Events of Default Defined; Acceleration of Maturity. If any one or more of the following events ("Events of Default") shall occur (whatever the reason for such Event of Default and whether it shall be voluntary or involuntary or be effected by operation of law or pursuant to any judgment, decree or order of any court or any order, rule or regulation of any administrative or governmental body), 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, or premium (if any) on, any Note when and as the same shall become due and payable, whether at the stated maturity thereof, by notice of or demand for prepayment, or otherwise; or (b) if default shall be made in the due and punctual payment of any interest on any Note when and as such interest shall become due and payable and such default shall have continued for a period of five Business Days; or (c) if default shall be made in the performance or observance of any covenant, agreement or condition contained in: (i) Sections 7, 8, 9.7, 11, 14.2(b), 14.2(e), 14.5 (other than 14.5(d)), 14.6, 14.8, 14.9, 14.10, 14.11, 14.12, 14.13, 14.14, 14.15, 14.16, 14.18, 14.19, 14.20; or 14.21; or (ii) Section 14.5(d) or 14.8 if, in the case of this clause(ii), such default shall have continued for a period of 20 Business Days after the earlier to occur of (A) a Responsible Officer of the Company or any Subsidiary obtaining knowledge of such default or (B) the Company's receipt of written notice of such default; or (d) if default shall be made in the performance or observance of any other of the covenants, agreements or conditions contained in this Agreement or any of the other Operative Documents and such default shall have continued for a period of 30 Business Days after the earlier to occur of (i) a Responsible Officer of the Company or any Subsidiary obtaining knowledge of such default or (ii) the Company's receipt of written notice of such default; or (e) if the Company or any Subsidiary of the Company shall make a general assignment for the benefit of creditors, or shall not pay its debts as they become due, or shall admit in writing its inability to pay its debts as they become due, or shall file a voluntary petition in bankruptcy, or shall be adjudicated bankrupt or insolvent, or 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 petition filed against it in any such proceeding, 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 (or its directors or stockholders shall) take any action looking to its dissolution or liquidation; or (f) if, within 60 days after the commencement of an action against the Company or any Subsidiary of the 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 the Company or any of its Subsidiaries stayed, or if, within 60 days after the appointment without the consent or acquiescence of the Company or any Subsidiary, of any trustee, custodian, receiver, liquidator or fiscal agent for the Company or any Subsidiary of the Company or for all or any substantial part of their respective properties, such appointment shall not have been vacated; or (g) 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 of any Subsidiary of the Company or of all or any substantial part of their respective properties and such custody or control shall not be terminated or stayed within 60 days from the date of assumption of such custody or control; or (h) if the Company or any Subsidiary of the 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) 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 to become due and payable; provided that the amount of the payment which shall have become so due and payable, together with the aggregate amount of all other Indebtedness and other obligations as to which the Company or any Subsidiary is in default, exceeds $1,000,000; 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 and/or any of its Subsidiaries (other than any judgment or judgments with respect to which one or more financially sound and reputable insurers (having the highest or second highest rating available from A.M. Best Company) shall have unconditionally assumed in writing all liability in connection therewith), exceeds an aggregate of $1,000,000 shall be rendered by a court of record against the Company or any Subsidiary, and the Company or such Subsidiary shall not discharge the same or provide for its discharge in accordance with its terms, or procure a stay of execution thereof within 90 days from the date of entry thereof and within such period of 90 days, or such longer period during which execution of such judgment shall have been stayed, move to vacate such judgment or appeal therefrom and cause the exe▇▇▇▇▇▇ ▇▇ereof to be stayed pending determination of such motion or during such appeal, or (j) if any representation or warranty made by or on behalf of the Company or any Subsidiary of the Company in this Agreement or in any of the other Operative Documents or in any agreement, document or instrument delivered under or pursuant to any provision hereof or thereof shall prove to have been materially false or incorrect 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, cancelled, terminated or declared to be unenforceable, null and void; or (l) if (i) any Plan shall fail to satisfy the minimum funding standards of ERISA or the Code for any plan year or part thereof or a waiver of such standards or extension of any amortization period is sought or granted under Section 412 of the Code, (ii) a notice of intent to terminate any Plan shall have been or is reasonably expected to be filed with the PBGC or the PBGC shall have instituted proceedings under Section 4042 of ERISA to terminate or appoint a trustee to administer any Plan or the PBGC shall have notified the Company or any ERISA Affiliate that a Plan may become a subject of any such proceedings, (iii) the aggregate "amount of unfunded benefit liabilities" (within the meaning of Section 4001(a)(18) of ERISA) under all Plans, determined in accordance with Title IV of ERISA, shall