1Events of Default. If any one or more of the following events (each, an “Event of Default”) shall occur and be continuing: (i) Borrower shall fail to pay any principal of any Loan when due in accordance with the terms hereof; or (ii) Borrower shall fail to pay any interest on any Loan or any Credit Party shall fail to pay any other amount (other than principal) payable hereunder or under 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 thereof; or (b) any representation or warranty made or deemed made by any Credit Party herein or in any other Loan Document or that is contained in any certificate, document or financial or other statement required to be furnished by such Credit Party at any time under this 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 furnished; provided, that, in each case, such materiality qualifier shall not be applicable with respect to any representation or warranty that is qualified or modified by materiality or Material Adverse Effect; or (i) any Credit Party shall fail or neglect to perform, keep or observe any of the covenants, promises, agreements, requirements, conditions or other terms or provisions contained in Sections 7.1(a)(i) (with respect to valid existence), 7.3 (other than clauses (c), (d) or (e)), 7.5(a), 7.13, 7.17, 7.18, 7.19, 7.27, 8.1, 8.2, Sections 9.1 through Section 9.13 and Section 10.7 of this Agreement; or (ii) any Credit Party shall fail or neglect to perform, keep or observe any of the other covenants, promises, agreements, requirements, conditions or other terms or provisions contained in this Agreement (other than those set forth in the Sections referred to in clause (i) immediately above) or any of the other Loan Documents and such breach is not remediable or, if remediable, continues unremedied for a period of thirty (30) days after the earlier to occur of (x) the date on which any officer of any Credit Party becomes aware of such breach and (y) the date on which Agent shall have notified any Credit Party of such breach; or (d) this Agreement or any other Loan Document shall not be for any reason, or shall be asserted by any Credit Party not to be, in full force and effect in all material respects in accordance with its terms or the Lien granted or intended to be granted to Agent pursuant to this Agreement or any other Loan Document shall cease to be a valid and perfected Lien having the first priority (or a lesser priority if expressly permitted in this Agreement or another Loan Document); or (e) any judgment involving an aggregate liability of $750,000 or more (excluding amounts covered by insurance to the extent the relevant third party insurers have agreed in writing to cover such amounts) shall be rendered against any Credit Party or there shall be any attachment or execution against any of the assets or properties of any Credit Party, and such judgment, attachment or execution remains unpaid, unstayed or undismissed for a period of thirty (30) days from the date of such judgment; or (f) any Credit Party shall be dissolved or shall generally not pay, or shall be generally unable to pay its debts as such debts become due, or shall admit in writing its inability to pay its debts generally, or shall make a general assignment for the benefit of creditors; or any proceeding shall be instituted or a petition shall be filed by or against any Credit Party seeking to adjudicate it a bankrupt or insolvent, or seeking liquidation, winding up, reorganization, arrangement, adjustment, protection, relief or composition of it or its debts under any Debtor Relief Laws, or seeking the entry of an order for relief or the appointment of a receiver, trustee, custodian or other similar official for it or for any substantial part of its property and , in the case of any such proceeding filed against a Credit Party, such proceeding shall continue undismissed or unstayed for sixty (60) days; or any Credit Party shall take any action to authorize any of the actions set forth above in this clause (f); or (g) any Credit Party shall (i) fail to pay any principal or interest, regardless of amount, due in respect of Indebtedness exceeding $500,000 when and as the same shall become due and payable or (ii) fail to observe or perform any other term, covenant, condition or agreement contained in any agreements or instruments evidencing or governing any such Indebtedness if the effect of any failure referred to in this clause (ii) is to cause, or to permit the holder or holders of such indebtedness or a trustee on its or their behalf to cause, such Indebtedness to become due prior to its stated maturity; or (h) the occurrence of a Change of Control or Change of Management; or (i) there shall be commenced against any Credit Party any Litigation seeking issuance of a warrant of attachment, execution, distraint or similar process against all or any substantial part of its assets which results in the entry of an order for any such relief which remains unstayed or undismissed for thirty (30) consecutive days; or any Credit Party shall have concealed, removed or permitted to be concealed or removed, any part of its property with intent to hinder, delay or defraud any of its creditors or made or suffered a transfer of any of its property or the incurring of an obligation which may be fraudulent under any bankruptcy, fraudulent transfer or other similar law; or (j) (i) the termination of, any amendment or other modification in a material and adverse manner as determined by Agents in their discretion of or any default under, any QVC Agreement; (ii) any amendment or other modification in a material and adverse manner as determined by Agents in their discretion of any Employment Agreement, any termination of any Employment Agreement or any breach of any Employment Agreement which is material and adverse which is not cured in any applicable grace period; or (iii) the termination of any other Material Contract which the applicable Credit Party has not replaced within sixty (60) days of such termination, with a similar agreement which generates revenue at least equivalent to the agreement which was terminated; or (k) the occurrence of any event with ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ that results in a material adverse effect on the value of the Intellectual Property purchased pursuant to the Asset Purchase Agreement dated as of December 22, 2014 among Borrower, H Licensing and The H Company IP, LLC or the Heritage Purchase Agreement; or (l) any Credit Party shall take or participate in any action which would be prohibited under the provisions of any Subordination Agreement or Intercreditor Agreement or make any payment on the Subordinated Debt that any Person was not entitled to receive under the provisions of the applicable Subordination Agreement or Intercreditor Agreement; then, and in any such event and at any time thereafter, if such or any other Event of Default shall then be continuing, Administrative Agent in its sole discretion may, and at the direction of the Required Lenders shall, declare any or all of the Obligations to be due and payable, and the same shall immediately become due and payable without presentment, demand, protest or notice of any kind, all of which are hereby expressly waived, other than the notices required by this Section 12.1; provided, however, if an Event of Default under Section 12.1(f) above shall occur and be continuing, then all of the Obligations shall become immediately due and payable without any necessary action or notice by Administrative Agent.
