Default; Acceleration. Subject to Section 12, at the option of each Lender and, subject to Sections 6 and 12, at the option of each Executive Lender, this Loan Agreement and the indebtedness evidenced hereby shall become due and payable without further notice or demand, and notwithstanding any prior waiver of any breach or default or other indulgence, upon the occurrence any of the following (each, an “Event of Default”): (a) the failure by any Loan Party to pay when due any amount due under the Loan or Executive Loan, as applicable; (b) any breach or failure to perform any of the other terms of this Loan Agreement after the earlier of (i) knowledge thereof by the Borrower or (ii) notice thereof to Borrower and such breach or failure continues unremedied for ten (10) business days; provided that such ten (10) business day cure period shall not apply with respect to the other clauses of this Section 9; (c) any representation, warranty or other statement made or deemed made by or on behalf of any Loan Party pursuant to or in connection with this Loan Agreement shall be incorrect in any material respect as of the date made or deemed made (except that such materiality qualifier shall not be applicable to any representations or warranties that already are qualified or modified as to materiality or “material adverse effect” in the text thereof, which representations and warranties shall be true and correct in all respects subject to such qualification); (d) any act by, against, or relating to any Loan Party or any subsidiary of any Loan Party, or its property or assets, which act constitutes the application for, consent to, or sufferance of the appointment of a receiver, trustee or other Person, pursuant to court action or otherwise, over all, or any part of such Loan Party’s or subsidiary’s property; (e) any assignment for the benefit of the creditors of any Loan Party or any subsidiary of any Loan Party, or the occurrence of any other involuntary liquidation of any Loan Party or any subsidiary of any Loan Party; the failure by any Loan Party or any subsidiary of any Loan Party to generally pay the debts of such Person as they mature; adjudication of bankruptcy or insolvency relative to such Loan Party or any subsidiary of any Loan Party; filing by any Loan Party or any subsidiary of any Loan Party under, or the entry of an order for relief or similar order with respect to any Loan Party in any proceeding pursuant to, Title 11 of the United States Code entitled “bankruptcy” (the “Bankruptcy Code”) or any other federal bankruptcy law; (f) the default of any Loan Party or any subsidiary of any Loan Party for failure to pay amounts due and payable under any indebtedness of such Loan Party or any subsidiary of any Loan Party in an amount in excess of $100,000, whether individually or in the aggregate (subject to any applicable cure periods, forbearance or forgiveness), if the effect of such default is to accelerate the maturity of any such indebtedness or to permit the holder or holders of any such indebtedness, or any trustee or agent for such holders, to cause such indebtedness to become due and payable prior to its expressed maturity or, if such indebtedness is a guaranty, to call upon such guaranty in advance of nonpayment of the guaranteed indebtedness; (g) a final judgment or judgments shall be entered against any Loan Party or any subsidiary of any Loan Party in an aggregate amount in excess of $100,000, whether individually or in the aggregate (net of insurance proceeds, if any), and such judgment or judgments shall remain unstayed, unvacated, undischarged or unsatisfied for 30 calendar days; (h) on or following the Collateral Pledge Effective Date, the Collateral Agent, on behalf of the Lenders, shall for any reason cease to hold a valid and enforceable, perfected, first priority Lien on the Collateral, subject only to Permitted Liens; (i) the termination of existence, dissolution, or liquidation of any Loan Party or any subsidiary of any Loan Party or the ceasing to carry on actively any substantial part of such Loan Party’s or subsidiary’s current business; or (j) the occurrence of any of the following: (i) a sale of all or substantially all of the assets of Borrower or any subsidiary of any Loan Party other than to a Loan Party, (ii) a merger, consolidation or business combination transaction of Borrower or any subsidiary of any Loan Party with or into another corporation, limited liability company or other entity, (iii) the consummation of a transaction, or series of related transactions, in which any “person” (as such term is used in Sections 13(d) and 14(d) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”)) becomes the “beneficial owner” (as defined in Rule 13d-3 of the Exchange Act), directly or indirectly, of 50% or more of Borrower’s or any subsidiary of any Loan Party’s then outstanding voting securities or (iv) individuals who on the Effective Date constituted the Board of Directors of the Borrower (together with any new directors whose election by such Board of Directors or whose nomination for election by the shareholders of the Borrower was approved by a vote of at least a majority of the directors of the Borrower then still in office who were either directors on the Effective Date, or whose election or nomination for election was previously approved) cease for any reason to constitute a majority of the Board of Directors of the Borrower. Failure to exercise this option shall not constitute a waiver of the right to exercise the same at any other time. Notwithstanding the foregoing, if an Event of Default specified in Section 8(d), (e) or (f) shall occur on or before the Loan Discharge Date, then the Loan, all accrued interest in respect thereof and all accrued and unpaid fees and other indebtedness or obligations owing to Lender hereunder shall immediately become due and payable, as aforesaid shall automatically become effective, in each case without the giving of any notice or other action by Lender, which notice or other action is expressly waived by the Loan Parties. If an Event of Default specified in Section 8(d), (e) or (f) shall occur after the Loan Discharge Date, then each Executive Loan, all accrued interest in respect thereof and all accrued and unpaid fees and other indebtedness or obligations owing to each respective Executive Lender hereunder shall immediately become due and payable, as aforesaid shall automatically become effective, in each case without the giving of any notice or other action by the relevant Executive Lender, which notice or other action is expressly waived by the Loan Parties.
