1Events of Default. (a) If default occurs in payment when due of any principal amount payable under this Debenture. (b) If default occurs in payment when due of any interest, fees or other amounts payable under this Debenture and remains unremedied for a period of five Business Days after the receipt by the Corporation of notice of such default. (c) If default occurs in payment or performance of any other Obligation (whether arising herein or otherwise) and remains unremedied for a period of sixty days after the receipt by the Corporation of notice of such default. (d) If default occurs in performance of any other covenant of the Corporation or any Guarantor in favour of the Lender under this Debenture and remains unremedied for a period of sixty days after the receipt by the Corporation of notice of such default. (e) If an event of default occurs in payment or performance of any obligation in favour of any Person from whom the Corporation or any Guarantor has borrowed in excess of $250,000 which would entitle the holder to accelerate repayment of the borrowed money, and such default is not remedied or waived in writing within sixty days of the occurrence of such default. (f) If the Corporation or any Guarantor commits an act of bankruptcy or becomes insolvent within the meaning of any bankruptcy or insolvency legislation applicable to it or a petition or other process for the bankruptcy of the Corporation or any Guarantor is filed or instituted and remains undismissed or unstayed for a period of sixty days or any of the relief sought in such proceeding (including the entry of an order for relief against it or the appointment of a receiver, trustee, custodian or other similar official for it or any substantial part of its property) shall occur. (g) If any act, matter or thing is done toward, or any action or proceeding is launched or taken to terminate the corporate existence of the Corporation, or any Guarantor, whether by winding‒up, surrender of charter or otherwise. (h) If the Corporation or any Guarantor ceases to carry on its business or makes or proposes to make any sale of its assets in bulk or any sale of its assets out of the usual course of its business unless expressly permitted herein or otherwise by the Lender in writing. LEGAL*52823942.10 (i) If any proposal is made or any petition is filed by or against the Corporation or any Guarantor under any law having for its purpose the extension of time for payment, composition or compromise of the liabilities of such Corporation or any Guarantor or other reorganization or arrangement respecting its or any Guarantor’s liabilities or if the Corporation or any Guarantor gives notice of its intention to make or file any such proposal or petition including an application to any court to stay or suspend any proceedings of creditors pending the making or filing of any such proposal or petition. (j) If any receiver, administrator or manager of the property, assets or undertaking of the Corporation or any Guarantor or a substantial part thereof is appointed pursuant to the terms of any trust deed, trust indenture, debenture or similar instrument or by or under any judgment or order of any court. (k) If any balance sheet or other financial statement provided by the Corporation to the Lender pursuant to the provisions hereof is false or misleading in any material respect. (l) If any proceedings are taken to enforce any Encumbrance affecting any of the Secured Property or if a distress or any similar process be levied or enforced against any of the Secured Property. (m) If any judgment or order for the payment of money in excess of $250,000 shall be rendered against the Corporation or any Guarantor and either (i) enforcement proceedings shall have been commenced by any creditor upon such judgment or order, or (ii) there shall be any period of sixty consecutive days during which a stay of enforcement of such judgment or order, by reason of a pending appeal or otherwise, shall not be in effect. (n) If any action is taken or power or right be exercised by any Governmental Body which would have a Material Adverse Effect. (o) If any representation or warranty made by the Corporation or any Guarantor herein or in any other Instrument to which it is a party or in any certificate, statement or report furnished in connection herewith is found to be false or incorrect in any way so as to make it materially misleading when made or when deemed to have been made. (p) If a Change of Control occurs with respect to the Corporation, without the Lender’s prior written consent. (q) If there shall occur or arise any change (or any condition, event or development involving a prospective change) in the business, operations, affairs, assets, liabilities (including any contingent liabilities that may arise through outstanding pending or threatened litigation or otherwise), capitalization, financial condition, licenses, permits, rights or privileges, whether contractual or otherwise, or prospects of the Corporation or any Guarantor which, in the judgment of the Lender, acting reasonably, would have a Material Adverse Effect. LEGAL*52823942.10
Appears in 1 contract
1Events of Default. Any of the following from and after the Closing Date shall constitute an event of default:
(a) If default occurs in payment The Borrower shall fail to pay any principal of any Term Loan when due of in accordance with the terms hereof (whether at stated maturity, by mandatory prepayment or otherwise); or the Borrower shall fail to pay any principal interest on any Term Loan, or any other amount payable under this Debenture.hereunder, within five Business Days after any such interest or other amount becomes due in accordance with the terms hereof; or
(b) If default occurs Any representation or warranty made or deemed made by any Loan Party herein or in payment when due any other Loan Document (or in any amendment, modification or supplement hereto or thereto) or which is contained in any certificate furnished at any time by or on behalf of any interestLoan Party pursuant to this Agreement or any such other Loan Document shall prove to have been incorrect in any material respect on or as of the date made or deemed made; or
(c) Any Loan Party shall default in the payment, fees observance or performance of any term, covenant or agreement contained in Section 8; or
(d) Any Loan Party shall default in the observance or performance of any other amounts payable under agreement contained in this Debenture and remains Agreement or any other Loan Document (other than as provided in clauses (a) through (c) of this Section 9.1), such default shall continue unremedied for a period of five Business Days 30 days, in the case of a default with respect to reporting obligations under Subsection 7.1, after notice thereof from the Administrative Agent or the Required Lenders and in the case of any other default, after the receipt earlier of (A) the date on which a Responsible Officer of the Borrower becomes aware of such failure and (B) the date on which written notice thereof shall have been given to the Borrower by the Corporation of notice of such default. Administrative Agent or the Required Lenders; or
(ce) If Any Loan Party or any of its Restricted Subsidiaries shall (i) default occurs in (x) any payment of principal of or interest on any Indebtedness (excluding the Term Loans) in excess of the Threshold Amount or (y) in the payment of any Guarantee Obligation in excess of the Threshold Amount, beyond the period of grace, if any, provided in the instrument or agreement under which such Indebtedness or Guarantee Obligation was created; (ii) default in the observance or performance of any other 10023685561003003016v52 #8894688589588927v75 agreement or condition relating to any Indebtedness (excluding the Term Loans) or Guarantee Obligation referred to in clause (whether arising herein i) above or otherwise) and remains unremedied for contained in any instrument or agreement evidencing, securing or relating thereto (other than a period of sixty days after the receipt by the Corporation of failure to provide notice of such default.
(d) If a default occurs in performance of any other covenant of the Corporation or any Guarantor in favour of the Lender under this Debenture and remains unremedied for a period of sixty days after the receipt by the Corporation of notice of such default.
(e) If an event of default occurs under such instrument or agreement or default in payment the observance of or performance of compliance with any obligation in favour of any Person from whom the Corporation financial maintenance covenant), or any Guarantor has borrowed in excess other event shall occur or condition exist, the effect of $250,000 which would entitle default or other event or condition is to cause, or to permit the holder or holders of such Indebtedness or beneficiary or beneficiaries of such Guarantee Obligation (or a trustee or agent on behalf of such holder or holders or beneficiary or beneficiaries) to accelerate repayment cause, with the giving of notice or lapse of time if required, such Indebtedness to become due prior to its stated maturity or such Guarantee Obligation to become payable (an “Acceleration”; and the borrowed moneyterm “Accelerated” shall have a correlative meaning), and such time shall have lapsed and, if any notice (a “Default Notice”) shall be required to commence a grace period or declare the occurrence of an event of default is before notice of Acceleration may be delivered, such Default Notice shall have been given and such default shall not have been remedied or waived in writing within sixty days by or on behalf of such holder or holders (provided that this clause (ii) shall not apply to (x) secured Indebtedness that becomes due as a result of the occurrence voluntary sale or transfer of the property or assets securing such default. Indebtedness, if such sale or transfer is permitted hereunder or (y) any termination event or similar event pursuant to the terms of any Hedge Agreement) or (iii) in the case of any Indebtedness or Guarantee Obligations referred to in clause (i) above containing or otherwise requiring observance or compliance with any financial maintenance covenant, such Indebtedness or Guarantee Obligation shall have been Accelerated and such Acceleration shall not have been rescinded; or
(f) If (i) the Corporation Borrower or any Guarantor commits an act Material Subsidiary of bankruptcy the Borrower shall commence any case, proceeding or becomes insolvent within the meaning other action (A) under any existing or future law of any bankruptcy jurisdiction, domestic or insolvency legislation applicable foreign, relating to bankruptcy, insolvency, reorganization or relief of debtors, seeking to have an order for relief entered with respect to it, or seeking to adjudicate it a bankrupt or insolvent, or seeking reorganization, arrangement, adjustment, winding-up, liquidation, dissolution, composition or other relief with respect to it or its debts (excluding, in each case, the solvent liquidation or reorganization of any Foreign Subsidiary of the Borrower that is not a petition Loan Party), or (B) seeking appointment of a receiver, interim receiver, receivers, receiver and manager, trustee, custodian, conservator or other process similar official for it or for all or any substantial part of its assets, or the Borrower or any Material Subsidiary of the Borrower shall make a general assignment for the bankruptcy benefit of its creditors; or (ii) there shall be commenced against the Borrower or any Material Subsidiary of the Corporation Borrower any case, proceeding or any Guarantor is filed or instituted and remains undismissed or unstayed for other action of a period of sixty days or any of the relief sought nature referred to in such proceeding clause (including i) above which (A) results in the entry of an order for relief or any such adjudication or appointment or (B) remains undismissed, undischarged, unstayed or unbonded for a period of 60 days; or (iii) there shall be commenced against it the Borrower or any Material Subsidiary of the appointment Borrower any case, proceeding or other action seeking issuance of a receiverwarrant of attachment, trusteeexecution, custodian distraint or other similar official for it process against all or any substantial part of its propertyassets which results in the entry of an order for any such relief which shall not have been vacated, discharged, stayed or bonded pending appeal within 60 days from the entry thereof; or (iv) the Borrower or any Material Subsidiary of the Borrower shall occur. take any corporate or other 10023685561003003016v52 #8894688589588927v75 similar organizational action in furtherance of, or indicating its consent to, approval of, or acquiescence in, any of the acts set forth in clause (i), (ii), or (iii) above; or (v) the Borrower or any Material Subsidiary of the Borrower shall be generally unable to, or shall admit in writing its general inability to, pay its debts as they become due; or
(gi) If any actAn ERISA Event occurs with respect to a Pension Plan or Multiemployer Plan which has resulted or would reasonably be expected to result in liability of the Borrower under Title IV of ERISA to the Pension Plan, matter Multiemployer Plan or thing is done towardthe PBGC in an aggregate amount which would reasonably be expected to result in a Material Adverse Effect, (ii) the Borrower or any action ERISA Affiliate fails to pay when due, after the expiration of any applicable grace period, any installment payment with respect to its withdrawal liability under Section 4201 of ERISA under a Multiemployer Plan in an aggregate amount which would reasonably be expected to result in a Material Adverse Effect or proceeding is launched (iii) a Foreign Benefit Event occurs which, either individually or taken together with other Foreign Benefit Events that have occurred, would reasonably be expected to terminate the corporate existence of the Corporation, or any Guarantor, whether by winding‒up, surrender of charter or otherwise. result in a Material Adverse Effect; or
(h) If One or more judgments or decrees shall be entered against the Corporation Borrower or any Guarantor ceases to carry on its business or makes or proposes to make any sale of its assets Restricted Subsidiaries involving in bulk the aggregate at any time a liability (net of any insurance or indemnity payments actually received in respect thereof prior to or within 60 days from the entry thereof, or to be received in respect thereof in the event any sale of its assets out appeal thereof shall be unsuccessful) of the usual course of its business unless expressly permitted herein Threshold Amount or otherwise by more, and all such judgments or decrees shall not have been vacated, discharged, stayed or bonded pending appeal within 60 days from the Lender in writing. LEGAL*52823942.10 entry thereof; or
(i) If with respect to any proposal is made Collateral, individually, having a fair market value in excess of the Threshold Amount, any of the Security Documents ceases to be in full force and effect, or any petition of the Security Documents ceases to give the Lenders the Liens purported to be created thereby, or any of the Security Documents is filed by declared null and void or against the Corporation Borrower or any Guarantor denies in writing that it has any further liability under any law having for its purpose Security Document (in each case other than in accordance with the extension terms of time for payment, composition this Agreement or compromise any of the liabilities Security Documents), except to the extent that any loss of perfection or priority results from the failure of the Collateral Agent (or any other collateral agent for any Indebtedness secured by a Lien) to maintain possession of certificates actually delivered to it representing securities, promissory notes or other instruments pledged under the Security Documents, or otherwise results from the gross negligence or willful misconduct of the Administrative Agent or the Collateral Agent (or any other collateral agent for any Indebtedness secured by a Lien) and except, as to Collateral consisting of real property, to the extent that such failure is covered by a lender’s title insurance policy and the Collateral Agent is reasonably satisfied with the credit of such Corporation or any Guarantor or other reorganization or arrangement respecting its or any Guarantor’s liabilities or insurer; provided, that if a failure of the Corporation or any Guarantor gives notice sort described in this Section 9.1(i) is susceptible of its intention to make or file any such proposal or petition cure (including an application with respect to any court to stay loss of Lien priority on material portions of the Collateral), no Event of Default shall arise under this Section 9.1(i) with respect thereto until 30 days after a Responsible Officer becomes aware of such failure; or suspend any proceedings of creditors pending the making or filing of any such proposal or petition. 10023685561003003016v52 #8894688589588927v75
(j) If any receiver, administrator or manager of Subject to the property, assets or undertaking of Borrower’s option to make an offer to prepay the Corporation or any Guarantor or a substantial part thereof is appointed Term Loans pursuant to the terms of any trust deedSection 8.8, trust indenture, debenture or similar instrument or by or under any judgment or order of any court.
