Events of Default; Acceleration. If any of the following events (each an "EVENT OF DEFAULT") shall occur with respect to any Borrower: (a) Such Borrower (i) shall default in the payment of principal of any Loan, interest accrued thereon or fee due hereunder after the same becomes due and payable, whether at maturity or by acceleration or otherwise, or (ii) shall default in the payment of any other amount due hereunder after the same becomes due and payable; or (b) Such Borrower shall default in the performance of or compliance with any term contained in Sections 9.01(a) or 9.01(b) and such default shall have continued for more than three (3) Banking Days, or such Borrower shall default in the performance of or compliance with any term contained in Sections 8.02(d), 8.02(e), 8.02(g), 8.05, 9.02, 9.03 or 9.04; or (c) Such Borrower shall default in the performance of or compliance with any term contained herein other than those expressly referred to in this Section 10.01, and such default shall not have been remedied within five (5) Banking Days after written notice thereof shall have been given to such Borrower by the Operations Agent; or (d) Such Borrower shall default in the performance of, or compliance with, any material term contained in any other written agreement with the Operations Agent or any Bank pertaining to this Agreement or such Borrower's Loans, and such default shall continue for more than the period of grace, if any, specified therein and shall not have been waived pursuant thereto; or (e) Any representation, warranty certification or statement made or deemed made by such Borrower in this Agreement or in any certificate, financial statement or other document delivered pursuant hereto shall prove to have been false or incorrect in any material respect when made; or (f) Except as otherwise provided in this Section 10.01, such Borrower shall default in any payment due on Indebtedness for borrowed money or the deferred purchase price of property, the aggregate outstanding principal amount of which is in excess of five percent (5%) of such Borrower's Total Assets, and such default shall continue for more than the period of grace, if any, applicable thereto and shall not have been waived pursuant thereto and shall permit the holder of such Indebtedness to declare such Indebtedness due and payable before its stated maturity, or in the performance of or compliance with any term of any evidence of such Indebtedness or of any mortgage, indenture or other agreement relating thereto, and any such default shall continue for more than the period of grace, if any, specified therein and shall not have been waived pursuant thereto and shall permit the holder of such Indebtedness to declare such Indebtedness due and payable before its stated maturity, unless such Borrower shall be contesting such payment or obligation in good faith by appropriate proceedings promptly initiated and diligently conducted and such Borrower shall have set aside on its books such reserves, if any, with respect thereto as are required by GAAP and deemed appropriate by such Borrower and its independent public accountants, PROVIDED, that no Event of Default pursuant to paragraphs (b) or (i) of this Section 10.01 shall have occurred and be continuing as a result of such claim having been asserted in respect of such Indebtedness; or (g) Such Borrower shall discontinue its business (other than in connection with a permitted merger or consolidation of such Borrower) or shall make an assignment for the benefit of creditors, or shall fail generally to pay its debts as such debts become due, or shall apply for or consent to the appointment of or taking possession by a trustee, receiver or liquidator (or other similar official) of such Borrower or any substantial part of the property or assets of such Borrower or shall commence a case or have an order for relief entered against it under the federal bankruptcy laws, as now or hereafter constituted, or any other applicable federal or state bankruptcy, insolvency or other similar law, or if any action shall be taken to dissolve or liquidate such Borrower (other than in connection with a permitted merger or consolidation of such Borrower); or (h) If, within sixty (60) days after the commencement against such Borrower of a case under the federal bankruptcy laws, as now or hereafter constituted, or any other applicable federal or state bankruptcy, insolvency or other similar law, such case shall have been consented to or shall not have been dismissed or all orders or proceedings thereunder affecting the operations or the business of such Borrower stayed, or if the stay of any such order or proceeding shall thereafter be set aside, or if within sixty (60) days after the entry of a decree appointing a trustee, receiver or liquidator (or other similar official) of such Borrower or any substantial part of the property of such Borrower such appointment shall not have been vacated; or (i) A final judgment which, together with other outstanding final judgments against such Borrower, exceeds an amount in the aggregate equal to five percent (5%) of such Borrower's Total Assets (exclusive of amounts covered by available insurance) shall be rendered against such Borrower and if, within thirty (30) days after entry thereof, such judgment shall not have been discharged or execution thereof stayed pending appeal, or if, within thirty (30) days after the expiration of any such stay, such judgment shall not have been discharged; or (j) Such Borrower or any member of the Controlled Group shall fail to pay when due an amount or amounts aggregating in excess of $500,000 which it is obligated to pay to the PBGC or to a Plan under Title IV of ERISA; or a notice of intent to terminate a Plan or Plans having aggregate Unfunded Liabilities in excess of $500,000 shall be filed under Title IV of ERISA by such Borrower or any member of the Controlled Group, any plan administrator or any combination of the foregoing; or the PBGC shall institute proceedings under Title IV of ERISA to terminate or to cause a trustee to be appointed to administer any such Plan or Plans or a proceeding shall be instituted by a fiduciary of any such Plan or Plans against such Borrower or any member of the Controlled Group to enforce Sections 515 or 4219(c)(5) of ERISA; or a condition shall exist by reason of which the PBGC would be entitled to obtain a decree adjudicating that any such Plan or Plans must be terminated; or there shall occur a complete or partial withdrawal from, or a default, within the meaning of Section 4219(c)(5) of ERISA, with respect to, one or more Multiemployer Plans which could cause such Borrower or one or more members of the Controlled Group to incur a current payment obligation in excess of $500,000; or (k) Such Borrower shall cease to be an investment management company (or a Portfolio thereof) registered under the Investment Company Act, or such Borrower's registration under the Investment Company Act, or that of any Borrower Agent of such Borrower, shall lapse or be suspended; then, and in any such event, and at any time thereafter, if any Event of Default shall then be continuing with respect to such defaulting Borrower, (i) in the case of any Event of Default specified in paragraphs (g) and (h) above, the Commitments as to such defaulting Borrower shall thereupon automatically be terminated and the principal of and accrued interest on the Loans shall automatically become due and payable without presentment, demand, protest or other notice or formality of any kind, all of which are hereby expressly waived, and (ii) in the case of any other Event of Default specified above, either or both of the following actions may be taken: the Operations Agent may, and upon the written or telephonic (confirmed in writing) request of the Majority Banks shall, by written notice to such defaulting Borrower (A) declare the principal of and accrued interest in respect of such defaulting Borrower's Loans to be forthwith due and payable, whereupon the principal of and accrued interest in respect of such Loans shall become forthwith due and payable without presentment, demand, protest or other notice of any kind, all of which are hereby expressly waived by such Borrower, and/or (B) terminate the Commitments as to such defaulting Borrower, whereupon the Commitments of the Banks to make Committed Credit Loans hereunder to such defaulting Borrower shall forthwith terminate without any other notice of any kind and the percentages of the Commitment Fee and other fees and expenses otherwise payable by such defaulting Borrower hereunder accruing from and after the date of termination shall be reallocated among the remaining Borrowers PRO RATA on the basis of the percentages set forth opposite such remaining Borrowers' names on SCHEDULE 1, as in effect at the time of such termination.
Appears in 4 contracts
Sources: Credit Agreement (Chile Fund Inc), Credit Agreement (Latin America Investment Fund Inc), Credit Agreement (Indonesia Fund Inc)
Events of Default; Acceleration. If any Each of the following events (each shall constitute an "EVENT OF DEFAULT") shall occur with respect to any BorrowerEvent of Default under this Agreement:
(a) Such the Borrower shall fail to pay when due and payable any principal of the Loans when the same becomes due;
(b) the Borrower shall fail to pay interest on the Loans or any other sum due under any of the Loan Documents within two (2) Business Days after the date on which the same shall have first become due and payable;
(c) the Borrower shall fail to perform any term, covenant or agreement contained in (sections) 7.1(c)(i) and 7.2;
(d) the Borrower shall fail to perform any other term, covenant or agreement contained in any Loan Document within fourteen (14) days after the Bank has given written notice of such failure to the Borrower;
(e) any representation or warranty of the Borrower in the Loan Documents or in any certificate or notice given in connection therewith shall have been false or misleading in any material respect at the time made or deemed to have been made;
(f) the Borrower, or any Affiliate of Borrower, shall be in default (after any applicable period of grace or cure period) under any agreement evidencing Indebtedness owing to the Bank, or shall fail to pay such Indebtedness when due (after any applicable period of grace or cure period);
(g) any of the Loan Documents shall cease to be in full force and effect;
(h) the Borrower (i) shall default in the payment of principal of any Loan, interest accrued thereon or fee due hereunder after the same becomes due and payable, whether at maturity or by acceleration or otherwise, or (ii) shall default in the payment of any other amount due hereunder after the same becomes due and payable; or
(b) Such Borrower shall default in the performance of or compliance with any term contained in Sections 9.01(a) or 9.01(b) and such default shall have continued for more than three (3) Banking Days, or such Borrower shall default in the performance of or compliance with any term contained in Sections 8.02(d), 8.02(e), 8.02(g), 8.05, 9.02, 9.03 or 9.04; or
(c) Such Borrower shall default in the performance of or compliance with any term contained herein other than those expressly referred to in this Section 10.01, and such default shall not have been remedied within five (5) Banking Days after written notice thereof shall have been given to such Borrower by the Operations Agent; or
(d) Such Borrower shall default in the performance of, or compliance with, any material term contained in any other written agreement with the Operations Agent or any Bank pertaining to this Agreement or such Borrower's Loans, and such default shall continue for more than the period of grace, if any, specified therein and shall not have been waived pursuant thereto; or
(e) Any representation, warranty certification or statement made or deemed made by such Borrower in this Agreement or in any certificate, financial statement or other document delivered pursuant hereto shall prove to have been false or incorrect in any material respect when made; or
(f) Except as otherwise provided in this Section 10.01, such Borrower shall default in any payment due on Indebtedness for borrowed money or the deferred purchase price of property, the aggregate outstanding principal amount of which is in excess of five percent (5%) of such Borrower's Total Assets, and such default shall continue for more than the period of grace, if any, applicable thereto and shall not have been waived pursuant thereto and shall permit the holder of such Indebtedness to declare such Indebtedness due and payable before its stated maturity, or in the performance of or compliance with any term of any evidence of such Indebtedness or of any mortgage, indenture or other agreement relating thereto, and any such default shall continue for more than the period of grace, if any, specified therein and shall not have been waived pursuant thereto and shall permit the holder of such Indebtedness to declare such Indebtedness due and payable before its stated maturity, unless such Borrower shall be contesting such payment or obligation in good faith by appropriate proceedings promptly initiated and diligently conducted and such Borrower shall have set aside on its books such reserves, if any, with respect thereto as are required by GAAP and deemed appropriate by such Borrower and its independent public accountants, PROVIDED, that no Event of Default pursuant to paragraphs (b) or (i) of this Section 10.01 shall have occurred and be continuing as a result of such claim having been asserted in respect of such Indebtedness; or
(g) Such Borrower shall discontinue its business (other than in connection with a permitted merger or consolidation of such Borrower) or shall make an assignment for the benefit of creditors, (ii) shall be adjudicated bankrupt or insolvent, (iii) shall fail generally seek the appointment of, or be the subject of an order appointing, a trustee, liquidator or receiver as to all or part of its assets, (iv) shall commence, approve or consent to, any case or proceeding under any bankruptcy, reorganization or similar law and, in the case of an involuntary case or proceeding, such case or proceeding is not dismissed within forty-five (45) days following the commencement thereof, or (v) shall be the subject of an order for relief in an involuntary case under federal bankruptcy law;
(i) the Borrower shall be unable to pay its debts as such debts become duethey mature;
(j) there shall remain undischarged for more than thirty (30) days any final judgment or execution action against the Borrower that, together with other outstanding claims and execution actions against the Borrower exceeds $200,000 in the aggregate;
(k) the commencement of a foreclosure proceeding affecting any Approved Geothermal Project;
(l) the Borrower, or any Affiliate of Borrower, shall be in default (after any applicable period of grace or cure period) under any agreement evidencing Indebtedness owing to BLITA, or to any Affiliate of BLITA other than the Bank, or shall apply for fail to pay such Indebtedness when due (after any applicable period of grace or consent to the appointment of or taking possession by a trustee, receiver or liquidator (or other similar official) of such Borrower or any substantial part of the property or assets of such Borrower or shall commence a case or have an order for relief entered against it under the federal bankruptcy laws, as now or hereafter constituted, or any other applicable federal or state bankruptcy, insolvency or other similar law, or if any action shall be taken to dissolve or liquidate such Borrower (other than in connection with a permitted merger or consolidation of such Borrowercure period); or
(hm) Ifa change in the financial condition or affairs of Borrower which in the reasonable opinion of the Bank materially reduces Borrower's ability to pay all the Obligations. If any of the Events of Default shall occur and be continuing, within sixty (60) days after the commencement against such Borrower of a case under the federal bankruptcy laws, as now or hereafter constitutedthen, or any other applicable federal or state bankruptcy, insolvency or other similar law, such case shall have been consented to or shall not have been dismissed or all orders or proceedings thereunder affecting the operations or the business of such Borrower stayed, or if the stay of any such order or proceeding shall thereafter be set aside, or if within sixty (60) days after the entry of a decree appointing a trustee, receiver or liquidator (or other similar official) of such Borrower or any substantial part of the property of such Borrower such appointment shall not have been vacated; or
(i) A final judgment which, together with other outstanding final judgments against such Borrower, exceeds an amount in the aggregate equal to five percent (5%) of such Borrower's Total Assets (exclusive of amounts covered by available insurance) shall be rendered against such Borrower and if, within thirty (30) days after entry thereof, such judgment shall not have been discharged or execution thereof stayed pending appeal, or if, within thirty (30) days after the expiration of any such stay, such judgment shall not have been discharged; or
(j) Such Borrower or any member of the Controlled Group shall fail to pay when due an amount or amounts aggregating in excess of $500,000 which it is obligated to pay to the PBGC or to a Plan under Title IV of ERISA; or a notice of intent to terminate a Plan or Plans having aggregate Unfunded Liabilities in excess of $500,000 shall be filed under Title IV of ERISA by such Borrower or any member of the Controlled Group, any plan administrator or any combination of the foregoing; or the PBGC shall institute proceedings under Title IV of ERISA to terminate or to cause a trustee to be appointed to administer any such Plan or Plans or a proceeding shall be instituted by a fiduciary of any such Plan or Plans against such Borrower or any member of the Controlled Group to enforce Sections 515 or 4219(c)(5) of ERISA; or a condition shall exist by reason of which the PBGC would be entitled to obtain a decree adjudicating that any such Plan or Plans must be terminated; or there shall occur a complete or partial withdrawal from, or a default, within the meaning of Section 4219(c)(5) of ERISA, with respect to, one or more Multiemployer Plans which could cause such Borrower or one or more members of the Controlled Group to incur a current payment obligation in excess of $500,000; or
(k) Such Borrower shall cease to be an investment management company (or a Portfolio thereof) registered under the Investment Company Act, or such Borrower's registration under the Investment Company Act, or that of any Borrower Agent of such Borrower, shall lapse or be suspended; then, and in any such event, and at any time thereafter, if any Event of Default shall then be continuing with respect to such defaulting Borrower, :
(ia) in In the case of any Event of Default specified in paragraphs (g) and under clause (h) aboveor (i), the Commitments as to such defaulting Borrower Commitment shall thereupon automatically be terminated terminate, and the entire unpaid principal amount of the Loans, all interest accrued and accrued interest on unpaid thereon, and all other amounts payable thereunder and under the Loans other Loan Documents shall automatically become forthwith due and payable payable, without presentment, demand, protest or other notice or formality of any kind, all of which are hereby expressly waived, and (ii) in the case of any other Event of Default specified above, either or both of the following actions may be taken: the Operations Agent may, and upon the written or telephonic (confirmed in writing) request of the Majority Banks shall, by written notice to such defaulting Borrower (A) declare the principal of and accrued interest in respect of such defaulting Borrower's Loans to be forthwith due and payable, whereupon the principal of and accrued interest in respect of such Loans shall become forthwith due and payable without presentment, demand, protest or other notice of any kind, all of which are hereby expressly waived by such the Borrower;
(b) In the case of any Event of Default under clause (a) or (b), the Bank may, by written notice to the Borrower, and/or (B) terminate the Commitments as to such defaulting Borrower, whereupon Commitment and/or declare the Commitments unpaid principal amount of the Banks Loans, all interest accrued and unpaid thereon, and all other amounts payable hereunder and under the other Loan Documents to make Committed Credit Loans hereunder to such defaulting Borrower shall be forthwith terminate due and payable, without any other presentment, demand, protest or further notice of any kind kind, all of which are hereby expressly waived by the Borrower; and
(c) In the case of any Event of Default other than (a), (b), (h) or (i), the Bank may, by two (2) Business Days' prior written notice to the Borrower, and where such Event of Default has not been cured during such period, terminate the percentages Commitment and/or declare the unpaid principal amount of the Commitment Fee Loans, all interest accrued and unpaid thereon, and all other fees amounts payable hereunder and expenses otherwise payable under the other Loan Documents to be forthwith due and payable, without presentment, demand, protest or further notice of any kind, all of which are hereby expressly waived by such defaulting Borrower hereunder accruing from the Borrower. No remedy herein conferred upon the Bank is intended to be exclusive of any other remedy and after the date of termination each and every remedy shall be reallocated among the remaining Borrowers PRO RATA on the basis of the percentages set forth opposite such remaining Borrowers' names on SCHEDULE 1cumulative and in addition to every other remedy hereunder, as now or hereafter existing at law or in effect at the time of such terminationequity or otherwise.
Appears in 2 contracts
Sources: Bridge Loan Agreement (Ormat Technologies, Inc.), Bridge Loan Agreement (Ormat Technologies, Inc.)
Events of Default; Acceleration. If any of the following events (each an "EVENT OF DEFAULTEvent of Default") shall occur with respect to any Borroweroccur:
(a) Such Borrower (i) Debtor shall default in the payment of fail to pay any principal of interest on this Promissory Note or any Loanother sum due under this Promissory Note, interest accrued thereon any Transaction Document, or fee due hereunder after any other note or other agreement between Debtor and RACC when the same becomes due and payablesuch failure shall continue for ten (10) days beyond the due date of such payment;
(b) Debtor shall fail to perform any term, whether covenant or agreement contained in any of the Transaction Documents and such failure shall continue for thirty (30) days after written notice;
(c) any representation or warranty of Debtor in any of the Transaction Documents or in any certificate or notice given in connection therewith shall have been false or misleading in any material respect at maturity the time made or by acceleration deemed to have been made;
(d) Debtor shall be in default under any agreement or otherwiseagreements evidencing (i) any other debt and similar monetary obligations (including, without limitation, capitalized leases, synthetic leases or securitization transactions) (collectively, "Indebtedness") owing to RACC or any of its affiliates, or (ii) shall default in the payment of any other amount due hereunder after the same becomes due and payable; or
(b) Such Borrower shall default Indebtedness in the performance excess of or compliance with any term contained $100,000.00 in Sections 9.01(a) or 9.01(b) and such default shall have continued for more than three (3) Banking Daysaggregate principal amount, or shall fail to pay any such Borrower shall default in the performance of Indebtedness when due or compliance with within any term contained in Sections 8.02(d), 8.02(e), 8.02(g), 8.05, 9.02, 9.03 or 9.04; or
(c) Such Borrower shall default in the performance of or compliance with any term contained herein other than those expressly referred to in this Section 10.01, and such default shall not have been remedied within five (5) Banking Days after written notice thereof shall have been given to such Borrower by the Operations Agent; or
(d) Such Borrower shall default in the performance of, or compliance with, any material term contained in any other written agreement with the Operations Agent or any Bank pertaining to this Agreement or such Borrower's Loans, and such default shall continue for more than the applicable period of grace, if any, specified therein and shall not have been waived pursuant thereto; or;
(e) Any representation, warranty certification or statement made or deemed made by such Borrower any of the Transaction Documents shall cease to be in this Agreement or in any certificate, financial statement or other document delivered pursuant hereto shall prove to have been false or incorrect in any material respect when made; orfull force and effect;
(f) Except as otherwise provided in this Section 10.01, such Borrower shall default in any payment due on Indebtedness for borrowed money or the deferred purchase price of property, the aggregate outstanding principal amount of which is in excess of five percent (5%) of such Borrower's Total Assets, and such default shall continue for more than the period of grace, if any, applicable thereto and shall not have been waived pursuant thereto and shall permit the holder of such Indebtedness to declare such Indebtedness due and payable before its stated maturity, or in the performance of or compliance with any term of any evidence of such Indebtedness or of any mortgage, indenture or other agreement relating thereto, and any such default shall continue for more than the period of grace, if any, specified therein and shall not have been waived pursuant thereto and shall permit the holder of such Indebtedness to declare such Indebtedness due and payable before its stated maturity, unless such Borrower shall be contesting such payment or obligation in good faith by appropriate proceedings promptly initiated and diligently conducted and such Borrower shall have set aside on its books such reserves, if any, with respect thereto as are required by GAAP and deemed appropriate by such Borrower and its independent public accountants, PROVIDED, that no Event of Default pursuant to paragraphs (b) or Debtor (i) of this Section 10.01 shall have occurred and be continuing as a result of such claim having been asserted in respect of such Indebtedness; or
(g) Such Borrower shall discontinue its business (other than in connection with a permitted merger or consolidation of such Borrower) or shall make an assignment for the benefit of creditors; (ii) shall be adjudicated bankrupt or insolvent; (iii) shall seek the appointment of, or be the subject of an order appointing, a trustee, liquidator or receiver as to all or part of its assets, (iv) shall fail generally commence, approve or consent to, any case or proceeding under any bankruptcy, reorganization or similar law and, in the case of an involuntary case or proceeding, such case or proceeding is not dismissed within forty-five (45) days following the commencement thereof, or (v) shall be the subject of an order for relief in an involuntary case under federal bankruptcy law;
(g) Debtor shall be unable to pay its debts as such debts become due, or shall apply for or consent to the appointment of or taking possession by a trustee, receiver or liquidator (or other similar official) of such Borrower or any substantial part of the property or assets of such Borrower or shall commence a case or have an order for relief entered against it under the federal bankruptcy laws, as now or hereafter constituted, or any other applicable federal or state bankruptcy, insolvency or other similar law, or if any action shall be taken to dissolve or liquidate such Borrower (other than in connection with a permitted merger or consolidation of such Borrower); orthey mature;
(h) If, within sixty there shall remain undischarged for more than thirty (6030) days after the commencement against such Borrower of a case under the federal bankruptcy laws, as now or hereafter constituted, or any other applicable federal or state bankruptcy, insolvency or other similar law, such case shall have been consented to or shall not have been dismissed or all orders or proceedings thereunder affecting the operations or the business of such Borrower stayed, or if the stay of any such order or proceeding shall thereafter be set aside, or if within sixty (60) days after the entry of a decree appointing a trustee, receiver or liquidator (or other similar official) of such Borrower or any substantial part of the property of such Borrower such appointment shall not have been vacated; or
(i) A final judgment whichor execution action against Debtor that, together with other outstanding final judgments claims and execution actions against such BorrowerDebtor, respectively, exceeds an amount $100,000.00 in the aggregate equal to five percent aggregate;
(5%i) the prospect of such Borrower's Total Assets (exclusive payment or performance by Debtor or realization on the Collateral, in the reasonable opinion of amounts covered by available insurance) shall be rendered against such Borrower and ifRACC, within thirty (30) days after entry thereof, such judgment shall not have been discharged is or execution thereof stayed pending appeal, or if, within thirty (30) days after the expiration of any such stay, such judgment shall not have been discharged; orbecomes significantly impaired;
(j) Such Borrower or any member of the Controlled Group Aircraft shall fail have been lost, stolen or confiscated or shall have incurred substantial damage or have been destroyed to pay when due such an amount or amounts aggregating in excess of $500,000 which it extent that the repair thereof is obligated to pay to the PBGC or to a Plan under Title IV of ERISA; or a notice of intent to terminate a Plan or Plans having aggregate Unfunded Liabilities in excess of $500,000 shall be filed under Title IV of ERISA impracticable (as determined solely by such Borrower or any member of the Controlled Group, any plan administrator or any combination of the foregoing; or the PBGC shall institute proceedings under Title IV of ERISA to terminate or to cause a trustee to be appointed to administer any such Plan or Plans or a proceeding shall be instituted by a fiduciary of any such Plan or Plans against such Borrower or any member of the Controlled Group to enforce Sections 515 or 4219(c)(5) of ERISA; or a condition shall exist by reason of which the PBGC would be entitled to obtain a decree adjudicating that any such Plan or Plans must be terminated; or there shall occur a complete or partial withdrawal from, or a default, within the meaning of Section 4219(c)(5) of ERISA, with respect to, one or more Multiemployer Plans which could cause such Borrower or one or more members of the Controlled Group to incur a current payment obligation in excess of $500,000RACC); or
(k) Such Borrower shall cease to be an investment management company Debtor (i) sells, transfers or a Portfolio thereofdisposes of all or substantially all of its respective stock, assets or property, (ii) registered under becomes the Investment Company Actsubject of, or such Borrower's registration under the Investment Company Actengages in, a leveraged buy-out, or that of any Borrower Agent of such Borrower(iii) terminates its existence by merger, shall lapse reorganization or be suspended; thenconsolidation. THEN, and in any such event, and or at any time thereafter, if any Event of Default shall then be continuing with respect to such defaulting Borrower, :
(i1) in In the case of any Event of Default specified in paragraphs under clauses (f) or (g) and (h) above), the Commitments as to such defaulting Borrower shall thereupon automatically be terminated entire unpaid principal amount of this Promissory Note and the principal of and accrued interest on the Loans all other amounts payable hereunder, shall automatically become forthwith due and payable payable, without presentment, demand, protest or other notice or formality of any kind, all of which are hereby expressly waived, and (ii) in the case of any other Event of Default specified above, either or both of the following actions may be taken: the Operations Agent may, and upon the written or telephonic (confirmed in writing) request of the Majority Banks shall, by written notice to such defaulting Borrower (A) declare the principal of and accrued interest in respect of such defaulting Borrower's Loans to be forthwith due and payable, whereupon the principal of and accrued interest in respect of such Loans shall become forthwith due and payable without presentment, demand, protest or other notice of any kind, all of which are hereby expressly waived by such BorrowerDebtor; and
(2) In the case of any Event of Default other than under clauses (f) or (g), and/or (B) terminate RACC may, by written notice to Debtor, declare the Commitments as unpaid principal amount of this Promissory Note and all other amounts payable hereunder, to such defaulting Borrowerbe forthwith due and payable, whereupon the Commitments of the Banks to make Committed Credit Loans hereunder to such defaulting Borrower shall forthwith terminate without any other presentment, demand, protest or further notice of any kind kind, all of which are hereby expressly waived by Debtor. In addition to and without in any way limiting the percentages foregoing, upon the occurrence of an Event of Default or at any time thereafter, RACC may employ all remedies allowed by law, including, without limitation, those available to a secured party under the Commitment Fee Uniform Commercial Code. No remedy herein conferred upon RACC is intended to be exclusive of any other remedy and other fees each and expenses otherwise payable by such defaulting Borrower hereunder accruing from and after the date of termination every remedy shall be reallocated among the remaining Borrowers PRO RATA on the basis of the percentages set forth opposite such remaining Borrowers' names on SCHEDULE 1cumulative and in addition to every other remedy hereunder, as now or hereafter existing at law or in effect at the time of such terminationequity or otherwise.
Appears in 2 contracts
Sources: Deferral Note (Great Lakes Aviation LTD), Senior Note (Great Lakes Aviation LTD)
Events of Default; Acceleration. If any of the following events (each an "EVENT OF DEFAULT"“Event of Default”) shall occur with respect to any Borroweroccur:
(a) Such The Borrower (i) shall default in the payment of principal of or interest on the Notes or any Loan, interest accrued thereon or other fee due hereunder after when the same becomes due and payable, whether at maturity or at a date fixed for the payment of any installment or prepayment thereof or by declaration, acceleration or otherwise, or and such default shall continue for a period of three (ii3) shall default in the payment of any other amount due hereunder after the same becomes due and payableBanking Days (a “Payment Default”); or
(b) Such The Borrower shall default in the performance of or compliance with any term contained in Sections 9.01(a) Section 5 (other than subsection 5.10(a)), Section 6 or 9.01(b) and subsections 7.1 or 7.2 and, to the extent any default is susceptible of remedy or cure, the Borrower has failed to remedy or cure any such default shall have continued for more than three within ten (310) Banking Days, or such days after the occurrence thereof; or
(c) The Borrower shall default in the performance of or compliance with any term contained in Sections 8.02(d), 8.02(e), 8.02(g), 8.05, 9.02, 9.03 subsection 5.10(a) or 9.04subsection 7.3 and the Borrower has failed to remedy or cure any such default within five (5) Banking Days; or
(cd) Such The Borrower shall default in the performance of or compliance with any term contained herein other than those expressly referred to above in this Section 10.01, 8 and such default shall not have been remedied within five thirty (530) Banking Days days after written notice the occurrence thereof provided, that if such default cannot be remedied or cured, then such default shall have been given to such Borrower by be deemed an Event of Default as of the Operations Agentdate of its occurrence; or
(de) Such The Borrower or any Subsidiary which is a party to any of the Loan Documents shall default in the performance of, of or compliance with, with any material term contained in the Loan Documents (other than this Revolving Credit Loan Agreement) or in the performance of or compliance with any material term contained in any other written agreement with the Operations Agent or any Bank pertaining to this Agreement or such Borrower's Loansand/or the Lenders, executed in connection therewith and such default shall continue for more than the period of grace, if any, specified therein and shall not have been waived pursuant theretoremedied within thirty (30) days after the occurrence thereof provided, that if such default cannot be remedied or cured, then such default shall be deemed an Event of Default as of the date of its occurrence; or
(ef) Any representation, representation or warranty certification or statement made or deemed made by such the Borrower in this Agreement or any Subsidiary herein or in any certificate, financial statement other Loan Document or other document delivered pursuant hereto shall prove to have been false or incorrect in any material respect when made; or
(fg) Except as otherwise provided in this Section 10.01, such The Borrower or any Subsidiary shall default in any payment due on any Indebtedness for in respect of borrowed money where the aggregate principal balance thereof together with interest thereon exceeds $500,000 or any lesser aggregate principal balance where such failure to pay is reasonably likely to have a Material Adverse Effect (other than to the Lenders, as to which subsection 8.1(a) shall apply), any Capital Lease or the deferred purchase price of propertyproperty with a principal balance together with interest thereon, lease balance or purchase price (as the aggregate outstanding principal amount of which is case may be) in excess of five percent (5%) $500,000 outstanding as of the date of such Borrower's Total Assetsdefault, and such default shall continue for more than the period of grace, if any, applicable thereto and shall not have been waived pursuant thereto and shall permit the holder of such Indebtedness to declare such Indebtedness due and payable before its stated maturitythereto, or in the performance of or compliance with any term of any evidence of such Indebtedness or of any mortgage, indenture or other agreement relating thereto, and any such default shall continue for more than the period of grace, if any, specified therein and shall not have been waived pursuant thereto and shall permit the holder of thereto, (except such Indebtedness to declare such Indebtedness due and payable before its stated maturity, unless such Borrower shall be contesting such payment or obligation defaults which are being contested in good faith by appropriate proceedings promptly initiated and diligently conducted and such Borrower shall have set aside on its books such reservesand, if anyapplicable, with respect thereto as are to which adequate reserves have been established on the Borrower’s books to the extent required by GAAP and deemed appropriate by such Borrower and its independent public accountants, PROVIDED, that no Event of Default pursuant to paragraphs (b) or (i) of this Section 10.01 shall have occurred and be continuing as a result of such claim having been asserted in respect of such IndebtednessGAAP); or
(gh) Such The Borrower or any Subsidiary shall cease to be solvent (as represented in the Solvency Certificate) or shall discontinue its business (other than in connection with a except as otherwise permitted merger or consolidation of such Borrowerhereby) or the Borrower or any Subsidiary shall make an assignment for the benefit of creditors, or shall fail generally to pay its debts as such debts become due, or shall apply for or consent to the appointment of or taking possession by a trustee, receiver or liquidator (or other similar official) of the Borrower or such Borrower Subsidiary or any substantial part of the property of the Borrower or assets of such Borrower Subsidiary, or shall commence a case or have an order for relief entered against it under the federal bankruptcy laws, as now or hereafter constituted, or any other applicable federal or state bankruptcy, insolvency or other similar law, or if the Borrower or any Subsidiary shall take any action shall be taken to dissolve or liquidate the Borrower or such Borrower Subsidiary (other than in connection with a except as otherwise permitted merger or consolidation of such Borrowerhereby); or
(hi) If, within sixty (60) days after An involuntary proceeding shall be commenced against the commencement against such Borrower of a case or any Subsidiary under the federal bankruptcy laws, as now or hereafter constituted, or any other applicable federal or state bankruptcy, insolvency or other similar law, such case shall have been consented to or shall not have been dismissed or all orders or proceedings thereunder affecting the operations or the business of such Borrower stayed, or if the stay of any such order or proceeding shall thereafter be set aside, or if within sixty (60) days after the entry of a decree shall be entered appointing a trustee, receiver or liquidator (or other similar official) of such the Borrower or any Subsidiary or any substantial part of the property of the Borrower or such Borrower such appointment shall not have been vacatedSubsidiary; or
(ij) A final judgment which, together with other outstanding final judgments against such Borrower, exceeds an amount in the aggregate equal to five percent (5%) of such Borrower's Total Assets (exclusive of amounts covered by available insurance) Borrower and its Subsidiaries shall be rendered against such the Borrower or any Subsidiary which is reasonably likely to have a Material Adverse Effect and if, within thirty (30) the earlier of 60 days after entry thereof, such judgment shall not have been discharged or execution thereof stayed pending appeal, or if, within thirty (30) 60 days after the expiration of any such stay, such judgment shall not have been discharged; or
(j) Such , or if any such judgment shall not be discharged forthwith upon the commencement of proceedings to foreclose any lien, attachment or charge which may attach as security therefor and before any of the property or assets of the Borrower or any member of the Controlled Group Subsidiary shall fail to pay when due an amount or amounts aggregating have been seized in excess of $500,000 which it is obligated to pay to the PBGC or to a Plan under Title IV of ERISA; or a notice of intent to terminate a Plan or Plans having aggregate Unfunded Liabilities in excess of $500,000 shall be filed under Title IV of ERISA by such Borrower or any member of the Controlled Group, any plan administrator or any combination of the foregoing; or the PBGC shall institute proceedings under Title IV of ERISA to terminate or to cause a trustee to be appointed to administer any such Plan or Plans or a proceeding shall be instituted by a fiduciary of any such Plan or Plans against such Borrower or any member of the Controlled Group to enforce Sections 515 or 4219(c)(5) of ERISA; or a condition shall exist by reason of which the PBGC would be entitled to obtain a decree adjudicating that any such Plan or Plans must be terminated; or there shall occur a complete or partial withdrawal from, or a default, within the meaning of Section 4219(c)(5) of ERISA, with respect to, one or more Multiemployer Plans which could cause such Borrower or one or more members of the Controlled Group to incur a current payment obligation in excess of $500,000satisfaction thereof; or
(k) Such If the Borrower shall cease to be an investment management company (or a Portfolio thereof) registered under the Investment Company Actis enjoined, restrained, or in any material way prevented by the order of any court or any administrative or regulatory agency from conducting all or any material part of its business and such Borrower's registration under order is not stayed or revoked within five (5) days; or
(l) This Agreement, the Investment Company ActNotes, the Pledge Agreement, any Subsidiary Guaranties or any other Loan Documents shall be cancelled, terminated, revoked, rescinded or declared invalid or unenforceable in whole or in any material respect, otherwise than pursuant to its terms by virtue of the expiration of its term or otherwise than in accordance with the express prior written agreement, consent or approval of the Required Lenders or the Lenders, as the case may be, or any action at law, suit in equity or other legal proceeding to cancel, revoke or rescind this Agreement, the Notes, the Pledge Agreement, any Subsidiary Guaranties or any other Loan Documents shall be commenced by or on behalf of the Borrower or any other Person bound thereby or party thereto or by any governmental or regulatory authority or agency of competent jurisdiction; or any court or any other governmental or regulatory authority or agency of competent jurisdiction shall make a determination that, or shall issue a judgment, order, decree or ruling to the effect that any one or more of the Loan Documents or any one or more of the material obligations of any Borrower Agent Person or Persons under any one or more of such Borrowerthe Loan Documents are illegal, shall lapse invalid or be suspendedunenforceable in accordance with the terms thereof; then, and in any such event, and at any time thereafter, if any Event of Default shall then be continuing with respect to such defaulting Borrower, (i) in the case of any Event of Default specified in paragraphs (g) and (h) above, the Commitments as to such defaulting Borrower shall thereupon automatically be terminated and the principal of and accrued interest on the Loans shall automatically become due and payable without presentment, demand, protest or other notice or formality of any kind, all of which are hereby expressly waived, and (ii) in the case of any other Event of Default specified above, either or both of the following actions may be taken: the Operations Agent may, and upon the written or telephonic (confirmed in writing) request of the Majority Banks shall, may by written notice to such defaulting Borrower the Borrower, (Ai) declare the principal of and accrued interest in respect of such defaulting Borrower's Loans the Notes to be forthwith due and payable, whereupon the principal of and accrued interest in respect of such Loans the Notes shall become forthwith due and payable without presentment, demand, protest or other notice of any kind, all of which are hereby expressly waived by such the Borrower, and/or (Bii) terminate the Commitments as to such defaulting BorrowerMaximum Line Commitment, whereupon the Commitments of the Banks to make Committed Credit Loans hereunder to such defaulting Borrower Maximum Line Commitment shall forthwith terminate without any other notice of any kind and kind; provided that, in the percentages case of an Event of Default arising by reason of the Commitment Fee and other fees and expenses otherwise payable by occurrence of any event described in subsections 8.1(h) or 8.1(i), both such defaulting Borrower hereunder accruing from and after the date of termination actions shall be reallocated among deemed to have been automatically taken by the remaining Borrowers PRO RATA on the basis Agent and all obligations of the percentages set forth opposite such remaining Borrowers' names on SCHEDULE 1Borrower to the Lenders shall forthwith automatically become due and payable without presentment, as in effect at demand, protest or notice of any kind, all of which are hereby expressly waived by the time Borrower. Without limiting any provision of such terminationthis Agreement or any Loan Documents, a Default or Event of Default hereunder shall also constitute a Default or Event of Default under the Loan Documents.
Appears in 2 contracts
Sources: Revolving Credit Loan Agreement, Revolving Credit Loan Agreement (Harvard Bioscience Inc)
Events of Default; Acceleration. If any of the following events (each an "EVENT OF DEFAULT"“Events of Default”) shall occur with respect to any Borroweroccur:
(a) Such Borrower Appia shall fail to pay any principal amount of the New Debenture or fees, charges, costs or expenses (iother than an Interest Default permitted by Section 2.5(a)) shall default in the payment of principal of any Loan, interest accrued thereon or fee due hereunder after the same becomes due and payable, whether at maturity payable under the New Debenture or by acceleration any of the Financing Documents when such payment comes due in accordance with the terms of this Agreement and the other Financing Documents; or otherwise, or (ii) Appia shall default in the payment of fail to pay any other amount payable hereunder when due hereunder after the same becomes due and payable(other than an Interest Default permitted by Section 2.5(a)); or
(b) Such Borrower shall default any representation or warranty made by a Company or any other Obligor herein or in the performance of any other Financing Document or compliance with any term which is contained in Sections 9.01(a) any certificate, document, financial or 9.01(b) and other statement furnished by it at any time under or in connection with this Agreement or any such default other Financing Document shall prove, when taken as a whole, to have continued for more than three (3) Banking Days, been incorrect in any material respect on or such Borrower shall default in as of the performance of or compliance with any term contained in Sections 8.02(d), 8.02(e), 8.02(g), 8.05, 9.02, 9.03 or 9.04date made; or
(c) Such Borrower the failure by Appia or any other Obligor to punctually perform, observe, comply with or satisfy (i) any covenant, agreement or condition contained in Sections 7 or 8 of this Agreement, or (ii) any covenant, agreement or condition contained in any Financing Document, subject to any applicable cure period set forth therein; or
(d) Appia or any Subsidiary shall be in default in the observance or performance of any other covenant contained in this Agreement or compliance with any term contained herein other Financing Document (other than those expressly referred to as provided in paragraphs (a) through (c) of this Section 10.019.1), and such default (if remediable) shall not have been remedied within five continue unremedied for a period of twenty (520) Banking Days days after the earlier of (i) the date on which a Responsible Officer of such Company first learns of such default or (ii) the date on which written notice thereof shall have been given to such Borrower Company by the Operations Agent; or
(d) Such Borrower shall default in the performance of, or compliance with, any material term contained in any other written agreement with the Operations Agent or any Bank pertaining to this Agreement or such Borrower's Loans, and such default shall continue for more than the period of grace, if any, specified therein and shall not have been waived pursuant theretoPurchaser; or
(e) Any representationAppia or any Subsidiary shall fail to pay when due or shall fail to observe or perform any term, warranty certification covenant or statement made agreement evidencing or deemed made by securing any Indebtedness of such Borrower Company which, together with all such other due but unpaid Indebtedness, exceeds the sum of Two Hundred Thousand and 00/100 Dollars ($200,000.00), which results in this Agreement the proper acceleration of such Indebtedness or in the proper declaration of an event of default under any certificate, financial statement or other document delivered pursuant hereto shall prove agreement relating to have been false or incorrect in any material respect when madesuch Indebtedness; or
(f) Except as otherwise provided in this Section 10.01a Company or any Subsidiary, such Borrower shall default in any payment due on Indebtedness for borrowed money or the deferred purchase price of property, the aggregate outstanding principal amount of which is in excess of five percent (5%) of such Borrower's Total Assets, and such default shall continue for more than the period of grace, if any, applicable thereto and shall not have been waived pursuant thereto and shall permit the holder of such Indebtedness to declare such Indebtedness due and payable before its stated maturity, or in the performance of or compliance with any term of any evidence of such Indebtedness or of any mortgage, indenture or other agreement relating thereto, and any such default shall continue for more than the period of grace, if any, specified therein and shall not have been waived pursuant thereto and shall permit the holder of such Indebtedness to declare such Indebtedness due and payable before its stated maturity, unless such Borrower shall be contesting such payment or obligation in good faith by appropriate proceedings promptly initiated and diligently conducted and such Borrower shall have set aside on its books such reserves, if any, with respect thereto as are required by GAAP and deemed appropriate by such Borrower and its independent public accountants, PROVIDED, that no Event of Default pursuant to paragraphs (b) or (i) of this Section 10.01 shall have occurred and be continuing as a result of such claim having been asserted in respect of such Indebtedness; or
(g) Such Borrower shall discontinue its business (other than in connection with a permitted merger or consolidation of such Borrower) or shall make an assignment for the benefit of creditors, ; or (ii) shall fail generally admit in writing its inability to pay its debts as such debts they become due, or its inability to pay or perform under the Financing Documents; or (iii) shall apply file a voluntary petition in bankruptcy; or (iv) shall file any petition, answer, or document seeking for itself any reorganization, arrangement, composition, readjustment, liquidation, dissolution or similar relief under any present or future statute, law or regulation pertinent to such circumstances; or (v) shall seek or consent to or acquiesce in the appointment of or taking possession by a any trustee, receiver receiver, or liquidator (or other similar official) of such Borrower Company or of all or any substantial part (i.e., 33-1/3% or more) of the assets or property or assets of such Borrower Company; or (vi) other than as permitted herein, shall commence a case cease operations of its business as its business has normally been conducted (which consists of advertising, marketing and sales within the mobile industry) or have an order for relief entered against it under the federal bankruptcy laws, as now or hereafter constitutedis currently proposed to be conducted, or any other applicable federal terminate substantially all of its employees; or state bankruptcy, insolvency (vii) such Company’s directors or other similar law, or if majority shareholders shall take any action shall be taken to dissolve or liquidate such Borrower initiating any of the foregoing actions described in clauses (other than in connection with a permitted merger or consolidation of such Borroweri) through (vi); or
(hg) If, within sixty either (60i) forty-five (45) days shall have expired after the commencement of an involuntary action against such Borrower of a case under the federal bankruptcy laws, as now or hereafter constituted, Company or any other applicable federal Subsidiary seeking reorganization, arrangement, composition, readjustment, liquidation, dissolution or state bankruptcysimilar relief under any present or future statute, insolvency law or other similar lawregulation, without such case shall have been consented to or shall not have been action being dismissed or all orders or proceedings thereunder affecting the operations or the business of such Borrower Company or any Subsidiary being stayed, ; or if the (ii) a stay of any such order or proceeding proceedings shall thereafter be set aside, aside and the action setting it aside shall not be timely appealed; or if within sixty (60iii) such Company or any Subsidiary shall file any answer admitting or not contesting the material allegations of a petition filed against such Company or any Subsidiary in any such proceedings; or (iv) the court in which such proceedings are pending shall enter a decree or order granting the relief sought in any such proceedings; or (v) twenty (20) days shall have expired after the entry appointment, without the consent or acquiescence of a decree appointing a Company or any Subsidiary, of any trustee, receiver or liquidator (or other similar official) of such Borrower Company or any Subsidiary or of all or any substantial part of the property properties of such Borrower Company or any Subsidiary without such appointment shall not have been being vacated; or
(i) A final judgment which, together with other outstanding final judgments against such Borrower, exceeds an amount in the aggregate equal to five percent (5%) of such Borrower's Total Assets (exclusive of amounts covered by available insurance) shall be rendered against such Borrower and if, within thirty (30) days after entry thereof, such judgment shall not have been discharged or execution thereof stayed pending appeal, or if, within thirty (30) days after the expiration of any such stay, such judgment shall not have been discharged; or
(j) Such Borrower Appia or any member of the Commonly Controlled Group Entity shall fail to pay when due an any amount or amounts aggregating in excess of $500,000 which that it is obligated shall have become liable to pay to the PBGC or to a Plan under Title IV of ERISA, unless (A) such liability is being contested in good faith by appropriate proceedings, such Company or such Commonly Controlled Entity, as the case may be, has established and is maintaining adequate reserves in accordance with GAAP and no lien shall have been filed to secure such liability or (B) which would not have a Material Adverse Effect; or a notice of intent to terminate a Plan or Plans having aggregate Unfunded Liabilities in excess of $500,000 shall be filed under Title IV of ERISA by such Borrower or any member of the Controlled Group, any plan administrator or any combination of the foregoing; or (ii) the PBGC shall institute proceedings under Title IV of ERISA to terminate or to cause a trustee to be appointed to administer any such Plan or Plans or a proceeding shall be instituted by a fiduciary of any such Plan or Plans against such Borrower or any member of the Controlled Group to enforce Sections 515 or 4219(c)(5) of ERISAPlans; or (iii) a condition shall exist by reason of which the PBGC would be entitled to obtain a decree adjudicating that any such Plan or Plans must be terminated; or there shall occur a complete or partial withdrawal from, or a default, within the meaning of Section 4219(c)(5or
(i) of ERISA, with respect to, one or more Multiemployer Plans which could cause such Borrower final, nonappealable judgments or one decrees shall be entered against Appia or more members any of the Controlled Group to incur a current payment obligation its Subsidiaries involving individually monetary damages of Two Hundred Fifty and 00/100 Dollars ($250,000.00) (in excess of what is paid or covered by insurance) or in the aggregate, monetary damages of Two Hundred Fifty Thousand and 00/100 Dollars ($500,000250,000.00) (in excess of what is paid or covered by insurance) or more, and all such judgments or decrees shall not have been vacated, discharged, stayed or bonded pending appeal within thirty (30) days from the entry thereof; or
(j) if any of the Financing Documents or the Warrant (or any provision contained therein) shall be cancelled, terminated, revoked, curtailed or rescinded otherwise than in accordance with the terms thereof or with the express prior written agreement, consent or approval of the Purchaser, or any action at law, suit or in equity or other legal proceeding be commenced by or on behalf of a Company or any of its officers of members of its Board of Directors and results in, or is reasonably likely to result in, a finding, order, decree or judgment which does or would cancel, revoke, curtail or rescind any of the Financing Documents or the Warrant, or any Governmental Authority of competent jurisdiction shall make a determination that, or issue a judgment, order, decree or ruling to the effect that, any of the Financing Documents or the Warrant (or any provision contained therein) is illegal, invalid or unenforceable in accordance with the terms thereof; or
(k) Such Borrower shall any Lien created by any of the Security Documents shall, by reason of any breach by any Obligor thereto of any of its covenants or other obligations contained in such Security Documents, cease to be an investment management company enforceable and of the same effect and priority purported to be created thereby; or
(l) a material portion of the property of a Company or any of its Subsidiaries is damaged by fire or other casualty, or otherwise lost or stolen, the restoration or replacement cost of which property exceeds the amount of insurance proceeds readily available for such restoration or replacement; or
(m) any default shall exist and remains unwaived, unforborn or uncured with respect to any of the Senior Debt or Replacement Senior Debt if, as a Portfolio thereofresult of such default, any holder of the Senior Debt or Replacement Senior Debt, is entitled and elects to cause any such Senior Debt or Replacement Senior Debt to become due prior to its stated date of maturity; or
(n) registered any payment which a Company knew or should have known was be made in violation of any subordination agreement entered into between the Purchaser and another holder of Company Indebtedness or Company Subsidiary Indebtedness; or
(i) any guaranty of any Obligations terminates or ceases for any reason to be in full force and effect; (ii) Mandalay does not perform any obligation or covenant under the Investment Company ActMandalay Guaranty; (iii) any circumstance described in Sections 9.1(b), (f), (g), and (i) hereinabove with respect to (i.e., as and as-if applied to) Mandalay (provided that with respect to Mandalay, the applicable threshold under Section 9.1(i) shall be Five Hundred Thousand Dollars ($500,000)); or (iv) the liquidation, winding up, or such Borrower's registration under the Investment Company Act, or that termination of any Borrower Agent existence of such Borrower, shall lapse or be suspended; Mandalay. then, and in any such event, and at any time thereafterso long as the same may be continuing, if any Event of Default shall then be continuing the Purchaser may, by notice to the Companies, declare all amounts owing with respect to such defaulting Borrower, (i) in the case of any Event of Default specified in paragraphs (g) and (h) abovethis Agreement, the Commitments as New Debenture, and the other Financing Documents to such defaulting Borrower be, and they shall thereupon automatically be terminated and the principal of and accrued interest on the Loans shall automatically become due and payable without presentmentforthwith become, demand, protest or other notice or formality of any kind, all of which are hereby expressly waived, and (ii) in the case of any other Event of Default specified above, either or both of the following actions may be taken: the Operations Agent may, and upon the written or telephonic (confirmed in writing) request of the Majority Banks shall, by written notice to such defaulting Borrower (A) declare the principal of and accrued interest in respect of such defaulting Borrower's Loans to be forthwith due and payable, whereupon the principal of and accrued interest in respect of such Loans shall become forthwith immediately due and payable without presentment, demand, protest or other notice of any kind, all of which are hereby expressly waived by the Companies; provided, however, that in the event of any Event of Default specified in Section 9.1(f), Section 9.1(g) or Section 9.1(h), all such Borrower, and/or (B) terminate the Commitments as to such defaulting Borrower, whereupon the Commitments of the Banks to make Committed Credit Loans hereunder to such defaulting Borrower amounts shall forthwith terminate become immediately due and payable automatically and without any other requirement of notice of any kind and from the percentages of the Commitment Fee and other fees and expenses otherwise payable by such defaulting Borrower hereunder accruing from and after the date of termination shall be reallocated among the remaining Borrowers PRO RATA on the basis of the percentages set forth opposite such remaining Borrowers' names on SCHEDULE 1, as in effect at the time of such terminationPurchaser.
Appears in 2 contracts
Sources: Securities Purchase Agreement (Mandalay Digital Group, Inc.), Merger Agreement (Mandalay Digital Group, Inc.)
Events of Default; Acceleration. If any of the following events (each an "EVENT OF DEFAULTEvents of Default") shall occur and be continuing for any reason whatsoever (and whether it shall be voluntary or involuntary or occur or be effected by operation of law or otherwise):
(A) the Company defaults in the payment or prepayment when due of any principal of, or prepayment charge on, any Note,
(B) the Company defaults for at least five business days in the payment when due of any interest on any Note,
(C) the Company defaults in the observance of any agreement contained in Sections 5.15, 5.16, 5.17, 5.18, 5.22, 5.25, 5.27, 5.30, and 5.31.
(D) the Company defaults in the observance of any other agreement or covenant in this Agreement and shall not have remedied the default within 30 days after written demand to remedy the same has been given to the Company by the holder of any Note,
(E) the Company, any Guarantor or any Subsidiary shall not pay (or otherwise satisfy on terms consistent with the terms of this Agreement) any other Debt in an aggregated principal amount exceeding $500,000 when due, or any condition shall exist permitting other Debt of the Company, any Guarantor or any Subsidiary in an aggregate principal amount exceeding $500,000 to become or be declared due prior to its stated maturity, except, however, a condition in respect of a Guarantee of the Company, any Guarantor or any Subsidiary if the Company, such Guarantor or such Subsidiary shall duly perform its obligations under such Guarantee,
(F) the Company, any Guarantor or any Subsidiary shall (1) be generally not paying its debts as they become due, (2) file, or consent by answer or otherwise to the filing against it of, a petition for relief or reorganization or arrangement or any other petition in bankruptcy, for liquidation or to take advantage of any bankruptcy or insolvency law of any jurisdiction, (3) make any assignment for the benefit of its creditors, (4) consent to the appointment of a custodian, receiver, trustee or other officer with similar powers of itself or of any substantial part of its property, (5) be adjudicated insolvent or be liquidated, or (6) take corporate action for the purpose of any of the foregoing,
(G) a court or governmental authority of competent jurisdiction shall enter an order appointing, without consent by the Company, any Guarantor or any Subsidiary, a custodian, receiver, trustee or other officer with similar powers with respect to it or with respect to any Borrower:substantial part of its property, or if an order for relief shall be entered in any case or proceeding for liquidation or reorganization or otherwise, to take advantage of any bankruptcy or insolvency law of any jurisdiction, or ordering the dissolution, winding-up or liquidation of the Company, any Guarantor or any Subsidiary, or if any petition for any such relief shall be filed against the Company, any Guarantor or any Subsidiary and such petition shall not be dismissed within 60 days,
(aH) Such Borrower (i) final judgment shall default in be rendered against the Company, any Guarantor or any Subsidiary for the payment of principal money in excess of any Loan, interest accrued thereon or fee due hereunder after the same becomes due and payable, whether at maturity or by acceleration or otherwise, or (ii) shall default in the payment of any other amount due hereunder after the same becomes due and payable; or
(b) Such Borrower shall default in the performance of or compliance with any term contained in Sections 9.01(a) or 9.01(b) and such default shall have continued for more than three (3) Banking Days, or such Borrower shall default in the performance of or compliance with any term contained in Sections 8.02(d), 8.02(e), 8.02(g), 8.05, 9.02, 9.03 or 9.04; or
(c) Such Borrower shall default in the performance of or compliance with any term contained herein other than those expressly referred to in this Section 10.01$500,000, and such default judgment shall not have been remedied be discharged or execution thereon stayed pending appeal, within five (5) Banking Days 30 days after written notice thereof entry thereof, or, in the event of such a stay, such judgment shall have been given to not be discharged within 30 days after such Borrower by the Operations Agent; orstay expires,
(dI) Such Borrower shall default in the performance of, or compliance with, any material term contained representation or warranty heretofore or hereafter made by or on behalf of the Company herein or in any certificate or other written agreement with the Operations Agent writing delivered under or any Bank pertaining pursuant to this Agreement or such Borrower's Loans, and such default shall continue for more than in connection with any provision hereof or related to the period of grace, if any, specified therein and shall not have been waived pursuant thereto; or
(e) Any representation, warranty certification or statement made or deemed made by such Borrower in this Agreement or in any certificate, financial statement or other document delivered pursuant hereto transactions contemplated hereby shall prove to have been false or incorrect or breached in any material respect when on the date as of which made; , or
(fJ) Except as otherwise provided in this Section 10.01any Guaranty shall cease, such Borrower shall default in any payment due on Indebtedness for borrowed money or the deferred purchase price of property, the aggregate outstanding principal amount of which is in excess of five percent (5%) of such Borrower's Total Assets, and such default shall continue for more than the period of grace, if any, applicable thereto and shall not have been waived pursuant thereto and shall permit the holder of such Indebtedness to declare such Indebtedness due and payable before its stated maturity, or in the performance of or compliance with any term of any evidence of such Indebtedness or of any mortgage, indenture or other agreement relating thereto, and any such default shall continue for more than the period of grace, if any, specified therein and shall not have been waived pursuant thereto and shall permit the holder of such Indebtedness to declare such Indebtedness due and payable before its stated maturity, unless such Borrower shall be contesting such payment or obligation in good faith by appropriate proceedings promptly initiated and diligently conducted and such Borrower shall have set aside on its books such reserves, if any, with respect thereto as are required by GAAP and deemed appropriate by such Borrower and its independent public accountants, PROVIDED, that no Event of Default pursuant to paragraphs (b) or (i) of this Section 10.01 shall have occurred and be continuing as a result of such claim having been asserted in respect of such Indebtedness; or
(g) Such Borrower shall discontinue its business (other than in connection accordance with a permitted merger or consolidation of such Borrower) its terms, to be in full force and effect or shall make an assignment for the benefit of creditors, or shall fail generally to pay its debts as such debts become due, or shall apply for or consent to the appointment of or taking possession be declared by a trusteecourt or governmental authority of competent jurisdiction to be void, receiver voidable or liquidator (or other similar official) of such Borrower or unenforceable against any substantial part of the property or assets of such Borrower or shall commence a case or have an order for relief entered against it under the federal bankruptcy laws, as now or hereafter constitutedGuarantor, or any other applicable federal or state bankruptcy, insolvency or other similar law, or if any action shall be taken to dissolve or liquidate such Borrower (other than in connection with a permitted merger or consolidation of such Borrower); or
(h) If, within sixty (60) days after the commencement against such Borrower of a case under the federal bankruptcy laws, as now or hereafter constituted, or any other applicable federal or state bankruptcy, insolvency or other similar law, such case shall have been consented to or shall not have been dismissed or all orders or proceedings thereunder affecting the operations Guarantor or the business of such Borrower stayed, or if the stay of Company asserts any such order or proceeding shall thereafter be set aside, or if within sixty (60) days after the entry of a decree appointing a trustee, receiver or liquidator (or other similar official) of such Borrower or any substantial part of the property of such Borrower such appointment shall not have been vacated; orforegoing in writing or before any court or governmental authority,
(i) A final judgment which, together with other outstanding final judgments against such Borrower, exceeds an amount in upon the aggregate equal to five percent (5%) of such Borrower's Total Assets (exclusive of amounts covered by available insurance) shall be rendered against such Borrower and if, within thirty (30) days after entry thereof, such judgment shall not have been discharged or execution thereof stayed pending appeal, or if, within thirty (30) days after the expiration of any such stay, such judgment shall not have been discharged; or
(j) Such Borrower or any member of the Controlled Group shall fail to pay when due an amount or amounts aggregating in excess of $500,000 which it is obligated to pay to the PBGC or to a Plan under Title IV of ERISA; or a notice of intent to terminate a Plan or Plans having aggregate Unfunded Liabilities in excess of $500,000 shall be filed under Title IV of ERISA by such Borrower or any member of the Controlled Group, any plan administrator or any combination of the foregoing; or the PBGC shall institute proceedings under Title IV of ERISA to terminate or to cause a trustee to be appointed to administer any such Plan or Plans or a proceeding shall be instituted by a fiduciary of any such Plan or Plans against such Borrower or any member of the Controlled Group to enforce Sections 515 or 4219(c)(5) of ERISA; or a condition shall exist by reason of which the PBGC would be entitled to obtain a decree adjudicating that any such Plan or Plans must be terminated; or there shall occur a complete or partial withdrawal from, or a default, within the meaning of Section 4219(c)(5) of ERISA, with respect to, one or more Multiemployer Plans which could cause such Borrower or one or more members of the Controlled Group to incur a current payment obligation in excess of $500,000; or
(k) Such Borrower shall cease to be an investment management company (or a Portfolio thereof) registered under the Investment Company Act, or such Borrower's registration under the Investment Company Act, or that of any Borrower Agent of such Borrower, shall lapse or be suspended; then, and in any such event, and at any time thereafter, if any Event of Default shall then be continuing with respect to such defaulting Borrower, (i) in the case occurrence of any Event of Default specified described in paragraphs subsection (gF) and or (hG) abovewith respect to the Company (other than such an Event of Default described in subsection (F)(1) or described in subsection (F)(6) by virtue of the reference in such clause (6) to such clause (1)), the Commitments as to such defaulting Borrower shall thereupon automatically be terminated and unpaid principal amount of the principal of and Notes, together with the accrued interest on thereon and, to the Loans extent permitted by law, an amount equal to 50% of the prepayment charge that would be payable if the Company were prepaying the Notes at the time pursuant to Section 4.2, shall automatically become immediately due and payable payable, without presentment, demand, protest or other notice or formality of any kind, all of which are hereby expressly waived, and (ii) in the case of any other Event of Default specified above, either or both of the following actions may be taken: the Operations Agent may, and upon the written or telephonic (confirmed in writing) request of the Majority Banks shall, by written notice to such defaulting Borrower (A) declare the principal of and accrued interest in respect of such defaulting Borrower's Loans to be forthwith due and payable, whereupon the principal of and accrued interest in respect of such Loans shall become forthwith due and payable without presentment, demand, protest or other notice requirements of any kind, all of which are hereby expressly waived by such Borrowerthe Company, and/or or (ii) upon occurrence of any other Event of Default, the holder or holders of at least 66-2/3% of the unpaid principal amount of the Notes at the time outstanding (subject to the last paragraph of Section 9) may, by written notice to the Company, declare all of the Notes to be, and the same shall forthwith become due and payable, together with accrued interest thereon which shall be deemed matured and, to the extent permitted by law, an amount equal to 50% of the prepayment charge that would be payable if the Company were prepaying the Notes at the time pursuant to Section 4.2, provided that, during the existence of an Event of Default described in Subsection (A) or (B) terminate with respect to any Note, the Commitments as holder of such Note may, by written notice to the Company, declare such defaulting BorrowerNote to be, whereupon and the Commitments same shall forthwith become, due and payable, together with accrued interest thereon which shall be deemed matured and, to the extent permitted by law, an amount equal to 50% of the Banks to make Committed Credit Loans hereunder to prepayment charges that would be payable if the Company were prepaying such defaulting Borrower shall forthwith terminate without any other notice of any kind and the percentages of the Commitment Fee and other fees and expenses otherwise payable by such defaulting Borrower hereunder accruing from and after the date of termination shall be reallocated among the remaining Borrowers PRO RATA on the basis of the percentages set forth opposite such remaining Borrowers' names on SCHEDULE 1, as in effect Note at the time of such terminationpursuant to Section 4.
Appears in 2 contracts
Sources: Loan Agreement (Del Laboratories Inc), Loan Agreement (Del Laboratories Inc)
Events of Default; Acceleration. If any (a) Section 6.01 of the Base Indenture shall not apply to the Notes. Instead, each of the following events (each shall be an "EVENT OF DEFAULT") shall occur “Event of Default” with respect to any Borrowerthe Notes:
(a1) Such Borrower (i) shall default the Company defaults in the payment of principal of interest on any LoanNote, interest accrued thereon or fee due hereunder after any Additional Amounts payable with respect thereto, when the same becomes due and payable, whether at maturity or by acceleration or otherwise, or and the default continues for a period of 30 days;
(ii2) shall default the Company defaults in the payment of the principal or any other amount due hereunder after premium with respect to any Note, or any Additional Amounts payable with respect thereto, when the same becomes due and payable; orpayable at maturity, upon acceleration or redemption, or otherwise;
(b3) Such Borrower shall default the Company defaults in the performance of or compliance breaches any other covenant, warranty or agreement of the Company in the Indenture with any term contained in Sections 9.01(a) respect to the Notes or 9.01(bunder the Notes (other than a covenant or warranty included therein solely for the benefit of one or more series of Securities other than the Notes) and the default or breach continues for a period of 90 consecutive days after written notice to the Company by the Trustee or to the Company and the Trustee by the Holders of not less than 25% in aggregate principal amount of the Notes specifying such default shall have continued for or breach and requiring it to be remedied and stating that it is a “Notice of Default” under the Indenture;
(4) there occurs with respect to any issue or issues of Indebtedness (including any Guarantee and any other series of debt securities) of the Company or any Significant Subsidiary having an outstanding principal amount of $225,000,000 or more than three (3) Banking Days, or such Borrower shall default in the performance aggregate for all such issues of all such persons, whether such Indebtedness exists on the date hereof or compliance with any term contained in Sections 8.02(d)shall hereafter be created, 8.02(e), 8.02(g), 8.05, 9.02, 9.03 or 9.04; or
(ca) Such Borrower shall an event of default in that has caused the performance of or compliance with any term contained herein other than those expressly referred holder thereof to in this Section 10.01, declare such indebtedness to be due and payable prior to its stated maturity and such default indebtedness shall not have been remedied within five (5) Banking Days after written notice thereof shall have been given to such Borrower by the Operations Agent; or
(d) Such Borrower shall default discharged in the performance of, or compliance with, any material term contained in any other written agreement with the Operations Agent or any Bank pertaining to this Agreement full or such Borrower's Loans, and such default shall continue for more than the period of grace, if any, specified therein and acceleration shall not have been waived pursuant thereto; or
(e) Any representation, warranty certification rescinded or statement made or deemed made by such Borrower in this Agreement or in any certificate, financial statement or other document delivered pursuant hereto shall prove to have been false or incorrect in any material respect when made; or
(f) Except as otherwise provided in this Section 10.01, such Borrower shall default in any payment due on Indebtedness for borrowed money or the deferred purchase price of property, the aggregate outstanding principal amount of which is in excess of five percent (5%) annulled within 30 days of such Borrower's Total Assets, acceleration and/or (b) the failure to make a principal payment at the final (but not any interim) fixed maturity and such default shall continue for more than the period of grace, if any, applicable thereto and defaulted payment shall not have been made, waived pursuant thereto and shall permit the holder or extended within 30 days of such Indebtedness payment default;
(5) the Company or any of its Significant Subsidiaries shall fail within 60 days to declare such Indebtedness due and payable before its stated maturitypay, bond or otherwise discharge uninsured judgments or court orders for the payment of money in excess of $225,000,000 in the performance of aggregate, which are not stayed on appeal or compliance with any term of any evidence of such Indebtedness or of any mortgage, indenture are not otherwise being appropriately contested in good faith;
(6) an involuntary case or other agreement relating theretoproceeding is commenced against the Company or any Significant Subsidiary with respect to it or its debts under any bankruptcy, insolvency or other similar law now or hereafter in effect seeking the appointment of a trustee, receiver, liquidator, custodian or other similar official of it or any substantial part of its property, and any such default shall continue involuntary case or other proceeding remains undismissed and unstayed for more than the a period of grace, if any, specified therein and shall not have been waived pursuant thereto and shall permit 60 days; or an order for relief is entered against the holder Company or any Significant Subsidiary under the federal bankruptcy laws as now or hereafter in effect;
(7) the Company or any of such Indebtedness to declare such Indebtedness due and payable before its stated maturity, unless such Borrower shall be contesting such payment or obligation in good faith by appropriate proceedings promptly initiated and diligently conducted and such Borrower shall have set aside on its books such reserves, if any, with respect thereto as are required by GAAP and deemed appropriate by such Borrower and its independent public accountants, PROVIDED, that no Event of Default pursuant to paragraphs (b) or Significant Subsidiaries (i) of this Section 10.01 shall have occurred and be continuing as commences a result of such claim having been asserted voluntary case under any applicable bankruptcy, insolvency or other similar law now or hereafter in respect of such Indebtedness; or
(g) Such Borrower shall discontinue its business (other than in connection with a permitted merger or consolidation of such Borrower) or shall make an assignment for the benefit of creditorseffect, or shall fail generally consents to pay its debts as the entry of an order for relief in an involuntary case under any such debts become duelaw, or shall apply for or consent (ii) consents to the appointment of or taking possession by a receiver, liquidator, assignee, custodian, trustee, receiver sequestrator or liquidator (or other similar official) official of such Borrower the Company or any substantial part of its Significant Subsidiaries or of all or substantially all of the property or and assets of such Borrower or shall commence a case or have an order for relief entered against it under the federal bankruptcy laws, as now or hereafter constituted, Company or any of its Significant Subsidiaries or (iii) effects any general assignment for the benefit of creditors, in each case, other applicable federal than a proceeding initiated by or state bankruptcyon behalf of the Company or a Subsidiary of the Company to effect the winding up, insolvency dissolution or other similar law, termination of existence of a Subsidiary of the Company which is permitted under Section 3.05 of the Base Indenture (an event of default specified in clause (6) or if any action (7) a “bankruptcy default”);
(b) Section 6.02 of the Base Indenture shall be taken to dissolve or liquidate such Borrower (other than in connection with a permitted merger or consolidation of such Borrower); or
(h) If, within sixty (60) days after the commencement against such Borrower of a case under the federal bankruptcy laws, as now or hereafter constituted, or any other applicable federal or state bankruptcy, insolvency or other similar law, such case shall have been consented to or shall not have been dismissed or all orders or proceedings thereunder affecting the operations or the business of such Borrower stayed, or if the stay of any such order or proceeding shall thereafter be set aside, or if within sixty (60) days after the entry of a decree appointing a trustee, receiver or liquidator (or other similar official) of such Borrower or any substantial part of the property of such Borrower such appointment shall not have been vacated; or
(i) A final judgment which, together with other outstanding final judgments against such Borrower, exceeds an amount in the aggregate equal to five percent (5%) of such Borrower's Total Assets (exclusive of amounts covered by available insurance) shall be rendered against such Borrower and if, within thirty (30) days after entry thereof, such judgment shall not have been discharged or execution thereof stayed pending appeal, or if, within thirty (30) days after the expiration of any such stay, such judgment shall not have been discharged; or
(j) Such Borrower or any member of the Controlled Group shall fail to pay when due an amount or amounts aggregating in excess of $500,000 which it is obligated to pay to the PBGC or to a Plan under Title IV of ERISA; or a notice of intent to terminate a Plan or Plans having aggregate Unfunded Liabilities in excess of $500,000 shall be filed under Title IV of ERISA by such Borrower or any member of the Controlled Group, any plan administrator or any combination of the foregoing; or the PBGC shall institute proceedings under Title IV of ERISA to terminate or to cause a trustee to be appointed to administer any such Plan or Plans or a proceeding shall be instituted by a fiduciary of any such Plan or Plans against such Borrower or any member of the Controlled Group to enforce Sections 515 or 4219(c)(5) of ERISA; or a condition shall exist by reason of which the PBGC would be entitled to obtain a decree adjudicating that any such Plan or Plans must be terminated; or there shall occur a complete or partial withdrawal from, or a default, within the meaning of Section 4219(c)(5) of ERISA, with respect to, one or more Multiemployer Plans which could cause such Borrower or one or more members of the Controlled Group to incur a current payment obligation in excess of $500,000; or
(k) Such Borrower shall cease to be an investment management company (or a Portfolio thereof) registered under the Investment Company Act, or such Borrower's registration under the Investment Company Act, or that of any Borrower Agent of such Borrower, shall lapse or be suspended; then, and in any such event, and at any time thereafter, if any Event of Default shall then be continuing amended with respect to the Notes by replacing the first two paragraphs of such defaulting Borrower, (i) in section with the case of any following: “If an Event of Default specified Default, other than a bankruptcy default with respect to the Company (but not any Significant Subsidiary of the Company), occurs and is continuing under the Indenture with respect to the Notes, then, either the Trustee or the Holders of at least 25% in paragraphs aggregate principal amount of the Notes then outstanding, by written notice to the Company (g) and (h) aboveto the Trustee if the notice is given by the Holders), the Commitments as to such defaulting Borrower shall thereupon automatically be terminated and may declare the principal of and accrued interest on the Loans shall automatically become Notes to be immediately due and payable without presentmentpayable. Upon a declaration of acceleration, demandsuch principal and interest will become immediately due and payable. If a bankruptcy default occurs with respect to the Company, protest or other notice or formality of any kind, all of which are hereby expressly waived, and (ii) in the case of any other Event of Default specified above, either or both of the following actions may be taken: the Operations Agent may, and upon the written or telephonic (confirmed in writing) request of the Majority Banks shall, by written notice to such defaulting Borrower (A) declare the principal of and accrued interest in respect of such defaulting Borrower's Loans to be forthwith due and payable, whereupon the principal of and accrued interest in respect of such Loans shall on Notes then outstanding will become forthwith immediately due and payable without presentment, demand, protest any declaration or other notice of any kind, all of which are hereby expressly waived by such Borrower, and/or (B) terminate act on the Commitments as to such defaulting Borrower, whereupon the Commitments part of the Banks to make Committed Credit Loans hereunder to such defaulting Borrower shall forthwith terminate without Trustee or any other notice of any kind and the percentages of the Commitment Fee and other fees and expenses otherwise payable by such defaulting Borrower hereunder accruing from and after the date of termination shall be reallocated among the remaining Borrowers PRO RATA on the basis of the percentages set forth opposite such remaining Borrowers' names on SCHEDULE 1, as in effect at the time of such terminationHolder.”
Appears in 2 contracts
Sources: Sixth Supplemental Indenture (Flex Ltd.), Fifth Supplemental Indenture (Flex Ltd.)
Events of Default; Acceleration. If any of the following events (each an "EVENT OF DEFAULT"“Events of Default” or, if the giving of notice or the lapse of time or both is required, then, prior to such notice or lapse of time, “Defaults”) shall occur with respect to any Borroweroccur:
(a) Such Any Borrower (i) shall default in the payment of fail to pay any principal or interest of any Loan, interest accrued thereon Loan when due in accordance with the terms of this Agreement or fee due hereunder after the same becomes due and payable, whether at maturity or by acceleration or otherwise, or (ii) Borrowers shall default in the payment of fail to pay any other amount due payable hereunder within five (5) days after the same any such other amount becomes due in accordance with the terms of this Agreement and payablethe other Loan Documents; or
(b) Such Any representation or warranty made by any Borrower shall default to the Lender in the performance of this Agreement or compliance with in any term other Loan Document or which is contained in Sections 9.01(a) any certificate, document or 9.01(b) and financial or other statement furnished by it at any time under or in connection with this Agreement or any such default other Loan Document shall prove to have continued for more than three (3) Banking Days, been incorrect in any material respect on or such Borrower shall default in as of the performance of date made or compliance with any term contained in Sections 8.02(d), 8.02(e), 8.02(g), 8.05, 9.02, 9.03 or 9.04deemed made; or
(c) Such Any Borrower shall default fails to observe or perform any covenant, condition, or agreement contained in the performance any of subsection 2.3, 5.4, 5.5, 5.7. 5.9. 5.10 or compliance with 5.11 or Section 6 of this Agreement; or
(d) Any Borrower fails to observe or perform any term covenant, condition, or agreement contained herein in this Agreement or any other Loan Document (other than those expressly referred to as provided in this Section 10.01subsection 8.1(a), 8.1(b) or 8.1(c)) and such failure continues for thirty (30) days after the earlier of (i) the date on which any officer of any Borrower first learns of such default shall not have been remedied within five or (5ii) Banking Days after the date on which written notice thereof shall have been given to such any Borrower by the Operations Agent; or
(d) Such Borrower shall default in the performance of, or compliance with, any material term contained in any other written agreement with the Operations Agent or any Bank pertaining to this Agreement or such Borrower's Loans, and such default shall continue for more than the period of grace, if any, specified therein and shall not have been waived pursuant thereto; orLender;
(e) Any representationBorrower commences any case, warranty certification or statement made or deemed made by such Borrower in this Agreement or in any certificateproceeding, financial statement or other document delivered pursuant hereto shall prove action (i) under any existing or future Law relating to bankruptcy, insolvency, reorganization, or other relief of debtors, seeking to have been false an order for relief entered with respect to it, or incorrect in seeking to adjudicate it as bankrupt or insolvent, or seeking reorganization, arrangement, adjustment, winding-up, liquidation, dissolution, composition, or other relief with respect to it or its debts or (ii) seeking appointment of a receiver, trustee, custodian, conservator, or other similar official for it or for all or any material respect when made; orsubstantial part of its assets, or any Borrower makes a general assignment for the benefit of its creditors;
(f) Except as otherwise provided in this Section 10.01Any proceeding or case shall be commenced against any Borrower, such Borrower shall default in any payment due on Indebtedness for borrowed money without the application or the deferred purchase price of property, the aggregate outstanding principal amount of which is in excess of five percent (5%) consent of such Borrower's Total Assets, in any court of competent jurisdiction, seeking (i) the liquidation, reorganization, dissolution, winding up, or composition or readjustment of its debts, (ii) the appointment of a trustee, receiver, custodian, liquidator or the like of it or of all or any substantial part of assets of such Borrower, or (iii) similar relief in respect of it, under any Law relating to bankruptcy, insolvency, reorganization, winding-up or composition or adjustment of debts or any other law providing for the relief of debtors, and such default proceeding or case shall continue un-dismissed, or un-stayed and in effect, for more than the a period of gracesixty (60) days; or an order for relief shall be entered in an involuntary case under the United States Bankruptcy Code, if anyas amended from time to time, applicable thereto and shall not have been waived pursuant thereto and shall permit against such Borrower or action under the holder Laws of the jurisdiction of incorporation or organization of such Indebtedness Borrower similar to declare such Indebtedness due and payable before its stated maturity, or in any of the performance of or compliance with any term of any evidence of such Indebtedness or of any mortgage, indenture or other agreement relating thereto, and any such default shall continue for more than the period of grace, if any, specified therein and shall not have been waived pursuant thereto and shall permit the holder of such Indebtedness to declare such Indebtedness due and payable before its stated maturity, unless such Borrower foregoing shall be contesting such payment or obligation in good faith by appropriate proceedings promptly initiated and diligently conducted and such Borrower shall have set aside on its books such reserves, if any, taken with respect thereto as are required by GAAP and deemed appropriate by to such Borrower and its independent public accountants, PROVIDED, that no Event shall continue un-stayed and in effect for a period of Default pursuant to paragraphs sixty (b60) or (i) of this Section 10.01 shall have occurred and be continuing as a result of such claim having been asserted in respect of such Indebtednessdays; or
(g) Such One or more judgments or decrees shall be entered against any Borrower shall discontinue its business involving a liability of One Hundred Thousand and 00/100 Dollars (other than in connection with a permitted merger or consolidation of such Borrower$100,000.00) or shall make an assignment for the benefit of creditors, or shall fail generally to pay its debts as such debts become due, or shall apply for or consent more (to the appointment of or taking possession extent not covered by a trustee, receiver or liquidator (or other similar official) of such Borrower or any substantial part independent third-party insurance as to which the insurer has been notified of the property potential claim and does not dispute coverage) and all such judgments or assets of such Borrower decrees shall not have been vacated, discharged, stayed or shall commence a case or have an order for relief entered against it under bonded pending appeal within ten (10) days from the federal bankruptcy laws, as now or hereafter constituted, or any other applicable federal or state bankruptcy, insolvency or other similar law, or if any action shall be taken to dissolve or liquidate such Borrower (other than in connection with a permitted merger or consolidation of such Borrower)entry thereof; or
(h) IfIf any of the Loan Documents (including this Agreement) (or any provision contained therein) shall be cancelled, within sixty (60) days after terminated, revoked, curtailed or rescinded otherwise than in accordance with the commencement against such Borrower terms thereof or with the express prior written agreement, consent or approval of a case under the federal bankruptcy laws, as now or hereafter constitutedLender, or any other applicable federal action at law, suit or state bankruptcy, insolvency in equity or other similar lawlegal proceeding to cancel, such case revoke, curtail or rescind any of the Loan Documents shall have been consented to be commenced by or shall not have been dismissed or all orders or proceedings thereunder affecting the operations or the business of such Borrower stayed, or if the stay on behalf of any such order or proceeding shall thereafter be set aside, or if within sixty (60) days after the entry of a decree appointing a trustee, receiver or liquidator (or other similar official) of such Borrower or any substantial part of its officers, director or stockholders of any Borrower, or any Governmental Authority of competent jurisdiction shall make a determination that, or issue a judgment, order, decree or ruling to the effect that, any of the property of such Borrower such appointment shall not have been vacatedLoan Documents (including this Agreement) (or any provision contained therein) is illegal, invalid or unenforceable in accordance with the terms thereof; or
(i) A final judgment which, together with other outstanding final judgments against such Borrower, exceeds an amount in the aggregate equal to five percent (5%) of such Borrower's Total Assets (exclusive of amounts covered by available insurance) shall be rendered against such Borrower and if, within thirty (30) days after entry thereof, such judgment shall not have been discharged or execution thereof stayed pending appeal, or if, within thirty (30) days after the expiration of any such stay, such judgment shall not have been discharged[Reserved]; or
(j) Such Borrower or any member a material portion of the Controlled Group shall fail to pay when due an amount or amounts aggregating in excess of $500,000 which it is obligated to pay to the PBGC or to a Plan under Title IV of ERISA; or a notice of intent to terminate a Plan or Plans having aggregate Unfunded Liabilities in excess of $500,000 shall be filed under Title IV of ERISA by such Borrower or any member of the Controlled Group, any plan administrator or any combination of the foregoing; or the PBGC shall institute proceedings under Title IV of ERISA to terminate or to cause a trustee to be appointed to administer any such Plan or Plans or a proceeding shall be instituted by a fiduciary property of any such Plan Borrower is damaged by fire or Plans against such Borrower other casualty, or any member of otherwise lost or stolen, the Controlled Group to enforce Sections 515 restoration or 4219(c)(5) of ERISA; or a condition shall exist by reason replacement cost of which property exceeds, in the PBGC aggregate, the amount of insurance proceeds readily available for such restoration or replacement, and such loss would be entitled to obtain have a decree adjudicating that any material adverse effect upon such Plan or Plans must be terminated; or there shall occur a complete or partial withdrawal from, or a default, within the meaning of Section 4219(c)(5) of ERISA, with respect to, one or more Multiemployer Plans which could cause such Borrower or one or more members of the Controlled Group to incur a current payment obligation in excess of $500,000Borrower; or
(k) Such Borrower any Event of Default (as defined in the Senior Loan and Security Agreement) shall cease to be an investment management company (exist and remains un-waived or a Portfolio thereof) registered uncured under the Investment Company ActSenior Loan and Security Agreement if, or as a result of such Borrower's registration under Event of Default (as defined in the Investment Company ActSenior Loan and Security Agreement), or that the Senior Lender is entitled to cause the Senior Credit Facility to become due prior to its stated date of maturity; or
(l) the occurrence of any Borrower Agent of such Borrower, shall lapse or be suspendedMaterial Adverse Change; then, and in any such event, and at any time thereafter, if any Event of Default shall then so long as the same may be continuing with respect to such defaulting Borrower, (i) in the case of any Event of Default specified in paragraphs (g) and (h) abovecontinuing, the Commitments as Lender may, by notice in writing to such defaulting Borrower the Borrowers, declare all of the Obligations to be, and they shall thereupon automatically be terminated and the principal of and accrued interest on the Loans shall automatically become due and payable without presentmentforthwith become, demand, protest or other notice or formality of any kind, all of which are hereby expressly waived, and (ii) in the case of any other Event of Default specified above, either or both of the following actions may be taken: the Operations Agent may, and upon the written or telephonic (confirmed in writing) request of the Majority Banks shall, by written notice to such defaulting Borrower (A) declare the principal of and accrued interest in respect of such defaulting Borrower's Loans to be forthwith due and payable, whereupon the principal of and accrued interest in respect of such Loans shall become forthwith immediately due and payable without presentment, demand, protest or other notice of any kind, all of which are hereby expressly waived by such Borrowerthe Borrowers; provided, and/or (Bhowever, that in the event of any Event of Default specified in subsection 8.1(e) terminate the Commitments as to such defaulting Borroweror 8.1(f), whereupon the Commitments all of the Banks to make Committed Credit Loans hereunder to such defaulting Borrower Obligations shall forthwith terminate become immediately due and payable automatically and without any other requirement of notice of any kind and from the percentages of the Commitment Fee and other fees and expenses otherwise payable by such defaulting Borrower hereunder accruing from and after the date of termination shall be reallocated among the remaining Borrowers PRO RATA on the basis of the percentages set forth opposite such remaining Borrowers' names on SCHEDULE 1, as in effect at the time of such terminationLender.
Appears in 2 contracts
Sources: Bridge Loan Agreement (Minim, Inc.), Bridge Loan Agreement (Hitchcock Jeremy P.)
Events of Default; Acceleration. If any of the following events (each an "EVENT OF DEFAULTEvent of Default" or a "Default") shall occur with respect to any Borroweroccur:
(a) Such Demand, in the Bank's sole discretion; or
(b) The Borrower (i) shall default in the payment of the principal of any Loan, interest accrued thereon or fee due hereunder after the same becomes due and payable, whether at maturity or by acceleration or otherwiseof, or any prepayments or interest on the Note, and such default shall continue for five (ii5) shall days or default is made in respect of the payment of any other fee or amount due hereunder or thereunder, whether at maturity, by acceleration or at a date fixed for the payment thereof or otherwise, and such default shall continue for five (5) days after the same becomes due and payablewritten notice of default from Bank to Borrower; or
(bc) Such The Borrower shall default in the performance of or compliance with any term contained in the terms and provisions of Sections 9.01(a) 4, 5 or 9.01(b) and such default shall have continued for more than three (3) Banking Days, or such Borrower shall default in the performance of or compliance with any term contained in Sections 8.02(d), 8.02(e), 8.02(g), 8.05, 9.02, 9.03 or 9.04; or
(c) Such Borrower shall default in the performance of or compliance with any term contained herein other than those expressly referred to in this Section 10.01, and such default shall not have been remedied within five (5) Banking Days after written notice thereof shall have been given to such Borrower by the Operations Agent6 hereof; or
(d) Such The Borrower shall default in the performance of, or compliance with, any material term contained in fail to perform any other written agreement with the Operations Agent term or any Bank pertaining to this Agreement or such Borrower's Loanscovenant hereof, and such default shall continue for more (other than a monetary default referred to in paragraph (a) hereof) is not rectified and cured within fifteen (15) days after notice of default or breach by the period of grace, if any, specified therein and shall not have been waived pursuant theretoBank to the Borrower; or
(e) Any representation, material representation or warranty certification or statement made or deemed made by such the Borrower in this Agreement or any other party in any certificate, financial statement or other document delivered pursuant hereto Loan Document shall prove to have been false or incorrect in any material respect when made; or
(f) Except as otherwise provided in this Section 10.01, such The Borrower or any Guarantor shall default in any payment due on Indebtedness for borrowed money or the deferred purchase price of property, the aggregate outstanding principal amount of which is in excess of five percent (5%) of such Borrower's Total Assets, and such default shall continue for more than the period of grace, if any, applicable thereto and shall not have been waived pursuant thereto and shall permit the holder of such any Indebtedness to declare such Indebtedness due and payable before its stated maturitya third party, including the Bank or in the performance of or compliance with any term of any evidence of agreement or document relating to such Indebtedness or of any mortgage, indenture or other agreement relating thereto, and any such default shall continue for more than the period of grace, if any, specified therein and shall or breach is not have been waived pursuant thereto and shall permit the holder of such Indebtedness to declare such Indebtedness due and payable before its stated maturity, unless such Borrower shall be contesting such payment or obligation in good faith by appropriate proceedings promptly initiated and diligently conducted and such Borrower shall have set aside on its books such reserves, if any, with respect thereto as are required by GAAP and deemed appropriate by such third party, including the Bank or cured by Borrower and its independent public accountantsor such Guarantor within any applicable cure period or otherwise prior to declaration of default hereunder by Bank, PROVIDED, that no Event including without limitation failure to pay amounts due under or comply with the terms of Default pursuant to paragraphs (b) or (i) the occurrences of this Section 10.01 shall have occurred and be continuing as a result default or event of such claim having been asserted default under any of the loan documents described in respect of such IndebtednessSCHEDULE 1.1 attached hereto; or
(g) Such The Borrower or any Guarantor shall discontinue its business (other than in connection with a permitted merger or consolidation of such Borrower) or shall make an assignment for the benefit of creditors, or shall fail generally to pay its debts as such debts become due, or shall apply for or consent to the appointment of or taking possession by a trustee, receiver or liquidator (or other similar official) of such the Borrower or any Guarantor or any substantial part of the property or assets of such Borrower its property, or shall commence a case or have an order for relief entered against it under the federal bankruptcy laws, as now or hereafter constituted, or any other applicable federal or state bankruptcy, insolvency or other similar law, or if the Borrower or any Guarantor shall take any action shall be taken looking to dissolve the dissolution or liquidate such liquidation of the Borrower (other than in connection with a permitted merger or consolidation of such Borrower); orany Guarantor;
(h) IfA decree or order is entered appointing any such trustee, within sixty (60) days after custodian, liquidator or receiver or adjudicating the commencement against Borrower or any Guarantor bankrupt or insolvent, or approving a petition in any such case or other proceeding, or a decree or order for relief is entered in respect of the Borrower of a or any Guarantor in an involuntary case under the federal bankruptcy laws, laws as now or hereafter constituted, or any other applicable federal or state bankruptcy, insolvency or other similar law, such case shall have been consented to or shall not have been dismissed or all orders or proceedings thereunder affecting the operations or the business of such Borrower stayed, or if the stay of any such order or proceeding shall thereafter be set aside, or if within sixty (60) days after the entry of a decree appointing a trustee, receiver or liquidator (or other similar official) of such Borrower or any substantial part of the property of such Borrower such appointment shall not have been vacated; or;
(i) A There shall remain in force, undischarged, unsatisfied and unstayed, for more than thirty (30) days, whether or not consecutive, any final judgment whichnot covered by insurance against the Borrower or any Guarantor that, together with other outstanding final judgments not covered by insurance, undischarged, against the Borrower or such BorrowerGuarantor, exceeds an amount in the aggregate equal to five percent (5%) of such Borrower's Total Assets (exclusive of amounts covered by available insurance) shall be rendered against such Borrower and if, within thirty (30) days after entry thereof, such judgment shall not have been discharged or execution thereof stayed pending appeal, or if, within thirty (30) days after the expiration of any such stay, such judgment shall not have been discharged; or$100,000;
(j) Such Borrower Any of the Loan Documents shall be cancelled, terminated, revoked or rescinded otherwise than in accordance with the terms thereof or with the express prior written agreement consent or approval of the Bank, or any member action at law, suit or in equity or other legal proceeding to cancel, revoke or rescind any of the Controlled Group Loan Documents shall fail to pay when due an amount be commenced by or amounts aggregating in excess on behalf of $500,000 which it is obligated to pay the Borrower, any Guarantor, or any of their respective shareholders, or any court or any other governmental or regulatory authority or agency of competent jurisdiction shall make a determination that, or issue a judgment, order, decree or ruling to the PBGC or to a Plan under Title IV of ERISA; or a notice of intent to terminate a Plan or Plans having aggregate Unfunded Liabilities in excess of $500,000 shall be filed under Title IV of ERISA by such Borrower or any member of the Controlled Groupeffect that, any plan administrator or any combination of the foregoing; or the PBGC shall institute proceedings under Title IV of ERISA to terminate or to cause a trustee to be appointed to administer any such Plan or Plans or a proceeding shall be instituted by a fiduciary of any such Plan or Plans against such Borrower or any member of the Controlled Group to enforce Sections 515 or 4219(c)(5) of ERISA; or a condition shall exist by reason of which the PBGC would be entitled to obtain a decree adjudicating that any such Plan or Plans must be terminated; or there shall occur a complete or partial withdrawal from, or a default, within the meaning of Section 4219(c)(5) of ERISA, with respect to, one or more Multiemployer Plans which could cause such Borrower or one or more members of the Controlled Group to incur a current payment obligation Loan Documents is illegal, invalid or unenforceable in excess of $500,000accordance with the terms thereof; or
(k) Such The Borrower or any Guarantor shall cease to be an investment management company (enjoined, restrained or a Portfolio thereof) registered under in any way prevented by the Investment Company Act, or such Borrower's registration under the Investment Company Act, or that order of any Borrower Agent court or any administrative or regulatory agency from conducting any material part of its business and such Borrower, order shall lapse or be suspendedcontinue in effect for more than thirty (30) days; then, and in any such event, and at any time thereafter, if any Event of Default shall then be continuing with respect to such defaulting Borrower, (i) in the case of any Event of Default specified in paragraphs (g) and (h) above, the Commitments as to such defaulting Borrower shall thereupon automatically be terminated and the principal of and accrued interest on the Loans shall automatically become due and payable without presentment, demand, protest or other notice or formality of any kind, all of which are hereby expressly waived, and (ii) in the case of any other Event of Default specified abovecontinuing, either or both of the following actions may be taken, in addition to and not in limitation of any additional remedies as may be set forth herein or in any related Loan Documents or under applicable law: (a) the Operations Agent may, and upon the written or telephonic (confirmed in writing) request of the Majority Banks shall, by written notice to such defaulting Borrower (A) Bank may declare the principal of and accrued interest in respect of such defaulting Borrower's Loans the Note to be forthwith due and payable, whereupon the principal of principal, premium, if any, and accrued interest in respect of such Loans the Note shall become forthwith due and payable without presentment, demand, protest or other notice of any kind, all of which are hereby expressly waived by such the Borrower, and/or together with all other amounts due hereunder or thereunder; (Bb) terminate the Commitments as Bank may proceed to such defaulting protect, enforce and exercise its rights by an action at law, suit in equity or other appropriate proceeding, including without limitation a right of set-off against any and all deposits, accounts, certificate of deposit balances, claims or other sums at any time credited by or due from the Bank to the Borrower. Notwithstanding anything to the contrary herein or in any Loan Document, whereupon the Commitments of the Banks Bank shall not be obligated to make Committed Credit Loans hereunder advances to Borrower under Section 2 hereof following any monetary default or during any cure or grace period following such defaulting Borrower shall forthwith terminate without any other notice of any kind and the percentages of the Commitment Fee and other fees and expenses otherwise payable by such defaulting Borrower hereunder accruing from and after the date of termination shall be reallocated among the remaining Borrowers PRO RATA on the basis of the percentages set forth opposite such remaining Borrowers' names on SCHEDULE 1, as in effect at the time of such terminationa default.
Appears in 1 contract
Events of Default; Acceleration. If 6.1 Any or all of the Obligations of the Borrowers to the Agent and the Banks shall, at the option of the Banks (acting through the Agent) and notwithstanding the provisions of any instrument evidencing an Obligation, be immediately due and payable without notice or demand upon the occurrence and continuation of any of the following events of default (each individually, an "EVENT OF DEFAULTEvent of Default") shall occur with respect to any Borrower:):
(a) Such Borrower (i) any principal payable under this Agreement or any Note shall default in the payment of principal of any Loan, interest accrued thereon or fee due hereunder not be paid within five (5) days after the same becomes due and payable, whether at maturity or by acceleration or otherwise, or (ii) shall default in the payment of any other amount due hereunder after date on which the same becomes shall have first become due and payable; or
(bii) Such Borrower any interest or any other sum (except principal) payable to the Agent or either Bank under any of the Loan Documents shall default in not be paid punctually on the performance of or compliance with any term contained in Sections 9.01(a) or 9.01(b) and such default date on which the same shall have continued for more than three (3) Banking Days, or such Borrower shall default in the performance of or compliance with any term contained in Sections 8.02(d), 8.02(e), 8.02(g), 8.05, 9.02, 9.03 or 9.04; or
(c) Such Borrower shall default in the performance of or compliance with any term contained herein other than those expressly referred to in this Section 10.01first become due and payable, and such default shall not have been remedied within five failure to pay under this clause (5ii) Banking Days after written notice thereof shall have been given to such Borrower by the Operations Agent; or
(d) Such Borrower shall default in the performance of, or compliance with, any material term contained in any other written agreement with the Operations Agent or any Bank pertaining to this Agreement or such Borrower's Loans, and such default shall continue for more than one (1) day after the period earlier of grace, if any, specified therein and the date on which a principal officer of any Borrower shall not have been waived pursuant theretofirst become aware of such failure to pay or the Agent or either Bank shall have first notified any Borrower of such failure to pay; or
(ea) Any representationany Borrower shall fail to perform, comply with or observe or shall otherwise breach any one or more of its covenants, agreements or obligations contained in the last paragraph of Section 2.5.1(ii) of this Agreement, or in Sections 5.5 through 5.8, inclusive, 5.14, 5.20, 5.23 through 5.26, inclusive, and 5.29 of this Agreement; or (b) any Borrower shall fail to perform, comply with or observe or shall otherwise breach any one or more of its covenants, agreements or obligations contained in Sections 5.9, 5.22, and 5.27 of this Agreement and such failure under this clause (b) shall continue for more than five (5) days after the earlier of the date on which any Borrower shall have first become aware of such failure or breach or the Agent or either Bank shall have first notified any Borrower of such failure or breach; or (c) any Borrower shall fail to perform, comply with or observe or shall otherwise breach any one or more of its covenants, agreements or obligations contained herein (other than those specified in clauses (a) and (b) hereof) or in any other Loan Document to which such Borrower is a party and such failure under this clause (c) shall continue for more than thirty (30) days after the earlier of the date on which any Borrower shall have first become aware of such failure or breach or the Agent or either Bank shall have first notified such Borrower of such failure or breach; or
(iv) any representation or warranty certification or statement made or deemed at any time made by such or on behalf of any Borrower in this Agreement any Loan Document or in any certificate, financial written report or statement furnished to the Agent or other document delivered either Bank pursuant hereto thereto shall prove to have been false or incorrect in any material respect upon the date when made or deemed to have been made; or
(fv) Except as otherwise provided in this Section 10.01, such any Borrower or any Subsidiary of any Borrower shall default fail to pay when due, or within any applicable period of grace (not to exceed thirty (30) days), obligations for borrowed money, or fail to observe or perform any term, covenant or agreement contained in any payment due on Indebtedness agreement by which it is bound, evidencing or securing borrowed money, for borrowed money or the deferred purchase price of property, the aggregate outstanding principal amount of which is in excess of five percent (5%) of such Borrower's Total Assets, and such default shall continue for more than the period of grace, time as would permit (including the giving of appropriate notice if any, applicable thereto and shall not have been waived pursuant thereto and shall permit required) the holder of such Indebtedness to declare such Indebtedness due and payable before its stated maturity, or in the performance of or compliance with any term of any evidence of such Indebtedness holders thereof or of any mortgageobligations issued thereunder to accelerate the maturity thereof; excluding, indenture or other agreement relating theretohowever, from the operation of this clause, obligations for borrowed money, and any such default shall continue for more than agreements in connection therewith, not exceeding $500,000 in the period of grace, if any, specified therein and shall not have been waived pursuant thereto and shall permit the holder of such Indebtedness to declare such Indebtedness due and payable before its stated maturity, unless such Borrower shall be contesting such payment or obligation in good faith by appropriate proceedings promptly initiated and diligently conducted and such Borrower shall have set aside on its books such reserves, if any, with respect thereto as are required by GAAP and deemed appropriate by such Borrower and its independent public accountants, PROVIDED, that no Event of Default pursuant to paragraphs (b) or (i) of this Section 10.01 shall have occurred and be continuing as a result of such claim having been asserted in respect of such Indebtednessaggregate; or
(gvi) Such any Borrower or any Subsidiary of any Borrower shall discontinue its business (other than in connection with a permitted merger a) apply for or consolidation of such Borrower) or shall make an assignment for consent to the benefit of creditorsappointment of, or shall fail the taking of possession by, a receiver, custodian, -42- 47 trustee or liquidator of itself or of all or a substantial part of its property, (b) be generally to pay not paying its debts as such debts become due, (c) make a general assignment for the benefit of its creditors, (d) commence a voluntary case under the Federal Bankruptcy Code (as now or shall apply hereafter in effect), (e) file a petition seeking to take advantage of any other law providing for or the relief of debtors, (f) consent to any petition filed against it seeking an order for relief under the Bankruptcy Code or of any other law providing for the relief of debtors, (g) take any action under the laws of its jurisdiction of incorporation or organization similar to any of the foregoing, or (h) take any corporate action for the purpose of effecting any of the foregoing; or
(vii) a proceeding or case shall be commenced against any Borrower or any Subsidiary of any Borrower in any court seeking (a) the liquidation, reorganization, dissolution, winding up, or composition or readjustment of its debts, (b) the appointment of or taking possession by a trustee, receiver receiver, custodian, liquidator or liquidator (the like of it or other similar official) of such Borrower all or any substantial part of the property or assets of such Borrower or shall commence a case or have its assets, (c) an order for relief entered against it under the federal bankruptcy lawsBankruptcy Code, as now or hereafter constituted(d) similar relief in respect of it, or under any other applicable federal or state bankruptcy, insolvency or other similar law, or if law providing for the relief of debtors; and any action shall be taken to dissolve or liquidate such Borrower proceeding specified in (other than in connection with a permitted merger or consolidation of such Borrower); or
a) through (hd) If, within sixty hereinabove (60A) days after the commencement against such Borrower of a case under the federal bankruptcy laws, as now or hereafter constituted, or any other applicable federal or state bankruptcy, insolvency or other similar law, such case shall have been consented to or shall not have been be dismissed or all orders or proceedings thereunder affecting the operations or the business of such Borrower stayed, or if the stay of any such order or proceeding shall thereafter be set aside, or if within sixty (60) days after the entry of a decree appointing a trustee, receiver or liquidator (or other similar official) of such Borrower or any substantial part of the property of such Borrower such appointment shall not have been vacated; or
(i) A final judgment which, together with other outstanding final judgments against such Borrower, exceeds an amount in the aggregate equal to five percent (5%) of such Borrower's Total Assets (exclusive of amounts covered by available insurance) shall be rendered against such Borrower and if, within thirty (30) days after entry from the initiation thereof, such judgment or (B) shall not have been discharged be contested by such Borrower or execution thereof stayed pending appeal, such Subsidiary in good faith and with due diligence; or if, action under the laws of the jurisdiction of incorporation or organization of any Borrower or any Subsidiary of any Borrower similar to any of the foregoing shall be taken with respect to any Borrower or any Subsidiary of any Borrower and such action shall not be dismissed within thirty (30) days after from the expiration of any initiation thereof, or during such stay, thirty (30) day period such judgment Borrower or such Subsidiary shall not have been dischargedcontest the same in good faith and with due diligence; or
(jviii) Such a court shall with respect to any Borrower or any Subsidiary of any Borrower order or enter
(a) the liquidation, reorganization, dissolution, or composition or readjustment of its debts, (b) the appointment of a trustee, receiver, custodian, liquidator or the like of it or of all or any substantial part of its assets, (c) order for relief under the Bankruptcy Code, (d) similar relief in respect of it, under any law providing for the relief of debtors, or (e) similar order under the laws of the jurisdiction of incorporation or organization; or
(ix) judgments or orders for the payment of money shall be entered against any Borrower or any Subsidiary of any Borrower by any court, or warrants of attachment or execution or similar process shall be issued or levied against property of any Borrower or any Subsidiary of any Borrower, which in the aggregate exceeds $500,000 in value, and the same shall continue unsatisfied and in effect for a period of thirty (30) days without being vacated, discharged, satisfied or stayed pending appeal, provided that the total out-of-pocket cost of any bond applied in order to procure a stay of execution in any such litigation shall not exceed $50,000; or
(x) any Borrower or any member of the Controlled Group controlled group shall fail to pay when due an a material amount or amounts aggregating in excess of $500,000 which it is obligated shall have become liable to pay to the PBGC or -43- 48 to a Plan under Title IV of ERISA or to a Plan under Section 412 of the Code or Section 302 of ERISA; or a notice of intent to terminate a Plan or Plans having aggregate Unfunded Benefit Liabilities in excess of $500,000 shall be filed under Title IV of ERISA by such any Borrower or any member of the Controlled Groupcontrolled group, any plan administrator or any combination of the foregoing; or the PBGC shall institute proceedings under Title IV of ERISA to terminate or to cause a trustee to be appointed to administer any such Plan or Plans or a proceeding shall be instituted by a fiduciary of any such Plan or Plans against such any Borrower or any member of the Controlled Group to enforce Sections Section 515 or 4219(c)(5of ERISA and such proceedings shall not have been dismissed within thirty (30) of ERISAdays thereafter; or a condition shall exist by reason of which the PBGC would be entitled to obtain a decree adjudicating that any such Plan or Plans must be terminated; or
(xi) any Loan Document shall be cancelled, terminated, revoked or there rescinded otherwise than in accordance with the express prior written agreement, consent or approval of each Bank; or any action at law, suit in equity or other legal proceeding to cancel, revoke or rescind any Loan Document shall occur a complete be commenced by or partial withdrawal fromon behalf of any Borrower or any other Person (other than the Agent or any Bank) bound thereby, or by any court or any other governmental or regulatory authority or agency of competent jurisdiction; or any court or any other governmental or regulatory authority or agency of competent jurisdiction shall make a defaultdetermination that, within or shall issue a judgment, order, decree or ruling to the meaning of Section 4219(c)(5) of ERISAeffect that, with respect to, any one or more Multiemployer Plans which could cause such Borrower of the Loan Documents, or any one or more members of the Controlled Group to incur a current payment obligation obligations of any Borrower or any other Person under any one or more of the Loan Documents, are illegal, invalid or unenforceable in excess of $500,000any material respect in accordance with the terms thereof; or
(kxii) Such at any time after the date hereof, any Borrower shall cease to be an investment management company own, both legally and beneficially, less than one hundred percent (or a Portfolio thereof100%) registered under of all the Investment Company Actissued and outstanding Voting Shares of each of its Subsidiaries, which Subsidiaries are set forth in Exhibit F hereto, or such Borrower's registration under lesser percentage as such Borrower may be permitted to own pursuant to Section 5.8 of this Agreement.
6.2 Upon the Investment Company Act, or that of any Borrower Agent of such Borrower, shall lapse or be suspended; then, and in any such event, and at any time thereafter, if any Event of Default shall then be continuing with respect to such defaulting Borrower, (i) in the case occurrence of any Event of Default specified and at any time thereafter (unless such Event of Default shall theretofore have been remedied or waived), at the option of the Banks (acting through the Agent): (i) the Revolving Credit Commitment shall terminate in paragraphs (g) full, and (h) above, each of the Commitments as to such defaulting Borrower Banks shall thereupon automatically be terminated and relieved of all of its obligations to make any Revolving Loans hereunder; (ii) the unpaid principal amount of and the Notes together with accrued interest on the Loans thereon and all other Obligations shall automatically become immediately due and payable without presentment, demand, protest or other notice or formality of any kind, all of which are hereby expressly waived, ; and (iiiii) in the case of any other Event of Default specified above, either or both of the following actions may be taken: the Operations Agent may, and upon the written or telephonic (confirmed in writing) request of the Majority Banks shall, by written notice to such defaulting Borrower (A) declare the principal of and accrued interest in respect of such defaulting Borrower's Loans to be forthwith due and payable, whereupon the principal of and accrued interest in respect of such Loans shall become forthwith due and payable without presentment, demand, protest or other notice of any kind, all of which are hereby expressly waived by such Borrower, and/or (B) terminate the Commitments as to such defaulting Borrower, whereupon the Commitments each of the Banks to make Committed Credit Loans hereunder to such defaulting Borrower shall forthwith terminate without may exercise any and all rights it has under this Agreement, the Notes, the other Loan Documents or any other notice documents or agreements executed in connection with the transactions contemplated by this Agreement, or by law or equity, and proceed to protect and enforce the Agent's and each Bank's rights by any action at law, suit in equity or other appropriate proceeding, whether for specific performance or for an injunction -44- 49 against a violation of any kind and the percentages covenant contained herein or in any Loan Document or in aid of the Commitment Fee and other fees and expenses otherwise payable exercise of any power granted hereby or thereby or by such defaulting Borrower hereunder accruing from and after the date of termination shall be reallocated among the remaining Borrowers PRO RATA on the basis of the percentages set forth opposite such remaining Borrowers' names on SCHEDULE 1, as in effect at the time of such terminationlaw.
Appears in 1 contract
Events of Default; Acceleration. If any of the following events (each an "EVENT OF DEFAULT") ------------------------------- shall occur with respect to any Borroweroccur:
(a) Such the Borrower (i) shall default in the payment of fail to pay any principal of any Loan when due in accordance with the terms of this Agreement and the other Financing Documents; or the Borrower shall fail to pay any interest on any Loan, interest accrued thereon or fee due hereunder after the same becomes due and payable, whether at maturity or by acceleration or otherwise, or (ii) shall default in the payment of any other amount due hereunder payable hereunder, within five (5) days after the same any such interest or other amount becomes due in accordance with the terms of this Agreement and payablethe other Financing Documents; or
(b) Such any representation or warranty made or deemed made by the Borrower shall default or any other Loan Party herein or in the performance of any other Financing Document or compliance with any term which is contained in Sections 9.01(a) any certificate, document or 9.01(b) and financial or other statement furnished by it at any time under or in connection with this Agreement or any such default other Financing Document shall prove to have continued for more than three (3) Banking Days, been incorrect in any material respect on or such Borrower shall default in as of the performance of date made or compliance with any term contained in Sections 8.02(d), 8.02(e), 8.02(g), 8.05, 9.02, 9.03 or 9.04deemed made; or
(c) Such the failure by the Borrower or any other Loan Party to punctually perform, observe, comply with or satisfy any covenant, agreement or condition contained in (i) subsections 5.1 to 5.3 (inclusive), 5.5 to 5.7 (inclusive), 5.10, 5.11 and 6.1 to 6.12 (inclusive) of this Agreement or (ii) subsections 4.1, 5.6(a)-(d), 5.7(d) and 5.8 of each of the Security Agreements; or
(d) the Borrower or any Subsidiary shall default in the observance or performance of any other agreement contained in this Agreement or compliance with any term contained herein other Financing Document (other than those expressly referred to as provided in paragraphs (a) through (c) of this Section 10.01Section), and such default shall not have been remedied within five continue unremedied for a period of thirty (530) Banking Days days after the earlier of (i) the date on which a Responsible Officer of the Borrower first learns of such default or (ii) the date on which written notice thereof shall have been given to such the Borrower by the Operations Agent; or
(d) Such Borrower shall default in the performance of, or compliance with, any material term contained in any other written agreement with the Operations Agent or any Bank pertaining to this Agreement or such Borrower's Loans, and such default shall continue for more than the period of grace, if any, specified therein and shall not have been waived pursuant theretoLender; or
(e) Any representationthe Borrower or any Subsidiary shall fail to pay when due (after any applicable period of grace) any Indebtedness of the Borrower or such Subsidiary (other than Indebtedness comprising of the Obligations), warranty certification which together with all such other due but unpaid Indebtedness, exceeds the sum of Two Hundred Thousand and 00/100 Dollars ($200,000.00), or statement made shall fail (after any applicable period of grace) to observe or deemed made by perform any term, covenant or agreement evidencing or securing such Borrower in this Agreement Indebtedness, which, if uncured or in unwaived, permits the acceleration of such Indebtedness, or any certificate, financial statement default or other document delivered pursuant hereto event of default shall prove to have been false or incorrect in declared under any material respect when madeagreement relating to such Indebtedness; or
(f) Except as otherwise provided in this Section 10.01, such the Borrower or any other Loan Party shall default in any payment due on Indebtedness for borrowed money or the deferred purchase price of property, the aggregate outstanding principal amount of which is in excess of five percent (5%) of such Borrower's Total Assets, and such default shall continue for more than the period of grace, if any, applicable thereto and shall not have been waived pursuant thereto and shall permit the holder of such Indebtedness to declare such Indebtedness due and payable before its stated maturity, or in the performance of or compliance with any term of any evidence of such Indebtedness or of any mortgage, indenture or other agreement relating thereto, and any such default shall continue for more than the period of grace, if any, specified therein and shall not have been waived pursuant thereto and shall permit the holder of such Indebtedness to declare such Indebtedness due and payable before its stated maturity, unless such Borrower shall be contesting such payment or obligation in good faith by appropriate proceedings promptly initiated and diligently conducted and such Borrower shall have set aside on its books such reserves, if any, with respect thereto as are required by GAAP and deemed appropriate by such Borrower and its independent public accountants, PROVIDED, that no Event of Default pursuant to paragraphs (b) or (i) of this Section 10.01 shall have occurred and be continuing as a result of such claim having been asserted in respect of such Indebtedness; or
(g) Such Borrower shall discontinue its business (other than in connection with a permitted merger apply for or consolidation of such Borrower) or shall make an assignment for consent to the benefit of creditorsappointment of, or shall fail the taking of possession by, a receiver, custodian, trustee, liquidator or similar official of itself or of all or a substantial part of its property, (ii) be generally to pay not paying its debts as such debts become due, (iii) make a general assignment for the benefit of its creditors, (iv) commence a voluntary case under the United States Bankruptcy Code, as amended from time to time, (v) take any action or commence any case or proceeding under any law relating to bankruptcy, insolvency, reorganization, winding-up or composition or adjustment of debts, or any other law providing for the relief of debtors, (vi) fail to contest in a timely or appropriate manner, or acquiesce in writing to, any petition filed against it in an involuntary case under the United States Bankruptcy Code, as amended from time to time or other law, (vii) take any action under the laws of its jurisdiction of incorporation or organization similar to any of the foregoing, or (viii) take any corporate action for the purpose of effecting any of the foregoing; or
(g) a proceeding or case shall apply for be commenced against the Borrower or any other Loan Party, without the application or consent to of the Borrower or such Loan Party, in any court of competent jurisdiction, seeking (i) the liquidation, reorganization, dissolution, winding up, or composition or readjustment of its debts, (ii) the appointment of or taking possession by a trustee, receiver receiver, custodian, liquidator or liquidator (the like of it or other similar official) of such Borrower all or any substantial part of its assets, or (iii) similar relief in respect of it, under any law relating to bankruptcy, insolvency, reorganization, winding-up or composition or adjustment of debts or any other law providing for the property relief of debtors, and such proceeding or assets case shall continue undismissed, or unstayed and in effect, for a period of such Borrower sixty (60) days; or shall commence a case or have an order for relief shall be entered against it in an involuntary case under the federal bankruptcy lawsUnited States Bankruptcy Code, as now or hereafter constitutedamended from time to time, against the Borrower or any other applicable federal Loan Party; or state bankruptcy, insolvency action under the laws of the jurisdiction of incorporation or organization of the Borrower or any other Loan Party similar law, or if to any action of the foregoing shall be taken with respect to dissolve the Borrower or liquidate such Borrower (any other than Loan Party and shall continue unstayed and in connection with effect for a permitted merger or consolidation period of such Borrower); or
(h) If, within sixty (60) days after the commencement against such Borrower of a case under the federal bankruptcy laws, as now or hereafter constituted, or any other applicable federal or state bankruptcy, insolvency or other similar law, such case shall have been consented to or shall not have been dismissed or all orders or proceedings thereunder affecting the operations or the business of such Borrower stayed, or if the stay of any such order or proceeding shall thereafter be set aside, or if within sixty (60) days after the entry of a decree appointing a trustee, receiver or liquidator (or other similar official) of such Borrower or any substantial part of the property of such Borrower such appointment shall not have been vacateddays; or
(i) A final judgment which, together with other outstanding final judgments against such Borrower, exceeds an amount in the aggregate equal to five percent (5%) of such Borrower's Total Assets (exclusive of amounts covered by available insurance) shall be rendered against such Borrower and if, within thirty (30) days after entry thereof, such judgment shall not have been discharged or execution thereof stayed pending appeal, or if, within thirty (30) days after the expiration of any such stay, such judgment shall not have been discharged; or
(j) Such Borrower or any member of the Commonly Controlled Group Entity shall fail to pay when due an any amount or amounts aggregating in excess of $500,000 which that it is obligated shall have become liable to pay to the PBGC or to a Plan under Title IV of ERISA; or a notice of intent to terminate a Plan or Plans having aggregate Unfunded Liabilities , unless (A) such liability is being contested in excess of $500,000 shall be filed under Title IV of ERISA good faith by such appropriate proceedings, the Borrower or any member of such Commonly Controlled Entity, as the Controlled Groupcase may be, any plan administrator has established and is maintaining adequate reserves in accordance with GAAP and no lien shall have been filed to secure such liability or any combination of the foregoing(B) which would not have a Material Adverse Effect; or (ii) the PBGC shall institute proceedings under Title IV of ERISA to terminate or to cause a trustee to be appointed to administer any such Plan or Plans or a proceeding shall be instituted by a fiduciary of any such Plan or Plans against such Borrower or any member of the Controlled Group to enforce Sections 515 or 4219(c)(5) of ERISAPlans; or (iii) a condition shall exist by reason of which the PBGC would be entitled to obtain a decree adjudicating that any such Plan or Plans must be terminated; or there shall occur a complete or partial withdrawal from, or a default, within the meaning of Section 4219(c)(5or
(i) of ERISA, with respect to, one or more Multiemployer Plans which could cause such judgments or decrees shall be entered against the Borrower or one any of its Subsidiaries involving individually a liability of One Hundred Thousand and 00/100 Dollars ($100,000.00) (not paid or more members fully covered by insurance) or in the aggregate a liability (not paid or fully covered by insurance) of Two Hundred Thousand and 00/100 Dollars ($200,000.00) or more, and all such judgments or decrees shall not have been vacated, discharged, stayed or bonded pending appeal within thirty (30) days from the entry thereof; or
(j) service of any process upon the Lender, seeking to attach by Lien, levy, mesne, trustee or other process, any funds of the Controlled Group to incur a current payment obligation Borrower or any of its Subsidiaries on deposit with, or in excess possession or control of $500,000the Lender; or
(k) Such if any of the Financing Documents (including the Subsidiary Guaranty) (or any provision contained therein) shall be cancelled, terminated, revoked, curtailed or rescinded otherwise than in accordance with the terms thereof or with the express prior written agreement, consent or approval of the Lender, or any action at law, suit or in equity or other legal proceeding to cancel, revoke, curtail or rescind any of the Financing Documents shall be commenced by or on behalf of the Borrower or any of its officers, director or stockholders, or any Governmental Authority of competent jurisdiction shall make a determination that, or issue a judgment, order, decree or ruling to the effect that, any of the Financing Documents (including the Subsidiary Guaranty) (or any provision contained therein) is illegal, invalid or unenforceable in accordance with the terms thereof; or
(l) any of the Security Documents shall, at any time after their execution and delivery for any reason, cease to be an investment management company create a valid and perfected first priority security interest in and to all of the Collateral pledged or granted thereunder; or
(m) a material portion of the property of the Borrower and its Subsidiaries (whether or a Portfolio thereofnot Collateral) registered under the Investment Company Actis damaged by fire or other casualty, or otherwise lost or stolen, the restoration or replacement cost of which property exceeds, in the aggregate, the amount of insurance proceeds readily available for such Borrower's registration under the Investment Company Actrestoration or replacement, or that and such loss would have a Material Adverse Effect; or
(n) there shall have occurred a Change of any Borrower Agent of such Borrower, shall lapse or be suspendedControl; then, and in any such event, and at any time thereafterso long as the same may be continuing, if any Event of Default shall then be continuing the Lender may, by notice in writing to the Borrower, declare all amounts owing with respect to such defaulting Borrower, (i) in the case of any Event of Default specified in paragraphs (g) and (h) abovethis Agreement, the Commitments as Notes and the other Financing Documents to such defaulting Borrower be, and they shall thereupon automatically be terminated and the principal of and accrued interest on the Loans shall automatically become due and payable without presentmentforthwith become, demand, protest or other notice or formality of any kind, all of which are hereby expressly waived, and (ii) in the case of any other Event of Default specified above, either or both of the following actions may be taken: the Operations Agent may, and upon the written or telephonic (confirmed in writing) request of the Majority Banks shall, by written notice to such defaulting Borrower (A) declare the principal of and accrued interest in respect of such defaulting Borrower's Loans to be forthwith due and payable, whereupon the principal of and accrued interest in respect of such Loans shall become forthwith immediately due and payable without presentment, demand, protest or other notice of any kind, all of which are hereby expressly waived by the Borrower; provided that in the event of any Event of Default specified in subsection 7.1(f) or subsection 7.1(g), all such Borrower, and/or (B) terminate the Commitments as to such defaulting Borrower, whereupon the Commitments of the Banks to make Committed Credit Loans hereunder to such defaulting Borrower amounts shall forthwith terminate become immediately due and payable automatically and without any other requirement of notice of any kind and from the percentages of the Commitment Fee and other fees and expenses otherwise payable by such defaulting Borrower hereunder accruing from and after the date of termination shall be reallocated among the remaining Borrowers PRO RATA on the basis of the percentages set forth opposite such remaining Borrowers' names on SCHEDULE 1, as in effect at the time of such terminationLender.
Appears in 1 contract
Events of Default; Acceleration. If any of the following events (each an "EVENT OF DEFAULTEvents of Default" or, if notice or lapse of time or notice and lapse of time is required, then, prior to such notice and/or lapse of time, "Defaults") shall occur with respect to any Borrower:
occur: (a) Such Borrower (i) if the Company shall default in the payment of principal on any of any Loan, interest accrued thereon or fee due hereunder after the Advances when the same becomes shall become due and payable, whether at maturity or at any date fixed for payment or prepayment or by acceleration or otherwise, or declaration; (iib) if the Company shall default in the payment of any interest on the Advances, or the Facility Fee, Agent's Fee or any other amount due fee or expense payable hereunder after or under the other Loan Documents, and such Default shall continue for more than one Business Day, when the same becomes shall become due and payable; or
(bc) Such Borrower if the Company shall default in the performance of or compliance with any term contained in Sections 9.01(aany of 10.3(e), 11.1, 11.2, 11.3, 11.4, 11.5, 11.7, 11.8, 11.9, 11.10, 11.11, 11.12, 11.13, 11.14, 11.15 or 11.16 hereof; (d) or 9.01(b) and such default shall have continued for more than three (3) Banking Days, or such Borrower if the Company shall default in the performance of or compliance with any term contained in Sections 8.02(d), 8.02(e), 8.02(g), 8.05, 9.02, 9.03 or 9.04; or
(c) Such Borrower shall default in the performance of or compliance with any term contained herein this Agreement other than those expressly referred to above in this Section 10.0112, and such default shall not have been remedied within five (5) Banking Days 30 days after written notice thereof shall have been given to such Borrower the Company by the Operations Agent; or
(d) Such Borrower shall default in the performance of, or compliance with, any material term contained in any other written agreement with the Operations Agent or any Bank pertaining to this Agreement or such Borrower's Loans, and such default shall continue for more than the period of grace, if any, specified therein and shall not have been waived pursuant thereto; or
(e) Any representation, if any representation or warranty certification or statement made or deemed made by such Borrower in this Agreement the Company herein or in connection with any certificate, financial statement or other document delivered pursuant hereto of the transactions contemplated hereby shall prove to have been false or incorrect in any material respect when on the date as of which made; or
(f) Except as otherwise provided in this Section 10.01, such Borrower if the Company or any Subsidiary shall default (as principal or guarantor or other surety) in the payment of any payment due principal of, or premium, if any, or interest on Indebtedness for borrowed money any indebtedness (other than the Obligations to the Banks hereunder), or with respect to any of the deferred purchase price terms of property, the aggregate outstanding principal amount of which is in excess of five percent (5%) any evidence of such Borrower's Total Assetsindebtedness or of any agreement relating thereto, and such default shall continue for more than the period of grace, if any, applicable thereto and shall not have been waived pursuant thereto and shall permit entitle the holder of such Indebtedness indebtedness to declare accelerate the maturity thereof and the unpaid balance of any such Indebtedness due and payable before its stated maturitydefaulted indebtedness is equal to or exceeds $1,000,000 unless, or in the performance of or compliance with any term case of any evidence of such Indebtedness or of any mortgagedefault, indenture or other agreement relating thereto, and any such default shall continue for more than the period has been affirmatively waived by or on behalf of grace, if any, specified therein and shall not have been waived pursuant thereto and shall permit the holder of such Indebtedness to declare such Indebtedness due and payable before its stated maturity, unless such Borrower shall be contesting such payment or obligation in good faith by appropriate proceedings promptly initiated and diligently conducted and such Borrower shall have set aside on its books such reserves, if any, with respect thereto as are required by GAAP and deemed appropriate by such Borrower and its independent public accountants, PROVIDED, that no Event of Default pursuant to paragraphs (b) or (i) of this Section 10.01 shall have occurred and be continuing as a result of such claim having been asserted in respect of such Indebtednessindebtedness; or
(g) Such Borrower shall discontinue its business (other than in connection with a permitted merger if the Company or consolidation of such Borrower) or shall make any Subsidiary makes an assignment for the benefit of creditors, or shall fail generally to pay its debts as such debts become due, petitions or shall apply applies for or consent to the appointment of a liquidator or taking possession by a trustee, receiver or liquidator custodian (or other similar official) of such Borrower the Company or any Subsidiary, or of any substantial part of the property or assets of the Company or any Subsidiary or commences any proceeding or case relating to the Company or any Subsidiary under any bankruptcy, reorganization, arrangements, insolvency, readjustment of debt, dissolution or liquidation or similar law of any jurisdiction, now or hereafter in effect; (h) if any such Borrower petition or shall commence application is filed or any such proceeding or case is commenced against the Company or any Subsidiary and the Company or such Subsidiary indicates its approval thereof, consent thereto or acquiescence therein or an order is entered appointing any such liquidator or receiver or custodian (or similar official), or adjudicating the Company or any Subsidiary bankrupt or insolvent, or approving a case petition in any such proceeding or have an a decree or order for relief is entered against it in respect of the Company or any Subsidiary in an involuntary case under the federal any bankruptcy lawsor reorganization, arrangement, insolvency, readjustment of debt, dissolution or liquidation or similar laws of any jurisdiction as now or hereafter constituted; (i) if any order is entered in any proceeding by or against the Company, any Subsidiary decreeing or permitting the dissolution or split-up of the Company or any other applicable federal Subsidiary or state bankruptcythe winding up of its affairs; (j) if there shall remain in force, insolvency undischarged, unsatisfied and unstayed, for more than 30 days, whether or other similar lawnot consecutive, any final judgment or judgments which exceed, either individually or in the aggregate, more than $1,000,000 against the Company or any Subsidiary; (k) if any action shall be taken to dissolve or liquidate such Borrower (other than in connection with a permitted merger or consolidation of such Borrower); or
(h) If, within sixty (60) days after the commencement against such Borrower of a case under the federal bankruptcy laws, as now or hereafter constituted, governmental authority or any other applicable federal or state bankruptcy, insolvency or other similar law, such case person purporting to act under governmental authority shall have been consented taken any action to condemn, seize or shall not have been dismissed appropriate or to assume custody or control of, all orders or proceedings thereunder affecting the operations or the business of such Borrower stayed, or if the stay of any such order or proceeding shall thereafter be set aside, or if within sixty (60) days after the entry of a decree appointing a trustee, receiver or liquidator (or other similar official) of such Borrower or any substantial part of the property of the Company and its Subsidiaries taken as a whole; (l) if an Event of Default under and as defined in the Trust Credit Agreement shall occur and be continuing; (m) if the Company shall fail to obtain, renew, maintain or comply with all such Borrower such appointment government approvals as shall not have been vacated; now or hereafter be necessary or
, in the opinion of special counsel to the Banks, desirable (i) A final judgment whichfor the execution, together with other outstanding final judgments against delivery or performance by the Company of its, or the exercise by the Banks of their, rights under the Loan Documents or (ii) for the grant by the Trust of the assignments and security interests granted by the Security Documents or for the validity and enforceability or for the perfection of or the exercise by the Agent of its rights and remedies thereunder; or any such Borrower, exceeds an amount in the aggregate equal to five percent (5%) of such Borrower's Total Assets (exclusive of amounts covered by available insurance) government approval shall be rendered against such Borrower and ifrevoked, within thirty (30) days after entry thereofterminated, such judgment shall not have been discharged withdrawn, suspended, modified or execution thereof stayed pending appeal, withheld or if, within thirty (30) days after the expiration of any such stay, such judgment shall not have been discharged; or
(j) Such Borrower or any member of the Controlled Group shall fail to pay when due an amount or amounts aggregating in excess of $500,000 which it is obligated to pay to the PBGC or to a Plan under Title IV of ERISA; or a notice of intent to terminate a Plan or Plans having aggregate Unfunded Liabilities in excess of $500,000 shall be filed under Title IV of ERISA by such Borrower or any member of the Controlled Group, any plan administrator or any combination of the foregoing; or the PBGC shall institute proceedings under Title IV of ERISA to terminate or to cause a trustee to be appointed to administer any such Plan or Plans or a proceeding shall be instituted by a fiduciary of any such Plan or Plans against such Borrower or any member of the Controlled Group to enforce Sections 515 or 4219(c)(5) of ERISA; or a condition shall exist by reason of which the PBGC would be entitled to obtain a decree adjudicating that any such Plan or Plans must be terminated; or there shall occur a complete or partial withdrawal from, or a default, within the meaning of Section 4219(c)(5) of ERISA, with respect to, one or more Multiemployer Plans which could cause such Borrower or one or more members of the Controlled Group to incur a current payment obligation in excess of $500,000; or
(k) Such Borrower shall cease to be an investment management company (in full force and effect, and such revocation, termination, withdrawal, suspension, modification, withholding or a Portfolio thereof) registered cessation may adversely affect the Banks or the security provided to the Banks under the Investment Company ActLoan Documents, or any proceeding shall be commenced by or before any governmental authority for the purpose of so revoking, terminating, withdrawing, suspending, modifying or withholding any such Borrower's registration government approval and such proceeding is not dismissed within 30 days; (n) if, without the consent of the Majority Banks, the Fuel Purchase Contract or any Loan Document shall be amended, supplemented, terminated or otherwise modified or become of no force or effect or the obligations of any party thereto shall be modified, suspended, discharged or terminated (in any such case, whether by the voluntary action of any party to such Loan Document, by operation of law, or otherwise and other than by the expiration thereof in accordance with its terms), or the Company shall give any consent, waiver or approval thereunder (other than any consent, waiver or approval which cannot adversely affect the Banks or the security provided to the Banks under the Investment Company ActLoan Documents); (o) if any judicial decision, law or regulation or interpretation of any judicial decision, law or regulation shall be adopted or enforced by any court or governmental or regulatory authority (including, without limitation, the DPU or similar agency of any other state, the SEC, the Department of Energy and FERC), and as a result of such adoption or enforcement any Loan Document or any transaction contemplated thereby shall be or become, or that with the passage of a specific period of time would become, unlawful or the performance of any Borrower Agent Loan Document or any material term thereof shall be rendered unlawful or unenforceable unless within 10 days thereof the Company shall have obtained a stay of such Borroweraction, and such stay shall lapse remain in full force and effect, or be taken other action which eliminates the adverse consequence of such action; or (p) if the Company's franchise or license to distribute gas is revoked or suspended; then, then and in any such event, event (unless all Defaults and at any time thereafter, if any Event Events of Default shall then be continuing with respect to such defaulting Borrowertheretofore have been remedied) the Agent may and, (i) in the case of any Event of Default specified in paragraphs (g) and (h) above, the Commitments as to such defaulting Borrower shall thereupon automatically be terminated and the principal of and accrued interest on the Loans shall automatically become due and payable without presentment, demand, protest or other notice or formality of any kind, all of which are hereby expressly waived, and (ii) in the case of any other Event of Default specified above, either or both of the following actions may be taken: the Operations Agent may, and upon the written written, telecopied or telephonic (confirmed in writing) request of the Majority Banks shall, shall by written notice to such defaulting Borrower the Company declare: (Ai) declare the principal obligation of each Bank to make Advances to the Company to be terminated, whereupon the same shall terminate, and/or (ii) the Advances to the Company, all interest thereon and accrued interest in respect of such defaulting Borrower's Loans all other amounts payable under this Agreement to be forthwith due and payable, whereupon the principal of such Advances, all such interest and accrued interest in respect of all such Loans amounts shall become and be forthwith due and payable without presentment, demand, protest or other notice of any kindnotice, all of which are hereby expressly waived by such Borrowerthe Company. Notwithstanding the foregoing, and/or upon any Event of Default contemplated by subsections (Bg), (h), or (i) terminate the Commitments as to such defaulting Borrowerabove, whereupon the Commitments of the Banks to make Committed Credit Loans hereunder to such defaulting Borrower all amounts specified in clause (ii) above shall forthwith terminate become immediately due and payable automatically without any other requirement of notice of from the Agent or any kind and the percentages of the Commitment Fee and other fees and expenses otherwise payable by such defaulting Borrower hereunder accruing from and after the date of termination shall be reallocated among the remaining Borrowers PRO RATA on the basis of the percentages set forth opposite such remaining Borrowers' names on SCHEDULE 1, as in effect at the time of such terminationBank.
