Borrower Events of Default. The occurrence of any of the following shall, after the giving of any notice and the expiration of any applicable cure period described therein, constitute an event of default by Borrower hereunder ("Event of Default"): (a) The failure of Borrower to pay or perform any monetary covenant or obligation hereunder or under the terms of the Note or any of the Loan Documents, without curing such failure within ten (10) days after receipt of written notice of such default from COUNTY (or from any party authorized by COUNTY to deliver such notice as identified by COUNTY in writing to Borrower). Notwithstanding anything herein to the contrary, no notice requirement or cure period shall apply to a failure by Borrower to make timely payments of principal and interest in advance of payment dates on the HUD Loan as specified in Section 2.3 above; (b) The failure of Borrower to perform any non-monetary covenant or obligation hereunder or under the terms of the Note or any of the Loan Documents, without curing such failure within thirty (30) days after receipt of written notice of such default from COUNTY (or from any party authorized by COUNTY to deliver such notice as identified by COUNTY in writing to Borrower) specifying the nature of the event or deficiency giving rise to the default and the action required to cure such deficiency. Provided, however, that if any default with respect to a non-monetary obligation is such that it cannot be cured within a 30-day period, it shall be deemed cured if Borrower commences the cure within said 30-day period and diligently prosecutes such cure to completion thereafter. Notwithstanding anything herein to the contrary, the herein described notice requirements and cure periods shall not apply to any Event of Default described in Sections 15.1 (c) through 15.1 (i) below; (c) The falsity of any material representation or material warranty made by Borrower under the terms of this Agreement or any of the Loan Documents; (d) Borrower shall (i) apply for or consent to the appointment of a receiver, trustee, liquidator or custodian or the like of its property, (ii) fail to pay or admit in writing its inability to pay its debts generally as they become due, (iii) make a general assignment for the benefit of creditors, (iv) be adjudicated a bankrupt or insolvent or (v) commence a voluntary case under the Federal bankruptcy laws of the United States of America or file a voluntary petition that is not withdrawn within ten (10) days of the filing thereof or answer seeking an arrangement with creditors or an order for relief or seeking to take advantage of any insolvency law or file an answer admitting the material allegations of a petition filed against it in any bankruptcy or insolvency proceeding; (e) If a proceeding shall be instituted in any court of competent jurisdiction, under any law relating to bankruptcy, in respect of Borrower, for an order for relief or an adjudication in bankruptcy, a composition or arrangement with creditors, a readjustment of debts, the appointment of a trustee, receiver, liquidator or custodian or the like of Borrower or of all or any substantial part of Borrower's assets, or other like relief in respect thereof under any bankruptcy or insolvency law, and, if such proceeding is being contested by Borrower, in good faith, the same shall (i) result in the entry of an order for relief or any such adjudication or appointment, or (ii) continue undismissed, or pending and unstayed, for any period of ninety (90) consecutive days; (f) Following completion of the construction of the Project, and during the term of the CC&R’s, voluntary or involuntary cessation of the operation of the Project for a continuous period of more than ninety (90) days; (g) Borrower shall suffer or attempt to effect a Transfer (as defined below) in violation of Section 14 above or Section 30 below; (h) Borrower shall be in default under the terms of the Other Financing or any other secured or unsecured obligation to a third party relating to the Project, unless the default is cured within the cure period, if any, applicable thereto under the terms of the obligation which is in default; or (i) Borrower shall obtain “entitlement” status under the HUD Community Development Block Grant Program and separates from the Los Angeles Urban County Program for purposes of receiving its Community Development Block Grant (CDBG) funds from the State and/or HUD. Borrower shall use its Los Angeles Urban County allocated CDBG funds as the primary source of repayment for the Loan. Borrower may use any other eligible funding source available to Borrower, subject to COUNTY’s approval, to make timely payments. Borrower pledges to commit and deposit non-restrictive funds in the amount necessary to meet annual repayment obligations into the escrow account to be used as security and annual debt service in the event the primary source of repayment is not available for yearly interest payments.
