement (Citizens Financial Services Inc)
Events of Default; Acceleration. Each (a) So long as this Note is unpaid, each of the following events shall will constitute an “"Event of Default”":
(ai) default in the entry of a decree or order for relief in respect payment of the Company principal or interest of this Note as and when the same shall become due and payable at maturity, by declaration or otherwise, and continuance of such default for a court having jurisdiction in the premises in period of 30 days; or
(ii) an involuntary case or other proceeding shall be commenced against the Company seeking liquidation, reorganization or other relief with respect to it or its debts under any applicable bankruptcy, insolvency, insolvency or reorganization law, other similar law now or hereafter in effect effect, or seeking the appointment of a receiver, liquidator, assignee, custodian, trustee, sequestrator (or similar official) of the United States Company or for any political subdivision thereofsubstantial part of the property of the Company or the winding up or liquidation of the affairs of the Company, and such decree case or order will have continued proceeding shall remain unstayed and in effect undismissed for a period of sixty (60) consecutive calendar 60 days;, or an order for relief shall be entered against the Company under the federal bankruptcy laws as now or hereafter in effect; or
(biii) the commencement by the Company of shall commence a voluntary case under any applicable bankruptcy, insolvency or reorganization law, other similar law now or hereafter in effect of the United States or any political subdivision thereofeffect, or the consent by the Company to the entry of a decree or an order for relief in an involuntary case or proceeding under any such law;
, or consent to the appointment or taking possession by a receiver, liquidator, assignee, custodian, trustee, sequestrator (cor similar official) of the Company (i) becomes insolvent or is unable to pay its debts as they maturefor any substantial part of the property of the Company, (ii) makes an or the Company shall make any general assignment for the benefit of creditors, (iii) admits in writing its inability or shall fail generally to pay its debts as they maturecome due, or shall take any corporate action to authorize any of the foregoing; or
(iv) ceases to be a bank holding company or financial holding company under failure on the Bank Holding Company Act of 1956, as amended;
(d) the failure part of the Company to pay any installment of interest on observe or perform any of the Subordinated Notes as and when covenants contained in this Note (other than a failure to make a payment specified in clause (i) above) or in the same will become due and payable, Agreement and the continuation continuance of such failure for a period of fifteen (15) consecutive calendar days;60 days following receipt of notice from the Holder specifying such covenant and the nature of the Company's non-performance.
(eb) the failure of the Company to pay all or any part of the principal of any of the Subordinated Notes as and when the same will become due and payable;
(f) the liquidation of the Company (for the avoidance of doubt, “liquidation” does not include any merger, consolidation, sale of equity or assets or reorganization (exclusive of a reorganization in bankruptcy) of the Company or any of its subsidiaries); or
(g) the default or breach of the Company to materially perform any other covenant or agreement on the part of the Company contained in the Subordinated Notes and the continuation of such default or breach (without such default or breach having been waived in accordance with the provisions of Section 17) for a period of 90 consecutive calendar days after there has been given to the Company by the Holders of not less than 25.0% in principal amount of the outstanding Subordinated Notes, by registered or certified mail, in the manner set forth in Section 22, a written notice specifying such default or breach and requiring it to be remedied, and stating that such notice is a “Notice of Default” hereunder. Unless the principal of this Subordinated Note already shall have become due and payable, if If an Event of Default described in Section 5(a) or Section 5(b) shall have occurred occur, then the Holder may by notice to the Company (a "Default Notice"), so long as the Event of Default exists, declare the unpaid principal and be continuingaccrued interest, the holder if any, of this Subordinated Note, by notice in writing to Company, may declare the principal amount of this Subordinated Note to be immediately due and payable immediately andwithout further presentment, upon any such declaration, the same shall become and shall be immediately due and payable. The Company waives demand, presentment for payment, notice of nonpayment, notice of protest, and or notice, all other notices. Notwithstanding the foregoing, because the Company will treat the Subordinated Notes as Tier 2 Capital, upon the occurrence of an Event of Default other than an Event of Default described in Section 5(a) or Section 5(b), the Noteholders may not accelerate the Stated Maturity of the Subordinated Notes and make the principal of, and any accrued and unpaid interest on, the Subordinated Notes, immediately due and payable. The Company, within forty-five (45) calendar days after the receipt of written notice from any Noteholder of the occurrence of an Event of Default with respect to this Subordinated Note, shall mail to all Noteholders, at their addresses shown on the Security Register (as defined in Section 14 below), such written notice of Event of Default, unless such Event of Default shall have been cured or waived before the giving of such notice as certified by the Company in writing. Prior to any acceleration of this Subordinated Note, a Noteholder may waive pursuant to Section 18 below any past Event of Default. In addition, a Noteholder may rescind a declaration of acceleration of this Subordinated Note before any judgment has been obtained if (i) the Company pays all matured installments of principal of and interest on this Subordinated Note (other than installments due by reason of acceleration) and interest on the overdue installments; and (ii) all other Events of Default with respect to this Subordinated Note have been cured or which are hereby waived.
Appears in 1 contract
Events of Default; Acceleration. Each Upon the occurrence of and during the continuation of any of the following events shall constitute an “or conditions of default (Event of Default”), FHLBank may at its option and notwithstanding any other provision hereof, by a notice to the Institution, declare all Indebtedness, including but not limited to any accrued interest and any prepayment charges that are provided for upon payment of an Advance before the date(s) scheduled for repayment, to be immediately due and payable, without presentment, demand, protest or any further notice:
(a) the entry of a decree or order for relief in respect a. Failure of the Company Institution to keep sufficient available balances on deposit with FHLBank to pay any interest, principal or other amount then due and owing to FHLBank one (1) Business Day after FHLBank gives notice to the Institution that its available balances on deposit with FHLBank are insufficient to pay amounts then due and owing; or
b. Continued failure of the Institution to perform any promise or obligation or to satisfy any condition or liability contained in this Agreement for five (5) Business Days after FHLBank gives notice to the Institution of such failure; or
c. Continued failure of the Institution to provide adequate Eligible Collateral as required by a court having jurisdiction FHLBank for three (3) Business Days after FHLBank gives notice to the Institution of such failure unless the Institution shall reduce its Required Collateral Amount during such three (3) Business Day period such that the Institution has sufficient Eligible Collateral; or
d. Any suspension of payment by the Institution to any creditor of sums due or the occurrence of any event that results (or which with the giving of notice or passage of time or both will result) in acceleration of the premises in an involuntary case or proceeding maturity of any indebtedness of the Institution to others under any applicable bankruptcysecurity agreement, insolvencyindenture, loan agreement or reorganization lawother undertaking, now or hereafter in effect of provided that such indebtedness is a material amount with respect to the United States or any political subdivision thereof, Institution and such decree or order will have continued unstayed and in effect for is not subject to a period of sixty (60) consecutive calendar days;
(b) the commencement by the Company of a voluntary case under any applicable bankruptcy, insolvency or reorganization law, now or hereafter in effect of the United States or any political subdivision thereofgood faith dispute, or the consent by the Company to the entry of a decree or order for relief in an involuntary case or proceeding under any such law;
(c) the Company (i) becomes insolvent or Institution’s admission that it is unable to pay its debts as they mature; or
e. Appointment of a trustee, (ii) makes an assignment conservator, receiver, liquidator, custodian or similar official for the benefit Institution, or for substantially all of creditorsthe Institution’s property, (iii) admits or the entry of a judgment, decree or administrative decision adjudicating the Institution insolvent or bankrupt, or the commencement of proceedings seeking any of the foregoing if such proceedings have not been dismissed within 30 calendar days; or
f. Sale by the Institution of all or substantially all of the Institution’s assets or the taking of any action by the Institution to liquidate or dissolve; or
g. Termination of the Institution’s membership in writing FHLBank or the Institution’s ceasing to be a type of financial institution that is eligible under the Act to become a member of FHLBank; or
h. Merger, consolidation or other combination of the Institution with an entity that is not a member of FHLBank if the nonmember entity is the surviving entity in such transaction; or
i. FHLBank determines that any representation or warranty made or furnished by the Institution, its inability employees or other representatives to FHLBank, in this Agreement or in any other manner, in connection with any Advance or other Indebtedness or Collateral, is incorrect or misleading in any material respect; or
j. FHLBank reasonably and in good faith determines that a material adverse change has occurred in the financial condition of the Institution that materially impairs its ability to pay its debts as they mature, or (iv) ceases to be a bank holding company or financial holding company under the Bank Holding Company Act of 1956, as amended;
(d) the failure of the Company to pay any installment of interest on any of the Subordinated Notes as and when the same will become due and payable, and the continuation of such failure for a period of fifteen (15) consecutive calendar days;
(e) the failure of the Company to pay all or any part of the principal of any of the Subordinated Notes as and when the same will become due and payable;
(f) the liquidation of the Company (for the avoidance of doubt, “liquidation” does not include any merger, consolidation, sale of equity or assets or reorganization (exclusive of a reorganization in bankruptcy) of the Company or any of its subsidiaries); or
(g) the default or breach of the Company to materially perform any other covenant or agreement on the part of the Company contained in the Subordinated Notes and the continuation of such default or breach (without such default or breach having been waived in accordance with the provisions of Section 17) for a period of 90 consecutive calendar days after there has been given to the Company by the Holders of not less than 25.0% in principal amount of the outstanding Subordinated Notes, by registered or certified mail, in the manner set forth in Section 22, a written notice specifying such default or breach and requiring it to be remedied, and stating that such notice is a “Notice of Default” hereunder. Unless the principal of this Subordinated Note already shall have become due and payable, if an Event of Default described in Section 5(a) or Section 5(b) shall have occurred and be continuing, the holder of this Subordinated Note, by notice in writing to Company, may declare the principal amount of this Subordinated Note to be due and payable immediately and, upon any such declaration, the same shall become and shall be immediately due and payable. The Company waives demand, presentment for payment, notice of nonpayment, notice of protest, and all other notices. Notwithstanding the foregoing, because the Company will treat the Subordinated Notes as Tier 2 Capital, upon the occurrence of an Event of Default other than an Event of Default described in Section 5(a) or Section 5(b), the Noteholders may not accelerate the Stated Maturity of the Subordinated Notes and make the principal of, and any accrued and unpaid interest on, the Subordinated Notes, immediately due and payable. The Company, within forty-five (45) calendar days after the receipt of written notice from any Noteholder of the occurrence of an Event of Default with respect to this Subordinated Note, shall mail to all Noteholders, at their addresses shown on the Security Register (as defined in Section 14 below), such written notice of Event of Default, unless such Event of Default shall have been cured or waived before the giving of such notice as certified by the Company in writing. Prior to any acceleration of this Subordinated Note, a Noteholder may waive pursuant to Section 18 below any past Event of Default. In addition, a Noteholder may rescind a declaration of acceleration of this Subordinated Note before any judgment has been obtained if (i) the Company pays all matured installments of principal of and interest on this Subordinated Note (other than installments due by reason of acceleration) and interest on the overdue installments; and (ii) all other Events of Default with respect to this Subordinated Note have been cured or waived.
Appears in 1 contract
Sources: Advance, Pledge and Security Agreement (Federal Home Loan Bank of Topeka)
Events of Default; Acceleration. Each Upon the occurrence and during the continuation of any Event of Default, the obligation of each Lender to make any additional Loan shall be suspended. The occurrence and continuation of any of the following events shall constitute (each, an “Event of Default”) shall at the option of Agent, at the direction of the Required Lenders (1) make all sums of Basic Interest and principal, as well as any other Obligations and amounts owing under any Loan Documents, immediately due and payable without notice of default, presentment or demand for payment, protest or notice of nonpayment or dishonor or any other notices or demands, and (2) give Agent the right to exercise any other right or remedy provided by contract or applicable law:
(a) the entry of a decree Borrower shall (i) fail to pay when due any principal or order for relief in respect of the Company by a court having jurisdiction in the premises in an involuntary case interest under this Agreement or proceeding any Note, or (ii) fail to pay any fees or other charges when due under any applicable bankruptcy, insolvency, or reorganization law, now or hereafter in effect of the United States or Loan Document (other than any political subdivision thereofWarrant), and such decree failure continues for three (3) Business Days or order will more after the same first becomes due; or an Event of Default as defined in any other Loan Document shall have continued unstayed and in effect for a period of sixty (60) consecutive calendar days;occurred.
(b) the commencement Any representation or warranty made, or financial statement, certificate or other document provided, by the Company of a voluntary case Loan Party under any applicable bankruptcy, insolvency Loan Document shall prove to have been false or reorganization law, now misleading in any material respect when made or hereafter in effect of the United States or any political subdivision thereof, or the consent by the Company to the entry of a decree or order for relief in an involuntary case or proceeding under any such law;deemed made herein.
(c) the Company If there occurs any circumstance or circumstances that could reasonably be expected to have a Material Adverse Effect.
(i) becomes insolvent or is unable Borrower shall fail to pay its debts generally as they mature, become due; or (ii) makes Borrower shall commence any Insolvency Proceeding with respect to itself, an assignment involuntary Insolvency Proceeding shall be filed against Borrower, or a custodian, receiver, trustee, assignee for the benefit of creditors, or other similar official, shall be appointed to take possession, custody or control of the properties of Borrower, and such involuntary Insolvency Proceeding, petition or appointment is acquiesced to by Borrower or is not dismissed within forty five (45) days; or (iii) admits in writing its inability the dissolution, winding up, or termination of the business or cessation of operations of Borrower (including any transaction or series of related transactions deemed to pay its debts as they maturebe a liquidation, dissolution or winding up of Borrower pursuant to the provisions of Borrower’s charter documents); or (iv) ceases Borrower shall take any corporate action for the purpose of effecting, approving, or consenting to be a bank holding company or financial holding company under the Bank Holding Company Act of 1956, as amended;
(d) the failure of the Company to pay any installment of interest on any of the Subordinated Notes as and when the same will become due and payable, and the continuation of such failure for a period of fifteen (15) consecutive calendar days;foregoing.
(e) Borrower shall be in default beyond any applicable period of grace or cure under any other agreement involving the failure borrowing of money, the purchase of property on credit, the advance of credit or any other similar monetary liability to Lenders or to any Person that permits such Person to accelerate the payment of such obligations, whether or not exercised, in an amount in excess of the Company to pay all or any part of the principal of any of the Subordinated Notes as and when the same will become due and payable;Threshold Amount.
(f) the liquidation of the Company (for the avoidance of doubtAny governmental or regulatory authority shall take any judicial or administrative action, “liquidation” does not include any merger, consolidation, sale of equity or assets or reorganization (exclusive of a reorganization in bankruptcy) of the Company or any defined benefit pension plan maintained by Borrower shall have any unfunded liabilities, any of its subsidiaries); orwhich, in the reasonable judgment of Required Lenders, could reasonably be expected to have a Material Adverse Effect.
(g) the default Except as otherwise permitted pursuant to Sections 6.4 or breach 6.5, any sale, transfer or other disposition of the Company to materially perform all or any other covenant or agreement on the material part of the Company assets of Borrower, including without limitation to any trust or similar entity, shall occur.
(h) Any judgment(s) singly or in the aggregate in excess of the Threshold Amount (not covered by independent third party insurance as to which liability has not been rejected by such insurance carrier) shall be entered against Borrower which remain unsatisfied, unvacated or unstayed pending appeal for twenty (20) or more days after entry thereof.
(i) Borrower shall fail to perform or observe any covenant contained in Article 6 of this Agreement.
(j) Borrower shall fail to perform or observe any covenant contained in Article 5 or elsewhere in this Agreement or any other Loan Document (other than a covenant which is dealt with specifically elsewhere in this Article 7 and other than any covenant under the Subordinated Notes and Warrants) and, if capable of being cured, the continuation breach of such default or breach (without such default or breach having been waived in accordance with the provisions of Section 17) for a period of 90 consecutive calendar days after there has been given to the Company by the Holders of covenant is not less than 25.0% in principal amount of the outstanding Subordinated Notes, by registered or certified mail, in the manner set forth in Section 22, a written notice specifying such default or breach and requiring it to be remedied, and stating that such notice is a “Notice of Default” hereunder. Unless the principal of this Subordinated Note already shall have become due and payable, if an Event of Default described in Section 5(a) or Section 5(b) shall have occurred and be continuing, the holder of this Subordinated Note, by notice in writing to Company, may declare the principal amount of this Subordinated Note to be due and payable immediately and, upon any such declaration, the same shall become and shall be immediately due and payable. The Company waives demand, presentment for payment, notice of nonpayment, notice of protest, and all other notices. Notwithstanding the foregoing, because the Company will treat the Subordinated Notes as Tier 2 Capital, upon the occurrence of an Event of Default other than an Event of Default described in Section 5(a) or Section 5(b), the Noteholders may not accelerate the Stated Maturity of the Subordinated Notes and make the principal of, and any accrued and unpaid interest on, the Subordinated Notes, immediately due and payable. The Company, cured within forty-five (45) calendar 10 days after the sooner to occur of Borrower’s receipt of written notice of such breach from Agent or any Noteholder Lender or the date on which such breach first becomes known to any officer of Borrower (the “Notice Date”); provided, however that if such breach is not capable of being cured within such 10-day period and Borrower timely notifies Lenders of such fact and Borrower diligently pursues such cure, then the cure period shall be extended to the date requested in Borrower’s notice but in no event more than 30 days from the Notice Date; provided, further, that such 30-day opportunity to cure shall not apply in the case of any failure to perform or observe any covenant which has been the subject of a prior failure within the preceding 180 days or which is a willful and knowing breach by Borrower.
(k) If all or any portion of a Guarantor’s Obligations under Article 11 of this Agreement cease for any reason to be in full force and effect, or any guarantor fails to perform any obligation hereunder, or any guarantor revokes or purports to revoke its Obligations under Article 11, or any material misrepresentation or material misstatement exists now or hereafter in any warranty or representation set forth by a Guarantor herein or in any certificate delivered to Lenders or Agent in connection herewith, or if any of the occurrence of an Event of Default circumstances described in Sections 7.1(b) through 7.1(j) occur with respect to this Subordinated Notea Guarantor.
(l) Any Loan Document shall fail to remain in full force or effect or any action shall be taken to discontinue or to assert the invalidity or unenforceability of the obligations of a Guarantor hereunder, or a Guarantor shall mail fail to all Noteholderscomply with the terms of provisions of Article 11 hereof, at their addresses shown on the Security Register (as defined in Section 14 below)or a Guarantor shall deny that it has any further liability hereunder, or shall give notice to such written notice of Event of Default, unless such Event of Default shall have been cured or waived before the giving of such notice as certified by the Company in writing. Prior to any acceleration of this Subordinated Note, a Noteholder may waive pursuant to Section 18 below any past Event of Default. In addition, a Noteholder may rescind a declaration of acceleration of this Subordinated Note before any judgment has been obtained if (i) the Company pays all matured installments of principal of and interest on this Subordinated Note (other than installments due by reason of acceleration) and interest on the overdue installments; and (ii) all other Events of Default with respect to this Subordinated Note have been cured or waivedeffect.
Appears in 1 contract
Sources: Loan and Security Agreement (Rani Therapeutics Holdings, Inc.)
Events of Default; Acceleration. Each Upon the occurrence and during the continuation of any Event of Default, the obligation of each Lender to make any additional Loan shall be suspended. The occurrence and continuation of any of the following events shall constitute (each, an “Event of Default”) shall at the option of Agent, at the direction of Lenders (1) make all sums of Basic Interest and principal, as well as any other Obligations and amounts owing under any Loan Documents, immediately due and payable without notice of default, presentment or demand for payment, protest or notice of nonpayment or dishonor or any other notices or demands, and (2) give Agent the right to exercise any other right or remedy provided by contract or applicable law:
(a) the entry of a decree Borrower shall fail to pay any principal or order for relief in respect of the Company by a court having jurisdiction in the premises in an involuntary case interest under this Agreement or proceeding any Note, or fail to pay any fees or other charges when due under any applicable bankruptcy, insolvency, or reorganization law, now or hereafter in effect of the United States or any political subdivision thereofLoan Document, and such decree failure continues for three (3) Business Days or order will more after the same first becomes due; or an Event of Default as defined in any other Loan Document shall have continued unstayed and in effect for a period of sixty (60) consecutive calendar days;occurred.
(b) the commencement Any representation or warranty made, or financial statement, certificate or other document provided, by the Company of a voluntary case Loan Party under any applicable bankruptcy, insolvency Loan Document shall prove to have been false or reorganization law, now misleading in any material respect when made or hereafter in effect of the United States or any political subdivision thereof, or the consent by the Company to the entry of a decree or order for relief in an involuntary case or proceeding under any such law;deemed made herein.
(c) the Company If there occurs any circumstance or circumstances that could reasonably be expected to have a Material Adverse Effect.
(i) becomes insolvent Borrower or is unable a Subsidiary shall fail to pay its debts generally as they mature, become due; or (ii) makes Borrower or a Subsidiary shall commence any Insolvency Proceeding with respect to itself, an assignment involuntary Insolvency Proceeding shall be filed against Borrower or a Subsidiary, or a custodian, receiver, trustee, assignee for the benefit of creditors, or other similar official, shall be appointed to take possession, custody or control of the properties of Borrower or a Subsidiary, and such involuntary Insolvency Proceeding, petition or appointment is acquiesced to by Borrower or such Subsidiary or is not dismissed within forty five (45) days; or (iii) admits in writing its inability the dissolution, winding up, or termination of the business or cessation of operations of Borrower or a Subsidiary (including any transaction or series of related transactions deemed to pay its debts be a liquidation, dissolution or winding up of Borrower or such Subsidiary pursuant to the provisions of Borrower’s or, as they maturethe case may be, such Subsidiary’s charter documents); or (iv) ceases Borrower shall take any corporate action for the purpose of effecting, approving, or consenting to be a bank holding company or financial holding company under the Bank Holding Company Act of 1956, as amended;
(d) the failure of the Company to pay any installment of interest on any of the Subordinated Notes as and when the same will become due and payable, and the continuation of such failure for a period of fifteen (15) consecutive calendar days;foregoing.
(e) Borrower or a Subsidiary shall be in default beyond any applicable period of grace or cure under any other agreement involving the failure borrowing of money, the purchase of property, the advance of credit or any other monetary liability of any kind to any Lender or to any Person in an amount, individually or in the aggregate, in excess of the Company to pay all or any part of the principal of any of the Subordinated Notes as and when the same will become due and payable;Threshold Amount.
(f) Any Governmental Authority or regulatory authority shall take any judicial or administrative action against Borrower or a Subsidiary (except to the liquidation of the Company (for the avoidance of doubtextent such action is discharged or stayed pending appeal), “liquidation” does not include any merger, consolidation, sale of equity or assets or reorganization (exclusive of a reorganization in bankruptcy) of the Company or any defined benefit pension plan maintained by Borrower or a Subsidiary shall have any unfunded liabilities, any of its subsidiaries); orwhich, in the reasonable judgment of Agent could reasonably be expected to have a Material Adverse Effect.
(g) the default Any sale, transfer or breach other disposition of the Company to materially perform any other covenant all or agreement on the a substantial or material part of the Company assets of a Loan Party, including without limitation to any trust or similar entity, shall occur.
(h) Any judgment(s) singly or in the aggregate in excess of the Threshold Amount (not covered by independent third-party insurance) shall be entered against Borrower or a Subsidiary which remain unsatisfied, unvacated or unstayed pending appeal for ten (10) or more days after entry thereof.
(i) There is a material impairment in the perfection or priority of Agent’s security interest in the Collateral.
(j) If a Guaranty ceases for any reason to be in full force and effect, or any action shall be taken to discontinue or to assert the invalidity or unenforceability of a Guaranty.
(k) Any Loan Party shall fail to perform or observe any covenant contained in Sections 5.1(c), 5.2, 5.4, 5.5, 5.12 or 5.13 or Article 6.
(l) Any Loan Party shall fail to perform or observe any covenant contained in Article 5 (other than Sections 5.1(c), 5.2, 5.4, 5.5, 5.12 or 5.13) or elsewhere in this Agreement or any other Loan Document (other than a covenant which is dealt with specifically elsewhere in this Article 7) and, if capable of being cured, the Subordinated Notes and the continuation breach of such default or breach covenant is not cured within ten (without such default or breach having been waived in accordance with the provisions of Section 1710) for a period of 90 consecutive calendar days after there has been given to the Company by the Holders of not less than 25.0% in principal amount of the outstanding Subordinated Notes, by registered or certified mail, in the manner set forth in Section 22, a written notice specifying such default or breach and requiring it to be remedied, and stating that such notice is a “Notice of Default” hereunder. Unless the principal of this Subordinated Note already shall have become due and payable, if an Event of Default described in Section 5(a) or Section 5(b) shall have occurred and be continuing, the holder of this Subordinated Note, by notice in writing to Company, may declare the principal amount of this Subordinated Note to be due and payable immediately and, upon any such declaration, the same shall become and shall be immediately due and payable. The Company waives demand, presentment for payment, notice of nonpayment, notice of protest, and all other notices. Notwithstanding the foregoing, because the Company will treat the Subordinated Notes as Tier 2 Capital, upon the occurrence of an Event of Default other than an Event of Default described in Section 5(a) or Section 5(b), the Noteholders may not accelerate the Stated Maturity of the Subordinated Notes and make the principal of, and any accrued and unpaid interest on, the Subordinated Notes, immediately due and payable. The Company, within forty-five (45) calendar days after the sooner to occur of such Loan Party’s receipt of written notice from any Noteholder of the occurrence of an Event of Default with respect to this Subordinated Note, shall mail to all Noteholders, at their addresses shown on the Security Register (as defined in Section 14 below), such written notice of Event of Default, unless such Event of Default shall have been cured breach from Agent or waived before the giving date on which such breach first becomes known to any officer of such Loan Party (the “Notice Date”); provided, however that if such breach is not capable of being cured within such 10-day period and such Loan Party timely notifies Agent and each Lender of such fact and such Loan Party diligently pursues such cure, then the cure period shall be extended to the date requested in such Loan Party’s notice as certified by but in no event more than thirty (30) days from the Company Notice Date; provided, further, that such 30-day opportunity to cure shall not apply in writing. Prior the case of any failure to perform or observe any acceleration of this Subordinated Note, a Noteholder may waive pursuant to Section 18 below any past Event of Default. In addition, a Noteholder may rescind a declaration of acceleration of this Subordinated Note before any judgment covenant which has been obtained if the subject of a prior failure within the preceding one hundred eighty (i180) the Company pays all matured installments of principal of days or which is a willful and interest on this Subordinated Note (other than installments due knowing breach by reason of acceleration) and interest on the overdue installments; and (ii) all other Events of Default with respect to this Subordinated Note have been cured or waivedany Loan Party.
Appears in 1 contract
Events of Default; Acceleration. Each If any of the following events occurs, the Notes shall constitute an “Event of Default”become due immediately, without notice, at the Bank’s option:
A. Any Obligor fails to pay when due any payment under any Note.
B. Any Obligor fails to pay when due any other Liabilities owed by Borrower to the Bank under this agreement or any other Related Document, in each case within ten (a10) the entry of a decree or order for relief in respect calendar days following delivery to Borrower of the Company by a court having jurisdiction in the premises Bank’s written demand for such payment.
C. Any Obligor fails to pay when due any indebtedness in an involuntary case amount more than $500,000 owed to any other Person and any and all cure periods applicable for such payment default shall have expired.
D. Any Obligor or proceeding any Pledgor: (i) fails to observe or perform or otherwise violates any other term, covenant, condition or agreement of any of the Related Documents and, except with respect to the Borrower’s obligations under Sections 4.5 and 5.2(O) hereof as to which no cure period applies, such failure or other violation shall not have been cured within ten (10) calendar days; (ii) makes any applicable bankruptcymaterially incorrect or misleading representation, insolvencywarranty, or reorganization law, now certificate to the Bank; (iii) makes any materially incorrect or hereafter misleading representation in any financial statement or other information delivered to the Bank; or (iv) defaults under the terms of any agreement or instrument relating to any debt for borrowed money (other than the debt evidenced by the Related Documents) and the effect of such default will allow the United States creditor to declare the debt due before its stated maturity.
E. There is any loss, theft, damage, or destruction of any Collateral with a value in excess of $500,000 not covered by insurance.
F. Any event occurs that would permit the Pension Benefit Guaranty Corporation to terminate any employee benefit plan of any Obligor or any political subdivision thereof, and such decree or order will have continued unstayed and in effect for a period Subsidiary of sixty (60) consecutive calendar days;any Obligor.
(b) the commencement by the Company of a voluntary case under any applicable bankruptcy, insolvency or reorganization law, now or hereafter in effect of the United States G. Any Obligor or any political subdivision thereof, of its Subsidiaries or the consent by the Company to the entry of a decree or order for relief in an involuntary case or proceeding under any such law;
(c) the Company Pledgor: (i) becomes insolvent or is unable to pay its debts as they mature, become due; (ii) makes an assignment for the benefit of creditors, ; (iii) admits in writing its inability consents to pay its debts as they maturethe appointment of a custodian, receiver, or trustee for itself or for a substantial part of its Property; (iv) ceases to be a bank holding company commences any proceeding under any bankruptcy, reorganization, liquidation, insolvency or financial holding company under the Bank Holding Company Act of 1956, as amended;
similar laws; (dv) the failure of the Company to pay any installment of interest on conceals or removes any of the Subordinated Notes as and when the same will become due and payableits Property, and the continuation with intent to hinder, delay or defraud any of such failure for its creditors; (vi) makes or permits a period of fifteen (15) consecutive calendar days;
(e) the failure of the Company to pay all or any part of the principal transfer of any of the Subordinated Notes as and when the same will become due and payable;
its Property, which may be fraudulent under any bankruptcy, fraudulent conveyance or similar law; or (fvii) the liquidation makes a transfer of the Company (any of its Property to or for the avoidance of doubt, “liquidation” does not include any merger, consolidation, sale of equity or assets or reorganization (exclusive benefit of a reorganization in bankruptcy) of the Company creditor at a time when other creditors similarly situated have not been paid.
H. A custodian, receiver, or trustee is appointed for any Obligor or any of its subsidiaries)Subsidiaries or any Pledgor or for a substantial part of their respective Property.