Appears in 1 contract
1Events of Default. If The occurrence of any one or more of the following events (each, regardless of the reason therefor) shall constitute an “Event of Default”) ” hereunder which shall occur be deemed to be continuing until waived in writing by Agent in accordance with Section 9.3 or cured in accordance with the terms and be continuingconditions of this Agreement:
(ia) Borrower Any Credit Party shall fail to pay any (i) the principal in respect of any the Loan when due and payable or declared due and payable in accordance with the terms hereof; or
, or (ii) Borrower shall fail to pay any interest on any in respect of the Loan or any Credit Party shall fail to pay any other amount (other than principal) payable hereunder or under any other Loan Document, Obligations within three (3) Business Days days after any such interest or other amount Obligation becomes due and payable in accordance with the terms hereof or thereofany other Loan Document; or
(b) any representation or warranty made or deemed made by any Credit Party herein or in any other Loan Document or that is contained in any certificate, document or financial or other statement required to be furnished by such Credit Party at any time under this Agreement or any such other Loan Document Document, or in any written statement pursuant hereto or thereto, or in any written report, financial statement or certificate made or delivered to Agent by Borrower or any other Credit Party shall prove to have been inaccurate be untrue or incorrect in any material respect on or as of the date when made or deemed made made, regardless of whether such breach involves a representation or furnished; provided, that, in each case, such materiality qualifier shall not be applicable warranty with respect to a Credit Party that has not signed this Agreement; or
(c) Borrower or any representation other Credit Party shall fail or warranty that is qualified neglect to perform, keep or modified observe any of the covenants, agreements, requirements, or other terms or provisions to be performed, kept or observed by materiality Borrower or Material Adverse Effectsuch other Credit Party contained in (i) Section 3.1(a)(i)(A) (with respect to such Person’s legal existence), Section 3.16, Section 3.22, Section 3.23, Section 3.26(c), Section 3.31, Section 3.36, Section 4.1(a), (b). (c), (d) or (j), Section 4.2, Section 4.3, each subsection of Section 5, and each subsection of Section 6 of this Agreement, or the SBA Side Letter, or (ii) Section 3.21 or any other provision of Section 4.1 (other than referred to under the preceding clause (i)) and such failure or neglect shall continue unremedied for a period of three (3) Business Days; or
(id) Borrower or any other Credit Party shall fail or neglect to perform, keep or observe any of the covenants, promises, agreements, requirements, conditions or other terms or provisions to be performed, kept or observed by Borrower or such other Credit Party contained in Sections 7.1(a)(i) (with respect to valid existence), 7.3 Section 3.26 (other than clauses (cSection 3.26(c), (d) or (e)), 7.5(a), 7.13, 7.17, 7.18, 7.19, 7.27, 8.1, 8.2, Sections 9.1 through Section 9.13 and Section 10.7 3.28 of this Agreement, and such failure or neglect shall continue unremedied for a period of three (3) Business Days; or
(e) Borrower or (ii) any other Credit Party shall fail or neglect to perform, keep or observe any of the other covenants, promises, agreements, requirements, conditions or other terms or provisions to be performed, kept or observed by Borrower or such other Credit Party contained in this Agreement (other than those set forth in the Sections referred to in clause (i) immediately above) or any of the other Loan Documents (other than as specified in paragraphs (a) through (d) above), and such breach is not remediable or, if remediable, continues failure or neglect shall continue unremedied for a period of thirty (30) days after the earlier to occur of (xi) the date on which any officer a Responsible Officer of any a Credit Party becomes aware of having knowledge thereof, or (ii) written notice is delivered to the Borrower or such breach and (y) the date on which Agent shall have notified any Credit Party of such breachby the Agent or any Lender; or
(df) this Agreement an event of default shall occur under any Contractual Obligation of the Borrower or any other Loan Document shall not be for any reason, or shall be asserted by any Credit Party not to be(other than this Agreement, in full force and effect in all material respects in accordance with its terms or the Lien granted or intended to be granted to Agent pursuant to this Agreement or any other Loan Document shall cease to be a valid Documents and perfected Lien having the first priority (or a lesser priority if expressly permitted in this Agreement or another Revolving Loan DocumentDocuments); or
(e) any judgment involving an aggregate liability of $750,000 or more (excluding amounts covered by insurance to the extent the relevant third party insurers have agreed in writing to cover such amounts) shall be rendered against any Credit Party or there shall be any attachment or execution against any of the assets or properties of any Credit Party, and such judgmentevent of default (i) involves the failure to make any payment (whether or not such payment is blocked pursuant to the terms of an intercreditor agreement or otherwise), attachment whether of principal, interest or execution remains unpaidotherwise, unstayed and whether due by scheduled maturity, required prepayment, acceleration, demand or undismissed for otherwise and such failure continues after the applicable grace or notice period, if any, specified in the document relating thereto, in respect of any Indebtedness (other than the Obligations and the Indebtedness under the Revolving Loan Documents) of such Person in an aggregate original principal amount exceeding the Threshold Amount, or (ii) causes (or permits any holder of such Indebtedness or a period of thirty (30trustee to cause) days from such Indebtedness, or a portion thereof, in an aggregate original principal amount exceeding the Threshold Amount become due prior to its stated maturity or prior to its regularly scheduled date of such judgment; or
(f) any Credit Party shall be dissolved or shall generally not pay, or shall be generally unable to pay its debts as such debts become due, or shall admit in writing its inability to pay its debts generally, or shall make a general assignment for the benefit of creditors; or any proceeding shall be instituted or a petition shall be filed by or against any Credit Party seeking to adjudicate it a bankrupt or insolvent, or seeking liquidation, winding up, reorganization, arrangement, adjustment, protection, relief or composition of it or its debts under any Debtor Relief Laws, or seeking the entry of an order for relief or the appointment of a receiver, trustee, custodian or other similar official for it or for any substantial part of its property and , in the case of any such proceeding filed against a Credit Party, such proceeding shall continue undismissed or unstayed for sixty (60) days; or any Credit Party shall take any action to authorize any of the actions set forth above in this clause (f)payment; or
(g) any Credit Party shall (i) fail to pay any principal or interest, regardless of amount, due in respect of Indebtedness exceeding $500,000 when and as the same shall become due and payable or (ii) fail to observe or perform any other term, covenant, condition or agreement contained in any agreements or instruments evidencing or governing any such Indebtedness if the effect of any failure referred to in this clause (ii) is to cause, or to permit the holder or holders of such indebtedness or a trustee on its or their behalf to cause, such Indebtedness to become due prior to its stated maturity; or
(h) the occurrence of a Change of Control or Change of Management; or
(i) there shall be commenced against the Borrower or any other Credit Party any Litigation seeking issuance of a warrant of attachment, execution, distraint or similar process against all or any substantial part of its assets which that results in the entry of an order for any such relief which that remains unstayed unstayed, undismissed or undismissed unbonded for thirty sixty (3060) consecutive days; or
(h) a case or proceeding shall have been commenced involuntarily against Borrower or any other Credit Party in a court having competent jurisdiction seeking a decree or order: (i) under any Debtor Relief Law, and seeking either (x) the appointment of a custodian, receiver, interim receiver, receiver and manager, liquidator, assignee, trustee, monitor or sequestrator (or similar official) for such Person or of any substantial part of its properties, or (y) the reorganization or winding up or liquidation of the affairs of any such Person, and such case or proceeding shall remain undismissed, unstayed or unbonded for sixty (60) consecutive days or such court shall enter a decree or order granting the relief sought in such case or proceeding; or (ii) invalidating or denying any such Person’s right, power, or competence to enter into or perform any of its obligations under any Loan Document or invalidating or denying the validity or enforceability of this Agreement or any other Loan Document or any action taken hereunder or thereunder; or
(i) Borrower or any other Credit Party shall (i) commence any case, proceeding or other action under any Debtor Relief Law, seeking to have concealedan order for relief entered with respect to it or seeking appointment of a custodian, removed receiver, interim receiver, receiver and manager, liquidator, assignee, trustee, monitor or permitted to be concealed sequestrator (or removed, similar official) for it or any substantial part of its property with intent properties, (ii) make a general assignment for the benefit of creditors, (iii) consent to hinderor take any action in furtherance of, delay or, indicating its consent to, approval of, or defraud acquiescence in, any of the acts set forth in paragraph (h) of this Section 7.1 or clauses (i) and (ii) of this paragraph (i), or (iv) shall admit in writing its creditors inability to, or made or suffered a transfer of any of shall be generally unable to, pay its property or the incurring of an obligation which may be fraudulent under any bankruptcy, fraudulent transfer or other similar lawdebts as such debts become due; or
(j) a final judgment or judgments for the payment of money in excess of the Threshold Amount in the aggregate shall be rendered against Borrower or any other Credit Party, unless the same shall be (i) fully covered by insurance and the termination ofissuer(s) of the applicable policies have not disclaimed coverage, any amendment or other modification in a material and adverse manner as determined by Agents in their discretion of or any default under, any QVC Agreement; (ii) any amendment vacated, stayed, bonded, paid or other modification in discharged within a material and adverse manner as determined by Agents in their discretion period of any Employment Agreement, any termination of any Employment Agreement or any breach of any Employment Agreement which is material and adverse which is not cured in any applicable grace period; or (iii) the termination of any other Material Contract which the applicable Credit Party has not replaced within sixty (60) consecutive days from the date of such termination, with a similar agreement which generates revenue at least equivalent to the agreement which was terminatedjudgment; or
(k) the occurrence any material provision of any event with ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ that results Loan Document shall for any reason (other than upon satisfaction in a material adverse effect on the value full of the Intellectual Property purchased pursuant Obligations), cease to be valid, binding and enforceable in accordance with its terms, or any Lien granted, or intended by the Loan Documents to be granted, to Agent for the benefit of the Lenders shall cease to be a valid and perfected Lien having the first priority (or a lesser priority if expressly permitted in the Loan Documents, including the Intercreditor Agreement), except to the Asset Purchase extent that any such loss of perfection or priority results from the failure of the Agent (which failure is not due to any omission or action by Credit Parties) to maintain possession of certificates actually received representing securities pledged hereunder or under the Pledge Agreement dated as of December 22, 2014 among Borrower, H Licensing and The H Company IP, LLC or to file Code continuation statements in the Heritage Purchase Agreementapplicable jurisdictions; or
(l) any Credit Party a Change of Control shall take or participate in any action which would be prohibited under the provisions of any Subordination Agreement or Intercreditor Agreement or make any payment on the Subordinated Debt have occurred; or
(m) an ERISA Event shall have occurred that, when taken together with all other ERISA Events that any Person was not entitled to receive under the provisions of the applicable Subordination Agreement or Intercreditor Agreement; then, have occurred and in any such event and at any time thereafter, if such or any other Event of Default shall are then be continuing, Administrative Agent in its sole discretion may, and at the direction of the Required Lenders shall, declare any or all of the Obligations could reasonably be expected to be due and payable, and the same shall immediately become due and payable without presentment, demand, protest or notice of any kind, all of which are hereby expressly waived, other than the notices required by this Section 12.1have Material Adverse Effect; provided, however, if an Event of Default under Section 12.1(for
(n) above shall occur and be continuing, then all of the Obligations shall become immediately due and payable without any necessary action or notice by Administrative Agent.[reserved]; or
Appears in 1 contract
Sources: Term Loan, Guarantee and Security Agreement (Williams Industrial Services Group Inc.)