(k) If any balance sheet or other financial statement provided by the Corporation to the Lender pursuant to the provisions hereof is false or misleading in any material respect.
(l) If any proceedings are taken to enforce any Encumbrance affecting any of the Secured Property or if a distress or any similar process be levied or enforced against any of the Secured Property.
(m) If any judgment or order for the payment of money in excess of $250,000 shall be rendered against the Corporation or any Guarantor and either (i) enforcement proceedings shall have been commenced by any creditor upon such judgment or order, or (ii) there shall be any period of sixty consecutive days during which a stay of enforcement of such judgment or order, by reason of a pending appeal or otherwise, shall not be in effect.
(n) If any action is taken or power or right be exercised by any Governmental Body which would have a Material Adverse Effect.
(o) If any representation or warranty made by the Corporation or any Guarantor herein or in any other Instrument to which it is a party or in any certificate, statement or report furnished in connection herewith is found to be false or incorrect in any way so as to make it materially misleading when made or when deemed to have been made.
(p) If a Change of Control occurs with respect to the Corporation, without the Lender’s prior written consent.
(q) If there shall occur or arise any change (or any condition, event or development involving a prospective change) in the business, operations, affairs, assets, liabilities (including any contingent liabilities that may arise through outstanding pending or threatened litigation or otherwise), capitalization, financial condition, licenses, permits, rights or privileges, whether contractual or otherwise, or prospects of the Corporation or any Guarantor which, in the judgment of the Lender, acting reasonably, would have a Material Adverse Effect. LEGAL*52823942.10 occurred.
Appears in 1 contract
Sources: Incremental Commitment Amendment (Warner Music Group Corp.)
1Events of Default. The occurrence of any of the following shall constitute an Event of Default:
(a) If default occurs in payment Borrower shall fail to pay any amount of principal of any Loan when due in accordance with the terms hereof; or Borrower shall fail to pay any amount of interest on any principal Loan, or any other amount payable hereunder or under this Debenture.any other Loan Document, within three (3) Business Days after any such interest or other amount becomes due in accordance with the terms hereof; or
(b) If any representation or warranty made or deemed made by any Loan Party or Limited Recourse Pledgor herein or in any other Loan Document or that is contained in any certificate, document or financial or other statement furnished by it at any time under or in connection with this Agreement or any such other Loan Document (i) if qualified by materiality, shall be incorrect or materially misleading when made or deemed made (after giving effect to such materiality qualifier), or (ii) if not qualified by materiality, shall be incorrect or materially misleading in any material respect when made or deemed made; or
(c) any (i) Loan Party shall default occurs in payment when due the observance or performance of any interestagreement contained in Sections 5.3, fees 6.1, 6.2, 6.5(a), 6.7(b), 6.8, 6.10, 6.12, 6.13, or Section 7 of this Agreement or (ii) any Limited Recourse Pledgor shall default in the observance or performance of any agreement or obligation contained in this Agreement or any Limited Recourse Pledge Agreement; or
(d) any Loan Party shall default in the observance or performance of any other amounts payable under agreement contained in this Debenture Agreement or any other Loan Document (other than as provided in paragraphs (a) through (c) of this Section), and remains such default shall continue unremedied for a period of five Business Days after the receipt by the Corporation of notice of such default. 30 days thereafter; or
(c1) If any Group Member shall (i) default occurs in making any payment of any principal of any Indebtedness (including any Guarantee Obligation, but excluding the Loans) outstanding in a principal amount of $1,500,000 or more; or (ii) default in making any payment of any interest on any such Indebtedness beyond the period of grace, if any, provided in the instrument or agreement under which such Indebtedness was created; or (iii) default in making any payment or delivery under any such Indebtedness constituting a Swap Agreement beyond the period of grace, if any, provided in such Swap Agreement; or (iv) default in the observance or performance of any other Obligation agreement or condition relating to any such Indebtedness or contained in any instrument or agreement evidencing, securing or relating thereto, or any other event shall occur or condition exist, the effect of which default or other event or condition is to (whether arising herein x) cause, or otherwiseto permit the holder or beneficiary of, or, in the case of any such Indebtedness constituting a Swap Agreement, counterparty under, such Indebtedness (or a trustee or agent on behalf of such holder, beneficiary, or counterparty) and remains unremedied for a period of sixty days after to cause, with the receipt by the Corporation giving of notice of if required, such default.
Indebtedness to become due prior to its stated maturity or (d) If default occurs in performance the case of any other covenant such Indebtedness constituting a Guarantee Obligation) to become payable or (in the case of any such Indebtedness constituting a Swap Agreement) to be terminated, or (y) to cause, with the Corporation or any Guarantor in favour of the Lender under this Debenture and remains unremedied for a period of sixty days after the receipt by the Corporation giving of notice if required, any Group Member to purchase or redeem or make an offer to purchase or redeem such Indebtedness prior to its stated maturity; provided that, a default, event or condition described in clause (i), (ii), (iii), or (iv) of such default.
this paragraph (e) If shall not at any time constitute an Event of Default unless, at such time, one or more defaults, events or conditions of the type described in clauses (i), (ii), (iii), and (iv) of this paragraph (e) shall have occurred with respect to Indebtedness the outstanding principal amount (and, in the case of Swap Agreements the Swap Termination Value) of which, individually or in the aggregate of all such Indebtedness, exceeds in the aggregate $1,500,000; or (2) any default or event of default occurs in payment or performance (however designated) shall occur with respect to any Subordinated Indebtedness of any obligation in favour of any Person from whom the Corporation or any Guarantor has borrowed in excess of $250,000 which would entitle the holder to accelerate repayment of the borrowed money, and such default is not remedied or waived in writing within sixty days of the occurrence of such default. Group Member; or
(f) If (i) any Group Member or Limited Recourse Pledgor shall commence any case, proceeding or other action (a) under the Corporation Bankruptcy Code or any Guarantor commits an act of bankruptcy other existing or becomes insolvent within the meaning future law of any bankruptcy jurisdiction, domestic or insolvency legislation applicable foreign, relating to bankruptcy, insolvency, reorganization or relief of debtors, seeking to have an order for relief entered with respect to it, or seeking to adjudicate it a bankrupt or insolvent, or seeking reorganization, arrangement, adjustment, winding-up, liquidation, dissolution, composition or other relief with respect to it or its debts, or (b) seeking appointment of a petition receiver, trustee, custodian, conservator or other process similar official for it or for all or any substantial part of its assets, or any Group Member or Limited Recourse Pledgor shall make a general assignment for the bankruptcy benefit of the Corporation its creditors; or (ii) there shall be commenced against any Guarantor is filed Group Member or instituted and remains undismissed Limited Recourse Pledgor any case, proceeding or unstayed for other action of a period of sixty days or any of the relief sought nature referred to in such proceeding clause (including i) above that (a) results in the entry of an order for relief or any such adjudication or appointment or (b) remains undismissed, undischarged or unbonded for a period of 60 days; or (iii) there shall be commenced against it any Group Member or the appointment Limited Recourse Pledgor any case, proceeding or other action seeking issuance of a receiverwarrant of attachment, trusteeexecution, custodian distraint or other similar official for it process against all or any substantial part of its propertyassets that results in the entry of an order for any such relief that shall not have been vacated, discharged, or stayed or bonded pending appeal within 60 days from the entry thereof; or (iv) any Group Member or Limited Recourse Pledgor shall occur. take any action in furtherance of, or indicating its consent to, approval of, or acquiescence in, any of the acts set forth in clause (i), (ii), or (iii) above; or (v) any Group Member or Limited Recourse Pledgor shall generally not, or shall be unable to, or shall admit in writing its inability to, pay its debts as they become due; or
(g) If there shall occur one or more ERISA Events which individually or in the aggregate results in or otherwise is associated with liability of any act, matter or thing is done toward, Loan Party or any action ERISA Affiliate thereof in excess of $1,5000,000 during the term of this Agreement; or proceeding is launched there exists, an amount of unfunded benefit liabilities (as defined in Section 4001(a)(18) of ERISA), individually or taken in the aggregate for all Pension Plans (excluding for purposes of such computation any Pension Plans with respect to terminate the corporate existence of the Corporation, or any Guarantor, whether by winding‒up, surrender of charter or otherwise. which assets exceed benefit liabilities) which exceeds $1,500,000; or
(h) If the Corporation or there is entered against any Guarantor ceases to carry on its business or makes or proposes to make any sale of its assets in bulk or any sale of its assets out of the usual course of its business unless expressly permitted herein or otherwise by the Lender in writing. LEGAL*52823942.10
Group Member (i) If any proposal is made one or any petition is filed by more final judgments or against the Corporation or any Guarantor under any law having for its purpose the extension of time for payment, composition or compromise of the liabilities of such Corporation or any Guarantor or other reorganization or arrangement respecting its or any Guarantor’s liabilities or if the Corporation or any Guarantor gives notice of its intention to make or file any such proposal or petition including an application to any court to stay or suspend any proceedings of creditors pending the making or filing of any such proposal or petition.