Appears in 1 contract
Sources: Loan Agreement
Borrower Events of Default. The occurrence of If any of the following shallevents, after the giving acts, occurrences or state of any notice and the expiration of any applicable cure period described therein, constitute an event of default by facts (herein called a "Borrower hereunder ("Event of Default") shall occur or exist (for any reason whatsoever, and whether such happening shall be voluntary or involuntary or come about or be effected by operation of law pursuant to or in accordance with any judgment, decree or order of any court or any order, rule or regulation of any administrative or governmental body):
(a) The failure Any Borrower shall default in the payment of principal of its Loan Obligations, Notes or reimbursement obligations with respect to any Letters of Credit issued for the account of such Borrower to pay when due, or perform in the payment of interest or any monetary covenant or obligation other amount owing hereunder or under the terms of the any Note or the failure to satisfy any obligation hereunder to provide cash collateral with respect to any Letter of the Loan Documents, without curing such failure Credit within ten three (103) days Business Days after receipt of written notice of such default from COUNTY (or from any party authorized by COUNTY failure is given to deliver Guarantor and such notice as identified by COUNTY in writing to Borrower). Notwithstanding anything herein to the contrary, no notice requirement or cure period shall apply to a failure by Borrower to make timely payments of principal and interest in advance of payment dates on the HUD Loan as specified in Section 2.3 above;; or
(b) The failure Any Borrower (other than Guarantor as a Borrower) or any Subsidiary of such Borrower shall default in the payment when due, whether at stated maturity or otherwise, of any Indebtedness for Money Borrowed of such Borrower or such Subsidiary, whether individually or in the aggregate, equal to perform or in excess of $250,000 whether such Indebtedness now exists or shall hereafter be created, and such default shall be uncured or unwaived after the expiration of all applicable grace periods with respect thereto; or breach or default by such Borrower or such Subsidiary with respect to any non-monetary covenant other material term of any evidence of any Indebtedness for Money Borrowed in excess of $250,000 or obligation of any loan agreement, mortgage, indenture or other agreement relating thereto, if the effect of such default or breach is to cause, or to permit the holder or holders (or a trustee on behalf of such holder or holders) of such Indebtedness for Money Borrowed to cause such Indebtedness for Money Borrowed to become or be declared due prior to its stated maturity (upon the giving or receiving of notice but after the expiration of all applicable grace periods with respect thereto); provided, however, that with respect to Indebtedness for Money Borrowed in respect of real property leases, no such breach or default shall be deemed to exist if such Borrower or such Subsidiary, as the case may be, is contesting in good faith the existence of such breach or default by appropriate means and if the existence of such breach or default, if determined adversely to such Borrower or such Subsidiary, as the case may be, would not have a material adverse effect on such Borrower or such Subsidiary;
(c) Any representation or warranty on the part of any Borrower or any of its Subsidiaries, as the case may be, contained in any Loan Document or any document, instrument or certificate delivered pursuant thereto shall have been incorrect in any material respect when made or deemed made; or
(d) Any Borrower or any of its Subsidiaries shall default in the performance or observance of any term, covenant, condition or agreement on its part to be performed or observed under Section 5.2 hereof and such default shall continue unremedied for five (5) days after written or telephonic (immediately confirmed in writing) notice thereof has been given to such Borrower by the Agent or any Bank (with a copy of such Notice to Guarantor); or
(e) Any Borrower or any of its Subsidiaries shall default in the performance or observance of any term, covenant, condition or agreement on its part to be performed or observed hereunder or under the terms any Loan Document (and not constituting a Borrower Event of the Note or Default under any other clause of the Loan Documents, without curing this Section 7.2) and such failure within default shall continue unremedied for a period of thirty (30) days after receipt of written or telephonic (immediately confirmed in writing) notice thereof has been given to such Borrower by the Agent or any Bank (with a copy of such default from COUNTY (or from any party authorized by COUNTY notice to deliver such notice as identified by COUNTY in writing to Borrower) specifying the nature of the event or deficiency giving rise to the default and the action required to cure such deficiency. Provided, however, that if any default with respect to a non-monetary obligation is such that it cannot be cured within a 30-day period, it shall be deemed cured if Borrower commences the cure within said 30-day period and diligently prosecutes such cure to completion thereafter. Notwithstanding anything herein to the contrary, the herein described notice requirements and cure periods shall not apply to any Event of Default described in Sections 15.1 (c) through
