Events of Default Defined; Acceleration of Maturity. If any of the following conditions or events (each herein called an "EVENT OF DEFAULT") shall occur and be continuing (whatever the reason for such Event of Default and whether it shall be voluntary or involuntary or come about or be effected by operation of law or pursuant to or in compliance with judicial or governmental or administrative order or action or otherwise): (a) default shall be made in the due and punctual payment of all or any part of the principal of or Makewhole Amount, if any, on any Note when and as the same shall become due and payable, whether on a date fixed for prepayment, at stated maturity, by acceleration or declaration, or otherwise; or (b) default shall be made in the due and punctual payment of any interest on any Note when and as such interest shall become due and payable, and such default shall have continued for a period of three days; or (c) default shall be made in the due performance or observance of any covenant, provision, agreement or condition contained in SECTION 4(G) or any of SECTIONS 6.2 THROUGH 6.13, both inclusive, and, except in the case of any such default under SECTION 4(G), subdivision (a) of SECTION 6.3, SECTION 6.8, SECTION 6.9 or SECTION 6.10, such default shall have continued for a period of ten days after the earlier of (x) the date on which a Responsible Officer of the Company first has knowledge of such default and (y) the giving of notice to the Company of such default by any holder or holders of a Note or Notes; or (d) default shall be made in the due performance or observance of any other covenant, provision, agreement or condition contained in this Agreement (other than any default referred to in the foregoing subdivisions (a), (b) and (c) of this SECTION 8.1) and such default shall have continued for a period of 30 days after the earlier of (x) the date on which any Responsible Officer of the Company first has knowledge of such default and (y) the giving of notice to the Company of such default by any holder or holders of a Note or Notes; or (i) default shall be made in the payment of any amount due, whether on an interest payment date or on a date fixed for prepayment, at stated maturity, by acceleration or declaration or otherwise, under or in respect of any Funded Debt or Current Debt of the Company (other than the Notes) or any Subsidiary, and such default shall continue beyond the period of grace, if any, allowed with respect thereto; or (ii) default shall be made in the due performance or observance of any covenant, provision, agreement or condition contained in any document evidencing or providing for the issuance or securing of any such Funded Debt or Current Debt, if the effect of any such default referred to in this clause (ii) is to cause or to permit the holder or holders of such Debt (or a trustee or agent on behalf of such holders) to cause any payment or payments in respect of any such Debt to become due prior to the scheduled due date thereof; or (f) the Company or any of its Subsidiaries shall (i) apply for or consent to the appointment of, or the taking of possession by, a receiver, custodian, trustee or liquidator of itself or of all or a substantial part of its property, (ii) become insolvent or be generally unable to or shall generally fail or admit in writing its inability to pay its debts as such debts become due, (iii) make a general assignment for the benefit of its creditors, (iv) commence a voluntary case under the Federal Bankruptcy Code (as now or hereafter in effect), (v) file a petition seeking to take advantage of any bankruptcy, insolvency, moratorium, reorganization or other similar law affecting the enforcement of creditors' rights generally, (vi) acquiesce in writing to, or fail to controvert in a timely or appropriate manner, any petition filed against it in an involuntary case under such Bankruptcy Code, (vii) take any action under the laws of any jurisdiction (foreign or domestic) analogous to any of the foregoing, or (viii) take any action in furtherance of any of the foregoing; or (g) a proceeding or case shall be commenced in respect of the Company or any of its Subsidiaries, without its application or consent, in any court of competent jurisdiction, seeking (i) the liquidation, reorganization, moratorium, dissolution, winding up, or composition or readjustment of its debts, (ii) the appointment of a trustee, receiver, custodian, liquidator or the like of it or of all or any substantial part of its assets, or (iii) similar relief in respect of it under any law providing for the relief of debtors, and such proceeding or case described in clause (i), (ii) or (iii) shall continue undismissed, or unstayed and in effect, for a period of 30 days, or an order for relief shall be entered in an involuntary case under the Federal Bankruptcy Code (as now or hereafter in effect) against the Company or any of its Subsidiaries and shall continue undismissed, or unstayed and in effect, for a period of 15 days; or action under the laws of any jurisdiction (foreign or domestic) analogous to any of the foregoing shall be taken with respect to the Company or any of its Subsidiaries and shall continue undismissed, or unstayed and in effect, for a period of 15 days; or (h) a final judgment or decree for the payment of money shall be rendered by a court of competent jurisdiction against the Company or any of its Subsidiaries which, either alone or together with other outstanding judgments or decrees against the Company or any one or more of its Subsidiaries, shall aggregate more than $500,000, and the Company or such Subsidiary, as the case may be, shall not discharge the same or provide for its discharge in accordance with its terms within 45 days from the date of entry thereof or within such longer period during which execution of such judgment shall have been stayed; or (i) any representation or warranty made by the Company in this Agreement or in any certificate or other instrument delivered hereunder or pursuant hereto or in connection with any provision hereof shall prove to have been false or incorrect or breached in any material respect on the date as of which made; or (i) any Company Group Member shall fail to pay when due any amount which it shall have become liable to pay to the PBGC or to a Plan under Title IV of ERISA; (ii) any Company Group Member shall withdraw from a Multiple Employer Plan during a plan year in which it is a substantial employer (as such term is defined in Section 4001(a)(2) of ERISA), or shall be treated as having so withdrawn under Section 4062(e) of ERISA, or any Multiple Employer Plan shall be terminated; (iii) notice of intent to terminate a Plan or Plans shall be filed under Title IV of ERISA by any Company Group Member, any plan administrator or any combination of the foregoing; (iv) the PBGC shall institute proceedings under Title IV of ERISA to terminate or to cause a trustee to be appointed to administer any Plan or Plans; (v) any Company Group Member shall withdraw from any Multiemployer Plan ; (vi) any Plan (with the exception of any Multiemployer Plan) shall have an Unfunded Current Liability; or (vii) any prohibited transaction (as defined in Section 406 of ERISA or Section 4975 of the Code) or breach of fiduciary responsibility shall occur which may subject any Company Group Member to any liability under Section 406, 409, 502(i) or 502(l) of ERISA or Section 4975 of the Code, or under any agreement or other instrument pursuant to which such Company Group Member has agreed or is required to indemnify any Person against any such liability; and there shall result from any such event or events referred to in the foregoing subdivisions (i) through (vii) a Material Adverse Effect; (i) upon the occurrence on any date of any Event of Default described in clause (f) or (g) of this Section with respect to the Company, the unpaid principal amount of all Notes, together with the interest accrued thereon in accordance with the terms thereof and hereof (which interest shall be deemed matured) and all other amounts payable by the Company hereunder, plus (to the extent permitted by applicable law) the Makewhole Amount (determined as of such date in respect of such principal amount of the Notes) shall automatically become immediately due and payable, without presentment, demand, protest, notice of intention to accelerate, notice of acceleration, or other requirements of any kind, all of which are hereby expressly waived by the Company, and (ii) upon the occurrence on any date or during the continuance of any other Event of Default, the holder or holders of not less than 51% of the unpaid principal amount of the Notes at the time outstanding may, by written notice to the Company, declare the unpaid principal amount of all Notes to be, and the same shall forthwith become, due and payable, together with the interest accrued thereon in accordance with the terms thereof and hereof (which interest shall be deemed matured) and all other amounts payable by the Company hereunder, plus (to the extent permitted by applicable law) the Makewhole Amount (determined as of the date of such declaration in respect of such principal amount of Notes), without presentment, demand, protest, notice or other requirements of any kind, all of which are hereby expressly waived by the Company; PROVIDED that, upon the occurrence on any date or during the continuance of an Event of Default described in clause (a) or (b) of this Section with respect to any Note, the holder of such Note may, by written notice to the Company, declare the unpaid principal amount of such Note to be, and the same shall forthwith become, due and payable, together with the interest accrued thereon in accordance with the terms thereof and hereof (which interest shall be deemed matured) and all other amounts payable by the Company hereunder to the holder of such Note, plus (to the extent permitted by applicable law) the Makewhole Amount (determined as of the date of such declaration in respect of such principal amount of such Note), without presentment, demand, protest, notice or other requirements of any kind, all of which are hereby expressly waived by the Company. If any holder of any Note shall exercise the option specified in the proviso to the preceding sentence, the Company will forthwith give written notice thereof to the holders of all other outstanding Notes and each such holder may (whether or not such notice is given or received), by written notice to the Company, declare the principal amount of all Notes held by it to be, and the same shall forthwith become, due and payable, together with interest accrued thereon in accordance with the terms thereof and hereof (which interest shall be deemed matured) and all other amounts payable by the Company hereunder to the holder of such Notes, plus (to the extent permitted by applicable law) the Makewhole Amount (determined as of the date of such declaration in respect of such principal amount of such Notes), without presentment, demand, protest, notice or other requirements of any kind, all of which are hereby expressly waived by the Company.
Appears in 2 contracts
Sources: Note Purchase Agreement (Hutchinson Technology Inc), Note Purchase Agreement (Hutchinson Technology Inc)
Events of Default Defined; Acceleration of Maturity. If any one or more of the following conditions or events (each herein called an "EVENT EVENTS OF DEFAULT") shall occur and be continuing (whatever the reason for such Event of Default and whether it shall be voluntary or involuntary or come about or be effected by operation of law or pursuant to or in compliance with judicial or governmental or administrative order or action or otherwise):have occurred:
(a) default shall be made in the due and punctual payment of all or any part of the principal of or Makewhole Amount, if any, on any the Note is not paid when and as the same shall become due and payable, whether on a date fixed for prepayment, at stated maturitythe maturity thereof, by acceleration or declarationacceleration, or otherwise; or;
(b) default shall be made in all or any part of the due and punctual payment of any interest on any the Note is not paid within three days of the date when and as such interest the same shall become due and payable, and such default shall have continued for a period of three days; or;
(c) default shall be made in the due performance all or observance any part of any covenant, provision, agreement other amount owing to Purchaser pursuant to the terms of this Agreement or condition contained in SECTION 4(G) or any the Note is not paid within three days of SECTIONS 6.2 THROUGH 6.13, both inclusive, and, except in the case of any such default under SECTION 4(G), subdivision (a) of SECTION 6.3, SECTION 6.8, SECTION 6.9 or SECTION 6.10, such default shall have continued for a period of ten days after the earlier of (x) the date on which a Responsible Officer of the Company first has knowledge of when such default other amount is due and (y) the giving of notice to the Company of such default by any holder or holders of a Note or Notes; orpayable;
(d) default shall be made occur in the due observance or performance or observance of any covenant contained in Article IV of this Agreement;
(e) default shall occur in the observance or performance of any of the other covenant, provision, agreement covenants or condition agreements of the Sellers contained in this Agreement (Agreement, any other than Operative Document or any default referred to in other agreement evidencing Indebtedness by the foregoing subdivisions (a)Sellers or any of their Subsidiaries, (b) and (c) of this SECTION 8.1) and such default shall have continued for a period of 30 which is not remedied within ten days after the earlier of (x) the date on which any Responsible Officer of the Company first has knowledge of such default and (y) the giving of notice thereof to the Company of such default by any holder or holders of a Note or Notes; or
(i) default shall be made in the payment of any amount due, whether on an interest payment date or on a date fixed for prepayment, at stated maturity, by acceleration or declaration or otherwise, under or in respect of any Funded Debt or Current Debt of the Company (other than the Notes) or any Subsidiary, and such default shall continue beyond the period of grace, if any, allowed with respect thereto; or (ii) default shall be made in the due performance or observance of any covenant, provision, agreement or condition contained in any document evidencing or providing for the issuance or securing of any such Funded Debt or Current Debt, if the effect of any such default referred to in this clause (ii) is to cause or to permit the holder or holders of such Debt (or a trustee or agent on behalf of such holders) to cause any payment or payments in respect of any such Debt to become due prior to the scheduled due date thereof; orCompany;
(f) the Company a receiver, conservator, custodian, liquidator or trustee of any Seller or any of its Subsidiaries shall (i) apply for or consent to the appointment of, or the taking of possession by, a receiver, custodian, trustee or liquidator of itself or of all or a substantial part any of the assets of any of them, is appointed by court order and such order remains in effect for more than 30 days; or an order for relief is entered under the federal or any foreign bankruptcy laws with respect to any Seller or any of its propertySubsidiaries; or any of the material assets of any of them is sequestered by court order and such order remains in effect for more than 30 days; or a petition is filed against any Seller or any of its Subsidiaries under the bankruptcy, reorganization, moratorium, arrangement, insolvency, readjustment of debt, dissolution, liquidation, or other similar law of any applicable Governmental Authority, whether now or hereafter in effect, and is not dismissed within 60 days after such filing;
(iig) become insolvent any Seller or be generally unable any of its Subsidiaries files a petition in voluntary bankruptcy or seeking relief under any provision of any bankruptcy, reorganization, moratorium, arrangement, insolvency, readjustment of debt, dissolution, liquidation, or other similar law of any applicable Governmental Authority, whether now or hereafter in effect, or consents to the filing of any petition against it under any such law;
(h) any Seller or shall generally fail or admit in writing any of its inability to pay its debts as such debts become due, (iii) make Subsidiaries makes a general assignment for the benefit of its creditors, (iv) commence or admits in writing its inability to pay its debts generally as they become due, or consents to the appointment of a voluntary case under the Federal Bankruptcy Code (as now receiver, conservator, custodian, liquidator or hereafter in effect), (v) file a petition seeking to take advantage trustee of any bankruptcy, insolvency, moratorium, reorganization or other similar law affecting the enforcement of creditors' rights generally, (vi) acquiesce in writing to, or fail to controvert in a timely or appropriate manner, any petition filed against it in an involuntary case under such Bankruptcy Code, (vii) take any action under the laws of any jurisdiction (foreign or domestic) analogous to any of the foregoing, or (viii) take any action in furtherance of any of the foregoing; or
(g) a proceeding or case shall be commenced in respect of the Company Seller or any of its Subsidiaries, without its application or consent, in any court of competent jurisdiction, seeking (i) the liquidation, reorganization, moratorium, dissolution, winding up, or composition or readjustment of its debts, (ii) the appointment of a trustee, receiver, custodian, liquidator or the like of it or of all or any substantial part of its assets, or (iii) similar relief in respect the assets of it under any law providing for the relief of debtors, and such proceeding or case described in clause them;
(i), (ii) or (iii) shall continue undismissed, or unstayed and in effect, for a period of 30 days, or an order for relief shall be entered in an involuntary case under the Federal Bankruptcy Code (as now or hereafter in effect) against the Company or any of its Subsidiaries and shall continue undismissed, or unstayed and in effect, for a period of 15 days; or action under the laws of any jurisdiction (foreign or domestic) analogous to any of the foregoing shall be taken with respect to the Company or any of its Subsidiaries and shall continue undismissed, or unstayed and in effect, for a period of 15 days; or
(h) a final judgment or decree for the payment of money in excess of $100,000 shall be rendered by a court of competent jurisdiction record against the Company any Seller or any of its Subsidiaries which, either alone or together with other outstanding judgments or decrees against the Company or any one or more of its Subsidiaries, shall aggregate more than $500,000, and the Company or such Subsidiary, as the case may be, Seller or such Subsidiary shall not (i) discharge the same or provide for its discharge in accordance with its terms or (ii) procure a stay of execution thereof within 45 15 days from the date of entry thereof and within said period of 15 days, or within such longer period during which execution of such judgment shall have been stayed; or, appeal therefrom and cause the execution thereof to be stayed during such appeal including, without limitation, by providing adequate bond for such judgment;
(ij) any representation representation, warranty, or warranty certification made by the Company any Seller or any of its Subsidiaries, or any of their officers in this Agreement or any other Operative Document or in any certificate certificate, report, Financial Statement, or other instrument delivered hereunder under or pursuant hereto or in connection with to any provision hereof or thereof shall prove to have been false or incorrect or breached in any material respect on the date or dates as of which they were made; or;
(k) if (i) any Company Group Member Plan shall fail to pay when due satisfy the minimum funding standards of ERISA or the Code for any amount which it shall have become liable to pay to Plan year or part thereof or a waiver of such standards or extension of any amortization period is sought or granted under Section 4.12 of the PBGC or to a Plan under Title IV of ERISA; Code, (ii) any Company Group Member shall withdraw from a Multiple Employer Plan during a plan year in which it is a substantial employer (as such term is defined in Section 4001(a)(2) of ERISA), or shall be treated as having so withdrawn under Section 4062(e) of ERISA, or any Multiple Employer Plan shall be terminated; (iii) notice of intent to terminate a any Plan shall have been or Plans shall is reasonably expected to be filed under Title IV of ERISA by any Company Group Member, any plan administrator with the PBGC or any combination of the foregoing; (iv) the PBGC shall institute have instituted proceedings under Title IV of ERISA Section 4042 to terminate or to cause appoint a trustee to be appointed to administer any Plan or Plans; the PBGC shall have notified the Company or any ERISA Affiliate that a Plan may become a subject of any such proceedings, (iii) the aggregate "amount of unfunded benefit liabilities" (within the meaning of Section 4001(a)(18) of ERISA) under all Plans determined in accordance with Title IV of ERISA, shall exceed $500,000, (iv) the Company or any ERISA Affiliate shall have incurred or is reasonably expected to incur any liability to Title I or IV of ERISA or the penalty or excise tax provisions of the Code relating to employee benefit plans, (v) the Company or any Company Group Member shall withdraw ERISA Affiliate withdraws from any Multiemployer Plan ; Plan, or (vi) the Company or any Plan (with Subsidiary establishes or amends any employee welfare benefit plan that provides post-employment welfare benefits in a manner that would increase the exception of any Multiemployer Plan) shall have an Unfunded Current Liability; or (vii) any prohibited transaction (as defined in Section 406 of ERISA or Section 4975 liability of the Code) Company or breach of fiduciary responsibility shall occur which may subject any Company Group Member to any liability under Section 406, 409, 502(i) or 502(l) of ERISA or Section 4975 of the Code, or under any agreement or other instrument pursuant to which such Company Group Member has agreed or is required to indemnify any Person against any such liabilitysubsidiary thereunder; and there shall result from any such event or events referred to described in the foregoing subdivisions clauses (i) through (viivi) above either individually or in the aggregate, could reasonably be expected to have a Material Adverse Effect;; or
(il) upon the occurrence on of an "Event of Default" as defined in the Furst Agreement; then, when any date Event of Default described in clause (β), (b), (c), (d), (e), (i), (j), (k), or (l) above has occurred and shall be continuing, the principal of the Note and the interest accrued thereon and all other amounts due hereunder (the "other payments") shall, upon written notice from Purchaser, forthwith become and be due and payable, if not already due and payable, without presentment, further demand or other notice of any kind. When any Event of Default described in clause (f), (g) or (gh) above has occurred, then the principal of this Section with respect to the CompanyNote, the unpaid principal amount of all Notes, together with the interest accrued thereon thereon, and the other payments shall immediately become due and payable, upon the occurrence thereof, without presentment, demand, or notice of any kind. If any principal, installment of interest, or other payment is not paid in accordance with full on the terms due date thereof whether by maturity, or acceleration or any Event of Default has occurred and hereof (which is continuing, then the outstanding principal balance of the Note, any overdue installment of interest shall be deemed matured) and all other amounts payable by the Company hereunder, plus (to the extent permitted by applicable law) ), including interest accruing after the Makewhole Amount (determined as commencement of any proceeding under any bankruptcy or insolvency law, and all other payments will bear additional interest from the due date of such date in respect of such principal amount of the Notes) shall automatically become immediately due and payable, without presentment, demand, protest, notice of intention to accelerate, notice of accelerationpayment, or other requirements of any kind, all of which are hereby expressly waived by the Company, from and (ii) upon the occurrence on any date or during the continuance of any other after an Event of Default, the holder or holders of not less than 51% of the unpaid principal amount of the Notes at the time outstanding may, by written notice a rate equal to the Company, declare lesser of (i) the unpaid principal Highest Lawful Rate or (ii) an amount of all Notes to be, and the same shall forthwith become, due and payable, together with the interest accrued thereon in accordance with the terms thereof and hereof (which interest shall be deemed matured) and all other amounts payable by the Company hereunder, plus (equal to the extent permitted by then applicable law) interest rate on the Makewhole Amount Note plus 2% per annum (determined such applicable rate being referred to as of the date of such declaration in respect of such principal amount of Notes"DEFAULT RATE"), without presentmentcompounded monthly, demand, protest, notice until the payment is received or other requirements of any kind, all of which are hereby expressly waived by the Company; PROVIDED that, upon the occurrence on any date or during the continuance of an Event of Default described in clause (a) is cured, if permitted, or (b) waived. If payment of this Section with respect to any Notethe Note is accelerated, then the holder outstanding principal balance thereof shall bear interest at the Default Rate from and after the Event of such Note may, by written notice to the Company, declare the unpaid principal amount of such Note to be, and the same Default. The Sellers shall forthwith become, due and payable, together with the interest accrued thereon in accordance with the terms thereof and hereof (which interest shall be deemed matured) and all other amounts payable by the Company hereunder pay to the holder of the Note all reasonable out-of-pocket costs and expenses, incurred by such Noteholder in any effort to collect the Note and other payments, plus (including the reasonable attorneys fees and expenses for services rendered in connection therewith, and pay interest on such costs and expenses to the extent permitted by applicable law) not paid when demanded at the Makewhole Amount (determined as of the date of such declaration in respect of such principal amount of such Note), without presentment, demand, protest, notice or other requirements of any kind, all of which are hereby expressly waived by the Company. If any holder of any Note shall exercise the option specified in the proviso to the preceding sentence, the Company will forthwith give written notice thereof to the holders of all other outstanding Notes and each such holder may (whether or not such notice is given or received), by written notice to the Company, declare the principal amount of all Notes held by it to be, and the same shall forthwith become, due and payable, together with interest accrued thereon in accordance with the terms thereof and hereof (which interest shall be deemed matured) and all other amounts payable by the Company hereunder to the holder of such Notes, plus (to the extent permitted by applicable law) the Makewhole Amount (determined as of the date of such declaration in respect of such principal amount of such Notes), without presentment, demand, protest, notice or other requirements of any kind, all of which are hereby expressly waived by the CompanyDefault Rate.
Appears in 1 contract
Sources: Note and Warrant Purchase Agreement (Equalnet Holding Corp)
Events of Default Defined; Acceleration of Maturity. If any of the following conditions or events (each herein called an "EVENT OF DEFAULTEvents of Default") shall occur and be continuing (whatever the for any reason for such Event of Default whatsoever and whether it shall be voluntary or involuntary or come about or be effected by operation of law or pursuant to or in compliance with judicial or governmental or administrative order or action or otherwise):
(a) a. default shall be made in the due and punctual payment of all or any part of the principal of or Makewhole Amount, if any, on any this Note when and as the same shall become due and payable, whether on a date fixed for prepayment, at stated maturity, by acceleration or declarationacceleration, by mandatory redemption or otherwise; or;
(b) b. default shall be made in the due and punctual payment of any interest on any this Note when and as such interest shall become due and payable, and such default shall have continued for a period of three thirty (30) days; or
(c) c. default shall be made in the due performance or observance of any covenant, provision, agreement or condition contained in SECTION 4(G) or any of SECTIONS 6.2 THROUGH 6.13, both inclusive, and, except in the case of any such default under SECTION 4(G), subdivision (a) of SECTION 6.3, SECTION 6.8, SECTION 6.9 or SECTION 6.10, such default shall have continued for a period of ten days after the earlier of (x) the date on which a Responsible Officer of the Company first has knowledge of such default and (y) the giving of notice to the Company of such default by any holder or holders of a Note or Notes; or
(d) default shall be made in the due performance or observance of any other covenant, provision, agreement or condition contained in this Agreement (other than any default referred to in the foregoing subdivisions (a), (b) and (c) of this SECTION 8.1) Note and such default shall have continued unremedied for a period of 30 thirty (30) days after the earlier or such longer period (but in no event longer than a total of sixty (x60) the date on unremedied days) during which any Responsible Officer of the Company first has knowledge of is diligently pursuing a remedy to such default and (y) the giving of notice to the Company of such default by any holder or holders of a Note or Notesdefault; or
(i) d. a default shall be made in the payment of principal, premium or interest when due that extends beyond any amount due, whether on stated period of grace applicable thereto or an interest payment date or on a date fixed acceleration for prepayment, at stated maturity, by acceleration or declaration or otherwise, under or in respect any other reason of the maturity of any Funded Debt or Current Debt Indebtedness of the Company (other than the Notes) or any Subsidiary, and such default shall continue beyond the period of grace, if any, allowed with respect thereto; or (ii) default shall be made in the due performance or observance of any covenant, provision, agreement or condition contained in any document evidencing or providing for the issuance or securing of any such Funded Debt or Current Debt, if the effect of any such default referred to in this clause (ii) is to cause or to permit the holder or holders of such Debt (or a trustee or agent on behalf of such holders) to cause any payment or payments in respect of any such Debt to become due prior to the scheduled due date thereof; or
(f) the Company or any of its Subsidiaries (other than Indebtedness of the Company to any Subsidiary of HG or of a Subsidiary of the Company to the Company or another Subsidiary of HG) with an aggregate principal amount in excess of ten million dollars ($10,000,000); or
e. an order for relief shall be entered in a proceeding under the Bankruptcy Code in respect of the Company; a decree, judgment or order by a court of competent jurisdiction shall have been entered adjudging the Company or any of its Subsidiaries that individually or as a group constitute a Significant Subsidiary, as bankrupt or insolvent; or such decree, judgment or order shall have been entered approving as properly filed a petition seeking reorganization of the Company or such Significant Subsidiary under any bankruptcy or similar law, and such decree or order shall have continued undischarged and unstayed for a period of sixty (i60) apply days; or a decree or order of a court of competent jurisdiction over the appointment of a receiver, liquidator, trustee or assignee in bankruptcy or insolvency of the Company or such Significant Subsidiary, or of the property of any such person, or for the winding up or liquidation of the affairs of any such person, shall have been entered, and such decree, judgment or order shall have remained in force undischarged and unstayed for a period of sixty (60) days; or
f. the Company or any of its Subsidiaries that individually or as a group constitute a Significant Subsidiary, shall institute proceedings to be adjudicated a voluntary bankrupt, or shall consent to the filing of a bankruptcy proceeding against it, or shall file a petition or answer or consent seeking reorganization under, any bankruptcy or similar law or similar statute, or shall consent to the filing of any such petition, or shall consent to the appointment ofof a custodian, or the taking of possession by, a receiver, custodianliquidator, trustee or liquidator assignee in bankruptcy or insolvency of itself it or of all or a substantial part any of its assets or property, (ii) become insolvent or be generally unable to or shall generally fail make a general assignment for the benefit of creditors, or shall admit in writing its inability to pay its debts generally as such debts they become due, (iii) make a general assignment for or shall, within the benefit of its creditors, (iv) commence a voluntary case under the Federal Bankruptcy Code (as now or hereafter in effect), (v) file a petition seeking to take advantage meaning of any bankruptcyBankruptcy Law, insolvency, moratorium, reorganization or other similar law affecting the enforcement of creditors' rights generally, (vi) acquiesce in writing to, become insolvent or fail generally to controvert in a timely or appropriate manner, any petition filed against it in an involuntary case under such Bankruptcy Code, (vii) take any action under the laws of any jurisdiction (foreign or domestic) analogous to any of the foregoing, or (viii) take any action in furtherance of any of the foregoingpay its debts as they become due; or
g. final, non-appealable, unsatisfied judgments not covered by insurance aggregating in excess of one million dollars (g) a proceeding or case shall be commenced in respect of the Company or any of its Subsidiaries, without its application or consent, in any court of competent jurisdiction, seeking (i) the liquidation, reorganization, moratorium, dissolution, winding up, or composition or readjustment of its debts, (ii) the appointment of a trustee, receiver, custodian, liquidator or the like of it or of all or any substantial part of its assets, or (iii) similar relief in respect of it under any law providing for the relief of debtors, and such proceeding or case described in clause (i$1,000,000), (ii) or (iii) shall continue undismissed, or unstayed and in effect, for a period of 30 days, or an order for relief shall be entered in an involuntary case under the Federal Bankruptcy Code (as now or hereafter in effect) at any one time being rendered against the Company or any of its Subsidiaries and not stayed, bonded or discharged within sixty (60) days; or
h. for any reason, the Holders shall continue undismissedcease to hold, pursuant to the Bossier City Mortgage, a valid enforceable mortgage and security interest in and to the Mortgaged Property (as defined in the Bossier City Mortgage) subject to no prior lien, mortgage or unstayed and security interest in effectfavor of any third party, except as permitted in Bossier City Mortgage; provided, however, if the potential detrimental effect on the Holders in the case of a lien, mortgage or security interest in favor of a third party is covered by title insurance, then such lien, mortgage or security interest shall only constitute an Event of Default hereunder if such lien, mortgage or security interest shall have continued unremoved for a period of 15 thirty (30) days or such longer period (but in no event longer than a total of sixty (60) unremedied days; or action under the laws of any jurisdiction (foreign or domestic) analogous to any of the foregoing shall be taken with respect to during which the Company or any of its Subsidiaries and shall continue undismissed, or unstayed and in effect, for is diligently pursuing a period of 15 daysremedy to such default; or
(h) a final judgment or decree for i. the payment legal right of money shall be rendered by a court of competent jurisdiction against the Company to operate the gaming establishment within any Horseshoe Bossier City Casino is suspended or any of its Subsidiaries which, either alone lost and such loss or together with other outstanding judgments or decrees against the Company or any one or more of its Subsidiaries, suspension shall aggregate continue for more than $500,000, and the Company or such Subsidiary, as the case may be, shall not discharge the same or provide for its discharge in accordance with its terms within 45 days from the date of entry thereof or within such longer period during which execution of such judgment shall have been stayed; or
thirty (i30) any representation or warranty made by the Company in this Agreement or in any certificate or other instrument delivered hereunder or pursuant hereto or in connection with any provision hereof shall prove to have been false or incorrect or breached in any material respect on the date as of which made; or
(i) any Company Group Member shall fail to pay when due any amount which it shall have become liable to pay to the PBGC or to a Plan under Title IV of ERISA; (ii) any Company Group Member shall withdraw from a Multiple Employer Plan during a plan year in which it is a substantial employer (as such term is defined in Section 4001(a)(2) of ERISA), or shall be treated as having so withdrawn under Section 4062(e) of ERISA, or any Multiple Employer Plan shall be terminated; (iii) notice of intent to terminate a Plan or Plans shall be filed under Title IV of ERISA by any Company Group Member, any plan administrator or any combination of the foregoing; (iv) the PBGC shall institute proceedings under Title IV of ERISA to terminate or to cause a trustee to be appointed to administer any Plan or Plans; (v) any Company Group Member shall withdraw from any Multiemployer Plan ; (vi) any Plan (with the exception of any Multiemployer Plan) shall have an Unfunded Current Liability; or (vii) any prohibited transaction (as defined in Section 406 of ERISA or Section 4975 of the Code) or breach of fiduciary responsibility shall occur which may subject any Company Group Member to any liability under Section 406, 409, 502(i) or 502(l) of ERISA or Section 4975 of the Code, or under any agreement or other instrument pursuant to which such Company Group Member has agreed or is required to indemnify any Person against any such liability; and there shall result from any such event or events referred to in the foregoing subdivisions (i) through (vii) a Material Adverse Effect;
(i) consecutive days. then upon the occurrence on any date of any Event of Default described in clause (f) or (g) of this Section with respect to the Company, the unpaid principal amount of all Notes, together with the interest accrued thereon in accordance with the terms thereof and hereof (which interest shall be deemed matured) and all other amounts payable by the Company hereunder, plus (to the extent permitted by applicable law) the Makewhole Amount (determined as of such date in respect of such principal amount of the Notes) shall automatically become immediately due and payable, without presentment, demand, protest, notice of intention to accelerate, notice of acceleration, or other requirements of any kind, all of which are hereby expressly waived by the Company, and (ii) upon the occurrence on any date or during the continuance of any other Event of Default, the holder or holders of not less than 51% of the unpaid principal amount of the Notes at the time outstanding may, Majority Noteholders by written notice to the Company, may declare the unpaid principal amount of all Notes to be, and the same shall forthwith become, due and payable, together with the interest accrued thereon in accordance with the terms thereof and hereof (which interest shall be deemed matured) and all other amounts payable by the Company hereunder, plus (to the extent permitted by applicable law) the Makewhole Amount (determined as of the date of such declaration in respect of such principal amount of Notes)provided, without presentment, demand, protest, notice or other requirements of any kind, all of which are hereby expressly waived by the Company; PROVIDED that, upon the occurrence on any date or during the continuance existence of an Event of Default described in under clause (a) or (b) of this Section 8.1 with respect to any Note, the holder Holder of such Note mayNote, by written notice to the Company, may declare the unpaid principal amount of such Note to be, and the same shall forthwith become, due and payable, together with the interest accrued thereon in accordance with the terms thereof and hereof (which interest shall be deemed matured) and all other amounts payable by the Company hereunder to the holder of such Note, plus (to the extent permitted by applicable law) the Makewhole Amount (determined as of the date of such declaration in respect of such principal amount of such Note), without presentment, demand, protest, notice or other requirements of any kind, all of which are hereby expressly waived by the Companyhereunder. If any holder Holder of any Note shall exercise the option specified in the proviso to the preceding sentence, the Company will forthwith give written notice thereof to the holders Holders of all other outstanding Notes and each such holder may Holder (whether or not such notice is given or received), by written notice to the Company, may declare the principal amount of all Notes held by it to be, and the same shall forthwith become, due and payable, together with the interest accrued thereon in accordance with the terms thereof and hereof (which interest shall be deemed matured) and all other amounts payable by the Company hereunder to the holder of such Notes, plus (to the extent permitted by applicable law) the Makewhole Amount (determined as of the date of such declaration in respect of such principal amount of such Notes), without presentment, demand, protest, notice or other requirements of any kind, all of which are hereby expressly waived by the Company.the
Appears in 1 contract
Sources: Intercompany Senior Secured Note (Horseshoe Gaming LLC)
Events of Default Defined; Acceleration of Maturity. If any one or --------------------------------------------------- more of the following conditions or events (each herein called an "EVENT OF DEFAULTEvents of Default") shall occur and be continuing (whatever the reason for such Event of Default and whether it shall be voluntary or involuntary or come about or be effected by operation of law or pursuant to any judgment, decree or in compliance with judicial order of any court or any order, rule or regulation of any administrative or governmental or administrative order or action or otherwise):body), that is to say:
(a) if default shall be made in the due and punctual payment of all or any part of the principal of of, or Makewhole Amount, premium (if any) on, on any Note when and as the same shall become due and payable, whether on a date fixed at the stated maturity thereof, by notice of or demand for prepayment, at stated maturity, by acceleration or declaration, or otherwise; or;
(b) if default shall be made in the due and punctual payment of any interest on any Note when and as such interest shall become due and payable, payable and such default shall have continued for a period of three five days; or;
(c) if default shall be made in the due performance or observance of any covenant, provision, agreement or condition contained in SECTION 4(G(i) sections 7(g), 8,9.7, - 13, 14.2(b), 14.2(e) or any of SECTIONS 6.2 THROUGH 6.1314.5 to 14.19, both inclusive, andor (ii) sections 3(a), except -- 3(b), 3(c) or 3(d) of the Security Agreements, or, in the case of any such default under SECTION 4(Gclause (ii), subdivision (a) the analogous provisions of SECTION 6.3, SECTION 6.8, SECTION 6.9 or SECTION 6.10, such default shall have continued for a period of ten days after the earlier of (x) the date on which a Responsible Officer of the Company first has knowledge of such default and (y) the giving of notice to the Company of such default by any holder or holders of a Note or Notes; orother Security Document;
(d) if default shall be made in the due performance or observance of any other covenantof the covenants, provision, agreement agreements or condition conditions contained in this Agreement (or any of the other than any default referred to in the foregoing subdivisions (a), (b) and (c) of this SECTION 8.1) Operative Documents and such default shall have continued for a period of 30 days after the earlier to occur of (xi) the date on which - any Responsible Officer executive officer of the Company first has any Obligor obtaining actual knowledge of such default and (y) the giving of notice to the Company of such default by any holder or holders of a Note or Notes; or
(i) default shall be made in the payment of any amount due, whether on an interest payment date or on a date fixed for prepayment, at stated maturity, by acceleration or declaration or otherwise, under or in respect of any Funded Debt or Current Debt of the Company (other than the Notes) or any Subsidiary, and such default shall continue beyond the period of grace, if any, allowed with respect thereto; or (ii) default any Company's receipt of written notice of such default; --
(e) if any Company shall be made in the due performance or observance of any covenant, provision, agreement or condition contained in any document evidencing or providing make a general assignment for the issuance or securing benefit of any such Funded Debt or Current Debt, if the effect of any such default referred to in this clause (ii) is to cause or to permit the holder or holders of such Debt (or a trustee or agent on behalf of such holders) to cause any payment or payments in respect of any such Debt to become due prior to the scheduled due date thereof; or
(f) the Company or any of its Subsidiaries shall (i) apply for or consent to the appointment ofcreditors, or the taking of possession byshall not pay its debts as they become due, a receiver, custodian, trustee or liquidator of itself or of all or a substantial part of its property, (ii) become insolvent or be generally unable to or shall generally fail or admit in writing its inability to pay its debts as such debts they become due, (iii) make a general assignment for the benefit of its creditors, (iv) commence or shall file a voluntary case under the Federal Bankruptcy Code (as now or hereafter petition in effect), (v) file a petition seeking to take advantage of any bankruptcy, insolvency, moratorium, reorganization or other similar law affecting the enforcement of creditors' rights generally, (vi) acquiesce in writing toshall be adjudicated bankrupt or insolvent, or fail to controvert in shall file 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 shall file any answer admitting or not contesting the material allegations of a timely or appropriate manner, any petition filed against it in an involuntary case under any such Bankruptcy Codeproceeding, (vii) take any action under or shall seek or consent to or acquiesce in the laws appointment of any jurisdiction (foreign trustee, custodian, receiver, liquidator or domestic) analogous to fiscal agent for it or for all or any substantial part of the foregoingits properties, or shall (viiior its directors or majority stockholders shall) take any action in furtherance of any contemplation of the foregoing; or;
(f) if, within 30 days after the commencement of an action against any Company seeking any reorganization, arrangement, composition, readjustment, liquidation, dissolution or similar relief under any present or future statute, law or regulation, such action shall not have been dismissed or all orders or proceedings thereunder affecting the operations or the business of any Company stayed, or if the stay of any such order or proceeding shall thereafter be set aside, or if, within 30 days after the appointment without the consent or acquiescence of any Company or any trustee, custodian, receiver, liquidator or fiscal agent for any Company or for all or any substantial part of its properties, such appointment shall not have been vacated;
(g) a proceeding if, under the provisions of any law for the relief or case shall be commenced in respect aid of the Company or any of its Subsidiariesdebtors, without its application or consent, in any court or governmental agency of competent jurisdiction, seeking (i) the liquidation, reorganization, moratorium, dissolution, winding up, jurisdiction shall assume custody or composition or readjustment control of its debts, (ii) the appointment of a trustee, receiver, custodian, liquidator or the like of it any Company or of all or any substantial part of its assets, or (iii) similar relief in respect of it under any law providing for the relief of debtors, properties and such proceeding custody or case described in clause (i), (ii) control shall not be terminated or (iii) shall continue undismissed, stayed within 30 days from the date of assumption of such custody or unstayed and in effect, for a period of 30 days, or an order for relief shall be entered in an involuntary case under the Federal Bankruptcy Code (as now or hereafter in effect) against the Company or any of its Subsidiaries and shall continue undismissed, or unstayed and in effect, for a period of 15 days; or action under the laws of any jurisdiction (foreign or domestic) analogous to any of the foregoing shall be taken with respect to the Company or any of its Subsidiaries and shall continue undismissed, or unstayed and in effect, for a period of 15 days; orcontrol;
(h) if any Company shall fail to (i) make any payment due on any - Indebtedness (other than the Notes) or other obligation (including any in respect of any lease or any shares of capital stock upon the exercise by any Person of any put or call option or other similar right of redemption or repurchase with regard to such capital stock), if the aggregate outstanding amount thereof (and of any other Indebtedness or other obligation as to which any Company is in default) exceeds $750,000 (or the equivalent thereof, as of any date of determination, in any other currency), or (ii) perform, observe or discharge any covenant, condition -- or obligation in any agreement, document or instrument evidencing, securing or relating to such Indebtedness or other obligation, if the effect of any such failure of the character described in this clause (h) is to cause, or permit any other Person to cause, any payment in respect thereof in an aggregate amount of $750,000 (or the equivalent thereof, as of any date of determination, in any other currency) or more to become due and payable, or if any such Indebtedness or other obligation in an aggregate amount of $750,000 shall become due and payable by its terms and shall not be paid or extended;
(i) if a final judgment or decree judgments for the payment of money which, together with all other outstanding final judgments for the payment of money against any Company, exceeds an aggregate of $200,000 (or the equivalent thereof, as of any date of determination, in any other currency) shall be rendered by a court of competent jurisdiction against any Company, which judgments are not, within 30 days after entry thereof, discharged or stayed pending appeal, or are not discharged within 30 days after the Company or any of its Subsidiaries which, either alone or together with other outstanding judgments or decrees against the Company or any one or more of its Subsidiaries, shall aggregate more than $500,000, and the Company or such Subsidiary, as the case may be, shall not discharge the same or provide for its discharge in accordance with its terms within 45 days from the date of entry thereof or within such longer period during which execution expiration of such judgment shall have been stayed; orstay;
(ij) if any representation or warranty made by the or on behalf of any Company in this Agreement or in any certificate of the other Operative Documents or other in any agreement, document or instrument delivered hereunder under or pursuant hereto or in connection with to any provision hereof or thereof shall prove to have been false or incorrect or breached in any material adverse respect on the date as of which made;
(k) if, at any time, this Agreement or any of the other Operative Documents shall for any reason (other than the scheduled termination thereof in accordance with its terms), or any Liens created pursuant to any of the Operative Documents shall for any reason, expire, fail to be in full force and effect or be disaffirmed, repudiated, cancelled, terminated or declared to be unenforceable, null and void; or
(l) if (i) any Company Group Member Plan shall fail to pay when due satisfy the minimum funding - standards of ERISA or the Code for any amount which it shall have become liable to pay to plan year or part thereof or a waiver of such standards or extension of any amortization period is sought or granted under section 412 of the PBGC or to a Plan under Title IV of ERISA; Code, (ii) any Company Group Member shall withdraw from a Multiple Employer Plan during a plan year in which it is a substantial employer (as such term is defined in Section 4001(a)(2) of ERISA), or shall be treated as having so withdrawn under Section 4062(e) of ERISA, or any Multiple Employer Plan shall be terminated; (iii) notice of intent to -- terminate a any Plan shall have been or Plans shall is reasonably expected to be filed under Title IV of ERISA by any Company Group Member, any plan administrator with the PBGC or any combination of the foregoing; (iv) the PBGC shall institute have instituted proceedings under Title IV section 4042 of ERISA to terminate or to cause appoint a trustee to be appointed to administer any Plan or the PBGC shall have notified any Company or any ERISA Affiliate that a Plan may become a subject of any such proceedings, (iii) the aggregate --- "amount of unfunded benefit liabilities" (within the meaning of section 4001(a)(18) of ERISA) under all Plans; , determined in accordance with Title IV of ERISA, shall exceed $200,000 (or the equivalent thereof, as of any date of determination, in any other currency), (iv) any Company or any -- ERISA Affiliate shall have incurred or is reasonably expected to incur any liability pursuant to Title I or IV of ERISA or the penalty or excise tax provisions of the Code relating to employee benefit plans, (v) any Company Group Member shall withdraw - or any ERISA Affiliate withdraws from any Multiemployer Plan ; Plan, or (vi) any Plan (with -- Company establishes or amends any employee welfare benefit plan that provides post-employment welfare benefits in a manner that would increase the exception liability of any Multiemployer Plan) shall have an Unfunded Current Liability; or (vii) any prohibited transaction (as defined in Section 406 of ERISA or Section 4975 of the Code) or breach of fiduciary responsibility shall occur which may subject any Company Group Member to any liability under Section 406, 409, 502(i) or 502(l) of ERISA or Section 4975 of the Code, or under any agreement or other instrument pursuant to which such Company Group Member has agreed or is required to indemnify any Person against any such liabilitythereunder; and there shall result from any such event or events referred to described in the foregoing subdivisions clauses (i) through (viivi) above, either individually or together with any other such event or events, has resulted in, or could reasonably be expected to result in a Material Adverse Effect;
(i) upon Change; then, in the occurrence on any date case of any Event of Default (other than one of the character described in clause subdivisions (e), (f) or (g) of this Section with respect to the Company, the unpaid principal amount of all Notes, together with the interest accrued thereon in accordance with the terms thereof and hereof (which interest shall be deemed maturedsection 16.1) and all other amounts payable by at the Company hereunder, plus (to option of the extent permitted by applicable law) the Makewhole Amount (determined as holder or holders of such date 50% or more in respect of such aggregate principal amount of the Notes) Notes of any class at the time outstanding (excluding any Notes at the time owned by the Companies or any Affiliate of the Companies), exercised by written notice to the Note Issuers, the principal of all Notes of such class shall automatically forthwith become immediately due and payable, together with interest accrued thereon, without presentment, demand, protest, notice of intention to accelerate, notice of acceleration, protest or other requirements notice of any kind, all of which are hereby expressly waived by the Companywaived, and (ii) the Note Issuers shall forthwith upon the occurrence on any date or during the continuance of any other Event of Default, such acceleration pay to the holder or holders of not less than 51% all the Notes of such class then outstanding (i) the entire principal of and interest accrued on the Notes of such class and (ii) in addition, in the case of the unpaid principal amount acceleration of the Notes at the time outstanding maySubordinated Notes, by written notice to the Company, declare the unpaid principal amount of all Notes to be, and the same shall forthwith become, due and payable, together with the interest accrued thereon in accordance with the terms thereof and hereof (which interest shall be deemed matured) and all other amounts payable by the Company hereunder, plus (to the extent permitted by applicable law) , an amount equal to the Makewhole Amount (determined Make Whole Amount, as liquidated damages and not as a penalty; provided that, in the case of an Event -------- of Default of the date character described in subdivisions (a) or (b) of such declaration this section 16.1 and irrespective of whether all of the Notes of any class have been declared due and payable by the holder or holders of 50% or more in respect of such aggregate principal amount of Notes)the Notes of such class at the time outstanding, any holder of Notes who or which has not consented to any waiver with respect to such Event of Default may, at the option of such holder, by written notice to the Note Issuers, declare all Notes then held by such holder to be, and such Notes shall thereupon become, forthwith due and payable, together with interest accrued thereon, without presentment, demand, protest, notice protest or other requirements notice of any kind, all of which are hereby expressly waived by the Company; PROVIDED that, upon the occurrence on any date or during the continuance of an Event of Default described in clause (a) or (b) of this Section with respect to any Note, the holder of such Note may, by written notice to the Company, declare the unpaid principal amount of such Note to bewaived, and the same Note Issuers shall forthwith become, due upon any such acceleration pay to such holder (i) the entire principal of and payable, together with the - interest accrued thereon on such Notes, and (ii) in accordance with addition, in the terms thereof and hereof (which interest shall be deemed matured) and all other amounts payable by case of the Company hereunder to the holder -- acceleration of such Noteany Subordinated Notes, plus (to the extent permitted by applicable law) , an amount equal to the Makewhole Amount (determined Make Whole Amount, as liquidated damages and not as a penalty; provided, further, that, in the case of an Event of Default of the date -------- ------- character described in subdivisions (e), (f) or (g) of this section 16.1, the principal of all Notes shall forthwith become due and payable, together with interest accrued thereon (including any interest accruing after the commencement of any action or proceeding under the federal bankruptcy laws, as now or hereafter constituted, or any other applicable domestic or foreign federal or state bankruptcy, insolvency or other similar law, and any other interest that would have accrued but for the commencement of such declaration proceeding, whether or not any such interest is allowed as an enforceable claim in respect of such principal amount of such Noteproceeding), without presentment, demand, protest, notice protest or other requirements notice of any kind, all of which are hereby expressly waived by waived, and the Company. If Note Issuers shall forthwith upon any holder of any Note shall exercise the option specified in the proviso such acceleration pay to the preceding sentence, the Company will forthwith give written notice thereof to the holder or holders of all other the Notes then outstanding Notes (i) - the entire principal of and each such holder may (whether or not such notice is given or received), by written notice to interest accrued on the Company, declare the principal amount of all Notes held by it to beNotes, and (ii) in addition, -- in the same shall forthwith become, due and payable, together with interest accrued thereon in accordance with case of the terms thereof and hereof (which interest shall be deemed matured) and all other amounts payable by acceleration of the Company hereunder to the holder of such Subordinated Notes, plus (to the extent permitted by applicable law, an amount equal to the Make Whole Amount, as liquidated damages and not as a penalty. Notwithstanding the foregoing provisions, at any time after the occurrence of any Event of Default and of notice thereof, if any, by any holder or holders of Notes of any class and before any judgment, decree or order for payment of the money due has been obtained by or on behalf of any holder or holders of the Notes of such class, the Required Holders of the Notes of such class by written notice to the Note Issuers, may rescind and annul such Event of Default and/or notice of such Event of Default and the consequences thereof with respect to all of the Notes of such class (including any Notes of such class which were accelerated pursuant to the first proviso in the preceding paragraph by any holder or holders on account of an Event of Default of the character described in subdivision (a) or (b) of this section 16.1) if:
(1) the Makewhole Amount Note Issuers have paid a sum sufficient to pay
(determined as A) all overdue interest on all Notes of such class at the rate specified in such Notes;
(B) the principal of (and premium, if any, on) any Notes of such class which have become due otherwise than by such Event of Default or notice thereof and interest thereon at the rate specified in such Notes; and
(C) interest on such overdue principal (and premium, if any) and, to the extent that payment of such interest is lawful, interest upon overdue interest, all at the rate for overdue amounts specified in such Notes; and
(2) all Defaults and Events of Default, other than the non-payment of the date principal of Notes of such declaration class which have become due solely by such acceleration, have been cured or waived as provided in respect of section 19. No such principal amount of such Notes), without presentment, demand, protest, notice rescission shall affect any subsequent default or other requirements of impair any kind, all of which are hereby expressly waived by the Companyright consequent thereon.