Appears in 1 contract
Events of Default; Acceleration. If any of the following events (each an "EVENT OF DEFAULT"“Events of Default” or, if the giving of notice or the lapse of time, or both, is required, then, prior to such notice or lapse of time, “Defaults”) shall occur with respect to any Borrower:
occur: (a) Such the Borrower (i) shall default in the payment of fail to pay any principal of the Loans or any Loan, interest accrued thereon or fee due hereunder after Reimbursement Obligation when the same becomes shall become due and payable, whether at the stated date of maturity or by acceleration any accelerated date of maturity or otherwise, or (ii) shall default in the payment of at any other amount date fixed for payment; (b) the Borrower shall fail to pay any interest on the Loans, any Letter of Credit Fee, the Facility Fee or other sums due hereunder after or under any of the other Loan Documents, on or -51- prior to the second day immediately succeeding the day on which the same becomes shall become due and payable, whether at the stated date of maturity or any accelerated date of maturity or at any other date fixed for payment; or
(b) Such Borrower shall default in the performance of or compliance with any term contained in Sections 9.01(a) or 9.01(b) and such default shall have continued for more than three (3) Banking Days, or such Borrower shall default in the performance of or compliance with any term contained in Sections 8.02(d), 8.02(e), 8.02(g), 8.05, 9.02, 9.03 or 9.04; or
(c) Such the Borrower or any Subsidiary of the Borrower shall default in the performance of or compliance fail to comply with any term of its covenants contained herein other than those expressly referred in any of §§6.9, 6.10, 6.12, 6.15 through 6.18, inclusive, §7 or §8; (d) the Borrower shall fail to perform any term, covenant or agreement contained in this Section 10.01, and such default shall not have been remedied within §6.4 for five (5) Banking Days days after written notice thereof of such failure shall have been given to such the Borrower by the Operations Administrative Agent; or
(d) Such , or the Borrower shall default in the performance offail to perform any other term, covenant or compliance with, any material term agreement contained herein or in any of the other Loan Documents (other than those specified elsewhere in this §11) for thirty (30) days after written agreement with notice of such failure shall have been given to the Operations Borrower by the Administrative Agent or any Bank pertaining to this Agreement or such Borrower's Loans, and such default shall continue for more than the period of graceor, if anysuch performance is not possible within such thirty (30) day period, specified therein the Borrower shall fail to undertake such performance within such thirty (30) day period and shall not have been waived pursuant theretothereafter to diligently and in good faith pursue the completion of such performance; or
(e) Any representation, any representation or warranty certification of the Borrower or statement made or deemed made by such Borrower any of its Subsidiaries in this Agreement or any of the other Loan Documents or in any certificate, financial statement or other document or instrument delivered pursuant hereto to or in connection with this Agreement shall prove to have been false or incorrect in any material respect upon the date when made; or
(f) Except as otherwise provided in this Section 10.01the Borrower or any of its Subsidiaries shall (i) fail to pay at maturity, such Borrower shall default in or within any payment due on Indebtedness for borrowed money or the deferred purchase price of property, the aggregate outstanding principal amount of which is in excess of five percent (5%) of such Borrower's Total Assets, and such default shall continue for more than the applicable period of grace, if anyany obligations for borrowed money in an aggregate amount equal to or greater than 2% of the Consolidated Capitalization of the Borrower, applicable thereto and shall not have been waived pursuant thereto and shall or (ii) fail to observe or perform any term, covenant or agreement relating to or contained in any instrument or agreement evidencing or securing any obligations for borrowed money which would permit the holder holders thereof to accelerate such indebtedness or results in the acceleration (whether by declaration or automatically) of such Indebtedness indebtedness, in either case, in an aggregate amount equal to declare such Indebtedness due and payable before its stated maturity, or in greater than 2% of the performance Consolidated Capitalization of or compliance with any term of any evidence of such Indebtedness or of any mortgage, indenture or other agreement relating thereto, and any such default shall continue for more than the period of grace, if any, specified therein and shall not have been waived pursuant thereto and shall permit the holder of such Indebtedness to declare such Indebtedness due and payable before its stated maturity, unless such Borrower shall be contesting such payment or obligation in good faith by appropriate proceedings promptly initiated and diligently conducted and such Borrower shall have set aside on its books such reserves, if any, with respect thereto as are required by GAAP and deemed appropriate by such Borrower and its independent public accountants, PROVIDED, that no Event of Default pursuant to paragraphs (b) or (i) of this Section 10.01 shall have occurred and be continuing as a result of such claim having been asserted in respect of such IndebtednessBorrower; or
(g) Such the Borrower shall discontinue or any of its business (other than in connection with a permitted merger or consolidation of such Borrower) or Material Subsidiaries shall make an assignment for the benefit of creditors, or shall admit in writing its inability to pay or generally fail generally to pay its debts as such debts they mature or become due, or shall petition or apply for or consent to the appointment of or taking possession by a trustee, receiver or liquidator (trustee or other similar official) custodian, liquidator or receiver of such the Borrower or any of its Material Subsidiaries or of any substantial part of the property or assets of such the Borrower or any of its Material Subsidiaries or shall commence a any case or have an other proceeding relating to the Borrower or any of its Material Subsidiaries under any bankruptcy, reorganization, arrangement, insolvency, readjustment of debt, dissolution or liquidation or similar law of any jurisdiction, now or hereafter in effect, or shall take any action to authorize or in furtherance of any of the foregoing, or, if any such petition or application shall be filed or any such case or other proceeding shall be commenced against the Borrower or any of its Material Subsidiaries, the Borrower or any of its Material Subsidiaries shall indicate its approval thereof, consent thereto or acquiescence therein; (h) a decree or order is entered appointing any such trustee, custodian, liquidator or receiver or adjudicating the Borrower or any of its Material Subsidiaries bankrupt or insolvent, or approving a petition in any such case or other proceeding, or a decree or order for relief entered against it under the federal bankruptcy laws, as now or hereafter constituted, or any other applicable federal or state bankruptcy, insolvency or other similar law, or if any action shall be taken to dissolve or liquidate such Borrower (other than in connection with a permitted merger or consolidation of such Borrower); or
(h) If, within sixty (60) days after the commencement against such Borrower of a case under the federal bankruptcy laws, as now or hereafter constituted, or any other applicable federal or state bankruptcy, insolvency or other similar law, such case shall have been consented to or shall not have been dismissed or all orders or proceedings thereunder affecting the operations or the business of such Borrower stayed, or if the stay of any such order or proceeding shall thereafter be set aside, or if within sixty (60) days after the entry of a decree appointing a trustee, receiver or liquidator (or other similar official) of such Borrower or any substantial part of the property of such Borrower such appointment shall not have been vacated; or
(i) A final judgment which, together with other outstanding final judgments against such Borrower, exceeds an amount in the aggregate equal to five percent (5%) of such Borrower's Total Assets (exclusive of amounts covered by available insurance) shall be rendered against such Borrower and if, within thirty (30) days after entry thereof, such judgment shall not have been discharged or execution thereof stayed pending appeal, or if, within thirty (30) days after the expiration of any such stay, such judgment shall not have been discharged; or
(j) Such Borrower or any member of the Controlled Group shall fail to pay when due an amount or amounts aggregating in excess of $500,000 which it is obligated to pay to the PBGC or to a Plan under Title IV of ERISA; or a notice of intent to terminate a Plan or Plans having aggregate Unfunded Liabilities in excess of $500,000 shall be filed under Title IV of ERISA by such Borrower or any member of the Controlled Group, any plan administrator or any combination of the foregoing; or the PBGC shall institute proceedings under Title IV of ERISA to terminate or to cause a trustee to be appointed to administer any such Plan or Plans or a proceeding shall be instituted by a fiduciary of any such Plan or Plans against such Borrower or any member of the Controlled Group to enforce Sections 515 or 4219(c)(5) of ERISA; or a condition shall exist by reason of which the PBGC would be entitled to obtain a decree adjudicating that any such Plan or Plans must be terminated; or there shall occur a complete or partial withdrawal from, or a default, within the meaning of Section 4219(c)(5) of ERISA, with respect to, one or more Multiemployer Plans which could cause such Borrower or one or more members of the Controlled Group to incur a current payment obligation in excess of $500,000; or
(k) Such Borrower shall cease to be an investment management company (or a Portfolio thereof) registered under the Investment Company Act, or such Borrower's registration under the Investment Company Act, or that of any Borrower Agent of such Borrower, shall lapse or be suspended; then, and in any such event, and at any time thereafter, if any Event of Default shall then be continuing with respect to such defaulting Borrower, (i) in the case of any Event of Default specified in paragraphs (g) and (h) above, the Commitments as to such defaulting Borrower shall thereupon automatically be terminated and the principal of and accrued interest on the Loans shall automatically become due and payable without presentment, demand, protest or other notice or formality of any kind, all of which are hereby expressly waived, and (ii) in the case of any other Event of Default specified above, either or both of the following actions may be taken: the Operations Agent may, and upon the written or telephonic (confirmed in writing) request of the Majority Banks shall, by written notice to such defaulting Borrower (A) declare the principal of and accrued interest in respect of such defaulting Borrower's Loans to be forthwith due and payable, whereupon the principal of and accrued interest in respect of such Loans shall become forthwith due and payable without presentment, demand, protest or other notice of any kind, all of which are hereby expressly waived by such Borrower, and/or (B) terminate the Commitments as to such defaulting Borrower, whereupon the Commitments of the Banks to make Committed Credit Loans hereunder to such defaulting Borrower shall forthwith terminate without any other notice of any kind and the percentages of the Commitment Fee and other fees and expenses otherwise payable by such defaulting Borrower hereunder accruing from and after the date of termination shall be reallocated among the remaining Borrowers PRO RATA on the basis of the percentages set forth opposite such remaining Borrowers' names on SCHEDULE 1, as in effect at the time of such termination.is
Appears in 1 contract
Sources: Revolving Credit Agreement (United States Cellular Corp)
Events of Default; Acceleration. If any In case one or more of the following events Events of Default (each an "EVENT OF DEFAULT"whatever the reason for such Event of Default and whether it shall be voluntary or involuntary or be effected by operation of law or pursuant to any judgment, decree or order of any court or any order, rule or regulation of any administrative or governmental body) shall occur with respect to any Borrowerhave occurred and be continuing:
(a) Such Borrower (i) shall default in the payment of principal of (or premium, if any, on) any LoanNote when the same becomes due and payable at maturity, upon acceleration, redemption or otherwise, whether or not such payment is prohibited by the subordination provisions under Article XIV;
(b) default in the payment of interest accrued thereon or fee due hereunder after on any Note when the same becomes due and payable, and such default continues for a period of 30 days, whether at maturity or not such payment is prohibited by acceleration or otherwise, or the subordination provisions under Article XIV;
(iic) shall default in the payment performance or breach of any other amount due hereunder after Article XI or the same becomes due and payable; orfailure to make or consummate an Offer to Purchase in accordance with the Section 4.11 or Section 4.13, whether or not such Offer to Purchase is prohibited by the subordination provisions described in Article XIV;
(bd) Such Borrower shall default in the performance of or compliance with breach of any term contained other covenant or agreement of the Company in Sections 9.01(a) this Indenture or 9.01(b) and such under the Notes (other than a default shall have continued for more than three specified in clause (3) Banking Days, or such Borrower shall default in the performance of or compliance with any term contained in Sections 8.02(da), 8.02(e), 8.02(g), 8.05, 9.02, 9.03 or 9.04; or
(c) Such Borrower shall default in the performance of or compliance with any term contained herein other than those expressly referred to in this Section 10.01, and such default shall not have been remedied within five (5) Banking Days after written notice thereof shall have been given to such Borrower by the Operations Agent; or
(d) Such Borrower shall default in the performance of, or compliance with, any material term contained in any other written agreement with the Operations Agent or any Bank pertaining to this Agreement or such Borrower's Loans, and such default shall continue for more than the period of grace, if any, specified therein and shall not have been waived pursuant thereto; or
(e) Any representation, warranty certification or statement made or deemed made by such Borrower in this Agreement or in any certificate, financial statement or other document delivered pursuant hereto shall prove to have been false or incorrect in any material respect when made; or
(f) Except as otherwise provided in this Section 10.01, such Borrower shall default in any payment due on Indebtedness for borrowed money or the deferred purchase price of property, the aggregate outstanding principal amount of which is in excess of five percent (5%) of such Borrower's Total Assets, and such default shall continue for more than the period of grace, if any, applicable thereto and shall not have been waived pursuant thereto and shall permit the holder of such Indebtedness to declare such Indebtedness due and payable before its stated maturity, or in the performance of or compliance with any term of any evidence of such Indebtedness or of any mortgage, indenture or other agreement relating thereto, and any such default shall continue for more than the period of grace, if any, specified therein and shall not have been waived pursuant thereto and shall permit the holder of such Indebtedness to declare such Indebtedness due and payable before its stated maturity, unless such Borrower shall be contesting such payment or obligation in good faith by appropriate proceedings promptly initiated and diligently conducted and such Borrower shall have set aside on its books such reserves, if any, with respect thereto as are required by GAAP and deemed appropriate by such Borrower and its independent public accountants, PROVIDED, that no Event of Default pursuant to paragraphs (b) or (c) above) that continues for a period of 30 consecutive days after written notice by the Trustee or the holders of 25% or more in aggregate principal amount of the Notes;
(e) the occurrence with respect to any issue or issues of Indebtedness of the Company or any Significant Subsidiary having an outstanding principal amount of $10 million or more in the aggregate for all such issues of all such Persons, whether such Indebtedness now exists or shall hereafter be created, of:
(i) an event of this Section 10.01 shall have occurred default that has caused the holder thereof to declare such Indebtedness to be due and be continuing as a result payable prior to its Stated Maturity and such Indebtedness has not been discharged in full or such acceleration has not been rescinded or annulled within 30 days of such claim having been asserted in respect of such Indebtednessacceleration; or
(ii) the failure to make a principal payment at the final (but not any interim) fixed maturity and such defaulted payment shall not have been made, waived or extended within 30 days of such payment default;
(f) any final judgment or order (not covered by insurance) for the payment of money in excess of $10 million in the aggregate for all such final judgments or orders against all such Person (treating any deductibles, self-insurance or retention as not so covered) shall be rendered against the Company or any Significant Subsidiary and shall not be paid or discharged, and there shall be any period of 30 consecutive days following entry of the final judgment or order that causes the aggregate amount for all such final judgments or orders outstanding and not paid or discharged against all such Persons to exceed $10 million during which a stay of enforcement of such final judgment or order, by reason of a pending appeal or otherwise, shall not be in effect;
(g) Such Borrower shall discontinue its business a court having jurisdiction in the premises enters a decree or order for:
(other than i) relief in connection with a permitted merger or consolidation respect of such Borrower) or shall make an assignment for the benefit of creditors, or shall fail generally to pay its debts as such debts become due, or shall apply for or consent to the appointment of or taking possession by a trustee, receiver or liquidator (or other similar official) of such Borrower Company or any substantial part of the property or assets of such Borrower or shall commence a Significant Subsidiary in an involuntary case or have an order for relief entered against it under the federal bankruptcy laws, as now or hereafter constituted, or any other applicable federal or state bankruptcy, insolvency or other similar lawlaw now or hereafter in effect;
(ii) appointment of a receiver, liquidator, assignee, custodian, trustee, sequestrator or if similar official of the Company or any action Significant Subsidiary or for all or substantially all of the property and assets of the Company or any Significant Subsidiary; or
(iii) the winding up or liquidation of the affairs of the Company or any Significant Subsidiary and, in each case, such decree or order shall be taken to dissolve or liquidate such Borrower (other than remain unstayed and in connection with effect for a permitted merger or consolidation period of such Borrower)60 consecutive days; or
(h) If, within sixty the Company or any Significant Subsidiary:
(60i) days after the commencement against such Borrower of commences a voluntary case under the federal bankruptcy laws, as now or hereafter constituted, or any other applicable federal or state bankruptcy, insolvency or other similar law, such case shall have been consented to law now or shall not have been dismissed or all orders or proceedings thereunder affecting the operations or the business of such Borrower stayedhereafter in effect, or if the stay of any such order or proceeding shall thereafter be set aside, or if within sixty (60) days after consents to the entry of a decree appointing a trustee, receiver or liquidator (or other similar official) of such Borrower or any substantial part of the property of such Borrower such appointment shall not have been vacated; or
(i) A final judgment which, together with other outstanding final judgments against such Borrower, exceeds an amount order for relief in the aggregate equal to five percent (5%) of such Borrower's Total Assets (exclusive of amounts covered by available insurance) shall be rendered against such Borrower and if, within thirty (30) days after entry thereof, such judgment shall not have been discharged or execution thereof stayed pending appeal, or if, within thirty (30) days after the expiration of an involuntary case under any such stay, such judgment shall not have been discharged; or
(j) Such Borrower or any member of the Controlled Group shall fail to pay when due an amount or amounts aggregating in excess of $500,000 which it is obligated to pay to the PBGC or to a Plan under Title IV of ERISA; or a notice of intent to terminate a Plan or Plans having aggregate Unfunded Liabilities in excess of $500,000 shall be filed under Title IV of ERISA by such Borrower or any member of the Controlled Group, any plan administrator or any combination of the foregoing; or the PBGC shall institute proceedings under Title IV of ERISA to terminate or to cause a trustee to be appointed to administer any such Plan or Plans or a proceeding shall be instituted by a fiduciary of any such Plan or Plans against such Borrower or any member of the Controlled Group to enforce Sections 515 or 4219(c)(5) of ERISA; or a condition shall exist by reason of which the PBGC would be entitled to obtain a decree adjudicating that any such Plan or Plans must be terminated; or there shall occur a complete or partial withdrawal from, or a default, within the meaning of Section 4219(c)(5) of ERISA, with respect to, one or more Multiemployer Plans which could cause such Borrower or one or more members of the Controlled Group to incur a current payment obligation in excess of $500,000; or
(k) Such Borrower shall cease to be an investment management company (or a Portfolio thereof) registered under the Investment Company Act, or such Borrower's registration under the Investment Company Act, or that of any Borrower Agent of such Borrower, shall lapse or be suspended; then, and in any such event, and at any time thereafter, if any Event of Default shall then be continuing with respect to such defaulting Borrower, (i) in the case of any Event of Default specified in paragraphs (g) and (h) above, the Commitments as to such defaulting Borrower shall thereupon automatically be terminated and the principal of and accrued interest on the Loans shall automatically become due and payable without presentment, demand, protest or other notice or formality of any kind, all of which are hereby expressly waived, and (ii) in the case of any other Event of Default specified above, either or both of the following actions may be taken: the Operations Agent may, and upon the written or telephonic (confirmed in writing) request of the Majority Banks shall, by written notice to such defaulting Borrower (A) declare the principal of and accrued interest in respect of such defaulting Borrower's Loans to be forthwith due and payable, whereupon the principal of and accrued interest in respect of such Loans shall become forthwith due and payable without presentment, demand, protest or other notice of any kind, all of which are hereby expressly waived by such Borrower, and/or (B) terminate the Commitments as to such defaulting Borrower, whereupon the Commitments of the Banks to make Committed Credit Loans hereunder to such defaulting Borrower shall forthwith terminate without any other notice of any kind and the percentages of the Commitment Fee and other fees and expenses otherwise payable by such defaulting Borrower hereunder accruing from and after the date of termination shall be reallocated among the remaining Borrowers PRO RATA on the basis of the percentages set forth opposite such remaining Borrowers' names on SCHEDULE 1, as in effect at the time of such termination.law;
Appears in 1 contract
Sources: Indenture (Agco Corp /De)
Events of Default; Acceleration. If any of the following events (each an "EVENT OF DEFAULTEvents of Default") shall occur with respect to any Borrower:occur: (
(a) Such the Borrower (i) shall default in the payment of fail to pay when due and payable any principal of or interest on the Loans or any Loan, interest accrued thereon or fee other sum due hereunder after under any of the Loan Documents when the same becomes due and payable, whether at maturity or by acceleration or otherwise, or (ii) shall default in the payment of any other amount due hereunder after the same becomes due and payabledue; or
(b) Such the Borrower shall default in the performance of fail to perform any term, covenant or compliance with any term agreement contained in Sections 9.01(a) or 9.01(b) and such default shall have continued for more than three (3) Banking Days, or such Borrower shall default in the performance of or compliance with any term contained in Sections 8.02(d), 8.02(e), 8.02(g), 8.05, 9.02, 9.03 or 9.04ss.10; or
(c) Such the Borrower or any of its Subsidiaries shall default fail to perform any other term, covenant or agreement contained in the performance of or compliance with any term contained herein other than those expressly referred to in this Section 10.01, and such default shall not have been remedied Loan Documents within five thirty (530) Banking Days days after the Bank has given written notice thereof shall have been given of such failure to such Borrower by the Operations AgentBorrower; or
(d) Such any representation or warranty of the Borrower shall default or any of its Subsidiaries in the performance of, or compliance with, any material term contained in any other written agreement with the Operations Agent or any Bank pertaining to this Agreement or such Borrower's Loans, and such default shall continue for more than the period of grace, if any, specified therein and shall not have been waived pursuant thereto; or
(e) Any representation, warranty certification or statement made or deemed made by such Borrower in this Agreement Loan Documents or in any certificate, financial statement certificate or other document delivered pursuant hereto notice given in connection therewith shall prove to have been false or incorrect misleading in any material respect when at the time made or deemed to have been made; or
(fe) Except as otherwise provided the Borrower or any of its Subsidiaries shall be in this Section 10.01, such Borrower shall default in under any payment due on agreement or agreements evidencing Indebtedness owing to the Bank or any affiliates of the Bank or any other Indebtedness for borrowed money to any other third party, or the deferred purchase price of propertyshall fail to pay such Indebtedness when due, the aggregate outstanding principal amount of which is in excess of five percent (5%) of such Borrower's Total Assets, and such default shall continue for more than the or within any applicable period of grace, if any, applicable thereto ; (f) any of the Loan Documents shall cease to be in full force and shall not have been waived pursuant thereto and shall permit effect; (g) the holder Borrower or any of such Indebtedness to declare such Indebtedness due and payable before its stated maturity, or in the performance of or compliance with any term of any evidence of such Indebtedness or of any mortgage, indenture or other agreement relating thereto, and any such default shall continue for more than the period of grace, if any, specified therein and shall not have been waived pursuant thereto and shall permit the holder of such Indebtedness to declare such Indebtedness due and payable before its stated maturity, unless such Borrower shall be contesting such payment or obligation in good faith by appropriate proceedings promptly initiated and diligently conducted and such Borrower shall have set aside on its books such reserves, if any, with respect thereto as are required by GAAP and deemed appropriate by such Borrower and its independent public accountants, PROVIDED, that no Event of Default pursuant to paragraphs (b) or Subsidiaries (i) of this Section 10.01 shall have occurred and be continuing as a result of such claim having been asserted in respect of such Indebtedness; or
(g) Such Borrower shall discontinue its business (other than in connection with a permitted merger or consolidation of such Borrower) or shall make an assignment for the benefit of creditors, (ii) shall be adjudicated bankrupt or insolvent, (iii) shall fail generally to pay its debts as such debts become dueseek the appointment of, or shall apply for or consent to be the appointment subject of or taking possession by an order appointing, a trustee, liquidator or receiver as to all or liquidator (or other similar official) of such Borrower or any substantial part of the property its assets, (iv) shall commence, approve or assets of such Borrower or shall commence a consent to, any case or have an order for relief entered against it proceeding under the federal bankruptcy laws, as now or hereafter constituted, or any other applicable federal or state bankruptcy, insolvency reorganization or other similar lawlaw and, in the case of an involuntary case or if any action shall be taken to dissolve or liquidate such Borrower (other than in connection with a permitted merger or consolidation of such Borrower); or
(h) If, within sixty (60) days after the commencement against such Borrower of a case under the federal bankruptcy laws, as now or hereafter constituted, or any other applicable federal or state bankruptcy, insolvency or other similar lawproceeding, such case shall have been consented to or shall proceeding is not have been dismissed or all orders or proceedings thereunder affecting within forty-five (45) days following the operations or the business of such Borrower stayedcommencement thereof, or if (v) shall be the stay subject of any such an order or proceeding shall thereafter be set aside, or if within sixty (60) days after the entry of a decree appointing a trustee, receiver or liquidator (or other similar official) of such Borrower or any substantial part of the property of such Borrower such appointment shall not have been vacated; orfor
(i) A there shall remain undischarged for more than thirty (30) days any final judgment whichor execution action against the Borrower or any of its Subsidiaries that, together with other outstanding final judgments claims and execution actions against such Borrowerthe Borrower and its Subsidiaries, exceeds an amount $250,000 in the aggregate equal to five percent (5%) of such Borrower's Total Assets (exclusive of amounts covered by available insurance) shall be rendered against such Borrower and if, within thirty (30) days after entry thereof, such judgment shall not have been discharged or execution thereof stayed pending appealaggregate; THEN, or if, within thirty (30) days after the expiration of any such stay, such judgment shall not have been discharged; or
(j) Such Borrower or any member of the Controlled Group shall fail to pay when due an amount or amounts aggregating in excess of $500,000 which it is obligated to pay to the PBGC or to a Plan under Title IV of ERISA; or a notice of intent to terminate a Plan or Plans having aggregate Unfunded Liabilities in excess of $500,000 shall be filed under Title IV of ERISA by such Borrower or any member of the Controlled Group, any plan administrator or any combination of the foregoing; or the PBGC shall institute proceedings under Title IV of ERISA to terminate or to cause a trustee to be appointed to administer any such Plan or Plans or a proceeding shall be instituted by a fiduciary of any such Plan or Plans against such Borrower or any member of the Controlled Group to enforce Sections 515 or 4219(c)(5) of ERISA; or a condition shall exist by reason of which the PBGC would be entitled to obtain a decree adjudicating that any such Plan or Plans must be terminated; or there shall occur a complete or partial withdrawal from, or a default, within the meaning of Section 4219(c)(5) of ERISA, with respect to, one or more Multiemployer Plans which could cause such Borrower or one or more members of the Controlled Group to incur a current payment obligation in excess of $500,000; or
(k) Such Borrower shall cease to be an investment management company (or a Portfolio thereof) registered under the Investment Company Act, or such Borrower's registration under the Investment Company Act, or that of any Borrower Agent of such Borrower, shall lapse or be suspended; then, and in any such event, and at any time thereafter, if any Event of Default shall then be continuing with respect to such defaulting Borrower, :
(i1) in In the case of any Event of Default specified in paragraphs under clause (g) and or (h) above), the Commitments as to such defaulting Borrower Revolving Credit Commitment shall thereupon automatically be terminated terminate, and the entire unpaid principal amount of the Loans, all interest accrued and accrued interest on unpaid thereon, and all other amounts payable hereunder and under the Loans other Loan Documents shall automatically become forthwith due and payable payable, without presentment, demand, protest or other notice or formality of any kind, all of which are hereby expressly waived, and (ii) in the case of any other Event of Default specified above, either or both of the following actions may be taken: the Operations Agent may, and upon the written or telephonic (confirmed in writing) request of the Majority Banks shall, by written notice to such defaulting Borrower (A) declare the principal of and accrued interest in respect of such defaulting Borrower's Loans to be forthwith due and payable, whereupon the principal of and accrued interest in respect of such Loans shall become forthwith due and payable without presentment, demand, protest or other notice of any kind, all of which are hereby expressly waived by such the Borrower; and
(2) In the case of any Event of Default other than (g) and (h), the Bank may, by written notice to the Borrower, and/or (B) terminate the Commitments as to such defaulting Borrower, whereupon Revolving Credit Commitment and/or declare the Commitments unpaid principal amount of the Banks Loans, all interest accrued and unpaid thereof, and all other amounts payable hereunder and under the other Loan Documents to make Committed Credit Loans hereunder to such defaulting Borrower shall be forthwith terminate due and payable, without any other presentment, demand, protest or further notice of any kind kind, all of which are hereby expressly waived by the Borrower. No remedy herein conferred upon the Bank is intended to be exclusive of any other remedy and the percentages of the Commitment Fee each and other fees and expenses otherwise payable by such defaulting Borrower hereunder accruing from and after the date of termination every remedy shall be reallocated among the remaining Borrowers PRO RATA on the basis of the percentages set forth opposite such remaining Borrowers' names on SCHEDULE 1cumulative and in addition to every other remedy hereunder, as now or hereafter existing at law or in effect at the time of such terminationequity or otherwise.
Appears in 1 contract
Sources: Loan Agreement (Scan Optics Inc)
Events of Default; Acceleration. If Upon the occurrence and during the continuation of any Default, the obligation of Lender to make any additional Loan shall be suspended. The occurrence of any of the following events (each each, an "EVENT OF DEFAULT"“Event of Default”) shall occur with respect terminate any obligation of Lender to make any Borroweradditional Loan; and shall, at the option of Lender (1) make all sums of interest and principal, as well as any other Obligations and amounts owing under any Loan Documents immediately due and payable without notice of default, presentment or demand for payment, protest or notice of nonpayment or dishonor or any other notices or demands and (2) give Lender the right to exercise any other right or remedy provided by contract or applicable law:
(a) Such Borrower (i) shall default in the payment of fail to pay any principal of or interest under this Agreement or any Loan, interest accrued thereon or fee due hereunder after the same becomes due and payable, whether at maturity or by acceleration or otherwiseNote, or fail to pay any fees or other charges when due under any Loan Document; provided that with respect to the first such failure, the Borrower shall have a period of five (ii5) days from the date such payment first became due in which to cure such Default before it shall default in the payment be an Event of any other amount due hereunder after the same becomes due and payable; orDefault hereunder.
(b) Such Borrower shall default An Event of Default as defined in the performance of or compliance with any term contained in Sections 9.01(a) or 9.01(b) and such default other Loan Document shall have continued for more than three (3) Banking Days, or such Borrower shall default in the performance of or compliance with any term contained in Sections 8.02(d), 8.02(e), 8.02(g), 8.05, 9.02, 9.03 or 9.04; oroccurred.
(c) Such Borrower shall default in the performance of Any representation or compliance with any term contained herein other than those expressly referred to in this Section 10.01, and such default shall not have been remedied within five (5) Banking Days after written notice thereof shall have been given to such Borrower by the Operations Agent; or
(d) Such Borrower shall default in the performance ofwarranty made, or compliance withfinancial statement, any material term contained in any other written agreement with the Operations Agent or any Bank pertaining to this Agreement or such Borrower's Loans, and such default shall continue for more than the period of grace, if any, specified therein and shall not have been waived pursuant thereto; or
(e) Any representation, warranty certification or statement made or deemed made by such Borrower in this Agreement or in any certificate, financial statement certificate or other document delivered pursuant hereto provided, by Borrower under any Loan Document shall prove to have been false or incorrect misleading in any material respect when made; ormade or deemed made herein.
(f) Except as otherwise provided in this Section 10.01, such Borrower shall default in any payment due on Indebtedness for borrowed money or the deferred purchase price of property, the aggregate outstanding principal amount of which is in excess of five percent (5%) of such Borrower's Total Assets, and such default shall continue for more than the period of grace, if any, applicable thereto and shall not have been waived pursuant thereto and shall permit the holder of such Indebtedness to declare such Indebtedness due and payable before its stated maturity, or in the performance of or compliance with any term of any evidence of such Indebtedness or of any mortgage, indenture or other agreement relating thereto, and any such default shall continue for more than the period of grace, if any, specified therein and shall not have been waived pursuant thereto and shall permit the holder of such Indebtedness to declare such Indebtedness due and payable before its stated maturity, unless such Borrower shall be contesting such payment or obligation in good faith by appropriate proceedings promptly initiated and diligently conducted and such Borrower shall have set aside on its books such reserves, if any, with respect thereto as are required by GAAP and deemed appropriate by such Borrower and its independent public accountants, PROVIDED, that no Event of Default pursuant to paragraphs (b) or (i) of this Section 10.01 shall have occurred and be continuing as a result of such claim having been asserted in respect of such Indebtedness; or
(g) Such Borrower shall discontinue fail to pay its business debts generally as they become due; or (other than in connection ii) Borrower shall commence any Insolvency Proceeding with respect to itself, an involuntary Insolvency Proceeding shall be filed against Borrower, or a permitted merger or consolidation of such Borrower) or shall make an assignment custodian, receiver, trustee, assignee for the benefit of creditors, or shall fail generally to pay its debts as such debts become due, or shall apply for or consent to the appointment of or taking possession by a trustee, receiver or liquidator (or other similar official) , shall be appointed to take possession, custody or control of the properties of Borrower, and such involuntary Insolvency Proceeding, petition or appointment is acquiesced to by Borrower or any substantial part of the property or assets of such Borrower or shall commence a case or have an order for relief entered against it under the federal bankruptcy laws, as now or hereafter constituted, or any other applicable federal or state bankruptcy, insolvency or other similar law, or if any action shall be taken to dissolve or liquidate such Borrower is not dismissed within forty five (other than in connection with a permitted merger or consolidation of such Borrower)45) days; or
(hii) Ifthe dissolution, within sixty winding up, or termination of the business or cessation of operations of Borrower (60including any transaction or series of related transactions deemed to be a liquidation, dissolution or winding up of Borrower pursuant to the provisions of Borrower’s charter documents); or (iv) days after Borrower shall take any corporate action for the commencement against such purpose of effecting, approving, or consenting to any of the foregoing.
(e) Borrower shall be in default beyond any applicable period of a case grace or cure under any other agreement involving the federal bankruptcy lawsborrowing of money, as now the purchase of property, the advance of credit or hereafter constitutedany other monetary liability of any kind to Lender or to any Person in an amount in excess of the Threshold Amount.
(f) Any governmental or regulatory authority shall take any judicial or administrative action, or any other applicable federal or state bankruptcydefined benefit pension plan maintained by Borrower shall have any unfunded liabilities, insolvency any of which, in the reasonable judgment of Lender, could reasonably be expected to have a Material Adverse Effect.
(g) Any sale, transfer or other disposition of all or substantially all of the assets of Borrower, including without limitation to any trust or similar lawentity, such case shall have been consented to occur.
(h) Any judgment(s) singly or in the aggregate in excess of the Threshold Amount shall be entered against Borrower which, if not have been dismissed fully covered by insurance, remain unsatisfied, unvacated or all orders unstayed pending appeal for ten (10) or proceedings thereunder affecting the operations or the business of such Borrower stayed, or if the stay of any such order or proceeding shall thereafter be set aside, or if within sixty (60) more days after the entry of a decree appointing a trustee, receiver or liquidator (or other similar official) of such Borrower or any substantial part of the property of such Borrower such appointment shall not have been vacated; orthereof.
(i) A final judgment whichBorrower shall fail to perform or observe any covenant contained in Sections 5.11 through 5.16 or Article 6 of this Agreement, together and, with other outstanding final judgments against such Borrowerrespect to the covenants contained in Section 5.15, exceeds an amount in if capable of being cured, the aggregate equal to five percent (5%) breach of such Borrower's Total Assets (exclusive of amounts covered by available insurance) shall be rendered against such Borrower and if, covenant is not cured within thirty (30) days after entry thereof, such judgment shall not have been discharged or execution thereof stayed pending appeal, or if, within thirty (30) 5 days after the expiration of any date on which such stay, such judgment shall not have been discharged; orbreach occurred.
(j) Such Borrower or any member of the Controlled Group shall fail to pay when due an amount perform or amounts aggregating observe any covenant contained in excess Article 5 (other than Sections 5.11 through 5.16) or elsewhere in this Agreement or any other Loan Document (other than a covenant which is dealt with specifically elsewhere in this Article 7) and, if capable of $500,000 being cured, the breach of such covenant is not cured within 30 days after the sooner to occur of Borrower’s receipt of notice of such breach from Lender or the date on which it such breach first becomes known to any officer of Borrower; provided, however that if such breach is obligated to pay not capable of being cured within such 30-day period and Borrower timely notifies Lender of such fact and Borrower diligently pursues such cure, then the cure period shall be extended to the PBGC or date requested in Borrower’s notice but in no event more than 90 days from the initial breach; provided, further, that such additional 60-day opportunity to a Plan under Title IV of ERISA; or a notice of intent to terminate a Plan or Plans having aggregate Unfunded Liabilities in excess of $500,000 cure shall be filed under Title IV of ERISA by such Borrower or any member of the Controlled Group, any plan administrator or any combination of the foregoing; or the PBGC shall institute proceedings under Title IV of ERISA to terminate or to cause a trustee to be appointed to administer any such Plan or Plans or a proceeding shall be instituted by a fiduciary of any such Plan or Plans against such Borrower or any member of the Controlled Group to enforce Sections 515 or 4219(c)(5) of ERISA; or a condition shall exist by reason of which the PBGC would be entitled to obtain a decree adjudicating that any such Plan or Plans must be terminated; or there shall occur a complete or partial withdrawal from, or a default, within the meaning of Section 4219(c)(5) of ERISA, with respect to, one or more Multiemployer Plans which could cause such Borrower or one or more members of the Controlled Group to incur a current payment obligation in excess of $500,000; or
(k) Such Borrower shall cease to be an investment management company (or a Portfolio thereof) registered under the Investment Company Act, or such Borrower's registration under the Investment Company Act, or that of any Borrower Agent of such Borrower, shall lapse or be suspended; then, and in any such event, and at any time thereafter, if any Event of Default shall then be continuing with respect to such defaulting Borrower, (i) not apply in the case of any Event failure to perform or observe any covenant which has been the subject of Default specified in paragraphs (g) a prior failure within the preceding 180 days or which is a willful and (h) above, the Commitments as to such defaulting Borrower shall thereupon automatically be terminated and the principal of and accrued interest on the Loans shall automatically become due and payable without presentment, demand, protest or other notice or formality of any kind, all of which are hereby expressly waived, and (ii) in the case of any other Event of Default specified above, either or both of the following actions may be taken: the Operations Agent may, and upon the written or telephonic (confirmed in writing) request of the Majority Banks shall, knowing breach by written notice to such defaulting Borrower (A) declare the principal of and accrued interest in respect of such defaulting Borrower's Loans to be forthwith due and payable, whereupon the principal of and accrued interest in respect of such Loans shall become forthwith due and payable without presentment, demand, protest or other notice of any kind, all of which are hereby expressly waived by such Borrower, and/or (B) terminate the Commitments as to such defaulting Borrower, whereupon the Commitments of the Banks to make Committed Credit Loans hereunder to such defaulting Borrower shall forthwith terminate without any other notice of any kind and the percentages of the Commitment Fee and other fees and expenses otherwise payable by such defaulting Borrower hereunder accruing from and after the date of termination shall be reallocated among the remaining Borrowers PRO RATA on the basis of the percentages set forth opposite such remaining Borrowers' names on SCHEDULE 1, as in effect at the time of such termination.
Appears in 1 contract
Sources: Bridge Loan and Security Agreement (Tauriga Sciences, Inc.)
Events of Default; Acceleration. If any one or more of the following events (each an herein called "EVENT OF DEFAULTEvents of Default") shall occur with respect for any reason whatsoever (and whether such occurrence shall be voluntary or involuntary or be effected by operation of law or pursuant to any Borrower:judgment, decree or order of any court or any order, rule or regulation of any administrative or governmental body):
A. default in the payment of any interest upon either Note when such interest becomes due and payable, and such default shall have continued for a period of fifteen (a15) Such Borrower (i) shall days; or
B. default in the payment of principal of any Loan(or prepayment premium, interest accrued thereon or fee due hereunder after if any, on) either Note when and as the same becomes shall become due and payable, whether at maturity or by acceleration at a date fixed for principal payment or otherwiseprepayment (including, without limitation, a principal payment or prepayment as provided in Section 6), or (ii) shall default in the payment of any other amount due hereunder after the same becomes due and payable; orby
(b) Such Borrower shall C. default in the performance or observance of any other covenant, agreement or compliance with condition contained herein, in either of the Notes, the Deed of Trust, the Mortgage, the Construction Loan Documents or the Security Agreement or any term contained in Sections 9.01(a) Event of Default under the Deed of Trust, Mortgage, or 9.01(b) Construction Disbursement Agreement or Default under the Security Agreement shall occur, and such default shall have continued for more than three a period of thirty (330) Banking Days, or such Borrower shall default in the performance of or compliance with any term contained in Sections 8.02(d), 8.02(e), 8.02(g), 8.05, 9.02, 9.03 or 9.04days; or
D. the Company or any Subsidiary shall not pay when due, whether by acceleration or otherwise, any evidence of indebtedness of the Company or such Subsidiary (c) Such Borrower shall default in the performance of or compliance with any term contained herein other than those expressly referred the Notes), or any condition or default shall exist under any such evidence of indebtedness or under any agreement under which the same may have been issued permitting such evidence of indebtedness to in this Section 10.01become or be declared due prior to the stated maturity thereof, and such default shall not have been remedied within five continued for a period of ten (510) Banking Days after written notice thereof shall have been given to such Borrower by the Operations Agentdays; or
(d) Such Borrower E. the Company or any Subsidiary shall default in file a petition seeking relief for itself under Title 11 of the performance ofUnited States Code, as now constituted or hereafter amended, or compliance withan answer consenting to, admitting the material allegations of or otherwise not controverting, or shall fail to timely controvert, a petition filed against the Company or such Subsidiary seeking relief under Title 11 of the United States Code, as now constituted or hereafter amended; or the Company or any material term contained in Subsidiary shall file such a petition or answer with respect to relief under the provisions of any other written agreement with now existing or future bankruptcy, insolvency or other similar law of the Operations Agent United States of America or any Bank pertaining to this Agreement State thereof or such Borrower's Loansof any other country or jurisdiction providing for the reorganization, and such default shall continue for more than the period winding-up or liquidation of gracecorporations or an arrangement, if anycomposition, specified therein and shall not have been waived pursuant theretoextension or adjustment with creditors; or
(e) Any representationF. a court of competent jurisdiction shall enter an order for relief which is not stayed within 60 days from the date of entry thereof against the Company or any Subsidiary under Title 11 of the United States Code, warranty certification as now constituted or statement made hereafter amended; or deemed made there shall be entered an order, judgment or decree by such Borrower operation of law or by a court having jurisdiction in this Agreement the premises which is not stayed within 60 days from the date of entry thereof adjudging the Company or in any certificateSubsidiary as bankrupt or insolvent, financial statement or ordering relief against the Company or any Subsidiary, or approving as properly filed a petition seeking relief against the Company or any Subsidiary, under the provisions of any other now existing or future bankruptcy, insolvency or other document delivered pursuant hereto shall prove to have been false similar law of the United States of America or incorrect in any material respect when made; or
(f) Except as otherwise provided in this Section 10.01, such Borrower shall default in any payment due on Indebtedness for borrowed money or the deferred purchase price of property, the aggregate outstanding principal amount of which is in excess of five percent (5%) of such Borrower's Total Assets, and such default shall continue for more than the period of grace, if any, applicable thereto and shall not have been waived pursuant thereto and shall permit the holder of such Indebtedness to declare such Indebtedness due and payable before its stated maturity, or in the performance of or compliance with any term of any evidence of such Indebtedness State thereof or of any mortgageother country or jurisdiction providing for the reorganization, indenture winding-up or other agreement relating theretoliquidation of corporations or an arrangement, and composition, extension or adjustment with creditors, or appointing a receiver,
G. the Company or any such default shall continue for more than the period of grace, if any, specified therein and shall not have been waived pursuant thereto and shall permit the holder of such Indebtedness to declare such Indebtedness due and payable before its stated maturity, unless such Borrower shall be contesting such payment or obligation in good faith by appropriate proceedings promptly initiated and diligently conducted and such Borrower shall have set aside on its books such reserves, if any, with respect thereto as are required by GAAP and deemed appropriate by such Borrower and its independent public accountants, PROVIDED, that no Event of Default pursuant to paragraphs (b) or (i) of this Section 10.01 shall have occurred and be continuing as a result of such claim having been asserted in respect of such Indebtedness; or
(g) Such Borrower shall discontinue its business (other than in connection with a permitted merger or consolidation of such Borrower) or Subsidiary shall make an a general assignment for the benefit of its creditors, ; or the Company or any Subsidiary shall fail generally to pay its debts as such debts become due, or shall apply for or consent to the appointment of or taking possession by a receiver, liquidator, assignee, sequestrator, trustee, receiver custodian or liquidator (similar official of the Company or other similar official) such Subsidiary or of such Borrower all or any substantial part of its property; or the property Company or assets of such Borrower any Subsidiary shall have admitted to its insolvency or inability to pay, or shall commence a case have failed to pay, its debts generally as such debts become due; or have an order for relief entered against it under the federal bankruptcy laws, as now or hereafter constituted, Company or any other applicable federal Subsidiary or state bankruptcy, insolvency its directors or other similar law, or if majority members shall take any action shall be taken to dissolve or liquidate the Company or such Borrower Subsidiary (other than in connection with a permitted merger or consolidation of such Borroweras contemplated by Section 8.6A); or
(h) If, within sixty (60) days after H. the commencement rendering against such Borrower the Company or any Subsidiary of a case under final non-appealable judgment, decree or order for the federal bankruptcy laws, as now or hereafter constituted, or any other applicable federal or state bankruptcy, insolvency or other similar law, such case shall have been consented to or shall not have been dismissed or all orders or proceedings thereunder affecting the operations or the business payment of such Borrower stayed, or if the stay of any such order or proceeding shall thereafter be set aside, or if within sixty (60) days after the entry of a decree appointing a trustee, receiver or liquidator (or other similar official) of such Borrower or any substantial part of the property of such Borrower such appointment shall not have been vacated; or
(i) A final judgment which, together with other outstanding final judgments against such Borrower, exceeds an amount in the aggregate equal to five percent (5%) of such Borrower's Total Assets (exclusive of amounts covered by available insurance) shall be rendered against such Borrower and if, within thirty (30) days after entry thereof, such judgment shall not have been discharged or execution thereof stayed pending appeal, or if, within thirty (30) days after the expiration of any such stay, such judgment shall not have been discharged; or
(j) Such Borrower or any member of the Controlled Group shall fail to pay when due an amount or amounts aggregating money in excess of $500,000 which it is obligated to pay to 100,000 and the PBGC continuance of such judgment, decree or to order unsatisfied and in effect for any period of 60 consecutive days without a Plan under Title IV stay of execution; or
I. the Company or any Subsidiary shall (1) engage in any non-exempted "prohibited transaction," as defined in Sections 406 and 408 of ERISA and Section 4975 of the Internal Revenue Code of 1986, as amended, (2) incur any "accumulated funding deficiency," as defined in Section 302 of ERISA; or a notice of intent to terminate a Plan or Plans having aggregate Unfunded Liabilities , in an amount in excess of $500,000 shall be filed under Title IV of ERISA by such Borrower 10,000, whether or any member of the Controlled Groupnot waived, any plan administrator or any combination of the foregoing; or the PBGC shall institute proceedings under Title IV of ERISA to (3) terminate or to cause a trustee to be appointed to administer any such Plan or Plans or a proceeding shall be instituted by a fiduciary permit the termination of any such Plan or Plans against such Borrower or any member of the Controlled Group to enforce Sections 515 or 4219(c)(5) of ERISA; or a condition shall exist by reason of which the PBGC would be entitled to obtain a decree adjudicating that any such Plan or Plans must be terminated; or there shall occur a complete or partial withdrawal from, or a default, within the meaning of an "employee pension benefit plan," as defined in Section 4219(c)(5) 3 of ERISA, with respect to, one or more Multiemployer Plans in a manner which could cause such Borrower or one or more members result in the imposition of a Lien on any property of the Controlled Group Company or such Subsidiary pursuant to incur a current payment obligation Section 4068 of ERISA securing an amount in excess of $500,00010,000; or
J. any representation or warranty made by the Company in Section 2 hereof or in any Collateral Document or in any certificate or instrument furnished in connection therewith shall prove to have been false or misleading in any respect as of the date made; or
K. the dissolution of the Company, whether by operation of law or otherwise (k) Such Borrower other than as contemplated by Section 8.6A); then an amount equal to the Prepayment Price (based on the outstanding principal balance), computed as provided in Section 6.3 (except that, for purposes of such computation, the Prepayment Date shall cease be deemed to be an investment management company (or a Portfolio thereof) registered under the Investment Company Act, or such Borrower's registration under date upon which the Investment Company Act, or that of any Borrower Agent of such Borrower, shall lapse or be suspended; then, and in any such event, and at any time thereafter, if any Event of Default shall then be continuing have occurred), shall at the option of the Noteholder The Company hereby expressly acknowledges and agrees (i) that the prepayment premium provided for herein is reasonable, (ii) that legal counsel of the Company's own choosing has advised the Company with respect to such defaulting Borrowerprepayment premium, (iiii) that any prepayment made at a time when it is otherwise restricted under the Notes will result in material loss and damage to the case holder of any Event of Default specified in paragraphs (g) and (h) abovethe Note, requiring such holder to secure reinvestments at additional costs which might not produce the Commitments as same economic benefit to such defaulting Borrower shall thereupon automatically be terminated holder as the economic benefits under the Notes, (iv) that the foregoing prepayment premium is a reasonable estimate of such loss and the principal of and accrued interest on the Loans shall automatically become due and payable without presentment, demand, protest or other notice or formality of any kind, all of which are hereby expressly waiveddamage, and (iiv) in the case of Company shall be estopped hereafter from claiming differently as to any other Event of Default specified above, either or both of the following actions may be taken: the Operations Agent may, and upon the written or telephonic (confirmed in writing) request of the Majority Banks shall, by written notice to such defaulting Borrower (A) declare the principal of and accrued interest in respect of such defaulting Borrower's Loans foregoing. The foregoing prepayment premium is not intended to be forthwith due and payablea penalty, whereupon but instead shall serve as liquidated damages to provide you with the principal benefit of and accrued interest in respect of such Loans shall become forthwith due and payable without presentment, demand, protest or other notice of any kind, all of which are hereby expressly waived by such Borrower, and/or (B) terminate the Commitments as to such defaulting Borrower, whereupon the Commitments of the Banks to make Committed Credit Loans hereunder to such defaulting Borrower shall forthwith terminate without any other notice of any kind and the percentages of the Commitment Fee and other fees and expenses otherwise payable by such defaulting Borrower hereunder accruing from and after the date of termination shall be reallocated among the remaining Borrowers PRO RATA on the basis of the percentages set forth opposite such remaining Borrowers' names on SCHEDULE 1, as in effect at the time of such terminationyour bargain.
Appears in 1 contract
Sources: Loan Agreement (Cal Maine Foods Inc)
Events of Default; Acceleration. If any of the following events (each an "EVENT OF DEFAULTEvents of Default") shall occur with respect to any Borroweroccur:
(a) Such Borrower (i) the Borrowers shall default in the payment of fail to pay when due and payable any principal of any Loan, interest accrued thereon or fee due hereunder after the Loans when the same becomes due and payable, whether at maturity or by acceleration or otherwise, or (ii) shall default in the payment of any other amount due hereunder after the same becomes due and payable; ordue;
(b) Such Borrower the Borrowers shall default in fail to pay interest on the performance Loans, or the Borrowers shall fail to pay any Reimbursement Obligations not funded by a Revolving Credit Loan pursuant to (S)2.2(c), or any other sum due under any of or compliance with any term contained in Sections 9.01(athe Loan Documents within two (2) or 9.01(b) and such default Business Days after the date on which the same shall have continued for more than three (3) Banking Days, or such Borrower shall default in the performance of or compliance with any term contained in Sections 8.02(d), 8.02(e), 8.02(g), 8.05, 9.02, 9.03 or 9.04; orfirst become due and payable;
(c) Such Borrower either of the Guarantors or the Borrowers shall default fail to perform any term, covenant or agreement contained in the performance of or compliance with any term contained herein other than those expressly referred to in this Section 10.01(S)(S)9.1(a), 9.1(d) through (g), 9.2 and such default shall not have been remedied within five (5) Banking Days after written notice thereof shall have been given to such Borrower by the Operations Agent; or9.3;
(d) Such Borrower the Borrowers or any of their Subsidiaries shall default fail to perform any other term, covenant or agreement contained in the performance of, or compliance with, any material term contained in any other Loan Documents within fifteen (15) days after the Agent has given written agreement with notice of such failure to the Operations Agent or any Bank pertaining to this Agreement or such Borrower's Loans, and such default shall continue for more than the period of grace, if any, specified therein and shall not have been waived pursuant thereto; orBorrowers;
(e) Any representation, any representation or warranty certification of the Borrowers or statement made or deemed made by such Borrower any of their other Subsidiaries in this Agreement the Loan Documents or in any certificate, financial statement certificate or other document delivered pursuant hereto notice given in connection therewith shall prove to have been false or incorrect misleading in any material respect when at the time made or deemed to have been made; or;
(f) Except as otherwise provided the Borrowers or any of their Subsidiaries shall be in this Section 10.01default (after any applicable period of grace or cure period) under any agreement or agreements evidencing Indebtedness owing to any Bank or any affiliates of any Bank, such Borrower shall default in to the Seller, or to any payment due on Indebtedness for borrowed money or the deferred purchase price of property, the aggregate outstanding principal amount of which is other Person in excess of five percent (5%) of $500,000 in aggregate principal amount, or shall fail to pay such Borrower's Total AssetsIndebtedness when due, and such default shall continue for more than the or within any applicable period of grace, if any, applicable thereto and shall not have been waived pursuant thereto and shall permit the holder of such Indebtedness to declare such Indebtedness due and payable before its stated maturity, or in the performance of or compliance with any term of any evidence of such Indebtedness or of any mortgage, indenture or other agreement relating thereto, and any such default shall continue for more than the period of grace, if any, specified therein and shall not have been waived pursuant thereto and shall permit the holder of such Indebtedness to declare such Indebtedness due and payable before its stated maturity, unless such Borrower shall be contesting such payment or obligation in good faith by appropriate proceedings promptly initiated and diligently conducted and such Borrower shall have set aside on its books such reserves, if any, with respect thereto as are required by GAAP and deemed appropriate by such Borrower and its independent public accountants, PROVIDED, that no Event of Default pursuant to paragraphs (b) or (i) of this Section 10.01 shall have occurred and be continuing as a result of such claim having been asserted in respect of such Indebtedness; or;
(g) Such Borrower any of the Loan Documents shall discontinue its business (other cease to be in full force and effect or if any of the Loan Documents shall be canceled, terminated, revoked or rescinded or the Agent's security interests, mortgages or liens in a substantial portion of the Collateral shall cease to be perfected, or shall cease to have the priority contemplated by the Security Documents, in each case otherwise than in connection accordance with the terms thereof or with the express prior written agreement, consent or approval of the Banks, or any action at law, suit in equity or other legal proceeding to cancel, revoke or rescind any of the Loan Documents shall be commenced by or on behalf of the Borrowers or any of their Subsidiaries party thereto or any of their respective stockholders, or any court or any other governmental or regulatory authority or agency of competent jurisdiction shall make a permitted merger determination that, or consolidation issue a judgment, order, decree or ruling to the effect that, any one or more of such Borrowerthe Loan Documents is illegal, invalid or unenforceable in accordance with the terms thereof;
(h) the Parent, the Borrowers or any of their Subsidiaries (i) shall make an assignment for the benefit of creditors, (ii) shall be adjudicated bankrupt or insolvent, (iii) shall fail generally seek the appointment of, or be the subject of an order appointing, a trustee, liquidator or receiver as to all or part of its assets, (iv) shall commence, approve or consent to, any case or proceeding under any bankruptcy, reorganization or similar law and, in the case of an involuntary case or proceeding, such case or proceeding is not dismissed within forty-five (45) days following the commencement thereof, or (v) shall be the subject of an order for relief in an involuntary case under federal bankruptcy law;
(i) the Borrowers or any of their Subsidiaries shall be unable to pay its debts as such debts become due, they mature;
(j) there shall remain undischarged for more than thirty (30) days any final judgment or shall apply for or consent to execution action against the appointment of or taking possession by a trustee, receiver or liquidator (or other similar official) of such Borrower Borrowers or any substantial part of the property or assets of such Borrower or shall commence a case or have an order for relief entered against it under the federal bankruptcy laws, as now or hereafter constituted, or any other applicable federal or state bankruptcy, insolvency or other similar law, or if any action shall be taken to dissolve or liquidate such Borrower (other than in connection with a permitted merger or consolidation of such Borrower); or
(h) If, within sixty (60) days after the commencement against such Borrower of a case under the federal bankruptcy laws, as now or hereafter constituted, or any other applicable federal or state bankruptcy, insolvency or other similar law, such case shall have been consented to or shall not have been dismissed or all orders or proceedings thereunder affecting the operations or the business of such Borrower stayed, or if the stay of any such order or proceeding shall thereafter be set aside, or if within sixty (60) days after the entry of a decree appointing a trustee, receiver or liquidator (or other similar official) of such Borrower or any substantial part of the property of such Borrower such appointment shall not have been vacated; or
(i) A final judgment whichtheir Subsidiaries that, together with other outstanding final judgments claims and execution actions against such Borrower, the Borrowers and their Subsidiaries exceeds an amount $500,000 in the aggregate equal to five percent (5%) of such Borrower's Total Assets (exclusive of amounts covered by available insurance) shall be rendered against such Borrower and if, within thirty (30) days after entry thereof, such judgment shall not have been discharged or execution thereof stayed pending appeal, or if, within thirty (30) days after the expiration of any such stay, such judgment shall not have been discharged; or
(j) Such Borrower or any member of the Controlled Group shall fail to pay when due an amount or amounts aggregating in excess of $500,000 which it is obligated to pay to the PBGC or to a Plan under Title IV of ERISA; or a notice of intent to terminate a Plan or Plans having aggregate Unfunded Liabilities in excess of $500,000 shall be filed under Title IV of ERISA by such Borrower or any member of the Controlled Group, any plan administrator or any combination of the foregoing; or the PBGC shall institute proceedings under Title IV of ERISA to terminate or to cause a trustee to be appointed to administer any such Plan or Plans or a proceeding shall be instituted by a fiduciary of any such Plan or Plans against such Borrower or any member of the Controlled Group to enforce Sections 515 or 4219(c)(5) of ERISA; or a condition shall exist by reason of which the PBGC would be entitled to obtain a decree adjudicating that any such Plan or Plans must be terminated; or there shall occur a complete or partial withdrawal from, or a default, within the meaning of Section 4219(c)(5) of ERISA, with respect to, one or more Multiemployer Plans which could cause such Borrower or one or more members of the Controlled Group to incur a current payment obligation in excess of $500,000; oraggregate;
(k) Such Borrower shall cease the Parent ceases to be an investment management company own legally or beneficially 80% or more of the voting stock of the Borrowers (or, in the event the Parent contributes 100% of the capital stock of InSolutions to SalesLink, 80% or a Portfolio thereofmore of the voting stock of SalesLink) registered under or more than 51% of the Investment Company Act, or such Borrower's registration under the Investment Company Act, or that voting stock of any Borrower Agent Subsidiary of such Borrowerthe Borrowers, shall lapse and either of the Borrowers ceases to own legally or be suspendedbeneficially 100% or more of the voting stock of any Guarantor (or, in the event the Parent contributes 100% of the capital stock of InSolution to SalesLink, SalesLink ceases to own 100% of the capital stock of InSolution); then, and in any such event, and at any time thereafter, if any Event of Default shall then so long as the same may be continuing with respect to such defaulting Borrower, (i) in the case of any Event of Default specified in paragraphs (g) and (h) abovecontinuing, the Commitments as to such defaulting Borrower shall thereupon automatically be terminated and the principal of and accrued interest on the Loans shall automatically become due and payable without presentment, demand, protest or other notice or formality of any kind, all of which are hereby expressly waived, and (ii) in the case of any other Event of Default specified above, either or both of the following actions may be taken: the Operations Agent may, and upon the written or telephonic (confirmed in writing) request of the Majority Banks shall, by written notice in writing to such defaulting Borrower (A) the Borrowers declare all amounts owing with respect to this Credit Agreement, the principal of Notes and accrued interest in respect of such defaulting Borrower's Loans the other Loan Documents and all Reimbursement Obligations to be be, and they shall thereupon forthwith due and payablebecome, whereupon the principal of and accrued interest in respect of such Loans shall become forthwith immediately due and payable without presentment, demand, protest or other notice of any kind, all of which are hereby expressly waived by the Borrowers; provided that in the event of any -------- Event of Default specified in (S)(S)10.1(h) or 10.1(i), all such Borroweramounts shall become immediately due and payable automatically and without any requirement of notice from the Agent or any Bank.
(i) shall occur, and/or (B) any unused portion of the credit hereunder shall forthwith terminate the Commitments as to such defaulting Borrower, whereupon the Commitments and each of the Banks shall be relieved of all further obligations to make Committed Credit Loans to the Borrowers and the Agent shall be relieved of all further obligations to issue, extend or renew any Letter of Credit. If any other Event of Default shall have occurred and be continuing, the Agent may and, upon the request of the Majority Banks, shall, by notice to the Borrowers, terminate the unused portion of the credit hereunder, and upon such notice being given such unused portion of the credit hereunder shall terminate immediately and each of the Banks shall be relieved of all further obligations to make Loans and the Agent shall be relieved of all further obligations to issue, extend or renew any Letter of Credit. No termination of the credit hereunder shall relieve the Borrowers, the Guarantors or any other Subsidiaries of the Borrowers of any of the Obligations. In case any one or more of the Events of Default shall have occurred and be continuing, and whether or not the Banks shall have accelerated the maturity of the Loans pursuant to (S)10.1, each Bank, if owed any amount with respect to the Loans or the Reimbursement Obligations, may, with the consent of the Majority Banks but not otherwise, proceed to protect and enforce its rights by suit in equity, action at law or other appropriate proceeding, whether for the specific performance of any covenant or agreement contained in this Agreement and the other Loan Documents or any instrument pursuant to which the Obligations to such defaulting Borrower Bank are evidenced, including as permitted by applicable law the obtaining of the ex parte appointment of a receiver, and, if such amount shall forthwith terminate without have become -- ----- due, by declaration or otherwise, proceed to enforce the payment thereof or any other notice legal or equitable right of such Bank. No remedy herein conferred upon any Bank or the Agent or the holder of any kind Note or purchaser of a Letter of Credit Participation is intended to be exclusive of any other remedy and each and every remedy shall be cumulative and shall be in addition to every other remedy given hereunder or now or hereafter existing at law or in equity or by statute or any other provision of law.
(a) first, the payment of, or, as the case may be, the reimbursement of the Agent for or in respect of all reasonable costs, expenses, disbursements and losses which shall have been incurred or sustained by the Agent in connection with the collection of such monies by the Agent, for the exercise, protection or enforcement by the Agent of all or any of the rights, remedies, powers and privileges of the Agent under this Credit Agreement or any of the other Loan Documents or in respect of the Collateral and supports the provision of adequate indemnity to the Agent against all taxes or liens which by law shall have, or may have, priority over the rights of the Agent to such monies; (b) second, to all other Obligations in such order or preference as the Majority Banks may determine; provided, however that distributions in respect of such Obligations -------- ------- shall be made (i) pari passu among Obligations with respect to the Agent's fee payable under (S)6 and all other Obligations and (ii) Obligations owing to the Banks with respect to each type of Obligations such as interest, principal, fees and expenses, shall be made among the Banks pro rata; and provided, further, that the Agent may in its discretion make proper allowance to take into account any Obligations not then due and payable; (c) third, upon payment and satisfaction in full or other provisions for payment in full satisfactory to the Banks and the percentages Agent of all of the Commitment Fee Obligations, to the payment of any obligations required to be paid pursuant to (S)9-504(1)(c) of the Uniform Commercial Code of the Commonwealth of Massachusetts; and other fees and expenses otherwise payable by such defaulting Borrower hereunder accruing from and after (d) fourth, the date of termination excess, if any, shall be reallocated among returned to the remaining Borrowers PRO RATA on the basis of the percentages set forth opposite or to such remaining Borrowers' names on SCHEDULE 1, other Persons as in effect at the time of such terminationare entitled thereto.
Appears in 1 contract
Sources: Revolving Credit and Term Loan Agreement (CMG Information Services Inc)
Events of Default; Acceleration. If any of the The following events (each an "EVENT OF DEFAULT") shall occur with respect to any Borrowerconstitute Events of Default under this Loan Agreement:
(a) Such Borrower (i) shall default in The failure by the payment of Borrowers to pay any interest on and/or any principal of any Loan, interest accrued thereon Revolving Credit Note or fee any fees due hereunder after under this Loan Agreement when the same becomes due and payable, whether at maturity payable or by acceleration or otherwise, or within five (5) days thereafter; or
(ii) shall default in The failure by the payment Borrowers to reimburse PNC upon demand for any draft honored by PNC under any Letter of Credit now or hereafter issued by PNC for the account of the Borrowers; or
(iii) The failure by the Borrowers to pay any other amount due hereunder after interest on and/or any principal of the Swing Line Note when the same becomes due and payablepayable or within five (5) days thereafter; or
(biv) Such Borrower The failure by the Borrowers to pay any rent or other amounts under any Capital Lease when due or within any grace period provided therein for the payment of the same; or
(v) The failure by the Borrowers to perform or observe any of the provisions of Sections 8.2, 8.3, 8.5, 8.6, 8.7, 8.8, 8.9 or 8.10 hereof, and such default continues for thirty (30) days after written notice of such default shall have been delivered to the Borrowers; or
(vi) The failure by the Borrowers to perform or observe any of the provisions of Sections 7.9, 8.1, 8.4, 8.11, 8.12, 8.13, 8.14 or 8.15; or
(vii) The Borrowers shall default in the performance of or compliance with any term covenant, obligation or provision contained in Sections 9.01(a) or 9.01(b) and such default shall have continued for more than three this Loan Agreement (3) Banking Days, or such Borrower shall default in the performance of or compliance with any term contained in Sections 8.02(d), 8.02(e), 8.02(g), 8.05, 9.02, 9.03 or 9.04; or
(c) Such Borrower shall default in the performance of or compliance with any term contained herein other than those expressly referred to above in this Section 10.019), and any such default shall not have been remedied (a) within five (51) Banking Days thirty (30) days after written notice thereof of such default shall have been given delivered to the Borrowers or (2) where such Borrower by default would have a material adverse effect upon the Operations Agentability of the Borrowers taken as a whole to pay or perform their Indebtedness or upon the ability of the Administrative Bank to enforce the rights of the Banks under this Loan Agreement and the Loan Instruments, thirty (30) days from the date on which the Borrowers shall have other notice of such default, or (b) if such default cannot be cured within such thirty (30) day period, within sixty (60) days after written notice of such default shall have been delivered to the Borrowers, provided that the Borrowers commence to cure the particular default within such thirty (30) day period and prosecutes the cure to completion with due diligence within such sixty (60) day period; or
(dviii) Such Borrower shall default in the performance of, or compliance with, If any material term contained representation or warranty made in any other written agreement writing by or on behalf of the Borrowers herein or pursuant hereto or otherwise in connection with the Operations Agent Revolving Credit Facilities, the Swing Line Credit Facility, and/or the Letter of Credit Subfacility shall have been materially false or any Bank pertaining to this Agreement misleading or incorrect when made and the Authorized Officer of Res-Care on behalf of itself and the other Borrowers knew or should have known of the falsity, misleading nature of or incorrectness of such Borrower's Loansrepresentation or warranty when it was made, and the Borrowers fail to cause such default representation or warranty to cease to be materially false, misleading or incorrect within thirty (30) days after written notice of such materially false, misleading or incorrect representation or warranty shall continue for more than the period of grace, if any, specified therein and shall not have been waived pursuant theretodelivered to the Borrowers; or
(eix) Any representationThe failure of the Borrowers to pay any of their other Indebtedness, warranty certification or statement made or deemed made by such Borrower not otherwise referred to in this Agreement Section 9, and which in the aggregate exceeds Fifty Thousand Dollars ($50,000.00) to any one Person, when due or within any grace period afforded the Borrowers for paying the same, or the acceleration of the maturity of any such Indebtedness by the holder thereof, other than any such Indebtedness with respect to which the Borrowers are contesting in any certificategood faith the validity, financial statement or other document delivered pursuant hereto shall prove to amount and/or the Borrowers' liability therefor and for which adequate reserves have been false or incorrect established on the books of the Borrowers in any material respect when madeaccordance with GAAP; or
(fx) Except as otherwise provided in this Section 10.01, such Borrower shall default in any payment due on Indebtedness for borrowed money or If the deferred purchase price of property, the aggregate outstanding principal amount of which is in excess of five percent (5%) of such Borrower's Total Assets, and such default shall continue for more than the period of grace, if any, applicable thereto and shall not have been waived pursuant thereto and shall permit the holder of such Indebtedness to declare such Indebtedness due and payable before its stated maturity, or in the performance of or compliance with any term of any evidence of such Indebtedness or of any mortgage, indenture or other agreement relating thereto, and any such default shall continue for more than the period of grace, if any, specified therein and shall not have been waived pursuant thereto and shall permit the holder of such Indebtedness to declare such Indebtedness due and payable before its stated maturity, unless such Borrower shall be contesting such payment or obligation in good faith by appropriate proceedings promptly initiated and diligently conducted and such Borrower shall have set aside on its books such reserves, if any, with respect thereto as are required by GAAP and deemed appropriate by such Borrower and its independent public accountants, PROVIDED, that no Event of Default pursuant to paragraphs (b) or (i) of this Section 10.01 shall have occurred and be continuing as a result of such claim having been asserted in respect of such Indebtedness; or
(g) Such Borrower Borrowers shall discontinue its their businesses (except for the discontinuation of business (by a Borrower whose business is combined with that of one or more other than in connection with a permitted merger or consolidation Borrowers, whether by merger, transfer of such Borrowerassets, etc.) or shall make an assignment for the benefit of creditors, or shall fail generally to pay its their debts as such debts become due, or shall apply for or consent to the appointment of or taking possession by a trustee, receiver or liquidator (or other similar official) of such Borrower or any substantial part of the property or assets of such Borrower their property, or shall commence a case or have an order for relief entered against it under the federal bankruptcy laws, as now or hereafter constituted, or any other applicable federal or state bankruptcy, insolvency or other similar law, or if the Borrowers or the shareholders of the Borrowers shall take any action shall be taken to dissolve in furtherance of the dissolution or liquidate such Borrower (other than in connection with a permitted merger or consolidation liquidation of such Borrower)the Borrowers; or
(hxi) If, within sixty thirty (6030) days after the commencement against such Borrower the Borrowers of a case under the federal bankruptcy laws, as now or hereafter constituted, or any other applicable federal or state bankruptcy, insolvency or other similar law, such case shall have been consented to or shall not have been dismissed or all orders or proceedings thereunder affecting the operations or the business businesses of such Borrower the Borrowers shall not have been stayed, or if the stay of any such order or proceeding shall thereafter be set aside, or if within sixty (60) days after the entry of a decree appointing a trustee, receiver or liquidator (or other similar official) of such Borrower or any substantial part of the property of such Borrower the Borrowers, such appointment shall not have been vacated; or
(ixii) A If a final uninsured judgment which, together with other outstanding final judgments against such Borrower, exceeds an amount in the aggregate equal to five percent (5%) of such Borrower's Total Assets (exclusive of amounts covered by available insurance) shall be rendered against such Borrower any of the Borrowers which causes the Borrowers to be in breach of any of the covenants set forth in Sections 8.6 through 8.10 hereof and (i) if, within thirty (30) days after entry thereofprior to the availability of any execution thereon, such judgment shall not have been discharged or execution thereof shall not have been stayed pending appeal, or if, within thirty (30) days after the expiration of any such stay, such judgment shall not have been discharged, or (ii) the Borrowers shall not have established adequate reserves on their books in respect of such final uninsurable judgment or judgments; or
(jxiii) Such Borrower or any member In the event Res-Care experiences a Change in Control without the prior written consent of the Controlled Group shall fail to pay when due an amount or amounts aggregating in excess of $500,000 which it is obligated to pay to Banks. Upon the PBGC or to a Plan under Title IV of ERISA; or a notice of intent to terminate a Plan or Plans having aggregate Unfunded Liabilities in excess of $500,000 shall be filed under Title IV of ERISA by such Borrower or any member of the Controlled Group, any plan administrator or any combination of the foregoing; or the PBGC shall institute proceedings under Title IV of ERISA to terminate or to cause a trustee to be appointed to administer any such Plan or Plans or a proceeding shall be instituted by a fiduciary of any such Plan or Plans against such Borrower or any member of the Controlled Group to enforce Sections 515 or 4219(c)(5) of ERISA; or a condition shall exist by reason of which the PBGC would be entitled to obtain a decree adjudicating that any such Plan or Plans must be terminated; or there shall occur a complete or partial withdrawal from, or a default, within the meaning of Section 4219(c)(5) of ERISA, with respect to, one or more Multiemployer Plans which could cause such Borrower or one or more members of the Controlled Group to incur a current payment obligation in excess of $500,000; or
(k) Such Borrower shall cease to be an investment management company (or a Portfolio thereof) registered under the Investment Company Act, or such Borrower's registration under the Investment Company Act, or that of any Borrower Agent of such Borrower, shall lapse or be suspended; then, and in any such event, and at any time thereafter, if any Event of Default shall then be continuing with respect to such defaulting Borrower, (i) in the case occurrence of any Event of Default specified described in paragraphs clauses (gx) and or (hxi) aboveof this Section 9 with respect to the Borrowers, the Commitments as to such defaulting Borrower shall thereupon automatically be terminated unpaid principal balance of each of the Revolving Credit Notes, the Swing Line Note and the principal of and other Obligations, together with all accrued interest on the Loans thereon, shall automatically become immediately due and payable payable, without presentment, demand, protest or other notice or formality of any kind, all of which are hereby expressly waived, and (ii) in the case of any other Event of Default specified above, either or both of the following actions may be taken: the Operations Agent may, and upon the written or telephonic (confirmed in writing) request of the Majority Banks shall, by written notice to such defaulting Borrower (A) declare the principal of and accrued interest in respect of such defaulting Borrower's Loans to be forthwith due and payable, whereupon the principal of and accrued interest in respect of such Loans shall become forthwith due and payable without presentment, demand, protest or other notice requirements of any kind, all of which are hereby expressly waived by such Borrowerthe Borrowers. Upon the occurrence of any other Event of Default referred to in this Section 9, and/or (B) terminate the Commitments as Banks may at any time at their option, by written notice to such defaulting Borrowerthe Borrowers, whereupon declare the Commitments unpaid principal balance of and all accrued and unpaid interest on each of the Banks Revolving Credit Notes, the Swing Line Note and the other Obligations to make Committed Credit Loans hereunder be immediately due and payable in full to such defaulting Borrower shall forthwith terminate the Banks, as applicable, without any presentment, demand, protest or other notice requirements of any kind and kind, all of which are hereby waived by the percentages of the Commitment Fee and other fees and expenses otherwise payable by such defaulting Borrower hereunder accruing from and after the date of termination shall be reallocated among the remaining Borrowers PRO RATA on the basis of the percentages set forth opposite such remaining Borrowers' names on SCHEDULE 1, as in effect at the time of such termination.
Appears in 1 contract
Sources: Loan Agreement (Res Care Inc /Ky/)
Events of Default; Acceleration. If any of the following events (each an "EVENT OF DEFAULTEvents of Default") shall occur and be continuing for any reason whatsoever (and whether it shall be voluntary or involuntary or occur or be effected by operation of law or otherwise):
(A) the Company defaults in the payment or prepayment when due of any principal of, or prepayment charge on, any Note,
(B) the Company defaults for at least five Business Days in the payment when due of any interest on any Note,
(C) the Company defaults in the observance of any agreement contained in Sections 5.15, 5.16, 5.17, 5.18, 5.22, 5.25, 5.27, 5.30, and 5.31,
(D) the Company defaults in the observance of any other agreement or covenant in this Agreement and shall not have remedied the default within 30 days after written demand to remedy the same has been given to the Company by the holder of any Note,
(E) the Company, any Guarantor or any Subsidiary shall not pay (or otherwise satisfy on terms consistent with the terms of this Agreement) any other Debt in an aggregated principal amount exceeding $500,000 when due, or any condition shall exist permitting other Debt of the Company, any Guarantor or any Subsidiary in an aggregate principal amount exceeding $500,000 to become or be declared due prior to its stated maturity, except, however, a condition in respect of a Guarantee of the Company, any Guarantor or any Subsidiary if the Company, such Guarantor or such Subsidiary shall duly perform its obligations under such Guarantee,
(F) the Company, any Guarantor or any Subsidiary shall (1) be generally not paying its debts as they become due, (2) file, or consent by answer or otherwise to the filing against it of, a petition for relief or reorganization or arrangement or any other petition in bankruptcy, for liquidation or to take advantage of any bankruptcy or insolvency law of any jurisdiction, (3) make any assignment for the benefit of its creditors, (4) consent to the appointment of a custodian, receiver, trustee or other officer with similar powers of itself or of any substantial part of its property, (5) be adjudicated insolvent or be liquidated, or (6) take corporate action for the purpose of any of the foregoing,
(G) a court or governmental authority of competent jurisdiction shall enter an order appointing, without consent by the Company, any Guarantor or any Subsidiary, a custodian, receiver, trustee or other officer with similar powers with respect to it or with respect to any Borrower:substantial part of its property, or if an order for relief shall be entered in any case or proceeding for liquidation or reorganization or otherwise, to take advantage of any bankruptcy or insolvency law of any jurisdiction, or ordering the dissolution, winding-up or liquidation of the Company, any Guarantor or any Subsidiary, or if any petition for any such relief shall be filed against the Company, any Guarantor or any Subsidiary and such petition shall not be dismissed within 60 days,
(aH) Such Borrower (i) final judgment shall default in be rendered against the Company, any Guarantor or any Subsidiary for the payment of principal money in excess of any Loan, interest accrued thereon or fee due hereunder after the same becomes due and payable, whether at maturity or by acceleration or otherwise, or (ii) shall default in the payment of any other amount due hereunder after the same becomes due and payable; or
(b) Such Borrower shall default in the performance of or compliance with any term contained in Sections 9.01(a) or 9.01(b) and such default shall have continued for more than three (3) Banking Days, or such Borrower shall default in the performance of or compliance with any term contained in Sections 8.02(d), 8.02(e), 8.02(g), 8.05, 9.02, 9.03 or 9.04; or
(c) Such Borrower shall default in the performance of or compliance with any term contained herein other than those expressly referred to in this Section 10.01$500,000, and such default judgment shall not have been remedied be discharged or execution thereon stayed pending appeal, within five (5) Banking Days 30 days after written notice thereof entry thereof, or, in the event of such a stay, such judgment shall have been given to not be discharged within 30 days after such Borrower by the Operations Agent; orstay expires,
(dI) Such Borrower shall default in the performance of, or compliance with, any material term contained representation or warranty heretofore or hereafter made by or on behalf of the Company herein or in any certificate or other written agreement with the Operations Agent writing delivered under or any Bank pertaining pursuant to this Agreement or such Borrower's Loans, and such default shall continue for more than in connection with any provision hereof or related to the period of grace, if any, specified therein and shall not have been waived pursuant thereto; or
(e) Any representation, warranty certification or statement made or deemed made by such Borrower in this Agreement or in any certificate, financial statement or other document delivered pursuant hereto transactions contemplated hereby shall prove to have been false or incorrect or breached in any material respect when on the date as of which made; , or
(fJ) Except as otherwise provided in this Section 10.01any Guaranty shall cease, such Borrower shall default in any payment due on Indebtedness for borrowed money or the deferred purchase price of property, the aggregate outstanding principal amount of which is in excess of five percent (5%) of such Borrower's Total Assets, and such default shall continue for more than the period of grace, if any, applicable thereto and shall not have been waived pursuant thereto and shall permit the holder of such Indebtedness to declare such Indebtedness due and payable before its stated maturity, or in the performance of or compliance with any term of any evidence of such Indebtedness or of any mortgage, indenture or other agreement relating thereto, and any such default shall continue for more than the period of grace, if any, specified therein and shall not have been waived pursuant thereto and shall permit the holder of such Indebtedness to declare such Indebtedness due and payable before its stated maturity, unless such Borrower shall be contesting such payment or obligation in good faith by appropriate proceedings promptly initiated and diligently conducted and such Borrower shall have set aside on its books such reserves, if any, with respect thereto as are required by GAAP and deemed appropriate by such Borrower and its independent public accountants, PROVIDED, that no Event of Default pursuant to paragraphs (b) or (i) of this Section 10.01 shall have occurred and be continuing as a result of such claim having been asserted in respect of such Indebtedness; or
(g) Such Borrower shall discontinue its business (other than in connection accordance with a permitted merger or consolidation of such Borrower) its terms, to be in full force and effect or shall make an assignment for the benefit of creditors, or shall fail generally to pay its debts as such debts become due, or shall apply for or consent to the appointment of or taking possession be declared by a trusteecourt or governmental authority of competent jurisdiction to be void, receiver voidable or liquidator (or other similar official) of such Borrower or unenforceable against any substantial part of the property or assets of such Borrower or shall commence a case or have an order for relief entered against it under the federal bankruptcy laws, as now or hereafter constitutedGuarantor, or any other applicable federal or state bankruptcy, insolvency or other similar law, or if any action shall be taken to dissolve or liquidate such Borrower (other than in connection with a permitted merger or consolidation of such Borrower); or
(h) If, within sixty (60) days after the commencement against such Borrower of a case under the federal bankruptcy laws, as now or hereafter constituted, or any other applicable federal or state bankruptcy, insolvency or other similar law, such case shall have been consented to or shall not have been dismissed or all orders or proceedings thereunder affecting the operations Guarantor or the business of such Borrower stayed, or if the stay of Company asserts any such order or proceeding shall thereafter be set aside, or if within sixty (60) days after the entry of a decree appointing a trustee, receiver or liquidator (or other similar official) of such Borrower or any substantial part of the property of such Borrower such appointment shall not have been vacated; orforegoing in writing or before any court or governmental authority,
(i) A final judgment which, together with other outstanding final judgments against such Borrower, exceeds an amount in upon the aggregate equal to five percent (5%) of such Borrower's Total Assets (exclusive of amounts covered by available insurance) shall be rendered against such Borrower and if, within thirty (30) days after entry thereof, such judgment shall not have been discharged or execution thereof stayed pending appeal, or if, within thirty (30) days after the expiration of any such stay, such judgment shall not have been discharged; or
(j) Such Borrower or any member of the Controlled Group shall fail to pay when due an amount or amounts aggregating in excess of $500,000 which it is obligated to pay to the PBGC or to a Plan under Title IV of ERISA; or a notice of intent to terminate a Plan or Plans having aggregate Unfunded Liabilities in excess of $500,000 shall be filed under Title IV of ERISA by such Borrower or any member of the Controlled Group, any plan administrator or any combination of the foregoing; or the PBGC shall institute proceedings under Title IV of ERISA to terminate or to cause a trustee to be appointed to administer any such Plan or Plans or a proceeding shall be instituted by a fiduciary of any such Plan or Plans against such Borrower or any member of the Controlled Group to enforce Sections 515 or 4219(c)(5) of ERISA; or a condition shall exist by reason of which the PBGC would be entitled to obtain a decree adjudicating that any such Plan or Plans must be terminated; or there shall occur a complete or partial withdrawal from, or a default, within the meaning of Section 4219(c)(5) of ERISA, with respect to, one or more Multiemployer Plans which could cause such Borrower or one or more members of the Controlled Group to incur a current payment obligation in excess of $500,000; or
(k) Such Borrower shall cease to be an investment management company (or a Portfolio thereof) registered under the Investment Company Act, or such Borrower's registration under the Investment Company Act, or that of any Borrower Agent of such Borrower, shall lapse or be suspended; then, and in any such event, and at any time thereafter, if any Event of Default shall then be continuing with respect to such defaulting Borrower, (i) in the case occurrence of any Event of Default specified described in paragraphs subsection (gF) and or (hG) abovewith respect to the Company (other than such an Event of Default described in subsection (F)(1) or described in subsection (F)(6) by virtue of the reference in such clause (6) to such clause (1)), the Commitments as to such defaulting Borrower shall thereupon automatically be terminated and unpaid principal amount of the principal of and Notes, together with the accrued interest on thereon and, to the Loans extent permitted by law, an amount equal to 50% of the prepayment charge that would be payable if the Company were prepaying the Notes at the time pursuant to Section 4.2, shall automatically become immediately due and payable payable, without presentment, demand, protest or other notice or formality of any kind, all of which are hereby expressly waived, and (ii) in the case of any other Event of Default specified above, either or both of the following actions may be taken: the Operations Agent may, and upon the written or telephonic (confirmed in writing) request of the Majority Banks shall, by written notice to such defaulting Borrower (A) declare the principal of and accrued interest in respect of such defaulting Borrower's Loans to be forthwith due and payable, whereupon the principal of and accrued interest in respect of such Loans shall become forthwith due and payable without presentment, demand, protest or other notice requirements of any kind, all of which are hereby expressly waived by such Borrowerthe Company, and/or or (ii) upon occurrence of any other Event of Default, the holder or holders of at least 66-2/3% of the unpaid principal amount of the Notes at the time outstanding (subject to the last paragraph of Section 9) may, by written notice to the Company, declare all of the Notes to be, and the same shall forthwith become due and payable, together with accrued interest thereon which shall be deemed matured and, to the extent permitted by law, an amount equal to 50% of the prepayment charge that would be payable if the Company were prepaying the Notes at the time pursuant to Section 4.2, provided that, during the existence of an Event of Default described in Subsection (A) or (B) terminate with respect to any Note, the Commitments as holder of such Note may, by written notice to the Company, declare such defaulting BorrowerNote to be, whereupon and the Commitments same shall forthwith become, due and payable, together with accrued interest thereon which shall be deemed matured and, to the extent permitted by law, an amount equal to 50% of the Banks to make Committed Credit Loans hereunder to prepayment charges that would be payable if the Company were prepaying such defaulting Borrower shall forthwith terminate without any other notice of any kind and the percentages of the Commitment Fee and other fees and expenses otherwise payable by such defaulting Borrower hereunder accruing from and after the date of termination shall be reallocated among the remaining Borrowers PRO RATA on the basis of the percentages set forth opposite such remaining Borrowers' names on SCHEDULE 1, as in effect Note at the time of such terminationpursuant to Section 4.
Appears in 1 contract
Events of Default; Acceleration. If any of the following events (each an "EVENT EVENTS OF DEFAULT") shall occur with respect to any Borrower:
occur: (a) Such Borrower either of the Borrowers shall fail to pay when due and payable any principal of or interest on the Loan or any other sum due under any of the Loan Documents; (b) either of the Borrowers shall fail to perform any term, covenant or agreement contained in Section 9 hereof; (c) either of the Borrowers or the Guarantor shall fail to perform any other term, covenant or agreement contained in the Loan Documents after the Bank has given notice of such failure to the Borrowers; (d) any representation or warranty of the Borrowers or any of their Subsidiaries or of the Guarantor in the Loan Documents or in any certificate or notice given in connection therewith shall have been false or misleading in any material respect at the time made or deemed to have been made; (e) either of the Borrowers or any of their Subsidiaries or the Guarantor shall be in default under any agreement or agreements evidencing Indebtedness owing to (i) shall default in the payment Bank or any affiliates of principal of any Loan, interest accrued thereon or fee due hereunder after the same becomes due and payable, whether at maturity or by acceleration or otherwise, Bank or (ii) shall default in the payment of any other amount due hereunder after the same becomes due and payable; or
(b) Such Borrower shall default in the performance of or compliance with any term contained in Sections 9.01(a) or 9.01(b) and such default shall have continued for more than three (3) Banking Days, or such Borrower shall default in the performance of or compliance with any term contained in Sections 8.02(d), 8.02(e), 8.02(g), 8.05, 9.02, 9.03 or 9.04; or
(c) Such Borrower shall default in the performance of or compliance with any term contained herein other than those expressly referred Indebtedness to in this Section 10.01, and such default shall not have been remedied within five (5) Banking Days after written notice thereof shall have been given to such Borrower by the Operations Agent; or
(d) Such Borrower shall default in the performance of, or compliance with, any material term contained in any other written agreement with the Operations Agent or any Bank pertaining to this Agreement or such Borrower's Loans, and such default shall continue for more than the period of grace, if any, specified therein and shall not have been waived pursuant theretothird party; or
(e) Any representation, warranty certification or statement made or deemed made by such Borrower in this Agreement or in any certificate, financial statement or other document delivered pursuant hereto shall prove to have been false or incorrect in any material respect when made; or
(f) Except as otherwise provided any of the Loan Documents shall cease to be in this Section 10.01full force and effect, such Borrower shall default in (g) the Borrowers or any payment due on Indebtedness for borrowed money of their Subsidiaries or the deferred purchase price of property, the aggregate outstanding principal amount of which is in excess of five percent (5%) of such Borrower's Total Assets, and such default shall continue for more than the period of grace, if any, applicable thereto and shall not have been waived pursuant thereto and shall permit the holder of such Indebtedness to declare such Indebtedness due and payable before its stated maturity, or in the performance of or compliance with any term of any evidence of such Indebtedness or of any mortgage, indenture or other agreement relating thereto, and any such default shall continue for more than the period of grace, if any, specified therein and shall not have been waived pursuant thereto and shall permit the holder of such Indebtedness to declare such Indebtedness due and payable before its stated maturity, unless such Borrower shall be contesting such payment or obligation in good faith by appropriate proceedings promptly initiated and diligently conducted and such Borrower shall have set aside on its books such reserves, if any, with respect thereto as are required by GAAP and deemed appropriate by such Borrower and its independent public accountants, PROVIDED, that no Event of Default pursuant to paragraphs (b) or Guarantor (i) of this Section 10.01 shall have occurred and be continuing as a result of such claim having been asserted in respect of such Indebtedness; or
(g) Such Borrower shall discontinue its business (other than in connection with a permitted merger or consolidation of such Borrower) or shall make an assignment for the benefit of creditors, (ii) shall be adjudicated bankrupt or insolvent, (iii) shall fail generally to pay its debts as such debts become dueseek the appointment of, or shall apply for or consent to be the appointment of or taking possession by subject of, an order appointing, a trustee, liquidator or receiver as to all or liquidator (or other similar official) of such Borrower or any substantial part of the property its assets, (iv) shall commence, approve or assets of such Borrower or shall commence a consent to, any case or have an order for relief entered against it proceeding under the federal bankruptcy laws, as now or hereafter constituted, or any other applicable federal or state bankruptcy, insolvency reorganization or other similar lawlaw and, in the case of an involuntary case or if any action shall be taken to dissolve proceeding, such case or liquidate such Borrower (other than in connection with a permitted merger or consolidation of such Borrower); or
(h) If, proceeding is not dismissed within sixty (60) days after following the commencement against such Borrower thereof, or (v) shall be the subject of a an order for relief in an involuntary case under the federal bankruptcy laws, as now or hereafter constituted, law; (h) either of the Borrowers or any other applicable federal or state bankruptcy, insolvency or other similar law, such case shall have been consented to or shall not have been dismissed or all orders or proceedings thereunder affecting the operations of their Subsidiaries or the business of such Borrower stayed, or if the stay of any such order or proceeding Guarantor shall thereafter be set aside, or if within sixty (60) days after the entry of a decree appointing a trustee, receiver or liquidator (or other similar official) of such Borrower or any substantial part of the property of such Borrower such appointment shall not have been vacatedunable to pay their respective debts as they mature; or
(i) A there shall remain undischarged for more than thirty (30) days any final judgment whichor execution action against either of the Borrowers or any of their Subsidiaries or the Guarantor that, together with other outstanding final judgments against such Borrower, exceeds an amount in the aggregate equal to five percent (5%) of such Borrower's Total Assets (exclusive of amounts covered by available insurance) shall be rendered against such Borrower claims and if, within thirty (30) days after entry thereof, such judgment shall not have been discharged or execution thereof stayed pending appeal, or if, within thirty (30) days after the expiration of any such stay, such judgment shall not have been discharged; or
(j) Such Borrower or any member of the Controlled Group shall fail to pay when due an amount or amounts aggregating in excess of $500,000 which it is obligated to pay to the PBGC or to a Plan under Title IV of ERISA; or a notice of intent to terminate a Plan or Plans having aggregate Unfunded Liabilities in excess of $500,000 shall be filed under Title IV of ERISA by such Borrower or any member of the Controlled Group, any plan administrator or any combination of the foregoing; or the PBGC shall institute proceedings under Title IV of ERISA to terminate or to cause a trustee to be appointed to administer any such Plan or Plans or a proceeding shall be instituted by a fiduciary of any such Plan or Plans actions against such Borrower or any member such Subsidiaries or the Guarantor exceeds $50,000 in the aggregate; (j) the Guarantor shall cease to own legally or beneficially one hundred percent (100%) or more of the Controlled Group to enforce Sections 515 or 4219(c)(5) voting stock of ERISA; or Discas, Inc. on a condition shall exist by reason of which the PBGC would be entitled to obtain a decree adjudicating that any such Plan or Plans must be terminated; or there shall occur a complete or partial withdrawal fromfully diluted basis, or a default, within the meaning of Section 4219(c)(5) of ERISA, with respect to, one or more Multiemployer Plans which could cause such Borrower or one or more members of the Controlled Group to incur a current payment obligation in excess of $500,000; or
(k) Such Borrower Discas, Inc. shall cease to be own legally or beneficially sixty-eight and eight-tenths percent (68.8%) or more of the voting stock of Discas Recycled Products Corporation on a fully diluted basis, (l) the CDA Guarantee Certificate shall have terminated or (m) the Borrower shall fail to provide the Bank with (i) evidence satisfactory to the Bank that DED has made subordinated loans and grants to the Borrowers in an investment management company aggregate amount equal to or greater than $270,000 on terms and conditions satisfactory to the Bank and (ii) a fully executed copy of the DED Subordination Agreement, in each case on or a Portfolio thereof) registered under the Investment Company Actbefore July 1, 1993; THEN, or such Borrower's registration under the Investment Company Act, or that of any Borrower Agent of such Borrower, shall lapse or be suspended; then, and in any such event, and at any time thereafter, if any Event of Default shall then be continuing with respect to such defaulting Borrower, :
(i1) in In the case of any Event of Default specified in paragraphs under clause (g) and or (h) above), the Commitments as to such defaulting Borrower shall thereupon automatically be terminated entire unpaid principal amount of the Loan, all interest accrued and unpaid thereof, and all other amounts payable hereunder and under the principal of and accrued interest on the Loans other Loan Documents shall automatically become forthwith due and payable payable, without presentment, demand, protest or other notice or formality of any kind, all of which are hereby expressly waived, and (ii) in the case of any other Event of Default specified above, either or both of the following actions may be taken: the Operations Agent may, and upon the written or telephonic (confirmed in writing) request of the Majority Banks shall, by written notice to such defaulting Borrower (A) declare the principal of and accrued interest in respect of such defaulting Borrower's Loans to be forthwith due and payable, whereupon the principal of and accrued interest in respect of such Loans shall become forthwith due and payable without presentment, demand, protest or other notice of any kind, all of which are hereby expressly waived by such Borrowerthe Borrowers; and
(2) In the case of any Event of Default other than (g) and (h), and/or (B) terminate the Commitments as to such defaulting Borrower, whereupon Bank may declare the Commitments unpaid principal amount of the Banks Loan, all interest accrued and unpaid thereof, and all other amounts payable hereunder and under the other Loan Documents to make Committed Credit Loans hereunder to such defaulting Borrower shall be forthwith terminate due and payable, without any other presentment, demand, protest or further notice of any kind kind, all of which are hereby expressly waived by the Borrowers. No remedy herein conferred upon the Bank is intended to be exclusive of any other remedy and the percentages of the Commitment Fee each and other fees and expenses otherwise payable by such defaulting Borrower hereunder accruing from and after the date of termination every remedy shall be reallocated among the remaining Borrowers PRO RATA on the basis of the percentages set forth opposite such remaining Borrowers' names on SCHEDULE 1cumulative and in addition to every other remedy hereunder, as now or hereafter existing at law or in effect at the time of such terminationequity or otherwise.
Appears in 1 contract
Sources: Credit Agreement (Discas Inc)
Events of Default; Acceleration. If 6.1 Any or all of the Obligations of the Borrowers to the Agent and the Banks shall, at the option of the Banks (acting through the Agent) and notwithstanding the provisions of any instrument evidencing an Obligation, be immediately due and payable without notice or demand upon the occurrence and continuation of any of the following events of default (each individually, an "EVENT OF DEFAULT") shall occur with respect to any Borrower:“Event of Default”):
(a) Such Borrower (i) any principal payable under this Agreement or any Note or the Swing Line Note shall default in the payment of principal of any Loan, interest accrued thereon or fee due hereunder not be paid within five (5) days after the same becomes due and payable, whether at maturity or by acceleration or otherwise, or (ii) shall default in the payment of any other amount due hereunder after date on which the same becomes shall have first become due and payable; or
(bii) Such Borrower any interest or any other sum (except principal) payable to the Agent or either Bank under any of the Loan Documents shall default in not be paid punctually on the performance of or compliance with any term contained in Sections 9.01(a) or 9.01(b) and such default date on which the same shall have continued for more than three (3) Banking Days, or such Borrower shall default in the performance of or compliance with any term contained in Sections 8.02(d), 8.02(e), 8.02(g), 8.05, 9.02, 9.03 or 9.04; or
(c) Such Borrower shall default in the performance of or compliance with any term contained herein other than those expressly referred to in this Section 10.01first become due and payable, and such default shall not have been remedied within five failure to pay under this clause (5ii) Banking Days after written notice thereof shall have been given to such Borrower by the Operations Agent; or
(d) Such Borrower shall default in the performance of, or compliance with, any material term contained in any other written agreement with the Operations Agent or any Bank pertaining to this Agreement or such Borrower's Loans, and such default shall continue for more than one (1) day after the period earlier of grace, if any, specified therein and the date on which a principal officer of any Borrower shall not have been waived pursuant theretofirst become aware of such failure to pay or the Agent or either Bank shall have first notified any Borrower of such failure to pay; or
(ea) Any representationany Borrower shall fail to perform, comply with or observe or shall otherwise breach any one or more of its covenants, agreements or obligations contained in the last paragraph of Section 2.5.1(ii) of this Agreement, or in Sections 5.5 through 5.8, inclusive, 5.14, 5.20, 5.23 through 5.26, inclusive, and 5.29 of this Agreement; or (b) any Borrower shall fail to perform, comply with or observe or shall otherwise breach any one or more of its covenants, agreements or obligations contained in Sections 5.9, 5.22, and 5.27 of this Agreement and such failure under this clause (b) shall continue for more than five (5) days after the earlier of the date on which any Borrower shall have first become aware of such failure or breach or the Agent or either Bank shall have first notified any Borrower of such failure or breach; or (c) any Borrower shall fail to perform, comply with or observe or shall otherwise breach any one or more of its covenants, agreements or obligations contained herein (other than those specified in clauses (a) and (b) hereof) or in any other Loan Document to which such Borrower is a party and such failure under this clause (c) shall continue for more than thirty (30) days after the earlier of the date on which any Borrower shall have first become aware of such failure or breach or the Agent or either Bank shall have first notified such Borrower of such failure or breach; or
(iv) any representation or warranty certification or statement made or deemed at any time made by such or on behalf of any Borrower in this Agreement any Loan Document or in any certificate, financial written report or statement furnished to the Agent or other document delivered either Bank pursuant hereto thereto shall prove to have been false or incorrect in any material respect upon the date when made or deemed to have been made; or
(fv) Except as otherwise provided in this Section 10.01, such any Borrower or any Subsidiary of any Borrower shall default fail to pay when due, or within any applicable period of grace (not to exceed thirty (30) days), obligations for borrowed money, or fail to observe or perform any term, covenant or agreement contained in any payment due on Indebtedness agreement by which it is bound, evidencing or securing borrowed money, for borrowed money or the deferred purchase price of property, the aggregate outstanding principal amount of which is in excess of five percent (5%) of such Borrower's Total Assets, and such default shall continue for more than the period of grace, time as would permit (including the giving of appropriate notice if any, applicable thereto and shall not have been waived pursuant thereto and shall permit required) the holder of such Indebtedness to declare such Indebtedness due and payable before its stated maturity, or in the performance of or compliance with any term of any evidence of such Indebtedness holders thereof or of any mortgageobligations issued thereunder to accelerate the maturity thereof; excluding, indenture or other agreement relating theretohowever, from the operation of this clause, obligations for borrowed money, and any such default shall continue for more than agreements in connection therewith, not exceeding $500,000 in the period of grace, if any, specified therein and shall not have been waived pursuant thereto and shall permit the holder of such Indebtedness to declare such Indebtedness due and payable before its stated maturity, unless such Borrower shall be contesting such payment or obligation in good faith by appropriate proceedings promptly initiated and diligently conducted and such Borrower shall have set aside on its books such reserves, if any, with respect thereto as are required by GAAP and deemed appropriate by such Borrower and its independent public accountants, PROVIDED, that no Event of Default pursuant to paragraphs (b) or (i) of this Section 10.01 shall have occurred and be continuing as a result of such claim having been asserted in respect of such Indebtednessaggregate; or
(gvi) Such any Borrower or any Subsidiary of any Borrower shall discontinue its business (other than in connection with a permitted merger a) apply for or consolidation of such Borrower) or shall make an assignment for consent to the benefit of creditorsappointment of, or shall fail the taking of possession by, a receiver, custodian, trustee or liquidator of itself or of all or a substantial part of its property, (b) be generally to pay not paying its debts as such debts become due, (c) make a general assignment for the benefit of its creditors, (d) commence a voluntary case under the Federal Bankruptcy Code (as now or shall apply hereafter in effect), (e) file a petition seeking to take advantage of any other law providing for or the relief of debtors, (f) consent to any petition filed against it seeking an order for relief under the Bankruptcy Code or of any other law providing for the relief of debtors, (g) take any action under the laws of its jurisdiction of incorporation or organization similar to any of the foregoing, or (h) take any corporate action for the purpose of effecting any of the foregoing; or
(vii) a proceeding or case shall be commenced against any Borrower or any Subsidiary of any Borrower in any court seeking (a) the liquidation, reorganization, dissolution, winding up, or composition or readjustment of its debts, (b) the appointment of or taking possession by a trustee, receiver receiver, custodian, liquidator or liquidator (the like of it or other similar official) of such Borrower all or any substantial part of the property or assets of such Borrower or shall commence a case or have its assets, (c) an order for relief entered against it under the federal bankruptcy lawsBankruptcy Code, as now or hereafter constituted(d) similar relief in respect of it, or under any other applicable federal or state bankruptcy, insolvency or other similar law, or if law providing for the relief of debtors; and any action shall be taken to dissolve or liquidate such Borrower proceeding specified in (other than in connection with a permitted merger or consolidation of such Borrower); or
a) through (hd) If, within sixty hereinabove (60A) days after the commencement against such Borrower of a case under the federal bankruptcy laws, as now or hereafter constituted, or any other applicable federal or state bankruptcy, insolvency or other similar law, such case shall have been consented to or shall not have been be dismissed or all orders or proceedings thereunder affecting the operations or the business of such Borrower stayed, or if the stay of any such order or proceeding shall thereafter be set aside, or if within sixty (60) days after the entry of a decree appointing a trustee, receiver or liquidator (or other similar official) of such Borrower or any substantial part of the property of such Borrower such appointment shall not have been vacated; or
(i) A final judgment which, together with other outstanding final judgments against such Borrower, exceeds an amount in the aggregate equal to five percent (5%) of such Borrower's Total Assets (exclusive of amounts covered by available insurance) shall be rendered against such Borrower and if, within thirty (30) days after entry from the initiation thereof, such judgment or (B) shall not have been discharged be contested by such Borrower or execution thereof stayed pending appeal, such Subsidiary in good faith and with due diligence; or if, action under the laws of the jurisdiction of incorporation or organization of any Borrower or any Subsidiary of any Borrower similar to any of the foregoing shall be taken with respect to any Borrower or any Subsidiary of any Borrower and such action shall not be dismissed within thirty (30) days after from the expiration of any initiation thereof, or during such stay, thirty (30) day period such judgment Borrower or such Subsidiary shall not have been dischargedcontest the same in good faith and with due diligence; or
(jviii) Such a court shall with respect to any Borrower or any Subsidiary of any Borrower order or enter (a) the liquidation, reorganization, dissolution, or composition or readjustment of its debts, (b) the appointment of a trustee, receiver, custodian, liquidator or the like of it or of all or any substantial part of its assets, (c) order for relief under the Bankruptcy Code, (d) similar relief in respect of it, under any law providing for the relief of debtors, or (e) similar order under the laws of the jurisdiction of incorporation or organization; or
(ix) judgments or orders for the payment of money shall be entered against any Borrower or any Subsidiary of any Borrower by any court, or warrants of attachment or execution or similar process shall be issued or levied against property of any Borrower or any Subsidiary of any Borrower, which in the aggregate exceeds $500,000 in value, and the same shall continue unsatisfied and in effect for a period of thirty (30) days without being vacated, discharged, satisfied or stayed pending appeal, provided that the total out-of-pocket cost of any bond applied in order to procure a stay of execution in any such litigation shall not exceed $50,000; or
(x) any Borrower or any member of the Controlled Group controlled group shall fail to pay when due an a material amount or amounts aggregating in excess of $500,000 which it is obligated shall have become liable to pay to the PBGC or to a Plan under Title IV of ERISA or to a Plan under Section 412 of the Code or Section 302 of ERISA; or a notice of intent to terminate a Plan or Plans having aggregate Unfunded Benefit Liabilities in excess of $500,000 shall be filed under Title IV of ERISA by such any Borrower or any member of the Controlled Groupcontrolled group, any plan administrator or any combination of the foregoing; or the PBGC shall institute proceedings under Title IV of ERISA to terminate or to cause a trustee to be appointed to administer any such Plan or Plans or a proceeding shall be instituted by a fiduciary of any such Plan or Plans against such any Borrower or any member of the Controlled Group to enforce Sections Section 515 or 4219(c)(5of ERISA and such proceedings shall not have been dismissed within thirty (30) of ERISAdays thereafter; or a condition shall exist by reason of which the PBGC would be entitled to obtain a decree adjudicating that any such Plan or Plans must be terminated; or
(xi) any Loan Document shall be cancelled, terminated, revoked or there rescinded otherwise than in accordance with the express prior written agreement, consent or approval of each Bank; or any action at law, suit in equity or other legal proceeding to cancel, revoke or rescind any Loan Document shall occur a complete be commenced by or partial withdrawal fromon behalf of any Borrower or any other Person (other than the Agent or any Bank) bound thereby, or by any court or any other governmental or regulatory authority or agency of competent jurisdiction; or any court or any other governmental or regulatory authority or agency of competent jurisdiction shall make a defaultdetermination that, within or shall issue a judgment, order, decree or ruling to the meaning of Section 4219(c)(5) of ERISAeffect that, with respect to, any one or more Multiemployer Plans which could cause such Borrower of the Loan Documents, or any one or more members of the Controlled Group to incur a current payment obligation obligations of any Borrower or any other Person under any one or more of the Loan Documents, are illegal, invalid or unenforceable in excess of $500,000any material respect in accordance with the terms thereof; or
(kxii) Such at any time after the date hereof, any Borrower shall cease to be an investment management company own, both legally and beneficially, less than one hundred percent (or a Portfolio thereof100%) registered under of all the Investment Company Actissued and outstanding Voting Shares of each of its Subsidiaries, which Subsidiaries are set forth in Exhibit F hereto, or such Borrower's registration under lesser percentage as such Borrower may be permitted to own pursuant to Section 5.8 of this Agreement.
6.2 Upon the Investment Company Act, or that of any Borrower Agent of such Borrower, shall lapse or be suspended; then, and in any such event, and at any time thereafter, if any Event of Default shall then be continuing with respect to such defaulting Borrower, (i) in the case occurrence of any Event of Default specified and at any time thereafter (unless such Event of Default shall theretofore have been remedied or waived), at the option of the Banks (acting through the Agent): (i) the Revolving Credit Commitment and the Swing Line Commitment shall terminate in paragraphs (g) full, and (h) above, each of the Commitments as to such defaulting Borrower Banks shall thereupon automatically be terminated relieved of all of its obligations to make any Revolving Loans hereunder and the Agent shall thereupon be relieved of all of its obligations to make Swing Line Loans hereunder; (ii) the unpaid principal amount of the Notes and the Swing Line Note together with accrued interest on the Loans thereon and all other Obligations shall automatically become immediately due and payable without presentment, demand, protest or other notice or formality of any kind, all of which are hereby expressly waived, ; and (iiiii) in the case of any other Event of Default specified above, either or both of the following actions may be taken: the Operations Agent may, and upon the written or telephonic (confirmed in writing) request of the Majority Banks shall, by written notice to such defaulting Borrower (A) declare the principal of and accrued interest in respect of such defaulting Borrower's Loans to be forthwith due and payable, whereupon the principal of and accrued interest in respect of such Loans shall become forthwith due and payable without presentment, demand, protest or other notice of any kind, all of which are hereby expressly waived by such Borrower, and/or (B) terminate the Commitments as to such defaulting Borrower, whereupon the Commitments each of the Banks to make Committed Credit Loans hereunder to such defaulting Borrower shall forthwith terminate without may exercise any and all rights it has under this Agreement, the Notes, the Swing Line Note, the other Loan Documents or any other notice documents or agreements executed in connection with the transactions contemplated by this Agreement, or by law or equity, and proceed to protect and enforce the Agent’s and each Bank’s rights by any action at law, suit in equity or other appropriate proceeding, whether for specific performance or for an injunction against a violation of any kind and the percentages covenant contained herein or in any Loan Document or in aid of the Commitment Fee and other fees and expenses otherwise payable exercise of any power granted hereby or thereby or by such defaulting Borrower hereunder accruing from and after the date of termination shall be reallocated among the remaining Borrowers PRO RATA on the basis of the percentages set forth opposite such remaining Borrowers' names on SCHEDULE 1, as in effect at the time of such terminationlaw.
Appears in 1 contract
Events of Default; Acceleration. If any of the following events (each an "EVENT OF DEFAULTEvents of Default" or, if the giving of notice or the lapse of time or both is required, then, prior to such notice and/or lapse of time, "Defaults") shall occur with respect to any Borrower:
occur: (a) Such if the Borrower (i) shall default in the payment of fail to pay any principal of any Loan, interest accrued thereon or fee due Loan outstanding to it hereunder after when the same becomes shall become due and payable, whether at the stated date of maturity or by acceleration any accelerated date of maturity or otherwise, or (ii) shall default in the payment of at any other amount due hereunder after date fixed for payment; (b) if the Borrower shall fail to pay any interest on any Loan outstanding to it when the same becomes shall become due and payable; or
(b) Such Borrower shall default in , whether at the performance stated date of maturity or compliance with any term contained in Sections 9.01(a) accelerated date of maturity or 9.01(b) at any other date fixed for payment, and such default failure shall have continued continue unremedied for more than three (3) Banking five Business Days, or such Borrower shall default in the performance of or compliance with any term contained in Sections 8.02(d), 8.02(e), 8.02(g), 8.05, 9.02, 9.03 or 9.04; or
(c) Such if the Borrower shall default in fail to pay any fees due hereunder when the performance of same shall become due and payable, and such failure shall continue unremedied for five Business Days; (d) if the Borrower shall fail to perform, discharge, observe or compliance comply with any term of the terms, covenants and agreements contained in Section 5.1, 5.6(e) or 5.7 through 5.13; (e) if the Borrower shall fail to perform, discharge, observe or comply with any of the terms, covenants and agreements contained herein (other than those expressly referred to specified in clauses (a), (b), (c), and (d) of this Section 10.016.1), and such default failure shall not have been remedied within five (5) Banking Days continue unremedied for 30 days after written notice thereof shall have of such failure has been given to such the Borrower by the Operations Agent; or
(d) Such Borrower shall default in the performance of, or compliance with, any material term contained in any other written agreement with the Operations Agent or any Bank pertaining to this Agreement Bank; (f) if any representation or such Borrower's Loans, and such default shall continue for more than warranty of the period of grace, if any, specified therein and shall not have been waived pursuant thereto; or
(e) Any representation, warranty certification or statement made or deemed made by such Borrower contained in this Agreement or in any certificate, financial statement or other document or instrument delivered by the Borrower pursuant hereto to or in connection with this Agreement shall prove to have been false or incorrect misleading in any material respect as of the time when made or deemed to have been made; or
(fg) Except as otherwise provided in this Section 10.01, such if the Borrower shall default fail in any payment due on Indebtedness for borrowed money the performance or the deferred purchase price of propertypayment, the aggregate outstanding principal amount of which is in excess of five percent (5%) of such Borrower's Total Assets, and such default shall continue for more than the at maturity or within an applicable period of grace, if any, applicable thereto and shall not have been waived pursuant thereto and shall permit the holder of such any obligation contained in any agreement or instrument evidencing any other Indebtedness with respect to declare such Indebtedness due and payable before its stated maturity, borrowed money or credit received in amounts exceeding $2,000,000 (individually or in the performance of aggregate), or compliance with any term of any evidence of such Indebtedness or of any mortgage, pledge, agreement, indenture or other agreement relating thereto, and any for such default shall continue for more than the period of gracetime as would, or would have permitted (assuming the giving of appropriate notice if any, specified therein and shall not have been waived pursuant thereto and shall permit required) the holder or holders thereof or of such Indebtedness any obligations issued thereunder to declare such Indebtedness due and payable before its stated maturity, unless such accelerate the maturity thereof; (h) if the Borrower shall be contesting such payment or obligation in good faith by appropriate proceedings promptly initiated and diligently conducted and such Borrower shall have set aside on its books such reserves, if any, with respect thereto as are required by GAAP and deemed appropriate by such Borrower and its independent public accountants, PROVIDED, that no Event of Default pursuant to paragraphs (b) or (i) of this Section 10.01 shall have occurred and be continuing as a result of such claim having been asserted in respect of such Indebtedness; or
(g) Such Borrower shall discontinue its business (other than in connection with a permitted merger or consolidation of such Borrower) or shall make any General Partner makes an assignment for the benefit of creditors, or shall fail admits in writing its inability to pay or generally fails to pay its debts as such debts they mature or become due, or shall apply petitions or applies for or consent to the appointment of or taking possession by a trustee, receiver or liquidator (trustee or other similar official) custodian, liquidator or receiver of such the Borrower or such General Partner or of any substantial part of the property or assets of such the Borrower or shall commence a such General Partner or commences any case or have other proceeding relating to the Borrower or such General Partner under any bankruptcy, reorganization, arrangement, insolvency, readjustment of debt, dissolution or liquidation or similar law of any jurisdiction, now or hereafter in effect, or takes any action to authorize or in furtherance of any of the foregoing; (i) if any such petition or application is filed or any such case or other proceeding is commenced against the Borrower or any General Partner and the Borrower or such General Partner indicates its approval thereof, consent thereto or acquiescence therein or an order for relief or appointing any such trustee, custodian, liquidator or receiver is entered against it under adjudicating the federal bankruptcy laws, as now Borrower or hereafter constitutedsuch General Partner bankrupt or insolvent, or approving a petition in any other applicable federal or state bankruptcy, insolvency such case or other similar lawproceeding, or if any action shall be taken to dissolve or liquidate such Borrower (other than in connection with a permitted merger or consolidation of such Borrower); or
(h) If, within sixty (60) days after the commencement against such Borrower of a case under the federal bankruptcy laws, as now or hereafter constituted, or any other applicable federal or state bankruptcy, insolvency or other similar law, such case shall have been consented to or shall not have been dismissed or all orders or proceedings thereunder affecting the operations or the business of such Borrower stayed, or if the stay of any and such order remains in effect for more than 60 days, whether or proceeding not consecutive; (j) if there shall thereafter be set asideremain in force, undischarged, unsatisfied and unstayed, for more than 30 days, whether or if within sixty (60) days after the entry of a decree appointing a trusteenot consecutive, receiver or liquidator (or other similar official) of such Borrower or any substantial part of the property of such Borrower such appointment shall not have been vacated; or
(i) A final judgment whichagainst the Borrower that, together with other outstanding final judgments undischarged against such Borrower, exceeds an amount in the aggregate equal to five percent (5%) of such Borrower's Total Assets (exclusive of amounts covered by available insurance) shall be rendered against such Borrower and if, within thirty (30) days after entry thereof, such judgment shall not have been discharged or execution thereof stayed pending appeal, or if, within thirty (30) days after the expiration of any such stay, such judgment shall not have been discharged; or
(j) Such Borrower or any member of the Controlled Group shall fail to pay when due an amount or amounts aggregating in excess of $500,000 which it is obligated to pay to the PBGC or to a Plan under Title IV of ERISA; or a notice of intent to terminate a Plan or Plans having aggregate Unfunded Liabilities in excess of $500,000 shall be filed under Title IV of ERISA by such Borrower or any member of the Controlled Group, any plan administrator or any combination of the foregoing; or the PBGC shall institute proceedings under Title IV of ERISA to terminate or to cause a trustee to be appointed to administer any such Plan or Plans or a proceeding shall be instituted by a fiduciary of any such Plan or Plans against such Borrower or any member of the Controlled Group to enforce Sections 515 or 4219(c)(5) of ERISA; or a condition shall exist by reason of which the PBGC would be entitled to obtain a decree adjudicating that any such Plan or Plans must be terminated; or there shall occur a complete or partial withdrawal from, or a default, within the meaning of Section 4219(c)(5) of ERISA, with respect to, one or more Multiemployer Plans which could cause such Borrower or one or more members of the Controlled Group to incur a current payment obligation in excess of $500,000; or
(k) Such Borrower shall cease to be an investment management company (or a Portfolio thereof) registered under the Investment Company Act, or such Borrower's registration under the Investment Company Act, or that of any Borrower Agent of such Borrower, shall lapse or be suspended; then, and in any such event, and at any time thereafter, if any Event of Default shall then be continuing with respect to such defaulting Borrower, (i) exceeds, in the case of any Event of Default specified in paragraphs (g) and (h) aboveaggregate, the Commitments as to such defaulting Borrower shall thereupon automatically be terminated and the principal of and accrued interest on the Loans shall automatically become due and payable without presentment, demand, protest $2,000,000 or other notice or formality of any kind, all of which are hereby expressly waived, and (ii) shall have a materially adverse effect upon the business, assets, operations, prospects or condition (financial or otherwise) of the Borrower; (k) if there shall occur a material adverse change in the case of any other Event of Default specified abovebusiness, either assets, operations, prospects or both condition, financial or otherwise, of the following actions may be taken: Borrower; then and in any such event and subject to the Operations proviso at the end of this Section 6.1, the Agent mayshall, and upon at the written or telephonic (confirmed in writing) request of the Majority Banks shallRequired Banks, by written notice to such defaulting the Borrower declare (Ai) declare the principal obligation of the Banks to make Loans to the Borrower to be terminated, whereupon the same shall terminate, (ii) the Loans of the Borrower, all interest thereon and accrued interest in respect of such defaulting Borrower's Loans all other amounts payable by the Borrower under this Agreement to be forthwith due and payable, whereupon the principal of such Loans, all such interest and accrued interest in respect of all such Loans other amounts shall become and be forthwith due and payable without presentment, demand, protest or notice (other notice of any kindthan as required above), all of which are hereby expressly waived by such the Borrower, provided that upon the occurrence of any of the events specified in clauses (h) or (i) of this Section 6.1, such termination of the obligations to make Loans and acceleration of the maturity of the Loans shall occur automatically and without any action by the Banks. In case any one or more of the Events of Default shall have occurred and be continuing, and whether or not the Banks shall have accelerated the maturity of the Loans of the Borrower pursuant to the foregoing, the Agent shall, at the request of the Required Banks, proceed to protect and enforce its rights by suit in equity, action at law and/or (B) terminate other appropriate proceeding, whether for the Commitments as specific performance of any covenant or agreement contained in this Agreement or any instrument pursuant to which the obligations of the Borrower to the Banks hereunder are evidenced, and, if such defaulting Borroweramount shall have become due, whereupon by declaration or otherwise, proceed to enforce the Commitments payment thereof or any other legal or equitable right of the Banks hereunder and under the Pledge Agreement. No remedy conferred upon the Banks herein and in the Pledge Agreement is intended to make Committed Credit Loans hereunder to such defaulting Borrower shall forthwith terminate without be exclusive of any other notice of any kind remedy and the percentages of the Commitment Fee each and other fees and expenses otherwise payable by such defaulting Borrower hereunder accruing from and after the date of termination every remedy shall be reallocated among the remaining Borrowers PRO RATA on the basis cumulative and shall be in addition to every other remedy given hereunder or now or hereafter existing at law or in equity or by statute or any other provision of the percentages set forth opposite such remaining Borrowers' names on SCHEDULE 1, as in effect at the time of such terminationlaw.