15.1 (i) below;Guarantor); or
(cf) The falsity of any material representation or material warranty made by Any Borrower under the terms of this Agreement or any of its Subsidiaries or the Loan Documents;
(d) Kmart General Partner of such Borrower shall (i) apply for become insolvent or consent generally fail to pay, or admit in writing its inability to pay, its debts as they become due, or shall voluntarily commence any proceeding or file any petition under any bankruptcy, insolvency or similar law or seeking dissolution or reorganization or the appointment of a receiver, trustee, liquidator or custodian or the like liquidator for it or a substantial portion of its property, (ii) fail assets or business or to pay effect a plan or admit other arrangement with its creditors, or shall file any answer admitting the jurisdiction of the court and the material allegations of an involuntary petition filed against it in writing its inability to pay its debts generally as they become dueany bankruptcy, (iii) insolvency or similar proceeding, or shall be adjudicated bankrupt, or shall make a general assignment for the benefit of creditors, (iv) be adjudicated or shall consent to, or acquiesce in the appointment of, a bankrupt receiver, trustee, custodian or insolvent liquidator for a substantial portion of its property, assets or (v) commence business, shall call a voluntary case under the Federal bankruptcy laws meeting of the United States of America or file its creditors with a voluntary petition that is not withdrawn within ten (10) days of the filing thereof or answer seeking an arrangement with creditors or an order for relief or seeking view to take advantage of any insolvency law or file an answer admitting the material allegations of a petition filed against it in any bankruptcy or insolvency proceeding;
(e) If a proceeding shall be instituted in any court of competent jurisdiction, under any law relating to bankruptcy, in respect of Borrower, for an order for relief or an adjudication in bankruptcy, arranging a composition or arrangement with creditorsadjustment of its debts or shall take any corporate action authorizing any of the foregoing; or
(g) Involuntary proceedings or an involuntary petition shall be commenced or filed against any Borrower or any of its Subsidiaries or the Kmart General Partner of such Borrower under any bankruptcy, a readjustment insolvency or similar law or seeking the dissolution or reorganization of debts, it or the appointment of a receiver, trustee, receiver, liquidator or custodian or the like of Borrower liquidator for it or of all or any a substantial part of Borrower's assetsits property, assets or business, or other like relief in respect thereof under any bankruptcy writ, judgment, warrant of attachment, execution or insolvency lawsimilar process shall be issued or levied against a substantial part of its property, andassets or business, if and such proceeding is being contested by Borrowerproceedings or petition shall not be dismissed, in good faithor such writ, judgment, warrant of attachment, execution or similar process shall not be released, vacated or fully bonded, within sixty (60) days after commencement, filing or levy, as the same shall (i) result in the entry of an case may be, or any order for relief or shall be entered in any such adjudication or appointment, or (ii) continue undismissed, or pending and unstayed, for any period of ninety (90) consecutive days;
(f) Following completion of the construction of the Project, and during the term of the CC&R’s, voluntary or involuntary cessation of the operation of the Project for a continuous period of more than ninety (90) days;
(g) Borrower shall suffer or attempt to effect a Transfer (as defined below) in violation of Section 14 above or Section 30 below;proceeding; or
(h) Borrower One or more judgments or decrees shall be in default under the terms of the Other Financing entered against any Borrower or any other secured of its Subsidiaries involving, individually or unsecured obligation in the aggregate, a liability of $50,000 (or with respect to Guarantor as a third party relating to Borrower, $250,000) or more and all such judgments or decrees shall not have been vacated, discharged, satisfied or stayed pending appeal within thirty (30) days from the Project, unless the default is cured within the cure period, if any, applicable thereto under the terms of the obligation which is in defaultentry thereof; or
(i) Any Borrower or any of its Subsidiaries shall disavow its obligations under this Agreement or any Note as the Loan Obligations or shall deny that it has any or further obligations hereunder or thereunder (in each case other than by reason of the satisfaction of all of such Borrower's obligations hereunder and thereunder or the unlawful disavowal by any other party to such agreements of their respective obligations thereunder); or