Appears in 1 contract
Events of Default Defined; Acceleration of Maturity. If any one --------------------------------------------------- or more of the following conditions or events (each herein called an "EVENT OF DEFAULTEvents of Default") shall occur and be continuing (whatever the reason for such Event of Default and whether it shall be voluntary or involuntary or come about or be effected by operation of law or pursuant to or in compliance with judicial or governmental or administrative order or action or otherwise):have occurred:
(a) default shall be made in the due and punctual payment of all or any part of the principal of or Makewhole Amount, if any, on any the Subordinated Note is not paid within two business days of the date when and as the same shall become due and payable, whether on a date fixed for at the maturity thereof, by acceleration, by notice of prepayment, at stated maturity, by acceleration whether mandatory or declarationoptional, or otherwise; or;
(b) default shall be made in all or any part of the due and punctual payment of any interest on any the Subordinated Note when and as is not paid within two business days of the date such interest shall become due and payable, and such default shall have continued for a period of three days; or;
(c) default shall be made in the due performance all or observance any part of any covenant, provision, agreement or condition contained in SECTION 4(Gother amount owing under this Agreement to the Holder (including mandatory prepayments) or any is not paid within two business days of SECTIONS 6.2 THROUGH 6.13, both inclusive, and, except in the case of any such default under SECTION 4(G), subdivision (a) of SECTION 6.3, SECTION 6.8, SECTION 6.9 or SECTION 6.10, such default shall have continued for a period of ten days after the earlier of (x) the date on which a Responsible Officer of the Company first has knowledge of when such default other amount is due and (y) the giving of notice to the Company of such default by any holder or holders of a Note or Notes; orpayable;
(d) default shall be made occur in the due observance or performance or observance of any covenant contained Article IX of this Agreement, provided that, if such default is subject to being cured, it shall not constitute an Event of Default if such default is cured within 15 days of the earlier of the Company's or Suncom's knowledge that an Event of Default has occurred or notice from the Holder to the Company of the occurrence thereof;
(e) default shall occur in the observance or performance in any material respect of any of the other covenant, provision, agreement covenants or condition agreements of the Company contained in this Agreement (other than any default referred to in or the foregoing subdivisions (a), (b) and (c) Operative Documents which is not remedied within 15 days of this SECTION 8.1) and such default shall have continued for a period of 30 days after the earlier of (x) the date on which any Responsible Officer Company's knowledge that an Event of Default has occurred or notice from the Company first has knowledge of such default and (y) the giving of notice Holder to the Company of the occurrence thereof;
(f) any Senior Event of Default or any default in the terms governing other Indebtedness of the Company, Suncom or any Subsidiaries in the aggregate outstanding amount of $250,000 or more shall occur and remain uncured for 15 days;
(g) a receiver, conservator, custodian, liquidator or trustee of the Company, Suncom or any Subsidiary or of all or any of the assets of any of them, is appointed by court order and such default order remains in effect for more than 60 days; or an order for relief is entered under the federal bankruptcy laws with respect to the Company, Suncom or any Subsidiary; or any of the material assets of any of them is sequestered by court order and such order remains in effect for more than 60 days; or a petition is filed against the Company, Suncom or any holder Subsidiary under the bankruptcy, reorganization, arrangement, insolvency, readjustment of debt, dissolution or holders liquidation law of any jurisdiction, whether now or hereafter in effect, and is not dismissed within 60 days after such filing;
(h) the Company, Suncom or any Subsidiary files a Note petition in voluntary bankruptcy or Notes; orseeking relief under any provision of any bankruptcy, reorganization, arrangement, insolvency, readjustment of debt, dissolution or liquidation law of any jurisdiction, whether now or hereafter in effect, or consents to the filing of any petition against it under any such law;
(i) default shall be made in the payment of any amount dueCompany, whether on an interest payment date or on a date fixed for prepayment, at stated maturity, by acceleration or declaration or otherwise, under or in respect of any Funded Debt or Current Debt of the Company (other than the Notes) Suncom or any Subsidiary, and such default shall continue beyond the period of grace, if any, allowed with respect thereto; or (ii) default shall be made in the due performance or observance of any covenant, provision, agreement or condition contained in any document evidencing or providing for the issuance or securing of any such Funded Debt or Current Debt, if the effect of any such default referred to in this clause (ii) is to cause or to permit the holder or holders of such Debt (or a trustee or agent on behalf of such holders) to cause any payment or payments in respect of any such Debt to become due prior to the scheduled due date thereof; or
(f) the Company or any of its Subsidiaries shall (i) apply for or consent to the appointment of, or the taking of possession by, a receiver, custodian, trustee or liquidator of itself or of all or a substantial part of its property, (ii) become insolvent or be generally unable to or shall generally fail or admit in writing its inability to pay its debts as such debts become due, (iii) make Subsidiary makes a general assignment for the benefit of its creditors, (iv) commence a voluntary case under the Federal Bankruptcy Code (as now or hereafter in effect), (v) file a petition seeking to take advantage of any bankruptcy, insolvency, moratorium, reorganization or other similar law affecting the enforcement of creditors' rights generally, (vi) acquiesce admits in writing toits inability to pay its debts generally as they become due, or fail consents to controvert in a timely or appropriate manner, any petition filed against it in an involuntary case under such Bankruptcy Code, (vii) take any action under the laws of any jurisdiction (foreign or domestic) analogous to any of the foregoing, or (viii) take any action in furtherance of any of the foregoing; or
(g) a proceeding or case shall be commenced in respect of the Company or any of its Subsidiaries, without its application or consent, in any court of competent jurisdiction, seeking (i) the liquidation, reorganization, moratorium, dissolution, winding up, or composition or readjustment of its debts, (ii) the appointment of a trusteereceiver, receiverconservator, custodian, liquidator or trustee of the like of it Company, Suncom or any Subsidiary, or of all or any substantial part of its assets, or (iii) similar relief in respect the assets of it under any law providing for the relief of debtors, and such proceeding or case described in clause (i), (ii) or (iii) shall continue undismissed, or unstayed and in effect, for a period of 30 days, or an order for relief shall be entered in an involuntary case under the Federal Bankruptcy Code (as now or hereafter in effect) against the Company or any of its Subsidiaries and shall continue undismissed, or unstayed and in effect, for a period of 15 days; or action under the laws of any jurisdiction (foreign or domestic) analogous to any of the foregoing shall be taken with respect to the Company or any of its Subsidiaries and shall continue undismissed, or unstayed and in effect, for a period of 15 days; orthem;
(hj) a final judgment or decree for the payment of money in excess of $250,000 shall be rendered by a court of competent jurisdiction record against the Company Company, Suncom or any of its Subsidiaries which, either alone or together with other outstanding judgments or decrees against the Company or any one or more of its Subsidiaries, shall aggregate more than $500,000, and the Company Company, Suncom or such Subsidiary, as the case may be, Subsidiary shall not (i) discharge the same or provide for its discharge in accordance with its terms or (ii) procure a stay of execution thereof within 45 60 days from the date of entry thereof and within said period of 60 days, or within such longer period during which execution of such judgment shall have been stayed; or, appeal therefrom and cause the execution thereof to be stayed during such appeal including, without limitation, by providing adequate bond for such judgment;
(ik) any representation representation, warranty or warranty certification made by the Company Company, Suncom or any of its officers in this Agreement or made by the Company, Suncom in any certificate Operative Documents or in any certificate, financial statement, or other instrument delivered hereunder under or pursuant hereto or in connection with to any provision hereof or thereof shall prove to have been false or incorrect or breached in any material respect on the date or dates as of which they were made;
(l) ββββββββ ββββββββββββ shall either die, become permanently disabled or legally incapacitated, or cease to devote 100% or more of all of his business time and attention to the Company's business (for whatever reason, whether by resignation, removal or otherwise); provided, however, that it shall not be an Event of Default if a successor of such person who is acceptable to the Holder in its sole discretion is employed by the Company within 90 days of such occurrence;
(m) failure of the Company's cumulative EBITDA for any period set forth on Schedule 10.1(m) to equal or exceed the Projected 80% Cumulative EBITDA set forth opposite such period on Schedule 10.1(m); or
(i) any Company Group Member shall fail to pay when due any amount which it shall have become liable to pay to the PBGC or to a Plan under Title IV of ERISA; (ii) any Company Group Member shall withdraw from a Multiple Employer Plan during a plan year in which it is a substantial employer (as such term is defined in Section 4001(a)(2) of ERISA), or shall be treated as having so withdrawn under Section 4062(e) of ERISA, or any Multiple Employer Plan shall be terminated; (iii) notice of intent to terminate a Plan or Plans shall be filed under Title IV of ERISA by any Company Group Member, any plan administrator or any combination of the foregoing; (ivn) the PBGC shall institute proceedings under Title IV occurrence of ERISA to terminate a Sale Event or to cause a trustee to be appointed to administer any Plan or PlansChange of Control Event; (v) any Company Group Member shall withdraw from any Multiemployer Plan ; (vi) any Plan (with the exception of any Multiemployer Plan) shall have an Unfunded Current Liability; or (vii) any prohibited transaction (then, except as defined in Section 406 of ERISA or Section 4975 of the Code) or breach of fiduciary responsibility shall occur which may subject any Company Group Member to any liability under Section 406, 409, 502(i) or 502(l) of ERISA or Section 4975 of the Code, or under any agreement or other instrument pursuant to which such Company Group Member has agreed or is required to indemnify any Person against any such liability; and there shall result from any such event or events referred to set forth in the foregoing subdivisions (i) through (vii) a Material Adverse Effect;
(i) upon the occurrence on any date of next sentence, when any Event of Default described in clause (a), (b), (c), (d), (e), (j), (k), (l), (m), or (n) above has occurred and shall be continuing or an Event of Default occurs under clause (f) and the Senior Lender or (g) holder of this Section with respect to such indebtedness accelerates the CompanySenior Debt or such other indebtedness, the unpaid principal amount of all Notes, together with the Subordinated Note and the interest accrued thereon in accordance with the terms thereof and hereof (which interest shall be deemed matured) and all other amounts payable due hereunder (the "other payments") shall, upon written notice from the Holder forthwith become and be due and payable, if not already due and payable, without presentment, further demand or other notice of any kind. When any Event of Default described in clause (g), (h) or (i) above has occurred, then the principal of the Subordinated Note, the interest accrued thereon and the other payments shall immediately become due and payable, upon the occurrence thereof, without presentment, demand or notice of any kind. If any principal, installment of interest or other payment is not paid in full on the due date thereof (whether by maturity, prepayment (whether mandatory or optional), or acceleration) or any Event of Default has occurred and is continuing, then the Company hereunderoutstanding principal balance of the Subordinated Note, plus any overdue installment of interest (to the extent permitted by applicable law) ), including interest accruing after the Makewhole Amount (determined as commencement of any proceeding under any bankruptcy or insolvency law, and all other payments will bear additional interest from the due date of such date in respect of such principal amount of the Notes) shall automatically become immediately due and payable, without presentment, demand, protest, notice of intention to accelerate, notice of accelerationpayment, or other requirements of any kind, all of which are hereby expressly waived by the Company, from and (ii) upon the occurrence on any date or during the continuance of any other after an Event of Default, at a rate equal to the holder lesser of (i) the highest rate allowed by applicable law or holders (ii) an amount equal to the then applicable interest rate on the Subordinated Note plus 4% per annum (the "Default Rate"), compounded monthly, until the payment is received or the Event of not less than 51% Default is cured, if permitted, or waived. If payment of the unpaid Subordinated Note is accelerated, then the outstanding principal amount balance thereof shall bear interest at the Default Rate from and after the Event of Default. The Company and Suncom shall pay to the Holders of the Notes at Subordinated Note all reasonable out- of-pocket costs and expenses, incurred by such holders in any effort to collect the time outstanding maySubordinated Note and the other payments, by written notice to including the Company, declare the unpaid principal amount of all Notes to bereasonable attorneys fees and expenses for services rendered in connection therewith, and the same shall forthwith become, due pay interest on such costs and payable, together with the interest accrued thereon in accordance with the terms thereof and hereof (which interest shall be deemed matured) and all other amounts payable by the Company hereunder, plus (expenses to the extent permitted by applicable law) not paid when demanded at the Makewhole Amount (determined as of the date of such declaration in respect of such principal amount of Notes), without presentment, demand, protest, notice or other requirements of any kind, all of which are hereby expressly waived by the Company; PROVIDED that, upon the occurrence on any date or during the continuance of an Event of Default described in clause (a) or (b) of this Section with respect to any Note, the holder of such Note may, by written notice to the Company, declare the unpaid principal amount of such Note to be, and the same shall forthwith become, due and payable, together with the interest accrued thereon in accordance with the terms thereof and hereof (which interest shall be deemed matured) and all other amounts payable by the Company hereunder to the holder of such Note, plus (to the extent permitted by applicable law) the Makewhole Amount (determined as of the date of such declaration in respect of such principal amount of such Note), without presentment, demand, protest, notice or other requirements of any kind, all of which are hereby expressly waived by the Company. If any holder of any Note shall exercise the option specified in the proviso to the preceding sentence, the Company will forthwith give written notice thereof to the holders of all other outstanding Notes and each such holder may (whether or not such notice is given or received), by written notice to the Company, declare the principal amount of all Notes held by it to be, and the same shall forthwith become, due and payable, together with interest accrued thereon in accordance with the terms thereof and hereof (which interest shall be deemed matured) and all other amounts payable by the Company hereunder to the holder of such Notes, plus (to the extent permitted by applicable law) the Makewhole Amount (determined as of the date of such declaration in respect of such principal amount of such Notes), without presentment, demand, protest, notice or other requirements of any kind, all of which are hereby expressly waived by the CompanyRate.
Appears in 1 contract
Sources: Note Assumption Agreement (Audio Communications Network Inc)
Events of Default Defined; Acceleration of Maturity. If any one or ---------------------------------------------------- more of the following conditions or events (each herein called an "EVENT OF DEFAULTEvents of Default") shall occur and be continuing (whatever the reason for such Event of Default and whether it shall be voluntary or involuntary or come about or be effected by operation of law or pursuant to any judgment, decree or in compliance with judicial order of any court or any order, rule or regulation of any administrative or governmental or administrative order or action or otherwise):body), that is to say:
(a) if default shall be made in the due and punctual payment of all or any part of the principal of of, or Makewhole Amount, premium (if any) on, on any Note when and as the same shall become due and payable, whether on a date fixed at the stated maturity thereof, by notice of or demand for prepayment, at stated maturity, by acceleration or declaration, or otherwise; or;
(b) if default shall be made in the due and punctual payment of any interest on any Note when and as such interest shall become due and payable, payable and such default shall have continued for a period of three five days; or;
(c) if default shall be made in the due performance or observance of any covenant, provision, agreement or condition contained in SECTION 4(Gsections 7(g), 8(a), 9.8, 12.1, 13, 14.2(b) or any of SECTIONS 6.2 THROUGH 6.1314.4 to 14.17, both inclusive, and, except in the case of any such default under SECTION 4(G), subdivision (a) of SECTION 6.3, SECTION 6.8, SECTION 6.9 or SECTION 6.10, such default shall have continued for a period of ten days after the earlier of (x) the date on which a Responsible Officer of the Company first has knowledge of such default and (y) the giving of notice to the Company of such default by any holder or holders of a Note or Notes; or;
(d) if default shall be made in the due performance or observance of any other covenantof the covenants, provision, agreement agreements or condition conditions contained in this Agreement (or any of the other than any default referred to in the foregoing subdivisions (a), (b) and (c) of this SECTION 8.1) Operative Documents and such default shall have continued for a period of 30 days after the earlier to occur of (xi) the date on which any Responsible Officer of the Company first has Holding Company's obtaining actual knowledge of such default and (y) the giving of notice to the Company of such default by any holder or holders of a Note or Notes; or
(i) default shall be made in the payment of any amount due, whether on an interest payment date or on a date fixed for prepayment, at stated maturity, by acceleration or declaration or otherwise, under or in respect of any Funded Debt or Current Debt of the Company (other than the Notes) or any Subsidiary, and such default shall continue beyond the period of grace, if any, allowed with respect thereto; or (ii) default shall be made in the due performance or observance Holding Company's receipt of any covenant, provision, agreement or condition contained in any document evidencing or providing for the issuance or securing written notice of any such Funded Debt or Current Debt, default;
(e) if the effect of any such default referred to in this clause (ii) is to cause or to permit the holder or holders of such Debt (or a trustee or agent on behalf of such holders) to cause any payment or payments in respect of any such Debt to become due prior to the scheduled due date thereof; or
(f) the Holding Company or any Subsidiary of its Subsidiaries the Holding Company shall (i) apply make a general assignment for or consent to the appointment ofbenefit of creditors, or the taking of possession byshall not pay its debts as they become due, a receiver, custodian, trustee or liquidator of itself or of all or a substantial part of its property, (ii) become insolvent or be generally unable to or shall generally fail or admit in writing its inability to pay its debts as such debts they become due, (iii) make a general assignment for the benefit of its creditors, (iv) commence or shall file a voluntary case under the Federal Bankruptcy Code (as now or hereafter petition in effect), (v) file a petition seeking to take advantage of any bankruptcy, insolvency, moratorium, reorganization or other similar law affecting the enforcement of creditors' rights generally, (vi) acquiesce in writing toshall be adjudicated bankrupt or insolvent, or fail to controvert in shall file 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 shall file any answer admitting or not contesting the material allegations of a timely or appropriate manner, any petition filed against it in an involuntary case under any such Bankruptcy Codeproceeding, or shall seek or consent to or acquiesce in the appointment of any trustee, custodian, receiver, liquidator or fiscal agent for it or for all or any substantial part of its properties, or shall (viior its directors or shareholders shall) take any action looking to its dissolution or liquidation;
(f) if, within 60 days after the commencement of an action against the Holding Company or any Subsidiary of the Holding Company seeking any reorganization, arrangement, composition, readjustment, liquidation, dissolution or similar relief under any present or future statute, law or regulation, such action shall not have been dismissed or all orders or proceedings thereunder affecting the laws operations or the business of the Holding Company or such Subsidiary stayed, or if the stay of any jurisdiction (foreign such order or domestic) analogous to any proceeding shall thereafter be set aside, or if, within 60 days after the appointment without the consent or acquiescence of the foregoing, Holding Company or (viii) take any action in furtherance such Subsidiary of any trustee, custodian, receiver, liquidator or fiscal agent for the Holding Company or any Subsidiary of the foregoing; orHolding Company or for all or any substantial part of their respective properties, such appointment shall not have been vacated;
(g) a proceeding if, under the provisions of any law for the relief or case aid of debtors, any court or governmental agency of competent jurisdiction shall be commenced in respect assume custody or control of the Holding Company or of any Subsidiary of its Subsidiaries, without its application or consent, in any court of competent jurisdiction, seeking (i) the liquidation, reorganization, moratorium, dissolution, winding up, or composition or readjustment of its debts, (ii) the appointment of a trustee, receiver, custodian, liquidator or the like of it Holding Company or of all or any substantial part of its assets, or (iii) similar relief in respect of it under any law providing for the relief of debtors, their respective properties and such proceeding custody or case described in clause (i), (ii) control shall not be terminated or (iii) shall continue undismissed, stayed within 60 days from the date of assumption of such custody or unstayed and in effect, for a period of 30 days, or an order for relief shall be entered in an involuntary case under the Federal Bankruptcy Code (as now or hereafter in effect) against the Company or any of its Subsidiaries and shall continue undismissed, or unstayed and in effect, for a period of 15 days; or action under the laws of any jurisdiction (foreign or domestic) analogous to any of the foregoing shall be taken with respect to the Company or any of its Subsidiaries and shall continue undismissed, or unstayed and in effect, for a period of 15 days; orcontrol;
(h) the Holding Company or any Subsidiary of the Holding Company shall fail to (i) make any payment due on any Indebtedness (other than the Notes) - or other obligation (including any in respect of any lease or any Shares upon the exercise by any Person of any put or call option or other similar right of redemption or repurchase with regard to such Shares in accordance with the terms of such option or right), if the aggregate outstanding amount thereof (and of any other Indebtedness or other obligation as to which the Holding Company or any Subsidiary is in default) exceeds $4,000,000 (or the equivalent thereof, as of any date of determination, in any other currency) or (ii) perform, observe or discharge any covenant, -- condition or obligation in any agreement, document or instrument evidencing, securing or relating to such Indebtedness or other obligation, if the effect of any such failure of the character described in this clause (h) is to cause (without further action by any Person), or any Person shall cause, any payment in respect thereof in an aggregate amount of $4,000,000 (or the equivalent thereof, as of any date of determination, in any other currency) or more to become due and payable, or if any such Indebtedness or other obligation in aggregate amount of $4,000,000 (or the equivalent thereof, as of any date of determination, in any other currency) or more shall become due and payable by its terms and shall not be paid or extended;
(i) if a final judgment or decree for the payment of money which, together with all other outstanding final judgments for the payment of money against the Holding Company and/or any of its Subsidiaries (excluding any judgment or judgments as to which an insurance company has accepted full liability in writing), exceeds an aggregate of $4,000,000 (or the equivalent thereof, as of any date of determination, in any other currency) shall be rendered by a court of competent jurisdiction record against the Holding Company or any of its Subsidiaries which, either alone or together with other outstanding judgments or decrees against the Company or any one or more of its Subsidiaries, shall aggregate more than $500,000Subsidiary, and the Holding Company or such Subsidiary, as the case may be, Subsidiary shall not discharge the same or provide for its discharge in accordance with its terms terms, or procure a stay of execution thereof within 45 days from the date of entry thereof and within such period of 45 days, or within such longer period during which execution of such judgment shall have been stayed; or, move to vacate such judgment or appeal therefrom and cause the execution thereof to be stayed pending determination of such motion or during such appeal;
(ij) if any representation or warranty made by or on behalf of the Holding Company or any Subsidiary of the Holding Company in this Agreement or in any certificate of the other Operative Documents or other in any agreement, document or instrument delivered hereunder under or pursuant hereto or in connection with to any provision hereof or thereof shall prove to have been false or incorrect or breached in any material respect on the date as of which made;
(k) if, at any time, this Agreement or any of the other Operative Documents shall for any reason (other than the scheduled termination thereof in accordance with its terms), expire, fail to be in full force and effect or be disaffirmed, repudiated, canceled, terminated or declared to be unenforceable, null and void; or
(l) if (i) any Company Group Member Plan shall fail to pay when due satisfy the minimum funding - standards of ERISA or the Code for any amount which it shall have become liable to pay to plan year or part thereof or a waiver of such standards or extension of any amortization period is sought or granted under section 412 of the PBGC or to a Plan under Title IV of ERISA; Code, (ii) any Company Group Member shall withdraw from a Multiple Employer Plan during a plan year in which it is a substantial employer (as such term is defined in Section 4001(a)(2) of ERISA), or shall be treated as having so withdrawn under Section 4062(e) of ERISA, or any Multiple Employer Plan shall be terminated; (iii) notice of intent to -- terminate a any Plan shall have been or Plans shall is reasonably expected to be filed under Title IV of ERISA by any Company Group Member, any plan administrator with the PBGC or any combination of the foregoing; (iv) the PBGC shall institute have instituted proceedings under Title IV section 4042 of ERISA to terminate or to cause appoint a trustee to be appointed to administer any Plan or the PBGC shall have notified the Holding Company or any ERISA Affiliate that a Plan may become a subject of any such proceedings, (iii) the --- aggregate "amount of unfunded benefit liabilities" (within the meaning of section 4001(a)(18) of ERISA) under all Plans; , determined in accordance with Title IV of ERISA, shall exceed $200,000 (or the equivalent thereof, as of any date of determination, in any other currency), (iv) the Holding -- Company or any ERISA Affiliate shall have incurred or is reasonably expected to incur any liability pursuant to Title I or IV of ERISA or the penalty or excise tax provisions of the Code relating to employee benefit plans, (v) the Holding Company or any Company Group Member shall withdraw ERISA Affiliate withdraws from any - Multiemployer Plan ; Plan, or (vi) the Holding Company or any Plan (with the exception of any Multiemployer Plan) shall have an Unfunded Current Liability; or (vii) any prohibited transaction (as defined in Section 406 of ERISA or Section 4975 Subsidiary of the Code) -- Holding Company establishes or breach of fiduciary responsibility shall occur which may subject amends any Company Group Member to any employee welfare benefit plan that provides post-employment welfare benefits in a manner that would increase the liability under Section 406, 409, 502(i) or 502(l) of ERISA or Section 4975 of the Code, Holding Company or under any agreement or other instrument pursuant to which such Subsidiary of the Holding Company Group Member has agreed or is required to indemnify any Person against any such liabilitythereunder; and there shall result from any such event or events referred to described in the foregoing subdivisions clauses (i) through (viivi) above, either individually or together with any other such event or events, has resulted in, or could reasonably be expected to result in a Material Adverse Effect;
(i) upon the occurrence on any date of any Event of Default described in clause (f) or (g) of this Section with respect to the Company, the unpaid principal amount of all Notes, together with the interest accrued thereon in accordance with the terms thereof and hereof (which interest shall be deemed matured) and all other amounts payable by the Company hereunder, plus (to the extent permitted by applicable law) the Makewhole Amount (determined as of such date in respect of such principal amount of the Notes) shall automatically become immediately due and payable, without presentment, demand, protest, notice of intention to accelerate, notice of acceleration, or other requirements of any kind, all of which are hereby expressly waived by the Company, and (ii) upon the occurrence on any date or during the continuance of any other Event of Default, the holder or holders of not less than 51% of the unpaid principal amount of the Notes at the time outstanding may, by written notice to the Company, declare the unpaid principal amount of all Notes to be, and the same shall forthwith become, due and payable, together with the interest accrued thereon in accordance with the terms thereof and hereof (which interest shall be deemed matured) and all other amounts payable by the Company hereunder, plus (to the extent permitted by applicable law) the Makewhole Amount (determined as of the date of such declaration in respect of such principal amount of Notes), without presentment, demand, protest, notice or other requirements of any kind, all of which are hereby expressly waived by the CompanyChange; PROVIDED that, upon the occurrence on any date or during the continuance of an Event of Default described in clause (a) or (b) of this Section with respect to any Note, the holder of such Note may, by written notice to the Company, declare the unpaid principal amount of such Note to be, and the same shall forthwith become, due and payable, together with the interest accrued thereon in accordance with the terms thereof and hereof (which interest shall be deemed matured) and all other amounts payable by the Company hereunder to the holder of such Note, plus (to the extent permitted by applicable law) the Makewhole Amount (determined as of the date of such declaration in respect of such principal amount of such Note), without presentment, demand, protest, notice or other requirements of any kind, all of which are hereby expressly waived by the Company. If any holder of any Note shall exercise the option specified in the proviso to the preceding sentence, the Company will forthwith give written notice thereof to the holders of all other outstanding Notes and each such holder may (whether or not such notice is given or received), by written notice to the Company, declare the principal amount of all Notes held by it to be, and the same shall forthwith become, due and payable, together with interest accrued thereon in accordance with the terms thereof and hereof (which interest shall be deemed matured) and all other amounts payable by the Company hereunder to the holder of such Notes, plus (to the extent permitted by applicable law) the Makewhole Amount (determined as of the date of such declaration in respect of such principal amount of such Notes), without presentment, demand, protest, notice or other requirements of any kind, all of which are hereby expressly waived by the Company.or
Appears in 1 contract
Events of Default Defined; Acceleration of Maturity. If --------------------------------------------------- any of the following conditions or events (each herein called an "EVENT OF -------- DEFAULT") shall occur and be continuing (whatever the reason for such Event of ------- Default and whether it shall be voluntary or involuntary or come about or be effected by operation of law or pursuant to or in compliance with judicial or governmental or administrative order or action or otherwise):
(a) default shall be made in the due and punctual payment to any Noteholder of all or any part of the principal of of, or Makewhole Yield Maintenance Amount, if any, on any Note when and as the same shall become due and payable, whether on a date fixed for prepayment, at stated maturity, by acceleration or declaration, or otherwise; or
(b) default shall be made in the due and punctual payment of any interest on any Note when and as such interest shall become due and payable, and such default shall have continued continue for a period of three five days; or
(c) default shall be made in the due performance or observance of any covenant, provision, agreement or condition contained in SECTION 4(G) or any of SECTIONS SECTION 6.1, SECTION 6.2 THROUGH 6.13(other than subdivision (b) thereof, both inclusive, and, except in the case as to which subdivision (d) of any such default under this SECTION 4(G10.1 shall apply), subdivision (a) of SECTION and SECTIONS 6.3, SECTION 6.86.4, SECTION 6.9 or SECTION 6.10, such default shall have continued for a period of ten days after the earlier of (x) the date on which a Responsible Officer of the Company first has knowledge of such default and (y) the giving of notice to the Company of such default by any holder or holders of a Note or Notes6.5 AND 6.7 hereof; or
(d) default shall be made in the due performance or observance of any other covenant, provision, provision or agreement or condition contained in this Agreement Agreement, (other than any default referred to in any of the foregoing subdivisions (a), (b) and (c) other clauses of this SECTION 8.1) 10.1), and such default shall have continued for a period of 30 days after the earlier of (x) the date on which any Responsible Officer of Holdings or the Company first has knowledge of such default and (y) the giving of notice to Holdings or the Company of such default by any holder Noteholder or holders of a Note or NotesNoteholders; or
(i) default shall be made in the payment of any amount dueprincipal of or - premium or interest on, whether on an interest payment date or on a date fixed for payment or prepayment, at stated maturity, by acceleration or declaration or otherwise, under or in respect of any Funded Debt or Current Debt of Holdings or the Company having a principal amount outstanding in excess of $300,000 (other than the Notes) or Notes and any SubsidiarySenior Debt), and such default shall continue beyond the period of grace, if any, allowed provided with respect thereto; or (ii) -- default shall be made in the due performance or observance of any covenant, provision, agreement or condition contained in any document evidencing or providing for the issuance or securing of any such Funded Debt or Current having a principal amount outstanding in excess of $300,000 (other than the Notes and any Senior Debt), if the effect of any such default referred to in this clause (ii) is to cause or to permit results in the holder or holders of such Debt (or a trustee or agent on behalf of such holders) causing or being permitted to cause any payment or payments in respect of any such Debt to become due prior to the scheduled due date thereof; or
(f) Holdings, the Company or any Subsidiary of its Subsidiaries the Company shall (i) - apply for or consent to the appointment of, or the taking of possession by, a receiver, custodian, trustee or liquidator of itself or of all or a substantial part of its property, (ii) become insolvent or be generally -- unable to or shall generally fail or admit in writing its inability to pay its debts as such debts become due, (iii) make a general assignment for the --- benefit of its creditors, (iv) commence a voluntary case under the Federal -- Bankruptcy Code (as now or hereafter in effect), (v) file a petition - seeking to take advantage of any bankruptcy, insolvency, moratorium, reorganization or other similar law affecting the enforcement of creditors' rights generally, (vi) acquiesce in writing to, -- or fail to controvert in a timely or appropriate manner, any petition filed against it in an involuntary case under such Bankruptcy Code, (vii) take --- any action under the laws of any jurisdiction (foreign or domestic) analogous to any of the foregoing, or (viii) take any action in furtherance ---- of any of the foregoing; or
(g) a proceeding or case shall be commenced in respect of Holdings, the Company or any Subsidiary of its Subsidiariesthe Company, without its application or consent, in any court of competent jurisdiction, seeking (i) the - liquidation, reorganization, moratorium, dissolution, winding up, or composition or readjustment of its debts, (ii) the appointment of a -- trustee, receiver, custodian, liquidator or the like of it or of all or any substantial part of its assets, or (iii) similar relief in respect of it under any law providing for the relief of debtors, and such proceeding or case described in clause (i), (ii) or (iii) shall continue undismissed, or --- unstayed and in effect, for a period of 30 60 days, or an order for relief shall be entered in an involuntary case under the Federal Bankruptcy Code (as now or hereafter in effect) against the Company or any of its Subsidiaries and shall continue undismissed, or unstayed and in effect, for a period of 15 60 days; , or action under the laws of any jurisdiction (foreign or domestic) analogous to any of the foregoing shall be taken with respect to Holdings, the Company or any Subsidiary of its Subsidiaries the Company and shall continue undismissed, or unstayed and in effect, for a period of 15 60 days; or
(h) a final judgment or decree for the payment of money shall be rendered by a court of competent jurisdiction against the Company or any Subsidiary of its Subsidiaries the Company which, either alone or together with all other outstanding judgments or decrees against the Company or any one or more Subsidiary of its Subsidiariesthe Company, shall aggregate more than $500,000500,000 (exclusive of amounts covered by insurance as to which the applicable insurer has acknowledged coverage), and the Company or such Subsidiary, as the case may be, shall not discharge the same or provide for its discharge in accordance with its terms within 45 days from the date of entry thereof or within such longer period during which execution of (x) such judgment shall remain undischarged and unstayed for - a period of more than 90 days or (y) any enforcement proceeding shall have - been commenced (and not stayed) by any creditor or upon such judgment; or
(i) any representation or warranty made by Holdings or the Company in this Agreement or in the materials listed on SCHEDULE V or in any certificate or other instrument delivered hereunder or writing furnished to you after the Closing Date pursuant hereto or to this Agreement in connection with any provision hereof the transactions contemplated hereby shall prove to have been false or incorrect or breached in any material respect on the date as of which made; or
(j) any of the Transaction Documents (other than this Agreement) to which Holdings or the Company, as the case may be, is party, at any time and for any reason, shall not be or shall cease to be valid, binding and enforceable against Holdings or the Company, as the case may be, or Holdings or the Company, as the case may be, shall contest or deny the validity or enforceability of any of the Transaction Documents (other than this Agreement) to which it is a party or shall disaffirm or repudiate any of their respective obligations thereunder; or
(k) the Company shall lose its rights to the "Farm Journal" trademark or trade name; or
(1) an event of default or (other than at maturity or at the option of the Company) right of termination of commitment shall exist under any agreement or instrument evidencing or relating to Senior Debt and such Senior Debt is declared immediately due and payable as a result thereof; or
(i) any Company Group Member shall fail to pay when due any amount - which it shall have become liable to pay to the PBGC or to a Plan under Title IV of ERISA; (ii) any Company Group Member shall withdraw from a -- Multiple Employer Plan during a plan year in which it is a substantial employer (as such term is defined in Section 4001(a)(2) of ERISA), or shall be treated as having so withdrawn under Section 4062(e) of ERISA, or any Multiple Employer Plan shall be terminated; (iii) notice of intent to --- terminate a Plan or Plans shall be filed under Title IV of ERISA by any Company Group Member, any plan administrator or any combination of the foregoing; (iv) the PBGC shall institute proceedings under Title IV of -- ERISA to terminate or to cause a trustee to be appointed to administer any Plan or Plans; (v) any Company Group Member shall withdraw from any - Multiemployer Plan Plan; (vi) any Plan (with the exception of any Multiemployer Plan) shall have an Unfunded Current Liability; -- or (vii) any prohibited transaction (as defined in within the meaning of Section 406 of --- ERISA or Section 4975 of the Code) or breach of fiduciary responsibility shall occur which may subject any Company Group Member to any liability under Section 406, 409, 502(i) or 502(l502(1) of ERISA or Section 4975 of the Code, or under any agreement or other instrument pursuant to which such Company Group Member has agreed or is required to indemnify any Person against any such liability; and there shall result from any such event or events referred to in the foregoing subdivisions clauses (i) through (vii) a risk of incurring a liability on the part of any Company Group Member which would have a Material Adverse Effect;
; then (iA) upon the occurrence on any date of any Event of Default described in clause - subdivision (f) or (g) of this Section with respect to the Company, the unpaid principal amount of all Notes, together with the interest accrued thereon in accordance with the terms thereof and hereof (which interest shall be deemed matured) and all other amounts payable by the Company hereunder), plus (to the extent permitted by applicable law) the Makewhole Modified Yield Maintenance Amount (determined as of such date in respect of such principal amount of the Notes) shall automatically become immediately due and payable, without presentment, demand, protest, notice of intention to accelerate, notice of acceleration, or other requirements of any kind, all of which are hereby expressly waived by the Company, and (iiB) upon the occurrence on any date or - during the continuance of any other Event of Default, the holder or holders of not less than 51% of the unpaid principal amount of the Notes at the time outstanding Requisite Holders may, by written notice to the Company, declare the unpaid principal amount of all Notes to be, and the same shall forthwith become, due and payable, together with the interest accrued thereon in accordance with the terms thereof and hereof (which interest shall be deemed matured) and all other amounts payable by the Company hereunder), plus (to the extent permitted by applicable law) the Makewhole Modified Yield Maintenance Amount (determined as of the date of such declaration in respect of such principal amount of Notes), without presentment, demand, protest, notice or other requirements of any kind, all of which are hereby expressly waived by the Company; PROVIDED provided that, upon the -------- occurrence on any date or during the continuance of an Event of Default described in clause (a) or (b) of this Section with respect to any Note, the holder of such Note may, by written notice to the Company, declare the unpaid principal amount of such Note to be, and the same shall forthwith become, due and payable, together with the interest accrued thereon in accordance with the terms thereof and hereof (which interest shall be deemed matured) and all other amounts payable by the Company hereunder to the holder of such Note), plus (to the extent permitted by applicable law) the Makewhole Modified Yield Maintenance Amount (determined as of the date of such declaration in respect of such principal amount of such Note), without presentment, demand, protest, notice or other requirements of any kind, all of which are hereby expressly waived by the Company. If any holder of any Note Noteholder shall exercise the option specified in the proviso to the preceding sentence, the Company will forthwith give written notice thereof to the holders of all other outstanding Notes and each such holder Noteholder may (whether or not such notice is given or received), by written notice to the Company, declare the principal amount of all Notes held by it to be, and the same shall forthwith become, due and payable, together with interest accrued thereon in accordance with the terms thereof and hereof (which interest shall be deemed matured) and all other amounts payable by the Company hereunder to the holder of such Notes), plus (to the extent permitted by applicable law) the Makewhole Modified Yield Maintenance Amount (determined as of the date of such declaration in respect of such principal amount of such Notes), without presentment, demand, protest, notice or other requirements of any kind, all of which are hereby expressly waived by the Company.
Appears in 1 contract
Events of Default Defined; Acceleration of Maturity. If any of the following conditions or events (each herein called an "EVENT EVENTS OF DEFAULT") shall occur and be continuing (whatever the for any reason for such Event of Default whatsoever and whether it shall be voluntary or involuntary or come about or be effected by operation of law or pursuant to or in compliance with judicial or governmental or administrative order or action or otherwise):
(a) A. default shall be made in the due and punctual payment of all or any part of the principal of of, or Makewhole Amountinterest on, if any, on any the Note when and as the same shall become due and payable, whether on a date fixed for prepayment, at stated maturity, by acceleration or declarationacceleration, upon a mandatory prepayment due date or otherwise; or
(b) default shall be made in the due and punctual payment of any interest on any Note when and as such interest shall become due and payable, and such default shall have continued for a period of three days(3) or more Business Days; or
(c) B. default shall be made in the due performance or observance of any covenant, provision, agreement or condition contained in SECTION 4(G) or any of SECTIONS 6.2 THROUGH 6.13herein, both inclusive, and, except in the case of any such default under SECTION 4(G), subdivision (a) of SECTION 6.3, SECTION 6.8, SECTION 6.9 or SECTION 6.10, such default shall have continued for a period of ten days after the earlier of (x) the date on which a Responsible Officer of the Company first has knowledge of such default and (y) the giving of notice to the Company of such default by any holder or holders of a Note or Notes; or
(d) default shall be made in the due performance or observance of any other covenant, provision, agreement or condition contained in this Agreement (other than any default referred to in the foregoing subdivisions (a), (b) and (c) of this SECTION 8.1) and such default shall have continued for a period of 30 days after the earlier of five (x5) the date on which any Responsible Officer of the Company first has knowledge of such default and (y) the giving of notice to the Company of such default by any holder or holders of a Note or NotesBusiness Days; or
(i) C. default shall be made in the payment of any amount duethe principal of, or interest on, the Senior Debt when and as the same shall become due and payable, whether on an interest payment date or on a date fixed for prepayment, at stated maturity, by acceleration or declaration acceleration, upon a mandatory prepayment due date or otherwise, under or in respect of any Funded Debt or Current Debt of the Company (other than the Notes) or any Subsidiary, and such default shall continue beyond not have been cured within the period of grace, if any, allowed with respect theretotime prescribed by the Senior Debt Agreement; or (ii) or
D. default shall be made in the due performance or observance of any covenant, provision, agreement or condition contained in any document evidencing or providing for the issuance or securing of any such Funded Senior Debt or Current DebtAgreement, if the effect of any and such default referred to in this clause (ii) is to cause or to permit shall not have been cured within the holder or holders of such time prescribed by the Senior Debt (or a trustee or agent on behalf of such holders) to cause any payment or payments in respect of any such Debt to become due prior to the scheduled due date thereofAgreement; or
(f) E. the Company or any of its Subsidiaries shall (i1) apply for or consent to the appointment of, or the taking of possession by, a receiver, custodian, trustee or liquidator of itself or of all or a substantial part of its propertyproperty and assets, (ii2) become insolvent or be generally unable to or shall generally fail or admit in writing its inability to pay its debts as such debts become due, (iii3) make a general assignment for the benefit of its creditors, (iv4) commence a voluntary case under the Federal United States Bankruptcy Code or similar law or regulation (as now or hereafter in effect), (v5) file a petition seeking to take advantage of any bankruptcy, insolvency, moratorium, reorganization or other similar law affecting providing for the enforcement relief of creditors' rights generallydebtors, (vi6) acquiesce in writing to, or fail to controvert in a timely or appropriate manner, or acquiesce in writing to, any petition filed against it in an involuntary case under such Bankruptcy CodeCode or other law or regulation, (vii7) dissolve, (8) take any corporate action under the laws of any jurisdiction (foreign or domestic) applicable law analogous to any of the foregoing, or (viii9) take any corporate action in furtherance for the purpose of effecting any of the foregoing; or
(g) F. a proceeding or case shall be commenced in respect commenced, without the application or consent of the Company or any of its Subsidiaries, without its application or consent, in any court of competent jurisdiction, seeking (i1) the liquidation, reorganization, moratorium, dissolution, winding up, up or composition or readjustment of its debts, (ii2) the appointment of a trustee, receiver, custodian, liquidator or the like of it or of for all or any substantial part of its assets, or (iii3) similar relief in respect of it the Company, under any law providing for the relief of debtors, and such proceeding or case described in clause (i), (ii) or (iii) shall continue undismissed, or unstayed and in effect, for a period of 30 60 days, ; or an order for relief shall be entered in an involuntary case under the Federal United States Bankruptcy Code (as now or hereafter in effect) other similar law or regulation, against the Company or any of its Subsidiaries and shall continue undismissed, or unstayed and in effect, for a period of 15 daysCompany; or action under the laws of any jurisdiction (foreign or domestic) affecting the Company analogous to any of the foregoing shall be taken with respect to the Company or any of its Subsidiaries and shall continue undismissed, or unstayed and in effect, effect for a any period of 15 sixty (60) days; or
(h) a G. final judgment or decree for the payment of money shall be rendered by a court of competent jurisdiction against the Company or any of its Subsidiaries which, either alone or together with other outstanding judgments or decrees against the Company or any one or more of its Subsidiaries, shall aggregate more than $500,000, and the Company or such Subsidiary, as the case may be, shall not discharge the same or provide for its discharge in accordance with its terms terms, or procure a stay of execution thereof within 45 sixty (60) days from the date of entry thereof and within said period of sixty (60) days, or within such longer period during which execution of such judgment shall have been stayed; or, appeal therefrom and cause the execution thereof to be stayed during such appeal, and such judgment together with all other such judgments shall exceed in the aggregate US$50,000. (Notwithstanding the foregoing, any settlement of the matters disclosed as Items 1.5(n) 1, 2 and 3 on the DISCLOSURE SCHEDULE in an amount of up to US$9,000,000 shall not be deemed an "EVENT OF DEFAULT" hereunder, provided that such settlement consists of no more than US$3,500,000 in cash, no more than US$2,000,000 million of which cash is paid by the Company.)