I. Any Obligor or any of its Subsidiaries, without the Bank’s written consent: (i) liquidates or is dissolved; or
(gii) the default merges or breach of the Company to materially perform consolidates with any other covenant Person; (iii) leases, sells or agreement on otherwise conveys a material part of its assets or business outside the ordinary course of its business; (iv) leases, purchases, or otherwise acquires a material part of the Company contained assets of any other Person, except in the Subordinated Notes and ordinary course of its business or in a Permitted Acquisition; or (v) agrees to do any of the continuation foregoing; provided, however, that any Subsidiary of such default an Obligor may merge or breach (without such default consolidate with any other Subsidiary of that Obligor, or breach having been waived in accordance with the provisions Obligor, so long as the Obligor is the survivor.
J. Proceedings are commenced under any bankruptcy, reorganization, liquidation, or similar laws against any Obligor or any of Section 17) its Subsidiaries or any Pledgor and remain undismissed for a period of 90 consecutive calendar days after there has been given to the Company by the Holders of not less than 25.0% in principal amount of the outstanding Subordinated Notes, by registered or certified mail, in the manner set forth in Section 22, a written notice specifying such default or breach and requiring it to be remedied, and stating that such notice is a “Notice of Default” hereunder. Unless the principal of this Subordinated Note already shall have become due and payable, if an Event of Default described in Section 5(a) or Section 5(b) shall have occurred and be continuing, the holder of this Subordinated Note, by notice in writing to Company, may declare the principal amount of this Subordinated Note to be due and payable immediately and, upon any such declaration, the same shall become and shall be immediately due and payable. The Company waives demand, presentment for payment, notice of nonpayment, notice of protest, and all other notices. Notwithstanding the foregoing, because the Company will treat the Subordinated Notes as Tier 2 Capital, upon the occurrence of an Event of Default other than an Event of Default described in Section 5(a) or Section 5(b), the Noteholders may not accelerate the Stated Maturity of the Subordinated Notes and make the principal of, and any accrued and unpaid interest on, the Subordinated Notes, immediately due and payable. The Company, within forty-five thirty (4530) calendar days after commencement; or any Obligor or any of its Subsidiaries or any Pledgor consents to the receipt commencement of written notice from those proceedings.
K. Any judgment is entered against any Noteholder Obligor or any of its Subsidiaries, or any attachment, seizure, sequestration, levy, or garnishment is issued against any Property of any Obligor or any of its Subsidiaries or of any Pledgor or any Collateral, and such condition continues thirty (30) calendar days or more (or if stayed pursuant to any order or agreement, then thirty (30) calendar days or more following the occurrence of an Event of Default with respect to this Subordinated Note, shall mail to all Noteholders, at their addresses shown on the Security Register (as defined in Section 14 below), such written notice of Event of Default, unless such Event of Default shall have been cured or waived before the giving expiration of such notice as certified by stay).
L. Any individual Obligor or Pledgor dies, or a guardian or conservator is appointed for any individual Obligor or Pledgor or all or any portion of their respective Property, or the Company in writing. Prior to any acceleration of this Subordinated Note, a Noteholder may waive pursuant to Section 18 below any past Event of Default. In addition, a Noteholder may rescind a declaration of acceleration of this Subordinated Note before any judgment has been obtained if Collateral.
M. Any material adverse change occurs in: (i) the Company pays all matured installments reputation, Property, financial condition, business, assets, affairs, prospects, liabilities, or operations of principal of Borrower or, on a combined basis, other Obligors and interest on this Subordinated Note (other than installments due by reason of acceleration) and interest on the overdue installmentsBorrower’s Subsidiaries; and (ii) all the ability of Borrower or, on a combined basis, other Events of Default with respect Obligors and Borrower’s Subsidiaries, to this Subordinated Note perform their respective obligations under the Related Documents; or (iii) the Collateral.
N. Any Material Contract shall cease to remain in full force and effect through breach, a failure to renew or otherwise or the Borrower shall have been cured or waivednotified by the counterparty thereto of an intention not to renew the same and, in the case of a failure to renew, such contract shall not have been replaced by another contract satisfactory to the Bank.
Appears in 1 contract
Sources: Credit Agreement (Cherokee Inc)
Events of Default; Acceleration. Each The occurrence of any one or more of the following events shall constitute an “Event of Default”” hereunder, and upon such Event of Default, the entire principal balance outstanding hereunder, together with all accrued interest and other amounts payable hereunder, at the election of Lenders, shall become immediately due and payable, without any notice to Borrower:
(a) Nonpayment of principal, interest or other amounts when the entry of a decree or order for relief in respect of the Company by a court having jurisdiction in the premises in an involuntary case or proceeding under any applicable bankruptcy, insolvency, or reorganization law, now or hereafter in effect of the United States or any political subdivision thereof, same shall become due and such decree or order will have continued unstayed and in effect for a period of sixty (60) consecutive calendar dayspayable hereunder;
(b) the commencement The failure of Borrower to comply with any provision of this Agreement (other than payment) and such failure shall continue unremedied for 30 days following written notice of such default from Lenders to Borrower; provided, however, that if such default cannot reasonably be cured within such 30-day period, as determined by the Company Lenders in their reasonable discretion, and Borrower is diligently pursuing a remedy of such default, Borrower shall have a voluntary case under any applicable bankruptcyreasonable period to remedy such default beyond such 30-day period, insolvency or reorganization law, now or hereafter in effect of the United States or any political subdivision thereof, or the consent by the Company to the entry of a decree or order for relief in which shall not exceed an involuntary case or proceeding under any such lawadditional 90 days;
(c) The dissolution, winding-up or termination of the Company (i) becomes insolvent or is unable to pay its debts as they mature, (ii) makes an assignment for the benefit existence of creditors, (iii) admits in writing its inability to pay its debts as they mature, or (iv) ceases to be a bank holding company or financial holding company under the Bank Holding Company Act of 1956, as amended;Borrower; or
(d) The appointment of (or application for appointment of) a receiver of Borrower or the failure involuntary filing against or voluntary filing by Borrower of the Company to pay a petition or application for relief under federal bankruptcy law or any installment of interest on any of the Subordinated Notes as and when the same will become due and payable, and the continuation of such failure for a period of fifteen (15) consecutive calendar days;similar state or federal law.
(e) The Guaranty fails to remain in full force or effect, any action is taken to discontinue or to assert the failure invalidity or unenforceability of the Company Guaranty as to pay all or any part of the principal of guarantor, any guarantor fails to comply with any of the Subordinated Notes as and when material terms or provisions of the same will become due and payable;guaranty, or any guarantor denies that it has any further liability under the guaranty or gives notice to such effect.
(f) the liquidation The occurrence of the Company (for the avoidance of doubt, an “liquidation” does not include any merger, consolidation, sale of equity or assets or reorganization (exclusive of a reorganization in bankruptcy) of the Company or any of its subsidiaries); or
(g) the default or breach of the Company to materially perform any other covenant or agreement on the part of the Company contained in the Subordinated Notes and the continuation of such default or breach (without such default or breach having been waived in accordance with the provisions of Section 17) for a period of 90 consecutive calendar days after there has been given to the Company by the Holders of not less than 25.0% in principal amount of the outstanding Subordinated Notes, by registered or certified mail, in the manner set forth in Section 22, a written notice specifying such default or breach and requiring it to be remedied, and stating that such notice is a “Notice Event of Default” hereunder. Unless the principal of this Subordinated Note already shall have become due and payable, if an Event of Default described in Section 5(a) or Section 5(b) shall have occurred and be continuing, the holder of this Subordinated Note, by notice in writing to Company, may declare the principal amount of this Subordinated Note to be due and payable immediately and, upon any such declaration, the same shall become and shall be immediately due and payable. The Company waives demand, presentment for payment, notice of nonpayment, notice of protest, and all other notices. Notwithstanding the foregoing, because the Company will treat the Subordinated Notes as Tier 2 Capital, upon the occurrence of an Event of Default other than an Event of Default described in Section 5(a) or Section 5(b), the Noteholders may not accelerate the Stated Maturity of the Subordinated Notes and make the principal of, and any accrued and unpaid interest on, the Subordinated Notes, immediately due and payable. The Company, within forty-five (45) calendar days after the receipt of written notice from any Noteholder of the occurrence of an Event of Default with respect to this Subordinated Note, shall mail to all Noteholders, at their addresses shown on the Security Register (as defined in Section 14 below), such written notice of Event of Default, unless such Event of Default shall have been cured or waived before the giving of such notice as certified by the Company in writing. Prior to any acceleration of this Subordinated Note, a Noteholder may waive pursuant to Section 18 below any past Event of Default. In addition, a Noteholder may rescind a declaration of acceleration of this Subordinated Note before any judgment has been obtained if (i) the Company pays all matured installments of principal of and interest on this Subordinated Note Loan Document (other than installments due by reason of acceleration) and interest on the overdue installments; and (ii) all other Events of Default with respect to this Subordinated Note have been cured or waivedAgreement).
Appears in 1 contract
Sources: Loan and Security Agreement (Modern Round Entertainment Corp)
Events of Default; Acceleration. Each Any of the following events shall constitute an “"Event of Default”":
(a) Default in the entry of a decree or order for relief in respect due and punctual payment of the Company by a court having jurisdiction in the premises in an involuntary case interest on or proceeding under any applicable bankruptcyprincipal of, insolvencypremium on, or reorganization lawredemption or Purchase Price of any Bond, now whether at the stated maturity thereof or hereafter in effect of the United States or any political subdivision upon proceedings for redemption thereof, and such decree or order will have continued unstayed and in effect for a period of sixty (60) consecutive calendar daysupon the maturity thereof by acceleration or otherwise or on the Conversion Date, proposed Conversion Date, Substitution Date or Purchase Date;
(b) Default in the commencement performance or observance of any other obligation or condition on the part of the Issuer contained in this Indenture or the Bonds, and the continuance thereof for a period of 30 days after written notice given to the Obligor and the Issuer by the Company Trustee or by the holders of a voluntary case under any applicable bankruptcy, insolvency or reorganization law, now or hereafter not less than 25% in effect aggregate principal amount of the United States or any political subdivision thereofBonds then outstanding, or except that if such default cannot be corrected within such period, it shall not constitute an Event of Default if in the judgment of the Trustee in reliance upon an opinion of Counsel and with the consent of the Bank the default is correctable without material adverse effect on the Bonds and if corrective action is instituted by the Company to Issuer within such period and diligently pursued until the entry of a decree or order for relief in an involuntary case or proceeding under any such lawdefault is corrected;
(c) Occurrence of an Event of Default (as defined in the Company (iAgreement) becomes insolvent or is unable to pay its debts as they mature, (ii) makes an assignment for the benefit of creditors, (iii) admits in writing its inability to pay its debts as they mature, or (iv) ceases to be a bank holding company or financial holding company under the Bank Holding Company Act of 1956, as amendedAgreement;
(d) Receipt by the failure Trustee of written demand from the Bank directing the Trustee to declare the Bonds immediately due and payable because of the Company to pay any installment occurrence of interest on any an Event of Default under and as defined in the Subordinated Notes as and when the same will become due and payable, and the continuation of such failure for a period of fifteen (15) consecutive calendar daysReimbursement Agreement;
(e) Receipt by the failure Trustee after a payment under the Credit Facility with respect to interest on the Bonds of written notice from the Bank that the interest portion of the Company Credit Facility has not been reinstated to pay all an amount equal to 45 days' (or any part of if applicable pursuant to Section 208 hereof, 210 days') interest, calculated at the principal of any of the Subordinated Notes Maximum Rate or Fixed Rate or Fixed Rates, as and when the same will become due and payable;applicable.
(f) the liquidation of the Company The Bank shall (i) fail to be open for the avoidance transaction of doubtits general business on any day other than a day on which such institutions in the city in which such Bank is located are authorized or obligated to close by applicable law absent extenuating circumstances of a nonfinancial nature; or (ii) commence a proceeding under any federal or state insolvency, “liquidation” does not include any mergerreorganization or similar law, consolidation, sale or have such a proceeding commenced against it and either have an order of equity or assets insolvency or reorganization entered against it or have the proceeding remain undismissed and unstayed for 90 days; or (exclusive of iii) have a reorganization in bankruptcy) of receiver, liquidator or trustee appointed for it or for the Company whole or any substantially all of its subsidiaries)property. The declaration of an Event of Default under this subsection (f) and the exercise of remedies upon any such declaration shall be subject to any applicable limitations of federal bankruptcy law affecting or precluding such declaration or exercise during the pendency of or immediately following any bankruptcy, liquidation or reorganization proceedings; or
(g) Wrongful dishonor by the default or breach Bank of a draft drawn under the Credit Facility by the Trustee. The Trustee shall, at the direction of the Company to materially perform any other covenant or agreement on the part of the Company contained in the Subordinated Notes and the continuation of such default or breach (without such default or breach having been waived in accordance with the provisions of Section 17) for a period of 90 consecutive calendar days after there has been given to the Company by the Holders of not less than 25.0% in principal amount of the outstanding Subordinated Notes, by registered or certified mail, in the manner set forth in Section 22, a written notice specifying such default or breach and requiring it to be remedied, and stating that such notice is a “Notice of Default” hereunder. Unless the principal of this Subordinated Note already shall have become due and payable, if an Event of Default described in Section 5(a) or Section 5(b) shall have occurred and be continuing, the holder of this Subordinated Note, by notice in writing to Company, may declare the principal amount of this Subordinated Note to be due and payable immediately and, upon any such declaration, the same shall become and shall be immediately due and payable. The Company waives demand, presentment for payment, notice of nonpayment, notice of protest, and all other notices. Notwithstanding the foregoing, because the Company will treat the Subordinated Notes as Tier 2 CapitalBank, upon the occurrence of an Event of Default other than an Event of Default described in Section 5(aunder paragraphs (b) or Section 5(b)(c) above, the Noteholders may not accelerate the Stated Maturity of the Subordinated Notes and make declare the principal of, of and any accrued and unpaid interest on, the Subordinated Notes, on all outstanding Bonds immediately due and payable. The CompanyTrustee shall, within forty-five (45) calendar days after the receipt of written notice from any Noteholder of upon the occurrence of an Event of Default with respect to this Subordinated Note, shall mail to all Noteholders, at their addresses shown on the Security Register under paragraphs (as defined in Section 14 belowa), (d), (e), (f) or (g) above, declare the principal of and accrued interest on all outstanding Bonds to be due and payable immediately. The Trustee shall simultaneously with any such declaration give written notice of Event any such declaration to the Issuer, the Remarketing Agent, the Obligor, the Bank and the Bondholders. Such notice shall specify the date on which payment of Defaultprincipal and interest shall be tendered to the Bondholders, unless such which date, so long as funds are available to the Trustee therefor, shall not be later than 5 days after the Event of Default shall have been cured or waived before resulting in such declaration. Interest on the giving Bonds will accrue to the date of such notice as certified by the Company in writingdeclaration of acceleration. Prior to Upon any acceleration of this Subordinated Note, a Noteholder may waive pursuant to Section 18 below any past Event of Default. In addition, a Noteholder may rescind a declaration of acceleration of this Subordinated Note before any judgment has been obtained if (i) the Company pays all matured installments maturity of principal of and interest on this Subordinated Note (other than installments due by reason of acceleration) and interest on the overdue installments; Bonds under this Indenture, the Trustee shall promptly exercise such rights as it may have under the Agreement to declare all payments thereunder to be immediately due and payable, shall transfer any moneys in the Project Fund to the Bond Fund and shall draw upon the Credit Facility in accordance with Section 209 hereof, to the full extent permitted by the terms thereof. If for any reason the Credit Facility is not in full force and effect, or if the Bank has failed to pay or has been prevented from paying a draft drawn under the Credit Facility which complies with the terms of the Credit Facility, or if the Bank in writing has repudiated its obligations under the Credit Facility, or if the Bank shall no longer exist or shall become insolvent or if a receiver is appointed for it or its property or affairs, then upon an occurrence of an event specified in Section 801(b) or (iic) the Trustee shall give written notice thereof to the Obligor and the Holders of all other Events Outstanding Bonds, and may declare the principal of Default with respect and accrued interest on all Outstanding Bonds immediately due and payable by written notice thereof to this Subordinated Note have been cured or waivedthe Obligor and the Issuer, and shall declare the principal of and accrued interest on all Outstanding Bonds immediately due and payable if Holders of not less than 25% of the principal amount of outstanding Bonds give written notice of such event to the Trustee, the Obligor and the Issuer.
Appears in 1 contract
Sources: Trust Indenture
Events of Default; Acceleration. Each If any of the following events shall constitute occurs (each, an “Event of Default”), the Notes shall become due immediately, without notice, at the Bank’s option:
A. Any Obligor fails to pay (ai) the entry of a decree or order for relief in respect within three (3) days of the Company due date therefor, any Credit Facility Indebtedness consisting of interest or fees; (ii) when due, any Credit Facility Indebtedness consisting of principal amounts, in each case under this Agreement, any Note, any other Credit Facility Related Document; or (iii) when due (taking into account any applicable contractual grace period then in effect) any other Liabilities or any other debt owed to the Bank or an Affiliate of the Bank, or any other amount payable with respect to any of the Liabilities, or under any other Related Document, or any agreement or instrument evidencing other debt to the Bank or any Affiliate of the Bank.
B. Any representation or warranty made or deemed made by or on behalf of the Borrower or any Subsidiary in or in connection with this Agreement or any other Credit Facility Related Document or any amendment or modification hereof or thereof or waiver hereunder or thereunder, or in any report, certificate, financial statement or other document furnished pursuant to or in connection with this Agreement or any other Credit Facility Related Document or any amendment or modification hereof or thereof or waiver hereunder or thereunder, shall prove to have been materially incorrect when made or deemed made or shall become untrue in violation of Section 8.7 below;
C. The Borrower or any Subsidiary shall fail to observe or perform any covenant, condition or agreement contained in Section 4.2 [Existence] (with respect to such entity’s existence), 4.6(6) [notice of breach of Credit Facility Related Documents] or in Section 5 [Negative Covenants];
D. The Borrower or any Subsidiary shall fail to observe or perform any covenant, condition or agreement contained in this Agreement or any other Credit Facility Related Document (other than those specified in clauses A, B or C above), and such failure shall continue unremedied for a court having jurisdiction period of (i) 5 days after the earlier of Borrower’s or any Subsidiary’s knowledge of such breach or notice thereof from the Bank if such breach relates to terms or provisions of Section 4.1 [Insurance], 4.2 [Existence] (other than with respect to such entity’s existence), 4.3 [Financial Records], 4.5 [Financial Reports], 4.6 [Notices of Claims, Litigation, Defaults, Etc.] (other than Section 4.6(6)), 4.7 [Other Agreements], 4.9 [3.94.9 Grant of Lien; Additional Assurances], or 4.12 [Compliance with Anti-Corruption Laws and Sanctions] of this Agreement or (ii) 15 days after the earlier of any Loan Party’s knowledge of such breach or notice thereof from the Lender if such breach relates to terms or provisions of any other Section of this Agreement or of any other Loan Document;
E. Except as described in Sections 7.1 A. through D. above, any Obligor or any Pledgor: (i) fails to observe or perform or otherwise violates any other term, covenant, condition or agreement of any of the Related Documents; (ii) makes any materially incorrect or misleading representation, warranty, or certificate to the Bank; (iii) makes any materially incorrect or misleading representation in any financial statement or other information delivered to the Bank; or (iv) defaults under the terms of any agreement or instrument relating to any debt for borrowed money (other than the debt evidenced by the Related Documents) and the effect of such default will allow the creditor to declare debt in an outstanding amount of greater than $100,000 in the premises aggregate due before its stated maturity.
F. In the event (i) any Obligor terminates or revokes or purports to terminate or revoke its guaranty of any of the Credit Facility Indebtedness or any Obligor’s guaranty of any of the Credit Facility Indebtedness becomes unenforceable in an involuntary case whole or proceeding in part, (ii) any Obligor fails to perform promptly under its guaranty of any of the Credit Facility Indebtedness, or (iii) any Obligor fails to comply with, or perform under any applicable bankruptcy, insolvency, or reorganization lawagreement, now or hereafter in effect effect, between the Obligor and the Bank, or any Affiliate of the United States Bank or their respective successors and assigns.
G. Any event occurs that would permit the Pension Benefit Guaranty Corporation to terminate any employee benefit plan of any Obligor or any political subdivision thereofSubsidiary of any Obligor.
H. An involuntary proceeding shall be commenced or an involuntary petition shall be filed seeking (i) liquidation, and such decree reorganization or order will have continued unstayed and other relief in effect for a period respect of sixty (60) consecutive calendar days;
(b) the commencement by the Company any Obligor or any of its Subsidiaries or any Pledgor or its debts, or of a voluntary case substantial part of its assets, under any applicable federal, state or foreign bankruptcy, insolvency insolvency, receivership or reorganization law, similar law now or hereafter in effect or (ii) the appointment of a receiver, trustee, custodian, sequestrator, conservator or similar official for any Obligor or any of its Subsidiaries or any Pledgor or for a substantial part of its assets, and, in any such case, such proceeding or petition shall continue undismissed for sixty (60) days or an order or decree approving or ordering any of the United States foregoing shall be entered.
I. Any Obligor or any political subdivision thereof, of its Subsidiaries or the consent by the Company to the entry of a decree or order for relief in an involuntary case or proceeding under any such law;
(c) the Company Pledgor shall (i) becomes insolvent voluntarily commence any proceeding or is unable to pay its debts as they maturefile any petition seeking liquidation, reorganization or other relief under any federal, state or foreign bankruptcy, insolvency, receivership or similar law now or hereafter in effect, (ii) makes consent to the institution of, or fail to contest in a timely and appropriate manner, any proceeding or petition described in clause E of this Section, (iii) apply for or consent to the appointment of a receiver, trustee, custodian, sequestrator, conservator or similar official for such Obligor or any of its Subsidiaries or any Pledgor or for a substantial part of its assets, (iv) file an answer admitting the material allegations of a petition filed against it in any such proceeding, (v) make a general assignment for the benefit of creditors, (iiivi) admits take any action for the purpose of effecting any of the foregoing or (vii) become unable, admit in writing its inability inability, or publicly declare its intention not to, or fail generally, to pay its debts as they maturebecome due.
J. Any Obligor or any of its Subsidiaries, without the Bank’s written consent or as expressly permitted in this Agreement: (i) liquidates or is dissolved; (ii) merges or consolidates with any other Person; (iii) leases, sells or otherwise conveys a material part of its assets or business outside the ordinary course of its business; (iv) ceases to be leases, purchases, or otherwise acquires a bank holding company or financial holding company under the Bank Holding Company Act of 1956, as amended;
(d) the failure material part of the Company assets of any other Person, except in the ordinary course of its business; or (v) agrees to pay any installment of interest on do any of the Subordinated Notes foregoing; provided, however, that any Subsidiary of an Obligor may merge or consolidate with any other Subsidiary of that Obligor, or with the Obligor, so long as the Obligor is the survivor.
(i) One or more judgments for the payment of money in an aggregate amount in excess of $1,000,000 shall be rendered against any Obligor, any Subsidiary or any combination thereof and when the same will become due and payable, and the continuation of such failure shall remain undischarged for a period of fifteen thirty (1530) consecutive calendar days;days during which execution shall not be effectively stayed, or (ii) any action shall be legally taken by a judgment creditor to attach or levy upon any assets of any Obligor or any Subsidiary to enforce any such judgment or any Obligor or any Subsidiary shall fail within thirty (30) days to discharge one or more non-monetary judgments or orders which, individually or in the aggregate, could reasonably be expected to have a materially adverse effect on its business, assets, affairs, prospects or financial condition, which judgments or orders, in any such case, are not stayed on appeal and being appropriately contested in good faith by proper proceedings diligently pursued or (iii) any attachment, seizure, sequestration, levy, or garnishment is issued against any Property of any Obligor or any of its Subsidiaries or of any Pledgor or any Collateral or Property which may be required to become Collateral pursuant to the terms of this Agreement.
(e) L. Except as permitted by the failure terms of the Company relevant security agreement, (i) any security agreement shall for any reason fail to pay all create a valid security interest in any Collateral purported to be covered thereby, or (ii) any Lien securing any Credit Facility Indebtedness at such time as they are required to be secured pursuant to this Agreement shall cease to be a perfected, first priority Lien.
M. Any material provision of any Credit Facility Related Document for any reason ceases to be valid, binding and enforceable in accordance with its terms (or any part Obligor shall challenge the enforceability of the principal any Credit Facility Related Document or shall assert in writing, or engage in any action or inaction that evidences its assertion, that any provision of any of the Subordinated Notes as Credit Facility Related Documents has ceased to be or otherwise is not valid, binding and when the same will become due and payable;enforceable in accordance with its terms).
N. Any material adverse change occurs in: (fi) the liquidation reputation, Property, financial condition, business, assets, affairs, prospects, liabilities, or operations of the Company (for the avoidance of doubt, “liquidation” does not include any merger, consolidation, sale of equity or assets or reorganization (exclusive of a reorganization in bankruptcy) of the Company Obligor or any of its subsidiaries)Subsidiaries; or
(g) the default or breach of the Company to materially perform any other covenant or agreement on the part of the Company contained in the Subordinated Notes and the continuation of such default or breach (without such default or breach having been waived in accordance with the provisions of Section 17) for a period of 90 consecutive calendar days after there has been given to the Company by the Holders of not less than 25.0% in principal amount of the outstanding Subordinated Notes, by registered or certified mail, in the manner set forth in Section 22, a written notice specifying such default or breach and requiring it to be remedied, and stating that such notice is a “Notice of Default” hereunder. Unless the principal of this Subordinated Note already shall have become due and payable, if an Event of Default described in Section 5(a) or Section 5(b) shall have occurred and be continuing, the holder of this Subordinated Note, by notice in writing to Company, may declare the principal amount of this Subordinated Note to be due and payable immediately and, upon any such declaration, the same shall become and shall be immediately due and payable. The Company waives demand, presentment for payment, notice of nonpayment, notice of protest, and all other notices. Notwithstanding the foregoing, because the Company will treat the Subordinated Notes as Tier 2 Capital, upon the occurrence of an Event of Default other than an Event of Default described in Section 5(a) or Section 5(b), the Noteholders may not accelerate the Stated Maturity of the Subordinated Notes and make the principal of, and any accrued and unpaid interest on, the Subordinated Notes, immediately due and payable. The Company, within forty-five (45) calendar days after the receipt of written notice from any Noteholder of the occurrence of an Event of Default with respect to this Subordinated Note, shall mail to all Noteholders, at their addresses shown on the Security Register (as defined in Section 14 below), such written notice of Event of Default, unless such Event of Default shall have been cured or waived before the giving of such notice as certified by the Company in writing. Prior to any acceleration of this Subordinated Note, a Noteholder may waive pursuant to Section 18 below any past Event of Default. In addition, a Noteholder may rescind a declaration of acceleration of this Subordinated Note before any judgment has been obtained if (i) the Company pays all matured installments of principal of and interest on this Subordinated Note (other than installments due by reason of acceleration) and interest on the overdue installments; and (ii) all other Events any Obligor’s or Pledgor’s ability to perform its obligations under the Related Documents; or (iii) the Collateral or Property which may be required to become Collateral pursuant to the terms of Default with respect to this Subordinated Note have been cured or waivedAgreement.
Appears in 1 contract
Sources: Credit Agreement (Bsquare Corp /Wa)
Events of Default; Acceleration. Each If any of the following events shall constitute occur and be continuing (each an “Event of Default”:):
(a) the entry Issuer shall consent to the appointment of a receiver, liquidator, trustee or other similar official in any liquidation, insolvency or similar proceeding with respect to the Issuer or all or substantially all of its property; or
(b) a court or other governmental agency or body having jurisdiction on the premises shall enter a decree or order for relief the appointment of a receiver, liquidator, trustee or other similar official in any liquidation, insolvency or similar proceeding with respect to the Issuer or all or substantially all of the Company by a court having jurisdiction in property of the premises in an involuntary case or proceeding under any applicable bankruptcy, insolvencyIssuer, or reorganization law, now or hereafter in effect for the winding up of the United States affairs or any political subdivision thereof, business of the Issuer and such decree or order will shall have continued unstayed remained in force for 60 days; then, and in effect for a period of sixty (60) consecutive calendar days;
(b) the commencement by the Company of a voluntary case under any applicable bankruptcyeach such case, insolvency or reorganization law, now or hereafter in effect of the United States or any political subdivision thereof, or the consent by the Company to the entry of a decree or order for relief in an involuntary case or proceeding under any such law;
(c) the Company (i) becomes insolvent or is unable to pay its debts as they mature, (ii) makes an assignment for the benefit of creditors, (iii) admits in writing its inability to pay its debts as they mature, or (iv) ceases to be a bank holding company or financial holding company under the Bank Holding Company Act of 1956, as amended;
(d) the failure of the Company to pay any installment of interest on any of the Subordinated Notes as and when the same will become due and payable, and the continuation of such failure for a period of fifteen (15) consecutive calendar days;
(e) the failure of the Company to pay all or any part of the principal of any of the Subordinated Notes as and when the same will become due and payable;
(f) the liquidation of the Company (for the avoidance of doubt, “liquidation” does not include any merger, consolidation, sale of equity or assets or reorganization (exclusive of a reorganization in bankruptcy) of the Company or any of its subsidiaries); or
(g) the default or breach of the Company to materially perform any other covenant or agreement on the part of the Company contained in the Subordinated Notes and the continuation of such default or breach (without such default or breach having been waived in accordance with the provisions of Section 17) for a period of 90 consecutive calendar days after there has been given to the Company by the Holders of not less than 25.0% in principal amount of the outstanding Subordinated Notes, by registered or certified mail, in the manner set forth in Section 22, a written notice specifying such default or breach and requiring it to be remedied, and stating that such notice is a “Notice of Default” hereunder. Unless unless the principal of this Subordinated Note already shall have become due and payable, if an Event of Default described in Section 5(a) or Section 5(b) shall have occurred and be continuing, the holder of this Subordinated Note, by notice in writing to Companythe Issuer and to the Fiscal and Paying Agent, may declare the principal amount of this Subordinated Note to be due and payable immediately and, upon any such declaration, declaration the same shall become and shall be immediately due and payable. The Company Issuer waives demand, presentment for payment, notice of nonpayment, notice of protest, and all other notices. Notwithstanding the foregoingThe Fiscal and Paying Agent, because the Company will treat the Subordinated Notes as Tier 2 Capital, upon the occurrence of an Event of Default other than an Event of Default described in Section 5(a) or Section 5(b), the Noteholders may not accelerate the Stated Maturity of the Subordinated Notes and make the principal of, and any accrued and unpaid interest on, the Subordinated Notes, immediately due and payable. The Company, within forty-five (45) calendar days promptly after the receipt of written notice from the Issuer or any Noteholder other source of the occurrence of an Event of Default with respect to this Subordinated Note, shall mail to all Noteholders, at their addresses shown on the Security Register (as defined in Section 14 below10 of this Note), such written notice of such Event of Default, unless such Event of Default shall have been cured or waived before the giving of such notice as certified by the Company in writingnotice. Prior The Fiscal and Paying Agency Agreement provides that, prior to any acceleration of this Subordinated Note, a Noteholder the Noteholders holding not less than 66 2/3% in aggregate principal amount of the outstanding Subordinated Notes may waive pursuant to Section 18 below any past Event of Default. In addition, a Noteholder the Fiscal and Paying Agency Agreement provides that the Noteholders holding not less than 66 2/3% in aggregate principal amount of the outstanding Subordinated Notes may rescind a declaration of acceleration of this Subordinated Note before any judgment has been obtained if (i) the Company Issuer pays the Fiscal and Paying Agent certain amounts due the Fiscal and Paying Agent plus all matured installments of principal of and interest on this Subordinated Note (other than installments due by reason of acceleration) and interest on the overdue installments; installments and (ii) all other Events of Default with respect to this Subordinated Note have been cured or waived. THE OFFICE OF THE COMPTROLLER OF THE CURRENCY (THE “OCC”) RESERVES THE AUTHORITY, PURSUANT TO 12 CFR 5, TO REQUIRE THAT PREPAYMENTS OF THIS NOTE PRIOR TO THE MATURITY DATE, WHETHER PURSUANT TO AN ACCELERATION UPON AN EVENT OF DEFAULT OR OTHERWISE, RECEIVE THE OCC’S PRIOR APPROVAL BEFORE BEING MADE.