(j) Any Borrower shall obtain “entitlement” status cease for any reason to be an Eligible Borrower hereunder;
(k) Any order, judgment or decree shall be entered against any Borrower or any of its Subsidiaries decreeing its involuntary dissolution or split up and such order shall remain undischarged and unstayed for a period in excess of thirty (30) days; or any Borrower or any of its Subsidiaries shall otherwise dissolve or cease to exist; or
(l) Any Additional Borrower Agreement shall cease for any reason to be in full force and effect as to any Borrower;
(m) Guarantor shall sell, assign, transfer or otherwise dispose of any shares of capital stock of the Kmart General Partner of such Borrower (except to the extent, if any, required to qualify directors of such Subsidiary under any applicable law);
(n) The Kmart General Partner for any Borrower shall:
(i) merge or consolidate with any other Person, other than the HUD Community Development Block Grant Program Guarantor or a wholly-owned Subsidiary of the Guarantor;
(ii) create, incur, assume or suffer to exist or agree to create, incur or assume any Lien in, upon or with respect to any of its ownership interest in any Borrower, whether now owned or hereafter acquired; or
(iii) directly or indirectly create or otherwise cause or suffer to exist or become effective any limitation (except as required by applicable law or the Loan Agreement) on its ability to (A) pay dividends or make any other distributions on its capital stock or any other interest or participation in, or measured by, its profits owned by, or pay any Indebtedness owed to, the Guarantor, or (B) make loans or advances to the Guarantor. then, and separates from in any such event and at any time thereafter, the Los Angeles Urban County Program Agent may and, at the direction of the Required Banks shall, take one or more of the following actions: (i) by written or oral or telephonic notice (in the case of oral or telephonic notice confirmed in writing immediately thereafter) to the Borrower or Borrowers as to which such Borrower Event of Default has occurred declare any Project Commitment for purposes such Borrower to be terminated whereupon such Project Commitment shall forthwith terminate, and/or (ii) by written or oral or telephonic notice (in the case of receiving its Community Development Block Grant oral or telephonic notice confirmed in writing immediately thereafter) to such Borrower declare all sums then owing by such Borrower hereunder and under any Notes of such Borrower to be forthwith due and payable, whereupon all such sums shall become and be immediately due and payable without presentment, demand, protest or notice of any kind, all of which are hereby expressly waived by such Borrower and/or (CDBGiii) funds from require such Borrower to immediately cash collateralize with the State and/or HUD. Borrower shall use its Los Angeles Urban County allocated CDBG funds as the primary source of repayment Agent for the Loanratable benefit of the Banks all outstanding Letters of Credit or obtain replacement letters of credit for such Letters of Credit, all in form, substance and manner satisfactory to Agent. In cases of any occurrence of any event of default described in clause (f) or (g) of this Section 7.2, such Borrower's Notes, together with accrued interest thereon, shall become due and payable forthwith without the requirement of any such acceleration or request, and without presentment, demand, protest or other notice of any kind, all of which are expressly waived, any provision of this Agreement or the Notes to the contrary notwithstanding and other amounts payable by such Borrower may use hereunder or under any Notes shall also become immediately due and payable all without notice of any kind. Anything in this Section 7.2 to the contrary notwithstanding, the Agent shall, at the request of the Required Banks, rescind and annul any acceleration of such Borrower's Notes by written instrument filed with such Borrower; provided that at the time such acceleration is so rescinded and annulled: (A) all past due interest and principal, if any, on such Borrower's Notes and all other eligible funding source available sums payable by such Borrower under this Agreement and the Notes (except any principal and interest on such Borrower's Loan Obligations which has become due and payable solely by reason of such acceleration pursuant to Borrower, subject this Section 7.2) shall have been duly paid in full and (B) no other Borrower Event of Default shall have occurred and be continuing with respect to COUNTY’s approval, such Borrower which shall not have been waived pursuant to make timely payments. Borrower pledges to commit and deposit non-restrictive funds in the amount necessary to meet annual repayment obligations into the escrow account to be used as security and annual debt service in the event the primary source of repayment is not available for yearly interest paymentsSection 9.1 hereof.