(i) H. any representation or warranty made by the Company in this Agreement Agreement, or any other documents or agreements contemplated hereby and thereby or in any certificate or other instrument delivered hereunder or pursuant hereto or in connection with any provision hereof shall prove to have been be false or incorrect or breached in any material respect on the date as of which made; or
(i) any Company Group Member shall fail to pay when due any amount which it shall have become liable to pay to the PBGC or to a Plan under Title IV of ERISA; (ii) any Company Group Member shall withdraw from a Multiple Employer Plan during a plan year in which it is a substantial employer (as such term is defined in Section 4001(a)(2) of ERISA), or shall be treated as having so withdrawn under Section 4062(e) of ERISA, or any Multiple Employer Plan shall be terminated; (iii) notice of intent to terminate a Plan or Plans shall be filed under Title IV of ERISA by any Company Group Member, any plan administrator or any combination of the foregoing; (iv) the PBGC shall institute proceedings under Title IV of ERISA to terminate or to cause a trustee to be appointed to administer any Plan or Plans; (v) any Company Group Member shall withdraw from any Multiemployer Plan ; (vi) any Plan (with the exception of any Multiemployer Plan) shall have an Unfunded Current Liability; or (vii) any prohibited transaction (as defined in Section 406 of ERISA or Section 4975 of the Code) or breach of fiduciary responsibility shall occur which may subject any Company Group Member to any liability under Section 406, 409, 502(i) or 502(l) of ERISA or Section 4975 of the Code, or under any agreement or other instrument pursuant to which such Company Group Member has agreed or is required to indemnify any Person against any such liability; and there shall result from any such event or events referred to in the foregoing subdivisions (i) through (vii) a Material Adverse Effect;
(i) upon the occurrence on any date of any Event of Default described in clause (f) or (g) of this Section with respect to the Company, the unpaid principal amount of all Notes, together with the interest accrued thereon in accordance with the terms thereof and hereof (which interest shall be deemed matured) and all other amounts payable by the Company hereunder, plus (to the extent permitted by applicable law) the Makewhole Amount (determined as of such date in respect of such principal amount of the Notes) shall automatically become immediately due and payable, without presentment, demand, protest, notice of intention to accelerate, notice of acceleration, or other requirements of any kind, all of which are hereby expressly waived by the Company, and (ii) upon the occurrence on any date or during the continuance of any other Event of Default, the holder or holders of not less than 51% of the unpaid principal amount of the Notes at the time outstanding may, by written notice to the Company, declare the unpaid principal amount of all Notes to be, and the same shall forthwith become, due and payable, together with the interest accrued thereon in accordance with the terms thereof and hereof (which interest shall be deemed matured) and all other amounts payable by the Company hereunder, plus (to the extent permitted by applicable law) the Makewhole Amount (determined as of the date of such declaration in respect of such principal amount of Notes), without presentment, demand, protest, notice or other requirements of any kind, all of which are hereby expressly waived by the Company; PROVIDED that, upon the occurrence on any date or during the continuance of an Event of Default described in clause (a) or (b) of this Section with respect to any Note, the holder of such Note may, by written notice to the Company, declare the unpaid principal amount of such Note to be, and the same shall forthwith become, due and payable, together with the interest accrued thereon in accordance with the terms thereof and hereof (which interest shall be deemed matured) and all other amounts payable by the Company hereunder to the holder of such Note, plus (to the extent permitted by applicable law) the Makewhole Amount (determined as of the date of such declaration in respect of such principal amount of such Note), without presentment, demand, protest, notice or other requirements of any kind, all of which are hereby expressly waived by the Company. If any holder of any Note shall exercise the option specified in the proviso to the preceding sentence, the Company will forthwith give written notice thereof to the holders of all other outstanding Notes and each such holder may (whether or not such notice is given or received), by written notice to the Company, declare the principal amount of all Notes held by it to be, and the same shall forthwith become, due and payable, together with interest accrued thereon in accordance with the terms thereof and hereof (which interest shall be deemed matured) and all other amounts payable by the Company hereunder to the holder of such Notes, plus (to the extent permitted by applicable law) the Makewhole Amount (determined as of the date of such declaration in respect of such principal amount of such Notes), without presentment, demand, protest, notice or other requirements of any kind, all of which are hereby expressly waived by the Company.I. Donald
Appears in 1 contract
Sources: Securities Purchase Agreement (Brothers Gourmet Coffees Inc)
Events of Default Defined; Acceleration of Maturity. If any of the following conditions or events (each herein called an "EVENT OF DEFAULTEvents of Default") shall occur and be continuing (whatever the for any reason for such Event of Default whatsoever and whether it shall be voluntary or involuntary or come about or be effected by operation of law or pursuant to or in compliance with judicial or governmental or administrative order or action or otherwise):
(ai) default shall be made in failure by the due and punctual Company to make a payment of all or any part of the principal of or Makewhole Amount, if any, on any Note when and as the same shall become due and payable, whether on a date fixed for prepayment, at stated maturity, by acceleration or declaration, or otherwise; or
(b) default shall be made in the due and punctual payment of any interest on any Note when and as such interest shall become due and payable, and such default shall have continued for a period of three days; or
(c) default shall be made in the due performance or observance of any covenant, provision, agreement or condition contained in SECTION 4(G) or any of SECTIONS 6.2 THROUGH 6.13, both inclusive, and, except in the case of any such default under SECTION 4(G), subdivision (a) of SECTION 6.3, SECTION 6.8, SECTION 6.9 or SECTION 6.10, such default shall have continued for a period of within ten days after the earlier due date, whether at maturity or by reason of acceleration pursuant to the terms of this Agreement or by required prepayment;
(xii) the date on which a Responsible Officer of failure by the Company first has knowledge of such default to pay any interest accrued and owing within ten days after the applicable due date, or failure to pay any other liabilities or make any other payment, fee or charge provided for herein or in any Other Document within ten days after the due date;
(yiii) the giving of notice to any representation or warranty made or deemed made by the Company of such default by any holder or holders of a Note or Notes; or
(d) default shall be made in the due performance or observance of any other covenant, provision, agreement or condition contained in this Agreement (other than shall prove to have been incorrect, untrue, or misleading in any default referred material respect on the date when made or deemed to in have been made; provided, however, that the foregoing subdivisions (a), (b) and (c) of this SECTION 8.1) and such default Company shall have continued for a period ten Business Days from notice of 30 days after default to cure any such failure that is capable of cure before an Event of Default shall be deemed to have occurred under this Section;
(iv) failure by the earlier of (x) the date on which Company to perform any Responsible Officer of the Company first has knowledge of such default and (y) the giving of notice to covenants imposed by this Agreement; provided, however, that the Company shall have ten Business Days from notice of the default to cure any such default by any holder or holders failure that is capable of a Note or Notes; orcure before an Event of Default shall be deemed to have occurred under this Section;
(i) default shall be made in the payment of any amount due, whether on an interest payment date or on a date fixed for prepayment, at stated maturity, by acceleration or declaration or otherwise, under or in respect of any Funded Debt or Current Debt of the Company (other than the Notes) or any Subsidiary, and such default shall continue beyond the period of grace, if any, allowed with respect thereto; or (ii) default shall be made in the due performance or observance of any covenant, provision, agreement or condition contained in any document evidencing or providing for the issuance or securing of any such Funded Debt or Current Debt, if the effect of any such default referred to in this clause (ii) is to cause or to permit the holder or holders of such Debt (or a trustee or agent on behalf of such holders) to cause any payment or payments in respect of any such Debt to become due prior to the scheduled due date thereof; or
(fv) the Company or any of its Subsidiaries shall (i1) apply for or consent to the appointment of, or the taking of possession by, a receiver, custodian, trustee or liquidator of itself or of all or a substantial part of its propertyproperty and assets, (ii2) become insolvent or be generally unable to or shall generally fail or admit in writing its inability to pay its debts as such debts become due, (iii3) make a general assignment for the benefit of its creditors, (iv4) commence a voluntary case under the Federal United States Bankruptcy Code or similar law or regulation (as now or hereafter in effect), (v5) file a petition seeking to take advantage of any bankruptcy, insolvency, moratorium, reorganization or other similar law affecting providing for the enforcement relief of creditors' rights generallydebtors, (vi6) acquiesce in writing to, or fail to controvert in a timely or appropriate manner, or acquiesce in writing to, any petition filed against it in an involuntary case under such the United States Bankruptcy CodeCode or other law or regulation, (vii7) dissolve, (8) take any corporate action under the laws of any jurisdiction (foreign or domestic) applicable law analogous to any of the foregoing, or (viii9) take any corporate action in furtherance for the purpose of effecting any of the foregoing; or;
(gvi) a proceeding or case shall be commenced in respect of the Company or any of its Subsidiariescommenced, without its the application or consent, consent of Company in any court of competent jurisdiction, seeking (i1) the liquidation, reorganization, moratorium, dissolution, winding up, up or composition or readjustment of its debts, (ii2) the appointment of a trustee, receiver, custodian, liquidator or the like of it or of for all or any substantial part of its assets, or (iii3) similar relief in respect of it Company, under any law providing for the relief of debtors, and such proceeding or case described in clause (i), (ii) or (iii) shall continue undismissed, or unstayed and in effect, for a period of 30 sixty (60) days, ; or an order for relief shall be entered in an involuntary case under the Federal United States Bankruptcy Code (as now or hereafter in effect) other similar law or regulation, against the Company or any of its Subsidiaries and shall continue undismissed, or unstayed and in effect, for a period of 15 daysCompany; or action under the laws of any jurisdiction (foreign or domestic) affecting Company analogous to any of the foregoing shall be taken with respect to the Company or any of its Subsidiaries and shall continue undismissed, or unstayed and in effect, effect for a any period of 15 sixty (60) days; or
(hvii) a final judgment or decree for the payment of money shall be rendered by a court of competent jurisdiction against the Company or any of its Subsidiaries which, either alone or together with other outstanding judgments or decrees against the and Company or any one or more of its Subsidiaries, shall aggregate more than $500,000, and the Company or such Subsidiary, as the case may be, shall not discharge the same or provide for its discharge in accordance with its terms terms, or procure a stay of execution thereof within 45 sixty (60) days from the date of entry thereof and within said period of sixty (60) days, or within such longer period during which execution of such judgment shall have been stayed; or
(i) any representation or warranty made by , appeal therefrom and cause the Company in this Agreement or in any certificate or other instrument delivered hereunder or pursuant hereto or in connection with any provision hereof shall prove to have been false or incorrect or breached in any material respect on the date as of which made; or
(i) any Company Group Member shall fail to pay when due any amount which it shall have become liable to pay to the PBGC or to a Plan under Title IV of ERISA; (ii) any Company Group Member shall withdraw from a Multiple Employer Plan during a plan year in which it is a substantial employer (as such term is defined in Section 4001(a)(2) of ERISA), or shall be treated as having so withdrawn under Section 4062(e) of ERISA, or any Multiple Employer Plan shall be terminated; (iii) notice of intent to terminate a Plan or Plans shall be filed under Title IV of ERISA by any Company Group Member, any plan administrator or any combination of the foregoing; (iv) the PBGC shall institute proceedings under Title IV of ERISA to terminate or to cause a trustee execution thereof to be appointed to administer any Plan or Plans; (v) any Company Group Member stayed during such appeal, and such judgment together with all other such judgments shall withdraw from any Multiemployer Plan ; (vi) any Plan (with the exception of any Multiemployer Plan) shall have an Unfunded Current Liability; or (vii) any prohibited transaction (as defined in Section 406 of ERISA or Section 4975 of the Code) or breach of fiduciary responsibility shall occur which may subject any Company Group Member to any liability under Section 406, 409, 502(i) or 502(l) of ERISA or Section 4975 of the Code, or under any agreement or other instrument pursuant to which such Company Group Member has agreed or is required to indemnify any Person against any such liability; and there shall result from any such event or events referred to exceed in the foregoing subdivisions aggregate US$50,000. then (i) through (vii) a Material Adverse Effect;
(ix) upon the occurrence on any date of any Event of Default described in clause (fSection 7(a)(vi) or (g) of this Section with respect to the Companyvii), the unpaid principal amount of all Notesthe loan, together with the interest accrued thereon in accordance with the terms thereof and hereof (which interest shall be deemed matured) and all other amounts payable by the Company hereunderunder this Agreement, plus (to the extent permitted by applicable law) the Makewhole Amount (determined as of such date in respect of such principal amount of the Notes) shall automatically become immediately due and payable, without presentment, demand, protest, notice of intention acceleration or intent to accelerate, notice of acceleration, accelerate or other requirements of any kind, all of which are hereby expressly waived by the Company, and Company or (iiy) upon the occurrence on any date or during the continuance of any other Event of Default, the holder or holders of not less than 51% of the unpaid principal amount of the Notes at the time outstanding Holder may, by written notice to the Company, declare the unpaid principal amount of all Notes the loan to be, and the same shall forthwith become, due and payable, together with the interest accrued thereon in accordance with the terms thereof and hereof (which interest shall be deemed matured) and all other amounts payable by the Company hereunder, plus (. Failure by Holder to the extent permitted by applicable law) the Makewhole Amount (determined as of the date of such declaration in respect of such principal amount of Notes), without presentment, demand, protest, notice or other requirements of indicate any kind, all of which are hereby expressly waived by the Company; PROVIDED that, upon the occurrence on any date or during the continuance of an Event of Default described in clause (a) any one notice shall not preclude Holder from indicating such omitted Event or (b) Events of this Section with respect to any Note, the holder of such Note may, by written notice to the Company, declare the unpaid principal amount of such Note to be, Default in future notices and the same shall forthwith become, due and payable, together with the interest accrued thereon in accordance with the terms thereof and hereof (which interest shall be deemed matured) and all other amounts payable by the not relieve Company hereunder to the holder of such Note, plus (to the extent permitted by applicable law) the Makewhole Amount (determined as of the date of such declaration in respect of such principal amount of such Note), without presentment, demand, protest, notice or other requirements of any kindliability under this Agreement, all nor constitute a waiver of which are hereby expressly waived by the Company. If any holder of any Note shall exercise the option specified in the proviso to the preceding sentence, the Company will forthwith give written notice thereof to the holders of all other outstanding Notes and each such holder may (whether or not such notice is given or received), by written notice to the Company, declare the principal amount of all Notes held by it to be, and the same shall forthwith become, due and payable, together with interest accrued thereon in accordance with the terms thereof and hereof (which interest shall be deemed matured) and all other amounts payable by the Company hereunder to the holder of such Notes, plus (to the extent permitted by applicable law) the Makewhole Amount (determined as of the date of such declaration in respect of such principal amount of such Notes), without presentment, demand, protest, notice or other requirements of any kind, all of which are hereby expressly waived by the CompanyHolder's rights under this Agreement.
Appears in 1 contract
Events of Default Defined; Acceleration of Maturity. If any Waiver of Default. In case one or more of the following conditions or events (each herein called each, an "EVENT OF DEFAULTEvent of ----------------- Default") shall occur and be continuing (), whatever the reason for such Event of Default and whether it shall be voluntary or involuntary or come about or be effected by operation of law or pursuant to any judgment, decree or in compliance with judicial order of any court or any order, rule or regulation or any administrative or governmental or administrative order or action or otherwise):body, shall have occurred and be continuing:
(a) default shall be made in the due and punctual payment of all or any part of the principal of or Makewhole Amountpremium, if any, on any Note of the Obligations as and when and as the same shall become due and payable, whether on a date fixed for prepayment, payable either at stated maturity, upon any redemption, by acceleration or declaration, declaration or otherwise; or
(b) default shall be made in the due and punctual payment of any installment of interest on upon any Note of the Obligations or any fees payable under this Agreement as and when and as such interest the same shall become due and payable, and continuance of such default shall have continued for a period of three five (5) days; or
(c) default shall be made failure on the part of the Company duly to observe or perform any of the covenants contained in (i) Sections 5.02, 5.04 (with respect to the existence of the Company) or 5.11 of the Credit Agreement, or in the due performance or observance Incorporated Sections of any covenantArticle VI of the Credit Agreement (in each case, provision, agreement or condition contained in SECTION 4(Gas incorporated herein by reference pursuant to Section 6.1) or any (ii) Section 6.4 of SECTIONS 6.2 THROUGH 6.13, both inclusive, and, except in the case this Agreement and continuance of any such default under SECTION 4(G), subdivision (a) of SECTION 6.3, SECTION 6.8, SECTION 6.9 or SECTION 6.10, such default shall have continued for a period of ten days two (2) Business Days after the earlier of (x) the date on which a Responsible Officer of the Company first has knowledge of such default and (y) the giving of notice to receipt by the Company of such default by any holder or holders of a Note or Noteswritten notice thereof; or
(d) default shall be made failure on the part of any Credit Party duly to observe or perform any of the other covenants or agreements contained in the due performance or observance of any other covenantBridge Financing Documents, provision, agreement or condition contained in this Agreement (other than any default referred to in the foregoing subdivisions (a), (b) and (c) of this SECTION 8.1) and if such default failure shall have continued continue for a period of 30 thirty (30) days after the earlier of (x) the date on which any Responsible Officer of the Company first has knowledge of such default and (y) the giving of written notice thereof shall have been given to the Company at the option of such default and by any a holder or holders of a Note or Notesan Obligation; or
(ie) default any Credit Party shall be made commence a voluntary case or other proceeding seeking liquidation, reorganization or other relief with respect to itself or its debts under any bankruptcy, insolvency or other similar law now or hereafter in effect in any jurisdiction or seeking the payment appointment of any amount duea trustee, whether on an interest payment date receiver, liquidator, custodian or on a date fixed for prepayment, at stated maturity, by acceleration or declaration or otherwise, under or in respect other similar official of any Funded Debt or Current Debt of the Company (other than the Notes) it or any Subsidiary, and such default shall continue beyond the period of grace, if any, allowed with respect thereto; or (ii) default shall be made in the due performance or observance of any covenant, provision, agreement or condition contained in any document evidencing or providing for the issuance or securing of any such Funded Debt or Current Debt, if the effect of any such default referred to in this clause (ii) is to cause or to permit the holder or holders of such Debt (or a trustee or agent on behalf of such holders) to cause any payment or payments in respect of any such Debt to become due prior to the scheduled due date thereof; or
(f) the Company or any of its Subsidiaries shall (i) apply for or consent to the appointment of, or the taking of possession by, a receiver, custodian, trustee or liquidator of itself or of all or a substantial part of its property, (ii) become insolvent or be generally unable to or shall generally fail consent to any such relief or admit to the appointment of or taking possession by any such official in writing its inability to pay its debts as such debts become duean involuntary case or other proceeding commenced against it, (iii) or shall make a general assignment for the benefit of its creditors, (iv) commence a voluntary case under the Federal Bankruptcy Code (or shall fail generally to pay its debts as now or hereafter in effect), (v) file a petition seeking to take advantage of any bankruptcy, insolvency, moratorium, reorganization or other similar law affecting the enforcement of creditors' rights generally, (vi) acquiesce in writing tothey become due, or fail to controvert in a timely or appropriate manner, any petition filed against it in an involuntary case under such Bankruptcy Code, (vii) shall take any corporate action under the laws of any jurisdiction (foreign or domestic) analogous to any of the foregoing, or (viii) take any action in furtherance of authorize any of the foregoing; or
(gf) a an involuntary case or other proceeding or case shall be commenced in respect of the Company or against any of its Subsidiaries, without its application or consent, in any court of competent jurisdiction, Credit Party seeking (i) the liquidation, reorganizationreorganization or other relief with respect to it or its debts under any bankruptcy, moratorium, dissolution, winding up, insolvency or composition other similar law now or readjustment of its debts, (ii) hereafter in effect or seeking the appointment of a trustee, receiver, custodianliquidator, liquidator custodian or the like other similar official of it or of all or any substantial part of its assets, or (iii) similar relief in respect of it under any law providing for the relief of debtorsproperty, and such involuntary case or other proceeding or case described in clause (i), (ii) or (iii) shall continue undismissed, or remain undismissed and unstayed and in effect, for a period of 30 60 days, ; or an order for relief shall be entered in an involuntary case against any Credit Party under the Federal Bankruptcy Code (bankruptcy laws as now or hereafter in effecteffect in any jurisdiction; or
(g) against there shall be a default in respect of any Debt of any Credit Party in an aggregate principal amount in excess of $5,000,000 whether such Debt now exists or shall hereafter be created (excluding the Company Obligations but including Debt owing by any Credit Party) if such default results in acceleration of the maturity of such Debt or (prior to the Covenant Conversion Date) enables the holder of such Debt to accelerate the maturity thereof; or any of its Subsidiaries and Credit Party shall continue undismissed, fail to pay at maturity any such Debt whether such debt now exists or unstayed and in effect, for a period of 15 days; or action under the laws of any jurisdiction (foreign or domestic) analogous to any of the foregoing shall hereafter be taken with respect to the Company or any of its Subsidiaries and shall continue undismissed, or unstayed and in effect, for a period of 15 dayscreated; or
(h) a final judgment or decree judgments for the payment of money which in the aggregate at any one time exceed $5,000,000 shall be rendered against any Credit Party by a court of competent jurisdiction against the Company or any of its Subsidiaries which, either alone or together with other outstanding judgments or decrees against the Company or any one or more of its Subsidiaries, and shall aggregate more than $500,000, and the Company or such Subsidiary, as the case may be, shall not discharge the same or provide remain undischarged for its discharge in accordance with its terms within 45 days from the date of entry thereof or within such longer a period (during which execution shall not be effectively stayed) of sixty (60) days after such judgment shall have been stayedbecomes final; or
(i) any representation representation, warranty, certification or warranty statement made or deemed made by the Company in this Agreement or any Credit Party in any certificate Bridge Financing Document or which is contained in any certificate, document or financial or other instrument delivered hereunder or pursuant hereto statement furnished at any time under or in connection with any provision hereof Bridge Financing Document shall prove to have been false or incorrect or breached untrue in any material respect on the date as of which when made or deemed made; or
(ij) any Company member of the ERISA Group Member shall fail has failed to pay when due any an amount or amounts aggregating in excess of $2,500,000 which it shall have become liable to pay to the PBGC or to a Plan under Title IV of ERISA; (ii) any Company Group Member shall withdraw from a Multiple Employer Plan during a plan year in which it is a substantial employer (as such term is defined in Section 4001(a)(2) of ERISA), or shall be treated as having so withdrawn under Section 4062(e) of ERISA, or any Multiple Employer Plan shall be terminated; (iii) notice of intent to terminate a Material Plan or Plans shall be has been filed under Title IV of ERISA by any Company Group Membermember of the ERISA Group, any plan administrator or any combination of the foregoing; (iv) or the PBGC shall institute has instituted proceedings under Title IV of ERISA to terminate terminate, to impose liability (other than for premiums under Section 4007 of ERISA) in respect of, or to cause a trustee to be appointed to administer any Plan or Plans; (v) any Company Group Member shall withdraw from any Multiemployer Plan ; (vi) any Plan (with the exception of any Multiemployer Material Plan) shall have an Unfunded Current Liability; or (viia condition has existed by reason of which the PBGC is entitled to obtain a decree adjudicating that any Material Plan must be terminated; or there has occurred a complete or partial withdrawal from, or a default, within the meaning of Section 4219(c)(5) any prohibited transaction (as defined in Section 406 of ERISA ERISA, with respect to, one or Section 4975 more Multiemployer Plans which could cause one or more members of the CodeERISA Group to incur a current payment obligation in excess of $2,500,000; or
(k) or a breach under the Engagement Letter has occurred and is continuing for period of fiduciary responsibility shall occur which may subject any Company Group Member to any liability under Section 406, 409, 502(itwo (2) or 502(l) of ERISA or Section 4975 of the Code, or under any agreement or Business Days following notice thereof (other instrument pursuant to which such Company Group Member has agreed or is required to indemnify any Person against any such liability; and there shall result from any such event or events referred to in the foregoing subdivisions than (i) through due to non-payment of reimbursable expenses payable thereunder or (viiii) due to the unsolicited receipt by the Company of an offer on market terms of a Material Adverse Effect;firmly underwritten transaction to refinance the Obligations which DLJ Bridge approves); or
(il) upon any Subsidiary Guaranty shall have been disavowed thereunder, a court of competent jurisdiction shall have determined that any Subsidiary Guaranty is unenforceable or any guarantor thereunder shall default in the occurrence on any date performance of any Event of Default described its obligations under any Subsidiary Guaranty; or
(m) prior to the Covenant Conversion Date, a Change of Control has occurred; then, and in clause each and every such case (other than under clauses (e) and (f) or (g) of this Section with respect to the Company), unless the principal of all the Obligations shall have already become due and payable, the unpaid principal amount Holders of all Notes, together with the interest accrued thereon not less than 33 1/3% in accordance with the terms thereof and hereof (which interest shall be deemed matured) and all other amounts payable by the Company hereunder, plus (to the extent permitted by applicable law) the Makewhole Amount (determined as of such date in respect of such aggregate outstanding principal amount of the Notes) Obligations (except that, for so long as the Bridge Parties hold more than 50% in aggregate outstanding principal amount of the Obligations, the Holders of more than 50% in aggregate outstanding principal amount of the Obligations shall automatically become be required), by notice in writing to the Company, may declare the entire principal amount of the Obligations together with accrued interest thereon to be immediately due and payable, without presentment, demand, protest, notice of intention to accelerate, notice of acceleration, or other requirements of any kind, all of which are hereby expressly waived by the Company, and (ii) upon the occurrence on any date or during the continuance of any other Event of Default, the holder or holders of not less than 51% of the unpaid principal amount of the Notes at the time outstanding may, by written notice to the Company, declare the unpaid principal amount of all Notes to be, and the same shall forthwith become, due and payable, together with the interest accrued thereon in accordance with the terms thereof and hereof (which interest shall be deemed matured) and all other amounts payable by the Company hereunder, plus (to the extent permitted by applicable law) the Makewhole Amount (determined as of the date of such declaration in respect of such principal amount of Notes), without presentment, demand, protest, notice or other requirements of any kind, all of which are hereby expressly waived by the Company; PROVIDED that, upon the occurrence on any date or during the continuance of . If an Event of Default described specified in clause clauses (ae) or (bf) of this Section with respect to any Notethe Company occurs, the holder principal of such Note may, by written notice to and accrued interest on the Company, declare the unpaid principal amount of such Note to be, and the same shall forthwith become, Obligations will be immediately due and payable, together with payable without any declaration or other act on the interest accrued thereon in accordance with the terms thereof and hereof (which interest shall be deemed matured) and all other amounts payable by the Company hereunder to the holder of such Note, plus (to the extent permitted by applicable law) the Makewhole Amount (determined as part of the date of such declaration in respect of such principal amount of such Note), without presentment, demand, protest, notice or other requirements of any kind, all of which are hereby expressly waived by the Company. If any holder of any Note shall exercise the option specified in the proviso to the preceding sentence, the Company will forthwith give written notice thereof to the holders of all other outstanding Notes and each such holder may (whether or not such notice is given or received), by written notice to the Company, declare the principal amount of all Notes held by it to be, and the same shall forthwith become, due and payable, together with interest accrued thereon in accordance with the terms thereof and hereof (which interest shall be deemed matured) and all other amounts payable by the Company hereunder to the holder of such Notes, plus (to the extent permitted by applicable law) the Makewhole Amount (determined as of the date of such declaration in respect of such principal amount of such Notes), without presentment, demand, protest, notice or other requirements of any kind, all of which are hereby expressly waived by the CompanyHolders.
Appears in 1 contract
Events of Default Defined; Acceleration of Maturity. If any of the following conditions or events (each herein called an "EVENT OF DEFAULT") shall occur and be continuing (whatever the reason for such Event of Default and whether it shall be voluntary or involuntary or come about or be effected by operation of law or pursuant to or in compliance with judicial or governmental or administrative order or action or otherwise):
(a) default shall be made in the due and punctual payment of all or any part of the principal of or Makewhole Amount, if any, on any Note when and as the same shall become due and payable, whether on a date fixed for prepayment, at stated maturity, by acceleration or declaration, or otherwise; or
(b) default shall be made in the due and punctual payment of any interest on any Note when and as such interest shall become due and payable, and such default shall have continued for a period of three days; or
(c) default shall be made in the due performance or observance of any covenant, provision, agreement or condition contained in SECTION 4(G) or any of SECTIONS 6.2 THROUGH 6.13, both inclusive, and, except in the case of any such default under SECTION 4(G), subdivision (a) of SECTION 6.3, SECTION 6.8, SECTION 6.9 or SECTION 6.10, such default shall have continued for a period of ten days after the earlier of (x) the date on which a Responsible Officer of the Company first has knowledge of such default and (y) the giving of notice to the Company of such default by any holder or holders of a Note or Notes; or
(d) default shall be made in the due performance or observance of any other covenant, provision, agreement or condition contained in this Agreement (other than any default referred to in the foregoing subdivisions (a), (b) and (c) of this SECTION 8.1) and such default shall have continued for a period of 30 days after the earlier of (x) the date on which any Responsible Officer of the Company first has knowledge of such default and (y) the giving of notice to the Company of such default by any holder or holders of a Note or Notes; or
(i) default shall be made in the payment of any amount due, whether on an interest payment date or on a date fixed for prepayment, at stated maturity, by acceleration or declaration or otherwise, under or in respect of any Funded Debt or Current Debt of the Company (other than the Notes) or any Subsidiary, and such default shall continue beyond the period of grace, if any, allowed with respect thereto; or (ii) default shall be made in the due performance or observance of any covenant, provision, agreement or condition contained in any document evidencing or providing for the issuance or securing of any such Funded Debt or Current Debt, if the effect of any such default referred to in this clause (ii) is to cause or to permit the holder or holders of such Debt (or a trustee or agent on behalf of such holders) to cause any payment or payments in respect of any such Debt to become due prior to the scheduled due date thereof; or
(f) the Company or any of its Subsidiaries shall (i) apply for or consent to the appointment of, or the taking of possession by, a receiver, custodian, trustee or liquidator of itself or of all or a substantial part of its property, (ii) become insolvent or be generally unable to or shall generally fail or admit in writing its inability to pay its debts as such debts become due, (iii) make a general assignment for the benefit of its creditors, (iv) commence a voluntary case under the Federal Bankruptcy Code (as now or hereafter in effect), (v) file a petition seeking to take advantage of any bankruptcy, insolvency, moratorium, reorganization or other similar law affecting the enforcement of creditors' rights generally, (vi) acquiesce in writing to, or fail to controvert in a timely or appropriate manner, any petition filed against it in an involuntary case under such Bankruptcy Code, (vii) take any action under the laws of any jurisdiction (foreign or domestic) analogous to any of the foregoing, or (viii) take any action in furtherance of any of the foregoing; or
(g) a proceeding or case shall be commenced in respect of the Company or any of its Subsidiaries, without its application or consent, in any court of competent jurisdiction, seeking (i) the liquidation, reorganization, moratorium, dissolution, winding up, or composition or readjustment of its debts, (ii) the appointment of a trustee, receiver, custodian, liquidator or the like of it or of all or any substantial part of its assets, or (iii) similar relief in respect of it under any law providing for the relief of debtors, and such proceeding or case described in clause (i), (ii) or (iii) shall continue undismissed, or unstayed and in effect, for a period of 30 days, or an order for relief shall be entered in an involuntary case under the Federal Bankruptcy Code (as now or hereafter in effect) against the Company or any of its Subsidiaries and shall continue undismissed, or unstayed and in effect, for a period of 15 days; or action under the laws of any jurisdiction (foreign or domestic) analogous to any of the foregoing shall be taken with respect to the Company or any of its Subsidiaries and shall continue undismissed, or unstayed and in effect, for a period of 15 days; or
(h) a final judgment or decree for the payment of money shall be rendered by a court of competent jurisdiction against the Company or any of its Subsidiaries which, either alone or together with other outstanding judgments or decrees against the Company or any one or more of its Subsidiaries, shall aggregate more than $500,000, and the Company or such Subsidiary, as the case may be, shall not discharge the same or provide for its discharge in accordance with its terms within 45 days from the date of entry thereof or within such longer period during which execution of such judgment shall have been stayed; or
or (i) any representation or warranty made by the Company in this Agreement or in any certificate or other instrument delivered hereunder or pursuant hereto or in connection with any provision hereof shall prove to have been false or incorrect or breached in any material respect on the date as of which made; or
(i) any Company Group Member shall fail to pay when due any amount which it shall have become liable to pay to the PBGC or to a Plan under Title IV of ERISA; (ii) any Company Group Member shall withdraw from a Multiple Employer Plan during a plan year in which it is a substantial employer (as such term is defined in Section 4001(a)(2) of ERISA), or shall be treated as having so withdrawn under Section 4062(e) of ERISA, or any Multiple Employer Plan shall be terminated; (iii) notice of intent to terminate a Plan or Plans shall be filed under Title IV of ERISA by any Company Group Member, any plan administrator or any combination of the foregoing; (iv) the PBGC shall institute proceedings under Title IV of ERISA to terminate or to cause a trustee to be appointed to administer any Plan or Plans; (v) any Company Group Member shall withdraw from any Multiemployer Plan ; (vi) any Plan (with the exception of any Multiemployer Plan) shall have an Unfunded Current Liability; or (vii) any prohibited transaction (as defined in Section 406 of ERISA or Section 4975 of the Code) or breach of fiduciary responsibility shall occur which may subject any Company Group Member to any liability under Section 406, 409, 502(i) or 502(l) of ERISA or Section 4975 of the Code, or under any agreement or other instrument pursuant to which such Company Group Member has agreed or is required to indemnify any Person against any such liability; and there shall result from any such event or events referred to in the foregoing subdivisions (i) through (vii) a Material Adverse Effect;
(i) upon the occurrence on any date of any Event of Default described in clause (f) or (g) of this Section with respect to the Company, the unpaid principal amount of all Notes, together with the interest accrued thereon in accordance with the terms thereof and hereof (which interest shall be deemed matured) and all other amounts payable by the Company hereunder, plus (to the extent permitted by applicable law) the Makewhole Amount (determined as of such date in respect of such principal amount of the Notes) shall automatically become immediately due and payable, without presentment, demand, protest, notice of intention to accelerate, notice of acceleration, or other requirements of any kind, all of which are hereby expressly waived by the Company, and (ii) upon the occurrence on any date or during the continuance of any other Event of Default, the holder or holders of not less than 51% of the unpaid principal amount of the Notes at the time outstanding may, by written notice to the Company, declare the unpaid principal amount of all Notes to be, and the same shall forthwith become, due and payable, together with the interest accrued thereon in accordance with the terms thereof and hereof (which interest shall be deemed matured) and all other amounts payable by the Company hereunder, plus (to the extent permitted by applicable law) the Makewhole Amount (determined as of the date of such declaration in respect of such principal amount of Notes), without presentment, demand, protest, notice or other requirements of any kind, all of which are hereby expressly waived by the Company; PROVIDED that, upon the occurrence on any date or during the continuance of an Event of Default described in clause (a) or (b) of this Section with respect to any Note, the holder of such Note may, by written notice to the Company, declare the unpaid principal amount of such Note to be, and the same shall forthwith become, due and payable, together with the interest accrued thereon in accordance with the terms thereof and hereof (which interest shall be deemed matured) and all other amounts payable by the Company hereunder to the holder of such Note, plus (to the extent permitted by applicable law) the Makewhole Amount (determined as of the date of such declaration in respect of such principal amount of such Note), without presentment, demand, protest, notice or other requirements of any kind, all of which are hereby expressly waived by the Company. If any holder of any Note shall exercise the option specified in the proviso to the preceding sentence, the Company will forthwith give written notice thereof to the holders of all other outstanding Notes and each such holder may (whether or not such notice is given or received), by written notice to the Company, declare the principal amount of all Notes held by it to be, and the same shall forthwith become, due and payable, together with interest accrued thereon in accordance with the terms thereof and hereof (which interest shall be deemed matured) and all other amounts payable by the Company hereunder to the holder of such Notes, plus (to the extent permitted by applicable law) the Makewhole Amount (determined as of the date of such declaration in respect of such principal amount of such Notes), without presentment, demand, protest, notice or other requirements of any kind, all of which are hereby expressly waived by the Company.
Appears in 1 contract
Sources: Note Purchase Agreement (Hutchinson Technology Inc)
Events of Default Defined; Acceleration of Maturity. If any one or more of the following conditions or events (each herein called an "EVENT OF DEFAULT"βEvents of Defaultβ) shall occur and be continuing (whatever the reason for such Event of Default and whether it shall be voluntary or involuntary or come about or be effected by operation of law or pursuant to any judgment, decree or in compliance with judicial order of any court or any order, rule or regulation of any administrative or governmental or administrative order or action or otherwise):body), that is to say:
(a) if default shall be made in the due and punctual payment of all (i) any principal of the Note when and as the same become due and payable or (ii) any interest on the Note or any part of other amount owing to the principal of or Makewhole Amount, if any, on any Note Lender under the Loan Documents when and as the same shall become due and payable, whether on a date fixed for prepayment, at stated maturity, by acceleration or declaration, or otherwise; or
(b) default shall be made in the due and punctual payment of any interest on any Note when and as such interest shall become due and payable, payable and such default in the payment of interest or such other amount shall have continued for a period of three 5 business days; or;
(ci) if default shall be made in the due performance or observance of any covenantcovenants, provision, agreement agreements or condition conditions contained in SECTION 4(G) Section 12 of this Agreement, or any of SECTIONS Section 5 or 6.2 THROUGH 6.13, both inclusive, and, except in the case of any such default under SECTION 4(G), subdivision (a) of SECTION 6.3, SECTION 6.8, SECTION 6.9 or SECTION 6.10, such default shall have continued for a period of ten days after the earlier of (x) the date on which a Responsible Officer of the Company first has knowledge of such default and Security Agreement; or (yii) the giving of notice to the Company of such default by any holder or holders of a Note or Notes; or
(d) if default shall be made in the due performance or observance of any other covenantcovenants, provision, agreement agreements or condition conditions contained in this Agreement (or any of the other than any default referred to in the foregoing subdivisions (a), (b) and (c) of this SECTION 8.1) Loan Documents and such default shall have continued for a period of 30 days after the earlier of (x) the date on which any Responsible Officer of receipt by the Company first has knowledge of written notice of such default and (y) the giving of notice to the Company of such default by any holder or holders of a Note or Notes; orfrom you;
(ic) default shall be made in the payment of any amount due, whether on an interest payment date or on a date fixed for prepayment, at stated maturity, by acceleration or declaration or otherwise, under or in respect of any Funded Debt or Current Debt of the Company (other than the Notes) or any Subsidiary, and such default shall continue beyond the period of grace, if any, allowed with respect thereto; or (ii) default shall be made in the due performance or observance of any covenant, provision, agreement or condition contained in any document evidencing or providing for the issuance or securing of any such Funded Debt or Current Debt, if the effect of any such default referred to in this clause (ii) is to cause or to permit the holder or holders of such Debt (or a trustee or agent on behalf of such holders) to cause any payment or payments in respect of any such Debt to become due prior to the scheduled due date thereof; or
(f) the Company or any Restricted Subsidiary shall make a general assignment for the benefit of its Subsidiaries shall (i) apply for or consent to the appointment ofcreditors, or the taking of possession byshall not pay its debts as they become due, a receiver, custodian, trustee or liquidator of itself or of all or a substantial part of its property, (ii) become insolvent or be generally unable to or shall generally fail or admit in writing its inability to pay its debts as such debts they become due, (iii) make a general assignment for the benefit of its creditors, (iv) commence or shall file a voluntary case under the Federal Bankruptcy Code (as now or hereafter petition in effect), (v) file a petition seeking to take advantage of any bankruptcy, insolvency, moratorium, reorganization or other similar law affecting the enforcement of creditors' rights generally, (vi) acquiesce in writing toshall be adjudicated bankrupt or insolvent, or fail to controvert in shall file 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 shall file any answer admitting or not contesting the material allegations of a timely or appropriate manner, any petition filed against it in an involuntary case under any such Bankruptcy Codeproceeding, (vii) take any action under or shall seek or consent to or acquiesce in the laws appointment of any jurisdiction (foreign trustee, custodian, receiver, liquidator or domestic) analogous to fiscal agent for it or for all or any substantial part of the foregoingits properties, or (viii) shall take any action in furtherance of any contemplation of the foregoing; or;
(gd) a proceeding if, within 60 days after the commencement of an action against the Company or case any Restricted Subsidiary seeking any reorganization, arrangement, composition, readjustment, liquidation, dissolution or similar relief under any present or future statute, law or regulation, such action shall be commenced in respect not have been dismissed or all orders or proceedings thereunder affecting the operations or the business of the Company or any of its Subsidiaries, without its application or consent, in any court of competent jurisdiction, seeking (i) the liquidation, reorganization, moratorium, dissolution, winding upRestricted Subsidiary stayed, or composition if the stay of any such order or readjustment of its debtsproceeding shall thereafter be set aside, (ii) or if, within 60 days after the appointment without the consent or acquiescence of a the Company or any Restricted Subsidiary of any trustee, custodian, receiver, custodian, liquidator or fiscal agent for the like Company or any Restricted Subsidiary and/or for all or any substantial part of it its properties, such appointment shall not have been vacated;
(e) if, under the provisions of any law for the relief or aid of debtors, any court or governmental agency of competent jurisdiction shall assume custody or control of the Company or any Restricted Subsidiary or of all or any substantial part of its assets, or (iii) similar relief in respect of it under any law providing for the relief of debtors, properties and such proceeding custody or case described in clause (i), (ii) or (iii) shall continue undismissed, or unstayed and in effect, for a period of 30 days, or an order for relief shall be entered in an involuntary case under the Federal Bankruptcy Code (as now or hereafter in effect) against the Company or any of its Subsidiaries and shall continue undismissed, or unstayed and in effect, for a period of 15 days; or action under the laws of any jurisdiction (foreign or domestic) analogous to any of the foregoing shall be taken with respect to the Company or any of its Subsidiaries and shall continue undismissed, or unstayed and in effect, for a period of 15 days; or
(h) a final judgment or decree for the payment of money shall be rendered by a court of competent jurisdiction against the Company or any of its Subsidiaries which, either alone or together with other outstanding judgments or decrees against the Company or any one or more of its Subsidiaries, shall aggregate more than $500,000, and the Company or such Subsidiary, as the case may be, control shall not discharge the same be terminated or provide for its discharge in accordance with its terms stayed within 45 60 days from the date of entry thereof or within such longer period during which execution assumption of such judgment shall have been stayed; orcustody or control;
(if) if any representation or warranty made by or on behalf of the Company or any Restricted Subsidiary in this Agreement or in any certificate or other instrument delivered hereunder or pursuant hereto or in connection with any provision hereof Loan Document shall prove to have been false or incorrect or breached in any material respect on the date as of which made; or;
(ig) any Company Group Member if a Change of Control shall fail to pay when due any amount which it shall have become liable to pay occur prior to the PBGC or Maturity Date and the Company has not previously prepaid the Note in full and in cash in accordance with Section 9.2(b), provided, however, that an Event of Default shall not be deemed to a Plan have occurred under Title IV this clause (g) if the Company has given the Lender, at least 30 days before such Change of ERISA; Control, both prior written notice of such Change of Control and the opportunity to sell the Note to the Company at one hundred and three percent (ii) any Company Group Member shall withdraw from a Multiple Employer Plan during a plan year in which it is a substantial employer (as such term is defined in Section 4001(a)(2103%) of ERISAthe then outstanding principal amount plus all accrued and unpaid interest on the Note, and if the Company has consummated such sale to the Lender if the Lender has exercised its sale right under this clause (g), ;
(h) if a final judgment or order for the payment of money in excess of $100,000 shall be treated as having so withdrawn under Section 4062(e) rendered against the Company or any of ERISAits subsidiaries and the same shall remain undischarged for a period of 30 days during which execution shall not be effectively stayed, or any Multiple Employer Plan judgment, writ, assessment, warrant of attachment, or execution or similar process shall be terminated; (iii) notice issued or levied against a substantial part of intent to terminate a Plan or Plans shall be filed under Title IV the property of ERISA by any the Company Group Member, any plan administrator or any combination of the foregoing; (iv) the PBGC shall institute proceedings under Title IV of ERISA to terminate or to cause a trustee to be appointed to administer its subsidiaries, if any Plan or Plans; (v) any Company Group Member shall withdraw from any Multiemployer Plan ; (vi) any Plan (with the exception of any Multiemployer Plan) shall have an Unfunded Current Liability; or (vii) any prohibited transaction (as defined in Section 406 of ERISA or Section 4975 of the Code) or breach of fiduciary responsibility shall occur which may subject any Company Group Member to any liability under Section 406and such judgment, 409, 502(i) or 502(l) of ERISA or Section 4975 of the Codewrit, or under any agreement similar process shall not be released, stayed, vacated or other instrument pursuant to which such Company Group Member has agreed otherwise dismissed within 30 days after issue or is required to indemnify any Person against any such liability; and there shall result from any such event or events referred to in the foregoing subdivisions (i) through (vii) a Material Adverse Effectlevy;
(i) upon if any event or condition occurs that results in Material Debt becoming due prior to its scheduled maturity or that enables or permits (with or without the occurrence giving of notice, the lapse of time or both) the holder or holders of any Material Debt or any trustee or agent on its or their behalf to cause any date Material Debt to become due, or to require the prepayment, repurchase, redemption or defeasance thereof, prior to its scheduled maturity; or
(j) if the Security Agreement shall cease to create a valid and perfected first-priority lien (subject to liens permitted by Section 12.2) on the Collateral purported to be covered thereby; then, in the case of any Event of Default (other than one of the character described in clause subdivisions (fc), (d) or (ge) of this Section with respect 13.1) the Lender may, by notice to the Company, declare the unpaid then outstanding principal amount of all Notesthe Note forthwith due and payable, together with unpaid interest accrued thereon, and thereupon the principal of the Note so declared to be due and payable, together with interest accrued thereon in accordance with the terms thereof and hereof (which interest shall be deemed matured) and all other amounts payable by the Company hereunderaccrued Secured Obligations, plus (to the extent permitted by applicable law) the Makewhole Amount (determined as of such date in respect of such principal amount of the Notes) shall automatically become immediately due and payablepayable immediately, without presentment, demand, protest, protest or other notice of intention any kind, all of which are hereby waived by the Company and each Restricted Subsidiary, and the Company shall forthwith upon any such acceleration pay to accelerateyou the then outstanding principal of and unpaid interest accrued on the Note and all other outstanding Secured Obligations; provided that, notice in the case of accelerationan Event of Default of the character described in subdivisions (c), (d) or (e) of this Section 13.1, the then outstanding principal of the Note shall forthwith become due and payable, together with unpaid interest accrued thereon and all other accrued Secured Obligations (including without limitation any interest accruing after the commencement of any action or proceeding under any bankruptcy, insolvency or other requirements similar law, and any other interest that would have accrued but for the commencement of such proceeding, whether or not any such interest is allowed as an enforceable claim in such proceeding), without presentment, demand, protest or other notice of any kind, all of which are hereby expressly waived by the CompanyCompany and each Restricted Subsidiary, and (ii) the Company shall forthwith upon the occurrence on any date or during the continuance of any other Event of Default, such acceleration pay to the holder or holders of not less than 51% the Note the then outstanding principal of the and unpaid principal amount of the Notes at the time outstanding may, by written notice to the Company, declare the unpaid principal amount of all Notes to be, and the same shall forthwith become, due and payable, together with the interest accrued thereon in accordance with on the terms thereof and hereof (which interest shall be deemed matured) Note and all other amounts payable by the Company hereunder, plus (to the extent permitted by applicable law) the Makewhole Amount (determined as of the date of such declaration in respect of such principal amount of Notes), without presentment, demand, protest, notice or other requirements of any kind, all of which are hereby expressly waived by the Company; PROVIDED that, upon the occurrence on any date or during the continuance of an Event of Default described in clause (a) or (b) of this Section with respect to any Note, the holder of such Note may, by written notice to the Company, declare the unpaid principal amount of such Note to be, and the same shall forthwith become, due and payable, together with the interest accrued thereon in accordance with the terms thereof and hereof (which interest shall be deemed matured) and all other amounts payable by the Company hereunder to the holder of such Note, plus (to the extent permitted by applicable law) the Makewhole Amount (determined as of the date of such declaration in respect of such principal amount of such Note), without presentment, demand, protest, notice or other requirements of any kind, all of which are hereby expressly waived by the Company. If any holder of any Note shall exercise the option specified in the proviso to the preceding sentence, the Company will forthwith give written notice thereof to the holders of all other outstanding Notes and each such holder may (whether or not such notice is given or received), by written notice to the Company, declare the principal amount of all Notes held by it to be, and the same shall forthwith become, due and payable, together with interest accrued thereon in accordance with the terms thereof and hereof (which interest shall be deemed matured) and all other amounts payable by the Company hereunder to the holder of such Notes, plus (to the extent permitted by applicable law) the Makewhole Amount (determined as of the date of such declaration in respect of such principal amount of such Notes), without presentment, demand, protest, notice or other requirements of any kind, all of which are hereby expressly waived by the CompanySecured Obligations.