1Events of Default. If The occurrence of any one or more of the following events (each, shall constitute an “Event of Default”) shall occur and be continuing:
(ia) Borrower the Company shall fail to pay (i) any principal of any Loan Advance when due in accordance with the terms hereof; or
and payable, or (ii) Borrower shall fail to pay any Reimbursement Obligation within one (1) Business Day after the same becomes due, or (iii) any interest on any Loan Advance or any Credit Party shall fail to pay any fee or other amount (other than principal) Obligation payable hereunder or under any other Loan Document, within three five (35) Business Days after any such interest or fee or other amount Obligation becomes due in accordance with the terms hereof or thereof; orand payable;
(b) any representation or warranty made by or deemed made by any Credit Party herein on behalf of the Company in this Agreement or in any other Loan Credit Document or that is contained in any certificate, document or document, report, financial or other written statement required to be furnished by such Credit Party at any time under this Agreement or pursuant to any such other Loan Credit Document shall prove to have been inaccurate incorrect in any material respect on or as of the date made or deemed made made;
(c) (i) the Company or furnished; providedany of its Subsidiaries shall fail to perform or observe any term, that, covenant or agreement contained in each case, such materiality qualifier shall not be applicable Section 6.3(a) (solely with respect to any representation or warranty that is qualified or modified by materiality or Material Adverse Effect; or
(i) any Credit Party shall fail or neglect to perform, keep or observe any of the covenants, promises, agreements, requirements, conditions or other terms or provisions contained in Sections 7.1(a)(i) (with respect to valid existenceCompany), 7.3 (other than clauses (c)Section 6.10, (d) Article VII or (e)), 7.5(a), 7.13, 7.17, 7.18, 7.19, 7.27, 8.1, 8.2, Sections 9.1 through Section 9.13 and Section 10.7 of this AgreementArticle VIII; or (ii) the Company or any Credit Party of its Subsidiaries shall fail to comply with Section 6.8(b) and such failure under this clause (ii) shall continue for five (5) Business Days after the occurrence of such breach; or neglect (iii) the Company shall fail to perform, keep perform or observe any of the other covenantsterm, promises, agreements, requirements, conditions covenant or other terms agreement on its part to be performed or provisions contained observed in this Agreement (or in any other than those set forth in the Sections referred to in Credit Document and such failure under this clause (iiii) immediately above) or any of the other Loan Documents and such breach is not remediable or, if remediable, continues unremedied shall continue for a period of thirty (30) consecutive days after the earlier to occur of (x) the date on which any officer of any Credit Party becomes aware a Designated Officer obtaining knowledge of such breach and (y) written notice thereof by means of facsimile, regular mail or written notice delivered in person (or telephonic notice thereof confirmed in writing) having been given to the date on which Company by the Agent shall have notified any Credit Party of such breach; oror the Majority Banks;
(d) this Agreement the Company or any Material Subsidiary shall: (i) fail to pay any Debt (other Loan Document than the payment obligations described in clause (a) above) in excess of $50,000,000, or any interest or premium thereon, when due (whether by scheduled maturity, required prepayment, acceleration, demand or otherwise) and such failure shall not continue after the applicable grace period, if any, specified in the instrument or agreement relating to such Debt; or (ii) fail to perform or observe any term, covenant or condition on its part to be for performed or observed under any reasonagreement or instrument relating to any such Debt, when required to be performed or observed, if the effect of such failure to perform or observe is to accelerate, or to permit the acceleration of, the maturity of such Debt, unless the obligee under or holder of such Debt shall have waived in writing such circumstance, or such circumstance has been cured, so that such circumstance is no longer continuing; or (iii) any such Debt shall be declared to be due and payable, or required to be prepaid (other than by a regularly scheduled required prepayment), in each case in accordance with the terms of such agreement or instrument, prior to the stated maturity thereof; or (iv) generally not, or shall be asserted by any Credit Party not to be, in full force and effect in all material respects in accordance with its terms or the Lien granted or intended to be granted to Agent pursuant to this Agreement or any other Loan Document shall cease to be a valid and perfected Lien having the first priority (or a lesser priority if expressly permitted in this Agreement or another Loan Document); or
(e) any judgment involving an aggregate liability of $750,000 or more (excluding amounts covered by insurance to the extent the relevant third party insurers have agreed admit in writing to cover such amounts) shall be rendered against any Credit Party or there shall be any attachment or execution against any of the assets or properties of any Credit Partyits inability to, and such judgment, attachment or execution remains unpaid, unstayed or undismissed for a period of thirty (30) days from the date of such judgment; or
(f) any Credit Party shall be dissolved or shall generally not pay, or shall be generally unable to pay its debts as such debts become due, ;
(e) the Company or shall admit in writing its inability to pay its debts generally, or any Material Subsidiary: (i) shall make a general an assignment for the benefit of creditors, or petition or apply to any tribunal for the appointment of a custodian, receiver or trustee for it or a substantial part of its assets; or (ii) shall commence any proceeding shall be instituted or a petition shall be filed by or against under any Credit Party seeking to adjudicate it a bankrupt or insolvent, or seeking liquidation, winding upbankruptcy, reorganization, arrangement, adjustmentreadjustment of debt, protectiondissolution or liquidation law or statute of any jurisdiction, whether now or hereafter in effect; or (iii) shall have had any such petition or application filed or any such proceeding shall have been commenced, against it, in which an adjudication or appointment is made or order for relief or composition of it or its debts under any Debtor Relief Lawsis entered, or seeking the entry which petition, application or proceeding remains undismissed for a period of an sixty (60) consecutive days or more; or (iv) by any act or omission shall indicate its consent to, approval of or acquiescence in any such petition, application or proceeding or order for relief or the appointment of a receivercustodian, trustee, custodian receiver or other similar official trustee for it all or for any substantial part of its property and , in the case of property; or (v) shall suffer any such proceeding filed against custodianship, receivership or trusteeship to continue undischarged for a Credit Party, such proceeding shall continue undismissed or unstayed for period of sixty (60) daysdays or more; or any Credit Party (vi) shall take any corporate action to authorize any of the actions set forth above in this clause (e);
(f); or) one or more judgments, decrees or orders for the payment of money in excess of $50,000,000 in the aggregate shall be rendered against the Company or any Material Subsidiary and either (i) enforcement proceedings shall have been commenced by any creditor upon any such judgment or order or (ii) there shall be any period of more than thirty (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;
(g) any material provision of any Credit Party Document, after execution hereof or delivery thereof under Article XI, shall for any reason other than the express terms hereof or thereof cease to be valid and binding on any party thereto; or the Company shall so assert in writing;