exceed $250,000, (iv) the Company or any ERISA Affiliate shall have incurred or is reasonably expected to incur any liability pursuant to Title I or IV of ERISA or the penalty or excise tax provisions of the Code relating to employee benefit plans, (v) the Company or any ERISA Affiliate withdraws from any Multiemployer Plan, or (vi) the Company or any Subsidiary of the Company establishes or amends any employee welfare benefit plan that provides post-employment welfare benefits in a manner that would increase the liability of the Company or any Subsidiary of the Company thereunder; and any such event or events described in clauses (i) through (vi) 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 Change; or (m) if (i) any holder of any Lien on any properties and assets of the Company or any Subsidiary shall take possession of or shall foreclose upon or take other enforcement action with respect to the properties and assets subject to such Lien, provided that such properties and assets (A) have a Fair Market Value immediately after such action of more than 10% of Consolidated Total Assets as of the end of the then most recently completed fiscal year of the Company or (B) accounted for more than 10% of Consolidated Cash Flow for the then most recently completed fiscal year of the Company and (ii) such foreclosure or other enforcement action shall continue for 30 days or more; or (n) any Change of Control shall occur; then, in the case of any Event of Default which is continuing (other than one of the character described in subdivisions (e), (f), (g) or (m) of this Section 16.1) and at the option of the holder or holders of 25% or more in aggregate principal amount of the Notes at the time outstanding (excluding any Notes at the time owned by the Company or any Affiliate of the Company), exercised by written notice to the Company, the principal of all Notes shall forthwith become due and payable, together with interest accrued thereon, without presentment, demand, protest or other notice of any kind, all of which are hereby expressly waived, and the Company shall forthwith upon any such acceleration pay to 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 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 which is continuing and irrespective of whether all of the Notes have been declared due and payable by the holder or holders of 25% or more in aggregate principal amount 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 holder, by written notice to the Company 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 or other notice of any kind, all of which are hereby expressly waived, and the Company shall forthwith upon any such acceleration pay to such holder (i) the entire principal of and interest accrued on such Notes, and (ii) in addition, to the extent permitted by applicable law, an amount equal to the Make Whole Amount as liquidated damages and not as a penalty; provided that, in the case of any Event of Default which is continuing (and has continued for not less than five Business Days) (other than one of the character described in subdivisions (e), (f), (g) or (m) of this Section 16.1) and irrespective of whether all of the Notes have been declared due and payable by the holder or holders of 25% or more in aggregate principal amount of the Notes at the time outstanding, the holder or holders of 16% or more in aggregate principal amount of the Notes at the time outstanding who or which has not consented to any waiver with respect to such Event of Default may, at the option of such holder or holders, by written notice to the Company, declare all Notes then held by such holder or holders to be, and such Notes shall thereupon become, forthwith due and payable, together with interest accrued thereon, without presentment, demand, protest or other notice of any kind, all of which are hereby expressly waived, and the Company shall forthwith upon any such acceleration pay to such holder or holders (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 Make Whole Amount 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), (g) or (m) 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 proceeding, whether or not any such interest is allowed as an enforceable claim in such proceeding), without presentment, demand, protest or other notice of any kind, all of which are hereby expressly waived, and the Company shall forthwith upon any such acceleration pay to the holder or holders of all the Notes then outstanding (i) the entire principal of and interest accrued on the Notes, and (ii) in addition, to the extent permitted by applicable law, an amount equal to the 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 and before any judgment, decree or order for payment of the money due has been obtained by or on behalf of any holder or holders of the Notes, the Required Holders of the Notes by written notice to the Company, may rescind and annul such Event of Default and/or notice of such Event of Default and the consequences thereof with respect to all of the Notes (excluding any Notes which were accelerated pursuant to the first or second 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 Company has paid a sum sufficient to pay (A) all overdue installments of interest on all Notes at the rate specified in the Notes; (B) the principal of (and premium, if any, on) any Notes which have become due otherwise than by such Event of Default or notice thereof and interest thereon at the rate for overdue amounts specified in such Notes; and (C) to the extent that payment of such interest is lawful, interest upon overdue interest at the rate for overdue amounts specified in such Notes; and (2) all Defaults and Events of Default, other than the non-payment of the principal of Notes which have become due solely by such acceleration, have been cured or waived as provided in Section 19. No such rescission shall affect any subsequent default or impair any right consequent thereon.