Appears in 1 contract
Sources: Note Purchase Agreement (Bio Key International Inc)
Events of Default Defined; Acceleration of Maturity. If any of the following conditions or events (each herein called an "EVENT EVENTS OF DEFAULTDefault") shall occur and be continuing (whatever the for any reason for such Event of Default whatsoever and whether it shall be voluntary or involuntary or come about or be effected by operation of law or pursuant to or in compliance with judicial or governmental or administrative order or action or otherwise):
(a) A. default shall be made in the due and punctual payment of all or any part of the principal of of, or Makewhole Amountinterest on, if any, on any the Note when and as the same shall become due and payable, whether on a date fixed for prepayment, at stated maturity, by acceleration or declarationacceleration, upon a mandatory prepayment due date or otherwise, and such default is not cured within five (5) Business Days; or
(b) B. default shall be made in the due and punctual payment performance or observance of any interest on covenant, agreement or condition contained herein or in any Note when and as such interest shall become due and payableof the other Loan Documents, and such default shall have continued for a period of three daysfive (5) Business Days; or
(c) default shall be made in the due performance or observance of any covenant, provision, agreement or condition contained in SECTION 4(G) or any of SECTIONS 6.2 THROUGH 6.13, both inclusive, and, except in the case of any such default under SECTION 4(G), subdivision (a) of SECTION 6.3, SECTION 6.8, SECTION 6.9 or SECTION 6.10, such default shall have continued for a period of ten days after the earlier of (x) the date on which a Responsible Officer of C. the Company first has knowledge of such default and (y) the giving of notice to the Company of such default by any holder or holders of a Note or Notes; or
(d) default shall be made in the due performance or observance of any other covenant, provision, agreement or condition contained in this Agreement (other than any default referred to in the foregoing subdivisions (a), (b) and (c) of this SECTION 8.1) and such default shall have continued for a period of 30 days after the earlier of (x) the date on which any Responsible Officer of the Company first has knowledge of such default and (y) the giving of notice to the Company of such default by any holder or holders of a Note or Notes; or
(i) default shall be made in the payment of any amount due, whether on an interest payment date or on a date fixed for prepayment, at stated maturity, by acceleration or declaration or otherwise, under or in respect of any Funded Debt or Current Debt of the Company (other than the Notes) or any Subsidiary, and such default shall continue beyond the period of grace, if any, allowed with respect thereto; or (ii) default shall be made in the due performance or observance of any covenant, provision, agreement or condition contained in any document evidencing or providing for the issuance or securing of any such Funded Debt or Current Debt, if the effect of any such default referred to in this clause (ii) is to cause or to permit the holder or holders of such Debt (or a trustee or agent on behalf of such holders) to cause any payment or payments in respect of any such Debt to become due prior to the scheduled due date thereof; or
(f) the Company or any of its Subsidiaries shall (i1) apply for or consent to the appointment of, or the taking of possession by, a receiver, custodian, trustee or liquidator of itself or of all or a substantial part of its propertyproperty and assets, (ii2) become insolvent or be generally unable to or shall generally fail or admit in writing its inability to pay its debts as such debts become due, (iii3) make a general assignment for the benefit of its creditors, (iv4) commence a voluntary case under the Federal United States Bankruptcy Code or similar law or regulation (as now or hereafter in effect), (v5) file a petition seeking to take advantage of any bankruptcy, insolvency, moratorium, reorganization or other similar law affecting providing for the enforcement relief of creditors' rights generallydebtors, (vi6) acquiesce in writing to, or fail to controvert in a timely or appropriate manner, or acquiesce in writing to, any petition filed against it in an involuntary case under such Bankruptcy CodeCode or other law or regulation, (vii7) dissolve, (8) take any corporate action under the laws of any jurisdiction (foreign or domestic) applicable law analogous to any of the foregoing, or (viii9) take any corporate action in furtherance for the purpose of effecting any of the foregoing; or
(g) D. a proceeding or case shall be commenced in respect commenced, without the application or consent of the Company or any of its Subsidiaries, without its application or consent, in any court of competent jurisdiction, seeking (i1) the liquidation, reorganization, moratorium, dissolution, winding up, up or composition or readjustment of its debts, (ii2) the appointment of a trustee, receiver, custodian, liquidator or the like of it or of for all or any substantial part of its assets, or (iii3) similar relief in respect of it the Company, under any law providing for the relief of debtors, and such proceeding or case described in clause (i), (ii) or (iii) shall continue undismissed, or unstayed and in effect, for a period of 30 sixty (60) days, ; or an order for relief shall be entered in an involuntary case under the Federal United States Bankruptcy Code (as now or hereafter in effect) other similar law or regulation, against the Company or any of its Subsidiaries and shall continue undismissed, or unstayed and in effect, for a period of 15 daysCompany; or action under the laws of any jurisdiction (foreign or domestic) affecting the Company analogous to any of the foregoing shall be taken with respect to the Company or any of its Subsidiaries and shall continue undismissed, or unstayed and in effect, effect for a any period of 15 sixty (60) days; or
(h) a E. final judgment or decree for the payment of money shall be rendered by a court of competent jurisdiction against the Company or any of its Subsidiaries which, either alone or together with other outstanding judgments or decrees against the Company or any one or more of its Subsidiaries, shall aggregate more than $500,000, and the Company or such Subsidiary, as the case may be, shall not discharge the same or provide for its discharge in accordance with its terms terms, or procure a stay of execution thereof within 45 sixty (60) days from the date of entry thereof and within said period of sixty (60) days, or within such longer period during which execution of such judgment shall have been stayed, appeal therefrom and cause the execution thereof to be stayed during such appeal, and such judgment together with all other such judgments shall exceed in the aggregate US$250,000; or
(i) F. any representation or warranty made by the Company in this Agreement Agreement, any other Loan Document or any other documents or agreements contemplated hereby and thereby or in any certificate or other instrument delivered hereunder or pursuant hereto or in connection with any provision hereof shall prove to have been be false or incorrect or breached in any material respect on the date as of which made; or
(i) any Company Group Member shall fail to pay when due any amount which it shall have become liable to pay to the PBGC or to a Plan under Title IV of ERISA; (ii) any Company Group Member shall withdraw from a Multiple Employer Plan during a plan year in which it is a substantial employer (as such term is defined in Section 4001(a)(2) of ERISA), or shall be treated as having so withdrawn under Section 4062(e) of ERISA, or any Multiple Employer Plan shall be terminated; (iii) notice of intent to terminate a Plan or Plans shall be filed under Title IV of ERISA by any Company Group Member, any plan administrator or any combination of the foregoing; (iv) the PBGC shall institute proceedings under Title IV of ERISA to terminate or to cause a trustee to be appointed to administer any Plan or Plans; (v) any Company Group Member shall withdraw from any Multiemployer Plan ; (vi) any Plan (with the exception of any Multiemployer Plan) shall have an Unfunded Current Liability; or (vii) any prohibited transaction (as defined in Section 406 of ERISA or Section 4975 of the Code) or breach of fiduciary responsibility shall occur which may subject any Company Group Member to any liability under Section 406, 409, 502(i) or 502(l) of ERISA or Section 4975 of the Code, or under any agreement or other instrument pursuant to which such Company Group Member has agreed or is required to indemnify any Person against any such liability; and there shall result from any such event or events referred to in the foregoing subdivisions (i) through (vii) a Material Adverse Effect;
(i) upon the occurrence on any date of any Event of Default described in clause (f) or (g) of this Section with respect to the Company, the unpaid principal amount of all Notes, together with the interest accrued thereon in accordance with the terms thereof and hereof (which interest shall be deemed matured) and all other amounts payable by the Company hereunder, plus (to the extent permitted by applicable law) the Makewhole Amount (determined as of such date in respect of such principal amount of the Notes) shall automatically become immediately due and payable, without presentment, demand, protest, notice of intention to accelerate, notice of acceleration, or other requirements of any kind, all of which are hereby expressly waived by the Company, and (ii) upon the occurrence on any date or during the continuance of any other Event of Default, the holder or holders of not less than 51% of the unpaid principal amount of the Notes at the time outstanding may, by written notice to the Company, declare the unpaid principal amount of all Notes to be, and the same shall forthwith become, due and payable, together with the interest accrued thereon in accordance with the terms thereof and hereof (which interest shall be deemed matured) and all other amounts payable by the Company hereunder, plus (to the extent permitted by applicable law) the Makewhole Amount (determined as of the date of such declaration in respect of such principal amount of Notes), without presentment, demand, protest, notice or other requirements of any kind, all of which are hereby expressly waived by the Company; PROVIDED that, upon the occurrence on any date or during the continuance of an Event of Default described in clause (a) or (b) of this Section with respect to any Note, the holder of such Note may, by written notice to the Company, declare the unpaid principal amount of such Note to be, and the same shall forthwith become, due and payable, together with the interest accrued thereon in accordance with the terms thereof and hereof (which interest shall be deemed matured) and all other amounts payable by the Company hereunder to the holder of such Note, plus (to the extent permitted by applicable law) the Makewhole Amount (determined as of the date of such declaration in respect of such principal amount of such Note), without presentment, demand, protest, notice or other requirements of any kind, all of which are hereby expressly waived by the Company. If any holder of any Note shall exercise the option specified in the proviso to the preceding sentence, the Company will forthwith give written notice thereof to the holders of all other outstanding Notes and each such holder may (whether or not such notice is given or received), by written notice to the Company, declare the principal amount of all Notes held by it to be, and the same shall forthwith become, due and payable, together with interest accrued thereon in accordance with the terms thereof and hereof (which interest shall be deemed matured) and all other amounts payable by the Company hereunder to the holder of such Notes, plus (to the extent permitted by applicable law) the Makewhole Amount (determined as of the date of such declaration in respect of such principal amount of such Notes), without presentment, demand, protest, notice or other requirements of any kind, all of which are hereby expressly waived by the Company.
Appears in 1 contract
Sources: Securities Purchase Agreement (Telscape International Inc)
Events of Default Defined; Acceleration of Maturity. If any one or more of the following conditions or events (each herein called an "EVENT OF DEFAULTEvents of Default") shall occur and be continuing (whatever the reason for such Event of Default and whether it shall be voluntary or involuntary or come about or be effected by operation of law or pursuant to any judgment, decree or in compliance with judicial order of any court or any order, rule or regulation of any administrative or governmental or administrative order or action or otherwise):body), that is to say:
(a) if default shall be made in the due and punctual payment of all or any part of the principal of of, or Makewhole Amount, premium (if any) on, on any Note when and as the same shall become due and payable, whether on a date fixed at the stated maturity thereof, by notice of or demand for prepayment, at stated maturity, by acceleration or declaration, or otherwise; or
(b) if default shall be made in the due and punctual payment of any interest on any Note when and as such interest shall become due and payable, payable and such default shall have continued for a period of three daysBusiness Days; or
(c) if (i) default shall be made in the due performance or observance of any covenant, provision, agreement or condition contained in SECTION 4(G) section 10.1 or any of SECTIONS 6.2 THROUGH 6.13, both inclusive, and, except in the case of any such default under SECTION 4(G), subdivision (a) of SECTION 6.3, SECTION 6.8, SECTION 6.9 or SECTION 6.10, 10.2 and such default shall have continued continue unremedied for a period of ten days (10) Business Days after the earlier of occurrence thereof or (x) the date on which a Responsible Officer of the Company first has knowledge of such default and (y) the giving of notice to the Company of such default by any holder or holders of a Note or Notes; or
(dii) default shall be made in the due performance or observance of any covenant, agreement or condition contained in section 10.3 or 10.4; or
(d) if default shall be made in the performance or observance of any other covenantof the covenants, provision, agreement agreements or condition conditions contained in this Agreement or any of the other Operative Documents (other than any default referred to in the foregoing subdivisions as covered by paragraphs (a), (b) and (c) of this SECTION 8.1Section 12.1) and such default shall have continued for a period of 30 days after the earlier of (x) the date on which any Responsible Officer of the Company first has knowledge of such default and (y) the giving of notice to the Company of such default by any holder or holders of a Note or Notesoccurrence thereof; or
(ie) default if an involuntary case shall be made commenced against the Company or any of the Company's Material Subsidiaries and the petition shall not be dismissed, stayed, bonded or discharged within sixty (60) days after commencement of the case; or a court having jurisdiction in the payment of any amount due, whether on an interest payment date premises shall enter a decree or on a date fixed order for prepayment, at stated maturity, by acceleration or declaration or otherwise, under or relief in respect of the Company or any Funded Debt or Current Debt of the Company (Company's Material Subsidiaries in an involuntary case, under any applicable bankruptcy, insolvency or other than the Notes) similar law now or hereinafter in effect; or any Subsidiary, and such default shall continue beyond the period of grace, if any, allowed with respect thereto; or (ii) default other similar relief shall be made in the due performance granted under any applicable federal, state, local or observance of any covenant, provision, agreement or condition contained in any document evidencing or providing for the issuance or securing of any such Funded Debt or Current Debt, if the effect of any such default referred to in this clause (ii) is to cause or to permit the holder or holders of such Debt (or a trustee or agent on behalf of such holders) to cause any payment or payments in respect of any such Debt to become due prior to the scheduled due date thereofforeign law.; or
(f) if a decree or order of a court having jurisdiction in the premises for the appointment of a receiver, liquidator, sequestrator, trustee, custodian or other officer having similar powers over the Company or any of its the Company's Subsidiaries or over all or a substantial part of the property of the Company or any of the Company's Subsidiaries shall be entered; or an interim receiver, trustee or other custodian of the Company or any of the Company's Subsidiaries or of all or a substantial part of the property of the Company or any of the Company's Subsidiaries shall be appointed or a warrant of attachment, execution or similar process against any substantial part of the property of the Company or any of the Company's Subsidiaries shall be issued and any such event shall not be stayed, dismissed, bonded or discharged within sixty (60) days after entry, appointment or issuance provided that such Event of Default shall not arise in respect of any Subsidiary of the Company that is not a Material Subsidiary and for which a waiver of any Event of Default (or similar term within the meaning of the Bank Credit Agreement) arising from the foregoing events has been granted to the Company by the requisite percentage of Bank Lenders pursuant to the Bank Credit Agreement prior to the expiry of the preceding sixty (60) day period; or
(g) if the Company or any of the Company's Subsidiaries shall (i) apply commence a voluntary case under any applicable bankruptcy, insolvency or other similar law now or hereafter in effect, (ii) consent to the entry of an order for relief in an involuntary case, or to the conversion of an involuntary case to a voluntary case, under any such law, (iii) consent to the appointment of, of or the taking of possession by, by a receiver, custodian, trustee or liquidator of itself or of other custodian for all or a substantial part of its property, (ii) become insolvent or be generally unable to or shall generally fail or admit in writing its inability to pay its debts as such debts become due, (iiiiv) make a general any assignment for the benefit of its creditors, (iv) commence a voluntary case under the Federal Bankruptcy Code (as now creditors or hereafter in effect), (v) file a petition seeking to take advantage of any bankruptcy, insolvency, moratorium, reorganization or other similar law affecting the enforcement of creditors' rights generally, (vi) acquiesce in writing to, or fail to controvert in a timely or appropriate manner, any petition filed against it in an involuntary case under such Bankruptcy Code, (vii) take any corporate action under the laws of any jurisdiction (foreign or domestic) analogous to any of the foregoing, or (viii) take any action in furtherance of authorize any of the foregoing; provided that such Event of Default shall not arise in respect of any Subsidiary of the Company that is not a Material Subsidiary and for which a waiver of any Event of Default (or similar term within the meaning of the Bank Credit Agreement) arising from the foregoing events has been granted to the Company by the requisite percentage of Bank Lenders pursuant to the Bank Credit Agreement prior to taking any of the foregoing actions; or
(gh) a proceeding if the Company or case any of its Subsidiaries shall be commenced fail to (i) make any payment due on any Indebtedness (other than the Notes or the Senior Bank Obligations) or other obligation (including any in respect of any lease or any Capital Stock upon the exercise by any Person of any put or call option or other similar right of redemption or -71- repurchase with regard to such Shares) when due (subject to applicable grace periods), if the aggregate outstanding amount thereof (and of any other Indebtedness or other obligation as to which the Company or any of its Subsidiaries is in default) exceeds [$__________] (or the equivalent thereof, as at any date of determination, in any other currency) or (ii) perform, observe or discharge any covenant, condition or obligation in any agreement, document or instrument evidencing, securing or relating to such Indebtedness or other obligation, if the effect of any such failure of the character described in this clause (ii) is to cause, or permit such Person to cause, any payment in an aggregate amount of [$__________] (or the equivalent thereof, as at any date of determination, in any other currency) or more to become due and payable, or if any such Indebtedness or other obligation in an aggregate amount of [$__________] (or the equivalent thereof, as at any date of determination, in any other currency) or more shall become due and payable by its terms and shall not be paid or extended; or
(i) if a final judgment for the payment of money which, together with all other outstanding final judgments for the payment of money against the Company or any of its Subsidiaries, without its application exceeds an aggregate of $1,500,000 (or consentthe equivalent thereof, as at any date of determination, in any other currency) shall be rendered by a court of competent jurisdiction, seeking (i) the liquidation, reorganization, moratorium, dissolution, winding up, or composition or readjustment of its debts, (ii) the appointment of a trustee, receiver, custodian, liquidator or the like of it or of all or any substantial part of its assets, or (iii) similar relief in respect of it under any law providing for the relief of debtors, and such proceeding or case described in clause (i), (ii) or (iii) shall continue undismissed, or unstayed and in effect, for a period of 30 days, or an order for relief shall be entered in an involuntary case under the Federal Bankruptcy Code (as now or hereafter in effect) record against the Company or any of its Subsidiaries Subsidiaries, and shall continue undismissed, or unstayed and in effect, for a period of 15 days; or action under the laws of any jurisdiction (foreign or domestic) analogous to any of the foregoing shall be taken with respect to the Company or any of its Subsidiaries and shall continue undismissed, or unstayed and in effect, for a period of 15 days; or
(h) a final judgment or decree for the payment of money shall be rendered by a court of competent jurisdiction against the Company or any of its Subsidiaries which, either alone or together with other outstanding judgments or decrees against the Company or any one or more of its Subsidiaries, shall aggregate more than $500,000, and the Company or such Subsidiary, as the case may be, shall not discharge the same or provide for its discharge in accordance with its terms terms, or procure a stay of execution thereof within 45 30 days from the date of entry thereof and within such period of 30 days, or within such longer period during which execution of such judgment shall have been stayed, move to vacate such judgment or appeal therefrom and cause the execution thereof to be stayed pending determination of such motion or during such appeal; or
(ij) if any representation or warranty made by or on behalf of the Company or any of its Subsidiaries in this Agreement or in any certificate of the other Operative Documents or other in any agreement, document or instrument delivered hereunder under or pursuant hereto or in connection with to any provision hereof or thereof shall prove to have been materially false or incorrect or breached in any material respect on the date as of which made; or
(k) if, at any time, this Agreement or any of the other Operative Documents shall for any reason (other than the scheduled termination thereof in accordance with its terms) expire, fail to be in full force and effect or be disaffirmed, repudiated, canceled, terminated or declared to be unenforceable, null and void; or
(l) if (i) any Company Group Member Plan shall fail to pay when due satisfy the minimum funding standards of ERISA or the Code for any amount which it shall have become liable to pay to plan year or part thereof or a waiver of such standards or extension of any amortization period is sought or granted under section 412 of the PBGC or to a Plan under Title IV of ERISA; Code, (ii) any Company Group Member shall withdraw from a Multiple Employer Plan during a plan year in which it is a substantial employer (as such term is defined in Section 4001(a)(2) of ERISA), or shall be treated as having so withdrawn under Section 4062(e) of ERISA, or any Multiple Employer Plan shall be terminated; (iii) notice of intent to terminate a any Plan shall have been or Plans shall is reasonably expected to be filed under Title IV of ERISA by any Company Group Member, any plan administrator with the PBGC or any combination of the foregoing; (iv) the PBGC shall institute have instituted proceedings under Title IV section 4042 of ERISA to terminate or to cause appoint a trustee to be appointed to administer any Plan or the PBGC shall have notified the Company or any ERISA Affiliate that a Plan may become a subject of any such proceedings, (iii) the aggregate "amount of unfunded benefit liabilities" (within the meaning of section 4001(a)(18) of ERISA) under all Plans; , determined in accordance with Title IV of ERISA, shall exceed [$__________] (or the equivalent thereof, as at any date of determination, in any other currency), (iv) the Company or any ERISA Affiliate shall have incurred or is reasonably expected to incur any liability pursuant to Title I or IV of ERISA or the penalty or excise tax provisions of the Code relating to employee benefit plans, (v) the Company or any Company Group Member shall withdraw ERISA Affiliate withdraws from any Multiemployer Plan ; Plan, (vi) the Company or any Plan (with Subsidiary of the exception Company establishes or amends any employee welfare benefit plan that provides post-employment welfare benefits in a manner that would increase the liability of any Multiemployer Plan) shall have an Unfunded Current Liability; the Company and/or its Subsidiaries thereunder, or (vii) any prohibited transaction (as defined in Section 406 of ERISA or Section 4975 of the Code) or breach of fiduciary responsibility shall occur which may subject any Company Group Member to any liability under Section 406, 409, 502(i) or 502(l) of ERISA or Section 4975 of the Code, or under any agreement or other instrument pursuant to which such Company Group Member has agreed or is required to indemnify any Person against any such liabilitytermination Event occurs; and there shall result from any such event or events referred to described in the foregoing subdivisions clauses (i) through (vii) above, either individually or together with any other such event or events, has resulted in, or could reasonably be expected to result in, a Material Adverse Effect;
(im) upon acceleration of any Indebtedness under the occurrence on any date Bank Credit Agreement or the Seller Notes, subject to the terms of the Subordination Agreements; or
(n) the IRS shall notify Borrower in writing that it has made a final determination not subject to cure that the ESOP is not a qualified plan and employee stock ownership plan within the meanings of Section 401(a) and 4975(e)(7), respectively, of the Code; then, in the case of any Event of Default (other than one of the character described in clause subdivisions (e), (f) or (g) of this Section section 12.1 with respect to the Company or any Material Subsidiary) and at the option of the Required Holders of the Notes at the time outstanding (excluding any Notes at the time owned by any of the Company or any of its Affiliates), exercised by written notice to the Company, the unpaid principal amount of all NotesNotes shall forthwith become due and payable, together with the interest accrued thereon in accordance with the terms thereof and hereof (which interest shall be deemed matured) and all other amounts payable by the Company hereunder, plus (to the extent permitted by applicable law) the Makewhole Amount (determined as of such date in respect of such principal amount of the Notes) shall automatically become immediately due and payablethereon, without presentment, demand, protest, notice of intention to accelerate, notice of acceleration, protest or other requirements notice of any kind, all of which are hereby expressly waived by waived, and the CompanyCompany shall forthwith upon any such acceleration pay to the holder or holders of all the Notes then outstanding (i) the entire principal of and interest accrued on the Notes, and (ii) in addition, to the extent permitted by applicable law, an amount equal to the premium that would be payable upon a prepayment of the occurrence on any date or during Notes pursuant to section 8.1 at such time, as liquidated damages and not as a penalty; provided that, in the continuance case of any other an Event of Default, the holder or holders of not less than 51% Default of the unpaid principal amount character described in subdivisions (a) or (b) of this section 12.1 and irrespective of whether all of the Notes have been declared due and payable by the Required Holders of the Notes at the time outstanding outstanding, any holder of Notes who or which has not consented to any waiver with respect to such Event of Default may, at the option of such holder, by written notice to the Company, declare the unpaid principal amount of all Notes then held by such holder to be, and the same such Notes shall forthwith thereupon become, forthwith due and payable, together with the interest accrued thereon in accordance with the terms thereof and hereof (which interest shall be deemed matured) and all other amounts payable by the Company hereunder, plus (to the extent permitted by applicable law) the Makewhole Amount (determined as of the date of such declaration in respect of such principal amount of Notes)thereon, without presentment, demand, protest, notice protest or other requirements notice of any kind, all of which are hereby expressly waived by the Company; PROVIDED that, upon the occurrence on any date or during the continuance of an Event of Default described in clause (a) or (b) of this Section with respect to any Note, the holder of such Note may, by written notice to the Company, declare the unpaid principal amount of such Note to bewaived, and the same Company shall forthwith become, due upon any such acceleration pay to such holder (i) the entire principal of and payable, together with the interest accrued thereon on such Notes, and (ii) in accordance with the terms thereof and hereof (which interest shall be deemed matured) and all other amounts payable by the Company hereunder to the holder of such Noteaddition, plus (to the extent permitted by applicable law) , an amount equal to the Makewhole Amount (determined as premium that would be payable upon a prepayment of the date Notes pursuant to section 8.1 at such time, as liquidated damages and not as a penalty; provided, further, that, in the case of an Event of Default of the character described in subdivisions (e), (f) or (g) of this section 12.1 with respect to the Company or any Material Subsidiary, the principal of all Notes shall forthwith become due and payable, together with interest accrued thereon (including any interest accruing after the commencement of any action or proceeding under the federal bankruptcy laws, as now or hereafter constituted, or any other applicable domestic or foreign federal or state bankruptcy, insolvency or other similar law, and any other interest that would have accrued but for the commencement of such declaration proceeding, whether or not any such interest is allowed as an enforceable claim in respect of such principal amount of such Noteproceeding), without presentment, demand, protest, notice protest or other requirements notice of any kind, all of which are hereby expressly waived by waived, and the Company. If Company shall forthwith upon any holder of any Note shall exercise the option specified in the proviso such acceleration pay to the preceding sentence, the Company will forthwith give written notice thereof to the holder or holders of all other the Notes then outstanding (i) the entire principal of and interest accrued on the Notes, and (ii) in addition, to the extent permitted by applicable law, an amount equal to the premium that would be payable upon a prepayment of the Notes pursuant to section 8.1 at such time, as liquidated damages and not as a penalty. Notwithstanding the foregoing provisions, at any time after the occurrence of any Event of Default and of notice thereof, if any, by any holder or holders of Notes and each such before any judgment, decree or order for payment of the money due has been obtained by or on behalf of any holder may (whether or not such notice is given or received)holders of the Notes, the Required Holders of the Notes by written notice to the Company, declare may rescind and annul such Event of Default and/or notice of such Event of Default and the consequences thereof with respect to all of the Notes (including any Notes which were accelerated pursuant to the first proviso in the preceding paragraph by any holder or holders on account of an Event of Default of the character described in subdivision (a) or (b) of this section 12.1) if:
(1) the Company has paid a sum sufficient to pay
(A) all overdue installments of interest on all Notes at the rate specified in the Notes;
(B) the principal amount of all (and premium, if any, on) any Notes held which have become due otherwise than by it to be, and the same shall forthwith become, due and payable, together with interest accrued thereon in accordance with the terms such Event of Default or notice thereof and hereof (which interest shall be deemed matured) and all other thereon at the rate for overdue amounts payable by the Company hereunder to the holder of specified in such Notes, plus ; and
(C) to the extent permitted by applicable lawthat payment of such interest is lawful, interest upon overdue interest at the rate for overdue amounts specified in such Notes; and
(2) all Defaults and Events of Default, other than the Makewhole Amount (determined as non-payment of the date principal of Notes which have become due solely by such declaration acceleration, have been cured or waived as provided in respect of section 12. No such principal amount of such Notes), without presentment, demand, protest, notice rescission shall affect any subsequent default or other requirements of impair any kind, all of which are hereby expressly waived by the Companyright consequent thereon.
Appears in 1 contract
Sources: Mezzanine Note Securities Purchase Agreement (Alion Science & Technology Corp)
Events of Default Defined; Acceleration of Maturity. If any of the following conditions or events (each herein called an "EVENT OF DEFAULTEvents of Default") shall occur and be continuing (whatever the for any reason for such Event of Default whatsoever and whether it shall be voluntary or involuntary or come about or be effected by operation of law or pursuant to or in compliance with judicial or governmental or administrative order or action or otherwise):
(a) a. default shall be made in the due and punctual payment of all or any part of the principal of or Makewhole Amount, if any, on any this Note when and as the same shall become due and payable, whether on a date fixed for prepayment, at stated maturity, by acceleration or declarationacceleration, by mandatory redemption or otherwise; or;
(b) b. default shall be made in the due and punctual payment of any interest on any this Note when and as such interest shall become due and payable, and such default shall have continued for a period of three thirty (30) days; or
(c) c. default shall be made in the due performance or observance of any covenant, provision, agreement or condition contained in SECTION 4(G) or any of SECTIONS 6.2 THROUGH 6.13, both inclusive, and, except in the case of any such default under SECTION 4(G), subdivision (a) of SECTION 6.3, SECTION 6.8, SECTION 6.9 or SECTION 6.10, such default shall have continued for a period of ten days after the earlier of (x) the date on which a Responsible Officer of the Company first has knowledge of such default and (y) the giving of notice to the Company of such default by any holder or holders of a Note or Notes; or
(d) default shall be made in the due performance or observance of any other covenant, provision, agreement or condition contained in this Agreement (other than any default referred to in the foregoing subdivisions (a), (b) and (c) of this SECTION 8.1) Note and such default shall have continued unremedied for a period of 30 thirty (30) days after the earlier or such longer period (but in no event longer than a total of sixty (x60) the date on unremedied days) during which any Responsible Officer of the Company first has knowledge of is diligently pursuing a remedy to such default and (y) the giving of notice to the Company of such default by any holder or holders of a Note or Notesdefault; or
(i) d. a default shall be made in the payment of principal, premium or interest when due that extends beyond any amount due, whether on stated period of grace applicable thereto or an interest payment date or on a date fixed acceleration for prepayment, at stated maturity, by acceleration or declaration or otherwise, under or in respect any other reason of the maturity of any Funded Debt or Current Debt Indebtedness of the Company (other than the Notes) or any Subsidiary, and such default shall continue beyond the period of grace, if any, allowed with respect thereto; or (ii) default shall be made in the due performance or observance of any covenant, provision, agreement or condition contained in any document evidencing or providing for the issuance or securing of any such Funded Debt or Current Debt, if the effect of any such default referred to in this clause (ii) is to cause or to permit the holder or holders of such Debt (or a trustee or agent on behalf of such holders) to cause any payment or payments in respect of any such Debt to become due prior to the scheduled due date thereof; or
(f) the Company or any of its Subsidiaries shall (i) apply for other than Indebtedness of the Company to any Subsidiary of HG or consent of a Subsidiary of the Company to the appointment of, Company or the taking another Subsidiary of possession by, a receiver, custodian, trustee or liquidator HG) with an aggregate principal amount in excess of itself or of all or a substantial part of its property, ten million dollars (ii) become insolvent or be generally unable to or shall generally fail or admit in writing its inability to pay its debts as such debts become due, (iii) make a general assignment for the benefit of its creditors, (iv) commence a voluntary case under the Federal Bankruptcy Code (as now or hereafter in effect$10,000,000), (v) file a petition seeking to take advantage of any bankruptcy, insolvency, moratorium, reorganization or other similar law affecting the enforcement of creditors' rights generally, (vi) acquiesce in writing to, or fail to controvert in a timely or appropriate manner, any petition filed against it in an involuntary case under such Bankruptcy Code, (vii) take any action under the laws of any jurisdiction (foreign or domestic) analogous to any of the foregoing, or (viii) take any action in furtherance of any of the foregoing; or
(g) a proceeding or case shall be commenced in respect of the Company or any of its Subsidiaries, without its application or consent, in any court of competent jurisdiction, seeking (i) the liquidation, reorganization, moratorium, dissolution, winding up, or composition or readjustment of its debts, (ii) the appointment of a trustee, receiver, custodian, liquidator or the like of it or of all or any substantial part of its assets, or (iii) similar relief in respect of it under any law providing for the relief of debtors, and such proceeding or case described in clause (i), (ii) or (iii) shall continue undismissed, or unstayed and in effect, for a period of 30 days, or e. an order for relief shall be entered in an involuntary case a proceeding under the Federal Bankruptcy Code (as now in respect of the Company; a decree, judgment or hereafter in effect) against order by a court of competent jurisdiction shall have been entered adjudging the Company or any of its Subsidiaries that individually or as a group constitute a Significant Subsidiary, as bankrupt or insolvent; or such decree, judgment or order shall have been entered approving as properly filed a petition seeking reorganization of the Company or such Significant Subsidiary under any bankruptcy or similar law, and such decree or order shall continue undismissed, or have continued undischarged and unstayed and in effect, for a period of 15 sixty (60) days; or action under the laws a decree or order of any jurisdiction (foreign or domestic) analogous to any of the foregoing shall be taken with respect to the Company or any of its Subsidiaries and shall continue undismissed, or unstayed and in effect, for a period of 15 days; or
(h) a final judgment or decree for the payment of money shall be rendered by a court of competent jurisdiction against over the Company appointment of a receiver, liquidator, trustee or any assignee in bankruptcy or insolvency of its Subsidiaries which, either alone or together with other outstanding judgments or decrees against the Company or any one or more of its Subsidiaries, shall aggregate more than $500,000, and the Company or such Subsidiary, as the case may be, shall not discharge the same or provide for its discharge in accordance with its terms within 45 days from the date of entry thereof or within such longer period during which execution of such judgment shall have been stayed; or
(i) any representation or warranty made by the Company in this Agreement or in any certificate or other instrument delivered hereunder or pursuant hereto or in connection with any provision hereof shall prove to have been false or incorrect or breached in any material respect on the date as of which made; or
(i) any Company Group Member shall fail to pay when due any amount which it shall have become liable to pay to the PBGC or to a Plan under Title IV of ERISA; (ii) any Company Group Member shall withdraw from a Multiple Employer Plan during a plan year in which it is a substantial employer (as such term is defined in Section 4001(a)(2) of ERISA), or shall be treated as having so withdrawn under Section 4062(e) of ERISA, or any Multiple Employer Plan shall be terminated; (iii) notice of intent to terminate a Plan or Plans shall be filed under Title IV of ERISA by any Company Group Member, any plan administrator or any combination of the foregoing; (iv) the PBGC shall institute proceedings under Title IV of ERISA to terminate or to cause a trustee to be appointed to administer any Plan or Plans; (v) any Company Group Member shall withdraw from any Multiemployer Plan ; (vi) any Plan (with the exception of any Multiemployer Plan) shall have an Unfunded Current Liability; or (vii) any prohibited transaction (as defined in Section 406 of ERISA or Section 4975 of the Code) or breach of fiduciary responsibility shall occur which may subject any Company Group Member to any liability under Section 406, 409, 502(i) or 502(l) of ERISA or Section 4975 of the Code, or under any agreement or other instrument pursuant to which such Company Group Member has agreed or is required to indemnify any Person against any such liability; and there shall result from any such event or events referred to in the foregoing subdivisions (i) through (vii) a Material Adverse Effect;
(i) upon the occurrence on any date of any Event of Default described in clause (f) or (g) of this Section with respect to the Company, the unpaid principal amount of all Notes, together with the interest accrued thereon in accordance with the terms thereof and hereof (which interest shall be deemed matured) and all other amounts payable by the Company hereunder, plus (to the extent permitted by applicable law) the Makewhole Amount (determined as of such date in respect of such principal amount of the Notes) shall automatically become immediately due and payable, without presentment, demand, protest, notice of intention to accelerate, notice of acceleration, or other requirements of any kind, all of which are hereby expressly waived by the Company, and (ii) upon the occurrence on any date or during the continuance of any other Event of Default, the holder or holders of not less than 51% of the unpaid principal amount of the Notes at the time outstanding may, by written notice to the Company, declare the unpaid principal amount of all Notes to be, and the same shall forthwith become, due and payable, together with the interest accrued thereon in accordance with the terms thereof and hereof (which interest shall be deemed matured) and all other amounts payable by the Company hereunder, plus (to the extent permitted by applicable law) the Makewhole Amount (determined as of the date of such declaration in respect of such principal amount of Notes), without presentment, demand, protest, notice or other requirements of any kind, all of which are hereby expressly waived by the Company; PROVIDED that, upon the occurrence on any date or during the continuance of an Event of Default described in clause (a) or (b) of this Section with respect to any Note, the holder of such Note may, by written notice to the Company, declare the unpaid principal amount of such Note to be, and the same shall forthwith become, due and payable, together with the interest accrued thereon in accordance with the terms thereof and hereof (which interest shall be deemed matured) and all other amounts payable by the Company hereunder to the holder of such Note, plus (to the extent permitted by applicable law) the Makewhole Amount (determined as of the date of such declaration in respect of such principal amount of such Note), without presentment, demand, protest, notice or other requirements of any kind, all of which are hereby expressly waived by the Company. If any holder of any Note shall exercise the option specified in the proviso to the preceding sentence, the Company will forthwith give written notice thereof to the holders of all other outstanding Notes and each such holder may (whether or not such notice is given or received), by written notice to the Company, declare the principal amount of all Notes held by it to be, and the same shall forthwith become, due and payable, together with interest accrued thereon in accordance with the terms thereof and hereof (which interest shall be deemed matured) and all other amounts payable by the Company hereunder to the holder of such Notes, plus (to the extent permitted by applicable law) the Makewhole Amount (determined as of the date of such declaration in respect of such principal amount of such Notes), without presentment, demand, protest, notice or other requirements of any kind, all of which are hereby expressly waived by the Company.the
Appears in 1 contract
Sources: Intercompany Senior Secured Note (Horseshoe Gaming LLC)
Events of Default Defined; Acceleration of Maturity. If any of the following conditions or events (each herein called individually an "EVENT OF DEFAULTEvent of Default" and collectively "Events of Default") shall occur have occurred and be continuing (whatever the reason for such Event of Default and whether it shall be voluntary or involuntary or come about or be effected by operation of law or pursuant to or in compliance with judicial or governmental or administrative order or action or otherwise):continuing:
(a) any two (2) Key Employees cease to be actively involved in the day-to-day management of SelectQuote in accordance with their current level of participation therein PROVIDED, HOWEVER, the happening of the events described in this subsection (a) after the closing of an Initial Offering shall not constitute an Event of Default; or
(b) any default or event of default shall occur under any document or agreement delivered in connection with the transactions provided for in this Agreement (after giving effect to any applicable notice, grace or cure period specified therein); or
(c) any representation or warranty made in this Agreement shall prove to be false or misleading in any material respect as of the time made; or
(d) any closing certificate or financial statement furnished in connection with this Agreement shall prove to be false or misleading in any material respect as of the time furnished; or
(e) immediately upon a breach of Section 4.12 by SelectQuote or any of its Subsidiaries; or
(f) default shall be made in the due and punctual payment observance or performance of all any material covenant, condition or any agreement on the part of the principal of SelectQuote or Makewhole Amount, if any, on any Note when and as the same shall become due and payable, whether on a date fixed for prepayment, at stated maturity, by acceleration its Subsidiaries to be observed or declaration, or otherwise; or
(b) default shall be made in the due and punctual payment of any interest on any Note when and as such interest shall become due and payable, and such default shall have continued for a period of three days; or
(c) default shall be made in the due performance or observance of any covenant, provision, agreement or condition contained in SECTION 4(G) or any of SECTIONS 6.2 THROUGH 6.13, both inclusive, and, except in the case of any such default under SECTION 4(G), subdivision (a) of SECTION 6.3, SECTION 6.8, SECTION 6.9 or SECTION 6.10, such default shall have continued for a period of ten days after the earlier of (x) the date on which a Responsible Officer of the Company first has knowledge of such default and (y) the giving of notice performed pursuant to the Company terms of such default by any holder or holders of a Note or Notes; or
(d) default shall be made in the due performance or observance of any other covenant, provision, agreement or condition contained in this Agreement (other than any covenant, condition or agreement, default referred to in the foregoing subdivisions (a), (b) and (c) observance or performance of which is elsewhere in this SECTION 8.15.1 specifically dealt with) or the Security Agreement and such default shall have continued continue unremedied for a period of 30 days thirty (30) days; or
(g) any default or event of default (including, but not limited to, the failure to make any payment of principal or interest thereunder when due) shall occur under the Debentures (after giving effect to any applicable notice, grace or cure period specified therein); or
(h) any event shall occur or any condition shall exist in respect of any debt or obligation of SelectQuote or its Subsidiaries (other than under the earlier Debentures), or under any agreement securing or relating to any of (x) such debts or obligations, the date on effect of which any Responsible Officer is to cause the acceleration of the Company first has knowledge maturity of such default debt or obligation, or any such debt shall not have been paid at the final maturity date thereof (as renewed or extended if it shall have been renewed or extended) and (y) the giving of notice to the Company of such default by any holder or holders of a Note or Notesapplicable grace period shall have expired; or
(i) default shall be made in the payment of any amount due, whether on an interest payment date or on a date fixed for prepayment, at stated maturity, by acceleration or declaration or otherwise, under or in respect of any Funded Debt or Current Debt of the Company (other than the Notes) or any Subsidiary, and such default shall continue beyond the period of grace, if any, allowed with respect thereto; or (ii) default shall be made in the due performance or observance of any covenant, provision, agreement or condition contained in any document evidencing or providing for the issuance or securing of any such Funded Debt or Current Debt, if the effect of any such default referred to in this clause (ii) is to cause or to permit the holder or holders of such Debt (or a trustee or agent on behalf of such holders) to cause any payment or payments in respect of any such Debt to become due prior to the scheduled due date thereof; or
(f) the Company either SelectQuote or any of its Subsidiaries shall (i) apply for or consent to the appointment of, or the taking of possession by, a receiver, custodian, trustee or liquidator of itself or of all or a substantial part of its property, (ii) become insolvent or be generally unable to or shall generally fail or admit in writing its inability to pay its debts as such debts become due, (iii) make a general assignment for the benefit of its creditors, (iv) commence a voluntary case under the Federal Bankruptcy Code (as now or hereafter in effect), (v) file a petition seeking to take advantage of any bankruptcy, insolvency, moratorium, reorganization or other similar law affecting providing for the enforcement relief of creditors' rights generallydebtors, (vi) acquiesce in writing to, or fail to controvert in a timely or appropriate manner, or acquiesce in writing to, any petition filed against it in an involuntary case under such Bankruptcy Code, (vii) take any action under the laws of any its jurisdiction (foreign or domestic) of incorporation analogous to any of the foregoing, or (viii) take any corporate action in furtherance for the purpose of effecting any of the foregoing; or
(gj) with respect to SelectQuote or any of its Subsidiaries, a proceeding or case shall be commenced in respect of the Company or any of its Subsidiariescommenced, without its the application or consent, consent of SelectQuote or such Subsidiaries in any court of competent jurisdiction, seeking (i) the liquidation, reorganization, moratorium, dissolution, winding up, or composition or readjustment of its debts, (ii) the appointment of a trustee, receiver, custodian, liquidator or the like of it or of for all or any substantial part of its assets, or (iii) similar relief in respect of it it, under any law providing for the relief of debtors, and such proceeding or case described in clause (i), (ii) or (iii) shall continue undismissed, or unstayed and in effect, for a period of 30 sixty (60) days, ; or an order for relief shall be entered in an involuntary case under the Federal such Bankruptcy Code (as now or hereafter in effect) Code, against the Company SelectQuote or any of its Subsidiaries and shall continue undismissed, or unstayed and in effect, for a period of 15 daysSubsidiaries; or action under the laws of the jurisdiction of incorporation of SelectQuote or any jurisdiction (foreign or domestic) of its Subsidiaries analogous to any of the foregoing shall be taken with respect to the Company SelectQuote or any of its Subsidiaries and shall continue undismissed, or unstayed and in effect, effect for a any period of 15 sixty (60) consecutive days; or
(hk) a final judgment or decree for the payment of money shall be rendered by a court of competent jurisdiction against the Company SelectQuote or any of its Subsidiaries which, either alone or together with other outstanding judgments or decrees against the Company or any one or more of its Subsidiaries, shall aggregate more than $500,000, and the Company SelectQuote or such Subsidiary, as the case may be, Subsidiary shall not discharge the same or provide for its discharge in accordance with its terms terms, or procure a stay of execution thereof within 45 thirty (30) days from the date of entry thereof and within said period of thirty (30) days, or within such longer period during which execution of such judgment shall have been stayed; or
, appeal therefrom and cause the execution thereof to be stayed during such appeal, and such judgment together with all other such judgments shall exceed in the aggregate an amount equal to or greater than five percent (i5%) any representation or warranty made by the Company in this Agreement of SelectQuote's consolidated revenues for its previous fiscal year-end, or in any certificate case where such judgment together with all other such judgments may materially adversely affect the business, prospects, financial condition or other instrument delivered hereunder or pursuant hereto or in connection with any provision hereof shall prove to have been false or incorrect or breached in any material respect on the date as results of which made; oroperations of SelectQuote;
(il) if, at any Company Group Member time, SelectQuote or any of its Subsidiaries shall fail to pay when due own sufficient title and ownership of all intellectual property assets whereby such failure would be reasonably likely to have a material adverse effect on the business or operations of SelectQuote or such Subsidiary.
(m) If the Bylaws or Articles of Incorporation of SelectQuote be altered or amended in any amount manner which it results in restrictions on transferability of the securities owned by the Purchasers which are more restrictive than those existing as of the date hereof.
(n) If the funding of the equity investment by High Ridge Capital Partners II, L.P. in SelectQuote (as described in that certain Consent to Merger dated December 16, 1999 by and between the Purchasers, SelectTech, SQIS and SelectQuote) shall not have become liable to pay occurred within five (5) business days subsequent to the PBGC or to a Plan under Title IV merger of ERISA; SelectTech with and into SQIS.
(iio) any Company Group Member shall withdraw from a Multiple Employer Plan during a plan year in which it is a substantial employer (as such term is defined in Section 4001(a)(2) of ERISA), or shall be treated as having so withdrawn under Section 4062(e) of ERISA, or any Multiple Employer Plan shall be terminated; (iii) notice of intent to terminate a Plan or Plans shall be filed under Title IV of ERISA by any Company Group Member, any plan administrator or any combination If all of the foregoing; Debentures held by Protective have not been prepaid in full, including any and all interest and other charges accrued through the date of prepayment within five (iv5) business days subsequent to the PBGC shall institute proceedings under Title IV merger of ERISA to terminate or to cause a trustee to be appointed to administer any Plan or Plans; (v) any Company Group Member shall withdraw from any Multiemployer Plan ; (vi) any Plan (SelectTech with the exception of any Multiemployer Plan) shall have an Unfunded Current Liability; or (vii) any prohibited transaction (as defined in Section 406 of ERISA or Section 4975 of the Code) or breach of fiduciary responsibility shall occur which may subject any Company Group Member to any liability under Section 406, 409, 502(i) or 502(l) of ERISA or Section 4975 of the Code, or under any agreement or other instrument pursuant to which such Company Group Member has agreed or is required to indemnify any Person against any such liability; and there shall result from any such event or events referred to in the foregoing subdivisions (i) through (vii) a Material Adverse Effect;
(i) upon into SQIS. Upon the occurrence on any date of any Event of Default described in clause subsections (fa), (b), (h) or (gi) of this Section with respect to the Companyabove, the unpaid principal amount of all Notes, the Debentures together with any accrued and unpaid interest thereon, shall, at the interest accrued thereon in accordance with the terms thereof and hereof (which interest shall be deemed matured) and all other amounts payable by the Company hereunder, plus (to the extent permitted by applicable law) the Makewhole Amount (determined as of such date in respect of such principal amount election of the Notes) shall automatically Purchaser, become immediately due and payable, without presentment, demand, protest, notice of intention to accelerate, notice of acceleration, protest or other requirements of any kind, all of which are hereby expressly waived by the Company, and (ii) SelectQuote; or upon the occurrence on any date or during the continuance of any other Event of Default, the holder or holders of not less than 51% of the unpaid principal amount of the Notes at the time outstanding Purchasers may, by written notice to the CompanySelectQuote, declare the unpaid principal amount of all Notes the Debentures to be, and the same shall forthwith become, due and payable, together with the any interest accrued thereon in accordance with on the terms thereof and hereof (which interest shall be deemed matured) and all other amounts payable by the Company hereunder, plus (to the extent permitted by applicable law) the Makewhole Amount (determined as of the date of such declaration in respect of such principal amount of Notes), without presentment, demand, protest, notice or other requirements of any kind, all of which are hereby expressly waived by the Company; PROVIDED that, upon the occurrence on any date or during the continuance of an Event of Default described in clause (a) or (b) of this Section with respect to any Note, the holder of such Note may, by written notice to the Company, declare the unpaid principal amount of such Note to be, and the same shall forthwith become, due and payable, together with the interest accrued thereon in accordance with the terms thereof and hereof (which interest shall be deemed matured) and all other amounts payable by the Company hereunder to the holder of such Note, plus (to the extent permitted by applicable law) the Makewhole Amount (determined as of the date of such declaration in respect of such principal amount of such Note), without presentment, demand, protest, notice or other requirements of any kind, all of which are hereby expressly waived by the Company. If any holder of any Note shall exercise the option specified in the proviso to the preceding sentence, the Company will forthwith give written notice thereof to the holders of all other outstanding Notes and each such holder may (whether or not such notice is given or received), by written notice to the Company, declare the principal amount of all Notes held by it to be, and the same shall forthwith become, due and payable, together with interest accrued thereon in accordance with the terms thereof and hereof (which interest shall be deemed matured) and all other amounts payable by the Company hereunder to the holder of such Notes, plus (to the extent permitted by applicable law) the Makewhole Amount (determined as of the date of such declaration in respect of such principal amount of such Notes), without presentment, demand, protest, notice or other requirements of any kind, all of which are hereby expressly waived by the CompanyDebentures.