(h) any Plan Termination Event with respect to a Plan shall have occurred, and thirty (30) days after notice thereof shall have been given to the Company by the Agent, (i) fail such Plan Termination Event (if correctable) shall not have been corrected and (ii) the then present value of such Plan’s vested benefits exceeds the then current value of the assets accumulated in such Plan by more than the amount of $50,000,000 (or in the case of a Plan Termination Event involving the withdrawal of a “substantial employer” (as defined in Section 4001(A)(2) of ERISA), the withdrawing employer’s proportionate share of such excess shall exceed such amount);
(i) any Bond shall cease to pay be in full force and effect (other than in connection with the replacement thereof pursuant to any principal or interest, regardless increase of amount, due the Commitments in respect of Indebtedness exceeding $500,000 when and as the same shall become due and payable accordance with Section 2.16) or (ii) fail to observe the Company shall deny that it has any liability or perform any other term, covenant, condition or agreement contained in any agreements or instruments evidencing or governing any such Indebtedness if the effect of any failure referred to in this clause (ii) is to cause, or to permit the holder or holders of such indebtedness or a trustee on its or their behalf to cause, such Indebtedness to become due prior to its stated maturity; or
(h) the occurrence of a Change of Control or Change of Management; or
(i) there shall be commenced against any Credit Party any Litigation seeking issuance of a warrant of attachment, execution, distraint or similar process against all or any substantial part of its assets which results in the entry of an order for any such relief which remains unstayed or undismissed for thirty (30) consecutive days; or any Credit Party shall have concealed, removed or permitted to be concealed or removed, any part of its property with intent to hinder, delay or defraud any of its creditors or made or suffered a transfer of any of its property or the incurring of an obligation which may be fraudulent under any bankruptcyBond or purport to revoke, fraudulent transfer terminate, rescind or redeem any Bond (other similar lawthan (x) in accordance with the terms of the Bonds and the Indenture and (y) in connection with the replacement thereof pursuant to any increase of the Commitments in accordance with Section 2.16); or
(j) (i) the termination of, any amendment or other modification a Change in a material and adverse manner as determined by Agents in their discretion of or any default under, any QVC Agreement; (ii) any amendment or other modification in a material and adverse manner as determined by Agents in their discretion of any Employment Agreement, any termination of any Employment Agreement or any breach of any Employment Agreement which is material and adverse which is not cured in any applicable grace period; or (iii) the termination of any other Material Contract which the applicable Credit Party has not replaced within sixty (60) days of such termination, with a similar agreement which generates revenue at least equivalent to the agreement which was terminated; or
(k) the occurrence of any event with ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ that results in a material adverse effect on the value of the Intellectual Property purchased pursuant to the Asset Purchase Agreement dated as of December 22, 2014 among Borrower, H Licensing and The H Company IP, LLC or the Heritage Purchase Agreement; or
(l) any Credit Party Control shall take or participate in any action which would be prohibited under the provisions of any Subordination Agreement or Intercreditor Agreement or make any payment on the Subordinated Debt that any Person was not entitled to receive under the provisions of the applicable Subordination Agreement or Intercreditor Agreement; then, and in any such event and at any time thereafter, if such or any other Event of Default shall then be continuing, Administrative Agent in its sole discretion may, and at the direction of the Required Lenders shall, declare any or all of the Obligations to be due and payable, and the same shall immediately become due and payable without presentment, demand, protest or notice of any kind, all of which are hereby expressly waived, other than the notices required by this Section 12.1; provided, however, if an Event of Default under Section 12.1(f) above shall occur and be continuing, then all of the Obligations shall become immediately due and payable without any necessary action or notice by Administrative Agentoccur.
Appears in 1 contract
1Events of Default. If The occurrence of any one or more of the following events (each, shall constitute an “Event of Default”) shall occur and be continuing:
(ia) Borrower the Company shall fail to pay (i) any principal of any Loan Advance when due in accordance with the terms hereof; or
and payable, or (ii) Borrower shall fail to pay any Reimbursement Obligation within one (1) Business Day after the same becomes due, or (iii) any interest on any Loan Advance or any Credit Party shall fail to pay any fee or other amount (other than principal) Obligation payable hereunder or under any other Loan Document, within three five (35) Business Days after any such interest or fee or other amount Obligation becomes due in accordance with the terms hereof or thereof; orand payable;
(b) any representation or warranty made by or deemed made by any Credit Party herein on behalf of the Company in this Agreement or in any other Loan Credit Document or that is contained in any certificate, document or document, report, financial or other written statement required to be furnished by such Credit Party at any time under this Agreement or pursuant to any such other Loan Credit Document shall prove to have been inaccurate incorrect in any material respect on or as of the date made or deemed made made;
(c) (i) the Company or furnished; providedany of its Subsidiaries shall fail to perform or observe any term, that, covenant or agreement contained in each case, such materiality qualifier shall not be applicable Section 6.3(a) (solely with respect to any representation or warranty that is qualified or modified by materiality or Material Adverse Effect; or
(i) any Credit Party shall fail or neglect to perform, keep or observe any of the covenants, promises, agreements, requirements, conditions or other terms or provisions contained in Sections 7.1(a)(i) (with respect to valid existenceCompany), 7.3 (other than clauses (c)Section 6.10, (d) Article VII or (e)), 7.5(a), 7.13, 7.17, 7.18, 7.19, 7.27, 8.1, 8.2, Sections 9.1 through Section 9.13 and Section 10.7 of this AgreementArticle VIII; or (ii) the Company or any Credit Party of its Subsidiaries shall fail to comply with Section 6.8(b) and such failure under this clause (ii) shall continue for five (5) Business Days after the occurrence of such breach; or neglect (iii) the Company shall fail to perform, keep perform or observe any of the other covenantsterm, promises, agreements, requirements, conditions covenant or other terms agreement on its part to be performed or provisions contained observed in this Agreement (or in any other than those set forth in the Sections referred to in Credit Document and such failure under this clause (iiii) immediately above) or any of the other Loan Documents and such breach is not remediable or, if remediable, continues unremedied shall continue for a period of thirty (30) consecutive days after the earlier to occur of (x) the date on which any officer of any Credit Party becomes aware a Designated Officer obtaining knowledge of such breach and (y) written notice thereof by means of facsimile, regular mail or written notice delivered in person (or telephonic notice thereof confirmed in writing) having been given to the date on which Company by the Agent shall have notified any Credit Party of such breach; oror the Majority Banks;