Appears in 2 contracts
Sources: Senior Secured Loan Agreement (EVO Transportation & Energy Services, Inc.), Senior Secured Loan Agreement (Antara Capital LP)
Default; Acceleration. Subject to Section 12, at the option The occurrence of each Lender and, subject to Sections 6 and 12, at the option of each Executive Lender, this Loan Agreement and the indebtedness evidenced hereby shall become due and payable without further notice or demand, and notwithstanding any prior waiver of any breach or default or other indulgence, upon the occurrence any of the following (each, events or circumstances will be an “Event of Default”)::
(a) the failure by of the Maker to make any Loan Party to pay when due any amount due under payment of principal or interest on this Note within three (3) Business Days after the Loan or Executive Loan, as applicablesame shall become due;
(b) any breach or the failure to perform any of the Maker to pay any other terms of amounts, including any late charge, Collection Costs or other amounts owed to the Payee under this Loan Agreement Note, within five (5) Business Days after the earlier of (i) knowledge thereof by Payee gives the Borrower or (ii) notice thereof to Borrower and Maker a written request for such breach or failure continues unremedied for ten (10) business days; provided that such ten (10) business day cure period shall not apply with respect to the other clauses of this Section 9payment;
(c) any representation, warranty or other statement made or deemed made by or on behalf of any Loan Party pursuant to or in connection with this Loan Agreement shall be incorrect in any material respect as the failure of the date made or deemed made (except that such materiality qualifier shall not be applicable Maker to timely pay any representations or warranties that already are qualified or modified as amounts, including any late charge, owed to materiality or “material adverse effect” in the text thereof, which representations and warranties shall be true and correct in all respects subject to such qualification)Payee under the Commercial Agreement;
(d) any act by, against, or relating to any Loan Party or any subsidiary of any Loan Party, or its property or assets, which act constitutes the application for, consent to, or sufferance of the appointment of a receiver, trustee or other Person, pursuant to court action or otherwise, over all, or any part of such Loan Party’s or subsidiary’s property;
(e) any assignment for the benefit of the creditors failure of any Loan Party or any subsidiary Subsidiary to perform its obligations under Section 8 or Section 10 of any Loan Party, or this Note;
(e) the occurrence of any other involuntary liquidation failure of any Loan Party or any subsidiary Subsidiary to pay or perform its obligations under any term, provision, covenant or agreement in this Note or Related Documents, which failure is not within the scope of preceding clauses (a), (b), (c) or (d), which failure shall continue unremedied for a period of thirty (30) days;
(f) if any Loan Party; the failure representation or warranty made by any Loan Party or any subsidiary Subsidiary in this Note or in any Related Document is breached in any material respect or is false or misleading, to the extent that such representation or warranty being incorrect or misleading had, or could reasonably be expected to have, a Material Adverse Effect (without duplication of any qualification by materiality or reference to Material Adverse Effect or material adverse effect);
(g) if (i) any default or event of default occurs under the Madryn Loan Party to generally pay the debts of such Person as they mature; adjudication of bankruptcy Agreement or insolvency relative to such Loan Party or any subsidiary of any Loan Party; filing by (ii) any Loan Party or any subsidiary Subsidiary breaches or defaults in any payment of any Loan Party Indebtedness (other than the Indebtedness evidenced by this Note) owed by it to any Person, or will breach, or default under, any other terms, representations, warranties, covenants, conditions, or other provisions applicable to such Indebtedness, if (x) the entry amount of an order for relief such Indebtedness exceeds One Million Dollars ($1,000,000) or similar order (y) the occurrence of any such breach or default would accelerate such Indebtedness or would entitle the holder of such indebtedness to accelerate such Indebtedness or exercise any other remedies with respect to any Loan Party in any proceeding pursuant to, Title 11 of the United States Code entitled “bankruptcy” (the “Bankruptcy Code”) or any other federal bankruptcy lawthereto;
(fh) the default if a judgment, order or award for payment of any Loan Party or any subsidiary of any Loan Party for failure to pay amounts due and payable under any indebtedness of such Loan Party or any subsidiary of any Loan Party in an amount money in excess of One Million Dollars ($100,000, whether individually or in the aggregate (subject to any applicable cure periods, forbearance or forgiveness), if the effect of such default is to accelerate the maturity of any such indebtedness or to permit the holder or holders of any such indebtedness, or any trustee or agent for such holders, to cause such indebtedness to become due and payable prior to its expressed maturity or, if such indebtedness is a guaranty, to call upon such guaranty in advance of nonpayment of the guaranteed indebtedness;
(g1,000,000) a final judgment or judgments shall will be entered against any Loan Party or any subsidiary Subsidiary, in favor of any Loan Party in an aggregate amount in excess of $100,000, whether individually or in the aggregate (net of insurance proceeds, if any)Person, and such judgment or judgments shall remain unstayedorder will continue unsatisfied and unstayed (i) for a period of thirty (30) days after the entry thereof, unvacated, undischarged or unsatisfied for 30 calendar days;
(hii) on or following the Collateral Pledge Effective Date, the Collateral Agentif earlier, on behalf the date on which any lien may attach in respect of the Lenderssuch judgment, shall for any reason cease to hold a valid and enforceable, perfected, first priority Lien on the Collateral, subject only to Permitted Liensorder or award;
(i) the termination commencement of existenceany action (including any self-help action) or proceeding, dissolutionjudicial or otherwise, by any Person for the purpose of enforcing or liquidation protecting such Person’s security interest in or lien upon any Property of any Loan Party or any subsidiary Subsidiary, or the seizure, repossession, or other taking of possession, of any property of any Loan Party or any Subsidiary, by any Person other than the ceasing to carry on actively Payee by any substantial part action or means, including condemnation, forfeiture, foreclosure (or deed in lieu of such Loan Party’s foreclosure), seizure, levy, distraint, replevin or subsidiary’s current business; orself-help;
(j) the occurrence of any of the following: (i) a sale of all or substantially all of the assets of Borrower or any subsidiary of any Loan Party other than to a Loan Party, (ii) a merger, consolidation or business combination transaction of Borrower or any subsidiary of any Loan Party with or into another corporation, limited liability company or other entity, (iii) the consummation of a transaction, or series of related transactions, in which any “person” (as such term is used in Sections 13(d) and 14(d) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”)) becomes the “beneficial owner” (as defined in Rule 13d-3 of the Exchange Act)occurrence, directly or indirectly, voluntarily or involuntarily, by operation of 50% law or more otherwise, of Borrower’s any Change of Control of the Parent Guarantor or any subsidiary of any Loan Party’s then outstanding voting securities or event that causes the Parent Guarantor to not own one hundred percent (iv100%) individuals who on the Effective Date constituted the Board of Directors of the Borrower (together with any new directors whose election by such Board Maker. As used in this Note, “Change of Directors or whose nomination for election by the shareholders of the Borrower was approved by a vote of at least a majority of the directors of the Borrower then still in office who were either directors on the Effective Date, or whose election or nomination for election was previously approved) cease for any reason to constitute a majority of the Board of Directors of the Borrower. Failure to exercise this option shall not constitute a waiver of the right to exercise the same at any other time. Notwithstanding the foregoing, if an Event of Default specified in Section 8(d), (e) or (f) shall occur on or before the Loan Discharge Date, then the Loan, all accrued interest in respect thereof and all accrued and unpaid fees and other indebtedness or obligations owing to Lender hereunder shall immediately become due and payable, as aforesaid shall automatically become effective, in each case without the giving of any notice or other action by Lender, which notice or other action is expressly waived by the Loan Parties. If an Event of Default specified in Section 8(d), (e) or (f) shall occur after the Loan Discharge Date, then each Executive Loan, all accrued interest in respect thereof and all accrued and unpaid fees and other indebtedness or obligations owing to each respective Executive Lender hereunder shall immediately become due and payable, as aforesaid shall automatically become effective, in each case without the giving of any notice or other action by the relevant Executive Lender, which notice or other action is expressly waived by the Loan Parties.Control” means:
Appears in 2 contracts
Sources: Secured Promissory Note and Guaranty Agreement (Greenbrook TMS Inc.), Secured Promissory Note and Guaranty Agreement (Neuronetics, Inc.)