Appears in 1 contract
Sources: Credit Agreement (FMR Corp)
Events of Default; Acceleration. If any of the following events (each an "EVENT OF DEFAULTEvents of Default") shall occur with respect to any Borroweroccur:
(a) Such The Borrowers shall fail to pay when due and payable any principal of or interest on the Loans or any other sum due under any of the Loan Documents when the same becomes due;
(b) The Borrowers shall fail to perform any term, covenant or agreement contained in Section 6 hereof;
(c) The Borrowers or any Subsidiaries shall fail to perform any other term, covenant or agreement contained in this Agreement or any of the other Loan Documents, which failure continues for more than thirty (30) days;
(d) Any representation or warranty of the Borrowers in the Loan Documents or in any certificate or notice given in connection therewith shall have been false or misleading in any material respect at the time made or deemed to have been made;
(e) Any Borrower or any of its Subsidiaries (i) shall be in default under any agreement or agreements evidencing Indebtedness (A) owing to the Bank or are affiliated with the Bank or (B) to any other person owing in excess of $50,000 in aggregate principal amount, which default shall give the payment of principal of any Loan, interest accrued thereon or fee due hereunder after holder thereof the same becomes due and payable, whether at maturity or by acceleration or otherwiseright to accelerate such indebtedness, or (ii) shall default in the payment of fail to pay any other amount due hereunder after the same becomes due and payable; or
(b) Such Borrower shall default in the performance of or compliance with any term contained in Sections 9.01(a) or 9.01(b) and such default shall have continued for more than three (3) Banking DaysIndebtedness when due, or such Borrower shall default in the performance of or compliance with within any term contained in Sections 8.02(d), 8.02(e), 8.02(g), 8.05, 9.02, 9.03 or 9.04; or
(c) Such Borrower shall default in the performance of or compliance with any term contained herein other than those expressly referred to in this Section 10.01, and such default shall not have been remedied within five (5) Banking Days after written notice thereof shall have been given to such Borrower by the Operations Agent; or
(d) Such Borrower shall default in the performance of, or compliance with, any material term contained in any other written agreement with the Operations Agent or any Bank pertaining to this Agreement or such Borrower's Loans, and such default shall continue for more than the applicable period of grace, if any, specified therein and shall not have been waived pursuant thereto; or
(e) Any representation, warranty certification or statement made or deemed made by such Borrower in this Agreement or in any certificate, financial statement or other document delivered pursuant hereto shall prove to have been false or incorrect in any material respect when made; or;
(f) Except as otherwise provided Any of the Loan Documents shall cease to be in this Section 10.01, such Borrower shall default in any payment due on Indebtedness for borrowed money or the deferred purchase price of property, the aggregate outstanding principal amount of which is in excess of five percent (5%) of such Borrower's Total Assets, full force and such default shall continue for more than the period of grace, if any, applicable thereto and shall not have been waived pursuant thereto and shall permit the holder of such Indebtedness to declare such Indebtedness due and payable before its stated maturity, or in the performance of or compliance with any term of any evidence of such Indebtedness or of any mortgage, indenture or other agreement relating thereto, and any such default shall continue for more than the period of grace, if any, specified therein and shall not have been waived pursuant thereto and shall permit the holder of such Indebtedness to declare such Indebtedness due and payable before its stated maturity, unless such Borrower shall be contesting such payment or obligation in good faith by appropriate proceedings promptly initiated and diligently conducted and such Borrower shall have set aside on its books such reserves, if any, with respect thereto as are required by GAAP and deemed appropriate by such Borrower and its independent public accountants, PROVIDED, that no Event of Default pursuant to paragraphs (b) or (i) of this Section 10.01 shall have occurred and be continuing as a result of such claim having been asserted in respect of such Indebtedness; oreffect;
(g) Such Any Borrower shall discontinue or any of its business Subsidiaries (other than in connection with a permitted merger or consolidation of such Borroweri) or shall make an assignment for the benefit of creditors, (ii) shall be adjudicated bankrupt or insolvent, (iii) shall fail seek the appointment of, or be the subject of an order appointing, a trustee, liquidate or receiver as to all or part of its assets, (iv) shall commence, approve or consent to, any case or proceeding under any bankruptcy, reorganization or similar law and, in the case of an involuntary case or proceeding, such case or proceeding is not dismissed within forty-five (45) days following the commencement thereof, or (v) shall be the subject of an order for relief in an involuntary case under federal bankruptcy law;
(h) Any Borrower or any of its Subsidiaries shall admit in writing its inability to pay or generally fails to pay its debts as such debts they mature or become due, or shall apply for or consent to the appointment of or taking possession by a trustee, receiver or liquidator (or other similar official) of such Borrower or any substantial part of the property or assets of such Borrower or shall commence a case or have an order for relief entered against it under the federal bankruptcy laws, as now or hereafter constituted, or any other applicable federal or state bankruptcy, insolvency or other similar law, or if any action shall be taken to dissolve or liquidate such Borrower (other than in connection with a permitted merger or consolidation of such Borrower); or
(h) If, within sixty (60) days after the commencement against such Borrower of a case under the federal bankruptcy laws, as now or hereafter constituted, or any other applicable federal or state bankruptcy, insolvency or other similar law, such case shall have been consented to or shall not have been dismissed or all orders or proceedings thereunder affecting the operations or the business of such Borrower stayed, or if the stay of any such order or proceeding shall thereafter be set aside, or if within sixty (60) days after the entry of a decree appointing a trustee, receiver or liquidator (or other similar official) of such Borrower or any substantial part of the property of such Borrower such appointment shall not have been vacated; or
(i) A There shall remain undercharged for more than ten (10) days any final judgment whichor execution action against any Borrower or any of its Subsidiaries that, together with other outstanding final judgments claims and execution actions against the Borrower and such Borrower, Subsidiary exceeds an amount $50,000 in the aggregate equal to five percent (5%) of such Borrower's Total Assets (exclusive of amounts covered by available insurance) shall be rendered against such Borrower and if, within thirty (30) days after entry thereof, such judgment shall not have been discharged or execution thereof stayed pending appealaggregate; THEN, or if, within thirty (30) days after the expiration of any such stay, such judgment shall not have been discharged; or
(j) Such Borrower or any member of the Controlled Group shall fail to pay when due an amount or amounts aggregating in excess of $500,000 which it is obligated to pay to the PBGC or to a Plan under Title IV of ERISA; or a notice of intent to terminate a Plan or Plans having aggregate Unfunded Liabilities in excess of $500,000 shall be filed under Title IV of ERISA by such Borrower or any member of the Controlled Group, any plan administrator or any combination of the foregoing; or the PBGC shall institute proceedings under Title IV of ERISA to terminate or to cause a trustee to be appointed to administer any such Plan or Plans or a proceeding shall be instituted by a fiduciary of any such Plan or Plans against such Borrower or any member of the Controlled Group to enforce Sections 515 or 4219(c)(5) of ERISA; or a condition shall exist by reason of which the PBGC would be entitled to obtain a decree adjudicating that any such Plan or Plans must be terminated; or there shall occur a complete or partial withdrawal from, or a default, within the meaning of Section 4219(c)(5) of ERISA, with respect to, one or more Multiemployer Plans which could cause such Borrower or one or more members of the Controlled Group to incur a current payment obligation in excess of $500,000; or
(k) Such Borrower shall cease to be an investment management company (or a Portfolio thereof) registered under the Investment Company Act, or such Borrower's registration under the Investment Company Act, or that of any Borrower Agent of such Borrower, shall lapse or be suspended; then, and in any such event, and at any time thereafter, if any Event of Default shall then be continuing with respect to such defaulting Borrower, :
(i1) in In the case of any Event of Default specified in paragraphs under paragraph (g) and or (h) aboveconcerning any Borrower, the Commitments as to such defaulting Borrower Commitment shall thereupon automatically be terminated terminate, and the entire unpaid principal amount of the Loans, all interest accrued and accrued interest on unpaid thereof, and all other amounts payable hereunder and under the Loans other Loan Documents shall automatically become forthwith due and payable payable, without presentment, demand, protest or other notice or formality of any kind, all of which are hereby expressly waived, and (ii) in the case of any other Event of Default specified above, either or both of the following actions may be taken: the Operations Agent may, and upon the written or telephonic (confirmed in writing) request of the Majority Banks shall, by written notice to such defaulting Borrower (A) declare the principal of and accrued interest in respect of such defaulting Borrower's Loans to be forthwith due and payable, whereupon the principal of and accrued interest in respect of such Loans shall become forthwith due and payable without presentment, demand, protest or other notice of any kind, all of which are hereby expressly waived by such the Borrowers; and
(2) In the case of any Event of Default other than (g) and (h), the Bank may, by written notice to the Borrower, and/or (B) terminate the Commitments as to such defaulting Borrower, whereupon Commitment and/or declare the Commitments unpaid principal amount of the Banks Loans, all interest accrued and unpaid thereof, and all other amounts payable hereunder and under the other Loan Documents to make Committed Credit Loans hereunder to such defaulting Borrower shall be forthwith terminate due and payable, without any other presentment, demand, protest or further notice of any kind kind, all of which are hereby expressly waived by the Borrowers. No remedy herein conferred upon the Bank is intended to be exclusive of any other remedy and the percentages of the Commitment Fee each and other fees and expenses otherwise payable by such defaulting Borrower hereunder accruing from and after the date of termination every remedy shall be reallocated among the remaining Borrowers PRO RATA on the basis of the percentages set forth opposite such remaining Borrowers' names on SCHEDULE 1cumulative and in addition to every other remedy hereunder, as now or hereafter existing at law or in effect at the time of such terminationequity or otherwise.
Appears in 1 contract
Events of Default; Acceleration. If any (a) Section 6.01 of the Base Indenture shall not apply to the Notes. Instead, each of the following events (each shall be an "EVENT OF DEFAULT") shall occur “Event of Default” with respect to any Borrowerthe Notes:
(a1) Such Borrower (i) shall default the Company defaults in the payment of principal of interest on any LoanNote, interest accrued thereon or fee due hereunder after any Additional Amounts payable with respect thereto, when the same becomes due and payable, whether at maturity or by acceleration or otherwise, or and the default continues for a period of 30 days;
(ii2) shall default the Company defaults in the payment of the principal or any other amount due hereunder after premium with respect to any Note, or any Additional Amounts payable with respect thereto, when the same becomes due and payable; orpayable at maturity, upon acceleration or redemption, or otherwise;
(b3) Such Borrower shall default the Company defaults in the performance of or compliance breaches any other covenant, warranty or agreement of the Company in the Indenture with any term contained in Sections 9.01(a) respect to the Notes or 9.01(bunder the Notes (other than a covenant or warranty included therein solely for the benefit of one or more series of Securities other than the Notes) and the default or breach continues for a period of 90 consecutive days after written notice to the Company by the Trustee or to the Company and the Trustee by the Holders of not less than 25% in aggregate principal amount of the Notes specifying such default shall have continued for or breach and requiring it to be remedied and stating that it is a “Notice of Default” under the Indenture;
(4) there occurs with respect to any issue or issues of Indebtedness (including any Guarantee and any other series of debt securities) of the Company or any Significant Subsidiary having an outstanding principal amount of $100,000,000 or more than three (3) Banking Days, or such Borrower shall default in the performance aggregate for all such issues of all such persons, whether such Indebtedness exists on the date hereof or compliance with any term contained in Sections 8.02(d)shall hereafter be created, 8.02(e), 8.02(g), 8.05, 9.02, 9.03 or 9.04; or
(ca) Such Borrower shall an event of default in that has caused the performance of or compliance with any term contained herein other than those expressly referred holder thereof to in this Section 10.01, declare such indebtedness to be due and payable prior to its stated maturity and such default indebtedness shall not have been remedied within five (5) Banking Days after written notice thereof shall have been given to such Borrower by the Operations Agent; or
(d) Such Borrower shall default discharged in the performance of, or compliance with, any material term contained in any other written agreement with the Operations Agent or any Bank pertaining to this Agreement full or such Borrower's Loans, and such default shall continue for more than the period of grace, if any, specified therein and acceleration shall not have been waived pursuant thereto; or
(e) Any representation, warranty certification rescinded or statement made or deemed made by such Borrower in this Agreement or in any certificate, financial statement or other document delivered pursuant hereto shall prove to have been false or incorrect in any material respect when made; or
(f) Except as otherwise provided in this Section 10.01, such Borrower shall default in any payment due on Indebtedness for borrowed money or the deferred purchase price of property, the aggregate outstanding principal amount of which is in excess of five percent (5%) annulled within 30 days of such Borrower's Total Assets, acceleration and/or (b) the failure to make a principal payment at the final (but not any interim) fixed maturity and such default shall continue for more than the period of grace, if any, applicable thereto and defaulted payment shall not have been made, waived pursuant thereto and shall permit the holder or extended within 30 days of such Indebtedness payment default;
(5) the Company or any of its Significant Subsidiaries shall fail within 60 days to declare such Indebtedness due and payable before its stated maturitypay, bond or otherwise discharge uninsured judgments or court orders for the payment of money in excess of $150,000,000 in the performance of aggregate, which are not stayed on appeal or compliance with any term of any evidence of such Indebtedness or of any mortgage, indenture are not otherwise being appropriately contested in good faith;
(6) an involuntary case or other agreement relating theretoproceeding is commenced against the Company or any Significant Subsidiary with respect to it or its debts under any bankruptcy, insolvency or other similar law now or hereafter in effect seeking the appointment of a trustee, receiver, liquidator, custodian or other similar official of it or any substantial part of its property, and any such default shall continue involuntary case or other proceeding remains undismissed and unstayed for more than the a period of grace, if any, specified therein and shall not have been waived pursuant thereto and shall permit 60 days; or an order for relief is entered against the holder Company or any Significant Subsidiary under the federal bankruptcy laws as now or hereafter in effect;
(7) the Company or any of such Indebtedness to declare such Indebtedness due and payable before its stated maturity, unless such Borrower shall be contesting such payment or obligation in good faith by appropriate proceedings promptly initiated and diligently conducted and such Borrower shall have set aside on its books such reserves, if any, with respect thereto as are required by GAAP and deemed appropriate by such Borrower and its independent public accountants, PROVIDED, that no Event of Default pursuant to paragraphs (b) or Significant Subsidiaries (i) of this Section 10.01 shall have occurred and be continuing as commences a result of such claim having been asserted voluntary case under any applicable bankruptcy, insolvency or other similar law now or hereafter in respect of such Indebtedness; or
(g) Such Borrower shall discontinue its business (other than in connection with a permitted merger or consolidation of such Borrower) or shall make an assignment for the benefit of creditorseffect, or shall fail generally consents to pay its debts as the entry of an order for relief in an involuntary case under any such debts become duelaw, or shall apply for or consent (ii) consents to the appointment of or taking possession by a receiver, liquidator, assignee, custodian, trustee, receiver sequestrator or liquidator (or other similar official) official of such Borrower the Company or any substantial part of its Significant Subsidiaries or of all or substantially all of the property or and assets of such Borrower or shall commence a case or have an order for relief entered against it under the federal bankruptcy laws, as now or hereafter constituted, Company or any of its Significant Subsidiaries or (iii) effects any general assignment for the benefit of creditors, in each case, other applicable federal than a proceeding initiated by or state bankruptcyon behalf of the Company or a Subsidiary of the Company to effect the winding up, insolvency dissolution or other similar law, termination of existence of a Subsidiary of the Company which is permitted under Section 3.05 of the Base Indenture (an event of default specified in clause (6) or if any action (7) a “bankruptcy default”);
(b) Section 6.02 of the Base Indenture shall be taken to dissolve or liquidate such Borrower (other than in connection with a permitted merger or consolidation of such Borrower); or
(h) If, within sixty (60) days after the commencement against such Borrower of a case under the federal bankruptcy laws, as now or hereafter constituted, or any other applicable federal or state bankruptcy, insolvency or other similar law, such case shall have been consented to or shall not have been dismissed or all orders or proceedings thereunder affecting the operations or the business of such Borrower stayed, or if the stay of any such order or proceeding shall thereafter be set aside, or if within sixty (60) days after the entry of a decree appointing a trustee, receiver or liquidator (or other similar official) of such Borrower or any substantial part of the property of such Borrower such appointment shall not have been vacated; or
(i) A final judgment which, together with other outstanding final judgments against such Borrower, exceeds an amount in the aggregate equal to five percent (5%) of such Borrower's Total Assets (exclusive of amounts covered by available insurance) shall be rendered against such Borrower and if, within thirty (30) days after entry thereof, such judgment shall not have been discharged or execution thereof stayed pending appeal, or if, within thirty (30) days after the expiration of any such stay, such judgment shall not have been discharged; or
(j) Such Borrower or any member of the Controlled Group shall fail to pay when due an amount or amounts aggregating in excess of $500,000 which it is obligated to pay to the PBGC or to a Plan under Title IV of ERISA; or a notice of intent to terminate a Plan or Plans having aggregate Unfunded Liabilities in excess of $500,000 shall be filed under Title IV of ERISA by such Borrower or any member of the Controlled Group, any plan administrator or any combination of the foregoing; or the PBGC shall institute proceedings under Title IV of ERISA to terminate or to cause a trustee to be appointed to administer any such Plan or Plans or a proceeding shall be instituted by a fiduciary of any such Plan or Plans against such Borrower or any member of the Controlled Group to enforce Sections 515 or 4219(c)(5) of ERISA; or a condition shall exist by reason of which the PBGC would be entitled to obtain a decree adjudicating that any such Plan or Plans must be terminated; or there shall occur a complete or partial withdrawal from, or a default, within the meaning of Section 4219(c)(5) of ERISA, with respect to, one or more Multiemployer Plans which could cause such Borrower or one or more members of the Controlled Group to incur a current payment obligation in excess of $500,000; or
(k) Such Borrower shall cease to be an investment management company (or a Portfolio thereof) registered under the Investment Company Act, or such Borrower's registration under the Investment Company Act, or that of any Borrower Agent of such Borrower, shall lapse or be suspended; then, and in any such event, and at any time thereafter, if any Event of Default shall then be continuing amended with respect to the Notes by replacing the first two paragraphs of such defaulting Borrower, (i) in section with the case of any following: “If an Event of Default specified Default, other than a bankruptcy default with respect to the Company (but not any Significant Subsidiary of the Company), occurs and is continuing under the Indenture with respect to any Notes, then, either the Trustee or the Holders of at least 25% in paragraphs aggregate principal amount of the Notes then outstanding, by written notice to the Company (g) and (h) aboveto the Trustee if the notice is given by the Holders), the Commitments as to such defaulting Borrower shall thereupon automatically be terminated and may declare the principal of and accrued interest on the Loans shall automatically become Notes to be immediately due and payable without presentmentpayable. Upon a declaration of acceleration, demandsuch principal and interest will become immediately due and payable. If a bankruptcy default occurs with respect to the Company, protest or other notice or formality of any kind, all of which are hereby expressly waived, and (ii) in the case of any other Event of Default specified above, either or both of the following actions may be taken: the Operations Agent may, and upon the written or telephonic (confirmed in writing) request of the Majority Banks shall, by written notice to such defaulting Borrower (A) declare the principal of and accrued interest in respect of such defaulting Borrower's Loans to be forthwith due and payable, whereupon on the principal of and accrued interest in respect of such Loans shall Notes then outstanding will become forthwith immediately due and payable without presentment, demand, protest any declaration or other notice of any kind, all of which are hereby expressly waived by such Borrower, and/or (B) terminate act on the Commitments as to such defaulting Borrower, whereupon the Commitments part of the Banks to make Committed Credit Loans hereunder to such defaulting Borrower shall forthwith terminate without Trustee or any other notice of any kind and the percentages of the Commitment Fee and other fees and expenses otherwise payable by such defaulting Borrower hereunder accruing from and after the date of termination shall be reallocated among the remaining Borrowers PRO RATA on the basis of the percentages set forth opposite such remaining Borrowers' names on SCHEDULE 1, as in effect at the time of such terminationHolder.”
Appears in 1 contract
Events of Default; Acceleration. If any of the following events (each an "EVENT OF DEFAULT"“Event of Default”) shall occur with respect to any Borroweroccur:
(a) Such The Borrower (i) shall default in the payment of principal of or interest on the Notes or any Loan, interest accrued thereon or other fee due hereunder after when the same becomes due and payable, whether at maturity or at a date fixed for the payment of any installment or prepayment thereof or by declaration, acceleration or otherwise, or and such default shall continue for a period of three (ii3) shall default in the payment of any other amount due hereunder after the same becomes due and payableBusiness Days (a “Payment Default”); or
(b) Such The Borrower shall default in the performance of or compliance with any term contained in Section 5 (other than Section 5.10(a)), Article VI or Sections 9.01(a) 7.1 or 9.01(b) and 7.2 and, to the extent any default is susceptible of remedy or cure, the Borrower has failed to remedy or cure any such default shall have continued for more than three within ten (310) Banking Days, or such days after the occurrence thereof; or
(c) The Borrower shall default in the performance of or compliance with any term contained in Sections 8.02(d), 8.02(e), 8.02(g), 8.05, 9.02, 9.03 Section 5.10(a) or 9.04Section 7.3 and the Borrower has failed to remedy or cure any such default within five (5) Business Days; or
(cd) Such The Borrower shall default in the performance of or compliance with any term contained herein other than those expressly referred to above in this Section 10.01, Article VIII and such default shall not have been remedied within five thirty (530) Banking Days days after written notice the occurrence thereof provided, that if such default cannot be remedied or cured, then such default shall have been given to such Borrower by be deemed an Event of Default as of the Operations Agentdate of its occurrence; or
(de) Such The Borrower or any Subsidiary which is a party to any of the Loan Documents shall default in the performance of, of or compliance with, with any material term contained in the Loan Documents (other than this Agreement) or in the performance of or compliance with any material term contained in any other written agreement with the Operations Agent or any Bank pertaining to this Agreement or such Borrower's Loansand/or the Lenders, executed in connection therewith and such default shall continue for more than the period of grace, if any, specified therein and shall not have been waived pursuant theretoremedied within thirty (30) days after the occurrence thereof provided, that if such default cannot be remedied or cured, then such default shall be deemed an Event of Default as of the date of its occurrence; or
(ef) Any representation, representation or warranty certification or statement made or deemed made by such the Borrower in this Agreement or any Subsidiary herein or in any certificate, financial statement other Loan Document or other document delivered pursuant hereto shall prove to have been false or incorrect in any material respect when made; or
(fg) Except as otherwise provided in this Section 10.01, such The Borrower or any Subsidiary shall default in any payment due on any Indebtedness for in respect of borrowed money where the aggregate principal balance thereof together with interest thereon exceeds $500,000 or any lesser aggregate principal balance where such failure to pay is reasonably likely to have a Material Adverse Effect (other than to the Lenders, as to which Section 8.1(a) shall apply), any Capital Lease or the deferred purchase price of propertyproperty with a principal balance together with interest thereon, lease balance or purchase price (as the aggregate outstanding principal amount of which is case may be) in excess of five percent (5%) $500,000 outstanding as of the date of such Borrower's Total Assetsdefault, and such default shall continue for more than the period of grace, if any, applicable thereto and shall not have been waived pursuant thereto and shall permit the holder of such Indebtedness to declare such Indebtedness due and payable before its stated maturitythereto, or in the performance of or compliance with any term of any evidence of such Indebtedness or of any mortgage, indenture or other agreement relating thereto, and any such default shall continue for more than the period of grace, if any, specified therein and shall not have been waived pursuant thereto and shall permit the holder of thereto, (except such Indebtedness to declare such Indebtedness due and payable before its stated maturity, unless such Borrower shall be contesting such payment or obligation defaults which are being contested in good faith by appropriate proceedings promptly initiated and diligently conducted and such Borrower shall have set aside on its books such reservesand, if anyapplicable, with respect thereto as are to which adequate reserves have been established on the Borrower’s books to the extent required by GAAP and deemed appropriate by such Borrower and its independent public accountants, PROVIDED, that no Event of Default pursuant to paragraphs (b) or (i) of this Section 10.01 shall have occurred and be continuing as a result of such claim having been asserted in respect of such IndebtednessGAAP); or
(gh) Such The Borrower or any Subsidiary shall cease to be solvent (as represented in the Solvency Certificate) or shall discontinue its business (other than in connection with a except as otherwise permitted merger or consolidation of such Borrowerhereby) or the Borrower or any Subsidiary shall make an assignment for the benefit of creditors, or shall fail generally to pay its debts as such debts become due, or shall apply for or consent to the appointment of or taking possession by a trustee, receiver or liquidator (or other similar official) of the Borrower or such Borrower Subsidiary or any substantial part of the property of the Borrower or assets of such Borrower Subsidiary, or shall commence a case or have an order for relief entered against it under the federal bankruptcy laws, as now or hereafter constituted, or any other applicable federal or state bankruptcy, insolvency or other similar law, or if the Borrower or any Subsidiary shall take any action shall be taken to dissolve or liquidate the Borrower or such Borrower Subsidiary (other than in connection with a except as otherwise permitted merger or consolidation of such Borrowerhereby); or
(hi) If, within sixty (60) days after An involuntary proceeding shall be commenced against the commencement against such Borrower of a case or any Subsidiary under the federal bankruptcy laws, as now or hereafter constituted, (which is not dismissed or stayed within 60 days, provided, however, the Borrower may not request any Revolving Credit Loans during such 60 day period) or any other applicable federal or state bankruptcy, insolvency or other similar law, such case shall have been consented to or shall not have been dismissed or all orders or proceedings thereunder affecting the operations or the business of such Borrower stayed, or if the stay of any such order or proceeding shall thereafter be set aside, or if within sixty (60) days after the entry of a decree shall be entered appointing a trustee, receiver or liquidator (or other similar official) of such the Borrower or any Subsidiary or any substantial part of the property of the Borrower or such Borrower such appointment shall not have been vacatedSubsidiary; or
(ij) A final judgment which, together with other outstanding final judgments against such Borrower, exceeds an amount in the aggregate equal to five percent (5%) of such Borrower's Total Assets (exclusive of amounts covered by available insurance) Borrower and its Subsidiaries shall be rendered against such the Borrower or any Subsidiary which is reasonably likely to have a Material Adverse Effect and if, within thirty (30) the earlier of 60 days after entry thereof, such judgment shall not have been discharged or execution thereof stayed pending appeal, or if, within thirty (30) 60 days after the expiration of any such stay, such judgment shall not have been discharged; or
(j) Such , or if any such judgment shall not be discharged forthwith upon the commencement of proceedings to foreclose any lien, attachment or charge which may attach as security therefor and before any of the property or assets of the Borrower or any member of the Controlled Group Subsidiary shall fail to pay when due an amount or amounts aggregating have been seized in excess of $500,000 which it is obligated to pay to the PBGC or to a Plan under Title IV of ERISA; or a notice of intent to terminate a Plan or Plans having aggregate Unfunded Liabilities in excess of $500,000 shall be filed under Title IV of ERISA by such Borrower or any member of the Controlled Group, any plan administrator or any combination of the foregoing; or the PBGC shall institute proceedings under Title IV of ERISA to terminate or to cause a trustee to be appointed to administer any such Plan or Plans or a proceeding shall be instituted by a fiduciary of any such Plan or Plans against such Borrower or any member of the Controlled Group to enforce Sections 515 or 4219(c)(5) of ERISA; or a condition shall exist by reason of which the PBGC would be entitled to obtain a decree adjudicating that any such Plan or Plans must be terminated; or there shall occur a complete or partial withdrawal from, or a default, within the meaning of Section 4219(c)(5) of ERISA, with respect to, one or more Multiemployer Plans which could cause such Borrower or one or more members of the Controlled Group to incur a current payment obligation in excess of $500,000satisfaction thereof; or
(k) Such If the Borrower shall cease to be an investment management company (or a Portfolio thereof) registered under the Investment Company Actis enjoined, restrained, or in any material way prevented by the order of any court or any administrative or regulatory agency from conducting all or any material part of its business and such Borrower's registration under order is not stayed or revoked within five (5) days; or
(l) This Agreement, the Investment Company ActNotes, the Pledge Agreement, any Subsidiary Guaranties or any other Loan Documents shall be cancelled, terminated, revoked, rescinded or declared invalid or unenforceable in whole or in any material respect, otherwise than pursuant to its terms by virtue of the expiration of its term or otherwise than in accordance with the express prior written agreement, consent or approval of the Required Lenders or the Lenders, as the case may be, or any action at law, suit in equity or other legal proceeding to cancel, revoke or rescind this Agreement, the Notes, the Pledge Agreement, any Subsidiary Guaranties or any other Loan Documents shall be commenced by or on behalf of the Borrower or any other Person bound thereby or party thereto or by any governmental or regulatory authority or agency of competent jurisdiction; or any court or any other governmental or regulatory authority or agency of competent jurisdiction shall make a determination that, or shall issue a judgment, order, decree or ruling to the effect that any one or more of the Loan Documents or any one or more of the material obligations of any Borrower Agent Person or Persons under any one or more of such Borrowerthe Loan Documents are illegal, shall lapse invalid or be suspendedunenforceable in accordance with the terms thereof; then, and in any such event, and at any time thereafter, if any Event of Default shall then be continuing with respect to such defaulting Borrower, (i) in during the case of any Event of Default specified in paragraphs (g) and (h) above, the Commitments as to such defaulting Borrower shall thereupon automatically be terminated and the principal of and accrued interest on the Loans shall automatically become due and payable without presentment, demand, protest or other notice or formality of any kind, all of which are hereby expressly waived, and (ii) in the case of any other Event of Default specified abovecontinuance thereof, either or both of the following actions may be taken: the Operations Agent may, and upon the written or telephonic (confirmed in writing) request of the Majority Banks shall, may by written notice to such defaulting Borrower the Borrower, (Ai) declare the principal of and accrued interest in respect of such defaulting Borrower's Loans the Notes to be forthwith due and payable, whereupon the principal of and accrued interest in respect of such Loans the Notes and all amounts due under Section 2.4 and Section 2.5 shall become forthwith due and payable without presentment, demand, protest or other notice of any kind, all of which are hereby expressly waived by such the Borrower, and/or (Bii) terminate the Commitments as to such defaulting BorrowerRevolving Credit Facility, whereupon the Commitments of the Banks to make Committed Revolving Credit Loans hereunder to such defaulting Borrower Facility shall forthwith terminate without any other notice of any kind and kind; provided that, in the percentages case of an Event of Default arising by reason of the Commitment Fee and other fees and expenses otherwise payable by occurrence of any event described in Sections 8.1(h) or 8.1(i), both such defaulting Borrower hereunder accruing from and after the date of termination actions shall be reallocated among deemed to have been automatically taken by the remaining Borrowers PRO RATA on the basis Agent and all obligations of the percentages set forth opposite such remaining Borrowers' names on SCHEDULE 1Borrower to the Lenders shall forthwith automatically become due and payable without presentment, as in effect at demand, protest or notice of any kind, all of which are hereby expressly waived by the time Borrower. Without limiting any provision of such terminationthis Agreement or any Loan Documents, a Default or Event of Default hereunder shall also constitute a Default or Event of Default under the Loan Documents.
Appears in 1 contract
Sources: Revolving Credit Loan Agreement (Harvard Bioscience Inc)
Events of Default; Acceleration. If any of the following events (each an "EVENT OF DEFAULTEvents of Default") shall occur with respect to any Borroweroccur:
(a) Such If the Borrower (i) shall default in the payment of any interest on and/or any principal of any Loan, interest accrued thereon or fee due hereunder after the Notes when the same becomes due and payable, whether at maturity or by acceleration or otherwise, or and such default continues for three (ii3) shall default in the payment of any other amount due hereunder after the same becomes due and payableBusiness Days; or
(b) Such If the Borrower shall breach or default in the performance or observance of any of the provisions of Section 6.10 through Section 6.12 hereof, and such breach or default continues for twenty (20) days after written notice of such breach or default shall have been delivered to the Borrower; or
(c) If the Borrower or any Subsidiary shall default in the performance of or compliance with any term covenant, obligation or provision contained in Sections 9.01(athis Loan Agreement, other than those referred to above in this Section 7, and any such default shall not have been remedied (i) or 9.01(bwithin ten (10) and days after written notice of such default shall have continued for more than three (3) Banking Daysbeen delivered to the Borrower, or (ii) if such default cannot be cured within such ten (10) day period, within such longer period of time as may be necessary to effect such cure, but in any event within thirty (30) days after written notice of such default shall have been delivered to the Borrower, provided that the Borrower or such Subsidiary commences to cure the particular default within such ten (10) day period and prosecutes the cure to completion with due diligence within thirty (30) days after written notice of such default shall have been delivered to the Borrower; or
(d) If the Borrower or any Subsidiary shall default in the performance of or compliance with any term covenant, obligation or provision contained in Sections 8.02(d)any of the other Loan Documents, 8.02(e)and such default shall not have been remedied (i) within ten (10) days after written notice of such default shall have been delivered to the Borrower, 8.02(g)or (ii) if such default cannot be cured within such ten (10) day period, 8.05within such longer period of time as may be necessary to effect such cure, 9.02but in any event within thirty (30) days after written notice of such default shall have been delivered to the Borrower, 9.03 provided that the Borrower or 9.04such Subsidiary commences to cure the particular default within such ten (10) day period and prosecutes the cure to completion with due diligence within thirty (30) days after written notice of such default shall have been delivered to the Borrower; or
(ce) Such If any material representation or warranty made in writing by or on behalf of the Borrower or any Subsidiary herein or pursuant hereto or otherwise in connection with the transactions contemplated hereby shall have been materially false or misleading or incorrect when made, and the Borrower shall have known or should have known of the falsity, misleading nature of or incorrectness of such representation or warranty when it was made, and the Borrower fails to cause such representation and warranty to cease to be materially false, misleading or incorrect within ten (10) days after written notice of such materially false, misleading or incorrect representation or warranty shall have been delivered to the Borrower; or
(f) If the Borrower or any Subsidiary shall default, as principal or guarantor or other surety or otherwise, in the payment of any principal of or premium, if any, or interest on any Indebtedness in respect of borrowed money or Capital Lease Obligations or in the deferred purchase price of property which, at the time of the default in the payment thereof, has an unpaid balance in excess of Five Hundred Thousand Dollars ($500,000.00), or if the Borrower or any Subsidiary defaults in the performance of or compliance with any term contained herein of any evidence of such Indebtedness or of any mortgage, indenture or other than those expressly referred to in this Section 10.01, and such default shall not have been remedied within five (5) Banking Days after written notice thereof shall have been given to such Borrower by the Operations Agent; or
(d) Such Borrower shall default in the performance of, or compliance with, any material term contained in any other written agreement with the Operations Agent or any Bank pertaining to this Agreement or such Borrower's Loansrelating thereto, and such default shall continue for more than the period of grace, if any, specified therein and shall not have been waived pursuant thereto; or
(e) Any representation, warranty certification or statement made or deemed made by such Borrower in this Agreement or in any certificate, financial statement or other document delivered pursuant hereto shall prove to have been false or incorrect in any material respect when made; or
(f) Except as otherwise provided in this Section 10.01, such Borrower shall default in any payment due on Indebtedness for borrowed money or the deferred purchase price of property, the aggregate outstanding principal amount of which is in excess of five percent (5%) of such Borrower's Total Assets, and such default shall continue for more than the period of grace, if any, applicable thereto and shall not have been waived pursuant thereto and shall permit the holder of such Indebtedness to declare such Indebtedness due and payable before its stated maturity, or in the performance of or compliance with any term of any evidence of such Indebtedness or of any mortgage, indenture or other agreement relating thereto, and any such default shall continue for more than the period of grace, if any, specified therein and shall not have been waived pursuant thereto and shall permit the holder of such Indebtedness to declare such Indebtedness due and payable before its stated maturity, unless such Borrower shall be contesting such payment or obligation in good faith by appropriate proceedings promptly initiated and diligently conducted and such Borrower shall have set aside on its books such reserves, if any, with respect thereto as are required by GAAP and deemed appropriate by such Borrower and its independent public accountants, PROVIDED, that no Event of Default pursuant to paragraphs (b) or (i) of this Section 10.01 shall have occurred and be continuing as a result of such claim having been asserted in respect of such Indebtedness; or
(g) Such If the Borrower or any Subsidiary shall discontinue its business (other than in connection with a permitted merger or consolidation of such Borrower) or shall make an assignment for the benefit of its creditors, or shall fail generally to pay its debts as such debts become due, or shall apply for or consent to the appointment of or taking possession by a trustee, receiver or liquidator (or other similar official) official of such Borrower or any substantial part of the property or assets of such Borrower its property, or shall commence a case or have an order for relief entered against it under the federal bankruptcy laws, as now or hereafter constituted, or any other applicable federal or state bankruptcy, insolvency or other similar law, or if the Borrower or any Subsidiary shall take any action shall be taken to dissolve in furtherance of its dissolution or liquidate such Borrower (other than in connection with a permitted merger or consolidation of such Borrower)liquidation; or
(h) If, within sixty thirty (6030) days after the commencement against such the Borrower or any Subsidiary of a case under the federal bankruptcy lawsBankruptcy Code, as now or hereafter constituted, or any other applicable federal or state bankruptcy, insolvency or other similar law, such case shall have been consented to or shall not have been dismissed or all orders or proceedings thereunder affecting the operations or the business of the Borrower or such Borrower Subsidiary shall not have been stayed, or if the stay of any such order or proceeding shall thereafter be set aside, or if within sixty (60) days after the entry of a decree appointing a trustee, receiver or liquidator (or other similar official) of such Borrower or any substantial part of the property of such the Borrower or any Subsidiary, such appointment shall not have been vacated; or
(i) A If a final uninsured judgment which, together with other outstanding final judgments against such Borrower, the Borrower or any Subsidiary exceeds an amount in the aggregate equal to five percent of Five Hundred Thousand Dollars (5%) of such Borrower's Total Assets (exclusive of amounts covered by available insurance$500,000.00) shall be rendered against such the Borrower or any Subsidiary and (i) if, within thirty (30) days after entry thereofprior to the availability of any execution thereon, such judgment shall not have been discharged or execution thereof shall not have been stayed pending appeal, or if, within thirty (30) days after the expiration of any such stay, such judgment shall not have been discharged, or (ii) the Borrower or such Subsidiary shall not have established adequate reserves on its books in respect of such final uninsurable judgment or judgments; or
(j) Such If any Operating Lease shall be terminated by virtue of the default by the Borrower or any member of Subsidiary thereunder and such termination would have a Material Adverse Effect on the Controlled Group shall fail to pay when due an amount or amounts aggregating in excess of $500,000 which it is obligated to pay to the PBGC or to a Plan under Title IV of ERISA; or a notice of intent to terminate a Plan or Plans having aggregate Unfunded Liabilities in excess of $500,000 shall be filed under Title IV of ERISA by such Borrower or any member of the Controlled Group, any plan administrator or any combination of the foregoing; or the PBGC shall institute proceedings under Title IV of ERISA to terminate or to cause a trustee to be appointed to administer any such Plan or Plans or a proceeding shall be instituted by a fiduciary of any such Plan or Plans against such Borrower or any member of the Controlled Group to enforce Sections 515 or 4219(c)(5) of ERISA; or a condition shall exist by reason of which the PBGC would be entitled to obtain a decree adjudicating that any such Plan or Plans must be terminated; or there shall occur a complete or partial withdrawal from, or a default, within the meaning of Section 4219(c)(5) of ERISA, with respect to, one or more Multiemployer Plans which could cause such Borrower or one or more members of the Controlled Group to incur a current payment obligation in excess of $500,000Borrower's consolidated financial condition; or
(k) Such If Mich▇▇▇ ▇. ▇▇▇▇▇▇▇▇ ▇▇▇ll cease for any reason whatsoever, including, without limitation, his death or disability, to be and continuously to perform the duties of the chief executive officer of the Borrower unless, within one hundred eighty (180) days after such cessation, a successor to Mich▇▇▇ ▇. ▇▇▇▇▇▇▇▇ ▇▇▇h demonstrated ability and experience to serve as the chief executive officer of the Borrower shall have commenced to perform the duties of the chief executive officer of the Borrower (provided, however, that if any such successor shall have been so elected and shall have commenced the performance of such duties within such period, the name of such successor shall be deemed to have been inserted in this subsection (k) in place of Mich▇▇▇ ▇. ▇▇▇▇▇▇▇▇);
(l) If any Person or group of Persons (within the meaning of Section 13 or 14 of the Securities Exchange Act of 1934, as amended) shall have acquired beneficial ownership (within the meaning of Rule 13d-3 promulgated by The Securities and Exchange Commission under said Act) of 35% or more of the outstanding Equity Interests of the Borrower; or during any period of 24 consecutive months, individuals who were members of the board of directors of the Borrower on the first day of such period shall cease to constitute a majority of the board of directors of the Borrower;
(m) If any provision of any Guaranty Agreement shall cease to be an investment management company in full force and effect or any Wholly-Owned Subsidiary shall so assert in writing; or
(n) If, for any reason (other than the Banks' affirmative election to release or a Portfolio thereofterminate the Liens created by the Pledge Agreement and any Supplemental Pledge Agreement) registered under the Investment Company Act, Pledge Agreement or such Borrower's registration under the Investment Company Act, or that of any Borrower Agent of such Borrower, Supplemental Pledge Agreement shall lapse or be suspended; then, and in any such event, and at any time thereafter, if any Event of Default shall then be continuing with respect to such defaulting Borrower, cease (i) to create valid and perfected first priority Liens on the collateral encumbered in favor of the case Agent, or (ii) to be in full force and effect or shall be declared null and void, or the validity or enforceability thereof shall be contested by the Borrower or any Subsidiary of the Borrower;
(i) upon the occurrence of any Event of Default specified described in paragraphs clause (g) and or (h) aboveof this Section 7 with respect to the Borrower or any Subsidiary, the Commitments as to such defaulting Borrower shall thereupon automatically be terminated and respective unpaid principal balances of the principal of and Notes together with all accrued interest on thereon and all other Obligations of the Loans Borrower to the Banks shall automatically become immediately due and payable payable, without presentment, demand, protest or other notice or formality of any kind, all of which are hereby expressly waived, and (ii) in the case of any other Event of Default specified above, either or both of the following actions may be taken: the Operations Agent may, and upon the written or telephonic (confirmed in writing) request of the Majority Banks shall, by written notice to such defaulting Borrower (A) declare the principal of and accrued interest in respect of such defaulting Borrower's Loans to be forthwith due and payable, whereupon the principal of and accrued interest in respect of such Loans shall become forthwith due and payable without presentment, demand, protest or other notice requirements of any kind, all of which are hereby expressly waived by such the Borrower, and/or or (Bii) terminate upon the Commitments as occurrence of any other Event of Default referred to such defaulting in this Section 7, the Requisite Banks may at any time at their option, by written notice to the Borrower, whereupon declare the Commitments respective unpaid principal balances of the Notes together with all accrued interest thereon and all other Obligations of the Borrower to the Banks to make Committed Credit Loans hereunder be due and payable in full to such defaulting Borrower shall forthwith terminate the Banks, without any presentment, demand, protest or other notice requirements of any kind and kind, all of which are hereby waived by the percentages of the Commitment Fee and other fees and expenses otherwise payable by such defaulting Borrower hereunder accruing from and after the date of termination shall be reallocated among the remaining Borrowers PRO RATA on the basis of the percentages set forth opposite such remaining Borrowers' names on SCHEDULE 1, as in effect at the time of such terminationBorrower.
Appears in 1 contract
Sources: Loan Agreement (Regal Cinemas Inc)
Events of Default; Acceleration. If any of the following events (each an "EVENT OF DEFAULT"“Event of Default”) shall occur with respect to any Borroweroccur:
(a) Such Borrower (i) Debtor shall default in the payment of fail to pay any principal of interest on this Promissory Note or any Loanother sum due under this Promissory Note, interest accrued thereon any Transaction Document, or fee due hereunder after any other note or other agreement between Debtor and RACC whether the same becomes due and payablesuch failure shall continue for ten (10) days beyond the due date of such payment;
(b) Debtor shall fail to perform any term, whether covenant or agreement contained in any of the Transaction Documents and such failure shall continue for thirty (30) days after written notice;
(c) any representation or warranty of Debtor in any of the Transaction Documents or in any certificate or notice given in connection therewith shall have been false or misleading in any material respect at maturity the time made or by acceleration deemed to have been made;
(d) Debtor shall be in default under any agreement or otherwiseagreements evidencing (i) any other debt and similar monetary obligations (including, without limitation, capitalized leases, synthetic leases or securitization transactions) (collectively, “Indebtedness”) owing to RACC or any of its affiliates, or (ii) shall default in the payment of any other amount due hereunder after the same becomes due and payable; or
(b) Such Borrower shall default Indebtedness in the performance excess of or compliance with any term contained $100,000.00 in Sections 9.01(a) or 9.01(b) and such default shall have continued for more than three (3) Banking Daysaggregate principal amount, or shall fail to pay any such Borrower shall default in the performance of Indebtedness when due or compliance with within any term contained in Sections 8.02(d), 8.02(e), 8.02(g), 8.05, 9.02, 9.03 or 9.04; or
(c) Such Borrower shall default in the performance of or compliance with any term contained herein other than those expressly referred to in this Section 10.01, and such default shall not have been remedied within five (5) Banking Days after written notice thereof shall have been given to such Borrower by the Operations Agent; or
(d) Such Borrower shall default in the performance of, or compliance with, any material term contained in any other written agreement with the Operations Agent or any Bank pertaining to this Agreement or such Borrower's Loans, and such default shall continue for more than the applicable period of grace, if any, specified therein and shall not have been waived pursuant thereto; or;
(e) Any representation, warranty certification or statement made or deemed made by such Borrower any of the Transaction Documents shall cease to be in this Agreement or in any certificate, financial statement or other document delivered pursuant hereto shall prove to have been false or incorrect in any material respect when made; orfull force and effect;
(f) Except as otherwise provided in this Section 10.01, such Borrower shall default in any payment due on Indebtedness for borrowed money or the deferred purchase price of property, the aggregate outstanding principal amount of which is in excess of five percent (5%) of such Borrower's Total Assets, and such default shall continue for more than the period of grace, if any, applicable thereto and shall not have been waived pursuant thereto and shall permit the holder of such Indebtedness to declare such Indebtedness due and payable before its stated maturity, or in the performance of or compliance with any term of any evidence of such Indebtedness or of any mortgage, indenture or other agreement relating thereto, and any such default shall continue for more than the period of grace, if any, specified therein and shall not have been waived pursuant thereto and shall permit the holder of such Indebtedness to declare such Indebtedness due and payable before its stated maturity, unless such Borrower shall be contesting such payment or obligation in good faith by appropriate proceedings promptly initiated and diligently conducted and such Borrower shall have set aside on its books such reserves, if any, with respect thereto as are required by GAAP and deemed appropriate by such Borrower and its independent public accountants, PROVIDED, that no Event of Default pursuant to paragraphs (b) or Debtor (i) of this Section 10.01 shall have occurred and be continuing as a result of such claim having been asserted in respect of such Indebtedness; or
(g) Such Borrower shall discontinue its business (other than in connection with a permitted merger or consolidation of such Borrower) or shall make an assignment for the benefit of creditors; (ii) shall be adjudicated bankrupt or insolvent; (iii) shall seek the appointment of, or be the subject of an order appointing, a trustee, liquidator or receiver as to all or part of its assets, (iv) shall fail generally commence, approve or consent to, any case or proceeding under any bankruptcy, reorganization or similar law and, in the case of an involuntary case or proceeding, such ease or proceeding is not dismissed within forty-five (45) days following the commencement thereof, or (v) shall be the subject of an order for relief in an involuntary case under federal bankruptcy law;
(g) Debtor shall be unable to pay its debts as such debts become due, or shall apply for or consent to the appointment of or taking possession by a trustee, receiver or liquidator (or other similar official) of such Borrower or any substantial part of the property or assets of such Borrower or shall commence a case or have an order for relief entered against it under the federal bankruptcy laws, as now or hereafter constituted, or any other applicable federal or state bankruptcy, insolvency or other similar law, or if any action shall be taken to dissolve or liquidate such Borrower (other than in connection with a permitted merger or consolidation of such Borrower); orthey mature;
(h) If, within sixty there shall remain undischarged for more than thirty (6030) days after the commencement against such Borrower of a case under the federal bankruptcy laws, as now or hereafter constituted, or any other applicable federal or state bankruptcy, insolvency or other similar law, such case shall have been consented to or shall not have been dismissed or all orders or proceedings thereunder affecting the operations or the business of such Borrower stayed, or if the stay of any such order or proceeding shall thereafter be set aside, or if within sixty (60) days after the entry of a decree appointing a trustee, receiver or liquidator (or other similar official) of such Borrower or any substantial part of the property of such Borrower such appointment shall not have been vacated; or
(i) A final judgment whichor execution action against Debtor that, together with other outstanding final judgments claims and execution actions against such BorrowerDebtor, respectively, exceeds an amount $100,000.00 in the aggregate equal to five percent (5%) of such Borrower's Total Assets (exclusive of amounts covered by available insurance) shall be rendered against such Borrower and if, within thirty (30) days after entry thereof, such judgment shall not have been discharged or execution thereof stayed pending appeal, or if, within thirty (30) days after the expiration of any such stay, such judgment shall not have been discharged; oraggregate;
(j) Such Borrower or any member of the Controlled Group shall fail to pay when due an amount or amounts aggregating in excess of $500,000 which it is obligated to pay to the PBGC or to a Plan under Title IV of ERISA; or a notice of intent to terminate a Plan or Plans having aggregate Unfunded Liabilities in excess of $500,000 shall be filed under Title IV of ERISA by such Borrower or any member of the Controlled Group, any plan administrator or any combination of the foregoing; or the PBGC shall institute proceedings under Title IV of ERISA to terminate or to cause a trustee to be appointed to administer any such Plan or Plans or a proceeding shall be instituted by a fiduciary of any such Plan or Plans against such Borrower or any member of the Controlled Group to enforce Sections 515 or 4219(c)(5) of ERISA; or a condition shall exist by reason of which the PBGC would be entitled to obtain a decree adjudicating that any such Plan or Plans must be terminated; or there shall occur a complete or partial withdrawal from, or a default, within the meaning of Section 4219(c)(5) of ERISA, with respect to, one or more Multiemployer Plans which could cause such Borrower or one or more members of the Controlled Group to incur a current payment obligation in excess of $500,000; or
(k) Such Borrower shall cease to be an investment management company (or a Portfolio thereof) registered under the Investment Company Act, or such Borrower's registration under the Investment Company Act, or that of any Borrower Agent of such Borrower, shall lapse or be suspended; then, and in any such event, and at any time thereafter, if any Event of Default shall then be continuing with respect to such defaulting Borrower, (i) in to the case extent not covered by insurance, any of any Event of Default specified in paragraphs (g) and (h) abovethe Aircraft shall have been lost, the Commitments as stolen or confiscated or shall have incurred substantial damage or have been destroyed to such defaulting Borrower shall thereupon automatically be terminated and an extent that the principal of and accrued interest on the Loans shall automatically become due and payable without presentment, demand, protest or other notice or formality of any kind, all of which are hereby expressly waived, and repair thereof is impracticable (ii) in the case of any other Event of Default specified above, either or both of the following actions may be taken: the Operations Agent may, and upon the written or telephonic (confirmed in writing) request of the Majority Banks shall, as determined solely by written notice to such defaulting Borrower (A) declare the principal of and accrued interest in respect of such defaulting Borrower's Loans to be forthwith due and payable, whereupon the principal of and accrued interest in respect of such Loans shall become forthwith due and payable without presentment, demand, protest or other notice of any kind, all of which are hereby expressly waived by such Borrower, and/or (B) terminate the Commitments as to such defaulting Borrower, whereupon the Commitments of the Banks to make Committed Credit Loans hereunder to such defaulting Borrower shall forthwith terminate without any other notice of any kind and the percentages of the Commitment Fee and other fees and expenses otherwise payable by such defaulting Borrower hereunder accruing from and after the date of termination shall be reallocated among the remaining Borrowers PRO RATA on the basis of the percentages set forth opposite such remaining Borrowers' names on SCHEDULE 1, as in effect at the time of such termination.RACC); or
Appears in 1 contract
Sources: Group a Engine Overhaul Note (Great Lakes Aviation LTD)
Events of Default; Acceleration. 8.1 If any of the following events (each an "EVENT OF DEFAULTEvent of Default," or, if the giving of notice or the lapse of time or both is required, then, prior to such notice and/or lapse of time, a "Default") shall occur with respect to any Borroweroccur:
(a) Such Borrower Borrowers shall fail to make any payment of principal or interest on any Loan within five (5) Business Days after the date that such payment is due;
(b) Borrowers shall fail to pay any fees, overriding royalty payments or other sums due hereunder or under any Loan Document within ten (10) days after the date that any such payment is due;
(c) Borrowers shall fail to either (i) shall default in the payment of principal of any Loan, interest accrued thereon or fee due hereunder after the same becomes due and payable, whether at maturity or by acceleration or otherwisemake a prepayment to EIF, or (ii) grant and convey to EIF additional collateral, in compliance with the terms of Section 2.14 of this Agreement within the time period on which Section 2.14 requires Borrowers to take such action;
(d) Borrowers shall fail to perform any other term, covenant or agreement contained herein or in any Loan Document and such failure shall continue for thirty (30) days after written notice of such failure has been given to Borrower by EIF;
(e) An event of default entitling EIF to accelerate any other loan from EIF to Borrower shall occur;
(f) Any representation or warranty of Borrowers in this Agreement or in any document or instrument delivered pursuant to or in connection with this Agreement or any other Loan Document shall prove to have been false in any material respect upon the date when made;
(g) Either Borrower shall default in the payment of any other amount due hereunder after the same becomes due and payable; or
(b) Such Borrower shall default in the performance principal of or compliance with interest on any term contained in Sections 9.01(a) Indebtedness aggregating $25,000 or 9.01(b) and such default shall have continued for more than three (3) Banking Days, or such Borrower shall default in the performance of or compliance with beyond any term contained in Sections 8.02(d), 8.02(e), 8.02(g), 8.05, 9.02, 9.03 or 9.04; or
(c) Such Borrower shall default in the performance of or compliance with any term contained herein other than those expressly referred to in this Section 10.01, and such default shall not have been remedied within five (5) Banking Days after written notice thereof shall have been given to such Borrower by the Operations Agent; or
(d) Such Borrower shall default in the performance of, or compliance with, any material term contained in any other written agreement with the Operations Agent or any Bank pertaining to this Agreement or such Borrower's Loans, and such default shall continue for more than the period of grace, if any, specified therein and shall not have been waived pursuant thereto; or
(e) Any representation, warranty certification grace provided with respect thereto unless the validity or statement made or deemed made by such Borrower in this Agreement or in any certificate, financial statement or other document delivered pursuant hereto shall prove to have been false or incorrect in any material respect when made; or
(f) Except as otherwise provided in this Section 10.01, such Borrower shall default in any payment due on Indebtedness for borrowed money or the deferred purchase price of property, the aggregate outstanding principal amount of which is in excess of five percent (5%) of such Borrower's Total Assets, and such default shall continue for more than the period of grace, if any, applicable thereto and shall not have been waived pursuant thereto and shall permit the holder of such Indebtedness to declare shall currently be contested by such Indebtedness due and payable before its stated maturity, or in the performance of or compliance with any term of any evidence of such Indebtedness or of any mortgage, indenture or other agreement relating thereto, and any such default shall continue for more than the period of grace, if any, specified therein and shall not have been waived pursuant thereto and shall permit the holder of such Indebtedness to declare such Indebtedness due and payable before its stated maturity, unless such Borrower shall be contesting such payment or obligation Borrowers in good faith by appropriate proceedings promptly initiated and diligently conducted and unless such Borrower shall have set aside on its books such reserves, if any, adequate reserves with respect thereto as are required by GAAP thereto; or any other event shall occur which is specified in any note, agreement, indenture or other document evidencing or relating to any such Indebtedness if the effect of such event is to cause or to permit the holder or holders of such Indebtedness to cause (assuming the giving of any notice and deemed appropriate by the lapse of any time period commencing on the giving of notice) such Indebtedness to become due prior to its stated maturity;
(h) Either Borrower and its independent public accountants, PROVIDED, that no Event of Default pursuant to paragraphs (b) or shall: (i) of this Section 10.01 shall have occurred and be continuing as a result of such claim having been asserted in respect of such Indebtedness; or
(g) Such Borrower shall discontinue its business (other than in connection with a permitted merger apply for or consolidation of such Borrower) or shall make an assignment for consent to the benefit of creditorsappointment of, or shall fail the taking of possession by, a receiver, custodian, trustee or liquidator of itself or of all or a substantial part of its property; (ii) be generally unable to pay its debts as such debts become due; (iii) make a general assignment for the benefit of its creditors; (iv) commence a voluntary case under the United States Bankruptcy Code (as now or hereafter in effect); (v) file a petition seeking to take advantage of any other law of any jurisdiction relating to bankruptcy, insolvency, reorganization, winding-up, or composition or readjustment of debts; (vi) fail to controvert in a timely and appropriate manner, or acquiesce in writing to, any petition filed against such Borrower in an involuntary case under the United States Bankruptcy Code; or (vii) take any action for the purpose of effecting any of the foregoing;
(i) A proceeding or case shall apply for be commenced, without the application or consent to of Borrowers, in any court of competent jurisdiction, seeking (i) either Borrower's liquidation, reorganization, dissolution or winding-up, or the composition or readjustment of its debts, (ii) the appointment of or taking possession by a trustee, receiver receiver, custodian, liquidator or liquidator (the like of either Borrower or other similar official) of such Borrower all or any substantial part of the property such Borrower's assets, or assets (iii) similar relief in respect of such Borrower under any law of any jurisdiction relating to bankruptcy, insolvency, reorganization, winding-up, or the composition or readjustment of its debts, and such proceeding or case shall commence continue undismissed, or an order, judgment or decree approving or ordering any of the foregoing shall be entered and continue unstayed and in effect for a case period of sixty (60) days; or have an order for relief against either Borrower shall be entered against it in an involuntary case under the federal bankruptcy laws, as now or hereafter constituted, or any other applicable federal or state bankruptcy, insolvency insolvency, reorganization, winding-up, composition, readjustment of debt, dissolution or other liquidation or similar law, or if law of any action shall be taken to dissolve or liquidate such Borrower (other than in connection with a permitted merger or consolidation of such Borrower)jurisdiction; or
(h) If, within sixty (60) days after the commencement against such Borrower of a case under the federal bankruptcy laws, as now or hereafter constituted, or any other applicable federal or state bankruptcy, insolvency or other similar law, such case shall have been consented to or shall not have been dismissed or all orders or proceedings thereunder affecting the operations or the business of such Borrower stayed, or if the stay of any such order or proceeding shall thereafter be set aside, or if within sixty (60) days after the entry of a decree appointing a trustee, receiver or liquidator (or other similar official) of such Borrower or any substantial part of the property of such Borrower such appointment shall not have been vacated; or
(i) A final judgment which, together with other outstanding final judgments against such Borrower, exceeds an amount in the aggregate equal to five percent (5%) of such Borrower's Total Assets (exclusive of amounts covered by available insurance) shall be rendered against such Borrower and if, within thirty (30) days after entry thereof, such judgment shall not have been discharged or execution thereof stayed pending appeal, or if, within thirty (30) days after the expiration of any such stay, such judgment shall not have been discharged; or
(j) Such Borrower or any member of the Controlled Group shall fail to pay when due an amount or amounts aggregating in excess of $500,000 which it is obligated to pay to the PBGC or to a Plan under Title IV of ERISA; or a notice of intent to terminate a Plan or Plans having aggregate Unfunded Liabilities in excess of $500,000 shall be filed under Title IV of ERISA by such Borrower or any member of the Controlled Group, any plan administrator or any combination of the foregoing; or the PBGC shall institute proceedings under Title IV of ERISA to terminate or to cause a trustee to be appointed to administer any such Plan or Plans or a proceeding shall be instituted by a fiduciary of any such Plan or Plans against such Borrower or any member of the Controlled Group to enforce Sections 515 or 4219(c)(5) of ERISA; or a condition shall exist by reason of which the PBGC would be entitled to obtain a decree adjudicating that any such Plan or Plans must be terminated; or there shall occur a complete or partial withdrawal from, or a default, within the meaning of Section 4219(c)(5) of ERISA, with respect to, one or more Multiemployer Plans which could cause such Borrower or one or more members of the Controlled Group to incur a current payment obligation in excess of $500,000; or
(k) Such Borrower shall cease to be an investment management company (or a Portfolio thereof) registered under the Investment Company Act, or such Borrower's registration under the Investment Company Act, or that of any Borrower Agent of such Borrower, shall lapse or be suspended; then, and in any such event, and at any time thereafter, if any Event of Default shall then be continuing with respect to such defaulting Borrower, (i) in the case of any Event of Default specified in paragraphs (g) and (h) above, the Commitments as to such defaulting Borrower shall thereupon automatically be terminated and the principal of and accrued interest on the Loans shall automatically become due and payable without presentment, demand, protest or other notice or formality of any kind, all of which are hereby expressly waived, and (ii) in the case of any other Event of Default specified above, either or both of the following actions may be taken: the Operations Agent may, and upon the written or telephonic (confirmed in writing) request of the Majority Banks shall, by written notice to such defaulting Borrower (A) declare the principal of and accrued interest in respect of such defaulting Borrower's Loans to be forthwith due and payable, whereupon the principal of and accrued interest in respect of such Loans shall become forthwith due and payable without presentment, demand, protest or other notice of any kind, all of which are hereby expressly waived by such Borrower, and/or (B) terminate the Commitments as to such defaulting Borrower, whereupon the Commitments of the Banks to make Committed Credit Loans hereunder to such defaulting Borrower shall forthwith terminate without any other notice of any kind and the percentages of the Commitment Fee and other fees and expenses otherwise payable by such defaulting Borrower hereunder accruing from and after the date of termination shall be reallocated among the remaining Borrowers PRO RATA on the basis of the percentages set forth opposite such remaining Borrowers' names on SCHEDULE 1, as in effect at the time of such termination.
Appears in 1 contract
Sources: Financing Agreement (Foreland Corp)
Events of Default; Acceleration. If any of the following events (each an "EVENT OF DEFAULTEvents of Default") shall occur with respect to any Borroweroccur:
(a) Such Borrower (i) if the Company shall default in the payment of any principal of any Loan, interest accrued thereon or fee due hereunder after the Note when the same becomes due and payable, whether at maturity or at a date fixed for prepayment or by acceleration declaration or otherwise, or ; or
(iib) if the Company shall default in the payment of any other amount due hereunder interest on the Note for more than 5 days after the same becomes due and payable; or
(bc) Such Borrower if the Company shall default in the performance of or compliance with any term contained in Sections 9.01(a) or 9.01(b) and such default shall have continued for more than three (3) Banking Days10 to 17, or such Borrower shall default in the performance of or compliance with any term contained in Sections 8.02(d), 8.02(e), 8.02(g), 8.05, 9.02, 9.03 or 9.04inclusive; or
(cd) Such Borrower if the Company shall default in the performance of or compliance with any term contained herein other than those expressly referred to above in this Section 10.01, 22 and such default shall not have been remedied within five 30 days after the earlier of (5i) Banking Days after any principal officer of the Company obtaining knowledge thereof or (ii) written notice thereof shall have having been given to the Company by any holder of the Note, but if such Borrower by default cannot reasonably be remedied within such 30-day period but can be remedied within 60 days thereafter, it shall not constitute an Event of Default hereunder if the Operations AgentCompany shall commence to remedy such default within such 30-day period and shall diligently continue until such default is remedied; or
(de) Such Borrower if any representation or warranty made in writing by or on behalf of the Company herein or pursuant hereto or otherwise in connection with the transactions contemplated hereby shall prove to have been false or incorrect in any material respect on the date as of which made; or
(f) if the Company or any Subsidiary shall default (as principal or guarantor or other surety or otherwise) in the payment of any principal of or premium, if any, or interest on any indebtedness in respect of borrowed money or any capital lease obligation having an aggregate principal amount of not less than $1,000,000 and such default shall continue for more than the period of grace, if any, applicable thereto, or if the Company or any Subsidiary shall default in the performance of, of or compliance withwith any term of any evidence of such indebtedness or obligation or of any mortgage, any material term contained in any indenture or other written agreement with the Operations Agent or any Bank pertaining to this Agreement or such Borrower's Loansrelating thereto having an aggregate principal amount of not less than $1,000,000, and such default shall continue for more than the period of grace, if any, specified therein and shall not have been waived pursuant thereto; or
(e) Any representation, warranty certification or statement made or deemed made by such Borrower in this Agreement or in any certificate, financial statement or other document delivered pursuant hereto shall prove to have been false or incorrect in any material respect when made; or
(f) Except as otherwise provided in this Section 10.01, such Borrower shall default in any payment due on Indebtedness for borrowed money or the deferred purchase price of property, the aggregate outstanding principal amount of which is in excess of five percent (5%) of such Borrower's Total Assets, and such default shall continue for more than the period of grace, if any, applicable thereto and shall not have been waived pursuant thereto and shall permit the holder of such Indebtedness to declare such Indebtedness due and payable before its stated maturity, or in the performance of or compliance with any term of any evidence of such Indebtedness or of any mortgage, indenture or other agreement relating thereto, and any such default shall continue for more than the period of grace, if any, specified therein and shall not have been waived pursuant thereto and shall permit the holder of such Indebtedness to declare such Indebtedness due and payable before its stated maturity, unless such Borrower shall be contesting such payment or obligation in good faith by appropriate proceedings promptly initiated and diligently conducted and such Borrower shall have set aside on its books such reserves, if any, with respect thereto as are required by GAAP and deemed appropriate by such Borrower and its independent public accountants, PROVIDED, that no Event of Default pursuant to paragraphs (b) or (i) of this Section 10.01 shall have occurred and be continuing as a result of such claim having been asserted in respect of such Indebtedness; or
(g) Such Borrower shall discontinue its business (other than in connection with a permitted merger if the Company or consolidation of such Borrower) or any Subsidiary shall make an assignment for the benefit of creditors, or shall fail generally to pay its debts as such debts become due, or shall apply for or consent to the appointment of or taking possession by a trustee, receiver or liquidator (or other similar official) of the Company or such Borrower Subsidiary or any substantial part of the property or assets of such Borrower its property, or shall commence a case or have an order for to relief entered against it under the federal Federal bankruptcy laws, as now or hereafter constituted, or any other applicable federal Federal or state bankruptcy, insolvency or other similar law, or if the Company or any Significant Subsidiary or its directors or majority shareholders shall take any action shall be taken looking to dissolve the dissolution or liquidate liquidation of the Company or such Borrower (other than in connection with a permitted merger or consolidation of such Borrower)Significant Subsidiary; or
(h) Ifif, within sixty (60) 60 days after the commencement against such Borrower the Company or any Subsidiary of a case under the federal Federal bankruptcy laws, as now or hereafter constituted, or any other applicable federal Federal or state bankruptcy, insolvency or other similar law, such case shall have been consented to or shall not have been dismissed or all orders or proceedings thereunder affecting the operations or the business of the Company or such Borrower Subsidiary stayed, or if the stay of any such order or proceeding shall thereafter be set aside, or if within sixty (60) 60 days after the entry of a decree appointing a trustee, receiver or liquidator (or other similar official) of the Company or such Borrower Subsidiary or any substantial part of the property of such Borrower its property, such appointment shall not have been vacated; or
(i) A if a final judgment which, together with other outstanding final judgments against such Borrowerthe Company and its Subsidiaries, exceeds an amount in the aggregate equal to five percent (5%) of such Borrower's Total Assets (exclusive of amounts covered by available insurance) $1,000,000 shall be rendered against such Borrower the Company or any Subsidiary and if, within thirty (30) 60 days after the entry thereof, such judgment shall not have been discharged or discharged, execution thereof stayed pending appeal, or if, if said judgment shall not have been bonded pursuant to an order of court within thirty (30) 60 days after the expiration of any such stay, such judgment shall not have been discharged; or
(j) Such Borrower if any Banking Subsidiary shall become insolvent, or any member of the Controlled Group shall fail to pay when due an amount receiver, conservator, liquidating agent or amounts aggregating in excess of $500,000 which it is obligated to pay to the PBGC or to a Plan under Title IV of ERISA; or a notice of intent to terminate a Plan or Plans having aggregate Unfunded Liabilities in excess of $500,000 governmental authority shall be filed under Title IV appointed for or take possession or charge of ERISA by such Borrower Banking Subsidiary or any member all or substantially all of the Controlled Group, any plan administrator or any combination of the foregoing; or the PBGC shall institute proceedings under Title IV of ERISA to terminate or to cause a trustee to be appointed to administer any such Plan or Plans or a proceeding shall be instituted by a fiduciary of any such Plan or Plans against such Borrower or any member of the Controlled Group to enforce Sections 515 or 4219(c)(5) of ERISA; or a condition shall exist by reason of which the PBGC would be entitled to obtain a decree adjudicating that any such Plan or Plans must be terminated; or there shall occur a complete or partial withdrawal from, or a default, within the meaning of Section 4219(c)(5) of ERISA, with respect to, one or more Multiemployer Plans which could cause such Borrower or one or more members of the Controlled Group to incur a current payment obligation in excess of $500,000; or
(k) Such Borrower shall cease to be an investment management company (or a Portfolio thereof) registered under the Investment Company Actits assets, or such Borrower's registration under the Investment Company Act, or that Banking Subsidiary shall suspend payment of any Borrower Agent of such Borrower, shall lapse or be suspended; then, and in any such event, and at any time thereafter, if any Event of Default shall then be continuing with respect to such defaulting Borrower, its obligations;
(i) in upon the case occurrence of any Event of Default (other than an Event of Default specified in paragraphs (g) and Clause (h) aboveor (j) above ), you, at your option, may (unless all defaults shall have theretofore been remedied), by written notice or notices to the Commitments as Company, declare all amounts outstanding under the Note to such defaulting Borrower be due and payable, whereupon the same shall thereupon automatically be terminated forthwith mature and the principal of and accrued interest on the Loans shall automatically become due and payable in an amount equal to the principal balance of the Note together with interest accrued thereon, plus a Make-Whole Amount, (collectively the "Default Amount"), without presentment, demand, protest or other notice or formality of any kindnotice, all of which are hereby expressly waived, and (ii) in the case of any other . If an Event of Default specified abovein Clause (h) or (j) above occurs and is continuing, either or both of then the following actions may Default Amount shall ipso facto become and be taken: the Operations Agent may, and upon the written or telephonic (confirmed in writing) request of the Majority Banks shall, by written notice to such defaulting Borrower (A) declare the principal of and accrued interest in respect of such defaulting Borrower's Loans to be forthwith due and payable, whereupon the principal of and accrued interest in respect of such Loans shall become forthwith immediately due and payable without presentment, demand, protest any declaration or other notice act on your part. At any time after the principal of the Note has been declared due and payable and before any kindjudgment with respect thereto has been entered, all such declaration and its consequences may be rescinded and annulled with the consent of which are hereby expressly waived the holders of a majority of the outstanding principal amount of the Note by such Borrower, and/or (B) terminate the Commitments as filing with the Company of a written instrument or instruments to such defaulting Borrowereffect; provided, whereupon however, that no such rescission or annulment will be permitted unless all arrears of interest and all other sums payable under the Commitments Note and under this Agreement (other than amounts due by reason of the Banks acceleration) shall have been duly paid; provided, further, that no such rescission shall extend to make Committed Credit Loans hereunder to such defaulting Borrower shall forthwith terminate without or affect any other notice subsequent default or Event of Default or impair any kind and the percentages of the Commitment Fee and other fees and expenses otherwise payable by such defaulting Borrower hereunder accruing from and after the date of termination shall be reallocated among the remaining Borrowers PRO RATA on the basis of the percentages set forth opposite such remaining Borrowers' names on SCHEDULE 1, as in effect at the time of such terminationright consequent thereon.
Appears in 1 contract
Sources: Indenture Agreement (Mason Dixon Bancshares Inc/Md)
Events of Default; Acceleration. If 6.1 The following shall constitute events of default (individually, an "Event of Default"):
(i) default in the payment, when due or payable, (x) of any Obligation for the payment of principal; or (y) within 5 days after the due date therefor, of any other Obligation for the payment of money; or
(ii) default in the performance or observance of or compliance with (x) any of the following events provisions of Sections 2 (each an "EVENT OF DEFAULT") shall occur with respect to any Borrower:
(a) Such Borrower (i) shall default in other than the payment of principal and interest), 5.1, 5.2, 5.3 (other than with respect to the first sentence thereof, which shall be covered by subsection (iii) below), 5.5 through 5.10, inclusive, 5.12 through 5.29, inclusive, of any Loan, interest accrued thereon or fee due hereunder after the same becomes due and payable, whether at maturity or by acceleration or otherwisethis Agreement, or (iiy) shall default in any term or condition of the Credit Note (other than the payment of any other amount due hereunder after the same becomes due principal and payableinterest); or
(biii) Such Borrower shall default in the performance or observance of or compliance with any term contained other covenant or condition of this Agreement or any Other Obligation not listed in Sections 9.01(asubsections (i) or 9.01(b(ii) above, and such default shall have continued continues for more than three (3) Banking Days, or such Borrower shall default in the performance of or compliance with any term contained in Sections 8.02(d), 8.02(e), 8.02(g), 8.05, 9.02, 9.03 or 9.0430 days; or
(civ) Such Borrower shall default in the performance of any representation or compliance with warranty at any term contained herein other than those expressly referred to in this Section 10.01, and such default shall not have been remedied within five (5) Banking Days after written notice thereof shall have been given to such Borrower by the Operations Agent; or
(d) Such Borrower shall default in the performance of, or compliance with, any material term contained in any other written agreement with the Operations Agent or any Bank pertaining to this Agreement or such Borrower's Loans, and such default shall continue for more than the period of grace, if any, specified therein and shall not have been waived pursuant thereto; or
(e) Any representation, warranty certification or statement made or deemed time made by such or on behalf of the Borrower in this Agreement Agreement, any other Loan Document, or in any certificateconnection with the transactions contemplated by the Loan Documents, financial statement or other document delivered pursuant hereto shall prove to have been false or incorrect in any material respect upon the date when made or deemed to have been made; or
(fv) Except as otherwise provided in this Section 10.01, such the occurrence of any of the following events:
(a) the Borrower shall default in or any Subsidiary (1) fails to make any payment due on in respect of any Indebtedness for borrowed money or the deferred purchase price Contingent Obligation (other than in respect of property, the Swap Contacts) having an aggregate outstanding principal amount of which is in excess of five percent (5%including undrawn committed or available amounts and including amounts owing to all creditors under any combined or syndicated credit arrangement) of such Borrower's Total Assetsmore than Two Million Five Hundred Thousand Dollars ($2,500,000) when due (whether by scheduled maturity, required prepayment, acceleration, demand, or otherwise) and such default shall continue for more than failure continues after the period of graceapplicable grace or notice period, if any, specified in the relevant document on the date of such failure or (2) fails to perform or observe any other condition or covenant, or any other event shall occur or condition exist, under any agreement or instrument relating to any Indebtedness or Contingent Obligation (other than in respect of Swap Contracts) having an aggregate principal amount (including undrawn committed or available amounts and including amounts owing to all creditors under any combined or syndicated credit arrangement) of more than Two Million Five Hundred Thousand Dollars ($2,500,000) when due (whether by scheduled maturity, required prepayment, acceleration, demand, or otherwise) and such failure continues after the applicable thereto and shall not have been waived pursuant thereto and shall grace or notice period, if any, specified in the relevant document on the date of such failure if the effect of such failure, event or condition is to cause, or permit the holder or holders of such Indebtedness to declare or beneficiary or beneficiaries of such Indebtedness (or a trustee or agent on behalf of such holder or holders or beneficiary or beneficiaries) to cause such Indebtedness to be declared to be due and payable before prior to its stated maturity, or such Contingent Obligation to become payable or cash collateral in the performance of respect thereof to be demanded; or compliance with any term of any evidence of such Indebtedness or of any mortgage, indenture or other agreement relating thereto, and any such default shall continue for more than the period of grace, if any, specified therein and shall not have been waived pursuant thereto and shall permit the holder of such Indebtedness to declare such Indebtedness due and payable before its stated maturity, unless such Borrower shall be contesting such payment or obligation in good faith by appropriate proceedings promptly initiated and diligently conducted and such Borrower shall have set aside on its books such reserves, if any, with respect thereto as are required by GAAP and deemed appropriate by such Borrower and its independent public accountants, PROVIDED, that no Event of Default pursuant to paragraphs (b) there occurs under any Swap Contract an Early Termination Date (as defined in such Swap Contract) resulting from (A) any event of default under such Swap Contract as to which the Borrower or any Subsidiary is the Defaulting Party (as defined in such Swap Contract) or (iB) of this Section 10.01 shall have occurred and be continuing any Termination Event (as defined in such Swap Contract) as to which the Borrower or any Subsidiary is an Affected Party (as defined in such Swap Contract), and, in either event, the Swap Termination Value owed by the Borrower or such Subsidiary as a result of such claim having been asserted in respect of such Indebtedness; or
thereof is greater than Two Million Five Hundred Thousand Dollars (g) Such Borrower shall discontinue its business (other than in connection with a permitted merger or consolidation of such Borrower) or shall make an assignment for the benefit of creditors, or shall fail generally to pay its debts as such debts become due, or shall apply for or consent to the appointment of or taking possession by a trustee, receiver or liquidator (or other similar official) of such Borrower or any substantial part of the property or assets of such Borrower or shall commence a case or have an order for relief entered against it under the federal bankruptcy laws, as now or hereafter constituted, or any other applicable federal or state bankruptcy, insolvency or other similar law, or if any action shall be taken to dissolve or liquidate such Borrower (other than in connection with a permitted merger or consolidation of such Borrower$2,500,000); or
(hvi) Ifissuance of an injunction which might have a material adverse effect on the condition (financial or otherwise), within sixty (60) days after properties, business or results of operations of the commencement against such Borrower of a case under the federal bankruptcy laws, as now or hereafter constitutedBorrower, or attachment which in the aggregate exceeds $1,000,000 in value, against the Borrower, any other applicable federal or state bankruptcy, insolvency or other similar law, such case shall have been consented to or shall not have been dismissed or all orders or proceedings thereunder affecting property of the operations or the business of such Borrower stayed, or if the stay of any such order or proceeding shall thereafter be set aside, or if within sixty (60) days after the entry of a decree appointing a trustee, receiver or liquidator (or other similar official) of such Borrower or any substantial part endorser, guarantor or surety for any Obligation which is not dismissed or bonded, to the satisfaction of the property of such Borrower such appointment shall not have been vacatedLender, within 10 days after its issuance; or
(ivii) A final judgment whichcalling of a meeting of creditors, together formation or appointment of a committee of creditors or liquidating agents or offering of a composition or extension to creditors by, for or with other outstanding final judgments against such Borrowerthe consent or acquiescence of the Borrower or any endorser, exceeds an amount in the aggregate equal to five percent (5%) of such Borrower's Total Assets (exclusive of amounts covered by available insurance) shall be rendered against such Borrower and if, within thirty (30) days after entry thereof, such judgment shall not have been discharged guarantor or execution thereof stayed pending appeal, or if, within thirty (30) days after the expiration of surety for any such stay, such judgment shall not have been dischargedObligation; or
(jviii) Such Insolvency of the Borrower or any member of the Controlled Group shall fail to pay when due an amount endorser, guarantor or amounts surety for any Obligation (including without limitation any Subsidiary); or
(ix) any money judgment or judgments aggregating in excess of $500,000 which it is obligated to pay to 1,000,000 are entered against the PBGC or to a Plan under Title IV of ERISA; or a notice of intent to terminate a Plan or Plans having aggregate Unfunded Liabilities in excess of $500,000 shall be filed under Title IV of ERISA by such Borrower or any member endorser, guarantor or surety for any Obligation (except to the extent fully covered by insurance and the insurance carrier has not reserved the right to disallow such claim), and shall continue unsatisfied and in effect for a period of 10 days, PROVIDED THAT the Controlled Group, total cost of any plan administrator or any combination bond applied in order to procure a stay of the foregoing; or the PBGC shall institute proceedings under Title IV of ERISA to terminate or to cause a trustee to be appointed to administer execution in any such Plan or Plans or a proceeding litigation shall be instituted by a fiduciary of any such Plan or Plans against such Borrower or any member of the Controlled Group to enforce Sections 515 or 4219(c)(5) of ERISA; or a condition shall exist by reason of which the PBGC would be entitled to obtain a decree adjudicating that any such Plan or Plans must be terminated; or there shall occur a complete or partial withdrawal from, or a default, within the meaning of Section 4219(c)(5) of ERISA, with respect to, one or more Multiemployer Plans which could cause such Borrower or one or more members of the Controlled Group to incur a current payment obligation in excess of not exceed $500,000100,000; or
(kx) Such Borrower any Loan Document (other than a Subsidiary Guaranty), or any covenant, agreement or obligation contained therein or evidenced thereby, shall cease to be an investment management company legal, valid, binding or enforceable in accordance with its terms, or shall be canceled, terminated, revoked or rescinded; or
(xi) a Subsidiary fails in any material respect to perform or observe and term, covenant or agreement in its Subsidiary Guaranty; or a Portfolio thereofSubsidiary Guaranty is for any reason partially (including with respect to future advances) registered under the Investment Company Actor wholly revoked or invalidated, or such Borrower's registration under the Investment Company Actotherwise ceases to be in full force and effect, or that of any Borrower Agent of such Borrower, shall lapse or be suspended; then, and a Subsidiary contests in any such eventmanner the validity or enforceability of its Subsidiary Guaranty or denies that it has any further liability or obligation thereunder;
(xii) any action at law, and at suit in equity or other legal proceeding to cancel, revoke or rescind any time thereafterLoan Document shall be commenced by or on behalf of the Borrower or any other person bound thereby, if or by any court or any other governmental or regulatory authority or agency of competent jurisdiction; or any court or any other governmental or regulatory authority or agency of competent jurisdiction shall make a determination that, or shall issue a judgment, order, decree or ruling to the effect that, any one or more of the Loan Documents, or any one or more of the obligations of the Borrower or any other person under any one or more of the Loan Documents, are illegal, invalid or unenforceable in accordance with the terms thereof; or
(xiii) there occurs any Change of Control; or
(xiv) any event occurs which could reasonably be expected to have a material adverse effect on the condition (financial or otherwise), properties, business or results of operations of the Borrower.
6.2 If an Event of Default shall then occur and be continuing with respect to such defaulting Borrowercontinuing, the Lender may, at its option, (i) in declare any or all of the case Obligations of any Event of Default specified in paragraphs (g) and (h) above, the Commitments as Borrower to such defaulting Borrower shall thereupon automatically the Lender to be terminated and the principal of and accrued interest on the Loans shall automatically become immediately due and payable without presentment, demand, protest or other further notice or formality of any kind, all of which are hereby expressly waived, and (ii) in the case of any other Event of Default specified above, either or both of the following actions may be taken: the Operations Agent may, and upon the written or telephonic (confirmed in writing) request of the Majority Banks shall, by written notice to such defaulting Borrower (A) declare the principal of and accrued interest in respect of such defaulting Borrower's Loans to be forthwith due and payabledemand, whereupon the principal of and accrued interest in respect of such Loans same shall become forthwith immediately due and payable without presentment, demand, protest or other notice of any kind, all of which are hereby expressly waived by such the Borrower, and/or (Bii) limit, suspend or terminate the Commitments as Borrower's right to such defaulting Borrowerborrow hereunder, whereupon and (iii) exercise any rights and remedies under the Commitments Loan Documents and at law or in equity; PROVIDED THAT in the event of the Banks to make Committed Credit Loans hereunder to such defaulting Borrower any Event of Default specified in subsections (vii) or (viii) of Section 6.1 hereof, all Obligations shall forthwith terminate become immediately due and payable automatically and without any other requirement of notice of any kind and from the percentages of Lender or action by the Commitment Fee and other fees and expenses otherwise payable by such defaulting Borrower hereunder accruing from and after the date of termination shall be reallocated among the remaining Borrowers PRO RATA on the basis of the percentages set forth opposite such remaining Borrowers' names on SCHEDULE 1, as in effect at the time of such terminationLender.
Appears in 1 contract
Sources: Loan Agreement (C P Clare Corp)
Events of Default; Acceleration. If any of the following events occurs (each an "EVENT OF DEFAULT") each, a “Default”), all Loans shall occur with respect to any Borrowerbecome due immediately, at the Lender’s option:
(a) Such The Borrower fails to pay when due (i) shall default in the payment principal amount or any interest of principal of any Loan, interest accrued thereon or fee due hereunder after the same becomes due and payable, whether at maturity or by acceleration or otherwise, Loans or (ii) shall default in any of the payment of other Liabilities or any other debt to any Person, or any amount due hereunder after payable with respect to any of the same becomes due Liabilities, or under the Note, any other Related Document, or any agreement or instrument evidencing other debt to any Person and payable; orsuch failure continues for five (5) business days.
(b) Such Borrower shall default in The Borrower: (i) fails to observe or perform or otherwise violates any term, covenant, condition or agreement of Section 5.2, 5.7, or 6.2 of this Agreement; (ii) makes any materially incorrect or misleading representation, warranty, or certificate to the performance Lender; or (iii) defaults under the terms of any agreement or compliance with instrument relating to any term contained in Sections 9.01(a) or 9.01(bdebt for borrowed money (other than the debt evidenced by the Related Documents) and the effect of such default shall have continued for more than three (3) Banking Days, or such Borrower shall default in will allow the performance of or compliance with any term contained in Sections 8.02(d), 8.02(e), 8.02(g), 8.05, 9.02, 9.03 or 9.04; orcreditor to declare the debt due before its stated maturity.
(c) Such The Borrower shall default in the performance fails to observe or perform or otherwise violates any term, covenant, condition or agreement of or compliance with any term contained herein provision of this Agreement (other than those expressly referred to as set forth in any other subsection of this Section 10.01, 8.1) or any other Related Document and any such default shall not have been remedied within five failure continues for thirty (530) Banking Days after written notice thereof shall have been given to such Borrower by the Operations Agent; ordays or more;
(d) Such The Borrower shall default in the performance of, or compliance with, any material term contained in any other written agreement with the Operations Agent or any Bank pertaining to this Agreement or such Borrower's Loans, and such default shall continue for more than the period of grace, if any, specified therein and shall not have been waived pursuant thereto; or
(e) Any representation, warranty certification or statement made or deemed made by such Borrower in this Agreement or in any certificate, financial statement or other document delivered pursuant hereto shall prove to have been false or incorrect in any material respect when made; or
(f) Except as otherwise provided in this Section 10.01, such Borrower shall default in any payment due on Indebtedness for borrowed money or the deferred purchase price of property, the aggregate outstanding principal amount of which is in excess of five percent (5%) of such Borrower's Total Assets, and such default shall continue for more than the period of grace, if any, applicable thereto and shall not have been waived pursuant thereto and shall permit the holder of such Indebtedness to declare such Indebtedness due and payable before its stated maturity, or in the performance of or compliance with any term of any evidence of such Indebtedness or of any mortgage, indenture or other agreement relating thereto, and any such default shall continue for more than the period of grace, if any, specified therein and shall not have been waived pursuant thereto and shall permit the holder of such Indebtedness to declare such Indebtedness due and payable before its stated maturity, unless such Borrower shall be contesting such payment or obligation in good faith by appropriate proceedings promptly initiated and diligently conducted and such Borrower shall have set aside on its books such reserves, if any, with respect thereto as are required by GAAP and deemed appropriate by such Borrower and its independent public accountants, PROVIDED, that no Event of Default pursuant to paragraphs (b) or Subsidiaries: (i) of this Section 10.01 shall have occurred and be continuing becomes insolvent or unable to pay its debts as a result of such claim having been asserted in respect of such Indebtednessthey become due; or
(gii) Such Borrower shall discontinue its business (other than in connection with a permitted merger or consolidation of such Borrower) or shall make makes an assignment for the benefit of creditors, or shall fail generally to pay its debts as such debts become due, or shall apply for or consent ; (iii) consents to the appointment of or taking possession by a trusteecustodian, receiver or liquidator trustee for itself or for a substantial part of its Property; (iv) commences any proceeding under any bankruptcy, reorganization, liquidation, insolvency or other similar officiallaws; or (v) conceals or removes any of such its Property, with intent to hinder, delay or defraud any of its creditors.
(e) A custodian, receiver, or trustee is appointed for the Borrower or any of its Subsidiaries or for a substantial part of their respective Property.
(f) The Borrower or any of its Subsidiaries, without the Lender’s written consent: (i) liquidates or is dissolved; (ii) merges or consolidates with any other Person; (iii) leases, sells or otherwise conveys a substantial part of its assets or business outside the ordinary course of its business; (iv) leases, purchases, or otherwise acquires a substantial part of the property or assets of such any other Person, except in the ordinary course of its business; or (v) agrees to do any of the foregoing; provided, however, that (i) the Merger shall be permitted and (ii) any Subsidiary of the Borrower may merge or shall commence a case or have an order for relief entered against it under consolidate with any other Subsidiary of the federal bankruptcy laws, as now or hereafter constitutedBorrower, or with the Borrower, so long as the Borrower is the survivor.
(g) Proceedings are commenced under any other applicable federal or state bankruptcy, insolvency or other similar lawreorganization, liquidation, or if any action shall be taken to dissolve or liquidate such Borrower (other than in connection with a permitted merger or consolidation of such Borrower); or
(h) If, within sixty (60) days after similar laws against the commencement against such Borrower of a case under the federal bankruptcy laws, as now or hereafter constituted, or any other applicable federal or state bankruptcy, insolvency or other similar law, such case shall have been consented to or shall not have been dismissed or all orders or proceedings thereunder affecting the operations or the business of such Borrower stayed, or if the stay of any such order or proceeding shall thereafter be set aside, or if within sixty (60) days after the entry of a decree appointing a trustee, receiver or liquidator (or other similar official) of such Borrower or any substantial part of the property of its Subsidiaries and such Borrower such appointment shall not have been vacated; or
(i) A final judgment which, together with other outstanding final judgments against such Borrower, exceeds an amount in the aggregate equal to five percent (5%) of such Borrower's Total Assets (exclusive of amounts covered by available insurance) shall be rendered against such Borrower and if, within proceedings remain undismissed for thirty (30) days after entry thereof, such judgment shall not have been discharged commencement; or execution thereof stayed pending appeal, or if, within thirty (30) days after the expiration of any such stay, such judgment shall not have been discharged; or
(j) Such Borrower or any member of the Controlled Group shall fail to pay when due an amount or amounts aggregating in excess of $500,000 which it is obligated to pay its Subsidiaries consents to the PBGC or to a Plan under Title IV commencement of ERISA; or a notice of intent to terminate a Plan or Plans having aggregate Unfunded Liabilities in excess of $500,000 shall be filed under Title IV of ERISA by such those proceedings.
(h) Any final, non-appealable judgment is entered against the Borrower or any member of its Subsidiaries or any of the Controlled GroupProperty of such Persons, any plan administrator or any combination attachment, seizure, sequestration, levy, or garnishment is issued against any Property of the foregoing; or the PBGC shall institute proceedings under Title IV of ERISA to terminate or to cause a trustee to be appointed to administer any such Plan or Plans or a proceeding shall be instituted by a fiduciary of any such Plan or Plans against such Borrower or any member of its Subsidiaries and when added to any other judgment, attachment, seizure, sequestration, levy, or garnishment, the amount of the Controlled Group to enforce Sections 515 or 4219(c)(5) of ERISA; or a condition shall exist by reason of which same exceeds $1,000,000 in the PBGC would be entitled to obtain a decree adjudicating that any such Plan or Plans must be terminated; or there shall occur a complete or partial withdrawal from, or a default, within the meaning of Section 4219(c)(5) of ERISA, with respect to, one or more Multiemployer Plans which could cause such Borrower or one or more members of the Controlled Group to incur a current payment obligation in excess of $500,000; oraggregate.
(k) Such Borrower shall cease to be an investment management company (or a Portfolio thereof) registered under the Investment Company Act, or such Borrower's registration under the Investment Company Act, or that of any Borrower Agent of such Borrower, shall lapse or be suspended; then, and in any such event, and at any time thereafter, if any Event of Default shall then be continuing with respect to such defaulting Borrower, (i) The market price of the common Equity Interests owned by the Borrower in the case of any Event of Default specified in paragraphs (g) and (h) aboveDSW, the Commitments as to such defaulting Borrower shall thereupon automatically be terminated and the principal of and accrued interest Inc. traded on the Loans New York Stock Exchange shall automatically become due and payable without presentment, demand, protest close at a price less than $20.00 per share for a period of five (5) or other notice more consecutive business days or formality for any five (5) business days within any period of any kind, all of which are hereby expressly waived, and ten (ii10) in the case of any other Event of Default specified above, either or both of the following actions may be taken: the Operations Agent may, and upon the written or telephonic (confirmed in writing) request of the Majority Banks shall, by written notice to such defaulting Borrower (A) declare the principal of and accrued interest in respect of such defaulting Borrower's Loans to be forthwith due and payable, whereupon the principal of and accrued interest in respect of such Loans shall become forthwith due and payable without presentment, demand, protest or other notice of any kind, all of which are hereby expressly waived by such Borrower, and/or (B) terminate the Commitments as to such defaulting Borrower, whereupon the Commitments of the Banks to make Committed Credit Loans hereunder to such defaulting Borrower shall forthwith terminate without any other notice of any kind and the percentages of the Commitment Fee and other fees and expenses otherwise payable by such defaulting Borrower hereunder accruing from and after the date of termination shall be reallocated among the remaining Borrowers PRO RATA on the basis of the percentages set forth opposite such remaining Borrowers' names on SCHEDULE 1, as in effect at the time of such terminationconsecutive business days.
Appears in 1 contract
Sources: Loan Agreement (Retail Ventures Inc)
Events of Default; Acceleration. If any of the following events ------ -- ------- ------------ (each an "EVENT OF DEFAULTEvents of Default" or, if the giving of notice or the lapse of time or both is required, then, prior to such notice and/or lapse of time, "Defaults") shall occur with respect to any Borroweroccur:
(a) Such Borrower (i) if the Company shall default in the payment of fail to pay any principal of the Loans, or the Company or any LoanSterling Subsidiary shall fail to pay any Reimbursement Obligation owing by such Person, interest accrued thereon or fee due hereunder after in each case within one (1) day following the date on which the same becomes due and payablepayable hereunder, whether at the stated date of maturity or by acceleration any accelerated date of maturity or otherwiseat any other date fixed for payment;
(b) if the Company or any Sterling Subsidiary shall fail to pay any interest on the Loans, any Commitment Fee, any Agent's Fee, any Letter of Credit Fee, or (ii) shall default in the payment of any other amount sums due hereunder after or under any of the other Loan Documents, in each case within two (2) days following the date on which the same becomes due and payable; or
(b) Such Borrower shall default in payable hereunder, whether at the performance stated date of maturity or compliance with any term contained in Sections 9.01(a) accelerated date of maturity or 9.01(b) and such default shall have continued at any other date fixed for more than three (3) Banking Days, or such Borrower shall default in the performance of or compliance with any term contained in Sections 8.02(d), 8.02(e), 8.02(g), 8.05, 9.02, 9.03 or 9.04; orpayment;
(c) Such Borrower if any of the Sterling Companies shall default fail to comply with any of its covenants contained in (S)(S)8, 9 and 10 hereof or, following the occurrence of the Spring-Back Date, any of its covenants contained in the performance of or compliance with any term contained herein other than those expressly referred to in this Section 10.01, and such default shall not have been remedied within five (5) Banking Days after written notice thereof shall have been given to such Borrower by the Operations Agent; orSpring-Back Provisions;
(d) Such Borrower if any of the Sterling Companies shall default in the performance offail to perform any term, covenant or compliance with, any material term agreement contained herein or in any of the Loan Documents (other than those specified elsewhere in this (S)11) required to be performed by it for fifteen (15) days after written agreement with notice of such failure has been given to the Operations Company by the Agent or any Bank pertaining to this Agreement or such Borrower's Loans, and such default shall continue for more than the period of grace, if any, specified therein and shall not have been waived pursuant thereto; orBank;
(e) Any representation, if any representation or warranty certification or statement made or deemed made by such Borrower of any of the Sterling Companies in this Agreement or in any certificate, financial statement of the other Loan Documents or other in any document or instrument delivered pursuant hereto to or in connection with this Agreement or the Loan Documents shall prove to have been false or incorrect in any material respect upon the date when made; or;
(f) Except as otherwise provided in this Section 10.01if any of the Sterling Companies shall fail to pay when due and payable, such Borrower shall default in or within any payment due on Indebtedness applicable period of grace, any obligations for borrowed money or in respect of capitalized leases, which obligations exceed $10,000,000 in the deferred purchase price aggregate, or fail to observe or perform in any material respect any term, covenant or agreement contained in any material agreement by which it is bound (excluding, however, any such term, covenant or agreement relating to the pledge or disposition of propertyMargin Stock), the aggregate outstanding principal amount of which is in excess of five percent (5%) of evidencing or securing borrowed money for such Borrower's Total Assets, and such default shall continue for more than the period of grace, time as would permit (assuming the giving of appropriate notice if any, applicable thereto and shall not have been waived pursuant thereto and shall permit required) the holder of such Indebtedness to declare such Indebtedness due and payable before its stated maturity, or in the performance of or compliance with any term of any evidence of such Indebtedness holders thereof or of any mortgage, indenture or other agreement relating thereto, and any such default shall continue for more than obligations issued thereunder to accelerate the period of grace, if any, specified therein and shall not have been waived pursuant thereto and shall permit the holder of such Indebtedness to declare such Indebtedness due and payable before its stated maturity, unless such Borrower shall be contesting such payment or obligation in good faith by appropriate proceedings promptly initiated and diligently conducted and such Borrower shall have set aside on its books such reserves, if any, with respect thereto as are required by GAAP and deemed appropriate by such Borrower and its independent public accountants, PROVIDED, that no Event of Default pursuant to paragraphs (b) or (i) of this Section 10.01 shall have occurred and be continuing as a result of such claim having been asserted in respect of such Indebtedness; ormaturity thereof;
(g) Such Borrower shall discontinue its business (other than in connection with a permitted merger if any of the Company, the Sterling Subsidiaries or consolidation of such Borrower) or shall make the Material Foreign Subsidiaries makes an assignment for the benefit of creditors, or shall fail admits in writing its inability to pay or generally fails to pay its debts as such debts they mature or become due, or shall apply petitions or applies for or consent to the appointment of or taking possession by a trustee, receiver or liquidator (trustee or other similar official) custodian, liquidator or receiver of such Borrower any of the Company, the Sterling Subsidiaries or the Material Foreign Subsidiaries or of any substantial part of the property or assets of such Borrower any of the Company, the Sterling Subsidiaries or shall commence a the Material Foreign Subsidiaries or commences any case or have an other proceeding relating to any of the Company, the Sterling Subsidiaries or the Material Foreign Subsidiaries under any bankruptcy, reorganization, arrangement, insolvency, readjustment of debt, dissolution or liquidation or similar law of any jurisdiction, now or hereafter in effect, or takes any action to authorize or in furtherance of any of the foregoing, or if any such petition or application is filed or any such case or other proceeding is commenced against any of the Company, the Sterling Subsidiaries or the Material Foreign Subsidiaries and any of the Company, the Sterling Subsidiaries or the Material Foreign Subsidiaries indicates its approval thereof, consent thereto or acquiescence therein;
(h) if a decree or order is entered appointing any such trustee, custodian, liquidator or receiver or adjudicating any of the Company, the Sterling Subsidiaries or the Material Foreign Subsidiaries bankrupt or insolvent, or approving a petition in any such case or other proceeding, or a decree or order for relief is entered against it in respect of any of the Company, the Sterling Subsidiaries or the Material Foreign Subsidiaries in an involuntary case under the federal Federal bankruptcy laws, laws as now or hereafter constituted, or any other applicable federal or state bankruptcy, insolvency or other similar law, or if any action shall be taken to dissolve or liquidate such Borrower (other than in connection with a permitted merger or consolidation of such Borrower); or;
(hi) Ifif there shall remain in force, within undischarged, unsatisfied and unstayed, for more than sixty (60) days after the commencement days, whether or not consecutive, any final judgment against such Borrower of a case under the federal bankruptcy laws, as now or hereafter constituted, or any other applicable federal or state bankruptcy, insolvency or other similar law, such case shall have been consented to or shall not have been dismissed or all orders or proceedings thereunder affecting the operations or the business of such Borrower stayed, or if the stay of any such order or proceeding shall thereafter be set aside, or if within sixty (60) days after the entry of a decree appointing a trustee, receiver or liquidator (or other similar official) of such Borrower or any substantial part of the property of such Borrower such appointment shall not have been vacated; or
(i) A final judgment Sterling Companies which, together with other outstanding final judgments judgments, undischarged, against such Borrower, the Sterling Companies exceeds an amount in the aggregate equal to five percent (5%) of such Borrower's Total Assets (exclusive of amounts covered by available insurance) shall be rendered against such Borrower and if, within thirty (30) days after entry thereof, such judgment shall not have been discharged or execution thereof stayed pending appeal, or if, within thirty (30) days after the expiration of any such stay, such judgment shall not have been discharged; or$20,000,000;
(j) Such Borrower if the Company or any member of the Controlled Group shall fail to pay when due an amount or amounts aggregating in excess of $500,000 which it is obligated to pay ERISA Affiliate incurs any liability to the PBGC or a Guaranteed Pension Plan pursuant to a Plan under Title IV of ERISAERISA in an aggregate amount exceeding $10,000,000; the Company or a notice of intent any ERISA Affiliate is assessed withdrawal liability pursuant to terminate a Plan or Plans having aggregate Unfunded Liabilities in excess of $500,000 shall be filed under Title IV of ERISA by such Borrower a Multiemployer Plan requiring aggregate annual payments exceeding $10,000,000 or any member of the Controlled Group, any plan administrator or any combination of the foregoing; or the PBGC shall institute proceedings under Title IV of following occurs with respect to a Guaranteed Pension Plan: (i) an ERISA to terminate or to cause a trustee to be appointed to administer any such Plan or Plans or a proceeding shall be instituted by a fiduciary of any such Plan or Plans against such Borrower or any member of the Controlled Group to enforce Sections 515 or 4219(c)(5) of ERISA; or a condition shall exist by reason of which the PBGC would be entitled to obtain a decree adjudicating that any such Plan or Plans must be terminated; or there shall occur a complete or partial withdrawal fromReportable Event, or a default, failure to make a required installment or other payment (within the meaning of Section 4219(c)(5(S)302(f)(1) of ERISA), with respect to, one or more Multiemployer Plans which could cause provided that the Agent -------- determines in its reasonable discretion that such Borrower or one or more members of the Controlled Group to incur a current payment obligation in excess of $500,000; or
(k) Such Borrower shall cease to be an investment management company (or a Portfolio thereof) registered under the Investment Company Act, or such Borrower's registration under the Investment Company Act, or that of any Borrower Agent of such Borrower, shall lapse or be suspended; then, and in any such event, and at any time thereafter, if any Event of Default shall then be continuing with respect to such defaulting Borrower, (i) in the case of any Event of Default specified in paragraphs (g) and (h) above, the Commitments as to such defaulting Borrower shall thereupon automatically be terminated and the principal of and accrued interest on the Loans shall automatically become due and payable without presentment, demand, protest or other notice or formality of any kind, all of which are hereby expressly waived, and (ii) in the case of any other Event of Default specified above, either or both of the following actions may be taken: the Operations Agent may, and upon the written or telephonic (confirmed in writing) request of the Majority Banks shall, by written notice to such defaulting Borrower event (A) declare could be expected to result in liability of the principal of Company to the PBGC or the Plan in an aggregate amount exceeding $10,000,000 and accrued interest in respect of such defaulting Borrower's Loans to be forthwith due and payable, whereupon the principal of and accrued interest in respect of such Loans shall become forthwith due and payable without presentment, demand, protest or other notice of any kind, all of which are hereby expressly waived by such Borrower, and/or (B) terminate could constitute grounds for the Commitments as termination of such Plan by the PBGC, for the appointment by the appropriate United States District Court of a trustee to administer such defaulting Borrower, whereupon Plan or for the Commitments imposition of a lien in favor of the Banks to make Committed Credit Loans hereunder to such defaulting Borrower shall forthwith terminate without any other notice of any kind and the percentages of the Commitment Fee and other fees and expenses otherwise payable by such defaulting Borrower hereunder accruing from and after the date of termination shall be reallocated among the remaining Borrowers PRO RATA on the basis of the percentages set forth opposite such remaining Borrowers' names on SCHEDULE 1, as in effect at the time of such termination.Guaranteed Pension Plan;
Appears in 1 contract
Events of Default; Acceleration. If any (a) Section 6.01 of the Base Indenture shall not apply to the Notes. Instead, each of the following events (each shall be an "EVENT OF DEFAULT") shall occur “Event of Default” with respect to any Borrowera series of Notes:
(a1) Such Borrower (i) shall default the Company defaults in the payment of principal interest on any Note of such series, or any LoanAdditional Amounts payable with respect thereto, interest accrued thereon or fee due hereunder after when the same becomes due and payable, whether at maturity or by acceleration or otherwise, or and the default continues for a period of 30 days;
(ii2) shall default the Company defaults in the payment of the principal or any other amount due hereunder after premium with respect to any Note of such series, or any Additional Amounts payable with respect thereto, when the same becomes due and payable; orpayable at maturity, upon acceleration or redemption, or otherwise;
(b3) Such Borrower shall default the Company defaults in the performance of or compliance breaches any other covenant, warranty or agreement of the Company in the Indenture with any term contained in Sections 9.01(a) respect to such series of Notes or 9.01(bunder such series of Notes (other than a covenant or warranty included therein solely for the benefit of one or more series of Securities other than such series of Notes) and the default or breach continues for a period of 90 consecutive days after written notice to the Company by the Trustee or to the Company and the Trustee by the Holders of not less than 25% in aggregate principal amount of the applicable series of Notes specifying such default shall have continued for or breach and requiring it to be remedied and stating that it is a “Notice of Default” under the Indenture;
(4) there occurs with respect to any issue or issues of Indebtedness (including any Guarantee and any other series of debt securities) of the Company or any Significant Subsidiary having an outstanding principal amount of $100,000,000 or more than three (3) Banking Days, or such Borrower shall default in the performance aggregate for all such issues of all such persons, whether such Indebtedness exists on the date hereof or compliance with any term contained in Sections 8.02(d)shall hereafter be created, 8.02(e), 8.02(g), 8.05, 9.02, 9.03 or 9.04; or
(ca) Such Borrower shall an event of default in that has caused the performance of or compliance with any term contained herein other than those expressly referred holder thereof to in this Section 10.01, declare such indebtedness to be due and payable prior to its stated maturity and such default indebtedness shall not have been remedied within five (5) Banking Days after written notice thereof shall have been given to such Borrower by the Operations Agent; or
(d) Such Borrower shall default discharged in the performance of, or compliance with, any material term contained in any other written agreement with the Operations Agent or any Bank pertaining to this Agreement full or such Borrower's Loans, and such default shall continue for more than the period of grace, if any, specified therein and acceleration shall not have been waived pursuant thereto; or
(e) Any representation, warranty certification rescinded or statement made or deemed made by such Borrower in this Agreement or in any certificate, financial statement or other document delivered pursuant hereto shall prove to have been false or incorrect in any material respect when made; or
(f) Except as otherwise provided in this Section 10.01, such Borrower shall default in any payment due on Indebtedness for borrowed money or the deferred purchase price of property, the aggregate outstanding principal amount of which is in excess of five percent (5%) annulled within 30 days of such Borrower's Total Assets, acceleration and/or (b) the failure to make a principal payment at the final (but not any interim) fixed maturity and such default shall continue for more than the period of grace, if any, applicable thereto and defaulted payment shall not have been made, waived pursuant thereto and shall permit the holder or extended within 30 days of such Indebtedness payment default;
(5) the Company or any of its Significant Subsidiaries shall fail within 60 days to declare such Indebtedness due and payable before its stated maturitypay, bond or otherwise discharge uninsured judgments or court orders for the payment of money in excess of $150,000,000 in the performance of aggregate, which are not stayed on appeal or compliance with any term of any evidence of such Indebtedness or of any mortgage, indenture are not otherwise being appropriately contested in good faith;
(6) an involuntary case or other agreement relating theretoproceeding is commenced against the Company or any Significant Subsidiary with respect to it or its debts under any bankruptcy, insolvency or other similar law now or hereafter in effect seeking the appointment of a trustee, receiver, liquidator, custodian or other similar official of it or any substantial part of its property, and any such default shall continue involuntary case or other proceeding remains undismissed and unstayed for more than the a period of grace, if any, specified therein and shall not have been waived pursuant thereto and shall permit 60 days; or an order for relief is entered against the holder Company or any Significant Subsidiary under the federal bankruptcy laws as now or hereafter in effect;
(7) the Company or any of such Indebtedness to declare such Indebtedness due and payable before its stated maturity, unless such Borrower shall be contesting such payment or obligation in good faith by appropriate proceedings promptly initiated and diligently conducted and such Borrower shall have set aside on its books such reserves, if any, with respect thereto as are required by GAAP and deemed appropriate by such Borrower and its independent public accountants, PROVIDED, that no Event of Default pursuant to paragraphs (b) or Significant Subsidiaries (i) of this Section 10.01 shall have occurred and be continuing as commences a result of such claim having been asserted voluntary case under any applicable bankruptcy, insolvency or other similar law now or hereafter in respect of such Indebtedness; or
(g) Such Borrower shall discontinue its business (other than in connection with a permitted merger or consolidation of such Borrower) or shall make an assignment for the benefit of creditorseffect, or shall fail generally consents to pay its debts as the entry of an order for relief in an involuntary case under any such debts become duelaw, or shall apply for or consent (ii) consents to the appointment of or taking possession by a receiver, liquidator, assignee, custodian, trustee, receiver sequestrator or liquidator (or other similar official) official of such Borrower the Company or any substantial part of its Significant Subsidiaries or of all or substantially all of the property or and assets of such Borrower or shall commence a case or have an order for relief entered against it under the federal bankruptcy laws, as now or hereafter constituted, Company or any of its Significant Subsidiaries or (iii) effects any general assignment for the benefit of creditors, in each case, other applicable federal than a proceeding initiated by or state bankruptcyon behalf of the Company or a Subsidiary of the Company to effect the winding up, insolvency dissolution or other similar law, termination of existence of a Subsidiary of the Company which is permitted under Section 3.05 of the Base Indenture (an event of default specified in clause (6) or if any action (7) a “bankruptcy default”);
(b) Section 6.02 of the Base Indenture shall be taken to dissolve or liquidate such Borrower (other than in connection with a permitted merger or consolidation of such Borrower); or
(h) If, within sixty (60) days after the commencement against such Borrower of a case under the federal bankruptcy laws, as now or hereafter constituted, or any other applicable federal or state bankruptcy, insolvency or other similar law, such case shall have been consented to or shall not have been dismissed or all orders or proceedings thereunder affecting the operations or the business of such Borrower stayed, or if the stay of any such order or proceeding shall thereafter be set aside, or if within sixty (60) days after the entry of a decree appointing a trustee, receiver or liquidator (or other similar official) of such Borrower or any substantial part of the property of such Borrower such appointment shall not have been vacated; or
(i) A final judgment which, together with other outstanding final judgments against such Borrower, exceeds an amount in the aggregate equal to five percent (5%) of such Borrower's Total Assets (exclusive of amounts covered by available insurance) shall be rendered against such Borrower and if, within thirty (30) days after entry thereof, such judgment shall not have been discharged or execution thereof stayed pending appeal, or if, within thirty (30) days after the expiration of any such stay, such judgment shall not have been discharged; or
(j) Such Borrower or any member of the Controlled Group shall fail to pay when due an amount or amounts aggregating in excess of $500,000 which it is obligated to pay to the PBGC or to a Plan under Title IV of ERISA; or a notice of intent to terminate a Plan or Plans having aggregate Unfunded Liabilities in excess of $500,000 shall be filed under Title IV of ERISA by such Borrower or any member of the Controlled Group, any plan administrator or any combination of the foregoing; or the PBGC shall institute proceedings under Title IV of ERISA to terminate or to cause a trustee to be appointed to administer any such Plan or Plans or a proceeding shall be instituted by a fiduciary of any such Plan or Plans against such Borrower or any member of the Controlled Group to enforce Sections 515 or 4219(c)(5) of ERISA; or a condition shall exist by reason of which the PBGC would be entitled to obtain a decree adjudicating that any such Plan or Plans must be terminated; or there shall occur a complete or partial withdrawal from, or a default, within the meaning of Section 4219(c)(5) of ERISA, with respect to, one or more Multiemployer Plans which could cause such Borrower or one or more members of the Controlled Group to incur a current payment obligation in excess of $500,000; or
(k) Such Borrower shall cease to be an investment management company (or a Portfolio thereof) registered under the Investment Company Act, or such Borrower's registration under the Investment Company Act, or that of any Borrower Agent of such Borrower, shall lapse or be suspended; then, and in any such event, and at any time thereafter, if any Event of Default shall then be continuing amended with respect to each series of Notes by replacing the first two paragraphs of such defaulting Borrower, (i) in section with the case of any following: “If an Event of Default specified Default, other than a bankruptcy default with respect to the Company (but not any Significant Subsidiary of the Company), occurs and is continuing under the Indenture with respect to a series of Notes, then, either the Trustee or the Holders of at least 25% in paragraphs aggregate principal amount of the Notes of such series then outstanding, by written notice to the Company (g) and (h) aboveto the Trustee if the notice is given by the Holders), the Commitments as to such defaulting Borrower shall thereupon automatically be terminated and may declare the principal of and accrued interest on the Loans shall automatically become Notes of such series to be immediately due and payable without presentmentpayable. Upon a declaration of acceleration, demandsuch principal and interest will become immediately due and payable. If a bankruptcy default occurs with respect to the Company, protest or other notice or formality of any kind, all of which are hereby expressly waived, and (ii) in the case of any other Event of Default specified above, either or both of the following actions may be taken: the Operations Agent may, and upon the written or telephonic (confirmed in writing) request of the Majority Banks shall, by written notice to such defaulting Borrower (A) declare the principal of and accrued interest in respect of such defaulting Borrower's Loans to be forthwith due and payable, whereupon the principal of and accrued interest in respect of such Loans shall on Notes then outstanding will become forthwith immediately due and payable without presentment, demand, protest any declaration or other notice of any kind, all of which are hereby expressly waived by such Borrower, and/or (B) terminate act on the Commitments as to such defaulting Borrower, whereupon the Commitments part of the Banks to make Committed Credit Loans hereunder to such defaulting Borrower shall forthwith terminate without Trustee or any other notice of any kind and the percentages of the Commitment Fee and other fees and expenses otherwise payable by such defaulting Borrower hereunder accruing from and after the date of termination shall be reallocated among the remaining Borrowers PRO RATA on the basis of the percentages set forth opposite such remaining Borrowers' names on SCHEDULE 1, as in effect at the time of such terminationHolder.”
Appears in 1 contract
Events of Default; Acceleration. If any of the following conditions or events (each an "EVENT OF DEFAULTEvents of Default") shall occur with respect to any Borrowerand be continuing:
(a) Such Borrower (i) if the Company shall default in the payment of any principal of or premium, if any, on any Loan, interest accrued thereon or fee due hereunder after Note when the same becomes due and payable, whether at maturity or at a date fixed for prepayment or by acceleration declaration or otherwise, or ; or
(iib) if the Company shall default in the payment of any other amount due hereunder interest on any Note for more than five days after the same becomes due and payable; or
(bc) Such Borrower if the Company shall default in the performance of or compliance with any term contained in Sections 9.01(a9.3, 9.6 and 9.8; or
(d) or 9.01(b) and such default shall have continued for more than three (3) Banking Days, or such Borrower if the Company shall default in the performance of or compliance with any term contained in Sections 8.02(d), 8.02(e), 8.02(g), 8.05, 9.02, 9.03 this Agreement or 9.04; or
(c) Such Borrower shall default in the performance of or compliance with any term contained herein other Operative Agreements other than those expressly referred to in this Section 10.01Sections 9.3, 9.6 and 9.8 and such default shall not have been remedied within five thirty (530) Banking Days days after such failure shall first have become known to any officer of the Company or written notice thereof shall have been given to such Borrower received by the Operations Agent; or
(d) Such Borrower shall default in the performance of, or compliance with, Company from any material term contained in holder of any other written agreement with the Operations Agent or any Bank pertaining to this Agreement or such Borrower's Loans, and such default shall continue for more than the period of grace, if any, specified therein and shall not have been waived pursuant theretoNote; or
(e) Any representation, if any representation or warranty certification made in writing by or statement made or deemed made by such Borrower on behalf of the Company in this Agreement or in any certificate, financial statement or other document delivered pursuant hereto instrument furnished in compliance with this Agreement shall prove to have been false or incorrect in any material respect when on the date as of which made; or
(f) Except as otherwise provided in this Section 10.01, such Borrower if the Company or any Subsidiary shall default (as principal or guarantor or other surety) in the payment of any payment due principal of or premium or interest on Indebtedness for borrowed money or the deferred purchase price of property, the aggregate any Debt which is outstanding in a principal amount of at least $500,000 (other than the Notes), or if any event shall occur or condition shall exist in respect of any such Debt which is outstanding in excess a principal amount of five percent (5%) of such Borrower's Total Assets, and such default shall continue for more than the period of grace, if any, applicable thereto and shall not have been waived pursuant thereto and shall permit the holder of such Indebtedness to declare such Indebtedness due and payable before its stated maturity, at least $500,000 or in the performance of or compliance with any term of under any evidence of any such Indebtedness Debt or of any mortgage, indenture or other agreement relating thereto, and any such default shall continue for more than the period of grace, if any, specified therein and shall not have been waived pursuant thereto and shall permit the holder of such Indebtedness to declare such Indebtedness due and payable before its stated maturity, unless such Borrower shall be contesting such payment or obligation in good faith by appropriate proceedings promptly initiated and diligently conducted and such Borrower shall have set aside on its books such reserves, if any, with respect thereto as are required by GAAP and deemed appropriate by such Borrower and its independent public accountants, PROVIDED, that no Event of Default pursuant to paragraphs (b) or (i) of this Section 10.01 shall have occurred and be continuing as a result of such claim having been asserted in respect default, event or condition the holder or holders of such IndebtednessDebt shall have caused the acceleration of the payment of such Debt before its regularly scheduled dates of payment; or
(g) Such Borrower if any Guaranty Agreement shall discontinue its business (other than in connection with a permitted merger or consolidation of such Borrower) be unenforceable or shall make an assignment for the benefit of creditors, or shall fail generally cease to pay its debts be in full force and effect as such debts become due, or shall apply for or consent to the appointment of or taking possession by a trustee, receiver or liquidator (or other similar official) of such Borrower or any substantial part of the property or assets of such Borrower or shall commence a case or have an order for relief entered against it under the federal bankruptcy laws, as now or hereafter constituted, or any other applicable federal or state bankruptcy, insolvency or other similar law, or if any action shall be taken to dissolve or liquidate such Borrower (other than in connection with a permitted merger or consolidation of such Borrower)Subsidiary; or
(h) Ifif a final judgment or judgments shall be rendered against the Company or any Subsidiary for the payment of money in excess of $500,000 (in excess of insurance coverage) in the aggregate and any one of such judgments shall not be discharged or execution thereon stayed pending appeal, within sixty (60) days after entry thereof, or, in the commencement against event of such Borrower of a case under the federal bankruptcy laws, as now or hereafter constituted, or any other applicable federal or state bankruptcy, insolvency or other similar lawstay, such case shall have been consented to or judgment shall not have been dismissed or all orders or proceedings thereunder affecting the operations or the business of such Borrower stayed, or if the stay of any such order or proceeding shall thereafter be set aside, or if discharged within sixty (60) days after the entry of a decree appointing a trustee, receiver or liquidator (or other similar official) of such Borrower or any substantial part of the property of such Borrower such appointment shall not have been vacatedstay expires; or
(i) A final judgment whichif the Company or any Subsidiary shall (i) be generally not paying its debts as they become due, together with other outstanding final judgments against such Borrower, exceeds an amount in the aggregate equal to five percent (5%ii) of such Borrower's Total Assets (exclusive of amounts covered by available insurance) shall be rendered against such Borrower and if, within thirty (30) days after entry thereof, such judgment shall not have been discharged or execution thereof stayed pending appealfile, or ifconsent by answer or otherwise to the filing against it of, within thirty (30) days after the expiration a petition for relief or reorganization or arrangement or any other petition in bankruptcy, for liquidation or to take advantage of any such staybankruptcy or insolvency law of any jurisdiction, such judgment shall not have been discharged(iii) make an assignment for the benefit of its creditors, (iv) consent to the appointment of a custodian, receiver, trustee or other officer with similar powers with respect to it or with respect to any substantial part of its property, (v) be adjudicated insolvent or (vi) take corporate action for the purpose of any of the foregoing; or
(j) Such Borrower if a court or governmental authority of competent jurisdiction shall enter an order appointing, without consent by the Company or any member Subsidiary, a custodian, receiver, trustee or other officer with similar powers with respect to it or with respect to any substantial part of its property, or if an order for relief shall be entered in any case or proceeding for liquidation or reorganization or otherwise to take advantage of any bankruptcy or insolvency law of any jurisdiction, or ordering the dissolution, winding-up or liquidation of the Controlled Group shall fail to pay when due an amount Company or amounts aggregating in excess of $500,000 which it is obligated to pay to the PBGC any Subsidiary, or to a Plan under Title IV of ERISA; or a notice of intent to terminate a Plan or Plans having aggregate Unfunded Liabilities in excess of $500,000 if any petition for any such relief shall be filed under Title IV of ERISA by such Borrower or any member of against the Controlled Group, any plan administrator or any combination of the foregoing; or the PBGC shall institute proceedings under Title IV of ERISA to terminate or to cause a trustee to be appointed to administer any such Plan or Plans Company or a proceeding Subsidiary and such petition shall not be instituted by a fiduciary of any such Plan or Plans against such Borrower or any member of the Controlled Group to enforce Sections 515 or 4219(c)(5dismissed within sixty (60) of ERISA; or a condition shall exist by reason of which the PBGC would be entitled to obtain a decree adjudicating that any such Plan or Plans must be terminated; or there shall occur a complete or partial withdrawal from, or a default, within the meaning of Section 4219(c)(5) of ERISA, with respect to, one or more Multiemployer Plans which could cause such Borrower or one or more members of the Controlled Group to incur a current payment obligation in excess of $500,000days; or
(k) Such Borrower shall cease to be an investment management company (if any default or a Portfolio thereof) registered "event of default" under the Investment Company ActCredit Agreement, or such Borrowerthe Bank Standstill Agreement or, the Vendor Standstill Agreement shall have occurred and be continuing;
(l) if any restatement is made of the Company's registration under financial statements for periods prior to and including the Investment Company Act1997 fiscal year, or that of any Borrower Agent of such Borrowerincluding, shall lapse or be suspended; thenwithout limitation, and in any such eventits previously reported earnings, and at for any time thereafter, if periods prior to the date thereof; and
(m) any Event of Default shall then be continuing with respect to such defaulting Borrower, (i) in the case of any Event of Default specified in paragraphs (g) and (h) above, the Commitments as to such defaulting Borrower shall thereupon automatically be terminated and the principal of and accrued interest on the Loans shall automatically become due and payable without presentment, demand, protest or other notice or formality of any kind, all of which are hereby expressly waived, and (ii) in the case of any other Event of Default specified above, either or both breach of the following actions may be taken: the Operations Agent mayprovisions of paragraphs 2, and upon the written 3 or telephonic (confirmed in writing) request 4 of the Majority Banks shall, by written notice to such defaulting Borrower (A) declare the principal of and accrued interest in respect of such defaulting Borrower's Loans to be forthwith due and payable, whereupon the principal of and accrued interest in respect of such Loans shall become forthwith due and payable without presentment, demand, protest or other notice of any kind, all of which are hereby expressly waived by such Borrower, and/or (B) terminate the Commitments as to such defaulting Borrower, whereupon the Commitments of the Banks to make Committed Credit Loans hereunder to such defaulting Borrower shall forthwith terminate without any other notice of any kind and the percentages of the Commitment Fee and other fees and expenses otherwise payable by such defaulting Borrower hereunder accruing from and after the date of termination shall be reallocated among the remaining Borrowers PRO RATA on the basis of the percentages set forth opposite such remaining Borrowers' names on SCHEDULE 1, as in effect at the time of such termination.Letter Agreement;
Appears in 1 contract
Events of Default; Acceleration. If any of the following events (each an "EVENT OF DEFAULTEvent of Default") shall occur with respect to any Borroweroccur:
(a) Such Borrower (i) Debtor shall default in the payment of fail to pay any principal of interest on this Subordinated Note or any Loanother sum due under this Subordinated Note, interest accrued thereon any Transaction Document, or fee due hereunder after any other note or other agreement between Debtor and RACC when the same becomes due and payablesuch failure shall continue for ten (10) days beyond the due date of such payment;
(b) Debtor shall fail to perform any term, whether covenant or agreement contained in any of the Transaction Documents and such failure shall continue for thirty (30) days after written notice;
(c) any representation or warranty of Debtor in any of the Transaction Documents or in any certificate or notice given in connection therewith shall have been false or misleading in any material respect at maturity the time made or by acceleration deemed to have been made;
(d) Debtor shall be in default under any agreement or otherwiseagreements evidencing (i) any other debt and similar monetary obligations (including, without limitation, capitalized leases, synthetic leases or securitization transactions) (collectively, "Indebtedness") owing to RACC or any of its affiliates or (ii) shall default in the payment of any other amount due hereunder after the same becomes due and payable; or
(b) Such Borrower shall default Indebtedness in the performance excess of or compliance with any term contained $100,000.00 in Sections 9.01(a) or 9.01(b) and such default shall have continued for more than three (3) Banking Daysaggregate principal amount, or shall fail to pay any such Borrower shall default in the performance of Indebtedness when due or compliance with within any term contained in Sections 8.02(d), 8.02(e), 8.02(g), 8.05, 9.02, 9.03 or 9.04; or
(c) Such Borrower shall default in the performance of or compliance with any term contained herein other than those expressly referred to in this Section 10.01, and such default shall not have been remedied within five (5) Banking Days after written notice thereof shall have been given to such Borrower by the Operations Agent; or
(d) Such Borrower shall default in the performance of, or compliance with, any material term contained in any other written agreement with the Operations Agent or any Bank pertaining to this Agreement or such Borrower's Loans, and such default shall continue for more than the applicable period of grace, if any, specified therein and shall not have been waived pursuant thereto; or;
(e) Any representation, warranty certification or statement made or deemed made by such Borrower any of the Transaction Documents shall cease to be in this Agreement or in any certificate, financial statement or other document delivered pursuant hereto shall prove to have been false or incorrect in any material respect when made; orfull force and effect;
(f) Except as otherwise provided in this Section 10.01, such Borrower shall default in any payment due on Indebtedness for borrowed money or the deferred purchase price of property, the aggregate outstanding principal amount of which is in excess of five percent (5%) of such Borrower's Total Assets, and such default shall continue for more than the period of grace, if any, applicable thereto and shall not have been waived pursuant thereto and shall permit the holder of such Indebtedness to declare such Indebtedness due and payable before its stated maturity, or in the performance of or compliance with any term of any evidence of such Indebtedness or of any mortgage, indenture or other agreement relating thereto, and any such default shall continue for more than the period of grace, if any, specified therein and shall not have been waived pursuant thereto and shall permit the holder of such Indebtedness to declare such Indebtedness due and payable before its stated maturity, unless such Borrower shall be contesting such payment or obligation in good faith by appropriate proceedings promptly initiated and diligently conducted and such Borrower shall have set aside on its books such reserves, if any, with respect thereto as are required by GAAP and deemed appropriate by such Borrower and its independent public accountants, PROVIDED, that no Event of Default pursuant to paragraphs (b) or Debtor (i) of this Section 10.01 shall have occurred and be continuing as a result of such claim having been asserted in respect of such Indebtedness; or
(g) Such Borrower shall discontinue its business (other than in connection with a permitted merger or consolidation of such Borrower) or shall make an assignment for the benefit of creditors; (ii) shall be adjudicated bankrupt or insolvent; (iii) shall seek the appointment of, or be the subject of an order appointing, a trustee, liquidator or receiver as to all or part of its assets, (iv) shall fail generally commence, approve or consent to, any case or proceeding under any bankruptcy, reorganization or similar law and, in the case of an involuntary case or proceeding, such case or proceeding is not dismissed within forty-five (45) days following the commencement thereof, or (v) shall be the subject of an order for relief in an involuntary case under federal bankruptcy law;
(g) Debtor shall be unable to pay its debts as such debts become due, or shall apply for or consent to the appointment of or taking possession by a trustee, receiver or liquidator (or other similar official) of such Borrower or any substantial part of the property or assets of such Borrower or shall commence a case or have an order for relief entered against it under the federal bankruptcy laws, as now or hereafter constituted, or any other applicable federal or state bankruptcy, insolvency or other similar law, or if any action shall be taken to dissolve or liquidate such Borrower (other than in connection with a permitted merger or consolidation of such Borrower); orthey mature;
(h) If, within sixty there shall remain undischarged for more than thirty (6030) days after the commencement against such Borrower of a case under the federal bankruptcy laws, as now or hereafter constituted, or any other applicable federal or state bankruptcy, insolvency or other similar law, such case shall have been consented to or shall not have been dismissed or all orders or proceedings thereunder affecting the operations or the business of such Borrower stayed, or if the stay of any such order or proceeding shall thereafter be set aside, or if within sixty (60) days after the entry of a decree appointing a trustee, receiver or liquidator (or other similar official) of such Borrower or any substantial part of the property of such Borrower such appointment shall not have been vacated; or
(i) A final judgment whichor execution action against Debtor that, together with other outstanding final judgments claims and execution actions against such BorrowerDebtor, respectively, exceeds an amount $100,000.00 in the aggregate equal to five percent aggregate;
(5%i) the prospect of such Borrower's Total Assets (exclusive payment or performance by Debtor or realization on the Collateral, in the reasonable opinion of amounts covered by available insurance) shall be rendered against such Borrower and ifRACC, within thirty (30) days after entry thereof, such judgment shall not have been discharged is or execution thereof stayed pending appeal, or if, within thirty (30) days after the expiration of any such stay, such judgment shall not have been discharged; orbecomes significantly impaired;
(j) Such Borrower or any member of the Controlled Group Aircraft shall fail have been lost, stolen or confiscated or shall have incurred substantial damage or have been destroyed to pay when due such an amount or amounts aggregating in excess of $500,000 which it extent that the repair thereof is obligated to pay to the PBGC or to a Plan under Title IV of ERISA; or a notice of intent to terminate a Plan or Plans having aggregate Unfunded Liabilities in excess of $500,000 shall be filed under Title IV of ERISA impracticable (as determined solely by such Borrower or any member of the Controlled Group, any plan administrator or any combination of the foregoing; or the PBGC shall institute proceedings under Title IV of ERISA to terminate or to cause a trustee to be appointed to administer any such Plan or Plans or a proceeding shall be instituted by a fiduciary of any such Plan or Plans against such Borrower or any member of the Controlled Group to enforce Sections 515 or 4219(c)(5) of ERISA; or a condition shall exist by reason of which the PBGC would be entitled to obtain a decree adjudicating that any such Plan or Plans must be terminated; or there shall occur a complete or partial withdrawal from, or a default, within the meaning of Section 4219(c)(5) of ERISA, with respect to, one or more Multiemployer Plans which could cause such Borrower or one or more members of the Controlled Group to incur a current payment obligation in excess of $500,000RACC); or
(k) Such Borrower shall cease to be an investment management company Debtor (i) sells, transfers or a Portfolio thereofdisposes of all or substantially all of its respective stock, assets or property, (ii) registered under becomes the Investment Company Actsubject of, or such Borrower's registration under the Investment Company Actengages in, a leveraged buy-out, or that of any Borrower Agent of such Borrower(iii) terminates its existence by merger, shall lapse reorganization or be suspended; thenconsolidation. THEN, and in any such event, and or at any time thereafter, if any Event of Default shall then be continuing with respect to such defaulting Borrower, :
(i1) in In the case of any Event of Default specified in paragraphs under clauses (f) or (g) and (h) above), the Commitments as to such defaulting Borrower shall thereupon automatically be terminated entire unpaid principal amount of this Subordinated Note and the principal of and accrued interest on the Loans all other amounts payable hereunder, shall automatically become forthwith due and payable payable, without presentment, demand, protest or other notice or formality of any kind, all of which are hereby expressly waived, and (ii) in the case of any other Event of Default specified above, either or both of the following actions may be taken: the Operations Agent may, and upon the written or telephonic (confirmed in writing) request of the Majority Banks shall, by written notice to such defaulting Borrower (A) declare the principal of and accrued interest in respect of such defaulting Borrower's Loans to be forthwith due and payable, whereupon the principal of and accrued interest in respect of such Loans shall become forthwith due and payable without presentment, demand, protest or other notice of any kind, all of which are hereby expressly waived by such BorrowerDebtor; and
(2) In the case of any Event of Default other than under clauses (f) or (g), and/or (B) terminate RACC may, by written notice to Debtor, declare the Commitments as unpaid principal amount of this Subordinated Note and all other amounts payable hereunder, to such defaulting Borrowerbe forthwith due and payable, whereupon the Commitments of the Banks to make Committed Credit Loans hereunder to such defaulting Borrower shall forthwith terminate without any other presentment, demand, protest or further notice of any kind kind, all of which are hereby expressly waived by Debtor. In addition to and without in any way limiting the percentages foregoing, upon the occurrence of an Event of Default or at any time thereafter, RACC may employ all remedies allowed by law, including, without limitation, those available to a secured party under the Commitment Fee Uniform Commercial Code. No remedy herein conferred upon RACC is intended to be exclusive of any other remedy and other fees each and expenses otherwise payable by such defaulting Borrower hereunder accruing from and after the date of termination every remedy shall be reallocated among the remaining Borrowers PRO RATA on the basis of the percentages set forth opposite such remaining Borrowers' names on SCHEDULE 1cumulative and in addition to every other remedy hereunder, as now or hereafter existing at law or in effect at the time of such terminationequity or otherwise.