Appears in 1 contract
Sources: Securities Purchase Agreement (Booth Creek Ski Holdings Inc)
Events of Default Defined; Acceleration of Maturity. If any one or more of the following events ("Events of Default") shall occur and be continuing (whatever the reason for such Event of Default and whether it shall be voluntary or involuntary or be effected by operation of law or pursuant to any judgment, decree or order of any court or any order, rule or regulation of any administrative or governmental body), 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, or premium Premium (if any) or interest on, any Note when and as the same shall become due and payable, whether at the stated maturity thereof, by notice of or demand for prepayment, or otherwise; or
(b) if default shall be made in the due and punctual payment of any interest on any Note when and as such interest shall become due and payable , and such default shall have continued for a period of five Business Days; orthree days;
(b) if a Default (as defined in the Lease) of Mercury under the Lease shall occur or if a default of the Company under the Lease shall occur;
(c) if an Event of Default (as defined in the Mortgage)shall occur;
(d) if default shall be made in the performance or observance of any covenant, agreement or condition contained in:
(i) Sections in Section 1.01, 1.02, 1.03, 1.04, 1.05, 1.12, 1.17, 1.19, 1.20, 1.23 and Article 2 of the Mortgage, Section 6, 9, 11, 13 and 14 of the Assignment, Section 7, 9, 10, 11, 14, 15, and 16 of the Tenant Agreement, Section 3, 4.1, 4.2, 4.4, 4.5, 4.7, 4.8 and 5 of the Representation Letter or in Section 6, 7(b), 8, 9.79, 1112, 14.2(b), 14.2(e), 14.5 (other than 14.5(d)), 14.6, 14.8, 14.9, 14.10, 14.11, 14.12, 14.13, 14.14, 14.15, 14.16, 14.18, 14.19, 14.20; or 14.21; or15 and 28 hereof;
(ii) Section 14.5(d) or 14.8 if, in the case of this clause(ii), such default shall have continued for a period of 20 Business Days after the earlier to occur of (A) a Responsible Officer of the Company or any Subsidiary obtaining knowledge of such default or (B) the Company's receipt of written notice of such default; or
(de) if default shall be made in the performance or observance of any other of the covenants, agreements or conditions contained in this Agreement, the Mortgage, the Assignment, the Tenant Agreement, the Environmental Risk Agreement or any of the other Operative Documents Representation Letter and such default shall have continued for a period of 30 Business Days days after the earlier to occur of (i) a Responsible Officer of the Company or any Subsidiary Company's obtaining actual knowledge of such default or (ii) the Company's receipt of written notice of such default; or;
(ef) if the Company or any Subsidiary of the Company Mercury shall make a general an assignment for the benefit of creditors, or shall not pay its debts as they become due, or shall admit in writing its inability to pay its debts as they become due, or shall file a voluntary petition in bankruptcy, or shall be adjudicated bankrupt or insolvent, or 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 petition filed against it the Company or Mercury in any such proceeding, or shall seek or consent to or acquiesce in the appointment of any trustee, custodian, receiver, liquidator or fiscal agent for it of the Company or for Mercury or of all or any substantial part of its propertiesthe properties of the Company or Mercury, or the Company or Mercury shall (or its directors or stockholders shall) take any action looking to its the dissolution or liquidation; orliquidation of the Company or Mercury;
(fg) if, within 60 days after the commencement of an action against the Company or any Subsidiary of the Company Mercury 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 or affairs of the Company or Mercury stayed, or if the stay of any of its Subsidiaries stayedsuch order or proceeding shall thereafter be set aside, or if, within 60 days after the appointment without the consent or acquiescence of the Company or any Subsidiary, Mercury of any trustee, custodian, receiver, liquidator or fiscal agent for the Company or any Subsidiary of the Company or for Mercury or of all or any substantial part of their respective propertiesthe properties of the Company or Mercury, such appointment shall not have been vacated; or;
(gh) if, under the provisions of any law for the relief or aid of debtors, any court or governmental agency of competent jurisdiction Governmental Authority shall assume custody or control of the Company or of any Subsidiary of the Company Mercury or of all or any substantial part of their respective properties and such custody or control shall not be terminated or stayed within 60 days from the date of assumption of such custody or control; or;
(hi) if the Company or any Subsidiary of the Company Mercury shall fail to (i) make any payment due on any Indebtedness for borrowed money (other than the NotesNotes issued hereunder) or other obligation (including any in respect of the deferred purchase price of property or on any Guaranty of the foregoing or on any obligation under any lease (other than the Lease), including, without limitation, any Capital Lease, or under any Shares upon the exercise by any Person of any put or call option conditional sale or other similar right of redemption title retention agreement or repurchase with regard shall fail to such Shares in accordance with the terms of such option or right) or (ii) perform, observe or discharge any covenant, condition or obligation in any agreement, document or instrument evidencing, agreement securing or relating to such Indebtedness or other obligationthe same; PROVIDED that, if the effect of any such failure of the character described in this clause (h) is as applied to causeMercury, or any other Person shall cause, any payment in respect thereof to become due and payable; provided that the amount of the payment which shall have become so due and payable, together with the aggregate amount of all other Indebtedness and other obligations as to which the Company such Indebtedness, purchase price of property, Guaranty, lease obligation or any Subsidiary is in default, exceeds conditional sale or title retention agreement shall equal or exceed $1,000,000; or250,000;