Default; Acceleration. Subject to Section 12, at At the option of each Lender and, subject to Sections 6 and 12, at the option of each Executive Lender, this Loan Agreement and the indebtedness evidenced hereby shall become due and payable without further notice or demand, and notwithstanding any prior waiver of any breach or default or other indulgence, upon the occurrence any of the following (each, an “Event of Default”):
(a) the failure by any Loan Party to pay when due any amount due under the Loan or Executive Loan, as applicableand such failure continues for more than five (5) days past the due date;
(b) any breach or failure to perform any of the other terms of this Loan Agreement after the earlier of (i) knowledge thereof by the Borrower or (ii) notice thereof to Borrower and such breach or failure continues unremedied for ten five (105) business days; provided that such ten five (105) business day cure period shall not apply with respect to the other clauses of this Section 97, the provisions of Section 14, or with respect to any breach having and adverse impact in the sole discretion of the Lender on the ShareCare Shares, Remark SPV or the pledge of the equity interests of Remark SPV Holdco LLC (“Holdco SPV”);
(c) any representation, warranty or other statement made or deemed made by or on behalf of any Loan Party pursuant to or in connection with this Loan Agreement shall be incorrect in any material respect as of the date made or deemed made (except that such materiality qualifier shall not be applicable to any representations or warranties that already are qualified or modified as to materiality or “material adverse effect” in the text thereof, which representations and warranties shall be true and correct in all respects subject to such qualification);; KL2 3260857.5
(d) any act by, against, or relating to any Loan Party or any subsidiary of any Loan Party, or its property or assets, which act constitutes the application for, consent to, or sufferance of the appointment of a receiver, trustee or other Person, pursuant to court action or otherwise, over all, or any part of such any Loan Party’s or subsidiary’s property;
(e) any assignment for the benefit of the creditors of any Loan Party or any subsidiary of any Loan Party, or the occurrence of any other involuntary liquidation of any Loan Party or any subsidiary of any Loan Party; the failure by any Loan Party or any subsidiary of any Loan Party to generally pay the debts of such Person Loan Party as they mature; adjudication of bankruptcy or insolvency relative to such Loan Party or any subsidiary of any Loan Party; filing by any Loan Party or any subsidiary of any Loan Party under, or the entry of an order for relief or similar order with respect to any Loan Party in any proceeding pursuant to, Title 11 of the United States Code entitled “bankruptcy” (the “Bankruptcy Code”) or any other federal bankruptcy law;
(f) the default of any Loan Party or any subsidiary of any Loan Party for failure to pay amounts due and payable under any indebtedness of such Loan Party or any subsidiary of any Loan Party in an amount in excess of $100,000, whether individually or in the aggregate (subject to any applicable cure periods, forbearance or forgiveness), if the effect of such default is to accelerate the maturity of any such indebtedness or to permit the holder or holders of any such indebtedness, or any trustee or agent for such holders, to cause such indebtedness to become due and payable prior to its expressed maturity or, if such indebtedness is a guaranty, to call upon such guaranty in advance of nonpayment of the guaranteed indebtedness;
(g) a final judgment or judgments shall be entered against any Loan Party or any subsidiary of any Loan Party in an aggregate amount in excess of $100,000, whether individually or in the aggregate (net of insurance proceeds, if any), and such judgment or judgments shall remain unstayed, unvacated, undischarged or unsatisfied for 30 calendar days;
(h) on or following the Collateral Pledge Effective Date, the Collateral Agent, on behalf of the Lenders, Lender shall for any reason cease to hold a valid and enforceable, perfected, first priority Lien on the Collateral, subject only to Permitted Liens;
(i) the termination of existence, dissolution, or liquidation of any Loan Party or any subsidiary of any Loan Party or the ceasing to carry on actively any substantial part of such Loan Party’s or subsidiary’s current business; or
(j) the occurrence of any of the following: (i) a sale of all or substantially all of the Borrower’s assets of Borrower or any subsidiary of any Loan Party other than to a Loan Party, (ii) a merger, consolidation or business combination transaction of Borrower or any subsidiary of any Loan Party with or into another corporation, limited liability company or other entity, in each case pursuant to which stockholders of the Borrower prior to such merger, consolidation or business combination transaction own less than fifty percent (50%) of the voting interests in the surviving or resulting entity, (iii) the consummation of a transaction, or series of related transactions, in which any “person” (as such term is used in Sections 13(d) and 14(d) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”)) becomes the “beneficial owner” (as defined in Rule 13d-3 of the Exchange Act), directly or indirectly, of 50% or more of Borrower’s or any subsidiary of any Loan Party’s then outstanding voting securities or securities, (iv) individuals who on the Effective Date constituted the Board of Directors of the Borrower (together with any new directors whose election by such Board of Directors or whose nomination for election by the shareholders of the Borrower was approved by a vote of at least a majority of the directors of the Borrower then still in office who were either directors on the Effective Date, or whose election or nomination for election was previously approved) cease for any reason to constitute a majority of the Board of Directors of the BorrowerBorrower or (v) Kai-▇▇▇▇▇ ▇▇▇ shall cease to be involved in the day to day operations and management of the business of the Loan Parties. Failure to exercise this option shall not constitute a waiver of the right to exercise the same at any other time. Notwithstanding the foregoing, if an Event of Default specified in Section 8(d7(d), (e) or (f) shall occur on or before the Loan Discharge Dateoccur, then the Loan, all accrued interest in respect thereof and all accrued and unpaid fees and other indebtedness or obligations owing to Lender hereunder shall immediately become due and payable, as aforesaid shall automatically become effective, in each case without the giving of any notice or other action by Lender, which notice or other action is expressly waived by the Loan Parties. If an Event of Default specified in Section 8(d), (e) or (f) shall occur after the Loan Discharge Date, then each Executive Loan, all accrued interest in respect thereof and all accrued and unpaid fees and other indebtedness or obligations owing to each respective Executive Lender hereunder shall immediately become due and payable, as aforesaid shall automatically become effective, in each case without the giving of any notice or other action by the relevant Executive Lender, which notice or other action is expressly waived by the Loan Parties.
Appears in 1 contract
Sources: Senior Secured Loan Agreement (Remark Holdings, Inc.)