(j) If any receiver, administrator or manager of the property, assets or undertaking of the Corporation or any Guarantor or a substantial part thereof is appointed pursuant to the terms of any trust deed, trust indenture, debenture or similar instrument or by or under any judgment or order of any court.
(k) If any balance sheet or other financial statement provided by the Corporation to the Lender pursuant to the provisions hereof is false or misleading in any material respect.
(l) If any proceedings are taken to enforce any Encumbrance affecting any of the Secured Property or if a distress or any similar process be levied or enforced against any of the Secured Property.
(m) If any judgment or order orders for the payment of money involving in excess the aggregate a liability (not paid or fully covered by insurance as to which the relevant insurance company has acknowledged coverage) of $250,000 shall 1,000,000 or more, or (ii) one or more non-monetary final judgments that have, or could reasonably be rendered against expected to have, individually or in the Corporation or any Guarantor and aggregate, a Material Adverse Effect and, in either case, (iA) enforcement proceedings shall have been are commenced by any creditor upon such judgment or order, or (iiB) there all such judgments or decrees shall be any period of sixty consecutive days during which a stay of enforcement of such judgment not have been vacated, discharged, stayed or order, by reason of a bonded pending appeal within 30 days from the entry thereof; or
(i) the guarantee contained in Section 2 of the Guarantee and Collateral Agreement or otherwisethe guarantee in any Limited Recourse Pledgor Agreement shall cease, shall not for any reason, to be in effect. full force and effect or any Loan Party or Limited Recourse Pledgor shall so assert; or
(nj) If (i) any action is taken of the Security Documents or power Limited Recourse Pledge Agreement shall cease, for any reason, to be in full force and effect (other than pursuant to the terms thereof), or right be exercised any Loan Party or Limited Recourse Pledgor shall so assert, or any Lien created by any Governmental Body which would have a Material Adverse Effect.
(o) If any representation of the Security Documents or warranty made by the Corporation or any Guarantor herein or in any other Instrument to which it is a party or in any certificate, statement or report furnished in connection herewith is found Limited Recourse Pledge Agreements shall cease to be false or incorrect enforceable and of the same effect and priority purported to be created thereby, in any way so as to make it materially misleading when made or when deemed to have been made.
(p) If a Change of Control occurs each case with respect to the Corporation, without the Lender’s prior written consent.
(q) If there shall occur Collateral or arise assets pledged under any change (or any condition, event or development involving Limited Recourse Pledge Agreement with a prospective change) fair market value in the business, operations, affairs, assets, liabilities (including any contingent liabilities that may arise through outstanding pending or threatened litigation or otherwise), capitalization, financial condition, licenses, permits, rights or privileges, whether contractual or otherwise, or prospects excess of the Corporation or any Guarantor which, in the judgment of the Lender, acting reasonably, would have a Material Adverse Effect. LEGAL*52823942.10 $500,000; or
Appears in 1 contract
Sources: Credit Agreement (Enfusion, Inc.)
1Events of Default. . The occurrence of any of the following shall constitute an Event of Default:
(a) If default occurs in payment the Borrower shall fail to pay any principal of any Loan when due of in accordance with the terms hereof; or the Borrower shall fail to pay any principal interest on any Loan, or any other amount payable hereunder or under this Debenture.any other Loan Document, within three (3) days after any such interest or other amount becomes due in accordance with the terms hereof; provided that any non-payment of principal, interest or other amounts resulting from the Borrower’s good faith payment of an invoice received from the Administrative Agent in a lesser amount or with the incorrect payment date shall not constitute an Event of Default, so long as, in the case of payment in a lesser amount, within three (3) days’ of notice to the Borrower from the Administrative Agent of the corrected invoice amount, the Borrower pays the amount of the prior underpayment; or
(b) If default occurs any representation or warranty made or deemed made by any Loan Party herein or in payment when due of any interest, fees other Loan Document or that is contained in any certificate or other amounts payable statement furnished by it at any time under or in connection with this Debenture and remains unremedied for Agreement or any such other Loan Document shall prove to have been inaccurate in any material respect on or as of the date made or deemed made (or if any representation or warranty is expressly stated to have been made as of a period of five Business Days after the receipt by the Corporation of notice specific date, inaccurate in any material respect as of such default. specific date); or
(c) If any Loan Party shall default occurs in payment the observance or performance of any agreement contained (i) in Section 7 of this Agreement (provided that, with respect to Section 7.1 thereof, such default shall be subject to the last sentence of Section 7.1(c)), (ii) in Section 6.7(a) or (iii) in Section 6.4(a)(i) (solely with respect to the Borrower); or
(d) any Loan Party shall default in the observance or performance of any other Obligation agreement contained in this Agreement or any other Loan Document (whether arising herein other than as provided in paragraphs (a) through (c) of this Section 8.1), and such default shall continue unremedied or otherwise) and remains unremedied unwaived for a period of sixty thirty (30) days after the receipt earlier of (A) the date on which a Senior Officer of the Borrower becomes aware of such failure and (B) the date on which written notice thereof shall have been given to the Borrower by the Corporation of notice of such default.Administrative Agent or the Required Lenders; or
(de) If (i) any Group Member shall default in making any payment of any principal of any Indebtedness (including any Guarantee Obligation, but excluding the Loans) on the scheduled or original due date and beyond the period of grace, if any, with respect thereto; (ii) any Group Member shall default in making any payment of any interest on any such Indebtedness beyond the period of grace, if any, provided in the instrument or agreement under which such Indebtedness was created; (iii) there occurs under any Swap Agreement an Early Termination Date (as defined in such Swap Agreement) resulting from (A) any event of default under such Swap Agreement as to which a Loan Party or any Subsidiary thereof is the Defaulting, Party (as defined in such Swap Agreement) or (B) any Termination Event (as so defined) under such Swap Agreement as to which a Loan Party or any Subsidiary thereof is an Affected Party (as so defined); or (iv) any Group Member shall default in the observance or performance of any other covenant of the Corporation agreement or condition relating to any such Indebtedness or contained in any instrument or agreement evidencing, securing or relating thereto, or any Guarantor in favour other event shall occur or condition exist, after giving effect to any applicable grace period, the effect of which default or other event or condition is to (x) cause, or to permit the Lender under this Debenture and remains unremedied for holder or beneficiary of such Indebtedness (or a period trustee or agent on behalf of sixty days after such holder or beneficiary) to cause, with the receipt by the Corporation giving of notice if required, such Indebtedness to become due prior to its stated maturity or (in the case of any such Indebtedness constituting a Guarantee Obligation) to become payable or (y) to cause, with the giving of notice if required, any Group Member to purchase or redeem or make an offer to purchase or redeem such Indebtedness prior to its stated maturity; provided that a default.
, event or condition described in clause (i), (ii), (iii) or (iv) of this paragraph (e) If shall not at any time constitute an event Event of default occurs in payment Default unless, at such time, one or performance of any obligation in favour of any Person from whom the Corporation more defaults, events or any Guarantor has borrowed in excess of $250,000 which would entitle the holder to accelerate repayment conditions of the borrowed moneytype described in clauses (i), (ii), (iii) or (iv) of this paragraph (e) shall have occurred and such default is not remedied be continuing with respect to Indebtedness the outstanding principal amount of which exceeds $7,500,000 in the aggregate; or waived in writing within sixty days of the occurrence of such default.
(f) If the Corporation (i) any Group Member shall commence any case, proceeding or other action (a) under any Guarantor commits an act of bankruptcy existing or becomes insolvent within the meaning future law of any bankruptcy jurisdiction, domestic or insolvency legislation applicable foreign, relating to bankruptcy, insolvency, reorganization or relief of debtors, seeking to have an order for relief entered with respect to it, or seeking to adjudicate it a bankrupt or insolvent, or seeking reorganization, arrangement, adjustment, winding-up, liquidation, dissolution, composition or other relief with respect to it or its debts, or (b) seeking appointment of a petition receiver, trustee, custodian, conservator or other process similar official for it or for all or any substantial part of its assets, or any Group Member shall make a general assignment for the bankruptcy benefit of the Corporation its creditors; or (ii) there shall be commenced against any Guarantor is filed Group Member any case, proceeding or instituted and remains undismissed or unstayed for other action of a period of sixty days or any of the relief sought nature referred to in such proceeding clause (including i) above that (a) results in the entry of an order for relief against it or the appointment of a receiverany such adjudication or appointment, trustee, custodian which order is not stayed or other similar official relief is not granted under applicable state or federal law; or (b) remains undismissed, undischarged or unbonded for it a period of sixty (60) days; or (iii) there shall be commenced against any Group Member any case, proceeding or other action seeking issuance of a warrant of attachment, execution, distraint or similar process against all or any substantial part of its propertyassets that results in the entry of an order for any such relief that shall not have been vacated, discharged, or stayed or bonded pending appeal within sixty (60) days from the entry thereof; or (iv) any Group Member shall occur. take any action in furtherance of, or indicating its consent to, approval of, or acquiescence in, any of the acts set forth in clause (i), (ii) or (iii) above; or (v) any Group Member shall generally not, or shall admit in writing its inability to, pay its debts as they become due; or
(g) If (i) any actPerson shall engage in any non-exempt “prohibited transaction” (as defined in Section 406 of ERISA or Section 4975 of the Code) involving any Plan, matter (ii) any failure to satisfy the minimum funding standards under the Pension Funding Rules, whether or thing is done towardnot waived in accordance with the Pension Funding Rules, shall exist with respect to any Plan, or any action or proceeding is launched or taken to terminate the corporate existence Lien in favor of the CorporationPBGC or a Single Employer Plan shall arise on the assets of any Group Member, (iii) a Reportable Event shall occur with respect to, or proceedings shall commence to have a trustee appointed, or a trustee shall be appointed, to administer or to terminate, any GuarantorSingle Employer Plan, whether by winding‒upwhich Reportable Event or commencement of proceedings or appointment of a trustee is likely to result in the termination of such Single Employer Plan for purposes of Title IV of ERISA, surrender (iv) any Single Employer Plan shall terminate for purposes of charter Title IV of ERISA, (v) any Group Member or otherwise. any Commonly Controlled Entity shall incur any liability in connection with a withdrawal from, or the Insolvency of, a Multiemployer Plan or (vi) any other event or condition shall occur or exist with respect to a Plan; and in each case in clauses (i) through (vi) above, such event or condition, together with all other such events or conditions, if any, would reasonably be expected to have a Material Adverse Effect; or
(h) If one or more judgments or decrees shall be entered against any Group Member involving in the Corporation aggregate a liability (to the extent not paid or any Guarantor ceases to carry on its business fully covered by insurance) of $7,500,000 or makes more, and all such judgments or proposes to make any sale of its assets in bulk decrees shall not have been vacated, discharged, stayed or any sale of its assets out of bonded pending appeal within thirty (30) days from the usual course of its business unless expressly permitted herein or otherwise by the Lender in writing. LEGAL*52823942.10 entry thereof; or
(i) If any proposal is made (i) the Guarantee and Collateral Agreement shall, or any petition is filed by or against other Security Document covering a material portion of the Corporation Collateral shall (at any time after its execution, delivery and effectiveness), cease, for any reason, to be in full force and effect, or any Guarantor under Loan Party which is a party to any law having for its purpose the extension of time for paymentsuch Security Document shall so assert in writing, composition or compromise (ii) any Lien created by any of the liabilities Security Documents shall cease to be enforceable in accordance with its terms and of the same effect and priority purported to be created thereby with respect to any material portion of the Collateral (other than in connection with any termination of such Corporation Lien in respect of any Collateral as permitted hereby or by any Security Document); other than, in each case, pursuant to the terms hereof or any Guarantor of the Security Documents or other reorganization as a direct result of actions by the Administrative Agent or arrangement respecting its or any Guarantor’s liabilities or if the Corporation or any Guarantor gives notice of its intention to make or file any such proposal or petition including an application to any court to stay or suspend any proceedings of creditors pending the making or filing of any such proposal or petition. Lenders;
(j) If any receiver, administrator or manager the guarantee contained in Section 2 of the propertyGuarantee and Collateral Agreement shall cease, assets or undertaking of the Corporation for any reason, to be in full force and effect or any Guarantor Loan Party or a substantial part thereof is appointed any Affiliate of any Loan Party shall so assert in writing other than in each case pursuant to its terms or as a direct result of actions or failure to act by the terms of any trust deed, trust indenture, debenture Administrative Agent or similar instrument Lenders; or by or under any judgment or order of any court.