(ij) 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 and/or any of its Subsidiaries (other than any judgment or judgments with respect to which one or more financially sound and reputable insurers (having the highest or second highest rating available from A.M. Best Company) shall have unconditionally assumed in writing all liability in connection therewith)Mercury, exceeds an aggregate of $1,000,000 250,000 (or, in the case of Mercury, $500,000) shall be rendered by a court of record against the Company or any SubsidiaryMercury, and the Company or such Subsidiary Mercury shall not discharge the same or provide for its discharge in accordance with its terms, or procure a stay of execution thereof within 90 60 days from the date of entry thereof and within such period of 90 60 days, or such longer period during which execution of such judgment shall have been stayed, move to vacate such judgment or appeal therefrom and cause the exe▇▇▇▇▇▇ ▇▇ereof execution thereof to be stayed pending determination of such motion or during such appeal, or;
(jk) if any representation or warranty made by the Company, herein or on behalf of by the Company or any Subsidiary of the Company in this Agreement or Mercury in any of the other Operative Documents or in any agreement, document or instrument delivered under or pursuant to any provision hereof or thereof shall prove to have been materially false or incorrect in any material respect on the date as of which made; or, or shall have been breached in any material respect, as the case may be;
(kl) ifif a default of the character specified in subdivisions (e), (g), (h) or (j) shall occur and, prior to the expiration of the grace period mentioned therein, a related judgment against the Company or Mercury remains unsatisfied, unsecured by bond and unstayed pending appeal shall have become effective, the result or effect of which judgment is to render the Company or Mercury unable to cure such default within such grace period, or any other event shall have occurred which has that result or effect or the Company shall have admitted its inability to cure such default within such grace period;
(m) if Mercury shall cease to own all of the outstanding membership units of the Company or if Mercury shall cease to be the managing member of the Company other than as permitted under Section 1.19 of the Mortgage;
(n) if any license or permit now held or hereafter acquired by the Company or Mercury is lost, suspended, revoked or not renewed and such loss, suspension, revocation or non-renewal shall have a material adverse effect on the Mortgaged Property or any part thereof or interest therein or would result in a Material Adverse Change to the Company or Mercury;
(o) if at any time, this Agreement or time any of the other Operative Documents shall for any reason (other than the scheduled termination thereof in accordance with its terms) expireexpires, fail fails to be in full force and effect or shall be disaffirmed, repudiated, cancelled, canceled or terminated or shall be or be declared to be unenforceable, unenforceable or null and or void; or
(lp) if (i) any Plan shall fail the failure of Mercury to satisfy maintain a minimum Tangible Net Worth of $54,450,000 on the minimum funding standards of ERISA or the Code for any plan year or part thereof or a waiver of such standards or extension of any amortization period is sought or granted under Section 412 date of the CodeClosing (after giving effect to the transaction contemplated hereby) and commencing with November 2, 2000 and on each November 2 thereafter, a minimum Tangible Net Worth equal to the sum of (iix) a notice $54,450,000 plus (y) fifty percent (50%) of intent to terminate any Plan Mercury's cumulative positive Net Income since the date of the Closing;
(q) an Event of Default (as defined in that certain Note Purchase Agreement between you and Riverneck Road, LLC dated October 26, 1999) shall have been or is reasonably expected to occur and be filed with the PBGC or the PBGC shall have instituted proceedings under Section 4042 of ERISA to terminate or appoint a trustee to administer any Plan or the PBGC shall have notified the Company or any ERISA Affiliate that a Plan may become a subject of any such proceedings, continuing; and
(iiir) the aggregate "amount failure to obtain a certificate 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, (iv) the Company or any ERISA Affiliate shall have incurred or is reasonably expected to incur any liability pursuant to Title I or IV of ERISA or the penalty or excise tax provisions of the Code relating to employee benefit plans, (v) the Company or any ERISA Affiliate withdraws from any Multiemployer Plan, or (vi) the Company or any Subsidiary of the Company establishes or amends any employee welfare benefit plan that provides post-employment welfare benefits in a manner that would increase the liability of the Company or any Subsidiary of the Company thereunder; and any such event or events described in clauses (i) through (vi) 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 Change; or
(m) if (i) any holder of any Lien on any properties and assets of the Company or any Subsidiary shall take possession of or shall foreclose upon or take other enforcement action with respect to the properties and assets subject to such Lien, provided that such properties and assets (A) have a Fair Market Value immediately after such action of more than 10% of Consolidated Total Assets as of the end of the then most recently completed fiscal year of the Company or (B) accounted for more than 10% of Consolidated Cash Flow compliance for the then most recently completed fiscal year order of the Company and (ii) such foreclosure conditions identified on EXHIBIT 4.5 on or other enforcement action shall continue for 30 days or more; or