Default; Acceleration. Subject to Section 12, at At the option of each Lender and, subject to Sections 6 and 12, at the option of each Executive Lender, this Loan Agreement and the indebtedness evidenced hereby shall become due and payable without further notice or demand, and notwithstanding any prior waiver of any breach or default or other indulgence, upon the occurrence any of the following (each, an “Event of Default”):
(a) the failure by any Loan Party to pay (i) any principal amount (including any mandatory prepayments required in Section 11(c) or otherwise under the Loan Documents) or any interest payment when due any amount due under the Loan or Executive Loan, as applicableand (ii) any other amount due under this Loan Agreement within three (3) days of the due date thereof;
(b) any breach or failure to perform any of the other terms of this Loan Agreement after the earlier of (i) knowledge thereof by the Borrower or (ii) notice thereof to Borrower and such breach or failure continues unremedied for ten (10) business days; provided that such ten (10) business day cure period shall not apply with respect to the other clauses of this Section 9Borrower;
(c) any representation, warranty or other statement made or deemed made by or on behalf of any Loan Party pursuant to or in connection with this Loan Agreement shall be incorrect in any material respect as of the date made or deemed made (except that such materiality qualifier shall not be applicable to any representations or warranties that already are qualified or modified as to materiality or “material adverse effect” in the text thereof, which representations and warranties shall be true and correct in all respects subject to such qualification);
(d) any act by, against, or relating to any Loan Party or any subsidiary of any Loan Party, or its property or assets, which act constitutes the application for, consent to, or sufferance of the appointment of a receiver, trustee or other Person, pursuant to court action or otherwise, over all, or any part of such any Loan Party’s or subsidiary’s property;
(e) any assignment for the benefit of the creditors of any Loan Party or any subsidiary of any Loan Party, or the occurrence of any other involuntary liquidation of any Loan Party or any subsidiary of any Loan Party; the failure by any Loan Party or any subsidiary of any Loan Party to generally pay the debts of such Person Loan Party as they mature; adjudication of bankruptcy or insolvency relative to such Loan Party or any subsidiary of any Loan Party; filing by any Loan Party or any subsidiary of any Loan Party under, or the entry of an order for relief or similar order with respect to any Loan Party in any proceeding pursuant to, Title 11 of the United States Code entitled “bankruptcy” (the “Bankruptcy Code”) or any other federal bankruptcy law;
(f) the default of any Loan Party or any subsidiary of any Loan Party for failure to pay amounts due and payable under any indebtedness of such Loan Party or any subsidiary of any Loan Party in an amount in excess of $100,000, whether individually or in the aggregate (subject to any applicable cure periods, forbearance or forgiveness), if the effect of such default is to accelerate the maturity of any such indebtedness or to permit the holder or holders of any such indebtedness, or any trustee or agent for such holders, to cause such indebtedness to become due and payable prior to its expressed maturity or, if such indebtedness is a guaranty, to call upon such guaranty in advance of nonpayment of the guaranteed indebtedness;
(g) a final judgment or judgments shall be entered against any Loan Party or any subsidiary of any Loan Party in an aggregate amount in excess of $100,000, whether individually or in the aggregate (net of insurance proceeds, if any), and such judgment or judgments shall remain unstayed, unvacated, undischarged or unsatisfied for 30 calendar days;
(h) on or following the Collateral Pledge Effective Date, the Collateral Agent, on behalf of the Lenders, Lender shall for any reason cease to hold a valid and enforceable, perfected, first priority Lien on the Collateral, subject only to Permitted Liens;
(i) the termination of existence, dissolution, or liquidation of any Loan Party or any subsidiary of any Loan Party or the ceasing to carry on actively any substantial part of such Loan Party’s or subsidiary’s current business; or
(j) the occurrence of any of the following: (i) a sale of all or substantially all of the Borrower’s assets of Borrower or any subsidiary of any Loan Party other than to a Loan Party, (ii) a merger, consolidation or business combination transaction of Borrower or any subsidiary of any Loan Party with or into another corporation, limited liability company or other entity, in each case pursuant to which stockholders of the Borrower prior to such merger, consolidation or business combination transaction own less than fifty percent (50%) of the voting interests in the surviving or resulting entity, (iii) the consummation of a transaction, or series of related transactions, in which any “person” (as such term is used in Sections 13(d) and 14(d) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”)) becomes the “beneficial owner” (as defined in Rule 13d-3 of the Exchange Act), directly or indirectly, of 50% or more of Borrower’s or any subsidiary of any Loan Party’s then outstanding voting securities or securities, (iv) individuals who on the Effective Date constituted the Board of Directors of the Borrower (together with any new directors whose election by such Board of Directors or whose nomination for election by the shareholders of the Borrower was approved by a vote of at least a majority of the directors of the Borrower then still in office who were either directors on the Effective Date, or whose election or nomination for election was previously approved) cease for any reason to constitute a majority of the Board of Directors of the BorrowerBorrower or (v) ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ shall cease to be a board member overseeing the Loan Parties, unless such removal has been agreed to in writing by Lender, and such board seat remains vacant for a period of at least thirty (30) days, provided that the person appointed by the Board of Directors of the Borrower to replace ▇▇. ▇▇▇▇▇ shall be subject to Lender’s approval, not to be unreasonably withheld or delayed. Failure to exercise this option shall not constitute a waiver of the right to exercise the same at any other time. Notwithstanding the foregoing, if an Event of Default specified in Section 8(d), (e) or (f) shall occur on or before the Loan Discharge Dateoccur, then the Loan, all accrued interest in respect thereof and all accrued and unpaid fees and other indebtedness or obligations owing to Lender hereunder shall immediately become due and payable, as aforesaid shall automatically become effective, in each case without the giving of any notice or other action by Lender, which notice or other action is expressly waived by the Loan Parties. If an Event of Default specified in Section 8(d), (e) or (f) shall occur after the Loan Discharge Date, then each Executive Loan, all accrued interest in respect thereof and all accrued and unpaid fees and other indebtedness or obligations owing to each respective Executive Lender hereunder shall immediately become due and payable, as aforesaid shall automatically become effective, in each case without the giving of any notice or other action by the relevant Executive Lender, which notice or other action is expressly waived by the Loan Parties.
Appears in 1 contract
Sources: Senior Secured Loan Agreement (Remark Holdings, Inc.)