(d) this Agreement the Company or any Material Subsidiary shall: (i) fail to pay any Debt (other Loan Document than the payment obligations described in clause (a) above) in excess of $50,000,000, or any interest or premium thereon, when due (whether by scheduled maturity, required prepayment, acceleration, demand or otherwise) and such failure shall not continue after the applicable grace period, if any, specified in the instrument or agreement relating to such Debt; or (ii) fail to perform or observe any term, covenant or condition on its part to be for performed or observed under any reasonagreement or instrument relating to any such Debt, when required to be performed or observed, if the effect of such failure to perform or observe is to accelerate, or to permit the acceleration of, the maturity of such Debt, unless the obligee under or holder of such Debt shall have waived in writing such circumstance, or such circumstance has been cured, so that such circumstance is no longer continuing; or (iii) any such Debt shall be declared to be due and payable, or required to be prepaid (other than by a regularly scheduled required prepayment), in each case in accordance with the terms of such agreement or instrument, prior to the stated maturity thereof; or (iv) generally not, or shall be asserted by any Credit Party not to be, in full force and effect in all material respects in accordance with its terms or the Lien granted or intended to be granted to Agent pursuant to this Agreement or any other Loan Document shall cease to be a valid and perfected Lien having the first priority (or a lesser priority if expressly permitted in this Agreement or another Loan Document); or
(e) any judgment involving an aggregate liability of $750,000 or more (excluding amounts covered by insurance to the extent the relevant third party insurers have agreed admit in writing to cover such amounts) shall be rendered against any Credit Party or there shall be any attachment or execution against any of the assets or properties of any Credit Partyits inability to, and such judgment, attachment or execution remains unpaid, unstayed or undismissed for a period of thirty (30) days from the date of such judgment; or
(f) any Credit Party shall be dissolved or shall generally not pay, or shall be generally unable to pay its debts as such debts become due, ;
(e) the Company or shall admit in writing its inability to pay its debts generally, or any Material Subsidiary: (i) shall make a general an assignment for the benefit of creditors, or petition or apply to any tribunal for the appointment of a custodian, receiver or trustee for it or a substantial part of its assets; or (ii) shall commence any proceeding shall be instituted or a petition shall be filed by or against under any Credit Party seeking to adjudicate it a bankrupt or insolvent, or seeking liquidation, winding upbankruptcy, reorganization, arrangement, adjustmentreadjustment of debt, protectiondissolution or liquidation law or statute of any jurisdiction, whether now or hereafter in effect; or (iii) shall have had any such petition or application filed or any such proceeding shall have been commenced, against it, in which an adjudication or appointment is made or order for relief or composition of it or its debts under any Debtor Relief Lawsis entered, or seeking the entry which petition, application or proceeding remains undismissed for a period of an sixty (60) consecutive days or more; or (iv) by any act or omission shall indicate its consent to, approval of or acquiescence in any such petition, application or proceeding or order for relief or the appointment of a receivercustodian, trustee, custodian receiver or other similar official trustee for it all or for any substantial part of its property and , in the case of property; or (v) shall suffer any such proceeding filed against custodianship, receivership or trusteeship to continue undischarged for a Credit Party, such proceeding shall continue undismissed or unstayed for period of sixty (60) daysdays or more; or any Credit Party (vi) shall take any corporate action to authorize any of the actions set forth above in this clause (e);
(f); or) one or more judgments, decrees or orders for the payment of money in excess of $50,000,000 in the aggregate shall be rendered against the Company or any Material Subsidiary and either (i) enforcement proceedings shall have been commenced by any creditor upon any such judgment or order or (ii) there shall be any period of more than thirty (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;
(g) any Credit Party shall (i) fail to pay any principal or interest, regardless of amount, due in respect of Indebtedness exceeding $500,000 when and as the same shall become due and payable or (ii) fail to observe or perform any other term, covenant, condition or agreement contained in any agreements or instruments evidencing or governing any such Indebtedness if the effect material provision of any failure referred Credit Document, after execution hereof or delivery thereof under Article XI, shall for any reason other than the express terms hereof or thereof cease to be valid and binding on any party thereto; or the Company shall so assert in this clause (ii) is to cause, or to permit the holder or holders of such indebtedness or a trustee on its or their behalf to cause, such Indebtedness to become due prior to its stated maturity; orwriting;
(h) any Plan Termination Event with respect to a Plan shall have occurred, and thirty (30) days after notice thereof shall have been given to the occurrence Company by the Agent, (i) such Plan Termination Event (if correctable) shall not have been corrected and (ii) the then present value of such Plan’s vested benefits exceeds the then current value of the assets accumulated in such Plan by more than the amount of $50,000,000 (or in the case of a Change Plan Termination Event involving the withdrawal of Control or Change a “substantial employer” (as defined in Section 4001(A)(2) of Management; orERISA), the withdrawing employer’s proportionate share of such excess shall exceed such amount);
(i) there a Change in Control shall be commenced against any Credit Party any Litigation seeking issuance of a warrant of attachment, execution, distraint or similar process against all or any substantial part of its assets which results in the entry of an order for any such relief which remains unstayed or undismissed for thirty (30) consecutive days; or any Credit Party shall have concealed, removed or permitted to be concealed or removed, any part of its property with intent to hinder, delay or defraud any of its creditors or made or suffered a transfer of any of its property or the incurring of an obligation which may be fraudulent under any bankruptcy, fraudulent transfer or other similar lawoccur; or
(j) (i) any Collateral Document shall for any reason fail to create a valid and perfected first priority security interest in any portion of the termination ofCollateral purported to be covered thereby, any amendment or other modification in a material and adverse manner except as determined permitted by Agents in their discretion of or any default under, any QVC Agreement; (ii) any amendment or other modification in a material and adverse manner as determined by Agents in their discretion the terms of any Employment Agreement, any termination of any Employment Agreement or any breach of any Employment Agreement which is material and adverse which is not cured in any applicable grace period; or (iii) the termination of any other Material Contract which the applicable Credit Party has not replaced within sixty (60) days of such termination, with a similar agreement which generates revenue at least equivalent to the agreement which was terminated; or
(k) the occurrence of any event with ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ that results in a material adverse effect on the value of the Intellectual Property purchased pursuant to the Asset Purchase Agreement dated as of December 22, 2014 among Borrower, H Licensing and The H Company IP, LLC or the Heritage Purchase Agreement; or
(l) any Credit Party shall take or participate in any action which would be prohibited under the provisions of any Subordination Agreement or Intercreditor Agreement or make any payment on the Subordinated Debt that any Person was not entitled to receive under the provisions of the applicable Subordination Agreement or Intercreditor Agreement; then, and in any such event and at any time thereafter, if such or any other Event of Default shall then be continuing, Administrative Agent in its sole discretion may, and at the direction of the Required Lenders shall, declare any or all of the Obligations to be due and payable, and the same shall immediately become due and payable without presentment, demand, protest or notice of any kind, all of which are hereby expressly waived, other than the notices required by this Section 12.1; provided, however, if an Event of Default under Section 12.1(f) above shall occur and be continuing, then all of the Obligations shall become immediately due and payable without any necessary action or notice by Administrative AgentDocument.