Appears in 1 contract
Sources: Debenture Purchase Agreement (Zebu)
Events of Default Defined; Acceleration of Maturity. If any one or more of the following conditions or events (each herein called an "EVENT OF DEFAULT"βEvent of Defaultβ) shall occur and be continuing (whatever the reason for such Event of Default and whether it shall be voluntary or involuntary or come about or be effected by operation of law or pursuant to or in compliance with judicial or governmental or administrative order or action or otherwise):have occurred:
(a) default shall be made in the due and punctual payment of all or any part of the principal or interest of or Makewhole Amount, if any, any of the Debenture is not paid on any Note when and as the same date such principal and/or interest shall become due and payable, whether on a date fixed for prepayment, at stated maturitythe maturity thereof, by acceleration or declarationacceleration, by conversion, by notice of prepayment, or otherwise;
(b) all or any part of any other amount owing by any Credit Party or any Subsidiary to the Purchaser pursuant to the terms of this Agreement, the Debenture or any other Operative Document (including, without limitation, amounts owed or reimbursable under Section 7.14) is not paid when such other amount becomes due and payable and such non- payment is not remedied within ten (10) Business Days after written demand therefor was made (if required by the Operative Documents or, otherwise, after written notice thereof to such Credit Party by the Purchaser);
(c) any Credit Party fails or neglects to perform, keep or observe any of its covenants, conditions or agreements contained in:
(i) Sections 7.1, 7.2(a), 7.2(b) or 7.2(d), 7.3, 7.4(a) or (b), 7.6, 7.10, 7.12 or ARTICLE VIII; or
(bii) default any other covenant, condition or agreement contained in this Agreement or other Operative Document (and, if any grace or cure period is expressly applicable thereto as set forth therein, the same shall continue past such grace period) and such failure shall continue for thirty (30) days after the earlier of (i) delivery by the Purchaser to any Credit Party of notice of such non-compliance or (ii) a Responsible Officer of any Credit Party becoming aware of such failure;
(d) any warranty or representation now or hereafter made by any Credit Party herein, in any other Operative Document, or other certificate, report or other delivery required to be made by Company to the Purchaser hereunder, is untrue or incorrect in the due and punctual payment of any interest on any Note when and as such interest shall become due and payablematerial respect (or, and such default shall have continued for a period of three days; or
(c) default shall be made in the due performance or observance of any covenant, provision, agreement or condition contained in SECTION 4(G) or any of SECTIONS 6.2 THROUGH 6.13, both inclusive, and, except in the case of any such default under SECTION 4(Grepresentation or warranty that is qualified as to materiality or Material Adverse Effect, untrue or incorrect in any respect) when made or deemed made;
(e) a judgment or order in excess of $100,000 shall be rendered against any Credit Party (except for judgments which are not a Lien on personal property and which are being contested by such Person in good faith) and such judgment or order shall remain unsatisfied or undischarged and in effect for forty five (45) consecutive days without a stay of 29453927 enforcement or execution; provided, that, if such an Event of Default occurs or is reasonably imminent, the Purchaser may satisfy and discharge such judgment on behalf of a Credit Party;
(f) a notice of Lien, levy or assessment is filed or recorded with respect to all or a substantial part of the assets of any Credit Party by the United States, or any department, agency or instrumentality thereof, or by any state, county, municipality or other governmental agency, or any Taxes or debts owing at any time or times hereafter to any one or more of them become a Lien upon all or a substantial part of the assets of the Company, or any Equity Interests pledged to the Purchaser, and (i) such Lien, levy or assessment is not discharged or released or the enforcement thereof is not stayed within forty five (45) days of the notice or attachment thereof, or (ii) if the enforcement thereof is stayed, such stay shall cease to be in effect, provided that this Section 9.1(f) shall not apply to any Liens, levies or assessments which relate to current Taxes not yet due and payable;
(g) there shall occur any loss, theft, substantial damage or destruction of any item or items of assets of the Company which is not fully insured as required by this Agreement, the other Operative Documents or any guarantee (a βLossβ), subdivision to the extent the amount of such Loss not fully covered by insurance (aincluding any deductible in connection therewith), together with the amount of all other Losses not fully covered by insurance (including any deductibles in connection therewith) occurring in the same Fiscal Year, exceeds $1,000,000.00;
(h) all or any part of SECTION 6.3assets of the Company is attached, SECTION 6.8seized, SECTION 6.9 subjected to a writ or SECTION 6.10distress warrant, or is levied upon, or comes within the possession of any receiver, trustee, custodian or assignee for the benefit of creditors and on or before forty five (45) days thereafter such default shall have continued assets are not returned to and/or such writ, distress warrant or levy is not dismissed, stayed or lifted and if the amount of such assets or collateral, together with any other assets and collateral that is so attached, seized, subjected to writ or distress warrant or levied upon, exceeds $1,000,000 at any time;
(i) a proceeding under any bankruptcy, reorganization, arrangement of debt, insolvency, readjustment of debt or receivership law or statute is filed (i) against any Credit Party and an adjudication or appointment is made or order for relief is entered, or such proceeding remains undismissed for a period in excess of forty five (45) days, or (ii) by any Credit Party; any Credit Party makes an assignment for the benefit of creditors; any Credit Party voluntarily or involuntarily dissolves or is dissolved, or terminates or is terminated; any Credit Party takes any corporate, limited liability company or partnership, as applicable, action to authorize any of the foregoing; or any Credit Party becomes insolvent or fails generally to pay its debts as they become due;
(j) the Company or any Subsidiary involuntarily dissolves or is involuntarily dissolved, or involuntarily terminates its existence or involuntarily has its existence terminated;
(k) any Credit Party or any Cannabis License Holder is enjoined, restrained, or in any way prevented by the order of any Governmental Authority from conducting all or any material part of its business affairs, and such order is not dismissed, stayed or discharged within ten (10) Business Days; 29453927
(l) as to any Indebtedness of any Credit Party or any other Subsidiary, (i) any Credit Party or any other Subsidiary shall fail to make any payment due (whether by scheduled maturity, required prepayment, acceleration, demand or otherwise) on any such Indebtedness and such failure shall continue after the applicable grace period, if any, specified in the agreement or instrument relating to such Indebtedness; (ii) any other default or event of default under any agreement or instrument relating to any such Indebtedness, or any other event, shall occur and shall continue after the applicable grace period, if any, specified in such agreement or instrument if the effect of such default, event of default or event is to accelerate, or to permit the acceleration of, the maturity of such Indebtedness; or (iii) any such Indebtedness shall be declared to be due and payable or required to be prepaid (other than by a regularly scheduled required payment) prior to the stated maturity thereof;
(m) default (after giving effect to any notice periods applicable thereto) in the payment when due, or in the performance or observance of, any material obligation of, or condition agreed to by, the Company with respect to any material purchase or lease of goods or services in excess of $5,000,000.00 or which could have a Material Adverse Effect (except only to the extent that Company is contesting the existence of any such default in good faith and by appropriate proceedings), and such failure shall continue for thirty (30) days after the earlier of (xi) delivery by the date on which Purchaser to any Credit Party of notice of such default or (ii) a Responsible Officer of any Credit Party becoming aware of such failure;
(n) any Guarantor shall, or shall attempt to, terminate or revoke any of its obligations under the applicable guarantee agreement in favor of the Purchaser in connection with the Obligations or breach any of the terms of such guarantee agreement, or any Person executing a fidelity guaranty in favor of the Purchaser in connection with the Obligations shall, or shall attempt to, terminate or revoke such guaranty;
(o) a Change of Control shall occur;
(p) Any material adverse change in the Business of the Company first has knowledge and its Subsidiaries, from time to time, taken as a whole or the occurrence of such default and any event that is a Material Adverse Effect.
(yq) any Person shall, or shall attempt to, terminate, discontinue or revoke any of its obligations under any Operative Document;
(r) the giving occurrence of notice an ERISA Event results in, or would reasonably be expected to result in, a Material Adverse Effect or a Lien in excess of $1,000,000 on the Company assets of such default by any holder or holders of a Note or NotesCredit Partyβs Property; or
(ds) default shall be made in the due performance or observance of any other covenant, provision, agreement or condition contained in this Agreement (other than any default referred Operative Document to in the foregoing subdivisions (a), (b) and (c) of this SECTION 8.1) and such default shall have continued for a period of 30 days after the earlier of (x) the date on which any Responsible Officer of the Company first has knowledge of such default and (y) the giving of notice to the Company of such default by any holder or holders of a Note or Notes; or
(i) default shall be made in the payment of any amount due, whether on an interest payment date or on a date fixed for prepayment, at stated maturity, by acceleration or declaration or otherwise, under or in respect of any Funded Debt or Current Debt of the Company (other than the Notes) or any Subsidiary, and such default shall continue beyond the period of grace, if any, allowed with respect thereto; or (ii) default shall be made in the due performance or observance of any covenant, provision, agreement or condition contained in any document evidencing or providing for the issuance or securing of any such Funded Debt or Current Debt, if the effect of any such default referred to in this clause (ii) Credit Party is to cause or to permit the holder or holders of such Debt (or a trustee or agent on behalf of such holders) to cause any payment or payments in respect of any such Debt to become due prior to the scheduled due date thereof; or
(f) the Company or any of its Subsidiaries shall (i) apply for or consent to the appointment of, or the taking of possession by, a receiver, custodian, trustee or liquidator of itself or of all or a substantial part of its property, (ii) become insolvent or be generally unable to or shall generally fail or admit in writing its inability to pay its debts as such debts become due, (iii) make a general assignment for the benefit of its creditors, (iv) commence a voluntary case under the Federal Bankruptcy Code (as now or hereafter a party shall for any reason cease to be in full force and effect), (v) file a petition seeking to take advantage of any bankruptcy, insolvency, moratorium, reorganization or other similar law affecting the enforcement of creditors' rights generally, (vi) acquiesce in writing to, or fail to controvert in a timely or appropriate manner, any petition filed against it in an involuntary case under such Bankruptcy Code, (vii) take any action under the laws of any jurisdiction (foreign or domestic) analogous to Credit Party shall assert any of the foregoing. then, or when any Event of Default (viii) take any action in furtherance of any of the foregoing; or
(g) a proceeding or case shall be commenced in respect of the Company or any of its Subsidiaries, without its application or consent, in any court of competent jurisdiction, seeking (i) the liquidation, reorganization, moratorium, dissolution, winding up, or composition or readjustment of its debts, (ii) the appointment of a trustee, receiver, custodian, liquidator or the like of it or of all or any substantial part of its assets, or (iii) similar relief in respect of it under any law providing for the relief of debtors, and such proceeding or case described in clause (i), (ii) or (iii) shall continue undismissed, or unstayed and in effect, for a period of 30 days, or other than an order for relief shall be entered in an involuntary case under the Federal Bankruptcy Code (as now or hereafter in effect) against the Company or any of its Subsidiaries and shall continue undismissed, or unstayed and in effect, for a period of 15 days; or action under the laws of any jurisdiction (foreign or domestic) analogous to any of the foregoing shall be taken with respect to the Company or any of its Subsidiaries and shall continue undismissed, or unstayed and in effect, for a period of 15 days; or
(h) a final judgment or decree for the payment of money shall be rendered by a court of competent jurisdiction against the Company or any of its Subsidiaries which, either alone or together with other outstanding judgments or decrees against the Company or any one or more of its Subsidiaries, shall aggregate more than $500,000, and the Company or such Subsidiary, as the case may be, shall not discharge the same or provide for its discharge in accordance with its terms within 45 days from the date of entry thereof or within such longer period during which execution of such judgment shall have been stayed; or
(i) any representation or warranty made by the Company in this Agreement or in any certificate or other instrument delivered hereunder or pursuant hereto or in connection with any provision hereof shall prove to have been false or incorrect or breached in any material respect on the date as of which made; or
(i) any Company Group Member shall fail to pay when due any amount which it shall have become liable to pay to the PBGC or to a Plan under Title IV of ERISA; (ii) any Company Group Member shall withdraw from a Multiple Employer Plan during a plan year in which it is a substantial employer (as such term is defined in Section 4001(a)(2) of ERISA), or shall be treated as having so withdrawn under Section 4062(e) of ERISA, or any Multiple Employer Plan shall be terminated; (iii) notice of intent to terminate a Plan or Plans shall be filed under Title IV of ERISA by any Company Group Member, any plan administrator or any combination of the foregoing; (iv) the PBGC shall institute proceedings under Title IV of ERISA to terminate or to cause a trustee to be appointed to administer any Plan or Plans; (v) any Company Group Member shall withdraw from any Multiemployer Plan ; (vi) any Plan (with the exception of any Multiemployer Plan) shall have an Unfunded Current Liability; or (vii) any prohibited transaction (as defined in Section 406 of ERISA or Section 4975 of the Code) or breach of fiduciary responsibility shall occur which may subject any Company Group Member to any liability under Section 406, 409, 502(i) or 502(l) of ERISA or Section 4975 of the Code, or under any agreement or other instrument pursuant to which such Company Group Member has agreed or is required to indemnify any Person against any such liability; and there shall result from any such event or events referred to in the foregoing subdivisions (i) through (vii) a Material Adverse Effect;
(i) upon the occurrence on any date of any Event of Default described in clause (fh), (i) or (gabove) of this Section with respect to the Companyhas occurred and shall be continuing after Purchaser delivers written notice thereof and has not been waived, the unpaid principal amount of all Notes, together with the Debenture and the interest accrued thereon in accordance with the terms thereof and hereof (which interest shall be deemed matured) and all other 29453927 amounts payable by due under any Operative Document (collectively, the Company hereunderβOther Paymentsβ), plus shall, upon written notice from the Purchaser, forthwith become and be due and payable, if not already due and payable, without presentment, further demand or other notice of any kind. If any Event of Default described in clauses (to h), (i) or (j) above occurs, the extent permitted by applicable law) the Makewhole Amount (determined as principal of such date in respect of such principal amount all of the Notes) Debenture, the interest accrued thereon and the Other Payments shall automatically immediately become immediately due and payable, without presentment, demand, protest, or notice of intention to accelerate, notice of acceleration, or other requirements of any kind. If any principal, all installment of which are hereby expressly waived interest or Other Payment is not paid in full on the due date thereof (whether by the Companymaturity, and (iiprepayment or acceleration) upon the occurrence on or any date or during the continuance of any other Event of DefaultDefault has occurred and is continuing after delivery of written notice, then the holder or holders of not less than 51% outstanding principal balance of the unpaid principal amount Debenture, any overdue installment of the Notes at the time outstanding may, by written notice to the Company, declare the unpaid principal amount of all Notes to be, and the same shall forthwith become, due and payable, together with the interest accrued thereon in accordance with the terms thereof and hereof (which interest shall be deemed matured) and all other amounts payable by the Company hereunder, plus (to the extent permitted by applicable law) ), including interest accruing after the Makewhole Amount (determined as commencement of any proceeding under any bankruptcy or insolvency law and all Other Payments will bear additional interest from the due date of such declaration in respect of such principal amount of Notes)payment, without presentment, demand, protest, notice or other requirements of any kind, all of which are hereby expressly waived by the Company; PROVIDED that, upon the occurrence on any date or during the continuance of from and after an Event of Default described in clause Default, at a rate equal to the lesser of (ai) the highest rate allowed by applicable law or (bii) of this Section with respect to any Note, the holder of such Note may, by written notice an amount equal to the Companythen applicable interest rate on the Debenture, declare plus two percent (2%) per annum (such rate being referred to as the unpaid principal amount βDefault Rateβ), compounded quarterly, until the payment is received or the Event of such Note to beDefault is cured, and the same shall forthwith becomeif permitted, due and payable, together with the interest accrued thereon or waived in writing in accordance with the terms hereof. If payment of the Debenture is accelerated, then the outstanding principal balance thereof shall bear interest at the Default Rate from and after the Event of Default. The Credit Parties shall pay to the Purchaser all invoiced out-of-pocket costs, fees and expenses incurred by the Purchaser in any effort to collect the Debenture, and the other payments, including reasonable attorneysβ fees and expenses for services rendered in connection therewith, and pay interest on such costs and expenses to the extent not paid when demanded at the Default Rate. Without limiting the generality of the foregoing, and in addition thereto, if an Event of Default under clause (a) above has occurred and is continuing after Purchaser delivers written notice thereof and hereof has not been waived, then the Purchaser may declare all or any portion of the outstanding principal amount of the Debenture (which together with all accrued interest shall be deemed matured) thereon and all other amounts due and payable by the Company hereunder with respect thereto) to the holder be immediately due and payable and may demand immediate payment of such Note, plus (to the extent permitted by applicable law) the Makewhole Amount (determined as all or any portion of the date of such declaration in respect of such outstanding principal amount of the Debenture (together with all such Note), without presentment, demand, protest, notice or other requirements of any kind, all of which are hereby expressly waived by the Company. If any holder of any Note shall exercise the option specified in the proviso to the preceding sentence, the Company will forthwith give written notice thereof to the holders of all other outstanding Notes and each such holder may (whether or not such notice is given or received), by written notice to the Company, declare the principal amount of all Notes held by it to be, and the same shall forthwith become, amounts then due and payable, together with interest accrued thereon in accordance with the terms thereof and hereof (which interest shall be deemed matured) and all other amounts payable by the Company hereunder to the holder of such Notes, plus (to the extent permitted by applicable law) the Makewhole Amount (determined as of the date of such declaration in respect of such principal amount of such Notesit), without presentment, demand, protest, notice or other requirements of any kind, all of which are hereby expressly waived by the Company.
Appears in 1 contract
Sources: Debenture Purchase Agreement (Red White & Bloom Brands Inc.)
Events of Default Defined; Acceleration of Maturity. If any In case one or more of the following conditions or events (each herein called an "EVENT OF DEFAULT") Events of Default shall occur have occurred and be continuing (whatever the reason for such Event of Default and whether it shall be voluntary or involuntary or come about or be effected by operation of law or pursuant continuing, that is to or in compliance with judicial or governmental or administrative order or action or otherwise):say:
(a) default shall be made in the due and punctual payment of all or any part installment of interest upon any of the principal of or Makewhole Amount, if any, on any Note Debentures as and when and as the same shall become due and payable, whether on or not such payment is prohibited by the provisions of Article Thirteen, and continuance of such default for a date fixed for prepaymentperiod of 30 days; or
(b) default in the due and punctual payment of the principal of any of the Debentures as and when the same shall become due and payable, whether or not such payment is prohibited by the provisions of Article Thirteen, either at stated maturity, upon redemption, by acceleration or declarationdeclaration as authorized by this Indenture, or otherwise; or
(bc) default shall be made failure on the part of the Company duly to observe or perform any other of the covenants or agreements on the part of the Company in the due and punctual payment of any interest on any Note when and as such interest shall become due and payable, and such default shall have continued Debentures or in this Indenture contained for a period of three days; or
(c) default shall be made in the due performance or observance of any covenant, provision, agreement or condition contained in SECTION 4(G) or any of SECTIONS 6.2 THROUGH 6.13, both inclusive, and, except in the case of any such default under SECTION 4(G), subdivision (a) of SECTION 6.3, SECTION 6.8, SECTION 6.9 or SECTION 6.10, such default shall have continued for a period of ten 60 days after the earlier of (x) the date on which a Responsible Officer of the Company first has knowledge written notice of such default and (y) failure, requiring the giving of notice same to be remedied, shall have been given to the Company of such default by any holder the Trustee, by registered mail, or to the Company and the Trustee by the holders of a Note or Notesat least twenty-five per cent. in principal amount of the Debentures at the time outstanding; or
(d) default shall be made a decree or order by a court having jurisdiction in the due performance premises shall have been entered adjudging the Company as bankrupt or observance insolvent, or approving a petition seeking reorganization of the Company under the Bankruptcy Code or any other covenantsimilar applicable Federal or State law, provision, agreement or condition contained in this Agreement (other than any default referred to in the foregoing subdivisions (a), (b) and (c) of this SECTION 8.1) and such default decree or order shall have continued undischarged or unstayed for a period of 30 days after 60 days; or a decree or order of a court having jurisdiction in the earlier premises for the appointment of (x) the date on which any Responsible Officer a receiver or liquidator or trustee or assignee in bankruptcy or insolvency of the Company first has knowledge or of such default and (y) all or substantially all of its property, or for the giving winding up or liquidation of notice to the Company of such default by any holder or holders of a Note or Notes; or
(i) default its affairs shall be made in the payment of any amount due, whether on an interest payment date or on a date fixed for prepayment, at stated maturity, by acceleration or declaration or otherwise, under or in respect of any Funded Debt or Current Debt of the Company (other than the Notes) or any Subsidiaryhave been entered, and such default decree or order shall continue beyond the have remained in force undischarged or unstayed for a period of grace, if any, allowed with respect thereto60 days; or 42 52 (iie) default the Company shall institute proceedings to be made in adjudicated a voluntary bankrupt, or shall consent to the due performance filing of a bankruptcy proceeding against it, or observance of shall file a petition or answer or consent seeking reorganization under the Bankruptcy Code or any covenantother similar applicable Federal or State law, provision, agreement or condition contained in any document evidencing or providing for shall consent to the issuance or securing filing of any such Funded Debt petition, or Current Debt, if the effect of any such default referred to in this clause (ii) is to cause or to permit the holder or holders of such Debt (or a trustee or agent on behalf of such holders) to cause any payment or payments in respect of any such Debt to become due prior to the scheduled due date thereof; or
(f) the Company or any of its Subsidiaries shall (i) apply for or consent to the appointment of, of a receiver or the taking of possession by, a receiver, custodian, liquidator or trustee or liquidator assignee in bankruptcy or insolvency of itself it or of all or a substantial part substantially all of its property, (ii) become insolvent or be generally unable to or shall generally fail make an assignment for the benefit of creditors, or shall admit in writing its inability to pay its debts generally as they become due; or failure to purchase Debentures on the Repurchase Date following a Change in Control then and in each and every such case, so long as such debts Event of Default shall not have been remedied, unless the principal of all the Debentures shall have already become duedue and payable, (iii) make a general assignment for either the benefit Trustee or the holders of its creditorsnot less than twenty-five per cent in aggregate principal amount of the Debentures then outstanding hereunder, (iv) commence a voluntary case under the Federal Bankruptcy Code (as now or hereafter in effect), (v) file a petition seeking to take advantage of any bankruptcy, insolvency, moratorium, reorganization or other similar law affecting the enforcement of creditors' rights generally, (vi) acquiesce by notice in writing to, or fail to controvert in a timely or appropriate manner, any petition filed against it in an involuntary case under such Bankruptcy Code, (vii) take any action under the laws of any jurisdiction (foreign or domestic) analogous to any of the foregoing, or (viii) take any action in furtherance of any of the foregoing; or
(g) a proceeding or case shall be commenced in respect of the Company or any of its Subsidiaries, without its application or consent, in any court of competent jurisdiction, seeking (i) the liquidation, reorganization, moratorium, dissolution, winding up, or composition or readjustment of its debts, (ii) the appointment of a trustee, receiver, custodian, liquidator or the like of it or of all or any substantial part of its assets, or (iii) similar relief in respect of it under any law providing for the relief of debtors, and such proceeding or case described in clause (i), (ii) or (iii) shall continue undismissed, or unstayed and in effect, for a period of 30 days, or an order for relief shall be entered in an involuntary case under the Federal Bankruptcy Code (as now or hereafter in effect) against the Company or any of its Subsidiaries and shall continue undismissed, or unstayed and in effect, for a period of 15 days; or action under the laws of any jurisdiction (foreign or domestic) analogous to any of the foregoing shall be taken with respect to the Company or (and to the Trustee if given by the Debentureholders), may declare the principal of all the Debentures then outstanding to be due and payable immediately, and upon any of its Subsidiaries such declaration the same shall become and shall continue undismissedbe immediately due and payable, anything in this Indenture or unstayed in the said Debentures contained to the contrary notwithstanding. This provision, however, is subject to the condition that if, at any time after the principal of the Debentures shall have been so declared due and in effectpayable, for a period of 15 days; or
(h) a final but before the Debentures shall have become due by their terms and before any judgment or decree for the payment of money the moneys due shall be rendered by a court of competent jurisdiction against have been obtained or entered as hereinafter provided, the Company shall pay or any shall deposit with the Trustee a sum sufficient to pay all matured installments of its Subsidiaries which, either alone or together with other interest upon all the Debentures then outstanding judgments or decrees against the Company or any one or more of its Subsidiaries, shall aggregate more than $500,000, and the Company or principal of any and all Debentures then outstanding which shall have become due otherwise than by acceleration (with interest upon such Subsidiaryprincipal and, as to the case may beextent the payment of such interest is enforceable under applicable law, shall not discharge upon overdue installments of interest, at the same or provide for its discharge rate per annum expressed in accordance with its terms within 45 days from the Debentures to the date of entry thereof such payment or within such longer period during deposit) and the amount payable to the Trustee under Section 8.06, and any and all defaults under the Indenture, other than the nonpayment of principal on Debentures then outstanding which execution of such judgment shall not have become due by their terms, shall have been stayed; or
(i) any representation remedied or warranty made by the Company in this Agreement or in any certificate or other instrument delivered hereunder or pursuant hereto or in connection with any provision hereof shall prove to have been false or incorrect or breached in any material respect on the date as of which made; or
(i) any Company Group Member shall fail to pay when due any amount which it shall have become liable to pay made therefor to the PBGC or to a Plan under Title IV of ERISA; (ii) any Company Group Member shall withdraw from a Multiple Employer Plan during a plan year in which it is a substantial employer (as such term is defined in Section 4001(a)(2) of ERISA), or shall be treated as having so withdrawn under Section 4062(e) of ERISA, or any Multiple Employer Plan shall be terminated; (iii) notice of intent to terminate a Plan or Plans shall be filed under Title IV of ERISA by any Company Group Member, any plan administrator or any combination satisfaction of the foregoing; (iv) Trustee-then and in every such case the PBGC shall institute proceedings under Title IV holders of ERISA to terminate or to cause a trustee to be appointed to administer any Plan or Plans; (v) any Company Group Member shall withdraw from any Multiemployer Plan ; (vi) any Plan (with the exception of any Multiemployer Plan) shall have an Unfunded Current Liability; or (vii) any prohibited transaction (as defined majority in Section 406 of ERISA or Section 4975 of the Code) or breach of fiduciary responsibility shall occur which may subject any Company Group Member to any liability under Section 406, 409, 502(i) or 502(l) of ERISA or Section 4975 of the Code, or under any agreement or other instrument pursuant to which such Company Group Member has agreed or is required to indemnify any Person against any such liability; and there shall result from any such event or events referred to in the foregoing subdivisions (i) through (vii) a Material Adverse Effect;
(i) upon the occurrence on any date of any Event of Default described in clause (f) or (g) of this Section with respect to the Company, the unpaid principal amount of all Notes, together with the interest accrued thereon in accordance with the terms thereof and hereof (which interest shall be deemed matured) and all other amounts payable by the Company hereunder, plus (to the extent permitted by applicable law) the Makewhole Amount (determined as of such date in respect of such aggregate principal amount of the Notes) shall automatically become immediately due and payable, without presentment, demand, protest, notice of intention to accelerate, notice of acceleration, or other requirements of any kind, all of which are hereby expressly waived by the Company, and (ii) upon the occurrence on any date or during the continuance of any other Event of Default, the holder or holders of not less than 51% of the unpaid principal amount of the Notes at the time outstanding mayDebentures then outstanding, by written notice to the Company, declare the unpaid principal amount of all Notes to be, Company and the same shall forthwith become, due and payable, together with the interest accrued thereon in accordance with the terms thereof and hereof (which interest shall be deemed matured) and all other amounts payable by the Company hereunder, plus (to the extent permitted by applicable law) the Makewhole Amount (determined as of the date of Trustee, may waive all defaults and rescind and annul such declaration in respect of and its consequences; but no such principal amount of Notes)waiver or rescission and annulment shall extend to or shall affect any subsequent default, without presentment, demand, protest, notice or other requirements of shall impair any kind, all of which are hereby expressly waived by the Company; PROVIDED that, upon the occurrence on any date or during the continuance of an Event of Default described in clause (a) or (b) of this Section with respect to any Note, the holder of such Note may, by written notice to the Company, declare the unpaid principal amount of such Note to be, and the same shall forthwith become, due and payable, together with the interest accrued thereon in accordance with the terms thereof and hereof (which interest shall be deemed matured) and all other amounts payable by the Company hereunder to the holder of such Note, plus (to the extent permitted by applicable law) the Makewhole Amount (determined as of the date of such declaration in respect of such principal amount of such Note), without presentment, demand, protest, notice or other requirements of any kind, all of which are hereby expressly waived by the Company. If any holder of any Note shall exercise the option specified in the proviso to the preceding sentence, the Company will forthwith give written notice thereof to the holders of all other outstanding Notes and each such holder may (whether or not such notice is given or received), by written notice to the Company, declare the principal amount of all Notes held by it to be, and the same shall forthwith become, due and payable, together with interest accrued thereon in accordance with the terms thereof and hereof (which interest shall be deemed matured) and all other amounts payable by the Company hereunder to the holder of such Notes, plus (to the extent permitted by applicable law) the Makewhole Amount (determined as of the date of such declaration in respect of such principal amount of such Notes), without presentment, demand, protest, notice or other requirements of any kind, all of which are hereby expressly waived by the Companyright consequent thereon.
Appears in 1 contract
Events of Default Defined; Acceleration of Maturity. If any one or more of the following conditions or events (each herein called an "EVENT OF DEFAULT"βEvents of Defaultβ) shall occur and be is continuing (whatever the reason for such Event of Default and whether it shall be voluntary or involuntary or come about or be effected by operation of law or pursuant to any judgment, decree or in compliance with judicial order of any court or any order, rule or regulation of any administrative or governmental or administrative order or action or otherwise):body), that is to say:
(a) if default shall be made in the due and punctual payment of all or any part of the principal of of, or Makewhole Amount, Applicable Premium (if any) or Make-Whole Amount (if any) on, on any Note when and as the same shall become due and payable, whether on a date fixed at the stated maturity thereof, by notice of or demand for prepayment, at stated maturity, by acceleration or declaration, or otherwise; or;
(b) if default shall be made in the due and punctual payment of any interest on any Note when and as such interest shall become due and payable, payable and such default shall have continued for a period of three days; orBusiness Days;
(c) if default shall be made in the due performance or observance of any covenant, provision, agreement or condition contained in SECTION 4(G) or any of SECTIONS 6.2 THROUGH 6.13, both inclusive, and, except in the case of any such default under SECTION 4(GSections 7(a), subdivision 7(b), 7(c), 7(i), 7(j), 11.3, 11.5, 11.8, 12 (ain its entirety) of SECTION 6.3, SECTION 6.8, SECTION 6.9 or SECTION 6.10, such default shall have continued for a period of ten days after the earlier of and 13 (x) the date on which a Responsible Officer of the Company first has knowledge of such default and (y) the giving of notice to the Company of such default by any holder or holders of a Note or Notes; orin its entirety);
(d) if default shall be made in the due performance performance, satisfaction or observance of any other covenantof the covenants, provision, agreement agreements or condition conditions contained in this Agreement (or any of the other than any default referred to in the foregoing subdivisions (a), (b) and (c) of this SECTION 8.1) Operative Documents and such default shall have continued for a period of 30 10 days after the earlier to occur of (xi) the date on which any a Responsible Officer of the Company first has Issuer obtaining actual knowledge of such default and or (yii) the giving Issuerβs receipt of written notice to the Company of such default by from any holder of Notes;
(e) if the Issuer or holders any of the Subsidiaries (i) voluntarily ceases to conduct its business in the ordinary course; (ii) commences any Insolvency Proceeding with respect to itself; or (iii) takes any action to effectuate or authorize any of the foregoing; or;
(f) (i) if any involuntary Insolvency Proceeding is commenced or filed against the Issuer or any Subsidiary, or any writ, judgment, warrant of attachment, execution or similar process, is issued or levied against a substantial part of the Issuerβs or any of the Subsidiariesβ Properties, and any such proceeding or petition shall not be dismissed, or such writ, judgment, warrant of attachment, execution or similar process shall not be released, vacated or fully bonded within sixty (60) days after commencement, filing or levy; (ii) the Issuer or any of the Subsidiaries admits the material allegations of a Note petition against it in any Insolvency Proceeding, or Notesan order for relief (or similar order under non-U.S. law) is ordered in any Insolvency Proceeding; or (iii) the Issuer or any of the Subsidiaries acquiesces in the appointment of a receiver, trustee, custodian, conservator, liquidator, mortgagee in possession (or the agent therefor), or other similar Person for itself or a substantial portion of its Property or business; or
(g) if the Issuer or any Subsidiary shall fail beyond any applicable grace period to (i) default shall be made in the make any payment of due on any amount due, whether on an interest payment date or on a date fixed for prepayment, at stated maturity, by acceleration or declaration or otherwise, under or in respect of any Funded Debt or Current Debt of the Company (other than the Notes) or any Subsidiaryhaving an aggregate principal amount of more than $250,000, and such default shall continue beyond the period of grace, if any, allowed with respect thereto; or (ii) default shall be made in the due performance perform, observe or observance of discharge any covenant, provision, agreement condition or condition contained obligation in any agreement, document evidencing or providing for the issuance instrument evidencing, securing or securing of any relating to such Funded Debt or Current Debt, if the effect of any such default referred to failure of the character described in this clause (iig) is to cause cause, or permit any other Person to permit the holder cause, Debt having an individual principal amount in excess of $250,000 or holders having an aggregate principal amount of such Debt ($250,000 or a trustee more to become due and payable, or agent on behalf of such holders) to cause any payment or payments in respect of if any such Debt to or other obligation shall become due prior to the scheduled due date thereof; or
(f) the Company or any of and payable by its Subsidiaries shall (i) apply for or consent to the appointment of, or the taking of possession by, a receiver, custodian, trustee or liquidator of itself or of all or a substantial part of its property, (ii) become insolvent or be generally unable to or shall generally fail or admit in writing its inability to pay its debts as such debts become due, (iii) make a general assignment for the benefit of its creditors, (iv) commence a voluntary case under the Federal Bankruptcy Code (as now or hereafter in effect), (v) file a petition seeking to take advantage of any bankruptcy, insolvency, moratorium, reorganization or other similar law affecting the enforcement of creditors' rights generally, (vi) acquiesce in writing to, or fail to controvert in a timely or appropriate manner, any petition filed against it in an involuntary case under such Bankruptcy Code, (vii) take any action under the laws of any jurisdiction (foreign or domestic) analogous to any of the foregoing, or (viii) take any action in furtherance of any of the foregoing; or
(g) a proceeding or case shall be commenced in respect of the Company or any of its Subsidiaries, without its application or consent, in any court of competent jurisdiction, seeking (i) the liquidation, reorganization, moratorium, dissolution, winding up, or composition or readjustment of its debts, (ii) the appointment of a trustee, receiver, custodian, liquidator or the like of it or of all or any substantial part of its assets, or (iii) similar relief in respect of it under any law providing for the relief of debtors, and such proceeding or case described in clause (i), (ii) or (iii) shall continue undismissed, or unstayed and in effect, for a period of 30 days, or an order for relief shall be entered in an involuntary case under the Federal Bankruptcy Code (as now or hereafter in effect) against the Company or any of its Subsidiaries terms and shall continue undismissed, not be paid or unstayed and in effect, for a period of 15 days; or action under the laws of any jurisdiction (foreign or domestic) analogous to any of the foregoing shall be taken with respect to the Company or any of its Subsidiaries and shall continue undismissed, or unstayed and in effect, for a period of 15 days; orextended;
(h) if a final judgment or decree judgments for the payment of money (exclusive of judgment amounts to the extent adequately covered by insurance where the insurerβs liability in respect of such judgment has been acknowledged in writing) shall be rendered by a court of competent jurisdiction against the Company Issuer or any Subsidiary which judgments are not, within 30 days after entry thereof, discharged or stayed pending appeal or otherwise, or are not discharged within 30 days after the expiration of its Subsidiaries which, either alone such stay;
(i) if any representation or together with other outstanding judgments warranty made by or decrees against on behalf of the Company Issuer or any one Subsidiary in this Agreement or more in any of its Subsidiariesthe other Operative Documents or in any agreement, document or instrument delivered under or pursuant to any provision hereof or thereof shall aggregate more than $500,000prove to have been false or incorrect in any material respect when made;
(j) the occurrence of a Reportable Event with respect to any Pension Plan; the filing of a notice of intent to terminate a Pension Plan by the Issuer, any ERISA Affiliate or any Subsidiary; the institution of proceedings to terminate a Pension Plan by the PBGC or any other Person; the withdrawal in a βcomplete withdrawalβ or a βpartial withdrawalβ as defined in Sections 4203 and 4205, respectively, of ERISA by the Company Issuer, any ERISA Affiliate or any Subsidiary from any Multi-Employer Plan; or the incurrence of any material increase in the contingent liability of the Issuer or any Subsidiary with respect to any βemployee welfare benefit planβ as defined in Section 3(1) of ERISA which covers retired employees and their beneficiaries;
(k) the institution by the Issuer, any ERISA Affiliate or any Subsidiary of steps to terminate any Pension Plan if, in order to effectuate such termination, the Issuer, such ERISA Affiliate or such Subsidiary, as the case may be, would be required to make a contribution to such Pension Plan, or would incur a liability or obligation to such Pension Plan, in excess of $50,000.00; or the institution by the PBGC of steps to terminate any Pension Plan;
(l) if, at any time, this Agreement or any of the other Operative Documents shall not discharge for any reason (other than the same or provide for its discharge scheduled termination thereof in accordance with its terms within 45 days from the date of entry thereof terms) expire, fail to be in full force and effect or within such longer period during which execution of such judgment shall have been stayedbe disaffirmed, repudiated, cancelled, terminated or declared to be unenforceable, null and void; or
(im) loss of any representation or warranty made by the Company in this Agreement or in any license, certificate or other instrument delivered hereunder or pursuant hereto or in connection with any provision hereof shall prove to have been false or incorrect or breached in any material respect on the date as of which made; or
(i) any Company Group Member shall fail to pay when due any amount which it shall have become liable to pay to the PBGC or to a Plan under Title IV of ERISA; (ii) any Company Group Member shall withdraw from a Multiple Employer Plan during a plan year in which it is a substantial employer (as such term is defined in Section 4001(a)(2) of ERISA), or shall be treated as having so withdrawn under Section 4062(e) of ERISA, or any Multiple Employer Plan shall be terminated; (iii) notice of intent to terminate a Plan or Plans shall be filed under Title IV of ERISA by any Company Group Member, any plan administrator or any combination of the foregoing; (iv) the PBGC shall institute proceedings under Title IV of ERISA to terminate or to cause a trustee to be appointed to administer any Plan or Plans; (v) any Company Group Member shall withdraw authorization from any Multiemployer Plan ; (vi) any Plan (with the exception of any Multiemployer Plan) shall have an Unfunded Current Liability; Aircraft Regulatory Authority which has resulted in or (vii) any prohibited transaction (as defined in Section 406 of ERISA or Section 4975 of the Code) or breach of fiduciary responsibility shall occur which may subject any Company Group Member could reasonably be expected to any liability under Section 406result in, 409, 502(i) or 502(l) of ERISA or Section 4975 of the Code, or under any agreement or other instrument pursuant to which such Company Group Member has agreed or is required to indemnify any Person against any such liability; and there shall result from any such event or events referred to in the foregoing subdivisions (i) through (vii) a Material Adverse Effect;
(i) upon . then, in the occurrence on any date case of any Event of Default (other than one of the character described in clause subsections (fe) or (gf) of this Section with respect 14.1) and at the option of the Required Holders, exercised by written notice to the CompanyIssuer, the unpaid principal amount of all NotesNotes shall forthwith become due and payable, together with the interest accrued thereon in accordance with the terms thereof and hereof (which interest shall be deemed matured) and all other amounts payable by the Company hereunder, plus (to the extent permitted by applicable law) the Makewhole Amount (determined as of such date in respect of such principal amount of the Notes) shall automatically become immediately due and payablethereon, without presentment, demand, protest, notice of intention to accelerate, notice of acceleration, protest or other requirements notice of any kind, all of which are hereby expressly waived by the Companywaived, and (ii) the Issuer shall forthwith upon the occurrence on any date or during the continuance of any other Event of Default, such acceleration pay to the holder or holders of not less than 51% of the unpaid principal amount of all the Notes at then outstanding (i) the time outstanding may, by written notice to the Company, declare the unpaid entire principal amount of all Notes to be, and the same shall forthwith become, due and payable, together with the interest accrued thereon on the Notes and (ii) in accordance with the terms thereof and hereof (which interest shall be deemed matured) and all other amounts payable by the Company hereunderaddition, plus (to the extent permitted by applicable law) , an amount equal to the Makewhole Amount Applicable Premium (determined as of the date of such declaration acceleration), as liquidated damages and not as a penalty; provided that, in the case of an Event of Default of the character described in subsections (a) or (b) of this Section 14.1 and irrespective of whether all of the Notes have been declared due and payable by the Required Holders at the time outstanding, any holder of Notes who or which has not consented to any waiver with respect to such Event of Default may, at the option of such principal amount of Notes)holder, by written notice to the Issuer, declare all Notes then held by such holder to be, and such Notes shall thereupon become, forthwith due and payable, together with interest accrued thereon, without presentment, demand, protest, notice protest or other requirements notice of any kind, all of which are hereby expressly waived waived, and the Issuer shall forthwith upon any such acceleration to pay to such holder (i) the entire principal of and interest accrued on such Notes, and (ii) in addition, to the extent permitted by applicable law, an amount equal to the CompanyApplicable Premium (determined as of the date of such acceleration), as liquidated damages and not as a penalty; PROVIDED provided, further, that, upon in the occurrence on any date or during the continuance case of an Event of Default of the character described in clause subsections (e) or (f) of this Section 14.1, the principal all Notes shall forthwith become due and payable, together with interest accrued thereon (including any interest accruing after the commencement of any action or proceeding under the federal bankruptcy laws, as now or hereafter constituted, or any other applicable domestic or foreign federal or state bankruptcy, insolvency or other similar law, and any other interest that would have accrued but for the commencement of such proceeding, whether or not any such interest is allowed as an enforceable claim in such proceeding), without presentment, demand, protest or other notice of any kind, all of which are hereby expressly waived, and the Issuer shall forthwith upon any such acceleration pay to the holder or holders of all the Notes then outstanding (i) the entire principal of and interest accrued on the Notes, and (ii) in addition, to the extent permitted by applicable law, an amount equal to the Applicable Premium (determined as of the date of such acceleration), as liquidated damages and not as a penalty. Notwithstanding the foregoing provisions, at any time after the occurrence of any Event of Default and of notice thereof, if any, by any holder or holders of Notes and before any judgment, decree or order for payment of the money due has been obtained by or on behalf of any holder or holders of the Notes, the Required Holders by written notice to the Issuer, may rescind and annul such Event of Default and/or notice of such Event of Default and the consequences thereof with respect to all of the Notes (including any Notes which were accelerated pursuant to the first provision in the preceding paragraph by any holder or holders on account of an Event of Default of the character described in subsection (a) or (b) of this Section with respect 14.1) if:
(i) the Issuer has paid a sum sufficient to pay
(1) all overdue interest on all Notes at the rate specified in the Notes;
(2) the principal of (and premium, if any, on) any Note, the holder Notes which have become due otherwise than by such Event of such Note may, by written Default or notice to the Company, declare the unpaid principal amount of such Note to be, and the same shall forthwith become, due and payable, together with the interest accrued thereon in accordance with the terms thereof and hereof interest thereon at the rate specified in such Notes; and
(which 3) interest shall be deemed maturedon such overdue principal (and premium, if any) and all other amounts payable by the Company hereunder to the holder of such Noteand, plus (to the extent permitted by applicable law) the Makewhole Amount (determined as of the date that payment of such declaration in respect of such principal amount of such Note)interest is lawful, without presentment, demand, protest, notice or other requirements of any kindinterest upon overdue interest, all of which are hereby expressly waived by at the Company. If any holder of any Note shall exercise the option rate for overdue amounts specified in the proviso to Notes; and
(ii) all Defaults and Events of Default, other than the preceding sentence, the Company will forthwith give written notice thereof to the holders non-payment of all other outstanding Notes and each such holder may (whether or not such notice is given or received), by written notice to the Company, declare the principal amount of all Notes held which have become due solely by it to besuch acceleration, and the same have been cured or waived as provided in Section 17. No such rescission shall forthwith become, due and payable, together with interest accrued thereon in accordance with the terms thereof and hereof (which interest shall be deemed matured) and all other amounts payable by the Company hereunder to the holder of such Notes, plus (to the extent permitted by applicable law) the Makewhole Amount (determined as of the date of such declaration in respect of such principal amount of such Notes), without presentment, demand, protest, notice affect any subsequent default or other requirements of impair any kind, all of which are hereby expressly waived by the Companyright consequent thereon.