Default; Acceleration. Subject to Section 12, at At the option of each Lender and, subject to Sections 6 and 12, at the option of each Executive Lender, this Loan Agreement and the indebtedness evidenced hereby shall become due and payable without further notice or demand, and notwithstanding any prior waiver of any breach or default or other indulgence, upon the occurrence any of the following (each, an “Event of Default”):
(a) the failure by any Loan Party to pay when due any amount due under the Loan or Executive Loan, as applicable;
(b) any breach or failure to perform any of the other terms of this Loan Agreement after the earlier of (i) knowledge thereof by the Borrower or (ii) notice thereof to Borrower and such breach or failure continues unremedied for ten (10) business days; provided that such ten (10) business day cure period shall not apply with respect to the other clauses of this Section 9;
(c) any representation, warranty or other statement made or deemed made by or on behalf of any Loan Party pursuant to or in connection with this Loan Agreement shall be incorrect in any material respect as of the date made or deemed made (except that such materiality qualifier shall not be applicable to any representations or warranties that already are qualified or modified as to materiality or “material adverse effect” in the text thereof, which representations and warranties shall be true and correct in all respects subject to such qualification);
(d) any act by, against, or relating to any Loan Party or any subsidiary of any Loan Party, or its property or assets, which act constitutes the application for, consent to, or sufferance of the appointment of a receiver, trustee or other Person, pursuant to court action or otherwise, over all, or any part of such Loan Party’s or subsidiary’s property;
(e) any assignment for the benefit of the creditors of any Loan Party or any subsidiary of any Loan Party, or the occurrence of any other involuntary liquidation of any Loan Party or any subsidiary of any Loan Party; the failure by any Loan Party or any subsidiary of any Loan Party to generally pay the debts of such Person as they mature; adjudication of bankruptcy or insolvency relative to such Loan Party or any subsidiary of any Loan Party; filing by any Loan Party or any subsidiary of any Loan Party under, or the entry of an order for relief or similar order with respect to any Loan Party in any proceeding pursuant to, Title 11 of the United States Code entitled “bankruptcy” (the “Bankruptcy Code”) or any other federal bankruptcy law;
(f) the default of any Loan Party or any subsidiary of any Loan Party for failure to pay amounts due and payable under any indebtedness of such Loan Party or any subsidiary of any Loan Party in an amount in excess of $100,000, whether individually or in the aggregate (subject to any applicable cure periods, forbearance or forgiveness), if the effect of such default is to accelerate the maturity of any such indebtedness or to permit the holder or holders of any such indebtedness, or any trustee or agent for such holders, to cause such indebtedness to become due and payable prior to its expressed maturity or, if such indebtedness is a guaranty, to call upon such guaranty in advance of nonpayment of the guaranteed indebtedness;
(g) a final judgment or judgments shall be entered against any Loan Party or any subsidiary of any Loan Party in an aggregate amount in excess of $100,000, whether individually or in the aggregate (net of insurance proceeds, if any), and such judgment or judgments shall remain unstayed, unvacated, undischarged or unsatisfied for 30 calendar days;
(h) on or following the Collateral Pledge Effective Date, the Collateral Agent, on behalf of the Lenders, Lender shall for any reason cease to hold a valid and enforceable, perfected, first priority Lien on the Collateral, subject only to Permitted Liens;
(i) the termination of existence, dissolution, or liquidation of any Loan Party or any subsidiary of any Loan Party or the ceasing to carry on actively any substantial part of such Loan Party’s or subsidiary’s current business; or
(j) the occurrence of any of the following: (i) a sale of all or substantially all of the assets of Borrower or any subsidiary of any Loan Party other than to a Loan Party, (ii) a merger, consolidation or business combination transaction of Borrower or any subsidiary of any Loan Party with or into another corporation, limited liability company or other entity, (iii) the consummation of a transaction, or series of related transactions, in which any “person” (as such term is used in Sections 13(d) and 14(d) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”)) becomes the “beneficial owner” (as defined in Rule 13d-3 of the Exchange Act), directly or indirectly, of 50% or more of Borrower’s or any subsidiary of any Loan Party’s then outstanding voting securities or (iv) individuals who on the Effective Date constituted the Board of Directors of the Borrower (together with M▇▇▇▇▇▇ ▇▇▇▇▇▇ and any new directors whose election by such Board of Directors or whose nomination for election by the shareholders of the Borrower was approved by a vote of at least a majority of the directors of the Borrower then still in office who were either directors on the Effective Date, or whose election or nomination for election was previously approved) cease for any reason to constitute a majority of the Board of Directors of the Borrower. Failure to exercise this option shall not constitute a waiver of the right to exercise the same at any other time. Notwithstanding the foregoing, if an Event of Default specified in Section 8(d), (e) or (f) shall occur on or before the Loan Discharge Date, then the Loan, all accrued interest in respect thereof and all accrued and unpaid fees and other indebtedness or obligations owing to Lender hereunder shall immediately become due and payable, as aforesaid shall automatically become effective, in each case without the giving of any notice or other action by Lender, which notice or other action is expressly waived by the Loan Parties. If an Event of Default specified in Section 8(d), (e) or (f) shall occur after the Loan Discharge Date, then each Executive Loan, all accrued interest in respect thereof and all accrued and unpaid fees and other indebtedness or obligations owing to each respective Executive Lender hereunder shall immediately become due and payable, as aforesaid shall automatically become effective, in each case without the giving of any notice or other action by the relevant Executive Lender, which notice or other action is expressly waived by the Loan Parties.
Appears in 1 contract
Sources: Senior Secured Loan Agreement (EVO Transportation & Energy Services, Inc.)
Default; Acceleration. Subject to Section 12, at At the option of each Lender and, subject to Sections 6 and 12, at the option of each Executive LenderRequired Holders, this Loan Agreement and the indebtedness evidenced hereby and by the Notes shall become due and payable without further notice or demand, and notwithstanding any prior waiver of any breach or default or other indulgence, upon the occurrence any of the following (each, an “Event of Default”):
(a) the failure by any Loan Note Party to pay (i) any principal amount (including any mandatory prepayments required in Section 12(c) or otherwise under the Note Documents) or any interest payment when due under the Notes and (ii) any other amount due under this Agreement, the Loan Notes or Executive Loan, as applicableany other Note Document within three (3) days of the due date thereof;
(b) any breach or failure to perform any of the other terms of this Loan Agreement after the earlier of (i) knowledge thereof by the Borrower Issuer or (ii) notice thereof to Borrower and such breach or failure continues unremedied for ten (10) business days; provided that such ten (10) business day cure period shall not apply with respect to the other clauses of this Section 9Issuer;
(c) any representation, warranty or other statement made or deemed made by or on behalf of any Loan Note Party pursuant to or in connection with this Loan Agreement shall be incorrect in any material respect as of the date made or deemed made (except that such materiality qualifier shall not be applicable to any representations or warranties that already are qualified or modified as to materiality or “material adverse effect” in the text thereof, which representations and warranties shall be true and correct in all respects subject to such qualification);
(d) any act by, against, or relating to any Loan Party or any subsidiary of any Loan Note Party, or its property or assets, which act constitutes the application for, consent to, or sufferance of the appointment of a receiver, trustee or other Person, pursuant to court action or otherwise, over all, or any part of such Loan any Note Party’s or subsidiary’s property;
(e) any assignment for the benefit of the creditors of any Loan Party or any subsidiary of any Loan Note Party, or the occurrence of any other involuntary liquidation of any Loan Party or any subsidiary of any Loan Note Party; the failure by any Loan Party or any subsidiary of any Loan Note Party to generally pay the debts of such Person Note Party as they mature; adjudication of bankruptcy or insolvency relative to such Loan Party or any subsidiary of any Loan Note Party; filing by any Loan Party or any subsidiary of any Loan Note Party under, or the entry of an order for relief or similar order with respect to any Loan Note Party in any proceeding pursuant to, Title 11 of the United States Code entitled “bankruptcy” (the “Bankruptcy Code”) or any other federal bankruptcy law;