Appears in 1 contract
1Events of Default. If any one or more of the following events (each, an “Event of Default”) shall occur and be continuing:
(i) Borrower shall fail to pay any principal of any Loan when due in accordance with the terms hereof; or
(ii) Borrower shall fail to pay any interest on any Loan or any Credit Party shall fail to pay any other amount (other than principal) payable hereunder or under 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 thereof; or
(b) any representation or warranty made or deemed made by any Credit Party herein or in any other Loan Document or that is contained in any certificate, document or financial or other statement required to be furnished by such Credit Party at any time under this 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 furnished; provided, that, in each case, such materiality qualifier shall not be applicable with respect to any representation or warranty that is qualified or modified by materiality or Material Adverse Effect; or
(i) any Credit Party shall fail or neglect to perform, keep or observe any of the covenants, promises, agreements, requirements, conditions or other terms or provisions contained in Sections 7.1(a)(i) (with respect to valid existence), 7.3 (other than clauses (c), (d) or (e)), 7.5(a), 7.13, 7.17, 7.18, 7.19, 7.23, 7.24, 7.27, 8.1, 8.2, Sections 9.1 through Section 9.13 9.14 and Section 10.7 of this Agreement; or (ii) any Credit Party shall fail or neglect to perform, keep or observe any of the other covenants, promises, agreements, requirements, conditions or other terms or provisions contained in this Agreement (other than those set forth in the Sections referred to in clause (i) immediately above) or any of the other Loan Documents and such breach is not remediable or, if remediable, continues unremedied for a period of thirty (30) days after the earlier to occur of (x) the date on which any officer of any Credit Party becomes aware of such breach and (y) the date on which Agent shall have notified any Credit Party of such breach; or
(d) this Agreement or any other Loan Document shall not be for any reason, or shall be asserted by any Credit Party not to be, in full force and effect in all material respects in accordance with its terms or the Lien granted or intended to be granted to Agent pursuant to this Agreement or any other Loan Document shall cease to be a valid and perfected Lien having the first priority (or a lesser priority if expressly permitted in this Agreement or another Loan Document); or
(e) any judgment involving an aggregate liability of $750,000 or more exceeding the Minimum Actionable Amount (excluding amounts covered by insurance to the extent the relevant third party insurers have agreed in writing to cover such amounts) shall be rendered against any Credit Party or there shall be any attachment or execution against any of the assets or properties of any Credit Party, and such judgment, attachment or execution remains unpaid, unstayed or undismissed for a period of thirty (30) days from the date of such judgment; or or
(f) any Credit Party shall be dissolved or shall generally not pay, or shall be generally unable to pay its debts as such debts become due, or shall admit in writing its inability to pay its debts generally, or shall make a general assignment for the benefit of creditors; or any proceeding shall be instituted or a petition shall be filed by or against any Credit Party seeking to adjudicate it a bankrupt or insolvent, or seeking liquidation, winding up, reorganization, arrangement, adjustment, protection, relief or composition of it or its debts under any Debtor Relief Laws, or seeking the entry of an order for relief or the appointment of a receiver, trustee, custodian or other similar official for it or for any substantial part of its property and , in the case of any such proceeding filed against a Credit Party, such proceeding shall continue undismissed or unstayed for sixty (60) days; or any Credit Party shall take any action to authorize any of the actions set forth above in this clause (f); or
(g) any Credit Party shall (i) fail to pay any principal or interest, regardless of amount, due in respect of Indebtedness exceeding $500,000 the Minimum Actionable Amount when and as the same shall become due and payable or (ii) fail to observe or perform any other term, covenant, condition or agreement contained in any agreements or instruments evidencing or governing any such Indebtedness if the effect of any failure referred to in this clause (ii) is to cause, or to permit the holder or holders of such indebtedness or a trustee on its or their behalf to cause, such Indebtedness to become due prior to its stated maturity; or
(h) the occurrence of a Change of Control or Change of Management; or
(i) there shall be commenced against any Credit Party any Litigation seeking issuance of a warrant of attachment, execution, distraint or similar process against all or any substantial part of its assets which results in the entry of an order for any such relief which remains unstayed or undismissed for thirty (30) consecutive days; or any Credit Party shall have concealed, removed or permitted to be concealed or removed, any part of its property with intent to hinder, delay or defraud any of its creditors or made or suffered a transfer of any of its property or the incurring of an obligation which may be fraudulent under any bankruptcy, fraudulent transfer or other similar law; or
(j) (i) the termination or expiration of, any amendment or other modification in a material and adverse manner as determined by Agents in their reasonable discretion of or any material default under, any QVC Agreement; (ii) any amendment Revenue License or other modification in a material and adverse manner as determined by Agents in their discretion of any Employment Agreement, any termination of any Employment Agreement or any breach of any Employment Agreement which is material and adverse which is not cured in any applicable grace period; or (iii) the termination of any other Material Contract which the applicable Credit Party has not replaced within sixty (60) days of such termination, with a similar agreement which generates revenue at least equivalent to the agreement which was terminatedContract; or
(k) the occurrence of any event with ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ that results in a material adverse effect on the value of the Intellectual Property purchased pursuant to the Asset Purchase Agreement dated as of December 22, 2014 among Borrower, H Licensing and The H Company IP, LLC or the Heritage Purchase Agreement; or[reserved];
(l) any Credit Party shall take or participate in any action which would be prohibited under the provisions of any Subordination Agreement or Intercreditor Agreement or make any payment on the Subordinated Debt that any Person was not entitled to receive under the provisions of the applicable Subordination Agreement or Intercreditor Agreement; then, and in any such event and at any time thereafter, if such or any other Event of Default shall then be continuing, Administrative Agent in its sole discretion may, and at the direction of the Required Lenders shall, declare any or all of the Obligations to be due and payable, and the same shall immediately become due and payable terminate any then outstanding Delayed Draw Term Loan A Commitments, in each case without presentment, demand, protest or notice of any kind, all of which are hereby expressly waived, other than the notices required by this Section 12.1; provided, however, if an Event of Default under Section 12.1(f) above shall occur and be continuing, then all of the Obligations shall become immediately due and payable payable, and any then outstanding Delayed Draw Term Loan A Commitments shall automatically terminate, in each case without any necessary action or notice by Administrative Agent.
Appears in 1 contract
1Events of Default. If any one or more Each of the following events (each, shall be deemed an “Event of Default”) shall occur and be continuing:
(ia) the Borrower shall fail to pay (i) any principal of any Loan when and as the same shall become due in accordance with and payable, whether at the terms hereof; or
due date thereof or at a date fixed for prepayment thereof or otherwise, or (ii) Borrower shall fail to pay any interest on any Loan or any Credit Party shall fail to pay fee or any other amount (other than principalan amount referred to in clause (a)(i)) payable hereunder under this Agreement or under any other Loan Document, within three when and as the same shall become due and payable, and such failure shall continue unremedied for a period of five (35) Business Days after any such interest or other amount becomes due in accordance with the terms hereof or thereof; ormore days;
(b) the Borrower shall breach any provision of Sections 5.1, 5.2, 5.3(a), 5.11, 5.12, 5.13, 5.14 or 5.17, or Article 6 or Article 7 of this Agreement;
(c) any representation or warranty made or deemed made by or on behalf of the Borrower, any Credit Party herein of its Subsidiaries, or in any other Loan Document Party in or that is contained in any certificate, document or financial or other statement required to be furnished by such Credit Party at any time under this 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 furnished; provided, that, in each case, such materiality qualifier shall not be applicable connection with respect to any representation or warranty that is qualified or modified by materiality or Material Adverse Effect; or
(i) any Credit Party shall fail or neglect to perform, keep or observe any of the covenants, promises, agreements, requirements, conditions or other terms or provisions contained in Sections 7.1(a)(i) (with respect to valid existence), 7.3 (other than clauses (c), (d) or (e)), 7.5(a), 7.13, 7.17, 7.18, 7.19, 7.27, 8.1, 8.2, Sections 9.1 through Section 9.13 and Section 10.7 of this Agreement; or (ii) any Credit Party shall fail or neglect to perform, keep or observe any of the other covenants, promises, agreements, requirements, conditions or other terms or provisions contained in this Agreement (other than those set forth in the Sections referred to in clause (i) immediately above) or any of the other Loan Documents and such breach is not remediable or, if remediable, continues unremedied for a period of thirty (30) days after the earlier to occur of (x) the date on which any officer of any Credit Party becomes aware of such breach and (y) the date on which Agent shall have notified any Credit Party of such breach; or
(d) this Agreement or any other Loan Document shall not be for or any reasonamendment or modification hereof or thereof, or shall be asserted by any Credit Party not to bewaiver hereunder or thereunder, or in full force and effect in all material respects in accordance with its terms any report, certificate, financial statement or the Lien granted or intended to be granted to Agent other document furnished pursuant to or in connection with this Agreement or any other Loan Document shall cease to be a valid and perfected Lien having the first priority (or a lesser priority if expressly permitted in this Agreement any amendment or another Loan Document); or