(n) any Change of Control shall occur; before June 1, 2000. then, in the case of any an Event of Default which is continuing (other than one of the character described in subdivisions (a), (b), (c), (d), (e), (fi), (gj), (k), (1), (m), (n), (o), (p), (q) or (mr) of this Section 16.1) 11.1 and at the option of the holder or holders of 25% or more in aggregate principal amount of the Notes at the time outstanding (excluding any Notes at the time owned by the Company or any Affiliate of the Company), Required Holders exercised by written notice to the Company, the principal of all Notes shall forthwith become due and payable, together with interest accrued thereon, without presentment, demand, protest or other additional notice of any kind, all of which are hereby expressly waived, and the Company shall forthwith upon any such acceleration pay to the holder or holders of all the Notes then outstanding (i) the entire principal of and interest accrued on the Notes, and (ii) in addition, to the extent permitted by applicable law, an amount equal to the Make Whole Amount with respect to such Notes, as liquidated damages and not as a penalty; provided that, in PROVIDED that during the case existence of an Event of Default of the character described in subdivisions subdivision (a) or (b) of this Section 16.1 which is continuing 11.1 and irrespective of whether all of the Notes have been declared due and payable by the holder or holders of 25% or more in aggregate principal amount of the Notes at the time outstandingRequired Holders, 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 holderhis or its option, by written notice to the Company Company, 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 or other additional notice of any kind, all of which are hereby expressly waived, and the Company shall forthwith upon any such acceleration pay to such holder (i) the entire principal of and interest accrued on such Notes, and (ii) in addition, to the extent permitted by applicable law, an amount equal to the Make Whole Amount with respect to such Notes, as liquidated damages and not as a penalty; provided that, in . Upon the case of any Event of Default which is continuing (and has continued for not less than five Business Days) (other than one of the character described in subdivisions (e), (f), (g) or (m) of this Section 16.1) and irrespective of whether all of the Notes have been declared due and payable by the holder or holders of 25% or more in aggregate principal amount of the Notes at the time outstanding, the holder or holders of 16% or more in aggregate principal amount of the Notes at the time outstanding who or which has not consented to any waiver with respect to such Event of Default may, at the option of such holder or holders, by written notice to the Company, declare all Notes then held by such holder or holders to be, and such Notes shall thereupon become, forthwith due and payable, together with interest accrued thereon, without presentment, demand, protest or other notice of any kind, all of which are hereby expressly waived, and the Company shall forthwith upon any such acceleration pay to such holder or holders (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 Make Whole Amount as liquidated damages and not as a penalty; provided, further, that, in the case occurrence of an Event of Default of the character described in subdivisions (e), (f), (g) or (mh) of this Section 16.111.1, 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 proceeding by or proceeding against the Company under the federal Federal bankruptcy laws, as now or hereafter constituted, or any other applicable domestic or foreign federal 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 a claim enforceable claim against the Company in such proceeding), without presentment, demand, protest or other notice of any kind, all of which are hereby expressly waived, and the Company shall forthwith upon any such acceleration pay to the holder or holders of all the Notes then outstanding (i) the entire principal of and interest accrued on the Notes, and (ii) in addition, to the extent permitted by applicable law, an amount equal to the Make Whole Amount with respect to such Notes, as liquidated damages and not as a penalty. Notwithstanding the foregoing provisions, at any time after the occurrence of any an Event of Default and of the character specified in subdivisions (f), (g) or (h) or of notice thereof, if any, by any the holder or holders of 51% or more in aggregate principal amount of the Notes at the time outstanding (excluding any Notes at the time owned by the Company or any Affiliate of the Company or Mercury) of an Event of Default of the character described in subdivisions (a), (b), (c), (d), (e), (i), (j), (k), (1), (m), (n) (o), (p), (q) or (r) 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 holder or holders of 66-2/3% or more in aggregate principal amount of all Notes at the time outstanding (excluding any Notes at the time owned by the Company or any Affiliate of the Notes Company) by written notice to the Company, may rescind and annul such Event of Default and/or or notice of such Event of Default and the consequences thereof with respect to all of the Notes (excluding including any Notes which were accelerated pursuant to the first or second proviso in the next 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 16.1paragraph) if:
: (1) the Company has paid a sum sufficient to pay
pay for (Aany and all) all overdue installments of interest on all Notes at the rate specified in the such Notes;
; (Bb) the principal of (and premiumPremium, 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
the Notes and (Cc) to the extent that payment of such interest is lawful, interest upon overdue interest at the rate for overdue amounts specified in such the Notes; and
and (2) all Defaults and Events of Default, other than the non-payment of the principal of the Notes which have become due solely by such acceleration, have been cured or waived as provided in Section 1915. No such rescission shall affect any subsequent default Default or impair any right consequent thereon.