(f) the default of any Loan Party or any subsidiary of any Loan Note Party for failure to pay amounts due and payable under any indebtedness of such Loan Party or any subsidiary of any Loan Note Party in an amount in excess of $100,000, whether individually or in the aggregate (subject to any applicable cure periods, forbearance or forgiveness), if the effect of such default is to accelerate the maturity of any such indebtedness or to permit the holder or holders of any such indebtedness, or any trustee or agent for such holders, to cause such indebtedness to become due and payable prior to its expressed maturity or, if such indebtedness is a guaranty, to call upon such guaranty in advance of nonpayment of the guaranteed indebtedness;
(g) a final judgment or judgments shall be entered against any Loan Party or any subsidiary of any Loan Note Party in an aggregate amount in excess of $100,000, whether individually or in the aggregate (net of insurance proceeds, if any), and such judgment or judgments shall remain unstayed, unvacated, undischarged or unsatisfied for 30 calendar days;
(h) on or following the Collateral Pledge Effective Date, the Collateral Agent, on behalf of the Lenders, any Holder shall for any reason cease to hold a valid and enforceable, perfected, first priority Lien on the Collateral, subject only to Permitted Liens;
(i) the termination of existence, dissolution, or liquidation of any Loan Party or any subsidiary of any Loan Note Party or the ceasing to carry on actively any substantial part of such Loan Note Party’s or subsidiary’s current business; or
(j) the occurrence of any of the following: (i) a sale of all or substantially all of the Issuer’s assets of Borrower or any subsidiary of any Loan Party other than to a Loan Note Party, (ii) a merger, consolidation or business combination transaction of Borrower or any subsidiary of any Loan Party Issuer with or into another corporation, limited liability company or other entity, in each case pursuant to which stockholders of the Issuer prior to such merger, consolidation or business combination transaction own less than fifty percent (50%) of the voting interests in the surviving or resulting entity, (iii) the consummation of a transaction, or series of related transactions, in which any “person” (as such term is used in Sections 13(d) and 14(d) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”)) becomes the “beneficial owner” (as defined in Rule 13d-3 of the Exchange Act), directly or indirectly, of 50% or more of Borrower’s or any subsidiary of any Loan PartyIssuer’s then outstanding voting securities or securities, (iv) individuals who on the Effective Date December 3, 2021 constituted the Board of Directors of the Borrower Issuer (together with any new directors whose election by such Board of Directors or whose nomination for election by the shareholders of the Borrower Issuer was approved by a vote of at least a majority of the directors of the Borrower Issuer then still in office who were either directors on the Effective DateDecember 3, 2021, or whose election or nomination for election was previously approved) cease for any reason to constitute a majority of the Board of Directors of the BorrowerIssuer or (v) ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ shall cease to be a board member overseeing the Note Parties, unless such removal has been agreed to in writing by the Required Holders, and such board seat remains vacant for a period of at least thirty (30) days, provided that the person appointed by the Board of Directors of the Issuer to replace ▇▇. ▇▇▇▇▇ shall be subject to each Holder’s approval, not to be unreasonably withheld or delayed. Failure to exercise this option any of the foregoing rights at any time shall not constitute a waiver of the right to exercise the same at any other time. Notwithstanding the foregoing, if an Event of Default specified in Section 8(d9(d), (e) or (f) shall occur on or before the Loan Discharge Dateoccur, then the LoanNotes, all accrued interest in respect thereof and all accrued and unpaid fees and other indebtedness or obligations owing to Lender Holders hereunder and under the Notes shall immediately become due and payable, as aforesaid shall automatically become effective, in each case without the giving of any notice or other action by LenderHolders, which notice or other action is expressly waived by the Loan Parties. If an Event of Default specified in Section 8(d), (e) or (f) shall occur after the Loan Discharge Date, then each Executive Loan, all accrued interest in respect thereof and all accrued and unpaid fees and other indebtedness or obligations owing to each respective Executive Lender hereunder shall immediately become due and payable, as aforesaid shall automatically become effective, in each case without the giving of any notice or other action by the relevant Executive Lender, which notice or other action is expressly waived by the Loan Note Parties.
Appears in 1 contract
Default; Acceleration. Subject to Section 12, at the option of each Lender and, subject to Sections 6 and 12, at the option of each Executive Lender, this Loan Agreement and the indebtedness evidenced hereby shall become due and payable without further notice or demand, and notwithstanding any prior waiver of any breach or default or other indulgence, upon the occurrence If any of the following events shall occur and be continuing for any reason whatsoever (each, an “Event and whether such occurrence shall be voluntary or involuntary or come about or be effected by operation of Default”law or otherwise):
(ai) the failure by Company defaults in the payment of any Loan Party to pay principal of or interest on any Note when due any amount due under the Loan or Executive Loansame shall become due, as applicable;
(b) any breach or failure to perform any of the other terms of this Loan Agreement after the earlier of (i) knowledge thereof either by the Borrower terms thereof or (ii) notice thereof to Borrower otherwise as herein provided, and such breach or failure default continues unremedied for ten (10) business days; provided that such ten (10) business day cure period shall not apply with respect to the other clauses of this Section 9;or
(cii) the Company or any representationSubsidiary (a) breaches any of the terms of or defaults under any mortgage, warranty indenture or instrument under which there may be issued or by which there may be secured or evidenced any Indebtedness for money borrowed by the Company or any Subsidiary or (b) fails to perform or observe any other statement made agreement, term or deemed made by or on behalf of any Loan Party pursuant to or in connection with this Loan Agreement shall be incorrect condition contained in any material respect as of the date made or deemed made (except that such materiality qualifier shall not be applicable to agreement under which any representations or warranties that already are qualified or modified as to materiality or “material adverse effect” in the text thereof, which representations Indebtedness is created and warranties shall be true and correct in all respects subject to such qualification);
(d) any act by, against, or relating to any Loan Party or any subsidiary of any Loan Party, or its property or assets, which act constitutes the application for, consent to, or sufferance of the appointment of a receiver, trustee or other Person, pursuant to court action or otherwise, over all, or any part of such Loan Party’s or subsidiary’s property;
(e) any assignment for the benefit of the creditors of any Loan Party or any subsidiary of any Loan Party, or the occurrence of any other involuntary liquidation of any Loan Party or any subsidiary of any Loan Party; the failure by any Loan Party or any subsidiary of any Loan Party to generally pay the debts of such Person as they mature; adjudication of bankruptcy or insolvency relative to such Loan Party or any subsidiary of any Loan Party; filing by any Loan Party or any subsidiary of any Loan Party under, or the entry of an order for relief or similar order with respect to any Loan Party in any proceeding pursuant to, Title 11 of the United States Code entitled “bankruptcy” (the “Bankruptcy Code”) or any other federal bankruptcy law;
(f) the default of any Loan Party or any subsidiary of any Loan Party for failure to pay amounts due and payable under any indebtedness of such Loan Party or any subsidiary of any Loan Party in an amount in excess of $100,000, whether individually or in the aggregate (subject to any applicable cure periods, forbearance or forgiveness), if the effect of such default failure or other event is to accelerate the maturity of any such indebtedness cause, or to permit the holder or holders of any such indebtedness, or any trustee or agent for such holders, Indebtedness to cause such indebtedness to become due and payable prior to its expressed maturity or, if such indebtedness is debt in a guaranty, to call upon such guaranty in advance of nonpayment of the guaranteed indebtedness;
(g) a final judgment or judgments shall be entered against any Loan Party or any subsidiary of any Loan Party in an aggregate principal amount in excess of $100,000100,000 to become due prior to any stated maturity date; or
(iii) any representation or warranty made in writing by or on behalf of the Company or any Subsidiary in this Agreement or any of the Transaction Documents, shall be false or misleading in any respect on the date as of which made; or
(iv) the Company or any Subsidiary fails perform or observe any agreement contained in clause (iii) of Section 7.1 or Section 8; or
(v) the Company or any material Subsidiary fails to perform or observe any other agreement, term or condition contained in this Agreement or any of the Transaction Documents, and such failure shall not have been remedied within 30 days after such failure shall first have become known to the Chief Executive Officer, President, Chief Financial Officer or Executive Vice President of Operations of the Company or such Subsidiary or written notice shall have been received by the Company (regardless of the source of such notice); or