Appears in 1 contract
Sources: Fiscal and Paying Agency Agreement (Valley National Bancorp)
Events of Default; Acceleration. Each Upon the occurrence and during the continuation of any Default, the obligation of Lender to make any additional Loan shall be suspended. The occurrence of any of the following events shall constitute that has not been cured within any applicable cure period or otherwise waived by Lender (each, an “Event of Default”) shall terminate any obligation of Lender to make any additional Loan; and shall, at the option of Lender (1) make all sums of Basic Interest and principal, all Final Payments, and any Obligations and other amounts owing under any Loan Documents immediately due and payable without notice of default, presentment or demand for payment, protest or notice of nonpayment or dishonor or any other notices or demands, and (2) give Lender the right to exercise any other right or remedy provided by contract or applicable law:
(a) the entry of a decree Borrowers shall fail to pay any principal, interest or order for relief in respect of the Company by a court having jurisdiction in the premises in an involuntary case Final Payment under this Agreement or proceeding any Note, or fail to pay any fees or other charges when due under any applicable bankruptcy, insolvency, or reorganization law, now or hereafter in effect of the United States or any political subdivision thereofLoan Document, and such decree failure continues for three (3) Business Days or order will more after the same first becomes due; or an Event of Default as defined in any other Loan Document shall have continued unstayed and in effect for a period of sixty (60) consecutive calendar days;occurred.
(b) the commencement Any representation or warranty made, or financial statement, certificate or other document provided, by the Company of a voluntary case any Borrower under any applicable bankruptcy, insolvency Loan Document to which such entity is a party shall prove to have been false or reorganization law, now misleading in any material respect when made or hereafter in effect of deemed made herein (it being recognized by Lender that projections and estimates as to future events are not to be viewed as facts and that the United States actual results during the period or any political subdivision thereof, or the consent periods covered by the Company to the entry of a decree or order for relief in an involuntary case or proceeding under any such law;projections and estimates may differ from projected or estimated results).
(c) the Company (i) becomes insolvent or is unable Any Borrower shall fail to pay its debts generally as they mature, become due; or (ii) makes or shall commence any Insolvency Proceeding with respect to itself, an assignment involuntary Insolvency Proceeding shall be filed against any Borrower, or a custodian, receiver, trustee, assignee for the benefit of creditors, or other similar official, shall be appointed to take possession, custody or control of the properties of any Borrower, and such involuntary Insolvency Proceeding, petition or appointment is acquiesced to by any Borrower or is not dismissed within forty five (iii45) admits in writing its inability to pay its debts as they maturedays; or the dissolution, winding up, or (iv) ceases termination of the business or cessation of operations of any Borrower; or a Borrower shall take any corporate action for the purpose of effecting, approving, or consenting to be a bank holding company or financial holding company under any of the Bank Holding Company Act of 1956, as amended;foregoing.
(d) Any Borrower shall be in default beyond any applicable period of grace or cure under any other agreement involving the failure borrowing of money, the purchase of property, the advance of credit or any other monetary liability of any kind to Lender or to any Person which results in the acceleration of payment of such obligation in an amount in excess of the Company to pay any installment of interest on any of the Subordinated Notes as and when the same will become due and payable, and the continuation of such failure for a period of fifteen (15) consecutive calendar days;Threshold Amount.
(e) Any governmental or regulatory authority shall take any judicial or administrative action that has, or would reasonably be expected to have, the failure effect of suspending or terminating any material portion of a Borrower’s business; or any defined benefit pension plan maintained by a Borrower shall have any unfunded liabilities in excess of the Company to pay all or any part of the principal of any of the Subordinated Notes as and when the same will become due and payable;Threshold Amount.
(f) the liquidation Except as permitted in Sections 6.4 and 6.5 of this Agreement, any sale, transfer or other disposition of all or a substantial or material part of the Company (for the avoidance assets of doubtany Borrower, “liquidation” does not include including without limitation to any mergertrust or similar entity, consolidation, sale of equity or assets or reorganization (exclusive of a reorganization in bankruptcy) of the Company or any of its subsidiaries); orshall occur.
(g) Any judgment(s) singly or in the default or breach aggregate in excess of the Company to materially perform Threshold Amount shall be entered against any other covenant Borrower which remain unsatisfied, unvacated or agreement on the part of the Company contained unstayed pending appeal in the Subordinated Notes and case of any judgment rendered in a federal court for ten (10) Business Days or more after entry thereof, or in the continuation case of such default any judgment rendered in a state court, for twenty (20) Business Days or breach (without such default or breach having been waived in accordance with the provisions of Section 17) for a period of 90 consecutive calendar more days after there has been given to the Company by the Holders of not less than 25.0% in principal amount of the outstanding Subordinated Notes, by registered or certified mail, in the manner set forth in Section 22, a written notice specifying such default or breach and requiring it to be remedied, and stating that such notice is a “Notice of Default” hereunder. Unless the principal of this Subordinated Note already shall have become due and payable, if an Event of Default described in Section 5(a) or Section 5(b) shall have occurred and be continuing, the holder of this Subordinated Note, by notice in writing to Company, may declare the principal amount of this Subordinated Note to be due and payable immediately and, upon any such declaration, the same shall become and shall be immediately due and payable. The Company waives demand, presentment for payment, notice of nonpayment, notice of protest, and all other notices. Notwithstanding the foregoing, because the Company will treat the Subordinated Notes as Tier 2 Capital, upon the occurrence of an Event of Default other than an Event of Default described in Section 5(a) or Section 5(b), the Noteholders may not accelerate the Stated Maturity of the Subordinated Notes and make the principal of, and any accrued and unpaid interest on, the Subordinated Notes, immediately due and payable. The Company, within forty-five (45) calendar days after the receipt of written notice from any Noteholder of the occurrence of an Event of Default with respect to this Subordinated Note, shall mail to all Noteholders, at their addresses shown on the Security Register (as defined in Section 14 below), such written notice of Event of Default, unless such Event of Default shall have been cured or waived before the giving of such notice as certified by the Company in writing. Prior to any acceleration of this Subordinated Note, a Noteholder may waive pursuant to Section 18 below any past Event of Default. In addition, a Noteholder may rescind a declaration of acceleration of this Subordinated Note before any judgment has been obtained if (i) the Company pays all matured installments of principal of and interest on this Subordinated Note (other than installments due by reason of acceleration) and interest on the overdue installments; and (ii) all other Events of Default with respect to this Subordinated Note have been cured or waivedentry thereof.
Appears in 1 contract
Sources: Loan and Security Agreement (Bacterin International Holdings, Inc.)
Events of Default; Acceleration. Each If any one or more of the ------------------------------- following events shall constitute an “Event (herein called "Events of Default”:") shall occur: -----------------
(a) the entry if an "Event of a decree or order for relief Default" under and as defined in respect any of the Company by a court having jurisdiction Credit Agreements shall have occurred; or
(b) if the Mortgagor shall default in the premises in an involuntary case due and punctual performance or proceeding observance of any of its obligations under any applicable bankruptcySection 1.4, insolvency1.5, ----------- --- 1.7, 1.9, or reorganization law, now 2.1; or hereafter --- --- ---
(c) if the Mortgagor shall fail to duly and punctually perform or comply with any provision of this Mortgage other than the provisions referred to in effect clause (a) or (b) of the United States or any political subdivision thereof, this Section 3.1 and such decree or order will have continued unstayed and in effect default shall --------- - ----------- continue unremedied for a period of sixty (60) consecutive calendar days;
(b) 30 days after the commencement by the Company date that notice of a voluntary case under any applicable bankruptcy, insolvency such nonperformance or reorganization law, now or hereafter in effect of the United States or any political subdivision thereof, or the consent by the Company noncompliance is delivered to the entry of a decree or order for relief in an involuntary case or proceeding under any such law;
(c) the Company (i) becomes insolvent or is unable to pay its debts as they mature, (ii) makes an assignment for the benefit of creditors, (iii) admits in writing its inability to pay its debts as they mature, or (iv) ceases to be a bank holding company or financial holding company under the Bank Holding Company Act of 1956, as amended;Mortgagor; or
(d) if the failure Mortgagor shall, directly or indirectly, voluntarily or involuntarily, by operation of law or otherwise, sell, convey, transfer, assign, grant a security interest in or otherwise dispose of the Company to pay Collateral or any installment of portion thereof or estate or interest on any of the Subordinated Notes as and when the same will become due and payable, and the continuation of such failure for a period of fifteen (15) consecutive calendar days;therein; or
(e) if subsequent to the failure date of this Mortgage the law of the Company State shall be changed by statutory enactment, judicial decision, regulation or otherwise, so as (i) to pay all deduct from the value of land for the purpose of taxation (for state, county, municipal or other purpose) any part lien or charge thereon, or (ii) to change the taxation of deeds of trust, mortgages or debts secured by land or the principal manner of collecting any such taxation, so as to affect this Mortgage, and thereafter, within 30 days following receipt of a written request from the Mortgagee, the Mortgagor shall have failed to enter into a lawful and binding agreement with the Mortgagee, satisfactory in substance and form to the Mortgagee, obligating the Mortgagor to reimburse the Mortgagee for any increase in taxation imposed on the Mortgagee by reason of any of the Subordinated Notes as foregoing; then and when in any such event the same will become due and payable;
(f) the liquidation of the Company (for the avoidance of doubt, “liquidation” does not include Mortgagee may at any merger, consolidation, sale of equity time thereafter exercise any right or assets or reorganization (exclusive of a reorganization in bankruptcy) of the Company or any of its subsidiaries); or
(g) the default or breach of the Company to materially perform any other covenant or agreement on the part of the Company contained in the Subordinated Notes and the continuation of such default or breach (without such default or breach having been waived in accordance with the provisions of Section 17) for a period of 90 consecutive calendar days after there has been given remedy granted to the Company by Mortgagee under the Holders of not less than 25.0% Credit Agreements or the other Loan Documents or available to the Mortgagee at law or in principal amount of the outstanding Subordinated Notesequity including, without limitation, declare, by registered or certified mail, in the manner set forth in Section 22, a written notice specifying such default or breach and requiring it to be remedied, and stating that such notice is a “Notice of Default” hereunder. Unless the principal of this Subordinated Note already shall have become due and payable, if an Event of Default described in Section 5(a) or Section 5(b) shall have occurred and be continuingMortgagor, the holder of this Subordinated Note, by notice in writing to Company, may declare the principal amount of this Subordinated Note Secured Obligations and all other Obligations to be due and payable immediately andor on a date specified in such notice, upon any and on such declaration, date the same shall be and become and shall be immediately due and payable, together with interest accrued thereon, without presentment, demand, protest or notice, all of which the Mortgagor hereby waives. The Company waives demandMortgagor will pay on demand all costs and expenses, presentment for paymentincluding, notice of nonpaymentwithout limitation, notice of protestattorneys' fees and expenses, and all other notices. Notwithstanding the foregoing, because the Company will treat the Subordinated Notes as Tier 2 Capital, upon the occurrence of an Event of Default other than an Event of Default described in Section 5(a) incurred by or Section 5(b), the Noteholders may not accelerate the Stated Maturity on behalf of the Subordinated Notes and make Mortgagee in enforcing this Mortgage or the principal ofSecured Obligations or any other Loan Document, and or occasioned by any accrued and unpaid interest on, the Subordinated Notes, immediately due and payable. The Company, within forty-five (45) calendar days after the receipt of written notice from any Noteholder of the occurrence of an Event of Default with respect to this Subordinated Note, shall mail to all Noteholders, at their addresses shown on the Security Register (as defined in Section 14 below), such written notice of Event of Default, unless such Event of Default shall have been cured default hereunder or waived before the giving of such notice as certified by the Company in writing. Prior to any acceleration of this Subordinated Note, a Noteholder may waive pursuant to Section 18 below any past Event of Default. In addition, a Noteholder may rescind a declaration of acceleration of this Subordinated Note before any judgment has been obtained if (i) the Company pays all matured installments of principal of and interest on this Subordinated Note (other than installments due by reason of acceleration) and interest on the overdue installments; and (ii) all other Events of Default with respect to this Subordinated Note have been cured or waivedthereunder.
Appears in 1 contract
Sources: Mortgage (Aristotle Corp)
Events of Default; Acceleration. Each If any of the following conditions or events shall constitute an “Event ("Events of Default”") shall occur and be continuing:
(a) if the entry of a decree Joint Issuers or order for relief in respect of the Company by a court having jurisdiction Holdings, as guarantor, shall default in the premises in an involuntary case payment of any principal of any Note when the same becomes due and payable, whether at maturity or proceeding under any applicable bankruptcy, insolvency, at a date fixed for prepayment or reorganization law, now by acceleration or hereafter in effect of the United States or any political subdivision thereof, and such decree or order will have continued unstayed and in effect for a period of sixty (60) consecutive calendar days;otherwise; or
(b) if the commencement Joint Issuers or Holdings, as guarantor, shall default in the payment of any interest on any Note (whether by issuance of a Note or payment in cash as required by the Company terms hereof) for more than 5 days after the same becomes due and payable; or
(c) if Holdings or any Joint Issuer shall default in the performance of or compliance with any other material term contained in this Agreement or any other Note Purchase Document and such default shall continue unremedied for 30 days after such failure shall first have become known to any officer of Holdings or written notice thereof shall have been received by Holdings from any holder of any Note; or
(d) if any representation or warranty made in writing by or on behalf of Holdings or any Joint Issuer in this Agreement, any other Note Purchase Document, or in any instrument furnished in compliance with or in reference to this Agreement shall prove to have been false or incorrect in any material respect on the date as of which made; or
(e) if any event shall occur or condition shall exist in respect of any Indebtedness of Holdings or any Joint Issuer in excess of $1,000,000 or under any evidence of any such Indebtedness or of any mortgage, indenture or other agreement relating thereto, the effect of which event or condition is to cause the acceleration of such Indebtedness before its stated maturity or before its regularly scheduled dates of payment; or
(1) An order for relief is entered with respect to Holdings or any Joint Issuer or any such Person commences a voluntary case under any applicable bankruptcy, insolvency or reorganization law, now or hereafter in effect of the United States or any political subdivision thereofBankruptcy Code, or the consent by the Company consents to the entry of a decree or an order for relief in an involuntary case or proceeding to the conversion of an involuntary case to a voluntary case under any such law;law or consents to the appointment of or taking possession by a receiver, trustee or other custodian for all or a substantial part of its property; or
(c2) the Company (i) becomes insolvent Holdings or is unable to pay its debts as they mature, (ii) any Joint Issuer makes an any assignment for the benefit of creditors, (iii) admits in writing its inability to pay its debts as they mature, ; or (iv) ceases to be a bank holding company or financial holding company under the Bank Holding Company Act of 1956, as amended;
(d3) the failure Board of the Company Directors of Holdings or any Joint Issuer adopts any resolution or otherwise authorizes action to pay any installment of interest on approve any of the Subordinated Notes as and when the same will become due and payable, and the continuation of such failure for a period of fifteen (15) consecutive calendar days;
(e) the failure of the Company actions referred to pay all or any part of the principal of any of the Subordinated Notes as and when the same will become due and payable;
(f) the liquidation of the Company (for the avoidance of doubt, “liquidation” does not include any merger, consolidation, sale of equity or assets or reorganization (exclusive of a reorganization in bankruptcy) of the Company or any of its subsidiariesthis subsection 13(f); or
(g1) A court enters a decree or order for relief with respect to Holdings or any Joint Issuer in an involuntary case under the Bankruptcy Code, which decree or order is not stayed or other similar relief is not granted under any applicable federal or state law within sixty (60) days after the entry thereof; or (2) the default or breach continuance of any of the Company to materially perform following events for sixty (60) days or more unless dismissed, bonded or discharged:
(a) an involuntary case is commenced against Holdings or any Joint Issuer under any applicable bankruptcy, insolvency or other covenant similar law now or agreement on hereafter in effect; or (b) a decree or order of a court for the appointment of a receiver, liquidator, sequestrator, trustee, custodian or other officer having similar powers over Holdings or any Joint Issuer or over all or substantial part of its property, is entered; or (c) an interim receiver, trustee or other custodian is appointed without the consent of Holdings or any Joint Issuer, as applicable, for all or a substantial part of the Company contained property of such Person; or (h) A final judgment or judgments in any individual case or in the Subordinated Notes aggregate at any time, in excess of $500,000 (in either case not adequately covered by insurance as to which the insurance company has acknowledged coverage) is entered or filed against Holdings or any Joint Issuer or any of their respective assets and remains undischarged, unvacated, unbonded or unstayed for a period of thirty (30) days or more; or
(1) Holdings or any Joint Issuer fails to make full payment when due of all amounts which, under the continuation provisions of any employee benefit plans or any applicable provisions of the Internal Revenue Code as amended from time to time ("IRC"), such default Person is required to pay as contributions thereto and such failure results in the imposition of a lien on the assets of the Holdings or breach any Joint Issuer; or (without 2) an accumulated funding deficiency in excess of $1,000,000 occurs or exists, whether or not waived, with respect to any Holdings' or any Joint Issuer's employee benefit plans; or (3) any such default employee benefit plans lose their status as a qualified plan under the IRC which results in the imposition of a material lien on the assets of Holdings or breach having been waived any Joint Issuer; or
(j) Any of the Note Purchase Documents for any reason, other than a partial or full release in accordance with the provisions terms thereof, ceases to be in full force and effect or is declared to be null and void, or Holdings or any Joint Issuer denies that it has any further liability under any Note Purchase Document to which it is party, or gives notice to such effect; or
(k) A Change of Control as defined under the Credit Agreement (as in effect on the date hereof) shall occur and be continuing;
(1) upon the occurrence of any Event of Default described in subdivision (f) or (g) of this Section 1713, the unpaid principal amount of and accrued interest on the Notes shall automatically become due and payable immediately; or (2) for a period upon the occurrence of 90 consecutive calendar days after there has been given to the Company by the Holders any other Event of not less than 25.0Default, any holder or holders of 25% or more in principal amount of the Notes at the time outstanding Subordinated Notesmay at any time (unless all Events of Default shall theretofore have been remedied) at its or their option, by registered or certified mail, in the manner set forth in Section 22, a written notice specifying such default or breach and requiring it notices to Holdings as agent for the Joint Issuers, declare all the Notes to be remedied, and stating that such notice is a “Notice of Default” hereunder. Unless the principal of this Subordinated Note already shall have become due and payable, if an Event of Default described in Section 5(a) or Section 5(b) whereupon the same shall have occurred forthwith mature and be continuing, the holder of this Subordinated Note, by notice in writing to Company, may declare the principal amount of this Subordinated Note to be become due and payable immediately and, upon any such declaration, the same shall become and shall be immediately due and payable. The Company waives demand, presentment for payment, notice of nonpayment, notice of protest, and all other notices. Notwithstanding the foregoing, because the Company will treat the Subordinated Notes as Tier 2 Capital, upon the occurrence of an Event of Default other than an Event of Default described in Section 5(a) or Section 5(b), the Noteholders may not accelerate the Stated Maturity of the Subordinated Notes and make the principal of, and any accrued and unpaid interest on, the Subordinated Notes, immediately due and payable. The Company, within forty-five (45) calendar days after the receipt of written notice from any Noteholder of the occurrence of an Event of Default with respect to this Subordinated Note, shall mail to all Noteholders, at their addresses shown on the Security Register (as defined in Section 14 below), such written notice of Event of Default, unless such Event of Default shall have been cured or waived before the giving of such notice as certified by the Company in writing. Prior to any acceleration of this Subordinated Note, a Noteholder may waive pursuant to Section 18 below any past Event of Default. In addition, a Noteholder may rescind a declaration of acceleration of this Subordinated Note before any judgment has been obtained if (i) the Company pays all matured installments of principal of and interest on this Subordinated Note (other than installments due by reason of acceleration) and interest on the overdue installments; and (ii) all other Events of Default with respect to this Subordinated Note have been cured or waivedno Senior Loans are then outstanding.
Appears in 1 contract
Sources: Note Purchase Agreement (Home Products International Inc)
Events of Default; Acceleration. Each If any of the following events shall constitute occur and be continuing (each an “Event of Default”:):
(a) the entry of a decree Issuer or order any major subsidiary depository institution (as defined for relief in respect purposes of the Company by Capital Adequacy Regulations, a court having jurisdiction in the premises in an involuntary case or proceeding under any applicable bankruptcy, insolvency, or reorganization law, now or hereafter in effect “Major Subsidiary Depository Institution”) of the United States or any political subdivision thereof, and such decree or order will have continued unstayed and in effect for a period of sixty (60) consecutive calendar days;
(b) the commencement by the Company of Issuer shall commence a voluntary case under any applicable bankruptcy, insolvency insolvency, liquidation, reorganization or reorganization law, other similar law now or hereafter in effect of the United States or any political subdivision thereofeffect, or the shall consent by the Company to the entry appointment of a receiver, liquidator, trustee or other similar official in any liquidation, insolvency or similar proceeding with respect to Issuer or all or substantially all of its property, or shall make an assignment for the benefit of creditors; or
(b) a court or other governmental agency or body having jurisdiction shall enter a decree or order for relief the appointment of a receiver, liquidator, trustee or other similar official in an involuntary case any liquidation, insolvency or similar proceeding under any with respect to Issuer or a Major Subsidiary Depository Institution of Issuer or all or substantially all of the property of Issuer or a Major Subsidiary Depository Institution of Issuer, or for the winding up of the affairs or business of Issuer or a Major Subsidiary Depository Institution, and such law;decree or order shall have remained in force for 60 days; or
(c) Issuer is notified that it is considered an institution in “troubled condition” within the Company meaning of 12 U.S.C. Section 1831i and the regulations promulgated thereunder; or
(id) Issuer (a) becomes insolvent or is unable to pay its debts as they mature, (iib) makes an assignment for the benefit of creditors, or (iiic) admits in writing its inability to pay its debts as they mature, or (iv) ceases to be a bank holding company or financial holding company under the Bank Holding Company Act of 1956, as amended;
(d) the failure of the Company to pay any installment of interest on any of the Subordinated Notes as and when the same will become due and payable, and the continuation of such failure for a period of fifteen (15) consecutive calendar days;; or
(e) the failure of the Company to pay all or any part of the principal of Issuer materially breaches any of the Subordinated Notes representations, warranties or covenants made by it in the Agreement and such breach continues for 30 days after written notice from the Noteholder to Issuer thereof; provided that if such breach cannot be reasonably cured within such 30 day period, Issuer shall have a reasonable additional period of time, not to exceed an additional 60 days, to cure such breach, as long as it is doing so diligently and when the same will become due and payable;in good faith; or
(f) the liquidation Issuer fails to make any required payment of the Company principal or interest hereunder when due and payable (for the avoidance of doubt, “liquidation” does not include any merger, consolidation, sale of equity or assets or reorganization (exclusive of a reorganization in bankruptcy) of the Company or any of its subsidiaries); or
(g) the default or breach of the Company to materially perform any other covenant or agreement on the part of the Company contained in the Subordinated Notes and the continuation of such default or breach (without such default or breach having been waived in accordance with the provisions of Section 17) for a period of 90 consecutive calendar days after there has been given to the Company by the Holders of not less than 25.0% in principal amount of the outstanding Subordinated Notes, by registered or certified mailand, in the manner set forth case of payment of interest, such failure to pay shall have continued for 30 calendar days); then, in Section 22the case of an Event of Default described in the foregoing clauses (a) or (b), a written notice specifying such default or breach and requiring it to be remedied, and stating that such notice is a “Notice of Default” hereunder. Unless unless the principal of this Subordinated Note already shall have become due and payable, if an Event of Default described in Section 5(a) or Section 5(b) shall have occurred and be continuing, the holder Noteholder of this Subordinated Note, by notice in writing to CompanyIssuer, may declare the principal amount of this Subordinated Note to be due and payable immediately and, upon any such declaration, declaration the same shall become and shall be immediately due and payable. The Company Issuer waives demand, presentment for payment, notice of nonpayment, notice of protest, and all other notices. Notwithstanding the foregoing, because the Company will treat the Subordinated Notes as Tier 2 Capital, upon the occurrence of an Event of Default other than an Event of Default described in Section 5(a) or Section 5(b), the Noteholders may not accelerate the Stated Maturity of the Subordinated Notes and make the principal of, and any accrued and unpaid interest on, the Subordinated Notes, immediately due and payable. The Company, within forty-five (45) calendar days after the receipt of written notice from any Noteholder of the occurrence of an Event of Default with respect to this Subordinated Note, shall mail to all Noteholders, at their addresses shown on the Security Register (as defined in Section 14 below), such written notice of Event of Default, unless such Event of Default shall have been cured or waived before the giving of such notice as certified by the Company in writing. Prior to any acceleration of this Subordinated Note, a Noteholder may waive pursuant to Section 18 below any past Event of Default. In addition, a Noteholder may rescind a declaration of acceleration of this Subordinated Note before any judgment has been obtained if (i) the Company pays all matured installments of principal of and interest on this Subordinated Note (other than installments due by reason of acceleration) and interest on the overdue installments; and (ii) all other Events of Default with respect to this Subordinated Note have been cured or waived.
Appears in 1 contract
Events of Default; Acceleration. Each Upon the occurrence and during the continuation of any Event of Default, the obligation of each Lender to make any additional Loan shall be suspended. The occurrence and continuation of any of the following events shall constitute (each, an “Event of Default”) shall at the option of Agent, at the direction of Lenders (1) make all sums of Basic Interest and principal, as well as any other Obligations and amounts owing under any Loan Documents, immediately due and payable without notice of default, presentment or demand for payment, protest or notice of nonpayment or dishonor or any other notices or demands, and (2) give Agent the right to exercise any other right or remedy provided by contract or applicable law:
(a) the entry of a decree Borrower shall fail to pay any principal or order for relief in respect of the Company by a court having jurisdiction in the premises in an involuntary case interest under this Agreement or proceeding any Note, or fail to pay any fees or other charges when due under any applicable bankruptcy, insolvency, or reorganization law, now or hereafter in effect of the United States or any political subdivision thereofLoan Document, and such decree failure continues for three (3) Business Days or order will more after the same first becomes due; or an Event of Default under any other Loan Document shall have continued unstayed and in effect for a period of sixty (60) consecutive calendar days;occurred.
(b) the commencement Any representation or warranty made, or financial statement, certificate or other document provided, by the Company of a voluntary case Borrower or any other Loan Party under any applicable bankruptcy, insolvency Loan Document shall prove to have been false or reorganization law, now misleading in any material respect when made or hereafter in effect of the United States or any political subdivision thereof, or the consent by the Company to the entry of a decree or order for relief in an involuntary case or proceeding under any such law;deemed made herein.
(c) the Company If there occurs any circumstance or circumstances that could reasonably be expected to have a Material Adverse Effect.
(i) becomes insolvent or is unable any Loan Party shall fail to pay its debts generally as they mature, become due; or (ii) makes any Loan Party shall commence any Insolvency Proceeding with respect to itself, an assignment involuntary Insolvency Proceeding shall be filed against any Loan Party, or a custodian, receiver, trustee, assignee for the benefit of creditors, or other similar official, shall be appointed to take possession, custody or control of the properties of any Loan Party, and such involuntary Insolvency Proceeding, petition or appointment is acquiesced to by such Loan Party or is not dismissed within forty five (45) days; or (iii) admits in writing its inability the dissolution, winding up, or termination of the business or cessation of operations of any Loan Party (including any transaction or series of related transactions deemed to pay its debts as they maturebe a liquidation, dissolution or winding up of such Loan Party pursuant to the provisions of such Loan Party’s charter documents); or (iv) ceases any Loan Party shall take any corporate action for the purpose of effecting, approving, or consenting to be a bank holding company or financial holding company under the Bank Holding Company Act of 1956, as amended;
(d) the failure of the Company to pay any installment of interest on any of the Subordinated Notes as and when the same will become due and payable, and the continuation of such failure for a period of fifteen (15) consecutive calendar days;foregoing.
(e) the failure Borrower or any other Loan Party shall be in default beyond any applicable period of grace or cure under any other agreement involving Indebtedness owed to any Person in an amount in excess of the Company Threshold Amount (i) resulting in a right by any Person to pay all accelerate or cause such Indebtedness to become due prior to its scheduled maturity or (ii) that enables or permits (with or without the giving of notice, the lapse of time or both) the holder or holders of such Indebtedness or any part of trustee or agent on its or their behalf to cause such Indebtedness to become due, or to require the principal of any of the Subordinated Notes as and when the same will become due and payable;prepayment, repurchase, redemption or defeasance thereof, prior to its scheduled maturity.
(f) the liquidation of the Company (for the avoidance of doubtAny governmental or regulatory authority shall take any judicial or administrative action, “liquidation” does not include any merger, consolidation, sale of equity or assets or reorganization (exclusive of a reorganization in bankruptcy) of the Company or any defined benefit pension plan maintained by Borrower or any other Loan Party shall have any unfunded liabilities, any of its subsidiaries); orwhich, in the reasonable judgment of Agent and each Lender, could reasonably be expected to have a Material Adverse Effect.