Appears in 1 contract
Events of Default; Acceleration. If any Each of the following events (each shall constitute an "EVENT OF DEFAULT") shall occur with respect to any BorrowerEvent of Default" under this Amended and Restated Loan Agreement:
(a) Such If the Borrower (i) shall default in the payment of any interest on and/or any principal of any Loan, interest accrued thereon or fee due hereunder after the Amended and Restated Working Capital Line of Credit Note when the same becomes due and payable, whether at maturity and such default continues for ten (10) days after the Bank has given written notice of such default to the Borrower.
(b) If the Borrower shall breach or by acceleration default in the performance or otherwiseobservance of any of the provisions of Sections 7.3, 7.4 or 7.7 hereof.
(c) If the Borrower shall breach or default in the performance or observance of any of the provisions of Section 7 hereof (other than Sections 7.3, 7.4 or 7.7 hereof for which no cure period is provided), and such breach or default is not cured within thirty (30) days after the earlier of (i) the date the Borrower first obtains knowledge of the particular breach or default, or (ii) shall the date written notice of the particular breach or default in is given to the payment of any other amount due hereunder after Borrower by the same becomes due and payable; orBank.
(bd) Such If the Borrower shall default in the performance of or compliance with any term covenant, obligation or provision contained in Sections 9.01(a) this Amended and Restated Loan Agreement or 9.01(b) any of the other Loan Instruments, and not otherwise referred to in this Section 8, and such default shall not have continued for more than three been remedied (3i) Banking Dayswithin thirty (30) days after written notice of such default shall have been delivered to the Borrower, or (ii) if such default cannot be cured within such thirty (30) day period, within such longer period of time as may be necessary to effect such cure, but in any event within sixty (60) days after written notice of such default shall have been delivered to the Borrower, provided that the Borrower commences to cure the particular default within such thirty (30) day period and prosecutes the cure to completion with due diligence within sixty (60) days after written notice of such default shall have been delivered to the Borrower.
(e) If any material representation or warranty made in writing by or on behalf of the Borrower herein or pursuant hereto or otherwise in connection with the transactions contemplated hereby shall have been materially false or misleading or incorrect when made and the Borrower shall have known or should have known of the falsity, misleading nature of or incorrectness of such representation or warranty when it was made, and the Borrower fails to cause such representation or warranty to cease to be materially false, misleading or incorrect within ton (10) days after written notice of such materially false, misleading or incorrect representation or warranty shall have been delivered to the Borrower.
(f) If the Borrower shall default (as principal or guarantor or other surety or otherwise) in the payment of any principal of or premium, if any, or interest on any Indebtedness which, at the time of the Borrower's default in the payment thereof, has an unpaid balance in excess of Two Million Dollars ($2,000,000.00), or if the Borrower defaults in the performance of or compliance with any term contained in Sections 8.02(d)of any evidence of such Indebtedness or of any mortgage, 8.02(e), 8.02(g), 8.05, 9.02, 9.03 indenture or 9.04; or
(c) Such Borrower shall default in the performance of or compliance with any term contained herein other than those expressly referred to in this Section 10.01, and such default shall not have been remedied within five (5) Banking Days after written notice thereof shall have been given to such Borrower by the Operations Agent; or
(d) Such Borrower shall default in the performance of, or compliance with, any material term contained in any other written agreement with the Operations Agent or any Bank pertaining to this Agreement or such Borrower's Loansrelating thereto, and such default shall continue for more than the period of grace, if any, specified therein and shall not have been waived pursuant thereto; or
(e) Any representationprovided, warranty certification however, to the extent the Borrower is contesting the amount or statement made or deemed made by such Borrower in this Agreement or in validity of any certificate, financial statement or other document delivered pursuant hereto shall prove to have been false or incorrect in any material respect when made; or
(f) Except as otherwise provided in this Section 10.01, such Borrower shall default in any payment due on Indebtedness for borrowed money or the deferred purchase price of property, the aggregate outstanding principal amount of which is in excess of five percent (5%) of such Borrower's Total Assets, and such default shall continue for more than the period of grace, if any, applicable thereto and shall not have been waived pursuant thereto and shall permit the holder of such Indebtedness claimed to declare such Indebtedness due and payable before its stated maturity, or be in default and/or is contesting whether it has defaulted in the performance of or compliance with any term or provision of any evidence document of such Indebtedness or of any mortgagethe type referenced in this subsection (f), indenture or other agreement relating thereto, and any such default shall continue for more than the period of grace, if any, specified therein and shall not have been waived pursuant thereto and shall permit the holder of such Indebtedness to declare such Indebtedness due and payable before its stated maturity, unless such Borrower shall be contesting such payment or obligation in each case in good faith and by appropriate proceedings promptly initiated and diligently conducted and by the Borrower, any such Borrower default of the type referred to in this subsection (f) shall have set aside on its books such reserves, if any, with respect thereto as are required by GAAP and deemed appropriate by such Borrower and its independent public accountants, PROVIDED, that no not constitute an Event of Default pursuant to paragraphs (b) or (i) of this Section 10.01 shall have occurred and be continuing as a result of such claim having been asserted in respect of such Indebtedness; orDefault.
(g) Such The occurrence of any Event of Default under and as defined in the Senior Note Agreement, or a default by the Borrower under the Master Equipment Lease or any Funded Debt.
(h) If the Borrower shall discontinue its business (other than in connection with a permitted merger or consolidation of such Borrower) or shall make an assignment for the benefit of its creditors, or shall fail generally to pay its debts as such debts become due, or shall apply for or consent to the appointment of or taking possession by a trustee, receiver or liquidator (or other similar official) of such Borrower or any substantial part of the property or assets of such Borrower its property, or shall commence a case or have an order for relief entered against it under the federal bankruptcy laws, as now or hereafter constituted, or any other applicable federal or state bankruptcy, insolvency or other similar law, or if the Borrower shall take any action shall be taken to dissolve in furtherance of the dissolution or liquidate such Borrower (other than in connection with a permitted merger or consolidation liquidation of such the Borrower); or.
(hi) If, within sixty (60) days after the commencement against such the Borrower of a case under the federal bankruptcy lawsBankruptcy Code, as now or hereafter constituted, or any other applicable federal or state bankruptcy, insolvency or other similar law, such case shall have been consented to or shall not have been dismissed or all orders or proceedings thereunder affecting the operations or the business of such the Borrower shall not have been stayed, or if the stay of any such order or proceeding shall thereafter be set aside, or if within sixty (60) days after the entry of a decree appointing a trustee, receiver or liquidator (or other similar official) of such Borrower or any substantial part of the property of such Borrower the Borrower, such appointment shall not have been vacated; or.
(ij) A If a final uninsured, non-appealable judgment which, together with other outstanding final judgments against such Borrower, the Borrower exceeds an amount in the aggregate equal to five percent of Two Hundred Fifty Thousand Dollars (5%) of such Borrower's Total Assets (exclusive of amounts covered by available insurance$250,000.00) shall be rendered against such the Borrower and (i) if, within thirty (30) days after entry thereofprior to the availability of any execution thereon, such judgment shall not have been discharged or execution thereof shall not have been stayed pending appeal, or if, within thirty (30) days after the expiration of any such stay, such judgment shall not have been discharged; or
(j) Such Borrower or any member of the Controlled Group shall fail to pay when due an amount or amounts aggregating in excess of $500,000 which it is obligated to pay to the PBGC or to a Plan under Title IV of ERISA; or a notice of intent to terminate a Plan or Plans having aggregate Unfunded Liabilities in excess of $500,000 shall be filed under Title IV of ERISA by such Borrower or any member of the Controlled Group, any plan administrator or any combination of the foregoing; or the PBGC shall institute proceedings under Title IV of ERISA to terminate or to cause a trustee to be appointed to administer any such Plan or Plans or a proceeding shall be instituted by a fiduciary of any such Plan or Plans against such Borrower or any member of the Controlled Group to enforce Sections 515 or 4219(c)(5) of ERISA; or a condition shall exist by reason of which the PBGC would be entitled to obtain a decree adjudicating that any such Plan or Plans must be terminated; or there shall occur a complete or partial withdrawal from, or a default, within (ii) the meaning of Section 4219(c)(5) of ERISA, with respect to, one or more Multiemployer Plans which could cause such Borrower or one or more members of the Controlled Group to incur a current payment obligation in excess of $500,000; or
(k) Such Borrower shall cease to be an investment management company (or a Portfolio thereof) registered under the Investment Company Act, or such Borrower's registration under the Investment Company Act, or that of any Borrower Agent not have established adequate reserves on its books in respect of such Borrower, shall lapse final uninsurable judgment or be suspended; then, and in any such event, and at any time thereafter, if any Event of Default shall then be continuing with respect to such defaulting Borrower, (i) in judgments. Upon the case occurrence of any Event of Default specified described in paragraphs (g) and subsection (h) aboveor (i) of this Section 8, the Commitments as to such defaulting Borrower shall thereupon automatically be terminated respective unpaid principal balances of the Amended and the principal Restated Working Capital Line of and Credit Note together with all accrued interest on the Loans thereon and all other Obligations shall automatically become immediately due and payable payable, without presentment, demand, protest or other notice or formality of any kind, all of which are hereby expressly waived, and (ii) in the case of any other Event of Default specified above, either or both of the following actions may be taken: the Operations Agent may, and upon the written or telephonic (confirmed in writing) request of the Majority Banks shall, by written notice to such defaulting Borrower (A) declare the principal of and accrued interest in respect of such defaulting Borrower's Loans to be forthwith due and payable, whereupon the principal of and accrued interest in respect of such Loans shall become forthwith due and payable without presentment, demand, protest or other notice requirements of any kind, all of which are hereby expressly waived by such the Borrower. Further, upon the occurrence of any other Event of Default referred to in this Section 8, the Bank may at any time at its option, by written notice to the Borrower, and/or (B) terminate declare the Commitments as to such defaulting Borrower, whereupon the Commitments respective unpaid principal balances of the Banks Amended and Restated Working Capital Line of Credit Note together with all accrued interest thereon and all other obligations to make Committed Credit Loans hereunder be due and payable in full to such defaulting Borrower shall forthwith terminate the Bank, without any presentment, demand, protest or other notice requirements of any kind and kind, all of which are hereby waived by the percentages of the Commitment Fee and other fees and expenses otherwise payable by such defaulting Borrower hereunder accruing from and after the date of termination shall be reallocated among the remaining Borrowers PRO RATA on the basis of the percentages set forth opposite such remaining Borrowers' names on SCHEDULE 1, as in effect at the time of such terminationBorrower.
Appears in 1 contract
Events of Default; Acceleration. If any In case one or more of the following events of default (each each, an "EVENT OF DEFAULTevent of default") shall occur with respect to any Borrowerhave occurred and be continuing:
(a) Such Borrower (i) shall failure by the Corporation to pay when due any amount required to be paid under this Participation Agreement or the Corporation Note, which failure causes a default in the payment when due of principal the interest on any of the Bonds and continuance of such default for five Business Days;
(b) failure by the Corporation to pay when due any Loanamount required to be paid under this Participation Agreement or the Corporation Note, interest accrued thereon or fee due hereunder after the same becomes due and payable, whether at maturity or by acceleration or otherwise, or (ii) shall which failure causes a default in the payment when due of any other amount due hereunder after the same becomes due and payable; or
(b) Such Borrower shall default in the performance of or compliance with any term contained in Sections 9.01(a) or 9.01(b) and such default shall have continued for more than three (3) Banking Daysprincipal of, or premium, if any, on any of the Bonds; provided that, with respect to any payment of principal of, or premium, if any, payable on Bonds called for redemption, such Borrower failure by the Corporation shall default in the performance of or compliance with any term contained in Sections 8.02(d), 8.02(e), 8.02(g), 8.05, 9.02, 9.03 or 9.04continue for five Business Days; or
(c) Such Borrower shall failure by the Corporation to pay when due any amount required to be paid under Section 4.11, which failure causes a default in the performance payment when due of any amount payable pursuant to Article V of the Indenture;
(d) failure on the part of the Corporation duly to observe or compliance with perform any term other of the covenants or agreements on the part of the Corporation contained herein in this Participation Agreement (other than those expressly referred failure to pay amounts required to be paid under Sections 4.04, 4.05, 4.07, 4.08, 4.09 or 4.10) or in this Section 10.01, and such default shall not have been remedied within five (5) Banking Days the Corporation Note for a period of 90 days after the date on which written notice thereof of such failure, requiring the Corporation to remedy the same, shall have been given to such Borrower the Corporation by the Operations Agent; or
(d) Such Borrower shall default in Authority or the performance ofTrustee, or compliance withprovided, any material term contained in any other written agreement with the Operations Agent or any Bank pertaining to this Agreement or such Borrower's Loanshowever, and such default shall continue for more than the period of gracethat, if anysuch failure is such that it cannot be corrected within such 90-day period, specified therein and it shall not have been waived pursuant theretoconstitute an event of default if corrective action is instituted by the Corporation within such 90-day period and diligently pursued until such failure is corrected; or
(e) Any representation, warranty certification or statement made or deemed made by such Borrower in this Agreement or in any certificate, financial statement or other document delivered pursuant hereto shall prove to have been false or incorrect in any material respect when made; or
(f) Except as otherwise provided in this Section 10.01, such Borrower shall default in any payment due on Indebtedness for borrowed money or the deferred purchase price an Act of property, the aggregate outstanding principal amount of which is in excess of five percent (5%) of such Borrower's Total Assets, and such default shall continue for more than the period of grace, if any, applicable thereto and shall not have been waived pursuant thereto and shall permit the holder of such Indebtedness to declare such Indebtedness due and payable before its stated maturity, or in the performance of or compliance with any term of any evidence of such Indebtedness or of any mortgage, indenture or other agreement Bankruptcy relating thereto, and any such default shall continue for more than the period of grace, if any, specified therein and shall not have been waived pursuant thereto and shall permit the holder of such Indebtedness to declare such Indebtedness due and payable before its stated maturity, unless such Borrower shall be contesting such payment or obligation in good faith by appropriate proceedings promptly initiated and diligently conducted and such Borrower shall have set aside on its books such reserves, if any, with respect thereto as are required by GAAP and deemed appropriate by such Borrower and its independent public accountants, PROVIDED, that no Event of Default pursuant to paragraphs (b) or (i) of this Section 10.01 shall have occurred and be continuing as a result of such claim having been asserted in respect of such Indebtedness; or
(g) Such Borrower shall discontinue its business (other than in connection with a permitted merger or consolidation of such Borrower) or shall make an assignment for the benefit of creditors, or shall fail generally to pay its debts as such debts become due, or shall apply for or consent to the appointment of or taking possession by a trustee, receiver or liquidator (or other similar official) of such Borrower or any substantial part of the property or assets of such Borrower or shall commence a case or have an order for relief entered against it under the federal bankruptcy laws, as now or hereafter constituted, or any other applicable federal or state bankruptcy, insolvency or other similar law, or if any action shall be taken to dissolve or liquidate such Borrower (other than in connection with a permitted merger or consolidation of such Borrower); or
(h) If, within sixty (60) days after the commencement against such Borrower of a case under the federal bankruptcy laws, as now or hereafter constituted, or any other applicable federal or state bankruptcy, insolvency or other similar law, such case shall have been consented to or shall not have been dismissed or all orders or proceedings thereunder affecting the operations or the business of such Borrower stayed, or if the stay of any such order or proceeding shall thereafter be set aside, or if within sixty (60) days after the entry of a decree appointing a trustee, receiver or liquidator (or other similar official) of such Borrower or any substantial part of the property of such Borrower such appointment shall not have been vacated; or
(i) A final judgment which, together with other outstanding final judgments against such Borrower, exceeds an amount in the aggregate equal to five percent (5%) of such Borrower's Total Assets (exclusive of amounts covered by available insurance) shall be rendered against such Borrower and if, within thirty (30) days after entry thereof, such judgment shall not have been discharged or execution thereof stayed pending appeal, or if, within thirty (30) days after the expiration of any such stay, such judgment shall not have been discharged; or
(j) Such Borrower or any member of the Controlled Group shall fail to pay when due an amount or amounts aggregating in excess of $500,000 which it is obligated to pay to the PBGC or to a Plan under Title IV of ERISA; or a notice of intent to terminate a Plan or Plans having aggregate Unfunded Liabilities in excess of $500,000 shall be filed under Title IV of ERISA by such Borrower or any member of the Controlled Group, any plan administrator or any combination of the foregoing; or the PBGC shall institute proceedings under Title IV of ERISA to terminate or to cause a trustee to be appointed to administer any such Plan or Plans or a proceeding shall be instituted by a fiduciary of any such Plan or Plans against such Borrower or any member of the Controlled Group to enforce Sections 515 or 4219(c)(5) of ERISA; or a condition shall exist by reason of which the PBGC would be entitled to obtain a decree adjudicating that any such Plan or Plans must be terminated; or there shall occur a complete or partial withdrawal from, or a default, within the meaning of Section 4219(c)(5) of ERISA, with respect to, one or more Multiemployer Plans which could cause such Borrower or one or more members of the Controlled Group to incur a current payment obligation in excess of $500,000; or
(k) Such Borrower shall cease to be an investment management company (or a Portfolio thereof) registered under the Investment Company Act, or such Borrower's registration under the Investment Company Act, or that of any Borrower Agent of such Borrower, shall lapse or be suspendedCorporation; then, and in any such event, and at any time thereafter, if any Event of Default shall then be continuing the Trustee with respect to such defaulting Borrower, (i) in the case of any Event of Default specified in paragraphs (g) and (h) above, the Commitments as to such defaulting Borrower shall thereupon automatically be terminated and the principal of and accrued interest on the Loans shall automatically become due and payable without presentment, demand, protest or other notice or formality of any kind, all of which are hereby expressly waived, and (ii) in the case of any other Event of Default specified above, either or both consent of the following actions may be taken: the Operations Agent Bond Insurer, may, and upon the written or telephonic (confirmed in writing) request of the Majority Banks Bond Insurer or the owners of at least 25% in aggregate principal amount of the Bonds then outstanding with the consent of the Bond Insurer shall, by notice in writing to the Corporation and the Bond Insurer and provided that the default has not theretofore been cured, declare the Corporation Note to be due and payable immediately, and upon any such declaration the same shall become and shall be immediately due and payable, anything contained in this Participation Agreement or in the Corporation Note to the contrary notwithstanding. Any amounts collected by the Trustee pursuant to action taken under this Section 6.01 shall be applied in accordance with the Indenture. In addition, if at any time the principal of the Bonds shall have been declared to be due and payable by acceleration pursuant to the terms of the Indenture, the Corporation Note shall thereupon become and be immediately due and payable, subject to such declaration with respect to the Bonds being rescinded or annulled pursuant to the Indenture. The right or obligation of the Trustee to make any such declaration as aforesaid, however, is subject to the condition that if, at any time after declaration, but before all the Bonds shall have matured by their terms, the principal of, premium, if any, and interest on, the Corporation Note which shall have become due and payable otherwise than by such declaration, and all other sums payable hereunder, except the principal of, and interest on, the Corporation Note which shall have become due and payable by such declaration, shall have been paid or provision satisfactory to the Trustee shall have been made for such payment, and the reasonable expenses of the Trustee and of the owners of the Bonds incurred pursuant to the Indenture shall have been paid, including reasonable attorneys' fees paid or incurred, and all defaults hereunder and under the Bonds or under the Indenture, except as to the payment of principal and interest due and payable solely by reason of such declaration, shall be made good or be secured to the satisfaction of the Trustee or provision deemed by the Trustee to be adequate shall be made therefor, then and in every such case the owners of a majority in aggregate principal amount of the Bonds then outstanding, by written notice to the Authority and to the Trustee, may rescind such defaulting Borrower declaration and annul such default in its entirety, or, if the Trustee shall have acted in the absence of a written request of the owners of at least 25% in aggregate principal amount of the outstanding Bonds, and if there shall not have been theretofore delivered to the Trustee written direction to the contrary by the owners of at least 25% in aggregate principal amount of the outstanding Bonds, then any such declaration shall ipso facto be deemed to be rescinded and any such default and its consequences shall ipso facto be deemed to be annulled, but no such rescission and annulment shall extend to or affect any subsequent default or impair or exhaust any right or power consequent thereon. Anything in this Participation Agreement to the contrary notwithstanding, upon the occurrence and continuance of an event of default as defined herein, the Bond Insurer (Aif not in default) declare shall be entitled to control and direct the enforcement of all rights and remedies granted to the Bondholders or the Trustee for the benefit of the Bondholders under this Participation Agreement, including, without limitation: (i) the right to accelerate the principal of the Corporation Note as described in this Participation Agreement, and accrued interest (ii) the right to rescind any declaration of acceleration, and the Bond Insurer shall also be entitled to approve all waivers of events of default. In case the Trustee shall have proceeded to enforce any right under this Participation Agreement or the Corporation Note and such proceedings shall have been discontinued or abandoned for any reason or shall have been determined adversely to the Trustee, then and in respect every such case the Corporation, the Authority and the Trustee shall be restored respectively to their former positions and rights hereunder, and all rights, remedies and powers of the Corporation, the Authority and the Trustee shall continue as though no such defaulting Borrower's Loans to be forthwith due and payable, whereupon proceedings had been taken. In the principal of and accrued interest in respect of such Loans shall become forthwith due and payable without presentment, demand, protest or other notice event of any kindAct of Bankruptcy, reorganization or liquidation, the Bond Insurer shall have the right to vote on behalf of all of which are hereby expressly waived Bondholders absent a default by such Borrower, and/or (B) terminate the Commitments as to such defaulting Borrower, whereupon Bond Insurer under the Commitments of the Banks to make Committed Credit Loans hereunder to such defaulting Borrower shall forthwith terminate without any other notice of any kind and the percentages of the Commitment Fee and other fees and expenses otherwise payable by such defaulting Borrower hereunder accruing from and after the date of termination shall be reallocated among the remaining Borrowers PRO RATA on the basis of the percentages set forth opposite such remaining Borrowers' names on SCHEDULE 1, as in effect at the time of such terminationPolicy.
Appears in 1 contract
Events of Default; Acceleration. If any An event of the following events default (each an "EVENT OF DEFAULTEvent of Default") shall occur with respect will have occurred if, prior to any Borrowerthe payment in full by Borrower of its Indebtedness hereunder:
(a) Such Borrower fails to pay any amount of interest due under this Note within forty-five (i45) shall default days after receipt of a written notice from Lender that an amount of interest was not timely paid in the payment of principal of any Loan, interest accrued thereon or fee due hereunder after the same becomes due and payableaccordance with paragraph 2 hereof;
(b) Borrower fails to pay when due, whether at maturity or upon maturity, by acceleration or otherwise, or (ii) shall default in the payment of any other amount due hereunder under this Note within forty-five (45) days after the same becomes receipt of a written notice from Lender that any other amount due and payable; or
(b) Such Borrower shall default in the performance of or compliance with any term contained in Sections 9.01(a) or 9.01(b) and such default shall have continued for more than three (3) Banking Days, or such Borrower shall default in the performance of or compliance with any term contained in Sections 8.02(d), 8.02(e), 8.02(g), 8.05, 9.02, 9.03 or 9.04; orunder this Note was not timely paid;
(c) Such Borrower shall default fails to furnish to Lender on or before the fifth business day of any month a Spare Parts Inventory Certificate as of the last day of the preceding month of the value (determined in the performance accordance with generally accepted accounting principles) of or compliance with any term contained herein other than those expressly referred to in this Section 10.01, Borrower's spare parts inventory and such default failure continues unremedied for at least forty-five days (the "Inventory Covenant Cure Period"); provided, however, that Lender shall not have been remedied within provide Borrower with at least twenty five (5) Banking Days after days prior written notice thereof shall have been given to such (which twenty five day period may run concurrently with the Inventory Covenant Cure Period) before taking any remedial action against Borrower by the Operations Agent; orbased upon this subsection (c);
(d) Such Borrower fails to have, as of the last day of each month, and as certified on a Spare Parts Inventory Certificate, a Spare Parts Inventory Ratio of at least 2.5 to 1 and such failure continues unremedied for at least the Inventory Covenant Cure Period; provided, however, that Lender shall default in the performance of, or compliance with, any material term contained in any other provide Borrower with at least twenty five days prior written agreement notice (which twenty five day period may run concurrently with the Operations Agent or Inventory Covenant Cure Period) before taking any Bank pertaining to remedial action against Borrower based upon this Agreement or such Borrower's Loans, and such default shall continue for more than the period of grace, if any, specified therein and shall not have been waived pursuant thereto; orsubsection (d);
(e) Any representation▇▇▇▇▇▇▇ declares an event of default under any of the documents evidencing the indebtedness of Borrower to ▇▇▇▇▇▇▇ and any such event of default continues beyond the expiration of all applicable grace and cure periods, warranty certification and any such event of default is further not waived in writing by ▇▇▇▇▇▇▇, and thereafter, ▇▇▇▇▇▇▇ actively takes action to enforce, realize upon or statement made or deemed made by such Borrower in this Agreement or foreclose his security interest in any certificate, financial statement or other document delivered pursuant hereto shall prove tangible assets which secure the indebtedness of Borrower to have been false or incorrect in any material respect when made; or▇▇▇▇▇▇▇ under an Amended and Restated Promissory Note dated the date hereof;
(f) Except as otherwise provided in this Section 10.01, such Borrower shall default in any payment due on Indebtedness for borrowed money breaches or the deferred purchase price of property, the aggregate outstanding principal amount of which is in excess of five percent (5%) of such Borrower's Total Assets, and such default shall continue for more than the period of grace, if any, applicable thereto and shall not have been waived pursuant thereto and shall permit the holder of such Indebtedness to declare such Indebtedness due and payable before its stated maturity, or in the performance of or compliance with under any term of any evidence of such Indebtedness or of any mortgage, indenture or other agreement relating thereto, with Lender and any such event of default shall continue for more than continues beyond the period expiration of grace, if any, specified therein and shall not have been waived pursuant thereto and shall permit the holder of such Indebtedness to declare such Indebtedness due and payable before its stated maturity, unless such Borrower shall be contesting such payment any applicable grace or obligation in good faith by appropriate proceedings promptly initiated and diligently conducted and such Borrower shall have set aside on its books such reserves, if any, with respect thereto as are required by GAAP and deemed appropriate by such Borrower and its independent public accountants, PROVIDED, that no Event of Default pursuant to paragraphs (b) or (i) of this Section 10.01 shall have occurred and be continuing as a result of such claim having been asserted in respect of such Indebtedness; orcure period(s);
(g) Such Borrower shall discontinue is dissolved;
(h) A receiver or similar trustee is appointed for Borrower or its business assets (other than in connection with a permitted merger or consolidation of such Borrower) without its consent), or shall make Borrower makes an assignment for the benefit of creditorscreditors or commences or has commenced against it a proceeding pursuant to any bankruptcy law and, or shall fail generally to pay its debts as such debts become due, or shall apply for or consent with respect to the appointment of or taking possession by a trustee, any such receiver or liquidator trustee or the commencement of any such proceeding against Borrower, the failure to have such appointment vacated, or such proceeding dismissed, within ninety (90) days;
(i) Any representation or other similar officialwarranty made in a Spare Parts Inventory Certificate proves to have been made with the affirmative intention of deceiving Lender as to the value (determined in accordance with generally accepted accounting principles) of Borrower's spare parts inventory.
(j) ▇▇▇▇▇▇▇ breaches or is in default under the Pledge Agreement and any such Borrower breach or default continues beyond the expiration of any substantial part of the property applicable grace or assets of such Borrower cure period(s);
(k) A final judgment or shall commence a case judgements are entered or have an order for relief entered or orders of any judicial authority or governmental entity is issued against it under the federal bankruptcy laws, as now or hereafter constituted, or any other applicable federal or state bankruptcy, insolvency or other similar law, or if any action shall be taken to dissolve or liquidate such Borrower (other than in connection with such judgment(s) and order(s) hereinafter collectively referred to as "Judgment") for payment of money, which Judgment exceeds Two Hundred Fifty Thousand Dollars ($250,000) and which is not covered by insurance or otherwise the subject of an appeal as to which a permitted merger or consolidation of such Borrower)bond has been provided; or
(hl) IfBorrower raises capital in any offering of additional equity and fails, within sixty ten (6010) business days after of the commencement against such Borrower receipt of immediately available funds as a case under the federal bankruptcy laws, as now or hereafter constituted, or any other applicable federal or state bankruptcy, insolvency or other similar law, such case shall have been consented to or shall not have been dismissed or all orders or proceedings thereunder affecting the operations or the business result of such Borrower stayedequity offering, or if the stay of any such order or proceeding shall thereafter be set aside, or if within sixty to remit fifty percent (60) days after the entry of a decree appointing a trustee, receiver or liquidator (or other similar official50%) of such Borrower or any substantial part of immediately available funds to Lender to be applied as a permanent reduction to the property of such Borrower such appointment shall not have been vacatedIndebtedness; or
(im) A final judgment which, together with other outstanding final judgments against such Borrower, exceeds an amount in Lender's agent fails to deliver to Lender a share certificate for the aggregate equal to five percent (5%) of such Borrower's Total Assets (exclusive of amounts covered by available insurance) shall be rendered against such Borrower and if, Pledged Shares within thirty (30) twenty one days after entry thereof, such judgment shall not have been discharged or execution thereof stayed pending appeal, or if, within thirty (30) days after the expiration of any such stay, such judgment shall not have been discharged; or
(j) Such Borrower or any member of the Controlled Group shall fail to pay when due an amount or amounts aggregating in excess date of $500,000 which it is obligated to pay to this Note. Upon the PBGC or to a Plan under Title IV of ERISA; or a notice of intent to terminate a Plan or Plans having aggregate Unfunded Liabilities in excess of $500,000 shall be filed under Title IV of ERISA by such Borrower or any member of the Controlled Group, any plan administrator or any combination of the foregoing; or the PBGC shall institute proceedings under Title IV of ERISA to terminate or to cause a trustee to be appointed to administer any such Plan or Plans or a proceeding shall be instituted by a fiduciary of any such Plan or Plans against such Borrower or any member of the Controlled Group to enforce Sections 515 or 4219(c)(5) of ERISA; or a condition shall exist by reason of which the PBGC would be entitled to obtain a decree adjudicating that any such Plan or Plans must be terminated; or there shall occur a complete or partial withdrawal from, or a default, within the meaning of Section 4219(c)(5) of ERISA, with respect to, one or more Multiemployer Plans which could cause such Borrower or one or more members of the Controlled Group to incur a current payment obligation in excess of $500,000; or
(k) Such Borrower shall cease to be an investment management company (or a Portfolio thereof) registered under the Investment Company Act, or such Borrower's registration under the Investment Company Act, or that of any Borrower Agent of such Borrower, shall lapse or be suspended; then, and in any such event, and at any time thereafter, if any Event of Default shall then be continuing with respect to such defaulting Borrower, (i) in the case occurrence of any Event of Default specified in paragraphs (g) and (h) above, the Commitments as to such defaulting Borrower shall thereupon automatically be terminated and the principal expiration of and accrued interest on the Loans any grace or cure period applicable thereto, all amounts hereunder shall automatically become immediately due and payable without presentmentat Lender's option and, demand, protest or other notice or formality of any kind, all of which are hereby expressly waived, and (ii) in subject to the case of any other Event of Default specified above, either or both provisions of the following actions Intercreditor Agreement, Lender may be taken: the Operations Agent may, thereupon exercise all rights and upon the written or telephonic (confirmed remedies available to it under this Note and all documents entered into in writing) request of the Majority Banks shall, by written notice to such defaulting Borrower (A) declare the principal of connection with this Note and accrued interest in respect of such defaulting Borrower's Loans to be forthwith due and payable, whereupon the principal of and accrued interest in respect of such Loans shall become forthwith due and payable without presentment, demand, protest or other notice of any kind, all of which are hereby expressly waived by such Borrower, and/or (B) terminate the Commitments as to such defaulting Borrower, whereupon the Commitments of the Banks to make Committed Credit Loans hereunder to such defaulting Borrower shall forthwith terminate without any other notice of any kind and the percentages of the Commitment Fee and other fees and expenses otherwise payable by such defaulting Borrower hereunder accruing from and after the date of termination shall be reallocated among the remaining Borrowers PRO RATA on the basis of the percentages set forth opposite such remaining Borrowers' names on SCHEDULE 1, as in effect at the time of such terminationapplicable law.
Appears in 1 contract
Sources: Promissory Note (Delta Computec Inc)
Events of Default; Acceleration. If any one or more of the following events (each an "EVENT OF DEFAULT"herein called “Events of Default”) shall occur with respect for any reason whatsoever (and whether such occurrence shall be voluntary or involuntary or be effected by operation of law or pursuant to any Borrower:judgment, decree or order of any court or any order, rule or regulation of any administrative or governmental body):
(a) Such Borrower (i) shall default in the payment of principal of any Loan, interest accrued thereon or fee due hereunder after the same becomes due and payable, whether at maturity or by acceleration or otherwise, or (ii) shall default in the payment of any other amount due hereunder after interest upon the same Note when such interest becomes due and payable; or
(b) Such Borrower shall default in the performance payment of principal of (or compliance with any term contained Prepayment Price, if any, on) the Note when and as the same shall become due and payable, whether at maturity or at a date fixed for principal payment or prepayment (including, without limitation, a principal payment or prepayment as provided in Sections 9.01(a) Section 5.1 or 9.01(b) and such default shall have continued for more than three (3) Banking DaysSection 5.2), or such Borrower shall default in the performance of by acceleration or compliance with any term contained in Sections 8.02(d), 8.02(e), 8.02(g), 8.05, 9.02, 9.03 or 9.04otherwise; or
(c) Such Borrower shall default in the performance or observance of any other covenant, agreement or compliance with condition contained herein, or in the Note or Deeds of Trust, or any term contained herein other than those expressly referred document or instrument relating to in this Section 10.01the Loan, and such non-monetary default shall not have been remedied within cured by either an irrevocable cash equity injection in an amount necessary to cure such non-monetary default or by other means acceptable to you on or before the expiration of forty-five (545) Banking Days after written notice thereof shall have been given days from the date of occurrence thereof; provided, that notwithstanding anything to the contrary in this Agreement, the Note or the Collateral Documents, if such Borrower non-monetary default is not cured by the Operations Agentfifteenth (15) Business Day after the occurrence thereof, you may charge interest at the Default Rate; or
(d) Such any Borrower or any Subsidiary shall default in not pay when due, whether by acceleration or otherwise, any evidence of indebtedness of such Borrower or such Subsidiary (other than the performance ofNote), or compliance with, any material term contained in any other written agreement with the Operations Agent condition or any Bank pertaining to this Agreement or such Borrower's Loans, and such default shall continue for more than exist under any such evidence of indebtedness or under any agreement under which the period of grace, if any, specified therein and shall not same may have been waived pursuant theretoissued permitting such evidence of indebtedness to become or be declared due prior to the stated maturity thereof; or
(e) Any representationany Borrower or any Subsidiary shall file a petition seeking relief for itself under Title 11 of the United States Code, warranty certification as now constituted or statement made hereafter amended, or deemed made by an answer consenting to, admitting the material allegations of or otherwise not controverting, or shall fail to timely controvert, a petition filed against such Borrower in this Agreement or in such Subsidiary seeking relief under Title 11 of the United States Code, as now constituted or hereafter amended; or any certificateBorrower or any Subsidiary shall file such a petition or answer with respect to relief under the provisions of any other now existing or future bankruptcy, financial statement insolvency or other document delivered pursuant hereto shall prove to have been false similar law of the United States of America or incorrect in any material respect when madeState thereof or of any other country or jurisdiction providing for the reorganization, winding-up or liquidation of Entities or an arrangement, composition, extension or adjustment with creditors; or
(f) Except as otherwise provided in this Section 10.01, such Borrower a court of competent jurisdiction shall default in any payment due on Indebtedness enter an order for borrowed money or the deferred purchase price of property, the aggregate outstanding principal amount of relief which is not stayed within 60 days from the date of entry thereof against any Borrower or any Subsidiary under Title 11 of the United States Code, as now constituted or hereafter amended; or there shall be entered an order, judgment or decree by operation of law or by a court having jurisdiction in excess the premises which is not stayed within 60 days from the date of five percent (5%) of such Borrower's Total Assets, and such default shall continue for more than the period of grace, if any, applicable thereto and shall not have been waived pursuant thereto and shall permit the holder of such Indebtedness to declare such Indebtedness due and payable before its stated maturityentry thereof adjudging any Borrower or any Subsidiary a bankrupt or insolvent, or in ordering relief against any Borrower or any Subsidiary, or approving as properly filed a petition seeking relief against any Borrower or any Subsidiary, under the performance of or compliance with any term provisions of any evidence other now existing or future bankruptcy, insolvency or other similar law of such Indebtedness the United States of America or any State thereof or of any mortgageother country or jurisdiction providing for the reorganization, indenture winding-up or other agreement relating theretoliquidation of Entities or Persons or an arrangement, and composition, extension or adjustment with creditors, or appointing a receiver, liquidator, assignee, sequestrator, trustee, custodian or similar official of any such default shall continue for more than Borrower or any Subsidiary or of any substantial part of its property, or ordering the period reorganization, winding-up or liquidation of grace, if any, its affairs; or any involuntary petition against any Borrower or any Subsidiary seeking any of the relief specified therein and in this clause shall not have been waived pursuant thereto and shall permit the holder be dismissed within 60 days of such Indebtedness to declare such Indebtedness due and payable before its stated maturity, unless such Borrower shall be contesting such payment or obligation in good faith by appropriate proceedings promptly initiated and diligently conducted and such Borrower shall have set aside on its books such reserves, if any, with respect thereto as are required by GAAP and deemed appropriate by such Borrower and its independent public accountants, PROVIDED, that no Event of Default pursuant to paragraphs (b) or (i) of this Section 10.01 shall have occurred and be continuing as a result of such claim having been asserted in respect of such Indebtednessfiling; or
(g) Such any Borrower shall discontinue its business (other than in connection with a permitted merger or consolidation of such Borrower) or any Subsidiary shall make an a general assignment for the benefit of its creditors, ; or any Borrower or any Subsidiary shall fail generally to pay its debts as such debts become due, or shall apply for or consent to the appointment of or taking possession by a receiver, liquidator, assignee, sequestrator, trustee, receiver custodian or liquidator (or other similar official) official of such Borrower or such Subsidiary or of all or any substantial part of the property its property; or assets of such any Borrower or any Subsidiary shall commence a case have admitted to its insolvency or have an order for relief entered against it under the federal bankruptcy laws, as now or hereafter constitutedinability to pay, or shall have failed to pay, its debts generally as such debts become due; or any other applicable federal Borrower or state bankruptcy, insolvency any Subsidiary or other similar law, its directors or if majority members shall take any action shall be taken to dissolve or liquidate such Borrower or such Subsidiary (other than in connection with a permitted merger or consolidation of such Borroweras contemplated by Section 7.6(a)); or
(h) Ifany Borrower or any Subsidiary shall (1) engage in any non-exempted “prohibited transaction,” as defined in Sections 406 and 408 of ERISA and Section 4975 of the Internal Revenue Code of 1986, within sixty as amended, (602) days after incur any “accumulated funding deficiency,” as defined in Section 302 of ERISA, in an amount in excess of $10,000, whether or not waived, or (3) terminate or permit the commencement against such Borrower termination of an “employee pension benefit plan,” as defined in Section 3 of ERISA, in a manner which could result in the imposition of a case under the federal bankruptcy laws, as now or hereafter constituted, or Lien on any other applicable federal or state bankruptcy, insolvency or other similar law, such case shall have been consented to or shall not have been dismissed or all orders or proceedings thereunder affecting the operations or the business of such Borrower stayed, or if the stay of any such order or proceeding shall thereafter be set aside, or if within sixty (60) days after the entry of a decree appointing a trustee, receiver or liquidator (or other similar official) property of such Borrower or any substantial part such Subsidiary pursuant to Section 4068 of the property ERISA securing an amount in excess of such Borrower such appointment shall not have been vacated$10,000; or
(i) A final judgment which, together with other outstanding final judgments against such Borrower, exceeds an amount any representation or warranty made by the Borrowers in the aggregate equal Section 2 hereof or in any Collateral Document or in any certificate or instrument furnished in connection therewith shall prove to five percent (5%) of such Borrower's Total Assets (exclusive of amounts covered by available insurance) shall be rendered against such Borrower and if, within thirty (30) days after entry thereof, such judgment shall not have been discharged false or execution thereof stayed pending appeal, or if, within thirty (30) days after misleading in any respect as of the expiration of any such stay, such judgment shall not have been dischargeddate made; or
(j) Such Borrower the dissolution of any of the Borrowers or any member Subsidiary, whether by operation of the Controlled Group shall fail to pay when due an amount law or amounts aggregating in excess of $500,000 which it is obligated to pay to the PBGC or to a Plan otherwise (other than as may be permitted under Title IV of ERISA; or a notice of intent to terminate a Plan or Plans having aggregate Unfunded Liabilities in excess of $500,000 shall be filed under Title IV of ERISA by such Borrower or any member of the Controlled Group, any plan administrator or any combination of the foregoing; or the PBGC shall institute proceedings under Title IV of ERISA to terminate or to cause a trustee to be appointed to administer any such Plan or Plans or a proceeding shall be instituted by a fiduciary of any such Plan or Plans against such Borrower or any member of the Controlled Group to enforce Sections 515 or 4219(c)(5Section 7.6(a) of ERISA; or a condition shall exist by reason of which the PBGC would be entitled to obtain a decree adjudicating that any such Plan or Plans must be terminated; or there shall occur a complete or partial withdrawal fromabove, or a default, within dissolution resulting from a transfer by will or intestate succession); then the meaning of Section 4219(c)(5) of ERISA, with respect to, one or more Multiemployer Plans which could cause such Borrower or one or more members entire outstanding principal amount of the Controlled Group Note, together with (1) all accrued but unpaid interest on the outstanding principal amount of the Note, (2) an amount equal to incur a current payment obligation the Prepayment Price, computed as provided in excess Sections 5.1 and 5.2 (except that, for purposes of $500,000; or
(k) Such Borrower such computation, the Prepayment Date shall cease be deemed to be an investment management company (or a Portfolio thereof) registered under the Investment Company Act, or such Borrower's registration under date upon which the Investment Company Act, or that holder of any Borrower Agent of such Borrower, the Note shall lapse or have declared the Note to be suspended; thendue and payable), and in any such event, and at any time thereafter, if any Event of Default shall then be continuing with respect to such defaulting Borrower, (i3) in the case of any Event of Default specified in paragraphs (g) and (h) above, the Commitments as to such defaulting Borrower shall thereupon automatically be terminated and the principal of and accrued interest on the Loans shall automatically become due and payable without presentment, demand, protest or other notice or formality of any kind, all of which are hereby expressly waived, and (ii) in the case of any other Event of Default specified above, either or both of foregoing computed at the following actions may be taken: the Operations Agent may, and upon the written or telephonic (confirmed in writing) request of the Majority Banks shall, by written notice to such defaulting Borrower (A) declare the principal of and accrued interest in respect of such defaulting Borrower's Loans to be forthwith due and payable, whereupon the principal of and accrued interest in respect of such Loans shall become forthwith due and payable without presentment, demand, protest or other notice of any kind, all of which are hereby expressly waived by such Borrower, and/or (B) terminate the Commitments as to such defaulting Borrower, whereupon the Commitments of the Banks to make Committed Credit Loans hereunder to such defaulting Borrower shall forthwith terminate without any other notice of any kind and the percentages of the Commitment Fee and other fees and expenses otherwise payable by such defaulting Borrower hereunder accruing Overdue Interest Rate from and after the date of termination the Event of Default, shall immediately become due and payable without notice or demand to the Borrowers. The Borrowers shall be reallocated among obligated to notify you, in accordance with Section 10.6, below, immediately upon the remaining occurrence of any event, act, or omission constituting an Event of Default, other than an Event of Default pursuant to Sections 9.1(a) or (b), above. The Borrowers PRO RATA on hereby expressly acknowledge and agree (i) that the basis Prepayment Price provided for in this Agreement is reasonable, (ii) that legal counsel of the percentages set forth opposite Borrowers’ own choosing has advised the Borrowers with respect to such remaining Borrowers' names on SCHEDULE 1Prepayment Price, (iii) that any prepayment made at a time when it is otherwise restricted under the Note will result in material loss and damage to the holder of the Note, requiring such holder to secure reinvestments at additional costs which might not produce the same economic benefit to such holder as in effect at the time economic benefits under the Note, (iv) that the foregoing Prepayment Price is a reasonable estimate of such terminationloss and damage, and (v) the Borrowers shall be estopped hereafter from claiming differently as to any of the foregoing. The foregoing Prepayment Price is not intended to be a penalty, but instead shall serve as liquidated damages to provide you with the benefit of your bargain.
Appears in 1 contract
Sources: Loan Agreement (Green Plains Renewable Energy, Inc.)
Events of Default; Acceleration. If any of the following events (each an "EVENT OF DEFAULTEvents of Default") shall occur with respect to any Borroweroccur:
(a) Such the Borrower (i) shall default in the payment of fail to pay when due and payable any principal of any Loan, interest accrued thereon or fee due hereunder after the Loans when the same becomes due and payable, whether at maturity or by acceleration or otherwise, or (ii) shall default in the payment of any other amount due hereunder after the same becomes due and payable; ordue;
(b) Such the Borrower shall default in fail to pay interest on the performance Loans, any Reimbursement Obligations not funded by a Loan pursuant to Section 2.1(c), or any other sum due under any of or compliance with any term contained in Sections 9.01(athe Loan Documents within two (2) or 9.01(b) and such default Business Days after the date on which the same shall have continued for more than three (3) Banking Days, or such Borrower shall default in the performance of or compliance with any term contained in Sections 8.02(d), 8.02(e), 8.02(g), 8.05, 9.02, 9.03 or 9.04; orfirst become due and payable;
(c) Such the Borrower shall default fail to perform any term, covenant or agreement contained in the performance of or compliance with any term contained herein other than those expressly referred to in this Section 10.01Sections 8.1(a), 8.1(d) through (f), 8.2 and such default shall not have been remedied within five (5) Banking Days after written notice thereof shall have been given to such Borrower by the Operations Agent; or8.3;
(d) Such the Borrower or any Subsidiary shall default fail to perform any other term, covenant or agreement contained in the performance of, or compliance with, any material term contained in any other Loan Documents within fifteen (15) days after the Bank has given written agreement with notice of such failure to the Operations Agent or any Bank pertaining to this Agreement or such Borrower's Loans, and such default shall continue for more than the period of grace, if any, specified therein and shall not have been waived pursuant thereto; or;
(e) Any representation, any representation or warranty certification of the Borrower or statement made or deemed made by such Borrower any of its Subsidiaries in this Agreement the Loan Documents or in any certificate, financial statement certificate or other document delivered pursuant hereto notice given in connection therewith shall prove to have been false or incorrect misleading in any material respect when at the time made or deemed to have been made; or;
(f) Except as otherwise provided the Borrower or any of its Subsidiaries shall be in this Section 10.01, such Borrower shall default in (after any payment due on applicable period of grace or cure period) under any agreement or agreements evidencing Indebtedness for borrowed money owing to the Bank or any affiliates of the deferred purchase price of property, the aggregate outstanding principal amount of which is Bank or in excess of five percent (5%) of $500,000 in aggregate principal amount, or shall fail to pay such Borrower's Total AssetsIndebtedness when due, and such default shall continue for more than the or within any applicable period of grace, if any, applicable thereto and shall not have been waived pursuant thereto and shall permit the holder of such Indebtedness to declare such Indebtedness due and payable before its stated maturity, or in the performance of or compliance with any term of any evidence of such Indebtedness or of any mortgage, indenture or other agreement relating thereto, and any such default shall continue for more than the period of grace, if any, specified therein and shall not have been waived pursuant thereto and shall permit the holder of such Indebtedness to declare such Indebtedness due and payable before its stated maturity, unless such Borrower shall be contesting such payment or obligation in good faith by appropriate proceedings promptly initiated and diligently conducted and such Borrower shall have set aside on its books such reserves, if any, with respect thereto as are required by GAAP and deemed appropriate by such Borrower and its independent public accountants, PROVIDED, that no Event of Default pursuant to paragraphs (b) or (i) of this Section 10.01 shall have occurred and be continuing as a result of such claim having been asserted in respect of such Indebtedness; or;
(g) Such any of the Loan Documents shall cease to be in full force and effect,
(h) the Borrower shall discontinue or any of its business Subsidiaries (other than in connection with a permitted merger or consolidation of such Borroweri) or shall make an assignment for the benefit of creditors, (ii) shall be adjudicated bankrupt or insolvent, (iii) shall fail generally seek the appointment of, or be the subject of an order appointing, a trustee, liquidator or receiver as to all or part of its assets, (iv) shall commence, approve or consent to, any case or proceeding under any bankruptcy, reorganization or similar law and, in the case of an involuntary case or proceeding, such case or proceeding is not dismissed within forty-five (45) days following the commencement thereof, or (v) shall be the subject of an order for relief in an involuntary case under federal bankruptcy law;
(i) the Borrower or any of its Subsidiaries shall be unable to pay its debts as such debts become due, they mature;
(j) there shall remain undischarged for more than thirty (30) days any final judgment or shall apply for or consent to execution action against the appointment of or taking possession by a trustee, receiver or liquidator (or other similar official) of such Borrower or any substantial part of the property or assets of such Borrower or shall commence a case or have an order for relief entered against it under the federal bankruptcy laws, as now or hereafter constituted, or any other applicable federal or state bankruptcy, insolvency or other similar law, or if any action shall be taken to dissolve or liquidate such Borrower (other than in connection with a permitted merger or consolidation of such Borrower); or
(h) If, within sixty (60) days after the commencement against such Borrower of a case under the federal bankruptcy laws, as now or hereafter constituted, or any other applicable federal or state bankruptcy, insolvency or other similar law, such case shall have been consented to or shall not have been dismissed or all orders or proceedings thereunder affecting the operations or the business of such Borrower stayed, or if the stay of any such order or proceeding shall thereafter be set aside, or if within sixty (60) days after the entry of a decree appointing a trustee, receiver or liquidator (or other similar official) of such Borrower or any substantial part of the property of such Borrower such appointment shall not have been vacated; or
(i) A final judgment whichits Subsidiaries that, together with other outstanding final judgments claims and execution actions against such Borrower, the Borrower and its Subsidiaries exceeds an amount $500,000 in the aggregate equal aggregate;
(k) unless otherwise agreed to five percent (5%) in writing by the Bank, the Borrower shall cease to own legally or beneficially 100% of such Borrower's Total Assets (exclusive of amounts covered by available insurance) shall be rendered against such Borrower and if, within thirty (30) days after entry thereof, such judgment shall not have been discharged or execution thereof stayed pending appeal, or if, within thirty (30) days after the expiration capital stock of any such stay, such judgment shall not have been dischargedof the Subsidiaries; or
(jl) Such Borrower any person or any member group of the Controlled Group shall fail to pay when due an amount or amounts aggregating in excess of $500,000 which it is obligated to pay to the PBGC or to a Plan under Title IV of ERISA; or a notice of intent to terminate a Plan or Plans having aggregate Unfunded Liabilities in excess of $500,000 shall be filed under Title IV of ERISA by such Borrower or any member of the Controlled Group, any plan administrator or any combination of the foregoing; or the PBGC shall institute proceedings under Title IV of ERISA to terminate or to cause a trustee to be appointed to administer any such Plan or Plans or a proceeding shall be instituted by a fiduciary of any such Plan or Plans against such Borrower or any member of the Controlled Group to enforce Sections 515 or 4219(c)(5) of ERISA; or a condition shall exist by reason of which the PBGC would be entitled to obtain a decree adjudicating that any such Plan or Plans must be terminated; or there shall occur a complete or partial withdrawal from, or a default, persons (within the meaning of Section 4219(c)(513 or 14 of the Securities Exchange Act of 1934, as amended) shall have acquired beneficial ownership (within the meaning of Rule 13d-3 promulgated by the Securities and Exchange Commission under said Act) of ERISA, with respect to, one forty percent (40%) or more Multiemployer Plans which could cause such Borrower or one or more members of the Controlled Group to incur a current payment obligation in excess outstanding shares of $500,000common stock of the Borrower; or
(k) Such , during any period of twelve consecutive calendar months, individuals who were directors of the Borrower on the first day of such period shall cease to be an investment management company (or constitute a Portfolio thereof) registered under majority of the Investment Company Actdirectors of the Borrower; THEN, or such Borrower's registration under the Investment Company Act, or that of any Borrower Agent of such Borrower, shall lapse or be suspended; then, and in any such event, and at any time thereafter, if any Event of Default shall then be continuing with respect to such defaulting Borrower, :
(i1) in In the case of any Event of Default specified in paragraphs (g) and under clause (h) aboveor (i), the Commitments as to such defaulting Borrower Commitment shall thereupon automatically be terminated terminate and the Bank shall be relieved of all further obligations to make Loans or to issue, renew or extend any Letters of Credit, and the entire unpaid principal amount of the Loans, all interest accrued and accrued interest on unpaid thereon, all Unpaid Reimbursement Obligations, and all other amounts payable thereunder and under the Loans other Loan Documents shall automatically become forthwith due and payable payable, without presentment, demand, protest or other notice or formality of any kind, all of which are hereby expressly waived, and (ii) in the case of any other Event of Default specified above, either or both of the following actions may be taken: the Operations Agent may, and upon the written or telephonic (confirmed in writing) request of the Majority Banks shall, by written notice to such defaulting Borrower (A) declare the principal of and accrued interest in respect of such defaulting Borrower's Loans to be forthwith due and payable, whereupon the principal of and accrued interest in respect of such Loans shall become forthwith due and payable without presentment, demand, protest or other notice of any kind, all of which are hereby expressly waived by such the Borrower, and/or and the Bank may require that cash be delivered to the Bank in the amount of the Maximum Drawing Amount to be held by the Bank as cash collateral for all Reimbursement Obligations; and
(B2) In the case of any Event of Default other than (h) and (i), the Bank may, by written notice to the Borrower, terminate the Commitments as to such defaulting Borrower, whereupon Commitment and/or declare the Commitments unpaid principal amount of the Banks Loans, all interest accrued and unpaid thereon, all Unpaid Reimbursement Obligations, and all other amounts payable hereunder and under the other Loan Documents to make Committed Credit Loans hereunder to such defaulting Borrower shall be forthwith terminate due and payable, without any other presentment, demand, protest or further notice of any kind kind, all of which are hereby expressly waived by the Borrower, and the percentages Bank may require that cash be delivered to the Bank in the amount of the Commitment Fee Maximum Drawing Amount to be held by the Bank as cash collateral for all Reimbursement Obligations. No remedy herein conferred upon the Bank is intended to be exclusive of any other remedy and other fees each and expenses otherwise payable by such defaulting Borrower hereunder accruing from and after the date of termination every remedy shall be reallocated among the remaining Borrowers PRO RATA on the basis of the percentages set forth opposite such remaining Borrowers' names on SCHEDULE 1cumulative and in addition to every other remedy hereunder, as now or hereafter existing at law or in effect at the time of such terminationequity or otherwise.
Appears in 1 contract
Events of Default; Acceleration. If any of the following events (each individually, an "EVENT OF DEFAULTEvent of Default" and, collectively, "Events of Default", or, if the giving of notice or the lapse of time or both is required, then, prior to such notice and/or lapse of time, individually, a "Default" and collectively, "Defaults") shall occur with respect to any Borroweroccur:
(a) Such Borrower (i) shall default in the payment of principal of if any Loan, interest accrued thereon or fee due hereunder after the same becomes due and payable, whether at maturity or by acceleration or otherwiseamount owing under this Note is not paid when due, or (ii) shall default in the payment of any other amount due hereunder after the same becomes due and payable; or
(b) Such Borrower shall default in the performance of or compliance with any other term or provision contained in Sections 9.01(a) this Note or 9.01(b) and such default shall have continued for more than three (3) Banking Days, or such Borrower shall default in any of the performance of or compliance with any term contained in Sections 8.02(d), 8.02(e), 8.02(g), 8.05, 9.02, 9.03 or 9.04; orOther Documents;
(cb) Such Borrower shall default in the performance of or compliance with any term contained herein other than those expressly referred to in this Section 10.01, and such default shall not have been remedied within five (5) Banking Days after written notice thereof shall have been given to such Borrower by the Operations Agent; or
(d) Such Borrower shall default in the performance of, or compliance with, if any material term contained representation or warranty of the Borrower in any other written agreement with of the Operations Agent or any Bank pertaining to this Agreement or such Borrower's Loans, and such default shall continue for more than the period of grace, if any, specified therein and shall not have been waived pursuant thereto; or
(e) Any representation, warranty certification or statement made or deemed made by such Borrower in this Agreement or in any certificate, financial statement or other document delivered pursuant hereto Other Documents shall prove to have been false or incorrect in any material respect upon the date when made; or;
(fc) Except as otherwise provided in this Section 10.01, such if the Borrower shall default in any payment due on Indebtedness for borrowed money or the deferred purchase price of property, the aggregate outstanding principal amount of which is in excess of five percent (5%) of such Borrower's Total Assets, and such default shall continue for more than the period of grace, if any, applicable thereto and shall not have been waived pursuant thereto and shall permit the holder of such Indebtedness to declare such Indebtedness due and payable before its stated maturity, or in the performance of or compliance with any term of any evidence of such Indebtedness or of any mortgage, indenture or other agreement relating thereto, and any such default shall continue for more than the period of grace, if any, specified therein and shall not have been waived pursuant thereto and shall permit the holder of such Indebtedness to declare such Indebtedness due and payable before its stated maturity, unless such Borrower shall be contesting such payment or obligation in good faith by appropriate proceedings promptly initiated and diligently conducted and such Borrower shall have set aside on its books such reserves, if any, with respect thereto as are required by GAAP and deemed appropriate by such Borrower and its independent public accountants, PROVIDED, that no Event of Default pursuant to paragraphs (b) or (i) of this Section 10.01 shall have occurred and be continuing as a result of such claim having been asserted in respect of such Indebtedness; or
(g) Such Borrower shall discontinue its business (other than in connection with a permitted merger or consolidation of such Borrower) or shall make makes an assignment for the benefit of creditors, or shall fail admits in writing its inability to pay or generally fails to pay its debts as such debts they mature or become due, or shall apply petitions or applies for or consent to the appointment of or taking possession by a trustee, receiver or liquidator (trustee or other similar official) custodian, liquidator or receiver of such the Borrower or of any substantial part of the property or assets of such the Borrower or shall commence a commences any case or have an other proceeding relating to the Borrower under any bankruptcy, reorganization, arrangement, insolvency, readjustment of debt, dissolution or liquidation or similar law of any jurisdiction, now or hereafter in effect, or takes any action to authorize or in furtherance of any of the foregoing; or if any such petition or application is filed or any such case or other proceeding is commenced against the Borrower;
(d) a decree or order is entered appointing any such trustee, custodian, liquidator or receiver or adjudicating the Borrower bankrupt or insolvent, or approving a petition in any such case or other proceeding, or a decree or order for relief is entered against it in respect of the Borrower in an involuntary case under the federal Federal bankruptcy laws, laws as now or hereafter constitutedconstituted and such decree or order shall remain in effect for more than sixty (60) days, whether or not consecutive;
(e) if there shall remain in force, undischarged, unsatisfied and unstayed, for more than thirty (30) days, whether or not consecutive, any final judgment not covered by insurance against the Borrower which, with other outstanding final judgments, undischarged, against the Borrower exceeds in the aggregate FIFTY THOUSAND AND 00/100 DOLLARS ($50,000.00);
(f) if there shall have occurred after the date hereof, any changes in the assets, liabilities, financial condition, business or operations of the Borrower which, individually or in the aggregate, are materially adverse;
(g) if there shall have occurred a default or an event of default under any of the Other Documents after expiration of any applicable federal or state bankruptcynotice and cure periods, insolvency or other similar law, or if any action shall be taken to dissolve or liquidate such Borrower (other than in connection with a permitted merger or consolidation of such Borrower); orany;
(h) Ifif any Other Document shall be canceled, within sixty (60) days after terminated, revoked or rescinded otherwise than in accordance with the commencement against such Borrower express prior written agreement, consent or approval of a case under the federal bankruptcy lawsBank; or any action at law, as now suit in equity or hereafter constitutedother legal proceeding to cancel, revoke or rescind any Other Document shall be commenced by or on behalf of any Person bound thereby, or by any governmental or regulatory authority or agency of competent jurisdiction; or any court or any other applicable federal governmental or state bankruptcyregulatory authority or agency of competent jurisdiction shall make a determination that, insolvency or other similar law, such case shall have been consented to or shall not have been dismissed issue a judgment, order, decree or all orders ruling to the effect that any Other Document or proceedings thereunder affecting any one or more of the operations material covenants, agreements or the business of such Borrower stayed, or if the stay obligations of any such order Person or proceeding shall thereafter be set asidePersons under any Other Document are illegal, invalid or if within sixty (60) days after unenforceable in accordance with the entry of a decree appointing a trustee, receiver or liquidator (or other similar official) of such Borrower or any substantial part of the property of such Borrower such appointment shall not have been vacatedterms thereof; or
(i) A final judgment whichif at any time during the term of this Note, together with other outstanding final judgments against such Borrower, exceeds an amount in the aggregate equal to five percent (5%) of such Borrower's Total Assets (exclusive of amounts covered by available insurance) Borrower shall be rendered against considered in default under any loan extended by General Electric Capital Corporation and General Electric Capital Corporation does not waive any such Borrower default; then, and if, within thirty (30) days after entry thereof, so long as any such judgment Event of Default shall not have been discharged remedied or execution thereof stayed pending appeal, or if, within thirty (30) days after waived in writing by the expiration of any such stay, such judgment shall not have been discharged; or
(j) Such Borrower or any member of the Controlled Group shall fail to pay when due an amount or Bank all amounts aggregating in excess of $500,000 which it is obligated to pay to the PBGC or to a Plan under Title IV of ERISA; or a notice of intent to terminate a Plan or Plans having aggregate Unfunded Liabilities in excess of $500,000 shall be filed under Title IV of ERISA by such Borrower or any member of the Controlled Group, any plan administrator or any combination of the foregoing; or the PBGC shall institute proceedings under Title IV of ERISA to terminate or to cause a trustee to be appointed to administer any such Plan or Plans or a proceeding shall be instituted by a fiduciary of any such Plan or Plans against such Borrower or any member of the Controlled Group to enforce Sections 515 or 4219(c)(5) of ERISA; or a condition shall exist by reason of which the PBGC would be entitled to obtain a decree adjudicating that any such Plan or Plans must be terminated; or there shall occur a complete or partial withdrawal from, or a default, within the meaning of Section 4219(c)(5) of ERISA, with respect to, one or more Multiemployer Plans which could cause such Borrower or one or more members of the Controlled Group to incur a current payment obligation in excess of $500,000; or
(k) Such Borrower shall cease to be an investment management company (or a Portfolio thereof) registered under the Investment Company Act, or such Borrower's registration under the Investment Company Act, or that of any Borrower Agent of such Borrower, shall lapse or be suspended; then, and in any such event, and at any time thereafter, if any Event of Default shall then be continuing owing with respect to such defaulting Borrowerthis Note shall, (i) in at the case of any Event of Default specified in paragraphs (g) and (h) above, the Commitments as to such defaulting Borrower shall thereupon automatically be terminated and the principal of and accrued interest on the Loans shall automatically become due and payable without presentment, demand, protest or other notice or formality of any kind, all of which are hereby expressly waived, and (ii) in the case of any other Event of Default specified above, either or both option of the following actions may be taken: the Operations Agent mayBank, and upon the written or telephonic (confirmed in writing) request of the Majority Banks shall, by written notice to such defaulting Borrower (A) declare the principal of and accrued interest in respect of such defaulting Borrower's Loans to be forthwith due matured and payable, whereupon the principal of and accrued interest in respect of such Loans shall become forthwith immediately due and payable without presentment, demand, protest or other notice of any kind, all of which are hereby expressly waived by the Borrower and by all guarantors, endorsers, and pledgors with respect hereto; provided, that in the case of any Event of Default specified in Section 7(c) or Section 7(d) above, all such Borrower, and/or (B) terminate amounts owing shall become immediately due and payable automatically and without any requirement of notice from the Commitments as to such defaulting Borrower, whereupon the Commitments Bank. In case any one or more of the Banks Events of Default shall have occurred and be continuing, and whether or not the Bank shall have accelerated the maturity of the Note pursuant to make Committed Credit Loans hereunder the foregoing, the Bank, if owed any amount with respect to the Note may proceed to protect and enforce its rights by suit in equity, action at law and/or performance of any covenant or agreement contained in this Note, including as permitted by applicable law the obtaining of the ex parte appointment of a receiver, and, if such defaulting Borrower amount shall forthwith terminate without have become due, by declaration or otherwise, proceed to enforce the payment thereof or any other notice legal or equitable right of the Bank. No remedy herein conferred upon the Bank or the holder of this Note is intended to be exclusive of any kind other remedy and the percentages of the Commitment Fee each and other fees and expenses otherwise payable by such defaulting Borrower hereunder accruing from and after the date of termination every remedy shall be reallocated among the remaining Borrowers PRO RATA on the basis cumulative and shall be in addition to every other remedy given hereunder or now or hereafter existing at law or in equity or by statute or any other provision of the percentages set forth opposite such remaining Borrowers' names on SCHEDULE 1, as in effect at the time of such terminationlaw.
Appears in 1 contract
Sources: Note (Edac Technologies Corp)
Events of Default; Acceleration. If any of the following events (each an "EVENT OF DEFAULT"“Event of Default”) shall occur with respect to any Borrowerhas occurred and is continuing:
(a) Such Borrower if the Company shall fail to (i) shall default pay any principal on the Loans or any Note owing hereunder or fail to reimburse the Issuing Bank for any LOC Obligations in the payment of principal of any Loan, interest accrued thereon or fee due hereunder after each case when the same becomes shall become due and payable, whether at the stated date of maturity or by acceleration any accelerated date of maturity or otherwise, at any other date fixed for payment in accordance with the terms hereof or thereof or (ii) the Company shall default in fail to pay any interest on the payment of Loans or any other amount due payable hereunder after or under the LOC Documents when the same becomes shall become due and payable; orpayable and such failure shall continue for three (3) Business Days(or any Guarantor shall fail to pay on the Guaranty in respect of any of the foregoing within the applicable period of time);
(b) Such Borrower if the Company shall default in the performance of or compliance fail to comply with any term of its covenants contained in Sections 9.01(a) or 9.01(b) and such default shall have continued for more than three (3) Banking Days7.1, 7.2, 7.5-7.12, or such Borrower shall default in the performance of or compliance with any term contained in Sections 8.02(d), 8.02(e), 8.02(g), 8.05, 9.02, 9.03 or 9.04; or7.24-7.32;
(c) Such Borrower if the Company or any Subsidiary shall default in the performance of fail to perform any term, covenant or compliance with any term agreement contained herein or in any other Loan Document (other than those expressly referred to specified in this Section 10.01, subsections (a) and (b) above) and the continuance of such default failure shall not have been remedied within five (5) Banking Days exist for 30 days after written notice thereof shall have of such failure has been given to such Borrower the Company by the Operations Agent; or;
(d) Such Borrower shall default in if any representation or warranty of the performance of, or compliance with, any material term contained in any other written agreement with the Operations Agent or any Bank pertaining to this Agreement or such Borrower's Loans, and such default shall continue for more than the period of grace, if any, specified therein and shall not have been waived pursuant thereto; or
(e) Any representation, warranty certification or statement made or deemed made by such Borrower Company in this Agreement or of the Company or any Guarantor in any certificate, financial statement or other document delivered pursuant hereto Loan Document shall prove to have been false or incorrect in any material respect upon the date when made; ormade or deemed to have been made or repeated;
(e) if the Company or any of its Significant Subsidiaries shall (i) fail to make any payment due on any Indebtedness (having a total amount outstanding in excess of $1,000,000), or (ii) fail to observe or perform any material term, covenant or agreement contained in any agreement by which it is bound, evidencing or securing any Indebtedness (having a total amount outstanding in excess of $1,000,000) and the effect of such failure could or would have permitted (assuming the giving of appropriate notice if required) the holder or holders thereof or a trustee for such holder or holders or of any obligations issued thereunder to accelerate the maturity thereof;
(f) Except if the Company or any of its Significant Subsidiaries shall be involved in financial difficulties as otherwise provided evidenced (i) by its admission in this Section 10.01writing of its inability to pay its debts generally as they become due; (ii) by its commencement of a voluntary case under Title 11 of the United States Code as from time to time in effect, or by its authorizing, by appropriate proceedings of its board of directors or other governing body, the commencement of such Borrower shall default a voluntary case; (iii) by its filing an answer or other pleading admitting or failing to deny the material allegations of a petition filed against it commencing an involuntary case under Title 11, or seeking, consenting to or acquiescing in the relief therein provided, or by its failing to controvert or challenge in a timely manner the material allegation of any such petition; (iv) by the entry of an order for relief against it in any payment due on Indebtedness for borrowed money involuntary case commenced under Title 11 which remains undischarged or the deferred purchase price of property, the aggregate outstanding principal amount of which is in excess of five percent (5%) of such Borrower's Total Assets, and such default shall continue unstayed for more than sixty (60) days; (v) by its seeking relief as a debtor under any applicable law, other than Title 11, of any jurisdiction relating to the period liquidation or reorganization of grace, if any, applicable thereto and shall not have been waived pursuant thereto and shall permit debtors or to the holder modification or alteration of such Indebtedness to declare such Indebtedness due and payable before its stated maturitythe rights of creditors, or by its consenting to or acquiescing in such relief; (vi) by entry of an order by a court of competent jurisdiction (A) finding it to be bankrupt or insolvent or (B) ordering or approving its liquidation, reorganization or any modification or alteration of the performance rights of its creditors which remains undischarged or compliance with any term of any evidence of such Indebtedness or of any mortgage, indenture or other agreement relating thereto, and any such default shall continue unstayed for more than sixty (60) days; (vii) by the period entry of gracean order by a court of competent jurisdiction assuming custody of, if anyor appointing a receiver or other custodian for, specified therein and shall not have been waived pursuant thereto and shall permit the holder all or a substantial part of such Indebtedness to declare such Indebtedness due and payable before its stated maturity, unless such Borrower shall be contesting such payment property which remains undischarged or obligation in good faith by appropriate proceedings promptly initiated and diligently conducted and such Borrower shall have set aside on its books such reserves, if any, with respect thereto as are required by GAAP and deemed appropriate by such Borrower and its independent public accountants, PROVIDED, that no Event of Default pursuant to paragraphs unstayed for more than sixty (b60) days; or (iviii) of this Section 10.01 shall have occurred and be continuing as a result of such claim having been asserted in respect of such Indebtedness; or
(g) Such Borrower shall discontinue by its business (other than in connection with a permitted merger or consolidation of such Borrower) or shall make making an assignment for the benefit of of, or entering into a composition with, its creditors, or shall fail generally to pay its debts as such debts become due, appointing or shall apply for or consent consenting to the appointment of or taking possession by a trustee, receiver or liquidator (other custodian for all or other similar official) of such Borrower or any a substantial part of its property (the property occurrence of any of the foregoing shall constitute a “Bankruptcy Event”);
(g) if there shall remain in force, undischarged, unsatisfied and unstayed, for more than sixty days, whether or assets not consecutive, any final judgment against the Company or any of its Significant Subsidiaries which, with other outstanding final judgments which are also undischarged, unsatisfied and unstayed for more than sixty days, against such Person(s) exceeds $1,000,000 in aggregate amount with respect to the Company or any of its Significant Subsidiaries;
(h) if UHS of Delaware, Inc., a subsidiary of UHS, shall cease to be the real estate investment trust advisor to the Company and a new advisor satisfactory to each of the Banks has not been appointed, or a group of managers satisfactory to each of the Banks has not been hired, within ninety (90) days of such Borrower cessation;
(i) (i) if any Person or shall commence a case group of Persons (within the meaning of Section 13 or have an order for relief entered against it under 14 of the federal bankruptcy lawsSecurities Exchange Act of 1934, as now amended) shall have acquired beneficial ownership (within the meaning of Rule 13d-3 promulgated by the Securities and Exchange Commission under said Act) of thirty percent (30%) or hereafter constitutedmore of the outstanding shares of common stock of the Company; or, (ii) during any period of twelve consecutive calendar months, individuals who were directors of the Company on the first day of such period shall cease to constitute a majority of the board of directors of the Company;
(j) if any guarantee by UHS of any lease by the Company to a UHS Subsidiary is disavowed, terminated, or any other applicable federal or state bankruptcy, insolvency or other similar lawceases to be in full force and effect, or if any action shall be taken to dissolve is waived or liquidate such Borrower amended without the prior written consent of the Majority Banks (other than the termination of a guarantee of such a lease in connection with the sale of a Health Care Facility permitted by Section 7.29);
(k) any lease by the Company to a UHS Subsidiary is terminated prior to its stated term, or is amended or compliance by the lessee is waived, without the prior written consent of the Majority Banks (other than the termination of a lease of a Health Care Facility in connection with a permitted merger or consolidation sale of such BorrowerHealth Care Facility permitted by Section 7.29); or
(hl) If, within sixty (60) days after if the commencement against such Borrower of a case under the federal bankruptcy laws, as now or hereafter constituted, Company or any other applicable federal or state bankruptcy, insolvency or other similar law, such case of its Significant Subsidiaries shall have been consented fail to or shall not have been dismissed or all orders or proceedings thereunder affecting the operations or the business of such Borrower stayed, make any payment due under any Hedging Agreement or if the stay Company or any of its Significant Subsidiaries shall fail to observe or perform any such order material term, covenant or proceeding shall thereafter be set aside, or if within sixty (60) days after agreement contained in any Hedging Agreement and the entry of a decree appointing a trustee, receiver or liquidator (or other similar official) effect of such Borrower failure could or any substantial part would have permitted (assuming the giving of appropriate notice if required) the property counterparty thereof to terminate such Hedging Agreement and demand payment from the Company or such Significant Subsidiary in excess of such Borrower such appointment shall not have been vacated$1,000,000; or
(im) A final judgment which, together with other outstanding final judgments against such Borrower, exceeds an amount in if the aggregate equal to five percent (5%) of such Borrower's Total Assets (exclusive of amounts covered by available insurance) shall be rendered against such Borrower and if, within thirty (30) days after entry thereof, such judgment shall not have been discharged or execution thereof stayed pending appeal, or if, within thirty (30) days after the expiration of any such stay, such judgment shall not have been discharged; or
(j) Such Borrower Subsidiary Guaranty or any member of the Controlled Group shall fail to pay when due an amount or amounts aggregating in excess of $500,000 which it is obligated to pay to the PBGC or to a Plan under Title IV of ERISA; or a notice of intent to terminate a Plan or Plans having aggregate Unfunded Liabilities in excess of $500,000 shall be filed under Title IV of ERISA by such Borrower or any member of the Controlled Group, any plan administrator or any combination of the foregoing; or the PBGC shall institute proceedings under Title IV of ERISA to terminate or to cause a trustee to be appointed to administer any such Plan or Plans or a proceeding shall be instituted by a fiduciary of any such Plan or Plans against such Borrower or any member of the Controlled Group to enforce Sections 515 or 4219(c)(5) of ERISA; or a condition shall exist by reason of which the PBGC would be entitled to obtain a decree adjudicating that any such Plan or Plans must be terminated; or there shall occur a complete or partial withdrawal from, or a default, within the meaning of Section 4219(c)(5) of ERISA, with respect to, one or more Multiemployer Plans which could cause such Borrower or one or more members of the Controlled Group to incur a current payment obligation in excess of $500,000; or
(k) Such Borrower material provision thereof shall cease to be an investment management company (in full force and effect or a Portfolio thereof) registered any Guarantor or any Person acting by or on behalf of any Guarantor shall deny or disaffirm any Guarantor’s obligations under the Investment Company Act, or such Borrower's registration under the Investment Company Act, or that of any Borrower Agent of such Borrower, shall lapse or be suspendedSubsidiary Guaranty; then, and in any such event, and at any time thereafterunless the same shall be cured or waived, if any Event of Default shall then be continuing with respect to such defaulting Borrower, the Agent (i) in the case of any Event of Default specified in paragraphs (g) and (h) aboveshall, the Commitments as to such defaulting Borrower shall thereupon automatically be terminated and the principal of and accrued interest on the Loans shall automatically become due and payable without presentment, demand, protest or other notice or formality of any kind, all of which are hereby expressly waived, and (ii) in the case of any other Event of Default specified above, either or both of the following actions may be taken: the Operations Agent may, and upon the written or telephonic (confirmed in writing) request of the Majority Banks shallBanks, or (ii) may, with the consent of the Majority Banks, by written notice in writing to the Company, terminate this Agreement and upon such defaulting Borrower (A) declare termination the principal of and accrued interest in respect of such defaulting Borrower's Banks shall have no further obligation to make Loans to be the Company or issue Letters of Credit for the account of the Company, and shall declare all Obligations, including, without limitation the Notes, to be, and they shall thereupon forthwith due mature and payablebecome, whereupon the principal of and accrued interest in respect of such Loans shall become forthwith immediately due and payable without presentment, demand, protest or other notice of any kind, all of which are hereby expressly waived by such Borrowerthe Company and require that the Company cash collateralize the outstanding LOC Obligations; provided, and/or that in the event of any Event of Default described in clauses (Bf) terminate the Commitments as to such defaulting Borrowerand (g) hereof, whereupon the Commitments all Obligations shall become immediately due and payable automatically, and all obligations of the Banks to make Committed Loans or issue Letters of Credit Loans hereunder shall automatically terminate and the Company shall be required to such defaulting Borrower shall forthwith terminate cash collateralize the outstanding LOC Obligations, without any other requirement of notice from the Banks. To the extent that the Obligations accelerated hereunder relate to Letters of Credit, the amount becoming due and payable shall be the aggregate outstanding amount of the Letters of Credit, whether or not any drawings or claims have been presented thereunder, and such amounts will be applied pursuant to Section 3.2(b). No termination of the credit hereunder shall relieve the Company of any kind and the percentages Obligations or any of its existing obligations to any of the Commitment Fee Banks arising under other agreements or instruments. No remedy herein conferred upon the Banks is intended to be exclusive of any other remedy and other fees each and expenses otherwise payable by such defaulting Borrower hereunder accruing from and after the date of termination every remedy shall be reallocated among the remaining Borrowers PRO RATA on the basis cumulative and shall be in addition to every other remedy given hereunder or now or hereafter existing at law or in equity or by statute or any other provision of the percentages set forth opposite such remaining Borrowers' names on SCHEDULE 1, as in effect at the time of such terminationlaw.
Appears in 1 contract
Sources: Credit Agreement (Universal Health Realty Income Trust)
Events of Default; Acceleration. If any of the following events (each an "EVENT OF DEFAULTEvents of Default" or, if notice or lapse of time or notice and lapse of time is required, then, prior to such notice and/or lapse of time, "Defaults") shall occur with respect to any Borrower:
occur: (a) Such Borrower (i) if the Trust shall default in the payment of principal on any of any Loan, interest accrued thereon or fee due hereunder after the Advances when the same becomes shall become due and payable, whether at maturity or at any date fixed for payment or prepayment or by acceleration or otherwise, or declaration; (iib) if the Trust shall default in the payment of any interest on the Advances, or the Facility Fee, Agent's Fee or any other amount due fee or expense payable hereunder after or under the other Loan Documents when the same becomes shall become due and payable; or
(bc) Such Borrower if the Trust shall default in the performance of or compliance with any term contained in Sections 9.01(a) the Security Agreement or 9.01(b) and such default shall have continued for more than three (3) Banking Daysin any of 11.3(d), 12.1, 12.2, 12.3, 12.4, 12.5, 12.6, 12.7, 12.8, or such Borrower 12.9 hereof; (d) if the Trust shall default in the performance of or compliance with any term contained in Sections 8.02(dthis Agreement other than those referred to above in this 13, and such default shall not have been remedied within 30 days after written notice thereof shall have been given to the Trust by the Agent; (e) if any representation or warranty made or deemed made by the Trust herein or in connection with any of the transactions contemplated hereby shall prove to have been false or incorrect in any material respect on the date as of which made; (f) if the Trust shall default (as principal or guarantor or other surety) in the payment of any principal of, or premium, if any, or interest on any indebtedness (other than the Obligations to the Banks hereunder), 8.02(eor with respect to any of the terms of any evidence of such indebtedness or of any agreement relating thereto, and such default shall entitle the holder of such indebtedness to accelerate the maturity thereof and the unpaid balance of any such defaulted indebtedness is equal to or exceeds $100,000, unless, in the case of any default, such default has been affirmatively waived by or on behalf of the holder of such indebtedness; (g) if the Trust makes an assignment for the benefit of creditors, or petitions or applies for the appointment of a liquidator or receiver or custodian (or similar official) of the Trust, or of any substantial part of the assets of the Trust or commences any proceeding or case relating to the Trust under any bankruptcy, reorganization, arrangements, insolvency, readjustment of debt, dissolution or liquidation or similar law of any jurisdiction, now or hereafter in effect; (h) if any such petition or application is filed or any such proceeding or case is commenced against the Trust and the Trust indicates its approval thereof, consent thereto or acquiescence therein or an order is entered appointing any such liquidator or receiver or custodian (or similar official), 8.02(g)or adjudicating the Trust bankrupt or insolvent, 8.05or approving a petition in any such proceeding or a decree or order for relief is entered in respect of the Trust in an involuntary case under any bankruptcy, 9.02reorganization, 9.03 arrangement, insolvency, readjustment of debt, dissolution or 9.04liquidation or similar laws of any jurisdiction as now or hereafter constituted; or
(ci) Such Borrower if any order is entered in any proceeding by or against the Trust decreeing or permitting the dissolution or split-up of the Trust or the winding up of its affairs; (j) if there shall remain in force, undischarged, unsatisfied and unstayed, for more than 30 days, whether or not consecutive, any final judgment or judgments which exceed, either individually or in the aggregate, more than $1,000 against the Trust; (k) if any governmental authority or any person purporting to act under governmental authority shall have taken any action to condemn, seize or appropriate or to assume custody or control of, all or any substantial part of the property of the Trust; (l) if the Trust shall default in the performance of or compliance with any term contained herein other than those expressly referred in the Security Documents or if an Event of Default under and as defined in the Company Credit Agreement shall occur and be continuing; (m) if the Trust shall fail to obtain, renew, maintain or comply with all such government approvals as shall now or hereafter be necessary or, in this Section 10.01the opinion of special counsel to the Banks, desirable (i) for the execution, delivery or performance by the Trust of its, or the exercise by the Banks of their, rights under the Loan Documents or (ii) for the grant by the Trust of the assignments and security interests granted by the Security Documents or for the validity and enforceability or for the perfection of or the exercise by the Agent of its rights and remedies thereunder; or any such government approval shall be revoked, terminated, withdrawn, suspended, modified or withheld or shall cease to be in full force and effect, and such default revocation, termination, withdrawal, suspension, modification, withholding or cessation may adversely affect the Banks or the security provided to the Banks under the Loan Documents, or any proceeding shall be commenced by or before any governmental authority for the purpose of so revoking, terminating, withdrawing, suspending, modifying or withholding any such government approval and such proceeding is not dismissed within 30 days; (n) if, without the consent of the Majority Banks, the Fuel Purchase Contract or any Loan Document shall be amended, supplemented, terminated or otherwise modified or become of no force or effect or the obligations of any party thereto shall be modified, suspended, discharged or terminated (in any such case, whether by the voluntary action of any party to such Loan Document, by operation of law, or otherwise and other than by the expiration thereof in accordance with its terms), or the Trust shall give any consent, waiver or approval thereunder (other than any consent, waiver or approval which cannot adversely affect the Banks or the security provided to the Banks under the Loan Documents); (o) if the Agent and the Banks shall fail to have been remedied within five a valid and perfected first priority security interest, subject to no liens prior or equal to the liens of the Security Documents except, in the case of fuel stored in storage fields under the control of Persons other than the Trust, the lien for storage charges and interest thereon, to the extent permitted by applicable law, over all the collateral and security purported to be granted to the Agent and the Banks pursuant to the Security Documents; (5p) Banking Days after written notice thereof if all or any material part of the property comprising the Collateral shall have been given to condemned, seized or otherwise appropriated, or custody or control of such Borrower property shall have been assumed, by any court, government or governmental agency of competent jurisdiction, and such property shall have been retained for a period of 30 days; (q) if by reason of the transactions contemplated by the Operations Agent; or
(d) Such Borrower shall default in Loan Documents, the performance ofTrust, or compliance withthe Trustee, any material term contained in any other written agreement with the Operations Agent or any Bank pertaining becomes, or is declared by the SEC to this Agreement be, or with the passage of a specific period of time would become, a "public utility company" as defined in the Public Utility Holding Company Act of 1935, as amended, or any successor provisions thereto, or the Trust, the Trustee, the Agent or any Bank or the beneficiaries of the Trust, or any partner, officer or employee of any of them, shall become, or with the passage of a specific period of time would become, subject to regulation under said Act; (r) if by reason of the transactions contemplated by the Loan Documents, the Trust, the Trustee, the Agent or any Bank becomes, or is declared by the DPU or similar agency of any other state to be, or with the passage of a specific period of time would become, a "gas company" as defined in Chapter 164 of the Massachusetts General Laws, or the equivalent as defined under the law of any other state, or the Trust, the Trustee, the Agent or any Bank, shall become, or with the passage of a specific period of time would become, subject to regulation as public utilities and/or public service corporations under the laws of any state, unless in any such Borrower's Loanscase within 10 days thereof the Company shall have obtained a stay, and such default stay shall continue for more than remain in full force and effect, or taken other action which eliminates the adverse consequences of the event or declaration giving rise to any of the foregoing; (s) if by reason of the transactions contemplated by the Loan Documents, the Trust, the Trustee, the Agent or any Bank becomes, or is declared by the Department of Energy or FERC to be, or with the passage of a specific period of gracetime would become, if anya "public utility" as defined in the Federal Power Act, as amended, or a "natural gas company" as defined in the Natural Gas Act, as amended, or the Trust, the beneficiaries of the Trust, the Trustee, the Agent or any Bank, or any partner, officer or employee of any of them shall be, or with the passage of a specified therein and shall not have been waived pursuant thereto; or
(e) Any representationperiod of time would become, warranty certification subject to regulation under either or statement made or deemed made by such Borrower in this Agreement or both of said Acts, unless in any certificate, financial statement or other document delivered pursuant hereto such case within 10 days thereof the Company shall prove to have been false or incorrect in any material respect when made; or
(f) Except as otherwise provided in this Section 10.01, such Borrower shall default in any payment due on Indebtedness for borrowed money or the deferred purchase price of property, the aggregate outstanding principal amount of which is in excess of five percent (5%) of such Borrower's Total Assetsobtained a stay, and such default stay shall continue for more than the period of grace, if any, applicable thereto remain in full force and shall not have been waived pursuant thereto and shall permit the holder of such Indebtedness to declare such Indebtedness due and payable before its stated maturityeffect, or in taken other action which eliminates the performance adverse consequences of the event or compliance with declaration giving rise to any term of the foregoing; or (t) if any judicial decision, law or regulation or interpretation of any evidence of such Indebtedness judicial decision, law or regulation shall be adopted or enforced by any court or governmental or regulatory authority (including, without limitation, the DPU or similar agency of any mortgageother state, indenture or other agreement relating theretothe SEC, the Department of Energy and any such default shall continue for more than the period of grace, if any, specified therein and shall not have been waived pursuant thereto and shall permit the holder of such Indebtedness to declare such Indebtedness due and payable before its stated maturity, unless such Borrower shall be contesting such payment or obligation in good faith by appropriate proceedings promptly initiated and diligently conducted and such Borrower shall have set aside on its books such reserves, if any, with respect thereto as are required by GAAP and deemed appropriate by such Borrower and its independent public accountants, PROVIDED, that no Event of Default pursuant to paragraphs (b) or (i) of this Section 10.01 shall have occurred and be continuing FERC),and as a result of such claim having been asserted in respect of such Indebtedness; or
(g) Such Borrower adoption or enforcement any Loan Document or any transaction contemplated thereby shall discontinue its business (other than in connection with a permitted merger be or consolidation of such Borrower) or shall make an assignment for the benefit of creditorsbecome, or shall fail generally to pay its debts as such debts become duewith the passage of a specific period of time would become, unlawful or shall apply for or consent to the appointment performance of or taking possession by a trustee, receiver or liquidator (or other similar official) of such Borrower any Loan Document or any substantial part of the property or assets of such Borrower or shall commence a case or have an order for relief entered against it under the federal bankruptcy laws, as now or hereafter constituted, or any other applicable federal or state bankruptcy, insolvency or other similar law, or if any action shall be taken to dissolve or liquidate such Borrower (other than in connection with a permitted merger or consolidation of such Borrower); or
(h) If, within sixty (60) days after the commencement against such Borrower of a case under the federal bankruptcy laws, as now or hereafter constituted, or any other applicable federal or state bankruptcy, insolvency or other similar law, such case shall have been consented to or shall not have been dismissed or all orders or proceedings thereunder affecting the operations or the business of such Borrower stayed, or if the stay of any such order or proceeding shall thereafter be set aside, or if within sixty (60) days after the entry of a decree appointing a trustee, receiver or liquidator (or other similar official) of such Borrower or any substantial part of the property of such Borrower such appointment shall not have been vacated; or
(i) A final judgment which, together with other outstanding final judgments against such Borrower, exceeds an amount in the aggregate equal to five percent (5%) of such Borrower's Total Assets (exclusive of amounts covered by available insurance) material term thereof shall be rendered against impracticable, unlawful or unenforceable unless within 10 days thereof the Company shall have obtained a stay of such Borrower action, and if, within thirty (30) days after entry thereof, such judgment stay shall not have been discharged or execution thereof stayed pending appealremain in full force and effect, or if, within thirty (30) days after taken other such action which eliminates the expiration of any such stay, such judgment shall not have been discharged; or
(j) Such Borrower or any member of the Controlled Group shall fail to pay when due an amount or amounts aggregating in excess of $500,000 which it is obligated to pay to the PBGC or to a Plan under Title IV of ERISA; or a notice of intent to terminate a Plan or Plans having aggregate Unfunded Liabilities in excess of $500,000 shall be filed under Title IV of ERISA by such Borrower or any member of the Controlled Group, any plan administrator or any combination of the foregoing; or the PBGC shall institute proceedings under Title IV of ERISA to terminate or to cause a trustee to be appointed to administer any such Plan or Plans or a proceeding shall be instituted by a fiduciary of any such Plan or Plans against such Borrower or any member of the Controlled Group to enforce Sections 515 or 4219(c)(5) of ERISA; or a condition shall exist by reason of which the PBGC would be entitled to obtain a decree adjudicating that any such Plan or Plans must be terminated; or there shall occur a complete or partial withdrawal from, or a default, within the meaning of Section 4219(c)(5) of ERISA, with respect to, one or more Multiemployer Plans which could cause such Borrower or one or more members of the Controlled Group to incur a current payment obligation in excess of $500,000; or
(k) Such Borrower shall cease to be an investment management company (or a Portfolio thereof) registered under the Investment Company Act, or such Borrower's registration under the Investment Company Act, or that of any Borrower Agent adverse consequences of such Borrower, shall lapse or be suspendedaction; then, then and in any such event, event (unless all Defaults and at any time thereafter, if any Event Events of Default shall then be continuing with respect to such defaulting Borrowertheretofore have been remedied) the Agent may and, (i) in the case of any Event of Default specified in paragraphs (g) and (h) above, the Commitments as to such defaulting Borrower shall thereupon automatically be terminated and the principal of and accrued interest on the Loans shall automatically become due and payable without presentment, demand, protest or other notice or formality of any kind, all of which are hereby expressly waived, and (ii) in the case of any other Event of Default specified above, either or both of the following actions may be taken: the Operations Agent may, and upon the written written, telecopied or telephonic (confirmed in writing) request of the Majority Banks shall, shall by written notice to such defaulting Borrower the Trust declare: (Ai) declare the principal obligation of each Bank to make Advances to the Trust to be terminated, whereupon the same shall terminate, and/or (ii) the Advances to the Trust, all interest thereon and accrued interest in respect of such defaulting Borrower's Loans all other amounts payable under this Agreement to be forthwith due and payable, whereupon the principal of such Advances, all such interest and accrued interest in respect of all such Loans amounts shall become and be forthwith due and payable without presentment, demand, protest or other notice of any kindnotice, all of which are hereby expressly waived by such Borrowerthe Trust. Notwithstanding the foregoing, and/or upon any Event of Default contemplated by subsections (Bg), (h) terminate the Commitments as to such defaulting Borroweror (i) above, whereupon the Commitments of the Banks to make Committed Credit Loans hereunder to such defaulting Borrower all amounts specified in clause (ii) above shall forthwith terminate become immediately due and payable automatically without any other requirement of notice of from the Agent or any kind and the percentages of the Commitment Fee and other fees and expenses otherwise payable by such defaulting Borrower hereunder accruing from and after the date of termination shall be reallocated among the remaining Borrowers PRO RATA on the basis of the percentages set forth opposite such remaining Borrowers' names on SCHEDULE 1, as in effect at the time of such terminationBank.
Appears in 1 contract
Events of Default; Acceleration. If any of the following events (each an "EVENT OF DEFAULT"“Event of Default” and collectively “Events of Default”) shall occur with respect to any Borrowerand be continuing:
(a) Such the Borrower shall fail to pay on the date when due (i) shall default in the payment any installment of principal of any Loan, interest accrued thereon or fee due hereunder after on the same becomes due and payable, whether at maturity or by acceleration or otherwise, Loan or (ii) shall default in any interest due on the payment of Loan or any other amount due hereunder after the same becomes due payable pursuant to Section 2.3, 2.4(d) or 7.6(a) and payablesuch failure shall continue for three (3) Business Days; or
(b) Such the Borrower shall default defaults in the due and punctual performance and observance of or compliance with any term contained in Sections 9.01(aprovision of Section 5.2(b), (e), (f), (h), (l), (n) or 9.01(b(o) and such default shall have continued for more than three (3r) Banking Days, or such Borrower shall default in the performance of or compliance with any term contained in Sections 8.02(d), 8.02(e), 8.02(g), 8.05, 9.02, 9.03 or 9.04and Section 5.3; or
(c) Such the Borrower shall default or the Guarantor fails to perform or observe, or cause to be performed or observed, any term, covenant or agreement contained in the performance of Loan Documents or compliance with any term contained herein other than those expressly referred to certificate delivered pursuant thereto which is not specifically referenced in this Section 10.01, 6.1 and such default failure shall not have been remedied within five continue for a period of thirty (530) Banking Days days after the giving of written notice thereof shall have been given to such Borrower by the Operations AgentLender to the Borrower; or
(d) Such any representation or warranty made by the Borrower shall default in or the performance of, Guarantor hereunder or compliance with, any material term contained by the Borrower in any of the other written agreement with the Operations Agent or any Bank pertaining to this Agreement or such Borrower's Loans, and such default shall continue for more than the period of grace, if any, specified therein and shall not have been waived pursuant thereto; or
(e) Any representation, warranty certification or statement made or deemed made by such Borrower in this Agreement or in any certificate, financial statement or other document delivered pursuant hereto Loan Documents shall prove to have been false incorrect or incorrect misleading in any material respect on the date when made; or
(fi) Except as otherwise provided in this Section 10.01, such the Borrower shall default in any payment due on Indebtedness for borrowed money or the deferred purchase price of property, the Guarantor shall fail to pay any Debt in an aggregate outstanding principal amount of which is in excess of five percent $1,000,000 at its final scheduled maturity date; or
(5%ii) any breach, default or event of default shall occur under any instrument, agreement or indenture pertaining to any Debt referred to in clause (i) above, if the effect thereof, after giving effect to any applicable grace or cure period, is to accelerate the maturity of such Borrower's Total Assets, and Debt or cause such default shall continue for more than the period of grace, if any, applicable thereto and shall not have been waived pursuant thereto and shall permit the holder of such Indebtedness Debt to declare such Indebtedness be declared due and payable before or required to be prepaid (other than by a regularly scheduled required prepayment), repurchased or redeemed prior to the originally stated maturity thereof; or
(f) one or more final judgments for the payment of money in the aggregate in excess of $10,000,000 (to the extent not covered by insurance) entered by a court of competent jurisdiction against the Borrower or the Guarantor shall remain undischarged, unpaid, unvacated, unbonded or unstayed for a period of thirty (30) days from the date of its stated maturityentry, or in the performance there shall be any period of or compliance with any term thirty (30) consecutive days during which a stay of any evidence enforcement of such Indebtedness judgment, by reason of a pending appeal or of any mortgageotherwise, indenture or other agreement relating thereto, and any such default shall continue for more than the period of grace, if any, specified therein and shall not have been waived pursuant thereto and shall permit the holder of such Indebtedness to declare such Indebtedness due and payable before its stated maturity, unless such Borrower shall be contesting such payment or obligation in good faith by appropriate proceedings promptly initiated and diligently conducted and such Borrower shall have set aside on its books such reserves, if any, with respect thereto as are required by GAAP and deemed appropriate by such Borrower and its independent public accountants, PROVIDED, that no Event of Default pursuant to paragraphs (b) or (i) of this Section 10.01 shall have occurred and be continuing as a result of such claim having been asserted in respect of such Indebtednesseffect; or
(g) Such the Borrower or the Guarantor shall discontinue its business (other than in connection with a permitted merger or consolidation of such Borroweri) or shall make an assignment for the benefit of creditors, or shall fail generally to pay its debts as such debts become due, or shall apply for or consent to the appointment of or the taking possession by a receiver, trustee, receiver liquidator, assignee, custodian, sequestrator or liquidator the like of itself or substantially all of its property, (ii) admit in writing its inability to pay its debts generally, (iii) make a general assignment for the benefit of creditors, (iv) commence a voluntary case under the bankruptcy laws of any jurisdiction, (v) file a petition or answer seeking reorganization or an arrangement with creditors or to take advantage of any insolvency law or an answer admitting the material allegations of a petition filed against it in any bankruptcy, reorganization or insolvency proceeding or (vi) take corporate action or other similar official) action for the purpose of such Borrower or effecting any substantial part of the property or assets of such Borrower or shall commence a case or have an order for relief entered against it under the federal bankruptcy laws, as now or hereafter constituted, or any other applicable federal or state bankruptcy, insolvency or other similar law, or if any action shall be taken to dissolve or liquidate such Borrower (other than in connection with a permitted merger or consolidation of such Borrower)foregoing; or
(h) Ifan order, within judgment, or decree shall be entered in any involuntary case with or without the application, approval or consent of the Borrower or the Guarantor, by a court or governmental agency of competent jurisdiction, granting relief under or approving a petition seeking reorganization, or appointing a receiver, trustee, liquidator assignee, custodian, sequestrator or the like of the Borrower or the Guarantor, or of its property and such order, judgment or decree shall continue unstayed and in effect for a period of sixty (60) days after the commencement against such Borrower of a case under the federal bankruptcy laws, as now or hereafter constituted, or any other applicable federal or state bankruptcy, insolvency or other similar law, such case shall have been consented to or shall not have been dismissed or all orders or proceedings thereunder affecting the operations or the business of such Borrower stayed, or if the stay of any such order or proceeding shall thereafter be set aside, or if within sixty (60) days after the entry of a decree appointing a trustee, receiver or liquidator (or other similar official) of such Borrower or any substantial part of the property of such Borrower such appointment shall not have been vacatedconsecutive days; or
(i) A final judgment whichfor any reason, together the Lender fails to hold a perfected first preferred mortgage on the Vessels (other than in accordance with the terms hereof or thereof); or
(j) an event of default shall occur and be continuing under any of the other outstanding final judgments against Loan Documents and all grace or cure periods, if any, with respect thereto shall have expired; or
(k) the Borrower ceases operations or is dissolved;
(l) any notice shall have been issued by the United States Coast Guard to the effect that any Vessel subject to the Fleet Mortgage is subject to deletion from registry or the Certificate of Documentation for any such BorrowerVessel or the endorsement noted thereon is subject to revocation or cancellation, exceeds an amount in the aggregate equal to five percent (5%) of for any reason whatsoever and such Borrower's Total Assets (exclusive of amounts covered notice is not appealed or challenged by available insurance) shall be rendered against such Borrower and if, appropriate legal action within thirty (30) days after entry thereof, of the Borrower’s receipt thereof or such judgment shall not have been discharged or execution thereof stayed pending appealother period of times as may be permitted by law, or if, within thirty (30) days after any Vessel subject to the expiration Fleet Mortgage is deleted from registry or the Certificate of Documentation for any such stay, such judgment shall not have been discharged; or
(j) Such Borrower or any member of the Controlled Group shall fail to pay when due an amount or amounts aggregating in excess of $500,000 which it is obligated to pay to the PBGC or to a Plan under Title IV of ERISA; or a notice of intent to terminate a Plan or Plans having aggregate Unfunded Liabilities in excess of $500,000 shall be filed under Title IV of ERISA by such Borrower or any member of the Controlled Group, any plan administrator or any combination of the foregoing; Vessel or the PBGC shall institute proceedings under Title IV of ERISA to terminate endorsement noted thereon is revoked or to cause a trustee to be appointed to administer any such Plan or Plans or a proceeding shall be instituted by a fiduciary of any such Plan or Plans against such Borrower or any member of the Controlled Group to enforce Sections 515 or 4219(c)(5) of ERISA; or a condition shall exist by reason of which the PBGC would be entitled to obtain a decree adjudicating that any such Plan or Plans must be terminated; or there shall occur a complete or partial withdrawal from, or a default, within the meaning of Section 4219(c)(5) of ERISA, with respect to, one or more Multiemployer Plans which could cause such Borrower or one or more members of the Controlled Group to incur a current payment obligation in excess of $500,000; or
(k) Such Borrower shall cease to be an investment management company (or a Portfolio thereof) registered under the Investment Company Act, or such Borrower's registration under the Investment Company Act, or that of any Borrower Agent of such Borrower, shall lapse or be suspendedcancelled; then, and in any such event, and at any time thereafter, if any Event of Default shall then event (A) the Lender may declare the Loan to be continuing with respect to such defaulting Borrowerin Default, (iB) in the case of any Event of Default specified in paragraphs (g) and (h) above, the Commitments as to such defaulting Borrower shall thereupon automatically be terminated and the principal of and accrued interest on the Loans shall automatically become due and payable without presentment, demand, protest or other notice or formality of any kind, all of which are hereby expressly waived, and (ii) in the case of any other Event of Default specified above, either or both of the following actions may be taken: the Operations Agent may, and upon the written or telephonic (confirmed in writing) request of the Majority Banks shall, by written notice to such defaulting Borrower (A) the Borrower, the Lender may declare all of the principal of and Borrower’s Obligations to the Lender hereunder, together with accrued interest in respect to the date of such defaulting Borrower's Loans payment to be be, and the same shall forthwith due and payablebecome, whereupon the principal of and accrued interest in respect of such Loans shall become forthwith immediately due and payable without presentment, demand, protest or other notice of any kind, all of which the Borrower hereby waives, and (C) the Lender may exercise all other remedies available to it under any Loan Document or any applicable law; provided, however, if a default occurs under subparts (g) and (h) of this Section 6.1, no such declaration or notice shall be necessary and subpart (A), (B), and (C) hereof shall operate as if such declaration and notice had been made. The rights and remedies of the Lender hereunder and under any documents or instruments executed pursuant hereto are hereby expressly waived cumulative, and recourse to one or more rights or remedies shall not constitute a waiver of the others or an election of remedies. It is mutually agreed that commercial reasonableness and good faith require the giving of no more than ten (10) Business Days’ prior written notice of the time and place of any public sale of any Collateral or of the time after which any private sale or any other intended disposition thereof is to be made, and at any such public or private sale, subject to limitations of law, the Lender, its agents and/or nominees, may purchase the Collateral. If the net proceeds of any disposition of Collateral exceed the amount then due and owing, whether by acceleration, at maturity or otherwise, or on demand, such excess will be remitted to Borrower or whomsoever shall be legally entitled thereto. The Borrower shall remain liable for any deficiency remaining after disposition of Collateral. If the Borrower fails to perform or comply with any of its obligations contained herein, the Lender shall have the right, but shall not be obligated, to effect such performance or compliance and the Borrower, and/or within ten (B10) terminate the Commitments as to such defaulting Borrower, whereupon the Commitments of the Banks to make Committed Credit Loans hereunder to such defaulting Borrower shall forthwith terminate without any other notice of any kind and the percentages of the Commitment Fee and other fees and expenses otherwise payable by such defaulting Borrower hereunder accruing Business Days from and after the date of termination demand, shall reimburse the Lender immediately for such sums so expended, together with interest thereon at the Default Rate for the actual number of days elapsed from date of payment by the Lender to the date on which the Lender receives payment thereof from the Borrower. Failure of the Borrower to pay and promptly discharge the aforesaid debts and obligations shall constitute an Event of Default under this Agreement, but the payment of the same by the Lender shall not cure or constitute a waiver of such Event of Default. Upon the occurrence and during the continuance of an Event of Default, all payments received by the Lender from or on behalf of the Borrower shall be reallocated among applied by the remaining Borrowers PRO RATA on Lender to any installment(s) due and payable under the basis Note as the Lender, in its sole discretion, may determine, without notice to or consent of Borrower, the Borrower hereby expressly waives (to the extent permitted by law) all rights to make or manifest any binding instruction upon the Lender as to application of such payments other than as provided herein. Acceptance by the Lender of partial payment(s) or performance by the Borrower or by any other third party shall not be construed as a waiver of any Event of Default, nor shall the same affect or in any way impair the rights and remedies of the percentages set forth opposite such remaining Borrowers' names on SCHEDULE 1, as in effect at the time of such terminationLender hereunder.
Appears in 1 contract
Events of Default; Acceleration. If any 6.1 The following shall constitute events of the following events default (each individually, an "EVENT OF DEFAULTEvent of Default") shall occur with respect to any Borrower:):
(a) Such Borrower (i) shall (A) default in the payment of principal payment, when due or payable, of any Loan, interest accrued thereon or fee due hereunder after the same becomes due and payable, whether at maturity or by acceleration or otherwise, or (ii) shall default in Obligation for the payment of any other amount due hereunder after the same becomes due and payable; or
(b) Such Borrower shall default in the performance of or compliance with any term contained in Sections 9.01(a) or 9.01(b) and such default shall have continued for more than three (3) Banking Daysmoney, or such Borrower shall default in the performance of or compliance with any term contained in Sections 8.02(d), 8.02(e), 8.02(g), 8.05, 9.02, 9.03 or 9.04; or
(c) Such Borrower shall default in the performance of or compliance with any term contained herein other than those expressly referred to in this Section 10.01, and such default shall not have been remedied within five (5) Banking Days after written notice thereof shall have been given to such Borrower by the Operations Agent; or
(d) Such Borrower shall default in the performance of, or compliance with, any material term contained in any other written agreement with the Operations Agent or any Bank pertaining to this Agreement or such Borrower's Loans, and such which default shall continue for more than the five (5) days, provided, that such five (5) day period of grace, if any, specified therein and shall not have been waived pursuant thereto; or
(e) Any representation, warranty certification or statement made or deemed made by such Borrower in this Agreement or in any certificate, financial statement or other document delivered pursuant hereto shall prove apply to have been false or incorrect in any material respect when made; or
(f) Except as otherwise provided in this Section 10.01, such Borrower shall a default in -------- the payment of any Obligations due or payable on the Maturity Date; or (B) default in the performance, when due, of any Obligation by the Borrower or by any endorser, guarantor or surety for any Obligation (other than the payment due on Indebtedness for borrowed money or the deferred purchase price of propertyprovisions described in subparagraph (A) above), the aggregate outstanding principal amount of which is in excess of five percent (5%) of such Borrower's Total Assets, and such default shall continue for more than the fifteen (15) days, provided that such fifteen (15) day period of grace, if any, applicable thereto and -------- shall not have been waived pursuant thereto and shall permit the holder of such Indebtedness apply to declare such Indebtedness due and payable before its stated maturity, or a default in the payment, performance of or compliance with any term observation of any evidence Obligations under Section 2 of such Indebtedness the Agreement or of any mortgageunder Sections 5.3, indenture or other agreement relating thereto5.5 through 5.9, inclusive, and any such default shall continue for more than 5.11 through 5.20, inclusive, of the period of grace, if any, specified therein and shall not have been waived pursuant thereto and shall permit the holder of such Indebtedness to declare such Indebtedness due and payable before its stated maturity, unless such Borrower shall be contesting such payment or obligation in good faith by appropriate proceedings promptly initiated and diligently conducted and such Borrower shall have set aside on its books such reserves, if any, with respect thereto as are required by GAAP and deemed appropriate by such Borrower and its independent public accountants, PROVIDED, that no Event of Default pursuant to paragraphs (b) or (i) of this Section 10.01 shall have occurred and be continuing as a result of such claim having been asserted in respect of such IndebtednessAgreement; or
(gii) Such the making by the Borrower shall discontinue its business (other than in connection with a permitted merger or consolidation of such Borrower) or shall make an assignment for the benefit of creditors, or shall fail generally to pay its debts as such debts become due, or shall apply for or consent any material misrepresentation to the appointment of or taking possession by a trustee, receiver or liquidator (or other similar official) of such Borrower or any substantial part of the property or assets of such Borrower or shall commence a case or have an order for relief entered against it under the federal bankruptcy laws, as now or hereafter constituted, Lender contained in this Agreement or any other applicable federal Loan Document or state bankruptcyotherwise, insolvency whether or other similar law, not for the purpose of obtaining credit or if any action shall be taken to dissolve or liquidate such Borrower (other than in connection with a permitted merger or consolidation an extension of such Borrower)credit; or
(hiii) If, within sixty (60) days after issuance of an injunction or attachment against property of the commencement against such Borrower of a case under the federal bankruptcy laws, as now or hereafter constituted, or any other applicable federal or state bankruptcy, insolvency or other similar law, such case shall have been consented to or shall not have been dismissed or all orders or proceedings thereunder affecting the operations or the business of such Borrower stayed, or if the stay of any such order or proceeding shall thereafter be set aside, or if within sixty (60) days after the entry of a decree appointing a trustee, receiver or liquidator (or other similar official) of such Borrower or any substantial part endorser, guarantor or surety for any Obligation which is not dismissed or bonded, to the satisfaction of the property of such Borrower such appointment shall not have been vacated; or
(i) A final judgment which, together with other outstanding final judgments against such Borrower, exceeds an amount in the aggregate equal to five percent (5%) of such Borrower's Total Assets (exclusive of amounts covered by available insurance) shall be rendered against such Borrower and ifLender, within thirty (30) days after entry thereof, such judgment shall not have been discharged or execution thereof stayed pending appeal, or if, within thirty (30) days after the expiration of any such stay, such judgment shall not have been dischargedissuance; or
(jiv) Such calling of a meeting of creditors, appointment of a committee of creditors or liquidating agents or offering of a composition or extension to creditors by, for or with the consent or acquiescence of the Borrower or any member endorser, guarantor or surety for any Obligation; or
(v) Insolvency of the Controlled Group shall fail Borrower or any endorser, guarantor or surety for any Obligation; or
(vi) the occurrence of any material default under any agreement, note or other instrument evidencing or relating to pay when due an amount any obligation of the Borrower to any other Person for the payment of money; or
(vii) any money judgment or amounts judgments aggregating in excess of $500,000 which it 25,000 is obligated to pay to entered against the PBGC or to a Plan under Title IV of ERISA; or a notice of intent to terminate a Plan or Plans having aggregate Unfunded Liabilities in excess of $500,000 shall be filed under Title IV of ERISA by such Borrower or any member of the Controlled Groupendorser, guarantor or surety for any plan administrator or any combination of the foregoing; or the PBGC shall institute proceedings under Title IV of ERISA to terminate or to cause a trustee to be appointed to administer any such Plan or Plans or a proceeding shall be instituted by a fiduciary of any such Plan or Plans against such Borrower or any member of the Controlled Group to enforce Sections 515 or 4219(c)(5) of ERISA; or a condition shall exist by reason of which the PBGC would be entitled to obtain a decree adjudicating that any such Plan or Plans must be terminated; or there shall occur a complete or partial withdrawal from, or a default, within the meaning of Section 4219(c)(5) of ERISA, with respect to, one or more Multiemployer Plans which could cause such Borrower or one or more members of the Controlled Group to incur a current payment obligation in excess of $500,000Obligation; or
(kviii) Such the occurrence of any change in the condition or affairs (financial or otherwise) of the Borrower or any endorser, guarantor or surety for any Obligation, which causes the Lender in good faith to deem itself insecure; or
(ix) any Security Document, or any covenant, agreement or obligation contained therein or evidenced thereby, shall cease in any material respect to be legal, valid, binding or enforceable against the Borrower or any other person bound thereby, or shall be canceled, terminated, revoked or rescinded, or shall be claimed in writing by the Borrower to be so cancelled, terminated, revoked or rescinded; or
(x) any action at law, suit in equity or other legal proceeding to cancel, revoke or rescind any Security Document shall be commenced by or on behalf of the Borrower or any other person bound thereby, or by any court or any other governmental or regulatory authority or agency of competent jurisdiction; or any court or any other governmental or regulatory authority or agency of competent jurisdiction shall make a determination that, or shall issue a judgment, order, decree or ruling to the effect that, any one or more of the Security Documents, or any one or more of the obligations of the Borrower or any other person under any one or more of the Security Documents, are illegal, invalid or unenforceable in any material respect in accordance with the terms thereof; or
(xi) any change in equity ownership of the Borrower, other than as a result of transfers for estate planning purposes or transfers among existing equity holders on the date hereof; or
(xii) any failure by ▇▇▇▇▇ ▇▇▇▇▇▇▇ for any reason to cease to be an investment management company (or a Portfolio thereof) registered under actively involved in strategic planning and decision-making for the Investment Company Act, or such Borrower's registration under Borrower unless the Investment Company Act, or Lender has determined in its sole discretion that of any Borrower Agent the occurrence of such event will not have a material adverse effect on the business, properties or condition (financial or otherwise) of the Borrower, shall lapse or be suspended; then, and in any such event, and at any time thereafter, if any .
6.2 If an Event of Default shall then occur and be continuing with respect to such defaulting Borrowercontinuing, the Lender may, at its option, (i) in declare any or all of the case Obligations of any Event of Default specified in paragraphs (g) and (h) above, the Commitments as Borrower to such defaulting Borrower shall thereupon automatically the Lender to be terminated and the principal of and accrued interest on the Loans shall automatically become immediately due and payable without presentment, demand, protest or other further notice or formality of any kind, all of which are hereby expressly waived, and (ii) in the case of any other Event of Default specified above, either or both of the following actions may be taken: the Operations Agent may, and upon the written or telephonic (confirmed in writing) request of the Majority Banks shall, by written notice to such defaulting Borrower (A) declare the principal of and accrued interest in respect of such defaulting Borrower's Loans to be forthwith due and payabledemand, whereupon the principal of and accrued interest in respect of such Loans same shall become forthwith immediately due and payable without presentment, demand, protest or other notice of any kind, all of which are hereby expressly waived by such the Borrower, and/or (Bii) limit, suspend or terminate the Commitments as Borrower's right to such defaulting Borrowerborrow hereunder, whereupon and (iii) exercise any rights and remedies under the Commitments Security Documents and law, provided that upon the -------- occurrence of an Event of Default described in Sections 6.1(iv) or (v), the Banks actions described in clauses (i) and (ii) above shall automatically be deemed to make Committed Credit Loans hereunder to such defaulting Borrower shall forthwith terminate without any other notice of any kind and have been taken by the percentages of the Commitment Fee and other fees and expenses otherwise payable by such defaulting Borrower hereunder accruing from and after the date of termination shall be reallocated among the remaining Borrowers PRO RATA on the basis of the percentages set forth opposite such remaining Borrowers' names on SCHEDULE 1, as in effect at the time of such terminationLender.
Appears in 1 contract
Sources: Revolving Credit and Term Loan Agreement (Advanced Deposition Technologies Inc)
Events of Default; Acceleration. If any of the following events (each an "EVENT OF DEFAULTEvents of Default") shall occur with respect to any Borroweroccur:
(a) Such the Borrower shall fail to pay when due and payable any principal of the Loan when the same becomes due;
(b) the Borrower shall fail to pay interest on the Loan or any other sum due under any of the Loan Documents within two (2) Business Days after notice from the Bank as to the amount(s) due and payable;
(c) the Borrower shall fail to perform any term, covenant or agreement contained in [sections]7.1(a), 7.1(d) through (f), 7.2, 7.3 or in the Mortgage;
(d) the Borrower shall fail to perform any other term, covenant or agreement contained in the Loan Documents within fifteen (15) days after the Bank has given written notice of such failure to the Borrower;
(e) any representation or warranty of the Borrower in the Loan Documents or in any certificate or notice given in connection therewith shall have been false or misleading in any material respect at the time made or deemed to have been made;
(f) the Borrower shall be in default (after any applicable period of grace or cure period) under the Original Term Loan Agreement, the Fleet Credit Agreement or any agreement or agreements evidencing Indebtedness owing to a person or entity other than the Bank or any affiliates of the Bank or in excess of $500,000 in aggregate principal amount, or shall fail to pay such Indebtedness when due, or within any applicable period of grace;
(g) any of the Loan Documents shall cease to be in full force and effect,
(h) the Borrower (i) shall default in the payment of principal of any Loan, interest accrued thereon or fee due hereunder after the same becomes due and payable, whether at maturity or by acceleration or otherwise, or (ii) shall default in the payment of any other amount due hereunder after the same becomes due and payable; or
(b) Such Borrower shall default in the performance of or compliance with any term contained in Sections 9.01(a) or 9.01(b) and such default shall have continued for more than three (3) Banking Days, or such Borrower shall default in the performance of or compliance with any term contained in Sections 8.02(d), 8.02(e), 8.02(g), 8.05, 9.02, 9.03 or 9.04; or
(c) Such Borrower shall default in the performance of or compliance with any term contained herein other than those expressly referred to in this Section 10.01, and such default shall not have been remedied within five (5) Banking Days after written notice thereof shall have been given to such Borrower by the Operations Agent; or
(d) Such Borrower shall default in the performance of, or compliance with, any material term contained in any other written agreement with the Operations Agent or any Bank pertaining to this Agreement or such Borrower's Loans, and such default shall continue for more than the period of grace, if any, specified therein and shall not have been waived pursuant thereto; or
(e) Any representation, warranty certification or statement made or deemed made by such Borrower in this Agreement or in any certificate, financial statement or other document delivered pursuant hereto shall prove to have been false or incorrect in any material respect when made; or
(f) Except as otherwise provided in this Section 10.01, such Borrower shall default in any payment due on Indebtedness for borrowed money or the deferred purchase price of property, the aggregate outstanding principal amount of which is in excess of five percent (5%) of such Borrower's Total Assets, and such default shall continue for more than the period of grace, if any, applicable thereto and shall not have been waived pursuant thereto and shall permit the holder of such Indebtedness to declare such Indebtedness due and payable before its stated maturity, or in the performance of or compliance with any term of any evidence of such Indebtedness or of any mortgage, indenture or other agreement relating thereto, and any such default shall continue for more than the period of grace, if any, specified therein and shall not have been waived pursuant thereto and shall permit the holder of such Indebtedness to declare such Indebtedness due and payable before its stated maturity, unless such Borrower shall be contesting such payment or obligation in good faith by appropriate proceedings promptly initiated and diligently conducted and such Borrower shall have set aside on its books such reserves, if any, with respect thereto as are required by GAAP and deemed appropriate by such Borrower and its independent public accountants, PROVIDED, that no Event of Default pursuant to paragraphs (b) or (i) of this Section 10.01 shall have occurred and be continuing as a result of such claim having been asserted in respect of such Indebtedness; or
(g) Such Borrower shall discontinue its business (other than in connection with a permitted merger or consolidation of such Borrower) or shall make an assignment for the benefit of creditors, (ii) shall be adjudicated bankrupt or insolvent, (iii) shall fail generally seek the appointment of, or be the subject of an order appointing, a trustee, liquidator or receiver as to all or part of its assets, (iv) shall commence, approve or consent to, any case or proceeding under any bankruptcy, reorganization or similar law and, in the case of an involuntary case or proceeding, such case or proceeding is not dismissed within forty-five (45) days following the commencement thereof, or (v) shall be the subject of an order for relief in an involuntary case under federal bankruptcy law;
(i) the Borrower shall be unable to pay its debts as such debts become due, or shall apply for or consent to the appointment of or taking possession by a trustee, receiver or liquidator (or other similar official) of such Borrower or any substantial part of the property or assets of such Borrower or shall commence a case or have an order for relief entered against it under the federal bankruptcy laws, as now or hereafter constituted, or any other applicable federal or state bankruptcy, insolvency or other similar law, or if any action shall be taken to dissolve or liquidate such Borrower (other than in connection with a permitted merger or consolidation of such Borrower); orthey mature;
(hj) If, within sixty there shall remain undischarged for more than thirty (6030) days after the commencement against such Borrower of a case under the federal bankruptcy laws, as now or hereafter constituted, or any other applicable federal or state bankruptcy, insolvency or other similar law, such case shall have been consented to or shall not have been dismissed or all orders or proceedings thereunder affecting the operations or the business of such Borrower stayed, or if the stay of any such order or proceeding shall thereafter be set aside, or if within sixty (60) days after the entry of a decree appointing a trustee, receiver or liquidator (or other similar official) of such Borrower or any substantial part of the property of such Borrower such appointment shall not have been vacated; or
(i) A final judgment whichor execution action against the Borrower that, together with other outstanding final judgments claims and execution actions against such Borrower, the Borrower exceeds an amount $500,000 in the aggregate equal to five percent (5%) of such Borrower's Total Assets (exclusive of amounts covered by available insurance) shall be rendered against such Borrower and if, within thirty (30) days after entry thereof, such judgment shall not have been discharged or execution thereof stayed pending appealaggregate; THEN, or if, within thirty (30) days after the expiration of any such stay, such judgment shall not have been discharged; or
(j) Such Borrower or any member of the Controlled Group shall fail to pay when due an amount or amounts aggregating in excess of $500,000 which it is obligated to pay to the PBGC or to a Plan under Title IV of ERISA; or a notice of intent to terminate a Plan or Plans having aggregate Unfunded Liabilities in excess of $500,000 shall be filed under Title IV of ERISA by such Borrower or any member of the Controlled Group, any plan administrator or any combination of the foregoing; or the PBGC shall institute proceedings under Title IV of ERISA to terminate or to cause a trustee to be appointed to administer any such Plan or Plans or a proceeding shall be instituted by a fiduciary of any such Plan or Plans against such Borrower or any member of the Controlled Group to enforce Sections 515 or 4219(c)(5) of ERISA; or a condition shall exist by reason of which the PBGC would be entitled to obtain a decree adjudicating that any such Plan or Plans must be terminated; or there shall occur a complete or partial withdrawal from, or a default, within the meaning of Section 4219(c)(5) of ERISA, with respect to, one or more Multiemployer Plans which could cause such Borrower or one or more members of the Controlled Group to incur a current payment obligation in excess of $500,000; or
(k) Such Borrower shall cease to be an investment management company (or a Portfolio thereof) registered under the Investment Company Act, or such Borrower's registration under the Investment Company Act, or that of any Borrower Agent of such Borrower, shall lapse or be suspended; then, and in any such event, and at any time thereafter, if any Event of Default shall then be continuing with respect to such defaulting Borrower, :
(i1) in In the case of any Event of Default specified in paragraphs (g) and under clause (h) aboveor (i), the Commitments as obligation of the Bank, if any, to such defaulting Borrower make any Advances pursuant to [section]2 shall thereupon automatically be terminated terminate, and the entire unpaid principal amount of the Loan, all interest accrued and accrued interest on unpaid thereon, and all other amounts payable thereunder and under the Loans other Loan Documents shall automatically become forthwith due and payable payable, without presentment, demand, protest or other notice or formality of any kind, all of which are hereby expressly waived, and (ii) in the case of any other Event of Default specified above, either or both of the following actions may be taken: the Operations Agent may, and upon the written or telephonic (confirmed in writing) request of the Majority Banks shall, by written notice to such defaulting Borrower (A) declare the principal of and accrued interest in respect of such defaulting Borrower's Loans to be forthwith due and payable, whereupon the principal of and accrued interest in respect of such Loans shall become forthwith due and payable without presentment, demand, protest or other notice of any kind, all of which are hereby expressly waived by such the Borrower; and
(2) In the case of any Event of Default other than (h) and (i), the Bank may, by written notice to the Borrower, and/or (B) terminate the Commitments as to such defaulting Borrower, whereupon the Commitments obligation of the Banks Bank, if any, to make Committed Credit Loans Advances pursuant to [section]2 hereof and/or declare the unpaid principal amount of the Loan, all interest accrued and unpaid thereon, and all other amounts payable hereunder and under the other Loan Documents to such defaulting Borrower shall be forthwith terminate due and payable, without any other presentment, demand, protest or further notice of any kind kind, all of which are hereby expressly waived by the Borrower. No remedy herein conferred upon the Bank is intended to be exclusive of any other remedy and the percentages of the Commitment Fee each and other fees and expenses otherwise payable by such defaulting Borrower hereunder accruing from and after the date of termination every remedy shall be reallocated among the remaining Borrowers PRO RATA on the basis of the percentages set forth opposite such remaining Borrowers' names on SCHEDULE 1cumulative and in addition to every other remedy hereunder, as now or hereafter existing at law or in effect at the time of such terminationequity or otherwise.