(vi) the Company or any material Subsidiary makes an assignment for the benefit of creditors or is generally unable to pay its debts as such debts become due; or
(vii) any order or decree for relief in respect of the Company or any material Subsidiary is entered under any bankruptcy, reorganization, compromise, arrangement, insolvency, readjustment of debt, dissolution or liquidation or similar law, whether now or hereafter in effect (herein called the "Bankruptcy Law"), of any jurisdiction; or
(viii) the Company or any material Subsidiary petitions or applies to any tribunal for, or consents to, the appointment of, or taking possession by, a trustee, receiver, custodian, liquidator or similar official of the Company or any material Subsidiary, or of any Substantial Part of the assets of the Company or any material Subsidiary, or commences a voluntary case under the Bankruptcy Law of the United States or any proceedings (other than proceedings for the voluntary liquidation and dissolution of a Subsidiary) relating to the Company or any material Subsidiary under the Bankruptcy Law of any other jurisdiction; or
(ix) any such petition or application is filed, or any such proceedings are commenced, against the Company or any Subsidiary and such petition, application or proceeding is unstayed or undismissed within 60 days, or any such petition or application is filed, or any such proceedings are commenced against the Company or any material Subsidiary and the Company or such Subsidiary by any act indicates its approval thereof, consent thereto or acquiescence therein, or an order, judgment or decree is entered appointing any such trustee, receiver, custodian, liquidator or similar official, or approving the petition in any such proceedings, and such order, judgment or decree remains unstayed and in effect for more than 60 days; or
(x) any order, judgment or decree is entered in any proceedings against the Company or any material Subsidiary decreeing the dissolution of the Company or such Subsidiary and such order, judgment or decree remains unstayed and in effect for more than 60 days; or
(xi) any order, judgment or decree is entered in any proceedings against the Company or any Subsidiary decreeing a split-up of the Company or such Subsidiary which requires the divestiture of a Substantial Part, or the divestiture of the stock of a Subsidiary, the assets of which constitute a Substantial Part, of the assets of the Company and its Subsidiaries, taken as a whole, and such order, judgment or decree remains unstayed and in effect for more than 60 days; or
(xii) a final judgment, the payment of which is not covered by existing insurance policies, in an amount in excess of $200,000 is rendered against the Company or any Subsidiary and, within 60 days after entry thereof, such judgment is not discharged or execution thereof stayed pending appeal, or within 60 days after the expiration of any such stay, such judgment is not discharged;
(xiii) the Company defaults under any of the material terms of the Transaction Documents;
(xiv) there shall occur a cessation of a Substantial Part of the business of the Company and/or any of its Subsidiaries for a period which significantly affects the Company's and/or any of its Subsidiaries' capacity to continue their businesses, or the Company or any Subsidiary shall suffer the loss or revocation of any material certificate, license or permit, now held or hereafter acquired by the Company or any Subsidiary, which is necessary to the continued or lawful operation of a Substantial Part of their businesses; or the Company or any Subsidiary shall be enjoined, restrained or in any way prevented by court, governmental or administrative order from conducting all or any Substantial Part of their business affairs for a period of 30 days; or any lease or agreement pursuant to which the Company or any Subsidiary leases, uses or occupies any of its respective real or personal property shall be canceled or terminated by the other party to such lease or agreement prior to the expiration of its stated term which individually or in the aggregate (net of insurance proceeds, if any), and such judgment or judgments shall remain unstayed, unvacated, undischarged or unsatisfied for 30 calendar days;
(h) on or following the Collateral Pledge Effective Date, the Collateral Agent, on behalf of the Lenders, shall for any reason cease to hold which would have a valid and enforceable, perfected, first priority Lien on the Collateral, subject only to Permitted Liens;
(i) the termination of existence, dissolution, or liquidation of any Loan Party or any subsidiary of any Loan Party or the ceasing to carry on actively any substantial part of such Loan Party’s or subsidiary’s current businessMaterial Adverse Effect; or
(jxv) any Termination Event shall occur and as of the occurrence date hereof or any subsequent date, the sum of the various liabilities of the Company and its ERISA Affiliates (such liabilities to include, without limitation, any liability to the PBGC (or any successor thereto) or to any other party under Section 4062, 4063, or 4064 of ERISA or any other provision of law resulting from or otherwise associated with such event) exceeds $200,000 or the Company or any of its ERISA Affiliates as an employer under any Multiemployer Plan shall have made a complete or partial withdrawal from such Multiemployer Plan and the following: plan sponsors of such Multiemployer Plan shall have notified such withdrawing employer that such employer has incurred a withdrawal liability requiring a payment in an amount exceeding $200,000. then (ia) a sale if such event is an Event of all Default specified in clause (viii), (ix) or substantially (x) of this Section 9.1, all of the assets of Borrower or any subsidiary of any Loan Party other than to a Loan PartyNotes at the time outstanding shall automatically become due and payable at 35 par, together with interest accrued thereon, (iib) a merger, consolidation or business combination transaction of Borrower or any subsidiary of any Loan Party with or into another corporation, limited liability company or other entity, (iii) the consummation of a transaction, or series of related transactions, in which any “person” (as if such term event is used in Sections 13(d) and 14(d) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”)) becomes the “beneficial owner” (as defined in Rule 13d-3 of the Exchange Act), directly or indirectly, of 50% or more of Borrower’s or any subsidiary of any Loan Party’s then outstanding voting securities or (iv) individuals who on the Effective Date constituted the Board of Directors of the Borrower (together with any new directors whose election by such Board of Directors or whose nomination for election by the shareholders of the Borrower was approved by a vote of at least a majority of the directors of the Borrower then still in office who were either directors on the Effective Date, or whose election or nomination for election was previously approved) cease for any reason to constitute a majority of the Board of Directors of the Borrower. Failure to exercise this option shall not constitute a waiver of the right to exercise the same at any other time. Notwithstanding the foregoing, if an Event of Default specified in Section 8(d9.1(i), any holder may, at such holder's option, by notice in writing to the Company, declare the Notes held by such holder to be, and all of such holder's Notes shall thereupon be and become, immediately due and payable at par together with interest accrued thereon, and (c) if such event is any Event of Default other than under (i), (eviii), (ix) or (fx) shall occur on or before of this Section 9.1, the Loan Discharge DatePurchaser may, then at its option, by notice in writing to the LoanCompany, declare all accrued interest in respect thereof of the Notes to be, and all of the Notes shall thereupon be and become, immediately due and payable at par, together with interest accrued and unpaid fees and other indebtedness or obligations owing thereon. Each amount that becomes payable pursuant to Lender hereunder this Section 9.1 shall immediately become due and payablepayable without presentment, as aforesaid shall automatically become effectivedemand, in each case without the giving protest or other notice of any notice or other action by Lenderkind, all of which notice or other action is expressly are hereby waived by the Loan Parties. If an Company, except where notice is specifically required by the terms of this Agreement; provided, however, that if, at any time after the principal of the Notes shall so become due and payable prior to the date of maturity stated in such Notes, all arrears of scheduled payments of principal and interest on such Notes shall be paid by or for the account of the Company, the Purchaser, by written notice or notices to the Company, may waive such Event of Default specified in Section 8(d)and its consequences and rescind or annul such declaration, (e) but no such waiver shall extend to or (f) shall occur after the Loan Discharge Date, then each Executive Loan, all accrued interest in respect thereof and all accrued and unpaid fees and other indebtedness affect any subsequent Event of Default or obligations owing to each respective Executive Lender hereunder shall immediately become due and payable, as aforesaid shall automatically become effective, in each case without the giving of impair any notice or other action by the relevant Executive Lender, which notice or other action is expressly waived by the Loan Partiesright resulting therefrom.