(g) the default Any sale, transfer or breach other disposition of the Company to materially perform any other covenant all or agreement on the a substantial or material part of the Company contained assets of Borrower or any other Loan Party, including without limitation to any trust or similar entity, shall occur.
(h) Any judgment(s) singly or in the Subordinated Notes and aggregate in excess of the continuation of such default Threshold Amount shall be entered against Borrower or breach any other Loan Party which remain unsatisfied, unvacated or unstayed pending appeal for thirty (without such default 30) or breach having been waived in accordance with the provisions of Section 17) for a period of 90 consecutive calendar more days after there has been given entry thereof (to the Company extent not covered by independent third-party insurance as to which the Holders of insurer does not less than 25.0% in principal amount of the outstanding Subordinated Notes, by registered or certified mail, in the manner set forth in Section 22, a written notice specifying such default or breach and requiring it to be remedied, and stating that such notice is a “Notice of Default” hereunder. Unless the principal of this Subordinated Note already shall have become due and payable, if an Event of Default described in Section 5(a) or Section 5(b) shall have occurred and be continuing, the holder of this Subordinated Note, by notice in writing to Company, may declare the principal amount of this Subordinated Note to be due and payable immediately and, upon any such declaration, the same shall become and shall be immediately due and payable. The Company waives demand, presentment for payment, notice of nonpayment, notice of protest, and all other notices. Notwithstanding the foregoing, because the Company will treat the Subordinated Notes as Tier 2 Capital, upon the occurrence of an Event of Default other than an Event of Default described in Section 5(a) or Section 5(bdispute coverage), the Noteholders may not accelerate the Stated Maturity of the Subordinated Notes and make the principal of, and any accrued and unpaid interest on, the Subordinated Notes, immediately due and payable. The Company, within forty-five (45) calendar days after the receipt of written notice from any Noteholder of the occurrence of an Event of Default with respect to this Subordinated Note, shall mail to all Noteholders, at their addresses shown on the Security Register (as defined in Section 14 below), such written notice of Event of Default, unless such Event of Default shall have been cured or waived before the giving of such notice as certified by the Company in writing. Prior to any acceleration of this Subordinated Note, a Noteholder may waive pursuant to Section 18 below any past Event of Default. In addition, a Noteholder may rescind a declaration of acceleration of this Subordinated Note before any judgment has been obtained if .
(i) the Company pays all matured installments Borrower or any other Loan Party shall fail to perform or observe any covenant contained in Article 6 of principal of and interest on this Subordinated Note Agreement.
(j) Borrower or any other Loan Party shall fail to perform or observe any covenant contained in Article 5 or elsewhere in this Agreement or any other Loan Document (other than installments due by reason a covenant which is dealt with specifically elsewhere in this Article 7) and, if capable of accelerationbeing cured, the breach of such covenant is not cured within ten (10) Business Days after the sooner to occur of such Loan Party’s receipt of notice of such breach from Agent or the date on which such breach first becomes known to any officer of such Loan Party (the “Notice Date”); provided, however that if such breach is not capable of being cured within such 10-Business Day period and interest on Borrower timely notifies Agent of such fact and Borrower or such other Loan Party diligently pursues such cure, then the overdue installments; cure period shall be extended to the date requested in such Loan Party’s notice but in no event more than thirty (30) Business Days from the Notice Date.
(k) Borrower shall fail to retain direct or indirect ownership of at least 50% of the economic and (ii) all other Events voting equity interests of Default with respect to this Subordinated Note have been cured Beyond Cancer or waivedIPO Co., as applicable, at any time.
Appears in 1 contract
Events of Default; Acceleration. Each If one or more of the following events shall constitute an (herein called “Event Events of Default”:) shall occur for any reason whatsoever (and whether such occurrence shall be voluntary or involuntary or be effected by operation of law or pursuant to any judgment, decree or order of any court or any order, rule or regulation of any administrative or governmental body):
(a) default in the entry payment of any interest upon the Note when such interest becomes due and payable; or
(b) default in the payment of principal of (or Prepayment Price, if any, on) the Note when and as the same shall become due and payable, whether at maturity or at a decree date fixed for principal payment or prepayment (including, without limitation, a principal payment or prepayment as provided in Section 5.1 or Section 5.2), or by acceleration or otherwise; or
(c) default in the performance or observance of any other covenant, agreement or condition contained herein, or in the Note or Deeds of Trust, or any other document or instrument relating to the Loan, and such non-monetary default shall not have been cured by either an irrevocable cash equity injection in an amount necessary to cure such non-monetary default or by other means acceptable to you on or before the expiration of forty-five (45) days from the date of occurrence thereof; provided, that notwithstanding anything to the contrary in this Agreement, the Note or the Collateral Documents, if such non-monetary default is not cured by the fifteenth (15) Business Day after the occurrence thereof, you may charge interest at the Default Rate; or
(d) any Borrower or any Subsidiary shall not pay when due, whether by acceleration or otherwise, any evidence of indebtedness of such Borrower or such Subsidiary (other than the Note), or any condition or default shall exist under any such evidence of indebtedness or under any agreement under which the same may have been issued permitting such evidence of indebtedness to become or be declared due prior to the stated maturity thereof; or
(e) any Borrower or any Subsidiary shall file a petition seeking relief for itself under Title 11 of the United States Code, as now constituted or hereafter amended, or an answer consenting to, admitting the material allegations of or otherwise not controverting, or shall fail to timely controvert, a petition filed against such Borrower or such Subsidiary seeking relief under Title 11 of the United States Code, as now constituted or hereafter amended; or any Borrower or any Subsidiary shall file such a petition or answer with respect to relief under the provisions of any other now existing or future bankruptcy, insolvency or other similar law of the United States of America or any State thereof or of any other country or jurisdiction providing for the reorganization, winding-up or liquidation of Entities or an arrangement, composition, extension or adjustment with creditors; or
(f) a court of competent jurisdiction shall enter an order for relief in respect which is not stayed within 60 days from the date of entry thereof against any Borrower or any Subsidiary under Title 11 of the Company United States Code, as now constituted or hereafter amended; or there shall be entered an order, judgment or decree by operation of law or by a court having jurisdiction in the premises in an involuntary case which is not stayed within 60 days from the date of entry thereof adjudging any Borrower or proceeding any Subsidiary a bankrupt or insolvent, or ordering relief against any Borrower or any Subsidiary, or approving as properly filed a petition seeking relief against any Borrower or any Subsidiary, under the provisions of any applicable other now existing or future bankruptcy, insolvency, insolvency or reorganization law, now or hereafter in effect other similar law of the United States of America or any political subdivision thereofState thereof or of any other country or jurisdiction providing for the reorganization, and such decree winding-up or order will have continued unstayed and in effect for liquidation of Entities or Persons or an arrangement, composition, extension or adjustment with creditors, or appointing a period receiver, liquidator, assignee, sequestrator, trustee, custodian or similar official of sixty (60) consecutive calendar days;
(b) the commencement by the Company of a voluntary case under any applicable bankruptcy, insolvency or reorganization law, now or hereafter in effect of the United States Borrower or any political subdivision thereofSubsidiary or of any substantial part of its property, or ordering the consent by the Company to the entry reorganization, winding-up or liquidation of a decree its affairs; or order for relief in an any involuntary case petition against any Borrower or proceeding under any such law;
(c) the Company (i) becomes insolvent or is unable to pay its debts as they mature, (ii) makes an assignment for the benefit of creditors, (iii) admits in writing its inability to pay its debts as they mature, or (iv) ceases to be a bank holding company or financial holding company under the Bank Holding Company Act of 1956, as amended;
(d) the failure of the Company to pay any installment of interest on Subsidiary seeking any of the Subordinated Notes as and when the same will become due and payable, and the continuation of such failure for a period of fifteen (15) consecutive calendar days;
(e) the failure of the Company to pay all or any part of the principal of any of the Subordinated Notes as and when the same will become due and payable;
(f) the liquidation of the Company (for the avoidance of doubt, “liquidation” does relief specified in this clause shall not include any merger, consolidation, sale of equity or assets or reorganization (exclusive of a reorganization in bankruptcy) of the Company or any be dismissed within 60 days of its subsidiaries)filing; or
(g) any Borrower or any Subsidiary shall make a general assignment for the default benefit of its creditors; or breach any Borrower or any Subsidiary shall consent to the appointment of or taking possession by a receiver, liquidator, assignee, sequestrator, trustee, custodian or similar official of such Borrower or such Subsidiary or of all or any substantial part of its property; or any Borrower or any Subsidiary shall have admitted to its insolvency or inability to pay, or shall have failed to pay, its debts generally as such debts become due; or any Borrower or any Subsidiary or its directors or majority members shall take any action to dissolve or liquidate such Borrower or such Subsidiary (other than as contemplated by Section 7.6(a)); or
(h) any Borrower or any Subsidiary shall (1) engage in any non-exempted “prohibited transaction,” as defined in Sections 406 and 408 of ERISA and Section 4975 of the Company Internal Revenue Code of 1986, as amended, (2) incur any “accumulated funding deficiency,” as defined in Section 302 of ERISA, in an amount in excess of $10,000, whether or not waived, or (3) terminate or permit the termination of an “employee pension benefit plan,” as defined in Section 3 of ERISA, in a manner which could result in the imposition of a Lien on any property of such Borrower or such Subsidiary pursuant to materially perform Section 4068 of ERISA securing an amount in excess of $10,000; or
(i) any other covenant representation or agreement on warranty made by the part Borrowers in Section 2 hereof or in any Collateral Document or in any certificate or instrument furnished in connection therewith shall prove to have been false or misleading in any respect as of the Company contained in date made; or
(j) the Subordinated Notes and dissolution of any of the continuation Borrowers or any Subsidiary, whether by operation of such default law or breach otherwise (without such default other than as may be permitted under Section 7.6(a) above, or breach having been waived in accordance with a dissolution resulting from a transfer by will or intestate succession); then the provisions of Section 17) for a period of 90 consecutive calendar days after there has been given to the Company by the Holders of not less than 25.0% in entire outstanding principal amount of the Note, together with (1) all accrued but unpaid interest on the outstanding Subordinated Notesprincipal amount of the Note, by registered or certified mail(2) an amount equal to the Prepayment Price, computed as provided in Sections 5.1 and 5.2 (except that, for purposes of such computation, the manner set forth in Section 22, a written notice specifying such default or breach and requiring it Prepayment Date shall be deemed to be remedied, and stating that such notice is a “Notice of Default” hereunder. Unless the principal of this Subordinated Note already shall have become due and payable, if an Event of Default described in Section 5(a) or Section 5(b) shall have occurred and be continuing, date upon which the holder of this Subordinated Note, by notice in writing to Company, may declare the principal amount of this Subordinated Note shall have declared the Note to be due and payable), and (3) accrued interest on all of the foregoing computed at the Overdue Interest Rate from and after the date of the Event of Default, shall immediately become due and payable immediately and, upon any such declaration, without notice or demand to the same shall become and Borrowers. The Borrowers shall be obligated to notify you, in accordance with Section 10.6, below, immediately due and payable. The Company waives demand, presentment for payment, notice of nonpayment, notice of protest, and all other notices. Notwithstanding the foregoing, because the Company will treat the Subordinated Notes as Tier 2 Capital, upon the occurrence of any event, act, or omission constituting an Event of Default Default, other than an Event of Default described in Section 5(apursuant to Sections 9.1(a) or Section 5(b(b), above. The Borrowers hereby expressly acknowledge and agree (i) that the Noteholders may not accelerate the Stated Maturity Prepayment Price provided for in this Agreement is reasonable, (ii) that legal counsel of the Subordinated Notes and make Borrowers’ own choosing has advised the principal of, and any accrued and unpaid interest on, the Subordinated Notes, immediately due and payable. The Company, within forty-five (45) calendar days after the receipt of written notice from any Noteholder of the occurrence of an Event of Default Borrowers with respect to this Subordinated such Prepayment Price, (iii) that any prepayment made at a time when it is otherwise restricted under the Note will result in material loss and damage to the holder of the Note, shall mail requiring such holder to all Noteholderssecure reinvestments at additional costs which might not produce the same economic benefit to such holder as the economic benefits under the Note, at their addresses shown on (iv) that the Security Register (as defined in Section 14 below), such written notice of Event of Default, unless such Event of Default shall have been cured or waived before the giving foregoing Prepayment Price is a reasonable estimate of such notice loss and damage, and (v) the Borrowers shall be estopped hereafter from claiming differently as certified by the Company in writing. Prior to any acceleration of this Subordinated Notethe foregoing. The foregoing Prepayment Price is not intended to be a penalty, a Noteholder may waive pursuant but instead shall serve as liquidated damages to Section 18 below any past Event provide you with the benefit of Default. In addition, a Noteholder may rescind a declaration of acceleration of this Subordinated Note before any judgment has been obtained if (i) the Company pays all matured installments of principal of and interest on this Subordinated Note (other than installments due by reason of acceleration) and interest on the overdue installments; and (ii) all other Events of Default with respect to this Subordinated Note have been cured or waivedyour bargain.
Appears in 1 contract
Sources: Loan Agreement (Green Plains Renewable Energy, Inc.)
Events of Default; Acceleration. Each of the following events shall constitute is hereby defined as, and is declared to be and to constitute, an “"Event of Default”" hereunder:
(a) Failure by the entry of a decree Borrower to make or order for relief in respect of cause to be made any payment required to be made under Section 4.2 hereof on or before the Company by a court having jurisdiction in date the premises in an involuntary case or proceeding under any applicable bankruptcy, insolvency, or reorganization law, now or hereafter in effect of the United States or any political subdivision thereof, and such decree or order will have continued unstayed and in effect for a period of sixty (60) consecutive calendar days;same is due.
(b) the commencement Failure or refusal by the Company of a voluntary case under any applicable bankruptcy, insolvency or reorganization law, now or hereafter in effect of the United States or any political subdivision thereof, or the consent by the Company Borrower to the entry of a decree or order for relief in an involuntary case or proceeding under any such law;
(c) the Company (i) becomes insolvent or is unable to pay its debts as they mature, (ii) makes an assignment for the benefit of creditors, (iii) admits in writing its inability to pay its debts as they mature, or (iv) ceases to be a bank holding company or financial holding company under the Bank Holding Company Act of 1956, as amended;
(d) the failure of the Company to pay any installment of interest on comply with any of the Subordinated Notes as and when the same will become due and payableits other covenants, conditions or agreements hereunder, and the continuation of such failure or refusal shall continue for a period of fifteen (15) consecutive calendar days;days after written notice thereof has been given to the Borrower by the Purchaser, the Escrow Agent or the Authority.
(ec) The Borrower shall have applied for or consented to the failure appointment of a custodian, receiver, trustee or liquidator of all or a substantial part of its assets; a custodian shall have been appointed with or without consent of the Company to pay Borrower; the Borrower shall generally not be paying its debts as they become due; the Borrower shall have made a general assignment for the benefit of creditors; the Borrower shall have filed a voluntary petition in bankruptcy, or a petition or an answer seeking reorganization or an arrangement with creditors, or has taken advantage of any insolvency law, or has filed an answer admitting the material allegations of a petition in a bankruptcy, reorganization or insolvency proceeding; a petition in bankruptcy shall have been filed against the Borrower and shall not have been dismissed for a period of one hundred twenty (120) consecutive days, or if an order for relief has been entered under the Bankruptcy Code; or an order, judgment or decree shall have been entered without the application, approval or consent of the Borrower by any court of competent jurisdiction appointing a receiver, trustee, custodian or liquidator of the Borrower of a substantial part of its respective assets, and such order, judgment or decree shall have continued unstayed and in effect for any period of one hundred twenty (120) consecutive days.
(d) A writ of execution or attachment or any similar process shall be issued or levied against all or any part of or interest in any of the principal properties or assets of the Borrower or any judgment involving monetary damages shall be entered against the Borrower, which shall become a lien on the Borrower's properties or assets or any portion thereof or interest therein, and such execution, attachment or similar process is not released, bonded, satisfied, vacated or stayed within one hundred twenty (120) days after its entry or levy, and said writ of execution, attachment, levy or judgment shall involve monetary damages aggregating more than $100,000.
(e) Seizure or foreclosure of any of the Subordinated Notes as and when properties or assets of the same will become due and payable;Borrower pursuant to process of law or in respect of legal self-help, involving monetary damages.
(f) The transfer of title to the liquidation Project Equipment or any part thereof (in one or more transactions) for any reason and to any party without the prior express written consent of the Company (for Authority and the avoidance of doubt, “liquidation” does not include any merger, consolidation, sale of equity or assets or reorganization (exclusive of a reorganization in bankruptcy) of the Company or any of its subsidiaries); orPurchaser.
(g) Any substantial change in the default nature or breach character of the Company to materially perform any other business or the voluntary permanent closing of business or cessation of operations of the Borrower.
(h) Any representation, covenant or agreement on warranty made by the part Borrower in any Bond Document shall prove to have been false, incorrect or misleading in any material respect as of the Company contained in the Subordinated Notes and the continuation of such default date made, or breach (without such default or breach having been waived in accordance with the provisions of Section 17) for a period of 90 consecutive calendar days after there has been given to the Company failure by the Holders Borrower to observe any such covenant.
(i) An event of not less than 25.0% in principal amount of the outstanding Subordinated Notes, by registered or certified mail, in the manner set forth in Section 22, a written notice specifying such default or breach and requiring it to be remedied, and stating that such notice is a “Notice of Default” hereunder. Unless the principal of this Subordinated Note already shall have become due and payable, if an Event of Default described in Section 5(a) or Section 5(b) shall have occurred under any of the Bond Documents.
(j) An event of default shall have occurred under any other loans, contracts or agreements of the Borrower entered into with the Purchaser.
(k) A breach by the Borrower of any term, covenant, condition, obligation or agreement under any Bond Document.
(l) Any additional financing on the Project is obtained without the prior express written consent of the Authority and be continuingthe Purchaser, other than a refinancing of the holder Existing Equipment which is subordinate to the Bond.
(m) Any Change of this Subordinated NoteControl of the Borrower, except as permitted herein.
(n) The dissolution or reorganization of the Borrower or a default under Section 1.7(e) hereof.
(o) Default by notice the Borrower in writing to Company, may declare any of the principal amount terms or conditions of this Subordinated Note to be due and payable immediately and, upon any such declaration, agreement covering the same shall become and shall be immediately due and payable. The Company waives demand, presentment for payment, notice payment of nonpayment, notice borrowed money in excess of protest, and all other notices. Notwithstanding $50,000.
(p) A material deterioration in the foregoing, because financial condition of the Company will treat the Subordinated Notes as Tier 2 Capital, upon Borrower or the occurrence of an Event of Default other than an Event of Default described any event, which in Section 5(a) or Section 5(b), the Noteholders may not accelerate the Stated Maturity sole opinion of the Subordinated Notes and make Purchaser, impairs the principal of, and any accrued and unpaid interest on, the Subordinated Notes, immediately due and payable. The Company, within forty-five (45) calendar days after the receipt of written notice from any Noteholder financial responsibility of the occurrence of an Event of Default with respect to this Subordinated Note, shall mail to all Noteholders, at their addresses shown on the Security Register (as defined in Section 14 below), such written notice of Event of Default, unless such Event of Default shall have been cured or waived before the giving of such notice as certified by the Company in writing. Prior to any acceleration of this Subordinated Note, a Noteholder may waive pursuant to Section 18 below any past Event of Default. In addition, a Noteholder may rescind a declaration of acceleration of this Subordinated Note before any judgment has been obtained if (i) the Company pays all matured installments of principal of and interest on this Subordinated Note (other than installments due by reason of acceleration) and interest on the overdue installments; and (ii) all other Events of Default with respect to this Subordinated Note have been cured or waivedBorrower.
Appears in 1 contract
Sources: Bond Agreement (Foilmark Inc)
Events of Default; Acceleration. Each Upon the occurrence and during the continuation of any Default, the obligation of Lender to make any additional Loan shall be suspended. The occurrence of any of the following events shall constitute (each, an “"Event of Default”") shall terminate any obligation of Lender to make any additional Loan; and shall, at the option of Lender (1) make all sums of Basic Interest and principal, all Terminal Payments, and any Obligations and other amounts owing under any Loan Documents immediately due and payable without notice of default, presentment or demand for payment, protest or notice of nonpayment or dishonor or any other notices or demands, and (2) give Lender the right to exercise any other right or remedy provided by contract or applicable law:
(a) the entry of a decree Borrower shall fail to pay any principal, interest or order for relief in respect of the Company by a court having jurisdiction in the premises in an involuntary case Terminal Payment under this Agreement or proceeding any Note, or fail to pay any fees or other charges when due under any applicable bankruptcy, insolvency, or reorganization law, now or hereafter in effect of the United States or any political subdivision thereofLoan Document, and such decree failure continues for three (3) Business Days or order will more after the same first becomes due; or an Event of Default as defined in any other Loan Document shall have continued unstayed and in effect for a period of sixty (60) consecutive calendar days;occurred.
(b) the commencement Any representation or warranty made, or financial statement, certificate or other document provided, by the Company of a voluntary case Borrower under any applicable bankruptcy, insolvency Loan Document shall prove to have been false or reorganization law, now misleading in any material respect when made or hereafter in effect of the United States or any political subdivision thereof, or the consent by the Company to the entry of a decree or order for relief in an involuntary case or proceeding under any such law;deemed made herein.
(c) the Company (i) becomes insolvent or is unable Borrower shall fail to pay its debts generally as they maturebecome due or shall commence any Insolvency Proceeding with respect to itself; an involuntary Insolvency Proceeding shall be filed against Borrower, (ii) makes an assignment or a custodian, receiver, trustee, assignee for the benefit of creditors, or other similar official, shall be appointed to take possession, custody or control of the properties of Borrower, and such involuntary Insolvency Proceeding, petition or appointment is acquiesced to by Borrower or is not dismissed within sixty (iii60) admits in writing its inability to pay its debts as they mature, days; or (iv) ceases to be a bank holding company the dissolution or financial holding company under termination of the Bank Holding Company Act business of 1956, as amended;Borrower.
(d) Borrower shall be in default beyond any applicable period of grace or cure under any other agreement involving the failure borrowing of money, the Company purchase of property, the advance of credit or any other monetary liability of any kind to pay Lender or to any installment Person which results in the acceleration of interest on any of the Subordinated Notes as and when the same will become due and payable, and the continuation payment of such failure for a period obligation in an amount in excess of fifteen Two Hundred Fifty Thousand Dollars (15) consecutive calendar days;$250,000).
(e) the failure of the Company to pay all Any governmental or regulatory authority shall take any judicial or administrative action, or any part defined benefit pension plan maintained by Borrower shall have any unfunded liabilities, any of which, in the principal reasonable judgment of Lender, might have a Material Adverse Effect; provided, however, that the following administrative actions shall not constitute a "Material Adverse Effect" for purposes of this Section 7.1(e): (i) any administrative inspection or receipt of a report of observations (e.g., FDA form 483) or notice of violation following an administrative inspection of Borrower's facilities, operations or clinical trial activities by a regulatory authority; (ii) receipt of a warning letter or similar notice of violation of applicable laws or regulations; (iii) initiation of a voluntary or regulatory authority-initiated product recall, product retrieval, market withdrawal, product detention, or seizure; (iv) delay or denial of any request by Borrower for approval of a product, product license application, investigational new drug (IND) application, or the Subordinated Notes as and when like; (v) the same will become due and payable;debarment or disqualification of any investigator, institution or institutional review board involved in any of Borrower's clinical trials; (vi) receipt of a request for information, clarification, or additional data fro any regulatory authority; or (vii) a company or regulatory agency-initiated hold or discontinuation of enrollment in any of Borrower's clinical trials.
(f) the liquidation Any sale, transfer or other disposition of all or a substantial or material part of the Company (for the avoidance assets of doubtBorrower, “liquidation” does not include including without limitation to any mergertrust or similar entity, consolidation, sale of equity or assets or reorganization (exclusive of a reorganization in bankruptcy) of the Company or any of its subsidiaries); orshall occur.
(g) the default Any judgment(s) singly or breach of the Company to materially perform any other covenant or agreement on the part of the Company contained in the Subordinated Notes and the continuation aggregate in excess of such default Two Hundred Fifty Thousand Dollars ($250,000) shall be entered against Borrower which remain unsatisfied, unvacated or breach unstayed pending appeal for thirty (without such default 30) or breach having been waived in accordance with the provisions of Section 17) for a period of 90 consecutive calendar more days after there has been given to the Company by the Holders of not less than 25.0% in principal amount of the outstanding Subordinated Notes, by registered or certified mail, in the manner set forth in Section 22, a written notice specifying such default or breach and requiring it to be remedied, and stating that such notice is a “Notice of Default” hereunder. Unless the principal of this Subordinated Note already shall have become due and payable, if an Event of Default described in Section 5(a) or Section 5(b) shall have occurred and be continuing, the holder of this Subordinated Note, by notice in writing to Company, may declare the principal amount of this Subordinated Note to be due and payable immediately and, upon any such declaration, the same shall become and shall be immediately due and payable. The Company waives demand, presentment for payment, notice of nonpayment, notice of protest, and all other notices. Notwithstanding the foregoing, because the Company will treat the Subordinated Notes as Tier 2 Capital, upon the occurrence of an Event of Default other than an Event of Default described in Section 5(a) or Section 5(b), the Noteholders may not accelerate the Stated Maturity of the Subordinated Notes and make the principal of, and any accrued and unpaid interest on, the Subordinated Notes, immediately due and payable. The Company, within forty-five (45) calendar days after the receipt of written notice from any Noteholder of the occurrence of an Event of Default with respect to this Subordinated Note, shall mail to all Noteholders, at their addresses shown on the Security Register (as defined in Section 14 below), such written notice of Event of Default, unless such Event of Default shall have been cured or waived before the giving of such notice as certified by the Company in writing. Prior to any acceleration of this Subordinated Note, a Noteholder may waive pursuant to Section 18 below any past Event of Default. In addition, a Noteholder may rescind a declaration of acceleration of this Subordinated Note before any judgment has been obtained if (i) the Company pays all matured installments of principal of and interest on this Subordinated Note (other than installments due by reason of acceleration) and interest on the overdue installments; and (ii) all other Events of Default with respect to this Subordinated Note have been cured or waivedentry thereof.
Appears in 1 contract
Events of Default; Acceleration. Each If one or more of the following events shall constitute an “Event (herein called "Events of Default”:
") shall occur for any reason whatsoever (a) the entry and whether such occurrence shall be voluntary or involuntary or be effected by operation of a law or pursuant to any judgment, decree or order of any court or any order, rule or regulation of any administrative or governmental body):
A. default in the payment of any interest upon the Note when such interest becomes due and payable, and such default shall have continued for relief a period of ten days; or
B. default in respect the payment of principal of (or prepayment premium, if any, on) the Note when and as the same shall become due and payable, whether at maturity or at a date fixed for principal payment or prepayment (including, without limitation, a principal payment or prepayment as provided in Section 6.1 or Section 6.2), or by acceleration or otherwise, and such default shall have continued for a period of ten days; or
C. default in the performance or observance of any other covenant, agreement or condition contained herein, in the Note, the Deed of Trust, the Assignment or the Security Agreement or any Event of Default under the Deed of Trust or Assignment or Default under the Security Agreement shall occur, and such default shall have continued for a period of thirty days after notice from you; or
D. the Company or a Subsidiary shall not pay when due, whether by acceleration or otherwise, any evidence of indebtedness of the Company or such Subsidiary (other than the Note), or any condition or default shall exist under any such evidence of indebtedness or under any agreement under which the same may have been issued permitting such evidence of indebtedness to become or be declared due prior to the stated maturity thereof; or
E. the Company or any Subsidiary shall file a petition seeking relief for itself under Title 11 of the United States Code, as now constituted or hereafter amended, or an answer consenting to, admitting the material allegations of or otherwise not controverting, or shall fail to timely controvert, a petition filed against the Company or such Subsidiary seeking relief under Title 11 of the United States Code, as now constituted or hereafter amended; or the Company or any Subsidiary shall file such a petition or answer with respect to relief under the provisions of any other now existing or future bankruptcy, insolvency or other similar law of the United States of America or any State thereof or of any other country or jurisdiction providing for the reorganization, winding-up or liquidation of corporations or an arrangement, composition, extension or adjustment with creditors; or
F. a court of competent jurisdiction shall enter an order for relief which is not stayed within 60 days from the date of entry thereof against the Company or any Subsidiary under Title 11 of the United States Code, as now constituted or hereafter amended; or there shall be entered an order, judgment or decree by operation of law or by a court having jurisdiction in the premises in an involuntary case which is not stayed within 60 days from the date of entry thereof adjudging the Company or proceeding any Subsidiary a bankrupt or insolvent, or ordering relief against the Company or any Subsidiary, or approving as properly filed a petition seeking relief against the Company or any Subsidiary, under the provisions of any applicable other now existing or future bankruptcy, insolvency, insolvency or reorganization law, now or hereafter in effect other similar law of the United States of America or any political subdivision thereofState thereof or of any other country or jurisdiction providing for the reorganization, and such decree winding-up or order will have continued unstayed and in effect for a period liquidation of sixty (60) consecutive calendar days;
(b) the commencement by the Company of a voluntary case under any applicable bankruptcycorporations or an arrangement, insolvency composition, extension or reorganization law, now or hereafter in effect of the United States or any political subdivision thereofadjustment with creditors, or the consent by the Company to the entry of appointing a decree receiver, liquidator, assignee, sequestrator, trustee, custodian or order for relief in an involuntary case or proceeding under any such law;
(c) the Company (i) becomes insolvent or is unable to pay its debts as they mature, (ii) makes an assignment for the benefit of creditors, (iii) admits in writing its inability to pay its debts as they mature, or (iv) ceases to be a bank holding company or financial holding company under the Bank Holding Company Act of 1956, as amended;
(d) the failure of the Company to pay any installment of interest on any of the Subordinated Notes as and when the same will become due and payable, and the continuation of such failure for a period of fifteen (15) consecutive calendar days;
(e) the failure of the Company to pay all or any part of the principal of any of the Subordinated Notes as and when the same will become due and payable;
(f) the liquidation of the Company (for the avoidance of doubt, “liquidation” does not include any merger, consolidation, sale of equity or assets or reorganization (exclusive of a reorganization in bankruptcy) similar official of the Company or any Subsidiary or of its subsidiaries); or
(g) the default or breach of the Company to materially perform any other covenant or agreement on the part of the Company contained in the Subordinated Notes and the continuation of such default or breach (without such default or breach having been waived in accordance with the provisions of Section 17) for a period of 90 consecutive calendar days after there has been given to the Company by the Holders of not less than 25.0% in principal amount of the outstanding Subordinated Notes, by registered or certified mail, in the manner set forth in Section 22, a written notice specifying such default or breach and requiring it to be remedied, and stating that such notice is a “Notice of Default” hereunder. Unless the principal of this Subordinated Note already shall have become due and payable, if an Event of Default described in Section 5(a) or Section 5(b) shall have occurred and be continuing, the holder of this Subordinated Note, by notice in writing to Company, may declare the principal amount of this Subordinated Note to be due and payable immediately and, upon any such declaration, the same shall become and shall be immediately due and payable. The Company waives demand, presentment for payment, notice of nonpayment, notice of protest, and all other notices. Notwithstanding the foregoing, because the Company will treat the Subordinated Notes as Tier 2 Capital, upon the occurrence of an Event of Default other than an Event of Default described in Section 5(a) or Section 5(b), the Noteholders may not accelerate the Stated Maturity of the Subordinated Notes and make the principal of, and any accrued and unpaid interest on, the Subordinated Notes, immediately due and payable. The Company, within forty-five (45) calendar days after the receipt of written notice from any Noteholder of the occurrence of an Event of Default with respect to this Subordinated Note, shall mail to all Noteholders, at their addresses shown on the Security Register (as defined in Section 14 below), such written notice of Event of Default, unless such Event of Default shall have been cured or waived before the giving of such notice as certified by the Company in writing. Prior to any acceleration of this Subordinated Note, a Noteholder may waive pursuant to Section 18 below any past Event of Default. In addition, a Noteholder may rescind a declaration of acceleration of this Subordinated Note before any judgment has been obtained if (i) the Company pays all matured installments of principal of and interest on this Subordinated Note (other than installments due by reason of acceleration) and interest on the overdue installments; and (ii) all other Events of Default with respect to this Subordinated Note have been cured or waived.any
Appears in 1 contract
Sources: Loan Agreement (United Foods Inc)
Events of Default; Acceleration. Each Upon the occurrence and during the continuation of any Default, the obligation of Lender to make any additional Loan shall be suspended. The occurrence of any of the following events shall constitute (each, an “Event of Default”) shall terminate any obligation of Lender to make any additional Loan; and shall, at the option of Lender (1) make all sums of interest and principal, as well as any other Obligations and amounts owing under any Loan Documents immediately due and payable without notice of default, presentment or demand for payment, protest or notice of nonpayment or dishonor or any other notices or demands and (2) give Lender the right to exercise any other right or remedy provided by contract or applicable law:
(a) the entry of a decree Borrower shall fail to pay any principal or order for relief in respect of the Company by a court having jurisdiction in the premises in an involuntary case interest under this Agreement or proceeding any Note, or fail to pay any fees or other charges when due under any applicable bankruptcyLoan Document; provided that with respect to the first such failure, insolvency, or reorganization law, now or hereafter in effect of the United States or any political subdivision thereof, and such decree or order will Borrower shall have continued unstayed and in effect for a period of sixty five (605) consecutive calendar days;days from the date such payment first became due in which to cure such Default before it shall be an Event of Default hereunder.