(k) If any balance sheet a Change of Control shall occur; or other financial statement provided by the Corporation to the Lender pursuant to the provisions hereof is false or misleading in any material respect.
(l) If any proceedings are taken to enforce provisions of any Encumbrance affecting any of subordination agreement, the Secured Property or if a distress Intercreditor Agreement or any similar process other agreement or instrument governing any Subordinated Indebtedness or Indebtedness described in Section 7.2(t) shall for any reason be levied revoked or enforced against invalidated, or otherwise cease to be in full force and effect, or any Loan Party or holder of such Indebtedness shall contest in writing the Secured Propertyvalidity or enforceability thereof or deny in writing that it has any further liability or obligation thereunder, or the Obligations or the Liens securing the Obligations for any reason shall not have the priority contemplated by this Agreement or any such subordination agreement, the Intercreditor Agreement or any other agreement or instrument governing any Subordinated Indebtedness or Indebtedness described in Section 7.2(t).
(m) If any judgment or order for the payment of money in excess of $250,000 shall be rendered against the Corporation or any Guarantor and either (i) enforcement proceedings shall have been commenced by any creditor upon such judgment or order, or (ii) there shall be any period of sixty consecutive days during which a stay of enforcement of such judgment or order, by reason of a pending appeal or otherwise, shall not be in effect.
(n) If any action is taken or power or right be exercised by any Governmental Body which would have a Material Adverse Effect.
(o) If any representation or warranty made by the Corporation or any Guarantor herein or in any other Instrument to which it is a party or in any certificate, statement or report furnished in connection herewith is found to be false or incorrect in any way so as to make it materially misleading when made or when deemed to have been made.
(p) If a Change of Control occurs with respect to the Corporation, without the Lender’s prior written consent.
(q) If there shall occur or arise any change (or any condition, event or development involving a prospective change) in the business, operations, affairs, assets, liabilities (including any contingent liabilities that may arise through outstanding pending or threatened litigation or otherwise), capitalization, financial condition, licenses, permits, rights or privileges, whether contractual or otherwise, or prospects of the Corporation or any Guarantor which, in the judgment of the Lender, acting reasonably, would have a Material Adverse Effect. LEGAL*52823942.10
Appears in 1 contract
1Events of Default. The occurrence of any of the following shall constitute an Event of Default:
(a) If default occurs in payment the Borrower shall fail to pay any amount of principal of any Loan when due in accordance with the terms hereof; or the Borrower shall fail to pay any amount of interest on any principal Loan, or any other amount payable hereunder or under this Debenture.any other Loan Document, within three (3) Business Days after any such interest or other amount becomes due in accordance with the terms hereof; or
(b) If any representation or warranty made or deemed made by any Loan Party herein or in any other Loan Document or that is contained in any certificate, document or financial or other statement furnished by it at any time under or in connection with this Agreement or any such other Loan Document (i) if qualified by materiality, shall be incorrect or misleading when made or deemed made, or (ii) if not qualified by materiality, shall be incorrect or misleading in any material respect when made or deemed made; or
(c) any Loan Party shall default occurs in payment when due the observance or performance of any interestagreement contained in, fees Section 5.3, Section 6.1, Section 6.2, clause (i) or (ii) of Section 6.5(a) (with respect to a Loan Party), Section 6.6(b), Section 6.8(a), Section 6.10, Section 6.16 or Section 7 of this Agreement; or
(d) any Loan Party shall default in the observance or performance of any other amounts payable under agreement contained in this Debenture Agreement or any other Loan Document (other than as provided in paragraphs (a) through (c) of this Section 8.1), and remains such default shall continue unremedied for a period of five Business Days after the receipt by the Corporation of notice of such default. 30 days thereafter; or
(ce) If (i) any Group Member (other than any Immaterial Subsidiary) shall (A) default occurs in making any payment of any principal of any Indebtedness (including any Guarantee Obligation, but excluding the Loans) on the scheduled or original due date with respect thereto; (B) default in making any payment of any interest, fees, costs or expenses on any such Indebtedness beyond the period of grace, if any, provided in the instrument or agreement under which such Indebtedness was created; (C) default in making any payment or delivery under any such Indebtedness constituting a Swap Agreement beyond the period of grace, if any, provided in such Swap Agreement; or (D) default in the observance or performance of any other Obligation agreement or condition relating to any such Indebtedness or contained in any instrument or agreement evidencing, securing or relating thereto, or any other event shall occur or condition exist, the effect of which default or other event or condition is to (whether arising herein 1) cause, or otherwiseto permit the holder or beneficiary of, or, in the case of any such Indebtedness constituting a Swap Agreement, counterparty under, such Indebtedness (or a trustee or agent on behalf of such holder, beneficiary, or counterparty) and remains unremedied for a period of sixty days after to cause, with the receipt by the Corporation giving of notice of if required, such default.
Indebtedness to become due prior to its stated maturity or (d) If default occurs in performance the case of any other covenant such Indebtedness constituting a Guarantee Obligation) to become payable or (in the case of any such Indebtedness constituting a Swap Agreement) to be terminated, or (2) to cause, with the giving of notice if required, any Group Member to purchase, redeem, mandatorily prepay or make an offer to purchase, redeem or mandatorily prepay such Indebtedness prior to its stated maturity; provided that, unless such Indebtedness constitutes a Specified Swap Agreement, a default, event or condition described in clauses (i)(A), (B), (C), or (D) of this Section 8.1(e) shall not at any time constitute an Event of Default unless, at such time, one or more defaults, events or conditions of the Corporation type described in any of clauses (i)(A), (B), (C), or (D) of this Section 8.1(e) shall have occurred with respect to Indebtedness, the outstanding principal amount (and, in the case of Swap Agreements, other than Specified Swap Agreements, the Swap Termination Value) of which, individually or in the aggregate for all such Indebtedness, exceeds $5,000,000; or (ii) any Guarantor in favour of the Lender under this Debenture and remains unremedied for a period of sixty days after the receipt by the Corporation of notice of such default.
(e) If an default or event of default occurs in payment or performance (however designated, beyond the period of grace, if any, shall occur with respect to any Subordinated Indebtedness of any obligation Group Member of which, individually or in favour of any Person from whom the Corporation or any Guarantor has borrowed in excess of aggregate for all such Subordinated Indebtedness, exceeds $250,000 which would entitle the holder to accelerate repayment of the borrowed money, and such default is not remedied or waived in writing within sixty days of the occurrence of such default. 1,000,000; or
(f) If the Corporation (i) any Group Member (other than any Immaterial Subsidiary) shall commence any case, proceeding or other action (a) under any Guarantor commits Debtor Relief Law seeking to have an act of bankruptcy order for relief entered with respect to it, or becomes insolvent within the meaning of any bankruptcy seeking to adjudicate it a bankrupt or insolvency legislation applicable insolvent, or seeking reorganization, arrangement, adjustment, winding-up, liquidation, dissolution, composition or other relief with respect to it or its debts, or (b) seeking appointment of a petition receiver, trustee, custodian, conservator or other process similar official for it or for all or any substantial part of its assets, or any Group Member (other than any Immaterial Subsidiary) shall make a general assignment for the bankruptcy benefit of the Corporation its creditors; or (ii) there shall be commenced against any Guarantor is filed Group Member (other than any Immaterial Subsidiary) any case, proceeding or instituted and remains undismissed or unstayed for other action of a period of sixty days or any of the relief sought nature referred to in such proceeding clause (including i) above that (x) results in the entry of an order for relief or any such adjudication or appointment or (y) remains undismissed, undischarged or unbonded for a period of 60 days (provided that, during such 60 day period, no Loan shall be advanced or Letters of Credit issued hereunder); or (iii) there shall be commenced against it any Group Member (other than any Immaterial Subsidiary) any case, proceeding or the appointment other action seeking issuance of a receiverwarrant of attachment, trusteeexecution, custodian distraint or other similar official for it process against all or any substantial part of its propertyassets that results in the entry of an order for any such relief that shall not have been vacated, discharged, or stayed or bonded pending appeal within 60 days from the entry thereof (provided that, during such 60 day period, no Loan shall be advanced or Letters of Credit issued hereunder); or (iv) any Group Member (other than any Immaterial Subsidiary) shall occur. take any action in furtherance of, or indicating its consent to, approval of, or acquiescence in, any of the acts set forth in clause (i), (ii), or (iii) above; or (v) any Group Member (other than any Immaterial Subsidiary) shall generally not, or shall be unable to, or shall admit in writing its inability to, pay its debts as they become due; or
(g) If there shall occur one or more ERISA Events which individually or in the aggregate results in or otherwise is associated with liability of any act, matter or thing is done toward, Loan Party or any action ERISA Affiliate thereof in excess of $5,000,000 during the term of this Agreement; or proceeding is launched there exists an amount of unfunded benefit liabilities (as defined in Section 4001(a)(18) of ERISA), individually or taken in the aggregate for all Pension Plans (excluding for purposes of such computation any Pension Plans with respect to terminate the corporate existence of the Corporation, or any Guarantor, whether by winding‒up, surrender of charter or otherwise. which assets exceed benefit liabilities) which exceeds $5,000,000; or
(h) If the Corporation or there is entered against any Guarantor ceases to carry on its business or makes or proposes to make Group Member (other than any sale of its assets in bulk or any sale of its assets out of the usual course of its business unless expressly permitted herein or otherwise by the Lender in writing. LEGAL*52823942.10
Immaterial Subsidiary) (i) If any proposal is made one or any petition is filed by more final judgments or against the Corporation or any Guarantor under any law having for its purpose the extension of time for payment, composition or compromise of the liabilities of such Corporation or any Guarantor or other reorganization or arrangement respecting its or any Guarantor’s liabilities or if the Corporation or any Guarantor gives notice of its intention to make or file any such proposal or petition including an application to any court to stay or suspend any proceedings of creditors pending the making or filing of any such proposal or petition.