Appears in 1 contract
Events of Default Defined; Acceleration of Maturity. If any of the following conditions or events (each herein called an "EVENT OF DEFAULTEvents of Default") shall occur and be continuing (whatever the for any reason for such Event of Default whatsoever and whether it shall be voluntary or involuntary or come about or be effected by operation of law or pursuant to or in compliance with judicial or governmental or administrative order or action or otherwise):
(a) a. default shall be made in the due and punctual payment of all or any part of the principal of or Makewhole Amount, if any, on any this Note when and as the same shall become due and payable, whether on a date fixed for prepayment, at stated maturity, by acceleration or declarationacceleration, by mandatory redemption or otherwise; or;
(b) b. default shall be made in the due and punctual payment of any interest on any this Note when and as such interest shall become due and payable, and such default shall have continued for a period of three thirty (30) days; or
(c) c. default shall be made in the due performance or observance of any covenant, provision, agreement or condition contained in SECTION 4(G) or any of SECTIONS 6.2 THROUGH 6.13, both inclusive, and, except in the case of any such default under SECTION 4(G), subdivision (a) of SECTION 6.3, SECTION 6.8, SECTION 6.9 or SECTION 6.10, such default shall have continued for a period of ten days after the earlier of (x) the date on which a Responsible Officer of the Company first has knowledge of such default and (y) the giving of notice to the Company of such default by any holder or holders of a Note or Notes; or
(d) default shall be made in the due performance or observance of any other covenant, provision, agreement or condition contained in this Agreement (other than any default referred to in the foregoing subdivisions (a), (b) and (c) of this SECTION 8.1) Note and such default shall have continued unremedied for a period of 30 thirty (30) days after the earlier or such longer period (but in no event longer than a total of sixty (x60) the date on unremedied days) during which any Responsible Officer of the Company first has knowledge of is diligently pursuing a remedy to such default and (y) the giving of notice to the Company of such default by any holder or holders of a Note or Notesdefault; or
(i) d. a default shall be made in the payment of principal, premium or interest when due that extends beyond any amount due, whether on stated period of grace applicable thereto or an interest payment date or on a date fixed acceleration for prepayment, at stated maturity, by acceleration or declaration or otherwise, under or in respect any other reason of the maturity of any Funded Debt or Current Debt Indebtedness of the Company (other than the Notes) or any Subsidiary, and such default shall continue beyond the period of grace, if any, allowed with respect thereto; or (ii) default shall be made in the due performance or observance of any covenant, provision, agreement or condition contained in any document evidencing or providing for the issuance or securing of any such Funded Debt or Current Debt, if the effect of any such default referred to in this clause (ii) is to cause or to permit the holder or holders of such Debt (or a trustee or agent on behalf of such holders) to cause any payment or payments in respect of any such Debt to become due prior to the scheduled due date thereof; or
(f) the Company or any of its Subsidiaries (other than Indebtedness of the Company to any Subsidiary of HG or of a Subsidiary of the Company to the Company or another Subsidiary of HG) with an aggregate principal amount in excess of ten million dollars ($10,000,000); or
e. an order for relief shall be entered in a proceeding under the Bankruptcy Code in respect of the Company; a decree, judgment or order by a court of competent jurisdiction shall have been entered adjudging the Company or any of its Subsidiaries that individually or as a group constitute a Significant Subsidiary, as bankrupt or insolvent; or such decree, judgment or order shall have been entered approving as properly filed a petition seeking reorganization of the Company or such Significant Subsidiary under any bankruptcy or similar law, and such decree or order shall have continued undischarged and unstayed for a period of sixty (i60) apply days; or a decree or order of a court of competent jurisdiction over the appointment of a receiver, liquidator, trustee or assignee in bankruptcy or insolvency of the Company or such Significant Subsidiary, or of the property of any such person, or for the winding up or liquidation of the affairs of any such person, shall have been entered, and such decree, judgment or order shall have remained in force undischarged and unstayed for a period of sixty (60) days; or
f. the Company or any of its Subsidiaries that individually or as a group constitute a Significant Subsidiary, shall institute proceedings to be adjudicated a voluntary bankrupt, or shall consent to the filing of a bankruptcy proceeding against it, or shall file a petition or answer or consent seeking reorganization under, any bankruptcy or similar law or similar statute, or shall consent to the filing of any such petition, or shall consent to the appointment ofof a custodian, or the taking of possession by, a receiver, custodianliquidator, trustee or liquidator assignee in bankruptcy or insolvency of itself it or of all or a substantial part any of its assets or property, (ii) become insolvent or be generally unable to or shall generally fail make a general assignment for the benefit of creditors, or shall admit in writing its inability to pay its debts generally as such debts they become due, (iii) make a general assignment for or shall, within the benefit of its creditors, (iv) commence a voluntary case under the Federal Bankruptcy Code (as now or hereafter in effect), (v) file a petition seeking to take advantage meaning of any bankruptcyBankruptcy Law, insolvency, moratorium, reorganization or other similar law affecting the enforcement of creditors' rights generally, (vi) acquiesce in writing to, become insolvent or fail generally to controvert in a timely or appropriate manner, any petition filed against it in an involuntary case under such Bankruptcy Code, (vii) take any action under the laws of any jurisdiction (foreign or domestic) analogous to any of the foregoing, or (viii) take any action in furtherance of any of the foregoingpay its debts as they become due; or
g. final, non-appealable, unsatisfied judgments not covered by insurance aggregating in excess of one million dollars (g) a proceeding or case shall be commenced in respect of the Company or any of its Subsidiaries, without its application or consent, in any court of competent jurisdiction, seeking (i) the liquidation, reorganization, moratorium, dissolution, winding up, or composition or readjustment of its debts, (ii) the appointment of a trustee, receiver, custodian, liquidator or the like of it or of all or any substantial part of its assets, or (iii) similar relief in respect of it under any law providing for the relief of debtors, and such proceeding or case described in clause (i$1,000,000), (ii) or (iii) shall continue undismissed, or unstayed and in effect, for a period of 30 days, or an order for relief shall be entered in an involuntary case under the Federal Bankruptcy Code (as now or hereafter in effect) at any one time being rendered against the Company or any of its Subsidiaries and not stayed, bonded or discharged within sixty (60) days; or
h. for any reason, the Holders shall continue undismissedcease to hold, pursuant to the Bossier City Mortgage, a valid enforceable mortgage and security interest in and to the Mortgaged Property (as defined in the Bossier City Mortgage) subject to no prior lien, mortgage or unstayed and security interest in effectfavor of any third party, except as permitted in Bossier City Mortgage; provided, however, if the potential detrimental effect on the Holders in the case of a lien, mortgage or security interest in favor of a third party is covered by title insurance, then such lien, mortgage or security interest shall only constitute an Event of Default hereunder if such lien, mortgage or security interest shall have continued unremoved for a period of 15 thirty (30) days or such longer period (but in no event longer than a total of sixty (60) unremedied days; or action under the laws of any jurisdiction (foreign or domestic) analogous to any of the foregoing shall be taken with respect to during which the Company or any of its Subsidiaries and shall continue undismissed, or unstayed and in effect, for is diligently pursuing a period of 15 daysremedy to such default; or
(h) a final judgment or decree for i. the payment legal right of money shall be rendered by a court of competent jurisdiction against the Company to operate the gaming establishment within any Horseshoe Bossier City Casino is suspended or any of its Subsidiaries which, either alone lost and such loss or together with other outstanding judgments or decrees against the Company or any one or more of its Subsidiaries, suspension shall aggregate continue for more than $500,000, and the Company or such Subsidiary, as the case may be, shall not discharge the same or provide for its discharge in accordance with its terms within 45 days from the date of entry thereof or within such longer period during which execution of such judgment shall have been stayed; or
thirty (i30) any representation or warranty made by the Company in this Agreement or in any certificate or other instrument delivered hereunder or pursuant hereto or in connection with any provision hereof shall prove to have been false or incorrect or breached in any material respect on the date as of which made; or
(i) any Company Group Member shall fail to pay when due any amount which it shall have become liable to pay to the PBGC or to a Plan under Title IV of ERISA; (ii) any Company Group Member shall withdraw from a Multiple Employer Plan during a plan year in which it is a substantial employer (as such term is defined in Section 4001(a)(2) of ERISA), or shall be treated as having so withdrawn under Section 4062(e) of ERISA, or any Multiple Employer Plan shall be terminated; (iii) notice of intent to terminate a Plan or Plans shall be filed under Title IV of ERISA by any Company Group Member, any plan administrator or any combination of the foregoing; (iv) the PBGC shall institute proceedings under Title IV of ERISA to terminate or to cause a trustee to be appointed to administer any Plan or Plans; (v) any Company Group Member shall withdraw from any Multiemployer Plan ; (vi) any Plan (with the exception of any Multiemployer Plan) shall have an Unfunded Current Liability; or (vii) any prohibited transaction (as defined in Section 406 of ERISA or Section 4975 of the Code) or breach of fiduciary responsibility shall occur which may subject any Company Group Member to any liability under Section 406, 409, 502(i) or 502(l) of ERISA or Section 4975 of the Code, or under any agreement or other instrument pursuant to which such Company Group Member has agreed or is required to indemnify any Person against any such liability; and there shall result from any such event or events referred to in the foregoing subdivisions (i) through (vii) a Material Adverse Effect;
(i) consecutive days. then upon the occurrence on any date of any Event of Default described in clause (f) or (g) of this Section with respect to the Company, the unpaid principal amount of all Notes, together with the interest accrued thereon in accordance with the terms thereof and hereof (which interest shall be deemed matured) and all other amounts payable by the Company hereunder, plus (to the extent permitted by applicable law) the Makewhole Amount (determined as of such date in respect of such principal amount of the Notes) shall automatically become immediately due and payable, without presentment, demand, protest, notice of intention to accelerate, notice of acceleration, or other requirements of any kind, all of which are hereby expressly waived by the Company, and (ii) upon the occurrence on any date or during the continuance of any other Event of Default, the holder or holders of not less than 51% of the unpaid principal amount of the Notes at the time outstanding may, Majority Noteholders by written notice to the Company, may declare the unpaid principal amount of all Notes to be, and the same shall forthwith become, due and payable, together with the interest accrued thereon in accordance with the terms thereof and hereof (which interest shall be deemed matured) and all other amounts payable by the Company hereunder, plus (to the extent permitted by applicable law) the Makewhole Amount (determined as of the date of such declaration in respect of such principal amount of Notes)provided, without presentment, demand, protest, notice or other requirements of any kind, all of which are hereby expressly waived by the Company; PROVIDED that, upon the occurrence on any date or during the continuance existence of an Event of Default described in under clause (a) or (b) of this Section 8.1 with respect to any Note, the holder Holder of such Note mayNote, by written notice to the Company, may declare the unpaid principal amount of such Note to be, and the same shall forthwith become, due and payable, together with the interest accrued thereon in accordance with the terms thereof and hereof (which interest shall be deemed matured) and all other amounts payable by the Company hereunder to the holder of such Note, plus (to the extent permitted by applicable law) the Makewhole Amount (determined as of the date of such declaration in respect of such principal amount of such Note), without presentment, demand, protest, notice or other requirements of any kind, all of which are hereby expressly waived by the Companyhereunder. If any holder Holder of any Note shall exercise the option specified in the proviso to the preceding sentence, the Company will forthwith give written notice thereof to the holders Holders of all other outstanding Notes and each such holder may Holder (whether or not such notice is given or received), by written notice to the Company, may declare the principal amount of all Notes held by it to be, and the same shall forthwith become, due and payable, together with the interest accrued thereon in accordance with the terms thereof and hereof (which interest shall be deemed matured) and all other amounts payable by the Company hereunder hereunder. Notwithstanding the foregoing, the unpaid principal amount of the Notes may not be accelerated pursuant to an Event of Default described in subsection d if prior to such acceleration, all amounts due under such other indebtedness as described in such subsection shall have been repaid. The provisions of this Section are subject, however, to the holder condition that if, at any time after any Note shall have so become due and payable, the Company shall pay all arrears of interest on such NotesNote and all payments on account of the principal on such Note and any other amounts owing which shall have become due otherwise than by acceleration (with interest on such principal, plus (and, to the extent permitted by applicable law, on overdue payments of interest, at the rate specified in the Notes) and all Events of Default (other than nonpayment of principal of and accrued interest on Notes, due and payable solely by virtue of acceleration) shall be remedied or waived pursuant to Section 9, then, and in every such case, the Makewhole Amount (determined as of the date of such declaration in respect of such principal amount of such Notes)Majority Noteholders, without presentment, demand, protest, by written notice or other requirements of any kind, all of which are hereby expressly waived by to the Company, may rescind and annul any such acceleration and its consequences; but no such action shall affect any subsequent Event of Default or impair any right consequent thereon.
Appears in 1 contract
Sources: Intercompany Senior Secured Note (Horseshoe Gaming LLC)
Events of Default Defined; Acceleration of Maturity. If any one or more of the following conditions or events (each herein called an "EVENT OF DEFAULTEvents of Default") shall occur and be continuing (whatever the reason for such Event of Default and whether it shall be voluntary or involuntary or come about or be effected by operation of law or pursuant to any judgment, decree or in compliance with judicial order of any court or any order, rule or regulation of any administrative or governmental or administrative order or action or otherwise):body), that is to say:
(a) if default shall be made in the due and punctual payment of all or any part of the principal of of, or Makewhole Amount, premium (if any) on, on any Note when and as the same shall become due and payable, whether on a date fixed at the stated maturity thereof, by notice of or demand for prepayment, at stated maturity, by acceleration or declaration, or otherwise; or
(b) if default shall be made in the due and punctual payment of any interest on any Note when and as such interest shall become due and payable, payable and such default shall have continued for a period of three daysfive Business Days; or
(c) if default shall be made in the due performance or observance of any covenant, provision, agreement or condition contained in SECTION 4(G(i) or any of SECTIONS 6.2 THROUGH 6.13sections 7(g), both 8, 9.7, 13, 14.2(b), 14.2(e), 14.5 to 14.8, inclusive, or 14.10 to 14.18, inclusive, or (ii) section 14.9 and, except in the case of any such default under SECTION 4(Gthis clause (ii), subdivision (a) of SECTION 6.3, SECTION 6.8, SECTION 6.9 or SECTION 6.10, such default shall have continued for a period of ten days after the earlier of (x) the date on which a Responsible Officer of the Company first has knowledge of such default and (y) the giving of notice to the Company of such default by any holder or holders of a Note or Notesfive days; or
(d) if default shall be made in the due performance or observance of any other covenantof the covenants, provision, agreement agreements or condition conditions of or applicable to the Operating Company or the Holding Company contained in this Agreement (or any of the other than any default referred to in the foregoing subdivisions (a), (b) and (c) of this SECTION 8.1) Operative Documents and such default shall have continued for a period of 30 days after the earlier of (x) the date on which any Responsible Officer of the Company first has knowledge of such default and (y) the giving of notice to the Company of such default by any holder or holders of a Note or Notesdays; or
(ie) default shall be made in the payment of any amount due, whether on an interest payment date or on a date fixed for prepayment, at stated maturity, by acceleration or declaration or otherwise, under or in respect of any Funded Debt or Current Debt of the Company (other than the Notes) or any Subsidiary, and such default shall continue beyond the period of grace, if any, allowed with respect thereto; or (ii) default shall be made in the due performance or observance of any covenant, provision, agreement or condition contained in any document evidencing or providing for the issuance or securing of any such Funded Debt or Current Debt, if the effect of any such default referred to in this clause (ii) is to cause or to permit the holder or holders of such Debt (or a trustee or agent on behalf of such holders) to cause any payment or payments in respect of any such Debt to become due prior to the scheduled due date thereof; or
(f) the Holding Company or any of its Subsidiaries shall (i) apply make a general assignment for or consent to the appointment ofbenefit of creditors, or the taking of possession byshall not pay its debts as they become due, a receiver, custodian, trustee or liquidator of itself or of all or a substantial part of its property, (ii) become insolvent or be generally unable to or shall generally fail or admit in writing its inability to pay its debts as such debts they become due, (iii) make a general assignment for the benefit of its creditors, (iv) commence or shall file a voluntary case under the Federal Bankruptcy Code (as now or hereafter petition in effect), (v) file a petition seeking to take advantage of any bankruptcy, insolvency, moratorium, reorganization or other similar law affecting the enforcement of creditors' rights generally, (vi) acquiesce in writing toshall be adjudicated bankrupt or insolvent, or fail to controvert in shall file 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 shall file any answer admitting or not contesting the material allegations of a timely or appropriate manner, any petition filed against it in an involuntary case under any such Bankruptcy Codeproceeding, or shall seek or consent to or acquiesce in the appointment of any trustee, custodian, receiver, liquidator or fiscal agent for it or for all or any substantial part of its properties, or shall (viior its directors or stockholders shall) take any action looking to its dissolution or liquidation; or
(f) if (i) within 60 days after the commencement of an action against the Holding Company or any of its Subsidiaries seeking any reorganization, arrangement, composition, readjustment, liquidation, dissolution or similar relief under any present or future statute, law or regulation, such action shall not have been dismissed, stayed or vacated or (ii) within 60 days after the laws appointment without the consent or acquiescence of the Holding Company or any of its Subsidiaries of any jurisdiction (foreign trustee, custodian, receiver, liquidator or domestic) analogous to fiscal agent for any such Person or for all or any substantial part of the foregoingtheir respective properties, or (viii) take any action in furtherance of any of the foregoingsuch appointment shall not have been vacated; or
(g) a proceeding if, under the provisions of any law for the relief or case aid of debtors, any court or governmental agency of competent jurisdiction shall be commenced in respect assume custody or control of the Holding Company or any of its Subsidiaries, without its application or consent, in any court of competent jurisdiction, seeking (i) the liquidation, reorganization, moratorium, dissolution, winding up, or composition or readjustment of its debts, (ii) the appointment of a trustee, receiver, custodian, liquidator or the like of it Subsidiaries or of all or any substantial part of its assets, or (iii) similar relief in respect of it under any law providing for the relief of debtors, their respective properties and such proceeding custody or case described in clause control shall not be terminated within 60 days from the date of assumption such custody or control; or
(i), (iih) or (iii) shall continue undismissed, or unstayed and in effect, for a period of 30 days, or an order for relief shall be entered in an involuntary case under if the Federal Bankruptcy Code (as now or hereafter in effect) against the Holding Company or any of its Subsidiaries and shall continue undismissed, fail (after giving effect to any applicable grace period originally provided with respect thereto) to (i) make any payment due on any Indebtedness (other than the Notes) or unstayed and other obligation (including any in effect, for a period of 15 days; or action under the laws respect of any jurisdiction lease or any Shares upon the exercise by any Person of any put or call option or other similar right of redemption or repurchase with regard to such Shares), if the aggregate outstanding amount thereof (foreign and of any other Indebtedness or domestic) analogous other obligation as to any of which the foregoing shall be taken with respect to the Holding Company or any of its Subsidiaries is in default) exceeds $1,000,000 (or the equivalent thereof, as at any date of determination, in any other currency) or (ii) perform, observe or discharge any covenant, condition or obligation in any agreement, document or instrument evidencing, securing or relating to such Indebtedness or other obligation, if the effect of any such failure of the character described in this clause (ii) is to cause, or any other Person shall cause, any payment in an aggregate amount of $1,000,000 (or the equivalent thereof, as at any date of determination, in any other currency) or more to become due and payable, or if any such Indebtedness or other obligation in aggregate amount of $1,000,000 (or the equivalent thereof, as at any date of determination, in any other currency) or more shall become due and payable by its terms and shall continue undismissed, not be paid or unstayed and in effect, for a period of 15 daysextended; or
(hi) if a final judgment or decree for the payment of money which, together with all other outstanding final judgments for the payment of money against the Holding Company or any of its Subsidiaries, exceeds an aggregate of $1,000,000 (or the equivalent thereof, as at any date of determination, in any other currency) shall be rendered by a court of competent jurisdiction record against the Holding Company or any of its Subsidiaries, and the Holding Company or any of its Subsidiaries which, either alone or together with other outstanding judgments or decrees against the Company or any one or more of its Subsidiaries, shall aggregate more than $500,000, and the Company or such Subsidiary, as the case may be, shall not discharge the same or provide for its discharge in accordance with its terms terms, or procure a stay of execution thereof within 45 60 days from the date of entry thereof and within such period of 60 days, or within such longer period during which execution of such judgment shall have been stayed, move to vacate such judgment or appeal therefrom and cause the execution thereof to be stayed pending determination of such motion or during such appeal; or
(j) the Holding Company or any of its Subsidiaries shall: (i) default in making any payment, delivery or exchange, or in the performance of any of its other obligations, under one or more agreements or instruments (individually or collectively) governing or otherwise relating to one or more Derivative Transactions, which default shall have resulted in early termination, liquidation or other similar payments in an aggregate amount of $1,000,000 (or the equivalent thereof, as at any date of determination, in any other currency) or more becoming, or becoming capable at such time of being declared or designated, due and payable by the Holding Company or any of its Subsidiaries; or (ii) default in making any payment or delivery due on the last payment, delivery or exchange date of, or on the early termination or liquidation of, one or more Derivative Transactions and such default relates to one or more payments or deliveries of cash or property having an aggregate value of $1,000,000 (or the equivalent thereof, as at any date of determination, in any other currency) or more;
(k) if any representation or warranty made by or on behalf of the Holding Company or any of its Subsidiaries in this Agreement or in any certificate of the other Operative Documents or other in any agreement, document or instrument delivered hereunder under or pursuant hereto or in connection with to any provision hereof or thereof shall prove to have been materially false or incorrect or breached in any material respect on the date as of which made; or
(l) if, at any time, this Agreement or any of the other Operative Documents shall for any reason (other than the scheduled termination thereof in accordance with its terms) expire, fail to be in full force and effect or be disaffirmed, repudiated, cancelled, terminated or declared to be unenforceable, null and void; or
(m) if (i) any Company Group Member Plan shall fail to pay when due satisfy the minimum funding standards of ERISA or the Code for any amount which it shall have become liable to pay to plan year or part thereof or a waiver of such standards or extension of any amortization period is sought or granted under section 412 of the PBGC or to a Plan under Title IV of ERISA; Code, (ii) any Company Group Member shall withdraw from a Multiple Employer Plan during a plan year in which it is a substantial employer (as such term is defined in Section 4001(a)(2) of ERISA), or shall be treated as having so withdrawn under Section 4062(e) of ERISA, or any Multiple Employer Plan shall be terminated; (iii) notice of intent to terminate a any Plan shall have been or Plans shall is reasonably expected to be filed under Title IV of ERISA by any Company Group Member, any plan administrator with the PBGC or any combination of the foregoing; (iv) the PBGC shall institute have instituted proceedings under Title IV section 4042 of ERISA to terminate or to cause appoint a trustee to be appointed to administer any Plan or the PBGC shall have notified the Holding Company or any ERISA Affiliate that a Plan may become a subject of any such proceedings, (iii) the aggregate "amount of unfunded benefit liabilities" (within the meaning of section 4001(a)(18) of ERISA) under all Plans; , determined in accordance with Title IV of ERISA, shall exceed $250,000 (or the equivalent thereof, as at any date of determination, in any other currency), (iv) the Holding Company or any ERISA Affiliate shall have incurred or is reasonably expected to incur any liability pursuant to Title I or IV of ERISA or the penalty or excise tax provisions of the Code relating to employee benefit plans, (v) the Holding Company or any Company Group Member shall withdraw ERISA Affiliate withdraws from any Multiemployer Plan ; Plan, or (vi) the Holding Company or any Plan (with the exception of any Multiemployer Plan) shall have an Unfunded Current Liability; or (vii) any prohibited transaction (as defined in Section 406 of ERISA or Section 4975 Subsidiary of the Code) Holding Company establishes or breach of fiduciary responsibility shall occur which may subject amends any Company Group Member to any employee welfare benefit plan that provides post- employment welfare benefits in a manner that would increase the liability under Section 406, 409, 502(i) or 502(l) of ERISA or Section 4975 of the Code, or under any agreement or other instrument pursuant to which such Holding Company Group Member has agreed or is required to indemnify any Person against any such liabilityand/or its Subsidiaries thereunder; and there shall result from any such event or events referred to described in the foregoing subdivisions clauses (i) through (viivi) above, either individually or together with any other such event or events, has resulted in, or could reasonably be expected to result in, a Material Adverse Effect;
(i) upon Change; or then, in the occurrence on any date case of any Event of Default (other than one of the character described in clause subdivisions (e), (f) or (g) of this Section with respect section 16.1) and at the option of the Required Holders of the Notes at the time outstanding (excluding any Notes at the time owned by the Companies or any Affiliate of the Companies), exercised by written notice to the Operating Company, the unpaid principal amount of all NotesNotes shall forthwith become due and payable, together with the interest accrued thereon in accordance with the terms thereof and hereof (which interest shall be deemed matured) and all other amounts payable by the Company hereunder, plus (to the extent permitted by applicable law) the Makewhole Amount (determined as of such date in respect of such principal amount of the Notes) shall automatically become immediately due and payablethereon, without presentment, demand, protest, notice of intention to accelerate, notice of acceleration, protest or other requirements notice of any kind, all of which are hereby expressly waived by waived, and the CompanyOperating Company shall forthwith upon any such acceleration pay to the holder or holders of all the Notes then outstanding (i) the entire principal of and interest accrued on the Notes, and (ii) upon the occurrence on any date or during the continuance of any other Event of Defaultin addition, the holder or holders of not less than 51% of the unpaid principal amount of the Notes at the time outstanding may, by written notice to the Company, declare the unpaid principal amount of all Notes to be, and the same shall forthwith become, due and payable, together with the interest accrued thereon in accordance with the terms thereof and hereof (which interest shall be deemed matured) and all other amounts payable by the Company hereunder, plus (to the extent permitted by applicable law) , an amount equal to the Makewhole Amount (determined as premium that would be payable upon a prepayment of the date Notes pursuant to section 9.2 at such time, as liquidated damages and not as a penalty; provided that, in the case of an Event of Default of the character described in subdivisions (a) or (b) of this section 16.1 and irrespective of whether all of the Notes have been declared due and payable by the Required Holders of the Notes at the time outstanding, any holder of Notes who or which has not consented to any waiver with respect to such Event of Default may, at the option of such declaration in respect of holder, by written notice to the Operating Company, declare all Notes then held by such principal amount of Notes)holder to be, and such Notes shall thereupon become, forthwith due and payable, together with interest accrued thereon, without presentment, demand, protest, notice protest or other requirements notice of any kind, all of which are hereby expressly waived by the Company; PROVIDED that, upon the occurrence on any date or during the continuance of an Event of Default described in clause (a) or (b) of this Section with respect to any Note, the holder of such Note may, by written notice to the Company, declare the unpaid principal amount of such Note to bewaived, and the same Operating Company shall forthwith become, due upon any such acceleration pay to such holder (i) the entire principal of and payable, together with the interest accrued thereon on such Notes, and (ii) in accordance with the terms thereof and hereof (which interest shall be deemed matured) and all other amounts payable by the Company hereunder to the holder of such Noteaddition, plus (to the extent permitted by applicable law) , an amount equal to the Makewhole Amount (determined as premium that would be payable upon a prepayment of the date Notes pursuant to section 9.2 at such time, as liquidated damages and not as a penalty; provided, further, that, in the case of an Event of Default of the character described in subdivisions (e), (f) or (g) of this section 16.1, the principal of all Notes shall forthwith become due and payable, together with interest accrued thereon (including any interest accruing after the commencement of any action or proceeding under the federal bankruptcy laws, as now or hereafter constituted, or any other applicable domestic or foreign federal or state bankruptcy, insolvency or other similar law, and any other interest that would have accrued but for the commencement of such declaration proceeding, whether or not any such interest is allowed as an enforceable claim in respect of such principal amount of such Noteproceeding), without presentment, demand, protest, notice protest or other requirements notice of any kind, all of which are hereby expressly waived by waived, and the Company. If Operating Company shall forthwith upon any holder of any Note shall exercise the option specified in the proviso such acceleration pay to the preceding sentence, the Company will forthwith give written notice thereof to the holder or holders of all other the Notes then outstanding Notes (i) the entire principal of and each such holder may (whether or not such notice is given or received), by written notice to interest accrued on the Company, declare the principal amount of all Notes held by it to beNotes, and the same shall forthwith become(ii) in addition, due and payable, together with interest accrued thereon in accordance with the terms thereof and hereof (which interest shall be deemed matured) and all other amounts payable by the Company hereunder to the holder of such Notes, plus (to the extent permitted by applicable law, an amount equal to the premium that would be payable upon a prepayment of the Notes pursuant to section 9.2 at such time, as liquidated damages and not as a penalty. Notwithstanding the foregoing provisions, at any time after the occurrence of any Event of Default and of notice thereof, if any, by any holder or holders of Notes and before any judgment, decree or order for payment of the money due has been obtained by or on behalf of any holder or holders of the Notes, the Required Holders of the Notes by written notice to the Operating Company, may rescind and annul such Event of Default and/or notice of such Event of Default and the consequences thereof with respect to all of the Notes (including any Notes which were accelerated pursuant to the first proviso in the preceding paragraph by any holder or holders on account of an Event of Default of the character described in subdivision (a) or (b) of this section 16.1) if:
(1) the Makewhole Amount Operating Company has paid a sum sufficient to pay
(determined as A) all overdue installments of interest on all Notes at the rate specified in the Notes;
(B) the principal of (and premium, if any, on) any Notes which have become due otherwise than by such Event of Default or notice thereof and interest thereon at the rate for overdue amounts specified in such Notes; and
(C) to the extent that payment of such interest is lawful, interest upon overdue interest at the rate for overdue amounts specified in such Notes; and
(2) all Defaults and Events of Default, other than the non-payment of the date principal of Notes which have become due solely by such declaration acceleration, have been cured or waived as provided in respect of section 19. No such principal amount of such Notes), without presentment, demand, protest, notice rescission shall affect any subsequent default or other requirements of impair any kind, all of which are hereby expressly waived by the Companyright consequent thereon.
Appears in 1 contract
Events of Default Defined; Acceleration of Maturity. If any of the following conditions or events (each herein called an "EVENT OF DEFAULTEvents of Default") shall occur and be continuing for the applicable periods set forth below (whatever the for any reason for such Event of Default whatsoever and whether it shall be voluntary or involuntary or come about or be effected by operation of law or pursuant to or in compliance with judicial or governmental or administrative order or action or otherwise):
(a) default shall be made by Issuer in the due and punctual payment of all or any part portion of the principal of of, or Makewhole Amount, premium (if any) on, on any the Note when and as within three (3) business days following written notice from Purchaser that the same shall become is due and payable, whether on a date fixed for prepayment, at stated maturity, by acceleration or declarationacceleration, by notice of prepayment or otherwise; or
(b) default shall be made by Issuer in the due and punctual payment of any interest on any the Note when and as such interest shall become within three (3) business days following written notice from Purchaser that the same is due and payable, and such default shall have continued for a period of three days; or
(c) default shall be made by the Issuer in the due performance or observance of any covenant, provision, agreement or condition covenant contained in SECTION 4(G) Sections 4, 7 and 9 hereof, provided that, with respect to the covenants of the Issuer set forth in Section 7 hereof (other than a default of the covenants set forth in Sections 7.1 and 7.4, or any a willful default of SECTIONS 6.2 THROUGH 6.13the covenant set forth in Section 7.6, both inclusive, and, except in the case all of any such default under SECTION 4(Gwhich shall have no applicable cure period), subdivision (a) of SECTION 6.3, SECTION 6.8, SECTION 6.9 or SECTION 6.10, such default shall have continued remain uncured for a period of ten sixty (60) days after the earlier of (x) from the date on which a Responsible Officer of the Company first has knowledge of such default and (y) the giving of Purchaser provides written notice to the Company Issuer of such default by any holder or holders of a Note or Notes; ordefault;
(d) default shall be made by the Issuer in the due performance or observance of any other covenant, provision, agreement or condition contained in this Agreement (other than any default referred to in the foregoing subdivisions (a)Security Agreement, (b) and (c) of this SECTION 8.1) and such default which default, if curable, shall have continued remain uncured for a period of 30 sixty (60) days after the earlier of (x) from the date on which any Responsible Officer of the Company first has knowledge of such default and (y) the giving of Purchaser provides written notice to the Company Issuer of such default by any holder or holders of a Note or Notesdefault; or
(i) default shall be made in the payment of any amount due, whether on an interest payment date or on a date fixed for prepayment, at stated maturity, by acceleration or declaration or otherwise, under or in respect of any Funded Debt or Current Debt of the Company (other than the Notes) or any Subsidiary, and such default shall continue beyond the period of grace, if any, allowed with respect thereto; or (ii) default shall be made in the due performance or observance of any covenant, provision, agreement or condition contained in any document evidencing or providing for the issuance or securing of any such Funded Debt or Current Debt, if the effect of any such default referred to in this clause (ii) is to cause or to permit the holder or holders of such Debt (or a trustee or agent on behalf of such holders) to cause any payment or payments in respect of any such Debt to become due prior to the scheduled due date thereof; or
(fe) the Company or any of its Subsidiaries Issuer shall (i1) apply for or consent to the appointment of, or the taking of possession by, a receiver, custodian, trustee or liquidator of itself or of all or a substantial part of its property, (ii) become insolvent or be generally unable to or shall generally fail or admit in writing its inability to pay its debts as such debts become due, (iii2) make a general assignment for the benefit of its creditors, (iv3) commence a voluntary case under the Federal Bankruptcy Code (as now or hereafter in effect), (v4) file a petition seeking to take advantage of any bankruptcy, insolvency, moratorium, reorganization or other similar law affecting providing for the enforcement relief of creditors' rights generallydebtors, (vi5) acquiesce in writing to, or fail to controvert in a timely or appropriate manner, or acquiesce in writing to, any petition filed against it in an involuntary case under such Bankruptcy Code, (vii6) take any action under the laws of any its jurisdiction (foreign or domestic) of incorporation analogous to any of the foregoing, or (viii7) take any corporate action in furtherance for the purpose of effecting any of the foregoing; or
(gf) a proceeding or case shall be commenced in respect commenced, without the application or consent of the Company or any of its Subsidiaries, without its application or consentIssuer, in any court of competent jurisdiction, seeking (i1) the liquidation, reorganization, moratorium, dissolution, winding up, or composition or readjustment of its debtsthe debts of the Issuer, (ii2) the appointment of a trustee, receiver, custodian, liquidator or the like of it the Issuer or of all or any substantial part of its respective assets, or (iii3) similar relief in respect of it the Issuer under any law providing for the relief of debtors, and such proceeding or case described in clause (i), (ii) or (iii) shall continue undismissed, or unstayed and in effect, for a period of 30 sixty (60) days, ; or an order for relief shall be entered in an involuntary case under the Federal such Bankruptcy Code (as now or hereafter in effect) Code, against the Company or any of its Subsidiaries and shall continue undismissed, or unstayed and in effect, for a period of 15 daysIssuer; or action under the laws of any the jurisdiction (foreign or domestic) of incorporation of the Issuer analogous to any of the foregoing shall be taken with respect to the Company or any of its Subsidiaries Issuer and shall continue undismissed, or unstayed and in effect, effect for a any period of 15 sixty (60) days; or
(hg) a final judgment or decree for the payment of money shall be rendered by a court of competent jurisdiction against the Company or any of its Subsidiaries which, either alone or together with other outstanding judgments or decrees against the Company or any one or more of its Subsidiaries, shall aggregate more than $500,000, Issuer and the Company or such Subsidiary, as the case may be, Issuer shall not discharge the same or provide for its discharge in accordance with its terms terms, or procure a stay of execution thereof within 45 thirty (30) days from the date of entry thereof and within said period of thirty (30) days, or within such longer period during which execution of such judgment shall have been stayed, appeal therefrom and cause the execution thereof to be stayed during such appeal, and such judgment together with all other such judgments shall exceed in the aggregate $2,000,000; or
(ih) any representation or warranty made by the Company Issuer in this Agreement or any Security Document or in any certificate or other instrument delivered hereunder or pursuant hereto or thereto or in connection with any provision hereof of thereof shall prove to have been be false or incorrect or breached in any material respect on as of the date as of which made; or
(i) any Company Group Member shall fail to pay when due any amount which it shall have become liable to pay to the PBGC or to a Plan under Title IV of ERISA; (ii) any Company Group Member shall withdraw from a Multiple Employer Plan during a plan year in which it is a substantial employer (as such term is defined in Section 4001(a)(2) of ERISA)then, or shall be treated as having so withdrawn under Section 4062(e) of ERISA, or any Multiple Employer Plan shall be terminated; (iii) notice of intent to terminate a Plan or Plans shall be filed under Title IV of ERISA by any Company Group Member, any plan administrator or any combination of the foregoing; (iv) the PBGC shall institute proceedings under Title IV of ERISA to terminate or to cause a trustee to be appointed to administer any Plan or Plans; (v) any Company Group Member shall withdraw from any Multiemployer Plan ; (vi) any Plan (with the exception of any Multiemployer Plan) shall have an Unfunded Current Liability; or (vii) any prohibited transaction (as defined in Section 406 of ERISA or Section 4975 of the Code) or breach of fiduciary responsibility shall occur which may subject any Company Group Member to any liability under Section 406, 409, 502(i) or 502(l) of ERISA or Section 4975 of the Code, or under any agreement or other instrument pursuant to which such Company Group Member has agreed or is required to indemnify any Person against any such liability; and there shall result from any such event or events referred to in the foregoing subdivisions (i) through (vii) a Material Adverse Effect;
(i) upon the occurrence on any date of any Event of Default described in clause Default, (fi) or the interest rate shall increase from 12% to 13-1/2% and (gii) of this Section with respect to the Company, the unpaid principal amount of all Notesthe Note, together with the interest accrued thereon in accordance with the terms thereof and hereof (which interest shall be deemed matured) and all other amounts payable by the Company Issuers hereunder, plus (to the extent permitted by applicable law) the Makewhole Amount (determined as of such date in respect of such principal amount of the Notes) shall automatically become immediately due and payable, without presentment, demand, protest, notice of intention to accelerate, notice of acceleration, protest or other requirements of any kind, all of which are hereby expressly waived by the CompanyIssuer. The provisions of this Section are subject, and (ii) upon the occurrence on any date or during the continuance of any other Event of Defaulthowever, the holder or holders of not less than 51% of the unpaid principal amount of the Notes at the time outstanding may, by written notice to the Companycondition that if, declare at any time after the unpaid principal amount of all Notes to be, and the same Note shall forthwith become, have so become due and payable, together with Issuer shall pay all arrears of interest on the interest accrued thereon in accordance with the terms thereof and hereof (which interest shall be deemed matured) Note and all other amounts payable payments on account of the principal of the Note which shall have become due otherwise than by the Company hereunderacceleration, plus (with interest on such principal and, to the extent permitted by applicable law) , on overdue payments of interest, at the Makewhole Amount (determined as of rate specified in the date of such declaration in respect of such principal amount of Notes), without presentment, demand, protest, notice or other requirements of any kind, Note and all of which are hereby expressly waived by the Company; PROVIDED that, upon the occurrence on any date or during the continuance of an Event Events of Default described in clause (a) or (b) other than nonpayment of this Section with respect to any principal of and accrued interest on Note, the holder of such Note may, by written notice and amounts equal to the Company, declare the unpaid principal amount of such Note to be, and the same shall forthwith becomepremium as aforesaid, due and payable, together with the interest accrued thereon in accordance with the terms thereof and hereof (which interest payable solely by virtue of acceleration) shall be deemed matured) remedied or waived pursuant to Section 11, then, and all other amounts payable by the Company hereunder to in every such case, the holder of such Note, plus (to the extent permitted by applicable law) the Makewhole Amount (determined as of the date of such declaration in respect of such principal amount of such Note), without presentment, demand, protest, notice or other requirements of any kind, all of which are hereby expressly waived by the Company. If any holder of any Note shall exercise the option specified in the proviso to the preceding sentence, the Company will forthwith give written notice thereof to the holders of all other outstanding Notes and each such holder may (whether or not such notice is given or received), by written notice to the CompanyIssuer, declare the principal amount may rescind and annul any such acceleration and its consequences; but no such action shall affect any subsequent Default or Event of all Notes held by it to be, and the same shall forthwith become, due and payable, together with interest accrued thereon in accordance with the terms thereof and hereof (which interest shall be deemed matured) and all other amounts payable by the Company hereunder to the holder of such Notes, plus (to the extent permitted by applicable law) the Makewhole Amount (determined as of the date of such declaration in respect of such principal amount of such Notes), without presentment, demand, protest, notice Default or other requirements of impair any kind, all of which are hereby expressly waived by the Companyright consequent thereon.
Appears in 1 contract
Events of Default Defined; Acceleration of Maturity. If any one or more of the following conditions or events (each herein called an "EVENT OF DEFAULTEvents of Default") shall occur and be continuing (whatever the reason for such Event of Default and whether it shall be voluntary or involuntary or come about or be effected by operation of law or pursuant to any judgment, decree or in compliance with judicial order of any court or any order, rule or regulation of any administrative or governmental or administrative order or action or otherwise):body), that is to say:
(a) if default shall be made in the due and punctual payment of all or any part of the principal of of, or Makewhole Amount, premium (if any) on, on any Note when and as the same shall become due and payable, whether on a date fixed at the stated maturity thereof, by notice of or demand for prepayment, at stated maturity, by acceleration or declaration, or otherwise; or
(b) if default shall be made in the due and punctual payment of any interest on any Note when and as such interest shall become due and payable, payable and such default shall have continued for a period of three daysBusiness Days; or
(c) if (i) default shall be made in the due performance or observance of any covenant, provision, agreement or condition contained in SECTION 4(G) section 10.1 or any of SECTIONS 6.2 THROUGH 6.13, both inclusive, and, except in the case of any such default under SECTION 4(G), subdivision (a) of SECTION 6.3, SECTION 6.8, SECTION 6.9 or SECTION 6.10, 10.2 and such default shall have continued continue unremedied for a period of ten days (10) Business Days after the earlier of occurrence thereof or (x) the date on which a Responsible Officer of the Company first has knowledge of such default and (y) the giving of notice to the Company of such default by any holder or holders of a Note or Notes; or
(dii) default shall be made in the due performance or observance of any covenant, agreement or condition contained in section 10.3 or 10.4; or
(d) if default shall be made in the performance or observance of any other covenantof the covenants, provision, agreement agreements or condition conditions contained in this Agreement or any of the other Operative Documents (other than any default referred to in the foregoing subdivisions as covered by paragraphs (a), (b) and (c) of this SECTION 8.1Section 12.1) and such default shall have continued for a period of 30 days after the earlier of (x) the date on which any Responsible Officer of the Company first has knowledge of such default and (y) the giving of notice to the Company of such default by any holder or holders of a Note or Notesoccurrence thereof; or
(ie) default if an involuntary case shall be made commenced against the Company or any of the Company's Material Subsidiaries and the petition shall not be dismissed, stayed, bonded or discharged within sixty (60) days after commencement of the case; or a court having jurisdiction in the payment of any amount due, whether on an interest payment date premises shall enter a decree or on a date fixed order for prepayment, at stated maturity, by acceleration or declaration or otherwise, under or relief in respect of the Company or any Funded Debt or Current Debt of the Company (Company's Material Subsidiaries in an involuntary case, under any applicable bankruptcy, insolvency or other than the Notes) similar law now or hereinafter in effect; or any Subsidiary, and such default shall continue beyond the period of grace, if any, allowed with respect thereto; or (ii) default other similar relief shall be made in the due performance granted under any applicable federal, state, local or observance of any covenant, provision, agreement or condition contained in any document evidencing or providing for the issuance or securing of any such Funded Debt or Current Debt, if the effect of any such default referred to in this clause (ii) is to cause or to permit the holder or holders of such Debt (or a trustee or agent on behalf of such holders) to cause any payment or payments in respect of any such Debt to become due prior to the scheduled due date thereofforeign law.; or
(f) if a decree or order of a court having jurisdiction in the premises for the appointment of a receiver, liquidator, sequestrator, trustee, custodian or other officer having similar powers over the Company or any of its the Company's Subsidiaries or over all or a substantial part of the property of the Company or any of the Company's Subsidiaries shall be entered; or an interim receiver, trustee or other custodian of the Company or any of the Company's Subsidiaries or of all or a substantial part of the property of the Company or any of the Company's Subsidiaries shall be appointed or a warrant of attachment, execution or similar process against any substantial part of the property of the Company or any of the Company's Subsidiaries shall be issued and any such event shall not be stayed, dismissed, bonded or discharged within sixty (60) days after entry, appointment or issuance provided that such Event of Default shall not arise in respect of any Subsidiary of the Company that is not a Material Subsidiary and for which a waiver of any Event of Default (or similar term within the meaning of the Bank Credit Agreement) arising from the foregoing events has been granted to the Company by the requisite percentage of Bank Lenders pursuant to the Bank Credit Agreement prior to the expiry of the preceding sixty (60) day period; or
(g) if the Company or any of the Company's Subsidiaries shall (i) apply commence a voluntary case under any applicable bankruptcy, insolvency or other similar law now or hereafter in effect, (ii) consent to the entry of an order for relief in an involuntary case, or to the conversion of an involuntary case to a voluntary case, under any such law, (iii) consent to the appointment of, of or the taking of possession by, by a receiver, custodian, trustee or liquidator of itself or of other custodian for all or a substantial part of its property, (ii) become insolvent or be generally unable to or shall generally fail or admit in writing its inability to pay its debts as such debts become due, (iiiiv) make a general any assignment for the benefit of its creditors, (iv) commence a voluntary case under the Federal Bankruptcy Code (as now creditors or hereafter in effect), (v) file a petition seeking to take advantage of any bankruptcy, insolvency, moratorium, reorganization or other similar law affecting the enforcement of creditors' rights generally, (vi) acquiesce in writing to, or fail to controvert in a timely or appropriate manner, any petition filed against it in an involuntary case under such Bankruptcy Code, (vii) take any corporate action under the laws of any jurisdiction (foreign or domestic) analogous to any of the foregoing, or (viii) take any action in furtherance of authorize any of the foregoing; provided that such Event of Default shall not arise in respect of any Subsidiary of the Company that is not a Material Subsidiary and for which a waiver of any Event of Default (or similar term within the meaning of the Bank Credit Agreement) arising from the foregoing events has been granted to the Company by the requisite percentage of Bank Lenders pursuant to the Bank Credit Agreement prior to taking any of the foregoing actions; or
(gh) a proceeding if the Company or case any of its Subsidiaries shall be commenced fail to (i) make any payment due on any Indebtedness (other than the Notes or the Senior Bank Obligations) or other obligation (including any in respect of any lease or any Capital Stock upon the exercise by any Person of any put or call option or other similar right of redemption or repurchase with regard to such Shares) when due (subject to applicable grace periods), if the aggregate outstanding amount thereof (and of any other Indebtedness or other obligation as to which the Company or any of its Subsidiaries is in default) exceeds [$__________] (or the equivalent thereof, as at any date of determination, in any other currency) or (ii) perform, observe or discharge any covenant, condition or obligation in any agreement, document or instrument evidencing, securing or relating to such Indebtedness or other obligation, if the effect of any such failure of the character described in this clause (ii) is to cause, or permit such Person to cause, any payment in an aggregate amount of [$__________] (or the equivalent thereof, as at any date of determination, in any other currency) or more to become due and payable, or if any such Indebtedness or other obligation in an aggregate amount of [$__________] (or the equivalent thereof, as at any date of determination, in any other currency) or more shall become due and payable by its terms and shall not be paid or extended; or
(i) if a final judgment for the payment of money which, together with all other outstanding final judgments for the payment of money against the Company or any of its Subsidiaries, without its application exceeds an aggregate of [$__________] (or consentthe equivalent thereof, as at any date of determination, in any other currency) shall be rendered by a court of competent jurisdiction, seeking (i) the liquidation, reorganization, moratorium, dissolution, winding up, or composition or readjustment of its debts, (ii) the appointment of a trustee, receiver, custodian, liquidator or the like of it or of all or any substantial part of its assets, or (iii) similar relief in respect of it under any law providing for the relief of debtors, and such proceeding or case described in clause (i), (ii) or (iii) shall continue undismissed, or unstayed and in effect, for a period of 30 days, or an order for relief shall be entered in an involuntary case under the Federal Bankruptcy Code (as now or hereafter in effect) record against the Company or any of its Subsidiaries Subsidiaries, and shall continue undismissed, or unstayed and in effect, for a period of 15 days; or action under the laws of any jurisdiction (foreign or domestic) analogous to any of the foregoing shall be taken with respect to the Company or any of its Subsidiaries and shall continue undismissed, or unstayed and in effect, for a period of 15 days; or
(h) a final judgment or decree for the payment of money shall be rendered by a court of competent jurisdiction against the Company or any of its Subsidiaries which, either alone or together with other outstanding judgments or decrees against the Company or any one or more of its Subsidiaries, shall aggregate more than $500,000, and the Company or such Subsidiary, as the case may be, shall not discharge the same or provide for its discharge in accordance with its terms terms, or procure a stay of execution thereof within 45 30 days from the date of entry thereof and within such period of 30 days, or within such longer period during which execution of such judgment shall have been stayed, move to vacate such judgment or appeal therefrom and cause the execution thereof to be stayed pending determination of such motion or during such appeal; or
(ij) if any representation or warranty made by or on behalf of the Company or any of its Subsidiaries in this Agreement or in any certificate of the other Operative Documents or other in any agreement, document or instrument delivered hereunder under or pursuant hereto or in connection with to any provision hereof or thereof shall prove to have been materially false or incorrect or breached in any material respect on the date as of which made; or
(k) if, at any time, this Agreement or any of the other Operative Documents shall for any reason (other than the scheduled termination thereof in accordance with its terms) expire, fail to be in full force and effect or be disaffirmed, repudiated, canceled, terminated or declared to be unenforceable, null and void; or
(l) if (i) any Company Group Member Plan shall fail to pay when due satisfy the minimum funding standards of ERISA or the Code for any amount which it shall have become liable to pay to plan year or part thereof or a waiver of such standards or extension of any amortization period is sought or granted under section 412 of the PBGC or to a Plan under Title IV of ERISA; Code, (ii) any Company Group Member shall withdraw from a Multiple Employer Plan during a plan year in which it is a substantial employer (as such term is defined in Section 4001(a)(2) of ERISA), or shall be treated as having so withdrawn under Section 4062(e) of ERISA, or any Multiple Employer Plan shall be terminated; (iii) notice of intent to terminate a any Plan shall have been or Plans shall is reasonably expected to be filed under Title IV of ERISA by any Company Group Member, any plan administrator with the PBGC or any combination of the foregoing; (iv) the PBGC shall institute have instituted proceedings under Title IV section 4042 of ERISA to terminate or to cause appoint a trustee to be appointed to administer any Plan or the PBGC shall have notified the Company or any ERISA Affiliate that a Plan may become a subject of any such proceedings, (iii) the aggregate "amount of unfunded benefit liabilities" (within the meaning of section 4001(a)(18) of ERISA) under all Plans; , determined in accordance with Title IV of ERISA, shall exceed [$__________] (or the equivalent thereof, as at any date of determination, in any other currency), (iv) the Company or any ERISA Affiliate shall have incurred or is reasonably expected to incur any liability pursuant to Title I or IV of ERISA or the penalty or excise tax provisions of the Code relating to employee benefit plans, (v) the Company or any Company Group Member shall withdraw ERISA Affiliate withdraws from any Multiemployer Plan ; Plan, (vi) the Company or any Plan (with Subsidiary of the exception Company establishes or amends any employee welfare benefit plan that provides post-employment welfare benefits in a manner that would increase the liability of any Multiemployer Plan) shall have an Unfunded Current Liability; the Company and/or its Subsidiaries thereunder, or (vii) any prohibited transaction (as defined in Section 406 of ERISA or Section 4975 of the Code) or breach of fiduciary responsibility shall occur which may subject any Company Group Member to any liability under Section 406, 409, 502(i) or 502(l) of ERISA or Section 4975 of the Code, or under any agreement or other instrument pursuant to which such Company Group Member has agreed or is required to indemnify any Person against any such liabilitytermination Event occurs; and there shall result from any such event or events referred to described in the foregoing subdivisions clauses (i) through (vii) above, either individually or together with any other such event or events, has resulted in, or could reasonably be expected to result in, a Material Adverse Effect;
(im) upon acceleration of any Indebtedness under the occurrence on any date Bank Credit Agreement or the Seller Notes, subject to the terms of the Subordination Agreements; or
(n) the IRS shall notify Borrower in writing that it has made a final determination not subject to cure that the ESOP is not a qualified plan and employee stock ownership plan within the meanings of Section 401(a) and 4975(e)(7), respectively, of the Code; then, in the case of any Event of Default (other than one of the character described in clause subdivisions (e), (f) or (g) of this Section section 12.1 with respect to the Company or any Material Subsidiary) and at the option of the Required Holders of the Notes at the time outstanding (excluding any Notes at the time owned by any of the Company or any of its Affiliates), exercised by written notice to the Company, the unpaid principal amount of all NotesNotes shall forthwith become due and payable, together with the interest accrued thereon in accordance with the terms thereof and hereof (which interest shall be deemed matured) and all other amounts payable by the Company hereunder, plus (to the extent permitted by applicable law) the Makewhole Amount (determined as of such date in respect of such principal amount of the Notes) shall automatically become immediately due and payablethereon, without presentment, demand, protest, notice of intention to accelerate, notice of acceleration, protest or other requirements notice of any kind, all of which are hereby expressly waived by waived, and the CompanyCompany shall forthwith upon any such acceleration pay to the holder or holders of all the Notes then outstanding (i) the entire principal of and interest accrued on the Notes, and (ii) in addition, to the extent permitted by applicable law, an amount equal to the premium that would be payable upon a prepayment of the occurrence on any date or during Notes pursuant to section 8.1 at such time, as liquidated damages and not as a penalty; provided that, in the continuance case of any other an Event of Default, the holder or holders of not less than 51% Default of the unpaid principal amount character described in subdivisions (a) or (b) of this section 12.1 and irrespective of whether all of the Notes have been declared due and payable by the Required Holders of the Notes at the time outstanding outstanding, any holder of Notes who or which has not consented to any waiver with respect to such Event of Default may, at the option of such holder, by written notice to the Company, declare the unpaid principal amount of all Notes then held by such holder to be, and the same such Notes shall forthwith thereupon become, forthwith due and payable, together with the interest accrued thereon in accordance with the terms thereof and hereof (which interest shall be deemed matured) and all other amounts payable by the Company hereunder, plus (to the extent permitted by applicable law) the Makewhole Amount (determined as of the date of such declaration in respect of such principal amount of Notes)thereon, without presentment, demand, protest, notice protest or other requirements notice of any kind, all of which are hereby expressly waived by the Company; PROVIDED that, upon the occurrence on any date or during the continuance of an Event of Default described in clause (a) or (b) of this Section with respect to any Note, the holder of such Note may, by written notice to the Company, declare the unpaid principal amount of such Note to bewaived, and the same Company shall forthwith become, due upon any such acceleration pay to such holder (i) the entire principal of and payable, together with the interest accrued thereon on such Notes, and (ii) in accordance with the terms thereof and hereof (which interest shall be deemed matured) and all other amounts payable by the Company hereunder to the holder of such Noteaddition, plus (to the extent permitted by applicable law) , an amount equal to the Makewhole Amount (determined as premium that would be payable upon a prepayment of the date Notes pursuant to section 8.1 at such time, as liquidated damages and not as a penalty; provided, further, that, in the case of an Event of Default of the character described in subdivisions (e), (f) or (g) of this section 12.1 with respect to the Company or any Material Subsidiary, the principal of all Notes shall forthwith become due and payable, together with interest accrued thereon (including any interest accruing after the commencement of any action or proceeding under the federal bankruptcy laws, as now or hereafter constituted, or any other applicable domestic or foreign federal or state bankruptcy, insolvency or other similar law, and any other interest that would have accrued but for the commencement of such declaration proceeding, whether or not any such interest is allowed as an enforceable claim in respect of such principal amount of such Noteproceeding), without presentment, demand, protest, notice protest or other requirements notice of any kind, all of which are hereby expressly waived by waived, and the Company. If Company shall forthwith upon any holder of any Note shall exercise the option specified in the proviso such acceleration pay to the preceding sentence, the Company will forthwith give written notice thereof to the holder or holders of all other the Notes then outstanding (i) the entire principal of and interest accrued on the Notes, and (ii) in addition, to the extent permitted by applicable law, an amount equal to the premium that would be payable upon a prepayment of the Notes pursuant to section 8.1 at such time, as liquidated damages and not as a penalty. Notwithstanding the foregoing provisions, at any time after the occurrence of any Event of Default and of notice thereof, if any, by any holder or holders of Notes and each such before any judgment, decree or order for payment of the money due has been obtained by or on behalf of any holder may (whether or not such notice is given or received)holders of the Notes, the Required Holders of the Notes by written notice to the Company, declare may rescind and annul such Event of Default and/or notice of such Event of Default and the consequences thereof with respect to all of the Notes (including any Notes which were accelerated pursuant to the first proviso in the preceding paragraph by any holder or holders on account of an Event of Default of the character described in subdivision (a) or (b) of this section 12.1) if:
(1) the Company has paid a sum sufficient to pay
(A) all overdue installments of interest on all Notes at the rate specified in the Notes;
(B) the principal amount of all (and premium, if any, on) any Notes held which have become due otherwise than by it to be, and the same shall forthwith become, due and payable, together with interest accrued thereon in accordance with the terms such Event of Default or notice thereof and hereof (which interest shall be deemed matured) and all other thereon at the rate for overdue amounts payable by the Company hereunder to the holder of specified in such Notes, plus ; and
(C) to the extent permitted by applicable lawthat payment of such interest is lawful, interest upon overdue interest at the rate for overdue amounts specified in such Notes; and
(2) all Defaults and Events of Default, other than the Makewhole Amount (determined as non-payment of the date principal of Notes which have become due solely by such declaration acceleration, have been cured or waived as provided in respect of section 12. No such principal amount of such Notes), without presentment, demand, protest, notice rescission shall affect any subsequent default or other requirements of impair any kind, all of which are hereby expressly waived by the Companyright consequent thereon.