(b) the commencement by the Company An Event of a voluntary case under Default as defined in any applicable bankruptcy, insolvency or reorganization law, now or hereafter in effect of the United States or any political subdivision thereof, or the consent by the Company to the entry of a decree or order for relief in an involuntary case or proceeding under any such law;other Loan Document shall have occurred.
(c) the Company Any representation or warranty made, or financial statement, certificate or other document provided, by Borrower under any Loan Document shall prove to have been false or misleading in any material respect when made or deemed made herein.
(i) becomes insolvent or is unable Borrower shall fail to pay its debts generally as they mature, become due; or (ii) makes Borrower shall commence any Insolvency Proceeding with respect to itself, an assignment involuntary Insolvency Proceeding shall be filed against Borrower, or a custodian, receiver, trustee, assignee for the benefit of creditors, or other similar official, shall be appointed to take possession, custody or control of the properties of Borrower, and such involuntary Insolvency Proceeding, petition or appointment is acquiesced to by Borrower or is not dismissed within forty five (iii45) admits in writing its inability days; or (ii)! the dissolution, winding up, or termination of the business or cessation of operations of Borrower (including any transaction or series of related transactions deemed to pay its debts as they maturebe a liquidation, dissolution or winding up of Borrower pursuant to the provisions of Borrower’s charter documents); or (iv) ceases Borrower shall take any corporate action for the purpose of effecting, approving, or consenting to be a bank holding company or financial holding company under the Bank Holding Company Act of 1956, as amended;
(d) the failure of the Company to pay any installment of interest on any of the Subordinated Notes as and when the same will become due and payable, and the continuation of such failure for a period of fifteen (15) consecutive calendar days;foregoing.
(e) Borrower shall be in default beyond any applicable period of grace or cure under any other agreement involving the failure borrowing of money, the purchase of property, the advance of credit or any other monetary liability of any kind to Lender or to any Person in an amount in excess of the Company to pay all or any part of the principal of any of the Subordinated Notes as and when the same will become due and payable;Threshold Amount.
(f) the liquidation of the Company (for the avoidance of doubtAny governmental or regulatory authority shall take any judicial or administrative action, “liquidation” does not include any merger, consolidation, sale of equity or assets or reorganization (exclusive of a reorganization in bankruptcy) of the Company or any defined benefit pension plan maintained by Borrower shall have any unfunded liabilities, any of its subsidiaries); orwhich, in the reasonable judgment of Lender, could reasonably be expected to have a Material Adverse Effect.
(g) Any sale, transfer or other disposition of all or substantially all of the default assets of Borrower, including without limitation to any trust or similar entity, shall occur.
(h) Any judgment(s) singly or in the aggregate in excess of the Threshold Amount shall be entered against Borrower which, if not fully covered by insurance, remain unsatisfied, unvacated or unstayed pending appeal for ten (10) or more days after entry thereof.
(i) Borrower shall fail to perform or observe any covenant contained in Sections 5.11 through 5.16 or Article 6 of this Agreement, and, with respect to the covenants contained in Section 5.15, if capable of being cured, the breach of the Company to materially perform any other such covenant or agreement on the part of the Company contained in the Subordinated Notes and the continuation of such default or breach (without such default or breach having been waived in accordance with the provisions of Section 17) for a period of 90 consecutive calendar days after there has been given to the Company by the Holders of is not less than 25.0% in principal amount of the outstanding Subordinated Notes, by registered or certified mail, in the manner set forth in Section 22, a written notice specifying such default or breach and requiring it to be remedied, and stating that such notice is a “Notice of Default” hereunder. Unless the principal of this Subordinated Note already shall have become due and payable, if an Event of Default described in Section 5(a) or Section 5(b) shall have occurred and be continuing, the holder of this Subordinated Note, by notice in writing to Company, may declare the principal amount of this Subordinated Note to be due and payable immediately and, upon any such declaration, the same shall become and shall be immediately due and payable. The Company waives demand, presentment for payment, notice of nonpayment, notice of protest, and all other notices. Notwithstanding the foregoing, because the Company will treat the Subordinated Notes as Tier 2 Capital, upon the occurrence of an Event of Default other than an Event of Default described in Section 5(a) or Section 5(b), the Noteholders may not accelerate the Stated Maturity of the Subordinated Notes and make the principal of, and any accrued and unpaid interest on, the Subordinated Notes, immediately due and payable. The Company, cured within forty-five (45) calendar 5 days after the receipt of written notice from date on which such breach occurred.
(j) Borrower shall fail to perform or observe any Noteholder of the occurrence of an Event of Default with respect to this Subordinated Note, shall mail to all Noteholders, at their addresses shown on the Security Register (as defined covenant contained in Section 14 below), such written notice of Event of Default, unless such Event of Default shall have been cured or waived before the giving of such notice as certified by the Company in writing. Prior to any acceleration of this Subordinated Note, a Noteholder may waive pursuant to Section 18 below any past Event of Default. In addition, a Noteholder may rescind a declaration of acceleration of this Subordinated Note before any judgment has been obtained if (i) the Company pays all matured installments of principal of and interest on this Subordinated Note Article 5 (other than installments due Sections 5.11 through 5.16) or elsewhere in this Agreement or any other Loan Document (other than a covenant which is dealt with specifically elsewhere in this Article 7) and, if capable of being cured, the breach of such covenant is not cured within 30 days after the sooner to occur of Borrower’s receipt of notice of such breach from Lender or the date on which such breach first becomes known to any officer of Borrower; provided, however that if such breach is not capable of being cured within such 30-day period and Borrower timely notifies Lender of such fact and Borrower diligently pursues such cure, then the cure period shall be extended to the date requested in Borrower’s notice but in no event more than 90 days from the initial breach; provided, further, that such additional 60-day opportunity to cure shall not apply in the case of any failure to perform or observe any covenant which has been the subject of a prior failure within the preceding 180 days or which is a willful and knowing breach by reason of acceleration) and interest on the overdue installments; and (ii) all other Events of Default with respect to this Subordinated Note have been cured or waivedBorrower.
Appears in 1 contract
Sources: Bridge Loan and Security Agreement (Tauriga Sciences, Inc.)
Events of Default; Acceleration. Each of the The following events shall constitute an “Event Events of Default”:
(a) The Company defaults in the entry payment of a decree or order for relief in respect any part of the Company principal of or premium on any Note when it becomes due and payable, whether at maturity or at a date fixed for prepayment or by a court having jurisdiction in the premises in an involuntary case declaration or proceeding under any applicable bankruptcy, insolvency, or reorganization law, now or hereafter in effect of the United States or any political subdivision thereof, and such decree or order will have continued unstayed and in effect for a period of sixty (60) consecutive calendar daysotherwise;
(b) The Company defaults in the commencement by the Company payment of a voluntary case under any applicable bankruptcy, insolvency or reorganization law, now or hereafter in effect installment of the United States or interest on any political subdivision thereof, or the consent by the Company to the entry of a decree or order Note for relief in an involuntary case or proceeding under any such lawmore than 20 days after it has become due and payable;
(c) The Company defaults in the performance of or compliance with any material term of this agreement, and such default is not remedied within 30 days after the holder of any Note gives the Company written notice thereof;
(d) The Company or any Subsidiary defaults (as principal, guarantor, or other surety) in the payment of principal of, premium or interest on, or any other payment of money due under, any other material obligation for borrowed money (including any obligation secured by a purchase money mortgage) beyond any provided period of grace, or in the performance of any other material agreement, term, or condition contained in any agreement under which such obligation is created if the effect of such default is to cause, or permit the holder or holders of such obligation (or a trustee on their behalf) to cause, the obligation to become due before its stated maturity;
(e) The Company or any Subsidiary (i) becomes insolvent or is unable to pay its debts as they mature, (ii) makes an assignment for the benefit of creditors, (iiiii) admits in writing to its inability to pay its debts as they maturebecome due, or (iii) files a voluntary petition in bankruptcy, (iv) ceases to be is adjudicated a bank holding company bankrupt or financial holding company insolvent, (v) files any petition or answer seeking for itself any reorganization, arrangement, composition, readjustment, liquidation, dissolution, or similar relief under any present or future statute, law, or regulation, (vi) files an answer admitting or not contesting the Bank Holding Company Act of 1956, as amended;
(d) the failure of the Company to pay any installment of interest on any of the Subordinated Notes as and when the same will become due and payable, and the continuation of such failure for a period of fifteen (15) consecutive calendar days;
(e) the failure of the Company to pay all or any part of the principal of any of the Subordinated Notes as and when the same will become due and payable;
(f) the liquidation of the Company (for the avoidance of doubt, “liquidation” does not include any merger, consolidation, sale of equity or assets or reorganization (exclusive material allegations of a reorganization in bankruptcy) of material petition filed against the Company or any of its subsidiaries); or
(g) the default or breach of the Company to materially perform any other covenant or agreement on the part of the Company contained Subsidiary in the Subordinated Notes and the continuation of such default or breach (without such default or breach having been waived in accordance with the provisions of Section 17) for a period of 90 consecutive calendar days after there has been given to the Company by the Holders of not less than 25.0% in principal amount of the outstanding Subordinated Notes, by registered or certified mail, in the manner set forth in Section 22, a written notice specifying such default or breach and requiring it to be remedied, and stating that such notice is a “Notice of Default” hereunder. Unless the principal of this Subordinated Note already shall have become due and payable, if an Event of Default described in Section 5(a) or Section 5(b) shall have occurred and be continuing, the holder of this Subordinated Note, by notice in writing to Company, may declare the principal amount of this Subordinated Note to be due and payable immediately and, upon any such declaration, the same shall become and shall be immediately due and payable. The Company waives demand, presentment for payment, notice of nonpayment, notice of protest, and all other notices. Notwithstanding the foregoing, because the Company will treat the Subordinated Notes as Tier 2 Capital, upon the occurrence of an Event of Default other than an Event of Default described in Section 5(a) or Section 5(b), the Noteholders may not accelerate the Stated Maturity of the Subordinated Notes and make the principal of, and any accrued and unpaid interest on, the Subordinated Notes, immediately due and payable. The Company, within forty-five (45) calendar days after the receipt of written notice from any Noteholder of the occurrence of an Event of Default with respect to this Subordinated Note, shall mail to all Noteholders, at their addresses shown on the Security Register (as defined in Section 14 below), such written notice of Event of Default, unless such Event of Default shall have been cured or waived before the giving of such notice as certified by the Company in writing. Prior to any acceleration of this Subordinated Note, a Noteholder may waive pursuant to Section 18 below any past Event of Default. In addition, a Noteholder may rescind a declaration of acceleration of this Subordinated Note before any judgment has been obtained if (i) the Company pays all matured installments of principal of and interest on this Subordinated Note (other than installments due by reason of acceleration) and interest on the overdue installments; and (ii) all other Events of Default with respect to this Subordinated Note have been cured or waived.proceeding,
Appears in 1 contract
Events of Default; Acceleration. Each If any of the following events shall constitute occur and be continuing (each an “Event of Default”:):
(a) the entry of a decree Company or order any major subsidiary depository institution (as defined for relief in respect purposes of the Capital Adequacy Regulations, a “Major Subsidiary Depository Institution”) of Company by a court having jurisdiction in the premises in an involuntary case or proceeding under any applicable bankruptcy, insolvency, or reorganization law, now or hereafter in effect of the United States or any political subdivision thereof, and such decree or order will have continued unstayed and in effect for a period of sixty (60) consecutive calendar days;
(b) the commencement by the Company of shall commence a voluntary case under any applicable bankruptcy, insolvency insolvency, liquidation, reorganization or reorganization law, other similar law now or hereafter in effect of the United States or any political subdivision thereofeffect, or the Company shall consent by the Company to the entry appointment of a receiver, liquidator, trustee or other similar official in any liquidation, insolvency or similar proceeding with respect to Company or all or substantially all of its property, or shall make an assignment for the benefit of creditors; or
(b) a court or other governmental agency or body having jurisdiction shall enter a decree or order for relief the appointment of a receiver, liquidator, trustee or other similar official in an involuntary case any liquidation, insolvency or similar proceeding under any with respect to Company or a Major Subsidiary Depository Institution of Company or all or substantially all of the property of Company or a Major Subsidiary Depository Institution of Company, or for the winding up of the affairs or business of Company or a Major Subsidiary Depository Institution, and such law;decree or order shall have remained in force for sixty (60) calendar days; or
(c) Company is notified that it is considered an institution in “troubled condition” within the meaning of 12 U.S.C. Section 1831i and the regulations promulgated thereunder; or
(d) Company (i) becomes insolvent or is unable to pay its debts as they mature, or (ii) makes an assignment for the benefit of creditors, (iii) admits in writing its inability to pay its debts as they mature, or (iv) ceases to be a bank holding company or financial holding company under the Bank Holding Company Act of 1956, as amended;
(d) the failure of the Company to pay any installment of interest on any of the Subordinated Notes as and when the same will become due and payable, and the continuation of such failure for a period of fifteen (15) consecutive calendar days;; or
(e) the failure of the Company to pay all or any part of the principal of materially breaches any of the Subordinated Notes as and when representations, warranties or covenants made by it in the same will become due and payable;Agreement; or
(f) the liquidation Company fails to make any required payment of the Company principal or interest hereunder when due and payable (for the avoidance of doubt, “liquidation” does not include any merger, consolidation, sale of equity or assets or reorganization (exclusive of a reorganization in bankruptcy) of the Company or any of its subsidiaries); or
(g) the default or breach of the Company to materially perform any other covenant or agreement on the part of the Company contained in the Subordinated Notes and the continuation of such default or breach (without such default or breach having been waived in accordance with the provisions of Section 17) for a period of 90 consecutive calendar days after there has been given to the Company by the Holders of not less than 25.0% in principal amount of the outstanding Subordinated Notes, by registered or certified mailand, in the manner set forth case of payment of interest, such failure to pay shall have continued for thirty (30) calendar days); then, in Section 22the case of an Event of Default described in the foregoing clauses (a) or (b), a written notice specifying such default or breach and requiring it to be remedied, and stating that such notice is a “Notice of Default” hereunder. Unless unless the principal of this Subordinated Note already shall have become due and payable, if an Event of Default described in Section 5(a) or Section 5(b) shall have occurred and be continuing, the holder of this Subordinated NoteNoteholder, by notice in writing to Company, may declare the principal amount of this Subordinated Note to be due and payable immediately and, upon any such declaration, the same shall become and shall be immediately due and payable. The Company waives demand, presentment for payment, notice of nonpayment, notice of protest, and all other notices. Notwithstanding the foregoing, because the Company will treat the Subordinated Notes as Tier 2 Capital, upon the occurrence of an Event of Default other than an Event of Default described in Section 5(a) or Section 5(b), the Noteholders may not accelerate the Stated Maturity of the Subordinated Notes and make the principal of, and any accrued and unpaid interest on, the Subordinated Notes, immediately due and payable. The Company, within forty-five ninety (4590) calendar days after the receipt of written notice from the Noteholder or any Noteholder other holder of the Subordinated Notes of the occurrence of an Event of Default with respect to this Subordinated Note, shall mail to all the Noteholders, at their addresses shown on the Security Register (as defined in Section 14 10 below), such written notice of Event of Default, unless such Event of Default shall have been cured or waived before the giving of such notice notice, as certified by the Company in writing. Prior to any acceleration of this Subordinated Note, a Noteholder may waive pursuant to Section 18 below any past Event of Default. In addition, a Noteholder may rescind a declaration of acceleration of this Subordinated Note before any judgment has been obtained if (i) the Company pays all matured installments of principal of and interest on this Subordinated Note (other than installments due by reason of acceleration) and interest on the overdue installments; and (ii) all other Events of Default with respect to this Subordinated Note have been cured or waived.
Appears in 1 contract
Events of Default; Acceleration. Each If any of the following events shall constitute (each an “"Event of Default”") shall occur:
(a) Debtor shall fail to pay any principal of interest on this Promissory Note or any other sum due under this Promissory Note, any Transaction Document, or any other note or other agreement between Debtor and RACC when the entry same becomes due and such failure shall continue for ten (10) days beyond the due date of a decree such payment;
(b) Debtor shall fail to perform any term, covenant or order for relief agreement contained in respect any of the Company by Transaction Documents and such failure shall continue for thirty (30) days after written notice;
(c) any representation or warranty of Debtor in any of the Transaction Documents or in any certificate or notice given in connection therewith shall have been false or misleading in any material respect at the time made or deemed to have been made;
(d) Debtor shall be in default under any agreement or agreements evidencing (i) any other debt and similar monetary obligations (including, without limitation, capitalized leases, synthetic leases or securitization transactions) (collectively, "Indebtedness") owing to RACC or any of its affiliates, or (ii) any other Indebtedness in excess of $100,000.00 in aggregate principal amount, or shall fail to pay any such Indebtedness when due or within any applicable period of grace;
(e) any of the Transaction Documents shall cease to be in full force and effect;
(f) Debtor (i) shall make an assignment for the benefit of creditors; (ii) shall be adjudicated bankrupt or insolvent; (iii) shall seek the appointment of, or be the subject of an order appointing, a court having jurisdiction in the premises in an involuntary trustee, liquidator or receiver as to all or part of its assets, (iv) shall commence, approve or consent to, any case or proceeding under any applicable bankruptcy, insolvencyreorganization or similar law and, in the case of an involuntary case or reorganization lawproceeding, now such case or hereafter in effect of the United States or any political subdivision thereof, and such decree or order will have continued unstayed and in effect for a period of sixty proceeding is not dismissed within forty-five (6045) consecutive calendar days;
(b) days following the commencement by the Company of a voluntary case under any applicable bankruptcy, insolvency or reorganization law, now or hereafter in effect of the United States or any political subdivision thereof, or (v) shall be the consent by the Company to the entry subject of a decree or an order for relief in an involuntary case or proceeding under any such federal bankruptcy law;
(cg) the Company (i) becomes insolvent or is Debtor shall be unable to pay its debts as they mature, (ii) makes an assignment for the benefit of creditors, (iii) admits in writing its inability to pay its debts as they mature, or (iv) ceases to be a bank holding company or financial holding company under the Bank Holding Company Act of 1956, as amended;
(dh) there shall remain undischarged for more than thirty (30) days any final judgment or execution action against ▇▇▇▇▇▇ that, together with other outstanding claims and execution actions against ▇▇▇▇▇▇, respectively, exceeds $100,000.00 in the aggregate;
(i) the failure prospect of payment or performance by ▇▇▇▇▇▇ or realization on the Company to pay any installment Collateral, in the reasonable opinion of interest on RACC, is or becomes significantly impaired;
(j) any of the Subordinated Notes Aircraft shall have been lost, stolen or confiscated or shall have incurred substantial damage or have been destroyed to such an extent that the repair thereof is impracticable (as and when the same will become due and payable, and the continuation of such failure for a period of fifteen (15) consecutive calendar days;
(e) the failure of the Company to pay all or any part of the principal of any of the Subordinated Notes as and when the same will become due and payable;
(f) the liquidation of the Company (for the avoidance of doubt, “liquidation” does not include any merger, consolidation, sale of equity or assets or reorganization (exclusive of a reorganization in bankruptcy) of the Company or any of its subsidiariesdetermined solely by RACC); or
(k) Debtor (i) sells, transfers or disposes of all or substantially all of its respective stock, assets or property, (ii) becomes the subject of, or engages in, a leveraged buy-out, or (iii) terminates its existence by merger, reorganization or consolidation. THEN, or at any time thereafter:
(1) In the case of any Event of Default under clauses (f) or (g) ), the default or breach of the Company to materially perform any other covenant or agreement on the part of the Company contained in the Subordinated Notes and the continuation of such default or breach (without such default or breach having been waived in accordance with the provisions of Section 17) for a period of 90 consecutive calendar days after there has been given to the Company by the Holders of not less than 25.0% in entire unpaid principal amount of the outstanding Subordinated Notesthis Promissory Note and all other amounts payable hereunder, by registered or certified mail, in the manner set forth in Section 22, a written notice specifying such default or breach and requiring it to be remedied, and stating that such notice is a “Notice of Default” hereunder. Unless the principal of this Subordinated Note already shall have automatically become forthwith due and payable, if an without presentment, demand, protest or notice of any kind, all of which are hereby expressly waived by Debtor; and
(2) In the case of any Event of Default described in Section 5(aother than under clauses (f) or Section 5(b) shall have occurred and be continuing(g), the holder of this Subordinated NoteRACC may, by written notice in writing to Company▇▇▇▇▇▇, may declare the unpaid principal amount of this Subordinated Promissory Note and all other amounts payable hereunder, to be due and payable immediately and, upon any such declaration, the same shall become and shall be immediately forthwith due and payable. The Company waives , without presentment, demand, presentment for payment, protest or further notice of nonpaymentany kind, notice all of protest, which are hereby expressly waived by Debtor. In addition to and all other notices. Notwithstanding without in any way limiting the foregoing, because the Company will treat the Subordinated Notes as Tier 2 Capital, upon the occurrence of an Event of Default or at any time thereafter, RACC may employ all remedies allowed by law, including, without limitation, those available to a secured party under the Uniform Commercial Code. No remedy herein conferred upon RACC is intended to be exclusive of any other than an Event of Default described remedy and each and every remedy shall be cumulative and in Section 5(a) addition to every other remedy hereunder, now or Section 5(b), the Noteholders may not accelerate the Stated Maturity of the Subordinated Notes and make the principal of, and any accrued and unpaid interest on, the Subordinated Notes, immediately due and payable. The Company, within forty-five (45) calendar days after the receipt of written notice from any Noteholder of the occurrence of an Event of Default with respect to this Subordinated Note, shall mail to all Noteholders, hereafter existing at their addresses shown on the Security Register (as defined law or in Section 14 below), such written notice of Event of Default, unless such Event of Default shall have been cured equity or waived before the giving of such notice as certified by the Company in writing. Prior to any acceleration of this Subordinated Note, a Noteholder may waive pursuant to Section 18 below any past Event of Default. In addition, a Noteholder may rescind a declaration of acceleration of this Subordinated Note before any judgment has been obtained if (i) the Company pays all matured installments of principal of and interest on this Subordinated Note (other than installments due by reason of acceleration) and interest on the overdue installments; and (ii) all other Events of Default with respect to this Subordinated Note have been cured or waivedotherwise.
Appears in 1 contract
Sources: Group a Return Conditions Note (Great Lakes Aviation LTD)
Events of Default; Acceleration. Each If any of the following events shall constitute occur and be continuing (each an “Event of Default”:):
(a) the entry of a decree or order for relief in respect of the Company by a court having jurisdiction default in the premises in an involuntary case or proceeding under any applicable bankruptcy, insolvency, or reorganization law, now or hereafter in effect payment of interest on the United States or any political subdivision thereof, Senior Notes and such decree or order will have continued unstayed and in effect continuance of that default for a period of sixty (60) consecutive calendar 30 days;
(b) default in the commencement by the Company of a voluntary case under any applicable bankruptcy, insolvency or reorganization law, now or hereafter in effect payment of the United States or any political subdivision thereofprincipal of, or premium, if any, on, the consent Senior Notes when due and payable, whether at their Maturity Date or by the Company to the entry of a decree acceleration, call for redemption or order for relief in an involuntary case or proceeding under any such lawotherwise;
(c) failure by the Company (i) becomes insolvent Issuer for 90 days after notice by the Noteholders to perform any of the other covenants or is unable to pay its debts as they mature, (ii) makes an assignment for agreements in the benefit of creditors, (iii) admits in writing its inability to pay its debts as they mature, or (iv) ceases to be a bank holding company or financial holding company under Senior Notes and the Bank Holding Company Act of 1956, as amendedIssuing and Paying Agency Agreement;
(d) the failure an event of default, as defined in any bond, note, debenture or other evidence of indebtedness for borrowed money of the Company to pay Issuer or under any installment of interest on mortgage, indenture, trust agreement or other instrument securing, evidencing or providing for any indebtedness for borrowed money of the Subordinated Notes Issuer as a result of which indebtedness for borrowed money of the Issuer in excess of $25 million in aggregate principal amount shall be or become accelerated so as to be due and when payable prior to the date on which the same will would otherwise become due and payable, payable and such acceleration shall not have been annulled or rescinded within 30 days of the continuation notice of such failure for a period of fifteen (15) consecutive calendar daysacceleration to the Issuer;
(e) the failure Issuer shall consent to the appointment of the Company to pay all a receiver, liquidator, trustee or other similar official in any part of the principal of any of the Subordinated Notes as and when the same will become due and payable;bankruptcy, liquidation, insolvency or similar proceeding; or
(f) the liquidation of the Company (a court or other governmental agency or body having jurisdiction shall enter a decree or order for the avoidance of doubt, “liquidation” does not include any merger, consolidation, sale of equity or assets or reorganization (exclusive appointment of a reorganization receiver, liquidator, trustee or other similar official in any bankruptcy) of the Company , receivership, liquidation, insolvency or any of its subsidiaries); or
(g) the default or breach of the Company to materially perform any other covenant or agreement on the part of the Company contained in the Subordinated Notes and the continuation of such default or breach (without such default or breach having been waived in accordance similar proceeding with the provisions of Section 17) for a period of 90 consecutive calendar days after there has been given respect to the Company by the Holders of not less than 25.0% Issuer and such decree or order shall have remained in principal amount of the outstanding Subordinated Notesforce for 30 days. In each such case, by registered or certified mail, in the manner set forth in Section 22, a written notice specifying such default or breach and requiring it to be remedied, and stating that such notice is a “Notice of Default” hereunder. Unless unless the principal of this Subordinated Note the Senior Notes already shall have become due and payable, if an Event the holders of Default described in Section 5(a) or Section 5(b) shall have occurred and be continuing, 100% of the holder aggregate principal amount of this Subordinated Notethe Senior Notes, by notice in writing to Companythe Issuer, may declare the principal amount of this Subordinated Note the Senior Notes to be due and payable immediately andimmediately, and upon any such declaration, declaration the same shall become and shall be immediately due and payable. The Company waives demand, presentment for payment, notice of nonpayment, notice of protest, and all other notices. Notwithstanding the foregoing, because the Company will treat the Subordinated Notes as Tier 2 Capital, upon the occurrence of an Event of Default other than an Event of Default described in Section 5(a) or Section 5(b), the Noteholders may not accelerate the Stated Maturity of the Subordinated Notes and make the principal of, and any accrued and unpaid interest on, the Subordinated Notes, immediately due and payable. The Company, within forty-five (45) calendar days after the receipt of written notice from any Noteholder of the occurrence of an Event of Default with respect to this Subordinated Note, shall mail to all Noteholders, at their addresses shown on the Security Register (as defined in Section 14 below), such written notice of Event of Default, unless such Event of Default shall have been cured or waived before the giving of such notice as certified by the Company in writing. Prior to any acceleration of this Subordinated Note, a Noteholder may waive pursuant to Section 18 below any past Event of Default. In addition, a Noteholder may rescind a declaration of acceleration of this Subordinated Note before any judgment has been obtained if (i) the Company pays all matured installments of principal of and interest on this Subordinated Note (other than installments due by reason of acceleration) and interest on the overdue installments; and (ii) all other Events of Default with respect to this Subordinated Note have been cured or waived.
Appears in 1 contract
Sources: Note Subscription Agreement (Customers Bancorp, Inc.)