Appears in 1 contract
Events of Default; Acceleration. If any of the following events (each an "EVENT OF DEFAULTEvents of Default" or, if the giving of notice or the lapse of time or both is required, then, prior to such notice and/or lapse of time, "Defaults") shall occur with respect to any Borroweroccur:
(a) Such Borrower (i) if the Borrowers shall default in the payment of fail to pay any principal of any Loan, interest accrued thereon or fee due hereunder after the Loans when the same becomes shall become due and payable, whether at the stated date of maturity or by acceleration any accelerated date of maturity or otherwise, or (ii) shall default in the payment of at any other amount due hereunder after the same becomes due and payable; ordate fixed for payment;
(b) Such Borrower if the Borrowers shall default in fail to pay any interest, letter of credit fees, the performance of Amendment Fee or compliance with any term contained in Sections 9.01(a) or 9.01(b) and such default shall have continued for more than three (3) Banking Days, or such Borrower shall default in Commitment Fees on the performance of or compliance with any term contained in Sections 8.02(d), 8.02(e), 8.02(g), 8.05, 9.02, 9.03 or 9.04; or
(c) Such Borrower shall default in the performance of or compliance with any term contained herein other than those expressly referred to in this Section 10.01, and such default shall not have been remedied Loans within five (5) Banking Business Days after the same shall become due and payable whether at the stated date of maturity or any accelerated date of maturity or at any other date fixed for payment;
(c) if the Borrowers shall fail to comply with their covenants contained in Section 5 (excepting Sections 5.2, 5.4, and 5.9,) or Section 6 hereof;
(d) if the Borrowers shall fail to perform any term, covenant or agreement herein contained (other than those specified in subsections (a), (b), and (c) above) within 45 business days after written notice thereof shall have of such failure has been given to such Borrower by the Operations Agent; or
(d) Such Borrower shall default in the performance of, or compliance with, any material term contained in any other written agreement with the Operations Agent or any Bank pertaining to this Agreement or such Borrower's Loans, and such default shall continue for more than the period of grace, if any, specified therein and shall not have been waived pursuant thereto; orBank;
(e) Any representation, if any representation or warranty certification or statement made or deemed made by such Borrower contained in this Agreement or in any certificate, financial statement document or other document instrument delivered pursuant hereto to or in connection with this Agreement shall prove to have been false or incorrect in any material respect upon the date when made; or;
(f) Except as otherwise provided in this Section 10.01if any Borrower or any Subsidiary shall fail to pay at maturity, such Borrower shall default in or within any payment due on Indebtedness for borrowed money or the deferred purchase price of property, the aggregate outstanding principal amount of which is in excess of five percent (5%) of such Borrower's Total Assets, and such default shall continue for more than the applicable period of grace, any and all obligations for borrowed money in an aggregate amount greater than $1,000,000 (excluding, however, any agreement relating to any pledge of, or restriction on the pledge or disposition of, margin stock, as defined in Regulation U of the Board of Governors of the Federal Reserve System, owned by any Borrower), or fail to observe or perform any material term, covenant or agreement contained in any agreement by which it is bound, evidencing or securing borrowed money in an aggregate amount greater than $1,000,000 for such period of time as would, or would have permitted (assuming the giving of appropriate notice if any, applicable thereto and shall not have been waived pursuant thereto and shall permit required) the holder of such Indebtedness to declare such Indebtedness due and payable before its stated maturity, or in the performance of or compliance with any term of any evidence of such Indebtedness holders thereof or of any mortgage, indenture or other agreement relating thereto, and any such default shall continue for more than obligations issued thereunder to accelerate the period of grace, if any, specified therein and shall not have been waived pursuant thereto and shall permit the holder of such Indebtedness to declare such Indebtedness due and payable before its stated maturity, unless such Borrower shall be contesting such payment or obligation in good faith by appropriate proceedings promptly initiated and diligently conducted and such Borrower shall have set aside on its books such reserves, if any, with respect thereto as are required by GAAP and deemed appropriate by such Borrower and its independent public accountants, PROVIDED, that no Event of Default pursuant to paragraphs (b) or (i) of this Section 10.01 shall have occurred and be continuing as a result of such claim having been asserted in respect of such Indebtednessmaturity thereof; or
(g) Such if any Borrower shall discontinue its business (other than in connection with a permitted merger or consolidation of such Borrower) or shall make makes an assignment for the benefit of creditors, or shall fail admits in writing its inability to pay or generally fails to pay its debts as such debts they mature or become duedue (excluding, however, any agreement relating to any pledge of, or shall apply restriction on the pledge or disposition of, margin stock, as defined in Regulation U of the Board of Governors of the Federal Reserve System, owned by any Borrower), or petitions or applies for or consent to the appointment of or taking possession by a trustee, receiver or liquidator (trustee or other similar official) custodian, liquidator or receiver of such Borrower any of the Borrowers or of any substantial part of the property or assets of such Borrower any of the Borrowers or shall commence a their Subsidiaries or commences any case or have an other proceeding relating to any of the Borrowers or their Subsidiaries under any bankruptcy, reorganization, arrangement, insolvency, readjustment of debt, dissolution or liquidation or similar law of any jurisdiction, now or hereafter in effect, or takes any action to authorize or in furtherance of any of the foregoing, or if any such petition or application is filed or any such case or other proceeding is commenced against any of the Borrowers or their Subsidiaries and any of the Borrowers or their Subsidiaries indicates its approval thereof, consent thereto or acquiescence therein;
(h) a decree or order is entered appointing any such trustee, custodian, liquidator or receiver or adjudicating any of the Borrowers or their Subsidiaries bankrupt or insolvent, or approving a petition in any such case or other proceeding, or a decree or order for relief is entered against it in respect of any Borrower or any Subsidiary in an involuntary case under the federal Federal bankruptcy laws, laws as now or hereafter constituted, and such decree or any other applicable federal order remains in effect for more than 30 days, whether or state bankruptcy, insolvency or other similar law, or if any action shall be taken to dissolve or liquidate such Borrower (other than in connection with a permitted merger or consolidation of such Borrower); or
(h) If, within sixty (60) days after the commencement against such Borrower of a case under the federal bankruptcy laws, as now or hereafter constituted, or any other applicable federal or state bankruptcy, insolvency or other similar law, such case shall have been consented to or shall not have been dismissed or all orders or proceedings thereunder affecting the operations or the business of such Borrower stayed, or if the stay of any such order or proceeding shall thereafter be set aside, or if within sixty (60) days after the entry of a decree appointing a trustee, receiver or liquidator (or other similar official) of such Borrower or any substantial part of the property of such Borrower such appointment shall not have been vacatedconsecutive; or
(i) A if there shall remain in force, undischarged, unsatisfied and unstayed, for more than thirty days, whether or not consecutive, any final judgment against any Borrower or any Subsidiary which, together with other outstanding final judgments judgments, undischarged, against such Borrower, the Borrowers exceeds an amount in the aggregate equal to five percent (5%) of such Borrower's Total Assets (exclusive of amounts covered by available insurance) shall be rendered against such Borrower and if, within thirty (30) days $1,000,000 after entry thereof, such judgment shall not have been discharged or execution thereof stayed pending appeal, or if, within thirty (30) days after the expiration of taking into account any such stay, such judgment shall not have been discharged; or
(j) Such Borrower or any member of the Controlled Group shall fail to pay when due an amount or amounts aggregating in excess of $500,000 which it is obligated to pay to the PBGC or to a Plan under Title IV of ERISA; or a notice of intent to terminate a Plan or Plans having aggregate Unfunded Liabilities in excess of $500,000 shall be filed under Title IV of ERISA by such Borrower or any member of the Controlled Group, any plan administrator or any combination of the foregoing; or the PBGC shall institute proceedings under Title IV of ERISA to terminate or to cause a trustee to be appointed to administer any such Plan or Plans or a proceeding shall be instituted by a fiduciary of any such Plan or Plans against such Borrower or any member of the Controlled Group to enforce Sections 515 or 4219(c)(5) of ERISA; or a condition shall exist by reason of which the PBGC would be entitled to obtain a decree adjudicating that any such Plan or Plans must be terminated; or there shall occur a complete or partial withdrawal from, or a default, within the meaning of Section 4219(c)(5) of ERISA, with respect to, one or more Multiemployer Plans which could cause such Borrower or one or more members of the Controlled Group to incur a current payment obligation in excess of $500,000; or
(k) Such Borrower shall cease to be an investment management company (or a Portfolio thereof) registered under the Investment Company Act, or such Borrower's registration under the Investment Company Act, or that of any Borrower Agent of such Borrower, shall lapse or be suspendedinsurance coverage; then, and the Bank may by notice in any such event, and at any time thereafter, if any Event of Default shall then be continuing writing to the Borrowers declare all amounts owing with respect to such defaulting Borrowerthis Agreement and the Note to be, (i) in the case of any Event of Default specified in paragraphs (g) and (h) above, the Commitments as to such defaulting Borrower they shall thereupon automatically be terminated forthwith mature and the principal of and accrued interest on the Loans shall automatically become due and payable without presentmentbecome, demand, protest or other notice or formality of any kind, all of which are hereby expressly waived, and (ii) in the case of any other Event of Default specified above, either or both of the following actions may be taken: the Operations Agent may, and upon the written or telephonic (confirmed in writing) request of the Majority Banks shall, by written notice to such defaulting Borrower (A) declare the principal of and accrued interest in respect of such defaulting Borrower's Loans to be forthwith due and payable, whereupon the principal of and accrued interest in respect of such Loans shall become forthwith immediately due and payable without presentment, demand, protest or other notice of any kind, all of which are hereby expressly waived by the Borrowers; provided, that in the event of any Event of Default specified in Sections 9(g) or 9(h) hereof, all such Borroweramounts shall become immediately due and payable automatically and without any requirement of notice from the Bank. Upon demand by the Bank after the occurrence of any Event of Default, and/or (B) terminate the Commitments Borrowers shall immediately provide to the Bank cash in an amount equal to the aggregate Maximum Drawing Amount of all Letters of Credit outstanding, to be held by the Bank as to such defaulting Borrower, whereupon collateral security for the Commitments Obligations. In case any one or more of the Banks Events of Default shall have occurred and be continuing, and whether or not the Bank shall have accelerated the maturity of the Loans pursuant to make Committed Credit the foregoing, the Bank, if owed any amount with respect to the Loans may proceed to protect and enforce its rights by suit in equity, action at law and/or other appropriate proceeding, whether for the specific performance of any covenant or agreement contained in this Agreement or any instrument pursuant to which the obligations of the Borrowers to the Bank hereunder are evidenced, including as permitted by applicable law the obtaining of the ex parte appointment of a receiver, and, if such amount shall have become due, by declaration or otherwise, proceed to such defaulting Borrower shall forthwith terminate without enforce the payment thereof or any other notice legal or equitable right of the Bank. No remedy herein conferred upon the Bank or the holders of the Note is intended to be exclusive of any kind other remedy and the percentages of the Commitment Fee each and other fees and expenses otherwise payable by such defaulting Borrower hereunder accruing from and after the date of termination every remedy shall be reallocated among the remaining Borrowers PRO RATA on the basis cumulative and shall be in addition to every other remedy given hereunder or now or hereafter existing at law or in equity or by statute or any other provision of the percentages set forth opposite such remaining Borrowers' names on SCHEDULE 1, as in effect at the time of such terminationlaw.
Appears in 1 contract
Sources: Revolving Credit Agreement (TRC Companies Inc /De/)
Events of Default; Acceleration. If any of the following events (each an "EVENT OF DEFAULTEvents of Default") shall occur with respect to any Borrower:
occur: (a) Such the Borrower (i) shall default in the payment of fail to pay when due and payable any principal of any Loan, interest accrued thereon or fee due hereunder after the Loans when the same becomes due and payable, whether at maturity or by acceleration or otherwisedue;
(b) the Borrower shall fail to pay interest on the Loans, or the Borrower or the Parent Guarantor shall fail to pay any Reimbursement Obligations not funded by a Revolving Credit Loan pursuant to (ii) shall default in the payment of S)2.2(c), or any other amount sum due hereunder under any of the Loan Documents within two (2) Business Days after the date on which the same becomes shall have first become due and payable; or
(b) Such Borrower shall default in the performance of or compliance with any term contained in Sections 9.01(a) or 9.01(b) and such default shall have continued for more than three (3) Banking Days, or such Borrower shall default in the performance of or compliance with any term contained in Sections 8.02(d), 8.02(e), 8.02(g), 8.05, 9.02, 9.03 or 9.04; or
(c) Such either of the Guarantors or the Borrower shall default fail to perform any term, covenant or agreement contained in the performance of or compliance with any term contained herein other than those expressly referred to in this Section 10.01(S)(S)9.1(a), 9.1(d) through (g), 9.2 and such default shall not have been remedied within five (5) Banking Days after written notice thereof shall have been given to such Borrower by the Operations Agent9.3; or
(d) Such the Guarantors, the Borrower or any other Subsidiary of the Borrower shall default fail to perform any other term, covenant or agreement contained in the performance of, or compliance with, any material term contained in any other Loan Documents within fifteen (15) days after the Agent has given written agreement with notice of such failure to the Operations Agent or any Bank pertaining to this Agreement or such Borrower's Loans, and such default shall continue for more than the period of grace, if any, specified therein and shall not have been waived pursuant thereto; or
(e) Any representationany representation or warranty of the Guarantors, warranty certification the Borrower or statement made or deemed made by such Borrower any of its other Subsidiaries in this Agreement the Loan Documents or in any certificate, financial statement certificate or other document delivered pursuant hereto notice given in connection therewith shall prove to have been false or incorrect misleading in any material respect when at the time made or deemed to have been made; or
(f) Except as otherwise provided in this Section 10.01, such Borrower shall default in any payment due on Indebtedness for borrowed money or the deferred purchase price of propertyGuarantors, the aggregate outstanding principal amount Borrower or any of which is its other Subsidiaries shall be in default (after any applicable period of grace or cure period) under any agreement or agreements evidencing Indebtedness owing to the Bank or any affiliates of the Bank, to the Seller, or in excess of five percent (5%) of $500,000 in aggregate principal amount, or shall fail to pay such Borrower's Total AssetsIndebtedness when due, and such default shall continue for more than the or within any applicable period of grace; (g) any of the Loan Documents shall cease to be in full force and effect, if any(h) the Guarantors, applicable thereto and shall not have been waived pursuant thereto and shall permit the holder Borrower or any of such Indebtedness to declare such Indebtedness due and payable before its stated maturity, or in the performance of or compliance with any term of any evidence of such Indebtedness or of any mortgage, indenture or other agreement relating thereto, and any such default shall continue for more than the period of grace, if any, specified therein and shall not have been waived pursuant thereto and shall permit the holder of such Indebtedness to declare such Indebtedness due and payable before its stated maturity, unless such Borrower shall be contesting such payment or obligation in good faith by appropriate proceedings promptly initiated and diligently conducted and such Borrower shall have set aside on its books such reserves, if any, with respect thereto as are required by GAAP and deemed appropriate by such Borrower and its independent public accountants, PROVIDED, that no Event of Default pursuant to paragraphs (b) or Subsidiaries (i) of this Section 10.01 shall have occurred and be continuing as a result of such claim having been asserted in respect of such Indebtedness; or
(g) Such Borrower shall discontinue its business (other than in connection with a permitted merger or consolidation of such Borrower) or shall make an assignment for the benefit of creditors, (ii) shall be adjudicated bankrupt or insolvent, (iii) shall fail generally seek the appointment of, or be the subject of an order appointing, a trustee, liquidator or receiver as to all or part of its assets, (iv) shall commence, approve or consent to, any case or proceeding under any bankruptcy, reorganization or similar law and, in the case of an involuntary case or proceeding, such case or proceeding is not dismissed within forty-five (45) days following the commencement thereof, or (v) shall be the subject of an order for relief in an involuntary case under federal bankruptcy law; (i) the Guarantors, the Borrower or any of its other Subsidiaries shall be unable to pay its debts as such debts become duethey mature; (j) there shall remain undischarged for more than thirty (30) days any final judgment or execution action against the Guarantors, or shall apply for or consent to the appointment of or taking possession by a trustee, receiver or liquidator (or other similar official) of such Borrower or any substantial part of the property or assets of such Borrower or shall commence a case or have an order for relief entered against it under the federal bankruptcy laws, as now or hereafter constituted, or any its other applicable federal or state bankruptcy, insolvency or other similar law, or if any action shall be taken to dissolve or liquidate such Borrower (other than in connection with a permitted merger or consolidation of such Borrower); or
(h) If, within sixty (60) days after the commencement against such Borrower of a case under the federal bankruptcy laws, as now or hereafter constituted, or any other applicable federal or state bankruptcy, insolvency or other similar law, such case shall have been consented to or shall not have been dismissed or all orders or proceedings thereunder affecting the operations or the business of such Borrower stayed, or if the stay of any such order or proceeding shall thereafter be set aside, or if within sixty (60) days after the entry of a decree appointing a trustee, receiver or liquidator (or other similar official) of such Borrower or any substantial part of the property of such Borrower such appointment shall not have been vacated; or
(i) A final judgment whichSubsidiaries that, together with other outstanding final judgments claims and execution actions against such Borrowerthe Guarantors, the Borrower and its other Subsidiaries exceeds an amount $500,000 in the aggregate equal to five percent (5%) of such Borrower's Total Assets (exclusive of amounts covered by available insurance) shall be rendered against such Borrower and if, within thirty (30) days after entry thereof, such judgment shall not have been discharged or execution thereof stayed pending appeal, or if, within thirty (30) days after the expiration of any such stay, such judgment shall not have been dischargedaggregate; or
(j) Such Borrower or any member of the Controlled Group shall fail to pay when due an amount or amounts aggregating in excess of $500,000 which it is obligated to pay to the PBGC or to a Plan under Title IV of ERISA; or a notice of intent to terminate a Plan or Plans having aggregate Unfunded Liabilities in excess of $500,000 shall be filed under Title IV of ERISA by such Borrower or any member of the Controlled Group, any plan administrator or any combination of the foregoing; or the PBGC shall institute proceedings under Title IV of ERISA to terminate or to cause a trustee to be appointed to administer any such Plan or Plans or a proceeding shall be instituted by a fiduciary of any such Plan or Plans against such Borrower or any member of the Controlled Group to enforce Sections 515 or 4219(c)(5) of ERISA; or a condition shall exist by reason of which the PBGC would be entitled to obtain a decree adjudicating that any such Plan or Plans must be terminated; or there shall occur a complete or partial withdrawal from, or a default, within the meaning of Section 4219(c)(5) of ERISA, with respect to, one or more Multiemployer Plans which could cause such Borrower or one or more members of the Controlled Group to incur a current payment obligation in excess of $500,000; or
(k) Such the Parent Guarantor ceases to own legally or beneficially 100% or more of the voting stock of the Borrower shall cease to be an investment management company (or a Portfolio thereof) registered under more than 51% of the Investment Company Act, or such Borrower's registration under the Investment Company Act, or that voting stock of any Borrower Agent Subsidiary of such the Borrower, shall lapse and the Borrower ceases to own legally or be suspendedbeneficially 100% or more of the voting stock of Subsidiary Guaranty; then, and in any such event, and at any time thereafter, if any Event of Default shall then so long as the same may be continuing with respect to such defaulting Borrower, (i) in the case of any Event of Default specified in paragraphs (g) and (h) abovecontinuing, the Commitments as to such defaulting Borrower shall thereupon automatically be terminated and the principal of and accrued interest on the Loans shall automatically become due and payable without presentment, demand, protest or other notice or formality of any kind, all of which are hereby expressly waived, and (ii) in the case of any other Event of Default specified above, either or both of the following actions may be taken: the Operations Agent may, and upon the written or telephonic (confirmed in writing) request of the Majority Banks shall, by written notice in writing to such defaulting the Borrower (A) declare all amounts owing with respect to this Credit Agreement, the principal of Notes and accrued interest in respect of such defaulting Borrower's Loans the other Loan Documents and all Reimbursement Obligations to be be, and they shall thereupon forthwith due and payablebecome, whereupon the principal of and accrued interest in respect of such Loans shall become forthwith immediately due and payable without presentment, demand, protest or other notice of any kind, all of which are hereby expressly waived by the Borrower; provided that in the event of any Event -------- of Default specified in (S)(S)10.1(h) or 10.1(i), all such Borroweramounts shall become immediately due and payable automatically and without any requirement of notice from the Agent or any Bank.
(i) shall occur, and/or (B) any unused portion of the credit hereunder shall forthwith terminate the Commitments as to such defaulting Borrower, whereupon the Commitments and each of the Banks shall be relieved of all further obligations to make Committed Credit Loans to the Borrower and the Agent shall be relieved of all further obligations to issue, extend or renew the Letter of Credit. If any other Event of Default shall have occurred and be continuing, the Agent may and, upon the request of the Majority Banks, shall, by notice to the Borrower, terminate the unused portion of the credit hereunder, and upon such notice being given such unused portion of the credit hereunder shall terminate immediately and each of the Banks shall be relieved of all further obligations to make Loans and the Agent shall be relieved of all further obligations to issue, extend or renew the Letter of Credit. No termination of the credit hereunder shall relieve the Borrower, the Guarantors or any other of Subsidiaries of the Borrower of any of the Obligations. In case any one or more of the Events of Default shall have occurred and be continuing, and whether or not the Banks shall have accelerated the maturity of the Loans pursuant to (S)10.1, each Bank, if owed any amount with respect to the Loans or the Reimbursement Obligations, may, with the consent of the Majority Banks but not otherwise, proceed to protect and enforce its rights by suit in equity, action at law or other appropriate proceeding, whether for the specific performance of any covenant or agreement contained in this Agreement and the other Loan Documents or any instrument pursuant to which the Obligations to such defaulting Borrower Bank are evidenced, including as permitted by applicable law the obtaining of the ex parte appointment of a receiver, and, if such amount shall forthwith terminate without have become -- ----- due, by declaration or otherwise, proceed to enforce the payment thereof or any other notice legal or equitable right of such Bank. No remedy herein conferred upon any Bank or the Agent or the holder of any kind Note or purchaser of a Letter of Credit Participation is intended to be exclusive of any other remedy and the percentages of the Commitment Fee each and other fees and expenses otherwise payable by such defaulting Borrower hereunder accruing from and after the date of termination every remedy shall be reallocated among the remaining Borrowers PRO RATA on the basis cumulative and shall be in addition to every other remedy given hereunder or now or hereafter existing at law or in equity or by statute or any other provision of the percentages set forth opposite such remaining Borrowers' names on SCHEDULE 1, as in effect at the time of such terminationlaw.
Appears in 1 contract
Sources: Revolving Credit and Term Loan Agreement (CMG Information Services Inc)
Events of Default; Acceleration. If any An "Event of the following events (each an "EVENT OF DEFAULT") shall occur with respect to any BorrowerDefault" occurs if:
(a1) Such Borrower (i) shall default The Company defaults in the payment of any principal of any LoanDebenture when the same shall become due, either by the terms thereof or otherwise as herein provided; or
(2) The Company defaults in the payment of interest accrued thereon or fee due hereunder after on any Debenture when the same becomes due and payable, whether at maturity or by acceleration or otherwise, or payable (iiprovided that such payment is otherwise permitted to be made under the terms of the Senior Credit Agreement) shall and the default in the payment continues for a period of any other amount due hereunder after the same becomes due and payablefive days; or
(b3) Such Borrower The Company or any Subsidiary shall default in the performance of fail to perform or compliance with observe any term covenant contained in Sections 9.01(a) or 9.01(b) and such default shall have continued for more than three (3) Banking Days, or such Borrower shall default in the performance Article IV of or compliance with any term contained in Sections 8.02(d), 8.02(e), 8.02(g), 8.05, 9.02, 9.03 or 9.04; or
(c) Such Borrower shall default in the performance of or compliance with any term contained herein other than those expressly referred to in this Section 10.01, Agreement and such default shall not have been remedied within five (5) Banking Days thirty days after such default shall first have become known to any officer of the Company or written notice thereof shall have been given to such Borrower received by the Operations AgentCompany (regardless of the source of such notice); or
(d4) Such Borrower The Company or any of its Subsidiaries defaults in the performance or observance of any other agreement, term or condition contained in the Debentures, this Agreement or the Related Documents and such default shall not have been remedied within sixty (60) days after such default shall first have become known to any officer of the Company or written notice thereof shall have been received by the Company (regardless of the source of such notice); or
(5) The Company or any Subsidiary shall default (subject to any applicable grace period) in the payment of any principal of or premium, if any, or interest on any other Indebtedness or obligation with respect to borrowed money the outstanding principal of which is, at the time of such default, in an aggregate amount greater than $400,000 or shall default in the performance of, or compliance with, of any material term contained in any other written agreement with the Operations Agent or any Bank pertaining to this Agreement or such Borrower's Loans, and such default shall continue for more than the period of grace, if any, specified therein and shall not have been waived pursuant thereto; or
(e) Any representation, warranty certification or statement made or deemed made by such Borrower in this Agreement or in any certificate, financial statement or other document delivered pursuant hereto shall prove to have been false or incorrect in any material respect when made; or
(f) Except as otherwise provided in this Section 10.01, such Borrower shall default in any payment due on Indebtedness for borrowed money or the deferred purchase price of property, the aggregate outstanding principal amount of which is in excess of five percent (5%) of such Borrower's Total Assets, and such default shall continue for more than the period of grace, if any, applicable thereto and shall not have been waived pursuant thereto and shall permit the holder of such Indebtedness to declare such Indebtedness due and payable before its stated maturity, or in the performance of or compliance with any term of any evidence of instrument evidencing such Indebtedness or of any mortgage, indenture or other agreement relating thereto, and any in each case the effect of such default shall continue for more than the period of graceis to cause, if any, specified therein and shall not have been waived pursuant thereto and shall permit the holder of such Indebtedness or obligation to declare such Indebtedness become due and payable before prior to its stated maturity, unless such Borrower shall be contesting such payment failure to pay or obligation in good faith by appropriate proceedings promptly initiated and diligently conducted and such Borrower perform shall have set aside on its books such reserves, if any, with respect thereto as are required been waived in writing by GAAP and deemed appropriate by such Borrower and its independent public accountants, PROVIDED, that no Event of Default pursuant to paragraphs (b) or (i) of this Section 10.01 shall have occurred and be continuing as a result the requisite holders of such claim having been asserted in respect of such IndebtednessIndebtedness or other obligation; or
(g6) Such Borrower shall discontinue The Company or any Material Subsidiary pursuant to or within the meaning of any Bankruptcy Law:
(A) commences a voluntary case,
(B) consents to the entry of an order for relief against it in an involuntary case,
(C) consents to the appointment of a Custodian of it or for all or substantially all of its business property,
(other than in connection with D) makes a permitted merger or consolidation of such Borrower) or shall make an general assignment for the benefit of its creditors, or shall fail generally to pay its debts as such debts become due, or shall apply for or consent to or
(E) is the appointment of or taking possession by a trustee, receiver or liquidator (or other similar official) of such Borrower or any substantial part debtor in an involuntary case which is not dismissed within 60 days of the property or assets of such Borrower or shall commence a case or have an order for relief entered against it under the federal bankruptcy laws, as now or hereafter constituted, or any other applicable federal or state bankruptcy, insolvency or other similar law, or if any action shall be taken to dissolve or liquidate such Borrower (other than in connection with a permitted merger or consolidation of such Borrower)commencement thereof; or
(h7) If, within sixty A court of competent jurisdiction enters an order or decree under any Bankruptcy Law that:
(60A) days after provides for relief against the commencement against such Borrower of a case under the federal bankruptcy laws, as now or hereafter constituted, Company or any other applicable federal or state bankruptcy, insolvency or other similar law, such case shall have been consented to or shall not have been dismissed or all orders or proceedings thereunder affecting Material Subsidiary in an involuntary case,
(B) appoints a Custodian of the operations or the business of such Borrower stayed, or if the stay of any such order or proceeding shall thereafter be set aside, or if within sixty (60) days after the entry of a decree appointing a trustee, receiver or liquidator (or other similar official) of such Borrower Company or any substantial part Material Subsidiary for all or substantially all of its property, or
(C) orders the liquidation of the property of such Borrower such appointment shall not have been vacatedCompany or any Material Subsidiary; or
(i) 8) A final judgment which, together with other outstanding final judgments against such Borrower, exceeds for the payment of money in an amount in the aggregate equal to five percent (5%) excess of such Borrower's Total Assets (exclusive of amounts covered by available insurance) $250,000 shall be rendered against such Borrower the Company or any of its Subsidiaries (other than any judgment as to which a reputable insurance company shall have accepted full liability (less any applicable deductible) in writing) and if, within thirty shall remain undischarged for a period (30) days after entry thereof, such judgment during which execution shall not have been discharged or execution thereof stayed pending appeal, or if, within thirty (30be effectively stayed) of 30 days after the expiration of any such stay, such judgment shall not have been dischargeddate on which the right to appeal has expired; or
(j9) Such Borrower Any representation or any member of warranty made by the Controlled Group Company in this Agreement or in the Related Documents shall fail to pay when due an amount or amounts aggregating in excess of $500,000 which it is obligated to pay to the PBGC or to a Plan under Title IV of ERISA; or a notice of intent to terminate a Plan or Plans having aggregate Unfunded Liabilities in excess of $500,000 shall be filed under Title IV of ERISA by such Borrower or any member of the Controlled Group, any plan administrator or any combination of the foregoing; or the PBGC shall institute proceedings under Title IV of ERISA to terminate or to cause a trustee prove to be appointed to administer any such Plan materially false or Plans or a proceeding shall be instituted by a fiduciary of any such Plan or Plans against such Borrower or any member of incorrect on the Controlled Group to enforce Sections 515 or 4219(c)(5) of ERISA; or a condition shall exist by reason date as of which the PBGC would be entitled to obtain made which has a decree adjudicating that any such Plan or Plans must be terminatedMaterial Adverse Effect; or there shall occur a complete or partial withdrawal from, or a default, within the meaning of Section 4219(c)(5) of ERISA, with respect to, one or more Multiemployer Plans which could cause such Borrower or one or more members of the Controlled Group to incur a current payment obligation in excess of $500,000; or
(k) Such Borrower shall cease to be an investment management company (or a Portfolio thereof) registered under the Investment Company Act, or such Borrower's registration under the Investment Company Act, or that of any Borrower Agent of such Borrower, shall lapse or be suspended; then, then and in any such event, and at any time thereafter, if any Event of Default shall then be continuing with respect to such defaulting Borrower, case (ia) in upon the case occurrence of any Event of Default specified described in paragraphs clause (g6) and or (h7) above, the Commitments as to such defaulting Borrower shall thereupon automatically be terminated and the unpaid principal amount of and accrued and unpaid interest on the Loans Debentures shall automatically become due and payable payable, without presentment, demand, protest or other notice or formality of any kind, all of which are hereby expressly waivedwaived by the Company, and (iib) in upon the case occurrence of any other Event of Default specified aboveDefault, either in addition to any other rights, powers and remedies permitted by law or both in equity, the holder or holders of greater than 50% in principal amount of the following actions may be taken: the Operations Agent Debentures then outstanding may, and upon at its or their option, by notice in writing to the written or telephonic (confirmed in writing) request Company, declare all of the Majority Banks shallDebentures to be, by written notice to such defaulting Borrower (A) declare and all of the principal of Debentures shall thereupon be and accrued interest in respect of such defaulting Borrower's Loans to be forthwith due and payablebecome, whereupon the principal of and accrued interest in respect of such Loans shall become forthwith immediately due and payable together with interest accrued and unpaid thereon and all other sums due hereunder, without presentment, demand, protest or other notice of any kind, all of which are hereby expressly waived by the Company. Upon the occurrence of any such BorrowerEvent of Default, and/or (B) terminate the Commitments as holders of Debentures may, subject to such defaulting Borrowerthe rights of holders of Senior Debt, whereupon proceed to protect and enforce their rights by an action at law, suit in equity or other appropriate proceeding, whether for the Commitments specific performance of any agreement contained herein or in the Debentures held by them, for an injunction against a violation of any of the Banks to make Committed Credit Loans hereunder to such defaulting Borrower shall forthwith terminate without terms hereof or thereof, or for the pursuit of any other notice remedy which it may have by virtue of this Agreement or pursuant to applicable law. The Company shall pay to the holders of Debentures upon demand the reasonable costs and expenses of collection and of any kind other actions referred to in this Article IX, including without limitation reasonable attorney's fees, expenses and disbursements. No course of dealing and no delay on the percentages part of the Commitment Fee and holders of Debentures in exercising any of their rights shall operate as a waiver thereof or otherwise prejudice the rights of any holder of the Debentures, nor shall any single or partial exercise of any right, power or remedy preclude any other fees and expenses otherwise payable or further exercise thereof or the exercise of any other right, power or remedy hereunder. No right, power or remedy conferred hereby or by such defaulting Borrower hereunder accruing from and after the date of termination Debentures on the holders thereof shall be reallocated among the remaining Borrowers PRO RATA on the basis exclusive of the percentages set forth opposite such remaining Borrowers' names on SCHEDULE 1any other right, as power or remedy referred to herein or therein or now or hereafter available at law, in effect at the time of such terminationequity, by statute or otherwise.
Appears in 1 contract
Sources: Securities Purchase and Redemption Agreement (Stride & Associates Inc)
Events of Default; Acceleration. If any of the following events (each an "EVENT OF DEFAULTEvent of Default") shall occur with respect to any Borroweroccur:
(a) Such the Borrower (i) shall default in the payment of fail to pay when due and payable any principal of or interest on the Loans or any Loan, interest accrued thereon or fee other sum due hereunder under any of the Loan Documents within five days after the same becomes due and payable, whether at maturity or by acceleration or otherwise, or (ii) shall default in the payment of any other amount due hereunder after the same becomes due and payabledue; or
(b) Such the Borrower shall default fail to perform any term, covenant or agreement contained in the performance Loan Documents which is susceptible of or compliance with any term contained in Sections 9.01(a) or 9.01(b) and such default shall have continued for more than three (3) Banking Days, or such Borrower shall default in the performance of or compliance with any term contained in Sections 8.02(d), 8.02(e), 8.02(g), 8.05, 9.02, 9.03 or 9.04; or
(c) Such Borrower shall default in the performance of or compliance with any term contained herein other than those expressly referred to in this Section 10.01cure, and such default shall not have been remedied within five (5) Banking Days after written notice thereof shall have been given to such Borrower by the Operations Agent; or
(d) Such Borrower shall default in the performance of, or compliance with, any material term contained in any other written agreement with the Operations Agent or any Bank pertaining to this Agreement or such Borrower's Loans, and such default failure shall continue for more than 30 days; (c) the period Borrower shall fail to perform any material term, covenant or agreement contained in the Loan Documents which is not susceptible of grace, if any, specified therein and shall not have been waived pursuant theretocure; or
(ed) Any representation, any representation or warranty certification of the Borrower or statement made or deemed made by such Borrower any of its Subsidiaries in this Agreement the Loan Documents or in any certificate, financial statement certificate or other document delivered pursuant hereto notice given in connection therewith shall prove to have been false or incorrect misleading in any material respect when at the time made or deemed to have been made; or
(fe) Except as otherwise provided in this Section 10.01, such the Borrower shall default in or any payment due on Indebtedness for borrowed money or the deferred purchase price of property, the aggregate outstanding principal amount of which is in excess of five percent (5%) of such Borrower's Total Assets, and such default shall continue for more than the period of grace, if any, applicable thereto and shall not have been waived pursuant thereto and shall permit the holder of such Indebtedness to declare such Indebtedness due and payable before its stated maturity, or in the performance of or compliance with any term of any evidence of such Indebtedness or of any mortgage, indenture or other agreement relating thereto, and any such default shall continue for more than the period of grace, if any, specified therein and shall not have been waived pursuant thereto and shall permit the holder of such Indebtedness to declare such Indebtedness due and payable before its stated maturity, unless such Borrower shall be contesting such payment or obligation in good faith by appropriate proceedings promptly initiated and diligently conducted and such Borrower shall have set aside on its books such reserves, if any, with respect thereto as are required by GAAP and deemed appropriate by such Borrower and its independent public accountants, PROVIDED, that no Event of Default pursuant to paragraphs (b) or Subsidiaries (i) of this Section 10.01 shall have occurred and be continuing as a result of such claim having been asserted in respect of such Indebtedness; or
(g) Such Borrower shall discontinue its business (other than in connection with a permitted merger or consolidation of such Borrower) or shall make an assignment for the benefit of creditors, (ii) shall be adjudicated bankrupt or insolvent, (iii) shall fail generally to pay its debts as such debts become dueseek the appointment of, or shall apply for or consent to be the appointment subject of or taking possession by an order appointing, a trustee, liquidator or receiver as to all or liquidator (or other similar official) of such Borrower or any substantial part of the property its assets, (iv) shall commence, approve or assets of such Borrower or shall commence a consent to, any case or have proceeding under any Insolvency Law and, in the case of an involuntary case or proceeding, such case or proceeding is not dismissed within 60 days following the commencement thereof, or (v) shall be the subject of an order for relief entered against it in an involuntary case under the federal bankruptcy laws, as now or hereafter constituted, or any other applicable federal or state bankruptcy, insolvency or other similar law, or if any action ; (f) the Borrower and its Subsidiaries shall be taken unable to dissolve pay debts as they mature; (g) there shall remain undischarged for more than 30 days any final judgment or liquidate such Borrower (other than in connection with a permitted merger or consolidation of such Borrower); or
(h) If, within sixty (60) days after execution action against the commencement against such Borrower of a case under the federal bankruptcy laws, as now or hereafter constituted, or any other applicable federal or state bankruptcy, insolvency or other similar law, such case shall have been consented to or shall not have been dismissed or all orders or proceedings thereunder affecting the operations or the business of such Borrower stayed, or if the stay of any such order or proceeding shall thereafter be set aside, or if within sixty (60) days after the entry of a decree appointing a trustee, receiver or liquidator (or other similar official) of such Borrower or any substantial part of the property of such Borrower such appointment shall not have been vacated; or
(i) A final judgment whichits Subsidiaries that, together with other outstanding final judgments claims and execution actions against such Borrower, the Borrower and its Subsidiaries exceeds an amount $1,000,000 in the aggregate equal aggregate; (h) there has been an event of default by the Borrower under the Services Agreement entitling the Lender to five percent terminate the Services Agreement; (5%i) CellNet shall cease to own 100% of such Borrower's Total Assets (exclusive the voting stock, directly or indirectly, of amounts covered by available insurance) shall be rendered against such the Borrower and if, within thirty (30) days after entry thereof, such judgment shall not have been discharged or execution thereof stayed pending appeal, or if, within thirty (30) days after the expiration of any such stay, such judgment shall not have been discharged; or
(j) Such Borrower the License Agreement terminates or is amended in any member of the Controlled Group shall fail to pay when due an amount or amounts aggregating in excess of $500,000 which it is obligated to pay respect adverse to the PBGC or to a Plan under Title IV of ERISA; or a notice of intent to terminate a Plan or Plans having aggregate Unfunded Liabilities in excess of $500,000 shall be filed under Title IV of ERISA by such Borrower or any member of the Controlled Groupwithout Lender's prior consent, any plan administrator or any combination of the foregoing; or the PBGC shall institute proceedings Borrower defaults in its obligations under Title IV of ERISA to terminate or to cause a trustee to be appointed to administer any such Plan or Plans or a proceeding shall be instituted by a fiduciary of any such Plan or Plans against such Borrower or any member of the Controlled Group to enforce Sections 515 or 4219(c)(5) of ERISALicense Agreement; or a condition shall exist by reason of which the PBGC would be entitled to obtain a decree adjudicating that any such Plan or Plans must be terminated; or there shall occur a complete or partial withdrawal fromTHEN, or a default, within the meaning of Section 4219(c)(5) of ERISA, with respect to, one or more Multiemployer Plans which could cause such Borrower or one or more members of the Controlled Group to incur a current payment obligation in excess of $500,000; or
(k) Such Borrower shall cease to be an investment management company (or a Portfolio thereof) registered under the Investment Company Act, or such Borrower's registration under the Investment Company Act, or that of any Borrower Agent of such Borrower, shall lapse or be suspended; then, and in any such event, and at any time thereafter, if any Event of Default shall then be continuing with respect to such defaulting Borrower, :
(i1) in In the case of any Event of Default specified in paragraphs (g) and (hunder clause 10(e) above, the Commitments as to such defaulting Borrower Commitment shall thereupon automatically be terminated terminate, and the entire unpaid principal amount of the Loans, all interest accrued and accrued interest on unpaid thereof, and all other amounts payable hereunder and under the Loans other Loan Documents shall automatically become forthwith due and payable payable, without presentment, demand, protest or other notice or formality of any kind, all of which are hereby expressly waived, and (ii) in the case of any other Event of Default specified above, either or both of the following actions may be taken: the Operations Agent may, and upon the written or telephonic (confirmed in writing) request of the Majority Banks shall, by written notice to such defaulting Borrower (A) declare the principal of and accrued interest in respect of such defaulting Borrower's Loans to be forthwith due and payable, whereupon the principal of and accrued interest in respect of such Loans shall become forthwith due and payable without presentment, demand, protest or other notice of any kind, all of which are hereby expressly waived by such the Borrower; and
(2) In the case of any Event of Default other than under clause 10(e) above, the Lender may, by written notice to the Borrower, and/or (B) terminate the Commitments as to such defaulting Borrower, whereupon Commitment and/or declare the Commitments unpaid principal amount of the Banks Loans, all interest accrued and unpaid thereof, and all other amounts payable hereunder and under the other Loan Documents to make Committed Credit Loans hereunder to such defaulting Borrower shall be forthwith terminate due and payable, without any other presentment, demand, protest or further notice of any kind kind, all of which are hereby expressly waived by the Borrower.
(3) In case any one or more of the Events of Default shall have occurred and be continuing, and whether or not the Lender shall have accelerated the maturity of the Loans, the Lender may proceed to protect and enforce its rights by suit in equity, action at law or other appropriate proceeding, whether for the specific performance of any covenant or agreement contained in this Loan Agreement and the percentages other Loan Documents or any instrument pursuant to which the Obligations to the Lender are evidenced, including as permitted by applicable law the obtaining of the Commitment Fee appointment of a receiver, and, if such amount shall have become due, by declaration or otherwise, proceed to enforce the payment thereof or any other legal or equitable right of the Lender. No remedy herein conferred upon the Lender is intended to be exclusive of any other remedy and other fees each and expenses otherwise payable by such defaulting Borrower hereunder accruing from and after the date of termination every remedy shall be reallocated among cumulative and in addition to every other remedy hereunder, under the remaining Borrowers PRO RATA on the basis of the percentages set forth opposite such remaining Borrowers' names on SCHEDULE 1other Loan Documents, as now or hereafter existing at law or in effect at the time of such terminationequity or otherwise.
Appears in 1 contract
Events of Default; Acceleration. If any one or more of the following events, herein called Events of Default, shall occur, for any reason whatsoever, and whether such occurrence shall, on the part of any of the following events (each an "EVENT OF DEFAULT") Obligors, be voluntary or involuntary or come about or be effected by operation of law or pursuant to or in compliance with any judgment, decree or order of a court of competent jurisdiction or any order, rule or regulation of any administrative or other governmental authority and such Event of Default shall occur with respect to any Borrowerbe continuing:
(a) Such Borrower (i) default shall default be made in the payment of the principal of any LoanNote or the premium thereon, interest accrued thereon or fee due hereunder after if any, when and as the same becomes shall become due and payable, whether at maturity or at a date fixed for prepayment or by acceleration or otherwise, or (ii) shall default in the payment of any other amount due hereunder after the same becomes due and payable; or
(b) Such Borrower default shall default be made in the performance payment of or compliance with any term contained in Sections 9.01(a) or 9.01(b) installment of interest on any Note according to its terms when and as the same shall become due and payable and such default shall have continued continue for more than three (3) Banking Days, or a period of ten days following written notice of such Borrower shall default in to the performance of or compliance with any term contained in Sections 8.02(d), 8.02(e), 8.02(g), 8.05, 9.02, 9.03 or 9.04Obligors; or
(c) Such Borrower default or breach shall default be or shall have been made in the due observance or performance of any representation, covenant, condition or compliance with agreement on the part of any term contained herein other than those expressly referred of the Obligors to in this Section 10.01, be observed or performed pursuant to the Purchase Agreement or the terms hereof and such default shall not have been remedied within five (5) Banking Days continue for 15 days after written notice thereof thereof, specifying such default and requesting that the same be remedied, shall have been given to such Borrower the Corporation by the Operations Agentholder or holders of at least 25% of the principal amount of the Notes then outstanding (the Corporation to give forthwith to all other holders of Notes at the time outstanding written notice of the receipt of such notice specifying the default referred to therein); or
(d) Such Borrower shall default the entry of a decree or order for relief by a court having jurisdiction in the performance of, or compliance with, any material term contained in any other written agreement with the Operations Agent or any Bank pertaining to this Agreement or such Borrower's Loans, and such default shall continue for more than the period of grace, if any, specified therein and shall not have been waived pursuant thereto; or
(e) Any representation, warranty certification or statement made or deemed made by such Borrower in this Agreement or in any certificate, financial statement or other document delivered pursuant hereto shall prove to have been false or incorrect in any material respect when made; or
(f) Except as otherwise provided in this Section 10.01, such Borrower shall default in any payment due on Indebtedness for borrowed money or the deferred purchase price of property, the aggregate outstanding principal amount of which is in excess of five percent (5%) of such Borrower's Total Assets, and such default shall continue for more than the period of grace, if any, applicable thereto and shall not have been waived pursuant thereto and shall permit the holder of such Indebtedness to declare such Indebtedness due and payable before its stated maturity, or in the performance of or compliance with any term of any evidence of such Indebtedness or of any mortgage, indenture or other agreement relating thereto, and any such default shall continue for more than the period of grace, if any, specified therein and shall not have been waived pursuant thereto and shall permit the holder of such Indebtedness to declare such Indebtedness due and payable before its stated maturity, unless such Borrower shall be contesting such payment or obligation in good faith by appropriate proceedings promptly initiated and diligently conducted and such Borrower shall have set aside on its books such reserves, if any, with respect thereto as are required by GAAP and deemed appropriate by such Borrower and its independent public accountants, PROVIDED, that no Event of Default pursuant to paragraphs (b) or (i) of this Section 10.01 shall have occurred and be continuing as a result of such claim having been asserted premises in respect of such Indebtedness; or
(g) Such Borrower shall discontinue its business (other than any Obligor in connection with a permitted merger or consolidation of such Borrower) or shall make an assignment for the benefit of creditors, or shall fail generally to pay its debts as such debts become due, or shall apply for or consent to the appointment of or taking possession by a trustee, receiver or liquidator (or other similar official) of such Borrower or any substantial part of the property or assets of such Borrower or shall commence a involuntary case or have an order for relief entered against it under the federal bankruptcy laws, as now constituted or hereafter constitutedamended, or any other applicable federal or state bankruptcy, insolvency or other similar law, or if appointing a receiver, liquidator, assignee, custodian, trustee, sequestrator (or similar official) of any action shall be taken to dissolve of the Obligors or liquidate for any substantial part of any of their respective property, or ordering the winding-up or liquidation of any of their affairs and the continuance of any such Borrower (other than decree or order unstayed and in connection with effect for a permitted merger or consolidation period of such Borrower)30 consecutive days; or
(he) If, within sixty (60) days after the commencement against such Borrower by any of the Obligors of a voluntary case under the federal bankruptcy laws, as now constituted or hereafter constitutedamended, or any other applicable federal or state bankruptcy, insolvency or other similar lawlaws, such case shall have been consented to or shall not have been dismissed or all orders or proceedings thereunder affecting the operations or the business consent by any Obligor to the appointment of such Borrower stayedor taking possession by a receiver, or if the stay of any such order or proceeding shall thereafter be set asideliquidator, or if within sixty (60) days after the entry of a decree appointing a assignee, trustee, receiver or liquidator custodian, sequestrator (or other similar official) of such Borrower any of the Obligors or for any substantial part of any of their respective property, or the property making by any of the Obligors of any assignment for the benefit of creditors, or the failure of any of the Obligors generally to pay its debts as such Borrower such appointment shall not have been vacateddebts become due, or the taking of corporate action by any of the Obligors in furtherance of or which might reasonably be expected to result in any of the foregoing; or
(f) (i) A failure to make any payment in respect of any Debt of the Obligors having an aggregate principal amount (including undrawn committed or available amounts and including amounts owing to all creditors under any combined or syndicated credit arrangement) of more than $50,000 when due (whether by scheduled maturity, required prepayment, acceleration, demand or otherwise) and such failure continues after the applicable grace or notice period, if any, specified in the document relating thereto (unless such failure is waived prior to the holders of the Notes declaring a default pursuant to this Section 15); or (ii) failure by the Obligors to perform or observe any other condition or covenant, or any other event shall occur or condition exist, under any agreement or instrument relating to any such Debt referred to in clause (i) above, and such failure continues after the applicable grace or notice period, if any, specified in the document relating thereto if the effect of such failure, event or condition is to cause, or to permit the holder or holders of such Debt or beneficiary or beneficiaries of such Debt (or a trustee or agent on behalf of such holder or holders or beneficiary or beneficiaries) to cause such Debt to be declared to be due and payable prior to its stated maturity (unless such failure is waived prior to the holders of the Notes declaring a default pursuant to this Section 15); or
(g) final judgment which, together with other outstanding final judgments against such Borrower, exceeds an amount for the payment of money in the aggregate equal to five percent (5%) of such Borrower's Total Assets (exclusive of amounts covered by available insurance) excess $50,000 shall be rendered against such Borrower the Obligors and if, within thirty (30) the same shall remain undischarged for a period of 30 days after entry thereof, such judgment during which execution shall not have been discharged or execution thereof stayed pending appeal, or if, within thirty (30) days after the expiration of any such stay, such judgment shall not have been discharged; orbe effectively stayed;
(j) Such Borrower or any member of the Controlled Group shall fail to pay when due an amount or amounts aggregating in excess of $500,000 which it is obligated to pay to the PBGC or to a Plan under Title IV of ERISA; or a notice of intent to terminate a Plan or Plans having aggregate Unfunded Liabilities in excess of $500,000 shall be filed under Title IV of ERISA by such Borrower or any member of the Controlled Group, any plan administrator or any combination of the foregoing; or the PBGC shall institute proceedings under Title IV of ERISA to terminate or to cause a trustee to be appointed to administer any such Plan or Plans or a proceeding shall be instituted by a fiduciary of any such Plan or Plans against such Borrower or any member of the Controlled Group to enforce Sections 515 or 4219(c)(5) of ERISA; or a condition shall exist by reason of which the PBGC would be entitled to obtain a decree adjudicating that any such Plan or Plans must be terminated; or there shall occur a complete or partial withdrawal from, or a default, within the meaning of Section 4219(c)(5) of ERISA, with respect to, one or more Multiemployer Plans which could cause such Borrower or one or more members of the Controlled Group to incur a current payment obligation in excess of $500,000; or
(k) Such Borrower shall cease to be an investment management company (or a Portfolio thereof) registered under the Investment Company Act, or such Borrower's registration under the Investment Company Act, or that of any Borrower Agent of such Borrower, shall lapse or be suspended; then, and in any such event, and at any time thereafter, if any Event of Default shall then be continuing with respect to such defaulting Borrower, (i) in the case of any Event of Default specified in paragraphs (g) and (h) above, the Commitments a Change of Control (as to such defaulting Borrower defined below) shall thereupon automatically be terminated and the principal of and accrued interest on the Loans shall automatically become due and payable without presentment, demand, protest or other notice or formality of any kind, all of which are hereby expressly waived, and (ii) in the case of any other Event of Default specified above, either or both of the following actions may be taken: the Operations Agent may, and upon the written or telephonic (confirmed in writing) request of the Majority Banks shall, by written notice to such defaulting Borrower (A) declare the principal of and accrued interest in respect of such defaulting Borrower's Loans to be forthwith due and payable, whereupon the principal of and accrued interest in respect of such Loans shall become forthwith due and payable without presentment, demand, protest or other notice of any kind, all of which are hereby expressly waived by such Borrower, and/or (B) terminate the Commitments as to such defaulting Borrower, whereupon the Commitments of the Banks to make Committed Credit Loans hereunder to such defaulting Borrower shall forthwith terminate without any other notice of any kind and the percentages of the Commitment Fee and other fees and expenses otherwise payable by such defaulting Borrower hereunder accruing from and after the date of termination shall be reallocated among the remaining Borrowers PRO RATA on the basis of the percentages set forth opposite such remaining Borrowers' names on SCHEDULE 1, as in effect at the time of such termination.have occurred;
Appears in 1 contract
Sources: Note and Warrant Purchase Agreement (Furman Selz Sbic L P)
Events of Default; Acceleration. If any of the following ----------------- ------------ events (each an "EVENT OF DEFAULTEvents of Default") shall occur with respect to any Borrower:occur: -----------------
(a) Such the Borrower shall fail to pay (i) shall default in the payment of any principal of any Loan, or interest accrued thereon or fee due hereunder after on the same becomes due and payable, whether at maturity or by acceleration or otherwise, Loans or (ii) shall default in the payment of any other amount due hereunder Reimbursement Obligations not funded by a Revolving Credit Loan pursuant to Section 2(f), within two (2) days after the same becomes when due and payable; or;
(b) Such the Borrower or any Guarantor shall default in fail to comply with the performance of or compliance with any term covenant contained in Sections 9.01(a(S)11(a)(i)(E), (F), (G) and (H), (S)11(a)(ii), (S)11(a)(iii)(B), (D) and (F), (S)11(a)(iv), (S)11(a)(vi), (S)11(a)(vii) or 9.01(b(S)11(b)(ii) hereof and such default failure shall have continued continue for more than three twenty (320) Banking Days, days after the earlier of (i) written notice thereof to the Borrower by the Administrative Agent or such (ii) actual knowledge thereof by the Borrower shall default in the performance of or compliance with any term contained in Sections 8.02(d), 8.02(e), 8.02(g), 8.05, 9.02, 9.03 or 9.04; orGuarantor;
(c) Such the Borrower or any Guarantor shall default fail to perform any term, covenant or agreement contained in this Agreement or any of the performance of or compliance with any term contained herein other Loan Documents (other than those expressly referred to specified in this Section 10.01, clauses (a) and such default shall not have been remedied within five (5b) Banking Days after written notice thereof shall have been given to such Borrower by the Operations Agent; orabove);
(d) Such any representation or warranty of the Borrower shall default or any Guarantor in the performance of, Loan Documents or compliance with, in any certificate or notice given in connection therewith shall have been false or misleading in any material term contained in any other written agreement with respect at the Operations Agent time made or any Bank pertaining deemed to this Agreement or such Borrower's Loans, and such default shall continue for more than the period of grace, if any, specified therein and shall not have been waived pursuant thereto; ormade;
(e) Any representation, warranty certification the Borrower or statement made any Guarantor shall be in default beyond any applicable grace period under any agreement or deemed made by such Borrower in this Agreement agreements evidencing Indebtedness owing to any Bank or any affiliates of any Bank or in excess of $250,000 in aggregate principal amount, or shall fail to pay such Indebtedness when due, or within any certificate, financial statement or other document delivered pursuant hereto shall prove to have been false or incorrect in any material respect when made; orapplicable period of grace;
(f) Except as otherwise provided any of the Loan Documents shall cease to be in this Section 10.01, such Borrower shall default in any payment due on Indebtedness for borrowed money or the deferred purchase price of property, the aggregate outstanding principal amount of which is in excess of five percent (5%) of such Borrower's Total Assets, full force and such default shall continue for more than the period of grace, if any, applicable thereto and shall not have been waived pursuant thereto and shall permit the holder of such Indebtedness to declare such Indebtedness due and payable before its stated maturity, or in the performance of or compliance with any term of any evidence of such Indebtedness or of any mortgage, indenture or other agreement relating thereto, and any such default shall continue for more than the period of grace, if any, specified therein and shall not have been waived pursuant thereto and shall permit the holder of such Indebtedness to declare such Indebtedness due and payable before its stated maturity, unless such Borrower shall be contesting such payment or obligation in good faith by appropriate proceedings promptly initiated and diligently conducted and such Borrower shall have set aside on its books such reserves, if any, with respect thereto as are required by GAAP and deemed appropriate by such Borrower and its independent public accountants, PROVIDED, that no Event of Default pursuant to paragraphs (b) or (i) of this Section 10.01 shall have occurred and be continuing as a result of such claim having been asserted in respect of such Indebtedness; oreffect;
(g) Such the Borrower shall discontinue its business or any Guarantor (other than in connection with a permitted merger or consolidation of such Borroweri) or shall make an assignment for the benefit of creditors, (ii) shall be adjudicated bankrupt or insolvent, (iii) shall fail generally to pay its debts as such debts become dueseek the appointment of, or shall apply for or consent to be the appointment subject of or taking possession by an order appointing, a trustee, liquidator or receiver as to all or liquidator (or other similar official) of such Borrower or any substantial part of the property its assets, (iv) shall commence, approve or assets of such Borrower or shall commence a consent to, any case or have proceeding under any bankruptcy, reorganization or similar law and, in the case of an involuntary case or proceeding, such case or proceeding is not dismissed within 45 days following the commencement thereof, or (v) shall be the subject of an order for relief entered against it in an involuntary case under the federal bankruptcy laws, as now or hereafter constituted, or any other applicable federal or state bankruptcy, insolvency or other similar law, or if any action shall be taken to dissolve or liquidate such Borrower (other than in connection with a permitted merger or consolidation of such Borrower); or;
(h) If, within sixty (60) days after the commencement against such Borrower of a case under the federal bankruptcy laws, as now or hereafter constituted, or any other applicable federal or state bankruptcy, insolvency or other similar law, such case shall have been consented to or shall not have been dismissed or all orders or proceedings thereunder affecting the operations or the business of such Borrower stayed, or if the stay of any such order or proceeding shall thereafter be set aside, or if within sixty (60) days after the entry of a decree appointing a trustee, receiver or liquidator (or other similar official) of such Borrower or any substantial part of the property of such Borrower such appointment Guarantor shall not have been vacated; orbe unable to pay debts as they mature;
(i) A there shall remain undischarged for more than 30 days any final judgment whichor execution action against the Borrower or any Guarantor that, together with other outstanding final judgments claims and execution actions against such Borrowerthe Borrower and the Guarantors, exceeds an amount $750,000 in the aggregate equal to five percent (5%) of such Borrower's Total Assets (exclusive of amounts covered by available insurance) shall be rendered against such Borrower and if, within thirty (30) days after entry thereof, such judgment shall not have been discharged or execution thereof stayed pending appeal, or if, within thirty (30) days after the expiration of any such stay, such judgment shall not have been discharged; oraggregate;
(j) Such Borrower or any member of the Controlled Group shall fail to pay when due an amount or amounts aggregating in excess of $500,000 which it is obligated to pay to the PBGC or to a Plan under Title IV of ERISA; or a notice of intent to terminate a Plan or Plans having aggregate Unfunded Liabilities in excess of $500,000 shall be filed under Title IV of ERISA by such Borrower or any member of the Controlled Group, any plan administrator or any combination of the foregoing; or the PBGC shall institute proceedings under Title IV of ERISA to terminate or to cause a trustee to be appointed to administer any such Plan or Plans or a proceeding shall be instituted by a fiduciary of any such Plan or Plans against such Borrower or any member of the Controlled Group to enforce Sections 515 or 4219(c)(5) of ERISA; or a condition shall exist by reason of which the PBGC would be entitled to obtain a decree adjudicating that any such Plan or Plans must be terminated; or there shall occur a complete default not cured or partial withdrawal from, or a default, waived within the meaning applicable period of Section 4219(c)(5) of ERISAgrace, if any, under any Franchise Agreement, any Development Agreement, the Indenture, any FFCA-Related Lease, any FFCA Loan Document or any Forward Commitment Document by any party thereto or any Franchise Agreement, any Development Agreement or any FFCA-Related Lease is canceled, terminated, revoked or rescinded, otherwise than with respect to, one the express prior written consent or more Multiemployer Plans which could cause such Borrower or one or more members approval of the Controlled Group to incur a current payment obligation in excess of $500,000; orMajority Banks;
(k) Such there shall occur a Change of Control of the Borrower;
(l) the Borrower shall cease to be an investment management company (at any time, legally or a Portfolio thereof) registered under beneficially, own less than 100% of the Investment Company Actcapital stock of each of the Guarantors; THEN, or such Borrower's registration under the Investment Company Act, or that of any Borrower Agent of such Borrower, shall lapse or be suspended; then, and in any such event, and at any time thereafter, if any Event of Default shall then :
(1) so long as the same may be continuing with respect to such defaulting Borrower, (i) in the case of any Event of Default specified in paragraphs (g) and (h) abovecontinuing, the Commitments as to such defaulting Borrower shall thereupon automatically be terminated and the principal of and accrued interest on the Loans shall automatically become due and payable without presentment, demand, protest or other notice or formality of any kind, all of which are hereby expressly waived, and (ii) in the case of any other Event of Default specified above, either or both of the following actions may be taken: the Operations Administrative Agent may, and and, upon the written or telephonic (confirmed in writing) request of the Majority Banks Banks, shall, by written notice in writing to such defaulting the Borrower (A) declare all amounts owing with respect to this Agreement, the principal of Notes and accrued interest in respect of such defaulting Borrower's Loans the other Loan Documents and all Reimbursement Obligations to be be, and they shall thereupon forthwith due and payablebecome, whereupon the principal of and accrued interest in respect of such Loans shall become forthwith immediately due and payable without presentment, demand, protest or other notice of any kind, all of which are hereby expressly waived by the Borrower; provided that in the event of any Event of Default specified in (g) or (h), all such Borroweramounts shall become immediately due and payable automatically and without any requirement of notice from the Administrative Agent or any Bank.
(2) If any one or more of the Events of Default specified in (g) or (h) shall occur, and/or (B) any unused portion of the Total Commitment shall forthwith terminate the Commitments as to such defaulting Borrower, whereupon the Commitments and each of the Banks shall be relieved of all further obligations to make Committed Loans to the Borrower, and the Administrative Agent shall be relieved of all further obligations to issue, extend or renew Letters of Credit. If any other Event of Default shall have occurred and be continuing, or if on any Drawdown Date or other date for issuing, extending or renewing any Letter of Credit the conditions precedent to the making of the Loans hereunder to be made on such Drawdown Date or (as the case may be) to issuing, extending or renewing such Letter of Credit on such other date are not satisfied, the Administrative Agent and, upon the request of the Majority Banks, shall, by notice to the Borrower, terminate the unused portion of the Total Commitments, and upon such notice being given such unused portion of the Total Commitments, shall terminate immediately and each of the Banks shall be relieved of all further obligations to make Loans and the Administrative Agent shall be relieved of all further obligations to issue, extend or renew Letters of Credit. No termination of the Total Commitments, shall relieve the Borrower or the Guarantors of any of the Obligations.
(3) In case any one or more of the Events of Default shall have occurred and be continuing, and whether or not the Banks shall have accelerated the maturity of the Loans, each Bank, if owed any amount with respect to the Loans or the Reimbursement Obligations, may, with the consent of the Majority Banks but not otherwise, proceed to protect and enforce its rights by suit in equity, action at law or other appropriate proceeding, whether for the specific performance of any covenant or agreement contained in this Agreement and the other Loan Documents or any instrument pursuant to which the Obligations to such defaulting Borrower Bank are evidenced, including as permitted by applicable law the obtaining of the appointment of a receiver, and, if such amount shall forthwith terminate without have become due, by declaration or otherwise, proceed to enforce the payment thereof or any other notice legal or equitable right of such Bank. No remedy herein conferred upon any Bank or the Administrative Agent or the holder of any kind Note or purchaser of any Letter of Credit Participation is intended to be exclusive of any other remedy and each and every remedy shall be cumulative and shall be in addition to every other remedy given hereunder or now or hereafter existing at law or in equity or by statute or any other provision of law.
(4) In the event that, following the occurrence or during the continuance of any Default or Event of Default, the Administrative Agent or any Bank, as the case may be, receives any monies in connection with the enforcement of any the Loan Documents, such monies shall be distributed for application as follows:
(a) First, to the payment of, or (as the case may be) the reimbursement of the Administrative Agent for or in respect of all reasonable costs, expenses, disbursements and losses which shall have been incurred or sustained by the Administrative Agent in connection with the collection of such monies by the Administrative Agent, for the exercise, protection or enforcement by the Administrative Agent of all or any of the rights, remedies, powers and privileges of the Administrative Agent under this Agreement or any of the other Loan Documents or in respect of the Collateral or in support of any provision of adequate indemnity to the Administrative Agent against any taxes or liens which by law shall have, or may have, priority over the rights of the Administrative Agent to such monies;
(b) Second, to all other Obligations in such order or preference as the Majority Banks may determine; provided, however, that distributions in respect of such obligations shall be made (i) pari passu among ---- ----- Obligations with respect to the Administrative Agent's fee payable pursuant to (S)6(a) and all other Obligations and (ii) Obligations owing to the Banks with respect to each type of Obligation such as interest, principal, fees and expenses, shall be made among the Banks pro rata; and provided, further, that the Administrative Agent may in --- ---- --------- ------- its discretion make proper allowance to take into account any Obligations not then due and payable;
(c) Third, upon payment and satisfaction in full or other provisions for payment in full satisfactory to the Banks and the percentages Administrative Agent of all of the Commitment Fee and other fees and expenses otherwise payable by such defaulting Borrower hereunder accruing from and after Obligations, to the date payment of termination any obligations required to be paid pursuant to (S)9-504(1)(c) of the Uniform Commercial Code of the Commonwealth of Massachusetts; and
(d) Fourth, the excess, if any, shall be reallocated among returned to the remaining Borrowers PRO RATA on the basis of the percentages set forth opposite Borrower or to such remaining Borrowers' names on SCHEDULE 1, other Persons as in effect at the time of such terminationare entitled thereto.
Appears in 1 contract
Events of Default; Acceleration. If any of the following conditions or events (each an "EVENT OF DEFAULTEvents of Default") shall occur with respect to any Borrower:and be continuing
(a) Such Borrower (i) the Obligors shall default in the payment of any principal of or Make Whole Amount, if any, on any Loan, interest accrued thereon or fee due hereunder after Note when the same becomes due and payable, whether at maturity or at a date fixed for prepayment or by acceleration declaration or otherwise, or ; or
(iib) the Obligors shall default in the payment of any other interest on any Note or any amount due hereunder and payable under any Operative Agreement for more than 5 Business Days after the same becomes due and payable; or
(bc) Such Borrower the Obligors shall default in the performance of or compliance with any term contained in Sections 9.01(aSection 7(h) or 9.01(bany of Sections 10.1 through 10.8, inclusive and Section 10.10(b); or
(d) and such default shall have continued for more than three (3) Banking Dayseither Obligor, the general partner of Star Gas, the Public Partnership or such Borrower any Restricted Subsidiary shall default in the performance of or compliance with any other term contained in Sections 8.02(d), 8.02(e), 8.02(g), 8.05, 9.02, 9.03 this Agreement or 9.04; or
(c) Such Borrower shall default in the performance of or compliance with any term contained herein other than those expressly referred to in this Section 10.01, Operative Agreement and such default shall not have been remedied within five (5) Banking Days 30 days after such default shall first have become known to any officer of such Person or written notice thereof shall have been given to such Borrower received by either Obligor or the Operations Agentgeneral partner of Star Gas; or
(de) Such Borrower any representation or warranty made in writing by or on behalf of either Obligor or any of their Affiliates in this Agreement, any other Operative Agreement or in any instrument furnished in connection with the transactions contemplated by this Agreement shall prove to have been false or incorrect in any material respect on the date as of which made or deemed made; or
(f) either Obligor or any Restricted Subsidiary (as principal or guarantor or other surety) shall default in the performance ofpayment of any amount of principal of or premium or interest on the Bank Credit Facilities, or compliance with, any material term contained other Indebtedness which is outstanding in any a principal amount of at least $2,000,000 in the aggregate (other written agreement with than the Operations Agent Notes); or any event shall occur or condition shall exist in respect of the Bank pertaining Credit Facilities, or other Indebtedness which is outstanding in a principal amount of at least $2,000,000 or under any evidence of any such Indebtedness or of any mortgage, indenture or other agreement relating to this Agreement the Bank Credit Facilities or such Borrower's Loansother Indebtedness the effect of which is to cause (or to permit one or more Persons to cause) such Bank Credit Facilities or other Indebtedness to become due before its stated maturity or before its regularly scheduled dates of payment or to permit the holders thereof to cause either Obligor or any Restricted Subsidiary to repurchase or repay such Bank Credit Facilities or other Indebtedness, and such default default, event or condition shall continue for more than the period of grace, if any, specified therein and shall not have been waived pursuant thereto; or
(eg) Any representationfiling by or on the behalf of either Obligor or the general partner of Star Gas of a voluntary petition or an answer seeking reorganization, warranty certification arrangement, readjustment of its debts or statement made for any other relief under any bankruptcy, reorganization, compromise, arrangement, insolvency, readjustment of debt, dissolution or deemed made liquidation or similar act or law, state or Federal, now or hereafter existing ("Bankruptcy Law"), or any action by such Borrower in this Agreement either Obligor or in any certificatethe general partner of Star Gas for, financial statement or consent or acquiescence to, the appointment of receiver, trustee or other document delivered pursuant hereto shall prove to have been false or incorrect in any material respect when made; or
(f) Except as otherwise provided in this Section 10.01custodian of either Obligor, such Borrower shall default in any payment due on Indebtedness for borrowed money or the deferred purchase price general partner of property, the aggregate outstanding principal amount of which is in excess of five percent (5%) of such Borrower's Total Assets, and such default shall continue for more than the period of grace, if any, applicable thereto and shall not have been waived pursuant thereto and shall permit the holder of such Indebtedness to declare such Indebtedness due and payable before its stated maturityStar Gas, or in of all or a substantial part of its property; or the performance making by either Obligor or the general partner of or compliance with any term Star Gas of any evidence of such Indebtedness or of any mortgage, indenture or other agreement relating thereto, and any such default shall continue for more than the period of grace, if any, specified therein and shall not have been waived pursuant thereto and shall permit the holder of such Indebtedness to declare such Indebtedness due and payable before its stated maturity, unless such Borrower shall be contesting such payment or obligation in good faith by appropriate proceedings promptly initiated and diligently conducted and such Borrower shall have set aside on its books such reserves, if any, with respect thereto as are required by GAAP and deemed appropriate by such Borrower and its independent public accountants, PROVIDED, that no Event of Default pursuant to paragraphs (b) or (i) of this Section 10.01 shall have occurred and be continuing as a result of such claim having been asserted in respect of such Indebtedness; or
(g) Such Borrower shall discontinue its business (other than in connection with a permitted merger or consolidation of such Borrower) or shall make an assignment for the benefit of creditors, or shall fail generally the admission by either Obligor or the general partner of Star Gas in writing of its inability to pay its debts as such debts they become due, or shall apply for or consent to the appointment of or taking possession by a trustee, receiver or liquidator (or other similar official) of such Borrower or any substantial part of the property or assets of such Borrower or shall commence a case or have an order for relief entered against it under the federal bankruptcy laws, as now or hereafter constituted, or any other applicable federal or state bankruptcy, insolvency or other similar law, or if any action shall be taken to dissolve or liquidate such Borrower (other than in connection with a permitted merger or consolidation of such Borrower); or
(h) Iffiling of any involuntary petition against either Obligor or the general partner of Star Gas in bankruptcy or seeking reorganization, within sixty (60) days after arrangement, readjustment of its debts or for any other relief under any Bankruptcy Law and an order for relief by a court having jurisdiction in the commencement against such Borrower of a case under the federal bankruptcy laws, as now premises shall have been issued or hereafter constituted, entered therein; or any other similar relief shall be granted under any applicable federal Federal or state bankruptcylaw; or a decree or order of a court having jurisdiction in the premises for the appointment of a receiver, insolvency liquidator, sequestrator, trustee or other officer having similar law, such case powers over either Obligor or the general partner of Star Gas or over all or a part of its property shall have been consented to or shall not have been dismissed or all orders or proceedings thereunder affecting the operations entered; or the business involuntary appointment of such Borrower stayedan interim receiver, trustee or if other custodian of either Obligor or the stay general partner of any such order Star Gas or proceeding shall thereafter be set aside, of all or if within sixty (60) days after a substantial part of its property; or the entry issuance of a decree appointing a trusteewarrant of attachment, receiver execution or liquidator (or other similar official) of such Borrower or process against any substantial part of the property of either Obligor or the general partner of Star Gas; and continuance of any such Borrower such appointment shall not have been vacatedevent for 60 consecutive days unless dismissed, bonded to the satisfaction of the court having jurisdiction in the premises or discharged; or
(i) A filing by or on the behalf of any Restricted Subsidiary of a voluntary petition or an answer seeking reorganization, arrangement, readjustment of its debts or for any other relief under any Bankruptcy Law, or any action by any Restricted Subsidiary for, or consent or acquiescence to, the appointment of a receiver, trustee or other custodian of such Restricted Subsidiary or of all or a substantial part of its property; or the making by any Restricted Subsidiary of any assignment for the benefit of creditors; or the admission by any Restricted Subsidiary in writing of its inability to pay its debts as they become due; or
(j) filing of any involuntary petition against any Restricted Subsidiary in bankruptcy or seeking reorganization, arrangement, readjustment of its debts or for any other relief under any Bankruptcy Law and an order for relief by a court having jurisdiction in the premises shall have been issued or entered therein; or any other similar relief shall be granted under any applicable Federal or state law; or a decree or order of a court having jurisdiction in the premises for the appointment of a receiver, liquidator, sequestrator, trustee or other officer having similar powers over any Restricted Subsidiary or over all or a part of its property shall have been entered; or the involuntary appointment of an interim receiver, trustee or other custodian of any Restricted Subsidiary or of all or a substantial part of its property; or the issuance of a warrant of attachment, execution or similar process against any substantial part of the property of any Restricted Subsidiary; and continuance of any such event for 60 consecutive days unless dismissed, bonded to the satisfaction of the court having jurisdiction in the premises or discharged, or
(k) a final judgment which, together with other outstanding final or judgments against such Borrower, exceeds an amount in the aggregate equal (which is or are non-appealable or which has or have not been stayed pending appeal or as to five percent (5%) of such Borrower's Total Assets (exclusive of amounts covered by available insurancewhich all rights to appeal have expired or been exhausted) shall be rendered against either Obligor or any Restricted Subsidiary for the payment of money in excess of $1,000,000 in the aggregate and any one of such Borrower and if, within thirty (30) days after entry thereof, such judgment judgments shall not have been be discharged or execution thereof thereon stayed pending appeal, or if, appeal within thirty (30) 45 days after the expiration date due, or, in the event of any such a stay, such judgment shall not have been dischargedbe discharged within 30 days after such stay expires or any action shall be legally taken by a creditor to levy upon the assets or properties of either Obligor or any Restricted Subsidiary to enforce any such judgment; or
(jl) Such Borrower any of the Operative Agreements shall at any time, for any reason, cease to be in full force and effect or shall be declared to be null and void in whole or in any material part by the final judgment (which is non- appealable or has not been stayed pending appeal or as to which all rights to appeal have expired or been exhausted) of any court or other governmental or regulatory authority having jurisdiction in respect thereof, or if the validity or the enforceability of any of the Operative Agreements shall be contested by or on behalf of either Obligor, the General Partner, the general partner of Star Gas, the Public Partnership or any member Restricted Subsidiary, or either Obligor, the General Partner, the general partner of Star Gas, the Public Partnership or any Restricted Subsidiary shall renounce any of the Controlled Group shall fail to pay when due an amount Operative Agreements, or amounts aggregating in excess of $500,000 which deny that it is obligated to pay to bound by the PBGC or to a Plan under Title IV terms of ERISA; or a notice of intent to terminate a Plan or Plans having aggregate Unfunded Liabilities in excess of $500,000 shall be filed under Title IV of ERISA by such Borrower or any member of the Controlled Group, any plan administrator or any combination of the foregoing; or the PBGC shall institute proceedings under Title IV of ERISA to terminate or to cause a trustee to be appointed to administer any such Plan or Plans or a proceeding shall be instituted by a fiduciary of any such Plan or Plans against such Borrower or any member of the Controlled Group to enforce Sections 515 or 4219(c)(5) of ERISA; or a condition shall exist by reason of which the PBGC would be entitled to obtain a decree adjudicating that any such Plan or Plans must be terminated; or there shall occur a complete or partial withdrawal from, or a default, within the meaning of Section 4219(c)(5) of ERISA, with respect to, one or more Multiemployer Plans which could cause such Borrower or one or more members of the Controlled Group to incur a current payment obligation in excess of $500,000Operative Agreements; or
(km) Such Borrower any order, judgement or decree is entered in any proceedings against an Obligor decreeing a split-up of such Obligor which requires the divestiture of assets of such Obligor or the divestiture of the stock of a Restricted Subsidiary which would not be permitted if such divestiture were considered a partial disposition of assets pursuant to Section 10.7(c) and such order, judgment or decree shall not be dismissed or execution thereon stayed pending appeal within 30 days after entry thereof, or, in the event of such a stay, such order, judgment or decree shall not be discharged within 30 days after such stay expires; or
(n) there shall occur at any time a change in Legal Requirements specifically applicable to either Obligor or to the Business or to the business of the wholesale and retail sale, distribution and storage of propane gas and related petroleum derivative products and the related retail sale of supplies and equipment, including home appliances which would have a Material Adverse Effect (other than on the prospects (financial or otherwise) of the Obligors or the Business) and 60 days after the earlier of (i) such occurrence shall first have become known to any officer of either Obligor or the general partner of Star Gas or (ii) written notice thereof shall have been received by either Obligor or the general partner of Star Gas from any holder of any Note, such Material Adverse Effect shall be continuing; or
(o) any Lien purported to be created by any Security Document shall cease to be an investment management company (or a Portfolio thereof) registered under the Investment Company Actbe, or such Borrower's registration under shall for any reason be asserted by either Obligor, the Investment Company Actgeneral partner of Star Gas or any Restricted Subsidiary not to be, a valid, perfected, first priority Lien on the securities, properties or assets covered thereby, other than as a result of an act or omission of the Trustee or any holder of a Note; or
(p) any governmental authority revokes or fails to renew any material license, permit or franchise of either Obligor or any Restricted Subsidiary, or that either Obligor or any Restricted Subsidiary for any reason loses any material license, permit or franchise, or either Obligor or any Restricted Subsidiary suffers the imposition of any Borrower Agent restraining order, escrow, suspension or impound of such Borrowerfunds in connection with any proceeding, shall lapse (judicial or be suspended; then, and in any such event, and at any time thereafter, if any Event of Default shall then be continuing administrative) with respect to such defaulting Borrowerany material license, (i) in the case of any Event of Default specified in paragraphs (g) and (h) above, the Commitments as to such defaulting Borrower shall thereupon automatically be terminated and the principal of and accrued interest on the Loans shall automatically become due and payable without presentment, demand, protest permit or other notice or formality of any kind, all of which are hereby expressly waived, and (ii) in the case of any other Event of Default specified above, either or both of the following actions may be taken: the Operations Agent may, and upon the written or telephonic (confirmed in writing) request of the Majority Banks shall, by written notice to such defaulting Borrower (A) declare the principal of and accrued interest in respect of such defaulting Borrower's Loans to be forthwith due and payable, whereupon the principal of and accrued interest in respect of such Loans shall become forthwith due and payable without presentment, demand, protest or other notice of any kind, all of which are hereby expressly waived by such Borrower, and/or (B) terminate the Commitments as to such defaulting Borrower, whereupon the Commitments of the Banks to make Committed Credit Loans hereunder to such defaulting Borrower shall forthwith terminate without any other notice of any kind and the percentages of the Commitment Fee and other fees and expenses otherwise payable by such defaulting Borrower hereunder accruing from and after the date of termination shall be reallocated among the remaining Borrowers PRO RATA on the basis of the percentages set forth opposite such remaining Borrowers' names on SCHEDULE 1, as in effect at the time of such termination.franchise;
Appears in 1 contract
Events of Default; Acceleration. If any of the following events (each an "EVENT OF DEFAULT"“Event of Default”) shall occur with respect to any Borrowerhas occurred and is continuing:
(a) Such Borrower (i) if the Company shall default in the payment of fail to pay any principal of or interest on the Loans or any Loan, interest accrued thereon other amount payable hereunder or fee due hereunder after under the LOC Documents when the same becomes shall become due and payable, whether at the stated date of maturity or by acceleration any accelerated date of maturity or otherwise, or (ii) shall default in the payment of at any other amount due hereunder after the same becomes due and payable; ordate fixed for payment;
(b) Such Borrower if the Company shall default in the performance of or compliance fail to comply with any term of its covenants contained in Sections 9.01(a) or 9.01(b) and such default shall have continued for more than three (3) Banking Days7.1, 7.2, 7.5-7.12, or such Borrower shall default in the performance of or compliance with any term contained in Sections 8.02(d), 8.02(e), 8.02(g), 8.05, 9.02, 9.03 or 9.04; or7.24-7.32;
(c) Such Borrower if the Company or any Subsidiary shall default in the performance of fail to perform any term, covenant or compliance with any term agreement contained herein or in any other Loan Document (other than those expressly referred to specified in this Section 10.01, subsections (a) and (b) above) and the continuance of such default failure shall not have been remedied within five (5) Banking Days exist for 30 days after written notice thereof shall have of such failure has been given to such Borrower the Company by the Operations Agent; or;
(d) Such Borrower shall default in if any representation or warranty of the performance of, or compliance with, any material term contained in any other written agreement with the Operations Agent or any Bank pertaining to this Agreement or such Borrower's Loans, and such default shall continue for more than the period of grace, if any, specified therein and shall not have been waived pursuant thereto; or
(e) Any representation, warranty certification or statement made or deemed made by such Borrower Company in this Agreement or in any certificate, financial statement or other document delivered pursuant hereto Loan Document shall prove to have been false or incorrect in any material respect upon the date when mademade or deemed to have been made or repeated;
(e) if the Company or any of its Significant Subsidiaries shall fail to make any payment due on any obligation for borrowed money (having a total amount outstanding in excess of $500,000), or shall fail to observe or perform any material term, covenant or agreement contained in any agreement by which it is bound, evidencing or securing such obligation and the effect of such failure could or would have permitted (assuming the giving of appropriate notice if required) the holder or holders thereof or a trustee for such holder or holders or of any obligations issued thereunder to accelerate the maturity thereof;
(f) if the Company or any of its Significant Subsidiaries shall be involved in financial difficulties as evidenced:
(i) by its admission in writing of its inability to pay its debts generally as they become due;
(ii) by its commencement of a voluntary case under Title 11 of the United States Code as from time to time in effect, or by its authorizing, by appropriate proceedings of its board of directors or other governing body, the commencement of such a voluntary case;
(iii) by its filing an answer or other pleading admitting or failing to deny the material allegations of a petition filed against it commencing an involuntary case under Title 11, or seeking, consenting to or acquiescing in the relief therein provided, or by its failing to controvert or challenge in a timely manner the material allegation of any such petition;
(iv) by the entry of an order for relief against it in any involuntary case commenced under Title 11 which remains undischarged or unstayed for more than sixty (60) days;
(v) by its seeking relief as a debtor under any applicable law, other than Title 11, of any jurisdiction relating to the liquidation or reorganization of debtors or to the modification or alteration of the rights of creditors, or by its consenting to or acquiescing in such relief;
(vi) by entry of an order by a court of competent jurisdiction (A) finding it to be bankrupt or insolvent or (B) ordering or approving its liquidation, reorganization or any modification or alteration of the rights of its creditors which remains undischarged or unstayed for more than sixty (60) days;
(vii) by the entry of an order by a court of competent jurisdiction assuming custody of, or appointing a receiver or other custodian for, all or a substantial part of its property which remains undischarged or unstayed for more than sixty (60) days; or
(fviii) Except as otherwise provided in this Section 10.01, such Borrower shall default in any payment due on Indebtedness for borrowed money or the deferred purchase price of property, the aggregate outstanding principal amount of which is in excess of five percent (5%) of such Borrower's Total Assets, and such default shall continue for more than the period of grace, if any, applicable thereto and shall not have been waived pursuant thereto and shall permit the holder of such Indebtedness to declare such Indebtedness due and payable before by its stated maturity, or in the performance of or compliance with any term of any evidence of such Indebtedness or of any mortgage, indenture or other agreement relating thereto, and any such default shall continue for more than the period of grace, if any, specified therein and shall not have been waived pursuant thereto and shall permit the holder of such Indebtedness to declare such Indebtedness due and payable before its stated maturity, unless such Borrower shall be contesting such payment or obligation in good faith by appropriate proceedings promptly initiated and diligently conducted and such Borrower shall have set aside on its books such reserves, if any, with respect thereto as are required by GAAP and deemed appropriate by such Borrower and its independent public accountants, PROVIDED, that no Event of Default pursuant to paragraphs (b) or (i) of this Section 10.01 shall have occurred and be continuing as a result of such claim having been asserted in respect of such Indebtedness; or
(g) Such Borrower shall discontinue its business (other than in connection with a permitted merger or consolidation of such Borrower) or shall make making an assignment for the benefit of of, or entering into a composition with, its creditors, or shall fail generally to pay its debts as such debts become due, appointing or shall apply for or consent consenting to the appointment of or taking possession by a trustee, receiver or liquidator (other custodian for all or other similar official) of such Borrower or any a substantial part of its property;
(g) if there shall remain in force, undischarged, unsatisfied and unstayed, for more than sixty days, whether or not consecutive, any final judgment against the property Company or assets any of its Significant Subsidiaries which, with other outstanding final judgments, undischarged, against such Person(s) exceeds $500,000 in aggregate amount with respect to the Company or any of its Significant Subsidiaries;
(h) if UHS of Delaware, Inc., a subsidiary of UHS, shall cease to be the real estate investment trust advisor to the Company and a new advisor satisfactory to each of the Banks has not been appointed, or a group of managers satisfactory to each of the Banks has not been hired, within ninety (90) days of such Borrower cessation;
(i) (i) if any Person or shall commence a case group of Persons (within the meaning of Section 13 or have an order for relief entered against it under 14 of the federal bankruptcy lawsSecurities Exchange Act of 1934, as now amended) shall have acquired beneficial ownership (within the meaning of Rule 13d-3 promulgated by the Securities and Exchange Commission under said Act) of thirty percent (30%) or hereafter constitutedmore of the outstanding shares of common stock of the Company; or, (ii) during any period of twelve consecutive calendar months, individuals who were directors of the Company on the first day of such period shall cease to constitute a majority of the board of directors of the Company;
(j) if any guarantee by UHS of any lease by the Company to a UHS Subsidiary is disavowed, terminated, or any other applicable federal or state bankruptcy, insolvency or other similar lawceases to be in full force and effect, or if any action shall be taken to dissolve is waived or liquidate such Borrower amended without the prior written consent of the Majority Banks (other than the termination of a guarantee of such a lease in connection with the sale of a Health Care Facility permitted by Section 7.29);
(k) any lease by the Company to a UHS Subsidiary is terminated prior to its stated term, or is amended or compliance by the lessee is waived, without the prior written consent of the Majority Banks (other than the termination of a lease of a Health Care Facility in connection with a permitted merger or consolidation sale of such BorrowerHealth Care Facility permitted by Section 7.29); or
(hl) If, within sixty (60) days after if the commencement against such Borrower of a case under the federal bankruptcy laws, as now or hereafter constituted, Company or any other applicable federal or state bankruptcy, insolvency or other similar law, such case of its Significant Subsidiaries shall have been consented fail to or shall not have been dismissed or all orders or proceedings thereunder affecting the operations or the business of such Borrower stayed, make any payment due under any Hedging Agreement or if the stay of any such order or proceeding shall thereafter be set aside, or if within sixty (60) days after the entry of a decree appointing a trustee, receiver or liquidator (or other similar official) of such Borrower Company or any substantial part of the property of such Borrower such appointment shall not have been vacated; or
(i) A final judgment which, together with other outstanding final judgments against such Borrower, exceeds an amount in the aggregate equal to five percent (5%) of such Borrower's Total Assets (exclusive of amounts covered by available insurance) shall be rendered against such Borrower and if, within thirty (30) days after entry thereof, such judgment shall not have been discharged or execution thereof stayed pending appeal, or if, within thirty (30) days after the expiration of any such stay, such judgment shall not have been discharged; or
(j) Such Borrower or any member of the Controlled Group its Significant Subsidiaries shall fail to pay when due an amount observe or amounts aggregating perform any material term, covenant or agreement contained in excess any Hedging Agreement and the effect of $500,000 which it is obligated to pay to such failure could or would have permitted (assuming the PBGC or to a Plan under Title IV giving of ERISA; or a appropriate notice of intent if required) the counterparty thereof to terminate a Plan such Hedging Agreement and demand payment from the Company or Plans having aggregate Unfunded Liabilities in excess of $500,000 shall be filed under Title IV of ERISA by such Borrower or any member of the Controlled Group, any plan administrator or any combination of the foregoing; or the PBGC shall institute proceedings under Title IV of ERISA to terminate or to cause a trustee to be appointed to administer any such Plan or Plans or a proceeding shall be instituted by a fiduciary of any such Plan or Plans against such Borrower or any member of the Controlled Group to enforce Sections 515 or 4219(c)(5) of ERISA; or a condition shall exist by reason of which the PBGC would be entitled to obtain a decree adjudicating that any such Plan or Plans must be terminated; or there shall occur a complete or partial withdrawal from, or a default, within the meaning of Section 4219(c)(5) of ERISA, with respect to, one or more Multiemployer Plans which could cause such Borrower or one or more members of the Controlled Group to incur a current payment obligation Significant Subsidiary in excess of $500,000; or
(k) Such Borrower shall cease to be an investment management company (or a Portfolio thereof) registered under the Investment Company Act, or such Borrower's registration under the Investment Company Act, or that of any Borrower Agent of such Borrower, shall lapse or be suspended; then, and in any such event, and at any time thereafterunless the same shall be cured or waived, if any Event of Default shall then be continuing with respect to such defaulting Borrower, the Agent (i) in the case of any Event of Default specified in paragraphs (g) and (h) aboveshall, the Commitments as to such defaulting Borrower shall thereupon automatically be terminated and the principal of and accrued interest on the Loans shall automatically become due and payable without presentment, demand, protest or other notice or formality of any kind, all of which are hereby expressly waived, and (ii) in the case of any other Event of Default specified above, either or both of the following actions may be taken: the Operations Agent may, and upon the written or telephonic (confirmed in writing) request of the Majority Banks shallBanks, or (ii) may, with the consent of the Majority Banks, by written notice in writing to the Company, terminate this Agreement and upon such defaulting Borrower (A) declare termination the principal of and accrued interest in respect of such defaulting Borrower's Banks shall have no further obligation to make Loans to be the Company or issue Letters of Credit for the account of the Company, and shall declare all Obligations, including, without limitation the Notes, to be, and they shall thereupon forthwith due mature and payablebecome, whereupon the principal of and accrued interest in respect of such Loans shall become forthwith immediately due and payable without presentment, demand, protest or other notice of any kind, all of which are hereby expressly waived by such Borrowerthe Company; provided, and/or that in the event of any Event of Default described in clauses (Bf) terminate the Commitments as to such defaulting Borrowerand (g) hereof, whereupon the Commitments all Obligations shall become immediately due and payable automatically, and all obligations of the Banks to make Committed Loans or issue Letters of Credit Loans hereunder to such defaulting Borrower shall forthwith terminate automatically terminate, without any other requirement of notice from the Banks. To the extent that the Obligations accelerated hereunder relate to Letters of Credit, the amount becoming due and payable shall be the aggregate outstanding amount of the Letters of Credit, whether or not any drawings or claims have been presented thereunder. No termination of the credit hereunder shall relieve the Company of any kind and the percentages Obligations or any of its existing obligations to any of the Commitment Fee Banks arising under other agreements or instruments. No remedy herein conferred upon the Banks is intended to be exclusive of any other remedy and other fees each and expenses otherwise payable by such defaulting Borrower hereunder accruing from and after the date of termination every remedy shall be reallocated among the remaining Borrowers PRO RATA on the basis cumulative and shall be in addition to every other remedy given hereunder or now or hereafter existing at law or in equity or by statute or any other provision of the percentages set forth opposite such remaining Borrowers' names on SCHEDULE 1, as in effect at the time of such terminationlaw.
Appears in 1 contract
Sources: Revolving Credit Agreement (Universal Health Realty Income Trust)
Events of Default; Acceleration. If any one or more of the ------------------------------- following events (each an herein called "EVENT OF DEFAULTEvents of Default") shall occur with respect to any Borrower:occur: -----------------
(a) Such Borrower (i) if an "Event of Default" under and as defined in any of the Credit Agreements shall default in the payment of principal of any Loan, interest accrued thereon or fee due hereunder after the same becomes due and payable, whether at maturity or by acceleration or otherwise, or (ii) shall default in the payment of any other amount due hereunder after the same becomes due and payablehave occurred; or
(b) Such Borrower if the Mortgagor shall default in the due and punctual performance or observance of any of its obligations under Section 1.4, 1.5, ----------- --- 1.7, 1.9, or compliance 2.1; or --- --- ---
(c) if the Mortgagor shall fail to duly and punctually perform or comply with any term contained provision of this Mortgage other than the provisions referred to in Sections 9.01(aclause (a) or 9.01(b(b) of this Section 3.1 and such default shall have continued --------- - ----------- continue unremedied for more than three (3) Banking Days, a period of 30 days after the date that notice of such nonperformance or such Borrower shall default in noncompliance is delivered to the performance of or compliance with any term contained in Sections 8.02(d), 8.02(e), 8.02(g), 8.05, 9.02, 9.03 or 9.04; or
(c) Such Borrower shall default in the performance of or compliance with any term contained herein other than those expressly referred to in this Section 10.01, and such default shall not have been remedied within five (5) Banking Days after written notice thereof shall have been given to such Borrower by the Operations AgentMortgagor; or
(d) Such Borrower shall default if the Mortgagor shall, directly or indirectly, voluntarily or involuntarily, by operation of law or otherwise, sell, convey, transfer, assign, grant a security interest in or otherwise dispose of the performance of, or compliance with, any material term contained in any other written agreement with the Operations Agent Collateral or any Bank pertaining to this Agreement portion thereof or such Borrower's Loans, and such default shall continue for more than the period of grace, if any, specified therein and shall not have been waived pursuant theretoestate or interest therein; or
(e) Any representation, warranty certification or statement made or deemed made by such Borrower in if subsequent to the date of this Agreement or in any certificate, financial statement or other document delivered pursuant hereto shall prove to have been false or incorrect in any material respect when made; or
(f) Except as otherwise provided in this Section 10.01, such Borrower shall default in any payment due on Indebtedness for borrowed money or Mortgage the deferred purchase price law of property, the aggregate outstanding principal amount of which is in excess of five percent (5%) of such Borrower's Total Assets, and such default shall continue for more than the period of grace, if any, applicable thereto and shall not have been waived pursuant thereto and shall permit the holder of such Indebtedness to declare such Indebtedness due and payable before its stated maturity, or in the performance of or compliance with any term of any evidence of such Indebtedness or of any mortgage, indenture or other agreement relating thereto, and any such default shall continue for more than the period of grace, if any, specified therein and shall not have been waived pursuant thereto and shall permit the holder of such Indebtedness to declare such Indebtedness due and payable before its stated maturity, unless such Borrower State shall be contesting such payment changed by statutory enactment, judicial decision, regulation or obligation in good faith by appropriate proceedings promptly initiated and diligently conducted and such Borrower shall have set aside on its books such reservesotherwise, if any, with respect thereto so as are required by GAAP and deemed appropriate by such Borrower and its independent public accountants, PROVIDED, that no Event of Default pursuant to paragraphs (b) or (i) to deduct from the value of land for the purpose of taxation (for state, county, municipal or other purpose) any lien or charge thereon, or (ii) to change the taxation of deeds of trust, mortgages or debts secured by land or the manner of collecting any such taxation, so as to affect this Section 10.01 Mortgage, and thereafter, within 30 days following receipt of a written request from the Mortgagee, the Mortgagor shall have occurred failed to enter into a lawful and be continuing as a result of such claim having been asserted binding agreement with the Mortgagee, satisfactory in respect of such Indebtedness; or
(g) Such Borrower shall discontinue its business (other than in connection with a permitted merger or consolidation of such Borrower) or shall make an assignment for the benefit of creditors, or shall fail generally to pay its debts as such debts become due, or shall apply for or consent substance and form to the appointment of or taking possession Mortgagee, obligating the Mortgagor to reimburse the Mortgagee for any increase in taxation imposed on the Mortgagee by a trustee, receiver or liquidator (or other similar official) of such Borrower or any substantial part of the property or assets of such Borrower or shall commence a case or have an order for relief entered against it under the federal bankruptcy laws, as now or hereafter constituted, or any other applicable federal or state bankruptcy, insolvency or other similar law, or if any action shall be taken to dissolve or liquidate such Borrower (other than in connection with a permitted merger or consolidation of such Borrower); or
(h) If, within sixty (60) days after the commencement against such Borrower of a case under the federal bankruptcy laws, as now or hereafter constituted, or any other applicable federal or state bankruptcy, insolvency or other similar law, such case shall have been consented to or shall not have been dismissed or all orders or proceedings thereunder affecting the operations or the business of such Borrower stayed, or if the stay reason of any such order or proceeding shall thereafter be set aside, or if within sixty (60) days after the entry of a decree appointing a trustee, receiver or liquidator (or other similar official) of such Borrower or any substantial part of the property of such Borrower such appointment shall not have been vacated; or
(i) A final judgment which, together with other outstanding final judgments against such Borrower, exceeds an amount in the aggregate equal to five percent (5%) of such Borrower's Total Assets (exclusive of amounts covered by available insurance) shall be rendered against such Borrower and if, within thirty (30) days after entry thereof, such judgment shall not have been discharged or execution thereof stayed pending appeal, or if, within thirty (30) days after the expiration of any such stay, such judgment shall not have been discharged; or
(j) Such Borrower or any member of the Controlled Group shall fail to pay when due an amount or amounts aggregating in excess of $500,000 which it is obligated to pay to the PBGC or to a Plan under Title IV of ERISA; or a notice of intent to terminate a Plan or Plans having aggregate Unfunded Liabilities in excess of $500,000 shall be filed under Title IV of ERISA by such Borrower or any member of the Controlled Group, any plan administrator or any combination of the foregoing; or the PBGC shall institute proceedings under Title IV of ERISA to terminate or to cause a trustee to be appointed to administer any such Plan or Plans or a proceeding shall be instituted by a fiduciary of any such Plan or Plans against such Borrower or any member of the Controlled Group to enforce Sections 515 or 4219(c)(5) of ERISA; or a condition shall exist by reason of which the PBGC would be entitled to obtain a decree adjudicating that any such Plan or Plans must be terminated; or there shall occur a complete or partial withdrawal from, or a default, within the meaning of Section 4219(c)(5) of ERISA, with respect to, one or more Multiemployer Plans which could cause such Borrower or one or more members of the Controlled Group to incur a current payment obligation in excess of $500,000; or
(k) Such Borrower shall cease to be an investment management company (or a Portfolio thereof) registered under the Investment Company Act, or such Borrower's registration under the Investment Company Act, or that of any Borrower Agent of such Borrower, shall lapse or be suspended; then, then and in any such event, and event the Mortgagee may at any time thereafterthereafter exercise any right or remedy granted to the Mortgagee under the Credit Agreements or the other Loan Documents or available to the Mortgagee at law or in equity including, if any Event of Default shall then without limitation, declare, by written notice to the Mortgagor, the Secured Obligations and all other Obligations to be continuing with respect to such defaulting Borrower, (i) in the case of any Event of Default due and payable immediately or on a date specified in paragraphs (g) such notice, and (h) above, on such date the Commitments as to such defaulting Borrower same shall thereupon automatically be terminated and the principal of and accrued interest on the Loans shall automatically become due and payable payable, together with interest accrued thereon, without presentment, demand, protest or other notice or formality of any kindnotice, all of which are the Mortgagor hereby expressly waivedwaives. The Mortgagor will pay on demand all costs and expenses, including, without limitation, attorneys' fees and (ii) expenses, incurred by or on behalf of the Mortgagee in enforcing this Mortgage or the case of Secured Obligations or any other Event of Default specified aboveLoan Document, either or both of the following actions may be taken: the Operations Agent may, and upon the written occasioned by any default hereunder or telephonic (confirmed in writing) request of the Majority Banks shall, by written notice to such defaulting Borrower (A) declare the principal of and accrued interest in respect of such defaulting Borrower's Loans to be forthwith due and payable, whereupon the principal of and accrued interest in respect of such Loans shall become forthwith due and payable without presentment, demand, protest or other notice of any kind, all of which are hereby expressly waived by such Borrower, and/or (B) terminate the Commitments as to such defaulting Borrower, whereupon the Commitments of the Banks to make Committed Credit Loans hereunder to such defaulting Borrower shall forthwith terminate without any other notice of any kind and the percentages of the Commitment Fee and other fees and expenses otherwise payable by such defaulting Borrower hereunder accruing from and after the date of termination shall be reallocated among the remaining Borrowers PRO RATA on the basis of the percentages set forth opposite such remaining Borrowers' names on SCHEDULE 1, as in effect at the time of such terminationthereunder.
Appears in 1 contract
Sources: Mortgage (Aristotle Corp)
Events of Default; Acceleration. If any of the following conditions or events (each an "EVENT OF DEFAULTEvents of Default") shall occur with respect to any Borrowerand be continuing:
(a) Such Borrower (i) if the Joint Issuers or Holdings, as guarantor, shall default in the payment of any principal of any Loan, interest accrued thereon or fee due hereunder after Note when the same becomes due and payable, whether at maturity or at a date fixed for prepayment or by acceleration or otherwise; or
(b) if the Joint Issuers or Holdings, or (ii) as guarantor, shall default in the payment of any other amount due hereunder interest on any Note (whether by issuance of a Note or payment in cash as required by the terms hereof) for more than 5 days after the same becomes due and payable; or
(bc) Such Borrower if Holdings or any Joint Issuer shall default in the performance of or compliance with any other material term contained in Sections 9.01(a) this Agreement or 9.01(b) any other Note Purchase Document and such default shall continue unremedied for 30 days after such failure shall first have continued for more than three (3) Banking Days, become known to any officer of Holdings or such Borrower shall default in the performance of or compliance with any term contained in Sections 8.02(d), 8.02(e), 8.02(g), 8.05, 9.02, 9.03 or 9.04; or
(c) Such Borrower shall default in the performance of or compliance with any term contained herein other than those expressly referred to in this Section 10.01, and such default shall not have been remedied within five (5) Banking Days after written notice thereof shall have been given to such Borrower received by the Operations AgentHoldings from any holder of any Note; or
(d) Such Borrower shall default if any representation or warranty made in the performance ofwriting by or on behalf of Holdings or any Joint Issuer in this Agreement, any other Note Purchase Document, or compliance with, any material term contained in any other written agreement instrument furnished in compliance with the Operations Agent or any Bank pertaining in reference to this Agreement or such Borrower's Loans, and such default shall continue for more than the period of grace, if any, specified therein and shall not have been waived pursuant thereto; or
(e) Any representation, warranty certification or statement made or deemed made by such Borrower in this Agreement or in any certificate, financial statement or other document delivered pursuant hereto shall prove to have been false or incorrect in any material respect when on the date as of which made; or
(fe) Except as otherwise provided if any event shall occur or condition shall exist in this Section 10.01, such Borrower shall default in respect of any payment due on Indebtedness for borrowed money of Holdings or the deferred purchase price of property, the aggregate outstanding principal amount of which is any Joint Issuer in excess of five percent (5%) of such Borrower's Total Assets, and such default shall continue for more than the period of grace, if any, applicable thereto and shall not have been waived pursuant thereto and shall permit the holder of such Indebtedness to declare such Indebtedness due and payable before its stated maturity, $1,000,000 or in the performance of or compliance with any term of under any evidence of any such Indebtedness or of any mortgage, indenture or other agreement relating thereto, and any such default shall continue for more than the period effect of grace, if any, specified therein and shall not have been waived pursuant thereto and shall permit which event or condition is to cause the holder acceleration of such Indebtedness to declare such Indebtedness due and payable before its stated maturity, unless such Borrower shall be contesting such payment maturity or obligation in good faith by appropriate proceedings promptly initiated and diligently conducted and such Borrower shall have set aside on before its books such reserves, if any, with respect thereto as are required by GAAP and deemed appropriate by such Borrower and its independent public accountants, PROVIDED, that no Event regularly scheduled dates of Default pursuant to paragraphs (b) or (i) of this Section 10.01 shall have occurred and be continuing as a result of such claim having been asserted in respect of such Indebtednesspayment; or
(g1) Such Borrower shall discontinue its business (other than in connection An order for relief is entered with respect to Holdings or any Joint Issuer or any such Person commences a permitted merger or consolidation of such Borrower) or shall make an assignment for voluntary case under the benefit of creditorsBankruptcy Code, or shall fail generally consents to pay its debts as the entry of an order for relief in an involuntary case or to the conversion of an involuntary case to a voluntary case under any such debts become due, law or shall apply for or consent consents to the appointment of or taking possession by a trusteereceiver, receiver or liquidator (trustee or other similar official) of such Borrower custodian for all or any a substantial part of the property or assets of such Borrower or shall commence a case or have an order for relief entered against it under the federal bankruptcy laws, as now or hereafter constituted, its property; or
(2) Holdings or any other applicable federal Joint Issuer makes any assignment for the benefit of creditors; or state bankruptcy, insolvency (3) the Board of Directors of Holdings or other similar law, any Joint Issuer adopts any resolution or if otherwise authorizes action to approve any action shall be taken of the actions referred to dissolve or liquidate such Borrower (other than in connection with a permitted merger or consolidation of such Borrowerthis subsection 13(f); or
(h1) If, within sixty (60) days after the commencement against such Borrower of A court enters a decree or order for relief with respect to Holdings or any Joint Issuer in an involuntary case under the federal bankruptcy lawsBankruptcy Code, as now which decree or hereafter constituted, order is not stayed or other similar relief is not granted under any other applicable federal or state bankruptcy, insolvency or other similar law, such case shall have been consented to or shall not have been dismissed or all orders or proceedings thereunder affecting the operations or the business of such Borrower stayed, or if the stay of any such order or proceeding shall thereafter be set aside, or if law within sixty (60) days after the entry thereof; or (2) the continuance of a decree appointing a trusteeany of the following events for sixty (60) days or more unless dismissed, receiver bonded or liquidator discharged:
(a) an involuntary case is commenced against Holdings or any Joint Issuer under any applicable bankruptcy, insolvency or other similar officiallaw now or hereafter in effect; or (b) a decree or order of such Borrower a court for the appointment of a receiver, liquidator, sequestrator, trustee, custodian or other officer having similar powers over Holdings or any Joint Issuer or over all or substantial part of its property, is entered; or (c) an interim receiver, trustee or other custodian is appointed without the consent of Holdings or any Joint Issuer, as applicable, for all or a substantial part of the property of such Borrower such appointment shall not have been vacatedPerson; or
or (ih) A final judgment which, together with other outstanding final or judgments against such Borrower, exceeds an amount in any individual case or in the aggregate equal to five percent at any time, in excess of $500,000 (5%) of such Borrower's Total Assets (exclusive of amounts in either case not adequately covered by available insuranceinsurance as to which the insurance company has acknowledged coverage) shall be rendered is entered or filed against such Borrower Holdings or any Joint Issuer or any of their respective assets and ifremains undischarged, within unvacated, unbonded or unstayed for a period of thirty (30) days after entry thereofor more; or
(1) Holdings or any Joint Issuer fails to make full payment when due of all amounts which, under the provisions of any employee benefit plans or any applicable provisions of the Internal Revenue Code as amended from time to time ("IRC"), such judgment shall Person is required to pay as contributions thereto and such failure results in the imposition of a lien on the assets of the Holdings or any Joint Issuer; or (2) an accumulated funding deficiency in excess of $1,000,000 occurs or exists, whether or not have been discharged waived, with respect to any Holdings' or execution thereof stayed pending appeal, any Joint Issuer's employee benefit plans; or if, within thirty (303) days after the expiration of any such stay, such judgment shall not have been dischargedemployee benefit plans lose their status as a qualified plan under the IRC which results in the imposition of a material lien on the assets of Holdings or any Joint Issuer; or
(j) Such Borrower Any of the Note Purchase Documents for any reason, other than a partial or full release in accordance with the terms thereof, ceases to be in full force and effect or is declared to be null and void, or Holdings or any member of the Controlled Group shall fail Joint Issuer denies that it has any further liability under any Note Purchase Document to pay when due an amount or amounts aggregating in excess of $500,000 which it is obligated to pay to the PBGC or to a Plan under Title IV of ERISA; or a notice of intent to terminate a Plan or Plans having aggregate Unfunded Liabilities in excess of $500,000 shall be filed under Title IV of ERISA by such Borrower or any member of the Controlled Group, any plan administrator or any combination of the foregoing; or the PBGC shall institute proceedings under Title IV of ERISA to terminate or to cause a trustee to be appointed to administer any such Plan or Plans or a proceeding shall be instituted by a fiduciary of any such Plan or Plans against such Borrower or any member of the Controlled Group to enforce Sections 515 or 4219(c)(5) of ERISA; or a condition shall exist by reason of which the PBGC would be entitled to obtain a decree adjudicating that any such Plan or Plans must be terminated; or there shall occur a complete or partial withdrawal fromparty, or a default, within the meaning of Section 4219(c)(5) of ERISA, with respect to, one or more Multiemployer Plans which could cause gives notice to such Borrower or one or more members of the Controlled Group to incur a current payment obligation in excess of $500,000effect; or
(k) Such Borrower shall cease to be an investment management company (or a Portfolio thereof) registered A Change of Control as defined under the Investment Company Act, or such Borrower's registration under Credit Agreement (as in effect on the Investment Company Act, or that of any Borrower Agent of such Borrower, date hereof) shall lapse or occur and be suspended; then, and in any such event, and at any time thereafter, if any Event of Default shall then be continuing with respect to such defaulting Borrower, continuing;
(i1) in upon the case occurrence of any Event of Default specified described in paragraphs subdivision (f) or (g) and (h) aboveof this Section 13, the Commitments as to such defaulting Borrower shall thereupon automatically be terminated and the unpaid principal amount of and accrued interest on the Loans Notes shall automatically become due and payable without presentment, demand, protest immediately; or other notice or formality of any kind, all of which are hereby expressly waived, and (ii2) in upon the case occurrence of any other Event of Default specified aboveDefault, either any holder or both holders of 25% or more in principal amount of the following actions Notes at the time outstanding may be taken: the Operations Agent may, and upon the written at any time (unless all Events of Default shall theretofore have been remedied) at its or telephonic (confirmed in writing) request of the Majority Banks shalltheir option, by written notice or notices to such defaulting Borrower (A) Holdings as agent for the Joint Issuers, declare all the principal of and accrued interest in respect of such defaulting Borrower's Loans Notes to be forthwith due and payable, whereupon the principal of same shall forthwith mature and accrued interest in respect of such Loans shall become forthwith due and payable without presentment, demand, protest or other notice of any kind, all of which immediately if no Senior Loans are hereby expressly waived by such Borrower, and/or (B) terminate the Commitments as to such defaulting Borrower, whereupon the Commitments of the Banks to make Committed Credit Loans hereunder to such defaulting Borrower shall forthwith terminate without any other notice of any kind and the percentages of the Commitment Fee and other fees and expenses otherwise payable by such defaulting Borrower hereunder accruing from and after the date of termination shall be reallocated among the remaining Borrowers PRO RATA on the basis of the percentages set forth opposite such remaining Borrowers' names on SCHEDULE 1, as in effect at the time of such terminationthen outstanding.
Appears in 1 contract
Sources: Note Purchase Agreement (Home Products International Inc)
Events of Default; Acceleration. If any Any of the following events (each shall constitute an "EVENT OF DEFAULTEvent of Default") shall occur with respect to any Borrower:
(a) Such Borrower (i) the Company shall default in the any payment of any principal of amount outstanding hereunder or under any Loan, interest accrued thereon or fee due hereunder after the same becomes Notes when due and payable, whether at maturity or at any date fixed for payment or prepayment or by acceleration declaration or otherwise, or (ii) shall default in the payment of any other amount due hereunder after the same becomes due and payable; or
(b) Such Borrower the Company shall fail to pay any interest with respect to principal outstanding hereunder, or any fee pursuant to the terms of Section 2.9, within five (5) Business Days after the date due and payable, whether at maturity or at any date fixed for payment or prepayment or by declaration or otherwise, other than due to a failure of the Administrative Agent to charge an account of the Company having a sufficient credit balance; or
(c) there shall be a default in the performance of or compliance with any term contained covenant in Sections 9.01(a) or 9.01(b) and such default shall have continued for more than three (3) Banking Days, or such Borrower shall default in the performance of or compliance with any term contained in Sections 8.02(d), 8.02(e), 8.02(g), 8.05, 9.02, 9.03 or 9.04Section 7 hereof; or
(cd) Such Borrower the Company shall default in the performance of or compliance with any term contained herein (other than those expressly referred to above in this Section 10.018), and such default shall not have been remedied within five thirty (530) Banking Business Days after written notice thereof shall have been given to such Borrower by the Operations Agent; or
(d) Such Borrower shall default in the performance of, or compliance with, any material term contained in any other written agreement with the Operations Agent or any Bank pertaining to this Agreement or such Borrower's Loans, and such default shall continue for more than the period of grace, if any, specified therein and shall not have been waived pursuant theretooccurrence thereof; or
(e) Any representationany representation or warranty made in writing by or on behalf of the Company herein, warranty certification or statement made or deemed made by such Borrower in this Agreement any other Loan Document or in connection with any certificate, financial statement or other document delivered pursuant hereto of the transactions contemplated hereby shall prove to have been false or incorrect in any material respect when on the date as of which made; or
(f) Except as otherwise provided in this Section 10.01the Parent, such Borrower the Company or any of their respective Subsidiaries shall default (as principal or guarantor or other surety) in the payment of any payment due on Indebtedness for borrowed money principal or the deferred purchase price of property, the aggregate outstanding principal amount of which is in excess of five percent (5%) of such Borrower's Total Assets, and such default shall continue for more than the period of gracepremium, if any, applicable thereto of, or interest or fees on, any other Indebtedness to any Bank, or any other Indebtedness in respect of borrowed money in an aggregate principal amount of $10,000,000 or more (which default is in payment thereof at its stated maturity or shall result in such Indebtedness becoming or being declared due prior to the scheduled maturity thereof) or if the Parent, the Company or any of their respective Subsidiaries shall fail to comply (and shall such failure to comply has not have been waived pursuant thereto cured or waived) with any of the terms of any document evidencing any such Indebtedness or any mortgage, pledge, assignment, indenture or other document relating thereto, and shall permit as a consequence of any of the foregoing, the holder of such Indebtedness shall have the right to declare such Indebtedness all amounts payable with respect thereto to be due and payable before its stated maturity, or in the performance of or compliance with any term of any evidence by reason of such Indebtedness default prior to the scheduled maturity thereof or demand payment of any mortgage, indenture or other agreement relating thereto, and any such default shall continue for more than the period of grace, if any, specified therein and shall not have been waived pursuant thereto and shall permit the holder of such Indebtedness to declare such Indebtedness due and all amounts payable before its stated maturity, unless such Borrower shall be contesting such payment or obligation in good faith by appropriate proceedings promptly initiated and diligently conducted and such Borrower shall have set aside on its books such reserves, if any, with respect thereto as are required by GAAP and deemed appropriate by such Borrower and its independent public accountants, PROVIDED, that no Event of Default pursuant to paragraphs (b) or (i) of this Section 10.01 shall have occurred and be continuing as a result of such claim having been asserted in respect of such Indebtednessany Indebtedness payable on demand; or
(g) Such Borrower shall discontinue its business (other than in connection with a permitted merger if the Parent, the Company or consolidation any of such Borrower) or shall make their respective Subsidiaries makes an assignment for the benefit of creditors, or shall fail generally to pay its debts as such debts become due, petitions or shall apply applies for or consent to the appointment of a liquidator or taking possession by a trustee, receiver of or liquidator (or other similar official) for any of such Borrower Persons, or of any substantial part of the property respective assets thereof, or assets commences any proceeding relating to any of such Borrower Persons under any bankruptcy, reorganization, arrangement, insolvency, readjustment of debt, dissolution or shall commence a case liquidation or have an order for relief entered against it under the federal bankruptcy lawssimilar law of any jurisdiction, as now or hereafter constituted, or any other applicable federal or state bankruptcy, insolvency or other similar law, or if any action shall be taken to dissolve or liquidate such Borrower (other than in connection with a permitted merger or consolidation of such Borrower)effect; or
(h) Ifif any such petition or application is filed or any such proceeding is commenced against the Parent, within sixty (60) days after the commencement against Company or any of their respective Subsidiaries, and any of such Borrower of a case under the federal bankruptcy lawsPersons indicates its approval thereof, as now consents thereto or hereafter constitutedacquiesces therein, or any other applicable federal such petition, application or state bankruptcy, insolvency or other similar law, such case shall have been consented to or shall not have been dismissed or all orders or proceedings thereunder affecting the operations or the business of such Borrower stayedproceeding remains undischarged for thirty (30) days, or if the stay of an order is entered appointing any such order liquidator or proceeding shall thereafter be set asidereceiver, or if within sixty (60) days after adjudicating the entry of a decree appointing a trusteeParent, receiver or liquidator (or other similar official) of such Borrower the Company or any substantial part of the property of their respective Subsidiaries bankrupt or insolvent, or approving a petition in any such Borrower such appointment shall not have been vacatedproceeding; or
(i) A final judgment whichany order is entered in any proceeding by or against the Parent, together with other outstanding final judgments against such Borrower, exceeds an amount in the aggregate equal to five percent (5%) Company or any of their respective Subsidiaries decreeing or permitting the dissolution or split-up of any of such Borrower's Total Assets (exclusive Persons or the winding-up of amounts covered by available insurance) shall be rendered against such Borrower and if, within thirty (30) days after entry thereof, such judgment shall not have been discharged or execution thereof stayed pending appeal, or if, within thirty (30) days after the expiration affairs of any of such stay, such judgment shall not have been dischargedPersons; or
(j) Such Borrower there shall be in force, undischarged, unsatisfied and unstayed, for more than thirty (30) days, whether or not consecutive, any member final judgment (from which all appeals have been taken and determined or as to which all time for the taking of the Controlled Group shall fail to pay when due an amount or amounts aggregating appeals has lapsed) in excess of $500,000 which it is obligated to pay to 1,000,000 in the PBGC or to a Plan under Title IV of ERISA; or a notice of intent to terminate a Plan or Plans having aggregate Unfunded Liabilities in excess of $500,000 shall be filed under Title IV of ERISA by such Borrower against the Parent, the Company or any member of the Controlled Group, any plan administrator or any combination of the foregoing; or the PBGC shall institute proceedings under Title IV of ERISA to terminate or to cause a trustee to be appointed to administer any such Plan or Plans or a proceeding shall be instituted by a fiduciary of any such Plan or Plans against such Borrower or any member of the Controlled Group to enforce Sections 515 or 4219(c)(5) of ERISA; or a condition shall exist by reason of which the PBGC would be entitled to obtain a decree adjudicating that any such Plan or Plans must be terminated; or there shall occur a complete or partial withdrawal from, or a default, within the meaning of Section 4219(c)(5) of ERISA, with respect to, one or more Multiemployer Plans which could cause such Borrower or one or more members of the Controlled Group to incur a current payment obligation in excess of $500,000their respective Subsidiaries; or
(k) Such Borrower any representation or warranty made in writing by or on behalf of the Parent in the Guaranty, in any other Loan Document or in connection with any of the transactions contemplated hereby or thereby shall prove to have been false or incorrect in any material respect on the date as of when made, or if the Parent shall default in respect of any of its obligations under the Guaranty or if the Guaranty shall cease to be an investment management company in full force and effect without the prior written consent of the Banks; or
(or a Portfolio thereofl) registered under the Investment Company Act, or such Borrower's registration under the Investment Company Act, or that of any Borrower Agent of such Borrower, Parent shall lapse or be suspended; then, and in any such event, and at any time thereafterown, if any Event beneficially, and of Default shall then be continuing with respect to such defaulting Borrowerrecord, (i) in the case less than a majority of any Event of Default specified in paragraphs (g) and (h) above, the Commitments as to such defaulting Borrower shall thereupon automatically be terminated and the principal of and accrued interest on the Loans shall automatically become due and payable without presentment, demand, protest or other notice or formality of any kind, all of which are hereby expressly waived, the issued and (ii) in the case outstanding shares of any other Event of Default specified above, either or both capital stock of the following actions may be taken: Company having ordinary voting rights for the Operations Agent may, and upon the written or telephonic (confirmed in writing) request election of the Majority Banks shall, by written notice to such defaulting Borrower (A) declare the principal of and accrued interest in respect of such defaulting Borrower's Loans to be forthwith due and payable, whereupon the principal of and accrued interest in respect of such Loans shall become forthwith due and payable without presentment, demand, protest or other notice of any kind, all of which are hereby expressly waived by such Borrower, and/or (B) terminate the Commitments as to such defaulting Borrower, whereupon the Commitments of the Banks to make Committed Credit Loans hereunder to such defaulting Borrower shall forthwith terminate without any other notice of any kind and the percentages of the Commitment Fee and other fees and expenses otherwise payable by such defaulting Borrower hereunder accruing from and after the date of termination shall be reallocated among the remaining Borrowers PRO RATA on the basis of the percentages set forth opposite such remaining Borrowers' names on SCHEDULE 1, as in effect at the time of such terminationdirectors.