Appears in 1 contract
Sources: Loan Agreement (Kmart Corp)
Borrower Events of Default. The occurrence of If any of the following shallevents, after the giving acts, occurrences or state of any notice and the expiration of any applicable cure period described therein, constitute an event of default by facts (herein called a "Borrower hereunder ("Event of Default") shall occur or exist (for any reason whatsoever, and whether such happening shall be voluntary or involuntary or come about or be effected by operation of law pursuant to or in accordance with any judgment, decree or order of any court or any order, rule or regulation of any administrative or governmental body):
(a) The failure Any Borrower shall default in the payment of Borrower to pay principal of its Loan obligations or perform Notes when due, or in the payment of interest or any monetary covenant or obligation other amount owing hereunder or under the terms of the any Note or any of the Loan Documents, without curing such failure within ten three (103) days Business Days after receipt of written notice of such default from COUNTY (or from any party authorized by COUNTY failure is given to deliver Guarantor and such notice as identified by COUNTY in writing to Borrower). Notwithstanding anything herein to the contrary, no notice requirement or cure period shall apply to a failure by Borrower to make timely payments of principal and interest in advance of payment dates on the HUD Loan as specified in Section 2.3 above;; or
(b) The failure Any representation or warranty on the part of any Borrower or any of its Subsidiaries, as the case may be, contained in any Loan Document or any document, instrument or certificate delivered pursuant thereto shall have been incorrect in any material respect when made or deemed made; or
(c) Any Borrower shall default in the performance or observance of any term, covenant, condition or agreement on its part to perform be performed or observed under Section 5.2 hereof and such default shall continue unremedied for five (5) days after written or telephonic (immediately confirmed in writing) notice thereof has been given to such Borrower by the Managing Agent or any non-monetary covenant Bank (with a copy of such Notice to Guarantor); or
(d) Any Borrower or obligation any of its Subsidiaries shall default in the performance or observance of any term, covenant, condition or agreement on its part to be performed or observed hereunder or under the terms any Loan Document (and not constituting a Borrower Event of the Note or Default under any other clause of the Loan Documents, without curing this Section 7.2) and such failure within default shall continue unremedied for a period of thirty (30) days after receipt of written or telephonic (immediately confirmed in writing) notice thereof has been given to such Borrower by the Managing Agent or any Bank (with a copy of such default from COUNTY (or from any party authorized by COUNTY notice to deliver such notice as identified by COUNTY in writing to Borrower) specifying the nature of the event or deficiency giving rise to the default and the action required to cure such deficiency. Provided, however, that if any default with respect to a non-monetary obligation is such that it cannot be cured within a 30-day period, it shall be deemed cured if Borrower commences the cure within said 30-day period and diligently prosecutes such cure to completion thereafter. Notwithstanding anything herein to the contrary, the herein described notice requirements and cure periods shall not apply to any Event of Default described in Sections 15.1 (c) through
15.1 (i) below;Guarantor); or
(ce) The falsity of any material representation or material warranty made by Any Borrower under the terms of this Agreement or any of its Subsidiaries or the Loan Documents;