Events of Default; Acceleration. Each Any or all unpaid principal and interest shall at the option of Secured Party and notwithstanding any time or credit allowed by any instrument evidencing a liability, including but not limited to invoices of Secured Party for goods, become immediately due and payable without notice or demand upon the occurrence of any of the following events shall constitute an “Event of Default”default:
(a) the entry The dissolution of a decree or order for relief in respect of the Company by a court having jurisdiction in the premises in an involuntary case or proceeding under any applicable bankruptcy, insolvency, or reorganization law, now or hereafter in effect of the United States Debtor or any political subdivision thereof, vote in favor thereof by the board of directors and such decree or order will have continued unstayed and in effect for a period shareholders of sixty (60) consecutive calendar days;Debtor; or
(b) the commencement by the Company of a voluntary case under any applicable bankruptcy, insolvency or reorganization law, now or hereafter in effect of the United States or any political subdivision thereof, or the consent by the Company to the entry of a decree or order for relief in an involuntary case or proceeding under any such law;
(c) the Company (i) becomes insolvent or is unable to pay its debts as they mature, (ii) Debtor makes an assignment for the benefit of creditors, or files with a court of competent jurisdiction an application for appointment of a receiver or similar official with respect to it or any substantial part of its assets, or Debtor files a petition seeking relief under any provision of the Federal Bankruptcy Code or any other federal or state statute now or hereafter in effect affording relief to debtors, or any such application or petition is filed against Debtor, which application or petition is not dismissed or withdrawn within sixty (iii60) days from the date of its filing; or
(c) Debtor fails to pay the principal amount, or interest on, or any other amount payable under, its Note to Secured Party this Note of even date herewith as and when the same becomes due and payable; or
(d) Debtor admits in writing its inability to pay its debts as they mature, or (iv) ceases to be a bank holding company or financial holding company under the Bank Holding Company Act of 1956, as amended;
(d) the failure of the Company to pay any installment of interest on any of the Subordinated Notes as and when the same will become due and payable, and the continuation of such failure for a period of fifteen (15) consecutive calendar days;; or
(e) the failure of the Company to pay Debtor sells all or any part substantially all of the principal of any of the Subordinated Notes as and when the same will become due and payable;its assets or merges or is consolidated with or into another corporation except a merger with or into a publicly traded corporation; or
(f) the liquidation of the Company (for the avoidance of doubt, “liquidation” does not include A proceeding is commenced to foreclose a security interest or lien in any merger, consolidation, sale of equity property or assets or reorganization (exclusive of Debtor as a result of a reorganization default in bankruptcythe payment or performance of any debt ($15,000) of the Company Debtor or of any subsidiary of its subsidiaries)Debtor; or
(g) A final judgment for the default payment of money in excess of$ 15,000 is entered against Debtor by a court of competent jurisdiction, and such judgment is not discharged (nor the discharge thereof duly provided for) in accordance with its terms, nor a stay of execution thereof procured, within thirty (30) days after the date such judgment is entered, and, within such period (or breach such longer period during which execution of such judgment is effectively stayed), an appeal therefrom has not been prosecuted and the Company execution thereof caused to materially perform be stayed during such appeal; or
(h) An attachment or garnishment is levied against the assets or properties of Debtor or any other covenant subsidiary of Debtor involving an amount in excess of$ 15,000 and such levy is not vacated, bonded or otherwise terminated within thirty (30) days after the date of its effectiveness; or
(i) Debtor defaults in the due observance or performance of any covenant, condition or agreement on the part of Debtor to be observed or performed pursuant to the Company contained terms of this Note (other than the default specified in the Subordinated Notes paragraph 6(c) above) and the continuation of such default or breach (without such default or breach having been waived in accordance with the provisions of Section 17) continues uncured for a period of 90 consecutive calendar days after there has been given to the Company by the Holders of not less than 25.0% in principal amount of the outstanding Subordinated Notes, by registered or certified mail, thirty (30) days; or
(j) Debtor defaults in the manner set forth in Section 22, a written notice specifying such default or breach and requiring it to be remedied, and stating that such notice is a “Notice payment (regardless of Default” hereunder. Unless the principal amount) when due of this Subordinated Note already shall have become due and payable, if an Event of Default described in Section 5(a) or Section 5(b) shall have occurred and be continuing, the holder of this Subordinated Note, by notice in writing to Company, may declare the principal amount of this Subordinated Note to be due and payable immediately and, upon any such declaration, the same shall become and shall be immediately due and payable. The Company waives demand, presentment for payment, notice of nonpayment, notice of protest, and all other notices. Notwithstanding the foregoing, because the Company will treat the Subordinated Notes as Tier 2 Capital, upon the occurrence of an Event of Default other than an Event of Default described in Section 5(a) or Section 5(b), the Noteholders may not accelerate the Stated Maturity of the Subordinated Notes and make the principal of, and any accrued and unpaid interest on, or any other liability on account of, any indebtedness of Debtor having a face or principal amount in excess of $15,000, or a default occurs in the Subordinated Notes, immediately due and payable. The Company, within forty-five (45) calendar days after the receipt performance or observance by Debtor of written notice from any Noteholder of the occurrence of an Event of Default with respect to this Subordinated Note, shall mail to all Noteholders, at their addresses shown on the Security Register (as defined in Section 14 below), such written notice of Event of Default, unless such Event of Default shall have been cured covenant or waived before the giving of such notice as certified by the Company in writing. Prior to any acceleration of this Subordinated Note, a Noteholder may waive pursuant to Section 18 below any past Event of Default. In addition, a Noteholder may rescind a declaration of acceleration of this Subordinated Note before any judgment has been obtained if (i) the Company pays all matured installments of principal of and interest on this Subordinated Note condition (other than installments for the payment of money) contained in any note or agreement evidencing or pertaining to any such indebtedness, which causes the maturity of such indebtedness to be accelerated or permits the holder or holders of such indebtedness to declare the same to be due prior to the stated maturity thereof; or
(k) Debtor does not proceed with a reverse takeover into a public shell by the Maturity Date for any reason of acceleration) and interest on the overdue installments; and (ii) all other Events of Default with respect to this Subordinated Note have been cured or waivedwhatsoever.
Appears in 1 contract
Sources: Intellectual Property Security Agreement (Hunapu Inc)
Events of Default; Acceleration. Each of the following events occurrences shall constitute an “event of default hereunder (herein called an "Event of Default”:"):
(a) the entry The Borrower shall fail to make due and punctual payment of a decree any installment of interest or order for relief in respect of the Company by a court having jurisdiction in the premises in an involuntary case principal (or proceeding under any applicable bankruptcy, insolvency, or reorganization law, now or hereafter in effect of the United States both) or any political subdivision thereof, and such decree or order will have continued unstayed and in effect for a period of sixty (60) consecutive calendar days;other payment becoming due under the Note.
(b) The Borrower shall fail to make due and punctual payment of any other amounts (not described in the commencement by the Company foregoing paragraph 18(a) or paragraph 18(e) below) required to be paid under this Deed of a voluntary case under Trust or any applicable bankruptcy, insolvency or reorganization law, now or hereafter in effect of the United States or any political subdivision thereofother Loan Documents (excluding the Note, or to which paragraph 18(a) applies) within ten (10) days after the consent by the Company to the entry of a decree or order for relief in an involuntary case or proceeding under any date upon which such law;amount becomes due.
(c) The Borrower shall default in the Company performance of or breach its agreement contained in paragraph 16 hereof.
(id) becomes insolvent The Borrower shall fail to duly and punctually pay when and as due any payment for taxes and assessments required by paragraph 2 to be paid (subject to paragraph 9 hereof relating to contests) or shall fail to provide the insurance coverage required by paragraph 10(a).
(e) The Borrower shall fail duly to perform or observe any of the covenants or agreements contained in the Loan Documents (other than a covenant or agreement which is unable specifically dealt with elsewhere in this paragraph 18) and such failure shall not be cured within thirty (30) days after written notice to pay its debts as they mature, Borrower (iior longer if reasonably necessary and Borrower is proceeding diligently to cure such failure).
(f) makes The Borrower shall make an assignment for the benefit of its creditors, (iii) admits in writing its inability to pay or the Borrower shall generally not be paying its debts as they maturebecome due, or a petition shall be filed by or against the Borrower under the United States Bankruptcy Code, or the Borrower shall seek or consent to or acquiesce in the appointment of any trustee, receiver or liquidator of a material part of its properties or of the Mortgaged Property or any part thereof or shall not, within thirty (iv30) ceases days after the appointment (without its consent or acquiescence) of a trustee, receiver or liquidator of any material part of its properties or of the Mortgaged Property, have such appointment vacated.
(g) A judgment, writ or warrant of attachment or execution, or similar process shall be entered and become a lien on, issued or levied against, the Mortgaged Property or any part thereof and shall not be released, vacated or fully bonded within thirty (30) days after its entry, issue or levy.
(h) Except as provided in this subparagraph, the Mortgaged Property, or any part thereof, without the prior written consent of Lender, shall be sold, conveyed, transferred, encumbered or full possessory rights therein transferred, or the controlling interest in the
(i) Any representation or warranty made by Borrower or any shareholder of Borrower to Lender in connection with the loan secured hereby proves to be a bank holding company or financial holding company under untrue in any material respect. Upon the Bank Holding Company Act occurrence of 1956any Event of Default, as amended;
(d) Lender may, at its option, declare the failure principal of and the Company to pay any installment of accrued interest on any of the Subordinated Notes as Note, and when the same will become all sums advanced hereunder, with interest thereon, to be forthwith due and payable, and thereupon the continuation of such failure for a period of fifteen (15) consecutive calendar days;
(e) the failure of the Company to pay Note and all or any part of the other Indebtedness secured hereby, including both principal of any of the Subordinated Notes as and when the same will become due all unpaid interest accrued thereon, including all applicable late payment charges and payable;
(f) the liquidation of the Company (for the avoidance of doubt, “liquidation” does not include any merger, consolidation, sale of equity or assets or reorganization (exclusive of a reorganization in bankruptcy) of the Company or any of its subsidiaries); or
(g) the default or breach of the Company to materially perform any other covenant or agreement on the part of the Company contained in the Subordinated Notes and the continuation of such default or breach (without such default or breach having been waived in accordance with the provisions of Section 17) for a period of 90 consecutive calendar days after there has been given to the Company by the Holders of not less than 25.0% in principal amount of the outstanding Subordinated Notes, by registered or certified mail, in the manner set forth in Section 22, a written notice specifying such default or breach and requiring it to be remediedprepayment premium, and stating that such notice is a “Notice of Default” hereunder. Unless the principal of this Subordinated Note already including all sums advanced hereunder and interest thereon, shall have be and become due and payable, if an Event of Default described in Section 5(a) or Section 5(b) shall have occurred and be continuing, the holder of this Subordinated Note, by notice in writing to Company, may declare the principal amount of this Subordinated Note to be immediately due and payable immediately andwithout presentment, upon any such declaration, the same shall become and shall be immediately due and payable. The Company waives demand, presentment for payment, demand or notice of nonpayment, notice of protest, and all other noticesany kind. Notwithstanding the foregoing, because the Company will treat the Subordinated Notes as Tier 2 Capital, upon the occurrence of an Event of Default other than an Event of Default described in Section 5(a) or Section 5(b), the Noteholders may not accelerate the Stated Maturity Time is of the Subordinated Notes and make the principal of, and any accrued and unpaid interest on, the Subordinated Notes, immediately due and payable. The Company, within forty-five (45) calendar days after the receipt of written notice from any Noteholder of the occurrence of an Event of Default with respect to this Subordinated Note, shall mail to all Noteholders, at their addresses shown on the Security Register (as defined in Section 14 below), such written notice of Event of Default, unless such Event of Default shall have been cured or waived before the giving of such notice as certified by the Company in writing. Prior to any acceleration of this Subordinated Note, a Noteholder may waive pursuant to Section 18 below any past Event of Default. In addition, a Noteholder may rescind a declaration of acceleration of this Subordinated Note before any judgment has been obtained if (i) the Company pays all matured installments of principal of and interest on this Subordinated Note (other than installments due by reason of acceleration) and interest on the overdue installments; and (ii) all other Events of Default with respect to this Subordinated Note have been cured or waivedessence hereof.
Appears in 1 contract
Sources: Deed of Trust, Mortgage and Security Agreement (Craftmade International Inc)
Events of Default; Acceleration. Each Waiver of Default and ------------------------------------------------------ Restoration of Position and Rights. The term "Event of Default" whenever used ---------------------------------- herein with respect to any particular series of Subordinated Securities shall mean any one of the following events shall constitute an “Event of Default”events:
(a) default in the payment of any installment of interest on any Subordinated Security of such series as and when the same shall become due and payable, and continuance of such default for a period of 30 days provided however, that an extension of one or more Interest Payment Dates by the Company in accordance with the provisions of any Supplemental Subordinated Indenture, shall not constitute an Event of Default; or
(b) default in the payment of all or any part of the principal of or any premium on any Subordinated Security of such series as and when the same shall become due and payable whether at maturity, by proceedings for redemption, by declaration or otherwise, provided however, that an extension of the Stated Maturity for payment of principal of Subordinated Securities of such series in accordance with the provisions of any Supplemental Subordinated Indenture, shall not constitute an Event of Default; or
(c) default in the satisfaction of any sinking fund payment obligation relating to such series of Subordinated Securities, when and as such obligation shall become due and payable provided however, that an extension of the Stated Maturity for payment of any sinking fund payment with respect to Subordinated Securities of such series in accordance with the provisions of any Supplemental Subordinated Indenture, shall not constitute an Event of Default; or
(d) failure on the part of the Company to observe or perform in any material respect any other of the covenants or agreements on its part in the Subordinated Securities or in this Subordinated Indenture (including any Supplemental Subordinated Indenture or pursuant to any Officer's Certificate, as contemplated by Section 2.03) specifically contained for the benefit of the Holders of the Subordinated Securities of such series, for a period of 60 days after there has been given, by registered or certified mail, to the Company by the Trustee, or to the Company and the Trustee by the Holders of not less than 25% in principal amount of the Subordinated Securities of such series and all other series so benefited (all series voting as one class) at the time Outstanding under this Subordinated Indenture a written notice specifying such failure and stating that such is a "Notice of Default" hereunder; or
(e) the entry by a court having jurisdiction in the premises of a decree or order for relief in respect of the Company by a court having jurisdiction in the premises in an involuntary case or proceeding under any applicable bankruptcy, insolvency, insolvency or reorganization law, other similar law now or hereafter in effect effect, or appointing a receiver, liquidator, assignee, custodian, trustee, sequestrator (or similar official) of the United States Company or for any political subdivision thereofsubstantial part of its property, and or ordering the winding up or liquidation of its affairs, if such decree or order will have continued shall remain unstayed and in effect for a period of sixty (60) 60 consecutive calendar days;; or
(bf) the commencement by the Company of a voluntary case under any applicable bankruptcy, insolvency or reorganization law, other similar law now or hereafter in effect of the United States or any political subdivision thereofeffect, or the Company's consent by the Company to the entry of a decree or an order for relief in an any involuntary case or proceeding under any such law;
, or its consent to the appointment of or taking possession by a receiver, liquidator, assignee, trustee, custodian, sequestrator (cor similar official) of the Company (i) becomes insolvent or is unable to pay for any substantial part of its debts as they matureproperty, (ii) makes an or the making by the Company of any general assignment for the benefit of creditors, (iii) admits in writing or its inability failure generally to pay its debts as they mature, become due or (iv) ceases to be a bank holding company or financial holding company under the Bank Holding Company Act of 1956, as amended;
(d) the failure of taking by the Company to pay of any installment of interest on any of the Subordinated Notes as and when the same will become due and payable, and the continuation of such failure for a period of fifteen (15) consecutive calendar days;
(e) the failure of the Company to pay all or any part of the principal corporate action in furtherance of any of the Subordinated Notes as and when the same will become due and payable;
(f) the liquidation of the Company (for the avoidance of doubt, “liquidation” does not include any merger, consolidation, sale of equity or assets or reorganization (exclusive of a reorganization in bankruptcy) of the Company or any of its subsidiaries)foregoing; or
(g) the default or breach of the Company to materially perform any other covenant or agreement on the part Event of the Company contained Default provided in the Officer's Certificate or Supplemental Subordinated Notes Indenture under which such series of Subordinated is issued or in the form of Subordinated Security for such series. If an Event of Default described in clause (a), (b) or (c) shall have occurred and be continuing with respect to any one or more series of Outstanding Subordinated Securities, then and in each and every such case, unless the continuation principal amount of such default all the Subordinated Securities of each series as to which there is an Event of Default shall have already become due and payable, either the Trustee or breach (without such default or breach having been waived in accordance with the provisions of Section 17) for a period of 90 consecutive calendar days after there has been given to the Company by the Holders of not less than 25.025% in principal amount of the outstanding Subordinated NotesSecurities of such series then Outstanding hereunder (each such series voting as a separate class) by notice in writing to the Company (and to the Trustee if given by Subordinated Securityholders) may declare the principal amount (or, by registered or certified mailif the Subordinated Securities of any such series are Original Issue Discount Subordinated Securities, such portion of the principal amount as may be specified in the manner set forth in Section 22terms of such series) of all the Subordinated Securities of such series, a written notice specifying such default or breach and requiring it together with any accrued interest, to be remedieddue and payable immediately, and stating that upon any such notice is a “Notice of Default” hereunder. Unless declaration the principal of this Subordinated Note already same shall have become be immediately due and payable, anything in this Subordinated Indenture or in the Subordinated Securities of such series contained to the contrary notwithstanding. Except as otherwise provided in the terms of any series of Subordinated Securities pursuant to Section 2.03, if an Event of Default described in Section 5(aclause (d) or Section 5(b(g) above with respect to all series of Subordinated Securities then Outstanding, occurs and is continuing, then, and in each and every such case, unless the principal of all of the Subordinated Securities shall have occurred already become due and be continuingpayable, either the holder Trustee or the Holders of this not less than 25% in aggregate principal amount of all of the Subordinated Note, Securities then Outstanding hereunder (treated as one class) by notice in writing to Companythe Company (and to the Trustee if given by Securityholders), may declare the entire principal (or, if the Subordinated Securities of any series are Original Issue Discount Securities, such portion of the principal amount as may be specified in the terms of this such series) of all of the Subordinated Note Securities then Outstanding, and the interest accrued thereon, if any, to be due and payable immediately, and upon such declaration, the same shall become immediately anddue and payable. If an Event of Default described in clause (e) or (f) above occurs and is continuing, then the principal amount of all of the Subordinated Securities then Outstanding, and the interest accrued thereon, if any, shall become and be immediately due and payable without any declaration or other act on the part of the Trustee or any Holder. If an Event of Default described in clause (d) or (g) occurs and is continuing, which Event of Default is with respect to less than all series of Subordinated Securities then Outstanding, then, and in each and every such case, except for any series of Subordinated Securities the principal of which shall have already become due and payable, either the Trustee or the Holders of not less than 25% in aggregate principal amount of the Subordinated Securities of each such affected series then Outstanding hereunder (each such series voting as a separate class) by notice in writing to the Company (and to the Trustee if given by Securityholders), may declare the entire principal (or, if the Securities of such series are Original Issue Discount Securities, such portion of the principal amount as may be specified in the terms of such series) of all Securities of such series, and the interest accrued thereon, if any, to be due and payable immediately, and upon any such declaration, the same shall become and shall be immediately due and payable. The Company waives demandforegoing provisions, presentment for paymenthowever, notice of nonpaymentare subject to the condition that if, notice of protestat any time after the principal amount (or, and all other notices. Notwithstanding the foregoing, because the Company will treat if the Subordinated Notes Securities are Original Issue Discount Subordinated Securities, such portion of the principal as Tier 2 Capital, upon may be specified in the occurrence of an Event of Default other than an Event of Default described in Section 5(a) or Section 5(b), the Noteholders may not accelerate the Stated Maturity terms thereof of the Subordinated Notes and make the principal of, and Securities of any accrued and unpaid interest on, one or more series (or of all the Subordinated NotesSecurities, immediately as the case may be) shall have been so declared due and payable. The Company, within forty-five (45) calendar days after and before any judgment or decree for the receipt payment of written notice from any Noteholder of the occurrence of an Event of Default with respect to this Subordinated Note, shall mail to all Noteholders, at their addresses shown on the Security Register (as defined in Section 14 below), such written notice of Event of Default, unless such Event of Default moneys due shall have been cured obtained or waived before the giving of such notice entered as certified by hereinafter provided, the Company in writing. Prior shall pay or shall deposit with the Trustee a sum sufficient to any acceleration of this Subordinated Note, a Noteholder may waive pursuant to Section 18 below any past Event of Default. In addition, a Noteholder may rescind a declaration of acceleration of this Subordinated Note before any judgment has been obtained if (i) the Company pays pay all matured installments of interest upon all the Subordinated Securities of such series (or upon all the Subordinated Securities, as the case may be) and the principal of any and all Subordinated Securities of such series (or of any and all the Subordinated Securities, as the case may be) which shall have become due otherwise than by declaration (with interest on overdue installments of interest to the extent permitted by law and on such principal at the rate or rates of interest borne by, or prescribed therefor in the Subordinated Securities of such series to the date of such payment or deposit) and interest upon such principal and, to the extent that payment of such interest is enforceable under applicable law, on overdue installments of interest, at the same rate as the rate of interest or Yield to Maturity (in the case of Original Issue Discount Securities) specified in the Securities of such series (or at the respective rates of interest or Yields to Maturity of all the Securities, as the case may be) to the date of such payment or deposit; and the amounts payable to the Trustee under Section 7.06 and any and all defaults under the Subordinated Indenture with respect to Subordinated Securities of such series (or all Subordinated Securities, as the case may be), other than the non- payment of principal of and any accrued interest on Subordinated Securities of such series (or any Subordinated Securities, as the case may be) which shall have become due by declaration shall have been cured, remedied or waived as provided in Section 6.09 -- then and in every such case the Holders of a majority in principal amount of the Subordinated Securities of such series (or of all the Subordinated Securities, as the case may be) then Outstanding (such series or all series voting as one class if more than one series are so entitled) by written notice to the Company and to the Trustee, may rescind and annul such declaration and its consequences; but no such rescission and annulment shall extend to or shall affect any subsequent default, or shall impair any right consequent thereon. For all purposes under this Subordinated Note (other than installments Indenture, if a portion of the principal of any Original Issue Discount Securities shall have been accelerated and declared due by reason and payable pursuant to the provisions hereof, then, from and after such declaration, unless such declaration has been rescinded and annulled, the principal amount of such Original Issue Discount Securities shall be deemed, for all purposes hereunder, to be such portion of the principal thereof as shall be due and payable as a result of such acceleration) , and interest on payment of such portion of the overdue installments; principal thereof as shall be due and (ii) payable as a result of such acceleration, together with interest, if any, thereon and all other Events amounts owing thereunder, shall constitute payment in full of Default with respect such Original Issue Discount Securities. In case the Trustee shall have proceeded to enforce any right under this Subordinated Note Indenture and such proceedings shall have been cured discontinued or waivedabandoned because of such rescission or annulment or for any other reason or shall have been determined adversely to the Trustee, then and in every such case the Company, the Trustee and the Holders of the Subordinated Securities of such series (or of all the Subordinated Securities, as the case may be) shall be restored respectively to their former positions and rights hereunder, and all rights, remedies and powers of the Company and the Trustee and the Holders of the Subordinated Securities of such series (or of all the Subordinated Securities, as the case may be) shall continue as though no such proceedings had been taken.
Appears in 1 contract
Events of Default; Acceleration. Each The occurrence of one or more of the following events without a cure within 30 days after occurrence of the default or within such other time period provided herein (each an "Event of Default") shall constitute an “Event of Default”:
(a) the entry of a decree or order for relief in respect of the The Company by a court having jurisdiction defaults in the premises in an involuntary case payment of principal of or proceeding under any applicable bankruptcy, insolvency, or reorganization law, now or hereafter in effect of interest on the United States Convertible Notes or any political subdivision thereofother fee or expense due under the Transaction Documents when the same becomes due and payable, whether on demand, at maturity or at a date fixed for the payment of any installment or prepayment thereof or otherwise, and such decree default is not waived or order will have continued unstayed and in effect for a period of sixty (60) consecutive calendar days;cured within 30 days after such default occurs.
(b) The Company defaults in the commencement by performance of or compliance with any covenant or provision of this Agreement, the Convertible Notes, or in any Transaction Document, and any such default is not cured or waived within 60 days after the Company of a voluntary case under any applicable bankruptcy, insolvency or reorganization law, now or hereafter in effect has notice of the United States or any political subdivision thereof, or the consent by the Company to the entry occurrence of a decree or order for relief in an involuntary case or proceeding under any such law;default.
(c) The representations or warranties made by the Company in this Agreement and in any Transaction Document shall prove to have been false or incorrect in any material respect when made.
(id) becomes insolvent The Company discontinues its business or is unable to pay its debts as they mature, (ii) makes an assignment for the benefit of creditors, (iii) admits in writing its inability to pay its debts as they mature, or (iv) ceases to be a bank holding company or financial holding company under the Bank Holding Company Act of 1956, as amended;
(d) the failure of the Company to pay any installment of interest on any of the Subordinated Notes as and when the same will become due and payable, and the continuation of such failure for a period of fifteen (15) consecutive calendar days;.
(e) If, within 60 days after the failure commencement against the Company of a case under the federal bankruptcy laws, as now or hereafter constituted, or any other applicable federal or state bankruptcy, insolvency or other similar law (an "Insolvency Proceeding"), such case shall have been consented to or shall not have been dismissed or all orders or proceedings thereunder affecting the operations or the business of the Company to pay all stayed, or any part of if the principal stay of any of such order or proceeding shall thereafter be set aside, or if within 60 days after the Subordinated Notes as and when the same will become due and payable;
(f) the liquidation of the Company (for the avoidance of doubt, “liquidation” does not include any merger, consolidation, sale of equity or assets or reorganization (exclusive entry of a reorganization in bankruptcydecree appointing a trustee, receiver or liquidator (or other similar official ) of the Company or any substantial part of its subsidiaries); orthe property of the Company such appointment shall not have been vacated.
(f) A Change of Control or sale of a majority of the business or assets of the Company unless approved by the member of the Board of Directors nominated by the Majority Noteholders, or approved by the Majority Noteholders or by the Agent.
(g) the default Attachment or breach judgment in excess of the Company to materially perform any other covenant $500,000 that is not covered by insurance if not discharged, annulled or agreement on the part of the Company contained in the Subordinated Notes stayed within 30 days thereafter.
(h) The occurrence and the continuation of such default or breach (without such default or breach having been waived in accordance with the provisions of Section 17) for a period of 90 consecutive calendar days after there has been given to the Company by the Holders of not less than 25.0% in principal amount of the outstanding Subordinated Notes, by registered or certified mail, in the manner set forth in Section 22, a written notice specifying such default or breach and requiring it to be remedied, and stating that such notice is a “Notice of Default” hereunder. Unless the principal of this Subordinated Note already shall have become due and payable, if an Event of Default described in Section 5(a) or Section 5(b) shall have occurred and be continuing, the holder of this Subordinated Note, by notice in writing to Company, may declare the principal amount of this Subordinated Note to be due and payable immediately and, upon any such declaration, the same shall become and shall be immediately due and payable. The Company waives demand, presentment for payment, notice of nonpayment, notice of protest, and all other notices. Notwithstanding the foregoing, because the Company will treat the Subordinated Notes as Tier 2 Capital, upon the occurrence continuance of an Event of Default under other than an Event of Default described in Section 5(a) or Section 5(b), the Noteholders may not accelerate the Stated Maturity Indebtedness of the Subordinated Notes and make the principal of, and any accrued and unpaid interest on, the Subordinated Notes, immediately due and payable. The Company, within forty-five (45) calendar days after the receipt of written notice from any Noteholder of the occurrence of Company that results in an Event of Default with respect to this Subordinated Note, shall mail to all Noteholders, at their addresses shown on the Security Register (as defined in Section 14 below), such written notice of Event of Default, unless such Event of Default shall have been cured or waived before the giving acceleration of such notice as certified by Indebtedness of the Company in writing. Prior to any acceleration excess of this Subordinated Note, a Noteholder may waive pursuant to Section 18 below any past Event of Default. In addition, a Noteholder may rescind a declaration of acceleration of this Subordinated Note before any judgment has been obtained if (i) the Company pays all matured installments of principal of and interest on this Subordinated Note (other than installments due by reason of acceleration) and interest on the overdue installments; and (ii) all other Events of Default with respect to this Subordinated Note have been cured or waived$500,000.