Appears in 1 contract
Sources: Note Purchase Agreement (Mercury Computer Systems Inc)
Events of Default Defined; Acceleration of Maturity. If any one or more of the following events ("Events of Default") shall occur and be continuing (whatever the reason for such Event of Default and whether it shall be voluntary or involuntary or be effected by operation of law or pursuant to any judgment, decree or order of any court or any order, rule or regulation of any administrative or governmental body), 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, or premium Premium (if any) or interest on, any Note when and as the same shall become due and payable, whether at the stated maturity thereof, by notice of or demand for prepayment, or otherwise; or
(b) if default shall be made in the due and punctual payment of any interest on any Note when and as such interest shall become due and payable , and such default shall have continued for a period of five Business Days; orthree days;
(b) if a Default (as defined in the Lease) of Mercury under the Lease shall occur or if a default of the Company under the Lease shall occur;
(c) if an Event of Default (as defined in the Mortgage)shall occur;
(d) if default shall be made in the performance or observance of any covenant, agreement or condition contained in:
(i) Sections in Section 1.01, 1.02, 1.03, 1.04, 1.05, 1.12, 1.17, 1.19, 1.20, 1.23 and Article 2 of the Mortgage, Section 6, 9, 11, 13 and 14 of the Assignment, Section 7, 9, 10, 11, 14, 15, and 16 of the Tenant Agreement, Section 3, 4.1, 4.2, 4.4, 4.5, 4.7, 4.8 and 5 of the Representation Letter or in Section 6, 7(b), 8, 9.79, 1112, 14.2(b), 14.2(e), 14.5 (other than 14.5(d)), 14.6, 14.8, 14.9, 14.10, 14.11, 14.12, 14.13, 14.14, 14.15, 14.16, 14.18, 14.19, 14.20; or 14.21; or15 and 28 hereof;
(ii) Section 14.5(d) or 14.8 if, in the case of this clause(ii), such default shall have continued for a period of 20 Business Days after the earlier to occur of (A) a Responsible Officer of the Company or any Subsidiary obtaining knowledge of such default or (B) the Company's receipt of written notice of such default; or
(de) if default shall be made in the performance or observance of any other of the covenants, agreements or conditions contained in this Agreement, the Mortgage, the Assignment, the Tenant Agreement, the Environmental Risk Agreement or any of the other Operative Documents Representation Letter and such default shall have continued for a period of 30 Business Days days after the earlier to occur of (i) a Responsible Officer of the Company or any Subsidiary Company's obtaining actual knowledge of such default or (ii) the Company's receipt of written notice of such default; or;
(ef) if the Company or any Subsidiary of the Company Mercury shall make a general an assignment for the benefit of creditors, or shall not pay its debts as they become due, or shall admit in writing its inability to pay its debts as they become due, or shall file a voluntary petition in bankruptcy, or shall be adjudicated bankrupt or insolvent, or 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 petition filed against it the Company or Mercury in any such proceeding, or shall seek or consent to or acquiesce in the appointment of any trustee, custodian, receiver, liquidator or fiscal agent for it of the Company or for Mercury or of all or any substantial part of its propertiesthe properties of the Company or Mercury, or the Company or Mercury shall (or its directors or stockholders shall) take any action looking to its the dissolution or liquidation; orliquidation of the Company or Mercury;
(fg) if, within 60 days after the commencement of an action against the Company or any Subsidiary of the Company Mercury 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 or affairs of the Company or Mercury stayed, or if the stay of any of its Subsidiaries stayedsuch order or proceeding shall thereafter be set aside, or if, within 60 days after the appointment without the consent or acquiescence of the Company or any Subsidiary, Mercury of any trustee, custodian, receiver, liquidator or fiscal agent for the Company or any Subsidiary of the Company or for Mercury or of all or any substantial part of their respective propertiesthe properties of the Company or Mercury, such appointment shall not have been vacated; or;
(gh) if, under the provisions of any law for the relief or aid of debtors, any court or governmental agency of competent jurisdiction Governmental Authority shall assume custody or control of the Company or of any Subsidiary of the Company Mercury or of all or any substantial part of their respective properties and such custody or control shall not be terminated or stayed within 60 days from the date of assumption of such custody or control; or;
(hi) if the Company or any Subsidiary of the Company Mercury shall fail to (i) make any payment due on any Indebtedness for borrowed money (other than the NotesNotes issued hereunder) or other obligation (including any in respect of the deferred purchase price of property or on any Guaranty of the foregoing or on any obligation under any lease (other than the Lease), including, without limitation, any Capital Lease, or under any Shares upon the exercise by any Person of any put or call option conditional sale or other similar right of redemption title retention agreement or repurchase with regard shall fail to such Shares in accordance with the terms of such option or right) or (ii) perform, observe or discharge any covenant, condition or obligation in any agreement, document or instrument evidencing, agreement securing or relating to such Indebtedness or other obligationthe same; PROVIDED that, if the effect of any such failure of the character described in this clause (h) is as applied to causeMercury, or any other Person shall cause, any payment in respect thereof to become due and payable; provided that the amount of the payment which shall have become so due and payable, together with the aggregate amount of all other Indebtedness and other obligations as to which the Company such Indebtedness, purchase price of property, Guaranty, lease obligation or any Subsidiary is in default, exceeds conditional sale or title retention agreement shall equal or exceed $1,000,000; or250,000;