Appears in 1 contract
Sources: Credit Agreement (Xtra Corp /De/)
Events of Default; Acceleration. If any of the following events (each an "EVENT OF DEFAULT"“Events of Default”) shall occur with respect to any Borroweroccur:
(a) Such Borrower Borrowers shall fail to pay when due and payable any principal of the Loan when the same becomes due;
(b) any Loan Party shall fail to pay interest on the Loan or any other sum due under any of the Loan Documents within three (3) Business Days after the date on which the same shall have first become due and payable;
(i) any Borrower shall default fail to perform any term, covenant or agreement contained in §§7.1(b)(i), 7.1(c), 7.1(d), 7.2, (ii) any Guarantor shall fail to perform any term, covenant or agreement contained in §8 of the Guaranty, or (iii) an “Event of Default” under and as defined in any Mortgage shall have occurred;
(d) any Loan Party shall fail to perform any other term, covenant or agreement applicable to it contained in the payment of principal of any LoanLoan Documents (other than those referred to in §§8(a), interest accrued thereon or fee due hereunder 8(b) and 8(c) above) within fifteen (15) days after the same becomes due and payable, whether at maturity or by acceleration or otherwise, earlier of (i) the date on which Lender has given written notice of such failure to the Borrowers or (ii) shall default in the payment date on which a Senior Officer of any other amount due hereunder after the same becomes due and payable; or
(b) Such Borrower shall default in the performance obtains actual knowledge of or compliance with any term contained in Sections 9.01(a) or 9.01(b) and such default shall have continued for more than three (3) Banking Days, or such Borrower shall default in the performance of or compliance with any term contained in Sections 8.02(d), 8.02(e), 8.02(g), 8.05, 9.02, 9.03 or 9.04; or
(c) Such Borrower shall default in the performance of or compliance with any term contained herein other than those expressly referred to in this Section 10.01, and such default shall not have been remedied within five (5) Banking Days after written notice thereof shall have been given to such Borrower by the Operations Agent; or
(d) Such Borrower shall default in the performance of, or compliance with, any material term contained in any other written agreement with the Operations Agent or any Bank pertaining to this Agreement or such Borrower's Loans, and such default shall continue for more than the period of grace, if any, specified therein and shall not have been waived pursuant thereto; orfailure;
(e) Any representation, any representation or warranty certification or statement made or deemed made by such Borrower of any Loan Party in this Agreement any Loan Document or in any certificate, financial statement certificate or other document delivered pursuant hereto notice given in connection therewith shall prove to have been false or incorrect misleading in any material respect when at the time made or deemed to have been made; or;
(f) Except as otherwise provided any Loan Party shall be in this Section 10.01, such Borrower shall default in (after any payment due on applicable period of grace or cure period) under any agreement or agreements evidencing Indebtedness for borrowed money or the deferred purchase price of property, the aggregate outstanding principal amount of which is in excess of five percent (5%) of $1,000,000 in aggregate principal amount, or shall fail to pay such Borrower's Total AssetsIndebtedness when due, and such default shall continue for more than the or within any applicable period of grace, if any, applicable thereto and shall not have been waived pursuant thereto and shall permit the holder of such Indebtedness to declare such Indebtedness due and payable before its stated maturity, or in the performance of or compliance with any term of any evidence of such Indebtedness or of any mortgage, indenture or other agreement relating thereto, and any such default shall continue for more than the period of grace, if any, specified therein and shall not have been waived pursuant thereto and shall permit the holder of such Indebtedness to declare such Indebtedness due and payable before its stated maturity, unless such Borrower shall be contesting such payment or obligation in good faith by appropriate proceedings promptly initiated and diligently conducted and such Borrower shall have set aside on its books such reserves, if any, with respect thereto as are required by GAAP and deemed appropriate by such Borrower and its independent public accountants, PROVIDED, that no Event of Default pursuant to paragraphs (b) or (i) of this Section 10.01 shall have occurred and be continuing as a result of such claim having been asserted in respect of such Indebtedness; or;
(g) Such Borrower shall discontinue any provision of any Loan Document, at any time after its business (execution and delivery and for any reason other than as expressly permitted hereunder or thereunder or satisfaction in connection with a permitted merger full of all the Obligations, ceases to be in full force and effect; or consolidation any Loan Party or any other Person contests in any manner the validity or enforceability of such Borrowerany provision of any Loan Document; or any Loan Party denies that it has any or further liability or obligation under any provision of any Loan Document, or purports to revoke, terminate or rescind any provision of any Loan Document;
(h) or any Loan Party (i) shall make an assignment for the benefit of creditors, (ii) shall be adjudicated bankrupt or insolvent, (iii) shall fail generally to pay its debts as such debts become dueseek the appointment of, or shall apply for or consent to be the appointment subject of or taking possession by an order appointing, a trustee, liquidator or receiver as to all or liquidator (or other similar official) of such Borrower or any substantial part of the property its assets, (iv) shall commence, approve or assets of such Borrower or shall commence a consent to, any case or have an order for relief entered against it proceeding under the federal bankruptcy laws, as now or hereafter constituted, or any other applicable federal or state bankruptcy, insolvency reorganization or other similar lawlaw and, in the case of an involuntary case or if any action shall be taken to dissolve proceeding, such case or liquidate such Borrower (other than in connection with a permitted merger or consolidation of such Borrower); or
(h) If, proceeding is not dismissed within sixty (60) days after following the commencement against such Borrower thereof, or (v) shall be the subject of a an order for relief in an involuntary case under the federal bankruptcy laws, as now or hereafter constituted, or any other applicable federal or state bankruptcy, insolvency or other similar law, such case shall have been consented to or shall not have been dismissed or all orders or proceedings thereunder affecting the operations or the business of such Borrower stayed, or if the stay of any such order or proceeding shall thereafter be set aside, or if within sixty (60) days after the entry of a decree appointing a trustee, receiver or liquidator (or other similar official) of such Borrower or any substantial part of the property of such Borrower such appointment shall not have been vacated; or;
(i) A any Loan Party shall be unable to pay its debts as they mature;
(j) there shall remain undischarged for more than thirty (30) days any final judgment whichor execution action against any Loan Party that, together with other outstanding final judgments claims and execution actions against such Borrower, any Loan Party (not covered by insurance) exceeds an amount $1,000,000 in the aggregate equal to five percent aggregate;
(5%k) of such Borrower's Total Assets (exclusive of amounts covered by available insurance) any Borrower shall be rendered against in default (after any applicable period of grace or cure period) under any Material Contract and such Borrower and if, within thirty (30) days after entry thereof, such judgment default shall not have been discharged or execution thereof stayed pending appealcured to the satisfaction of the other party thereto, or if, within thirty (30) days after the expiration any of any such stay, such judgment Material Contracts shall not have been dischargedterminated or not renewed; or
(jl) Such Borrower or there occurs any member of the Controlled Group shall fail to pay when due an amount or amounts aggregating Change in excess of $500,000 which it is obligated to pay to the PBGC or to a Plan under Title IV of ERISAControl; or a notice of intent to terminate a Plan or Plans having aggregate Unfunded Liabilities in excess of $500,000 shall be filed under Title IV of ERISA by such Borrower or any member of the Controlled Group, any plan administrator or any combination of the foregoing; or the PBGC shall institute proceedings under Title IV of ERISA to terminate or to cause a trustee to be appointed to administer any such Plan or Plans or a proceeding shall be instituted by a fiduciary of any such Plan or Plans against such Borrower or any member of the Controlled Group to enforce Sections 515 or 4219(c)(5) of ERISA; or a condition shall exist by reason of which the PBGC would be entitled to obtain a decree adjudicating that any such Plan or Plans must be terminated; or there shall occur a complete or partial withdrawal fromTHEN, or a default, within the meaning of Section 4219(c)(5) of ERISA, with respect to, one or more Multiemployer Plans which could cause such Borrower or one or more members of the Controlled Group to incur a current payment obligation in excess of $500,000; or
(k) Such Borrower shall cease to be an investment management company (or a Portfolio thereof) registered under the Investment Company Act, or such Borrower's registration under the Investment Company Act, or that of any Borrower Agent of such Borrower, shall lapse or be suspended; then, and in any such event, and at any time thereafter, if any Event of Default shall then be continuing with respect to such defaulting Borrower, :
(i) in In the case of any Event of Default specified in paragraphs (g) and under clause (h) aboveor (i), the Commitments as to such defaulting Borrower shall thereupon automatically be terminated entire unpaid principal amount of the Loan, all interest accrued and unpaid thereon, and all other amounts payable thereunder and under the principal of and accrued interest on the Loans other Loan Documents shall automatically become forthwith due and payable payable, without presentment, demand, protest or other notice or formality of any kind, all of which are hereby expressly waived, and (ii) in the case of any other Event of Default specified above, either or both of the following actions may be taken: the Operations Agent may, and upon the written or telephonic (confirmed in writing) request of the Majority Banks shall, by written notice to such defaulting Borrower (A) declare the principal of and accrued interest in respect of such defaulting Borrower's Loans to be forthwith due and payable, whereupon the principal of and accrued interest in respect of such Loans shall become forthwith due and payable without presentment, demand, protest or other notice of any kind, all of which are hereby expressly waived by such each Borrower; and
(ii) In the case of any Event of Default other than (h) and (i), and/or (B) terminate the Commitments as Lender may, by written notice to such defaulting Borrowerthe Borrowers, whereupon declare the Commitments unpaid principal amount of the Banks Loan, all interest accrued and unpaid thereon, and all other amounts payable hereunder and under the other Loan Documents to make Committed Credit Loans hereunder to such defaulting Borrower shall be forthwith terminate due and payable, without any other presentment, demand, protest or further notice of any kind kind, all of which are hereby expressly waived by each Borrower. No remedy herein conferred upon the Lender is intended to be exclusive of any other remedy and the percentages of the Commitment Fee each and other fees and expenses otherwise payable by such defaulting Borrower hereunder accruing from and after the date of termination every remedy shall be reallocated among the remaining Borrowers PRO RATA on the basis of the percentages set forth opposite such remaining Borrowers' names on SCHEDULE 1cumulative and in addition to every other remedy hereunder, as now or hereafter existing at law or in effect at the time of such terminationequity or otherwise.
Appears in 1 contract
Events of Default; Acceleration. If any of the following events (each an "EVENT OF DEFAULTEvents of Default") shall occur with respect to any Borrowerand be continuing:
(a) Such if the Borrower (i) shall default in the payment of principal of any Loan, interest accrued thereon or fee due hereunder after the same becomes due and payable, whether at maturity or by acceleration or otherwise, or (ii) shall default in the payment of any principal or interest or other amount due hereunder amounts under the Promissory Note, whether at maturity or at any date fixed for payment or prepayment or by declaration or otherwise and such default shall not have been remedied within ten days after the same becomes due and payableoccurrence thereof; or
(b) Such if the Borrower shall default in the performance of or compliance with any term contained in Sections 9.01(a) or 9.01(b) and such default shall have continued for more than three (3) Banking Days, or such Borrower shall default in the performance of or compliance with any term contained in Sections 8.02(d), 8.02(e), 8.02(g), 8.05, 9.02, 9.03 or 9.04; or
(c) Such Borrower shall default in the performance of or compliance with any other term contained herein or in any of the other than those expressly referred to in this Section 10.01, Loan Documents and such default shall not have been remedied within five (5) Banking Days ten days after written notice thereof shall have been given to such Borrower by the Operations Agentoccurrence thereof; or
(dc) Such Borrower shall default in the performance of, or compliance with, if any material term contained in any other written agreement with the Operations Agent or any Bank pertaining to this Agreement or such Borrower's Loans, and such default shall continue for more than the period of grace, if any, specified therein and shall not have been waived pursuant thereto; or
(e) Any representation, warranty or certification made in writing by or statement made or deemed made by such on behalf of the Borrower herein, in this Agreement any of the Loan Documents or in connection with any certificate, financial statement or other document delivered pursuant hereto of the transactions contemplated hereby shall prove to have been false or incorrect in any material respect when on the date as of which made; or
(fd) Except as otherwise provided in this Section 10.01, such if the Borrower shall default (as principal or guarantor or other surety) in the payment of any payment due on Indebtedness for borrowed money or the deferred purchase price of propertyprincipal of, the aggregate outstanding principal amount of which is in excess of five percent (5%) of such Borrower's Total Assets, and such default shall continue for more than the period of gracepremium, if any, applicable thereto and shall not have been waived pursuant thereto and shall permit the holder of such or interest on any Indebtedness to declare such Indebtedness due and payable before its stated maturityany party (other than the Obligations to the Lender hereunder), or shall default in the performance of or compliance with any term other obligation contained in any agreement or instrument evidencing or securing such Indebtedness, and such default (i) in the case of the Senior Debt results in such Indebtedness being accelerated or otherwise becoming immediately due and payable or (ii) in the case of any evidence other Indebtedness gives to the holder of such Indebtedness the right to accelerate such Indebtedness (whether or of not the holder has, in fact, accelerated such Indebtedness), or the right to take action with respect to any mortgage, indenture or other agreement relating theretocollateral securing such Indebtedness, and any such default shall continue for more longer than the period of grace, if any, specified therein and shall not have been waived pursuant thereto and shall permit the holder of such Indebtedness to declare such Indebtedness due and payable before its stated maturity, unless such Borrower shall be contesting such payment or obligation in good faith by appropriate proceedings promptly initiated and diligently conducted and such Borrower shall have set aside on its books such reserves, if any, with respect thereto as are required by GAAP and deemed appropriate by such Borrower and its independent public accountants, PROVIDED, that no Event of Default pursuant to paragraphs (b) or (i) of this Section 10.01 shall have occurred and be continuing as a result of such claim having been asserted in respect of such Indebtednesstherein; or
(ge) Such if either the Borrower shall discontinue its business (other than in connection with a permitted merger or consolidation of such Borrower) or shall make makes an assignment for the benefit of creditors, or petitions or applies for the appointment of a liquidator or receiver or custodian (or similar official) of the Borrower or of any substantial part of its assets, or commences any proceeding or case relating to the Borrower under any bankruptcy, reorganization, arrangements, insolvency, readjustment of debt, dissolution or liquidation or similar law of any jurisdiction, now or hereafter in effect; or
(f) if any such petition or application is filed or any such proceeding or case is commenced against the Borrower and the Borrower indicates its approval thereof, consent thereto or acquiescence therein, or an order is entered appointing any such liquidator or receiver or custodian (or similar official), or adjudicating the Borrower bankrupt or insolvent, or approving a petition in any such proceeding or a decree or order for relief is entered in respect of the Borrower in an involuntary case under any bankruptcy, reorganization, arrangements, insolvency, readjustment of debt, dissolution or liquidation or similar law of any jurisdiction, now or hereafter in effect, and such order remains in effect for more than 30 days, whether or not consecutive; or
(g) if any order is entered in any proceeding by or against the Borrower decreeing or permitting its dissolution or split-up or the winding up of its affairs; or
(h) if the Borrower shall fail generally to not pay its debts as such debts become due, or shall apply for or consent admit in writing its inability to the appointment of or taking possession by a trustee, receiver or liquidator (or other similar official) of such Borrower or any substantial part of the property or assets of such Borrower or shall commence a case or have an order for relief entered against it under the federal bankruptcy laws, as now or hereafter constituted, or any other applicable federal or state bankruptcy, insolvency or other similar law, or if any action shall be taken to dissolve or liquidate such Borrower (other than in connection with a permitted merger or consolidation of such Borrower); or
(h) If, within sixty (60) days after the commencement against such Borrower of a case under the federal bankruptcy laws, as now or hereafter constituted, or any other applicable federal or state bankruptcy, insolvency or other similar law, such case shall have been consented to or shall not have been dismissed or all orders or proceedings thereunder affecting the operations or the business of such Borrower stayed, or if the stay of any such order or proceeding shall thereafter be set aside, or if within sixty (60) days after the entry of a decree appointing a trustee, receiver or liquidator (or other similar official) of such Borrower or any substantial part of the property of such Borrower such appointment shall not have been vacatedpay its debt generally; or
(i) A final judgment whichif there shall occur or be continuing, together with other outstanding final judgments against such Borrowerafter any termination of the Merger Agreement, exceeds an amount in the aggregate equal to five percent (5%) of such Borrower's Total Assets (exclusive of amounts covered by available insurance) shall be rendered against any event, circumstance or condition that has a Borrower Adverse Effect and such Borrower and if, Adverse Effect is not cured within thirty (30) days after entry thereof, such judgment shall not have been discharged or execution thereof stayed pending appeal, or if, within thirty (30) ten days after the expiration of any such stay, such judgment shall not have been dischargedoccurrence thereof; or
(j) Such Borrower or any member of the Controlled Group shall fail to pay when due an amount or amounts aggregating in excess of $500,000 which it is obligated to pay to the PBGC or to a Plan under Title IV of ERISA; or a notice of intent to terminate a Plan or Plans having aggregate Unfunded Liabilities in excess of $500,000 shall be filed under Title IV of ERISA by such Borrower or any member of the Controlled Group, any plan administrator or any combination of the foregoing; or the PBGC shall institute proceedings under Title IV of ERISA to terminate or to cause a trustee to be appointed to administer any such Plan or Plans or a proceeding shall be instituted by a fiduciary of any such Plan or Plans against such Borrower or any member of the Controlled Group to enforce Sections 515 or 4219(c)(5) of ERISA; or a condition shall exist by reason of which the PBGC would be entitled to obtain a decree adjudicating that any such Plan or Plans must be terminated; or if there shall occur a complete or partial withdrawal fromoccur, or if Borrower shall enter into any agreement providing for, a defaultChange of Control of Borrower, within other than the meaning Merger Agreement and any amendments thereto and the acquisition of Section 4219(c)(5) of ERISA, with respect to, one or more Multiemployer Plans which could cause such Borrower or one or more members of the Controlled Group to incur a current payment obligation in excess of $500,000by Lender contemplated thereby; or
(k) Such if the Merger Agreement shall be terminated under circumstances where the Borrower shall cease is obligated to be an investment management company (or pay a Portfolio thereof) registered under termination fee to Lender pursuant to Section 11.1 of the Investment Company ActMerger Agreement. then and in each and every such event the Lender may, or such Borrower's registration under by written notice to the Investment Company Act, or that of any Borrower Agent of such Borrower, shall lapse or be suspended; then, and in any such event, and at any time thereafter, if any Event of Default shall then be continuing declare all amounts owing with respect to such defaulting Borrowerthe Promissory Note to be due and payable (unless there shall occur any event specified in any of paragraphs (e), (i) in the case of any Event of Default specified in paragraphs f), (g) and ), (h), (j) aboveor (k) of this Section 6, the Commitments as in which case all amounts owing with respect to such defaulting Borrower shall thereupon automatically be terminated this Agreement and the principal of and accrued interest on the Loans Promissory Note shall automatically become due and payable), and thereupon in either instance the same shall forthwith mature (the definition of "Maturity Date" hereunder being deemed to be automatically amended to mean the date of such Event of Default) and become immediately due and payable together with interest thereon and all other amounts then owing under this Agreement and the Promissory Note, without presentment, demand, protest or other notice or formality of any kindnotice, all of which are hereby expressly waived, and (ii) in the case of any other Event of Default specified above, either or both of the following actions may be taken: the Operations Agent may, and upon the written or telephonic (confirmed in writing) request of the Majority Banks shall, by written notice to such defaulting Borrower (A) declare the principal of and accrued interest in respect of such defaulting Borrower's Loans to be forthwith due and payable, whereupon the principal of and accrued interest in respect of such Loans shall become forthwith due and payable without presentment, demand, protest or other notice of any kind, all of which are hereby expressly waived by such Borrower, and/or (B) terminate the Commitments as to such defaulting Borrower, whereupon the Commitments of the Banks to make Committed Credit Loans hereunder to such defaulting Borrower shall forthwith terminate without any other notice of any kind and the percentages of the Commitment Fee and other fees and expenses otherwise payable by such defaulting Borrower hereunder accruing from and after the date of termination shall be reallocated among the remaining Borrowers PRO RATA on the basis of the percentages set forth opposite such remaining Borrowers' names on SCHEDULE 1, as in effect at the time of such termination.
Appears in 1 contract
Events of Default; Acceleration. If a. In the event (each, an “Event of Default”) of:
(i) any default in payment by the Borrower when due of the following events principal amount of the Loans, interest thereon or any other amount payable under the Loan Documents, whether at the Applicable Maturity Date or otherwise; (each an "EVENT OF DEFAULT"ii) shall occur the occurrence of any breach or default by the Borrower under this Agreement; (iii) the commencement of any proceeding with respect to the Borrower under any Borrower:
(a) Such Borrower (i) shall default bankruptcy or insolvency law and, in the payment of principal case of any Loansuch proceedings instituted against (but not by or with the consent of) the Borrower, interest accrued thereon either such proceedings shall remain undismissed or fee due hereunder after the same becomes due and payable, whether at maturity unstayed for a period of 60 days or by acceleration more or otherwise, any action sought in such proceedings shall occur; (iv) any representation or (ii) shall default in the payment of any other amount due hereunder after the same becomes due and payable; or
(b) Such Borrower shall default in the performance of or compliance with any term contained in Sections 9.01(a) or 9.01(b) and such default shall have continued for more than three (3) Banking Days, or such Borrower shall default in the performance of or compliance with any term contained in Sections 8.02(d), 8.02(e), 8.02(g), 8.05, 9.02, 9.03 or 9.04; or
(c) Such Borrower shall default in the performance of or compliance with any term contained herein other than those expressly referred to in this Section 10.01, and such default shall not have been remedied within five (5) Banking Days after written notice thereof shall have been given to such Borrower warranty made by the Operations Agent; or
(d) Such Borrower shall default herein is false or misleading in the performance of, or compliance with, any material term contained in any other written agreement with respect on the Operations Agent date when made or any Bank pertaining to this Agreement or such Borrower's Loans, and such default deemed made; (v) final judgments which exceed an aggregate of $5,000,000 shall continue for more than be rendered against the period of grace, if any, specified therein Borrower and shall not have been waived pursuant thereto; or
(e) Any representationpaid, warranty certification or statement made or deemed made by such Borrower in this Agreement or in any certificate, financial statement or other document delivered pursuant hereto shall prove to have been false or incorrect in any material respect when made; or
(f) Except as otherwise provided in this Section 10.01, such Borrower shall default in any payment due on Indebtedness for borrowed money or the deferred purchase price of property, the aggregate outstanding principal amount of which is in excess of five percent (5%) of such Borrower's Total Assets, and such default shall continue for more than the period of grace, if any, applicable thereto and shall not have been waived pursuant thereto and shall permit the holder of such Indebtedness to declare such Indebtedness due and payable before its stated maturity, or in the performance of or compliance with any term of any evidence of such Indebtedness or of any mortgage, indenture or other agreement relating thereto, and any such default shall continue for more than the period of grace, if any, specified therein and shall not have been waived pursuant thereto and shall permit the holder of such Indebtedness to declare such Indebtedness due and payable before its stated maturity, unless such Borrower shall be contesting such payment or obligation in good faith by appropriate proceedings promptly initiated and diligently conducted and such Borrower shall have set aside on its books such reserves, if any, with respect thereto as are required by GAAP and deemed appropriate by such Borrower and its independent public accountants, PROVIDED, that no Event of Default pursuant to paragraphs (b) or (i) of this Section 10.01 shall have occurred and be continuing as a result of such claim having been asserted in respect of such Indebtedness; or
(g) Such Borrower shall discontinue its business (other than in connection with a permitted merger or consolidation of such Borrower) or shall make an assignment for the benefit of creditors, or shall fail generally to pay its debts as such debts become due, or shall apply for or consent to the appointment of or taking possession by a trustee, receiver or liquidator (or other similar official) of such Borrower or any substantial part of the property or assets of such Borrower or shall commence a case or have an order for relief entered against it under the federal bankruptcy laws, as now or hereafter constituted, or any other applicable federal or state bankruptcy, insolvency or other similar law, or if any action shall be taken to dissolve or liquidate such Borrower (other than in connection with a permitted merger or consolidation of such Borrower); or
(h) If, within sixty (60) days after the commencement against such Borrower of a case under the federal bankruptcy laws, as now or hereafter constituted, or any other applicable federal or state bankruptcy, insolvency or other similar law, such case shall have been consented to or shall not have been dismissed or all orders or proceedings thereunder affecting the operations or the business of such Borrower stayed, or if the stay of any such order or proceeding shall thereafter be set aside, or if within sixty (60) days after the entry of a decree appointing a trustee, receiver or liquidator (or other similar official) of such Borrower or any substantial part of the property of such Borrower such appointment shall not have been vacated; or
(i) A final judgment which, together with other outstanding final judgments against such Borrower, exceeds an amount in the aggregate equal to five percent (5%) of such Borrower's Total Assets (exclusive of amounts covered by available insurance) shall be rendered against such Borrower and if, within thirty (30) days after entry thereof, such judgment shall not have been discharged or vacated or had execution thereof stayed pending appeal, or if, appeal within thirty (30) 30 business days after the expiration entry or filing of such judgments; (vi) as of any such stay, such judgment shall not have been discharged; or
(j) Such Borrower or any member required date of determination under Regulation U of the Controlled Group Board of Governors of the Federal Reserve System, the value of the Collateral is less than the value required by such Regulation U so as to cause a violation of such Regulation U; or (vii) any provision of this Agreement shall fail to pay when due an amount be valid and binding on, or amounts aggregating in excess of $500,000 which it is obligated to pay to enforceable against, the PBGC or to a Plan under Title IV of ERISA; or a notice of intent to terminate a Plan or Plans having aggregate Unfunded Liabilities in excess of $500,000 shall be filed under Title IV of ERISA by such Borrower or any member of the Controlled GroupBorrower, any plan administrator or any combination of the foregoing; or the PBGC shall institute proceedings lien created under Title IV of ERISA to terminate or to cause a trustee to be appointed to administer any such Plan or Plans or a proceeding shall be instituted by a fiduciary of any such Plan or Plans against such Borrower or any member of the Controlled Group to enforce Sections 515 or 4219(c)(5) of ERISA; or a condition shall exist by reason of which the PBGC would be entitled to obtain a decree adjudicating that any such Plan or Plans must be terminated; or there shall occur a complete or partial withdrawal from, or a default, within the meaning of Section 4219(c)(5) of ERISA, with respect to, one or more Multiemployer Plans which could cause such Borrower or one or more members of the Controlled Group to incur a current payment obligation in excess of $500,000; or
(k) Such Borrower this Agreement shall cease to be an investment management company (or a Portfolio thereof) registered under first priority, fully perfected security interest in the Investment Company ActCollateral granted by the Borrower, the Lender may elect then, or such Borrower's registration under the Investment Company Act, or that of any Borrower Agent of such Borrower, shall lapse or be suspended; then, and in any such event, and at any time thereafter, if any Event of Default shall then be continuing with respect to such defaulting Borrower, (i) in the case of any Event of Default specified in paragraphs (g) and (h) above, the Commitments as to such defaulting Borrower shall thereupon automatically be terminated and the principal of and accrued interest on declare the Loans shall automatically become to be immediately due and payable without presentmentin whole or in part, demand, protest or other notice or formality of any kind, all of which are hereby expressly waived, and (ii) in whereupon the case of any other Event of Default specified above, either or both principal amount of the following actions may be taken: the Operations Agent may, and upon the written or telephonic (confirmed in writing) request of the Majority Banks shall, by written notice to such defaulting Borrower (A) declare the principal of and accrued interest in respect of such defaulting Borrower's Loans so declared to be forthwith due and payable, whereupon the principal of and together with accrued interest in respect thereon and all other liabilities of such Loans the Borrower accrued hereunder, under any Loan Document and under any other document relating to the Loans, shall become forthwith immediately due and payable in cash, without presentment, demandsetoff, protest protest, deduction, or other any notice of any kind, all of which are hereby expressly waived by such the Borrower, and/or anything contained herein, in any Loan Document or in any other document relating to the Loans to the contrary notwithstanding. Notwithstanding the foregoing, if an Event of Default under clause (Biii) terminate or clause (vi) shall occur and be continuing with respect to the Commitments as to such defaulting Borrower, whereupon then the Commitments unpaid principal amount of the Banks to make Committed Credit Loans hereunder to such defaulting together with interest thereon and all other liabilities of the Borrower shall forthwith terminate without accrued hereunder, under this Agreement and under any other document relating to the Loans, shall automatically become immediately due and payable in cash, without presentment, setoff, protest, deduction, or any notice of any kind kind, all of which are hereby expressly waived by the Borrower, anything contained herein or in any other document relating to the Loans to the contrary notwithstanding.
b. In addition to the foregoing rights and remedies and all other rights and remedies available to the percentages Lender under applicable law or in equity, the Lender may avail itself of the Commitment Fee rights and remedies set forth in the Uniform Commercial Code of the State of New York and any other applicable jurisdiction. To the extent necessary, proceeds shall be used, first, to pay all expenses of the Lender in enforcing this Agreement, including without limitation attorneys’ fees and legal expenses otherwise payable incurred by such defaulting Borrower hereunder accruing from the Lender; next, to satisfy any remaining obligations under this Agreement, first to accrued but unpaid interest on the Loans and after then to the date of termination principal on the Loans; any remaining proceeds shall be reallocated among delivered to the remaining Borrowers PRO RATA on the basis of the percentages set forth opposite such remaining Borrowers' names on SCHEDULE 1, as in effect at the time of such terminationBorrower.
Appears in 1 contract
Events of Default; Acceleration. If any of the following conditions or events (each an "EVENT OF DEFAULTEvents of Default") shall occur with respect to any Borrowerand be continuing:
(a) Such Borrower (i) the Company shall default in the payment of any principal of or Make Whole Amount, Premium Amount, if any, on any Loan, interest accrued thereon or fee due hereunder after Note when the same becomes due and payable, whether at maturity or at a date fixed for prepayment or by acceleration declaration or otherwise, or ; or
(iib) the Company shall default in the payment of any other interest on any Note or any amount due hereunder and payable under any Operative Agreement for more than 5 Business Days after the same becomes due and payable; or
(bc) Such Borrower the Company or any Restricted Subsidiary shall default in the performance of or compliance with any term contained in Section 7(f), any of Sections 9.01(a) or 9.01(b) and such default shall have continued for more 10.1 through 10.8 (other than three (3) Banking DaysSection 10.8(c)), inclusive, or such Borrower the Dedicated Funds are not used to repay Indebtedness as specified in the pro forma calculations set forth in the definition of Consolidated Pro Forma Debt Service or the definition of Maximum Consolidated Pro Forma Debt Service, as the case may be; or
(d) the Company, either General Partner, Northwestern, the Public Partnership or any Restricted Subsidiary shall default in the performance of or compliance with any other term contained in Sections 8.02(d), 8.02(e), 8.02(g), 8.05, 9.02, 9.03 this Agreement or 9.04; or
(c) Such Borrower shall default in the performance of or compliance with any term contained herein other than those expressly referred to in this Section 10.01, Operative Agreement and such default shall not have been remedied within five (5) Banking 30 Business Days after the earlier of the date such default shall first have become actually known to any Responsible Officer of such Person or the date written notice thereof shall have been given to such Borrower received by the Operations AgentCompany from the Trustee; or
(de) Such Borrower any material representation or warranty made in writing by or on behalf of the Company or any of its Affiliates in this Agreement, any other Operative Agreement or in any instrument furnished in connection with the transactions contemplated by this Agreement shall prove to have been false or incorrect in any material respect on the date as of which made or deemed made; or
(i) the Company or any Restricted Subsidiary (as principal or guarantor or other surety) shall default (after receiving notice, if any, and/or the expiration of any applicable grace period) in the performance ofpayment of any amount of principal of or premium or interest on the Bank Credit Facilities or any facility extending, renewing or refinancing the Bank Credit Facilities (including any prior extension, renewal or refinancing thereof); or any event shall occur or condition shall exist in respect of the Bank Credit Facilities or any facility extending, renewing or refinancing the Bank Credit Facilities, or compliance withof any mortgage, any material term contained in any indenture or other written agreement with relating to the Operations Agent Bank Credit Facilities or any facility extending, renewing or refinancing the Bank pertaining Credit Facilities the effect of which is to this Agreement cause such Bank Credit Facilities or any facility extending, renewing or refinancing the Bank Credit Facilities (including any prior extension, renewal or refinancing thereof), to become due before its stated maturity or before its regularly scheduled dates of payment or to permit the holders thereof to cause the Company or any Restricted Subsidiary to repurchase or repay such Borrower's LoansBank Credit Facilities or any facility extending, renewing or refinancing the Bank Credit Facilities (including any prior extension, renewal or refinancing thereof), and such default default, event or condition shall continue for more than the period of grace, if any, specified therein and shall not have been waived pursuant thereto; or;]
(eii) Any representation, warranty certification the Company or statement made any Restricted Subsidiary (as principal or deemed made by such Borrower in this Agreement or in any certificate, financial statement guarantor or other document delivered pursuant hereto shall prove to have been false or incorrect in any material respect when made; or
(fsurety) Except as otherwise provided in this Section 10.01, such Borrower shall default in any payment due on Indebtedness for borrowed money or the deferred purchase price of property, the aggregate outstanding principal amount of which is in excess of five percent (5%) of such Borrower's Total Assets, and such default shall continue for more than the period of graceafter receiving notice, if any, and/or the expiration of any applicable thereto grace period) in the payment of any amount of principal of or premium or interest on any Indebtedness in an amount at least equal to $10,000,000 [(other than the Bank Credit Facilities or any facility extending, renewing or refinancing the Bank Credit Facilities and the Notes)]; or any event shall not have been waived pursuant thereto and occur or condition shall permit the holder exist in respect of such other Indebtedness to declare such Indebtedness due and payable before its stated maturity, which is outstanding in a principal amount of at least $10,000,000 or in the performance of or compliance with any term of under any evidence of any such Indebtedness or of any mortgage, indenture or other agreement relating theretoto such other Indebtedness, and any the effect of which is to cause such default shall continue for more than the period of grace, if any, specified therein and shall not have been waived pursuant thereto and shall permit the holder of such other Indebtedness to declare such Indebtedness become due and payable before its stated maturity, unless such Borrower shall be contesting such payment maturity or obligation in good faith by appropriate proceedings promptly initiated and diligently conducted and such Borrower shall have set aside on before its books such reserves, if any, with respect thereto as are required by GAAP and deemed appropriate by such Borrower and its independent public accountants, PROVIDED, that no Event regularly scheduled dates of Default pursuant to paragraphs (b) or (i) of this Section 10.01 shall have occurred and be continuing as a result of such claim having been asserted in respect of such Indebtednesspayment; or
(g) Such Borrower shall discontinue filing by or on the behalf of the Company or the Managing General Partner of a voluntary petition or an answer seeking reorganization, arrangement, readjustment of its business debts or for any other relief under any bankruptcy, reorganization, compromise, arrangement, insolvency, readjustment of debt, dissolution or liquidation or similar act or law, state or federal, now or hereafter existing ("Bankruptcy Law"), or any action by the Company or the Managing General Partner, or consent or acquiescence to, the appointment of a receiver, trustee or other than in connection with custodian of the Company or the Managing General Partner, or of all or a permitted merger substantial part of its property; or consolidation the making by the Company or the Managing General Partner of such Borrower) or shall make an any assignment for the benefit of creditors, ; or shall fail generally the admission by the Company or the Managing General Partner of the Company in writing of its inability to pay its debts as such debts they become due, or shall apply for or consent to the appointment of or taking possession by a trustee, receiver or liquidator (or other similar official) of such Borrower or any substantial part of the property or assets of such Borrower or shall commence a case or have an order for relief entered against it under the federal bankruptcy laws, as now or hereafter constituted, or any other applicable federal or state bankruptcy, insolvency or other similar law, or if any action shall be taken to dissolve or liquidate such Borrower (other than in connection with a permitted merger or consolidation of such Borrower); or
(h) Iffiling of any involuntary petition against the Company or the Managing General Partner in bankruptcy or seeking reorganization, within sixty (60) days after arrangement, readjustment of its debts or for any other relief under any Bankruptcy Law and an order for relief by a court having jurisdiction in the commencement against such Borrower of a case under the federal bankruptcy laws, as now premises shall have been issued or hereafter constituted, entered therein; or any other similar relief shall be granted under any applicable federal Federal or state bankruptcylaw; or a decree or order of a court having jurisdiction in the premises for the appointment of a receiver, insolvency liquidator, sequestrator, trustee or other officer having similar law, such case powers over the Company or the Managing General Partner or over all or a part of its property shall have been consented to or shall not have been dismissed or all orders or proceedings thereunder affecting the operations entered; or the business involuntary appointment of such Borrower stayedan interim receiver, trustee or if other custodian of the stay Company or the Managing General Partner or of any such order all or proceeding shall thereafter be set aside, a substantial part of its property; or if within sixty (60) days after the entry issuance of a decree appointing a trusteewarrant of attachment, receiver execution or liquidator (or other similar official) of such Borrower or process against any substantial part of the property of the Company or the Managing General Partner; and continuance of any such Borrower such appointment shall not have been vacatedevent for 60 consecutive days unless dismissed, bonded to the satisfaction of the court having jurisdiction in the premises or discharged; or
(i) A filing by or on the behalf of any Restricted Subsidiary of a voluntary petition or an answer seeking reorganization, arrangement, readjustment of its debts or for any other relief under any Bankruptcy Law, or any action by any Restricted Subsidiary for, or consent or acquiescence to, the appointment of a receiver, trustee or other custodian of such Restricted Subsidiary or of all or a substantial part of its property; or the making by any Restricted Subsidiary of any assignment for the benefit of creditors; or the admission by any Restricted Subsidiary in writing of its inability to pay its debts as they become due; or
(j) filing of any involuntary petition against any Restricted Subsidiary in bankruptcy or seeking reorganization, arrangement, readjustment of its debts or for any other relief under any Bankruptcy Law and an order for relief by a court having jurisdiction in the premises shall have been issued or entered therein; or any other similar relief shall be granted under any applicable Federal or state law; or a decree or order of a court having jurisdiction in the premises for the appointment of a receiver, liquidator, sequestrator, trustee or other officer having similar powers over any Restricted Subsidiary or over all or a part of its property shall have been entered; or the involuntary appointment of an interim receiver, trustee or other custodian of any Restricted Subsidiary or of all or a substantial part of its property; or the issuance of a warrant of attachment, execution or similar process against any substantial part of the property of any Restricted Subsidiary; and continuance of any such event for 60 consecutive days unless dismissed, bonded to the satisfaction of the court having jurisdiction in the premises or discharged; or
(k) a final judgment which, together with other outstanding final or judgments against such Borrower, exceeds an amount in the aggregate equal (which is or are non-appealable or which has or have not been stayed pending appeal or as to five percent (5%) of such Borrower's Total Assets (exclusive of amounts covered by available insurancewhich all rights to appeal have expired or been exhausted) shall be rendered against the Company or any Restricted Subsidiary for the payment of money in excess of $10,000,000 in the aggregate (net of any insurance coverage) and any one of such Borrower and if, within thirty (30) days after entry thereof, such judgment judgments shall not have been be discharged or execution thereof thereon stayed pending appeal, or if, appeal within thirty (30) 60 days after the expiration date due, or, in the event of any such a stay, such judgment shall not have been dischargedbe discharged within 60 days after such stay expires or any action shall be legally taken by a judgment creditor to levy upon the assets or properties of the Company or any Restricted Subsidiary to enforce any such judgment; or
(jl) Such Borrower any of the Security Documents shall at any time, for any reason, cease in any material respect to be in full force and effect or shall be declared to be null and void in whole or in any material part by the final judgment (which is non-appealable or has not been stayed pending appeal or as to which all rights to appeal have expired or been exhausted) of any court or other governmental or regulatory authority having jurisdiction in respect thereof, or if the validity or the enforceability of any of the Security Documents shall be contested by or on behalf of the Company, either General Partner, the Managing General Partner, the Public Partnership, Northwestern or any member Restricted Subsidiary, or the Company, either General Partner, the Managing General Partner, the Public Partnership, Northwestern or any Restricted Subsidiary shall renounce any of the Controlled Group shall fail to pay when due an amount Security Documents or amounts aggregating in excess of $500,000 which deny that it is obligated to pay to bound by the PBGC or to a Plan under Title IV terms of ERISA; or a notice of intent to terminate a Plan or Plans having aggregate Unfunded Liabilities in excess of $500,000 shall be filed under Title IV of ERISA by such Borrower or any member of the Controlled Group, any plan administrator or any combination of the foregoing; or the PBGC shall institute proceedings under Title IV of ERISA to terminate or to cause a trustee to be appointed to administer any such Plan or Plans or a proceeding shall be instituted by a fiduciary of any such Plan or Plans against such Borrower or any member of the Controlled Group to enforce Sections 515 or 4219(c)(5) of ERISA; or a condition shall exist by reason of which the PBGC would be entitled to obtain a decree adjudicating that any such Plan or Plans must be terminated; or there shall occur a complete or partial withdrawal from, or a default, within the meaning of Section 4219(c)(5) of ERISA, with respect to, one or more Multiemployer Plans which could cause such Borrower or one or more members of the Controlled Group to incur a current payment obligation in excess of $500,000Security Documents; or
(km) Such Borrower any order, judgment or decree is entered in any proceedings against the Company decreeing a split-up of the Company, and such order, judgment or decree shall cease to not be an investment management company (dismissed or a Portfolio execution ▇▇▇▇▇▇▇ stayed pending appeal or review within 60 days after entry thereof) registered under the Investment Company Act, or such Borrower's registration under in the Investment Company Act, or that of any Borrower Agent event of such Borrowera stay, such order, judgment or decree shall lapse or not be suspended; then, and in any dismissed within 60 days after such event, and at any time thereafter, if any Event of Default shall then be continuing with respect to such defaulting Borrower, (i) in the case of any Event of Default specified in paragraphs (g) and (h) above, the Commitments as to such defaulting Borrower shall thereupon automatically be terminated and the principal of and accrued interest on the Loans shall automatically become due and payable without presentment, demand, protest or other notice or formality of any kind, all of which are hereby expressly waived, and (ii) in the case of any other Event of Default specified above, either or both of the following actions may be taken: the Operations Agent may, and upon the written or telephonic (confirmed in writing) request of the Majority Banks shall, by written notice to such defaulting Borrower (A) declare the principal of and accrued interest in respect of such defaulting Borrower's Loans to be forthwith due and payable, whereupon the principal of and accrued interest in respect of such Loans shall become forthwith due and payable without presentment, demand, protest or other notice of any kind, all of which are hereby expressly waived by such Borrower, and/or (B) terminate the Commitments as to such defaulting Borrower, whereupon the Commitments of the Banks to make Committed Credit Loans hereunder to such defaulting Borrower shall forthwith terminate without any other notice of any kind and the percentages of the Commitment Fee and other fees and expenses otherwise payable by such defaulting Borrower hereunder accruing from and after the date of termination shall be reallocated among the remaining Borrowers PRO RATA on the basis of the percentages set forth opposite such remaining Borrowers' names on SCHEDULE 1, as in effect at the time of such termination.stay expires;
Appears in 1 contract
Events of Default; Acceleration. If any The occurrence of one or more of the following events without a permitted cure within the time period provided herein (each an "EVENT OF DEFAULTEvent of Default") shall occur with respect to any Borrowerconstitute an Event of Default:
(a) Such Borrower (i) The Company shall default in the payment of principal of or interest on the Note or any Loan, interest accrued thereon or other fee due hereunder after when the same becomes due and payable, whether on demand, at maturity or by acceleration or otherwise, or (ii) shall default in at a date fixed for the payment of any other amount due hereunder installment or prepayment thereof or otherwise and, with respect to payment of interest, such default is not cured within five (5) days after notice of such default is given to the same becomes due and payable; orCompany. Notwithstanding the foregoing, the Company shall twice each year be allowed ten (10) days to cure any such default in lieu of the five (5) day cure period after notice of such default is given to the Company.
(b) Such Borrower The Company shall default in the performance of or compliance with any term covenant or agreement contained in Sections 9.01(a) or 9.01(b) and such default shall have continued for more than three (3) Banking Days, or such Borrower shall default in the performance of or compliance with any term contained in Sections 8.02(d), 8.02(e), 8.02(g), 8.05, 9.02, 9.03 or 9.04; or
(c) Such Borrower shall default in the performance of or compliance with any term contained herein other than those expressly referred to in this Section 10.01, and such default shall not have been remedied within five (5) Banking Days after written notice thereof shall have been given to such Borrower by the Operations Agent; or
(d) Such Borrower shall default in the performance of, or compliance with, any material term contained in any other written agreement with the Operations Agent or any Bank pertaining to this Agreement or such Borrower's LoansInvestment Documents, and such default shall continue for more than fifteen (15) days after notice of such default is given to the Company reduced, however, for any period of gracegrace allowed under any such Investment Document or, in the case of a default under Sections 0, 0 and 0 thirty (30) days after notice of such default is given to the Company. Notwithstanding the foregoing, the Company shall have the right to cure a default under any or all of Section 7.2, 7.3, and 7.4 a total of two (2) times while the Note is unpaid (i) by causing the Principal Stockholders to invest in the Common Stock of the Company at the then market value of the Common Stock, or (ii) by invoking a grace period until the status of the Company under such Section is determined at the end of the subsequent quarter, and if anythere is no default under such Section at the end of the subsequent quarter, specified therein and the default shall be deemed to have not have been waived pursuant thereto; oroccurred. Any ratio determined after a period of grace shall be determined based on the previous six-month or twelve-month period, as applicable.
(ec) A default occurs under any document evidencing the Senior Indebtedness;
(d) Any representation, material representation or warranty certification or statement made or deemed made by such Borrower in this Agreement the Company herein or in any certificate, financial statement or other document delivered pursuant hereto shall prove to have been false or incorrect in any material respect when made; or;
(fe) Except as otherwise provided in this Section 10.01, such Borrower shall default in any payment due on Indebtedness for borrowed money or the deferred purchase price of property, the aggregate outstanding principal amount of which is in excess of five percent (5%) of such Borrower's Total Assets, and such default shall continue for more than the period of grace, if any, applicable thereto and shall not have been waived pursuant thereto and shall permit the holder of such Indebtedness to declare such Indebtedness due and payable before its stated maturity, or in the performance of or compliance with any term of any evidence of such Indebtedness or of any mortgage, indenture or other agreement relating thereto, and any such default shall continue for more than the period of grace, if any, specified therein and shall not have been waived pursuant thereto and shall permit the holder of such Indebtedness to declare such Indebtedness due and payable before its stated maturity, unless such Borrower shall be contesting such payment or obligation in good faith by appropriate proceedings promptly initiated and diligently conducted and such Borrower shall have set aside on its books such reserves, if any, with respect thereto as are required by GAAP and deemed appropriate by such Borrower and its independent public accountants, PROVIDED, that no Event of Default pursuant to paragraphs (b) or (i) of this Section 10.01 shall have occurred and be continuing as a result of such claim having been asserted in respect of such Indebtedness; or
(g) Such Borrower The Company shall discontinue its business (other than in connection with a permitted merger or consolidation of such Borrower) or shall make an assignment for the benefit of creditors, or shall fail generally to pay its debts as such debts become due, or shall apply for or consent to the appointment of or taking possession by a trustee, receiver or liquidator (or other similar official) of such Borrower the Company or any substantial part of the property or assets of such Borrower the Company, or shall commence a case or have an order for relief entered against it under the federal bankruptcy laws, as now or hereafter constituted, or any other applicable federal or state bankruptcy, insolvency or other similar law, or if the Company shall take any action shall be taken to dissolve or liquidate such Borrower (other than in connection with a permitted merger or consolidation of such Borrower); orthe Company;
(hf) If, within sixty (60) days after the commencement against such Borrower the Company of a case under the federal bankruptcy laws, as now or hereafter constituted, or any other applicable federal or state bankruptcy, insolvency or other similar law, such case shall have been consented to or shall not have been dismissed or all orders or proceedings thereunder affecting the operations or the business of such Borrower the Company stayed, or if the stay of any such order or proceeding shall thereafter be set aside, or if within sixty (60) days after the entry of a decree appointing a trustee, receiver or liquidator (or other similar official) of such Borrower the Company or any substantial part of the property of such Borrower the Company, such appointment shall not have been vacated; or;
(ig) A An uninsured final judgment which, together with other outstanding uninsured final judgments against such Borrowerthe Company, exceeds an amount in the aggregate equal to greater of (i) five percent (5%) of such Borrowerthe Company's Total Assets annual revenue for the preceding twelve month period or (exclusive of amounts covered by available insuranceii) $250,000 shall be rendered against such Borrower and if, within thirty (30) days after entry thereof, the Company unless such judgment shall not have has been discharged or appealed and an execution thereof stayed pending appeal, appeal or ifunless, within thirty sixty (3060) days after the expiration of any such stay, such judgment has been discharged, or if any such judgment shall not be discharged forthwith upon the commencement of proceedings to foreclose any lien, attachment or charge which may attach as security therefor and before any of the property or assets of the Company shall have been discharged; orseized in satisfaction thereof;
(h) A change in ownership of more than sixty percent (60%) of the outstanding voting stock of the Company on a fully diluted basis in a single transaction or a series of unrelated transactions, excluding public transactions within a twelve (12) month period;
(i) Schaden shall cease to be employed by the Company as Chief Executive Officer. Notwithstanding the foregoing, an Event of Default shall not occur upon Schaden's death so long as the Company maintains a Key Man Life Insurance Policy on Schaden payable to the Company in the amount of $1 million.
(j) Such Borrower or any member After 90 days of the Controlled Group shall fail date hereof, the Company fails to pay when due an maintain insurance payable to the Company on Schaden in the amount or amounts aggregating in excess of $500,000 which it is obligated to pay to the PBGC or to a Plan under Title IV of ERISA; or a notice of intent to terminate a Plan or Plans having aggregate Unfunded Liabilities in excess of $500,000 shall be filed under Title IV of ERISA by such Borrower or any member of the Controlled Group, any plan administrator or any combination of the foregoing; or the PBGC shall institute proceedings under Title IV of ERISA to terminate or to cause a trustee to be appointed to administer any such Plan or Plans or a proceeding shall be instituted by a fiduciary of any such Plan or Plans against such Borrower or any member of the Controlled Group to enforce Sections 515 or 4219(c)(5) of ERISA; or a condition shall exist by reason of which the PBGC would be entitled to obtain a decree adjudicating that any such Plan or Plans must be terminated; or there shall occur a complete or partial withdrawal from, or a default, within the meaning of Section 4219(c)(5) of ERISA, with respect to, one or more Multiemployer Plans which could cause such Borrower or one or more members of the Controlled Group to incur a current payment obligation in excess of $500,000; or1,000,000;
(k) Such Borrower A material adverse change shall cease occur with respect to be an investment management company the assets, liabilities, operations or prospects of the Company;
(l) The Company shall use the proceeds of the Note for a purpose not permitted pursuant to Exhibit 0.
(m) Litigation is commenced against the Company which, materially restricts the ability of the Company to carry on its business;
(n) a merger or consolidation involving the Company (in a single transaction or a Portfolio thereofseries of related or unrelated transactions) registered under excluding one or more mergers or consolidations in which the Investment Company Actor a wholly owned subsidiary of the Company is the survivor and following such merger or consolidation, the shareholders of the Company immediately prior to such event shall own a majority of the stock of the surviving corporation in which no more than 200 retail food outlets are acquired in the aggregate, for the purposes of operation of or conversion to the Quizno's store concept, as so long as such Borrowermerger or consolidation does not violate any of the terms of the Transaction Documents;
(o) a sale of all or a material part of the Company's registration under assets unless the Investment Company Act, or that Note is retired upon such sale;
(p) the completion of any Borrower Agent of a Qualified Public Offering unless the Note is retired upon such Borrower, shall lapse or be suspended; then, and in any such event, and at any time thereafter, if any Qualified Public Offering;
(q) an Event of Default shall then be continuing with respect to such defaulting Borrower, (i) in occurs under the case of any Event of Default specified in paragraphs (g) and (h) above, Security Agreement or the Commitments as to such defaulting Borrower shall thereupon automatically be terminated and the principal of and accrued interest on the Loans shall automatically become due and payable without presentment, demand, protest or other notice or formality of any kind, all of which are hereby expressly waived, and (ii) in the case of any other Event of Default specified above, either or both of the following actions may be taken: the Operations Agent may, and upon the written or telephonic (confirmed in writing) request of the Majority Banks shall, by written notice to such defaulting Borrower (A) declare the principal of and accrued interest in respect of such defaulting Borrower's Loans to be forthwith due and payable, whereupon the principal of and accrued interest in respect of such Loans shall become forthwith due and payable without presentment, demand, protest or other notice of any kind, all of which are hereby expressly waived by such Borrower, and/or (B) terminate the Commitments as to such defaulting Borrower, whereupon the Commitments of the Banks to make Committed Credit Loans hereunder to such defaulting Borrower shall forthwith terminate without any other notice of any kind and the percentages of the Commitment Fee and other fees and expenses otherwise payable by such defaulting Borrower hereunder accruing from and after the date of termination shall be reallocated among the remaining Borrowers PRO RATA on the basis of the percentages set forth opposite such remaining Borrowers' names on SCHEDULE 1, as in effect at the time of such terminationPledge Agreement.
Appears in 1 contract
Sources: Investment Agreement (Quiznos Corp)
Events of Default; Acceleration. If any one or more of the following events (each an "EVENT OF DEFAULT"herein called “Events of Default”) shall occur with respect for any reason whatsoever (and whether such occurrence shall be voluntary or involuntary or be effected by operation of law or pursuant to any Borrower:judgment, decree or order of any court or any order, rule or regulation of any administrative or governmental body):
(aA) Such Borrower default in the payment of any interest upon the Note when such interest becomes due and payable, and such default shall have continued for a period of fifteen (i15) shall days; or
(B) default in the payment of principal of any Loan(or prepayment premium, interest accrued thereon or fee due hereunder after if any, on) the Note when and as the same becomes shall become due and payable, whether at maturity or at a date fixed for principal payment or prepayment (including, without limitation, a principal payment or prepayment as provided in Section 6), or by acceleration or otherwise, or (ii) shall default in the payment of any other amount due hereunder after the same becomes due and payable; or
(b) Such Borrower shall default in the performance of or compliance with any term contained in Sections 9.01(a) or 9.01(b) and such default shall have continued for more than three a period of fifteen (315) Banking Days, or such Borrower shall days; or
(C) default in the performance or observance of any other covenant, agreement or compliance with any term condition contained in Sections 8.02(d)herein, 8.02(e), 8.02(g), 8.05, 9.02, 9.03 or 9.04; or
(c) Such Borrower shall default in the performance Note, the Deed of Trust, the Security Agreement or compliance with any term contained herein other than those expressly referred to in this Section 10.01Collateral Documents, or any Event of Default under the Deed of Trust or Default under the Security Agreement shall occur, and such default shall not have been remedied within five continued for a period of thirty (530) Banking Days after written notice thereof shall have been given to such Borrower by the Operations Agentdays; or
(dD) Such Borrower the Company or any Subsidiary shall default not pay when due, whether by acceleration or otherwise, any evidence of Indebtedness of the Company or such Subsidiary (other than the Note), including, without limitation, the Indebtedness of the Company to you evidenced by a certain secured promissory note dated December 18, 1997 in the performance ofprincipal amount of $15,000,000.00, and by a certain secured promissory note dated May 10, 1999 in the principal amount of $18,000,000.00, and by a secured promissory note dated December 19, 2003 in the principal amount of $20,000,000.00, respectively, or compliance with, any material term contained in condition or default shall exist under any other written such evidence of Indebtedness or under any agreement with under which the Operations Agent same may have been issued permitting such evidence of Indebtedness to become or any Bank pertaining be declared due prior to this Agreement or such Borrower's Loansthe stated maturity thereof, and such default shall continue have continued for more than the a period of grace, if any, specified therein and shall not have been waived pursuant theretofifteen (15) days; or
(eE) Any representationthe Company or any Subsidiary shall file a petition seeking relief for itself under Title 11 of the United States Code, warranty certification as now constituted or statement made hereafter amended, or deemed made by an answer consenting to, admitting the material allegations of or otherwise not controverting, or shall fail to timely controvert, a petition filed against the Company or such Borrower in this Agreement Subsidiary seeking relief under Title 11 of the United States Code, as now constituted or in hereafter amended; or the Company or any certificateSubsidiary shall file such a petition or answer with respect to relief under the provisions of any other now existing or future bankruptcy, financial statement insolvency or other document delivered pursuant hereto shall prove to have been false similar law of the United States of America or incorrect in any material respect when madeState thereof or of any other country or jurisdiction providing for the reorganization, winding-up or liquidation of corporations or an arrangement, composition, extension or adjustment with creditors; or
(fF) Except as otherwise provided in this Section 10.01, such Borrower a court of competent jurisdiction shall default in any payment due on Indebtedness enter an order for borrowed money or the deferred purchase price of property, the aggregate outstanding principal amount of relief which is not stayed within 60 days from the date of entry thereof against the Company or any Subsidiary under Title 11 of the United States Code, as now constituted or hereafter amended; or there shall be entered an order, judgment or decree by operation of law or by a court having jurisdiction in excess the premises which is not stayed within 60 days from the date of five percent (5%) of such Borrower's Total Assets, and such default shall continue for more than entry thereof adjudging the period of grace, if any, applicable thereto and shall not have been waived pursuant thereto and shall permit the holder of such Indebtedness to declare such Indebtedness due and payable before its stated maturityCompany or any Subsidiary as bankrupt or insolvent, or in ordering relief against the performance of Company or compliance with any term Subsidiary, or approving as properly filed a petition seeking relief against the Company or any Subsidiary, under the provisions of any evidence other now existing or future bankruptcy, insolvency or other similar law of such Indebtedness the United States of America or any State thereof or of any mortgageother country or jurisdiction providing for the reorganization, indenture winding-up or other agreement relating theretoliquidation of corporations or an arrangement, and composition, extension or adjustment with creditors, or appointing a receiver, liquidator, assignee, sequestrator, trustee, custodian or similar official of the Company or any such default shall continue for more than Subsidiary or of any substantial part of its property, or ordering the period reorganization, winding-up or liquidation of grace, if any, its affairs; or any involuntary petition against the Company or any Subsidiary seeking any of the relief specified therein and in this clause shall not have been waived pursuant thereto and shall permit the holder be dismissed within 60 days of such Indebtedness to declare such Indebtedness due and payable before its stated maturity, unless such Borrower shall be contesting such payment or obligation in good faith by appropriate proceedings promptly initiated and diligently conducted and such Borrower shall have set aside on its books such reserves, if any, with respect thereto as are required by GAAP and deemed appropriate by such Borrower and its independent public accountants, PROVIDED, that no Event of Default pursuant to paragraphs (b) or (i) of this Section 10.01 shall have occurred and be continuing as a result of such claim having been asserted in respect of such Indebtednessfiling; or
(gG) Such Borrower shall discontinue its business (other than in connection with a permitted merger the Company or consolidation of such Borrower) or any Subsidiary shall make an a general assignment for the benefit of its creditors, ; or the Company or any Subsidiary shall fail generally to pay its debts as such debts become due, or shall apply for or consent to the appointment of or taking possession by a receiver, liquidator, assignee, sequestrator, trustee, receiver custodian or liquidator (similar official of the Company or other similar official) such Subsidiary or of such Borrower all or any substantial part of its property; or the property Company or assets of such Borrower any Subsidiary shall have admitted to its insolvency or inability to pay, or shall commence a case have failed to pay, its debts generally as such debts become due; or have an order for relief entered against it under the federal bankruptcy laws, as now or hereafter constituted, Company or any other applicable federal Subsidiary or state bankruptcyits officers, insolvency directors or other similar law, or if majority stockholders shall take any action shall be taken to dissolve or liquidate the Company or such Borrower Subsidiary (other than in connection with a permitted merger or consolidation of such Borroweras contemplated by Section 8.6A); or
(hH) If, within sixty (60) days after the commencement rendering against such Borrower the Company or any Subsidiary of a case under final non-appealable judgment, decree or order for the federal bankruptcy laws, as now or hereafter constituted, or any other applicable federal or state bankruptcy, insolvency or other similar law, such case shall have been consented to or shall not have been dismissed or all orders or proceedings thereunder affecting the operations or the business payment of such Borrower stayed, or if the stay of any such order or proceeding shall thereafter be set aside, or if within sixty (60) days after the entry of a decree appointing a trustee, receiver or liquidator (or other similar official) of such Borrower or any substantial part of the property of such Borrower such appointment shall not have been vacated; or
(i) A final judgment which, together with other outstanding final judgments against such Borrower, exceeds an amount in the aggregate equal to five percent (5%) of such Borrower's Total Assets (exclusive of amounts covered by available insurance) shall be rendered against such Borrower and if, within thirty (30) days after entry thereof, such judgment shall not have been discharged or execution thereof stayed pending appeal, or if, within thirty (30) days after the expiration of any such stay, such judgment shall not have been discharged; or
(j) Such Borrower or any member of the Controlled Group shall fail to pay when due an amount or amounts aggregating money in excess of $500,000 which it is obligated to pay to and the PBGC continuance of such judgment, decree or to order unsatisfied and in effect for any period of 60 consecutive days without a Plan under Title IV stay of execution; or
(I) the Company or any Subsidiary shall (1) engage in any non-exempted “prohibited transaction,” as defined in Sections 406 and 408 of ERISA and Section 4975 of the Internal Revenue Code of 1986, as amended, (2) incur any “accumulated funding deficiency,” as defined in Section 302 of ERISA; or a notice of intent to terminate a Plan or Plans having aggregate Unfunded Liabilities , in an amount in excess of $500,000 shall be filed under Title IV of ERISA by such Borrower 10,000, whether or any member of the Controlled Groupnot waived, any plan administrator or any combination of the foregoing; or the PBGC shall institute proceedings under Title IV of ERISA to (3) terminate or to cause a trustee to be appointed to administer any such Plan or Plans or a proceeding shall be instituted by a fiduciary permit the termination of any such Plan or Plans against such Borrower or any member of the Controlled Group to enforce Sections 515 or 4219(c)(5) of ERISA; or a condition shall exist by reason of which the PBGC would be entitled to obtain a decree adjudicating that any such Plan or Plans must be terminated; or there shall occur a complete or partial withdrawal from, or a default, within the meaning of an “employee pension benefit plan,” as defined in Section 4219(c)(5) 3 of ERISA, with respect to, one or more Multiemployer Plans in a manner which could cause such Borrower or one or more members result in the imposition of a Lien on any property of the Controlled Group Company or such Subsidiary pursuant to incur a current payment obligation Section 4068 of ERISA securing an amount in excess of $500,00010,000; or
(kJ) Such Borrower any representation or warranty made by the Company in Section 2 hereof or in any Collateral Document or in any certificate or instrument furnished in connection therewith shall cease prove to have been false or misleading in any respect as of the date made; or
(K) the dissolution of the Company, whether by operation of law or otherwise (other than as contemplated by Section 8.6A); then an amount equal to the Prepayment Price (based on the outstanding principal balance), computed as provided in Section 6.3 (except that, for purposes of such computation, the Prepayment Date shall be deemed to be an investment management company (or a Portfolio thereof) registered under the Investment Company Act, or such Borrower's registration under date upon which the Investment Company Act, or that of any Borrower Agent of such Borrower, shall lapse or be suspended; then, and in any such event, and at any time thereafter, if any Event of Default shall then be continuing with respect to such defaulting Borrowerhave occurred), (i) in shall at the case option of any Event the holder of Default specified in paragraphs (g) and (h) above, the Commitments as to such defaulting Borrower shall thereupon automatically be terminated and the principal of and accrued interest on the Loans shall automatically Note immediately become due and payable without presentment, notice or demand, protest or other notice or formality together with accrued interest thereon at the Overdue Interest Rate, provided, however, that upon the occurrence of any kind, all of which are hereby expressly waived, and (ii) in the case of any other an Event of Default specified abovedescribed in clauses (E), either (F) or both (G) of this Section 10.1, the entire outstanding principal amount of the following actions may be taken: Note, together with accrued interest thereon after default at the Operations Agent mayOverdue Interest Rate, and upon shall at the written or telephonic (confirmed in writing) request option of the Majority Banks shall, by written notice to such defaulting Borrower (A) declare holder of the principal of and accrued interest in respect of such defaulting Borrower's Loans to be forthwith due and payable, whereupon the principal of and accrued interest in respect of such Loans shall Note immediately become forthwith due and payable without presentment, notice or demand, protest or other notice of any kind, all of which are hereby expressly waived by such Borrower, and/or (B) terminate the Commitments as to such defaulting Borrower, whereupon the Commitments of the Banks to make Committed Credit Loans hereunder to such defaulting Borrower shall forthwith terminate without any other notice of any kind and the percentages of the Commitment Fee and other fees and expenses otherwise payable by such defaulting Borrower hereunder accruing from and after the date of termination shall be reallocated among the remaining Borrowers PRO RATA on the basis of the percentages set forth opposite such remaining Borrowers' names on SCHEDULE 1, as in effect at the time of such termination.
Appears in 1 contract
Sources: Loan Agreement (Cal Maine Foods Inc)
Events of Default; Acceleration. If any The occurrence of one or more of the following events (each herein an "EVENT OF DEFAULT"“Event of Default”) shall occur with respect constitute an Event of Default under this Agreement (and whether such occurrence shall be voluntary or involuntary or be effected by operation of law or pursuant to any Borrower:judgment, decree or order of any court or any order, rule or regulation of any administrative or governmental body):
(a) Such Borrower (i) shall default in the payment of principal of any Loan, interest accrued thereon or fee due hereunder after the same becomes due and payable, whether at maturity or by acceleration or otherwise, or (ii) shall default in the payment of any other amount due hereunder after interest upon any of the same Notes when such interest becomes due and payable; or
(b) Such Borrower shall default in the performance payment of principal of (or compliance with prepayment premium, if any, on) any term contained of the Notes or in Sections 9.01(a) the payment of any other amount evidenced by any of the Notes or 9.01(b) payable under this Agreement when and such default as the same shall have continued become due and payable, whether at maturity or at a date fixed for more than three (3) Banking Dayspayment or prepayment, or such Borrower shall default in the performance of by acceleration or compliance with any term contained in Sections 8.02(d), 8.02(e), 8.02(g), 8.05, 9.02, 9.03 or 9.04otherwise; or
(c) Such Borrower shall default in the performance or observance of any other non-monetary covenant, agreement or compliance with any term condition contained herein in this Agreement or in either of the Notes or the other Loan Documents (other than those expressly referred to matters otherwise identified in this Section 10.0111.1) that is not cured within thirty (30) days after receipt by Borrower of written notice from Lender specifying the nature of the default, and provided however, if such default is a non-monetary default and cannot be cured within the 30-day period, then so long as Borrower have commenced and diligently pursues the cure of the related default, within ninety (90) days following receipt of written notice, no Event of Default shall not have been remedied within five result and further provided that no notice of default or opportunity for cure shall be required if during the prior twelve (512) Banking Days after months, Lender has already sent a written notice thereof to Borrower identifying Borrower’s default in performance of the same obligation and further provided that any cure periods set forth in this Section 11.1(c) shall have been given to such Borrower by the Operations Agentrun concurrently with any cure periods afforded under any other Loan Documents; oror Loan Agreement Gladstone 2020 Facility Loan Nos. 196915, 198677 & 200539 105131550 0053564-00437
(d) Such Borrower shall default in any Event of Default under any of the performance of, Security Instruments or compliance withany Default or Event of Default under any Collateral Document or under the Indemnity Agreement, any material term contained in default under any guaranty or under any other written agreement with Loan Document (following the Operations Agent or expiration of any Bank pertaining to this Agreement or such Borrower's Loans, and such default applicable cure period) shall continue for more than the period of grace, if any, specified therein and shall not have been waived pursuant theretooccur; or
(e) Any representationBorrower shall not pay when due, warranty certification whether by acceleration or statement made otherwise, any evidence of indebtedness of Borrower (other than the Notes), or deemed made by any condition or default shall exist under any such Borrower in this Agreement evidence of indebtedness or in under any certificate, financial statement or other document delivered pursuant hereto shall prove to agreement under which the same may have been false issued permitting such evidence of indebtedness to become or incorrect in be declared due prior to the stated maturity thereof, and the expiration of any material respect when madeapplicable cure period; or
(f) Except any Obligor shall file a petition seeking relief for itself under Title 11 of the United States Code, as otherwise provided in this Section 10.01, such Borrower shall default in any payment due on Indebtedness for borrowed money now constituted or the deferred purchase price of property, the aggregate outstanding principal amount of which is in excess of five percent (5%) of such Borrower's Total Assets, and such default shall continue for more than the period of grace, if any, applicable thereto and shall not have been waived pursuant thereto and shall permit the holder of such Indebtedness to declare such Indebtedness due and payable before its stated maturityhereafter amended, or in an answer consenting to, admitting the performance material allegations of or compliance otherwise not controverting, or shall fail to timely controvert, a petition filed against any Obligor seeking relief under Title 11 of the United States Code, as now constituted or hereafter amended; or any Obligor shall file such a petition or answer with any term respect to relief under the provisions of any evidence other now existing or future bankruptcy, insolvency or other similar law of such Indebtedness the United States of America or any State thereof or of any mortgageother country or jurisdiction providing for the reorganization, indenture winding-up or other agreement relating theretoliquidation of corporations or an arrangement, and any such default shall continue for more than the period of gracecomposition, if any, specified therein and shall not have been waived pursuant thereto and shall permit the holder of such Indebtedness to declare such Indebtedness due and payable before its stated maturity, unless such Borrower shall be contesting such payment extension or obligation in good faith by appropriate proceedings promptly initiated and diligently conducted and such Borrower shall have set aside on its books such reserves, if any, adjustment with respect thereto as are required by GAAP and deemed appropriate by such Borrower and its independent public accountants, PROVIDED, that no Event of Default pursuant to paragraphs (b) or (i) of this Section 10.01 shall have occurred and be continuing as a result of such claim having been asserted in respect of such Indebtednesscreditors; or
(g) Such Borrower a court of competent jurisdiction shall discontinue enter an order for relief which is not stayed within sixty (60) days from the date of entry thereof against any Obligor under Title 11 of the United States Code, as now constituted or hereafter amended; or there shall be entered an order, judgment or decree by operation of law or by a court having jurisdiction in the premises which is not stayed within sixty (60) days from the date of entry thereof adjudging any Obligor as bankrupt or insolvent, or ordering relief against any Obligor, or approving as properly filed a petition seeking relief against any Obligor, under the provisions of any other now existing or future bankruptcy, insolvency or other similar law of the United States of America or any State thereof or of any other country or jurisdiction providing for the reorganization, winding-up or liquidation of corporations or an arrangement, composition, extension or adjustment with creditors, or appointing a receiver, liquidator, assignee, sequestrator, trustee, custodian or similar official of any Obligor or of any substantial part of its business property, or ordering the reorganization, winding-up or liquidation of its affairs; or any involuntary petition against any Obligor seeking any of the relief specified in this clause shall not be dismissed within sixty (other than in connection with a permitted merger or consolidation 60) days of such Borrowerits filing; or
(h) or any Obligor shall make an a general assignment for the benefit of its creditors, ; or any Obligor shall fail generally to pay its debts as such debts become due, or shall apply for or consent to the appointment of or taking possession by a receiver, liquidator, assignee, sequestrator, trustee, receiver custodian or liquidator (or other similar official) official of such Borrower Obligor or of all or any substantial part of the property its property; or assets of such Borrower any Obligor shall have admitted in writing to its insolvency or inability to pay, or shall commence a case or have an order for relief entered against it under the federal bankruptcy lawsfailed to pay, its debts generally as now or hereafter constituted, such debts become due; or any other applicable federal Obligor or state bankruptcyits trustees, insolvency directors or other similar law, or if members shall take any action shall be taken to dissolve or liquidate such Borrower (other than in connection with a permitted merger Obligor; or consolidation of such Borrower); or
(h) IfLoan Agreement Gladstone 2020 Facility Loan Nos. 196915, within sixty (60) days after the commencement against such Borrower of a case under the federal bankruptcy laws, as now or hereafter constituted, or any other applicable federal or state bankruptcy, insolvency or other similar law, such case shall have been consented to or shall not have been dismissed or all orders or proceedings thereunder affecting the operations or the business of such Borrower stayed, or if the stay of any such order or proceeding shall thereafter be set aside, or if within sixty (60) days after the entry of a decree appointing a trustee, receiver or liquidator (or other similar official) of such Borrower or any substantial part of the property of such Borrower such appointment shall not have been vacated; or198677 & 200539 105131550 0053564-00437
(i) A final judgment whichany Obligor shall (1) engage in any non-exempted “prohibited transaction,” as defined in Sections 406 and 408 of ERISA and Section 4975 of the Internal Revenue Code of 1986, together with other outstanding final judgments against such Borroweras amended, exceeds (2) incur any “accumulated funding deficiency,” as defined in Section 302 of ERISA, in an amount in excess of Ten Thousand Dollars ($10,000), whether or not waived, or (3) terminate or permit the aggregate equal to five percent (5%) termination of an “employee pension benefit plan,” as defined in Section 3 of ERISA, in a manner which could result in the imposition of a Lien on any property of such Borrower's Total Assets Obligor pursuant to Section 4068 of ERISA securing an amount in excess of Ten Thousand Dollars (exclusive of amounts covered by available insurance) shall be rendered against such Borrower and if, within thirty (30) days after entry thereof, such judgment shall not have been discharged or execution thereof stayed pending appeal, or if, within thirty (30) days after the expiration of any such stay, such judgment shall not have been discharged$10,000.00); or
(j) Such any representation or warranty made by Borrower in Section 4 hereof or in any member Collateral Document or in any certificate or instrument furnished in connection therewith shall prove to have been false or misleading in any material respect as of the Controlled Group date made, provided that Borrower shall fail to pay when due an amount or amounts aggregating in excess of $500,000 which it is obligated to pay to have thirty (30) days following the PBGC or to a Plan under Title IV of ERISA; or a notice of intent to terminate a Plan or Plans having aggregate Unfunded Liabilities in excess of $500,000 shall be filed under Title IV of ERISA written identification by such Borrower or any member Lender of the Controlled Group, any plan administrator related misrepresentation or any combination breach of warranty to cure the foregoing; or related misrepresentation if unintentional and if Lender is thereby placed in the PBGC shall institute proceedings under Title IV of ERISA to terminate or to cause a trustee to be appointed to administer any such Plan or Plans or a proceeding shall be instituted by a fiduciary of any such Plan or Plans against such Borrower or any member of same risk position as if the Controlled Group to enforce Sections 515 or 4219(c)(5) of ERISA; or a condition shall exist by reason of which the PBGC would be entitled to obtain a decree adjudicating that any such Plan or Plans must be terminated; or there shall occur a complete or partial withdrawal from, or a default, within the meaning of Section 4219(c)(5) of ERISA, with respect to, one or more Multiemployer Plans which could cause such Borrower or one or more members of the Controlled Group to incur a current payment obligation in excess of $500,000misrepresentation had not been made; or
(k) Such Borrower shall cease to be the Collateral or any portion thereof is sold, conveyed, transferred, assigned or disposed of, or the Real Property is rezoned, either voluntarily or involuntarily, or an investment management company (or a Portfolio thereof) registered agreement for any of the foregoing is entered into, other than transfers permitted under the Investment Company Act, Loan Documents; or
(l) the dissolution or such Borrower's registration under the Investment Company Act, or that death of any Borrower Agent Obligor, whether by operation of law or otherwise other than inadvertent administrative dissolution which is not cured within 30 days after Obligor has knowledge of such Borrowerfact and which has no Material Adverse Effect; or
(m) the default beyond any applicable cure or grace period by any Obligor under any Indebtedness owed to any Person other than Lender, shall lapse or be suspended; then, and in any such event, and at any time thereafter, if any Event of Default shall then be continuing other than a default (i) with respect to such defaulting BorrowerIndebtedness that is not secured by any of the Collateral, and (iii) that does not result in the case a breach of any of the obligations set forth in this Agreement including without limitation the covenants set forth in Sections 9.1 – 9.5 above. Upon an Event of Default specified in paragraphs (g) and (h) aboveDefault, at Lender’s option, the Commitments as to such defaulting Borrower shall thereupon automatically be terminated and entire outstanding principal amount of the principal of and Notes, together with accrued interest on thereon at the Loans Default Interest Rate, shall automatically immediately become due and payable without presentment, demand, protest or other notice or formality demand. In the event that a tender of any kindthe foregoing sum is received at a time when a prepayment premium would otherwise apply or prepayment would be prohibited under the Notes, all of which are hereby expressly waivedsuch tender shall be deemed to be a voluntary prepayment under the Notes, and (ii) in addition to principal and interest due as aforesaid, Borrower agrees to pay the prepayment price, computed as provided in the case Notes (except that, for purposes of any other Event of Default specified abovesuch computation, either or both the prepayment date shall be deemed to be the date upon which the holder of the following actions may be taken: Notes shall have declared the Operations Agent may, and upon the written or telephonic (confirmed in writing) request of the Majority Banks shall, by written notice to such defaulting Borrower (A) declare the principal of and accrued interest in respect of such defaulting Borrower's Loans Notes to be forthwith due and payable). Loan Agreement Gladstone 2020 Facility Loan Nos. 196915, whereupon the principal of and accrued interest in respect of such Loans shall become forthwith due and payable without presentment, demand, protest or other notice of any kind, all of which are hereby expressly waived by such Borrower, and/or (B) terminate the Commitments as to such defaulting Borrower, whereupon the Commitments of the Banks to make Committed Credit Loans hereunder to such defaulting Borrower shall forthwith terminate without any other notice of any kind and the percentages of the Commitment Fee and other fees and expenses otherwise payable by such defaulting Borrower hereunder accruing from and after the date of termination shall be reallocated among the remaining Borrowers PRO RATA on the basis of the percentages set forth opposite such remaining Borrowers' names on SCHEDULE 1, as in effect at the time of such termination.198677 & 200539 105131550 0053564-00437
Appears in 1 contract
Sources: Loan Agreement (GLADSTONE LAND Corp)
Events of Default; Acceleration. If any of the following events (each an "EVENT OF DEFAULT"“Events of Default” or, if the giving of notice or the lapse of time or both is required, then, prior to such notice or lapse of time, “Defaults”) shall occur with respect to any Borroweroccur:
(a) Such Borrower (i) the Borrowers shall default in the payment fail to pay any amount of principal of any LoanLoan when due in accordance with the terms of this Agreement and the other Loan Documents; or the Borrowers shall fail to pay any interest or other amount payable hereunder or under any other Loan Document, within three (3) days after such interest accrued thereon or fee due hereunder after the same other amount becomes due and payable, whether at maturity or by acceleration or otherwise, or (ii) shall default in accordance with the payment terms of this Agreement and/or any other amount due hereunder after the same becomes due and payableLoan Documents; or
(b) Such any representation or warranty made or deemed made by any Borrower shall default or any other Obligor herein or in the performance of any other Loan Document or compliance with any term which is contained in Sections 9.01(aany certificate, document or financial or other statement furnished by it at any time under or in connection with this Agreement or any such other Loan Document shall prove to have been incorrect in any material respect (except that such materiality qualifier shall not be applicable to any representation or warranty already qualified or modified by the text thereof) on or 9.01(b) and such default shall have continued for more than three (3) Banking Days, as of the date made or such Borrower shall default in the performance of or compliance with any term contained in Sections 8.02(d), 8.02(e), 8.02(g), 8.05, 9.02, 9.03 or 9.04deemed made; or
(c) Such the failure by any Borrower shall default or any other Obligor to punctually perform, observe, comply with or satisfy any covenant, agreement or condition contained in (i) Section 6.1, 6.2, 6.3, 6.4, 6.6, 6.7, 6.8, 6.10, 6.11, 6.12, 6.13 or 6.14 of this Agreement; or (ii) Section 7 of this Agreement; or (iii) Section 4.1 of the performance of or compliance with any term contained herein other than those expressly referred to in this Section 10.01, and such default shall not have been remedied within five (5) Banking Days after written notice thereof shall have been given to such Borrower by the Operations AgentSecurity Agreement; or
(d) Such any Borrower or any Subsidiary shall default in the observance or performance of, or compliance with, of any material term other agreement contained in any other written agreement with the Operations Agent or any Bank pertaining to this Agreement or such Borrower's Loansany other Loan Document (other than as provided this Section 8.1), and such default shall continue un-remedied for more than the a period of grace, if any, specified therein and shall not have been waived pursuant theretothirty (30) days; or
(e) Any representation, warranty certification or statement made or deemed made by any Borrower shall fail to pay when due (after any applicable period of grace) any Indebtedness of such Borrower in this Agreement (other than Indebtedness comprising the Obligations), which together with all such other due but unpaid Indebtedness, exceeds the sum of One Hundred Thousand and 00/100 Dollars ($100,000.00), or in shall fail (after any certificateapplicable period of grace) to observe or perform any term, financial statement covenant or other document delivered pursuant hereto agreement evidencing or securing such Indebtedness, which, if uncured or unwaived, permits the acceleration of such Indebtedness, or any default or event of default shall prove to have been false or incorrect in declared under any material respect when madeagreement relating to such Indebtedness; or
(f) Except as otherwise provided in this Section 10.01any Borrower, such Borrower Subsidiary or any other Obligor shall default in any payment due on Indebtedness for borrowed money or the deferred purchase price of property, the aggregate outstanding principal amount of which is in excess of five percent (5%) of such Borrower's Total Assets, and such default shall continue for more than the period of grace, if any, applicable thereto and shall not have been waived pursuant thereto and shall permit the holder of such Indebtedness to declare such Indebtedness due and payable before its stated maturity, or in the performance of or compliance with any term of any evidence of such Indebtedness or of any mortgage, indenture or other agreement relating thereto, and any such default shall continue for more than the period of grace, if any, specified therein and shall not have been waived pursuant thereto and shall permit the holder of such Indebtedness to declare such Indebtedness due and payable before its stated maturity, unless such Borrower shall be contesting such payment or obligation in good faith by appropriate proceedings promptly initiated and diligently conducted and such Borrower shall have set aside on its books such reserves, if any, with respect thereto as are required by GAAP and deemed appropriate by such Borrower and its independent public accountants, PROVIDED, that no Event of Default pursuant to paragraphs (b) or (i) of this Section 10.01 shall have occurred and be continuing as a result of such claim having been asserted in respect of such Indebtedness; or
(g) Such Borrower shall discontinue its business (other than in connection with a permitted merger or consolidation of such Borrower) or shall make an assignment for the benefit of creditors, or shall fail generally to pay its debts as such debts become due, or shall apply for or consent to the appointment of, or the taking of possession by, a receiver, custodian, trustee, liquidator or taking possession by similar official of itself or of all or a substantial part of its property, (ii) make a general assignment for the benefit of its creditors, (iii) commence a voluntary case under the United States Bankruptcy Code, as amended from time to time, (iv) take any action or commence any case or proceeding under any law relating to bankruptcy, insolvency, reorganization, winding-up or composition or adjustment of debts, or any other law providing for the relief of debtors, (v) fail to contest in a timely or appropriate manner, or acquiesce in writing to, any petition filed against it in an involuntary case under the United States Bankruptcy Code, as amended from time to time or other law, (vi) take any action under the laws of its jurisdiction of incorporation or organization similar to any of the foregoing, or (vii) take any corporate action for the purpose of effecting any of the foregoing; or
(g) a proceeding or case shall be commenced against any Borrower, any Subsidiary or any other Obligor, without the application or consent of such Borrower, such Subsidiary or such Obligor, in any court of competent jurisdiction, seeking (i) the liquidation, reorganization, dissolution, winding up, or composition or readjustment of its debts, (ii) the appointment of a trustee, receiver receiver, custodian, liquidator or liquidator (the like of it or other similar official) of such Borrower all or any substantial part of its assets, or (iii) similar relief in respect of it, under any law relating to bankruptcy, insolvency, reorganization, winding-up or composition or adjustment of debts or any other law providing for the property relief of debtors, and such proceeding or assets case shall continue undismissed, or unstayed and in effect, for a period of such Borrower thirty (30) days; or shall commence a case or have an order for relief shall be entered against it in an involuntary case under the federal bankruptcy lawsUnited States Bankruptcy Code, as now or hereafter constitutedamended from time to time, against any Borrower, any Subsidiary or any other applicable federal or state bankruptcy, insolvency or other similar law, or if any action shall be taken to dissolve or liquidate such Borrower (other than in connection with a permitted merger or consolidation of such Borrower); or
(h) If, within sixty (60) days after the commencement against such Borrower of a case under the federal bankruptcy laws, as now or hereafter constituted, or any other applicable federal or state bankruptcy, insolvency or other similar law, such case shall have been consented to or shall not have been dismissed or all orders or proceedings thereunder affecting the operations or the business of such Borrower stayed, or if the stay of any such order or proceeding shall thereafter be set aside, or if within sixty (60) days after the entry of a decree appointing a trustee, receiver or liquidator (or other similar official) of such Borrower or any substantial part of the property of such Borrower such appointment shall not have been vacatedObligor; or
(i) A final judgment whichthe Letter of Credit ceases to be in full force and effect prior to the Maturity Date, together is revoked or repudiated for any reason, is (or any proceeds thereof are) assigned to any Person other than the Lender, a Lien is created thereon (or on any proceeds thereof) in favor of any Person other than the Lender or its enforceability is challenged by or on behalf of the Borrowers or the LC Issuer, and the Borrowers shall thereafter fail (within five (5) days of receipt of notice of such event) to: (A) cause a new Letter of Credit to be issued for the benefit of the Lender by a financial institution acceptable to the Lender in its reasonable discretion; or (B) pledge and deposit with other outstanding final judgments against such Borrower, exceeds or deliver to the Lender cash or deposit account balances in an amount in the aggregate equal to five percent the then-face amount of the Letter of Credit pursuant to documents in form and substance reasonably satisfactory to the Lender; or (5%ii) a default or event of such Borrower's Total Assets (exclusive default shall occur with respect to the Letter of amounts covered by available insurance) shall be rendered against such Borrower Credit and if, within thirty (30) days after entry thereof, such judgment shall not have been discharged or execution thereof stayed pending appeal, or if, within thirty (30) days remain uncured after the expiration lapsing of any such stay, such judgment shall not have been dischargedapplicable cure period; or
(ji) Such any Borrower or any member of the Commonly Controlled Group Entity shall fail to pay when due an any amount or amounts aggregating in excess of $500,000 which that it is obligated shall have become liable to pay to the PBGC or to a Plan under Title IV of ERISA; or a notice of intent to terminate a Plan or Plans having aggregate Unfunded Liabilities , unless (A) such liability is being contested in excess of $500,000 shall be filed under Title IV of ERISA good faith by appropriate proceedings, such Borrower or any member of such Commonly Controlled Entity, as the Controlled Groupcase may be, any plan administrator has established and is maintaining adequate reserves in accordance with GAAP and no Lien shall have been filed to secure such liability or any combination of the foregoing(B) which would not have a Material Adverse Effect; or (ii) the PBGC shall institute proceedings under Title IV of ERISA to terminate or to cause a trustee to be appointed to administer any such Plan or Plans or a proceeding shall be instituted by a fiduciary of any such Plan or Plans against such Borrower or any member of the Controlled Group to enforce Sections 515 or 4219(c)(5) of ERISAPlans; or (iii) a condition shall exist by reason of which the PBGC would be entitled to obtain a decree adjudicating that any such Plan or Plans must be terminated; or there shall occur a complete or partial withdrawal from, or a default, within the meaning of Section 4219(c)(5or
(j) of ERISA, with respect to, one or more Multiemployer Plans which could cause judgments or decrees shall be entered against any Borrower involving a liability of One Hundred Thousand and 00/100 Dollars ($100,000.00)(not paid or fully covered by insurance) or in the aggregate a liability (not paid or fully covered by insurance), and all such Borrower judgments or one decrees shall not have been vacated, discharged, stayed or more members of bonded pending appeal within thirty (30) days from the Controlled Group to incur a current payment obligation in excess of $500,000entry thereof; or
(k) Such if any of the Loan Documents (or any provision contained therein) shall be cancelled, terminated, revoked, curtailed or rescinded otherwise than in accordance with the terms thereof or with the express prior written agreement, consent or approval of the Lender, or any action at law, suit or in equity or other legal proceeding to cancel, revoke, curtail or rescind any of the Loan Documents shall be commenced by or on behalf of any Borrower or any of its officers, directors, stockholders or creditors, or any Governmental Authority of competent jurisdiction shall make a determination that, or issue a judgment, order, decree or ruling to the effect that, any of the Loan Documents (or any provision contained therein) is illegal, invalid or unenforceable in accordance with the terms thereof; or
(l) any Lien created by any of the Security Documents shall, by reason of any breach by any Borrower, any Subsidiary or Obligor party thereto of any of its covenants or other obligations contained in such Security Documents, cease to be an investment management company enforceable and of the same effect and priority purported to be created thereby; or
(or a Portfolio thereofm) registered under A material portion of the Investment Company Act, or such Borrower's registration under the Investment Company Act, or that property of any Borrower Agent or Subsidiary (whether or not Collateral) is damaged by fire or other casualty, or otherwise lost or stolen, the restoration or replacement cost of which property exceeds by more than One Hundred Thousand Dollars ($100,000.00), in the aggregate, the amount of insurance proceeds readily available for such Borrower, shall lapse restoration or be suspendedreplacement; or
(n) the occurrence of any Change of Control or any Material Adverse Effect; then, and in any such event, and at any time thereafterso long as the same may be continuing, if any Event of Default shall then be continuing the Lender may, by notice to the Borrowers, declare all amounts owing with respect to such defaulting Borrower, (i) in the case of any Event of Default specified in paragraphs (g) and (h) abovethis Agreement, the Commitments as Note and the other Loan Documents to such defaulting Borrower be, and they shall thereupon automatically be terminated and the principal of and accrued interest on the Loans shall automatically become due and payable without presentmentforthwith become, demand, protest or other notice or formality of any kind, all of which are hereby expressly waived, and (ii) in the case of any other Event of Default specified above, either or both of the following actions may be taken: the Operations Agent may, and upon the written or telephonic (confirmed in writing) request of the Majority Banks shall, by written notice to such defaulting Borrower (A) declare the principal of and accrued interest in respect of such defaulting Borrower's Loans to be forthwith due and payable, whereupon the principal of and accrued interest in respect of such Loans shall become forthwith immediately due and payable without presentment, demand, protest or other notice of any kind, all of which are hereby expressly waived by the Borrowers; provided, however, that in the event of any Event of Default specified in Sections 8.1(f) or 8.1(g), all such Borrower, and/or (B) terminate the Commitments as to such defaulting Borrower, whereupon the Commitments of the Banks to make Committed Credit Loans hereunder to such defaulting Borrower amounts shall forthwith terminate become immediately due and payable automatically and without any other requirement of notice of any kind and from the percentages of the Commitment Fee and other fees and expenses otherwise payable by such defaulting Borrower hereunder accruing from and after the date of termination shall be reallocated among the remaining Borrowers PRO RATA on the basis of the percentages set forth opposite such remaining Borrowers' names on SCHEDULE 1, as in effect at the time of such terminationLender.
Appears in 1 contract
Sources: Loan Agreement (Thermoenergy Corp)
Events of Default; Acceleration. If any Each of the following events (each shall constitute an "EVENT OF DEFAULT") shall occur with respect to any BorrowerEvent of Default" under this Agreement:
(a) Such Borrower if Borrowers fail to pay (ix) shall default in the payment of principal of or premium, if any, on any LoanNote, interest accrued thereon or fee due hereunder after when the same becomes due and payable, whether at the maturity thereof, on a date fixed for payment or by acceleration for a prepayment, or otherwise, (y) the interest on any Note or (iiz) shall default in the payment of any a fee or other amount due hereunder after payable hereunder, when and as the same becomes due and payable, and such failure shall have continued for five (5) days; or
(b) Such Borrower if Borrowers shall default in the performance or compliance with any term contained in Sections 6.3, 6.4, 6.5, 6.6 or 6.11 hereof, and such default shall not have been remedied within ten (10) days of the occurrence of such default; or
(c) if Borrowers default in the performance of or compliance with any term contained in Sections 9.01(aArticles VI (other than those listed in clauses (a) or 9.01(b(b) and such default shall have continued for more than three hereof), VII or VIII; or
(3d) Banking Days, or such Borrower if Borrowers shall default in the performance of or compliance with any term agreement contained herein other than those referred to above in Sections 8.02(d), 8.02(e), 8.02(g), 8.05, 9.02, 9.03 or 9.04this Article IX and such default shall not have been remedied within thirty (30) days after written notice thereof shall have been given to Borrowers by the Agent; or
(ce) Such if a Borrower or a Subsidiary shall default in the performance of or compliance with any term agreement contained herein in the other than those expressly referred to Revolving Loan Documents or in this Section 10.01any of the Subordinated Loan Documents, and such default shall not have been remedied within five (5) Banking Days after written notice thereof shall have been given to such Borrower by the Operations Agent; or
(d) Such Borrower shall default or in the performance of, of or compliance with, with any material term contained in any other written agreement with in respect of Indebtedness between a Borrower or a Subsidiary or the Operations Banks (or the Agent or any Bank pertaining to this Agreement or such Borrower's Loanson their behalf), and such default shall continue for more than the period of grace, if any, specified therein and shall not have been waived pursuant thereto; or
(ef) Any representation, if any representation or warranty certification or statement made or deemed made by such Borrower Borrowers herein, in this Agreement the other Revolving Loan Documents or in any certificate, financial statement or other document delivered pursuant hereto or thereto shall prove to have been false or incorrect in any material respect when on the date as of which made; or
(fg) Except as otherwise provided in this Section 10.01, such if a Borrower or a Subsidiary shall default in any payment due on any Indebtedness for in respect of borrowed money with an unpaid principal amount in excess of $250,000, any Interest Rate Protection Agreement, any Capitalized Lease or the deferred purchase price of property, the aggregate outstanding principal amount of which is in excess of five percent (5%) of such Borrower's Total Assets, and such default shall continue for more than the period of grace, if any, applicable thereto and shall not have been waived pursuant thereto and shall permit the holder of such Indebtedness to declare such Indebtedness due and payable before its stated maturity, or in the performance of or compliance with any term of any evidence of such Indebtedness or of any mortgage, indenture or other agreement relating thereto, and any such default shall continue for more than the period of grace, if any, specified therein and shall not have been waived pursuant thereto and thereto; or
(h) if a Borrower or a Subsidiary shall permit the holder of such Indebtedness to declare such Indebtedness due and payable before its stated maturity, unless such Borrower shall be contesting such default in payment or performance of any material obligation (except Indebtedness, which is covered in good faith by appropriate proceedings promptly initiated and diligently conducted Section 9.1(g) above), whether now or hereafter incurred, and such Borrower default shall have set aside on its books such reservescontinue for more than the period of grace, if any, with respect thereto as are required by GAAP and deemed appropriate by such Borrower and its independent public accountants, PROVIDED, that no Event of Default pursuant to paragraphs (b) specified in the agreement or (i) of this Section 10.01 shall have occurred and be continuing as a result other documents setting forth the terms of such claim having obligation, or shall not have been asserted waived pursuant thereto, and in respect the reasonable judgment of such Indebtednessthe Agent, either individually or together with any other defaults hereunder, jeopardizes or could reasonably be expected to jeopardize repayment of any Note, or consummation of the transactions contemplated in the Revolving Loan Documents or the Subordinated Loan Documents; or
(gi) Such if any action, proceeding, regulation or legislation shall have been instituted, threatened or proposed before any court, governmental agency or legislative body to enjoin, restrain, or prohibit, or to obtain damages in respect of, or which is related to or arises out of the Revolving Loan Documents, the Subordinated Loan Documents, or the transactions contemplated hereby or thereby; provided, however, that the institution or threat of such an action or proceeding shall not constitute an Event of Default hereunder if (i) independent counsel retained by Borrowers shall have delivered to the Banks an opinion stating that there is no material likelihood that such action or proceeding will be adversely determined against a Borrower or a Subsidiary or (ii) the outcome of the proceeding, if adversely determined, will not have a material and adverse effect on the business, condition, financial or otherwise, or operations of a Borrower or a Subsidiary or the transactions contemplated by the Revolving Loan Documents or the Subordinated Loan Documents; or
(j) if a Borrower or a Subsidiary shall discontinue its business (other than in connection with a permitted merger or consolidation of such Borrower) primary business, or shall make an a general assignment for the benefit of creditors, or shall fail generally to pay its debts as such debts become due, or shall apply for or consent to the appointment of or taking possession by a trustee, receiver or liquidator (or other similar official) of such a Borrower or a Subsidiary or any substantial part of the property of a Borrower or assets a Subsidiary, or if there shall occur any commencement by any Borrower or Subsidiary of a voluntary case or proceeding under any applicable federal or state bankruptcy, insolvency, reorganization or other similar law or of any other case or proceeding to be adjudicated a bankrupt or insolvent, or the consent by any Borrower or Subsidiary to the entry of a decree or order for relief in respect of such Borrower or shall commence a Subsidiary in an involuntary case or have an order for relief entered against it proceeding under the federal bankruptcy laws, as now or hereafter constituted, or any other applicable federal or state bankruptcy, insolvency reorganization or other similar law or the commencement of any bankruptcy or insolvency case or proceeding against any Borrower or Subsidiary, or the filing by any Borrower or Subsidiary of a petition or answer or consent seeking reorganization or relief under any applicable federal or state law, or if the consent by any action shall be taken Borrower or Subsidiary to dissolve the filing of such petition or liquidate to the appointment of or taking possession by a custodian receiver, liquidator,assignee, trustee, sequestrator or similar official of such Borrower (other than in connection with a permitted merger or consolidation Subsidiary or of any substantial part of such Borrower)Borrower or Subsidiary, or the making of an assignment for the benefit of creditors, or the admission by any Borrower or Subsidiary in writing of its inability to pay its debts generally as they become due, or the taking of corporate action by any Borrower or Subsidiary in furtherance of any such action; or
(hk) Ifif there shall occur any refusal or failure by the U.S. Government, within sixty any state, or any agency or instrumentality thereof to renew or extend any material Franchise or Consent held by a Borrower or a Subsidiary (60provided, however, that any refusal or failure to renew or extend a Consent or Franchise required for performance by a Borrower or a Subsidiary of U.S. Government Contracts shall be considered material) days after or any denial, forfeiture or revocations by any governmental authority or any authorization required by law or the commencement expiration without renewal of any such authorization, and such events, either individually or in the aggregate, jeopardize, or could reasonably be expected to jeopardize, repayment of the Notes or the continuation of the business of a Borrower or a Subsidiary as it has been conducted in the past; or
(i) if there shall be commenced against such a Borrower of or a Subsidiary a case under the federal bankruptcy laws, as now or hereafter constituted, or any other applicable federal or state bankruptcy, insolvency or other similar law, and within sixty (60) days of such commencement such case shall have been consented to or shall not have been dismissed or all orders or proceedings thereunder affecting the operations or the business of such a Borrower or a Subsidiary stayed, or if the stay of any such order or proceeding shall thereafter be set aside, or if (ii) if, within sixty (60) days after the entry of a decree appointing a trustee, receiver or liquidator (or other similar official) of such a Borrower or any substantial part of the property of such a Borrower or a Subsidiary such appointment shall not have been vacated; or
(im) A a final judgment which, together with other outstanding final judgments against such Borrowera Borrower or a Subsidiary, exceeds an amount in the aggregate equal to five percent (5%) of such Borrower's Total Assets (exclusive of amounts covered by available insurance) $200,000 shall be rendered against such a Borrower or a Subsidiary and if, within thirty sixty (3060) days after entry thereof, such judgment shall not have been discharged or execution thereof stayed pending appeal, or if, within thirty sixty (3060) days after the expiration of any such stay, such judgment shall not have been discharged or a warrant of attachment or execution or similar process shall be issued or levied against any property of a Borrower or a Subsidiary and if, within three (3) Banking Days after the issue or levy thereof, such warrant or process shall not have been discharged or stayed pending appeal (whether by action of a court, by agreement or otherwise), or if, within three (3) days after the expiration of any such stay, such warrant or process shall not have been discharged; or
(jn) Such if a Borrower or a Subsidiary loses, fails to keep in force, suffers the termination or revocation of or terminates, forfeits or suffers an amendment to any member of the Controlled Group shall fail to pay when due an amount Franchise or amounts aggregating in excess of $500,000 Consent at any time held by it which it is obligated to pay to the PBGC or to would have a Plan under Title IV of ERISA; or a notice of intent to terminate a Plan or Plans having aggregate Unfunded Liabilities in excess of $500,000 shall be filed under Title IV of ERISA by such Borrower or any member of the Controlled Group, any plan administrator or any combination of the foregoing; or the PBGC shall institute proceedings under Title IV of ERISA to terminate or to cause a trustee to be appointed to administer any such Plan or Plans or a proceeding shall be instituted by a fiduciary of any such Plan or Plans against such Borrower or any member of the Controlled Group to enforce Sections 515 or 4219(c)(5) of ERISA; or a condition shall exist by reason of which the PBGC would be entitled to obtain a decree adjudicating that any such Plan or Plans must be terminated; or there shall occur a complete or partial withdrawal from, or a default, within the meaning of Section 4219(c)(5) of ERISA, with respect to, one or more Multiemployer Plans which could cause such Borrower or one or more members of the Controlled Group to incur a current payment obligation in excess of $500,000material adverse effect on its financial condition; or
(ko) Such if a Change of Control shall occur; or
(p) if there shall occur (i) any suspension, termination (other than a termination for convenience of the U.S. Government) or revocation of any kind (exclusive of expiration and non-renewal) of any Government Contract or any commercial contract of a Borrower shall cease to be an investment management company or any Subsidiary with a remaining contract value of $10,000,000 or more; (or a Portfolio thereofii) registered under the Investment Company Actany investigation of, or such Borrower's registration under the Investment Company Actsanctions (including, without limitation, fines, penalties or forfeitures) against, a Borrower or any Subsidiary which has, or is likely to have, a materially adverse effect on the business or operations of Borrowers and the Subsidiaries taken as a whole, including, without limitation, any final decision subject to any applicable disputes clause or unilateral Government Contract modification assessing a material penalty or material damages; any assertion of a material claim based on asserted violations of Cost Accounting Standards ("CAS") or defective pricing; any notice of a proposed material disallowance of indirect cost claims in excess of reserves therefor; any subpoena or notice signifying the initiation of an investigation by Government investigative or enforcement agency other than normal audits in the ordinary course of business; any notice from a Government that any material cost or claim contained in any invoice or request for progress payment has been disallowed; any other notice from the cognizant Government contracting officer alleging the failure by a Borrower or any Subsidiary to provide goods or services fully in conformity to, or otherwise to comply in any material way with, any applicable Government Contract provision, specification or regulation; or (iii) the initiation of a debarment or suspension proceeding by the Government against a Borrower or any Subsidiary; or
(q) if at any time any of the following individuals, or substitutions for such individuals satisfactory to the Agent in its sole and absolute discretion, arenot in the respective positions listed below: ▇▇▇▇ ▇. ▇▇▇▇ President and Chief Executive Officer ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ Vice President, Chief Financial Officer and Treasurer; or
(r) If the Subordinated Debt or preferred stock of any Borrower Agent or any Subsidiary is the subject of any restructuring, refinancing, modification or substitution without the prior written consentof the Agent; or
(s) If any action, suit, litigation or other proceeding at law or in equity is commenced or threatened (i) seeking to enjoin or to unwind the transactions contemplated by that certain Settlement Agreement by and among, inter ▇▇▇▇, ▇▇▇▇ ▇.▇. ▇▇▇▇▇▇ and C3 Investors, L.P. dated as of September 27, 1993 or any document or agreement referenced therein, (ii) seeking to dispute the legality, permissibility oradvisability of the settlement of the cases styled ▇▇▇▇ ▇▇▇▇▇, et al. v. C3, Inc., et al., Case No. 931119026, CE163830 in the Circuit Court for Baltimore City and ▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Civil Case No. 93125044 in the CircuitCourt for Baltimore City (the "Litigation"), or (iii) involving any of the issues which were raised by or in connection with the Litigation; or
(t) If any of the provisions of the Standstill Agreement among ▇▇▇▇ ▇.▇. ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇ and ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, dated as of September 27, 1993, are breached or such Borrower, shall lapse agreement is no longer in full force and effect; or
(u) If all or be suspendedany part of the Litigation is reinstituted by any party with respect to any matter arising out of the Litigation; then, and in any such event, and at any time thereafter, if any such Event of Default shall then be continuing with respect to such defaulting Borrower, (i) in the case of any Event of Default specified in paragraphs (g) and (h) above, the Commitments as to such defaulting Borrower shall thereupon automatically be terminated and the principal of and accrued interest on the Loans shall automatically become due and payable without presentment, demand, protest or other notice or formality of any kind, all of which are hereby expressly waived, and (ii) in the case of any other Event of Default specified abovecontinuing, either or both of the following actions may be taken: the Operations . The Agent may, and upon the written or telephonic shall (confirmed in writing) request of the Majority Banks shall, by written notice to such defaulting Borrower (Ai) declare the principal of and accrued interest in respect of such defaulting Borrower's Loans Notes to be forthwith due and payable, whereupon the principal of and accrued interest in respect of such Loans the Notes shall become forthwith due and payable without presentment, demand, protest or other notice of any kind, all of which are hereby expressly waived by such BorrowerBorrowers, and/or (Bii) terminate declare the Commitments as to such defaulting BorrowerCommitment terminated, whereupon the Commitments Commitment of the Banks to make Committed Credit Loans hereunder to such defaulting Borrower shall forthwith terminate without any other notice of any kind kind; provided, however, that, notwithstanding the above, if there shall occur an Event of Default under clauses (j), (l), (o), (s), (t), or (u) above, then any and the percentages all of the Commitment Fee and other fees and expenses otherwise payable by such defaulting Borrower hereunder accruing from and after the date of termination Obligations shall be reallocated among immediately due and payable without presentment, demand, protest or other notice or action of any kind by the remaining Borrowers PRO RATA on the basis Agent, all of the percentages set forth opposite such remaining which are hereby expressly waived by Borrowers' names on SCHEDULE 1, as in effect at the time of such termination.
Appears in 1 contract
Sources: Credit Agreement (Telos Corp)
Events of Default; Acceleration. If any In case one or more of the following events of default (each each, an "EVENT OF DEFAULTevent of default") shall occur with respect to any Borrowerhave occurred and be continuing:
(a) Such Borrower (i) shall failure by the Company to pay when due any amount required to be paid under this Participation Agreement or the Company Note, which failure causes a default in the payment when due of principal the interest on any of the Bonds and continuance of such default for five Business Days;
(b) failure by the Company to pay when due any Loanamount required to be paid under this Participation Agreement or the Company Note, interest accrued thereon or fee due hereunder after the same becomes due and payable, whether at maturity or by acceleration or otherwise, or (ii) shall which failure causes a default in the payment when due of any other amount due hereunder after the same becomes due and payable; or
(b) Such Borrower shall default in the performance of or compliance with any term contained in Sections 9.01(a) or 9.01(b) and such default shall have continued for more than three (3) Banking Daysprincipal of, or premium, if any, on any of the Bonds; provided that, with respect to any payment of principal of, or premium, if any, payable on Bonds called for redemption, such Borrower failure by the Company shall default in the performance of or compliance with any term contained in Sections 8.02(d), 8.02(e), 8.02(g), 8.05, 9.02, 9.03 or 9.04continue for five Business Days; or
(c) Such Borrower shall failure by the Company to pay when due any amount required to be paid under Section 4.11, which failure causes a default in the performance payment when due of any amount payable pursuant to Article V of the Indenture;
(d) failure on the part of the Company duly to observe or compliance with perform any term other of the covenants or agreements on the part of the Company contained herein in this Participation Agreement (other than those expressly referred failure to pay amounts required to be paid under Sections 4.04, 4.05, 4.07, 4.08, 4.09 or 4.10) or in this Section 10.01, and such default shall not have been remedied within five (5) Banking Days the Company Note for a period of 90 days after the date on which written notice thereof of such failure, requiring the Company to remedy the same, shall have been given to such Borrower the Company by the Operations Agent; or
(d) Such Borrower shall default in Authority or the performance ofTrustee, or compliance withprovided, any material term contained in any other written agreement with the Operations Agent or any Bank pertaining to this Agreement or such Borrower's Loanshowever, and such default shall continue for more than the period of gracethat, if anysuch failure is such that it cannot be corrected within such 90-day period, specified therein and it shall not have been waived pursuant theretoconstitute an event of default if corrective action is instituted by the Corporation within such 90-day period and diligently pursued until such failure is corrected; or
(e) Any representation, warranty certification or statement made or deemed made by such Borrower in this Agreement or in any certificate, financial statement or other document delivered pursuant hereto shall prove to have been false or incorrect in any material respect when made; or
(f) Except as otherwise provided in this Section 10.01, such Borrower shall default in any payment due on Indebtedness for borrowed money or the deferred purchase price an Act of property, the aggregate outstanding principal amount of which is in excess of five percent (5%) of such Borrower's Total Assets, and such default shall continue for more than the period of grace, if any, applicable thereto and shall not have been waived pursuant thereto and shall permit the holder of such Indebtedness to declare such Indebtedness due and payable before its stated maturity, or in the performance of or compliance with any term of any evidence of such Indebtedness or of any mortgage, indenture or other agreement Bankruptcy relating thereto, and any such default shall continue for more than the period of grace, if any, specified therein and shall not have been waived pursuant thereto and shall permit the holder of such Indebtedness to declare such Indebtedness due and payable before its stated maturity, unless such Borrower shall be contesting such payment or obligation in good faith by appropriate proceedings promptly initiated and diligently conducted and such Borrower shall have set aside on its books such reserves, if any, with respect thereto as are required by GAAP and deemed appropriate by such Borrower and its independent public accountants, PROVIDED, that no Event of Default pursuant to paragraphs (b) or (i) of this Section 10.01 shall have occurred and be continuing as a result of such claim having been asserted in respect of such Indebtedness; or
(g) Such Borrower shall discontinue its business (other than in connection with a permitted merger or consolidation of such Borrower) or shall make an assignment for the benefit of creditors, or shall fail generally to pay its debts as such debts become due, or shall apply for or consent to the appointment of or taking possession by a trustee, receiver or liquidator (or other similar official) of such Borrower or any substantial part of the property or assets of such Borrower or shall commence a case or have an order for relief entered against it under the federal bankruptcy laws, as now or hereafter constituted, or any other applicable federal or state bankruptcy, insolvency or other similar law, or if any action shall be taken to dissolve or liquidate such Borrower (other than in connection with a permitted merger or consolidation of such Borrower); or
(h) If, within sixty (60) days after the commencement against such Borrower of a case under the federal bankruptcy laws, as now or hereafter constituted, or any other applicable federal or state bankruptcy, insolvency or other similar law, such case shall have been consented to or shall not have been dismissed or all orders or proceedings thereunder affecting the operations or the business of such Borrower stayed, or if the stay of any such order or proceeding shall thereafter be set aside, or if within sixty (60) days after the entry of a decree appointing a trustee, receiver or liquidator (or other similar official) of such Borrower or any substantial part of the property of such Borrower such appointment shall not have been vacated; or
(i) A final judgment which, together with other outstanding final judgments against such Borrower, exceeds an amount in the aggregate equal to five percent (5%) of such Borrower's Total Assets (exclusive of amounts covered by available insurance) shall be rendered against such Borrower and if, within thirty (30) days after entry thereof, such judgment shall not have been discharged or execution thereof stayed pending appeal, or if, within thirty (30) days after the expiration of any such stay, such judgment shall not have been discharged; or
(j) Such Borrower or any member of the Controlled Group shall fail to pay when due an amount or amounts aggregating in excess of $500,000 which it is obligated to pay to the PBGC or to a Plan under Title IV of ERISA; or a notice of intent to terminate a Plan or Plans having aggregate Unfunded Liabilities in excess of $500,000 shall be filed under Title IV of ERISA by such Borrower or any member of the Controlled Group, any plan administrator or any combination of the foregoing; or the PBGC shall institute proceedings under Title IV of ERISA to terminate or to cause a trustee to be appointed to administer any such Plan or Plans or a proceeding shall be instituted by a fiduciary of any such Plan or Plans against such Borrower or any member of the Controlled Group to enforce Sections 515 or 4219(c)(5) of ERISA; or a condition shall exist by reason of which the PBGC would be entitled to obtain a decree adjudicating that any such Plan or Plans must be terminated; or there shall occur a complete or partial withdrawal from, or a default, within the meaning of Section 4219(c)(5) of ERISA, with respect to, one or more Multiemployer Plans which could cause such Borrower or one or more members of the Controlled Group to incur a current payment obligation in excess of $500,000; or
(k) Such Borrower shall cease to be an investment management company (or a Portfolio thereof) registered under the Investment Company Act, or such Borrower's registration under the Investment Company Act, or that of any Borrower Agent of such Borrower, shall lapse or be suspendedCompany; then, and in any such event, and at any time thereafterthe Trustee with the consent of Ambac, if any Event of Default shall then be continuing with respect to such defaulting Borrower, (i) in the case of any Event of Default specified in paragraphs (g) and (h) above, the Commitments as to such defaulting Borrower shall thereupon automatically be terminated and the principal of and accrued interest on the Loans shall automatically become due and payable without presentment, demand, protest or other notice or formality of any kind, all of which are hereby expressly waived, and (ii) in the case of any other Event of Default specified above, either or both of the following actions may be taken: the Operations Agent may, and upon the written or telephonic (confirmed in writing) request of Ambac or the Majority Banks owners of at least 25% in aggregate principal amount of the Bonds then outstanding with the consent of Ambac shall, by notice in writing to the Company and Ambac and provided that the default has not theretofore been cured, declare the Company Note to be due and payable immediately, and upon any such declaration the same shall become and shall be immediately due and payable, anything contained in this Participation Agreement or in the Company Note to the contrary notwithstanding. Any amounts collected by the Trustee pursuant to action taken under this Section 6.01 shall be applied in accordance with the Indenture. In addition, if at any time the principal of the Bonds shall have been declared to be due and payable by acceleration pursuant to the terms of the Indenture, the Company Note shall thereupon become and be immediately due and payable, subject to such declaration with respect to the Bonds being rescinded or annulled pursuant to the Indenture. The right or obligation of the Trustee to make any such declaration as aforesaid, however, is subject to the condition that if, at any time after declaration, but before all the Bonds shall have matured by their terms, the principal of, premium, if any, and interest on, the Company Note which shall have become due and payable otherwise than by such declaration, and all other sums payable hereunder, except the principal of, and interest on, the Company Note which shall have become due and payable by such declaration, shall have been paid or provision satisfactory to the Trustee shall have been made for such payment, and the reasonable expenses of the Trustee and of the owners of the Bonds incurred pursuant to the Indenture shall have been paid, including reasonable attorneys' fees paid or incurred, and all defaults hereunder and under the Bonds or under the Indenture, except as to the payment of principal and interest due and payable solely by reason of such declaration, shall be made good or be secured to the satisfaction of the Trustee or provision deemed by the Trustee to be adequate shall be made therefor, then and in every such case the owners of a majority in aggregate principal amount of the Bonds then outstanding, by written notice to the Authority and to the Trustee, may rescind such defaulting Borrower declaration and annul such default in its entirety, or, if the Trustee shall have acted in the absence of a written request of the owners of at least 25% in aggregate principal amount of the outstanding Bonds, and if there shall not have been theretofore delivered to the Trustee written direction to the contrary by the owners of at least 25% in aggregate principal amount of the outstanding Bonds, then any such declaration shall ipso facto be deemed to be rescinded and any such default and its consequences shall ipso facto be deemed to be annulled, but no such rescission and annulment shall extend to or affect any subsequent default or impair or exhaust any right or power consequent thereon. Anything in this Participation Agreement to the contrary notwithstanding, upon the occurrence and continuance of an event of default as defined herein, Ambac Assurance (Aif not in default) declare shall be entitled to control and direct the enforcement of all rights and remedies granted to the Bondholders or the Trustee for the benefit of the Bondholders under this Participation Agreement, including, without limitation: (i) the right to accelerate the principal of the Company Note as described in this Participation Agreement, and accrued interest (ii) the right to rescind any declaration of acceleration, and Ambac Assurance shall also be entitled to approve all waivers of events of default. In case the Trustee shall have proceeded to enforce any right under this Participation Agreement or the Company Note and such proceedings shall have been discontinued or abandoned for any reason or shall have been determined adversely to the Trustee, then and in respect every such case the Company, the Authority and the Trustee shall be restored respectively to their former positions and rights hereunder, and all rights, remedies and powers of the Company, the Authority and the Trustee shall continue as though no such defaulting Borrower's Loans to be forthwith due and payable, whereupon proceedings had been taken. In the principal of and accrued interest in respect of such Loans shall become forthwith due and payable without presentment, demand, protest or other notice event of any kindAct of Bankruptcy, reorganization or liquidation, Ambac Assurance shall have the right to vote on behalf of all of which are hereby expressly waived Bondholders absent a default by such Borrower, and/or (B) terminate Ambac Assurance under the Commitments as to such defaulting Borrower, whereupon the Commitments of the Banks to make Committed Credit Loans hereunder to such defaulting Borrower shall forthwith terminate without any other notice of any kind and the percentages of the Commitment Fee and other fees and expenses otherwise payable by such defaulting Borrower hereunder accruing from and after the date of termination shall be reallocated among the remaining Borrowers PRO RATA on the basis of the percentages set forth opposite such remaining Borrowers' names on SCHEDULE 1, as in effect at the time of such terminationPolicy.
Appears in 1 contract
Sources: Participation Agreement (Central Hudson Gas & Electric Corp)
Events of Default; Acceleration. If any of the following events (each an "EVENT OF DEFAULTEvent of Default") shall occur with respect to any Borroweroccur:
(a) Such Borrower (i) The Company shall default in the payment of principal of any Loan, or interest accrued thereon or fee due hereunder on the Note after the same becomes due and payable, whether on demand, at maturity or by acceleration at a date fixed for the payment of any installment or prepayment thereof or otherwise, or ; or
(iib) The Company shall default in the payment of any other amount fee due hereunder hereunder, including but not limited to the Equipment Loan Fee, within 30 days after the same becomes due and payable, whether on demand, at maturity or at a date fixed for the payment of any installment or prepayment thereof or otherwise; or
(bc) Such Borrower The Company shall default in the performance of or compliance with any term contained in Sections 9.01(aArticles 6 or 7 and, as to any terms capable of being cured, fail to cure the same within thirty (30) or 9.01(bdays after receipt of written notice notifying the Company of such default; or
(d) and such default shall have continued for more than three (3) Banking Days, or such Borrower The Company shall default in the performance of or compliance with any term contained in Sections 8.02(d), 8.02(e), 8.02(g), 8.05, 9.02, 9.03 or 9.04this Agreement other than those specifically referred to in this Article 8 and such default shall not have been remedied within 30 days after written notice thereof shall have been given to the Company by Dominion; or
(ce) Such Borrower The Company shall default in the performance of or compliance with any term contained herein other than those expressly referred to in this Section 10.01, and such default shall not have been remedied within five (5) Banking Days after written notice thereof shall have been given to such Borrower by the Operations Agent; or
(d) Such Borrower shall default Security Documents or in the performance of, of or compliance with, with any material term contained in any other written agreement with the Operations Agent or any Bank pertaining to this Agreement or such Borrower's LoansDominion, and such default shall continue for more than the period of grace, if any, specified therein and shall not have been waived pursuant thereto; or
(ef) Any representation, representation or warranty certification or statement made or deemed made by such Borrower in this Agreement the Company herein or in any certificate, financial statement or other document delivered pursuant hereto shall prove to have been false or incorrect in any material respect when made; or
(fg) Except as otherwise provided The holder of any Indebtedness in this Section 10.01respect of borrowed money, such Borrower shall default in any payment due on Indebtedness for borrowed money Capital Lease or the deferred purchase price of property, the aggregate outstanding principal amount of which is in excess of five percent (5%) of such Borrower's Total Assetsany case aggregating $500,000 or more, and such default shall continue for more than the period of grace, if any, applicable thereto and shall not have been waived pursuant thereto and shall permit the holder of such Indebtedness to declare such Indebtedness due and payable before its stated maturity, or in the performance of or compliance with any term of any evidence of such Indebtedness or of any mortgage, indenture or other agreement relating thereto, and any such default shall continue for more than the period of grace, if any, specified therein and shall not have been waived pursuant thereto and shall permit the holder of such Indebtedness to declare such Indebtedness due and payable before its stated maturity, unless such Borrower shall be contesting such payment or obligation in good faith by appropriate proceedings promptly initiated and diligently conducted and such Borrower shall have set aside on its books such reserves, if any, with respect thereto as are required by GAAP and deemed appropriate by such Borrower and its independent public accountants, PROVIDED, that no Event of Default pursuant to paragraphs (b) or (i) of this Section 10.01 shall have occurred and be continuing accelerated the maturity thereof as a result of such claim having been asserted in respect of such Indebtednessany default thereunder; or
(gh) Such Borrower The Company shall discontinue its business (other than in connection with a permitted merger or consolidation of such Borrower) or shall make an assignment for the benefit of creditors, or shall fail generally to pay its debts as such debts become due, or shall apply for or consent to the appointment of or taking possession by a trustee, receiver or liquidator (or other similar official) of such Borrower the Company or any substantial part of the property or assets of such Borrower the Company, or shall commence a case or have an order for relief entered against it under the federal bankruptcy laws, as now or hereafter constituted, or any other applicable federal or state bankruptcy, insolvency or other similar law, or if the Company shall take any action shall be taken to dissolve or liquidate such Borrower (other than in connection with a permitted merger or consolidation of such Borrower)the Company; or
(hi) If, within sixty (60) 30 days after the commencement against such Borrower the Company of a case under the federal bankruptcy laws, as now or hereafter constituted, or any other applicable federal or state bankruptcy, insolvency or other similar law, such case shall have been consented to or shall not have been dismissed or all orders or proceedings thereunder affecting the operations or the business of such Borrower the Company stayed, or if the stay of any such order or proceeding shall thereafter be set aside, or if within sixty (60) 30 days after the entry of a decree appointing a trustee, receiver or liquidator (or other similar official) of such Borrower the Company or any substantial part of the property of such Borrower the Company, such appointment shall not have been vacated; or
(ij) A final judgment which, together with other outstanding final judgments against such Borrowerthe Company, exceeds an amount in the aggregate equal to five percent (5%) of such Borrower's Total Assets (exclusive of amounts covered by available insurance) $500,000 shall be rendered against such Borrower the Company and if, within thirty (30) 60 days after entry thereof, such judgment shall not have been discharged or execution thereof stayed pending appeal, or if, within thirty (30) 60 days after the expiration of any such stay, such judgment shall not have been discharged; or
(j) Such Borrower , or if any member such judgment shall not be discharged forthwith upon the commencement of proceedings to foreclose any lien, attachment or charge which may attach as security therefor and before any of the Controlled Group shall fail to pay when due an amount property or amounts aggregating in excess of $500,000 which it is obligated to pay to the PBGC or to a Plan under Title IV of ERISA; or a notice of intent to terminate a Plan or Plans having aggregate Unfunded Liabilities in excess of $500,000 shall be filed under Title IV of ERISA by such Borrower or any member assets of the Controlled Group, any plan administrator or any combination of the foregoing; or the PBGC Company shall institute proceedings under Title IV of ERISA to terminate or to cause a trustee to be appointed to administer any such Plan or Plans or a proceeding shall be instituted by a fiduciary of any such Plan or Plans against such Borrower or any member of the Controlled Group to enforce Sections 515 or 4219(c)(5) of ERISA; or a condition shall exist by reason of which the PBGC would be entitled to obtain a decree adjudicating that any such Plan or Plans must be terminated; or there shall occur a complete or partial withdrawal from, or a default, within the meaning of Section 4219(c)(5) of ERISA, with respect to, one or more Multiemployer Plans which could cause such Borrower or one or more members of the Controlled Group to incur a current payment obligation have been seized in excess of $500,000; or
(k) Such Borrower shall cease to be an investment management company (or a Portfolio satisfaction thereof) registered under the Investment Company Act, or such Borrower's registration under the Investment Company Act, or that of any Borrower Agent of such Borrower, shall lapse or be suspended; then, and in any such event, and at any time thereafter, if any Event of Default shall then be continuing with respect to such defaulting Borrowercontinuing, (i) in the case of any Event of Default specified in paragraphs (g) and (h) above, the Commitments as to such defaulting Borrower shall thereupon automatically be terminated and the principal of and accrued interest on the Loans shall automatically become due and payable without presentment, demand, protest or other notice or formality of any kind, all of which are hereby expressly waived, and (ii) in the case of any other Event of Default specified above, either or both of the following actions Dominion may be taken: the Operations Agent may, and upon the written or telephonic (confirmed in writing) request of the Majority Banks shall, by written notice to such defaulting Borrower (A) the Company, declare the principal of and accrued interest in respect of such defaulting Borrower's Loans each of the Note to be forthwith due and payable, whereupon the principal of and accrued interest in respect of such Loans the Note shall become forthwith due and payable without presentment, demand, protest or other notice of any kind, all of which are hereby expressly waived by such Borrower, and/or (B) terminate the Commitments as to such defaulting Borrower, whereupon the Commitments of the Banks to make Committed Credit Loans hereunder to such defaulting Borrower shall forthwith terminate without any other notice of any kind and the percentages of the Commitment Fee and other fees and expenses otherwise payable by such defaulting Borrower hereunder accruing from and after the date of termination shall be reallocated among the remaining Borrowers PRO RATA on the basis of the percentages set forth opposite such remaining Borrowers' names on SCHEDULE 1, as in effect at the time of such terminationCompany.