Appears in 1 contract
Events of Default; Acceleration. Each If any of the following events shall constitute (each an “Event of Default”) shall occur:
(a) Debtor shall fail to pay any principal of interest on this Promissory Note or any other sum due under this Promissory Note, any Transaction Document, or any other note or other agreement between Debtor and RACC when the entry same becomes due and such failure shall continue for ten (10) days beyond the due date of a decree such payment;
(b) Debtor shall fail to perform any term, covenant or order for relief agreement contained in respect any of the Company by Transaction Documents and such failure shall continue for thirty (30) days after written notice;
(c) any representation or warranty of Debtor in any of the Transaction Documents or in any certificate or notice given in connection therewith shall have been false or misleading in any material respect at the time made or deemed to have been made;
(d) Debtor shall be in default under any agreement or agreements evidencing (i) any other debt and similar monetary obligations (including, without limitation, capitalized leases, synthetic leases or securitization transactions) (collectively, “Indebtedness”) owing to RACC or any of its affiliates, or (ii) any other Indebtedness in excess of $100,000.00 in aggregate principal amount, or shall fail to pay any such Indebtedness when due or within any applicable period of grace;
(e) any of the Transaction Documents shall cease to be in full force and effect;
(f) Debtor (i) shall make an assignment for the benefit of creditors; (ii) shall be adjudicated bankrupt or insolvent; (iii) shall seek the appointment of, or be the subject of an order appointing, a court having jurisdiction in the premises in an involuntary trustee, liquidator or receiver as to all or part of its assets, (iv) shall commence, approve or consent to, any case or proceeding under any applicable bankruptcy, insolvencyreorganization or similar law and, in the case of an involuntary case or reorganization lawproceeding, now such case or hereafter in effect of the United States or any political subdivision thereof, and such decree or order will have continued unstayed and in effect for a period of sixty proceeding is not dismissed within forty-five (6045) consecutive calendar days;
(b) days following the commencement by the Company of a voluntary case under any applicable bankruptcy, insolvency or reorganization law, now or hereafter in effect of the United States or any political subdivision thereof, or (v) shall be the consent by the Company to the entry subject of a decree or an order for relief in an involuntary case or proceeding under any such federal bankruptcy law;
(cg) the Company (i) becomes insolvent or is Debtor shall be unable to pay its debts as they mature;
(h) there shall remain undischarged for more than thirty (30) days any final judgment or execution action against Debtor that, together with other outstanding claims and execution actions against Debtor, respectively, exceeds $100,000.00 in the aggregate;
(i) the prospect of payment or performance by Debtor or realization on the Collateral, in the reasonable opinion of RACC, is or becomes significantly impaired;
(j) any of the Aircraft shall have been lost, stolen or confiscated or shall have incurred substantial damage or have been destroyed to such an extent that the repair thereof is impracticable (as determined solely by RACC);
(k) Debtor (i) sells, transfers or disposes of all or substantially all of its respective stock, assets or property, (ii) makes an assignment for becomes the benefit of creditorssubject of, or engages in, a leveraged buy-out, or (iii) admits in writing terminates its inability to pay its debts as they matureexistence by merger, reorganization or (iv) ceases to be a bank holding company consolidation; or financial holding company under the Bank Holding Company Act of 1956if, for any reason, including, without limitation, as amended;
(d) the failure of the Company to pay any installment of interest on any of the Subordinated Notes as and when the same will become due and payable, and the continuation of such failure for a period of fifteen (15) consecutive calendar days;
(e) the failure of the Company to pay all or any part of the principal of any of the Subordinated Notes as and when the same will become due and payable;
(f) the liquidation of the Company (for the avoidance of doubt, “liquidation” does not include any merger, consolidation, sale of equity or assets or reorganization (exclusive result of a reorganization stock issuance or other capital event, there is a change in bankruptcycontrol of forty percent (40%) or more of Debtor’s voting capital stock issued and outstanding from time to time on a fully-diluted basis (and taking into account all voting capital stock than any persons have the Company right to acquire pursuant to any option or any of its subsidiariesconversion rights); or
(gl) the default or breach an Event of the Company to materially perform any other covenant or agreement on the part of the Company contained Default as defined in the Subordinated Notes and Restructuring Agreement shall occur; THEN, or at any time thereafter:
(1) In the continuation case of such default any Event of Default under clauses (f) or breach (without such default or breach having been waived in accordance with g), the provisions of Section 17) for a period of 90 consecutive calendar days after there has been given to the Company by the Holders of not less than 25.0% in entire unpaid principal amount of the outstanding Subordinated Notesthis Promissory Note and all other amounts payable hereunder, by registered or certified mail, in the manner set forth in Section 22, a written notice specifying such default or breach and requiring it to be remedied, and stating that such notice is a “Notice of Default” hereunder. Unless the principal of this Subordinated Note already shall have automatically become forthwith due and payable, if an without presentment, demand, protest or notice of any kind, all of which are hereby expressly waived by Debtor; and
(2) In the case of any Event of Default described in Section 5(aother than under clauses (f) or Section 5(b) shall have occurred and be continuing(g), the holder of this Subordinated NoteRACC may, by written notice in writing to CompanyDebtor, may declare the unpaid principal amount of this Subordinated Promissory Note and all other amounts payable hereunder, to be due and payable immediately and, upon any such declaration, the same shall become and shall be immediately forthwith due and payable. The Company waives , without presentment, demand, presentment for payment, protest or further notice of nonpaymentany kind, notice all of protest, which are hereby expressly waived by Debtor. In addition to and all other notices. Notwithstanding without in any way limiting the foregoing, because the Company will treat the Subordinated Notes as Tier 2 Capital, upon the occurrence of an Event of Default or at any time thereafter, RACC may employ all remedies allowed by law, including, without limitation, those available to a secured party under the Uniform Commercial Code. No remedy herein conferred upon RACC is intended to be exclusive of any other than an Event of Default described remedy and each and every remedy shall be cumulative and in Section 5(a) addition to every other remedy hereunder, now or Section 5(b), the Noteholders may not accelerate the Stated Maturity of the Subordinated Notes and make the principal of, and any accrued and unpaid interest on, the Subordinated Notes, immediately due and payable. The Company, within forty-five (45) calendar days after the receipt of written notice from any Noteholder of the occurrence of an Event of Default with respect to this Subordinated Note, shall mail to all Noteholders, hereafter existing at their addresses shown on the Security Register (as defined law or in Section 14 below), such written notice of Event of Default, unless such Event of Default shall have been cured equity or waived before the giving of such notice as certified by the Company in writing. Prior to any acceleration of this Subordinated Note, a Noteholder may waive pursuant to Section 18 below any past Event of Default. In addition, a Noteholder may rescind a declaration of acceleration of this Subordinated Note before any judgment has been obtained if (i) the Company pays all matured installments of principal of and interest on this Subordinated Note (other than installments due by reason of acceleration) and interest on the overdue installments; and (ii) all other Events of Default with respect to this Subordinated Note have been cured or waivedotherwise.
Appears in 1 contract
Events of Default; Acceleration. Each If one or more of the following events shall constitute an “Event (herein called "Events of Default”:
") shall occur for any reason whatsoever (a) the entry and whether such occurrence shall be voluntary or involuntary or be effected by operation of a law or pursuant to any judgment, decree or order of any court or any order, rule or regulation of any administrative or governmental body):
A. default in the payment of any interest upon the Note when such interest becomes due and payable, and such default shall have continued for relief a period of ten (10) days; or
B. default in respect the payment of principal of (or prepayment premium, if any, on) the Note when and as the same shall become due and payable, whether at maturity or at a date fixed for principal payment or prepayment (including, without limitation, a principal payment or prepayment as provided in Section 6.1 or Section 6.2), or by acceleration or otherwise, and such default shall have continued for a period of ten (10) days; or
C. default in the performance or observance of any other covenant, agreement or condition contained herein, in the Note, the Mortgage, the Assignment, the Security Agreement or the Post-Closing Environmental Agreement, and such default shall have continued for a period of thirty (30) days after notice of such default from you, or any Event of Default under the Mortgage or Assignment or Default under the Security Agreement shall occur; or
D. any default shall exist after the expiration of any applicable cure, notice, or grace periods, under any evidence of Indebtedness of the Company or a Subsidiary (other than the Note) or under any agreement under which the same may have been issued permitting such evidence of Indebtedness to become or be declared due prior to the stated maturity thereof; or
E. the Company or any Subsidiary shall file a petition seeking relief for itself under Title 11 of the United States Code, as now constituted or hereafter amended, or an answer consenting to, admitting the material allegations of or otherwise not controverting, or shall fail to timely controvert, a petition filed against the Company or such Subsidiary seeking relief under Title 11 of the United States Code, as now constituted or hereafter amended; or the Company or any Subsidiary shall file such a petition or answer with respect to relief under the provisions of any other now existing or future bankruptcy, insolvency or other similar law of the United States of America or any State thereof or of any other country or jurisdiction providing for the reorganization, winding-up or liquidation of corporations or an arrangement, composition, extension or adjustment with creditors; or
F. a court of competent jurisdiction shall enter an order for relief which is not stayed within 60 days from the date of entry thereof against the Company or any Subsidiary under Title 11 of the United States Code, as now constituted or hereafter amended; or there shall be entered an order, judgment or decree by operation of law or by a court having jurisdiction in the premises in an involuntary case which is not stayed within 60 days from the date of entry thereof adjudging the Company or proceeding any Subsidiary a bankrupt or insolvent, or ordering relief against the Company or any Subsidiary, or approving as properly filed a petition seeking relief against the Company or any Subsidiary, under the provisions of any applicable other now existing or future bankruptcy, insolvency, insolvency or reorganization law, now or hereafter in effect other similar law of the United States of America or any political subdivision thereofState thereof or of any other country or jurisdiction providing for the reorganization, and such decree winding-up or order will have continued unstayed and in effect for liquidation of corporations or an arrangement, composition, extension or adjustment with creditors, or appointing a period receiver, liquidator, assignee, sequestrator, trustee, custodian or similar official of sixty (60) consecutive calendar days;
(b) the commencement by the Company or any Subsidiary or of a voluntary case under any applicable bankruptcysubstantial part of its property, insolvency or reorganization lawordering the reorganization, now winding-up or hereafter in effect liquidation of its affairs; or any involuntary petition against the Company or any Subsidiary seeking any of the United States relief specified in this clause shall not be dismissed within 60 days of its filing; or
G. the Company or any political subdivision thereof, or the consent by the Company to the entry of Subsidiary shall make a decree or order for relief in an involuntary case or proceeding under any such law;
(c) the Company (i) becomes insolvent or is unable to pay its debts as they mature, (ii) makes an general assignment for the benefit of its creditors, (iii) admits in writing its inability to pay its debts as they mature, ; or (iv) ceases to be a bank holding company or financial holding company under the Bank Holding Company Act of 1956, as amended;
(d) the failure of the Company to pay any installment of interest on any of the Subordinated Notes as and when the same will become due and payable, and the continuation of such failure for a period of fifteen (15) consecutive calendar days;
(e) the failure of the Company to pay all or any part Subsidiary shall consent to the appointment of the principal of any of the Subordinated Notes as and when the same will become due and payable;
(f) the liquidation of the Company (for the avoidance of doubtor taking possession by a receiver, “liquidation” does not include any mergerliquidator, consolidationassignee, sale of equity sequestrator, trustee, custodian or assets or reorganization (exclusive of a reorganization in bankruptcy) similar official of the Company or such Subsidiary or of all or any substantial part of its subsidiariesproperty; or the Company or any Subsidiary shall have admitted to its insolvency or inability to pay, or shall have failed to pay, its debts generally as such debts become due; or the Company or any Subsidiary or its directors or majority members shall take any action to dissolve or liquidate the Company or such Subsidiary (other than as contemplated by Section 8.5.A); or
H. the rendering against the Company or a Subsidiary of a final non-appealable judgment, decree or order for the payment of money in excess of $50,000 and the continuance of such judgment, decree or order unsatisfied and in effect for any period of 60 consecutive days without a stay of execution; or
I. the Company or any Subsidiary shall (g1) engage in any non-exempted "prohibited transaction," as defined in Sections 406 and 408 of ERISA and Section 4975 of the default Internal Revenue Code of 1986, as amended, (2) incur any "accumulated funding deficiency," as defined in Section 302 of ERISA, in an amount in excess of $50,000, whether or breach not waived, or (3) terminate or permit the termination of an "employee pension benefit plan," as defined in Section 3 of ERISA, in a manner which could result in the imposition of a Lien on any property of the Company or such Subsidiary pursuant to materially perform Section 4068 of ERISA securing an amount in excess of $50,000; or
J. any other covenant representation or agreement on warranty made by the part Company in Section 2 hereof or in any Collateral Document or in any certificate or instrument furnished in connection therewith shall prove to have been false or misleading in any material respect as of the Company contained date made; or
K. the dissolution of the Company, whether by operation of law or otherwise (other than as permitted under Section 8.5.A above); then an amount equal to the Prepayment Price, computed as provided in the Subordinated Notes and the continuation Section 6.2 (except that, for purposes of such default or breach (without such default or breach having been waived in accordance with computation, the provisions of Section 17) for a period of 90 consecutive calendar days after there has been given to the Company by the Holders of not less than 25.0% in principal amount of the outstanding Subordinated Notes, by registered or certified mail, in the manner set forth in Section 22, a written notice specifying such default or breach and requiring it Prepayment Date shall be deemed to be remedied, and stating that such notice is a “Notice of Default” hereunder. Unless the principal of this Subordinated Note already shall have become due and payable, if an Event of Default described in Section 5(a) or Section 5(b) shall have occurred and be continuing, date upon which the holder of this Subordinated Note, by notice in writing to Company, may declare the principal amount of this Subordinated Note shall have declared the Note to be due and payable payable), shall immediately and, upon any such declaration, the same shall become and shall be immediately due and payable. The Company waives payable without notice or demand, presentment for paymenttogether with accrued interest thereon at the Overdue Interest Rate, notice of nonpaymentprovided, notice of protesthowever, and all other notices. Notwithstanding the foregoing, because the Company will treat the Subordinated Notes as Tier 2 Capital, that upon the occurrence of an Event of Default other than an Event of Default described in Section 5(aclauses (E), (F) or (G) of this Section 5(b)10.1, the Noteholders may not accelerate the Stated Maturity entire outstanding principal amount of the Subordinated Notes and make Note, together with accrued interest thereon at the principal ofOverdue Interest Rate, and any accrued and unpaid interest on, the Subordinated Notes, shall immediately become due and payablepayable without notice or demand. The CompanyCompany hereby expressly acknowledges and agrees (i) that the prepayment premiums provided for herein are reasonable, within forty-five (45ii) calendar days after the receipt of written notice from any Noteholder that legal counsel of the occurrence of an Event of Default Company's own choosing has advised the Company with respect to this Subordinated such prepayment premiums, (iii) that any prepayment made at a time when it is otherwise restricted under the Note will result in material loss and damage to the holder of the Note, shall mail requiring such holder to all Noteholderssecure reinvestments at additional costs which might not produce the same economic benefit to such holder as the economic benefits under the Note, at their addresses shown on (iv) that the Security Register (as defined in Section 14 below), such written notice of Event of Default, unless such Event of Default shall have been cured or waived before the giving prepayment premiums provided for herein are a reasonable estimate of such notice as certified by the Company in writing. Prior to any acceleration of this Subordinated Noteloss and damage, a Noteholder may waive pursuant to Section 18 below any past Event of Default. In addition, a Noteholder may rescind a declaration of acceleration of this Subordinated Note before any judgment has been obtained if and (iv) the Company pays all matured installments shall be estopped hereafter from claiming differently as to any of principal the foregoing. The prepayment premiums are not intended to be a penalty, but instead shall serve as liquidated damages to provide you with the benefit of and interest on this Subordinated Note (other than installments due by reason of acceleration) and interest on the overdue installments; and (ii) all other Events of Default with respect to this Subordinated Note have been cured or waivedyour bargain.
Appears in 1 contract
Sources: Loan Agreement (Cagles Inc)
Events of Default; Acceleration. Each If any of the following events shall constitute (each an “Event of Default”) shall occur:
(a) Debtor shall fail to pay any principal of interest on this Promissory Note or any other sum due under this Promissory Note, any Transaction Document, or any other note or other agreement between Debtor and RACC whether the entry same becomes due and such failure shall continue for ten (10) days beyond the due date of a decree such payment;
(b) Debtor shall fail to perform any term, covenant or order for relief agreement contained in respect any of the Company by Transaction Documents and such failure shall continue for thirty (30) days after written notice;
(c) any representation or warranty of Debtor in any of the Transaction Documents or in any certificate or notice given in connection therewith shall have been false or misleading in any material respect at the time made or deemed to have been made;
(d) Debtor shall be in default under any agreement or agreements evidencing (i) any other debt and similar monetary obligations (including, without limitation, capitalized leases, synthetic leases or securitization transactions) (collectively, “Indebtedness”) owing to RACC or any of its affiliates, or (ii) any other Indebtedness in excess of $100,000.00 in aggregate principal amount, or shall fail to pay any such Indebtedness when due or within any applicable period of grace;
(e) any of the Transaction Documents shall cease to be in full force and effect;
(f) Debtor (i) shall make an assignment for the benefit of creditors; (ii) shall be adjudicated bankrupt or insolvent; (iii) shall seek the appointment of, or be the subject of an order appointing, a court having jurisdiction in the premises in an involuntary trustee, liquidator or receiver as to all or part of its assets, (iv) shall commence, approve or consent to, any case or proceeding under any applicable bankruptcy, insolvencyreorganization or similar law and, in the case of an involuntary case or reorganization lawproceeding, now such ease or hereafter in effect of the United States or any political subdivision thereof, and such decree or order will have continued unstayed and in effect for a period of sixty proceeding is not dismissed within forty-five (6045) consecutive calendar days;
(b) days following the commencement by the Company of a voluntary case under any applicable bankruptcy, insolvency or reorganization law, now or hereafter in effect of the United States or any political subdivision thereof, or (v) shall be the consent by the Company to the entry subject of a decree or an order for relief in an involuntary case or proceeding under any such federal bankruptcy law;
(cg) the Company (i) becomes insolvent or is Debtor shall be unable to pay its debts as they mature, (ii) makes an assignment for the benefit of creditors, (iii) admits in writing its inability to pay its debts as they mature, or (iv) ceases to be a bank holding company or financial holding company under the Bank Holding Company Act of 1956, as amended;
(dh) there shall remain undischarged for more than thirty (30) days any final judgment or execution action against Debtor that, together with other outstanding claims and execution actions against Debtor, respectively, exceeds $100,000.00 in the failure of aggregate;
(i) to the Company to pay any installment of interest on extent not covered by insurance, any of the Subordinated Notes Aircraft shall have been lost, stolen or confiscated or shall have incurred substantial damage or have been destroyed to such an extent that the repair thereof is impracticable (as and when the same will become due and payable, and the continuation of such failure for a period of fifteen (15) consecutive calendar days;
(e) the failure of the Company to pay all or any part of the principal of any of the Subordinated Notes as and when the same will become due and payable;
(f) the liquidation of the Company (for the avoidance of doubt, “liquidation” does not include any merger, consolidation, sale of equity or assets or reorganization (exclusive of a reorganization in bankruptcy) of the Company or any of its subsidiariesdetermined solely by RACC); or
(g) the default or breach of the Company to materially perform any other covenant or agreement on the part of the Company contained in the Subordinated Notes and the continuation of such default or breach (without such default or breach having been waived in accordance with the provisions of Section 17) for a period of 90 consecutive calendar days after there has been given to the Company by the Holders of not less than 25.0% in principal amount of the outstanding Subordinated Notes, by registered or certified mail, in the manner set forth in Section 22, a written notice specifying such default or breach and requiring it to be remedied, and stating that such notice is a “Notice of Default” hereunder. Unless the principal of this Subordinated Note already shall have become due and payable, if an Event of Default described in Section 5(a) or Section 5(b) shall have occurred and be continuing, the holder of this Subordinated Note, by notice in writing to Company, may declare the principal amount of this Subordinated Note to be due and payable immediately and, upon any such declaration, the same shall become and shall be immediately due and payable. The Company waives demand, presentment for payment, notice of nonpayment, notice of protest, and all other notices. Notwithstanding the foregoing, because the Company will treat the Subordinated Notes as Tier 2 Capital, upon the occurrence of an Event of Default other than an Event of Default described in Section 5(a) or Section 5(b), the Noteholders may not accelerate the Stated Maturity of the Subordinated Notes and make the principal of, and any accrued and unpaid interest on, the Subordinated Notes, immediately due and payable. The Company, within forty-five (45) calendar days after the receipt of written notice from any Noteholder of the occurrence of an Event of Default with respect to this Subordinated Note, shall mail to all Noteholders, at their addresses shown on the Security Register (as defined in Section 14 below), such written notice of Event of Default, unless such Event of Default shall have been cured or waived before the giving of such notice as certified by the Company in writing. Prior to any acceleration of this Subordinated Note, a Noteholder may waive pursuant to Section 18 below any past Event of Default. In addition, a Noteholder may rescind a declaration of acceleration of this Subordinated Note before any judgment has been obtained if (i) the Company pays all matured installments of principal of and interest on this Subordinated Note (other than installments due by reason of acceleration) and interest on the overdue installments; and (ii) all other Events of Default with respect to this Subordinated Note have been cured or waived.
Appears in 1 contract
Sources: Group a Engine Overhaul Note (Great Lakes Aviation LTD)
Events of Default; Acceleration. Each (a) If any of the following events shall constitute occur, it shall be an event of default (“Event of Default”:) unless and until cured by Borrower.
(ai) the entry After five (5) days written notice from ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ fails to pay any interest or principal under this Note after any of a decree or order for relief in respect of the Company by a court having jurisdiction in the premises in an involuntary case or proceeding under any applicable bankruptcy, insolvency, or reorganization law, now or hereafter in effect of the United States or any political subdivision thereof, and such decree or order will have continued unstayed and in effect for a period of sixty (60) consecutive calendar daysamounts are due;
(bii) After the commencement earlier to occur of five (5) days prior written notice by the Company of a voluntary case under any applicable bankruptcy, insolvency or reorganization law, now or hereafter in effect of the United States or any political subdivision thereof, ▇▇▇▇▇▇ or the consent date of actual knowledge of Borrower, any representation or warranty made by Borrower in the Company Loan Agreement proves to the entry of a decree or order for relief have been incorrect in an involuntary case or proceeding under any such lawmaterial respect when made;
(ciii) After the Company earlier to occur of five (i5) becomes insolvent days prior written notice by ▇▇▇▇▇▇ or is unable the date of actual knowledge of Borrower, Borrower fails to observe or comply with any of the covenants in Section 5 of the Loan Agreement or in any Collateral Document under the Loan Agreement; or
(iv) Borrower shall generally not pay its debts as they maturesuch debts become due, (ii) makes an assignment for the benefit of creditors, (iii) admits or shall admit in writing its inability to pay its debts as they maturegenerally, or (iv) ceases shall make a general assignment for the benefit of creditors; or any proceeding shall be instituted by or against Borrower seeking to be adjudicate it a bank holding company bankrupt or financial holding company insolvent, or seeking liquidation, winding up, reorganization, arrangement, adjustment protection, relief, or composition of it or its debts under any law relating to bankruptcy, insolvency or reorganization or relief of debtors, or seeking the Bank Holding Company Act entry of 1956an order for relief or the appointment of a receiver, as amended;
(d) the failure trustee, or other similar official for it or for any substantial part of the Company to pay any installment of interest on any of the Subordinated Notes as and when the same will become due and payableits property and, and the continuation of such failure if instituted against Borrower, shall remain undismissed for a period of fifteen (15) consecutive calendar thirty days;
(e) the failure of the Company to pay all or any part of the principal of any of the Subordinated Notes as and when the same will become due and payable;
(f) the liquidation of the Company (for the avoidance of doubt, “liquidation” does not include any merger, consolidation, sale of equity or assets or reorganization (exclusive of a reorganization in bankruptcy) of the Company or any of its subsidiaries); or
(g) the default or breach of the Company to materially perform any other covenant or agreement on the part of the Company contained in the Subordinated Notes and the continuation of such default or breach (without such default or breach having been waived in accordance with the provisions of Section 17) for a period of 90 consecutive calendar days after there has been given to the Company by the Holders of not less than 25.0% in principal amount of the outstanding Subordinated Notesthen Lender may, by registered or certified mail, in the manner set forth in Section 22, a additional written notice specifying such default or breach and requiring it to be remedied▇▇▇▇▇▇▇▇, and stating that such notice is a “Notice of Default” hereunder. Unless the principal of this Subordinated Note already shall have become due and payable, if an Event of Default described in Section 5(a) or Section 5(b) shall have occurred and be continuing, the holder of this Subordinated Note, by notice in writing to Company, may declare the entire principal amount of this Subordinated Note to be due and payable immediately andimmediately, together with all unpaid interest accrued thereon from the date hereof to the date of payment hereunder; provided, however, that upon the occurrence and continuance of any such declarationof the Events of Default set forth in subsection (iv) above, the same this Note shall automatically mature and become and shall be immediately due and payable. The Company waives , together with interest accrued thereon, without presentment, demand, presentment for payment, protest or notice of nonpayment, notice any kind all of protest, and all other noticeswhich are hereby expressly waived. Notwithstanding the foregoing, because the Company will treat the Subordinated Notes as Tier 2 Capital, upon the occurrence of {00080488.5 / 0831-002}
(b) Upon an Event of Default other than an Event of Default described in Section 5(a) or Section 5(b), the Noteholders may not accelerate the Stated Maturity of the Subordinated Notes and make the principal of, and any accrued and unpaid interest on, the Subordinated Notes, immediately due and payable. The Company, within forty-five (45) calendar days after the receipt of written notice from any Noteholder of the occurrence of an Event of Default with respect to this Subordinated Note, shall mail to all Noteholders, at their addresses shown on the Security Register (as defined in Section 14 below), such written notice of Event of Default, unless such Event Lender may proceed to protect and enforce its rights either by suit in equity or by action at law, or both, whether for the specific performance of Default shall have been cured any covenant or waived before agreement contained in this Note or in the giving aid of such notice as certified by the Company exercise of any power granted in writing. Prior to any acceleration of this Subordinated Note, a Noteholder or Lender may waive pursuant proceed to Section 18 below enforce the payment of the Note or to enforce any past Event of Defaultother legal or equitable right it may possess. In addition, a Noteholder may rescind a declaration of acceleration of this Subordinated Note before any judgment has been obtained if (i) the Company pays all matured installments of principal of and interest If action is instituted on this Subordinated Note (other than installments due to enforce payment hereof, ▇▇▇▇▇▇▇▇ agrees to pay reasonable attorneys’ fees and disbursements incurred by reason ▇▇▇▇▇▇ in the collection thereof, which fees and disbursements shall be added to the principal amount of acceleration) and interest on the overdue installments; and (ii) all other Events of Default with respect to indebtedness evidenced by this Subordinated Note have been cured or waivedNote.