(e) any judgment involving an aggregate liability of $750,000 modification hereof or more (excluding amounts covered by insurance to the extent the relevant third party insurers have agreed in writing to cover such amounts) shall be rendered against any Credit Party or there shall be any attachment or execution against any of the assets or properties of any Credit Party, and such judgment, attachment or execution remains unpaid, unstayed or undismissed for a period of thirty (30) days from the date of such judgment; or
(f) any Credit Party shall be dissolved or shall generally not paythereof, or any waiver hereunder or thereunder, shall be generally unable prove to pay its debts as such debts become due, or shall admit have been incorrect in writing its inability to pay its debts generally, or shall make a general assignment for the benefit of creditors; or any proceeding shall be instituted or a petition shall be filed by or against any Credit Party seeking to adjudicate it a bankrupt or insolvent, or seeking liquidation, winding up, reorganization, arrangement, adjustment, protection, relief or composition of it or its debts under any Debtor Relief Laws, or seeking the entry of an order for relief or the appointment of a receiver, trustee, custodian or other similar official for it or for any substantial part of its property and material respect (or, in the case of any such proceeding filed against a Credit Partyrepresentation or warranty under this Agreement or any other Loan Document already qualified by materiality, such proceeding representation or warranty shall continue undismissed prove to have been incorrect) when made or unstayed for sixty deemed made;
(60d) days; the Borrower, any of its Subsidiaries, or any Credit other Loan Party shall take fail to perform, observe, or comply with any action to authorize covenant, agreement, or term contained in this Agreement or any other Loan Document (other than as covered by other clauses of this Section 8.1), and such failure continues for more than 30 days following the date the Borrower or any other Loan Party has knowledge of such failure;
(e) unless such default or other event has been waived by the holders of such Indebtedness, (A) the Borrower, any of the actions set forth above in this clause (f); or
(g) its Subsidiaries, or any Credit other Loan Party shall (i) fail to pay make any principal payment when due (whether by scheduled maturity, required prepayment, acceleration, demand, or interest, regardless of amount, due otherwise) in respect of any Indebtedness exceeding $500,000 when and as having an aggregate principal amount in excess of the same shall become due and payable Threshold Amount, in each case beyond the applicable grace period with respect thereto, if any; or (iiB) the Borrower, any of its Subsidiaries, or any other Loan Party shall fail to observe or perform any other term, covenant, agreement or condition relating to any such Indebtedness or agreement contained in any agreements instrument or instruments evidencing agreement evidencing, securing or governing relating thereto, or any such Indebtedness if other event occurs, the effect of any failure referred to in this clause (ii) which default or other event is to cause, or to permit the holder or holders or beneficiary or beneficiaries of such indebtedness Indebtedness (or a trustee or agent on its behalf of such holder or their behalf holders or beneficiary or beneficiaries) to cause, with the giving of notice if required, such Indebtedness to become due or to be repurchased, prepaid, defeased or redeemed (automatically or otherwise), or an offer to repurchase, prepay, defease or redeem such Indebtedness to be made, prior to its stated maturity, in each case following the passing of any applicable cure period and the provision of any required notice with respect to such default or other event; orprovided that this clause (e)(ii)(B) shall not apply to (1) secured Indebtedness that becomes due as a result of a voluntary Disposition of the property or assets securing such Indebtedness, as a result of a casualty or condemnation event or any change in control or pursuant to any excess cash flow provision or other customary provision in such Indebtedness giving rise to such prepayment or offer, in the absence of any default under the documents providing for such Indebtedness and so long as such Indebtedness is repaid when required under the documents providing for such Indebtedness, (2) termination events or similar events occurring under any Swap Contract other than for failure to make any prepayment required thereunder, (3) secured Indebtedness that becomes due as a result of the Disposition of the assets securing such Indebtedness (to the extent such Disposition is not prohibited by this Agreement), or (4) Indebtedness that is convertible into equity of the Borrower and converts to Equity Interests in accordance with its terms;
(f) an involuntary proceeding shall be commenced or an involuntary petition shall be filed seeking (i) liquidation, reorganization or other relief in respect of the Borrower, any of its Subsidiaries, or any other Loan Party, or any of their debts, or of a substantial part of any of their assets, under any Debtor Relief Law now or hereafter in effect or (ii) the appointment of a receiver, trustee, custodian, sequestrator, conservator or similar official for the Borrower, any of its Subsidiaries, or any other Loan Party or for a substantial part of any of their assets, and, in any such case, such proceeding or petition shall continue undismissed for a period of 60 or more days or an order or decree approving or ordering any of the foregoing shall be entered;
(g) the Borrower, any of its Subsidiaries, or any other Loan Party shall (i) voluntarily commence any proceeding or file any petition seeking liquidation, reorganization or other relief under any Debtor Relief Law now or hereafter in effect, (ii) consent to the institution of, or fail to contest in a timely and appropriate manner, any proceeding or petition described in Section 8.1(f), (iii) apply for or consent to the appointment of a receiver, trustee, custodian, sequestrator, conservator or similar official for the Borrower, any of its Subsidiaries, or any other Loan Party, 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 for the purpose of effecting any of the foregoing;
(h) the occurrence of a Change of Control Borrower or Change of Management; orany other Loan Party shall become unable, admit in writing its inability or fail generally to pay its debts as they become due;
(i) there shall be commenced is entered against any Credit Party any Litigation seeking issuance of a warrant of attachmentthe Borrower, execution, distraint or similar process against all or any substantial part of its assets which results in the entry of an order for any such relief which remains unstayed or undismissed for thirty (30) consecutive days; or any Credit Party shall have concealed, removed or permitted to be concealed or removed, any part of its property with intent to hinder, delay or defraud any of its creditors Subsidiaries, or made any other Loan Party (i) a final judgment or suffered order for the payment of money in an aggregate amount (as to all such judgments and orders) exceeding the Threshold Amount (to the extent not paid when due or covered by self-insurance or independent third-party insurance as to which the insurer has been notified of such judgment or order and has not denied or failed to acknowledge coverage), or (ii) a transfer non-monetary final judgment or order that, either individually or in the aggregate, has or could reasonably be expected to have a Material Adverse Effect and, in either case, (A) enforcement proceedings are commenced by any creditor upon such judgment or order and there is a period of any 60 consecutive days during which enforcement of its property such judgment has not been stayed, by reason of a pending appeal or the incurring otherwise, or (B) there is a period of an obligation 60 consecutive days during which may be fraudulent under any bankruptcysuch judgment or order otherwise remains undischarged, fraudulent transfer unvacated or other similar law; orunbonded;
(j) (i) the termination ofan ERISA Event occurs that, any amendment either individually or other modification in a material and adverse manner as determined by Agents in their discretion of or any default under, any QVC Agreement; (ii) any amendment or other modification in a material and adverse manner as determined by Agents in their discretion of any Employment Agreement, any termination of any Employment Agreement or any breach of any Employment Agreement which is material and adverse which is not cured in any applicable grace period; or (iii) the termination of together with any other ERISA Event, could reasonably be expected to have a Material Contract which the applicable Credit Party has not replaced within sixty (60) days of such termination, with a similar agreement which generates revenue at least equivalent to the agreement which was terminated; orAdverse Effect;
(k) the occurrence a Change of any event with ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ that results in a material adverse effect on the value of the Intellectual Property purchased pursuant to the Asset Purchase Agreement dated as of December 22, 2014 among Borrower, H Licensing and The H Company IP, LLC or the Heritage Purchase Agreement; orControl shall occur;
(l) any Credit Party shall take or participate in any action which would be prohibited under the provisions material provision of any Subordination Agreement or Intercreditor Agreement or make any payment on the Subordinated Debt that any Person was not entitled to receive under the provisions of the applicable Subordination Agreement or Intercreditor Agreement; thenLoan Document, and in any such event and at any time thereafterafter its execution and delivery and for any reason other than as expressly permitted hereunder or thereunder or satisfaction in full of all Obligations, if such ceases to be in full force and effect; or the Borrower or any other Event Loan Party contests in writing the validity or enforceability of Default shall then be continuingany provision of any Loan Document; or the Borrower, Administrative Agent any of its Subsidiaries, or any other Loan Party denies in its sole discretion may, and at the direction of the Required Lenders shall, declare writing that it has any or all of further liability or obligation under any Loan Document, or purports in writing to revoke, terminate or rescind any Loan Document; or
(m) any Security Document shall cease to create valid perfected first priority Liens (subject to Permitted Liens) on the Obligations Collateral purported to be due and payable, and the same shall immediately become due and payable without presentment, demand, protest or notice of any kind, all of which are hereby expressly waived, other than the notices required by this Section 12.1; provided, however, if an Event of Default under Section 12.1(f) above shall occur and be continuing, then all of the Obligations shall become immediately due and payable without any necessary action or notice by Administrative Agentcovered thereby.