Appears in 1 contract
Sources: Loan Agreement (Online Resources & Communications Corp)
Events of Default; Acceleration. If any of the following events (each an "EVENT OF DEFAULT"“Events of Default” or, if the giving of notice or the lapse of time or both is required, then, prior to such notice or lapse of time, “Defaults”) shall occur with respect to any Borroweroccur:
(a) Such Any Borrower (i) shall default in the payment of fail to pay any principal or interest of any Loan, interest accrued thereon Loan when due in accordance with the terms of this Agreement or fee due hereunder after the same becomes due and payable, whether at maturity or by acceleration or otherwise, or (ii) Borrowers shall default in the payment of fail to pay any other amount due payable hereunder within five (5) days after the same any such other amount becomes due in accordance with the terms of this Agreement and payablethe other Loan Documents; or
(b) Such Any representation or warranty made by any Borrower shall default to the Lender in the performance of this Agreement or compliance with in any term other Loan Document or which is contained in Sections 9.01(a) any certificate, document or 9.01(b) and financial or other statement furnished by it at any time under or in connection with this Agreement or any such default other Loan Document shall prove to have continued for more than three (3) Banking Days, been incorrect in any material respect on or such Borrower shall default in as of the performance of date made or compliance with any term contained in Sections 8.02(d), 8.02(e), 8.02(g), 8.05, 9.02, 9.03 or 9.04deemed made; or
(c) Such Any Borrower shall default fails to observe or perform any covenant, condition, or agreement contained in the performance any of subsection 2.3, 5.4, 5.5, 5.7. 5.9. 5.10 or compliance with 5.11 or Section 6 of this Agreement; or
(d) Any Borrower fails to observe or perform any term covenant, condition, or agreement contained herein in this Agreement or any other Loan Document (other than those expressly referred to as provided in this Section 10.01subsection 8.1(a), 8.1(b) or 8.1(c)) and such failure continues for thirty (30) days after the earlier of (i) the date on which any officer of any Borrower first learns of such default shall not have been remedied within five or (5ii) Banking Days after the date on which written notice thereof shall have been given to such any Borrower by the Operations Agent; or
(d) Such Borrower shall default in the performance of, or compliance with, any material term contained in any other written agreement with the Operations Agent or any Bank pertaining to this Agreement or such Borrower's Loans, and such default shall continue for more than the period of grace, if any, specified therein and shall not have been waived pursuant thereto; orLender;
(e) Any representationBorrower commences any case, warranty certification or statement made or deemed made by such Borrower in this Agreement or in any certificateproceeding, financial statement or other document delivered pursuant hereto shall prove action (i) under any existing or future Law relating to bankruptcy, insolvency, reorganization, or other relief of debtors, seeking to have been false an order for relief entered with respect to it, or incorrect in seeking to adjudicate it as bankrupt or insolvent, or seeking reorganization, arrangement, adjustment, winding-up, liquidation, dissolution, composition, or other relief with respect to it or its debts or (ii) seeking appointment of a receiver, trustee, custodian, conservator, or other similar official for it or for all or any material respect when made; orsubstantial part of its assets, or any Borrower makes a general assignment for the benefit of its creditors;
(f) Except as otherwise provided in this Section 10.01Any proceeding or case shall be commenced against any Borrower, such Borrower shall default in any payment due on Indebtedness for borrowed money without the application or the deferred purchase price of property, the aggregate outstanding principal amount of which is in excess of five percent (5%) consent of such Borrower's Total Assets, in any court of competent jurisdiction, seeking (i) the liquidation, reorganization, dissolution, winding up, or composition or readjustment of its debts, (ii) the appointment of a trustee, receiver, custodian, liquidator or the like of it or of all or any substantial part of assets of such Borrower, or (iii) similar relief in respect of it, under any Law relating to bankruptcy, insolvency, reorganization, winding-up or composition or adjustment of debts or any other law providing for the relief of debtors, and such default proceeding or case shall continue un-dismissed, or un-stayed and in effect, for more than the a period of gracesixty (60) days; or an order for relief shall be entered in an involuntary case under the United States Bankruptcy Code, if anyas amended from time to time, applicable thereto and shall not have been waived pursuant thereto and shall permit against such Borrower or action under the holder Laws of the jurisdiction of incorporation or organization of such Indebtedness Borrower similar to declare such Indebtedness due and payable before its stated maturity, or in any of the performance of or compliance with any term of any evidence of such Indebtedness or of any mortgage, indenture or other agreement relating thereto, and any such default shall continue for more than the period of grace, if any, specified therein and shall not have been waived pursuant thereto and shall permit the holder of such Indebtedness to declare such Indebtedness due and payable before its stated maturity, unless such Borrower foregoing shall be contesting such payment or obligation in good faith by appropriate proceedings promptly initiated and diligently conducted and such Borrower shall have set aside on its books such reserves, if any, taken with respect thereto as are required by GAAP and deemed appropriate by to such Borrower and its independent public accountants, PROVIDED, that no Event shall continue un-stayed and in effect for a period of Default pursuant to paragraphs sixty (b60) or (i) of this Section 10.01 shall have occurred and be continuing as a result of such claim having been asserted in respect of such Indebtednessdays; or
(g) Such One or more judgments or decrees shall be entered against any Borrower shall discontinue its business involving a liability of One Hundred Thousand and 00/100 Dollars (other than in connection with a permitted merger or consolidation of such Borrower$100,000.00) or shall make an assignment for the benefit of creditors, or shall fail generally to pay its debts as such debts become due, or shall apply for or consent more (to the appointment of or taking possession extent not covered by a trustee, receiver or liquidator (or other similar official) of such Borrower or any substantial part independent third-party insurance as to which the insurer has been notified of the property potential claim and does not dispute coverage) and all such judgments or assets of such Borrower decrees shall not have been vacated, discharged, stayed or shall commence a case or have an order for relief entered against it under bonded pending appeal within ten (10) days from the federal bankruptcy laws, as now or hereafter constituted, or any other applicable federal or state bankruptcy, insolvency or other similar law, or if any action shall be taken to dissolve or liquidate such Borrower (other than in connection with a permitted merger or consolidation of such Borrower)entry thereof; or
(h) IfIf any of the Loan Documents (including this Agreement) (or any provision contained therein) shall be cancelled, within sixty (60) days after terminated, revoked, curtailed or rescinded otherwise than in accordance with the commencement against such Borrower terms thereof or with the express prior written agreement, consent or approval of a case under the federal bankruptcy laws, as now or hereafter constitutedLender, or any other applicable federal action at law, suit or state bankruptcy, insolvency in equity or other similar lawlegal proceeding to cancel, such case revoke, curtail or rescind any of the Loan Documents shall have been consented to be commenced by or shall not have been dismissed or all orders or proceedings thereunder affecting the operations or the business of such Borrower stayed, or if the stay on behalf of any such order or proceeding shall thereafter be set aside, or if within sixty (60) days after the entry of a decree appointing a trustee, receiver or liquidator (or other similar official) of such Borrower or any substantial part of its officers, director or stockholders of any Borrower, or any Governmental Authority of competent jurisdiction shall make a determination that, or issue a judgment, order, decree or ruling to the effect that, any of the property of such Borrower such appointment shall not have been vacatedLoan Documents (including this Agreement) (or any provision contained therein) is illegal, invalid or unenforceable in accordance with the terms thereof; or
(i) A final judgment which, together with other outstanding final judgments against such Borrower, exceeds an amount the security interest granted by any Borrower to the Lender under Section 3 of this Agreement shall cease for any reason: (i) to create a valid and perfected second priority security interest in and to all of the aggregate equal Collateral pledged thereunder; or (ii) to five percent (5%) of such Borrower's Total Assets (exclusive of amounts covered by available insurance) shall be rendered against such Borrower in full force and if, within thirty (30) days after entry thereof, such judgment shall not have been discharged effect or execution thereof stayed pending appeal, or if, within thirty (30) days after the expiration of any such stay, such judgment shall not have been dischargedbe declared null and void; or
(j) Such Borrower or any member a material portion of the Controlled Group shall fail to pay when due an amount or amounts aggregating in excess of $500,000 which it is obligated to pay to the PBGC or to a Plan under Title IV of ERISA; or a notice of intent to terminate a Plan or Plans having aggregate Unfunded Liabilities in excess of $500,000 shall be filed under Title IV of ERISA by such Borrower or any member of the Controlled Group, any plan administrator or any combination of the foregoing; or the PBGC shall institute proceedings under Title IV of ERISA to terminate or to cause a trustee to be appointed to administer any such Plan or Plans or a proceeding shall be instituted by a fiduciary property of any such Plan Borrower is damaged by fire or Plans against such Borrower other casualty, or any member of otherwise lost or stolen, the Controlled Group to enforce Sections 515 restoration or 4219(c)(5) of ERISA; or a condition shall exist by reason replacement cost of which property exceeds, in the PBGC aggregate, the amount of insurance proceeds readily available for such restoration or replacement, and such loss would be entitled to obtain have a decree adjudicating that any material adverse effect upon such Plan or Plans must be terminated; or there shall occur a complete or partial withdrawal from, or a default, within the meaning of Section 4219(c)(5) of ERISA, with respect to, one or more Multiemployer Plans which could cause such Borrower or one or more members of the Controlled Group to incur a current payment obligation in excess of $500,000Borrower; or
(k) Such Borrower any Event of Default (as defined in the Senior Loan and Security Agreement) shall cease to be an investment management company (exist and remains un-waived or a Portfolio thereof) registered uncured under the Investment Company ActSenior Loan and Security Agreement if, or as a result of such Borrower's registration under Event of Default (as defined in the Investment Company ActSenior Loan and Security Agreement), or that the Senior Lender is entitled to cause the Senior Credit Facility to become due prior to its stated date of maturity; or
(l) the occurrence of any Borrower Agent of such Borrower, shall lapse or be suspendedMaterial Adverse Change; then, and in any such event, and at any time thereafter, if any Event of Default shall then so long as the same may be continuing with respect to such defaulting Borrower, (i) in the case of any Event of Default specified in paragraphs (g) and (h) abovecontinuing, the Commitments as Lender may, by notice in writing to such defaulting Borrower the Borrowers, declare all of the Obligations to be, and they shall thereupon automatically be terminated and the principal of and accrued interest on the Loans shall automatically become due and payable without presentmentforthwith become, demand, protest or other notice or formality of any kind, all of which are hereby expressly waived, and (ii) in the case of any other Event of Default specified above, either or both of the following actions may be taken: the Operations Agent may, and upon the written or telephonic (confirmed in writing) request of the Majority Banks shall, by written notice to such defaulting Borrower (A) declare the principal of and accrued interest in respect of such defaulting Borrower's Loans to be forthwith due and payable, whereupon the principal of and accrued interest in respect of such Loans shall become forthwith immediately due and payable without presentment, demand, protest or other notice of any kind, all of which are hereby expressly waived by such Borrowerthe Borrowers; provided, and/or (Bhowever, that in the event of any Event of Default specified in subsection 8.1(e) terminate the Commitments as to such defaulting Borroweror 8.1(f), whereupon the Commitments all of the Banks to make Committed Credit Loans hereunder to such defaulting Borrower Obligations shall forthwith terminate become immediately due and payable automatically and without any other requirement of notice of any kind and from the percentages of the Commitment Fee and other fees and expenses otherwise payable by such defaulting Borrower hereunder accruing from and after the date of termination shall be reallocated among the remaining Borrowers PRO RATA on the basis of the percentages set forth opposite such remaining Borrowers' names on SCHEDULE 1, as in effect at the time of such terminationLender.
Appears in 1 contract
Sources: Bridge Loan and Security Agreement (Hitchcock Jeremy P.)
Events of Default; Acceleration. If any of the following events (each an "EVENT OF DEFAULTEvents of Default") shall occur with respect to any Borroweroccur:
(a) Such the Borrower shall fail to pay (i) shall default in the payment of when due and payable any principal of any Loan, or interest accrued thereon or fee due hereunder after on the same becomes due and payable, whether at maturity or by acceleration or otherwise, Revolving Credit Loans or (ii) shall default in the payment of any other amount sum due hereunder after under any of the same becomes due and payable; or
(b) Such Borrower shall default in the performance of or compliance with any term contained in Sections 9.01(a) or 9.01(b) and such default shall have continued for more than three (3) Banking Days, or such Borrower shall default in the performance of or compliance with any term contained in Sections 8.02(d), 8.02(e), 8.02(g), 8.05, 9.02, 9.03 or 9.04; or
(c) Such Borrower shall default in the performance of or compliance with any term contained herein other than those expressly referred to in this Section 10.01, and such default shall not have been remedied Loan Documents within five (5) Banking Days days following written demand for payment of the same;
(b) the Borrower or the Guarantor shall fail to perform any term, covenant or agreement contained in 8 or 9 (other than the covenant set forth in 9(a) hereof);
(c) the Borrower shall fail to perform the covenant set forth in 9(a) hereof and such failure shall continue for thirty (30) days after the Bank has given written notice thereof shall have been given of such failure to such the Borrower by the Operations Agentpursuant to 18 hereof; or
(d) Such the Borrower or the Guarantor or any Additional Guarantor shall default fail to perform any other term, covenant or agreement contained in the performance of, or compliance with, any material term contained in any other written agreement with the Operations Agent or any Bank pertaining to this Agreement or such Borrower's Loans, Loan Documents and such default failure shall continue for more than thirty (30) days after the Bank has given written notice of such failure to the Borrower; provided, that if any such failure is of a nature that it cannot be corrected within such thirty (30) day period but is capable of gracebeing corrected within an additional twenty (20) day period, if any, specified therein and such failure shall not have been waived pursuant theretoconstitute an Event of Default hereunder so long as (i) the Borrower or the Guarantor or such Additional Guarantor, as applicable, institutes reasonable curative action within such initial period and diligently pursues such action to completion and (ii) such failure shall be fully cured within such additional twenty (20) day period; or
(e) Any representation, any representation or warranty certification of the Borrower or statement made the Guarantor or deemed made by such Borrower any Additional Guarantor in this Agreement any of the Loan Documents or in any certificate, financial statement certificate or other document delivered pursuant hereto notice given in connection therewith shall prove to have been false or incorrect misleading in any material respect when at the time made or deemed to have been made; or
(f) Except as otherwise provided the Borrower or the Guarantor or any Additional Guarantor shall be in this Section 10.01default beyond the expiration of any applicable grace period under any environmental, such Borrower shall default financial or payment covenant set forth in any payment due on agreement or agreements evidencing Indebtedness for borrowed money owing to the Bank or any affiliates of the deferred purchase price of property, the aggregate outstanding principal amount of which is Bank or other Indebtedness in excess of five percent (5%) of $1,000,000 in aggregate principal amount, or shall fail to pay such Borrower's Total AssetsIndebtedness when due, and such default shall continue for more than the subject to any applicable period of grace; (g) any of the Loan Documents shall cease to be in full force and effect, if any(h) the Borrower, applicable thereto and shall not have been waived pursuant thereto and shall permit the holder Guarantor, any Additional Guarantor or any of such Indebtedness to declare such Indebtedness due and payable before its stated maturity, or in the performance of or compliance with any term of any evidence of such Indebtedness or of any mortgage, indenture or other agreement relating thereto, and any such default shall continue for more than the period of grace, if any, specified therein and shall not have been waived pursuant thereto and shall permit the holder of such Indebtedness to declare such Indebtedness due and payable before its stated maturity, unless such Borrower shall be contesting such payment or obligation in good faith by appropriate proceedings promptly initiated and diligently conducted and such Borrower shall have set aside on its books such reserves, if any, with respect thereto as are required by GAAP and deemed appropriate by such Borrower and its independent public accountants, PROVIDED, that no Event of Default pursuant to paragraphs (b) or their respective Subsidiaries (i) of this Section 10.01 shall have occurred and be continuing as a result of such claim having been asserted in respect of such Indebtedness; or
(g) Such Borrower shall discontinue its business (other than in connection with a permitted merger or consolidation of such Borrower) or shall make an assignment for the benefit of creditors, (ii) shall be adjudicated bankrupt or insolvent, (iii) shall fail generally to pay its debts as such debts become dueseek the appointment of, or shall apply for or consent to be the appointment subject of or taking possession by an order appointing, a trustee, liquidator or receiver as to all or liquidator (or other similar official) of such Borrower or any substantial part of the property its assets, (iv) shall commence, approve or assets of such Borrower or shall commence a consent to, any case or have an order for relief entered against it proceeding under the federal bankruptcy laws, as now or hereafter constituted, or any other applicable federal or state bankruptcy, insolvency reorganization or other similar lawlaw and, in the case of an involuntary case or if any action shall be taken to dissolve or liquidate such Borrower (other than in connection with a permitted merger or consolidation of such Borrower); or
(h) If, within sixty (60) days after the commencement against such Borrower of a case under the federal bankruptcy laws, as now or hereafter constituted, or any other applicable federal or state bankruptcy, insolvency or other similar lawproceeding, such case shall have been consented to or shall not have been dismissed or all orders or proceedings thereunder affecting the operations or the business of such Borrower stayed, or if the stay of any such order or proceeding shall thereafter be set aside, or if within sixty (60) days after the entry of a decree appointing a trustee, receiver or liquidator (or other similar official) of such Borrower or any substantial part of the property of such Borrower such appointment shall is not have been vacated; or
(i) A final judgment which, together with other outstanding final judgments against such Borrower, exceeds an amount in the aggregate equal to five percent (5%) of such Borrower's Total Assets (exclusive of amounts covered by available insurance) shall be rendered against such Borrower and if, dismissed within thirty (30) days after entry following the commencement thereof, such judgment or (v) shall not have been discharged be the subject of an order for relief in an involuntary case under federal bankruptcy law; (i) the Borrower or execution thereof stayed pending appeal, the Guarantor or if, within thirty (30) days after the expiration of any such stay, such judgment Additional Guarantor shall not have been dischargedbe unable to pay its debts as they mature; or
(j) Such there shall remain undischarged for more than ten (10) days any final (beyond any applicable appeal period) judgment or execution action against the Borrower or the Guarantor or any member of the Controlled Group shall fail to pay when due an amount or amounts aggregating in excess of $500,000 which it is obligated to pay Additional Guarantor (not covered by insurance reasonably satisfactory to the PBGC Agent) that, together with other outstanding claims (not covered by insurance reasonably satisfactory to the Agent) and execution actions against the Borrower or to a Plan under Title IV of ERISAthe Guarantor or such Additional Guarantor exceeds $1,000,000 in the aggregate; or a notice of intent to terminate a Plan or Plans having aggregate Unfunded Liabilities in excess of $500,000 shall be filed under Title IV of ERISA by such Borrower or any member of the Controlled Group, any plan administrator or any combination of the foregoing; or the PBGC shall institute proceedings under Title IV of ERISA to terminate or to cause a trustee to be appointed to administer any such Plan or Plans or a proceeding shall be instituted by a fiduciary of any such Plan or Plans against such Borrower or any member of the Controlled Group to enforce Sections 515 or 4219(c)(5) of ERISA; or a condition shall exist by reason of which the PBGC would be entitled to obtain a decree adjudicating that any such Plan or Plans must be terminated; or there shall occur a complete or partial withdrawal from, or a default, within the meaning of Section 4219(c)(5) of ERISA, with respect to, one or more Multiemployer Plans which could cause such Borrower or one or more members of the Controlled Group to incur a current payment obligation in excess of $500,000; or
(k) Such Borrower the Guarantor shall cease to be an investment management company (or a Portfolio thereof) registered under the Investment Company Act, or such Borrower's registration under general partner of the Investment Company Act, or that of Borrower at any Borrower Agent of such Borrower, shall lapse or be suspended; time: then, and in any such event, and at any time thereafter, if any Event of Default shall then so long as the same may be continuing with respect to such defaulting Borrower, (i) in the case of any Event of Default specified in paragraphs (g) and (h) abovecontinuing, the Commitments as to such defaulting Borrower shall thereupon automatically be terminated and the principal of and accrued interest on the Loans shall automatically become due and payable without presentment, demand, protest or other notice or formality of any kind, all of which are hereby expressly waived, and (ii) in the case of any other Event of Default specified above, either or both of the following actions may be taken: the Operations Agent may, and upon the written or telephonic (confirmed in writing) request of the Majority Banks shall, by written notice in writing to such defaulting Borrower (A) the Borrower, declare all amounts owing with respect to this Agreement, the principal of Revolving Credit Notes and accrued interest in respect of such defaulting Borrower's Loans the other Loan Documents to be be, andthey shall thereupon forthwith due and payablebecome, whereupon the principal of and accrued interest in respect of such Loans shall become forthwith immediately due and payable without presentment, demand, protest or other notice of any kind, all of which are hereby expressly waived by such Borrowerthe Borrower and the Guarantor; provided that in the event of any Event of Default specified in 12.1(h) or 12.1(i), and/or (B) terminate the Commitments as to such defaulting Borrower, whereupon the Commitments all suchamounts shall become immediately due and payable automatically and without any requirement of notice from any of the Banks to make Committed Credit Loans hereunder to such defaulting Borrower shall forthwith terminate without any other notice of any kind and or the percentages of Agent or action by the Commitment Fee and other fees and expenses otherwise payable by such defaulting Borrower hereunder accruing from and after Banks or the date of termination shall be reallocated among the remaining Borrowers PRO RATA on the basis of the percentages set forth opposite such remaining Borrowers' names on SCHEDULE 1, as in effect at the time of such terminationAgent.
Appears in 1 contract
Events of Default; Acceleration. If any The occurrence of one or more of the following events (each herein an "EVENT OF DEFAULT"“Event of Default”) shall occur with respect constitute an Event of Default under this Agreement (and whether such occurrence shall be voluntary or involuntary or be effected by operation of law or pursuant to any Borrower:judgment, decree or order of any court or any order, rule or regulation of any administrative or governmental body):
(a) Such Borrower (i) shall default in the payment of principal of any Loan, interest accrued thereon or fee due hereunder after the same becomes due and payable, whether at maturity or by acceleration or otherwise, or (ii) shall default in the payment of any other amount due hereunder after interest upon any of the same Notes when such interest becomes due and payable; or
(b) Such Borrower shall default in the performance payment of principal of (or compliance with prepayment premium, if any, on) any term contained of the Notes or in Sections 9.01(a) the payment of any other amount evidenced by any of the Notes or 9.01(b) payable under this Agreement when and such default as the same shall have continued become due and payable, whether at maturity or at a date fixed for more than three (3) Banking Dayspayment or prepayment, or such Borrower shall default in the performance of by acceleration or compliance with any term contained in Sections 8.02(d), 8.02(e), 8.02(g), 8.05, 9.02, 9.03 or 9.04otherwise; or
(c) Such Borrower shall default in the performance or observance of any other non-monetary covenant, agreement or compliance with any term condition contained herein in this Agreement or in either of the Notes or the other Loan Documents (other than those expressly referred to matters otherwise identified in this Section 10.0111.1) that is not cured within thirty (30) days after receipt by Borrower of written notice from Lender specifying the nature of the default, and provided however, if such default is a non-monetary default and cannot be cured within the 30-day period, then so long as Borrower have commenced and diligently pursues the cure of the related default, within ninety (90) days following receipt of written notice, no Event of Default shall not have been remedied within five result and further provided that no notice of default or opportunity for cure shall be required if during the prior twelve (512) Banking Days after months, Lender has already sent a written notice thereof to Borrower identifying Borrower’s default in performance of the same obligation and further provided that any cure periods set forth in this Section 11.1(c) shall have been given to such Borrower by the Operations Agentrun concurrently with any cure periods afforded under any other Loan Documents; or
(d) Such Borrower shall default in any Event of Default under any of the performance of, Security Instruments or compliance withany Default or Event of Default under any Collateral Document or under any of the Indemnity Agreements, any material term contained in default under any guaranty or under any other written agreement with Loan Document (following the Operations Agent or expiration of any Bank pertaining to this Agreement or such Borrower's Loans, and such default applicable cure period) shall continue for more than the period of grace, if any, specified therein and shall not have been waived pursuant theretooccur; or
(e) Any representationBorrower shall not pay when due, warranty certification whether by acceleration or statement made otherwise, any evidence of indebtedness of Borrower (other than the Notes), or deemed made by any condition or default shall exist under any such Borrower in this Agreement evidence of indebtedness or in under any certificate, financial statement or other document delivered pursuant hereto shall prove to agreement under which the same may have been false issued permitting such evidence of indebtedness to become or incorrect in be declared due prior to the stated maturity thereof, and the expiration of any material respect when madeapplicable cure period; or
(f) Except any Obligor shall file a petition seeking relief for itself under Title 11 of the United States Code, as otherwise provided in this Section 10.01, such Borrower shall default in any payment due on Indebtedness for borrowed money now constituted or the deferred purchase price of property, the aggregate outstanding principal amount of which is in excess of five percent (5%) of such Borrower's Total Assets, and such default shall continue for more than the period of grace, if any, applicable thereto and shall not have been waived pursuant thereto and shall permit the holder of such Indebtedness to declare such Indebtedness due and payable before its stated maturityhereafter amended, or in an answer consenting to, Loan Agreement Loan Nos. 196914 and 196915 Gladstone Land Portfolio 75738955.8 0053564-00150 admitting the performance material allegations of or compliance otherwise not controverting, or shall fail to timely controvert, a petition filed against any Obligor seeking relief under Title 11 of the United States Code, as now constituted or hereafter amended; or any Obligor shall file such a petition or answer with any term respect to relief under the provisions of any evidence other now existing or future bankruptcy, insolvency or other similar law of such Indebtedness the United States of America or any State thereof or of any mortgageother country or jurisdiction providing for the reorganization, indenture winding-up or other agreement relating theretoliquidation of corporations or an arrangement, and any such default shall continue for more than the period of gracecomposition, if any, specified therein and shall not have been waived pursuant thereto and shall permit the holder of such Indebtedness to declare such Indebtedness due and payable before its stated maturity, unless such Borrower shall be contesting such payment extension or obligation in good faith by appropriate proceedings promptly initiated and diligently conducted and such Borrower shall have set aside on its books such reserves, if any, adjustment with respect thereto as are required by GAAP and deemed appropriate by such Borrower and its independent public accountants, PROVIDED, that no Event of Default pursuant to paragraphs (b) or (i) of this Section 10.01 shall have occurred and be continuing as a result of such claim having been asserted in respect of such Indebtednesscreditors; or
(g) Such Borrower a court of competent jurisdiction shall discontinue enter an order for relief which is not stayed within sixty (60) days from the date of entry thereof against any Obligor under Title 11 of the United States Code, as now constituted or hereafter amended; or there shall be entered an order, judgment or decree by operation of law or by a court having jurisdiction in the premises which is not stayed within sixty (60) days from the date of entry thereof adjudging any Obligor as bankrupt or insolvent, or ordering relief against any Obligor, or approving as properly filed a petition seeking relief against any Obligor, under the provisions of any other now existing or future bankruptcy, insolvency or other similar law of the United States of America or any State thereof or of any other country or jurisdiction providing for the reorganization, winding-up or liquidation of corporations or an arrangement, composition, extension or adjustment with creditors, or appointing a receiver, liquidator, assignee, sequestrator, trustee, custodian or similar official of any Obligor or of any substantial part of its business property, or ordering the reorganization, winding-up or liquidation of its affairs; or any involuntary petition against any Obligor seeking any of the relief specified in this clause shall not be dismissed within sixty (other than in connection with a permitted merger or consolidation 60) days of such Borrowerits filing; or
(h) or any Obligor shall make an a general assignment for the benefit of its creditors, ; or any Obligor shall fail generally to pay its debts as such debts become due, or shall apply for or consent to the appointment of or taking possession by a receiver, liquidator, assignee, sequestrator, trustee, receiver custodian or liquidator (or other similar official) official of such Borrower Obligor or of all or any substantial part of the property its property; or assets of such Borrower any Obligor shall have admitted in writing to its insolvency or inability to pay, or shall commence a case or have an order for relief entered against it under the federal bankruptcy lawsfailed to pay, its debts generally as now or hereafter constituted, such debts become due; or any other applicable federal Obligor or state bankruptcyits trustees, insolvency directors or other similar law, or if members shall take any action shall be taken to dissolve or liquidate such Borrower (other than in connection with a permitted merger or consolidation of such Borrower); or
(h) If, within sixty (60) days after the commencement against such Borrower of a case under the federal bankruptcy laws, as now or hereafter constituted, or any other applicable federal or state bankruptcy, insolvency or other similar law, such case shall have been consented to or shall not have been dismissed or all orders or proceedings thereunder affecting the operations or the business of such Borrower stayed, or if the stay of any such order or proceeding shall thereafter be set aside, or if within sixty (60) days after the entry of a decree appointing a trustee, receiver or liquidator (or other similar official) of such Borrower or any substantial part of the property of such Borrower such appointment shall not have been vacatedObligor; or
(i) A final judgment whichany Obligor shall (1) engage in any non-exempted “prohibited transaction,” as defined in Sections 406 and 408 of ERISA and Section 4975 of the Internal Revenue Code of 1986, together with other outstanding final judgments against such Borroweras amended, exceeds (2) incur any “accumulated funding deficiency,” as defined in Section 302 of ERISA, in an amount in excess of Ten Thousand Dollars ($10,000), whether or not waived, or (3) terminate or permit the aggregate equal to five percent (5%) termination of an “employee pension benefit plan,” as defined in Section 3 of ERISA, in a manner which could result in the imposition of a Lien on any property of such Borrower's Total Assets Obligor pursuant to Section 4068 of ERISA securing an amount in excess of Ten Thousand Dollars (exclusive $10,000.00); or Loan Agreement Loan Nos. 196914 and 196915 Gladstone Land Portfolio 75738955.8 0053564-00150
(j) any representation or warranty made by Borrower in Section 4 hereof or in any Collateral Document or in any certificate or instrument furnished in connection therewith shall prove to have been false or misleading in any material respect as of amounts covered by available insurance) the date made, provided that Borrower shall be rendered against such Borrower and if, within have thirty (30) days after entry thereof, such judgment shall not have been discharged or execution thereof stayed pending appeal, or if, within thirty (30) days after following the expiration of any such stay, such judgment shall not have been discharged; or
(j) Such Borrower or any member written identification by Lender of the Controlled Group shall fail related misrepresentation or breach of warranty to pay when due an amount or amounts aggregating cure the related misrepresentation if unintentional and if Lender is thereby placed in excess of $500,000 which it is obligated to pay to the PBGC or to a Plan under Title IV of ERISA; or a notice of intent to terminate a Plan or Plans having aggregate Unfunded Liabilities in excess of $500,000 shall be filed under Title IV of ERISA by such Borrower or any member of same risk position as if the Controlled Group, any plan administrator or any combination of the foregoing; or the PBGC shall institute proceedings under Title IV of ERISA to terminate or to cause a trustee to be appointed to administer any such Plan or Plans or a proceeding shall be instituted by a fiduciary of any such Plan or Plans against such Borrower or any member of the Controlled Group to enforce Sections 515 or 4219(c)(5) of ERISA; or a condition shall exist by reason of which the PBGC would be entitled to obtain a decree adjudicating that any such Plan or Plans must be terminated; or there shall occur a complete or partial withdrawal from, or a default, within the meaning of Section 4219(c)(5) of ERISA, with respect to, one or more Multiemployer Plans which could cause such Borrower or one or more members of the Controlled Group to incur a current payment obligation in excess of $500,000misrepresentation had not been made; or
(k) Such Borrower shall cease to be the Collateral or any portion thereof is sold, conveyed, transferred, assigned or disposed of, or the Real Property is rezoned, either voluntarily or involuntarily, or an investment management company (or a Portfolio thereof) registered agreement for any of the foregoing is entered into, other than transfers permitted under the Investment Company Act, Loan Documents; or
(l) the dissolution or such Borrower's registration under the Investment Company Act, or that death of any Borrower Agent Obligor, whether by operation of law or otherwise other than inadvertent administrative dissolution which is not cured within 30 days after Obligor has knowledge of such Borrowerfact and which has no Material Adverse Effect; or
(m) the default beyond any applicable cure or grace period by any Obligor under any Indebtedness owed to any Person other than Lender, shall lapse or be suspended; then, and in any such event, and at any time thereafter, if any Event of Default shall then be continuing other than a default (i) with respect to such defaulting BorrowerIndebtedness that is not secured by any of the Collateral, and (iii) that does not result in the case a breach of any of the obligations set forth in this Agreement including without limitation the covenants set forth in Sections 9.1 - 9.5 above. Upon an Event of Default specified in paragraphs (g) and (h) aboveDefault, at Lender’s option, the Commitments as to such defaulting Borrower shall thereupon automatically be terminated and entire outstanding principal amount of the principal of and Notes, together with accrued interest on thereon at the Loans Default Interest Rate, shall automatically immediately become due and payable without presentment, demand, protest or other notice or formality demand. In the event that a tender of any kindthe foregoing sum is received at a time when a prepayment premium would otherwise apply or prepayment would be prohibited under the Notes, all of which are hereby expressly waivedsuch tender shall be deemed to be a voluntary prepayment under the Notes, and (ii) in addition to principal and interest due as aforesaid, the Borrower agrees to pay the prepayment price, computed as provided in the case Notes (except that, for purposes of any other Event of Default specified abovesuch computation, either or both the prepayment date shall be deemed to be the date upon which the holder of the following actions may Notes shall have declared the Notes to be taken: the Operations Agent may, due and upon the written or telephonic (confirmed in writing) request of the Majority Banks shall, by written notice to such defaulting Borrower payable). BORROWER EXPRESSLY (A) declare the principal of and accrued interest in respect of such defaulting Borrower's Loans to be forthwith due and payableWAIVES ANY RIGHTS IT MAY HAVE UNDER CALIFORNIA CIVIL CODE SECTION 2954.10 TO PREPAY THE NOTES, whereupon the principal of and accrued interest in respect of such Loans shall become forthwith due and payable without presentmentIN WHOLE OR IN PART, demandWITHOUT FEE OR PENALTY, protest or other notice of any kindUPON ACCELERATION OF THE MATURITY DATE OF THE NOTES, all of which are hereby expressly waived by such Borrower, and/or AND (B) terminate the Commitments as to such defaulting BorrowerAGREES THAT IF, whereupon the Commitments of the Banks to make Committed Credit Loans hereunder to such defaulting Borrower shall forthwith terminate without any other notice of any kind FOR ANY REASON, A PREPAYMENT OF THE NOTES IS MADE, UPON OR FOLLOWING ANY ACCELERATION OF THE MATURITY DATE OF THE NOTES BY THE HOLDER THEREOF ON ACCOUNT OF ANY DEFAULT BY BORROWER UNDER ANY LOAN DOCUMENT, INCLUDING BUT NOT LIMITED TO ANY TRANSFER, FURTHER ENCUMBRANCE OR DISPOSITION WHICH IS PROHIBITED OR RESTRICTED BY THE Loan Agreement Loan Nos. 196914 and the percentages of the Commitment Fee and other fees and expenses otherwise payable by such defaulting Borrower hereunder accruing from and after the date of termination shall be reallocated among the remaining Borrowers PRO RATA on the basis of the percentages set forth opposite such remaining Borrowers' names on SCHEDULE 1196915 Gladstone Land Portfolio 75738955.8 0053564-00150 SECURITY INSTRUMENTS, as in effect at the time of such termination.THEN BORROWER SHALL BE OBLIGATED TO PAY CONCURRENTLY THE PREPAYMENT FEE SPECIFIED IN THE NOTES (IF APPLICABLE). BY INITIALING THIS PROVISION IN THE SPACE PROVIDED BELOW, BORROWER AGREES THAT LENDER’S AGREEMENT TO MAKE THE LOAN AT INTEREST RATE AND FOR THE TERM SET FORTH IN THE NOTES AND THIS AGREEMENT CONSTITUTES ADEQUATE CONSIDERATION FOR THIS WAIVER AND AGREEMENT. INITIALS OF AUTHORIZED SIGNATORY OF BORROWER:
Appears in 1 contract
Sources: Loan Agreement (GLADSTONE LAND Corp)
Events of Default; Acceleration. If any of the following events (each an "EVENT OF DEFAULT"“Events of Default”) shall occur with respect to any Borroweroccur:
(a) Such Borrower Appia shall fail to pay any principal amount of the New Debenture or fees, charges, costs or expenses (iother than an Interest Default permitted by Section 2.5(a)) shall default in the payment of principal of any Loan, interest accrued thereon or fee due hereunder after the same becomes due and payable, whether at maturity payable under the New Debenture or by acceleration any of the Financing Documents when such payment comes due in accordance with the terms of this Agreement and the other Financing Documents; or otherwise, or (ii) Appia shall default in the payment of fail to pay any other amount payable hereunder when due hereunder after the same becomes due and payable(other than an Interest Default permitted by Section 2.5(a)); or
(b) Such Borrower shall default any representation or warranty made by a Company or any other Obligor herein or in the performance of any other Financing Document or compliance with any term which is contained in Sections 9.01(a) any certificate, document, financial or 9.01(b) and other statement furnished by it at any time under or in connection with this Agreement or any such default other Financing Document shall prove, when taken as a whole, to have continued for more than three (3) Banking Days, been incorrect in any material respect on or such Borrower shall default in as of the performance of or compliance with any term contained in Sections 8.02(d), 8.02(e), 8.02(g), 8.05, 9.02, 9.03 or 9.04date made; or
(c) Such Borrower the failure by Appia or any other Obligor to punctually perform, observe, comply with or satisfy (i) any covenant, agreement or condition contained in Sections 7 or 8 of this Agreement, or (ii) any covenant, agreement or condition contained in any Financing Document, subject to any applicable cure period set forth therein; or
(d) Appia or any Subsidiary shall be in default in the observance or performance of any other covenant contained in this Agreement or compliance with any term contained herein other Financing Document (other than those expressly referred to as provided in paragraphs (a) through (c) of this Section 10.019.1), and such default (if remediable) shall not have been remedied within five continue unremedied for a period of twenty (520) Banking Days days after the earlier of (i) the date on which a Responsible Officer of such Company first learns of such default or (ii) the date on which written notice thereof shall have been given to such Borrower Company by the Operations Agent; or
(d) Such Borrower shall default in the performance of, or compliance with, any material term contained in any other written agreement with the Operations Agent or any Bank pertaining to this Agreement or such Borrower's Loans, and such default shall continue for more than the period of grace, if any, specified therein and shall not have been waived pursuant theretoPurchaser; or
(e) Any representationAppia or any Subsidiary shall fail to pay when due or shall fail to observe or perform any term, warranty certification covenant or statement made agreement evidencing or deemed made by securing any Indebtedness of such Borrower Company which, together with all such other due but unpaid Indebtedness, exceeds the sum of Two Hundred Thousand and 00/100 Dollars ($200,000.00), which results in this Agreement the proper acceleration of such Indebtedness or in the proper declaration of an event of default under any certificate, financial statement or other document delivered pursuant hereto shall prove agreement relating to have been false or incorrect in any material respect when madesuch Indebtedness; or
(f) Except as otherwise provided in this Section 10.01a Company or any Subsidiary, such Borrower shall default in any payment due on Indebtedness for borrowed money or the deferred purchase price of property, the aggregate outstanding principal amount of which is in excess of five percent (5%) of such Borrower's Total Assets, and such default shall continue for more than the period of grace, if any, applicable thereto and shall not have been waived pursuant thereto and shall permit the holder of such Indebtedness to declare such Indebtedness due and payable before its stated maturity, or in the performance of or compliance with any term of any evidence of such Indebtedness or of any mortgage, indenture or other agreement relating thereto, and any such default shall continue for more than the period of grace, if any, specified therein and shall not have been waived pursuant thereto and shall permit the holder of such Indebtedness to declare such Indebtedness due and payable before its stated maturity, unless such Borrower shall be contesting such payment or obligation in good faith by appropriate proceedings promptly initiated and diligently conducted and such Borrower shall have set aside on its books such reserves, if any, with respect thereto as are required by GAAP and deemed appropriate by such Borrower and its independent public accountants, PROVIDED, that no Event of Default pursuant to paragraphs (b) or (i) of this Section 10.01 shall have occurred and be continuing as a result of such claim having been asserted in respect of such Indebtedness; or
(g) Such Borrower shall discontinue its business (other than in connection with a permitted merger or consolidation of such Borrower) or shall make an assignment for the benefit of creditors, ; or (ii) shall fail generally admit in writing its inability to pay its debts as such debts they become due, or its inability to pay or perform under the Financing Documents; or (iii) shall apply file a voluntary petition in bankruptcy; or (iv) shall file any petition, answer, or document seeking for itself any reorganization, arrangement, composition, readjustment, liquidation, dissolution or similar relief under any present or future statute, law or regulation pertinent to such circumstances; or (v) shall seek or consent to or acquiesce in the appointment of or taking possession by a any trustee, receiver receiver, or liquidator (or other similar official) of such Borrower Company or of all or any substantial part (i.e., 33-1/3% or more) of the assets or property or assets of such Borrower Company; or (vi) other than as permitted herein, shall commence a case cease operations of its business as its business has normally been conducted (which consists of advertising, marketing and sales within the mobile industry) or have an order for relief entered against it under the federal bankruptcy laws, as now or hereafter constitutedis currently proposed to be conducted, or any other applicable federal terminate substantially all of its employees; or state bankruptcy, insolvency (vii) such Company’s directors or other similar law, or if majority shareholders shall take any action shall be taken to dissolve or liquidate such Borrower initiating any of the foregoing actions described in clauses (other than in connection with a permitted merger or consolidation of such Borroweri) through (vi); or
(hg) If, within sixty either (60i) forty-five (45) days shall have expired after the commencement of an involuntary action against such Borrower of a case under the federal bankruptcy laws, as now or hereafter constituted, Company or any other applicable federal Subsidiary seeking reorganization, arrangement, composition, readjustment, liquidation, dissolution or state bankruptcysimilar relief under any present or future statute, insolvency law or other similar lawregulation, without such case shall have been consented to or shall not have been action being dismissed or all orders or proceedings thereunder affecting the operations or the business of such Borrower Company or any Subsidiary being stayed, ; or if the (ii) a stay of any such order or proceeding proceedings shall thereafter be set aside, aside and the action setting it aside shall not be timely appealed; or if within sixty (60iii) such Company or any Subsidiary shall file any answer admitting or not contesting the material allegations of a petition filed against such Company or any Subsidiary in any such proceedings; or (iv) the court in which such proceedings are pending shall enter a decree or order granting the relief sought in any such proceedings; or (v) twenty (20) days shall have expired after the entry appointment, without the consent or acquiescence of a decree appointing a Company or any Subsidiary, of any trustee, receiver or liquidator (or other similar official) of such Borrower Company or any Subsidiary or of all or any substantial part of the property properties of such Borrower Company or any Subsidiary without such appointment shall not have been being vacated; or
(i) A final judgment which, together with other outstanding final judgments against such Borrower, exceeds an amount in the aggregate equal to five percent (5%) of such Borrower's Total Assets (exclusive of amounts covered by available insurance) shall be rendered against such Borrower and if, within thirty (30) days after entry thereof, such judgment shall not have been discharged or execution thereof stayed pending appeal, or if, within thirty (30) days after the expiration of any such stay, such judgment shall not have been discharged; or
(j) Such Borrower Appia or any member of the Commonly Controlled Group Entity shall fail to pay when due an any amount or amounts aggregating in excess of $500,000 which that it is obligated shall have become liable to pay to the PBGC or to a Plan under Title IV of ERISA, unless (A) such liability is being contested in good faith by appropriate proceedings, such Company or such Commonly Controlled Entity, as the case may be, has established and is maintaining adequate reserves in accordance with GAAP and no lien shall have been filed to secure such liability or (B) which would not have a Material Adverse Effect; or a notice of intent to terminate a Plan or Plans having aggregate Unfunded Liabilities in excess of $500,000 shall be filed under Title IV of ERISA by such Borrower or any member of the Controlled Group, any plan administrator or any combination of the foregoing; or (ii) the PBGC shall institute proceedings under Title IV of ERISA to terminate or to cause a trustee to be appointed to administer any such Plan or Plans or a proceeding shall be instituted by a fiduciary of any such Plan or Plans against such Borrower or any member of the Controlled Group to enforce Sections 515 or 4219(c)(5) of ERISAPlans; or (iii) a condition shall exist by reason of which the PBGC would be entitled to obtain a decree adjudicating that any such Plan or Plans must be terminated; or there shall occur a complete or partial withdrawal from, or a default, within the meaning of Section 4219(c)(5or
(i) of ERISA, with respect to, one or more Multiemployer Plans which could cause such Borrower final, nonappealable judgments or one decrees shall be entered against Appia or more members any of the Controlled Group to incur a current payment obligation its Subsidiaries involving individually monetary damages of Two Hundred Fifty and 00/100 Dollars ($250,000.00) (in excess of what is paid or covered by insurance) or in the aggregate, monetary damages of Two Hundred Fifty Thousand and 00/100 Dollars ($500,000250,000.00) (in excess of what is paid or covered by insurance) or more, and all such judgments or decrees shall not have been vacated, discharged, stayed or bonded pending appeal within thirty (30) days from the entry thereof; or
(j) if any of the Financing Documents or the Warrant (or any provision contained therein) shall be cancelled, terminated, revoked, curtailed or rescinded otherwise than in accordance with the terms thereof or with the express prior written agreement, consent or approval of the Purchaser, or any action at law, suit or in equity or other legal proceeding be commenced by or on behalf of a Company or any of its officers of members of its Board of Directors and results in, or is reasonably likely to result in, a finding, order, decree or judgment which does or would cancel, revoke, curtail or rescind any of the Financing Documents or the Warrant, or any Governmental Authority of competent jurisdiction shall make a determination that, or issue a judgment, order, decree or ruling to the effect that, any of the Financing Documents or the Warrant (or any provision contained therein) is illegal, invalid or unenforceable in accordance with the terms thereof; or
(k) Such Borrower shall any Lien created by any of the Security Documents shall, by reason of any breach by any Obligor thereto of any of its covenants or other obligations contained in such Security Documents, cease to be an investment management company enforceable and of the same effect and priority purported to be created thereby; or
(l) a material portion of the property of a Company or any of its Subsidiaries is damaged by fire or other casualty, or otherwise lost or stolen, the restoration or replacement cost of which property exceeds the amount of insurance proceeds readily available for such restoration or replacement; or
(m) any default shall exist and remains unwaived, unforborn or uncured with respect to any of the Senior Debt or Replacement Senior Debt if, as a Portfolio thereofresult of such default, any holder of the Senior Debt or Replacement Senior Debt, is entitled and elects to cause any such Senior Debt or Replacement Senior Debt to become due prior to its stated date of maturity; or
(n) registered any payment which a Company knew or should have known was be made in violation of any subordination agreement entered into between the Purchaser and another holder of Company Indebtedness or Company Subsidiary Indebtedness; or
(i) any guaranty of any Obligations terminates or ceases for any reason to be in full force and effect; (ii) Digital does not perform any obligation or covenant under the Investment Company ActDigital Guaranty; (iii) any circumstance described in Sections 9.1(b), (f), (g), and (i) hereinabove with respect to (i.e., as and as-if applied to) Digital (provided that with respect to Digital, the applicable threshold under Section 9.1(i) shall be Five Hundred Thousand Dollars ($500,000)); or (iv) the liquidation, winding up, or such Borrower's registration under the Investment Company Act, or that termination of any Borrower Agent existence of such Borrower, shall lapse or be suspended; Digital. then, and in any such event, and at any time thereafterso long as the same may be continuing, if any Event of Default shall then be continuing the Purchaser may, by notice to the Companies, declare all amounts owing with respect to such defaulting Borrower, (i) in the case of any Event of Default specified in paragraphs (g) and (h) abovethis Agreement, the Commitments as New Debenture, and the other Financing Documents to such defaulting Borrower be, and they shall thereupon automatically be terminated and the principal of and accrued interest on the Loans shall automatically become due and payable without presentmentforthwith become, demand, protest or other notice or formality of any kind, all of which are hereby expressly waived, and (ii) in the case of any other Event of Default specified above, either or both of the following actions may be taken: the Operations Agent may, and upon the written or telephonic (confirmed in writing) request of the Majority Banks shall, by written notice to such defaulting Borrower (A) declare the principal of and accrued interest in respect of such defaulting Borrower's Loans to be forthwith due and payable, whereupon the principal of and accrued interest in respect of such Loans shall become forthwith immediately due and payable without presentment, demand, protest or other notice of any kind, all of which are hereby expressly waived by the Companies; provided, however, that in the event of any Event of Default specified in Section 9.1(f), Section 9.1(g) or Section 9.1(h), all such Borrower, and/or (B) terminate the Commitments as to such defaulting Borrower, whereupon the Commitments of the Banks to make Committed Credit Loans hereunder to such defaulting Borrower amounts shall forthwith terminate become immediately due and payable automatically and without any other requirement of notice of any kind and from the percentages of the Commitment Fee and other fees and expenses otherwise payable by such defaulting Borrower hereunder accruing from and after the date of termination shall be reallocated among the remaining Borrowers PRO RATA on the basis of the percentages set forth opposite such remaining Borrowers' names on SCHEDULE 1, as in effect at the time of such terminationPurchaser.
Appears in 1 contract
Sources: Securities Purchase Agreement (Digital Turbine, Inc.)
Events of Default; Acceleration. If any of the following conditions or events (each an "EVENT OF DEFAULTEvents of Default") shall occur with respect to any Borrowerand be continuing:
(a) Such Borrower (i) if the Company shall default in the payment of any principal of or premium, if any, on any Loan, interest accrued thereon or fee due hereunder after Note when the same becomes due and payable, whether at maturity or at a date fixed for prepayment or by acceleration declaration or otherwise, or ; or
(iib) if the Company shall default in the payment of any other amount due hereunder interest on any Note for more than five days after the same becomes due and payable; or
(bc) Such Borrower if the Company shall default in the performance of or compliance with any term contained in Sections 9.01(asections 10.1 through 10.8, inclusive; or
(d) or 9.01(b) and such default shall have continued for more than three (3) Banking Days, or such Borrower if the Company shall default in the performance of or compliance with any term contained in Sections 8.02(d), 8.02(e), 8.02(g), 8.05, 9.02, 9.03 or 9.04; or
(c) Such Borrower shall default in the performance of or compliance with any term contained herein this Agreement other than those expressly referred to above in this Section 10.01, section 11 and such default shall not have been remedied within five (5) Banking Days 30 days after such failure shall first have become known to any officer of the Company or written notice thereof shall have been given to such Borrower received by the Operations Agent; or
(d) Such Borrower shall default in the performance of, or compliance with, Company from any material term contained in holder of any other written agreement with the Operations Agent or any Bank pertaining to this Agreement or such Borrower's Loans, and such default shall continue for more than the period of grace, if any, specified therein and shall not have been waived pursuant theretoNote; or
(e) Any representation, if any representation or warranty certification made in writing by or statement made or deemed made by such Borrower on behalf of the Company in this Agreement or in any certificate, financial statement or other document delivered pursuant hereto instrument furnished in compliance with this Agreement shall prove to have been false or incorrect in any material respect when on the date as of which made; or
(f) Except as otherwise provided in this Section 10.01, such Borrower if the Company or any Subsidiary shall default (as principal or guarantor or other surety) in the payment of any payment due principal of or premium or interest on Indebtedness for borrowed money or the deferred purchase price of property, the aggregate any Debt which is outstanding in a principal amount of at least $1,000,000 (other than the Notes), or if any event shall occur or condition shall exist in respect of any such Debt which is outstanding in excess a principal amount of five percent (5%) of such Borrower's Total Assets, and such default shall continue for more than the period of grace, if any, applicable thereto and shall not have been waived pursuant thereto and shall permit the holder of such Indebtedness to declare such Indebtedness due and payable before its stated maturity, at least $1,000,000 or in the performance of or compliance with any term of under any evidence of any such Indebtedness Debt or of any mortgage, indenture or other agreement relating thereto, and any such default shall continue for more than the period of grace, if any, specified therein and shall not have been waived pursuant thereto and shall permit the holder of such Indebtedness to declare such Indebtedness due and payable before its stated maturity, unless such Borrower shall be contesting such payment or obligation in good faith by appropriate proceedings promptly initiated and diligently conducted and such Borrower shall have set aside on its books such reserves, if any, with respect thereto as are required by GAAP and deemed appropriate by such Borrower and its independent public accountants, PROVIDED, that no Event of Default pursuant to paragraphs (b) or (i) of this Section 10.01 shall have occurred and be continuing as a result of such claim having been asserted in respect default, event or condition the holder or holders of such IndebtednessDebt shall have caused the acceleration of the payment of such Debt before its regularly scheduled dates of payment; or
(g) Such Borrower if any Guaranty Agreement shall discontinue its business be unenforceable or shall cease to be in full force and effect as to any Subsidiary; or
(other than h) if a final judgment or judgments shall be rendered against the Company or any Subsidiary for the payment of money in connection with a permitted merger or consolidation excess of $250,000 (in excess of insurance coverage) in the aggregate and any one of such Borrowerjudgments shall not be discharged or execution thereon stayed pending appeal, within 60 days after entry thereof, or, in the event of such a stay, such judgment shall not be discharged within 60 days after such stay expires; or
(i) if the Company or any material Subsidiary shall (i) admit in writing its inability, generally, to pay its debts as they become due, (ii) file, or consent by answer or otherwise to the filing against it of, a petition for relief or reorganization or arrangement or any other petition in bankruptcy, for liquidation or to take advantage of any bankruptcy or insolvency law of any jurisdiction, (iii) make an assignment for the benefit of its creditors, or shall fail generally to pay its debts as such debts become due, or shall apply for or (iv) consent to the appointment of or taking possession by a trusteecustodian, receiver or liquidator (receiver, trustee or other officer with similar official) of such Borrower powers with respect to it or with respect to any substantial part of its property, (v) be adjudicated insolvent or (vi) take corporate action for the property or assets of such Borrower or shall commence a case or have an order for relief entered against it under the federal bankruptcy laws, as now or hereafter constituted, or any other applicable federal or state bankruptcy, insolvency or other similar law, or if any action shall be taken to dissolve or liquidate such Borrower (other than in connection with a permitted merger or consolidation of such Borrower); or
(h) If, within sixty (60) days after the commencement against such Borrower of a case under the federal bankruptcy laws, as now or hereafter constituted, or any other applicable federal or state bankruptcy, insolvency or other similar law, such case shall have been consented to or shall not have been dismissed or all orders or proceedings thereunder affecting the operations or the business of such Borrower stayed, or if the stay purpose of any such order or proceeding shall thereafter be set aside, or if within sixty (60) days after the entry of a decree appointing a trustee, receiver or liquidator (or other similar official) of such Borrower or any substantial part of the property of such Borrower such appointment shall not have been vacated; or
(i) A final judgment which, together with other outstanding final judgments against such Borrower, exceeds an amount in the aggregate equal to five percent (5%) of such Borrower's Total Assets (exclusive of amounts covered by available insurance) shall be rendered against such Borrower and if, within thirty (30) days after entry thereof, such judgment shall not have been discharged or execution thereof stayed pending appeal, or if, within thirty (30) days after the expiration of any such stay, such judgment shall not have been dischargedforegoing; or
(j) Such Borrower if a court or governmental authority of competent jurisdiction shall enter an order appointing, without consent by the Company or any member material Subsidiary, a custodian, receiver, trustee or other officer with similar powers with respect to it or with respect to any substantial part of its property, or if an order for relief shall be entered in any case or proceeding for liquidation or reorganization or otherwise to take advantage of any bankruptcy or insolvency law of any jurisdiction, or ordering the dissolution, winding-up or liquidation of the Controlled Group shall fail to pay when due an amount Company or amounts aggregating in excess of $500,000 which it is obligated to pay to the PBGC any material Subsidiary, or to a Plan under Title IV of ERISA; or a notice of intent to terminate a Plan or Plans having aggregate Unfunded Liabilities in excess of $500,000 if any petition for any such relief shall be filed under Title IV of ERISA by such Borrower or any member of against the Controlled Group, any plan administrator or any combination of the foregoing; or the PBGC shall institute proceedings under Title IV of ERISA to terminate or to cause a trustee to be appointed to administer any such Plan or Plans Company or a proceeding material Subsidiary and such petition shall not be instituted by a fiduciary of any such Plan or Plans against such Borrower or any member of the Controlled Group to enforce Sections 515 or 4219(c)(5) of ERISA; or a condition shall exist by reason of which the PBGC would be entitled to obtain a decree adjudicating that any such Plan or Plans must be terminated; or there shall occur a complete or partial withdrawal from, or a default, dismissed within the meaning of Section 4219(c)(5) of ERISA, with respect to, one or more Multiemployer Plans which could cause such Borrower or one or more members of the Controlled Group to incur a current payment obligation in excess of $500,000; or
(k) Such Borrower shall cease to be an investment management company (or a Portfolio thereof) registered under the Investment Company Act, or such Borrower's registration under the Investment Company Act, or that of any Borrower Agent of such Borrower, shall lapse or be suspended60 days; then, and in any such event, and at any time thereafter, if (x) upon the occurrence of any Event of Default shall then be continuing described in subdivision (i) or (j) of this section 11 with respect to the Company (other than such defaulting Borrower, an Event of Default described in clause (i) of subdivision (i) or described in clause (vi) of subdivision (i) by virtue of the reference in such clause (vi) to such clause (i)), the unpaid principal amount of and accrued interest on the Notes shall automatically become due and payable or (y) upon the occurrence of any other Event of Default, any holder or holders of more than 66 2/3% in principal amount of the Notes at the time outstanding (subject to section 15.4) may at any time (unless all defaults shall theretofore have been remedied) at its or their option, by written notice or notices to the Company, declare all the Notes to be due and payable, whereupon the Notes shall forthwith mature and become due and payable, together with interest accrued thereon; and, in the case of any Event of Default specified described in paragraphs (g) and (h) abovethis section 11, the Commitments as to such defaulting Borrower there shall thereupon automatically also be terminated and the principal of and accrued interest on the Loans shall automatically become due and payable payable, to the extent permitted by applicable law, a premium as set forth in section 9.3, all without presentment, demand, protest or other notice or formality of any kindnotice, all of which are hereby expressly waived, and (ii) in ; provided that during the case existence of any other an Event of Default specified abovedescribed in subdivision (a) or (b) of this section 11, either then, irrespective of whether the holder or both holders of more than 50% in principal amount of Notes then outstanding shall have declared all the Notes to be due and payable pursuant to this section 11, any holder of the following actions may be taken: the Operations Agent Notes may, and upon the written or telephonic (confirmed in writing) request of the Majority Banks shallat its option, by written notice in writing to such defaulting Borrower (A) the Company, declare the principal of and accrued interest in respect of Notes then held by such defaulting Borrower's Loans holder to be forthwith due and payable, whereupon the principal of Notes then held by such holder shall forthwith mature and accrued interest in respect of such Loans shall become forthwith due and payable payable, together with interest accrued thereon and, to the extent permitted by applicable law, a premium as set forth in section 9.3, without presentment, demand, protest or other notice of any kindnotice, all of which are hereby expressly waived by such Borrower, and/or (B) terminate the Commitments as to such defaulting Borrower, whereupon the Commitments of the Banks to make Committed Credit Loans hereunder to such defaulting Borrower shall forthwith terminate without any other notice of any kind and the percentages of the Commitment Fee and other fees and expenses otherwise payable by such defaulting Borrower hereunder accruing from and after the date of termination shall be reallocated among the remaining Borrowers PRO RATA on the basis of the percentages set forth opposite such remaining Borrowers' names on SCHEDULE 1, as in effect at the time of such terminationwaived.
Appears in 1 contract
Sources: Note and Warrant Purchase Agreement (Perma Fix Environmental Services Inc)
Events of Default; Acceleration. If Upon the occurrence and during the continuation of any Event of Default, the obligation of each Lender to make any additional Loan shall be suspended. The occurrence and continuation of any of the following events (each each, an "EVENT OF DEFAULT"“Event of Default”) shall occur with respect at the option of Agent, at the direction of the Required Lenders (1) make all sums of Basic Interest and principal, as well as any other Obligations and amounts owing under any Loan Documents, immediately due and payable without notice of default, presentment or demand for payment, protest or notice of nonpayment or dishonor or any other notices or demands, and (2) give Agent the right to exercise any Borrowerother right or remedy provided by contract or applicable law:
(a) Such Borrower shall (i) shall default in the payment of fail to pay when due any principal of or interest under this Agreement or any Loan, interest accrued thereon or fee due hereunder after the same becomes due and payable, whether at maturity or by acceleration or otherwiseNote, or (ii) shall default in the payment of fail to pay any fees or other amount charges when due hereunder under any Loan Document (other than any Warrant), and such failure continues for three (3) Business Days or more after the same first becomes due and payabledue; oror an Event of Default as defined in any other Loan Document shall have occurred.
(b) Such Borrower shall default in the performance of Any representation or compliance with any term contained in Sections 9.01(a) or 9.01(b) and such default shall have continued for more than three (3) Banking Dayswarranty made, or such Borrower shall default in the performance of or compliance with any term contained in Sections 8.02(d)financial statement, 8.02(e), 8.02(g), 8.05, 9.02, 9.03 or 9.04; or
(c) Such Borrower shall default in the performance of or compliance with any term contained herein other than those expressly referred to in this Section 10.01, and such default shall not have been remedied within five (5) Banking Days after written notice thereof shall have been given to such Borrower by the Operations Agent; or
(d) Such Borrower shall default in the performance of, or compliance with, any material term contained in any other written agreement with the Operations Agent or any Bank pertaining to this Agreement or such Borrower's Loans, and such default shall continue for more than the period of grace, if any, specified therein and shall not have been waived pursuant thereto; or
(e) Any representation, warranty certification or statement made or deemed made by such Borrower in this Agreement or in any certificate, financial statement certificate or other document delivered pursuant hereto provided, by a Loan Party under any Loan Document shall prove to have been false or incorrect misleading in any material respect when made; ormade or deemed made herein.
(fc) Except as otherwise provided in this Section 10.01, such Borrower shall default in If there occurs any payment due on Indebtedness for borrowed money circumstance or the deferred purchase price of property, the aggregate outstanding principal amount of which is in excess of five percent (5%) of such Borrower's Total Assets, and such default shall continue for more than the period of grace, if any, applicable thereto and shall not circumstances that could reasonably be expected to have been waived pursuant thereto and shall permit the holder of such Indebtedness to declare such Indebtedness due and payable before its stated maturity, or in the performance of or compliance with any term of any evidence of such Indebtedness or of any mortgage, indenture or other agreement relating thereto, and any such default shall continue for more than the period of grace, if any, specified therein and shall not have been waived pursuant thereto and shall permit the holder of such Indebtedness to declare such Indebtedness due and payable before its stated maturity, unless such Borrower shall be contesting such payment or obligation in good faith by appropriate proceedings promptly initiated and diligently conducted and such Borrower shall have set aside on its books such reserves, if any, with respect thereto as are required by GAAP and deemed appropriate by such Borrower and its independent public accountants, PROVIDED, that no Event of Default pursuant to paragraphs (b) or a Material Adverse Effect.
(i) of this Section 10.01 shall have occurred and be continuing as a result of such claim having been asserted in respect of such Indebtedness; or
(g) Such Borrower shall discontinue fail to pay its business debts generally as they become due; or (other than in connection ii) Borrower shall commence any Insolvency Proceeding with respect to itself, an involuntary Insolvency Proceeding shall be filed against Borrower, or a permitted merger or consolidation of such Borrower) or shall make an assignment custodian, receiver, trustee, assignee for the benefit of creditors, or shall fail generally to pay its debts as such debts become due, or shall apply for or consent to the appointment of or taking possession by a trustee, receiver or liquidator (or other similar official, shall be appointed to take possession, custody or control of the properties of Borrower, and such involuntary Insolvency Proceeding, petition or appointment is acquiesced to by Borrower or is not dismissed within forty five (45) days; or (iii) the dissolution, winding up, or termination of the business or cessation of operations of Borrower (including any transaction or series of related transactions deemed to be a liquidation, dissolution or winding up of Borrower pursuant to the provisions of Borrower’s charter documents); or (iv) Borrower shall take any corporate action for the purpose of effecting, approving, or consenting to any of the foregoing.
(e) Borrower shall be in default beyond any applicable period of grace or cure under any other agreement involving the borrowing of money, the purchase of property on credit, the advance of credit or any other similar monetary liability to Lenders or to any Person that permits such Person to accelerate the payment of such Borrower obligations, whether or not exercised, in an amount in excess of the Threshold Amount.
(f) Any governmental or regulatory authority shall take any judicial or administrative action, or any substantial defined benefit pension plan maintained by Borrower shall have any unfunded liabilities, any of which, in the reasonable judgment of Required Lenders, could reasonably be expected to have a Material Adverse Effect.
(g) Except as otherwise permitted pursuant to Sections 6.4 or 6.5, any sale, transfer or other disposition of all or any material part of the property or assets of Borrower, including without limitation to any trust or similar entity, shall occur.
(h) Any judgment(s) singly or in the aggregate in excess of the Threshold Amount (not covered by independent third party insurance as to which liability has not been rejected by such Borrower or insurance carrier) shall commence a case or have an order for relief be entered against it Borrower which remain unsatisfied, unvacated or unstayed pending appeal for twenty (20) or more days after entry thereof.
(i) Borrower shall fail to perform or observe any covenant contained in Article 6 of this Agreement.
(j) Borrower shall fail to perform or observe any covenant contained in Article 5 or elsewhere in this Agreement or any other Loan Document (other than a covenant which is dealt with specifically elsewhere in this Article 7 and other than any covenant under the federal bankruptcy lawsWarrants) and, as if capable of being cured, the breach of such covenant is not cured within 10 days after the sooner to occur of Borrower’s receipt of notice of such breach from Agent or any Lender or the date on which such breach first becomes known to any officer of Borrower (the “Notice Date”); provided, however that if such breach is not capable of being cured within such 10-day period and Borrower timely notifies Lenders of such fact and Borrower diligently pursues such cure, then the cure period shall be extended to the date requested in Borrower’s notice but in no event more than 30 days from the Notice Date; provided, further, that such 30-day opportunity to cure shall not apply in the case of any failure to perform or observe any covenant which has been the subject of a prior failure within the preceding 180 days or which is a willful and knowing breach by Borrower.
(k) If all or any portion of a Guarantor’s Obligations under Article 11 of this Agreement cease for any reason to be in full force and effect, or any guarantor fails to perform any obligation hereunder, or any guarantor revokes or purports to revoke its Obligations under Article 11, or any material misrepresentation or material misstatement exists now or hereafter constituted, in any warranty or representation set forth by a Guarantor herein or in any other applicable federal certificate delivered to Lenders or state bankruptcy, insolvency or other similar lawAgent in connection herewith, or if any of the circumstances described in Sections 7.1(b) through 7.1(j) occur with respect to a Guarantor.
(l) Any Loan Document shall fail to remain in full force or effect or any action shall be taken to dissolve discontinue or liquidate such Borrower (other than in connection with a permitted merger to assert the invalidity or consolidation unenforceability of such Borrower); or
(h) If, within sixty (60) days after the commencement against such Borrower obligations of a case under the federal bankruptcy laws, as now or hereafter constitutedGuarantor hereunder, or any other applicable federal or state bankruptcy, insolvency or other similar law, such case shall have been consented to or shall not have been dismissed or all orders or proceedings thereunder affecting the operations or the business of such Borrower stayed, or if the stay of any such order or proceeding shall thereafter be set aside, or if within sixty (60) days after the entry of a decree appointing a trustee, receiver or liquidator (or other similar official) of such Borrower or any substantial part of the property of such Borrower such appointment shall not have been vacated; or
(i) A final judgment which, together with other outstanding final judgments against such Borrower, exceeds an amount in the aggregate equal to five percent (5%) of such Borrower's Total Assets (exclusive of amounts covered by available insurance) shall be rendered against such Borrower and if, within thirty (30) days after entry thereof, such judgment shall not have been discharged or execution thereof stayed pending appeal, or if, within thirty (30) days after the expiration of any such stay, such judgment shall not have been discharged; or
(j) Such Borrower or any member of the Controlled Group Guarantor shall fail to pay when due an amount or amounts aggregating in excess comply with the terms of $500,000 which it is obligated to pay to the PBGC or to a Plan under Title IV provisions of ERISA; or a notice of intent to terminate a Plan or Plans having aggregate Unfunded Liabilities in excess of $500,000 shall be filed under Title IV of ERISA by such Borrower or any member of the Controlled Group, any plan administrator or any combination of the foregoing; or the PBGC shall institute proceedings under Title IV of ERISA to terminate or to cause a trustee to be appointed to administer any such Plan or Plans or a proceeding shall be instituted by a fiduciary of any such Plan or Plans against such Borrower or any member of the Controlled Group to enforce Sections 515 or 4219(c)(5) of ERISA; or a condition shall exist by reason of which the PBGC would be entitled to obtain a decree adjudicating that any such Plan or Plans must be terminated; or there shall occur a complete or partial withdrawal fromArticle 11 hereof, or a default, within the meaning of Section 4219(c)(5) of ERISA, with respect to, one or more Multiemployer Plans which could cause such Borrower or one or more members of the Controlled Group to incur a current payment obligation in excess of $500,000; or
(k) Such Borrower Guarantor shall cease to be an investment management company (or a Portfolio thereof) registered under the Investment Company Actdeny that it has any further liability hereunder, or such Borrower's registration under the Investment Company Act, or that of any Borrower Agent of such Borrower, shall lapse or be suspended; then, and in any such event, and at any time thereafter, if any Event of Default shall then be continuing with respect to such defaulting Borrower, (i) in the case of any Event of Default specified in paragraphs (g) and (h) above, the Commitments as to such defaulting Borrower shall thereupon automatically be terminated and the principal of and accrued interest on the Loans shall automatically become due and payable without presentment, demand, protest or other notice or formality of any kind, all of which are hereby expressly waived, and (ii) in the case of any other Event of Default specified above, either or both of the following actions may be taken: the Operations Agent may, and upon the written or telephonic (confirmed in writing) request of the Majority Banks shall, by written give notice to such defaulting Borrower (A) declare the principal of and accrued interest in respect of such defaulting Borrower's Loans to be forthwith due and payable, whereupon the principal of and accrued interest in respect of such Loans shall become forthwith due and payable without presentment, demand, protest or other notice of any kind, all of which are hereby expressly waived by such Borrower, and/or (B) terminate the Commitments as to such defaulting Borrower, whereupon the Commitments of the Banks to make Committed Credit Loans hereunder to such defaulting Borrower shall forthwith terminate without any other notice of any kind and the percentages of the Commitment Fee and other fees and expenses otherwise payable by such defaulting Borrower hereunder accruing from and after the date of termination shall be reallocated among the remaining Borrowers PRO RATA on the basis of the percentages set forth opposite such remaining Borrowers' names on SCHEDULE 1, as in effect at the time of such terminationeffect.
Appears in 1 contract
Sources: Loan and Security Agreement (Rani Therapeutics Holdings, Inc.)
Events of Default; Acceleration. If any of the following events ------ -- ------- ------------ (each an "EVENT OF DEFAULTEvents of Default" or, if the giving of notice or the lapse of time or both are required, then, prior to such notice and/or lapse of time, "Defaults") shall occur with respect to any Borroweroccur:
(a) Such if the Borrower (i) shall default in the payment of fail to pay any principal of any Loan, interest accrued thereon or fee due hereunder after the Loans when the same becomes shall become due and payable, whether at the stated date of maturity or by acceleration any accelerated date of maturity or otherwise, or (ii) shall default in the payment of at any other amount due hereunder after the same becomes due and payable; ordate fixed for payment;
(b) Such if the Borrower shall default in the performance fail to pay any interest, Commitment Fees, Bankers' Acceptance Fees, Letter of Credit Fees or compliance with any term contained in Sections 9.01(a) or 9.01(b) and such default shall have continued for more than three (3) Banking Days, or such Borrower shall default in the performance of or compliance with any term contained in Sections 8.02(d), 8.02(e), 8.02(g), 8.05, 9.02, 9.03 or 9.04; or
(c) Such Borrower shall default in the performance of or compliance with any term contained herein other than those expressly referred to in this Section 10.01, and such default shall not have been remedied fees within five (5) Banking Business Days after the same shall become due and payable whether at the stated date of maturity or any accelerated date of maturity or at any other date fixed for payment;
(c) if the Borrower shall fail to comply with its covenants contained in (S)(S)6, 7, or 8 hereof;
(d) if the Borrower shall fail to perform any term, covenant or agreement herein contained (other than those specified in subsections (a), (b), and (c) above) within five (5) Business Days after written notice thereof shall have of such failure has been given to such Borrower by the Operations Agent; or
(d) Such Borrower shall default in the performance of, or compliance with, any material term contained in any other written agreement with the Operations Agent or any Bank pertaining to this Agreement or such Borrower's Loans, and such default shall continue for more than the period of grace, if any, specified therein and shall not have been waived pursuant thereto; orBank;
(e) Any representation, if any representation or warranty certification or statement made or deemed made by such Borrower contained in this Agreement or in any certificate, financial statement document or other document instrument delivered pursuant hereto to or in connection with this Agreement shall prove to have been false or incorrect in any material respect upon the date when made; ormade or repeated;
(f) Except as otherwise provided in this Section 10.01if the Borrower or any Subsidiary shall (i) fail to pay at maturity, such Borrower shall default in or within any payment due on Indebtedness applicable period of grace, any obligation for borrowed money or the deferred purchase price of property(ii) fail to observe or perform any material term, the aggregate outstanding principal covenant or agreement contained in any agreement by which it is bound, evidencing or securing borrowed money in an amount of which is in excess of five percent (5%) of $250,000 for such Borrower's Total Assets, and such default shall continue for more than the period of gracetime as would, or would have permitted (assuming the giving of appropriate notice if any, applicable thereto and shall not have been waived pursuant thereto and shall permit required) the holder of such Indebtedness to declare such Indebtedness due and payable before its stated maturity, or in the performance of or compliance with any term of any evidence of such Indebtedness holders thereof or of any mortgage, indenture or other agreement relating thereto, and any such default shall continue for more than obligations issued thereunder to accelerate the period of grace, if any, specified therein and shall not have been waived pursuant thereto and shall permit the holder of such Indebtedness to declare such Indebtedness due and payable before its stated maturity, unless such Borrower shall be contesting such payment or obligation in good faith by appropriate proceedings promptly initiated and diligently conducted and such Borrower shall have set aside on its books such reserves, if any, with respect thereto as are required by GAAP and deemed appropriate by such Borrower and its independent public accountants, PROVIDED, that no Event of Default pursuant to paragraphs (b) or (i) of this Section 10.01 shall have occurred and be continuing as a result of such claim having been asserted in respect of such Indebtedness; ormaturity thereof;
(g) Such if the Borrower shall discontinue its business (other than in connection with a permitted merger or consolidation of such Borrower) or shall make any Subsidiary makes an assignment for the benefit of creditors, or shall fail admits in writing its inability to pay or generally fails to pay its debts as such debts they mature or become due, due or shall apply petitions or applies for or consent to the appointment of or taking possession by a trustee, receiver or liquidator (trustee or other similar official) custodian, liquidator or receiver of such the Borrower or any Subsidiary or of any substantial part of the property or assets of such the Borrower or shall commence a its Subsidiaries or commences any case or have an other proceeding relating to the Borrower or its Subsidiaries under any bankruptcy, reorganization, arrangement, insolvency, readjustment of debt, dissolution or liquidation or similar law of any jurisdiction, now or hereafter in effect, or takes any action to authorize or in furtherance of any of the foregoing, or if any such petition or application is filed or any such case or other proceeding is commenced against the Borrower or its Subsidiaries and the Borrower or its Subsidiaries indicates its approval thereof, consent thereto or acquiescence therein;
(h) a decree or order is entered appointing any such trustee, custodian, liquidator or receiver or adjudicating the Borrower or its Subsidiaries bankrupt or insolvent, or approving a petition in any such case or other proceeding, or a decree or order for relief is entered against it in respect of the Borrower or any Subsidiary in an involuntary case under the federal Federal bankruptcy laws, laws as now or hereafter constituted, and such decree or any other applicable federal order remains in effect for more than 30 days, whether or state bankruptcy, insolvency or other similar law, or if any action shall be taken to dissolve or liquidate such Borrower (other than in connection with a permitted merger or consolidation of such Borrower); or
(h) If, within sixty (60) days after the commencement against such Borrower of a case under the federal bankruptcy laws, as now or hereafter constituted, or any other applicable federal or state bankruptcy, insolvency or other similar law, such case shall have been consented to or shall not have been dismissed or all orders or proceedings thereunder affecting the operations or the business of such Borrower stayed, or if the stay of any such order or proceeding shall thereafter be set aside, or if within sixty (60) days after the entry of a decree appointing a trustee, receiver or liquidator (or other similar official) of such Borrower or any substantial part of the property of such Borrower such appointment shall not have been vacated; orconsecutive;
(i) A if there shall remain in force, undischarged, unsatisfied and unstayed, for more than 30 days, whether or not consecutive, any final judgment against the Borrower or any Subsidiary which, together with other outstanding final judgments judgments, undischarged, against such Borrower, the Borrower and any Subsidiary exceeds an amount in the aggregate equal to five percent (5%) of such Borrower's Total Assets (exclusive of amounts covered by available insurance) shall be rendered against such Borrower and if, within thirty (30) days $100,000 after entry thereof, such judgment shall not have been discharged or execution thereof stayed pending appeal, or if, within thirty (30) days after the expiration of taking into account any such stay, such judgment shall not have been discharged; orinsurance coverage;
(j) Such with respect to any Guaranteed Pension Plan, an ERISA Reportable Event shall have occurred and the Bank shall have determined in its reasonable discretion that such event reasonably could be expected to result in liability of the Borrower or any member of the Controlled Group shall fail to pay when due an amount or amounts aggregating in excess of $500,000 which it is obligated to pay its Subsidiaries to the PBGC or the Plan in an aggregate amount exceeding $500,000 and such event in the circumstances occurring reasonably could constitute grounds for the termination of such Plan by the PBGC or for the appointment by the appropriate United States District Court of a trustee to a Plan under Title IV of ERISAadminister such Plan; or a notice of intent trustee shall have been appointed by the United States District Court to terminate a Plan or Plans having aggregate Unfunded Liabilities in excess of $500,000 shall be filed under Title IV of ERISA by administer such Borrower or any member of the Controlled Group, any plan administrator or any combination of the foregoingPlan; or the PBGC shall institute have instituted proceedings under Title IV of ERISA to terminate or to cause a trustee to be appointed to administer such Plan;
(k) if any such Plan or Plans or a proceeding of the Loan Documents shall be instituted cancelled, terminated, revoked or rescinded otherwise than in accordance with the terms thereof or with the express prior written agreement, consent or approval of the Bank, or any action at law, suit or in equity or other legal proceeding to cancel, revoke or rescind any of the Loan Documents shall be commenced by a fiduciary or on behalf of any such Plan or Plans against such the Borrower or any member of the Controlled Group to enforce Sections 515 or 4219(c)(5) of ERISA; or a condition shall exist by reason of which the PBGC would be entitled to obtain a decree adjudicating that any such Plan or Plans must be terminated; or there shall occur a complete or partial withdrawal fromits stockholders, or any court or any other governmental or regulatory authority or agency of competent jurisdiction shall make a defaultdetermination that, within or issue a judgment, order, decree or ruling to the meaning of Section 4219(c)(5) of ERISAeffect that, with respect to, any one or more Multiemployer Plans which could cause such Borrower or one or more members of the Controlled Group to incur a current payment obligation Loan Documents is illegal, invalid or unenforceable in excess of $500,000accordance with the terms thereof; or
(kl) Such if the Borrower shall cease fail to be an investment management company (or a Portfolio thereof) registered under comply with any term of the Investment Company Act, or such Borrower's registration under the Investment Company Act, or that of any Borrower Agent of such Borrower, shall lapse or be suspendedEPA Consent Order; then, and the Bank may by notice in any such event, and at any time thereafter, if any Event of Default shall then be continuing writing to the Borrower declare all amounts owing with respect to such defaulting Borrower, (i) in the case of any Event of Default specified in paragraphs (g) and (h) abovethis Agreement, the Commitments as Note, and the other Loan Documents, and all Reimbursement Obligations to such defaulting Borrower be, and they shall thereupon automatically be terminated forthwith mature and the principal of and accrued interest on the Loans shall automatically become due and payable without presentmentbecome, demand, protest or other notice or formality of any kind, all of which are hereby expressly waived, and (ii) in the case of any other Event of Default specified above, either or both of the following actions may be taken: the Operations Agent may, and upon the written or telephonic (confirmed in writing) request of the Majority Banks shall, by written notice to such defaulting Borrower (A) declare the principal of and accrued interest in respect of such defaulting Borrower's Loans to be forthwith due and payable, whereupon the principal of and accrued interest in respect of such Loans shall become forthwith immediately due and payable without presentment, demand, protest or other notice of any kind, all of which are hereby expressly waived by the Borrower; provided, that in the event of any Event of Default specified in -------- (S)(S)11(g) or 11(h) hereof, all such Borroweramounts shall become immediately due and payable automatically and without any requirement of notice from the Bank. Upon demand by the Bank after the occurrence of any Event of Default, and/or (B) terminate the Commitments Borrower shall immediately provide to the Bank cash in an amount equal to the Cash Collateral Amount to be held by the Bank as to such defaulting Borrower, whereupon collateral security for the Commitments Obligations. In case any one or more of the Banks Events of Default shall have occurred and be continuing, and whether or not the Bank shall have accelerated the maturity of the Loans pursuant to make Committed Credit Loans the foregoing, the Bank, if owed any amount with respect to the Loans, may proceed to protect and enforce its rights by suit in equity, action at law and/or other appropriate proceeding, whether for the specific performance of any covenant or agreement contained in this Agreement or any instrument pursuant to which the Obligations to the Bank hereunder are evidenced, including as permitted by applicable law the obtaining of the ex parte appointment of a receiver, and, if such amount shall have become due, by declaration or otherwise, proceed to such defaulting Borrower shall forthwith terminate without enforce the payment thereof or any other notice legal or equitable right of the Bank. No remedy herein conferred upon the Bank or the holder of the Note is intended to be exclusive of any kind other remedy and the percentages of the Commitment Fee each and other fees and expenses otherwise payable by such defaulting Borrower hereunder accruing from and after the date of termination every remedy shall be reallocated among the remaining Borrowers PRO RATA on the basis cumulative and shall be in addition to every other remedy given hereunder or now or hereafter existing at law or in equity or by statute or any other provision of the percentages set forth opposite such remaining Borrowers' names on SCHEDULE 1, as in effect at the time of such terminationlaw.
Appears in 1 contract
Events of Default; Acceleration. If any of the following events (each an "EVENT OF DEFAULTEvents of Default") shall occur with respect to any Borroweroccur:
(a) Such the Borrower shall fail to pay (i) shall default in the payment of when due and payable any principal of or interest on the Revolving Credit Loans or any Loan, interest accrued thereon or fee due hereunder after the same becomes due and payable, whether at maturity or by acceleration or otherwise, Reimbursement Obligation or (ii) shall default in the payment of any other amount sum due hereunder after under any of the same becomes due and payable; or
(b) Such Borrower shall default in the performance of or compliance with any term contained in Sections 9.01(a) or 9.01(b) and such default shall have continued for more than three (3) Banking Days, or such Borrower shall default in the performance of or compliance with any term contained in Sections 8.02(d), 8.02(e), 8.02(g), 8.05, 9.02, 9.03 or 9.04; or
(c) Such Borrower shall default in the performance of or compliance with any term contained herein other than those expressly referred to in this Section 10.01, and such default shall not have been remedied Loan Documents within five (5) Banking Days days following written demand for payment of the same;
(b) the Borrower or the Guarantor shall fail to perform any term, covenant or agreement contained in ss.8 or ss.9 (other than the covenant set forth in ss.9(a) hereof); (c) the Borrower shall fail to perform the covenant set forth in ss.9(a) hereof and such failure shall continue for thirty (30) days after the Bank has given written notice thereof shall have been given of such failure to such the Borrower by the Operations Agentpursuant to ss.18 hereof; or
(d) Such the Borrower or the Guarantor or any Additional Guarantor shall default fail to perform any other term, covenant or agreement contained in the performance of, or compliance with, any material term contained in any other written agreement with the Operations Agent or any Bank pertaining to this Agreement or such Borrower's Loans, Loan Documents and such default failure shall continue for more than thirty (30) days after the Bank has given written notice of such failure to the Borrower; provided, that if any such failure is of a nature that it cannot be corrected within such thirty (30) day period but is capable of gracebeing corrected within an additional sixty (60) day period, if any, specified therein and such failure shall not have been waived pursuant theretoconstitute an Event of Default hereunder so long as (i) the Borrower or the Guarantor or such Additional Guarantor, as applicable, institutes reasonable curative action within such initial period and diligently pursues such action to completion and (ii) such failure shall be fully cured within such additional sixty (60) day period; or
(e) Any representation, any representation or warranty certification of the Borrower or statement made the Guarantor or deemed made by such Borrower any Additional Guarantor in this Agreement any of the Loan Documents or in any certificate, financial statement certificate or other document delivered pursuant hereto notice given in connection therewith shall prove to have been false or incorrect misleading in any material respect when at the time made or deemed to have been made; or
(f) Except as otherwise provided the Borrower or the Guarantor or any Additional Guarantor shall be in this Section 10.01default beyond the expiration of any applicable grace period under any environmental, such Borrower shall default financial or payment covenant set forth in any payment due on agreement or agreements evidencing Indebtedness for borrowed money owing to the Bank or any affiliates of the deferred purchase price of property, the aggregate outstanding principal amount of which is Bank or other Indebtedness in excess of five percent (5%) of $1,000,000 in aggregate principal amount, or shall fail to pay such Borrower's Total AssetsIndebtedness when due, and such default shall continue for more than the subject to any applicable period of grace; (g) any of the Loan Documents shall cease to be in full force and effect; (h) the Borrower, if anythe Guarantor, applicable thereto and shall not have been waived pursuant thereto and shall permit the holder any Additional Guarantor or any of such Indebtedness to declare such Indebtedness due and payable before its stated maturity, or in the performance of or compliance with any term of any evidence of such Indebtedness or of any mortgage, indenture or other agreement relating thereto, and any such default shall continue for more than the period of grace, if any, specified therein and shall not have been waived pursuant thereto and shall permit the holder of such Indebtedness to declare such Indebtedness due and payable before its stated maturity, unless such Borrower shall be contesting such payment or obligation in good faith by appropriate proceedings promptly initiated and diligently conducted and such Borrower shall have set aside on its books such reserves, if any, with respect thereto as are required by GAAP and deemed appropriate by such Borrower and its independent public accountants, PROVIDED, that no Event of Default pursuant to paragraphs (b) or their respective Subsidiaries (i) of this Section 10.01 shall have occurred and be continuing as a result of such claim having been asserted in respect of such Indebtedness; or
(g) Such Borrower shall discontinue its business (other than in connection with a permitted merger or consolidation of such Borrower) or shall make an assignment for the benefit of creditors, (ii) shall be adjudicated bankrupt or insolvent, (iii) shall fail generally to pay its debts as such debts become dueseek the appointment of, or shall apply for or consent to be the appointment subject of or taking possession by an order appointing, a trustee, liquidator or receiver as to all or liquidator (or other similar official) of such Borrower or any substantial part of the property its assets, (iv) shall commence, approve or assets of such Borrower or shall commence a consent to, any case or have an order for relief entered against it proceeding under the federal bankruptcy laws, as now or hereafter constituted, or any other applicable federal or state bankruptcy, insolvency reorganization or other similar lawlaw and, in the case of an involuntary case or if any action shall be taken to dissolve or liquidate such Borrower (other than in connection with a permitted merger or consolidation of such Borrower); or
(h) If, within sixty (60) days after the commencement against such Borrower of a case under the federal bankruptcy laws, as now or hereafter constituted, or any other applicable federal or state bankruptcy, insolvency or other similar lawproceeding, such case shall have been consented to or shall not have been dismissed or all orders or proceedings thereunder affecting the operations or the business of such Borrower stayed, or if the stay of any such order or proceeding shall thereafter be set aside, or if within sixty (60) days after the entry of a decree appointing a trustee, receiver or liquidator (or other similar official) of such Borrower or any substantial part of the property of such Borrower such appointment shall is not have been vacated; or
(i) A final judgment which, together with other outstanding final judgments against such Borrower, exceeds an amount in the aggregate equal to five percent (5%) of such Borrower's Total Assets (exclusive of amounts covered by available insurance) shall be rendered against such Borrower and if, dismissed within thirty (30) days after entry following the commencement thereof, such judgment or (v) shall not have been discharged be the subject of an order for relief in an involuntary case under federal bankruptcy law; (i) the Borrower or execution thereof stayed pending appeal, the Guarantor or if, within thirty (30) days after the expiration of any such stay, such judgment Additional Guarantor shall not have been dischargedbe unable to pay its debts as they mature; or
(j) Such there shall remain undischarged for more than ten (10) days any final (beyond any applicable appeal period) judgment or execution action against the Borrower or the Guarantor or any member of the Controlled Group shall fail to pay when due an amount or amounts aggregating in excess of $500,000 which it is obligated to pay Additional Guarantor (not covered by insurance reasonably satisfactory to the PBGC Agent) that, together with other outstanding claims (not covered by insurance reasonably satisfactory to the Agent) and execution actions against the Borrower or to a Plan under Title IV of ERISAthe Guarantor or such Additional Guarantor exceeds $1,000,000 in the aggregate; or a notice of intent to terminate a Plan or Plans having aggregate Unfunded Liabilities in excess of $500,000 shall be filed under Title IV of ERISA by such Borrower or any member of the Controlled Group, any plan administrator or any combination of the foregoing; or the PBGC shall institute proceedings under Title IV of ERISA to terminate or to cause a trustee to be appointed to administer any such Plan or Plans or a proceeding shall be instituted by a fiduciary of any such Plan or Plans against such Borrower or any member of the Controlled Group to enforce Sections 515 or 4219(c)(5) of ERISA; or a condition shall exist by reason of which the PBGC would be entitled to obtain a decree adjudicating that any such Plan or Plans must be terminated; or there shall occur a complete or partial withdrawal from, or a default, within the meaning of Section 4219(c)(5) of ERISA, with respect to, one or more Multiemployer Plans which could cause such Borrower or one or more members of the Controlled Group to incur a current payment obligation in excess of $500,000; or
(k) Such Borrower the Guarantor shall cease to be an investment management company (or a Portfolio thereof) registered under the Investment Company Act, or such Borrower's registration under general partner of the Investment Company Act, or that of Borrower at any Borrower Agent of such Borrower, shall lapse or be suspended; time: then, and in any such event, and at any time thereafter, if any Event of Default shall then so long as the same may be continuing with respect to such defaulting Borrower, (i) in the case of any Event of Default specified in paragraphs (g) and (h) abovecontinuing, the Commitments as to such defaulting Borrower shall thereupon automatically be terminated and the principal of and accrued interest on the Loans shall automatically become due and payable without presentment, demand, protest or other notice or formality of any kind, all of which are hereby expressly waived, and (ii) in the case of any other Event of Default specified above, either or both of the following actions may be taken: the Operations Agent may, and upon the written or telephonic (confirmed in writing) request of the Majority Banks shall, by written notice in writing to such defaulting Borrower (A) the Borrower, declare all amounts owing with respect to this Agreement, the principal of Revolving Credit Notes and accrued interest in respect of such defaulting Borrower's Loans the other Loan Documents to be be, and they shall thereupon forthwith due and payablebecome, whereupon the principal of and accrued interest in respect of such Loans shall become forthwith immediately due and payable without presentment, demand, protest or other notice of any kind, all of which are hereby expressly waived by the Borrower and the Guarantor; provided that in the event of any Event of Default specified in ss.12.1(h) or 12.1(i), all such Borrower, and/or (B) terminate the Commitments as to such defaulting Borrower, whereupon the Commitments amounts shall become immediately due and payable automatically and without any requirement of notice from any of the Banks to make Committed Credit Loans hereunder to such defaulting Borrower shall forthwith terminate without any other notice of any kind and or the percentages of Agent or action by the Commitment Fee and other fees and expenses otherwise payable by such defaulting Borrower hereunder accruing from and after Banks or the date of termination shall be reallocated among the remaining Borrowers PRO RATA on the basis of the percentages set forth opposite such remaining Borrowers' names on SCHEDULE 1, as in effect at the time of such terminationAgent.
Appears in 1 contract
Events of Default; Acceleration. If any of the following events (each individually, an "EVENT OF DEFAULTEvent of Default" and, collectively, "Events of Default", or, if the giving of notice or the lapse of time or both is required, then, prior to such notice and/or lapse of time, individually, a "Default" and collectively, "Defaults") shall occur with respect to any Borroweroccur:
(a) Such Borrower (i) shall default in the payment of principal of any Loan, interest accrued thereon or fee due hereunder after the same becomes due and payable, whether at maturity or by acceleration or otherwiseAny amount owing under this Note is not paid when due, or (ii) shall default in the payment of any other amount due hereunder after the same becomes due and payable; or
(b) Such Borrower shall default in the performance of or compliance with any other term or provision contained in Sections 9.01(a) this Note or 9.01(b) and such default shall have continued for more than three (3) Banking Days, or such Borrower shall default in any of the performance of or compliance with any term contained in Sections 8.02(d), 8.02(e), 8.02(g), 8.05, 9.02, 9.03 or 9.04; orOther Documents;
(cb) Such Borrower shall default in the performance of or compliance with any term contained herein other than those expressly referred to in this Section 10.01, and such default shall not have been remedied within five (5) Banking Days after written notice thereof shall have been given to such Borrower by the Operations Agent; or
(d) Such Borrower shall default in the performance of, or compliance with, if any material term contained representation or warranty of the Borrower in any other written agreement with of the Operations Agent or any Bank pertaining to this Agreement or such Borrower's Loans, and such default shall continue for more than the period of grace, if any, specified therein and shall not have been waived pursuant thereto; or
(e) Any representation, warranty certification or statement made or deemed made by such Borrower in this Agreement or in any certificate, financial statement or other document delivered pursuant hereto Other Documents shall prove to have been false or incorrect in any material respect upon the date when made; or;
(fc) Except as otherwise provided in this Section 10.01, such if the Borrower shall default in any payment due on Indebtedness for borrowed money or the deferred purchase price of property, the aggregate outstanding principal amount of which is in excess of five percent (5%) of such Borrower's Total Assets, and such default shall continue for more than the period of grace, if any, applicable thereto and shall not have been waived pursuant thereto and shall permit the holder of such Indebtedness to declare such Indebtedness due and payable before its stated maturity, or in the performance of or compliance with any term of any evidence of such Indebtedness or of any mortgage, indenture or other agreement relating thereto, and any such default shall continue for more than the period of grace, if any, specified therein and shall not have been waived pursuant thereto and shall permit the holder of such Indebtedness to declare such Indebtedness due and payable before its stated maturity, unless such Borrower shall be contesting such payment or obligation in good faith by appropriate proceedings promptly initiated and diligently conducted and such Borrower shall have set aside on its books such reserves, if any, with respect thereto as are required by GAAP and deemed appropriate by such Borrower and its independent public accountants, PROVIDED, that no Event of Default pursuant to paragraphs (b) or (i) of this Section 10.01 shall have occurred and be continuing as a result of such claim having been asserted in respect of such Indebtedness; or
(g) Such Borrower shall discontinue its business (other than in connection with a permitted merger or consolidation of such Borrower) or shall make makes an assignment for the benefit of creditors, or shall fail admits in writing its inability to pay or generally fails to pay its debts as such debts they mature or become due, or shall apply petitions or applies for or consent to the appointment of or taking possession by a trustee, receiver or liquidator (trustee or other similar official) custodian, liquidator or receiver of such the Borrower or of any substantial part of the property or assets of such the Borrower or shall commence a commences any case or have an other proceeding relating to the Borrower under any bankruptcy, reorganization, arrangement, insolvency, readjustment of debt, dissolution or liquidation or similar law of any jurisdiction, now or hereafter in effect, or takes any action to authorize or in furtherance of any of the foregoing; or if any such petition or application is filed or any such case or other proceeding is commenced against the Borrower;
(d) a decree or order is entered appointing any such trustee, custodian, liquidator or receiver or adjudicating the Borrower bankrupt or insolvent, or approving a petition in any such case or other proceeding, or a decree or order for relief is entered against it in respect of the Borrower in an involuntary case under the federal Federal bankruptcy laws, laws as now or hereafter constitutedconstituted and such decree or order shall remain in effect for more than sixty (60) days, whether or not consecutive;
(e) if there shall remain in force, undischarged, unsatisfied and unstayed, for more than thirty (30) days, whether or not consecutive, any final judgment not covered by insurance against the Borrower which, with other outstanding final judgments, undischarged, against the Borrower exceeds in the aggregate FIFTY THOUSAND AND 00/100 DOLLARS ($50,000.00);
(f) if there shall have occurred after the date hereof, any changes in the assets, liabilities, financial condition, business, operations or prospects of the Borrower or which, individually or in the aggregate, are materially adverse;
(g) if there shall have occurred a default or an event of default under any of the Other Documents after expiration of any applicable federal or state bankruptcynotice and cure periods, insolvency or other similar law, or if any action shall be taken to dissolve or liquidate such Borrower (other than in connection with a permitted merger or consolidation of such Borrower); orany;
(h) Ifif any Other Document shall be canceled, within sixty (60) days after terminated, revoked or rescinded otherwise than in accordance with the commencement against such Borrower express prior written agreement, consent or approval of a case under the federal bankruptcy lawsBank; or any action at law, as now suit in equity or hereafter constitutedother legal proceeding to cancel, revoke or rescind any Other Document shall be commenced by or on behalf of any Person bound thereby, or by any governmental or regulatory authority or agency of competent jurisdiction; or any court or any other applicable federal governmental or state bankruptcyregulatory authority or agency of competent jurisdiction shall make a determination that, insolvency or other similar law, such case shall have been consented to or shall not have been dismissed issue a judgment, order, decree or all orders ruling to the effect that any Other Document or proceedings thereunder affecting any one or more of the operations material covenants, agreements or the business of such Borrower stayed, or if the stay obligations of any such order Person or proceeding shall thereafter be set asidePersons under any Other Document are illegal, invalid or if within sixty (60) days after unenforceable in accordance with the entry of a decree appointing a trustee, receiver or liquidator (or other similar official) of such Borrower or any substantial part of the property of such Borrower such appointment shall not have been vacatedterms thereof; or
(i) A final judgment whichif at any time during the term of this Note, together with other outstanding final judgments against such Borrower, exceeds an amount in the aggregate equal to five percent (5%) of such Borrower's Total Assets (exclusive of amounts covered by available insurance) Borrower shall be rendered against considered in default under any loan extended by General Electric Capital Corporation and General Electric Capital Corporation does not waive any such Borrower default; then, and if, within thirty (30) days after entry thereof, so long as any such judgment Event of Default shall not have been discharged remedied or execution thereof stayed pending appeal, or if, within thirty (30) days after waived in writing by the expiration of any such stay, such judgment shall not have been discharged; or
(j) Such Borrower or any member of the Controlled Group shall fail to pay when due an amount or Bank all amounts aggregating in excess of $500,000 which it is obligated to pay to the PBGC or to a Plan under Title IV of ERISA; or a notice of intent to terminate a Plan or Plans having aggregate Unfunded Liabilities in excess of $500,000 shall be filed under Title IV of ERISA by such Borrower or any member of the Controlled Group, any plan administrator or any combination of the foregoing; or the PBGC shall institute proceedings under Title IV of ERISA to terminate or to cause a trustee to be appointed to administer any such Plan or Plans or a proceeding shall be instituted by a fiduciary of any such Plan or Plans against such Borrower or any member of the Controlled Group to enforce Sections 515 or 4219(c)(5) of ERISA; or a condition shall exist by reason of which the PBGC would be entitled to obtain a decree adjudicating that any such Plan or Plans must be terminated; or there shall occur a complete or partial withdrawal from, or a default, within the meaning of Section 4219(c)(5) of ERISA, with respect to, one or more Multiemployer Plans which could cause such Borrower or one or more members of the Controlled Group to incur a current payment obligation in excess of $500,000; or
(k) Such Borrower shall cease to be an investment management company (or a Portfolio thereof) registered under the Investment Company Act, or such Borrower's registration under the Investment Company Act, or that of any Borrower Agent of such Borrower, shall lapse or be suspended; then, and in any such event, and at any time thereafter, if any Event of Default shall then be continuing owing with respect to such defaulting Borrowerthis Note shall, (i) in at the case of any Event of Default specified in paragraphs (g) and (h) above, the Commitments as to such defaulting Borrower shall thereupon automatically be terminated and the principal of and accrued interest on the Loans shall automatically become due and payable without presentment, demand, protest or other notice or formality of any kind, all of which are hereby expressly waived, and (ii) in the case of any other Event of Default specified above, either or both option of the following actions may be taken: the Operations Agent mayBank, and upon the written or telephonic (confirmed in writing) request of the Majority Banks shall, by written notice to such defaulting Borrower (A) declare the principal of and accrued interest in respect of such defaulting Borrower's Loans to be forthwith due matured and payable, whereupon the principal of and accrued interest in respect of such Loans shall become forthwith immediately due and payable without presentment, demand, protest or other notice of any kind, all of which are hereby expressly waived by the Borrower and by all guarantors, endorsers, and pledgors with respect hereto; provided, that in the case of any Event of Default specified in Section 7(c) or Section 7(d) above, all such Borrower, and/or (B) terminate amounts owing shall become immediately due and payable automatically and without any requirement of notice from the Commitments as to such defaulting Borrower, whereupon the Commitments Bank. In case any one or more of the Banks Events of Default shall have occurred and be continuing, and whether or not the Bank shall have accelerated the maturity of the Note pursuant to make Committed Credit Loans hereunder the foregoing, the Bank, if owed any amount with respect to the Note may proceed to protect and enforce its rights by suit in equity, action at law and/or performance of any covenant or agreement contained in this Note, including as permitted by applicable law the obtaining of the ex parte appointment of a receiver, and, if such defaulting Borrower amount shall forthwith terminate without have become due, by declaration or otherwise, proceed to enforce the payment thereof or any other notice legal or equitable right of the Bank. No remedy herein conferred upon the Bank or the holder of this Note is intended to be exclusive of any kind other remedy and the percentages of the Commitment Fee each and other fees and expenses otherwise payable by such defaulting Borrower hereunder accruing from and after the date of termination every remedy shall be reallocated among the remaining Borrowers PRO RATA on the basis cumulative and shall be in addition to every other remedy given hereunder or now or hereafter existing at law or in equity or by statute or any other provision of the percentages set forth opposite such remaining Borrowers' names on SCHEDULE 1, as in effect at the time of such terminationlaw.
Appears in 1 contract
Sources: Term Note (Edac Technologies Corp)
Events of Default; Acceleration. If any of the following events ------ -- ------- ------------ (each an "EVENT OF DEFAULTEvents of Default" or, if the giving of notice or the lapse of time or both is required, then, prior to such notice or lapse of time, "Defaults") shall occur with respect to any Borroweroccur:
(a) Such the Borrower (i) shall default in the payment of fail to pay any principal of the Loans or any Loan, interest accrued thereon or fee due hereunder after Reimbursement Obligation when the same becomes shall become due and payable, whether at the stated date of maturity or by acceleration any accelerated date of maturity or otherwise, or (ii) shall default in the payment of at any other amount due hereunder after the same becomes due and payable; ordate fixed for payment;
(b) Such the Borrower shall default in fail to pay any interest on the performance Loans, any Letter of Credit Fee, the ST Facility Fee, the MT Facility Fee, the Utilization Fee or compliance with other sums due hereunder or under any term contained in Sections 9.01(a) of the other Loan Documents, on or 9.01(b) prior to the second day immediately succeeding the day on which the same shall become due and such default shall have continued payable, whether at the stated date of maturity or any accelerated date of maturity or at any other date fixed for more than three (3) Banking Days, or such Borrower shall default in the performance of or compliance with any term contained in Sections 8.02(d), 8.02(e), 8.02(g), 8.05, 9.02, 9.03 or 9.04; orpayment;
(c) Such the Borrower or any Subsidiary of the Borrower shall default in the performance of or compliance fail to comply with any term of its covenants contained herein other than those expressly referred in section 5.9, 5.10, 5.12, 5.15 through 5.17, inclusive, section 6 or section 7;
(d) the Borrower fails to perform any term, covenant or agreement contained in this Section 10.01, and such default shall not have been remedied within section 5.4 for five (5) Banking Days days after written notice thereof shall have of such failure has been given to such the Borrower by the Operations Agent; or
(d) Such Administrative Agent or the Borrower shall default in the performance offail to perform any other term, covenant or compliance with, any material term agreement contained herein or in any of the other Loan Documents (other than those specified elsewhere in this section 10) for thirty (30) days after written agreement with notice of such failure has been given to the Operations Borrower by the Administrative Agent or any Bank pertaining to this Agreement or such Borrower's Loans, and such default shall continue for more than the period of graceor, if anysuch performance is not possible within such thirty (30) day period, specified therein the Borrower shall fail to undertake such performance within such thirty (30) day period and shall not have been waived pursuant thereto; orthereafter to diligently and in good faith pursue the completion of such performance;
(e) Any representation, any representation or warranty certification of the Borrower or statement made or deemed made by such Borrower any of its Subsidiaries in this Credit Agreement or any of the other Loan Documents or in any certificate, financial statement or other document or instrument delivered pursuant hereto to or in connection with this Credit Agreement shall prove to have been false or incorrect in any material respect upon the date when made; or;
(f) Except as otherwise provided in this Section 10.01the Borrower or any of its Subsidiaries shall (i) fail to pay at maturity, such Borrower shall default in or within any payment due on Indebtedness for borrowed money or the deferred purchase price of property, the aggregate outstanding principal amount of which is in excess of five percent (5%) of such Borrower's Total Assets, and such default shall continue for more than the applicable period of grace, if anyany obligation for borrowed money in an aggregate amount equal to or greater than 2% of the Consolidated Capitalization of the Borrower or (ii) fail to observe or perform any term, applicable thereto and shall not have been waived pursuant thereto and shall permit covenant or agreement relating to or contained in any instrument or agreement evidencing or securing any obligation for borrowed money which results in the holder acceleration (whether by declaration or automatically) of such Indebtedness indebtedness in an aggregate amount equal to declare such Indebtedness due and payable before its stated maturity, or in greater than 2% of the performance Consolidated Capitalization of or compliance with any term of any evidence of such Indebtedness or of any mortgage, indenture or other agreement relating thereto, and any such default shall continue for more than the period of grace, if any, specified therein and shall not have been waived pursuant thereto and shall permit the holder of such Indebtedness to declare such Indebtedness due and payable before its stated maturity, unless such Borrower shall be contesting such payment or obligation in good faith by appropriate proceedings promptly initiated and diligently conducted and such Borrower shall have set aside on its books such reserves, if any, with respect thereto as are required by GAAP and deemed appropriate by such Borrower and its independent public accountants, PROVIDED, that no Event of Default pursuant to paragraphs (b) or (i) of this Section 10.01 shall have occurred and be continuing as a result of such claim having been asserted in respect of such Indebtedness; orBorrower;
(g) Such the Borrower shall discontinue or any of its business (other than in connection with a permitted merger or consolidation of such Borrower) or Material Subsidiaries shall make an assignment for the benefit of creditors, or shall admit in writing its inability to pay or generally fail generally to pay its debts as such debts they mature or become due, or shall petition or apply for or consent to the appointment of or taking possession by a trustee, receiver or liquidator (trustee or other similar official) custodian, liquidator or receiver of such the Borrower or any of its Material Subsidiaries or of any substantial part of the property or assets of such the Borrower or any of its Material Subsidiaries or shall commence a any case or have an other proceeding relating to the Borrower or any of its Material Subsidiaries under any bankruptcy, reorganization, arrangement, insolvency, readjustment of debt, dissolution or liquidation or similar law of any jurisdiction, now or hereafter in effect, or shall take any action to authorize or in furtherance of any of the foregoing, or if any such petition or application shall be filed or any such case or other proceeding shall be commenced against the Borrower or any of its Material Subsidiaries and the Borrower or any of its Material Subsidiaries shall indicate its approval thereof, consent thereto or acquiescence therein;
(h) a decree or order is entered appointing any such trustee, custodian, liquidator or receiver or adjudicating the Borrower or any of its Material Subsidiaries bankrupt or insolvent, or approving a petition in any such case or other proceeding, or a decree or order for relief is entered against it in respect of the Borrower or any Material Subsidiary of the Borrower in an involuntary case under the federal bankruptcy laws, laws as now or hereafter constituted, or any other applicable federal or state bankruptcy, insolvency or other similar law, or if any action shall be taken to dissolve or liquidate such Borrower (other than in connection with a permitted merger or consolidation of such Borrower); or
(h) If, within sixty (60) days after the commencement against such Borrower of a case under the federal bankruptcy laws, as now or hereafter constituted, or any other applicable federal or state bankruptcy, insolvency or other similar law, such case shall have been consented to or shall not have been dismissed or all orders or proceedings thereunder affecting the operations or the business of such Borrower stayed, or if the stay of any such order or proceeding shall thereafter be set aside, or if within sixty (60) days after the entry of a decree appointing a trustee, receiver or liquidator (or other similar official) of such Borrower or any substantial part of the property of such Borrower such appointment shall not have been vacated; or
(i) A there shall remain in force, undischarged, unsatisfied and unstayed, for more than thirty (30) days, whether or not consecutive, any final judgment whichagainst the Borrower or any of its Subsidiaries that, together with other outstanding final judgments judgments, undischarged and not covered by insurance, against such Borrower, Person(s) exceeds an amount in the aggregate equal to five percent (5%) of such Borrower's Total Assets (exclusive of amounts covered by available insurance) shall be rendered against such Borrower and if, within thirty (30) days after entry thereof, such judgment shall not have been discharged or execution thereof stayed pending appeal, or if, within thirty (30) days after the expiration of any such stay, such judgment shall not have been discharged; or
(j) Such Borrower or any member percent of the Controlled Group shall fail to pay when due an amount or amounts aggregating in excess of $500,000 which it is obligated to pay to the PBGC or to a Plan under Title IV of ERISA; or a notice of intent to terminate a Plan or Plans having aggregate Unfunded Liabilities in excess of $500,000 shall be filed under Title IV of ERISA by such Borrower or any member Consolidated Net Worth of the Controlled Group, any plan administrator or any combination of the foregoing; or the PBGC shall institute proceedings under Title IV of ERISA to terminate or to cause a trustee to be appointed to administer any such Plan or Plans or a proceeding shall be instituted by a fiduciary of any such Plan or Plans against such Borrower or any member of the Controlled Group to enforce Sections 515 or 4219(c)(5) of ERISA; or a condition shall exist by reason of which the PBGC would be entitled to obtain a decree adjudicating that any such Plan or Plans must be terminated; or there shall occur a complete or partial withdrawal from, or a default, within the meaning of Section 4219(c)(5) of ERISA, with respect to, one or more Multiemployer Plans which could cause such Borrower or one or more members of the Controlled Group to incur a current payment obligation in excess of $500,000; or
(k) Such Borrower shall cease to be an investment management company (or a Portfolio thereof) registered under the Investment Company Act, or such Borrower's registration under the Investment Company Act, or that of any Borrower Agent of such Borrower, shall lapse or be suspended; then, and in any such event, and at any time thereafter, if any Event of Default shall then so long as the same may be continuing with respect to such defaulting Borrower, (i) in the case of any Event of Default specified in paragraphs (g) and (h) abovecontinuing, the Commitments as to such defaulting Borrower shall thereupon automatically be terminated and the principal of and accrued interest on the Loans shall automatically become due and payable without presentment, demand, protest or other notice or formality of any kind, all of which are hereby expressly waived, and (ii) in the case of any other Event of Default specified above, either or both of the following actions may be taken: the Operations Administrative Agent may, and upon the written or telephonic (confirmed in writing) request of the Majority Banks shall, by written notice in writing to such defaulting the Borrower (A) declare all amounts owing with respect to this Credit Agreement, the principal of Notes, the other Loan Documents and accrued interest in respect of such defaulting Borrower's Loans all Reimbursement Obligations to be be, and they shall thereupon forthwith due and payablebecome, whereupon the principal of and accrued interest in respect of such Loans shall become forthwith immediately due and payable without presentment, demand, protest or other notice of any kind, all of which are hereby expressly waived by the Borrower; provided that in the event of any Event of Default specified in section 10(g) or section 10(h), all such Borroweramounts shall become immediately due and payable automatically and without any requirement of notice from the Administrative Agent or any Bank. If any one or more of the Events of Default specified in section 10(g) or section 10(h) shall occur, and/or (B) any unused portion of the credit hereunder shall forthwith terminate the Commitments as to such defaulting Borrower, whereupon the Commitments and each of the Banks shall be relieved of all obligations to make Committed Credit Loans hereunder and the Administrative Agent shall be relieved of all further obligations to such defaulting Borrower shall forthwith terminate without issue, extend or renew Letters of Credit. If any other Event of Default shall have occurred and be continuing, the Administrative Agent, upon the request of the Majority Banks, shall, by notice to the Borrower, terminate the unused portion of the credit hereunder, and upon such notice being given such unused portion of the credit hereunder shall terminate immediately and each of the Banks shall be relieved of all further obligations to make Loans and the Administrative Agent shall be relieved of all further obligations to issue, extend or renew Letters of Credit. If any such notice is given to the Borrower, the Administrative Agent will forthwith furnish a copy thereof to each of the Banks. No termination of the credit hereunder shall relieve the Borrower of any kind and the percentages of the Commitment Fee and Obligations or any of its existing obligations to the Banks arising under other fees and expenses otherwise payable by such defaulting Borrower hereunder accruing from and after the date of termination shall be reallocated among the remaining Borrowers PRO RATA on the basis of the percentages set forth opposite such remaining Borrowers' names on SCHEDULE 1, as in effect at the time of such terminationagreements or instruments.
Appears in 1 contract
Sources: Revolving Credit Agreement (Telephone & Data Systems Inc /De/)
Events of Default; Acceleration. If any of the following conditions or events (each an "EVENT OF DEFAULTEvents of Default") shall occur with respect to any Borrowerand be continuing:
(a) Such Borrower (i) if the Joint Issuers or Holdings, as guarantor, shall default in the payment of any principal of any Loan, interest accrued thereon or fee due hereunder after Note when the same becomes due and payable, whether at maturity or at a date fixed for prepayment or by acceleration or otherwise; or
(b) if the Joint Issuers or Holdings, or (ii) as guarantor, shall default in the payment of any other amount due hereunder interest on any Note (whether by issuance of a Note or payment in cash as required by the terms hereof) for more than 5 days after the same becomes due and payable; or
(bc) Such Borrower if Holdings or any Joint Issuer shall default in the performance of or compliance with any other material term contained in Sections 9.01(a) this Agreement or 9.01(b) any other Note Purchase Document and such default shall continue unremedied for 30 days after such failure shall first have continued for more than three (3) Banking Days, become known to any officer of Holdings or such Borrower shall default in the performance of or compliance with any term contained in Sections 8.02(d), 8.02(e), 8.02(g), 8.05, 9.02, 9.03 or 9.04; or
(c) Such Borrower shall default in the performance of or compliance with any term contained herein other than those expressly referred to in this Section 10.01, and such default shall not have been remedied within five (5) Banking Days after written notice thereof shall have been given to such Borrower received by the Operations AgentHoldings from any holder of any Note; or
(d) Such Borrower shall default if any representation or warranty made in the performance ofwriting by or on behalf of Holdings or any Joint Issuer in this Agreement, any other Note Purchase Document, or compliance with, any material term contained in any other written agreement instrument furnished in compliance with the Operations Agent or any Bank pertaining in reference to this Agreement or such Borrower's Loans, and such default shall continue for more than the period of grace, if any, specified therein and shall not have been waived pursuant thereto; or
(e) Any representation, warranty certification or statement made or deemed made by such Borrower in this Agreement or in any certificate, financial statement or other document delivered pursuant hereto shall prove to have been false or incorrect in any material respect when on the date as of which made; or
(fe) Except as otherwise provided if any event shall occur or condition shall exist in this Section 10.01, such Borrower shall default in respect of any payment due on Indebtedness for borrowed money of Holdings or the deferred purchase price of property, the aggregate outstanding principal amount of which is any Joint Issuer in excess of five percent (5%) of such Borrower's Total Assets, and such default shall continue for more than the period of grace, if any, applicable thereto and shall not have been waived pursuant thereto and shall permit the holder of such Indebtedness to declare such Indebtedness due and payable before its stated maturity, $1,000,000 or in the performance of or compliance with any term of under any evidence of any such Indebtedness or of any mortgage, indenture or other agreement relating thereto, and any such default shall continue for more than the period effect of grace, if any, specified therein and shall not have been waived pursuant thereto and shall permit which event or condition is to cause the holder acceleration of such Indebtedness to declare such Indebtedness due and payable before its stated maturity, unless such Borrower shall be contesting such payment maturity or obligation in good faith by appropriate proceedings promptly initiated and diligently conducted and such Borrower shall have set aside on before its books such reserves, if any, with respect thereto as are required by GAAP and deemed appropriate by such Borrower and its independent public accountants, PROVIDED, that no Event regularly scheduled dates of Default pursuant to paragraphs (b) or (i) of this Section 10.01 shall have occurred and be continuing as a result of such claim having been asserted in respect of such Indebtednesspayment; or
(g1) Such Borrower shall discontinue its business (other than in connection An order for relief is entered with respect to Holdings or any Joint Issuer or any such Person commences a permitted merger or consolidation of such Borrower) or shall make an assignment for voluntary case under the benefit of creditorsBankruptcy Code, or shall fail generally consents to pay its debts as the entry of an order for relief in an involuntary case or to the conversion of an involuntary case to a voluntary case under any such debts become due, law or shall apply for or consent consents to the appointment of or taking possession by a trusteereceiver, receiver or liquidator (trustee or other similar official) of such Borrower custodian 25 for all or any a substantial part of the property or assets of such Borrower or shall commence a case or have an order for relief entered against it under the federal bankruptcy laws, as now or hereafter constituted, its property; or
(2) Holdings or any other applicable federal Joint Issuer makes any assignment for the benefit of creditors; or state bankruptcy, insolvency (3) the Board of Directors of Holdings or other similar law, any Joint Issuer adopts any resolution or if otherwise authorizes action to approve any action shall be taken of the actions referred to dissolve or liquidate such Borrower (other than in connection with a permitted merger or consolidation of such Borrowerthis subsection 13(f); or
(h1) If, within sixty (60) days after the commencement against such Borrower of A court enters a decree or order for relief with respect to Holdings or any Joint Issuer in an involuntary case under the federal bankruptcy lawsBankruptcy Code, as now which decree or hereafter constituted, order is not stayed or other similar relief is not granted under any other applicable federal or state bankruptcy, insolvency or other similar law, such case shall have been consented to or shall not have been dismissed or all orders or proceedings thereunder affecting the operations or the business of such Borrower stayed, or if the stay of any such order or proceeding shall thereafter be set aside, or if law within sixty (60) days after the entry thereof; or (2) the continuance of a decree appointing a trusteeany of the following events for sixty (60) days or more unless dismissed, receiver bonded or liquidator discharged:
(a) an involuntary case is commenced against Holdings or any Joint Issuer under any applicable bankruptcy, insolvency or other similar officiallaw now or hereafter in effect; or (b) a decree or order of such Borrower a court for the appointment of a receiver, liquidator, sequestrator, trustee, custodian or other officer having similar powers over Holdings or any Joint Issuer or over all or a substantial part of its property, is entered; or (c) an interim receiver, trustee or other custodian is appointed without the consent of Holdings or any Joint Issuer, as applicable, for all or a substantial part of the property of such Borrower such appointment shall not have been vacatedPerson; or
(ih) A final judgment which, together with other outstanding final or judgments against such Borrower, exceeds an amount in any individual case or in the aggregate equal to five percent at any time, in excess of $500,000 (5%) of such Borrower's Total Assets (exclusive of amounts in either case not adequately covered by available insuranceinsurance as to which the insurance company has acknowledged coverage) shall be rendered is entered or filed against such Borrower Holdings or any Joint Issuer or any of their respective assets and ifremains undischarged, within unvacated, unbonded or unstayed for a period of thirty (30) days after entry thereofor more; or
(1) Holdings or any Joint Issuer fails to make full payment when due of all amounts which, under the provisions of any employee benefit plans or any applicable provisions of the Internal Revenue Code as amended from time to time ("IRC"), such judgment shall Person is required to pay as contributions thereto and such failure results in the imposition of a lien on the assets of Holdings or any Joint Issuer; or (2) an accumulated funding deficiency in excess of $1,000,000 occurs or exists, whether or not have been discharged waived, with respect to any Holdings' or execution thereof stayed pending appeal, any Joint Issuer's employee benefit plans; or if, within thirty (303) days after the expiration of any such stay, such judgment shall not have been dischargedemployee benefit plans lose their status as a qualified plan under the IRC which results in the imposition of a material lien on the assets of Holdings or any Joint Issuer; or
(j) Such Borrower Any of the Note Purchase Documents for any reason, 26 other than a partial or full release in accordance with the terms thereof, ceases to be in full force and effect or is declared to be null and void, or Holdings or any member of the Controlled Group shall fail Joint Issuer denies that it has any further liability under any Note Purchase Document to pay when due an amount or amounts aggregating in excess of $500,000 which it is obligated to pay to the PBGC or to a Plan under Title IV of ERISA; or a notice of intent to terminate a Plan or Plans having aggregate Unfunded Liabilities in excess of $500,000 shall be filed under Title IV of ERISA by such Borrower or any member of the Controlled Group, any plan administrator or any combination of the foregoing; or the PBGC shall institute proceedings under Title IV of ERISA to terminate or to cause a trustee to be appointed to administer any such Plan or Plans or a proceeding shall be instituted by a fiduciary of any such Plan or Plans against such Borrower or any member of the Controlled Group to enforce Sections 515 or 4219(c)(5) of ERISA; or a condition shall exist by reason of which the PBGC would be entitled to obtain a decree adjudicating that any such Plan or Plans must be terminated; or there shall occur a complete or partial withdrawal fromparty, or a default, within the meaning of Section 4219(c)(5) of ERISA, with respect to, one or more Multiemployer Plans which could cause gives notice to such Borrower or one or more members of the Controlled Group to incur a current payment obligation in excess of $500,000effect; or
(k) Such Borrower shall cease to be an investment management company (or a Portfolio thereof) registered A Change of Control as defined under the Investment Company Act, or such Borrower's registration under Credit Agreement (as in effect on the Investment Company Act, or that of any Borrower Agent of such Borrower, date hereof) shall lapse or occur and be suspended; then, and in any such event, and at any time thereafter, if any Event of Default shall then be continuing with respect to such defaulting Borrower, continuing:
(i1) in upon the case occurrence of any Event of Default specified described in paragraphs subdivision (f) or (g) and (h) aboveof this Section 13, the Commitments as to such defaulting Borrower shall thereupon automatically be terminated and the unpaid principal amount of and accrued interest on the Loans Notes shall automatically become due and payable without presentment, demand, protest immediately; or other notice or formality of any kind, all of which are hereby expressly waived, and (ii2) in upon the case occurrence of any other Event of Default specified aboveDefault, either any holder or both holders of 25% or more in principal amount of the following actions Notes at the time outstanding may be taken: the Operations Agent may, and upon the written at any time (unless all Events of Default shall theretofore have been remedied) at its or telephonic (confirmed in writing) request of the Majority Banks shalltheir option, by written notice or notices to such defaulting Borrower (A) Holdings as agent for the Joint Issuers, declare all the principal of and accrued interest in respect of such defaulting Borrower's Loans Notes to be forthwith due and payable, whereupon the principal of same shall forthwith mature and accrued interest in respect of such Loans shall become forthwith due and payable without presentment, demand, protest or other notice of any kind, all of which immediately if no Senior Loans are hereby expressly waived by such Borrower, and/or (B) terminate the Commitments as to such defaulting Borrower, whereupon the Commitments of the Banks to make Committed Credit Loans hereunder to such defaulting Borrower shall forthwith terminate without any other notice of any kind and the percentages of the Commitment Fee and other fees and expenses otherwise payable by such defaulting Borrower hereunder accruing from and after the date of termination shall be reallocated among the remaining Borrowers PRO RATA on the basis of the percentages set forth opposite such remaining Borrowers' names on SCHEDULE 1, as in effect at the time of such terminationthen outstanding.
Appears in 1 contract
Sources: Note Purchase Agreement (Home Products International Inc)
Events of Default; Acceleration. If any Any of the following events (each shall constitute an "EVENT OF DEFAULTEvent of Default") shall occur with respect to any Borrower:
(a) Such Borrower Default in the due and punctual payment of the interest on or principal of, premium on, or redemption or Purchase Price of any Bond, whether at the stated maturity thereof or upon proceedings for redemption thereof, or upon the maturity thereof by acceleration or otherwise or on the Conversion Date, proposed Conversion Date, Substitution Date or Purchase Date;
(b) Default in the performance or observance of any other obligation or condition on the part of the Issuer contained in this Indenture or the Bonds, and the continuance thereof for a period of 30 days after written notice given to the Obligor and the Issuer by the Trustee or by the holders of not less than 25% in aggregate principal amount of the Bonds then outstanding, except that if such default cannot be corrected within such period, it shall not constitute an Event of Default if in the judgment of the Trustee in reliance upon an opinion of Counsel and with the consent of the Bank the default is correctable without material adverse effect on the Bonds and if corrective action is instituted by the Issuer within such period and diligently pursued until the default is corrected;
(c) Occurrence of an Event of Default (as defined in the Agreement) under the Agreement;
(d) Receipt by the Trustee of written demand from the Bank directing the Trustee to declare the Bonds immediately due and payable because of the occurrence of an Event of Default under and as defined in the Reimbursement Agreement;
(e) Receipt by the Trustee after a payment under the Credit Facility with respect to interest on the Bonds of written notice from the Bank that the interest portion of the Credit Facility has not been reinstated to an amount equal to 45 days' (or if applicable pursuant to Section 208 hereof, 210 days') interest, calculated at the Maximum Rate or Fixed Rate or Fixed Rates, as applicable.
(f) The Bank shall (i) shall default fail to be open for the transaction of its general business on any day other than a day on which such institutions in the payment city in which such Bank is located are authorized or obligated to close by applicable law absent extenuating circumstances of principal of any Loan, interest accrued thereon or fee due hereunder after the same becomes due and payable, whether at maturity or by acceleration or otherwise, a nonfinancial nature; or (ii) commence a proceeding under any federal or state insolvency, reorganization or similar law, or have such a proceeding commenced against it and either have an order of insolvency or reorganization entered against it or have the proceeding remain undismissed and unstayed for 90 days; or (iii) have a receiver, liquidator or trustee appointed for it or for the whole or substantially all of its property. The declaration of an Event of Default under this subsection (f) and the exercise of remedies upon any such declaration shall default in be subject to any applicable limitations of federal bankruptcy law affecting or precluding such declaration or exercise during the payment pendency of or immediately following any other amount due hereunder after the same becomes due and payablebankruptcy, liquidation or reorganization proceedings; or
(bg) Such Borrower shall default in the performance of or compliance with any term contained in Sections 9.01(a) or 9.01(b) and such default shall have continued for more than three (3) Banking Days, or such Borrower shall default in the performance of or compliance with any term contained in Sections 8.02(d), 8.02(e), 8.02(g), 8.05, 9.02, 9.03 or 9.04; or
(c) Such Borrower shall default in the performance of or compliance with any term contained herein other than those expressly referred to in this Section 10.01, and such default shall not have been remedied within five (5) Banking Days after written notice thereof shall have been given to such Borrower Wrongful dishonor by the Operations Agent; or
(d) Such Borrower shall default in Bank of a draft drawn under the performance ofCredit Facility by the Trustee. The Trustee shall, or compliance withat the direction of the Bank, any material term contained in any other written agreement with upon the Operations Agent or any Bank pertaining to this Agreement or such Borrower's Loans, and such default shall continue for more than the period occurrence of grace, if any, specified therein and shall not have been waived pursuant thereto; or
(e) Any representation, warranty certification or statement made or deemed made by such Borrower in this Agreement or in any certificate, financial statement or other document delivered pursuant hereto shall prove to have been false or incorrect in any material respect when made; or
(f) Except as otherwise provided in this Section 10.01, such Borrower shall default in any payment due on Indebtedness for borrowed money or the deferred purchase price of property, the aggregate outstanding principal amount of which is in excess of five percent (5%) of such Borrower's Total Assets, and such default shall continue for more than the period of grace, if any, applicable thereto and shall not have been waived pursuant thereto and shall permit the holder of such Indebtedness to declare such Indebtedness due and payable before its stated maturity, or in the performance of or compliance with any term of any evidence of such Indebtedness or of any mortgage, indenture or other agreement relating thereto, and any such default shall continue for more than the period of grace, if any, specified therein and shall not have been waived pursuant thereto and shall permit the holder of such Indebtedness to declare such Indebtedness due and payable before its stated maturity, unless such Borrower shall be contesting such payment or obligation in good faith by appropriate proceedings promptly initiated and diligently conducted and such Borrower shall have set aside on its books such reserves, if any, with respect thereto as are required by GAAP and deemed appropriate by such Borrower and its independent public accountants, PROVIDED, that no an Event of Default pursuant to under paragraphs (b) or (i) of this Section 10.01 shall have occurred and be continuing as a result of such claim having been asserted in respect of such Indebtedness; or
(g) Such Borrower shall discontinue its business (other than in connection with a permitted merger or consolidation of such Borrower) or shall make an assignment for the benefit of creditors, or shall fail generally to pay its debts as such debts become due, or shall apply for or consent to the appointment of or taking possession by a trustee, receiver or liquidator (or other similar official) of such Borrower or any substantial part of the property or assets of such Borrower or shall commence a case or have an order for relief entered against it under the federal bankruptcy laws, as now or hereafter constituted, or any other applicable federal or state bankruptcy, insolvency or other similar law, or if any action shall be taken to dissolve or liquidate such Borrower (other than in connection with a permitted merger or consolidation of such Borrower); or
(h) If, within sixty (60) days after the commencement against such Borrower of a case under the federal bankruptcy laws, as now or hereafter constituted, or any other applicable federal or state bankruptcy, insolvency or other similar law, such case shall have been consented to or shall not have been dismissed or all orders or proceedings thereunder affecting the operations or the business of such Borrower stayed, or if the stay of any such order or proceeding shall thereafter be set aside, or if within sixty (60) days after the entry of a decree appointing a trustee, receiver or liquidator (or other similar official) of such Borrower or any substantial part of the property of such Borrower such appointment shall not have been vacated; or
(i) A final judgment which, together with other outstanding final judgments against such Borrower, exceeds an amount in the aggregate equal to five percent (5%) of such Borrower's Total Assets (exclusive of amounts covered by available insurance) shall be rendered against such Borrower and if, within thirty (30) days after entry thereof, such judgment shall not have been discharged or execution thereof stayed pending appeal, or if, within thirty (30) days after the expiration of any such stay, such judgment shall not have been discharged; or
(j) Such Borrower or any member of the Controlled Group shall fail to pay when due an amount or amounts aggregating in excess of $500,000 which it is obligated to pay to the PBGC or to a Plan under Title IV of ERISA; or a notice of intent to terminate a Plan or Plans having aggregate Unfunded Liabilities in excess of $500,000 shall be filed under Title IV of ERISA by such Borrower or any member of the Controlled Group, any plan administrator or any combination of the foregoing; or the PBGC shall institute proceedings under Title IV of ERISA to terminate or to cause a trustee to be appointed to administer any such Plan or Plans or a proceeding shall be instituted by a fiduciary of any such Plan or Plans against such Borrower or any member of the Controlled Group to enforce Sections 515 or 4219(c)(5) of ERISA; or a condition shall exist by reason of which the PBGC would be entitled to obtain a decree adjudicating that any such Plan or Plans must be terminated; or there shall occur a complete or partial withdrawal from, or a default, within the meaning of Section 4219(c)(5) of ERISA, with respect to, one or more Multiemployer Plans which could cause such Borrower or one or more members of the Controlled Group to incur a current payment obligation in excess of $500,000; or
(k) Such Borrower shall cease to be an investment management company (or a Portfolio thereof) registered under the Investment Company Act, or such Borrower's registration under the Investment Company Act, or that of any Borrower Agent of such Borrower, shall lapse or be suspended; then, and in any such event, and at any time thereafter, if any Event of Default shall then be continuing with respect to such defaulting Borrower, (i) in the case of any Event of Default specified in paragraphs (g) and (hc) above, the Commitments as to such defaulting Borrower shall thereupon automatically be terminated and declare the principal of and accrued interest on the Loans shall automatically become all outstanding Bonds immediately due and payable without presentmentpayable. The Trustee shall, demand, protest or other notice or formality upon the occurrence of any kind, all of which are hereby expressly waived, and (ii) in the case of any other an Event of Default specified under paragraphs (a), (d), (e), (f) or (g) above, either or both of the following actions may be taken: the Operations Agent may, and upon the written or telephonic (confirmed in writing) request of the Majority Banks shall, by written notice to such defaulting Borrower (A) declare the principal of and accrued interest in respect of such defaulting Borrower's Loans on all outstanding Bonds to be forthwith due and payable immediately. The Trustee shall simultaneously with any such declaration give written notice of any such declaration to the Issuer, the Remarketing Agent, the Obligor, the Bank and the Bondholders. Such notice shall specify the date on which payment of principal and interest shall be tendered to the Bondholders, which date, so long as funds are available to the Trustee therefor, shall not be later than 5 days after the Event of Default resulting in such declaration. Interest on the Bonds will accrue to the date of declaration of acceleration. Upon any declaration of acceleration of maturity of principal and interest on the Bonds under this Indenture, the Trustee shall promptly exercise such rights as it may have under the Agreement to declare all payments thereunder to be immediately due and payable, whereupon shall transfer any moneys in the Project Fund to the Bond Fund and shall draw upon the Credit Facility in accordance with Section 209 hereof, to the full extent permitted by the terms thereof. If for any reason the Credit Facility is not in full force and effect, or if the Bank has failed to pay or has been prevented from paying a draft drawn under the Credit Facility which complies with the terms of the Credit Facility, or if the Bank in writing has repudiated its obligations under the Credit Facility, or if the Bank shall no longer exist or shall become insolvent or if a receiver is appointed for it or its property or affairs, then upon an occurrence of an event specified in Section 801(b) or (c) the Trustee shall give written notice thereof to the Obligor and the Holders of all Outstanding Bonds, and may declare the principal of and accrued interest in respect of such Loans shall become forthwith on all Outstanding Bonds immediately due and payable without presentmentby written notice thereof to the Obligor and the Issuer, demand, protest or other and shall declare the principal of and accrued interest on all Outstanding Bonds immediately due and payable if Holders of not less than 25% of the principal amount of outstanding Bonds give written notice of any kindsuch event to the Trustee, all of which are hereby expressly waived by such Borrower, and/or (B) terminate the Commitments as to such defaulting Borrower, whereupon the Commitments of the Banks to make Committed Credit Loans hereunder to such defaulting Borrower shall forthwith terminate without any other notice of any kind Obligor and the percentages of the Commitment Fee and other fees and expenses otherwise payable by such defaulting Borrower hereunder accruing from and after the date of termination shall be reallocated among the remaining Borrowers PRO RATA on the basis of the percentages set forth opposite such remaining Borrowers' names on SCHEDULE 1, as in effect at the time of such terminationIssuer.