(ij) 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 and/or any of its Subsidiaries (other than any judgment or judgments with respect to which one or more financially sound and reputable insurers (having the highest or second highest rating available from A.M. Best Company) shall have unconditionally assumed in writing all liability in connection therewith)Mercury, exceeds an aggregate of $1,000,000 250,000 (or, in the case of Mercury, $500,000) shall be rendered by a court of record against the Company or any SubsidiaryMercury, and the Company or such Subsidiary Mercury shall not discharge the same or provide for its discharge in accordance with its terms, or procure a stay of execution thereof within 90 60 days from the date of entry thereof and within such period of 90 60 days, or such longer period during which execution of such judgment shall have been stayed, move to vacate such judgment or appeal therefrom and cause the exe▇▇▇▇▇▇ ▇▇ereof execution thereof to be stayed pending determination of such motion or during such appeal, or;
(jk) if any representation or warranty made by the Company, herein or on behalf of by the Company or any Subsidiary of the Company in this Agreement or Mercury in any of the other Operative Documents or in any agreement, document or instrument delivered under or pursuant to any provision hereof or thereof shall prove to have been materially false or incorrect in any material respect on the date as of which made; or, or shall have been breached in any material respect, as the case may be;
(kl) ifif a default of the character specified in subdivisions (e), (g), (h) or (j) shall occur and, prior to the expiration of the grace period mentioned therein, a related judgment against the Company or Mercury remains unsatisfied, unsecured by bond and unstayed pending appeal shall have become effective, the result or effect of which judgment is to render the Company or Mercury unable to cure such default within such grace period, or any other event shall have occurred which has that result or effect or the Company shall have admitted its inability to cure such default within such grace period;
(m) if Mercury shall cease to own all of the outstanding membership units of the Company or if Mercury shall cease to be the managing member of the Company other than as permitted under Section 1.19 of the Mortgage;
(n) if any license or permit now held or hereafter acquired by the Company or Mercury is lost, suspended, revoked or not renewed and such loss, suspension, revocation or non-renewal shall have a material adverse effect on the Mortgaged Property or any part thereof or interest therein or would result in a Material Adverse Change to the Company or Mercury;
(o) if at any time, this Agreement or time any of the other Operative Documents shall for any reason (other than the scheduled termination thereof in accordance with its terms) expireexpires, fail fails to be in full force and effect or shall be disaffirmed, repudiated, cancelled, canceled or terminated or shall be or be declared to be unenforceable, unenforceable or null and or void; or
(lp) if (i) any Plan shall fail the failure of Mercury to satisfy maintain a minimum Tangible Net Worth of $54,450,000 on the minimum funding standards of ERISA or the Code for any plan year or part thereof or a waiver of such standards or extension of any amortization period is sought or granted under Section 412 date of the CodeClosing (after giving effect to the transaction contemplated hereby) and commencing with November 2, 2000 and on each November 2 thereafter, a minimum Tangible Net Worth equal to the sum of (iix) a notice $54,450,000 plus (y) fifty percent (50%) of intent to terminate any Plan Mercury's cumulative positive Net Income since the date of the Closing;
(q) an Event of Default (as defined in that certain Note Purchase Agreement between you and 199 Riverneck, LLC dated October 26, 1999) shall have been or is reasonably expected to occur and be filed with the PBGC or the PBGC shall have instituted proceedings under Section 4042 of ERISA to terminate or appoint a trustee to administer any Plan or the PBGC shall have notified the Company or any ERISA Affiliate that a Plan may become a subject of any such proceedings, continuing; and
(iiir) the aggregate "amount failure to obtain a certificate 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, (iv) the Company or any ERISA Affiliate shall have incurred or is reasonably expected to incur any liability pursuant to Title I or IV of ERISA or the penalty or excise tax provisions of the Code relating to employee benefit plans, (v) the Company or any ERISA Affiliate withdraws from any Multiemployer Plan, or (vi) the Company or any Subsidiary of the Company establishes or amends any employee welfare benefit plan that provides post-employment welfare benefits in a manner that would increase the liability of the Company or any Subsidiary of the Company thereunder; and any such event or events described in clauses (i) through (vi) 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 Change; or
(m) if (i) any holder of any Lien on any properties and assets of the Company or any Subsidiary shall take possession of or shall foreclose upon or take other enforcement action with respect to the properties and assets subject to such Lien, provided that such properties and assets (A) have a Fair Market Value immediately after such action of more than 10% of Consolidated Total Assets as of the end of the then most recently completed fiscal year of the Company or (B) accounted for more than 10% of Consolidated Cash Flow compliance for the then most recently completed fiscal year order of the Company and (ii) such foreclosure conditions identified on Exhibit 4.5 on or other enforcement action shall continue for 30 days or more; or