(j) If any receiver, administrator or manager of the property, assets or undertaking of the Corporation or any Guarantor or a substantial part thereof is appointed pursuant to the terms of any trust deed, trust indenture, debenture or similar instrument or by or under any judgment or order of any court.
(k) If any balance sheet or other financial statement provided by the Corporation to the Lender pursuant to the provisions hereof is false or misleading in any material respect.
(l) If any proceedings are taken to enforce any Encumbrance affecting any of the Secured Property or if a distress or any similar process be levied or enforced against any of the Secured Property.
(m) If any judgment or order orders for the payment of money involving in excess the aggregate a liability (not paid or fully covered by insurance as to which the relevant insurance company has acknowledged coverage) of $250,000 shall 5,000,000 or more, or (ii) one or more non-monetary final judgments that have, or could reasonably be rendered against expected to have, individually or in the Corporation or any Guarantor and aggregate, a Material Adverse Effect and, in either case, (iA) enforcement proceedings shall have been are commenced by any creditor upon such judgment or order, or (B) all such judgments or decrees shall not have been vacated, discharged, stayed or bonded pending appeal within 45 days from the entry thereof; or
(i) any of the Security Documents shall cease, for any reason, to be in full force and effect (other than pursuant to the terms thereof), or any Loan Party shall so assert, or any Lien created by any of the Security Documents shall cease to be enforceable and of the same effect and priority purported to be created thereby; or
(ii) there any court order enjoins, restrains or prevents a Loan Party from conducting all or any material part of its business that has, or could reasonably be expected to have individually or in the aggregate, a Material Adverse Effect; or
(j) the guarantee contained in Section 2 of the Guarantee and Collateral Agreement shall be cease, for any period of sixty consecutive days during which a stay of enforcement of such judgment or orderreason, by reason of a pending appeal or otherwise, shall not to be in effect. full force and effect or any Loan Party shall so assert; or
(nk) If a Change of Control shall occur; or
(l) any action is taken of the Governmental Approvals necessary for any of the Group Members to operate its respective business shall have been (i) revoked, rescinded, suspended, modified in an adverse manner or power not renewed in the ordinary course for a full term that has, or right could reasonably be exercised expected to have, a Material Adverse Effect, or (ii) subject to any decision by a Governmental Authority that designates a hearing with respect to any applications for renewal of any of the Governmental Body which would Approvals or that could result in the Governmental Authority taking any of the actions described in clause (i) above, and such decision or such revocation, rescission, suspension, modification or nonrenewal (x) has, or could reasonably be expected to have, a Material Adverse Effect, or (y) materially adversely affects the legal qualifications of any Group Member to hold any material Governmental Approval in any applicable jurisdiction and such materially adverse effect on the legal qualifications of any such Group Member to hold any material Governmental Approval in any applicable jurisdiction could reasonably be expected to have a Material Adverse Effect. ; or
(om) If any representation Loan Document (including the subordination provisions of any subordination or warranty made by intercreditor agreement governing Subordinated Indebtedness) not otherwise referenced in Section 8.1(i) or (j), at any time after its execution and delivery and for any reason other than as expressly permitted hereunder or thereunder or the Corporation Discharge of Obligations, ceases to be in full force and effect; or any Guarantor herein Loan Party or any other Person contests in any other Instrument manner the validity or enforceability of any Loan Document; or any Loan Party denies that it has any liability or obligation under any Loan Document to which it is a party party, or in purports to revoke, terminate or rescind any certificate, statement or report furnished in connection herewith is found to be false or incorrect in any way so as to make it materially misleading when made or when deemed to have been made.such Loan Document; or
(pn) If a Change of Control occurs with respect to the Corporation, without the Lender’s prior written consent.
(q) If there shall occur or arise any change (or any condition, event or development involving a prospective change) in the business, operations, affairs, assets, liabilities (including any contingent liabilities that may arise through outstanding pending or threatened litigation or otherwise), capitalization, financial condition, licenses, permits, rights or privileges, whether contractual or otherwise, or prospects of the Corporation or any Guarantor which, in the judgment of the Lender, acting reasonably, would have a Material Adverse EffectEffect shall occur. LEGAL*52823942.10
Appears in 1 contract
1Events of Default. The occurrence of any of the following shall constitute an Event of Default:
(a) If default occurs in payment Borrower shall fail to pay any amount of principal of any Loan when due in accordance with the terms hereof; or Borrower shall fail to pay any amount of interest on any principal Loan, or any other amount payable hereunder or under this Debenture.any other Loan Document, within three (3) Business Days after any such interest or other amount becomes due in accordance with the terms hereof; or
(b) If any representation or warranty made or deemed made by any Loan Party or Limited Recourse Pledgor herein or in any other Loan Document or that is contained in any certificate, document or financial or other statement furnished by it at any time under or in connection with this Agreement or any such other Loan Document (i) if qualified by materiality, shall be incorrect or materially misleading when made or deemed made (after giving effect to such materiality qualifier), or (ii) if not qualified by materiality, shall be incorrect or materially misleading in any material respect when made or deemed made; or
(c) any (i) Loan Party shall default occurs in payment when due the observance or performance of any interestagreement contained in Sections 5.3, fees 6.1, 6.2, 6.5(a), 6.7(b), 6.8, 6.10, 6.12, 6.13, or Section 7 of this Agreement or (ii) any Limited Recourse Pledgor shall default in the observance or performance of any agreement or obligation contained in this Agreement or any Limited Recourse Pledge Agreement; or
(d) any Loan Party shall default in the observance or performance of any other amounts payable under agreement contained in this Debenture Agreement or any other Loan Document (other than as provided in paragraphs (a) through (c) of this Section), and remains such default shall continue unremedied for a period of five Business Days after the receipt by the Corporation of notice of such default. 30 days thereafter; or
(c1) If any Group Member shall (i) default occurs in making any payment of any principal of any Indebtedness (including any Guarantee Obligation, but excluding the Loans) outstanding in a principal amount of $1,500,000 or more; or (ii) default in making any payment of any interest on any such Indebtedness beyond the period of grace, if any, provided in the instrument or agreement under which such Indebtedness was created; or (iii) default in making any payment or delivery under any such Indebtedness constituting a Swap Agreement beyond the period of grace, if any, provided in such Swap Agreement; or (iv) default in the observance or performance of any other Obligation agreement or condition relating to any such Indebtedness or contained in any instrument or agreement evidencing, securing or relating thereto, or any other event shall occur or condition exist, the effect of which default or other event or condition is to (whether arising herein x) cause, or otherwiseto permit the holder or beneficiary of, or, in the case of any such Indebtedness constituting a Swap Agreement, counterparty under, such Indebtedness (or a trustee or agent on behalf of such holder, beneficiary, or counterparty) and remains unremedied for a period of sixty days after to cause, with the receipt by the Corporation giving of notice of if required, such default.
Indebtedness to become due prior to its stated maturity or (d) If default occurs in performance the case of any other covenant such Indebtedness constituting a Guarantee Obligation) to become payable or (in the case of any such Indebtedness constituting a Swap Agreement) to be terminated, or (y) to cause, with the Corporation or any Guarantor in favour of the Lender under this Debenture and remains unremedied for a period of sixty days after the receipt by the Corporation giving of notice if required, any Group Member to purchase or redeem or make an offer to purchase or redeem such Indebtedness prior to its stated maturity; provided that, a default, event or condition described in clause (i), (ii), (iii), or (iv) of such default.
this paragraph (e) If shall not at any time constitute an Event of Default unless, at such time, one or more defaults, events or conditions of the type described in clauses (i), (ii), (iii), and (iv) of this paragraph (e) shall have occurred with respect to Indebtedness the outstanding principal amount (and, in the case of Swap Agreements the Swap Termination Value) of which, individually or in the aggregate of all such Indebtedness, exceeds in the aggregate $1,500,000; or (2) any default or event of default occurs in payment or performance (however designated) shall occur with respect to any Subordinated Indebtedness of any obligation in favour of any Person from whom the Corporation Group Member; or any Guarantor has borrowed in excess of $250,000 which would entitle the holder to accelerate repayment of the borrowed money, and such default is not remedied or waived in writing within sixty days of the occurrence of such default.
(f) If (i) any Group Member or Limited Recourse Pledgor shall commence any case, proceeding or other action (a) under the Corporation Bankruptcy Code or any Guarantor commits an act of bankruptcy other existing or becomes insolvent within the meaning future law of any bankruptcy jurisdiction, domestic or insolvency legislation applicable foreign, relating to bankruptcy, insolvency, reorganization or relief of debtors, seeking to have an order for relief entered with respect to it, or seeking to adjudicate it a bankrupt or insolvent, or seeking reorganization, arrangement, adjustment, winding-up, liquidation, dissolution, composition or other relief with respect to it or its debts, or (b) seeking appointment of a petition receiver, trustee, custodian, conservator or other process similar official for it or for all or any substantial part of its assets, or any Group Member or Limited Recourse Pledgor shall make a general assignment for the bankruptcy benefit of the Corporation its creditors; or (ii) there shall be commenced against any Guarantor is filed Group Member or instituted and remains undismissed Limited Recourse Pledgor any case, proceeding or unstayed for other action of a period of sixty days or any of the relief sought nature referred to in such proceeding clause (including i) above that (a) results in the entry of an order for relief or any such adjudication or appointment or (b) remains undismissed, undischarged or unbonded for a period of 60 days; or (iii) there shall be commenced against it any Group Member or the appointment Limited Recourse Pledgor any case, proceeding or other action seeking issuance of a receiverwarrant of attachment, trusteeexecution, custodian distraint or other similar official for it process against all or any substantial part of its propertyassets that results in the entry of an order for any such relief that shall not have been vacated, discharged, or stayed or bonded pending appeal within 60 days from the entry thereof; or (iv) any Group Member or Limited Recourse Pledgor shall occur. take any action in furtherance of, or indicating its consent to, approval of, or acquiescence in, any of the acts set forth in clause (i), (ii), or (iii) above; or (v) any Group Member or Limited Recourse Pledgor shall generally not, or shall be unable to, or shall admit in writing its inability to, pay its debts as they become due; or
(g) If there shall occur one or more ERISA Events which individually or in the aggregate results in or otherwise is associated with liability of any act, matter or thing is done toward, Loan Party or any action ERISA Affiliate thereof in excess of $1,5000,000 during the term of this Agreement; or proceeding is launched there exists, an amount of unfunded benefit liabilities (as defined in Section 4001(a)(18) of ERISA), individually or taken in the aggregate for all Pension Plans (excluding for purposes of such computation any Pension Plans with respect to terminate the corporate existence of the Corporation, or any Guarantor, whether by winding‒up, surrender of charter or otherwise. which assets exceed benefit liabilities) which exceeds $1,500,000; or
(h) If the Corporation or there is entered against any Guarantor ceases to carry on its business or makes or proposes to make any sale of its assets in bulk or any sale of its assets out of the usual course of its business unless expressly permitted herein or otherwise by the Lender in writing. LEGAL*52823942.10
Group Member (i) If any proposal is made one or any petition is filed by more final judgments or against the Corporation or any Guarantor under any law having for its purpose the extension of time for payment, composition or compromise of the liabilities of such Corporation or any Guarantor or other reorganization or arrangement respecting its or any Guarantor’s liabilities or if the Corporation or any Guarantor gives notice of its intention to make or file any such proposal or petition including an application to any court to stay or suspend any proceedings of creditors pending the making or filing of any such proposal or petition.