Appears in 1 contract
Sources: Mezzanine Note Securities Purchase Agreement (Alion Science & Technology Corp)
Events of Default Defined; Acceleration of Maturity. If any of the following conditions or events (each herein called an "EVENT OF DEFAULTEvents of Default") shall occur and be continuing (whatever the for any reason for such Event of Default whatsoever and whether it shall be voluntary or involuntary or come about or be effected by operation of law or pursuant to or in compliance with judicial or governmental or administrative order or action or otherwise):
(a) a. default shall be made in the due and punctual payment of all or any part of the principal of or Makewhole Amount, if any, on any this Note when and as the same shall become due and payable, whether on a date fixed for prepayment, at stated maturity, by acceleration or declarationacceleration, by mandatory redemption or otherwise; or;
(b) b. default shall be made in the due and punctual payment of any interest on any this Note when and as such interest shall become due and payable, and such default shall have continued for a period of three thirty (30) days; or
(c) default shall be made in the due performance or observance c. An "Event of any covenant, provision, agreement or condition contained in SECTION 4(G) or any of SECTIONS 6.2 THROUGH 6.13, both inclusive, and, except in the case of any such default under SECTION 4(G), subdivision (a) of SECTION 6.3, SECTION 6.8, SECTION 6.9 or SECTION 6.10, such default shall have continued for a period of ten days after the earlier of (x) the date on which a Responsible Officer of the Company first has knowledge of such default and (y) the giving of notice to the Company of such default by any holder or holders of a Note or Notes; or
(d) default shall be made in the due performance or observance of any other covenant, provision, agreement or condition contained in this Agreement (other than any default referred to in the foregoing subdivisions (a), (b) and (c) of this SECTION 8.1) and such default shall have continued for a period of 30 days after the earlier of (x) the date on which any Responsible Officer of the Company first has knowledge of such default and (y) the giving of notice to the Company of such default by any holder or holders of a Note or Notes; or
(i) default shall be made in the payment of any amount due, whether on an interest payment date or on a date fixed for prepayment, at stated maturity, by acceleration or declaration or otherwise, under or in respect of any Funded Debt or Current Debt of the Company (other than the Notes) or any Subsidiary, and such default shall continue beyond the period of grace, if any, allowed with respect thereto; or (ii) default shall be made in the due performance or observance of any covenant, provision, agreement or condition contained in any document evidencing or providing for the issuance or securing of any such Funded Debt or Current Debt, if the effect of any such default referred to in this clause (ii) is to cause or to permit the holder or holders of such Debt (or a trustee or agent on behalf of such holders) to cause any payment or payments in respect of any such Debt to become due prior to the scheduled due date thereof; or
(f) the Company or any of its Subsidiaries shall (i) apply for or consent to the appointment of, or the taking of possession by, a receiver, custodian, trustee or liquidator of itself or of all or a substantial part of its property, (ii) become insolvent or be generally unable to or shall generally fail or admit in writing its inability to pay its debts as such debts become due, (iii) make a general assignment for the benefit of its creditors, (iv) commence a voluntary case under the Federal Bankruptcy Code (as now or hereafter in effect), (v) file a petition seeking to take advantage of any bankruptcy, insolvency, moratorium, reorganization or other similar law affecting the enforcement of creditors' rights generally, (vi) acquiesce in writing to, or fail to controvert in a timely or appropriate manner, any petition filed against it in an involuntary case under such Bankruptcy Code, (vii) take any action under the laws of any jurisdiction (foreign or domestic) analogous to any of the foregoing, or (viii) take any action in furtherance of any of the foregoing; or
(g) a proceeding or case shall be commenced in respect of the Company or any of its Subsidiaries, without its application or consent, in any court of competent jurisdiction, seeking (i) the liquidation, reorganization, moratorium, dissolution, winding up, or composition or readjustment of its debts, (ii) the appointment of a trustee, receiver, custodian, liquidator or the like of it or of all or any substantial part of its assets, or (iii) similar relief in respect of it under any law providing for the relief of debtors, and such proceeding or case described in clause (i), (ii) or (iii) shall continue undismissed, or unstayed and in effect, for a period of 30 days, or an order for relief shall be entered in an involuntary case under the Federal Bankruptcy Code (as now or hereafter in effect) against the Company or any of its Subsidiaries and shall continue undismissed, or unstayed and in effect, for a period of 15 days; or action under the laws of any jurisdiction (foreign or domestic) analogous to any of the foregoing shall be taken with respect to the Company or any of its Subsidiaries and shall continue undismissed, or unstayed and in effect, for a period of 15 days; or
(h) a final judgment or decree for the payment of money shall be rendered by a court of competent jurisdiction against the Company or any of its Subsidiaries which, either alone or together with other outstanding judgments or decrees against the Company or any one or more of its Subsidiaries, shall aggregate more than $500,000, and the Company or such Subsidiary, as the case may be, shall not discharge the same or provide for its discharge in accordance with its terms within 45 days from the date of entry thereof or within such longer period during which execution of such judgment shall have been stayed; or
(i) any representation or warranty made by the Company in this Agreement or in any certificate or other instrument delivered hereunder or pursuant hereto or in connection with any provision hereof shall prove to have been false or incorrect or breached in any material respect on the date as of which made; or
(i) any Company Group Member shall fail to pay when due any amount which it shall have become liable to pay to the PBGC or to a Plan under Title IV of ERISA; (ii) any Company Group Member shall withdraw from a Multiple Employer Plan during a plan year in which it is a substantial employer (as such term is defined in Section 4001(a)(2) of ERISA), or shall be treated as having so withdrawn under Section 4062(e) of ERISA, or any Multiple Employer Plan shall be terminated; (iii) notice of intent to terminate a Plan or Plans shall be filed under Title IV of ERISA by any Company Group Member, any plan administrator or any combination of the foregoing; (iv) the PBGC shall institute proceedings under Title IV of ERISA to terminate or to cause a trustee to be appointed to administer any Plan or Plans; (v) any Company Group Member shall withdraw from any Multiemployer Plan ; (vi) any Plan (with the exception of any Multiemployer Plan) shall have an Unfunded Current Liability; or (vii) any prohibited transaction (Default," as defined in Section 406 of ERISA either the Senior Secured Credit Facility Note Purchase Agreement or Section 4975 of the Code) or breach of fiduciary responsibility Indenture, shall occur which may subject any Company Group Member to any liability under Section 406, 409, 502(i) or 502(l) of ERISA or Section 4975 of the Code, or under any agreement or other instrument pursuant to which such Company Group Member has agreed or is required to indemnify any Person against any such liabilityhave occurred and be continuing; and there shall result from any such event or events referred to in the foregoing subdivisions (i) through (vii) a Material Adverse Effect;
(i) then upon the occurrence on any date of any Event of Default described in clause (f) or (g) of this Section with respect to the Company, the unpaid principal amount of all Notes, together with the interest accrued thereon in accordance with the terms thereof and hereof (which interest shall be deemed matured) and all other amounts payable by the Company hereunder, plus (to the extent permitted by applicable law) the Makewhole Amount (determined as of such date in respect of such principal amount of the Notes) shall automatically become immediately due and payable, without presentment, demand, protest, notice of intention to accelerate, notice of acceleration, or other requirements of any kind, all of which are hereby expressly waived by the Company, and (ii) upon the occurrence on any date or during the continuance of any other Event of Default, the holder or holders of not less than 51% of the unpaid principal amount of the Notes at the time outstanding may, Majority Noteholders by written notice to the Company, may declare the unpaid principal amount of all Notes to be, and the same shall forthwith become, due and payable, together with the interest accrued thereon in accordance with the terms thereof and hereof (which interest shall be deemed matured) and all other amounts payable by the Company hereunder, plus (to the extent permitted by applicable law) the Makewhole Amount (determined as of the date of such declaration in respect of such principal amount of Notes)provided, without presentment, demand, protest, notice or other requirements of any kind, all of which are hereby expressly waived by the Company; PROVIDED that, upon the occurrence on any date or during the continuance existence of an Event of Default described in under clause (a) or (b) of this Section 7.1 with respect to any Note, the holder Holder of such Note mayNote, by written notice to the Company, may declare the unpaid principal amount of such Note to be, and the same shall forthwith become, due and payable, together with the interest accrued thereon in accordance with the terms thereof and hereof (which interest shall be deemed matured) and all other amounts payable by the Company hereunder to the holder of such Note, plus (to the extent permitted by applicable law) the Makewhole Amount (determined as of the date of such declaration in respect of such principal amount of such Note), without presentment, demand, protest, notice or other requirements of any kind, all of which are hereby expressly waived by the Companyhereunder. If any holder Holder of any Note shall exercise the option specified in the proviso to the preceding sentence, the Company will forthwith give written notice thereof to the holders Holders of all other outstanding Notes and each such holder may Holder (whether or not such notice is given or received), by written notice to the Company, may declare the principal amount of all Notes held by it to be, and the same shall forthwith become, due and payable, together with the interest accrued thereon in accordance with the terms thereof and hereof (which interest shall be deemed matured) and all other amounts payable by the Company hereunder hereunder. The provisions of this Section are subject, however, to the holder condition that if, at any time after any Note shall have so become due and payable, the Company shall pay all arrears of interest on such NotesNote and all payments on account of the principal on such Note and any other amounts owing which shall have become due otherwise than by acceleration (with interest on such principal, plus (and, to the extent permitted by applicable law, on overdue payments of interest, at the rate specified in the Notes) and all Events of Default (other than nonpayment of principal of and accrued interest on Notes, due and payable solely by virtue of acceleration) shall be remedied or waived pursuant to Section 8, then, and in every such case, the Makewhole Amount (determined as of the date of such declaration in respect of such principal amount of such Notes)Majority Noteholders, without presentment, demand, protest, by written notice or other requirements of any kind, all of which are hereby expressly waived by to the Company, may rescind and annul any such acceleration and its consequences; but no such action shall affect any subsequent Event of Default or impair any right consequent thereon.
Appears in 1 contract
Sources: Intercompany Senior Secured Note (Horseshoe Gaming LLC)
Events of Default Defined; Acceleration of Maturity. RESCISSION -------------------------------------------------------------- AND ANNULMENT. If any of the following conditions or events (each herein called an ------------- "EVENT OF DEFAULTEvents of Default") shall occur and be continuing (whatever the reason for such Event of Default and whether it shall be voluntary or involuntary or come about or be effected by operation of law or pursuant to or in compliance with judicial or governmental or administrative order or order, action or otherwise):
(a) default shall be made in the due and punctual payment of all or any part of the principal of or Makewhole Amount, Amount (if any, ) on any Note when and as the same shall become due and payable, whether on a date fixed for prepaymentrequired prepayment or purchase, at stated maturity, by acceleration or declaration, or on a date fixed for an optional prepayment by notice thereof otherwise; or
(b) default shall be made in the due and punctual payment of any interest on any Note when and as such interest shall become due and payable, payable or in the due and punctual payment of any other amounts due and payable hereunder (other than a default pursuant to Section 8.1(a) hereof) and such default shall have continued for a period of three five days; or
(c) default shall be made in the due performance or observance of any covenant, provision, agreement or condition contained in SECTION 4(GSection 4(f) or any of SECTIONS 6.2 THROUGH 6.13in Sections 6.1, both inclusive, and, except in the case of any such default under SECTION 4(G), subdivision (a) of SECTION 6.3, SECTION 6.8, SECTION 6.9 6.5 or SECTION 6.10, such default shall have continued for a period of ten days after the earlier of (x) the date on which a Responsible Officer of the Company first has knowledge of such default and (y) the giving of notice to the Company of such default by any holder or holders of a Note or Notes6.6; or
(d) default shall be made in the due performance or observance of any other covenant, provision, agreement or condition contained in this Agreement (other than any default referred to in the foregoing subdivisions (a), (b) and (c) of this SECTION 8.1) and such default shall have continued for a period of 30 days after the earlier of (x) the date on which any Responsible Senior Officer of the Company General Partner of the Issuer shall have first has obtained knowledge of such default and (y) the giving of through notice to the Company of such default by any holder or holders of a Note or Notesotherwise); or
(i) default shall be made in the payment of any amount duepart of the principal of, whether on an the premium (if any) or the interest on, or any other payment date or on a date fixed for prepayment, at stated maturity, by acceleration or declaration or otherwise, under or of money due in respect of any Funded Debt or Current of, Debt of the Company Issuer or any Restricted Subsidiary for money borrowed in an aggregate principal amount of at least $15,000,000 (other than the Notes) or ), beyond any Subsidiary, and such default shall continue beyond the period of grace, if any, allowed grace provided with respect thereto; , or (ii) default shall be made in the due performance or observance of any covenantother agreement, provision, agreement term or condition contained in any document or documents evidencing or providing for the issuance securing Debt, or securing of in any such Funded agreement or agreements under which Debt was issued or Current Debtcreated, in each case, if the effect of any one or more such default referred to in this clause (ii) defaults is to cause or to permit the holder or holders of such Debt (or a trustee or agent on behalf of such holders) to cause any payment or payments in respect of any such Debt aggregating not less than $15,000,000 (other than the Notes) to become due prior to the scheduled Scheduled due date thereofor dates thereof or (iii) as a consequence of the occurrence or continuation of any event or condition (other than the passage of time or the right of the holder or holders of any Debt to convert such Debt into equity interests), (x) the Issuer or any Restricted Subsidiary has become obligated obligation to purchase Debt (other than the Notes) before its regular maturity or before its regularly scheduled dates of payment in an aggregate outstanding principal amount of at least $15,000,000 or (y) one or more Persons required the Issuer or any Restricted Subsidiary so to purchase any such Debt in an aggregate principal amount of a least $15,000,000; or
(f) the Company Guarantor, the Issuer or any of its Subsidiaries Restricted Subsidiary shall (i) apply for or consent to the appointment of, or the taking of possession by, a receiver, custodian, trustee or liquidator of itself or of all or a substantial part of its property, (ii) become insolvent or be generally unable to or shall generally fail or admit in writing its inability to pay its debts as such debts become due, (iii) make a general assignment for the benefit of its creditors, (iv) commence a voluntary case under the Federal Bankruptcy Code (as now or hereafter in effect), (v) file a petition seeking to take advantage of any bankruptcy, insolvency, moratorium, reorganization or other similar law affecting the enforcement of creditors' rights generallyany jurisdiction, (vi) acquiesce in writing to, or fail to controvert in a timely or appropriate manner, any petition filed against it in an involuntary case under such Bankruptcy Code, (vii) take any action under the laws of any jurisdiction (foreign or domestic) analogous to any of the foregoing, (vii) is adjudicated as insolvent or to be liquidated or (viiiix) take any corporate action in furtherance of any of the foregoing; or
(g) a proceeding or case shall be commenced in respect commenced, without the application or consent of the Company Guarantor, the Issuer or any of its Subsidiaries, without its application or consentRestricted Subsidiary, in any court of competent jurisdiction, seeking (i) the liquidation, reorganization, moratorium, dissolution, winding up, or composition or readjustment of its debts, (ii) the appointment of a trustee, receiver, custodian, liquidator liquidation or the like of it or of all or any substantial part of its assets, or (iii) similar relief in respect of it under any law providing for the relief of debtors, and such proceeding or case described in clause (i), (ii) or (iii) shall continue undismissed, or unstayed and in effect, for a period of 30 days, or an order for relief shall be entered in an involuntary case under the Federal Bankruptcy Code (as now or hereafter in effect) against the Company or any of its Subsidiaries and shall continue undismissed, or unstayed and in effect, for a period of 15 days; or action under the laws of any jurisdiction (foreign or domestic) analogous to any of the foregoing shall be taken with respect to the Company or any of its Subsidiaries and shall continue undismissed, or unstayed and in effect, for a period of 15 60 days; or
(h) a final judgment or decree judgement for the payment of money shall be rendered by a court of competent jurisdiction against the Company Guarantor, the Issuer or any of its Subsidiaries which, either alone or together with other outstanding judgments or decrees against the Company or any one or more of its Subsidiaries, shall aggregate more than $500,000, Restricted Subsidiary and the Company Guarantor, the Issuer or such Restricted Subsidiary, as the case may be, shall not discharge the same or provide for its discharge in accordance with its terms terms, or procure a stay of execution thereof within 45 60 days from the date of entry thereof and within said period of 60 days, or within such longer period during which execution of such judgment shall have been stayed, appeal therefrom and cause the execution thereof to be stayed during such appeal, and such judgment together with all other such judgments not then discharged or then subject to such a stay shall exceed in the aggregate U.S. $5,000,000 (or the equivalent amount of any other currency); or
(i) any representation or warranty made by or on behalf of the Company Issuer or by an officer of the Issuer in this Agreement or in any certificate or other instrument delivered hereunder or pursuant hereto or in connection with any provision hereof shall prove to have been be false or incorrect or breached in any material respect on the date as of which made; or
(j) the Guaranty, or any material provision therein, shall cease to be in full force and effect for any reason other than a release or termination thereof pursuant to the terms of the Guaranty or the Guarantor shall contest or purport to repudiate or disavow any of its obligations thereunder or the validity or enforceability thereof; or
(k) there shall occur any Guaranty Event of Default; or
(l) there shall occur a Change of Control; or
(m) any ERISA Event shall have occurred with respect to any Plan or Multiemployer Plan and, thirty days thereafter (i) any Company Group Member such ERISA Event shall fail to pay when due any amount which it shall have become liable to pay to the PBGC or to a Plan under Title IV of ERISA; still exist and (ii) the sum (determined as of the date of occurrence of such ERISA Event) of the aggregate liabilities of the Issuer or any Company Group Member ERISA Affiliate related to all such Plans and Multiemployer Plans with respect to which an ERISA Event has occurred exceeds $3,000,000; or
(n) the Guarantor, the Issuer or any Restricted Subsidiary organized as a partnership shall withdraw receive written notice from a Multiple Employer Plan during a plan year in which Governmental Body that it is a substantial employer (as such term is defined in Section 4001(a)(2) of ERISA)intends to treat the Issuer, or shall any Restricted Subsidiary organized as a partnership, as an association taxable as a corporation unless (i) such treatment, if sustained, would not have a Material Adverse Effect or (ii) within 30 days following receipt of such notice, the Issuer provides an opinion of nationally recognized tax counsel addressed to you and the Other Purchasers, such opinion and counsel to be reasonably satisfactory to the holders of at least 66-2/3% in unpaid principal amount of the Notes then outstanding, to the effect that, notwithstanding such notice, the Issuer of such Restricted Subsidiary will be treated as having so withdrawn under Section 4062(e) of ERISA, or any Multiple Employer Plan shall be terminated; (iii) notice of intent to terminate a Plan or Plans shall be filed under Title IV of ERISA by any Company Group Member, any plan administrator or any combination partnership for purposes of the foregoing; (iv) the PBGC shall institute proceedings under Title IV of ERISA to terminate or to cause a trustee to be appointed to administer any Plan or Plans; (v) any Company Group Member shall withdraw from any Multiemployer Plan ; (vi) any Plan (with the exception of any Multiemployer Plan) shall have an Unfunded Current Liability; or (vii) any prohibited transaction (as defined in Section 406 of ERISA or Section 4975 of the Code) or breach of fiduciary responsibility shall occur which may subject any Company Group Member to any liability under Section 406, 409, 502(i) or 502(l) of ERISA or Section 4975 of the Code, or under any agreement or other instrument pursuant tax to which such Company Group Member has agreed or is required notice relates both as of the date of such opinion and during the period to indemnify any Person against any which such liabilitynotice relates; and there shall result from any such event or events referred to in the foregoing subdivisions (i) through (vii) a Material Adverse Effect;then
(i) upon the occurrence on any date of any Event of Default described in clause (f) or (g) of this Section with respect as to the CompanyIssuer, the Guarantor or any Restricted Subsidiary having, individually or in the aggregate, assets with a book value of at least $5,000,000 or annual revenues of at least $2,500,000, the unpaid principal amount of all Notes, Notes automatically become immediately due and payable together with the interest accrued thereon in accordance with the terms thereof and hereof (which interest shall be deemed matured) and all other amounts payable by the Company hereunder), plus (to the full extent permitted by applicable law) the Makewhole Amount (determined as of such date in respect of such principal amount of the Notes) shall automatically become immediately due and payable, without presentment, demand, protest, notice of intention to accelerate, notice of acceleration, or other requirements of any kind, all of which are hereby expressly waived by the CompanyIssuer, and (ii) upon the occurrence on any date or during the and continuance of any other Event of DefaultDefault described in clause (a) or (b), the holder or holders of not less than 51at least 25% of the unpaid principal amount of the Notes at the time outstanding may, by written notice to the CompanyIssuer, declare the unpaid principal amount of all Notes to be, and the same shall forthwith become, due and payable, together with the interest accrued thereon in accordance with the terms thereof and hereof (which interest shall be deemed matured) and all other amounts payable by the Company hereunder), plus (to the full extent permitted by applicable law) the Makewhole Amount (determined as of the date of such declaration in respect of such principal amount of the Notes), without presentment, demand, protest, notice of intention to accelerate, notice of acceleration, or other requirements of any kind, all of which are hereby expressly waived by the Issuer, and furthermore, upon the occurrence and continuance of such an Event of Default, any holder may declare the unpaid principal amount of its own Notes to be due and payable, together with the interest accrued thereon (which interest shall be deemed matured), plus (to the full extent permitted by applicable law) the Makewhole Amount determined in respect of such principal amount of the Notes, without presentment, demand, protest, or other notice or other requirements of any kind, all of which are hereby expressly waived by the Company; PROVIDED that, upon Issuer without regard to the actions of any other holder or holders or (iii) during the occurrence on any date or during the and continuance of an any other Event of Default described in clause (a) or (b) of this Section with respect to any NoteDefault, the holder or holders of such Note at least 50% of the unpaid principal amount of the Notes at the time outstanding may, by written notice to the CompanyIssuer, declare the unpaid principal amount of such Note all Notes to be, and the same shall forthwith become, due and payable, together with the interest accrued thereon in accordance with the terms thereof and hereof (which interest shall be deemed matured) and all other amounts payable by the Company hereunder to the holder of such Note), plus (to the extent permitted by applicable law) the Makewhole Amount (determined as of the date of such declaration in respect of such principal amount of such Note)Notes, without presentment, demand, protest, or other notice or other requirements of any kind, all of which are hereby expressly waived by the CompanyIssuer. If any The Issuer acknowledges, and the parties hereto agree, that each holder of a Note has the right to maintain its investment in the Notes free from repayment by the Issuer (except as herein specifically provided for) and that the provision for payment of a Makewhole Amount by the Issuer in the event that the Notes are prepaid or are accelerated as a result of an Event of Default, is intended to provide compensation for the deprivation of such right under such circumstances. The provisions of this Section are subject, however, to the condition that if, at any time after any Note shall exercise have so become due and payable and prior to the option entry of any judgment for the payment of any monies due on the Notes or pursuant to this Agreement, the Issuer shall pay all arrears of interest on the Notes and all payments on account of the principal of and Makewhole Amount (if any) on the Notes which shall have become due otherwise than by acceleration (with interest on such principal, Makewhole Amount (if any) and, to the extent permitted by law, overdue payments of interest, at the rate specified in the proviso Notes) and all Events of Default (other than nonpayment of principal of and accrued interest on Notes due and payable solely by virtue of acceleration) shall be remedied or waived pursuant to the preceding sentenceSection 12, then, and in every such case, the Company will forthwith give written notice thereof to the holder or holders of all other outstanding at least 66-2/3% in unpaid principal amount of the Notes and each such holder may (whether or not such notice is given or received)at the time outstanding, by written notice to the CompanyIssuer, declare may rescind and annul any such acceleration and its consequences, but no such action shall affect any subsequent Default or Event of Default or impair any right consequent thereon, and furthermore, no such action shall affect, rescind or annul the declaration by any holder, or the right of any holder or declare, upon the occurrence and continuance of any Event of Default declared in clause (a) or (b) of this Section 8.1, the unpaid principal amount of all its own Notes held by it to be, and the same shall forthwith become, be due and payable, together with the interest accrued thereon in accordance with the terms thereof and hereof (which interest shall be deemed matured) and all other amounts payable by the Company hereunder to the holder of such Notesthereon, plus (to the extent permitted by applicable law) the Makewhole Amount Amount, pursuant to clause (determined as ii) of the date of such declaration in respect of such principal amount of such Notes), without presentment, demand, protest, notice or other requirements of any kind, all of which are hereby expressly waived by the Companythis Section 8.1.
Appears in 1 contract
Sources: Restated Note Agreement (National Golf Properties Inc)
Events of Default Defined; Acceleration of Maturity. If any one or more of the following conditions or events (each herein called an "EVENT OF DEFAULTEvents of Default") shall occur and be continuing (whatever the reason for such Event of Default and whether it shall be voluntary or involuntary or come about or be effected by operation of law or pursuant to any judgment, decree or in compliance with judicial order of any court or any order, rule or regulation of any administrative or governmental or administrative order or action or otherwise):body), that is to say:
(a) if default shall be made in the due and punctual payment of all or any part of the principal of of, or Makewhole Amount, premium (if any) on, on any Note when and as the same shall become due and payable, whether on a date fixed at the stated maturity thereof, by notice of or demand for prepayment, at stated maturity, by acceleration or declaration, or otherwise; or;
(b) if default shall be made in the due and punctual payment of any interest on any Note or any fee when and as such interest the same shall become due and payable, payable and such default shall have continued for a period of three days; orBusiness Days;
(c) if default shall be made in the due performance or observance of any covenant, provision, agreement or condition contained in SECTION 4(G) or any of SECTIONS 6.2 THROUGH 6.13sections 7(g), both 8(a), 8(b), 9.6, 13.2(b), 13.5 to 13.7, inclusive, andor 13.9 to 13.19, except in the case of any such default under SECTION 4(G), subdivision (a) of SECTION 6.3, SECTION 6.8, SECTION 6.9 or SECTION 6.10, such default shall have continued for a period of ten days after the earlier of (x) the date on which a Responsible Officer of the Company first has knowledge of such default and (y) the giving of notice to the Company of such default by any holder or holders of a Note or Notes; orinclusive;
(d) if default shall be made in the due performance or observance of any other covenantof the covenants, provision, agreement agreements or condition conditions contained in this Agreement (or any of the other than any default referred to in the foregoing subdivisions (a), (b) and (c) of this SECTION 8.1) Operative Documents and such default shall have continued for a period of 30 days after the earlier to occur of (xi) the date on which any Responsible Officer of the Company first has Holding Company's obtaining actual knowledge of such default and (y) the giving of notice to the Company of such default by any holder or holders of a Note or Notes; or
(i) default shall be made in the payment of any amount due, whether on an interest payment date or on a date fixed for prepayment, at stated maturity, by acceleration or declaration or otherwise, under or in respect of any Funded Debt or Current Debt of the Company (other than the Notes) or any Subsidiary, and such default shall continue beyond the period of grace, if any, allowed with respect thereto; or (ii) default shall be made in the due performance or observance Holding Company's receipt of any covenant, provision, agreement or condition contained in any document evidencing or providing for the issuance or securing written notice of any such Funded Debt or Current Debt, default;
(e) if the effect of any such default referred to in this clause (ii) is to cause or to permit the holder or holders of such Debt (or a trustee or agent on behalf of such holders) to cause any payment or payments in respect of any such Debt to become due prior to the scheduled due date thereof; or
(f) the Holding Company or any Subsidiary of its Subsidiaries the Holding Company shall (i) apply make a general assignment for or consent to the appointment ofbenefit of creditors, or the taking of possession by, a receiver, custodian, trustee or liquidator of itself or of all or a substantial part of its property, (ii) become insolvent or be generally unable to or shall generally fail not pay its debts as they become due, or shall admit in writing its inability to pay its debts as such debts they become due, (iii) make a general assignment for the benefit of its creditors, (iv) commence or shall file a voluntary case under the Federal Bankruptcy Code (as now or hereafter petition in effect), (v) file a petition seeking to take advantage of any bankruptcy, insolvency, moratorium, reorganization or other similar law affecting the enforcement of creditors' rights generally, (vi) acquiesce in writing toshall be adjudicated bankrupt or insolvent, or fail to controvert in shall file 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 shall file any answer admitting or not contesting the material allegations of a timely or appropriate manner, any petition filed against it in an involuntary case under any such Bankruptcy Codeproceeding, or shall seek or consent to or acquiesce in the appointment of any trustee, custodian, receiver, liquidator or fiscal agent for it or for all or any substantial part of its properties, or shall (viior its directors or stockholders shall) take any action looking to its dissolution or liquidation;
(f) if, within 60 days after the commencement of an action against the Holding Company or any Subsidiary of the Holding Company seeking any reorganization, arrangement, composition, readjustment, liquidation, dissolution or 111 similar relief under any present or future statute, law or regulation, such action shall not have been dismissed or all orders or proceedings thereunder affecting the laws operations or the business of the Holding Company or any Subsidiary of the Holding Company stayed, or if the stay of any jurisdiction (foreign such order or domestic) analogous to any proceeding shall thereafter be set aside, or if, within 60 days after the appointment without the consent or acquiescence of the foregoing, Holding Company or (viii) take any action in furtherance Subsidiary of the Holding Company of any trustee, custodian, receiver, liquidator or fiscal agent for the Holding Company or any Subsidiary of the foregoing; orHolding Company or for all or any substantial part of their respective properties, such appointment shall not have been vacated;
(g) a proceeding if, under the provisions of any law for the relief or case aid of debtors, any court or governmental agency of competent jurisdiction shall be commenced in respect assume custody or control of the Holding Company or of any Subsidiary of its Subsidiaries, without its application or consent, in any court of competent jurisdiction, seeking (i) the liquidation, reorganization, moratorium, dissolution, winding up, or composition or readjustment of its debts, (ii) the appointment of a trustee, receiver, custodian, liquidator or the like of it Holding Company or of all or any substantial part of its assets, or (iii) similar relief in respect of it under any law providing for the relief of debtors, their respective properties and such proceeding custody or case described in clause (i), (ii) control shall not be terminated or (iii) shall continue undismissed, stayed within 60 days from the date of assumption of such custody or unstayed and in effect, for a period of 30 days, or an order for relief shall be entered in an involuntary case under the Federal Bankruptcy Code (as now or hereafter in effect) against the Company or any of its Subsidiaries and shall continue undismissed, or unstayed and in effect, for a period of 15 days; or action under the laws of any jurisdiction (foreign or domestic) analogous to any of the foregoing shall be taken with respect to the Company or any of its Subsidiaries and shall continue undismissed, or unstayed and in effect, for a period of 15 days; orcontrol;
(h) if the Holding Company or any Subsidiary of the Holding Company shall fail to (i) make any payment due on any Indebtedness (other than the Notes) or other obligation (including any in respect of any performance bond, bid bond or lease or any Shares upon the exercise by any Person of any put or call option or other similar right of redemption or repurchase with regard to such Shares), if the aggregate outstanding amount thereof (and of any other Indebtedness or other obligation as to which the Holding Company or any Subsidiary of the Holding Company is in default) exceeds $3,000,000 (or the equivalent thereof, as of any date of determination, in any other currency), or (ii) perform, observe or discharge any covenant, condition or obligation in any agreement, document or instrument evidencing, securing or relating to such Indebtedness or other obligation, if the effect of any such failure of the character described in this clause (h) is to cause, or any other Person shall cause, any payment in respect thereof in an aggregate amount of $3,000,000 (or the equivalent thereof, as of any date of determination, in any other currency) or more to become due and payable;
(i) if a final judgment or decree judgments for the payment of money which, together with all other outstanding final judgments for the payment of money against the Holding Company and/or any Subsidiary of the Holding Company (excluding any judgment or judgments as to which a financially sound and reputable insurance company (having the highest or second highest rating available from A.M. Best Holding Company or an equivalent Person) has accepted full liability in writing), exceeds an aggregate of $1,000,000 (or the equivalent thereof, as of any date of determination, in any other currency) shall be rendered by a court of competent jurisdiction against the Holding Company or any Subsidiary of its Subsidiaries whichthe Holding Company which judgments are not, either alone within 60 days after entry thereof, discharged or together with other outstanding judgments stayed pending appeal, or decrees against are not discharged within 60 days after the Company or any one or more of its Subsidiaries, shall aggregate more than $500,000, and the Company or such Subsidiary, as the case may be, shall not discharge the same or provide for its discharge in accordance with its terms within 45 days from the date of entry thereof or within such longer period during which execution expiration of such judgment shall have been stayed; orstay;
(ij) if any representation or warranty made by or on behalf of the Holding Company or any Subsidiary of the Holding Company in this Agreement or in any certificate of the other Operative Documents or other in any agreement, document or instrument delivered hereunder under or pursuant hereto or in connection with to any provision hereof or thereof shall prove to have been false or incorrect or breached in any material respect on the date as of which made;
(k) if, at any time, this Agreement or any of the other Operative Documents shall for any reason (other than the scheduled termination thereof in accordance with its terms) expire, fail to be in full force and effect or be disaffirmed, repudiated, cancelled, terminated or declared to be unenforceable, null and void; or
(l) if (i) any Company Group Member Plan shall fail to pay when due satisfy the minimum funding standards of ERISA or the Code for any amount which it shall have become liable to pay to plan year or part thereof or a waiver of such standards or extension of any amortization period is sought or granted under section 412 of the PBGC or to a Plan under Title IV of ERISA; Code, (ii) any Company Group Member shall withdraw from a Multiple Employer Plan during a plan year in which it is a substantial employer (as such term is defined in Section 4001(a)(2) of ERISA), or shall be treated as having so withdrawn under Section 4062(e) of ERISA, or any Multiple Employer Plan shall be terminated; (iii) notice of intent to terminate a any Plan shall have been or Plans shall is reasonably expected to be filed under Title IV of ERISA by any Company Group Member, any plan administrator with the PBGC or any combination of the foregoing; (iv) the PBGC shall institute have instituted proceedings under Title IV section 4042 of ERISA to terminate or to cause appoint a trustee to be appointed to administer any Plan or the PBGC shall have notified the Holding Company or any ERISA Affiliate that a Plan may become a subject of any such proceedings, (iii) the aggregate "amount of unfunded benefit liabilities" (within the meaning of section 4001(a)(18) of ERISA) under all Plans; , determined in accordance with Title IV of ERISA, shall exceed $500,000 (or the equivalent thereof, as of any date of determination, in any other currency), (iv) the Holding Company or any ERISA Affiliate shall have incurred or is reasonably expected to incur any liability pursuant to Title I or IV of ERISA or the penalty or excise tax provisions of the Code relating to employee benefit plans, (v) the Holding Company or any Company Group Member shall withdraw ERISA Affiliate withdraws from any Multiemployer Plan ; Plan, or (vi) the Holding Company or any Plan (with the exception of any Multiemployer Plan) shall have an Unfunded Current Liability; or (vii) any prohibited transaction (as defined in Section 406 of ERISA or Section 4975 Subsidiary of the Code) Holding Company establishes or breach of fiduciary responsibility shall occur which may subject amends any Company Group Member to any employee welfare benefit plan that provides post-employment welfare benefits in a manner that would increase the liability under Section 406, 409, 502(i) or 502(l) of ERISA or Section 4975 of the Code, Holding Company or under any agreement or other instrument pursuant to which such Subsidiary of the Holding Company Group Member has agreed or is required to indemnify any Person against any such liabilitythereunder; and there shall result from any such event or events referred to described in the foregoing subdivisions clauses (i) through (viivi) above, either individually or together with any other such event or events, has resulted in, or could reasonably be expected to result in, a Material Adverse Effect;
(i) liability in excess of $1,000,000; then, upon the occurrence on any date and during the continuance of any Event of Default (other than one of the character described in clause clauses (e), (f) or (g) of this Section with respect to the Company, the unpaid principal amount of all Notes, together with the interest accrued thereon in accordance with the terms thereof and hereof (which interest shall be deemed maturedsection 15.1) and all other amounts payable by at the Company hereunder, plus (to option of the extent permitted by applicable law) the Makewhole Amount (determined as holder or holders of such date 66-2/3% or more in respect of such aggregate principal amount of the Notes) Notes at the time outstanding (excluding any Notes at the time owned by the Holding Company or any Affiliate of the Holding Company), exercised by written notice to the Obligor, the principal of all Notes shall automatically forthwith become immediately due and payable, together with interest accrued thereon, without presentment, demand, protest, notice of intention to accelerate, notice of acceleration, protest or other requirements notice of any kind, all of which are hereby expressly waived by the Companywaived, and (ii) the Obligor shall forthwith upon the occurrence on any date or during the continuance of any other Event of Default, such acceleration pay to the holder or holders of all the Notes then outstanding (i) the entire principal of and interest accrued on the Notes and (ii) in addition, to the extent permitted by applicable law, an amount equal to the Make Whole Amount or the Applicable Premium, as applicable, as liquidated damages and not less than 51% as a penalty; provided that, in the case of an Event of Default of the unpaid character described in clauses (a) or (b) of this section 15.1 and irrespective of whether all of the Notes have been declared due and payable by the holder or holders of 66-2/3% or more in aggregate principal amount of the Notes at the time outstanding outstanding, any holder of Notes who or which has not consented to any waiver with respect to such Event of Default may, at the option of such holder, by written notice to the CompanyObligor, declare the unpaid principal amount of all Notes then held by such holder to be, and the same such Notes shall forthwith thereupon become, forthwith due and payable, together with the interest accrued thereon in accordance with the terms thereof and hereof (which interest shall be deemed matured) and all other amounts payable by the Company hereunder, plus (to the extent permitted by applicable law) the Makewhole Amount (determined as of the date of such declaration in respect of such principal amount of Notes)thereon, without presentment, demand, protest, notice protest or other requirements notice of any kind, all of which are hereby expressly waived waived, and the Obligor shall forthwith upon any such acceleration pay to such holder (i) the entire principal of and interest accrued on such Notes, and (ii) in addition, to the extent permitted by applicable law, an amount equal to the CompanyMake Whole Amount or the Applicable Premium, as applicable, as liquidated damages and not as a penalty; PROVIDED provided, further, that, upon in the occurrence on any date or during the continuance case of an Event of Default of the character described in 113 clauses (e), (f) or (g) of this section 15.1, the principal of all Notes shall forthwith become due and payable, together with interest accrued thereon (including any interest accruing after the commencement of any action or proceeding under the federal bankruptcy laws, as now or hereafter constituted, or any other applicable domestic or foreign federal or state bankruptcy, insolvency or other similar law, and any other interest that would have accrued but for the commencement of such proceeding, whether or not any such interest is allowed as an enforceable claim in such proceeding), without presentment, demand, protest or other notice of any kind, all of which are hereby expressly waived, and the Obligor shall forthwith upon any such acceleration pay to the holder or holders of all the Notes then outstanding (i) the entire principal of and interest accrued on the Notes, and (ii) in addition, to the extent permitted by applicable law, an amount equal to the Make Whole Amount or the Applicable Premium, as applicable, as liquidated damages and not as a penalty. Notwithstanding the foregoing provisions, at any time after the occurrence of any Event of Default and of notice thereof, if any, by any holder or holders of Notes and before any judgment, decree or order for payment of the money due has been obtained by or on behalf of any holder or holders of the Notes, the Required Holders of the Notes by written notice to the Obligor, may rescind and annul such Event of Default and/or notice of such Event of Default and the consequences thereof with respect to all of the Notes (including any Notes which were accelerated pursuant to the first proviso in the preceding paragraph by any holder or holders on account of an Event of Default of the character described in clause (a) or (b) of this Section with respect section 15.1) if:
(1) the Obligor has paid a sum sufficient to pay
(A) all overdue interest on all Notes;
(B) the principal of (and premium, if any, on) any NoteNotes which have become due otherwise than by such Event of Default or notice thereof; and
(C) interest on such overdue principal (and premium, the holder of such Note mayif any) and, by written notice to the Company, declare the unpaid principal amount of such Note to be, and the same shall forthwith become, due and payable, together with the interest accrued thereon in accordance with the terms thereof and hereof (which interest shall be deemed matured) and all other amounts payable by the Company hereunder to the holder of such Note, plus (to the extent permitted that payment of such interest is lawful, interest upon overdue interest, all at the rate for overdue amounts specified in such Notes; and
(2) all Defaults and Events of Default, other than the non-payment of amounts which have become due solely by applicable law) the Makewhole Amount (determined such acceleration, have been cured or waived as provided in section 18. No such rescission shall affect any subsequent default or impair any right consequent thereon. The holder or holders of the date of such declaration in respect of such principal amount of such Note), without presentment, demand, protest, notice or other requirements of any kind, all of which are hereby expressly waived by the Company. If any holder of any Note shall exercise the option specified in the proviso Notes will endeavor to the preceding sentence, the Company will forthwith give written notice thereof furnish to the holders of all other outstanding Notes and each Superior Indebtedness (or their agent or representative) copies of any notice furnished by such holder may (whether or not holders of the Notes to the Obligor of the occurrence of an Event of Default and of the acceleration of the Notes pursuant to this section 15.1, provided that the failure to furnish such notice is given or received), by written copies of any such notice to the Company, declare holder or holders of the principal amount Superior Indebtedness shall not be actionable by any Person and shall not have any effect upon any of all Notes held by it to be, and the same shall forthwith become, due and payable, together with interest accrued thereon in accordance with the terms thereof and hereof (which interest shall be deemed matured) and all other amounts payable by the Company hereunder to rights of the holder of such Notes, plus (to the extent permitted by applicable law) the Makewhole Amount (determined as or holders of the date of such declaration in respect of such principal amount of such Notes), without presentment, demand, protest, notice or other requirements Notes on account of any kind, all Event of which are hereby expressly waived by the CompanyDefault or otherwise.