Appears in 1 contract
1Events of Default. If any one or more of the following events (each, an “Event of Default”) shall occur and be continuing:
(i) Borrower shall fail to pay any principal of any Loan when due in accordance with the terms hereof; or
(ii) Borrower shall fail to pay any interest on any Loan or any Credit Party shall fail to pay any other amount (other than principal) payable hereunder or under 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 thereof; or
(b) any representation or warranty made or deemed made by any Credit Party herein or in any other Loan Document or that is contained in any certificate, document or financial or other statement required to be furnished by such Credit Party at any time under this 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 furnished; provided, that, in each case, such materiality qualifier shall not be applicable with respect to any representation or warranty that is qualified or modified by materiality or Material Adverse Effect; or
(i) any Credit Party shall fail or neglect to perform, keep or observe any of the covenants, promises, agreements, requirements, conditions or other terms or provisions contained in Sections 7.1(a)(i) (with respect to valid existence), 7.3 (other than clauses (c), (d) or (e)), 7.5(a), 7.13, 7.17, 7.18, 7.19, 7.23, 7.24, 7.27, 8.1, 8.2, Sections 9.1 through Section 9.13 and Section 10.7 of this Agreement; or (ii) any Credit Party shall fail or neglect to perform, keep or observe any of the other covenants, promises, agreements, requirements, conditions or other terms or provisions contained in this Agreement (other than those set forth in the Sections referred to in clause (i) immediately above) or any of the other Loan Documents and such breach is not remediable or, if remediable, continues unremedied for a period of thirty (30) days after the earlier to occur of (x) the date on which any officer of any Credit Party becomes aware of such breach and (y) the date on which Agent shall have notified any Credit Party of such breach; or
(d) this Agreement or any other Loan Document shall not be for any reason, or shall be asserted by any Credit Party not to be, in full force and effect in all material respects in accordance with its terms or the Lien granted or intended to be granted to Agent pursuant to this Agreement or any other Loan Document shall cease to be a valid and perfected Lien having the first priority (or a lesser priority if expressly permitted in this Agreement or another Loan Document); or
(e) any judgment involving an aggregate liability of $750,000 or more exceeding the Minimum Actionable Amount (excluding amounts covered by insurance to the extent the relevant third party insurers have agreed in writing to cover such amounts) shall be rendered against any Credit Party or there shall be any attachment or execution against any of the assets or properties of any Credit Party, and such judgment, attachment or execution remains unpaid, unstayed or undismissed for a period of thirty (30) days from the date of such judgment; or or
(f) any Credit Party shall be dissolved or shall generally not pay, or shall be generally unable to pay its debts as such debts become due, or shall admit in writing its inability to pay its debts generally, or shall make a general assignment for the benefit of creditors; or any proceeding shall be instituted or a petition shall be filed by or against any Credit Party seeking to adjudicate it a bankrupt or insolvent, or seeking liquidation, winding up, reorganization, arrangement, adjustment, protection, relief or composition of it or its debts under any Debtor Relief Laws, or seeking the entry of an order for relief or the appointment of a receiver, trustee, custodian or other similar official for it or for any substantial part of its property and , in the case of any such proceeding filed against a Credit Party, such proceeding shall continue undismissed or unstayed for sixty (60) days; or any Credit Party shall take any action to authorize any of the actions set forth above in this clause (f); or
(g) any Credit Party shall (i) fail to pay any principal or interest, regardless of amount, due in respect of Indebtedness exceeding $500,000 the Minimum Actionable Amount when and as the same shall become due and payable or (ii) fail to observe or perform any other term, covenant, condition or agreement contained in any agreements or instruments evidencing or governing any such Indebtedness if the effect of any failure referred to in this clause (ii) is to cause, or to permit the holder or holders of such indebtedness or a trustee on its or their behalf to cause, such Indebtedness to become due prior to its stated maturity; or
(h) the occurrence of a Change of Control or Change of Management; or
(i) there shall be commenced against any Credit Party any Litigation seeking issuance of a warrant of attachment, execution, distraint or similar process against all or any substantial part of its assets which results in the entry of an order for any such relief which remains unstayed or undismissed for thirty (30) consecutive days; or any Credit Party shall have concealed, removed or permitted to be concealed or removed, any part of its property with intent to hinder, delay or defraud any of its creditors or made or suffered a transfer of any of its property or the incurring of an obligation which may be fraudulent under any bankruptcy, fraudulent transfer or other similar law; or
(j) (i) the termination or expiration of, any amendment or other modification in a material and adverse manner as determined by Agents in their reasonable discretion of or any material default under, any QVC Agreement; (ii) any amendment Revenue License or other modification in a material and adverse manner as determined by Agents in their discretion of any Employment Agreement, any termination of any Employment Agreement or any breach of any Employment Agreement which is material and adverse which is not cured in any applicable grace periodMaterial Contract; or (iii) the termination of any other Material Contract which the applicable Credit Party has not replaced within sixty (60) days of such termination, with a similar agreement which generates revenue at least equivalent to the agreement which was terminated; or
(k) the occurrence of any event with ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ that results in a material adverse effect on the value of the Intellectual Property purchased pursuant to the Asset Purchase Agreement dated as of December 22, 2014 among Borrower, H Licensing and The H Company IP, LLC or the Heritage Purchase Agreement; or[reserved];
(l) any Credit Party shall take or participate in any action which would be prohibited under the provisions of any Subordination Agreement or Intercreditor Agreement or make any payment on the Subordinated Debt that any Person was not entitled to receive under the provisions of the applicable Subordination Agreement or Intercreditor Agreement; then, and in any such event and at any time thereafter, if such or any other Event of Default shall then be continuing, Administrative Agent in its sole discretion may, and at the direction of the Required Lenders shall, declare any or all of the Obligations to be due and payable, and the same shall immediately become due and payable terminate any then outstanding Delayed Draw Term Loan A Commitments, in each case without presentment, demand, protest or notice of any kind, all of which are hereby expressly waived, other than the notices required by this Section 12.1; provided, however, if an Event of Default under Section 12.1(f) above shall occur and be continuing, then all of the Obligations shall become immediately due and payable payable, and any then outstanding Delayed Draw Term Loan A Commitments shall automatically terminate, in each case without any necessary action or notice by Administrative Agent.
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