(j) If any receiver, administrator or manager of the property, assets or undertaking of the Corporation or any Guarantor or a substantial part thereof is appointed pursuant to the terms of any trust deed, trust indenture, debenture or similar instrument or by or under any judgment or order of any court.
(k) If any balance sheet or other financial statement provided by the Corporation to the Lender pursuant to the provisions hereof is false or misleading in any material respect.
(l) If any proceedings are taken to enforce any Encumbrance affecting any of the Secured Property or if a distress or any similar process be levied or enforced against any of the Secured Property.
(m) If any judgment or order orders for the payment of money involving in excess the aggregate a liability (not paid or fully covered by insurance as to which the relevant insurance company has acknowledged coverage) of $250,000 shall 1,000,000 or more, or (ii) one or more non-monetary final judgments that have, or could reasonably be rendered against expected to have, individually or in the Corporation or any Guarantor and aggregate, a Material Adverse Effect and, in either case, (iA) enforcement proceedings shall have been are commenced by any creditor upon such judgment or order, or (iiB) there all such judgments or decrees shall be any period of sixty consecutive days during which a stay of enforcement of such judgment not have been vacated, discharged, stayed or order, by reason of a bonded pending appeal within 30 days from the entry thereof; or
(i) the guarantee contained in Section 2 of the Guarantee and Collateral Agreement or otherwisethe guarantee in any Limited Recourse Pledgor Agreement shall cease, shall not for any reason, to be in effect. full force and effect or any Loan Party or Limited Recourse Pledgor shall so assert; or
(nj) If (i) any action is taken of the Security Documents or power Limited Recourse Pledge Agreement shall cease, for any reason, to be in full force and effect (other than pursuant to the terms thereof), or right be exercised any Loan Party or Limited Recourse Pledgor shall so assert, or any Lien created by any Governmental Body which would have a Material Adverse Effect.
(o) If any representation of the Security Documents or warranty made by the Corporation or any Guarantor herein or in any other Instrument to which it is a party or in any certificate, statement or report furnished in connection herewith is found Limited Recourse Pledge Agreements shall cease to be false or incorrect enforceable and of the same effect and priority purported to be created thereby, in any way so as to make it materially misleading when made or when deemed to have been made.
(p) If a Change of Control occurs each case with respect to the Corporation, without the Lender’s prior written consent. Collateral or assets pledged under any Limited Recourse Pledge Agreement with a fair market value in excess of $500,000; or
(q) If there shall occur or arise any change (or any condition, event or development involving a prospective change) in the business, operations, affairs, assets, liabilities (including any contingent liabilities that may arise through outstanding pending or threatened litigation or otherwise), capitalization, financial condition, licenses, permits, rights or privileges, whether contractual or otherwise, or prospects of the Corporation or any Guarantor which, in the judgment of the Lender, acting reasonably, would have a Material Adverse Effect. LEGAL*52823942.10
Appears in 1 contract
Sources: Credit Agreement (Enfusion, Inc.)
1Events of Default. The occurrence or existence of any one or more of the following events or conditions shall constitute an Event of Default under this Agreement:
(a) If default occurs in payment when due Any Borrower shall fail to pay the principal amount of any principal amount payable under this Debentureof the Obligations or any interest thereof (whether due at stated maturity, on demand, upon acceleration or otherwise), or any Obligor shall fail to pay any other Obligation when due.
(b) If default occurs Any Obligor fails or neglects to perform, keep or observe any covenant applicable to it contained in payment when due of any interestSection 6.1, fees 6.2, 6.3, 6.5, 6.7, 6.9, 6.12, 6.13, 6.15, 6.16, 7 or other amounts payable under this Debenture and remains unremedied for a period of five Business Days after the receipt by the Corporation of notice of such default. 9.
(c) If default occurs in payment Any Obligor fails or performance of neglects to perform, keep or observe any other Obligation (whether arising herein covenant contained in this Agreement or otherwise) and remains unremedied for a period any other Loan Document applicable to it, or any Guarantor fails or neglects to perform, keep or observe any covenant of sixty such Guarantor set forth in Section 9 of this Agreement, if the breach of such other covenant is not cured, if such breach is capable of cure, to Administrative Agent’s satisfaction within 30 days after the receipt by the Corporation of notice of such defaultoccurrence thereof.
(d) If default occurs in performance of Any representation, statement, report or certificate made or delivered by any other covenant of the Corporation Borrower to Administrative Agent or any Guarantor in favour of the Lender under this Debenture Agreement, any other Loan Document or otherwise is not true and remains unremedied for a period of sixty days after the receipt by the Corporation of notice of such defaultcorrect, in any material respect, when made, deemed made or furnished.
(e) If an event of default occurs in payment An Insolvency Proceeding (i) is commenced against any Obligor and is not dismissed within 45 days thereafter or performance of (ii) is commenced by any obligation in favour of any Person from whom the Corporation Obligor.
(f) One or any Guarantor has borrowed more judgments in excess of $250,000 which would entitle the holder to accelerate repayment of the borrowed money, and such default is not remedied or waived in writing within sixty days of the occurrence of such default.
(f) If the Corporation or any Guarantor commits an act of bankruptcy or becomes insolvent within the meaning of any bankruptcy or insolvency legislation applicable to it or a petition or other process for the bankruptcy of the Corporation or any Guarantor is filed or instituted and remains undismissed or unstayed for a period of sixty days or any of the relief sought in such proceeding (including the entry of an order for relief against it or the appointment of a receiver, trustee, custodian or other similar official for it or any substantial part of its property) 500,000 shall occur.
(g) If any act, matter or thing is done toward, or any action or proceeding is launched or taken to terminate the corporate existence of the Corporation, or any Guarantor, whether by winding‒up, surrender of charter or otherwise.
(h) If the Corporation or any Guarantor ceases to carry on its business or makes or proposes to make any sale of its assets in bulk or any sale of its assets out of the usual course of its business unless expressly permitted herein or otherwise by the Lender in writing. LEGAL*52823942.10
(i) If any proposal is made or any petition is filed by or against the Corporation or any Guarantor under any law having for its purpose the extension of time for payment, composition or compromise of the liabilities of such Corporation or any Guarantor or other reorganization or arrangement respecting its or any Guarantor’s liabilities or if the Corporation or any Guarantor gives notice of its intention to make or file any such proposal or petition including an application to any court to stay or suspend any proceedings of creditors pending the making or filing of any such proposal or petition.
(j) If any receiver, administrator or manager of the property, assets or undertaking of the Corporation or any Guarantor or a substantial part thereof is appointed pursuant to the terms of any trust deed, trust indenture, debenture or similar instrument or by or under any judgment or order of any court.
(k) If any balance sheet or other financial statement provided by the Corporation to the Lender pursuant to the provisions hereof is false or misleading in any material respect.
(l) If any proceedings are taken to enforce any Encumbrance affecting any of the Secured Property or if a distress or any similar process be levied or enforced entered against any of the Secured Property.
(m) If any judgment or order for the payment of money in excess of $250,000 shall be rendered against the Corporation or any Guarantor Borrower and either (i) enforcement proceedings shall have been commenced by any creditor upon such judgment or orderjudgment, or (ii) there shall be any period of sixty 30 consecutive days during which a stay of enforcement of such judgment or orderjudgment, by reason of a pending appeal or otherwise, shall not be in effect, or (iii) results in the creation or imposition of a Lien upon any of the Collateral that is not a Permitted Lien and which is not being Properly Contested by Borrower.
(g) There is a default, after the expiration of any applicable cure period, under any agreement, mortgage or indenture to which any Borrower is a party with a Person with an outstanding balance owed in excess of $500,000, if, as a result of such default the Indebtedness or other obligation evidenced or secured by any such agreement may be accelerated or demand for payment thereof may be made and which is not being Properly Contested by Borrower.
(h) Any Guarantor revokes or attempts to revoke any Loan Document signed by such Guarantor; repudiates or disputes such Guarantor’s liability thereunder; is in default under the terms thereof; or fails to confirm in writing, promptly after receipt of Administrative Agent’s written request therefor, such Guarantor’s ongoing liability under any Loan Document signed by such Guarantor in accordance with the terms thereof.
(i) A Reportable Event (consisting of any of the events set forth in Section 4043(b) of ERISA) shall occur which Administrative Agent, in its discretion, shall determine constitutes grounds for the termination by the Pension Benefit Guaranty Corporation of any Plan or the appointment by the appropriate United States district court of a trustee for any Plan, or if any Plan shall be terminated or any such trustee shall be requested or appointed, or if any Borrower is in “default” (as defined in Section 4219(c)(5) of ERISA) with respect to payments to a Plan resulting from such Borrower’s, such other Obligor’s, complete or partial withdrawal from such Plan.
(j) Any Borrower shall challenge in any action, suit or other proceeding the validity or enforceability of any of the Loan Documents, the legality or enforceability of any of the Obligations or the perfection or priority of any Lien granted to Administrative Agent, or any of the Loan Documents ceases to be in full force or effect for any reason other than a full or partial waiver or release by Administrative Agent in accordance with the terms thereof.
(k) [Reserved]
(l) A Change of Control shall occur.
(m) A Change of Management shall occur, and ▇▇▇▇▇ ▇▇▇▇▇▇▇ shall not be replaced by a Person reasonably acceptable to Administrative Agent within 60 days of the date on which such Change of Management occurs.
(n) If Subject to Section 11.23, a Change in Law shall occur, or any action is taken or power or right be exercised by Borrower shall engage in any Governmental Body which would have a Material Adverse Effect. Restricted Cannabis Activity.
(o) If any representation or warranty made by the Corporation Any Cannabis License or any Guarantor herein or in any other Instrument to which it is material Permit of a party or in any certificateBorrower shall be revoked, statement or report furnished in connection herewith is found fail to be false renewed, suspended or incorrect otherwise under threat of being terminated by a Governmental Authority or the Licensing Division issuing such Cannabis License or any material Permit, other than any termination of a Cannabis License or material Permit at Borrower’s election that is no longer useful or necessary in its business or operations, or any way so as Borrower shall fail to make it materially misleading when made be eligible for any reason to maintain or when deemed to have been maderenew any Cannabis License or any material Permit.
(p) If a Change of Control occurs with respect to the Corporation, without the Lender’s prior written consent. [Reserved].