Appears in 1 contract
Sources: Promissory Note (Adsero Corp)
Events of Default; Acceleration. Each If one or more of the following events shall constitute an “Event (herein called "Events of Default”:
") shall occur for any reason whatsoever (a) the entry and whether such occurrence shall be voluntary or involuntary or be effected by operation of a law or pursuant to any judgment, decree or order of any court or any order, rule or regulation of any administrative or governmental body):
A. default in the payment of any interest upon the Note when such interest becomes due and payable, and such default shall have continued for relief a period of ten days; or
B. default in respect the payment of principal of (or prepayment premium, if any, on) the Note when and as the same shall become due and payable, whether at maturity or at a date fixed for principal payment or prepayment (including, without limitation, a principal payment or prepayment as provided in Section 6.1 or Section 6.2), or by acceleration or otherwise, and such default shall have continued for a period of ten days; or
C. default in the performance or observance of any other covenant, agreement or condition contained herein, in the Note, the Deed of Trust, the Assignment or the Security Agreement or any Event of Default under the Deed of Trust or Assignment or Default under the Security Agreement shall occur, and such default shall have continued for a period of thirty days after notice from you; or
D. the Company or a Subsidiary shall not pay when due, whether by acceleration or otherwise, any evidence of indebtedness of the Company or such Subsidiary (other than the Note), or any condition or default shall exist under any such evidence of indebtedness or under any agreement under which the same may have been issued permitting such evidence of indebtedness to become or be declared due prior to the stated maturity thereof; or
E. the Company or any Subsidiary shall file a petition seeking relief for itself under Title 11 of the United States Code, as now constituted or hereafter amended, or an answer consenting to, admitting the material allegations of or otherwise not controverting, or shall fail to timely controvert, a petition filed against the Company or such Subsidiary seeking relief under Title 11 of the United States Code, as now constituted or hereafter amended; or the Company or any Subsidiary shall file such a petition or answer with respect to relief under the provisions of any other now existing or future bankruptcy, insolvency or other similar law of the United States of America or any State thereof or of any other country or jurisdiction providing for the reorganization, winding-up or liquidation of corporations or an arrangement, composition, extension or adjustment with creditors; or
F. a court of competent jurisdiction shall enter an order for relief which is not stayed within 60 days from the date of entry thereof against the Company or any Subsidiary under Title 11 of the United States Code, as now constituted or hereafter amended; or there shall be entered an order, judgment or decree by operation of law or by a court having jurisdiction in the premises in an involuntary case which is not stayed within 60 days from the date of entry thereof adjudging the Company or proceeding any Subsidiary a bankrupt or insolvent, or ordering relief against the Company or any Subsidiary, or approving as properly filed a petition seeking relief against the Company or any Subsidiary, under the provisions of any applicable other now existing or future bankruptcy, insolvency, insolvency or reorganization law, now or hereafter in effect other similar law of the United States of America or any political subdivision thereofState thereof or of any other country or jurisdiction providing for the reorganization, and such decree winding-up or order will have continued unstayed and in effect for liquidation of corporations or an arrangement, composition, extension or adjustment with creditors, or appointing a period receiver, liquidator, assignee, sequestrator, trustee, custodian or similar official of sixty (60) consecutive calendar days;
(b) the commencement by the Company or any Subsidiary or of a voluntary case under any applicable bankruptcysubstantial part of its property, insolvency or reorganization lawordering the reorganization, now winding-up or hereafter in effect liquidation of its affairs; or any involuntary petition against the Company or any Subsidiary seeking any of the United States relief specified in this clause shall not be dismissed within 60 days of its filing; or
G. the Company or any political subdivision thereof, or the consent by the Company to the entry of Subsidiary shall make a decree or order for relief in an involuntary case or proceeding under any such law;
(c) the Company (i) becomes insolvent or is unable to pay its debts as they mature, (ii) makes an general assignment for the benefit of its creditors, (iii) admits in writing its inability to pay its debts as they mature, ; or (iv) ceases to be a bank holding company or financial holding company under the Bank Holding Company Act of 1956, as amended;
(d) the failure of the Company to pay any installment of interest on any of the Subordinated Notes as and when the same will become due and payable, and the continuation of such failure for a period of fifteen (15) consecutive calendar days;
(e) the failure of the Company to pay all or any part Subsidiary shall consent to the appointment of the principal of any of the Subordinated Notes as and when the same will become due and payable;
(f) the liquidation of the Company (for the avoidance of doubtor taking possession by a receiver, “liquidation” does not include any mergerliquidator, consolidationassignee, sale of equity sequestrator, trustee, custodian or assets or reorganization (exclusive of a reorganization in bankruptcy) similar official of the Company or such Subsidiary or of all or any substantial part of its subsidiariesproperty; or the Company or any Subsidiary shall have admitted to its insolvency or inability to pay, or shall have failed to pay, its debts generally as such debts become due; or the Company or any Subsidiary or its directors or majority members shall take any action to dissolve or liquidate the Company or such Subsidiary (other than as contemplated by Section 8.5A); or
H. the rendering against the Company or a Subsidiary of a final non-appealable judgment, decree or order for the payment of money in excess of $10,000 and the continuance of such judgment, decree or order unsatisfied and in effect for any period of 60 consecutive days without a stay of execution; or
I. the Company or any Subsidiary shall (g1) engage in any non-exempted "prohibited transaction," as defined in Sections 406 and 408 of ERISA and Section 4975 of the default Internal Revenue Code of 1986, as amended, (2) incur any "accumulated funding deficiency," as defined in Section 302 of ERISA, in an amount in excess of $10,000, whether or breach not waived, or (3) terminate or permit the termination of an "employee pension benefit plan," as defined in Section 3 of ERISA, in a manner which could result in the imposition of a Lien on any property of the Company or such Subsidiary pursuant to materially perform Section 4068 of ERISA securing an amount in excess of $10,000; or
J. any other covenant representation or agreement on warranty made by the part Company in Section 2 hereof or in any Collateral Document or in any certificate or instrument furnished in connection therewith shall prove to have been false or misleading in any respect as of the Company contained date made; or
K. the dissolution of the Company, whether by operation of law or otherwise; then an amount equal to the Prepayment Price, computed as provided in the Subordinated Notes and the continuation Section 6.2 (except that, for purposes of such default or breach (without such default or breach having been waived in accordance with computation, the provisions of Section 17) for a period of 90 consecutive calendar days after there has been given to the Company by the Holders of not less than 25.0% in principal amount of the outstanding Subordinated Notes, by registered or certified mail, in the manner set forth in Section 22, a written notice specifying such default or breach and requiring it Prepayment Date shall be deemed to be remedied, and stating that such notice is a “Notice of Default” hereunder. Unless the principal of this Subordinated Note already shall have become due and payable, if an Event of Default described in Section 5(a) or Section 5(b) shall have occurred and be continuing, date upon which the holder of this Subordinated Note, by notice in writing to Company, may declare the principal amount of this Subordinated Note shall have declared the Note to be due and payable payable), shall immediately and, upon any such declaration, the same shall become and shall be immediately due and payable. The Company waives payable without notice or demand, presentment for paymenttogether with accrued interest thereon at the Overdue Interest Rate, notice of nonpaymentprovided, notice of protesthowever, and all other notices. Notwithstanding the foregoing, because the Company will treat the Subordinated Notes as Tier 2 Capital, that upon the occurrence of an Event of Default other than an Event of Default described in Section 5(a) or Section 5(b), the Noteholders may not accelerate the Stated Maturity of the Subordinated Notes and make the principal of, and any accrued and unpaid interest on, the Subordinated Notes, immediately due and payable. The Company, within forty-five (45) calendar days after the receipt of written notice from any Noteholder of the occurrence of an Event of Default with respect to this Subordinated Note, shall mail to all Noteholders, at their addresses shown on the Security Register (as defined in Section 14 below), such written notice of Event of Default, unless such Event of Default shall have been cured or waived before the giving of such notice as certified by the Company in writing. Prior to any acceleration of this Subordinated Note, a Noteholder may waive pursuant to Section 18 below any past Event of Default. In addition, a Noteholder may rescind a declaration of acceleration of this Subordinated Note before any judgment has been obtained if (i) the Company pays all matured installments of principal of and interest on this Subordinated Note (other than installments due by reason of acceleration) and interest on the overdue installments; and (ii) all other Events of Default with respect to this Subordinated Note have been cured or waived.the
Appears in 1 contract
Sources: Loan Agreement (United Foods Inc)
Events of Default; Acceleration. Each Any one or more of the following events shall (and whether such occurrence will be voluntary or involuntary or be affected by any Legal Requirement) will constitute an “"Event of Default”" hereunder:
(a) default in the entry payment of any interest upon the Note five business days after such interest becomes due and payable; or
(b) default in the payment of principal of (or prepayment premium, if any), on the Note five business days after the same will become due and payable, whether at maturity or at a decree date fixed for principal payment or prepayment, or by acceleration or otherwise; or
(c) default in the payment of any other obligations due under the Loan Documents or the Indemnity Agreement or under any document evidencing or securing any other loan made by Lender to Borrower or any Affiliate of Borrower after the lesser of five business days or any applicable notice or grace period specified therein, or the acceleration of debt under any of the foregoing regardless of whether such acceleration constitutes a default thereunder; or
(d) default in the performance or observance by Borrower or Guarantor of any other covenant, agreement or condition contained herein or in the Note, the Guaranty or any Default or Event of Default under the Loan Documents or the Indemnity Agreement, and such default shall continue unremedied for a period of 30 days after the occurrence thereof; or
(e) Borrower will not pay within five business days after such due date, whether by acceleration or otherwise, any evidence of Indebtedness of Borrower (other than the Note), or any condition or default will exist under any such evidence of Indebtedness or under any agreement under which the same may have been issued permitting acceleration of such evidence of Indebtedness; or
(f) Borrower will file a petition seeking relief for itself under Title 11 of the United States Code, as now constituted or hereafter amended, or an answer consenting to, admitting the material allegations of or otherwise not controverting, or will fail to timely controvert, a petition filed against Borrower seeking relief under Title 11 of the United States Code, as now constituted or hereafter amended; or Borrower will file such a petition or answer with respect to relief under the provisions of any other now existing or future bankruptcy, insolvency or other similar law of any Governmental Authority providing for the reorganization, winding‑up or liquidation of corporations or an arrangement, composition, extension or adjustment with creditors; or
(g) a court of competent jurisdiction will enter an order for relief in respect which is not stayed within sixty (60) days from the date of entry thereof against Borrower under Title 11 of the Company United States Code; or there will be entered an order, judgment or decree by operation of law or by a court having jurisdiction in the premises in an involuntary case which is not stayed within sixty (60) days from the date of entry thereof adjudging Borrower bankrupt or proceeding insolvent, or ordering relief against Borrower, or approving as properly filed a petition seeking relief against Borrower, under the provisions of any applicable other now existing or future bankruptcy, insolvencyinsolvency or other similar law of any Governmental Authority providing for the reorganization, winding‑up or liquidation of corporations or an arrangement, composition, extension or adjustment with creditors, or reorganization lawappointing a receiver, now liquidator, assignee, sequestrator, trustee, custodian or hereafter in effect similar official of Borrower or of any substantial part of its property, or ordering the reorganization, winding‑up or liquidation of its affairs; or any involuntary petition against Borrower seeking any of the United States relief specified in this clause which will not be dismissed within sixty (60) days of its filing; or
(h) Borrower will make a general assignment for the benefit of its creditors; or Borrower will consent to the appointment of, or taking possession of all or any political subdivision thereofsubstantial part of its property by, and a receiver, liquidator, assignee, sequestrator, trustee, custodian or similar official of Borrower; or Borrower will have admitted to its insolvency or inability to pay, or will have failed to pay, its debts generally as such debts become due; or Borrower or its directors or majority equity interest holders will take any action to dissolve or liquidate Borrower; or
(i) the rendering against the Borrower of a final non appealable judgment, decree or order will have continued unstayed for the payment of money in excess of one million dollars ($1,000,000.00) and the continuance of such judgment, decree or order unsatisfied and in effect for a period of sixty (60) consecutive calendar days;days without a stay of execution; or
(bj) the commencement by the Company Borrower will (1) engage in any non‑exempted “prohibited transaction,” as defined in Sections 406 and 408 of a voluntary case under any applicable bankruptcy, insolvency or reorganization law, now or hereafter in effect ERISA and Section 4975 of the United States or Internal Revenue Code of 1986, as amended, (2) incur any political subdivision thereof“accumulated funding deficiency,” as defined in Section 302 of ERISA, or the consent by the Company to the entry of a decree or order for relief in an involuntary case amount in excess of $500,000.00, whether or proceeding under any such law;
(c) the Company (i) becomes insolvent or is unable to pay its debts as they mature, (ii) makes an assignment for the benefit of creditors, (iii) admits in writing its inability to pay its debts as they maturenot waived, or (iv3) ceases terminate or permit the termination of an “employee pension benefit plan,” as defined in Section 3 of ERISA, in a manner which could result in the imposition of a Lien on any property of Borrower pursuant to be a bank holding company or financial holding company under the Bank Holding Company Act Section 4068 of 1956, as amended;ERISA securing an amount in excess of $500,000.00; or
(dk) any representation or warranty made by Borrower or Guarantor herein or in any Loan Document or the Indemnity Agreement or in any certificate or instrument furnished in connection therewith will prove to have been false or misleading in any material respect as of the date made; or
(l) any Facility is rezoned, voluntarily or involuntarily without Lender’s prior written consent that results in a violation of the Loan to Value ratio pursuant to Section 7.1 that remains un-remedied for ninety (90) days; or
(m) the failure dissolution of the Company to pay any installment of interest on any of the Subordinated Notes as and when the same will become due and payable, and the continuation of such failure for a period of fifteen (15) consecutive calendar days;
(e) the failure of the Company to pay all or any part of the principal of any of the Subordinated Notes as and when the same will become due and payable;
(f) the liquidation of the Company (for the avoidance of doubt, “liquidation” does not include any merger, consolidation, sale of equity or assets or reorganization (exclusive of a reorganization in bankruptcy) of the Company Borrower or any of its subsidiaries)members, whether by operation of law or otherwise; or
(gn) Borrower will suffer or permit any Facility, or any part thereof, to be used in such manner as might (1) impair Borrower’s title to any Facility, or any part thereof; or (2) create rights of adverse use or possession; or (3) constitute an implied dedication of any Facility, or any part thereof.
(1) the default guarantee by Guarantor or breach of the Company Indemnity Agreement for any reason will cease to materially perform any be in full force and effect other covenant or agreement on the part of the Company contained in the Subordinated Notes and the continuation of such default or breach (without such default or breach having been waived than in accordance with its terms or the provisions of Section 17Guarantor will deny its liability under the guarantee or the Indemnity Agreement, or (2) for any security interest purported to be created by the Security Instrument or other Loan Documents will cease to be, or will be asserted by the Borrower not to be a period of 90 consecutive calendar days after there valid, perfected first priority security interest in the Collateral, unless such security interest has been given to the Company renewed and perfected within five (5) days of its ceasing.
(p) any default by the Holders of not less than 25.0% in Guarantor shall exist and be continuing (after any applicable grace or notice period), with respect to any other borrowing agreements (which aggregate principal amount is in excess of the outstanding Subordinated Notes, by registered or certified mail, in the manner set forth in Section 22, a written notice specifying $25,000,000.00) of Guarantor and which will cause such default or breach and requiring it Indebtedness to be remedied, and stating that such notice is a “Notice of Default” hereunder. Unless the principal of this Subordinated Note already shall have become due and payable, if an Event of Default described in Section 5(a) or Section 5(b) shall have occurred and be continuing, the holder of this Subordinated Note, by notice in writing to Company, may declare the principal amount of this Subordinated Note declared to be due and payable immediately andprior to its stated maturity or constitutes a failure to pay the principal of, upon any or interest on, such declaration, the same shall become and shall be immediately Indebtedness when due and payable. The Company waives demandpayable at its stated maturity, presentment for payment, notice of nonpayment, notice of protest, and all other notices. Notwithstanding the foregoing, because the Company will treat the Subordinated Notes as Tier 2 Capital, upon the occurrence of shall constitute an Event of Default other than an Event under the Loan.
(q) any Transfer of Default described in Section 5(atitle (including, without limitation, a leasehold interest) or Section 5(b), the Noteholders may not accelerate the Stated Maturity possession of all or any portion of the Subordinated Notes and make Collateral without the principal of, and any accrued and unpaid interest on, the Subordinated Notes, immediately due and payable. The Company, within forty-five (45) calendar days after the receipt prior written consent of written notice from any Noteholder of the occurrence of an Event of Default with respect to this Subordinated Note, shall mail to all Noteholders, at their addresses shown on the Security Register (as defined in Section 14 below), such written notice of Event of Default, unless such Event of Default shall have been cured or waived before the giving of such notice as certified by the Company in writing. Prior to any acceleration of this Subordinated Note, a Noteholder may waive pursuant to Section 18 below any past Event of Default. In addition, a Noteholder may rescind a declaration of acceleration of this Subordinated Note before any judgment has been obtained if (i) the Company pays all matured installments of principal of and interest on this Subordinated Note (other than installments due by reason of acceleration) and interest on the overdue installments; and (ii) all other Events of Default with respect to this Subordinated Note have been cured or waivedLender.
Appears in 1 contract
Sources: Loan Agreement (Green Plains Inc.)
Events of Default; Acceleration. Each Upon the occurrence and during the continuation of any Event of Default, the obligation of each Lender to make any additional Loan shall be suspended. The occurrence and continuation of any of the following events shall constitute (each, an “Event of Default”) shall at the option of Agent, at the direction of the Required Lenders (1) make all sums of Basic Interest and principal, as well as any other Obligations and amounts owing under any Loan Documents, immediately due and payable without notice of default, presentment or demand for payment, protest or notice of nonpayment or dishonor or any other notices or demands, and (2) give Agent the right to exercise any other right or remedy provided by contract or applicable law:
(a) the entry of a decree Borrower shall fail to pay any principal or order for relief in respect of the Company by a court having jurisdiction in the premises in an involuntary case interest under this Agreement or proceeding any Note, or fail to pay any fees or other charges when due under any applicable bankruptcy, insolvency, or reorganization law, now or hereafter in effect of the United States or any political subdivision thereofLoan Document, and such decree failure continues for three (3) Business Days or order will more after the same first becomes due; or an Event of Default as defined in any other Loan Document shall have continued unstayed and in effect for a period of sixty (60) consecutive calendar days;occurred.
(b) the commencement Any representation or warranty made, or financial statement, certificate or other document provided, by the Company of a voluntary case Borrower under any applicable bankruptcy, insolvency Loan Document shall prove to have been false or reorganization law, now misleading in any material respect when made or hereafter in effect of the United States or any political subdivision thereof, or the consent by the Company to the entry of a decree or order for relief in an involuntary case or proceeding under any such law;deemed made herein.
(c) the Company If there occurs any circumstance or circumstances that has a Material Adverse Effect.
(i) becomes insolvent or is unable Borrower shall fail to pay its debts generally as they mature, become due; or (ii) makes Borrower shall commence any Insolvency Proceeding with respect to itself, an assignment involuntary Insolvency Proceeding shall be filed against Borrower, or a custodian, receiver, trustee, assignee for the benefit of creditors, or other similar official, shall be appointed to take possession, custody or control of the properties of Borrower, and such involuntary Insolvency Proceeding, petition or appointment is acquiesced to by Borrower or is not dismissed within forty five (45) days; or (iii) admits in writing its inability the dissolution, winding up, or termination of the business or cessation of operations of Borrower (including any transaction or series of related transactions deemed to pay its debts as they maturebe a liquidation, dissolution or winding up of Borrower pursuant to the provisions of Borrower’s charter documents); or (iv) ceases Borrower shall take any corporate action for the purpose of effecting, approving, or consenting to be a bank holding company or financial holding company under the Bank Holding Company Act of 1956, as amended;
(d) the failure of the Company to pay any installment of interest on any of the Subordinated Notes as foregoing.
(e) Borrower shall be and when the same will become due and payable, and the continuation of such failure for a continue in default beyond any applicable period of grace or cure under any other agreement involving the borrowing of money, the purchase of property, the advance of credit or any other monetary liability of any kind to any Lender or to any Person in an amount in excess of the Threshold Amount.
(f) Any governmental or regulatory authority shall take any judicial or administrative action, or any defined benefit pension plan maintained by Borrower shall have any unfunded liabilities, any of which, in the reasonable judgment of Agent and each Lender, could reasonably be expected to have a Material Adverse Effect.
(g) Any sale, transfer or other disposition of all or a substantial or material part of the assets of Borrower, including without limitation to any trust or similar entity, shall occur except as permitted under Section 6.5.
(h) Any judgment(s) singly or in the aggregate in excess of the Threshold Amount shall be entered against Borrower which remain unsatisfied, unvacated or unstayed pending appeal for fifteen (15) consecutive calendar days;or more days after entry thereof (to the extent not covered by independent third-party insurance as to which the insurer does not dispute coverage).
(ei) the failure Borrower shall fail to perform or observe any covenant contained in Article 6 of the Company this Agreement.
(j) Borrower shall fail to pay all perform or observe any covenant contained in Article 5 or elsewhere in this Agreement or any part other Loan Document (other than a covenant which is dealt with specifically elsewhere in this Article 7) and, if capable of being cured, the principal of any of the Subordinated Notes as and when the same will become due and payable;
(f) the liquidation of the Company (for the avoidance of doubt, “liquidation” does not include any merger, consolidation, sale of equity or assets or reorganization (exclusive of a reorganization in bankruptcy) of the Company or any of its subsidiaries); or
(g) the default or breach of the Company to materially perform any other such covenant or agreement on the part of the Company contained in the Subordinated Notes and the continuation of such default or breach is not cured within fifteen (without such default or breach having been waived in accordance with the provisions of Section 1715) for a period of 90 consecutive calendar days after there has been given to the Company by the Holders of not less than 25.0% in principal amount of the outstanding Subordinated Notes, by registered or certified mail, in the manner set forth in Section 22, a written notice specifying such default or breach and requiring it to be remedied, and stating that such notice is a “Notice of Default” hereunder. Unless the principal of this Subordinated Note already shall have become due and payable, if an Event of Default described in Section 5(a) or Section 5(b) shall have occurred and be continuing, the holder of this Subordinated Note, by notice in writing to Company, may declare the principal amount of this Subordinated Note to be due and payable immediately and, upon any such declaration, the same shall become and shall be immediately due and payable. The Company waives demand, presentment for payment, notice of nonpayment, notice of protest, and all other notices. Notwithstanding the foregoing, because the Company will treat the Subordinated Notes as Tier 2 Capital, upon the occurrence of an Event of Default other than an Event of Default described in Section 5(a) or Section 5(b), the Noteholders may not accelerate the Stated Maturity of the Subordinated Notes and make the principal of, and any accrued and unpaid interest on, the Subordinated Notes, immediately due and payable. The Company, within forty-five (45) calendar days after the sooner to occur of Borrower’s receipt of written notice from any Noteholder of the occurrence of an Event of Default with respect to this Subordinated Note, shall mail to all Noteholders, at their addresses shown on the Security Register (as defined in Section 14 below), such written notice of Event such breach from Agent or the date on which such breach first becomes known to any officer of DefaultBorrower (the “Notice Date”); provided, unless however that if such Event breach is not capable of Default shall have been being cured or waived before the giving within such 15-day period and Borrower timely notifies Agent and each Lender of such fact and Borrower diligently pursues such cure, then the cure period shall be extended to the date requested in Borrower’s notice as certified by but in no event more than thirty (30) days from the Company in writing. Prior Notice Date.
(k) Borrower shall fail to perform any acceleration requirement of this Subordinated Note, a Noteholder may waive pursuant to Section 18 below any past Event of Default. In addition, a Noteholder may rescind a declaration of acceleration of this Subordinated Note before any judgment has been obtained if (i) the Company pays all matured installments of principal of and interest on this Subordinated Note (other than installments due by reason of acceleration) and interest on the overdue installments; and (ii) all other Events of Default with respect to this Subordinated Note have been cured or waived4.3 hereof.
Appears in 1 contract
Events of Default; Acceleration. Each If any of the following events shall constitute (each an “Event of Default”) shall occur:
(a) Debtor shall fail to pay any principal of interest on this Promissory Note or any other sum due under this Promissory Note, any Transaction Document, or any other note or other agreement between Debtor and RACC when the entry same becomes due and such failure shall continue for ten (10) days beyond the due date of a decree such payment;
(b) Debtor shall fail to perform any term, covenant or order for relief agreement contained in respect any of the Company by Transaction Documents and such failure shall continue for thirty (30) days after written notice;
(c) any representation or warranty of Debtor in any of the Transaction Documents or in any certificate or notice given in connection therewith shall have been false or misleading in any material respect at the time made or deemed to have been made;
(d) Debtor shall be in default under any agreement or agreements evidencing
(e) any other debt and similar monetary obligations (including, without limitation, capitalized leases, synthetic leases or securitization transactions) (collectively, “Indebtedness”) owing to RACC or any of its affiliates, or (ii) any other Indebtedness in excess of $100,000.00 in aggregate principal amount, or shall fail to pay any such Indebtedness when due or within any applicable period of grace;
(f) Debtor (i) shall make an assignment for the benefit of creditors; (ii) shall be adjudicated bankrupt or insolvent; (iii) shall seek the appointment of, or be the subject of an order appointing, a court having jurisdiction in the premises in an involuntary trustee, liquidator or receiver as to all or part of its assets, (iv) shall commence, approve or consent to, any case or proceeding under any applicable bankruptcy, insolvencyreorganization or similar law and, in the case of an involuntary case or reorganization lawproceeding, now such case or hereafter in effect of the United States or any political subdivision thereof, and such decree or order will have continued unstayed and in effect for a period of sixty proceeding is not dismissed within forty-five (6045) consecutive calendar days;
(b) days following the commencement by the Company of a voluntary case under any applicable bankruptcy, insolvency or reorganization law, now or hereafter in effect of the United States or any political subdivision thereof, or (v) shall be the consent by the Company to the entry subject of a decree or an order for relief in an involuntary case or proceeding under any such federal bankruptcy law;
(cg) the Company (i) becomes insolvent or is Debtor shall be unable to pay its debts as they mature;
(h) there shall remain undischarged for more than thirty (30) days any final judgment or execution action against Debtor that, together with other outstanding claims and execution actions against Debtor, respectively, exceeds $100,000.00 in the aggregate;
(i) the prospect of payment or performance by Debtor or realization on the Collateral, in the reasonable opinion of RACC, is or becomes significantly impaired;
(j) any of the Aircraft shall have been lost, stolen or confiscated or shall have incurred substantial damage or have been destroyed to such an extent that the repair thereof is impracticable (as determined solely by RACC);
(k) Debtor (i) sells, transfers or disposes of all or substantially all of its respective stock, assets or property, (ii) makes an assignment for becomes the benefit of creditorssubject of, or engages in, a leveraged buy-out, or (iii) admits in writing terminates its inability to pay its debts as they matureexistence by merger, reorganization or (iv) ceases to be a bank holding company consolidation; or financial holding company under the Bank Holding Company Act of 1956if, for any reason, including, without limitation, as amended;
(d) the failure of the Company to pay any installment of interest on any of the Subordinated Notes as and when the same will become due and payable, and the continuation of such failure for a period of fifteen (15) consecutive calendar days;
(e) the failure of the Company to pay all or any part of the principal of any of the Subordinated Notes as and when the same will become due and payable;
(f) the liquidation of the Company (for the avoidance of doubt, “liquidation” does not include any merger, consolidation, sale of equity or assets or reorganization (exclusive result of a reorganization stock issuance or other capital event, there is a change in bankruptcycontrol of forty percent (40%) or more of Debtor’s voting capital stock issued and outstanding from time to time on a fully-diluted basis (and taking into account all voting capital stock than any persons have the Company right to acquire pursuant to any option or any of its subsidiariesconversion rights); or
(gl) the default or breach an Event of the Company to materially perform any other covenant or agreement on the part of the Company contained Default as defined in the Subordinated Notes and Restructuring Agreement shall occur; THEN, or at any time thereafter:
(1) In the continuation case of such default any Event of Default under clauses (f) or breach (without such default or breach having been waived in accordance with g), the provisions of Section 17) for a period of 90 consecutive calendar days after there has been given to the Company by the Holders of not less than 25.0% in entire unpaid principal amount of the outstanding Subordinated Notesthis Promissory Note and all other amounts payable hereunder, by registered or certified mail, in the manner set forth in Section 22, a written notice specifying such default or breach and requiring it to be remedied, and stating that such notice is a “Notice of Default” hereunder. Unless the principal of this Subordinated Note already shall have automatically become forthwith due and payable, if an without presentment, demand, protest or notice of any kind, all of which are hereby expressly waived by Debtor; and
(2) In the case of any Event of Default described in Section 5(aother than under clauses (f) or Section 5(b) shall have occurred and be continuing(g), the holder of this Subordinated NoteRACC may, by written notice in writing to CompanyDebtor, may declare the unpaid principal amount of this Subordinated Promissory Note and all other amounts payable hereunder, to be due and payable immediately and, upon any such declaration, the same shall become and shall be immediately forthwith due and payable. The Company waives , without presentment, demand, presentment for payment, protest or further notice of nonpaymentany kind, notice all of protest, which are hereby expressly waived by Debtor. In addition to and all other notices. Notwithstanding without in any way limiting the foregoing, because the Company will treat the Subordinated Notes as Tier 2 Capital, upon the occurrence of an Event of Default or at any time thereafter, RACC may employ all remedies allowed by law, including, without limitation, those available to a secured party under the Uniform Commercial Code. No remedy herein conferred upon RACC is intended to be exclusive of any other than an Event of Default described remedy and each and every remedy shall be cumulative and in Section 5(a) addition to every other remedy hereunder, now or Section 5(b), the Noteholders may not accelerate the Stated Maturity of the Subordinated Notes and make the principal of, and any accrued and unpaid interest on, the Subordinated Notes, immediately due and payable. The Company, within forty-five (45) calendar days after the receipt of written notice from any Noteholder of the occurrence of an Event of Default with respect to this Subordinated Note, shall mail to all Noteholders, hereafter existing at their addresses shown on the Security Register (as defined law or in Section 14 below), such written notice of Event of Default, unless such Event of Default shall have been cured equity or waived before the giving of such notice as certified by the Company in writing. Prior to any acceleration of this Subordinated Note, a Noteholder may waive pursuant to Section 18 below any past Event of Default. In addition, a Noteholder may rescind a declaration of acceleration of this Subordinated Note before any judgment has been obtained if (i) the Company pays all matured installments of principal of and interest on this Subordinated Note (other than installments due by reason of acceleration) and interest on the overdue installments; and (ii) all other Events of Default with respect to this Subordinated Note have been cured or waivedotherwise.
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Events of Default; Acceleration. Each The occurrence of any of the following events shall will constitute an event of default (each an “Event of Default”:):
(a) the entry of a decree Issuer or order any major subsidiary depository institution (as defined for relief in respect purposes of the Company by Capital Adequacy Regulations, a court having jurisdiction in the premises in an involuntary case or proceeding under any applicable bankruptcy, insolvency, or reorganization law, now or hereafter in effect “Major Subsidiary Depository Institution”) of the United States or any political subdivision thereof, and such decree or order will have continued unstayed and in effect for a period of sixty (60) consecutive calendar days;
(b) the commencement by the Company of Issuer shall commence a voluntary case under any applicable bankruptcy, insolvency insolvency, liquidation, reorganization or reorganization law, other similar law now or hereafter in effect of the United States or any political subdivision thereofeffect, or the Issuer shall consent by the Company to the entry appointment of a receiver, liquidator, trustee or other similar official in any liquidation, insolvency or similar proceeding with respect to Issuer or all or substantially all of its property; or
(b) a court or other governmental agency or body having jurisdiction shall enter a decree or order for relief the appointment of a receiver, liquidator, trustee or other similar official in an involuntary case any liquidation, insolvency or similar proceeding under any with respect to Issuer or a Major Subsidiary Depository Institution of Issuer or all or substantially all of the property of Issuer or a Major Subsidiary Depository Institution of Issuer, or for the winding up of the affairs or business of Issuer or a Major Subsidiary Depository Institution, and such law;decree or order shall have remained in force for 60 days after the entry thereof; or
(c) Issuer or a Major Subsidiary Depository Institution of Issuer is notified that it is considered an institution in “troubled condition” within the Company meaning of 12 U.S.C. Section 1831i and the regulations promulgated thereunder; or
(d) Issuer (i) becomes insolvent or is unable to pay its debts as they mature, (ii) makes an assignment for the benefit of creditors, or (iii) admits in writing its inability to pay its debts as they mature, or (iv) ceases to be a bank holding company or financial holding company under the Bank Holding Company Act of 1956, as amended;; or
(de) the failure Issuer materially breaches any of the Company representations, warranties or covenants made by it in the Agreement; or
(f) Issuer fails to pay make any installment required payment of principal or interest on hereunder or under any of the Subordinated Notes as and when the same will become due and payable, and the continuation of such failure for a period of fifteen payable (15) consecutive calendar days;
(e) the failure of the Company to pay all or any part of the principal of any of the Subordinated Notes as and when the same will become due and payable;
(f) the liquidation of the Company (for the avoidance of doubt, “liquidation” does not include any merger, consolidation, sale of equity or assets or reorganization (exclusive of a reorganization in bankruptcy) of the Company or any of its subsidiaries); or
(g) the default or breach of the Company to materially perform any other covenant or agreement on the part of the Company contained in the Subordinated Notes and the continuation of such default or breach (without such default or breach having been waived in accordance with the provisions of Section 17) for a period of 90 consecutive calendar days after there has been given to the Company by the Holders of not less than 25.0% in principal amount of the outstanding Subordinated Notes, by registered or certified mailand, in the manner set forth case of payment of interest, such failure to pay shall have continued for 30 calendar days); then, in Section 22the case of an Event of Default described in the foregoing clauses (a) or (b), a written notice specifying such default or breach and requiring it to be remedied, and stating that such notice is a “Notice of Default” hereunder. Unless unless the principal of this Subordinated Note already shall have become due and payable, if an Event of Default described in Section 5(a) or Section 5(b) shall have occurred and be continuing, the holder Noteholder of this Subordinated Note, by notice in writing to CompanyIssuer, may declare the principal amount of, and accrued and unpaid interest to the date of such occurrence on, this Subordinated Note to be due and payable immediately and, upon any such declaration, declaration the same shall become and shall be immediately due and payable. The Company Issuer waives demand, presentment for payment, notice of nonpayment, notice of protest, and all other notices. Notwithstanding the foregoing, because the Company will treat the Subordinated Notes as Tier 2 Capital, upon the occurrence of an Event of Default other than an Event of Default described in Section 5(a) or Section 5(b), the Noteholders may not accelerate the Stated Maturity of the Subordinated Notes and make the principal of, and any accrued and unpaid interest on, the Subordinated Notes, immediately due and payable. The CompanyIssuer, within forty-five (45) 45 calendar days after the receipt of written notice from the Noteholder or any Noteholder other holder of the Subordinated Notes of the occurrence of an Event of Default with respect to this Subordinated Note, shall mail to all the Noteholders, at their addresses shown on the Security Register (as defined in Section 14 10 below), such written notice of Event of Default, unless such Event of Default shall have been cured or waived before the giving of such notice as certified by the Company Issuer in writing. Prior to any acceleration of this Subordinated Note, a Noteholder may waive pursuant to Section 18 below any past Event of Default. In addition, a Noteholder may rescind a declaration of acceleration of this Subordinated Note before any judgment has been obtained if (i) the Company pays all matured installments of principal of and interest on this Subordinated Note (other than installments due by reason of acceleration) and interest on the overdue installments; and (ii) all other Events of Default with respect to this Subordinated Note have been cured or waived.
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Sources: Subordinated Note Purchase Agreement (Western New England Bancorp, Inc.)