Appears in 1 contract
Events of Default Defined; Acceleration of Maturity. If any one or more of the following conditions or events (each herein called an "EVENT OF DEFAULTEvents of Default") shall occur and be continuing (whatever the reason for such Event of Default and whether it shall be voluntary or involuntary or come about or be effected by operation of law or pursuant to or in compliance with judicial or governmental or administrative order or action or otherwise):have occurred:
(a) default shall be made in the due and punctual payment of all or any part of the principal of or Makewhole Amount, if any, on any the Note is not paid when and as the same shall become due and payable, whether on a date fixed for prepayment, at stated maturitythe maturity thereof, by acceleration or declarationacceleration, or otherwise; or;
(b) default shall be made in all or any part of the due and punctual payment of any interest on any the Note is not paid within three days of the date when and as such interest the same shall become due and payable, and such default shall have continued for a period of three days; or;
(c) default shall be made in the due performance all or observance any part of any covenant, provision, agreement other amount owing to Purchaser pursuant to the terms of this Agreement or condition contained in SECTION 4(G) or any the Note is not paid within three days of SECTIONS 6.2 THROUGH 6.13, both inclusive, and, except in the case of any such default under SECTION 4(G), subdivision (a) of SECTION 6.3, SECTION 6.8, SECTION 6.9 or SECTION 6.10, such default shall have continued for a period of ten days after the earlier of (x) the date on which a Responsible Officer of the Company first has knowledge of when such default other amount is due and (y) the giving of notice to the Company of such default by any holder or holders of a Note or Notes; orpayable;
(d) default shall be made occur in the due observance or performance or observance of any covenant contained in Article IV of this Agreement;
(e) default shall occur in the observance or performance of any of the other covenant, provision, agreement covenants or condition agreements of the Sellers contained in this Agreement (Agreement, any other than Operative Document or any default referred to in other agreement evidencing Indebtedness by the foregoing subdivisions (a)Sellers or any of their Subsidiaries, (b) and (c) of this SECTION 8.1) and such default shall have continued for a period of 30 which is not remedied within ten days after the earlier of (x) the date on which any Responsible Officer of the Company first has knowledge of such default and (y) the giving of notice thereof to the Company of such default by any holder or holders of a Note or Notes; or
(i) default shall be made in the payment of any amount due, whether on an interest payment date or on a date fixed for prepayment, at stated maturity, by acceleration or declaration or otherwise, under or in respect of any Funded Debt or Current Debt of the Company (other than the Notes) or any Subsidiary, and such default shall continue beyond the period of grace, if any, allowed with respect thereto; or (ii) default shall be made in the due performance or observance of any covenant, provision, agreement or condition contained in any document evidencing or providing for the issuance or securing of any such Funded Debt or Current Debt, if the effect of any such default referred to in this clause (ii) is to cause or to permit the holder or holders of such Debt (or a trustee or agent on behalf of such holders) to cause any payment or payments in respect of any such Debt to become due prior to the scheduled due date thereof; orCompany;
(f) the Company a receiver, conservator, custodian, liquidator or trustee of any Seller or any of its Subsidiaries shall (i) apply for or consent to the appointment of, or the taking of possession by, a receiver, custodian, trustee or liquidator of itself or of all or a substantial part any of the assets of any of them, is appointed by court order and such order remains in effect for more than 30 days; or an order for relief is entered under the federal or any foreign bankruptcy laws with respect to any Seller or any of its propertySubsidiaries; or any of the material assets of any of them is sequestered by court order and such order remains in effect for more than 30 days; or a petition is filed against any Seller or any of its Subsidiaries under the bankruptcy, reorganization, moratorium, arrangement, insolvency, readjustment of debt, dissolution, liquidation, or other similar law of any applicable Governmental Authority, whether now or hereafter in effect, and is not dismissed within 60 days after such filing;
(iig) become insolvent any Seller or be generally unable any of its Subsidiaries files a petition in voluntary bankruptcy or seeking relief under any provision of any bankruptcy, reorganization, moratorium, arrangement, insolvency, readjustment of debt, dissolution, liquidation, or other similar law of any applicable Governmental Authority, whether now or hereafter in effect, or consents to the filing of any petition against it under any such law;
(h) any Seller or shall generally fail or admit in writing any of its inability to pay its debts as such debts become due, (iii) make Subsidiaries makes a general assignment for the benefit of its creditors, (iv) commence or admits in writing its inability to pay its debts generally as they become due, or consents to the appointment of a voluntary case under the Federal Bankruptcy Code (as now receiver, conservator, custodian, liquidator or hereafter in effect), (v) file a petition seeking to take advantage trustee of any bankruptcy, insolvency, moratorium, reorganization or other similar law affecting the enforcement of creditors' rights generally, (vi) acquiesce in writing to, or fail to controvert in a timely or appropriate manner, any petition filed against it in an involuntary case under such Bankruptcy Code, (vii) take any action under the laws of any jurisdiction (foreign or domestic) analogous to any of the foregoing, or (viii) take any action in furtherance of any of the foregoing; or
(g) a proceeding or case shall be commenced in respect of the Company Seller or any of its Subsidiaries, without its application or consent, in any court of competent jurisdiction, seeking (i) the liquidation, reorganization, moratorium, dissolution, winding up, or composition or readjustment of its debts, (ii) the appointment of a trustee, receiver, custodian, liquidator or the like of it or of all or any substantial part of its assets, or (iii) similar relief in respect the assets of it under any law providing for the relief of debtors, and such proceeding or case described in clause them;
(i), (ii) or (iii) shall continue undismissed, or unstayed and in effect, for a period of 30 days, or an order for relief shall be entered in an involuntary case under the Federal Bankruptcy Code (as now or hereafter in effect) against the Company or any of its Subsidiaries and shall continue undismissed, or unstayed and in effect, for a period of 15 days; or action under the laws of any jurisdiction (foreign or domestic) analogous to any of the foregoing shall be taken with respect to the Company or any of its Subsidiaries and shall continue undismissed, or unstayed and in effect, for a period of 15 days; or
(h) a final judgment or decree for the payment of money in excess of $100,000 shall be rendered by a court of competent jurisdiction record against the Company any Seller or any of its Subsidiaries which, either alone or together with other outstanding judgments or decrees against the Company or any one or more of its Subsidiaries, shall aggregate more than $500,000, and the Company or such Subsidiary, as the case may be, Seller or such Subsidiary shall not (i) discharge the same or provide for its discharge in accordance with its terms or (ii) procure a stay of execution thereof within 45 15 days from the date of entry thereof and within said period of 15 days, or within such longer period during which execution of such judgment shall have been stayed; or, appeal therefrom and cause the execution thereof to be stayed during such appeal including, without limitation, by providing adequate bond for such judgment;
(ij) any representation representation, warranty, or warranty certification made by the Company any Seller or any of its Subsidiaries, or any of their officers in this Agreement or any other Operative Document or in any certificate certificate, report, Financial Statement, or other instrument delivered hereunder under or pursuant hereto or in connection with to any provision hereof or thereof shall prove to have been false or incorrect or breached in any material respect on the date or dates as of which they were made; or;
(k) if (i) any Company Group Member Plan shall fail to pay when due satisfy the minimum funding standards of ERISA or the Code for any amount which it shall have become liable to pay to Plan year or part thereof or a waiver of such standards or extension of any amortization period is sought or granted under Section 4.12 of the PBGC or to a Plan under Title IV of ERISA; Code, (ii) any Company Group Member shall withdraw from a Multiple Employer Plan during a plan year in which it is a substantial employer (as such term is defined in Section 4001(a)(2) of ERISA), or shall be treated as having so withdrawn under Section 4062(e) of ERISA, or any Multiple Employer Plan shall be terminated; (iii) notice of intent to terminate a any Plan shall have been or Plans shall is reasonably expected to be filed under Title IV of ERISA by any Company Group Member, any plan administrator with the PBGC or any combination of the foregoing; (iv) the PBGC shall institute have instituted proceedings under Title IV of ERISA Section 4042 to terminate or to cause appoint a trustee to be appointed to administer any Plan or Plans; (v) any Company Group Member shall withdraw from any Multiemployer Plan ; (vi) any Plan (with the exception of any Multiemployer Plan) PBGC shall have an Unfunded Current Liability; or (vii) any prohibited transaction (as defined in Section 406 of ERISA or Section 4975 of the Code) or breach of fiduciary responsibility shall occur which may subject any Company Group Member to any liability under Section 406, 409, 502(i) or 502(l) of ERISA or Section 4975 of the Code, or under any agreement or other instrument pursuant to which such Company Group Member has agreed or is required to indemnify any Person against any such liability; and there shall result from any such event or events referred to in the foregoing subdivisions (i) through (vii) a Material Adverse Effect;
(i) upon the occurrence on any date of any Event of Default described in clause (f) or (g) of this Section with respect to the Company, the unpaid principal amount of all Notes, together with the interest accrued thereon in accordance with the terms thereof and hereof (which interest shall be deemed matured) and all other amounts payable by notified the Company hereunder, plus (to the extent permitted by applicable law) the Makewhole Amount (determined as of such date in respect of such principal amount of the Notes) shall automatically become immediately due and payable, without presentment, demand, protest, notice of intention to accelerate, notice of acceleration, or other requirements of any kind, all of which are hereby expressly waived by the Company, and (ii) upon the occurrence on any date or during the continuance of any other Event of Default, the holder or holders of not less than 51% of the unpaid principal amount of the Notes at the time outstanding may, by written notice to the Company, declare the unpaid principal amount of all Notes to be, and the same shall forthwith become, due and payable, together with the interest accrued thereon in accordance with the terms thereof and hereof (which interest shall be deemed matured) and all other amounts payable by the Company hereunder, plus (to the extent permitted by applicable law) the Makewhole Amount (determined as of the date of such declaration in respect of such principal amount of Notes), without presentment, demand, protest, notice or other requirements of any kind, all of which are hereby expressly waived by the Company; PROVIDED that, upon the occurrence on any date or during the continuance of an Event of Default described in clause (a) or (b) of this Section with respect to any Note, the holder of such Note may, by written notice to the Company, declare the unpaid principal amount of such Note to be, and the same shall forthwith become, due and payable, together with the interest accrued thereon in accordance with the terms thereof and hereof (which interest shall be deemed matured) and all other amounts payable by the Company hereunder to the holder of such Note, plus (to the extent permitted by applicable law) the Makewhole Amount (determined as of the date of such declaration in respect of such principal amount of such Note), without presentment, demand, protest, notice or other requirements of any kind, all of which are hereby expressly waived by the Company. If any holder of any Note shall exercise the option specified in the proviso to the preceding sentence, the Company will forthwith give written notice thereof to the holders of all other outstanding Notes and each such holder may (whether or not such notice is given or received), by written notice to the Company, declare the principal amount of all Notes held by it to be, and the same shall forthwith become, due and payable, together with interest accrued thereon in accordance with the terms thereof and hereof (which interest shall be deemed matured) and all other amounts payable by the Company hereunder to the holder of such Notes, plus (to the extent permitted by applicable law) the Makewhole Amount (determined as of the date of such declaration in respect of such principal amount of such Notes), without presentment, demand, protest, notice or other requirements of any kind, all of which are hereby expressly waived by the Company.any
Appears in 1 contract
Sources: Note and Warrant Purchase Agreement (Harris James T)
Events of Default Defined; Acceleration of Maturity. If any of the following conditions or events (each herein called an "EVENT EVENTS OF DEFAULT") shall occur and be continuing (whatever the for any reason for such Event of Default whatsoever and whether it shall be voluntary or involuntary or come about or be effected by operation of law or pursuant to or in compliance with judicial or governmental or administrative order or action or otherwise):
(a) A. default shall be made in the due and punctual payment of all or any part of the principal of of, or Makewhole Amountinterest on, if any, on any the Note when and as the same shall become due and payable, whether on a date fixed for prepayment, at stated maturity, by acceleration or declarationacceleration, upon a mandatory prepayment due date or otherwise, and such default is not cured within five (5) Business Days; or
(b) B. default shall be made in the due and punctual payment performance or observance of any interest on covenant, agreement or condition contained herein or in any Note when and as such interest shall become due and payableof the other Loan Documents, and such default shall have continued for a period of three daysfive (5) Business Days; or
(c) default shall be made in the due performance or observance of any covenant, provision, agreement or condition contained in SECTION 4(G) or any of SECTIONS 6.2 THROUGH 6.13, both inclusive, and, except in the case of any such default under SECTION 4(G), subdivision (a) of SECTION 6.3, SECTION 6.8, SECTION 6.9 or SECTION 6.10, such default shall have continued for a period of ten days after the earlier of (x) the date on which a Responsible Officer of C. the Company first has knowledge of such default and (y) the giving of notice to the Company of such default by any holder or holders of a Note or Notes; or
(d) default shall be made in the due performance or observance of any other covenant, provision, agreement or condition contained in this Agreement (other than any default referred to in the foregoing subdivisions (a), (b) and (c) of this SECTION 8.1) and such default shall have continued for a period of 30 days after the earlier of (x) the date on which any Responsible Officer of the Company first has knowledge of such default and (y) the giving of notice to the Company of such default by any holder or holders of a Note or Notes; or
(i) default shall be made in the payment of any amount due, whether on an interest payment date or on a date fixed for prepayment, at stated maturity, by acceleration or declaration or otherwise, under or in respect of any Funded Debt or Current Debt of the Company (other than the Notes) or any Subsidiary, and such default shall continue beyond the period of grace, if any, allowed with respect thereto; or (ii) default shall be made in the due performance or observance of any covenant, provision, agreement or condition contained in any document evidencing or providing for the issuance or securing of any such Funded Debt or Current Debt, if the effect of any such default referred to in this clause (ii) is to cause or to permit the holder or holders of such Debt (or a trustee or agent on behalf of such holders) to cause any payment or payments in respect of any such Debt to become due prior to the scheduled due date thereof; or
(f) the Company or any of its Subsidiaries shall (i1) apply for or consent to the appointment of, or the taking of possession by, a receiver, custodian, trustee or liquidator of itself or of all or a substantial part of its propertyproperty and assets, (ii2) become insolvent or be generally unable to or shall generally fail or admit in writing its inability to pay its debts as such debts become due, (iii3) make a general assignment for the benefit of its creditors, (iv4) commence a voluntary case under the Federal United States Bankruptcy Code or similar law or regulation (as now or hereafter in effect), (v5) file a petition seeking to take advantage of any bankruptcy, insolvency, moratorium, reorganization or other similar law affecting providing for the enforcement relief of creditors' rights generallydebtors, (vi6) acquiesce in writing to, or fail to controvert in a timely or appropriate manner, or acquiesce in writing to, any petition filed against it in an involuntary case under such Bankruptcy CodeCode or other law or regulation, (vii7) dissolve, (8) take any corporate action under the laws of any jurisdiction (foreign or domestic) applicable law analogous to any of the foregoing, or (viii9) take any corporate action in furtherance for the purpose of effecting any of the foregoing; or
(g) D. a proceeding or case shall be commenced in respect commenced, without the application or consent of the Company or any of its Subsidiaries, without its application or consent, in any court of competent jurisdiction, seeking (i1) the liquidation, reorganization, moratorium, dissolution, winding up, up or composition or readjustment of its debts, (ii2) the appointment of a trustee, receiver, custodian, liquidator or the like of it or of for all or any substantial part of its assets, or (iii3) similar relief in respect of it the Company, under any law providing for the relief of debtors, and such proceeding or case described in clause (i), (ii) or (iii) shall continue undismissed, or unstayed and in effect, for a period of 30 sixty (60) days, ; or an order for relief shall be entered in an involuntary case under the Federal United States Bankruptcy Code (as now or hereafter in effect) other similar law or regulation, against the Company or any of its Subsidiaries and shall continue undismissed, or unstayed and in effect, for a period of 15 daysCompany; or action under the laws of any jurisdiction (foreign or domestic) affecting the Company analogous to any of the foregoing shall be taken with respect to the Company or any of its Subsidiaries and shall continue undismissed, or unstayed and in effect, effect for a any period of 15 sixty (60) days; or
(h) a E. final judgment or decree for the payment of money shall be rendered by a court of competent jurisdiction against the Company or any of its Subsidiaries which, either alone or together with other outstanding judgments or decrees against the Company or any one or more of its Subsidiaries, shall aggregate more than $500,000, and the Company or such Subsidiary, as the case may be, shall not discharge the same or provide for its discharge in accordance with its terms terms, or procure a stay of execution thereof within 45 sixty (60) days from the date of entry thereof and within said period of sixty (60) days, or within such longer period during which execution of such judgment shall have been stayed, appeal therefrom and cause the execution thereof to be stayed during such appeal, and such judgment together with all other such judgments shall exceed in the aggregate US$250,000; or
(i) F. any representation or warranty made by the Company in this Agreement Agreement, any other Loan Document or any other documents or agreements contemplated hereby and thereby or in any certificate or other instrument delivered hereunder or pursuant hereto or in connection with any provision hereof shall prove to have been be false or incorrect or breached in any material respect on the date as of which made; or
(i) any Company Group Member shall fail to pay when due any amount which it shall have become liable to pay to the PBGC or to a Plan under Title IV of ERISA; (ii) any Company Group Member shall withdraw from a Multiple Employer Plan during a plan year in which it is a substantial employer (as such term is defined in Section 4001(a)(2) of ERISA), or shall be treated as having so withdrawn under Section 4062(e) of ERISA, or any Multiple Employer Plan shall be terminated; (iii) notice of intent to terminate a Plan or Plans shall be filed under Title IV of ERISA by any Company Group Member, any plan administrator or any combination of the foregoing; (iv) the PBGC shall institute proceedings under Title IV of ERISA to terminate or to cause a trustee to be appointed to administer any Plan or Plans; (v) any Company Group Member shall withdraw from any Multiemployer Plan ; (vi) any Plan (with the exception of any Multiemployer Plan) shall have an Unfunded Current Liability; or (vii) any prohibited transaction (as defined in Section 406 of ERISA or Section 4975 of the Code) or breach of fiduciary responsibility shall occur which may subject any Company Group Member to any liability under Section 406, 409, 502(i) or 502(l) of ERISA or Section 4975 of the Code, or under any agreement or other instrument pursuant to which such Company Group Member has agreed or is required to indemnify any Person against any such liability; and there shall result from any such event or events referred to in the foregoing subdivisions (i) through (vii) a Material Adverse Effect;
(i) upon the occurrence on any date of any Event of Default described in clause (f) or (g) of this Section with respect to the Company, the unpaid principal amount of all Notes, together with the interest accrued thereon in accordance with the terms thereof and hereof (which interest shall be deemed matured) and all other amounts payable by the Company hereunder, plus (to the extent permitted by applicable law) the Makewhole Amount (determined as of such date in respect of such principal amount of the Notes) shall automatically become immediately due and payable, without presentment, demand, protest, notice of intention to accelerate, notice of acceleration, or other requirements of any kind, all of which are hereby expressly waived by the Company, and (ii) upon the occurrence on any date or during the continuance of any other Event of Default, the holder or holders of not less than 51% of the unpaid principal amount of the Notes at the time outstanding may, by written notice to the Company, declare the unpaid principal amount of all Notes to be, and the same shall forthwith become, due and payable, together with the interest accrued thereon in accordance with the terms thereof and hereof (which interest shall be deemed matured) and all other amounts payable by the Company hereunder, plus (to the extent permitted by applicable law) the Makewhole Amount (determined as of the date of such declaration in respect of such principal amount of Notes), without presentment, demand, protest, notice or other requirements of any kind, all of which are hereby expressly waived by the Company; PROVIDED that, upon the occurrence on any date or during the continuance of an Event of Default described in clause (a) or (b) of this Section with respect to any Note, the holder of such Note may, by written notice to the Company, declare the unpaid principal amount of such Note to be, and the same shall forthwith become, due and payable, together with the interest accrued thereon in accordance with the terms thereof and hereof (which interest shall be deemed matured) and all other amounts payable by the Company hereunder to the holder of such Note, plus (to the extent permitted by applicable law) the Makewhole Amount (determined as of the date of such declaration in respect of such principal amount of such Note), without presentment, demand, protest, notice or other requirements of any kind, all of which are hereby expressly waived by the Company. If any holder of any Note shall exercise the option specified in the proviso to the preceding sentence, the Company will forthwith give written notice thereof to the holders of all other outstanding Notes and each such holder may (whether or not such notice is given or received), by written notice to the Company, declare the principal amount of all Notes held by it to be, and the same shall forthwith become, due and payable, together with interest accrued thereon in accordance with the terms thereof and hereof (which interest shall be deemed matured) and all other amounts payable by the Company hereunder to the holder of such Notes, plus (to the extent permitted by applicable law) the Makewhole Amount (determined as of the date of such declaration in respect of such principal amount of such Notes), without presentment, demand, protest, notice or other requirements of any kind, all of which are hereby expressly waived by the Company.
Appears in 1 contract
Sources: Securities Purchase Agreement (Telscape International Inc)
Events of Default Defined; Acceleration of Maturity. If any of the following conditions or events (each herein called an "EVENT OF DEFAULTEvents of Default") shall occur and be continuing for the applicable periods set forth below (whatever the for any reason for such Event of Default whatsoever and whether it shall be voluntary or involuntary or come about or be effected by operation of law or pursuant to or in compliance with judicial or governmental or administrative order or action or otherwise):
(a) default shall be made by Antigua in the due and punctual payment of all or any part portion of the principal of of, or Makewhole Amount, premium (if any) on, on any the Note when and as the same shall become due and payable, whether on a date fixed for prepayment, at stated maturity, by acceleration or declarationacceleration, by notice of prepayment or otherwise; or
(b) default shall be made by Antigua in the due and punctual payment of any interest on any the Note when and as such interest shall become due and payable, and such default shall have continued for a period of three five (5) business days; or
(c) default shall be made by any of the Loan Parties in the due performance or observance of any covenant, provision, agreement or condition covenant contained in SECTION 4(G) or any of SECTIONS 6.2 THROUGH 6.13, both inclusive, and, except in the case of any such default under SECTION 4(G), subdivision (a) of SECTION 6.3, SECTION 6.8, SECTION 6.9 or SECTION 6.10, such default shall have continued for a period of ten days after the earlier of (x) the date on which a Responsible Officer of the Company first has knowledge of such default Sections 7 and (y) the giving of notice to the Company of such default by any holder or holders of a Note or Notes; or9 hereof;
(d) default shall be made by any of the Loan Parties in the due performance or observance of any other covenant, provision, agreement or condition contained in this Agreement (or the Securities or the Security Documents or any indebtedness of the Loan Parties, including, but not limited to, the Other Securities, the Other Securities Documents or any other than any default referred debt owed by the Loan Parties, whether such debt is senior or subordinate to the Note, and except as set forth in the foregoing subdivisions subsections (a), (b) and (c) of this SECTION 8.1) and Section 11.1, such default shall have continued for a period of 30 ten (10) days after such default shall first have become known to the earlier of (x) Loan Parties; provided, however, that if the date on which any Responsible Officer nature of the Company first has knowledge default is such that it cannot reasonably be cured within said period, then the Loan Parties shall have such additional period of time as may reasonably be necessary (but in no event to exceed thirty (30) days) to effectuate such default and (y) the giving of notice to the Company of such default by any holder or holders of a Note or Notescure; or
(ie) default shall be made in the payment of any amount due, whether on an interest payment date or on a date fixed for prepayment, at stated maturity, by acceleration or declaration or otherwise, under or in respect of any Funded Debt or Current Debt of the Company (other than the Notes) or any Subsidiary, and such default shall continue beyond the period of grace, if any, allowed with respect thereto; or (ii) default shall be made in the due performance or observance of any covenant, provision, agreement or condition contained in any document evidencing or providing for the issuance or securing of any such Funded Debt or Current Debt, if the effect of any such default referred to in this clause (ii) is to cause or to permit the holder or holders of such Debt (or a trustee or agent on behalf of such holders) to cause any payment or payments in respect of any such Debt to become due prior to the scheduled due date thereof; or
(f) the Company or any of its Subsidiaries Loan Parties shall (i1) apply for or consent to the appointment of, or the taking of possession by, a receiver, custodian, trustee or liquidator of itself or of all or a substantial part of its property, (ii2) become insolvent or be generally unable to or shall generally fail or admit in writing its inability to pay its debts as such debts become due, (iii3) make a general assignment for the benefit of its creditors, (iv4) commence a voluntary case under the Federal Bankruptcy Code (as now or hereafter in effect), (v5) file a petition seeking to take advantage of any bankruptcy, insolvency, moratorium, reorganization or other similar law affecting providing for the enforcement relief of creditors' rights generallydebtors, (vi6) acquiesce in writing to, or fail to controvert in a timely or appropriate manner, or acquiesce in writing to, any petition filed against it in an involuntary case under such Bankruptcy Code, (vii7) take any action under the laws of any its jurisdiction (foreign or domestic) of incorporation analogous to any of the foregoing, or (viii) 8) take any corporate action in furtherance for the purpose of effecting any of the foregoing; or
(gf) a proceeding or case shall be commenced in respect commenced, without the application or consent of the Company or any of its Subsidiaries, without its application or consentLoan Parties, in any court of competent jurisdiction, seeking (i1) the liquidation, reorganization, moratorium, dissolution, winding up, or composition or readjustment of its debtsthe debts of the Loan Parties respectively, (ii2) the appointment of a trustee, receiver, custodian, liquidator or the like of it the Loan Parties respectively or of all or any substantial part of its their respective assets, or (iii3) similar relief in respect of it the Loan Parties under any law providing for the relief of debtors, and such proceeding or case described in clause (i), (ii) or (iii) shall continue undismissed, or unstayed and in effect, for a period of 30 sixty (60) days, ; or an order for relief shall be entered in an involuntary case under the Federal such Bankruptcy Code (as now or hereafter in effect) Code, against the Company or any of its Subsidiaries and shall continue undismissedLoan Parties, or unstayed and in effect, for a period of 15 daysrespectively; or action under the laws of any the jurisdiction (foreign or domestic) of incorporation of the Loan Parties analogous to any of the foregoing shall be taken with respect to the Company or any of its Subsidiaries Loan Parties respectively and shall continue undismissed, or unstayed and in effect, effect for a any period of 15 sixty (60) days; or
(hg) a final judgment or decree for the payment of money shall be rendered by a court of competent jurisdiction against the Company or any of its Subsidiaries which, either alone or together with other outstanding judgments or decrees against the Company or any one or more of its Subsidiaries, shall aggregate more than $500,000, Loan Parties and the Company or such Subsidiary, as the case may be, Loan Parties shall not discharge the same or provide for its discharge in accordance with its terms terms, or procure a stay of execution thereof within 45 thirty (30) days from the date of entry thereof and within said period of thirty (30) days, or within such longer period during which execution of such judgment shall have been stayed, appeal therefrom and cause the execution thereof to be stayed during such appeal, and such judgment together with all other such judgments shall exceed in the aggregate $50,000; or
(ih) any representation or warranty made by the Company Loan Parties in this Agreement or any Security Document or in any certificate or other instrument delivered hereunder or pursuant hereto or thereto or in connection with any provision hereof of thereof shall prove to have been be false or incorrect or breached in any material respect on as of the date as of which made; or
(i) any Company Group Member shall fail to pay when due any amount which it shall have become liable to pay to the PBGC or to a Plan under Title IV of ERISA; (ii) any Company Group Member shall withdraw from a Multiple Employer Plan during a plan year in which it is a substantial employer (as such term is defined in Section 4001(a)(2) of ERISA)then, or shall be treated as having so withdrawn under Section 4062(e) of ERISA, or any Multiple Employer Plan shall be terminated; (iii) notice of intent to terminate a Plan or Plans shall be filed under Title IV of ERISA by any Company Group Member, any plan administrator or any combination of the foregoing; (iv) the PBGC shall institute proceedings under Title IV of ERISA to terminate or to cause a trustee to be appointed to administer any Plan or Plans; (v) any Company Group Member shall withdraw from any Multiemployer Plan ; (vi) any Plan (with the exception of any Multiemployer Plan) shall have an Unfunded Current Liability; or (vii) any prohibited transaction (as defined in Section 406 of ERISA or Section 4975 of the Code) or breach of fiduciary responsibility shall occur which may subject any Company Group Member to any liability under Section 406, 409, 502(i) or 502(l) of ERISA or Section 4975 of the Code, or under any agreement or other instrument pursuant to which such Company Group Member has agreed or is required to indemnify any Person against any such liability; and there shall result from any such event or events referred to in the foregoing subdivisions (i) through (vii) a Material Adverse Effect;
(i) upon the occurrence on any date of any Event of Default described in clause (f) or (g) of this Section with respect to the CompanyDefault, the unpaid principal amount of all Notesthe Note, together with the interest accrued thereon in accordance with the terms thereof and hereof (which interest shall be deemed matured) and all other amounts payable by the Company Issuers hereunder, plus (to the extent permitted by applicable law) the Makewhole Amount (determined as of such date in respect of such principal amount of the Notes) shall automatically become immediately due and payable, without presentment, demand, protest, notice of intention to accelerate, notice of acceleration, protest or other requirements of any kind, all of which are hereby expressly waived by the CompanyLoan Parties. The provisions of this Section are subject, and (ii) upon the occurrence on any date or during the continuance of any other Event of Defaulthowever, the holder or holders of not less than 51% of the unpaid principal amount of the Notes at the time outstanding may, by written notice to the Companycondition that if, declare at any time after the unpaid principal amount of all Notes to be, and the same Note shall forthwith become, have so become due and payable, together with Antigua shall pay all arrears of interest on the interest accrued thereon in accordance with the terms thereof and hereof (which interest shall be deemed matured) Note and all other amounts payable payments on account of the principal of the Note which shall have become due otherwise than by the Company hereunderacceleration, plus (with interest on such principal and, to the extent permitted by applicable law) , on overdue payments of interest, at the Makewhole Amount (determined as of rate specified in the date of such declaration in respect of such principal amount of Notes), without presentment, demand, protest, notice or other requirements of any kind, Note and all of which are hereby expressly waived by the Company; PROVIDED that, upon the occurrence on any date or during the continuance of an Event Events of Default described in clause (a) or (b) other than nonpayment of this Section with respect to any principal of and accrued interest on Note, the holder of such Note may, by written notice and amounts equal to the Company, declare the unpaid principal amount of such Note to be, and the same shall forthwith becomepremium as aforesaid, due and payable, together with the interest accrued thereon in accordance with the terms thereof and hereof (which interest payable solely by virtue of acceleration) shall be deemed matured) remedied or waived pursuant to Section 13, then, and all other amounts payable by the Company hereunder to in every such case, the holder of such Note, plus (to the extent permitted by applicable law) the Makewhole Amount (determined as of the date of such declaration in respect of such principal amount of such Note), without presentment, demand, protest, notice or other requirements of any kind, all of which are hereby expressly waived by the Company. If any holder of any Note shall exercise the option specified in the proviso to the preceding sentence, the Company will forthwith give written notice thereof to the holders of all other outstanding Notes and each such holder may (whether or not such notice is given or received), by written notice to the CompanyAntigua, declare the principal amount may rescind and annul any such acceleration and its consequences; but no such action shall affect any subsequent Default or Event of all Notes held by it to be, and the same shall forthwith become, due and payable, together with interest accrued thereon in accordance with the terms thereof and hereof (which interest shall be deemed matured) and all other amounts payable by the Company hereunder to the holder of such Notes, plus (to the extent permitted by applicable law) the Makewhole Amount (determined as of the date of such declaration in respect of such principal amount of such Notes), without presentment, demand, protest, notice Default or other requirements of impair any kind, all of which are hereby expressly waived by the Companyright consequent thereon.
Appears in 1 contract
Sources: Securities Purchase Agreement (Antigua Enterprises Inc)
Events of Default Defined; Acceleration of Maturity. If any one or more of the following conditions or events (each herein called an "EVENT OF DEFAULTEvents of Default") shall occur and be continuing (whatever the reason for such Event of Default and whether it shall be voluntary or involuntary or come about or be effected by operation of law or pursuant to any judgment, decree or in compliance with judicial order of any court or any order, rule or regulation of any administrative or governmental or administrative order or action or otherwise):body), that is to say:
(a) if default shall be made in the due and punctual payment of all or any part of the principal of of, or Makewhole Amount, premium (if any) on, on any Note when and as the same shall become due and payable, whether on a date fixed at the stated maturity thereof, by notice of or demand for prepayment, at stated maturity, by acceleration or declaration, or otherwise; or
(b) if default shall be made in the due and punctual payment of any interest on any Note when and as such interest shall become due and payable, payable and such default shall have continued for a period of three daysBusiness Days; or
(c) if (i) default shall be made in the due performance or observance of any covenant, provision, agreement or condition contained in SECTION 4(G) section 10.1 or any of SECTIONS 6.2 THROUGH 6.13, both inclusive, and, except in the case of any such default under SECTION 4(G), subdivision (a) of SECTION 6.3, SECTION 6.8, SECTION 6.9 or SECTION 6.10, 10.2 and such default shall have continued continue unremedied for a period of ten days (10) Business Days after the earlier of occurrence thereof or (x) the date on which a Responsible Officer of the Company first has knowledge of such default and (y) the giving of notice to the Company of such default by any holder or holders of a Note or Notes; or
(dii) default shall be made in the due performance or observance of any covenant, agreement or condition contained in section 10.3 or 10.4; or
(d) if default shall be made in the performance or observance of any other covenantof the covenants, provision, agreement agreements or condition conditions contained in this Agreement or any of the other Operative Documents (other than any default referred to in the foregoing subdivisions as covered by paragraphs (a), (b) and (c) of this SECTION 8.1Section 12.1) and such default shall have continued for a period of 30 days after the earlier of (x) the date on which any Responsible Officer of the Company first has knowledge of such default and (y) the giving of notice to the Company of such default by any holder or holders of a Note or Notesoccurrence thereof; or
(ie) default if an involuntary case shall be made commenced against the Company or any of the Company's Material Subsidiaries and the petition shall not be dismissed, stayed, bonded or discharged within sixty (60) days after commencement of the case; or a court having jurisdiction in the payment of any amount due, whether on an interest payment date premises shall enter a decree or on a date fixed order for prepayment, at stated maturity, by acceleration or declaration or otherwise, under or relief in respect of the Company or any Funded Debt or Current Debt of the Company (Company's Material Subsidiaries in an involuntary case, under any applicable bankruptcy, insolvency or other than the Notes) similar law now or hereinafter in effect; or any Subsidiary, and such default shall continue beyond the period of grace, if any, allowed with respect thereto; or (ii) default other similar relief shall be made in the due performance granted under any applicable federal, state, local or observance of any covenant, provision, agreement or condition contained in any document evidencing or providing for the issuance or securing of any such Funded Debt or Current Debt, if the effect of any such default referred to in this clause (ii) is to cause or to permit the holder or holders of such Debt (or a trustee or agent on behalf of such holders) to cause any payment or payments in respect of any such Debt to become due prior to the scheduled due date thereofforeign law.; or
(f) if a decree or order of a court having jurisdiction in the premises for the appointment of a receiver, liquidator, sequestrator, trustee, custodian or other officer having similar powers over the Company or any of its the Company's Subsidiaries or over all or a substantial part of the property of the Company or any of the Company's Subsidiaries shall be entered; or an interim receiver, trustee or other custodian of the Company or any of the Company's Subsidiaries or of all or a substantial part of the property of the Company or any of the Company's Subsidiaries shall be appointed or a warrant of attachment, execution or similar process against any substantial part of the property of the Company or any of the Company's Subsidiaries shall be issued and any such event shall not be stayed, dismissed, bonded or discharged within sixty (60) days after entry, appointment or issuance provided that such Event of Default shall not arise in respect of any Subsidiary of the Company that is not a Material Subsidiary and for which a waiver of any Event of Default (or similar term within the meaning of the Bank Credit Agreement) arising from the foregoing events has been granted to the Company by the requisite percentage of Bank Lenders pursuant to the Bank Credit Agreement prior to the expiry of the preceding sixty (60) day period; or
(g) if the Company or any of the Company's Subsidiaries shall (i) apply commence a voluntary case under any applicable bankruptcy, insolvency or other similar law now or hereafter in effect, (ii) consent to the entry of an order for relief in an involuntary case, or to the conversion of an involuntary case to a voluntary case, under any such law, (iii) consent to the appointment of, of or the taking of possession by, by a receiver, custodian, trustee or liquidator of itself or of other custodian for all or a substantial part of its property, (ii) become insolvent or be generally unable to or shall generally fail or admit in writing its inability to pay its debts as such debts become due, (iiiiv) make a general any assignment for the benefit of its creditors, (iv) commence a voluntary case under the Federal Bankruptcy Code (as now creditors or hereafter in effect), (v) file a petition seeking to take advantage of any bankruptcy, insolvency, moratorium, reorganization or other similar law affecting the enforcement of creditors' rights generally, (vi) acquiesce in writing to, or fail to controvert in a timely or appropriate manner, any petition filed against it in an involuntary case under such Bankruptcy Code, (vii) take any corporate action under the laws of any jurisdiction (foreign or domestic) analogous to any of the foregoing, or (viii) take any action in furtherance of authorize any of the foregoing; provided that such Event of Default shall not arise in respect of any Subsidiary of the Company that is not a Material Subsidiary and for which a waiver of any Event of Default (or similar term within the meaning of the Bank Credit Agreement) arising from the foregoing events has been granted to the Company by the requisite percentage of Bank Lenders pursuant to the Bank Credit Agreement prior to taking any of the foregoing actions; or
(gh) a proceeding if the Company or case any of its Subsidiaries shall be commenced fail to (i) make any payment due on any Indebtedness (other than the Notes or the Senior Bank Obligations) or other obligation (including any in respect of any lease or any Capital Stock upon the exercise by any Person of any put or call option or other similar right of redemption or -71- repurchase with regard to such Shares) when due (subject to applicable grace periods), if the aggregate outstanding amount thereof (and of any other Indebtedness or other obligation as to which the Company or any of its Subsidiaries is in default) exceeds $6,000,000 (or the equivalent thereof, as at any date of determination, in any other currency) or (ii) perform, observe or discharge any covenant, condition or obligation in any agreement, document or instrument evidencing, securing or relating to such Indebtedness or other obligation, if the effect of any such failure of the character described in this clause (ii) is to cause, or permit such Person to cause, any payment in an aggregate amount of $6,000,000 (or the equivalent thereof, as at any date of determination, in any other currency) or more to become due and payable, or if any such Indebtedness or other obligation in an aggregate amount of $6,000,000 (or the equivalent thereof, as at any date of determination, in any other currency) or more shall become due and payable by its terms and shall not be paid or extended; or
(i) if a final judgment for the payment of money which, together with all other outstanding final judgments for the payment of money against the Company or any of its Subsidiaries, without its application exceeds an aggregate of $1,500,000 (or consentthe equivalent thereof, as at any date of determination, in any other currency) shall be rendered by a court of competent jurisdiction, seeking (i) the liquidation, reorganization, moratorium, dissolution, winding up, or composition or readjustment of its debts, (ii) the appointment of a trustee, receiver, custodian, liquidator or the like of it or of all or any substantial part of its assets, or (iii) similar relief in respect of it under any law providing for the relief of debtors, and such proceeding or case described in clause (i), (ii) or (iii) shall continue undismissed, or unstayed and in effect, for a period of 30 days, or an order for relief shall be entered in an involuntary case under the Federal Bankruptcy Code (as now or hereafter in effect) record against the Company or any of its Subsidiaries Subsidiaries, and shall continue undismissed, or unstayed and in effect, for a period of 15 days; or action under the laws of any jurisdiction (foreign or domestic) analogous to any of the foregoing shall be taken with respect to the Company or any of its Subsidiaries and shall continue undismissed, or unstayed and in effect, for a period of 15 days; or
(h) a final judgment or decree for the payment of money shall be rendered by a court of competent jurisdiction against the Company or any of its Subsidiaries which, either alone or together with other outstanding judgments or decrees against the Company or any one or more of its Subsidiaries, shall aggregate more than $500,000, and the Company or such Subsidiary, as the case may be, shall not discharge the same or provide for its discharge in accordance with its terms terms, or procure a stay of execution thereof within 45 30 days from the date of entry thereof and within such period of 30 days, or within such longer period during which execution of such judgment shall have been stayed, move to vacate such judgment or appeal therefrom and cause the execution thereof to be stayed pending determination of such motion or during such appeal; or
(ij) if any representation or warranty made by or on behalf of the Company or any of its Subsidiaries in this Agreement or in any certificate of the other Operative Documents or other in any agreement, document or instrument delivered hereunder under or pursuant hereto or in connection with to any provision hereof or thereof shall prove to have been materially false or incorrect or breached in any material respect on the date as of which made; or
(k) if, at any time, this Agreement or any of the other Operative Documents shall for any reason (other than the scheduled termination thereof in accordance with its terms) expire, fail to be in full force and effect or be disaffirmed, repudiated, canceled, terminated or declared to be unenforceable, null and void; or
(l) if (i) any Company Group Member Plan shall fail to pay when due satisfy the minimum funding standards of ERISA or the Code for any amount which it shall have become liable to pay to plan year or part thereof or a waiver of such standards or extension of any amortization period is sought or granted under section 412 of the PBGC or to a Plan under Title IV of ERISA; Code, (ii) any Company Group Member shall withdraw from a Multiple Employer Plan during a plan year in which it is a substantial employer (as such term is defined in Section 4001(a)(2) of ERISA), or shall be treated as having so withdrawn under Section 4062(e) of ERISA, or any Multiple Employer Plan shall be terminated; (iii) notice of intent to terminate a any Plan shall have been or Plans shall is reasonably expected to be filed under Title IV of ERISA by any Company Group Member, any plan administrator with the PBGC or any combination of the foregoing; (iv) the PBGC shall institute have instituted proceedings under Title IV section 4042 of ERISA to terminate or to cause appoint a trustee to be appointed to administer any Plan or the PBGC shall have notified the Company or any ERISA Affiliate that a Plan may become a subject of any such proceedings, (iii) the aggregate "amount of unfunded benefit liabilities" (within the meaning of section 4001(a)(18) of ERISA) under all Plans; , determined in accordance with Title IV of ERISA, shall exceed $1,500,000 (or the equivalent thereof, as at any date of determination, in any other currency), (iv) the Company or any ERISA Affiliate shall have incurred or is reasonably expected to incur any liability pursuant to Title I or IV of ERISA or the penalty or excise tax provisions of the Code relating to employee benefit plans, (v) the Company or any Company Group Member shall withdraw ERISA Affiliate withdraws from any Multiemployer Plan ; Plan, (vi) the Company or any Plan (with Subsidiary of the exception Company establishes or amends any employee welfare benefit plan that provides post-employment welfare benefits in a manner that would increase the liability of any Multiemployer Plan) shall have an Unfunded Current Liability; the Company and/or its Subsidiaries thereunder, or (vii) any prohibited transaction (as defined in Section 406 of ERISA or Section 4975 of the Code) or breach of fiduciary responsibility shall occur which may subject any Company Group Member to any liability under Section 406, 409, 502(i) or 502(l) of ERISA or Section 4975 of the Code, or under any agreement or other instrument pursuant to which such Company Group Member has agreed or is required to indemnify any Person against any such liabilitytermination Event occurs; and there shall result from any such event or events referred to described in the foregoing subdivisions clauses (i) through (vii) above, either individually or together with any other such event or events, has resulted in, or could reasonably be expected to result in, a Material Adverse Effect;
(im) upon acceleration of any Indebtedness under the occurrence on any date Bank Credit Agreement or the Seller Notes, subject to the terms of the Subordination Agreements; or
(n) the IRS shall notify Borrower in writing that it has made a final determination not subject to cure that the ESOP is not a qualified plan and employee stock ownership plan within the meanings of Section 401(a) and 4975(e)(7), respectively, of the Code; then, in the case of any Event of Default (other than one of the character described in clause subdivisions (e), (f) or (g) of this Section section 12.1 with respect to the Company or any Material Subsidiary) and at the option of the Required Holders of the Notes at the time outstanding (excluding any Notes at the time owned by any of the Company or any of its Affiliates), exercised by written notice to the Company, the unpaid principal amount of all NotesNotes shall forthwith become due and payable, together with the interest accrued thereon in accordance with the terms thereof and hereof (which interest shall be deemed matured) and all other amounts payable by the Company hereunder, plus (to the extent permitted by applicable law) the Makewhole Amount (determined as of such date in respect of such principal amount of the Notes) shall automatically become immediately due and payablethereon, without presentment, demand, protest, notice of intention to accelerate, notice of acceleration, protest or other requirements notice of any kind, all of which are hereby expressly waived by waived, and the CompanyCompany shall forthwith upon any such acceleration pay to the holder or holders of all the Notes then outstanding (i) the entire principal of and interest accrued on the Notes, and (ii) in addition, to the extent permitted by applicable law, an amount equal to the premium that would be payable upon a prepayment of the occurrence on any date or during Notes pursuant to section 8.1 at such time, as liquidated damages and not as a penalty; provided that, in the continuance case of any other an Event of Default, the holder or holders of not less than 51% Default of the unpaid principal amount character described in subdivisions (a) or (b) of this section 12.1 and irrespective of whether all of the Notes have been declared due and payable by the Required Holders of the Notes at the time outstanding outstanding, any holder of Notes who or which has not consented to any waiver with respect to such Event of Default may, at the option of such holder, by written notice to the Company, declare the unpaid principal amount of all Notes then held by such holder to be, and the same such Notes shall forthwith thereupon become, forthwith due and payable, together with the interest accrued thereon in accordance with the terms thereof and hereof (which interest shall be deemed matured) and all other amounts payable by the Company hereunder, plus (to the extent permitted by applicable law) the Makewhole Amount (determined as of the date of such declaration in respect of such principal amount of Notes)thereon, without presentment, demand, protest, notice protest or other requirements notice of any kind, all of which are hereby expressly waived by the Company; PROVIDED that, upon the occurrence on any date or during the continuance of an Event of Default described in clause (a) or (b) of this Section with respect to any Note, the holder of such Note may, by written notice to the Company, declare the unpaid principal amount of such Note to bewaived, and the same Company shall forthwith become, due upon any such acceleration pay to such holder (i) the entire principal of and payable, together with the interest accrued thereon on such Notes, and (ii) in accordance with the terms thereof and hereof (which interest shall be deemed matured) and all other amounts payable by the Company hereunder to the holder of such Noteaddition, plus (to the extent permitted by applicable law) , an amount equal to the Makewhole Amount (determined as premium that would be payable upon a prepayment of the date Notes pursuant to section 8.1 at such time, as liquidated damages and not as a penalty; provided, further, that, in the case of an Event of Default of the character described in subdivisions (e), (f) or (g) of this section 12.1 with respect to the Company or any Material Subsidiary, the principal of all Notes shall forthwith become due and payable, together with interest accrued thereon (including any interest accruing after the commencement of any action or proceeding under the federal bankruptcy laws, as now or hereafter constituted, or any other applicable domestic or foreign federal or state bankruptcy, insolvency or other similar law, and any other interest that would have accrued but for the commencement of such declaration proceeding, whether or not any such interest is allowed as an enforceable claim in respect of such principal amount of such Noteproceeding), without presentment, demand, protest, notice protest or other requirements notice of any kind, all of which are hereby expressly waived by waived, and the Company. If Company shall forthwith upon any holder of any Note shall exercise the option specified in the proviso such acceleration pay to the preceding sentence, the Company will forthwith give written notice thereof to the holder or holders of all other the Notes then outstanding (i) the entire principal of and interest accrued on the Notes, and (ii) in addition, to the extent permitted by applicable law, an amount equal to the premium that would be payable upon a prepayment of the Notes pursuant to section 8.1 at such time, as liquidated damages and not as a penalty. Notwithstanding the foregoing provisions, at any time after the occurrence of any Event of Default and of notice thereof, if any, by any holder or holders of Notes and each such before any judgment, decree or order for payment of the money due has been obtained by or on behalf of any holder may (whether or not such notice is given or received)holders of the Notes, the Required Holders of the Notes by written notice to the Company, declare may rescind and annul such Event of Default and/or notice of such Event of Default and the consequences thereof with respect to all of the Notes (including any Notes which were accelerated pursuant to the first proviso in the preceding paragraph by any holder or holders on account of an Event of Default of the character described in subdivision (a) or (b) of this section 12.1) if:
(1) the Company has paid a sum sufficient to pay
(A) all overdue installments of interest on all Notes at the rate specified in the Notes;
(B) the principal amount of all (and premium, if any, on) any Notes held which have become due otherwise than by it to be, and the same shall forthwith become, due and payable, together with interest accrued thereon in accordance with the terms such Event of Default or notice thereof and hereof (which interest shall be deemed matured) and all other thereon at the rate for overdue amounts payable by the Company hereunder to the holder of specified in such Notes, plus ; and
(C) to the extent permitted by applicable lawthat payment of such interest is lawful, interest upon overdue interest at the rate for overdue amounts specified in such Notes; and
(2) all Defaults and Events of Default, other than the Makewhole Amount (determined as non-payment of the date principal of Notes which have become due solely by such declaration acceleration, have been cured or waived as provided in respect of section 12. No such principal amount of such Notes), without presentment, demand, protest, notice rescission shall affect any subsequent default or other requirements of impair any kind, all of which are hereby expressly waived by the Companyright consequent thereon.
Appears in 1 contract
Sources: Mezzanine Note Securities Purchase Agreement (Alion Science & Technology Corp)