(q) If there shall occur or arise any change (Any Borrower, or any conditionofficer, event director, shareholder or development involving managing employee of a prospective changeBorrower in connection with the performance of his or her duties for ▇▇▇▇▇▇▇▇ (i) shall have been found guilty of an act of fraud or shall have been indicted for or convicted of a felony crime, or (ii) shall have become subject to any civil or criminal prosecution, enforcement, asset forfeiture or any other civil or criminal enforcement action or proceeding brought by any US federal Governmental Authority with respect to an alleged breach of US Federal Cannabis Law or by any State or local Governmental Authority with respect to any alleged breach of any US State Cannabis Law.
(r) Any Loan Document that purports to create a Lien, shall, for any reason, fail or cease to create a valid, perfected and, except to the extent permitted by the terms hereof, first priority Lien on or security interest in the business, operations, affairs, assets, liabilities Collateral covered hereby or thereby.
(including any contingent liabilities that may arise through outstanding pending or threatened s) Any litigation or otherwise), capitalization, financial condition, licenses, permits, rights or privileges, whether contractual or otherwise, or prospects proceeding is commenced against any Borrower for payment of the Corporation or any Guarantor which, money in the excess of $1,000,000 that is reasonably expected by Borrower to result in a judgment of the Lender, acting reasonably, would have for at least that amount.
(t) [Reserved].
(u) An event occurs that has a Material Adverse Effect. LEGAL*52823942.10 .
(v) Administrative Agent for any reason in good faith reasonably deems Secured Creditors insecure with respect to repayment of any Obligation.
(w) Any of the assets of any Borrower shall be attached, seized, levied upon or subjected to a writ or distress warrant, or a material loss of Collateral in excess of insurance coverage shall occur.
(x) Any Person party to any subordination or intercreditor agreement in favor of or with Administrative Agent (other than, in each case, Administrative Agent) shall challenge in any action, suit or other proceeding the validity or enforceability of such Loan Document, the legality or enforceability of any of any Person’s obligations thereunder or the perfection or priority of any Lien granted to Administrative Agent, or such subordination or intercreditor agreement ceases to be in full force or effect for any reason other than a full or partial waiver or release by Administrative Agent and Lenders in accordance with the terms thereof.
Appears in 1 contract
1Events of Default. If any of the following events (each, an “Event of Default”) shall occur:
(a) If default occurs in payment when due the Borrower shall fail to pay any principal of any principal amount payable under this Debenture.Loan or of any reimbursement obligation in respect of any LC Disbursement, when and as the same shall become due and payable, whether at the due date thereof or at a date fixed for prepayment or otherwise; or
(b) If default occurs in payment when due the Borrower shall fail to pay any interest on any Loan or any fee or any other amount (other than an amount payable under subsection (a) of any interest, fees or other amounts this Section) payable under this Debenture Agreement or any other Loan Document, when and remains as the same shall become due and payable, and such failure shall continue unremedied for a period of five three (3) Business Days after the receipt by the Corporation of notice of such default. Days; or
(c) If default occurs any representation or warranty made or deemed made by or on behalf of the Borrower or any of its Subsidiaries in payment or performance in connection with this Agreement or any other Loan Document (including the Schedules attached hereto and thereto), or in any amendments or modifications hereof or waivers hereunder, or in any certificate, report, financial statement or other document submitted to the Administrative Agent or the Lenders by any Loan Party or any representative of any Loan Party pursuant to or in connection with this Agreement or any other Obligation Loan Document shall prove to be incorrect in any material respect (whether arising herein other than any representation or otherwisewarranty that is expressly qualified by a Material Adverse Effect or other materiality, in which case such representation or warranty shall prove to be incorrect in any respect) when made or deemed made or submitted (provided, that any breach of the representation and remains unremedied for a period warranty contained in the last sentence of sixty days after the receipt by the Corporation Section 4.16(a) shall not result in an Event of notice Default under this clause (c) unless such breach also constitutes an Event of such default.Default under clause (f) of this Section 8.1); or
(d) If default occurs the Borrower shall fail to observe or perform any covenant or agreement contained in performance of any other covenant of Section 5.1, 5.2, 5.3 (with respect to the Corporation Borrower’s legal existence), 5.10 or any Guarantor in favour of the Lender under this Debenture and remains unremedied for a period of sixty days after the receipt by the Corporation of notice of such default.5.11 or Article VI or VII; or
(e) If any Loan Party shall fail to observe or perform any covenant or agreement contained in this Agreement (other than those referred to in subsections (a), (b) and (d) of this Section) or any other Loan Document, and such failure shall remain unremedied for 30 days after the earlier of (i) any officer of the Borrower becomes aware of such failure, or (ii) notice thereof shall have been given to the Borrower by the Administrative Agent or any Lender; or
(i) the Borrower or any of its Subsidiaries (whether as primary obligor or as guarantor or other surety) shall fail to pay any principal of, or premium or interest on, any Material Indebtedness (other than any Hedging Obligation) that is outstanding, when and as the same shall become due and payable (whether at scheduled maturity, required prepayment, acceleration, demand or otherwise), and such failure shall continue after the applicable grace period, if any, specified in the agreement or instrument evidencing or governing such Indebtedness; or any other event shall occur or condition shall exist under any agreement or instrument relating to any Material Indebtedness and shall continue after the applicable grace period, if any, specified in such agreement or instrument, if the effect of such event or condition is to accelerate, or permit the acceleration of, the maturity of such Indebtedness; or any Material Indebtedness shall be declared to be due and payable, or required to be prepaid or redeemed (other than by a regularly scheduled required prepayment or redemption), purchased or defeased, or any offer to prepay, redeem, purchase or defease such Indebtedness shall be required to be made, in each case prior to the stated maturity thereof or (ii) there occurs under any Hedging Transaction an Early Termination Date (as defined in such Hedge Transaction) resulting from (A) any event of default occurs in payment or performance of any obligation in favour of any Person from whom under such Hedging Transaction as to which the Corporation or any Guarantor has borrowed in excess of $250,000 which would entitle the holder to accelerate repayment of the borrowed money, and such default is not remedied or waived in writing within sixty days of the occurrence of such default.
(f) If the Corporation or any Guarantor commits an act of bankruptcy or becomes insolvent within the meaning of any bankruptcy or insolvency legislation applicable to it or a petition or other process for the bankruptcy of the Corporation or any Guarantor is filed or instituted and remains undismissed or unstayed for a period of sixty days Borrower or any of its Subsidiaries is the relief sought Defaulting Party (as defined in such Hedging Transaction) and the Hedge Termination Value owed by the Borrower or such Subsidiary as a result thereof is greater than the Threshold Amount or (B) any Termination Event (as so defined) under such Hedging Transaction as to which the Borrower or any Subsidiary is an Affected Party (as so defined) and the Hedge Termination Value owed by the Borrower or such Subsidiary as a result thereof is greater than the Threshold Amount and is not paid; or
(g) the Borrower or any of its Subsidiaries shall (i) commence a voluntary case or other proceeding (including the entry of an order for or file any petition seeking liquidation, reorganization or other relief against it under any federal, state or foreign bankruptcy, insolvency or other similar law now or hereafter in effect or seeking the appointment of a receivercustodian, trustee, custodian receiver, liquidator or other similar official for of it or any substantial part of its property, (ii) shall occur.
(g) If any act, matter or thing is done towardconsent to the institution of, or fail to contest in a timely and appropriate manner, any proceeding or petition described in subsection (i) of this Section, (iii) apply for or consent to the appointment of a custodian, trustee, receiver, liquidator or other similar official for the Borrower or any such Subsidiary or for a substantial part of its assets, (iv) file an answer admitting the material allegations of a petition filed against it in any such proceeding, (v) make a general assignment for the benefit of creditors, or (vi) take any action or proceeding is launched or taken to terminate for the corporate existence purpose of effecting any of the Corporation, or any Guarantor, whether by winding‒up, surrender of charter or otherwise. foregoing; or
(h) If an involuntary proceeding shall be commenced or an involuntary petition shall be filed seeking (i) liquidation, reorganization or other relief in respect of the Corporation Borrower or any Guarantor ceases to carry on its business or makes or proposes to make any sale of its assets in bulk Subsidiaries or its debts, or any sale substantial part of its assets out assets, under any federal, state or foreign bankruptcy, insolvency or other similar law now or hereafter in effect or (ii) the appointment of a custodian, trustee, receiver, liquidator or other similar official for the Borrower or any of its Subsidiaries or for a substantial part of its assets, and in any such case, such proceeding or petition shall remain undismissed for a period of 60 days or an order or decree approving or ordering any of the usual course of its business unless expressly permitted herein or otherwise by the Lender in writing. LEGAL*52823942.10 foregoing shall be entered; or
(i) If any proposal is made the Borrower or any petition is filed by of its Subsidiaries shall become unable to pay, shall admit in writing its inability to pay, or against shall fail to pay, its debts as they become due; or
(i) an ERISA Event shall have occurred that, in the Corporation or any Guarantor under any law having for its purpose the extension of time for payment, composition or compromise opinion of the liabilities of such Corporation or any Guarantor or Required Lenders, when taken together with other reorganization or arrangement respecting its or any Guarantor’s liabilities or if the Corporation or any Guarantor gives notice of its intention ERISA Events that have occurred, could reasonably be expected to make or file any such proposal or petition including an application to any court to stay or suspend any proceedings of creditors pending the making or filing of any such proposal or petition.
(j) If any receiver, administrator or manager of the property, assets or undertaking of the Corporation or any Guarantor or a substantial part thereof is appointed pursuant result in liability to the terms of Borrower and its Subsidiaries in an aggregate amount exceeding $10,000,000, (ii) there is or arises an Unfunded Pension Liability (not taking into account Plans with negative Unfunded Pension Liability) in an aggregate amount exceeding $10,000,000, or (iii) there is or arises any trust deed, trust indenture, debenture or similar instrument or by or under any judgment or order of any court.potential Withdrawal Liability in an aggregate amount exceeding $10,000,000; or
(k) If any balance sheet or other financial statement provided by the Corporation to the Lender pursuant to the provisions hereof is false or misleading in any material respect.
(l) If any proceedings are taken to enforce any Encumbrance affecting any of the Secured Property or if a distress or any similar process be levied or enforced against any of the Secured Property.
(m) If any judgment or judgment, order for the payment of money money, writ, warrant of attachment or similar process involving an amount in excess of $250,000 15,000,000 in the aggregate shall be rendered against the Corporation Borrower or any Guarantor of its Subsidiaries, and either (i) enforcement proceedings shall have been commenced by any creditor upon such judgment or order, order or (ii) there shall be any a period of sixty 30 consecutive days during which a stay of enforcement of such judgment or order, by reason of a pending appeal or otherwise, shall not be in effect. ; or
(nl) If any action is taken non-monetary judgment or power order shall be rendered against the Borrower or right any of its Subsidiaries that could reasonably be exercised by any Governmental Body which would expected, either individually or in the aggregate, to have a Material Adverse Effect. , and there shall be a period of 30 consecutive days during which a stay of enforcement of such judgment or order, by reason of a pending appeal or otherwise, shall not be in effect; or
(m) a Change in Control shall occur or exist; or
(n) any material provision of the Guaranty Agreement shall for any reason cease to be valid and binding on, or enforceable against, any Loan Party, or any Loan Party shall so state in writing, or any Loan Party shall seek to terminate its obligation under the Guaranty Agreement (other than the release of any guaranty to the extent permitted pursuant to Section 9.11); or
(o) If any representation one or warranty made by the Corporation or any Guarantor herein or in any other Instrument to which it is a party or in any certificate, statement or report furnished in connection herewith is found to be false or incorrect in any way so as to make it materially misleading when made or when deemed to have been made.