(d) Kmart General Partner of such Borrower shall (i) apply for become insolvent or consent generally fail to pay, or admit in writing its inability to pay, its debts as they become due, or shall voluntarily commence any proceeding or file any petition under any bankruptcy, insolvency or similar law or seeking dissolution or reorganization or the appointment of a receiver, trustee, liquidator or custodian or the like liquidator for it or a substantial portion of its property, (ii) fail assets or business or to pay effect a plan or admit other arrangement with its creditors, or shall file any answer admitting the jurisdiction of the court and the material allegations of an involuntary petition filed against it in writing its inability to pay its debts generally as they become dueany bankruptcy, (iii) insolvency or similar proceeding, or shall be adjudicated bankrupt, or shall make a general assignment for the benefit of creditors, (iv) be adjudicated or shall consent to, or acquiesce in the appointment of, a bankrupt receiver, trustee, custodian or insolvent liquidator for a substantial portion of its property, assets or (v) commence business, shall call a voluntary case under the Federal bankruptcy laws meeting of the United States of America or file its creditors with a voluntary petition that is not withdrawn within ten (10) days of the filing thereof or answer seeking an arrangement with creditors or an order for relief or seeking view to take advantage of any insolvency law or file an answer admitting the material allegations of a petition filed against it in any bankruptcy or insolvency proceeding;
(e) If a proceeding shall be instituted in any court of competent jurisdiction, under any law relating to bankruptcy, in respect of Borrower, for an order for relief or an adjudication in bankruptcy, arranging a composition or arrangement with creditorsadjustment of its debts or shall take any corporate action authorizing any of the foregoing; or
(f) Involuntary proceedings or an involuntary petition shall be commenced or filed against any Borrower or any of its Subsidiaries or the Kmart General Partner of such Borrower under any bankruptcy, a readjustment insolvency or similar law or seeking the dissolution or reorganization of debts, it or the appointment of a receiver, trustee, receiver, liquidator or custodian or the like of Borrower liquidator for it or of all or any a substantial part of Borrower's assetsits property, assets or business, or other like relief in respect thereof under any bankruptcy writ, judgment, warrant of attachment, execution or insolvency lawsimilar process shall be issued or levied against a substantial part of its property, andassets or business, if and such proceeding is being contested by Borrowerproceedings or petition shall not be dismissed, in good faithor such writ, judgment, warrant of attachment, execution or similar process shall not be released, vacated or fully bonded, within sixty (60) days after commencement, filing or levy, as the same shall (i) result in the entry of an case may be, or any order for relief or shall be entered in any such adjudication or appointment, or (ii) continue undismissed, or pending and unstayed, for any period of ninety (90) consecutive days;
(f) Following completion of the construction of the Project, and during the term of the CC&R’s, voluntary or involuntary cessation of the operation of the Project for a continuous period of more than ninety (90) days;proceeding; or
(g) One or more judgments or decrees shall be entered against any Borrower or any of its Subsidiaries involving, individually or in the aggregate, a liability of $50,000 or more and all such judgments or decrees shall suffer not have been vacated, discharged, satisfied or attempt to effect a Transfer stayed pending appeal within thirty (as defined below30) in violation of Section 14 above or Section 30 below;days from the entry thereof; or
(h) Any Borrower or any of its Subsidiaries shall be disavow its obligations under this Agreement or any Note as the Loan Obligations or shall deny that it has any or further obligations hereunder or thereunder (in default under the terms each case other than by reason of the Other Financing satisfaction of all of such Borrower's obligations hereunder and thereunder or the unlawful disavowal by any other secured or unsecured obligation party to a third party relating to the Project, unless the default is cured within the cure period, if any, applicable thereto under the terms such agreements of the obligation which is in defaulttheir respective obligations thereunder); or
(i) Any Borrower shall obtain “entitlement” status cease for any reason to be an Eligible Borrower hereunder;
(j) Any order, judgment or decree shall be entered against any Borrower or any of its Subsidiaries decreeing its involuntary dissolution or split up and such order shall remain undischarged and unstayed for a period in excess of thirty (30) days; or any Borrower or any of its Subsidiaries shall otherwise dissolve or cease to exist; or