(n) any Change of Control shall occur; before June 1, 2000. then, in the case of any an Event of Default which is continuing (other than one of the character described in subdivisions (a), (b), (c), (d), (e), (fi), (gj), (k), (1), (m), (n), (o), (p), (q) or (mr) of this Section 16.1) 11.1 and at the option of the holder or holders of 25% or more in aggregate principal amount of the Notes at the time outstanding (excluding any Notes at the time owned by the Company or any Affiliate of the Company), Required Holders exercised by written notice to the Company, the principal of all Notes shall forthwith become due and payable, together with interest accrued thereon, without presentment, demand, protest or other additional notice of any kind, all of which are hereby expressly waived, and the Company shall forthwith upon any such acceleration pay to the holder or holders of all the Notes then outstanding (i) the entire principal of and interest accrued on the Notes, and (ii) in addition, to the extent permitted by applicable law, an amount equal to the Make Whole Amount with respect to such Notes, as liquidated damages and not as a penalty; provided that, in PROVIDED that during the case existence of an Event of Default of the character described in subdivisions subdivision (a) or (b) of this Section 16.1 which is continuing 11.1 and irrespective of whether all of the Notes have been declared due and payable by the holder or holders of 25% or more in aggregate principal amount of the Notes at the time outstandingRequired Holders, 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 holderhis or its option, by written notice to the Company Company, 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 or other additional notice of any kind, all of which are hereby expressly waived, and the Company shall forthwith upon any such acceleration pay to such holder (i) the entire principal of and interest accrued on such Notes, and (ii) in addition, to the extent permitted by applicable law, an amount equal to the Make Whole Amount with respect to such Notes, as liquidated damages and not as a penalty; provided that, in . Upon the case of any Event of Default which is continuing (and has continued for not less than five Business Days) (other than one of the character described in subdivisions (e), (f), (g) or (m) of this Section 16.1) and irrespective of whether all of the Notes have been declared due and payable by the holder or holders of 25% or more in aggregate principal amount of the Notes at the time outstanding, the holder or holders of 16% or more in aggregate principal amount of the Notes at the time outstanding who or which has not consented to any waiver with respect to such Event of Default may, at the option of such holder or holders, by written notice to the Company, declare all Notes then held by such holder or holders to be, and such Notes shall thereupon become, forthwith due and payable, together with interest accrued thereon, without presentment, demand, protest or other notice of any kind, all of which are hereby expressly waived, and the Company shall forthwith upon any such acceleration pay to such holder or holders (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 Make Whole Amount as liquidated damages and not as a penalty; provided, further, that, in the case occurrence of an Event of Default of the character described in subdivisions (e), (f), (g) or (mh) of this Section 16.111.1, 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 proceeding by or proceeding against the Company under the federal Federal bankruptcy laws, as now or hereafter constituted, or any other applicable domestic or foreign federal 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 a claim enforceable claim against the Company in such proceeding), without presentment, demand, protest or other notice of any kind, all of which are hereby expressly waived, and the Company shall forthwith upon any such acceleration pay to the holder or holders of all the Notes then outstanding (i) the entire principal of and interest accrued on the Notes, and (ii) in addition, to the extent permitted by applicable law, an amount equal to the Make Whole Amount with respect to such Notes, as liquidated damages and not as a penalty. Notwithstanding the foregoing provisions, at any time after the occurrence of any an Event of Default and of the character specified in subdivisions (f), (g) or (h) or of notice thereof, if any, by any the holder or holders of 51% or more in aggregate principal amount of the Notes at the time outstanding (excluding any Notes at the time owned by the Company or any Affiliate of the Company or Mercury) of an Event of Default of the character described in subdivisions (a), (b), (c), (d), (e), (i), (j), (k), (1), (m), (n) (o), (p), (q) or (r) 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 holder or holders of 66-2/3% or more in aggregate principal amount of all Notes at the time outstanding (excluding any Notes at the time owned by the Company or any Affiliate of the Notes Company) by written notice to the Company, may rescind and annul such Event of Default and/or or notice of such Event of Default and the consequences thereof with respect to all of the Notes (excluding including any Notes which were accelerated pursuant to the first or second proviso in the next 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 16.1paragraph) if:
: (1) the Company has paid a sum sufficient to pay
pay for (Aany and all) all overdue installments of interest on all Notes at the rate specified in the such Notes;
; (Bb) the principal of (and premiumPremium, 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
the Notes and (Cc) to the extent that payment of such interest is lawful, interest upon overdue interest at the rate for overdue amounts specified in such the Notes; and
and (2) all Defaults and Events of Default, other than the non-payment of the principal of the Notes which have become due solely by such acceleration, have been cured or waived as provided in Section 1915. No such rescission shall affect any subsequent default Default or impair any right consequent thereon.
Appears in 1 contract
Sources: Note Purchase Agreement (Mercury Computer Systems Inc)