(p) If a Change of Control occurs with respect to the Corporation, without the Lender’s prior written consent.
(q) If there shall occur or arise any change (or any condition, event or development involving a prospective change) in the business, operations, affairs, assets, liabilities (including any contingent liabilities that may arise through outstanding pending or threatened litigation or otherwise), capitalization, financial condition, more licenses, permits, rights accreditations or privilegesauthorizations of the Borrower or any of its Subsidiaries, whether contractual including any Insurance License with respect to any Insurance Subsidiary, shall be suspended, limited, modified or otherwiseterminated or shall not be renewed, and such suspension, limitation, modification, termination or non-renewal would reasonably be expected to result in a Material Adverse Effect, or prospects of any other action shall be taken, by any Governmental Authority in response to any alleged failure by the Corporation Borrower or any Guarantor whichof its Subsidiaries to be in compliance with applicable law, and such action, individually or in the judgment of the Lenderaggregate, acting reasonably, has or would reasonably be expected to have a Material Adverse Effect. LEGAL*52823942.10 ; then, and in every such event (other than an event with respect to the Borrower described in subsection (g) or (h) of this Section) and at any time thereafter during the continuance of such event, the Administrative Agent may, and upon the written request of the Required Lenders shall, by notice to the Borrower, take any or all of the following actions, at the same or different times: (i) terminate the Commitments, whereupon the Commitment of each Lender shall terminate immediately, (ii) declare the principal of and any accrued interest on the Loans, and all other Obligations owing hereunder, to be, whereupon the same shall become, due and payable immediately, without presentment, demand, protest or other notice of any kind, all of which are hereby waived by the Borrower, (iii) exercise all remedies contained in any other Loan Document, and (iv) exercise any other remedies available at law or in equity; provided that, if an Event of Default specified in either subsection (g) or (h) shall occur, the Commitments shall automatically terminate and the principal of the Loans then outstanding, together with accrued interest thereon, and all fees and all other Obligations shall automatically become due and payable, without presentment, demand, protest or other notice of any kind, all of which are hereby waived by the Borrower.
Appears in 1 contract
1Events of Default. If any of the following events shall occur and be continuing:
(a) If default occurs in payment The Borrower shall fail to pay when due any principal of any principal Note, or shall fail to pay within five (5) days after the date when due any interest, Fees or other amount payable under this Debenture.hereunder; or
(b) If Any representation or warranty made or deemed made by the Borrower or any Guarantor herein or in any other Loan Document or which is contained in any certificate, document or financial or other statement furnished at any time under or in connection with this Agreement shall prove to have been incorrect in any material respect on or as of the date made or deemed made; or
(c) The Borrower shall default occurs in payment when due the observance or performance of any interestagreement contained in Section 5.12 or in Section 6 or any representation or warranty contained in Section 3.21 is or becomes false or misleading at any time; or
(d) The Borrower or any Guarantor shall default in the observance or performance of any other agreement contained in this Agreement (other than as provided in paragraphs (a), fees (b) or (c) of this Section 7.1) or any other amounts payable under this Debenture Loan Document, and remains such default shall continue unremedied for a period of five Business Days thirty (30) days after the receipt by the Corporation of notice of such default. default is given by the Agent; or
(ce) If One or more judgments or decrees shall be entered against the Borrower or any Guarantor involving in the aggregate a liability (not paid or fully covered by insurance) of $10,000,000 or more and all such judgments or decrees shall not have been vacated, discharged, settled, satisfied or paid, or stayed or bonded pending appeal, within thirty (30) days from the entry thereof; or
(f) The Borrower shall (i) default occurs in the payment of any amount due under any Debt of the Borrower in excess of $10,000,000 in the aggregate (other than the Notes), beyond the period of grace, if any, provided in the instrument or agreement under which such Debt was created; or (ii) default in the observance or performance of any other Obligation agreement contained in any such Debt or in any instrument or agreement evidencing, securing or relating thereto beyond any applicable notice and grace period, or any other event shall occur the effect of which default or other event is to cause, or to permit the holder or holders or beneficiary or beneficiaries of such Debt (whether arising herein or otherwisea trustee or agent on behalf of such holder or holders or beneficiary or beneficiaries) to cause such Debt to become due and remains unremedied for a period payable prior to its stated maturity or any such Debt is declared to be due and payable prior to its stated maturity unless such default, event or declaration referred to in this subparagraph (ii) is waived or cured to the satisfaction of sixty days after such other party as demonstrated to the receipt satisfaction of the Agent by the Corporation of notice Borrower prior to the Agent taking any action under Section 7.2 in respect of such default.occurrence; or
(di) If default occurs in performance of any other covenant of the Corporation The Borrower or any Guarantor in favour of the Lender shall commence any case, proceeding or other action (A) under this Debenture and remains unremedied for a period of sixty days after the receipt by the Corporation of notice of such default.
(e) If an event of default occurs in payment any existing or performance future law of any obligation in favour jurisdiction, domestic or foreign, relating to bankruptcy, insolvency, reorganization or relief of any Person from whom the Corporation or any Guarantor has borrowed in excess of $250,000 which would entitle the holder debtors, seeking to accelerate repayment of the borrowed money, and such default is not remedied or waived in writing within sixty days of the occurrence of such default.
(f) If the Corporation or any Guarantor commits an act of bankruptcy or becomes insolvent within the meaning of any bankruptcy or insolvency legislation applicable to it or a petition or other process for the bankruptcy of the Corporation or any Guarantor is filed or instituted and remains undismissed or unstayed for a period of sixty days or any of the relief sought in such proceeding (including the entry of have an order for relief against entered with respect to it, or seeking to adjudicate it a bankrupt or insolvent, or seeking reorganization, arrangement, adjustment, winding‑up, liquidation, dissolution, composition or other relief with respect to it or the its debts, or (B) seeking appointment of a receiver, trustee, custodian or other similar official for it or for all or any substantial part of its property) shall occur.
(g) If any act, matter or thing is done towardassets, or any action or proceeding is launched or taken to terminate the corporate existence of the Corporation, or any Guarantor, whether by winding‒up, surrender of charter or otherwise.
(h) If the Corporation Borrower or any Guarantor ceases to carry on its business or makes or proposes to shall make any sale a general assignment for the benefit of its assets in bulk or any sale of its assets out of the usual course of its business unless expressly permitted herein or otherwise by the Lender in writing. LEGAL*52823942.10
(i) If any proposal is made or any petition is filed by or against the Corporation or any Guarantor under any law having for its purpose the extension of time for payment, composition or compromise of the liabilities of such Corporation or any Guarantor or other reorganization or arrangement respecting its or any Guarantor’s liabilities or if the Corporation or any Guarantor gives notice of its intention to make or file any such proposal or petition including an application to any court to stay or suspend any proceedings of creditors pending the making or filing of any such proposal or petition.
(j) If any receiver, administrator or manager of the property, assets or undertaking of the Corporation or any Guarantor or a substantial part thereof is appointed pursuant to the terms of any trust deed, trust indenture, debenture or similar instrument or by or under any judgment or order of any court.
(k) If any balance sheet or other financial statement provided by the Corporation to the Lender pursuant to the provisions hereof is false or misleading in any material respect.
(l) If any proceedings are taken to enforce any Encumbrance affecting any of the Secured Property or if a distress or any similar process be levied or enforced against any of the Secured Property.
(m) If any judgment or order for the payment of money in excess of $250,000 shall be rendered against the Corporation or any Guarantor and either (i) enforcement proceedings shall have been commenced by any creditor upon such judgment or order, creditors; or (ii) there shall be commenced against the Borrower or any Guarantor any case, proceeding or other action of a nature referred to in clause (i) above which (A) results in the entry of an order for relief or any such adjudication or appointment or (B) remains undismissed, undischarged or unbonded for a period of sixty consecutive (60) days; or (iii) there shall be commenced against the Borrower or any Guarantor any case, proceeding or other action seeking issuance of a warrant of attachment, execution, distraint or similar process on a claim in excess of $10,000,000 against all or any substantial part of its assets which results in the entry of an order for any such relief which shall not have been vacated, discharged, or stayed or bonded pending appeal within sixty (60) days during which a stay from the entry thereof; or (iv) the Borrower or any Guarantor shall take any action in furtherance of, or indicating its consent to, approval of, or acquiescence in, any of enforcement the acts set forth in clause (i), (ii), or (iii) above; or (v) the Borrower or any Guarantor shall generally not, or shall be unable to, or shall admit in writing its inability to, pay its debts as they become due; or
(i) Any Person shall engage in any “prohibited transaction” (as defined in Section 406 of ERISA or Section 4975 of the Code) involving any Plan, (ii) the adjusted target attainment percentage (within the meaning of Section 436(j)(2) of the Code) with respect to any Single Employer Plan maintained by the Borrower or Commonly Controlled Entity is certified by the Single Employer Plan’s actuary to be less than eighty percent (80%) or deemed by operation of Section 436 of the Code in the absence of such judgment certification to be less than eighty percent (80%), (iii) a Reportable Event shall occur with respect to, or orderproceedings shall commence to have a trustee appointed, or a trustee shall be appointed, to administer or to terminate, any Single Employer Plan, which Reportable Event or institution of proceedings is, in the reasonable opinion of the Required Banks, likely to result in the termination by reason action of a pending appeal the PBGC or otherwiseany court of such Single Employer Plan for purposes of Title IV of ERISA, (iv) any Single Employer Plan, if any, shall not terminate for purposes of Title IV of ERISA, or (v) the Borrower or a Commonly Controlled Entity should completely or partially withdraw from a Multiemployer Plan; and in each case in clauses (i) through (v) above, such event or condition, together with all other such events or conditions, if any, could reasonably be in effect.
(n) If any action is taken or power or right be exercised by any Governmental Body which would expected to have a Material Adverse Effect. ; or
(oi) If Any change in control of the Borrower shall occur (as used herein, the term “change in control” means either (A) any representation change in ownership of any class of stock or warranty made by capital stock generally of the Corporation Borrower which would result in a change or any Guarantor herein transfer in the power to control the election of a majority of the board of directors or in any other Instrument indicia of majority voting control to which it is persons or entities other than those persons who have such majority voting control on the Closing Date or (B) a party or decrease in any certificate, statement or report furnished in connection herewith is found such persons’ right to be false or incorrect in any way so as vote at shareholders’ meetings to make it materially misleading when made or when deemed to have been made.
(p) If a Change of Control occurs with respect to the Corporation, without the Lender’s prior written consent.
(q) If there shall occur or arise any change (or any condition, event or development involving a prospective change) in the business, operations, affairs, assets, liabilities (including any contingent liabilities that may arise through outstanding pending or threatened litigation or otherwisean aggregate level less than 51%), capitalization, financial condition, licenses, permits, rights or privileges, whether contractual or otherwise, or prospects of the Corporation or any Guarantor which, in the judgment of the Lender, acting reasonably, would have a Material Adverse Effect. LEGAL*52823942.10 ; or
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