Appears in 1 contract
Default; Acceleration. Subject to Section 12, at At the option of each Lender and, subject to Sections 6 and 12, at the option of each Executive Lender, this Loan Agreement and the indebtedness evidenced hereby shall become due and payable without further notice or demand, and notwithstanding any prior waiver of any breach or default or other indulgence, upon the occurrence any of the following (each, an “Event of Default”):
(a) the failure by any Loan Party to pay when due any amount due under the Loan or Executive Loan, as applicable;
(b) any breach or failure to perform any of the other terms of this Loan Agreement after the earlier of (i) knowledge thereof by the Borrower or (ii) notice thereof to Borrower and such breach or failure continues unremedied for ten (10) business days; provided that such ten (10) business day cure period shall not apply with respect to the other clauses of this Section 9;
(c) any representation, warranty or other statement made or deemed made by or on behalf of any Loan Party pursuant to or in connection with this Loan Agreement shall be incorrect in any material respect as of the date made or deemed made (except that such materiality qualifier shall not be applicable to any representations or warranties that already are qualified or modified as to materiality or “material adverse effect” in the text thereof, which representations and warranties shall be true and correct in all respects subject to such qualification);
(d) any act by, against, or relating to any Loan Party or any subsidiary of any Loan Party, or its property or assets, which act constitutes the application for, consent to, or sufferance of the appointment of a receiver, trustee or other Person, pursuant to court action or otherwise, over all, or any part of such Loan Party’s or subsidiary’s property;
(e) any assignment for the benefit of the creditors of any Loan Party or any subsidiary of any Loan Party, or the occurrence of any other involuntary liquidation of any Loan Party or any subsidiary of any Loan Party; the failure by any Loan Party or any subsidiary of any Loan Party to generally pay the debts of such Person as they mature; adjudication of bankruptcy or insolvency relative to such Loan Party or any subsidiary of any Loan Party; filing by any Loan Party or any subsidiary of any Loan Party under, or the entry of an order for relief or similar order with respect to any Loan Party in any proceeding pursuant to, Title 11 of the United States Code entitled “bankruptcy” (the “Bankruptcy Code”) or any other federal bankruptcy law;
(f) the default of any Loan Party or any subsidiary of any Loan Party for failure to pay amounts due and payable under any indebtedness of such Loan Party or any subsidiary of any Loan Party in an amount in excess of $100,000, whether individually or in the aggregate (subject to any applicable cure periods, forbearance or forgiveness), if the effect of such default is to accelerate the maturity of any such indebtedness or to permit the holder or holders of any such indebtedness, or any trustee or agent for such holders, to cause such indebtedness to become due and payable prior to its expressed maturity or, if such indebtedness is a guaranty, to call upon such guaranty in advance of nonpayment of the guaranteed indebtedness;
(g) a final judgment or judgments shall be entered against any Loan Party or any subsidiary of any Loan Party in an aggregate amount in excess of $100,000, whether individually or in the aggregate (net of insurance proceeds, if any), and such judgment or judgments shall remain unstayed, unvacated, undischarged or unsatisfied for 30 calendar days;
(h) on or following the Collateral Pledge Effective Date, the Collateral Agent, on behalf of the Lenders, Lender shall for any reason cease to hold a valid and enforceable, perfected, first priority Lien on the Collateral, subject only to Permitted Liens;
(i) the termination of existence, dissolution, or liquidation of any Loan Party or any subsidiary of any Loan Party or the ceasing to carry on actively any substantial part of such Loan Party’s or subsidiary’s current business; or
(j) the occurrence of any of the following: (i) a sale of all or substantially all of the assets of Borrower or any subsidiary of any Loan Party other than to a Loan Party, (ii) a merger, consolidation or business combination transaction of Borrower or any subsidiary of any Loan Party with or into another corporation, limited liability company or other entity, (iii) the consummation of a transaction, or series of related transactions, in which any “person” (as such term is used in Sections 13(d) and 14(d) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”)) becomes the “beneficial owner” (as defined in Rule 13d-3 of the Exchange Act), directly or indirectly, of 50% or more of Borrower’s or any subsidiary of any Loan Party’s then outstanding voting securities or (iv) individuals who on the Effective Date constituted the Board of Directors of the Borrower (together with ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ and any new directors whose election by such Board of Directors or whose nomination for election by the shareholders of the Borrower was approved by a vote of at least a majority of the directors of the Borrower then still in office who were either directors on the Effective Date, or whose election or nomination for election was previously approved) cease for any reason to constitute a majority of the Board of Directors of the Borrower. Failure to exercise this option shall not constitute a waiver of the right to exercise the same at any other time. Notwithstanding the foregoing, if an Event of Default specified in Section 8(d), (e) or (f) shall occur on or before the Loan Discharge Date, then the Loan, all accrued interest in respect thereof and all accrued and unpaid fees and other indebtedness or obligations owing to Lender hereunder shall immediately become due and payable, as aforesaid shall automatically become effective, in each case without the giving of any notice or other action by Lender, which notice or other action is expressly waived by the Loan Parties. If an Event of Default specified in Section 8(d), (e) or (f) shall occur after the Loan Discharge Date, then each Executive Loan, all accrued interest in respect thereof and all accrued and unpaid fees and other indebtedness or obligations owing to each respective Executive Lender hereunder shall immediately become due and payable, as aforesaid shall automatically become effective, in each case without the giving of any notice or other action by the relevant Executive Lender, which notice or other action is expressly waived by the Loan Parties.
Appears in 1 contract
Sources: Senior Secured Loan and Executive Loan Agreement (Antara Capital LP)