(k) Any Additional Borrower Agreement shall cease for any reason to be in full force and effect as to any Borrower;
(l) Guarantor shall sell, assign, transfer or otherwise dispose of any shares of capital stock of the Kmart General Partner of such Borrower (except to the extent, if any, required to qualify directors of such Subsidiary under the HUD Community Development Block Grant Program and separates from the Los Angeles Urban County Program any applicable law);
(m) The Kmart General Partner for purposes of receiving its Community Development Block Grant any Borrower shall:
(CDBGi) funds from the State and/or HUD. Borrower shall use its Los Angeles Urban County allocated CDBG funds as the primary source of repayment for the Loan. Borrower may use merge or consolidate with any other eligible funding source available Person, other than the Guarantor or a wholly-owned Subsidiary of the Guarantor;
(ii) create, incur, assume or suffer to exist or agree to create, incur or assume any Lien in, upon or with respect to any of its ownership interest in any Borrower, subject whether now owned or hereafter acquired; or
(iii) directly or indirectly create or otherwise cause or suffer to COUNTY’s approvalexist or become effective any limitation (except as required by applicable law or the Loan Agreement) on its ability to (A) pay dividends or make any other distributions on its capital stock or any other interest or participation in, or measured by, its profits owned by, or pay any Indebtedness owed to, the Guarantor, or (B) make loans or advances to make timely paymentsthe Guarantor. Borrower pledges to commit then, and deposit non-restrictive funds in any such event and at any time thereafter, the Managing Agent may and, at the direction of the Required Banks shall, take one or more of the following actions: (i) by written or oral or telephonic notice (in the amount necessary case of oral or telephonic notice confirmed in writing immediately thereafter) to meet annual repayment obligations into the escrow account Borrower or Borrowers as to which such Borrower Event of Default has occurred declare any Project Commitment for such Borrower to be used as security and annual debt service terminated whereupon such Project Commitment shall forthwith terminate, and/or (ii) by written or oral or telephonic notice (in the case of oral or telephonic notice confirmed in writing immediately thereafter) to such Borrower declare all sums then owing by such Borrower hereunder and under any Notes of such Borrower to be forthwith due and payable, whereupon all such sums shall become and be immediately due and payable without presentment, demand, protest or notice of any kind, all of which are hereby expressly waived by such Borrower. In cases of any occurrence of any event of default described in clause (e) or (f) of this Section 7.2, such Borrower's Notes, together with accrued interest thereon, shall become due and payable forthwith without the primary source requirement of repayment any such acceleration or request, and without presentment, demand, protest or other notice of any kind, all of which are expressly waived, any provision of this Agreement or the Notes to the contrary notwithstanding and other amounts payable by such Borrower hereunder or under any Notes shall also become immediately due and payable all without notice of any kind. Anything in this Section 7.2 to the contrary notwithstanding, the Managing Agent shall, at the request of the Required Banks, rescind and annul any acceleration of such Borrower's Notes by written instrument filed with such Borrower; provided that at the time such acceleration is so rescinded and annulled: (A) all past due interest and principal, if any, on such Borrower's Notes and all other sums payable by such Borrower under this Agreement and the Notes (except any principal and interest on such Borrower's Loan Obligations which has become due and payable solely by reason of such acceleration pursuant to this Section 7.2) shall have been duly paid in full and (B) no other Borrower Event of Default shall have occurred and be continuing with respect to such Borrower which shall not available for yearly interest paymentshave been waived pursuant to Section hereof.
Appears in 1 contract
Sources: Loan Agreement (Kmart Corp)