Appears in 1 contract
Sources: Trust Indenture
Events of Default; Acceleration. If any of the following events occurs (each, an “Event of Default”), the Notes shall become due immediately, without notice, at the Bank’s option:
A. Any Obligor fails to pay (i) within three (3) days of the due date therefor, any Credit Facility Indebtedness consisting of interest or fees; (ii) when due, any Credit Facility Indebtedness consisting of principal amounts, in each case under this Agreement, any Note, any other Credit Facility Related Document; or (iii) when due (taking into account any applicable contractual grace period then in effect) any other Liabilities or any other debt owed to the Bank or an "EVENT OF DEFAULT") shall occur Affiliate of the Bank, or any other amount payable with respect to any Borrower:
(a) Such Borrower (i) shall default in of the payment of principal of any Loan, interest accrued thereon or fee due hereunder after the same becomes due and payable, whether at maturity or by acceleration or otherwiseLiabilities, or (ii) shall default in the payment of under any other amount due hereunder after the same becomes due and payable; or
(b) Such Borrower shall default in the performance of or compliance with any term contained in Sections 9.01(a) or 9.01(b) and such default shall have continued for more than three (3) Banking DaysRelated Document, or such Borrower shall default in any agreement or instrument evidencing other debt to the performance of or compliance with any term contained in Sections 8.02(d), 8.02(e), 8.02(g), 8.05, 9.02, 9.03 or 9.04; or
(c) Such Borrower shall default in the performance of or compliance with any term contained herein other than those expressly referred to in this Section 10.01, and such default shall not have been remedied within five (5) Banking Days after written notice thereof shall have been given to such Borrower by the Operations Agent; or
(d) Such Borrower shall default in the performance of, or compliance with, any material term contained in any other written agreement with the Operations Agent Bank or any Bank pertaining to this Agreement Affiliate of the Bank.
B. Any representation or such Borrower's Loans, and such default shall continue for more than the period of grace, if any, specified therein and shall not have been waived pursuant thereto; or
(e) Any representation, warranty certification or statement made or deemed made by such or on behalf of the Borrower or any Subsidiary in or in connection with this Agreement or any other Credit Facility Related Document or any amendment or modification hereof or thereof or waiver hereunder or thereunder, or in any report, certificate, financial statement or other document delivered furnished pursuant hereto to or in connection with this Agreement or any other Credit Facility Related Document or any amendment or modification hereof or thereof or waiver hereunder or thereunder, shall prove to have been false materially incorrect when made or deemed made or shall become untrue in violation of Section 8.7 below;
C. The Borrower or any Subsidiary shall fail to observe or perform any covenant, condition or agreement contained in Section 4.2 [Existence] (with respect to such entity’s existence), 4.6(6) [notice of breach of Credit Facility Related Documents] or in Section 5 [Negative Covenants];
D. The Borrower or any Subsidiary shall fail to observe or perform any covenant, condition or agreement contained in this Agreement or any other Credit Facility Related Document (other than those specified in clauses A, B or C above), and such failure shall continue unremedied for a period of (i) 5 days after the earlier of Borrower’s or any Subsidiary’s knowledge of such breach or notice thereof from the Bank if such breach relates to terms or provisions of Section 4.1 [Insurance], 4.2 [Existence] (other than with respect to such entity’s existence), 4.3 [Financial Records], 4.5 [Financial Reports], 4.6 [Notices of Claims, Litigation, Defaults, Etc.] (other than Section 4.6(6)), 4.7 [Other Agreements], 4.9 [3.94.9 Grant of Lien; Additional Assurances], or 4.12 [Compliance with Anti-Corruption Laws and Sanctions] of this Agreement or (ii) 15 days after the earlier of any Loan Party’s knowledge of such breach or notice thereof from the Lender if such breach relates to terms or provisions of any other Section of this Agreement or of any other Loan Document;
E. Except as described in Sections 7.1 A. through D. above, any Obligor or any Pledgor: (i) fails to observe or perform or otherwise violates any other term, covenant, condition or agreement of any of the Related Documents; (ii) makes any materially incorrect or misleading representation, warranty, or certificate to the Bank; (iii) makes any materially incorrect or misleading representation in any material respect when madefinancial statement or other information delivered to the Bank; or
or (fiv) Except as otherwise provided in this Section 10.01, such Borrower shall default in defaults under the terms of any payment due on Indebtedness agreement or instrument relating to any debt for borrowed money or (other than the deferred purchase price debt evidenced by the Related Documents) and the effect of property, such default will allow the creditor to declare debt in an outstanding amount of greater than $100,000 in the aggregate outstanding principal amount of which is in excess of five percent (5%) of such Borrower's Total Assets, and such default shall continue for more than the period of grace, if any, applicable thereto and shall not have been waived pursuant thereto and shall permit the holder of such Indebtedness to declare such Indebtedness due and payable before its stated maturity, or in .
F. In the performance of or compliance with any term of any evidence of such Indebtedness or of any mortgage, indenture or other agreement relating thereto, and any such default shall continue for more than the period of grace, if any, specified therein and shall not have been waived pursuant thereto and shall permit the holder of such Indebtedness to declare such Indebtedness due and payable before its stated maturity, unless such Borrower shall be contesting such payment or obligation in good faith by appropriate proceedings promptly initiated and diligently conducted and such Borrower shall have set aside on its books such reserves, if any, with respect thereto as are required by GAAP and deemed appropriate by such Borrower and its independent public accountants, PROVIDED, that no Event of Default pursuant to paragraphs (b) or event (i) any Obligor terminates or revokes or purports to terminate or revoke its guaranty of this Section 10.01 any of the Credit Facility Indebtedness or any Obligor’s guaranty of any of the Credit Facility Indebtedness becomes unenforceable in whole or in part, (ii) any Obligor fails to perform promptly under its guaranty of any of the Credit Facility Indebtedness, or (iii) any Obligor fails to comply with, or perform under any agreement, now or hereafter in effect, between the Obligor and the Bank, or any Affiliate of the Bank or their respective successors and assigns.
G. Any event occurs that would permit the Pension Benefit Guaranty Corporation to terminate any employee benefit plan of any Obligor or any Subsidiary of any Obligor.
H. An involuntary proceeding shall have occurred and be continuing as a result of such claim having been asserted commenced or an involuntary petition shall be filed seeking (i) liquidation, reorganization or other relief in respect of such Indebtedness; or
(g) Such Borrower shall discontinue any Obligor or any of its business (other than in connection with a permitted merger Subsidiaries or consolidation of such Borrower) any Pledgor or shall make an assignment for the benefit of creditorsits debts, or of a substantial part of its assets, under any federal, state or foreign bankruptcy, insolvency, receivership or similar law now or hereafter in effect or (ii) the appointment of a receiver, trustee, custodian, sequestrator, conservator or similar official for any Obligor or any of its Subsidiaries or any Pledgor or for a substantial part of its assets, and, in any such case, such proceeding or petition shall fail generally continue undismissed for sixty (60) days or an order or decree approving or ordering any of the foregoing shall be entered.
I. Any Obligor or any of its Subsidiaries or any Pledgor shall (i) voluntarily commence any proceeding or file any petition seeking liquidation, reorganization or other relief under any federal, state or foreign bankruptcy, insolvency, receivership or similar law now or hereafter in effect, (ii) consent to pay its debts as such debts become duethe institution of, or shall fail to contest in a timely and appropriate manner, any proceeding or petition described in clause E of this Section, (iii) apply for or consent to the appointment of or taking possession by a receiver, trustee, receiver custodian, sequestrator, conservator or liquidator (or other similar official) of official for such Borrower Obligor or any of its Subsidiaries or any Pledgor or for a substantial part of its assets, (iv) file an answer admitting the property material allegations of a petition filed against it in any such proceeding, (v) make a general assignment for the benefit of creditors, (vi) take any action for the purpose of effecting any of the foregoing or (vii) become unable, admit in writing its inability, or publicly declare its intention not to, or fail generally, to pay its debts as they become due.
J. Any Obligor or any of its Subsidiaries, without the Bank’s written consent or as expressly permitted in this Agreement: (i) liquidates or is dissolved; (ii) merges or consolidates with any other Person; (iii) leases, sells or otherwise conveys a material part of its assets or business outside the ordinary course of its business; (iv) leases, purchases, or otherwise acquires a material part of the assets of such Borrower any other Person, except in the ordinary course of its business; or shall commence a case (v) agrees to do any of the foregoing; provided, however, that any Subsidiary of an Obligor may merge or have an order for relief entered against it under the federal bankruptcy laws, as now or hereafter constitutedconsolidate with any other Subsidiary of that Obligor, or with the Obligor, so long as the Obligor is the survivor.
(i) One or more judgments for the payment of money in an aggregate amount in excess of $1,000,000 shall be rendered against any other applicable federal Obligor, any Subsidiary or state bankruptcy, insolvency or other similar lawany combination thereof and the same shall remain undischarged for a period of thirty (30) consecutive days during which execution shall not be effectively stayed, or if (ii) any action shall be legally taken by a judgment creditor to dissolve attach or liquidate such Borrower (other than in connection with a permitted merger or consolidation levy upon any assets of such Borrower); or
(h) If, within sixty (60) days after the commencement against such Borrower of a case under the federal bankruptcy laws, as now or hereafter constituted, any Obligor or any other applicable federal or state bankruptcy, insolvency or other similar law, such case shall have been consented Subsidiary to or shall not have been dismissed or all orders or proceedings thereunder affecting the operations or the business of such Borrower stayed, or if the stay of enforce any such order or proceeding shall thereafter be set aside, or if within sixty (60) days after the entry of a decree appointing a trustee, receiver or liquidator (or other similar official) of such Borrower judgment or any substantial part of the property of such Borrower such appointment Obligor or any Subsidiary shall not have been vacated; or
(i) A final judgment which, together with other outstanding final judgments against such Borrower, exceeds an amount in the aggregate equal to five percent (5%) of such Borrower's Total Assets (exclusive of amounts covered by available insurance) shall be rendered against such Borrower and if, fail within thirty (30) days after entry thereof, such judgment shall not have been discharged or execution thereof stayed pending appeal, or if, within thirty (30) days after the expiration of any such stay, such judgment shall not have been discharged; or
(j) Such Borrower or any member of the Controlled Group shall fail to pay when due an amount or amounts aggregating in excess of $500,000 which it is obligated to pay to the PBGC or to a Plan under Title IV of ERISA; or a notice of intent to terminate a Plan or Plans having aggregate Unfunded Liabilities in excess of $500,000 shall be filed under Title IV of ERISA by such Borrower or any member of the Controlled Group, any plan administrator or any combination of the foregoing; or the PBGC shall institute proceedings under Title IV of ERISA to terminate or to cause a trustee to be appointed to administer any such Plan or Plans or a proceeding shall be instituted by a fiduciary of any such Plan or Plans against such Borrower or any member of the Controlled Group to enforce Sections 515 or 4219(c)(5) of ERISA; or a condition shall exist by reason of which the PBGC would be entitled to obtain a decree adjudicating that any such Plan or Plans must be terminated; or there shall occur a complete or partial withdrawal from, or a default, within the meaning of Section 4219(c)(5) of ERISA, with respect to, discharge one or more Multiemployer Plans non-monetary judgments or orders which, individually or in the aggregate, could reasonably be expected to have a materially adverse effect on its business, assets, affairs, prospects or financial condition, which could cause judgments or orders, in any such Borrower case, are not stayed on appeal and being appropriately contested in good faith by proper proceedings diligently pursued or one (iii) any attachment, seizure, sequestration, levy, or more members garnishment is issued against any Property of any Obligor or any of its Subsidiaries or of any Pledgor or any Collateral or Property which may be required to become Collateral pursuant to the terms of this Agreement.
L. Except as permitted by the terms of the Controlled Group relevant security agreement, (i) any security agreement shall for any reason fail to incur create a current payment obligation valid security interest in excess of $500,000; or
any Collateral purported to be covered thereby, or (kii) Such Borrower any Lien securing any Credit Facility Indebtedness at such time as they are required to be secured pursuant to this Agreement shall cease to be an investment management company a perfected, first priority Lien.
M. Any material provision of any Credit Facility Related Document for any reason ceases to be valid, binding and enforceable in accordance with its terms (or a Portfolio thereof) registered under any Obligor shall challenge the Investment Company Actenforceability of any Credit Facility Related Document or shall assert in writing, or such Borrower's registration under the Investment Company Actengage in any action or inaction that evidences its assertion, or that any provision of any Borrower Agent of such Borrowerthe Credit Facility Related Documents has ceased to be or otherwise is not valid, shall lapse or be suspended; then, binding and enforceable in any such event, and at any time thereafter, if any Event of Default shall then be continuing accordance with respect to such defaulting Borrower, its terms).
N. Any material adverse change occurs in: (i) in the case reputation, Property, financial condition, business, assets, affairs, prospects, liabilities, or operations of any Event Obligor or any of Default specified in paragraphs (g) and (h) above, the Commitments as to such defaulting Borrower shall thereupon automatically be terminated and the principal of and accrued interest on the Loans shall automatically become due and payable without presentment, demand, protest or other notice or formality of any kind, all of which are hereby expressly waived, and its Subsidiaries; (ii) in any Obligor’s or Pledgor’s ability to perform its obligations under the case of any other Event of Default specified above, either Related Documents; or both of (iii) the following actions Collateral or Property which may be taken: required to become Collateral pursuant to the Operations Agent may, and upon the written or telephonic (confirmed in writing) request terms of the Majority Banks shall, by written notice to such defaulting Borrower (A) declare the principal of and accrued interest in respect of such defaulting Borrower's Loans to be forthwith due and payable, whereupon the principal of and accrued interest in respect of such Loans shall become forthwith due and payable without presentment, demand, protest or other notice of any kind, all of which are hereby expressly waived by such Borrower, and/or (B) terminate the Commitments as to such defaulting Borrower, whereupon the Commitments of the Banks to make Committed Credit Loans hereunder to such defaulting Borrower shall forthwith terminate without any other notice of any kind and the percentages of the Commitment Fee and other fees and expenses otherwise payable by such defaulting Borrower hereunder accruing from and after the date of termination shall be reallocated among the remaining Borrowers PRO RATA on the basis of the percentages set forth opposite such remaining Borrowers' names on SCHEDULE 1, as in effect at the time of such terminationthis Agreement.
Appears in 1 contract
Sources: Credit Agreement (Bsquare Corp /Wa)
Events of Default; Acceleration. If In any of the following events (each an "EVENT EVENTS OF DEFAULT" or, in the giving of notice or the lapse of time or both is required, then, prior to such notice and/or lapse of time, "DEFAULTS") shall occur with respect to any Borroweroccur:
(a) Such if the Borrower (i) shall default in the payment of fail to pay any principal of any Loan, interest accrued thereon or fee due Loan outstanding to it hereunder after when the same becomes shall become due and payable, whether at the stated date of maturity or by acceleration any accelerated date of maturity or otherwise, or (ii) shall default in the payment of at any other amount due hereunder after the same becomes due and payable; ordate fixed for payment;
(b) Such if the Borrower shall default in fail to pay any interest on any Loan outstanding to it when the performance same shall become due and payable, whether at the stated date of maturity or compliance with any term contained in Sections 9.01(a) accelerated date of maturity or 9.01(b) at any other date fixed for payment, and such default failure shall have continued continue unremedied promptly after notice and in any event within for more than three (3) Banking Business Days, or such Borrower shall default in the performance of or compliance with any term contained in Sections 8.02(d), 8.02(e), 8.02(g), 8.05, 9.02, 9.03 or 9.04; or;
(c) Such if the Borrower shall default in fail to pay its Commitment Fee when the performance of or compliance with any term contained herein other than those expressly referred to in this Section 10.01same shall become due and payable, and such default failure shall not have been remedied within five (5) Banking Days after written notice thereof shall have been given to such Borrower by the Operations Agent; orcontinue unremedied for three Business Days;
(d) Such if the Borrower shall default in fail to perform, discharge, observe or comply with any of the performance ofterms, or compliance with, any material term covenants and agreements contained in any other written agreement with the Operations Agent Section 5.1, 5.6(f), 5.7, 5.10 or any Bank pertaining to this Agreement or such Borrower's Loans, and such default shall continue for more than the period of grace, if any, specified therein and shall not have been waived pursuant thereto; or5.11;
(e) Any representationif the Borrower shall fail to perform, discharge, observe or comply with any of the terms, covenants and agreements contained herein (other than those specified in paragraphs (a), (b), (c), and (d) of this Section 6.1), and such failure shall continue unremedied for 30 days after written notice of such failure has been given to the Borrower by the Bank;
(f) if any representation or warranty certification or statement made or deemed made by such of the Borrower contained in this Agreement or in any certificate, financial statement or other document or instrument delivered by the Borrower pursuant hereto to or in connection with this Agreement shall prove to have been false or incorrect misleading in any material respect as of the time when made or deemed to have been made; or;
(fg) Except as otherwise provided in this Section 10.01, such if the Borrower shall default fail in any payment due on Indebtedness for borrowed money the performance or the deferred purchase price of propertypayment, the aggregate outstanding principal amount of which is in excess of five percent (5%) of such Borrower's Total Assets, and such default shall continue for more than the at maturity or within an applicable period of grace, if any, applicable thereto and shall not have been waived pursuant thereto and shall permit the holder of such Indebtedness any obligation contained in any agreement or instrument evidencing any other indebtedness with respect to declare such Indebtedness due and payable before its stated maturityborrowed money or credit received, or in the performance of or compliance with any term of any evidence of such Indebtedness or of any mortgage, pledge, agreement, indenture or other agreement relating thereto, and any for such default shall continue for more than the period of gracetime as would, or would have permitted (assuming the giving of appropriate notice if any, specified therein and shall not have been waived pursuant thereto and shall permit required) the holder or holders thereof or of such Indebtedness any obligations issued thereunder to declare such Indebtedness due and payable before its stated maturity, unless such Borrower shall be contesting such payment or obligation in good faith by appropriate proceedings promptly initiated and diligently conducted and such Borrower shall have set aside on its books such reserves, if any, with respect thereto as are required by GAAP and deemed appropriate by such Borrower and its independent public accountants, PROVIDED, that no Event of Default pursuant to paragraphs (b) or (i) of this Section 10.01 shall have occurred and be continuing as a result of such claim having been asserted in respect of such Indebtedness; oraccelerate the maturity thereof;
(gh) Such if the Borrower shall discontinue its business (other than in connection with a permitted merger or consolidation of such Borrower) or shall make makes an assignment for the benefit of creditors, or shall fail admits in writing its inability to pay or generally fails to pay its debts as such debts they mature or become due, or shall apply petitions or applies for or consent to the appointment of or taking possession by a trustee, receiver or liquidator trustee (in bankruptcy) or other similar official) custodian, liquidator or receiver of such the Borrower or of any substantial part of the property or assets of such the Borrower or shall commence a commences any case or have other proceeding relating to the Borrower under any bankruptcy, reorganization, arrangement, insolvency, readjustment of debt, dissolution or liquidation or similar law of any jurisdiction, now or hereafter in effect, or takes any action or authorize or in furtherance of any of the foregoing;
(i) if any such petition or application is filed or any such case or other proceeding is commenced against the Borrower and the Borrower indicates its approval thereof, consent thereto or acquiescence therein or an order for relief or appointing any such trustee (in bankruptcy), custodian, liquidator or receiver is entered against it under adjudicating the federal bankruptcy laws, as now Borrower bankrupt or hereafter constitutedinsolvent, or approving a petition in any other applicable federal or state bankruptcy, insolvency such case or other similar lawproceeding, and such order remains unstayed and in effect for more than 60 days, whether or if any action shall be taken to dissolve or liquidate such Borrower (other than in connection with a permitted merger or consolidation of such Borrower); ornot consecutive;
(hj) Ifif there shall remain in force, within sixty (60) days after the commencement against such Borrower of a case under the federal bankruptcy lawsundischarged, as now unsatisfied and unstayed, for more than 30 days, whether or hereafter constitutednot consecutive, or any other applicable federal or state bankruptcy, insolvency or other similar law, such case shall have been consented to or shall not have been dismissed or all orders or proceedings thereunder affecting the operations or the business of such Borrower stayed, or if the stay of any such order or proceeding shall thereafter be set aside, or if within sixty (60) days after the entry of a decree appointing a trustee, receiver or liquidator (or other similar official) of such Borrower or any substantial part of the property of such Borrower such appointment shall not have been vacated; or
(i) A final judgment whichagainst the Borrower that, together with other outstanding final judgments undischarged against such the Borrower, exceeds an amount (i) exceeds, in the aggregate equal to five percent aggregate, $25,000 or (5%ii) shall have a materially adverse effect upon the business, assets, operations, prospects or condition (financial or otherwise) of such the Borrower's Total Assets (exclusive of amounts covered by available insurance) shall be rendered against such Borrower and if, within thirty (30) days after entry thereof, such judgment shall not have been discharged or execution thereof stayed pending appeal, or if, within thirty (30) days after the expiration of any such stay, such judgment shall not have been discharged; or
(j) Such Borrower or any member of the Controlled Group shall fail to pay when due an amount or amounts aggregating in excess of $500,000 which it is obligated to pay to the PBGC or to a Plan under Title IV of ERISA; or a notice of intent to terminate a Plan or Plans having aggregate Unfunded Liabilities in excess of $500,000 shall be filed under Title IV of ERISA by such Borrower or any member of the Controlled Group, any plan administrator or any combination of the foregoing; or the PBGC shall institute proceedings under Title IV of ERISA to terminate or to cause a trustee to be appointed to administer any such Plan or Plans or a proceeding shall be instituted by a fiduciary of any such Plan or Plans against such Borrower or any member of the Controlled Group to enforce Sections 515 or 4219(c)(5) of ERISA; or a condition shall exist by reason of which the PBGC would be entitled to obtain a decree adjudicating that any such Plan or Plans must be terminated; or there shall occur a complete or partial withdrawal from, or a default, within the meaning of Section 4219(c)(5) of ERISA, with respect to, one or more Multiemployer Plans which could cause such Borrower or one or more members of the Controlled Group to incur a current payment obligation in excess of $500,000; or
(k) Such Borrower if there shall cease to be an investment management company (occur a material adverse change in the business, assets, operations, prospects or a Portfolio thereof) registered under condition, financial or otherwise, of the Investment Company Act, or such Borrower's registration under the Investment Company Act, or that of any Borrower Agent of such Borrower, shall lapse or be suspended; then, then and in any such event, event and subject to the PROVISO at any time thereafter, if any Event the end of Default shall then be continuing with respect to such defaulting Borrower, (i) in the case of any Event of Default specified in paragraphs (g) and (h) abovethis Section 6.1, the Commitments as to such defaulting Borrower shall thereupon automatically be terminated and the principal of and accrued interest on the Loans shall automatically become due and payable without presentment, demand, protest or other notice or formality of any kind, all of which are hereby expressly waived, and (ii) in the case of any other Event of Default specified above, either or both of the following actions Bank may be taken: the Operations Agent may, and upon the written or telephonic (confirmed in writing) request of the Majority Banks shall, by written notice to such defaulting the Borrower declare (Ai) declare the principal obligation of the Bank to make Loans to the Borrower to be terminated, whereupon the same shall terminate, (ii) the Loans of the Borrower, all interest thereon and accrued interest in respect of such defaulting Borrower's Loans all other amounts payable by the Borrower under this Agreement to be forthwith due and payable, whereupon the principal of such Loans, all such interest and accrued interest in respect of all such Loans other amounts shall become and be forthwith due and payable without presentment, demand, protest or notice (other notice of any kindthan as required above), all of which are hereby expressly waived by such the Borrower, and/or (B) terminate PROVIDED that upon the Commitments as to such defaulting Borrower, whereupon the Commitments occurrence of any of the Banks events specified in paragraphs (h) or (i) of this Section 6.1, such termination of the obligations to make Committed Credit Loans hereunder to such defaulting Borrower and acceleration of the maturity of the Loans shall forthwith terminate occur automatically and without any action by the Bank. In case any one or more of the Events of Default shall have occurred and be continuing, and whether or not the Bank shall have accelerated the maturity of the Loans of the Borrower pursuant to the foregoing, the Bank may proceed to protect and enforce its rights by suit in equity, action at law and/or other notice appropriate proceeding, whether for the specific performance of any kind and covenant or agreement contained in this Agreement or any instrument pursuant to which the percentages obligations of the Commitment Fee Borrower to the Bank hereunder are evidenced, and, if such amount shall have become due, by declaration or otherwise, proceed to enforce the payment thereof or any other legal or equitable right of the Bank hereunder. No remedy conferred upon the Bank herein is intended to be exclusive of any other remedy and other fees each and expenses otherwise payable by such defaulting Borrower hereunder accruing from and after the date of termination every remedy shall be reallocated among the remaining Borrowers PRO RATA on the basis cumulative and shall be in addition to every other remedy given hereunder or now or hereafter existing at law or in equity or by statute or any other provision of the percentages set forth opposite such remaining Borrowers' names on SCHEDULE 1, as in effect at the time of such terminationlaw.
Appears in 1 contract
Events of Default; Acceleration. If 6.1 Any or all of the Obligations of the Borrowers to the Administrative Agent and the Banks shall, at the option of the Majority Banks (acting through the Administrative Agent) (except for automatic acceleration referenced in Section 6.2 hereof), and notwithstanding the provisions of any instrument evidencing an Obligation, be immediately due and payable without notice or demand upon the occurrence of any of the following events of default (each individually, an "EVENT OF DEFAULTEvent of Default") shall occur with respect to any Borrower:):
(a) Such Borrower (i) shall default in the payment of any principal payable under this Agreement (including, without limitation, Section 2.1.1 hereof) or any Revolving Credit Note, any Swingline Note or any obligation to reimburse BOA on account of any Loandrawing under any Letter of Credit, interest accrued thereon or fee due hereunder after shall not be paid punctually on the date on which the same becomes due and payable, whether at maturity or by acceleration or otherwise, or (ii) shall default in the payment of any other amount due hereunder after the same becomes have first become due and payable; or
(bii) Such Borrower shall default in any interest or any other sum (except principal) payable to the performance Administrative Agent or the Banks under any of or compliance with any term contained in Sections 9.01(a) or 9.01(b) and such default shall have continued for more than three (3) Banking Days, or such Borrower shall default in the performance of or compliance with any term contained in Sections 8.02(d), 8.02(e), 8.02(g), 8.05, 9.02, 9.03 or 9.04; or
(c) Such Borrower shall default in the performance of or compliance with any term contained herein other than those expressly referred to in this Section 10.01, and such default Loan Documents shall not have been remedied be paid within five (5) Banking Days days after written notice thereof the date on which the same shall have been given to such Borrower by the Operations Agentfirst become due and payable; or
(da) Such any Borrower shall default fail to perform, comply with or observe or shall otherwise breach any one or more of its covenants, agreements or obligations contained in Sections 5.5 through 5.8, inclusive, 5.9(v), 5.13, 5.20, 5.22, 5.23, 5.25 through 5.28 inclusive, 5.30, and 5.31 of this Agreement; or (b) any Borrower shall fail to perform, comply with or observe or shall otherwise breach any one or more of its covenants, agreements or obligations contained herein (other than in the performance of, Sections listed in clause (a) above) or compliance with, any material term contained in any other written agreement with the Operations Agent or any Bank pertaining Loan Document to this Agreement or which such Borrower's Loans, person is a party and such default failure under this clause (b) shall continue for more than fifteen (15) days after the period earlier of grace, if any, specified therein and the date on which any Borrower shall not have been waived pursuant theretofirst actually become aware of such failure or breach or the Administrative Agent or the Banks shall have first notified any Borrower of such failure or breach; or
(eiv) Any representation, any representation or warranty certification or statement made or deemed at any time made by such or on behalf of any Borrower in this Agreement any Loan Document or in any certificate, financial written report or statement furnished to the Administrative Agent or other document delivered the Banks pursuant hereto thereto shall prove to have been false or incorrect in any material respect upon the date when made or deemed to have been made; or
(fA) Except any Borrower or any Subsidiary is in default (which default has not been cured or waived) (as otherwise provided principal or as guarantor or other surety) in this Section 10.01, such Borrower shall default the payment of any principal of or premium or make-whole amount or interest (in the payment amount of at least $500,000) on any payment due on Indebtedness for borrowed money or the deferred purchase price of property, the that is outstanding in an aggregate outstanding principal amount of which at least $10,000,000 beyond any period of grace provided with respect thereto, or (2) any Borrower or any Subsidiary is in excess of five percent default (5%which default has not been cured or waived) of such Borrower's Total Assets, and such default shall continue for more than the period of grace, if any, applicable thereto and shall not have been waived pursuant thereto and shall permit the holder of such Indebtedness to declare such Indebtedness due and payable before its stated maturity, or in the performance of or compliance with any term of any evidence of such any Indebtedness that is outstanding in an aggregate principal amount of at least $10,000,000 or of any mortgage, indenture or other agreement relating theretothereto or any other condition exists, and any and, in either such case, as a consequence of such default shall continue for more than the period of grace, if any, specified therein and shall not have been waived pursuant thereto and shall permit the holder of or condition such Indebtedness has become, or has been declared, or one or more Persons has the right to declare such Indebtedness to be due and payable before its stated maturitymaturity or before its regularly scheduled dates of payment, unless such Borrower shall be contesting such payment or obligation in good faith by appropriate proceedings promptly initiated and diligently conducted and such Borrower shall have set aside on its books such reserves, if any, with respect thereto as are required by GAAP and deemed appropriate by such Borrower and its independent public accountants, PROVIDED, that no Event of Default pursuant to paragraphs (b) or (i3) of this Section 10.01 shall have occurred and be continuing as a result consequence of the occurrence or continuation of any event or condition (which event or condition has not been cured or waived) (other than the passage of time or the right of the holder of Indebtedness to convert such claim having been asserted Indebtedness into equity interests), any Borrower or any Subsidiary has become obligated to purchase or repay Indebtedness before its regular maturity or before its regularly scheduled dates of payment in respect an aggregate outstanding principal amount of at least $10,000,000 or one or more Persons have the rights to require any Borrower or any Subsidiary so to purchase or repay such Indebtedness; or
(gB) Such notwithstanding the foregoing Section 6.1(v)(A), any Event of Default (as such term is defined in the Note Purchase Agreement) shall occur and be continuing under the Note Purchase Agreement or the Senior Notes; or
(vi) any Borrower or its Subsidiaries shall discontinue its business (other than in connection with a permitted merger a) apply for or consolidation of such Borrower) or shall make an assignment for consent to the benefit of creditorsappointment of, or shall fail the taking of possession by, a receiver, custodian, trustee or liquidator of itself or of all or a substantial part of its property, (b) be generally to pay not paying its debts as such debts become due, (c) make a general assignment for the benefit of its creditors, (d) commence a voluntary case under the Federal Bankruptcy Code (as now or shall apply hereafter in effect), (e) file a petition seeking to take advantage of any other law providing for or the relief of debtors, (f) consent to any petition filed against it seeking an order for relief under the Bankruptcy Code or of any other law providing for the relief of debtors, (g) take any action under the laws of its jurisdiction of incorporation or organization similar to any of the foregoing, or (h) take any corporate action for the purpose of effecting any of the foregoing; or
(vii) a proceeding or case shall be commenced against any Borrower or its Subsidiaries in any court seeking (a) the liquidation, reorganization, dissolution, winding up, or composition or readjustment of its debts, (b) the appointment of or taking possession by a trustee, receiver receiver, custodian, liquidator or liquidator (the like of it or other similar official) of such Borrower all or any substantial part of the property or assets of such Borrower or shall commence a case or have its assets, (c) an order for relief entered against it under the federal bankruptcy lawsBankruptcy Code, as now or hereafter constituted(d) similar relief in respect of it, or under any other applicable federal or state bankruptcy, insolvency or other similar law, or if law providing for the relief of debtors; and any action shall be taken to dissolve or liquidate such Borrower proceeding specified in (other than in connection with a permitted merger or consolidation of such Borrower); or
a) through (hd) If, within sixty hereinabove (60A) days after the commencement against such Borrower of a case under the federal bankruptcy laws, as now or hereafter constituted, or any other applicable federal or state bankruptcy, insolvency or other similar law, such case shall have been consented to or shall not have been be dismissed or all orders or proceedings thereunder affecting the operations or the business of such Borrower stayed, or if the stay of any such order or proceeding shall thereafter be set aside, or if within sixty (60) days after the entry of a decree appointing a trustee, receiver or liquidator (or other similar official) of such Borrower or any substantial part of the property of such Borrower such appointment shall not have been vacated; or
(i) A final judgment which, together with other outstanding final judgments against such Borrower, exceeds an amount in the aggregate equal to five percent (5%) of such Borrower's Total Assets (exclusive of amounts covered by available insurance) shall be rendered against such Borrower and if, within thirty (30) days after entry from the initiation thereof, such judgment or (B) shall not have been discharged be contested by such Borrower or execution thereof stayed pending appeal, Subsidiary in good faith and with due diligence; or if, action under the laws of the jurisdiction of incorporation or organization of any Borrower or its Subsidiaries similar to any of the foregoing shall be taken with respect to such Borrower or Subsidiary and such action shall not be dismissed within thirty (30) days after from the expiration of any initiation thereof, or during such stay, thirty (30) day period such judgment Borrower or Subsidiary shall not have been dischargedcontest the same in good faith and with due diligence; or
(jviii) Such a court shall with respect to any Borrower or its Subsidiaries order or enter (a) the liquidation, reorganization, dissolution, or composition or readjustment of its debts, (b) the appointment of a trustee, receiver, custodian, liquidator or the like of it or of all or any substantial part of its assets, (c) order for relief under the Bankruptcy Code, (d) similar relief in respect of it, under any law providing for the relief of debtors, or (e) similar order under the laws of the jurisdiction of incorporation or organization; or
(ix) judgments or orders for the payment of money shall be entered against any Borrower or any of its Subsidiaries by any court, or warrants of attachment or execution or similar process shall be issued or levied against property of any Borrower or its Subsidiaries, which in the aggregate exceeds $500,000 in value (except to the extent fully covered by insurance and the insurance carrier has not reserved the right to disallow such claim), and the same shall continue unsatisfied and in effect for a period of thirty (30) days without being vacated, discharged, satisfied or stayed pending appeal; or
(x) any Borrower, any of its Subsidiaries or any member of the Controlled Group shall fail to pay when due an a material amount or amounts aggregating in excess of $500,000 which it is obligated shall have become liable to pay to the PBGC or to a any Plan under Title IV of ERISA; ERISA or to any Plan under Section 302 of ERISA or Section 412 of the Code or a proceeding shall be instituted by a fiduciary of any Plan against any Borrower, any of its Subsidiaries or any member of a Controlled Group and such proceeding shall not have been dismissed within thirty (30) days thereafter; or, if termination of a Plan could cause any of the Borrowers, any of their Subsidiaries or any member of the Controlled Group to become liable for a material amount with respect to the Plan, notice of intent to terminate a Plan or Plans having aggregate Unfunded Liabilities in excess of $500,000 shall be filed under Title IV of ERISA by such Borrower any Borrower, any of its Subsidiaries or any member of the Controlled Group, any plan administrator or any combination of the foregoing; , or the PBGC shall institute proceedings under Title IV of ERISA to terminate or to cause a trustee to be appointed to administer any such Plan or Plans or a proceeding shall be instituted by a fiduciary of any such Plan or Plans against such Borrower or any member of the Controlled Group to enforce Sections 515 or 4219(c)(5) of ERISA; Plan, or a condition shall exist by reason of which the PBGC would be entitled to obtain a decree adjudicating that any such Plan or Plans must be terminated; or there shall occur a complete if any of the Borrowers, any of their Subsidiaries or partial withdrawal from, or a default, within the meaning of Section 4219(c)(5) of ERISA, with respect to, one or more Multiemployer Plans which could cause such Borrower or one or more members any member of the Controlled Group incurs a material withdrawal liability under Subtitle E of Title IV of ERISA to incur any Plan which is a current payment obligation in excess of $500,000Multi-Employer Plan; or
(kxi) Such any covenant, agreement or obligation of any Borrower contained in or evidenced by any Loan Document shall, prior to the date on which such document shall terminate in accordance with its terms or the express prior written agreement, consent or approval of each of the Banks, cease in any material respect to be legal, valid, binding or enforceable in accordance with the terms thereof; or
(xii) any covenant, agreement or obligation of any Borrower contained in or evidenced by any Ancillary Document shall, prior to the date on which such document shall terminate in accordance with its terms or the express prior written agreement, consent or approval of each of the Banks, cease to be an investment management company legal, valid, binding or enforceable in accordance with the terms thereof, and the Banks shall have determined (in their complete discretion) that such cessation (a) will impair in any material respect any of the rights or a Portfolio thereof) registered remedies of the Administrative Agent or the Banks under any of the Investment Company ActLoan Documents or the Ancillary Documents, or such Borrower's registration under (b) will impair in any material respect the Investment Company Actcondition (financial or otherwise), properties, business or that results of operations of the Borrowers taken as a whole; or
(xiii) any Loan Document or any Ancillary Document shall be canceled, terminated, revoked or rescinded otherwise than in accordance with the express prior written agreement, consent or approval of each of the Banks; or any action at law, suit in equity or other legal proceeding to cancel, revoke or rescind any Loan Document or Ancillary Document shall be commenced by or on behalf of any Borrower Agent or any other person bound thereby, or by any court or any other governmental or regulatory authority or agency of such Borrowercompetent jurisdiction; or any court or any other governmental or regulatory authority or agency of competent jurisdiction shall make a determination that, or shall lapse issue a judgment, order, decree or be suspended; thenruling to the effect that, and any one or more of the Loan Documents or Ancillary Documents, or any one or more of the obligations of any Borrower or any other person under any one or more of the Loan Documents or Ancillary Documents, are illegal, invalid or unenforceable in any such event, material respect in accordance with the terms thereof; and at any time thereafter, if any Event of Default shall then be continuing with respect to such defaulting Borrower, (i) in the case of any Event of Default specified in paragraphs (g) and (h) aboveAncillary Document only, the Commitments as to Banks shall have determined (in their complete discretion) that such defaulting Borrower shall thereupon automatically be terminated and the principal of and accrued interest on the Loans shall automatically become due and payable without presentment, demand, protest or other notice or formality of event (a) will impair in any kind, all of which are hereby expressly waived, and (ii) in the case of material respect any other Event of Default specified above, either or both of the following actions may be taken: the Operations Agent may, and upon the written rights or telephonic (confirmed in writing) request remedies of the Majority Administrative Agent or the Banks shall, by written notice to such defaulting Borrower (A) declare the principal of and accrued interest in respect of such defaulting Borrower's Loans to be forthwith due and payable, whereupon the principal of and accrued interest in respect of such Loans shall become forthwith due and payable without presentment, demand, protest or other notice of under any kind, all of which are hereby expressly waived by such Borrower, and/or (B) terminate the Commitments as to such defaulting Borrower, whereupon the Commitments of the Banks to make Committed Credit Loans hereunder to such defaulting Borrower shall forthwith terminate without Loan Documents or the Ancillary Documents, or (b) will impair in any other notice material respect the condition (financial or otherwise), properties, business or results of any kind and the percentages operations of the Commitment Fee and other fees and expenses otherwise payable by such defaulting Borrower hereunder accruing from and Borrowers taken as a whole; or
(xiv) at any time after the date hereof, except as permitted by Section 5.8(i) hereof, UniFirst shall own, both legally and beneficially, directly or indirectly, less than one hundred percent (100%) of termination shall be reallocated among the remaining Borrowers PRO RATA on the basis all of the percentages set forth opposite such remaining Borrowers' names on SCHEDULE 1issued and outstanding Voting Shares of each of UniTech, as in UniFirst S.A., UniFirst Canada, UniFirst Holdings, UOne, UTwo, UR, Euro Nuclear, Uniformes, ENS Nuklear, RC Air, Unifirst-First Aid, or any Subsidiary of the foregoing formed or acquired after the date hereof provided, that any Subsidiary of UniFirst may issue options to its employees for services so long as, after giving effect at thereto, UniFirst shall continue to own, both legally and beneficially, not less than eighty percent (80%) of all of the time issued and outstanding Voting Shares of such terminationSubsidiary; or
(xv) at any time after the date hereof, the estate of ▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇, descendants of either ▇▇▇▇ ▇. ▇▇▇▇▇▇▇ or ▇▇▇▇▇ ▇▇▇▇▇▇▇, or trusts established for the benefit of any of the foregoing Persons collectively cease to own, legally and beneficially, shares of common stock of UniFirst enabling the holders thereof to elect a majority of the directors of UniFirst.
Appears in 1 contract
Events of Default; Acceleration. If any of the following --------------------------------- events (each an "EVENT OF DEFAULTEvents of Default" or, if the giving of notice or the lapse of time or both is required, then, prior to such notice or lapse of time, "Defaults") shall occur with respect to any Borroweroccur:
(a) Such the Borrower (i) shall default in the payment of fail to pay any principal of the Loans or any Loan, interest accrued thereon or fee due hereunder after Reimbursement Obligation when the same becomes shall become due and payable, whether at the stated date of maturity or by acceleration any accelerated date of maturity or otherwise, or (ii) shall default in the payment of at any other amount due hereunder after the same becomes due and payable; ordate fixed for payment;
(b) Such the Borrower shall default in fail to pay any interest on the performance Loans, any Letter of Credit Fee, the Facility Fee or compliance with other sums due hereunder or under any term contained in Sections 9.01(a) of the other Loan Documents, on or 9.01(b) prior to the second day immediately succeeding the day on which the same shall become due and such default shall have continued payable, whether at the stated date of maturity or any accelerated date of maturity or at any other date fixed for more than three (3) Banking Days, or such Borrower shall default in the performance of or compliance with any term contained in Sections 8.02(d), 8.02(e), 8.02(g), 8.05, 9.02, 9.03 or 9.04; orpayment;
(c) Such the Borrower or any Subsidiary of the Borrower shall default in the performance of or compliance fail to comply with any term of its covenants contained herein other than those expressly referred in Sections 6.9, 6.10, 6.12, 6.15 through 6.19, inclusive, Section 7 or Section 8;
(d) the Borrower fails to perform any term, covenant or agreement contained in this Section 10.01, and such default shall not have been remedied within 6.4 for five (5) Banking Days days after written notice thereof shall have of such failure has been given to such the Borrower by the Operations Agent; or
(d) Such Administrative Agent or the Borrower shall default in the performance offail to perform any other term, covenant or compliance with, any material term agreement contained herein or in any of the other Loan Documents (other than those specified elsewhere in this Section 11) for thirty (30) days after written agreement with notice of such failure has been given to the Operations Borrower by the Administrative Agent or any Bank pertaining to this Agreement or such Borrower's Loans, and such default shall continue for more than the period of graceor, if anysuch performance is not possible within such thirty (30) day period, specified therein the Borrower shall fail to undertake such performance within such thirty (30) day period and shall not have been waived pursuant thereto; orthereafter to diligently and in good faith pursue the completion of such performance;
(e) Any representation, any representation or warranty certification of the Borrower or statement made or deemed made by such Borrower any of its Subsidiaries in this Credit Agreement or any of the other Loan Documents or in any certificate, financial statement or other document or instrument delivered pursuant hereto to or in connection with this Credit Agreement shall prove to have been false or incorrect in any material respect upon the date when made; or;
(f) Except as otherwise provided in this Section 10.01the Borrower or any of its Subsidiaries shall (i) fail to pay at maturity, such Borrower shall default in or within any payment due on Indebtedness for borrowed money or the deferred purchase price of property, the aggregate outstanding principal amount of which is in excess of five percent (5%) of such Borrower's Total Assets, and such default shall continue for more than the applicable period of grace, if anyany obligation for borrowed money in an aggregate amount equal to or greater than 2% of the Consolidated Capitalization of the Borrower or (ii) fail to observe or perform any term, applicable thereto and shall not have been waived pursuant thereto and shall covenant or agreement relating to or contained in any instrument or agreement evidencing or securing any obligation for borrowed money which would permit the holder holders thereof to accelerate such indebtedness or results in the acceleration (whether by declaration or automatically) of such Indebtedness indebtedness, in either case in an aggregate amount equal to declare such Indebtedness due and payable before its stated maturity, or in greater than 2% of the performance Consolidated Capitalization of or compliance with any term of any evidence of such Indebtedness or of any mortgage, indenture or other agreement relating thereto, and any such default shall continue for more than the period of grace, if any, specified therein and shall not have been waived pursuant thereto and shall permit the holder of such Indebtedness to declare such Indebtedness due and payable before its stated maturity, unless such Borrower shall be contesting such payment or obligation in good faith by appropriate proceedings promptly initiated and diligently conducted and such Borrower shall have set aside on its books such reserves, if any, with respect thereto as are required by GAAP and deemed appropriate by such Borrower and its independent public accountants, PROVIDED, that no Event of Default pursuant to paragraphs (b) or (i) of this Section 10.01 shall have occurred and be continuing as a result of such claim having been asserted in respect of such Indebtedness; orBorrower;
(g) Such the Borrower shall discontinue or any of its business (other than in connection with a permitted merger or consolidation of such Borrower) or Material Subsidiaries shall make an assignment for the benefit of creditors, or shall admit in writing its inability to pay or generally fail generally to pay its debts as such debts they mature or become due, or shall petition or apply for or consent to the appointment of or taking possession by a trustee, receiver or liquidator (trustee or other similar official) custodian, liquidator or receiver of such the Borrower or any of its Material Subsidiaries or of any substantial part of the property or assets of such the Borrower or any of its Material Subsidiaries or shall commence a any case or have an other proceeding relating to the Borrower or any of its Material Subsidiaries under any bankruptcy, reorganization, arrangement, insolvency, readjustment of debt, dissolution or liquidation or similar law of any jurisdiction, now or hereafter in effect, or shall take any action to authorize or in furtherance of any of the foregoing, or if any such petition or application shall be filed or any such case or other proceeding shall be commenced against the Borrower or any of its Material Subsidiaries and the Borrower or any of its Material Subsidiaries shall indicate its approval thereof, consent thereto or acquiescence therein;
(h) a decree or order is entered appointing any such trustee, custodian, liquidator or receiver or adjudicating the Borrower or any of its Material Subsidiaries bankrupt or insolvent, or approving a petition in any such case or other proceeding, or a decree or order for relief is entered against it in respect of the Borrower or any Material Subsidiary of the Borrower in an involuntary case under the federal bankruptcy laws, laws as now or hereafter constituted, or any other applicable federal or state bankruptcy, insolvency or other similar law, or if any action shall be taken to dissolve or liquidate such Borrower (other than in connection with a permitted merger or consolidation of such Borrower); or
(h) If, within sixty (60) days after the commencement against such Borrower of a case under the federal bankruptcy laws, as now or hereafter constituted, or any other applicable federal or state bankruptcy, insolvency or other similar law, such case shall have been consented to or shall not have been dismissed or all orders or proceedings thereunder affecting the operations or the business of such Borrower stayed, or if the stay of any such order or proceeding shall thereafter be set aside, or if within sixty (60) days after the entry of a decree appointing a trustee, receiver or liquidator (or other similar official) of such Borrower or any substantial part of the property of such Borrower such appointment shall not have been vacated; or;
(i) A there shall remain in force, undischarged, unsatisfied and unstayed, for more than thirty (30) days, whether or not consecutive, any final judgment whichagainst the Borrower or any of its Subsidiaries that, together with other outstanding final judgments judgments, undischarged and not covered by insurance, against such Borrower, Person(s) exceeds an amount in the aggregate equal to five percent (5%) of such the Consolidated Net Worth of the Borrower's Total Assets (exclusive of amounts covered by available insurance) shall be rendered against such Borrower and if, within thirty (30) days after entry thereof, such judgment shall not have been discharged or execution thereof stayed pending appeal, or if, within thirty (30) days after the expiration of any such stay, such judgment shall not have been discharged; or
(j) Such Borrower or any member of the Controlled Group shall fail to pay when due an amount or amounts aggregating a Change in excess of $500,000 which it is obligated to pay to the PBGC or to a Plan under Title IV of ERISA; or a notice of intent to terminate a Plan or Plans having aggregate Unfunded Liabilities in excess of $500,000 shall be filed under Title IV of ERISA by such Borrower or any member of the Controlled Group, any plan administrator or any combination of the foregoing; or the PBGC shall institute proceedings under Title IV of ERISA to terminate or to cause a trustee to be appointed to administer any such Plan or Plans or a proceeding shall be instituted by a fiduciary of any such Plan or Plans against such Borrower or any member of the Controlled Group to enforce Sections 515 or 4219(c)(5) of ERISA; or a condition shall exist by reason of which the PBGC would be entitled to obtain a decree adjudicating that any such Plan or Plans must be terminated; or there shall occur a complete or partial withdrawal from, or a default, within the meaning of Section 4219(c)(5) of ERISA, with respect to, one or more Multiemployer Plans which could cause such Borrower or one or more members of the Controlled Group to incur a current payment obligation in excess of $500,000; or
(k) Such Borrower shall cease to be an investment management company (or a Portfolio thereof) registered under the Investment Company Act, or such Borrower's registration under the Investment Company Act, or that of any Borrower Agent of such Borrower, shall lapse or be suspendedControl occurs; then, and in any such event, and at any time thereafter, if any Event of Default shall then so long as the same may be continuing with respect to such defaulting Borrower, (i) in the case of any Event of Default specified in paragraphs (g) and (h) abovecontinuing, the Commitments as to such defaulting Borrower shall thereupon automatically be terminated and the principal of and accrued interest on the Loans shall automatically become due and payable without presentment, demand, protest or other notice or formality of any kind, all of which are hereby expressly waived, and (ii) in the case of any other Event of Default specified above, either or both of the following actions may be taken: the Operations Administrative Agent may, and upon the written or telephonic (confirmed in writing) request of the Majority Banks Required Lenders shall, by written notice in writing to such defaulting the Borrower (A) declare all amounts owing with respect to this Credit Agreement, the principal of Notes, the other Loan Documents and accrued interest in respect of such defaulting Borrower's Loans all Reimbursement Obligations to be be, and they shall thereupon forthwith due and payablebecome, whereupon the principal of and accrued interest in respect of such Loans shall become forthwith immediately due and payable without presentment, demand, protest or other notice of any kind, all of which are hereby expressly waived by the Borrower; provided that in the event of any Event of Default specified in Section 11(g) or Section 11(h), all such Borrower, and/or (B) terminate amounts shall become immediately due and payable automatically and without any requirement of notice from the Commitments as to such defaulting Borrower, whereupon the Commitments Administrative Agent or any Lender. If any one or more of the Banks to make Committed Credit Loans Events of Default specified in Section 11(g) or Section 11(h) shall occur, any unused portion of the credit hereunder to such defaulting Borrower shall forthwith terminate without and each of the Lenders shall be relieved of all obligations to make Loans hereunder and the Administrative Agent shall be relieved of all further obligations to issue, extend or renew Letters of Credit and the Borrower shall immediately Cash Collateralize the Reimbursement Obligations related to all Letters of Credit which are outstanding and undrawn. If any other Event of Default shall have occurred and be continuing, the Administrative Agent, upon the request of the Required Lenders, shall, by notice to the Borrower, terminate the unused portion of the credit hereunder, and upon such notice being given such unused portion of the credit hereunder shall terminate immediately and each of the Lenders shall be relieved of all further obligations to make Loans and the Administrative Agent shall be relieved of all further obligations to issue, extend or renew Letters of Credit and the Borrower shall immediately Cash Collateralize the Reimbursement Obligations related to all Letters of Credit which are outstanding and undrawn. If any such notice is given to the Borrower, the Administrative Agent will forthwith furnish a copy thereof to each of the Lenders. No termination of the credit hereunder shall relieve the Borrower of any kind and the percentages of the Commitment Fee and Obligations or any of its existing obligations to the Lenders arising under other fees and expenses otherwise payable by such defaulting Borrower hereunder accruing from and after the date of termination shall be reallocated among the remaining Borrowers PRO RATA on the basis of the percentages set forth opposite such remaining Borrowers' names on SCHEDULE 1, as in effect at the time of such terminationagreements or instruments.
Appears in 1 contract
Sources: Revolving Credit Agreement (United States Cellular Corp)
Events of Default; Acceleration. If Any or all Obligations shall, at the option of one or both of the Secured Parties, become immediately due and payable, without presentment, protest, notice or demand, upon the occurrence of any of the following events (each an "EVENT OF DEFAULT") shall occur with respect to any Borrowerof default:
(a) Such Borrower if any payment of a Deferred Payment (ias defined in the Interest Transfer Agreement) shall default in the payment of principal of any Loan, interest accrued thereon or fee due hereunder not be fully paid after the same becomes due shall fall due, subject to any applicable notice and payable, whether at maturity or by acceleration or otherwise, or (ii) shall default in the payment of any other amount due hereunder after the same becomes due and payablegrace periods; or,
(b) Such Borrower shall if default exists in the performance due observance of any covenants or compliance agreements of Debtor contained herein or in any other agreements with any term contained in Sections 9.01(athe Secured Parties including without limitation the Interest Transfer Agreement and is not remedied within thirty (30) or 9.01(b) and days after either Secured Party shall have delivered to Debtor a written notice requesting that such default shall have continued for more than three (3) Banking Days, or such Borrower shall default in the performance of or compliance with any term contained in Sections 8.02(d), 8.02(e), 8.02(g), 8.05, 9.02, 9.03 or 9.04be remedied; or,
(c) Such Borrower shall default in the performance of or compliance with any term contained herein other than those expressly referred if Debtor becomes insolvent as evidenced by an inability to in this Section 10.01, and such default shall not have been remedied within five (5) Banking Days after written notice thereof shall have been given to such Borrower by the Operations Agentpay its debts as they mature; or,
(d) Such Borrower shall default in if Debtor becomes bankrupt, provided that with respect to an involuntary bankruptcy, the performance of, bankruptcy is not released or compliance with, any material term contained in any other written agreement with the Operations Agent or any Bank pertaining to this Agreement or such Borrower's Loans, and such default shall continue for more than the period discharged within ninety (90) days of grace, if any, specified therein and shall not have been waived pursuant theretoits filing; or,
(e) Any representation, warranty certification or statement made or deemed made by such Borrower in this Agreement or in any certificate, financial statement or other document delivered pursuant hereto shall prove to have been false or incorrect in any material respect when made; or
(f) Except as otherwise provided in this Section 10.01, such Borrower shall default in any payment due on Indebtedness for borrowed money or the deferred purchase price of property, the aggregate outstanding principal amount of which is in excess of five percent (5%) of such Borrower's Total Assets, and such default shall continue for more than the period of grace, if any, applicable thereto and shall not have been waived pursuant thereto and shall permit the holder of such Indebtedness to declare such Indebtedness due and payable before its stated maturity, or in the performance of or compliance with any term of any evidence of such Indebtedness or of any mortgage, indenture or other agreement relating thereto, and any such default shall continue for more than the period of grace, if any, specified therein and shall not have been waived pursuant thereto and shall permit the holder of such Indebtedness to declare such Indebtedness due and payable before its stated maturity, unless such Borrower shall be contesting such payment or obligation in good faith by appropriate proceedings promptly initiated and diligently conducted and such Borrower shall have set aside on its books such reserves, if any, with respect thereto as are required by GAAP and deemed appropriate by such Borrower and its independent public accountants, PROVIDED, that no Event of Default pursuant to paragraphs (b) or (i) of this Section 10.01 shall have occurred and be continuing as a result of such claim having been asserted in respect of such Indebtedness; or
(g) Such Borrower shall discontinue its business (other than in connection with a permitted merger or consolidation of such Borrower) or shall make Debtor makes an assignment for the benefit of its creditors, or shall fail generally to pay its debts as such debts become due, or shall apply for or consent ; or,
(f) if Debtor consents to the appointment of a trustee or taking possession by receiver of all or a trustee, receiver or liquidator (or other similar official) of such Borrower or any substantial part of the property its properties or assets of such Borrower or shall commence a case or have an order for relief entered against it under the federal bankruptcy lawsappointment is made without its consent, as now or hereafter constituted, or any other applicable federal or state bankruptcy, insolvency or other similar law, or and not vacated within thirty (30) days; or,
(g) if any action shall be taken to dissolve warranty, statement or liquidate such Borrower (other than in connection with a permitted merger or consolidation representation by Debtor contained herein proves materially incorrect as of such Borrower); or
(h) If, the date given and is not corrected within sixty (60) days after one or both Secured Parties shall have delivered to Debtor a written notice requesting such correction; or,
(h) the commencement against acceleration of the maturity of the indebtedness of Debtor to any other secured creditor of Debtor (excepting only any holder of purchase money security interests to the extent of such Borrower of a case interests) under the federal bankruptcy lawsany indenture, as now or hereafter constitutedagreement, judicial order, decree, or undertaking, and after five (5) days the acceleration is not rescinded or the accelerated obligation satisfied in full; provided, however, that if the acceleration of the maturity of the indebtedness of Debtor to any other applicable federal secured creditor of Debtor is cured within 15 days of the acceleration, the Secured Parties will rescind the acceleration hereunder; or,
(i) failure of the Debtor to furnish financial information or state bankruptcyto permit the inspection of books and records, insolvency or other similar lawall as required hereunder, such case shall have been consented to or shall not have been dismissed or all orders or proceedings thereunder affecting the operations or the business of such Borrower stayed, or if the stay of any such order or proceeding shall thereafter be set aside, or if within continuing for more than sixty (60) days after the entry of a decree appointing a trustee, receiver or liquidator (or other similar official) of such Borrower or any substantial part of the property of such Borrower such appointment shall not have been vacated; or
(i) A final judgment which, together with other outstanding final judgments against such Borrower, exceeds an amount in the aggregate equal to five percent (5%) of such Borrower's Total Assets (exclusive of amounts covered by available insurance) shall be rendered against such Borrower and if, within thirty (30) days after entry thereof, such judgment shall not have been discharged or execution thereof stayed pending appeal, or if, within thirty (30) days after the expiration of any such stay, such judgment shall not have been discharged; or
(j) Such Borrower or any member of the Controlled Group shall fail to pay when due an amount or amounts aggregating in excess of $500,000 which it is obligated to pay to the PBGC or to a Plan under Title IV of ERISA; or a notice of intent to terminate a Plan or Plans having aggregate Unfunded Liabilities in excess of $500,000 shall be filed under Title IV of ERISA by such Borrower or any member of the Controlled Group, any plan administrator or any combination of the foregoing; or the PBGC shall institute proceedings under Title IV of ERISA to terminate or to cause a trustee to be appointed to administer any such Plan or Plans or a proceeding shall be instituted by a fiduciary of any such Plan or Plans against such Borrower or any member of the Controlled Group to enforce Sections 515 or 4219(c)(5) of ERISA; or a condition shall exist by reason of which the PBGC would be entitled to obtain a decree adjudicating that any such Plan or Plans must be terminated; or there shall occur a complete or partial withdrawal from, or a default, within the meaning of Section 4219(c)(5) of ERISA, with respect to, one or more Multiemployer Plans which could cause such Borrower or one or more members of the Controlled Group to incur a current payment obligation in excess of $500,000; or
(k) Such Borrower shall cease to be an investment management company (or a Portfolio thereof) registered under the Investment Company Act, or such Borrower's registration under the Investment Company Act, or that of any Borrower Agent of such Borrower, shall lapse or be suspended; then, and in any such event, and at any time thereafter, if any Event of Default shall then be continuing with respect to such defaulting Borrower, (i) in the case of any Event of Default specified in paragraphs (g) and (h) above, the Commitments as to such defaulting Borrower shall thereupon automatically be terminated and the principal of and accrued interest on the Loans shall automatically become due and payable without presentment, demand, protest or other notice or formality of any kind, all of which are hereby expressly waived, and (ii) in the case of any other Event of Default specified above, either or both of the following actions may be taken: the Operations Agent may, and upon the written or telephonic (confirmed in writing) request of the Majority Banks shall, by written notice to such defaulting Borrower (A) declare the principal of and accrued interest in respect of such defaulting Borrower's Loans to be forthwith due and payable, whereupon the principal of and accrued interest in respect of such Loans shall become forthwith due and payable without presentment, demand, protest or other notice of any kind, all of which are hereby expressly waived by such Borrower, and/or (B) terminate the Commitments as to such defaulting Borrower, whereupon the Commitments of the Banks to make Committed Credit Loans hereunder to such defaulting Borrower shall forthwith terminate without any other notice of any kind and the percentages of the Commitment Fee and other fees and expenses otherwise payable by such defaulting Borrower hereunder accruing from and after the date of termination shall be reallocated among the remaining Borrowers PRO RATA on the basis of the percentages set forth opposite such remaining Borrowers' names on SCHEDULE 1, as in effect at the time of such terminationnotice.
Appears in 1 contract
Sources: Security Agreement (Caprius Inc)
Events of Default; Acceleration. If any one or more of the following conditions or events (each an "EVENT OF DEFAULT"“Events of Default”) shall occur with respect to any Borroweroccur:
(a) Such Borrower (i) default shall default occur in the payment of principal of interest on any Loan, interest accrued thereon or fee due hereunder after Note when the same becomes due and payable, whether at maturity or by acceleration or otherwise, or and such default shall have continued for more than five (ii5) shall default in the payment of any other amount due hereunder after the same becomes due and payabledays; or
(b) Such Borrower default shall occur in the making of any required redemption of any of the Notes as provided in Section 10.1, or in the making of any other payment of principal of any Note or the premium thereon at the expressed or any accelerated maturity date or at any date fixed for redemption; or
(c) the Company shall default in the performance of or compliance with any term contained in Sections 9.01(a) 11.3, 11.4, 11.5, 11.6 or 9.01(b) and such default shall have continued for more than three (3) Banking Days, or such Borrower shall default in the performance of or compliance with any term contained in Sections 8.02(d), 8.02(e), 8.02(g), 8.05, 9.02, 9.03 or 9.0411.11; or
(cd) Such Borrower the Company shall default in the performance of or compliance with any term contained herein other than those expressly referred to above in this Section 10.01, 13 and such default shall not have been remedied within five thirty (530) Banking Days days after the earlier of (i) the day on which the President, Treasurer or a Senior or Executive Vice President first obtains knowledge of such default or (ii) the date on which written notice thereof shall have been given to such Borrower the Company by the Operations Agentany holder of any Note; or
(de) Such Borrower any representation or warranty made in writing by or on behalf of the Company herein or pursuant hereto or in connection with the consummation of the issuance and delivery of the Notes shall have been false or incorrect in any material respect at the time as of which made; or
(f) the Company or any Subsidiary shall default (as principal or guarantor or other surety) in the performance ofpayment of any principal of or premium, if any, or compliance with, interest on any material term contained in any Indebtedness for borrowed money (other written agreement with than the Operations Agent or any Bank pertaining to this Agreement or such Borrower's Loans, Notes) the aggregate outstanding principal balance of which shall then exceed $5,000,000 and such default shall continue for more than the period of grace, if any, specified therein and shall not have been waived pursuant thereto; or
(e) Any representation, warranty certification or statement made the Company or deemed made by such Borrower in this Agreement or in any certificate, financial statement or other document delivered pursuant hereto shall prove to have been false or incorrect in any material respect when made; or
(f) Except as otherwise provided in this Section 10.01, such Borrower Subsidiary shall default in any payment due on Indebtedness for borrowed money or the deferred purchase price of property, the aggregate outstanding principal amount of which is in excess of five percent (5%) of such Borrower's Total Assets, and such default shall continue for more than the period of grace, if any, applicable thereto and shall not have been waived pursuant thereto and shall permit the holder of such Indebtedness to declare such Indebtedness due and payable before its stated maturity, or in the performance of or compliance with any term of any evidence of such Indebtedness for borrowed money or of any mortgage, indenture or any other agreement relating thereto, thereto and any the effect of such default shall continue for more than the period of grace, if any, specified therein and shall not have been waived pursuant thereto and shall is to permit the holder acceleration of the maturity of such Indebtedness for borrowed money prior to declare such Indebtedness due and payable before its stated maturity, unless such Borrower shall be contesting such payment maturity or obligation in good faith by appropriate proceedings promptly initiated and diligently conducted and such Borrower shall have set aside on prior to its books such reserves, if any, with respect thereto as are required by GAAP and deemed appropriate by such Borrower and its independent public accountants, PROVIDED, that no Event regularly scheduled dates of Default pursuant to paragraphs (b) or (i) of this Section 10.01 shall have occurred and be continuing as a result of such claim having been asserted in respect of such Indebtednesspayment; or
(g) Such Borrower the Company or any Subsidiary shall discontinue commence a voluntary case under the federal bankruptcy laws or take advantage of any insolvency law, or shall admit in writing its business (other than in connection with a permitted merger insolvency or consolidation of such Borrower) its inability to pay its debts as they become due, or shall make an assignment for the benefit of creditors, or shall fail apply for, consent to or acquiesce in the appointment of, or taking possession by, a trustee, receiver, custodian or similar official or agent for itself or any substantial part of its Property, or shall take any corporate action authorizing or seeking to effect any of the foregoing, or shall generally to not pay its debts as such debts they become due, or shall apply for or consent to the appointment of or taking possession by ; or
(h) a trustee, receiver receiver, custodian or liquidator (similar official or agent shall be appointed for the Company or any Subsidiary by a court or other similar officialgovernmental authority or agency having jurisdiction in the premises or for any substantial part of its Property, and is not discharged for a period of thirty (30) days from the date of such Borrower its entry, or all or any substantial part of the property or assets Property of such Borrower or shall commence a case or have an order for relief entered against it under the federal bankruptcy laws, as now or hereafter constituted, Company or any other applicable federal Subsidiary is condemned by eminent domain, seized or state bankruptcy, insolvency or other similar law, or if any action shall be taken to dissolve or liquidate such Borrower (other than in connection with a permitted merger or consolidation of such Borrower); or
(h) If, within sixty (60) days after the commencement against such Borrower of a case under the federal bankruptcy laws, as now or hereafter constituted, or any other applicable federal or state bankruptcy, insolvency or other similar law, such case shall have been consented to or shall not have been dismissed or all orders or proceedings thereunder affecting the operations or the business of such Borrower stayed, or if the stay of otherwise appropriated by any such order or proceeding shall thereafter be set aside, or if within sixty (60) days after the entry of a decree appointing a trustee, receiver or liquidator (or other similar official) of such Borrower or any substantial part of the property of such Borrower such appointment shall not have been vacatedgovernmental authority; or
(i) A final judgment whichthe Company or any Subsidiary shall have a court order or decree for relief in any involuntary case under the federal bankruptcy laws entered against it, together with and such court order or decree shall remain undismissed and unstayed for sixty (60) days, or a petition seeking reorganization, readjustment, arrangement, composition, or other outstanding final judgments against such Borrower, exceeds an amount in similar relief as to it under the aggregate equal to five percent (5%) federal bankruptcy laws or any similar law for the relief of such Borrower's Total Assets (exclusive of amounts covered by available insurance) debtors shall be rendered brought against such Borrower it and if, within thirty shall be consented to by it or shall remain undismissed and unstayed for sixty (3060) days after entry thereof, such judgment shall not have been discharged or execution thereof stayed pending appeal, or if, within thirty (30) days after the expiration of any such stay, such judgment shall not have been dischargeddays; or
(j) Such Borrower one or any member more final judgments for payment of money exceeding in the Controlled Group shall fail to pay when due an amount or amounts aggregating aggregate $5,000,000 (in excess of $500,000 which it is obligated to pay to the PBGC or to a Plan under Title IV of ERISA; or a notice of intent to terminate a Plan or Plans having aggregate Unfunded Liabilities in excess of $500,000 insurance available therefor) shall be filed under Title IV of ERISA by such Borrower rendered against the Company or any member Subsidiary and shall remain undischarged for a period of the Controlled Group, any plan administrator or any combination of the foregoing; or the PBGC sixty (60) days during which execution shall institute proceedings under Title IV of ERISA to terminate or to cause a trustee to not be appointed to administer any such Plan or Plans or a proceeding shall be instituted by a fiduciary of any such Plan or Plans against such Borrower or any member of the Controlled Group to enforce Sections 515 or 4219(c)(5) of ERISA; or a condition shall exist by reason of which the PBGC would be entitled to obtain a decree adjudicating that any such Plan or Plans must be terminated; or there shall occur a complete or partial withdrawal from, or a default, within the meaning of Section 4219(c)(5) of ERISA, with respect to, one or more Multiemployer Plans which could cause such Borrower or one or more members of the Controlled Group to incur a current payment obligation in excess of $500,000; or
(k) Such Borrower shall cease to be an investment management company (or a Portfolio thereof) registered under the Investment Company Act, or such Borrower's registration under the Investment Company Act, or that of any Borrower Agent of such Borrower, shall lapse or be suspendedeffectively stayed; then, and in any such event, and at any time thereafter, if the event that any Event of Default described in subdivisions (a) through (f), (h) or (j) has occurred and is continuing, any holder or holders of at least 25% in principal amount of the Notes at the time outstanding may at any time (unless all defaults shall theretofore have been remedied) at its or their option, by written notice or notices to the Company, declare all of the Notes to be due and payable, whereupon the same shall forthwith mature and become due and payable, together with premium, if any, and interest accrued thereon, without presentment, demand, protest or notice, all of which are hereby waived, provided that during the existence of an Event of Default described in subdivision (a) or (b) of this Section 13.1, and irrespective of whether the holder or holders of at least 25% in principal amount of Notes then outstanding have declared all the Notes to be continuing due and payable, any holder of Notes which has not consented to any waiver with respect to such defaulting BorrowerEvent of Default may, (i) in at its option, by written notice to the case Company, declare the Notes then held by such holder to be due and payable, whereupon the same shall forthwith become due and payable, together with premium, if any, and interest accrued thereon, without presentment, demand, protest or notice, all of which are hereby waived. When any Event of Default specified described in paragraphs subdivisions (g) and or (hi) aboveof Section 13.1 has occurred, the Commitments as to such defaulting Borrower then all outstanding Notes shall thereupon automatically be terminated and the principal of and accrued interest on the Loans shall automatically immediately become due and payable without presentment, demand, protest demand or other notice or formality of any kind, all of which are hereby expressly waived, and (ii) in the case of any other Event of Default specified above, either or both of the following actions may be taken: the Operations Agent may, and upon the written or telephonic (confirmed in writing) request of the Majority Banks shall, by written notice to such defaulting Borrower (A) declare the principal of and accrued interest in respect of such defaulting Borrower's Loans to be forthwith due and payable, whereupon the principal of and accrued interest in respect of such Loans shall become forthwith due and payable without presentment, demand, protest or other notice of any kind. Upon the Notes becoming due and payable as a result of any Event of Default as aforesaid, all of which are hereby expressly waived by such Borrower, and/or (B) terminate the Commitments as Company will forthwith pay to such defaulting Borrower, whereupon the Commitments holders of the Banks Notes the entire principal and interest accrued on the Notes and, to make Committed Credit Loans hereunder the extent not prohibited by applicable law, an amount as liquidated damages for the loss of the bargain evidenced hereby (and not as a penalty) equal to the Make-Whole Premium determined as of the date on which the Notes shall so become due and payable. No course of dealing on the part of the holder or holders of any Notes nor any delay or failure on the part of any holder of Notes to exercise any right shall operate as a waiver of such defaulting Borrower right or otherwise prejudice such holder’s rights, powers and remedies. If any holder of any Note shall forthwith terminate without give any notice or take any other action with respect to a claimed default under this Agreement, or if any Person shall give notice of to the Company or take any kind and the percentages other action with respect to a claimed default of the Commitment Fee and other fees and expenses otherwise payable by such defaulting Borrower hereunder accruing from and after type referred to in subdivision (f) of this Section 13.1, the date of termination shall be reallocated among the remaining Borrowers PRO RATA on the basis Company will forthwith give written notice thereof to all holders of the percentages set forth opposite such remaining Borrowers' names on SCHEDULE 1, as in effect Notes at the time outstanding, describing the notice or action and the nature of such terminationthe claimed default.
Appears in 1 contract
Sources: Note Agreement (Unitil Corp)
Events of Default; Acceleration. If any of the following events (each an "EVENT OF DEFAULTEvents of Default") shall occur with respect to any Borroweroccur:
(a) Such Borrower (i) if the Company shall default in the payment of fail to pay any principal of any Loan, interest accrued thereon or fee due hereunder after the Loans when the same becomes shall become due and payable, whether at the stated date of maturity or by acceleration any accelerated date of maturity or otherwise, or (ii) shall default in the payment of at any other amount due hereunder after the same becomes due and payable; ordate fixed for payment;
(b) Such Borrower if the Company shall default in fail to pay any interest on the performance Loans, Facility Fee, or other sums due hereunder or under any of the Loan Documents, when the same shall become due and payable, whether at the stated date of maturity or compliance with any term contained in Sections 9.01(a) accelerated date of maturity or 9.01(b) at any other date fixed for payment, and such default failure shall have continued remain uncured for more than three (3) Banking Business Days, or such Borrower shall default in the performance of or compliance with any term contained in Sections 8.02(d), 8.02(e), 8.02(g), 8.05, 9.02, 9.03 or 9.04; or;
(c) Such Borrower if the Company shall default fail to comply with its covenants contained in the performance of sec. 6 or compliance with any term contained herein other than those expressly referred to in this Section 10.01, and such default shall not have been remedied within five (5) Banking Days after written notice thereof shall have been given to such Borrower by the Operations Agent; or7 hereof;
(d) Such Borrower if the Company shall default fail to perform any term, covenant or agreement herein contained (other than those specified in subsections (a), (b) and (c) above) for 15 days after written notice of such failure has been given to the performance of, or compliance with, any material term contained in any other written agreement with Company by the Operations Agent or any Bank pertaining to this Agreement or such Borrower's Loans, and such default shall continue for more than the period of grace, if any, specified therein and shall not have been waived pursuant thereto; orBank;
(e) Any representation, if any representation or warranty certification of the Company or statement made or deemed made by such Borrower the Parent in this Agreement or any other Loan Document or in any certificate, financial statement document or other document instrument delivered pursuant hereto to or in connection with this Agreement or any other Loan Document shall prove to have been false or incorrect in any material respect upon the date when made; or;
(f) Except as otherwise provided in this Section 10.01if the Company or any of its Subsidiaries or the Parent shall fail to pay at maturity, such Borrower shall default in or within any payment due on Indebtedness applicable period of grace, any obligation for borrowed money or the deferred purchase price credit received or in respect of property, the aggregate outstanding principal amount of which is capitalized leases in excess of five percent (5%) $100,000 in aggregate principal amount, or fail to observe or perform any term, covenant or agreement contained in any agreement by which it is bound, evidencing or securing such borrowed money or credit received or in respect of any capitalized leases for such Borrower's Total Assets, and such default shall continue for more than the period of grace, time as would permit (assuming the giving of appropriate notice if any, applicable thereto and shall not have been waived pursuant thereto and shall permit required) the holder of such Indebtedness to declare such Indebtedness due and payable before its stated maturity, or in the performance of or compliance with any term of any evidence of such Indebtedness holders thereof or of any mortgage, indenture or other agreement relating thereto, and any such default shall continue for more than obligations issued thereunder to accelerate the period of grace, if any, specified therein and shall not have been waived pursuant thereto and shall permit the holder of such Indebtedness to declare such Indebtedness due and payable before its stated maturity, unless such Borrower shall be contesting such payment or obligation in good faith by appropriate proceedings promptly initiated and diligently conducted and such Borrower shall have set aside on its books such reserves, if any, with respect thereto as are required by GAAP and deemed appropriate by such Borrower and its independent public accountants, PROVIDED, that no Event of Default pursuant to paragraphs (b) or (i) of this Section 10.01 shall have occurred and be continuing as a result of such claim having been asserted in respect of such Indebtedness; ormaturity thereof;
(g) Such Borrower shall discontinue if the Company or any of its business (other than in connection with a permitted merger Subsidiaries or consolidation of such Borrower) or shall make the Parent makes an assignment for the benefit of creditors, or shall fail generally admits in writing its inability to pay or fails to pay its debts as such debts they mature or become due, or shall apply petitions or applies for or consent to the appointment of or taking possession by a trustee, receiver or liquidator (trustee or other similar official) custodian, liquidator or receiver of such Borrower the Company or any of its Subsidiaries or the Parent or of any substantial part of the property or assets of the Company or any of its Subsidiaries or the Parent under any bankruptcy, reorganization, arrangement, insolvency, readjustment of debt, dissolution or liquidation or similar law of any jurisdiction, now or hereafter in effect, or takes any action to authorize or in furtherance of any of the foregoing, or if any such Borrower petition or shall commence a application is filed or any such case or have an other proceeding is commenced against the Company or any of its Subsidiaries or the Parent and the Company or any of its Subsidiaries or the Parent indicates its approval thereof, consent thereto or acquiescence therein;
(h) if a decree or order is entered appointing any such trustee, custodian, liquidator or receiver or adjudicating the Company or any of its Subsidiaries or the Parent bankrupt or insolvent, or approving a petition in any such case or other proceeding, or a decree or order for relief is entered against it in respect of the Company or any Subsidiary or the Parent in an involuntary case under the federal Federal (or equivalent Canadian) bankruptcy laws, laws as now or hereafter constituted, or any other applicable federal or state bankruptcy, insolvency or other similar law, or if any action shall be taken to dissolve or liquidate such Borrower (other than in connection with a permitted merger or consolidation of such Borrower); or
(h) If, within sixty (60) days after the commencement against such Borrower of a case under the federal bankruptcy laws, as now or hereafter constituted, or any other applicable federal or state bankruptcy, insolvency or other similar law, such case shall have been consented to or shall not have been dismissed or all orders or proceedings thereunder affecting the operations or the business of such Borrower stayed, or if the stay of any such order or proceeding shall thereafter be set aside, or if within sixty (60) days after the entry of a decree appointing a trustee, receiver or liquidator (or other similar official) of such Borrower or any substantial part of the property of such Borrower such appointment shall not have been vacated; or;
(i) A if there shall remain in force, unsatisfied and unstayed, for more than thirty days, whether or not consecutive, any final judgment against the Company or any of its Subsidiaries which, together with other outstanding final judgments judgments, undischarged, against such Borrower, Person(s) exceeds an amount in the aggregate equal to five percent (5%) of such Borrower's Total Assets (exclusive of amounts covered by available insurance) shall be rendered against such Borrower and if, within thirty (30) days after entry thereof, such judgment shall not have been discharged or execution thereof stayed pending appeal, or if, within thirty (30) days after the expiration of any such stay, such judgment shall not have been discharged; or$50,000;
(j) Such Borrower or any member of if the Controlled Group shall fail to pay when due an amount or amounts aggregating in excess of $500,000 which it is obligated to pay to the PBGC or to a Plan under Title IV of ERISA; or a notice of intent to terminate a Plan or Plans having aggregate Unfunded Liabilities in excess of $500,000 shall be filed under Title IV of ERISA by such Borrower or any member of the Controlled Group, any plan administrator or any combination of the foregoing; or the PBGC shall institute proceedings under Title IV of ERISA to terminate or to cause a trustee to be appointed to administer any such Plan or Plans or a proceeding shall be instituted by a fiduciary of any such Plan or Plans against such Borrower or any member of the Controlled Group to enforce Sections 515 or 4219(c)(5) of ERISA; or a condition shall exist by reason of which the PBGC would be entitled to obtain a decree adjudicating that any such Plan or Plans must be terminated; or there shall occur a complete or partial withdrawal from, or a default, within the meaning of Section 4219(c)(5) of ERISA, with respect to, one or more Multiemployer Plans which could cause such Borrower or one or more members of the Controlled Group to incur a current payment obligation in excess of $500,000; or
(k) Such Borrower Company shall cease to be duly registered as an "investment adviser" under the Investment Advisers Act or under the applicable laws of any state in which such registration is required in connection with the investment advisory business of the Company or the Company shall be enjoined, barred or prohibited from acting as an investment management adviser to any investment company (or a Portfolio thereof) registered under the Investment Company ActAct or to any other client; or Mackenzie Funds Distribution shall cease to be duly registered as a broker/dealer under the Securities Exchange Act of 1934 or under the blue sky or securities laws of any state or other jurisdiction or Mackenzie Funds Distribution shall be enjoined, barred or prohibited from acting as a broker/dealer or as an underwriter or distributor of any securities or class of securities; or any other registration, qualification, license, permit, approval or authorization of the Company or any of its Subsidiaries shall cease to be in effect or shall be withdrawn, revoked or suspended, if, in any such Borrower's registration under instance, singly or in the aggregate, the same would have a material adverse effect upon the financial condition, business, operations or prospects of the Company and its Subsidiaries;
(k) if the Parent shall own, either directly or through one or more Subsidiaries, less than 51% of the outstanding voting stock of the Company on a fully diluted basis or if the Company shall own less than 100% of the outstanding capital stock of Mackenzie Funds Distribution on a fully diluted basis; or
(l) if any 12b-l Plan or 12b-l Plan distribution agreement between Mackenzie Funds Distribution and any 12b-l Fund is terminated or amended in any way which reduces the rate or amount of payments payable to Mackenzie Funds Distribution thereunder or if any advisory agreement between the Company and any registered investment company (as defined in the Investment Company Act, ) is terminated or that of any Borrower Agent of such Borrower, shall lapse or be suspended; then, and amended in any such event, and at any time thereafter, if any Event way which reduces the rate or amount of Default shall then be continuing with respect payments payable to such defaulting Borrower, (i) in the case of any Event of Default specified in paragraphs (g) and (h) above, the Commitments as to such defaulting Borrower shall thereupon automatically be terminated and the principal of and accrued interest on the Loans shall automatically become due and payable without presentment, demand, protest or other notice or formality of any kind, all of which are hereby expressly waived, and (ii) in the case of any other Event of Default specified above, either or both of the following actions may be taken: the Operations Agent may, and upon the written or telephonic (confirmed in writing) request of the Majority Banks shall, by written notice to such defaulting Borrower (A) declare the principal of and accrued interest in respect of such defaulting Borrower's Loans to be forthwith due and payable, whereupon the principal of and accrued interest in respect of such Loans shall become forthwith due and payable without presentment, demand, protest or other notice of any kind, all of which are hereby expressly waived by such Borrower, and/or (B) terminate the Commitments as to such defaulting Borrower, whereupon the Commitments of the Banks to make Committed Credit Loans hereunder to such defaulting Borrower shall forthwith terminate without any other notice of any kind and the percentages of the Commitment Fee and other fees and expenses otherwise payable by such defaulting Borrower hereunder accruing from and after the date of termination shall be reallocated among the remaining Borrowers PRO RATA on the basis of the percentages set forth opposite such remaining Borrowers' names on SCHEDULE 1, as in effect at the time of such termination.Company thereunder;
Appears in 1 contract
Sources: Revolving Credit and Term Loan Agreement (Mackenzie Investment Management Inc)
Events of Default; Acceleration. If any of the following events (each an "EVENT OF DEFAULTEvent of Default") shall occur with respect to any Borroweroccur:
(a) Such Borrower (i) The Company shall default in the payment of principal of or interest on any Loan, interest accrued thereon Loan or any other fee due hereunder for more than five (5) days after the same becomes due and payable, whether at maturity or by acceleration or otherwise, or (ii) shall default in at a date fixed for the payment of any other amount due hereunder after the same becomes due and payableinstallment or prepayment thereof or otherwise; or
(b) Such Borrower The Company shall default in the performance of or compliance with any term contained in Sections 9.01(a) sections 6 or 9.01(b) and such default shall have continued for more than three (3) Banking Days, or such Borrower shall default in the performance of or compliance with any term contained in Sections 8.02(d), 8.02(e), 8.02(g), 8.05, 9.02, 9.03 or 9.047; or
(c) Such Borrower The Company shall default in the performance of or compliance with any term contained herein other than those expressly referred to above in this Section 10.01, section 8 and such default shall not have been remedied within five (5) Banking Days 30 days after written notice thereof shall have been given to such Borrower the Company by the Operations AgentBank; or
(d) Such Borrower The Company, any Subsidiary or any shareholder of the Company which is a party to any of the Security Documents shall default in the performance of, of or compliance with, with any material term contained in the Security Documents or in the performance of or compliance with any term contained in any other written agreement with the Operations Agent or any Bank pertaining to this Agreement or such Borrower's LoansBank, and such default shall continue for more than the period of grace, if any, specified therein and shall not have been waived pursuant thereto; or
(e) Any representation, material representation or warranty certification or statement made or deemed made by such Borrower in this Agreement the Company herein or in any certificate, financial statement or other document delivered pursuant hereto shall prove to have been false or incorrect in any material respect when made; or
(f) Except as otherwise provided in this Section 10.01, such Borrower The Company or any Subsidiary shall default in any payment due on any Indebtedness for in respect of borrowed money money, any Capital Lease or the deferred purchase price of property, property (if the aggregate outstanding principal amount of which is all such Indebtedness in excess of five percent (5%default shall exceed $100,000) of such Borrower's Total Assets, and such default shall continue for more than the period of grace, if any, applicable thereto and shall not have been waived pursuant thereto and shall permit the holder of such Indebtedness to declare such Indebtedness due and payable before its stated maturitythereto, or in the performance of or compliance with any term of any evidence of such Indebtedness or of any mortgage, indenture or other agreement relating thereto, and any such default shall continue for more than the period of grace, if any, specified therein and shall not have been waived pursuant thereto and shall permit the holder of such Indebtedness to declare such Indebtedness due and payable before its stated maturity, unless such Borrower shall be contesting such payment or obligation in good faith by appropriate proceedings promptly initiated and diligently conducted and such Borrower shall have set aside on its books such reserves, if any, with respect thereto as are required by GAAP and deemed appropriate by such Borrower and its independent public accountants, PROVIDED, that no Event of Default pursuant to paragraphs (b) or (i) of this Section 10.01 shall have occurred and be continuing as a result of such claim having been asserted in respect of such Indebtednessthereto; or
(g) Such Borrower The Company or any Subsidiary shall discontinue its business (other than in connection with a permitted merger or consolidation of such Borrower) or shall make an assignment for the benefit of creditors, or shall fail generally to pay its debts as such debts become due, or shall apply for or consent to the appointment of or taking possession by a trustee, receiver or liquidator (or other similar official) of the Company or such Borrower Subsidiary or any substantial part of the property of the Company or assets of such Borrower Subsidiary, or shall commence a case or have an order for relief entered against it under the federal bankruptcy laws, as now or hereafter constituted, or any other applicable federal or state bankruptcy, insolvency or other similar law, or if the Company or any Subsidiary shall take any action shall be taken to dissolve or liquidate the Company or such Borrower (other than in connection with a permitted merger or consolidation of such Borrower)Subsidiary; or
(h) If, within sixty (60) 30 days after the commencement against such Borrower the Company or any Subsidiary of a case under the federal bankruptcy laws, as now or hereafter constituted, or any other applicable federal or state bankruptcy, insolvency or other similar law, such case shall have been consented to or shall not have been dismissed or all orders or proceedings thereunder affecting the operations or the business of the Company and such Borrower Subsidiary stayed, or if the stay of any such order or proceeding shall thereafter be set aside, or if within sixty (60) 30 days after the entry of a decree appointing a trustee, receiver or liquidator (or other similar official) of such Borrower the Company or any Subsidiary or any substantial part of the property of the Company or such Borrower Subsidiary, such appointment shall not have been vacated; or
(i) A final judgment which, together with other outstanding final judgments against such Borrowerthe Company and its Subsidiaries, exceeds an amount in the aggregate equal to five percent (5%) of such Borrower's Total Assets (exclusive of amounts covered by available insurance) $100,000 shall be rendered against such Borrower the Company or any Subsidiary and if, within thirty (30) 60 days after entry thereof, such judgment shall not have been discharged or execution thereof stayed pending appeal, or if, within thirty (30) 60 days after the expiration of any such stay, such judgment shall not have been discharged, or if any such judgment shall not be discharged forthwith upon the commencement of proceedings to foreclose any lien, attachment or charge which may attach as security therefor and before any of the property or assets of the Company or any Subsidiary shall have been seized in satisfaction thereof; or
(j) Such Borrower If the Parent Company Shareholders shall, during any calendar year, sell or any member otherwise dispose of 20% of more of the Controlled Group shall fail to pay when due an amount or amounts aggregating in excess outstanding shares of $500,000 which it is obligated to pay to the PBGC or to a Plan under Title IV of ERISA; or a notice of intent to terminate a Plan or Plans having aggregate Unfunded Liabilities in excess of $500,000 shall be filed under Title IV of ERISA by such Borrower or any member capital stock of the Controlled Group, any plan administrator or any combination Parent Company owned by them in the aggregate at the beginning of such calendar year (other than the foregoing; or repurchase of shares by the PBGC shall institute proceedings under Title IV Parent Company from the estates of ERISA deceased shareholders pursuant to terminate or repurchase agreements in effect from time to cause a trustee to be appointed to administer any such Plan or Plans or a proceeding shall be instituted by a fiduciary of any such Plan or Plans against such Borrower or any member of time between the Controlled Group to enforce Sections 515 or 4219(c)(5) of ERISA; or a condition shall exist by reason of which the PBGC would be entitled to obtain a decree adjudicating that any such Plan or Plans must be terminated; or there shall occur a complete or partial withdrawal from, or a default, within the meaning of Section 4219(c)(5) of ERISA, with respect to, one or more Multiemployer Plans which could cause such Borrower or one or more members of the Controlled Group to incur a current payment obligation in excess of $500,000Parent Company and its shareholders); or
(k) Such Borrower If ▇▇▇▇▇-▇▇▇▇▇▇ ▇▇▇▇▇▇ shall for any reason, including death or disability, cease to be, or cease to perform on a full-time basis the duties of, the chief executive officer of the Company, and within 90 days thereafter a successor chief executive officer reasonably acceptable to the Bank (the name of any such successor executive officer to be substituted in this subparagraph (k) in place of the name of said ▇▇▇▇▇-▇▇▇▇▇▇ ▇▇▇▇▇▇) shall not have been appointed and assumed his or her duties as chief executive officer of the Company; or
(l) If the Parent Company shall cease to be an investment management company own all of the outstanding shares of capital stock of the Company; or
(or a Portfolio thereofm) registered under If the Investment Parent Company ActSubscriptions, or such Borrower's registration under the Investment Company ActSubscriptions and the Bridge Note are not paid in full by June 30, or that of any Borrower Agent of such Borrower, shall lapse or be suspended1995; then, and in any such event, and at any time thereafter, if any Event of Default shall then be continuing with respect to such defaulting Borrowercontinuing, (i) in the case of any Event of Default specified in paragraphs (g) and (h) above, the Commitments as to such defaulting Borrower shall thereupon automatically be terminated and the principal of and accrued interest on the Loans shall automatically become due and payable without presentment, demand, protest or other notice or formality of any kind, all of which are hereby expressly waived, and (ii) in the case of any other Event of Default specified above, either or both of the following actions may be taken: the Operations Agent may, and upon the written or telephonic (confirmed in writing) request of the Majority Banks shall, . The Bank may by written notice to such defaulting Borrower the Company, (Ai) declare the principal of and accrued interest in respect of such defaulting Borrower's Loans the Notes to be forthwith due and payable, whereupon the principal of and accrued interest in respect of such Loans the Notes (together with any LIBOR Premium applicable thereto) shall become forthwith due and payable without presentment, demand, protest or other notice of any kind, all of which are hereby expressly waived by such Borrowerthe Company, and/or (Bii) terminate the Commitments as Revolving Commitment to such defaulting Borrowermake any or all of the Revolving Credit Loans hereunder, whereupon the Commitments said Revolving Commitment of the Banks to make Committed Credit Loans Bank hereunder to such defaulting Borrower shall forthwith terminate without any other notice of any kind and the percentages kind. If any Event of Default of the Commitment Fee character described in subparagraphs (g) or (h) of this subsection 8.1 with respect to the Company shall occur, the principal of and other fees and expenses otherwise payable by such defaulting Borrower hereunder accruing from and after the date of termination shall be reallocated among the remaining Borrowers PRO RATA on the basis accrued interest in respect of the percentages set forth opposite such remaining Borrowers' names on SCHEDULE 1Notes (together with any LIBOR Premium applicable thereto) shall forthwith become due and payable without presentment, as in effect at demand, protest or notice of any kind, all of which are hereby expressly waived by the time Company, and (ii) the Revolving Commitment of such terminationthe Bank to make Revolving Credit Loans hereunder shall forthwith terminate without notice of any kind.
Appears in 1 contract
Sources: Credit Agreement (Hagler Bailly Inc)
Events of Default; Acceleration. If any Any one or more of the following events (each an "EVENT OF DEFAULT"and whether such occurrence shall be voluntary or involuntary or be effected by any Legal Requirement) shall occur with respect to any Borrowerconstitute an “Event of Default” hereunder:
(a) Such Borrower (i) shall default in the payment of principal of any Loan, interest accrued thereon or fee due hereunder after the same becomes due and payable, whether at maturity or by acceleration or otherwise, or (ii) shall default in the payment of any other amount due hereunder interest upon the Note within five (5) days after the same such interest becomes due and payable; or
(b) Such Borrower shall default in the performance payment of principal of (or compliance with any term contained in Sections 9.01(aprepayment premium, if any, on) the Note when and as the same shall become due and payable, whether at maturity or 9.01(b) and such default shall have continued at a date fixed for more than three (3) Banking Daysprincipal payment or prepayment, or such Borrower shall default in the performance of by acceleration or compliance with any term contained in Sections 8.02(d), 8.02(e), 8.02(g), 8.05, 9.02, 9.03 or 9.04otherwise; or
(c) Such Borrower shall default in the performance payment of any other obligations due under the Loan Documents or compliance with the Indemnity Agreement or under any term contained herein document evidencing or securing any other than those expressly referred loan made by Lender to in this Section 10.01Borrower or any Affiliate of Borrower within ten (10) days after the same becomes due, and or the acceleration of debt under any of the foregoing regardless of whether such acceleration constitutes a default shall not have been remedied within five (5) Banking Days after written notice thereof shall have been given to such Borrower by the Operations Agentthereunder; or
(d) Such Borrower shall default in the performance ofor observance by Borrower or any Guarantor of (i) any covenant, agreement or condition contained in Section 7 hereof, or compliance with, any material term contained in (ii) any other written covenant, agreement with the Operations Agent or any Bank pertaining to this Agreement or such Borrower's Loans, and such default shall continue for more than the period of grace, if any, specified therein and shall not have been waived pursuant thereto; or
(e) Any representation, warranty certification or statement made or deemed made by such Borrower in this Agreement or in any certificate, financial statement or other document delivered pursuant hereto shall prove to have been false or incorrect in any material respect when made; or
(f) Except as otherwise provided in this Section 10.01, such Borrower shall default in any payment due on Indebtedness for borrowed money or the deferred purchase price of property, the aggregate outstanding principal amount of which is in excess of five percent (5%) of such Borrower's Total Assets, and such default shall continue for more than the period of grace, if any, applicable thereto and shall not have been waived pursuant thereto and shall permit the holder of such Indebtedness to declare such Indebtedness due and payable before its stated maturity, condition contained herein or in the performance of Note, or compliance with any term of any evidence of such Indebtedness “Default” or of any mortgage, indenture or other agreement relating thereto, and any such default shall continue for more than the period of grace, if any, specified therein and shall not have been waived pursuant thereto and shall permit the holder of such Indebtedness to declare such Indebtedness due and payable before its stated maturity, unless such Borrower shall be contesting such payment or obligation in good faith by appropriate proceedings promptly initiated and diligently conducted and such Borrower shall have set aside on its books such reserves, if any, with respect thereto as are required by GAAP and deemed appropriate by such Borrower and its independent public accountants, PROVIDED, that no “Event of Default” under any other Loan Document or the Indemnity Agreement (other than Events of Default pursuant to paragraphs (b) or (i) specified in another subsection of this Section 10.01 shall have occurred and be continuing as a result of such claim having been asserted in respect of such Indebtedness; or
(g8.1) Such Borrower shall discontinue its business (other than in connection with a permitted merger or consolidation of such Borrower) or shall make an assignment for the benefit of creditors, or shall fail generally to pay its debts as such debts become due, or shall apply for or consent to the appointment of or taking possession by a trustee, receiver or liquidator (or other similar official) of such Borrower or any substantial part of the property or assets of such Borrower or shall commence a case or have an order for relief entered against it under the federal bankruptcy laws, as now or hereafter constituted, or any other applicable federal or state bankruptcy, insolvency or other similar law, or if any action shall be taken to dissolve or liquidate such Borrower (other than in connection with a permitted merger or consolidation of such Borrower); or
(h) If, within sixty (60) days after the commencement against such Borrower of a case under the federal bankruptcy laws, as now or hereafter constituted, or any other applicable federal or state bankruptcy, insolvency or other similar law, such case shall have been consented to or shall which is not have been dismissed or all orders or proceedings thereunder affecting the operations or the business of such Borrower stayed, or if the stay of any such order or proceeding shall thereafter be set aside, or if within sixty (60) days after the entry of a decree appointing a trustee, receiver or liquidator (or other similar official) of such Borrower or any substantial part of the property of such Borrower such appointment shall not have been vacated; or
(i) A final judgment which, together with other outstanding final judgments against such Borrower, exceeds an amount in the aggregate equal to five percent (5%) of such Borrower's Total Assets (exclusive of amounts covered by available insurance) shall be rendered against such Borrower and if, within thirty (30) days after entry thereof, such judgment shall not have been discharged or execution thereof stayed pending appeal, or if, remedied within thirty (30) days after the expiration earlier of (x) Borrower or any Guarantor, as applicable, becoming aware of any such stay, breach and (y) Lender notifying Borrower of any such judgment breach; or
(e) Borrower shall not pay when due, whether by acceleration or otherwise, after giving effect to any applicable notice or grace period specified therein, any evidence of Material Indebtedness of Borrower (other than the Note), or any condition or default shall exist under any such evidence of Material Indebtedness or under any agreement under which the same may have been dischargedissued permitting acceleration of such evidence of Indebtedness, which could reasonably be expected to have a Material Adverse Effect; or
(f) Borrower or any Guarantor shall file a petition seeking relief for itself under Title 11 of the United States Code, as now constituted or hereafter amended, or an answer consenting to, admitting the material allegations of or otherwise not controverting, or shall fail to timely controvert, a petition filed against Borrower or any Guarantor seeking relief under Title 11 of the United States Code, as now constituted or hereafter amended; or Borrower or any Guarantor shall file such a petition or answer with respect to relief under the provisions of any other now existing or future bankruptcy, insolvency or other similar law of any Governmental Authority providing for the reorganization, winding‑up or liquidation of corporations or an arrangement, composition, extension or adjustment with creditors; or
(g) a court of competent jurisdiction shall enter an order for relief which is not stayed within sixty (60) days from the date of entry thereof against Borrower or any Guarantor under Title 11 of the United States Code; or there shall be entered an order, judgment or decree by operation of law or by a court having jurisdiction in the premises which is not stayed within sixty (60) days from the date of entry thereof adjudging Borrower or any Guarantor bankrupt or insolvent, or ordering relief against Borrower or any Guarantor, or approving as properly filed a petition seeking relief against Borrower or any Guarantor, under the provisions of any other now existing or future bankruptcy, insolvency or other similar law of any Governmental Authority providing for the reorganization, winding‑up or liquidation of corporations or an arrangement, composition, extension or adjustment with creditors, or appointing a receiver, liquidator, assignee, sequestrator, trustee, custodian or similar official of Borrower or any Guarantor or of any substantial part of its property, or ordering the reorganization, winding‑up or liquidation of its affairs; or any involuntary petition against Borrower seeking any of the relief specified in this clause which shall not be dismissed within sixty (60) days of its filing; or
(h) Borrower or any Guarantor shall make a general assignment for the benefit of its creditors; or Borrower or any Guarantor shall consent to the appointment of, or taking possession of all or any substantial part of its property by, a receiver, liquidator, assignee, sequestrator, trustee, custodian or similar official of Borrower or any Guarantor; or Borrower or any Guarantor shall have admitted to its insolvency or inability to pay, or shall have failed to pay, its debts generally as such debts become due; or Borrower or any Guarantor or its respective directors or majority equity interest holders shall take any action to dissolve or liquidate Borrower; or
(i) the rendering against Borrower of a final non‑appealable judgment, decree or order for the payment of money in excess of Fifty Million and 00/100 Dollars ($50,000,000.00) and the continuance of such judgment, decree or order unsatisfied and in effect for any period of sixty (60) consecutive days without a stay of execution; or
(j) Such Borrower shall, with respect to any employee benefit plan sponsored or maintained by Borrower, (1) engage in any member non‑exempted “prohibited transaction,” as defined in Sections 406 and 408 of ERISA and Section 4975 of the Controlled Group shall fail Internal Revenue Code of 1986, as amended, which would reasonably be expected to pay when due have a Material Adverse Effect, (2) incur any “accumulated funding deficiency,” as defined in Section 302 of ERISA, in an amount or amounts aggregating in excess of Fifty Million and 00/100 Dollars ($500,000 which it is obligated to pay to the PBGC 50,000,000.00), whether or to a Plan under Title IV of ERISA; not waived, or a notice of intent to terminate a Plan or Plans having aggregate Unfunded Liabilities in excess of $500,000 shall be filed under Title IV of ERISA by such Borrower or any member of the Controlled Group, any plan administrator or any combination of the foregoing; or the PBGC shall institute proceedings under Title IV of ERISA to (3) terminate or to cause a trustee to be appointed to administer any such Plan or Plans or a proceeding shall be instituted by a fiduciary permit the termination of any such Plan or Plans against such Borrower or any member of the Controlled Group to enforce Sections 515 or 4219(c)(5) of ERISA; or a condition shall exist by reason of which the PBGC would be entitled to obtain a decree adjudicating that any such Plan or Plans must be terminated; or there shall occur a complete or partial withdrawal from, or a default, within the meaning of an “employee pension benefit plan,” as defined in Section 4219(c)(53(2) of ERISA, with respect to, one or more Multiemployer Plans in a manner which could cause such would reasonably be expected to result in the imposition of a Lien on any property of Borrower or one or more members pursuant to Section 4068 of the Controlled Group to incur a current payment obligation ERISA securing an amount in excess of Fifty Million and 00/100 Dollars ($500,00050,000,000.00); or
(k) Such any representation or warranty made by Borrower or any Guarantor herein or in any other Loan Document or the Indemnity Agreement or in any certificate or instrument furnished in connection therewith shall prove to have been materially false or misleading as of the date made; or
(l) a material portion of any Facility is rezoned, either voluntarily or involuntarily in a way that has a Material Adverse Effect without Lender’s prior written consent; or
(m) [reserved]; or
(n) the dissolution of Borrower, whether by operation of law or otherwise; or
(o) Borrower shall suffer or permit any Facility, or any part thereof, to be used in such manner as might (1) impair Borrower’s title to any Facility, or any part thereof; or (2) create rights of adverse use or possession; or (3) constitute an implied dedication of any Facility, or any part thereof, except, in each case, to the extent any of the foregoing would constitute a Permitted Encumbrance; or
(1) the Guaranty or the Indemnity Agreement for any reason shall cease to be an investment management company (in full force and effect other than in accordance with its terms or a Portfolio thereof) registered any Guarantor shall deny its liability under the Investment Company ActGuaranty or the Indemnity Agreement, or such Borrower's registration under (2) any security interest purported to be created by the Investment Company ActSecurity Instruments or other Loan Documents shall cease to be, or that of any shall be asserted by Borrower Agent of such Borrowernot to be a valid, shall lapse or be suspended; then, and in any such event, and at any time thereafter, if any Event of Default shall then be continuing with respect to such defaulting Borrower, (i) perfected first priority security interest in the case Collateral; or
(q) any Transfer of title (including, without limitation, a leasehold interest) or possession of all or any Event portion of Default specified in paragraphs the Collateral without the prior written consent of Lender, except as may be permitted by Section 7.6 hereof; or
(gr) and (h) above, the Commitments as to such defaulting Borrower shall thereupon automatically be terminated and the principal of and accrued interest on the Loans shall automatically become due and payable without presentment, demand, protest or other notice or formality of any kind, all of which are hereby expressly waived, and (ii) in the case of a default under any other Event borrowing agreement of Default specified above, either Borrower or both of the following actions may be taken: the Operations Agent may, and upon the written or telephonic any Subsidiary (confirmed in writingother than an Excluded Subsidiary) request of the Majority Banks shall, by written notice to such defaulting Borrower (A) declare the principal of and accrued interest in respect of such defaulting Borrower's Loans to be forthwith due and payable, whereupon the principal of and accrued interest in respect of such Loans shall become forthwith due and payable without presentment, demand, protest or other notice of any kind, all of which are hereby expressly waived by such Borrower, and/or (B) terminate the Commitments as to such defaulting Borrower, whereupon the Commitments of the Banks to make Committed Credit Loans hereunder to such defaulting Borrower shall forthwith terminate without any other notice of any kind and the percentages of the Commitment Fee and other fees and expenses otherwise payable by such defaulting Borrower hereunder accruing from and after the date of termination shall be reallocated among the remaining Borrowers PRO RATA on the basis of the percentages set forth opposite such remaining Borrowers' names on SCHEDULE 1, as in effect at the time of such terminationMaterial Indebtedness.
Appears in 1 contract
Sources: Loan Agreement (Andersons, Inc.)
Events of Default; Acceleration. If any In case one or more of the following events of default (each each, an "EVENT OF DEFAULTevent of default") shall occur with respect to any Borrowerhave occurred and be continuing:
(a) Such Borrower (i) shall failure by the Corporation to pay when due any amount required to be paid under this Participation Agreement or the Corporation Note, which failure causes a default in the payment when due of principal the interest on any of the Bonds and continuance of such default for five Business Days;
(b) failure by the Corporation to pay when due any Loanamount required to be paid under this Participation Agreement or the Corporation Note, interest accrued thereon or fee due hereunder after the same becomes due and payable, whether at maturity or by acceleration or otherwise, or (ii) shall which failure causes a default in the payment when due of any other amount due hereunder after the same becomes due and payable; or
(b) Such Borrower shall default in the performance of or compliance with any term contained in Sections 9.01(a) or 9.01(b) and such default shall have continued for more than three (3) Banking Daysprincipal of, or premium, if any, on any of the Bonds; provided that, with respect to any payment of principal of, or premium, if any, payable on Bonds called for redemption, such Borrower failure by the Corporation shall default in the performance of or compliance with any term contained in Sections 8.02(d), 8.02(e), 8.02(g), 8.05, 9.02, 9.03 or 9.04continue for five Business Days; or
(c) Such Borrower shall default failure on the part of the Corporation duly to observe or perform any other of the covenants or agreements on the part of the Corporation contained in this Participation Agreement (other than failure to pay amounts required to be paid under Sections 4.04, 4.05, 4.07, 4.08, 4.09 or 4.10) or in the performance Corporation Note for a period of or compliance with any term contained herein other than those expressly referred to in this Section 10.01, and such default shall not have been remedied within five (5) Banking Days 90 days after the date on which written notice thereof of such failure, requiring the Corporation to remedy the same, shall have been given to such Borrower the Corporation by the Operations AgentAuthority or the Trustee, provided, however, that, if such failure is such that it cannot be corrected within such 90-day period, it shall not constitute an event of default if corrective action is instituted by the Corporation within such 90-day period and diligently pursued until such failure is corrected; or
(d) Such Borrower shall default in the performance of, or compliance with, any material term contained in any other written agreement with the Operations Agent or any Bank pertaining to this Agreement or such Borrower's Loans, and such default shall continue for more than the period an Act of grace, if any, specified therein and shall not have been waived pursuant thereto; or
(e) Any representation, warranty certification or statement made or deemed made by such Borrower in this Agreement or in any certificate, financial statement or other document delivered pursuant hereto shall prove to have been false or incorrect in any material respect when made; or
(f) Except as otherwise provided in this Section 10.01, such Borrower shall default in any payment due on Indebtedness for borrowed money or the deferred purchase price of property, the aggregate outstanding principal amount of which is in excess of five percent (5%) of such Borrower's Total Assets, and such default shall continue for more than the period of grace, if any, applicable thereto and shall not have been waived pursuant thereto and shall permit the holder of such Indebtedness to declare such Indebtedness due and payable before its stated maturity, or in the performance of or compliance with any term of any evidence of such Indebtedness or of any mortgage, indenture or other agreement Bankruptcy relating thereto, and any such default shall continue for more than the period of grace, if any, specified therein and shall not have been waived pursuant thereto and shall permit the holder of such Indebtedness to declare such Indebtedness due and payable before its stated maturity, unless such Borrower shall be contesting such payment or obligation in good faith by appropriate proceedings promptly initiated and diligently conducted and such Borrower shall have set aside on its books such reserves, if any, with respect thereto as are required by GAAP and deemed appropriate by such Borrower and its independent public accountants, PROVIDED, that no Event of Default pursuant to paragraphs (b) or (i) of this Section 10.01 shall have occurred and be continuing as a result of such claim having been asserted in respect of such Indebtedness; or
(g) Such Borrower shall discontinue its business (other than in connection with a permitted merger or consolidation of such Borrower) or shall make an assignment for the benefit of creditors, or shall fail generally to pay its debts as such debts become due, or shall apply for or consent to the appointment of or taking possession by a trustee, receiver or liquidator (or other similar official) of such Borrower or any substantial part of the property or assets of such Borrower or shall commence a case or have an order for relief entered against it under the federal bankruptcy laws, as now or hereafter constituted, or any other applicable federal or state bankruptcy, insolvency or other similar law, or if any action shall be taken to dissolve or liquidate such Borrower (other than in connection with a permitted merger or consolidation of such Borrower); or
(h) If, within sixty (60) days after the commencement against such Borrower of a case under the federal bankruptcy laws, as now or hereafter constituted, or any other applicable federal or state bankruptcy, insolvency or other similar law, such case shall have been consented to or shall not have been dismissed or all orders or proceedings thereunder affecting the operations or the business of such Borrower stayed, or if the stay of any such order or proceeding shall thereafter be set aside, or if within sixty (60) days after the entry of a decree appointing a trustee, receiver or liquidator (or other similar official) of such Borrower or any substantial part of the property of such Borrower such appointment shall not have been vacated; or
(i) A final judgment which, together with other outstanding final judgments against such Borrower, exceeds an amount in the aggregate equal to five percent (5%) of such Borrower's Total Assets (exclusive of amounts covered by available insurance) shall be rendered against such Borrower and if, within thirty (30) days after entry thereof, such judgment shall not have been discharged or execution thereof stayed pending appeal, or if, within thirty (30) days after the expiration of any such stay, such judgment shall not have been discharged; or
(j) Such Borrower or any member of the Controlled Group shall fail to pay when due an amount or amounts aggregating in excess of $500,000 which it is obligated to pay to the PBGC or to a Plan under Title IV of ERISA; or a notice of intent to terminate a Plan or Plans having aggregate Unfunded Liabilities in excess of $500,000 shall be filed under Title IV of ERISA by such Borrower or any member of the Controlled Group, any plan administrator or any combination of the foregoing; or the PBGC shall institute proceedings under Title IV of ERISA to terminate or to cause a trustee to be appointed to administer any such Plan or Plans or a proceeding shall be instituted by a fiduciary of any such Plan or Plans against such Borrower or any member of the Controlled Group to enforce Sections 515 or 4219(c)(5) of ERISA; or a condition shall exist by reason of which the PBGC would be entitled to obtain a decree adjudicating that any such Plan or Plans must be terminated; or there shall occur a complete or partial withdrawal from, or a default, within the meaning of Section 4219(c)(5) of ERISA, with respect to, one or more Multiemployer Plans which could cause such Borrower or one or more members of the Controlled Group to incur a current payment obligation in excess of $500,000; or
(k) Such Borrower shall cease to be an investment management company (or a Portfolio thereof) registered under the Investment Company Act, or such Borrower's registration under the Investment Company Act, or that of any Borrower Agent of such Borrower, shall lapse or be suspendedCorporation; then, and in any such event, and at any time thereafter, if any Event of Default shall then be continuing the Trustee with respect to such defaulting Borrower, (i) in the case of any Event of Default specified in paragraphs (g) and (h) above, the Commitments as to such defaulting Borrower shall thereupon automatically be terminated and the principal of and accrued interest on the Loans shall automatically become due and payable without presentment, demand, protest or other notice or formality of any kind, all of which are hereby expressly waived, and (ii) in the case of any other Event of Default specified above, either or both consent of the following actions may be taken: the Operations Agent Bond Insurer, may, and upon the written or telephonic (confirmed in writing) request of the Majority Banks Bond Insurer or the owners of at least 25% in aggregate principal amount of the Bonds then outstanding with the consent of the Bond Insurer shall, by notice in writing to the Corporation and the Bond Insurer and provided that the default has not theretofore been cured, declare the Corporation Note to be due and payable immediately, and upon any such declaration the same shall become and shall be immediately due and payable, anything contained in this Participation Agreement or in the Corporation Note to the contrary notwithstanding. Any amounts collected by the Trustee pursuant to action taken under this Section 6.01 shall be applied in accordance with the Indenture. In addition, if at any time the principal of the Bonds shall have been declared to be due and payable by acceleration pursuant to the terms of the Indenture, the Corporation Note shall thereupon become and be immediately due and payable, subject to such declaration with respect to the Bonds being rescinded or annulled pursuant to the Indenture. The right or obligation of the Trustee to make any such declaration as aforesaid, however, is subject to the condition that if, at any time after declaration, but before all the Bonds shall have matured by their terms, the principal of, premium, if any, and interest on, the Corporation Note which shall have become due and payable otherwise than by such declaration, and all other sums payable hereunder, except the principal of, and interest on, the Corporation Note which shall have become due and payable by such declaration, shall have been paid or provision satisfactory to the Trustee shall have been made for such payment, and the reasonable expenses of the Trustee and of the owners of the Bonds incurred pursuant to the Indenture shall have been paid, including reasonable attorneys' fees paid or incurred, and all defaults hereunder and under the Bonds or under the Indenture, except as to the payment of principal and interest due and payable solely by reason of such declaration, shall be made good or be secured to the satisfaction of the Trustee or provision deemed by the Trustee to be adequate shall be made therefor, then and in every such case the owners of a majority in aggregate principal amount of the Bonds then outstanding, by written notice to the Authority and to the Trustee, may rescind such defaulting Borrower declaration and annul such default in its entirety, or, if the Trustee shall have acted in the absence of a written request of the owners of at least 25% in aggregate principal amount of the outstanding Bonds, and if there shall not have been theretofore delivered to the Trustee written direction to the contrary by the owners of at least 25% in aggregate principal amount of the outstanding Bonds, then any such declaration shall ipso facto be deemed to be rescinded and any such default and its consequences shall ipso facto be deemed to be annulled, but no such rescission and annulment shall extend to or affect any subsequent default or impair or exhaust any right or power consequent thereon. Anything in this Participation Agreement to the contrary notwithstanding, upon the occurrence and continuance of an event of default as defined herein, the Bond Insurer (Aif not in default) declare shall be entitled to control and direct the enforcement of all rights and remedies granted to the Bondholders or the Trustee for the benefit of the Bondholders under this Participation Agreement, including, without limitation: (i) the right to accelerate the principal of the Corporation Note as described in this Participation Agreement, and accrued interest (ii) the right to rescind any declaration of acceleration, and the Bond Insurer shall also be entitled to approve all waivers of events of default. In case the Trustee shall have proceeded to enforce any right under this Participation Agreement or the Corporation Note and such proceedings shall have been discontinued or abandoned for any reason or shall have been determined adversely to the Trustee, then and in respect every such case the Corporation, the Authority and the Trustee shall be restored respectively to their former positions and rights hereunder, and all rights, remedies and powers of the Corporation, the Authority and the Trustee shall continue as though no such defaulting Borrower's Loans to be forthwith due and payable, whereupon proceedings had been taken. In the principal of and accrued interest in respect of such Loans shall become forthwith due and payable without presentment, demand, protest or other notice event of any kindAct of Bankruptcy, reorganization or liquidation, the Bond Insurer shall have the right to vote on behalf of all of which are hereby expressly waived Bondholders absent a default by such Borrower, and/or (B) terminate the Commitments as to such defaulting Borrower, whereupon Bond Insurer under the Commitments of the Banks to make Committed Credit Loans hereunder to such defaulting Borrower shall forthwith terminate without any other notice of any kind and the percentages of the Commitment Fee and other fees and expenses otherwise payable by such defaulting Borrower hereunder accruing from and after the date of termination shall be reallocated among the remaining Borrowers PRO RATA on the basis of the percentages set forth opposite such remaining Borrowers' names on SCHEDULE 1, as in effect at the time of such terminationPolicy.
Appears in 1 contract
Events of Default; Acceleration. If any of the following events (each an "EVENT OF DEFAULTEvent of Default") shall occur with respect to any Borroweroccur:
(a) Such Borrower (i) Debtor shall default in the payment of fail to pay any principal of interest on this Promissory Note or any Loanother sum due under this Promissory Note, interest accrued thereon any Transaction Document, or fee due hereunder after any other note or other agreement between Debtor and RACC when the same becomes due and payablesuch failure shall continue for ten (10) days beyond the due date of such payment;
(b) Debtor shall fail to perform any term, whether covenant or agreement contained in any of the Transaction Documents and such failure shall continue for thirty (30) days after written notice;
(c) any representation or warranty of Debtor in any of the Transaction Documents or in any certificate or notice given in connection therewith shall have been false or misleading in any material respect at maturity the time made or by acceleration deemed to have been made;
(d) Debtor shall be in default under any agreement or otherwiseagreements evidencing (i) any other debt and similar monetary obligations (including, without limitation, capitalized leases, synthetic leases or securitization transactions) (collectively, "Indebtedness") owing to RACC or any of its affiliates, or (ii) shall default in the payment of any other amount due hereunder after the same becomes due and payable; or
(b) Such Borrower shall default Indebtedness in the performance excess of or compliance with any term contained $100,000.00 in Sections 9.01(a) or 9.01(b) and such default shall have continued for more than three (3) Banking Daysaggregate principal amount, or shall fail to pay any such Borrower shall default in the performance of Indebtedness when due or compliance with within any term contained in Sections 8.02(d), 8.02(e), 8.02(g), 8.05, 9.02, 9.03 or 9.04; or
(c) Such Borrower shall default in the performance of or compliance with any term contained herein other than those expressly referred to in this Section 10.01, and such default shall not have been remedied within five (5) Banking Days after written notice thereof shall have been given to such Borrower by the Operations Agent; or
(d) Such Borrower shall default in the performance of, or compliance with, any material term contained in any other written agreement with the Operations Agent or any Bank pertaining to this Agreement or such Borrower's Loans, and such default shall continue for more than the applicable period of grace, if any, specified therein and shall not have been waived pursuant thereto; or;
(e) Any representation, warranty certification or statement made or deemed made by such Borrower any of the Transaction Documents shall cease to be in this Agreement or in any certificate, financial statement or other document delivered pursuant hereto shall prove to have been false or incorrect in any material respect when made; orfull force and effect;
(f) Except as otherwise provided in this Section 10.01, such Borrower shall default in any payment due on Indebtedness for borrowed money or the deferred purchase price of property, the aggregate outstanding principal amount of which is in excess of five percent (5%) of such Borrower's Total Assets, and such default shall continue for more than the period of grace, if any, applicable thereto and shall not have been waived pursuant thereto and shall permit the holder of such Indebtedness to declare such Indebtedness due and payable before its stated maturity, or in the performance of or compliance with any term of any evidence of such Indebtedness or of any mortgage, indenture or other agreement relating thereto, and any such default shall continue for more than the period of grace, if any, specified therein and shall not have been waived pursuant thereto and shall permit the holder of such Indebtedness to declare such Indebtedness due and payable before its stated maturity, unless such Borrower shall be contesting such payment or obligation in good faith by appropriate proceedings promptly initiated and diligently conducted and such Borrower shall have set aside on its books such reserves, if any, with respect thereto as are required by GAAP and deemed appropriate by such Borrower and its independent public accountants, PROVIDED, that no Event of Default pursuant to paragraphs (b) or Debtor (i) of this Section 10.01 shall have occurred and be continuing as a result of such claim having been asserted in respect of such Indebtedness; or
(g) Such Borrower shall discontinue its business (other than in connection with a permitted merger or consolidation of such Borrower) or shall make an assignment for the benefit of creditors; (ii) shall be adjudicated bankrupt or insolvent; (iii) shall seek the appointment of, or be the subject of an order appointing, a trustee, liquidator or receiver as to all or part of its assets, (iv) shall fail generally commence, approve or consent to, any case or proceeding under any bankruptcy, reorganization or similar law and, in the case of an involuntary case or proceeding, such case or proceeding is not dismissed within forty-five (45) days following the commencement thereof, or (v) shall be the subject of an order for relief in an involuntary case under federal bankruptcy law;
(g) Debtor shall be unable to pay its debts as such debts become due, or shall apply for or consent to the appointment of or taking possession by a trustee, receiver or liquidator (or other similar official) of such Borrower or any substantial part of the property or assets of such Borrower or shall commence a case or have an order for relief entered against it under the federal bankruptcy laws, as now or hereafter constituted, or any other applicable federal or state bankruptcy, insolvency or other similar law, or if any action shall be taken to dissolve or liquidate such Borrower (other than in connection with a permitted merger or consolidation of such Borrower); orthey mature;
(h) If, within sixty there shall remain undischarged for more than thirty (6030) days after the commencement against such Borrower of a case under the federal bankruptcy laws, as now or hereafter constituted, or any other applicable federal or state bankruptcy, insolvency or other similar law, such case shall have been consented to or shall not have been dismissed or all orders or proceedings thereunder affecting the operations or the business of such Borrower stayed, or if the stay of any such order or proceeding shall thereafter be set aside, or if within sixty (60) days after the entry of a decree appointing a trustee, receiver or liquidator (or other similar official) of such Borrower or any substantial part of the property of such Borrower such appointment shall not have been vacated; or
(i) A final judgment whichor execution action against ▇▇▇▇▇▇ that, together with other outstanding final judgments claims and execution actions against such Borrower▇▇▇▇▇▇, respectively, exceeds an amount $100,000.00 in the aggregate equal to five percent aggregate;
(5%i) the prospect of such Borrower's Total Assets (exclusive payment or performance by ▇▇▇▇▇▇ or realization on the Collateral, in the reasonable opinion of amounts covered by available insurance) shall be rendered against such Borrower and ifRACC, within thirty (30) days after entry thereof, such judgment shall not have been discharged is or execution thereof stayed pending appeal, or if, within thirty (30) days after the expiration of any such stay, such judgment shall not have been discharged; orbecomes significantly impaired;
(j) Such Borrower or any member of the Controlled Group Aircraft shall fail have been lost, stolen or confiscated or shall have incurred substantial damage or have been destroyed to pay when due such an amount or amounts aggregating in excess of $500,000 which it extent that the repair thereof is obligated to pay to the PBGC or to a Plan under Title IV of ERISA; or a notice of intent to terminate a Plan or Plans having aggregate Unfunded Liabilities in excess of $500,000 shall be filed under Title IV of ERISA impracticable (as determined solely by such Borrower or any member of the Controlled Group, any plan administrator or any combination of the foregoing; or the PBGC shall institute proceedings under Title IV of ERISA to terminate or to cause a trustee to be appointed to administer any such Plan or Plans or a proceeding shall be instituted by a fiduciary of any such Plan or Plans against such Borrower or any member of the Controlled Group to enforce Sections 515 or 4219(c)(5) of ERISA; or a condition shall exist by reason of which the PBGC would be entitled to obtain a decree adjudicating that any such Plan or Plans must be terminated; or there shall occur a complete or partial withdrawal from, or a default, within the meaning of Section 4219(c)(5) of ERISA, with respect to, one or more Multiemployer Plans which could cause such Borrower or one or more members of the Controlled Group to incur a current payment obligation in excess of $500,000RACC); or
(k) Such Borrower shall cease to be an investment management company Debtor (i) sells, transfers or a Portfolio thereofdisposes of all or substantially all of its respective stock, assets or property, (ii) registered under becomes the Investment Company Actsubject of, or such Borrower's registration under the Investment Company Actengages in, a leveraged buy-out, or that of any Borrower Agent of such Borrower(iii) terminates its existence by merger, shall lapse reorganization or be suspended; thenconsolidation. THEN, and in any such event, and or at any time thereafter, if any Event of Default shall then be continuing with respect to such defaulting Borrower, :
(i1) in In the case of any Event of Default specified in paragraphs under clauses (f) or (g) and (h) above), the Commitments as to such defaulting Borrower shall thereupon automatically be terminated entire unpaid principal amount of this Promissory Note and the principal of and accrued interest on the Loans all other amounts payable hereunder, shall automatically become forthwith due and payable payable, without presentment, demand, protest or other notice or formality of any kind, all of which are hereby expressly waived, and (ii) in the case of any other Event of Default specified above, either or both of the following actions may be taken: the Operations Agent may, and upon the written or telephonic (confirmed in writing) request of the Majority Banks shall, by written notice to such defaulting Borrower (A) declare the principal of and accrued interest in respect of such defaulting Borrower's Loans to be forthwith due and payable, whereupon the principal of and accrued interest in respect of such Loans shall become forthwith due and payable without presentment, demand, protest or other notice of any kind, all of which are hereby expressly waived by such BorrowerDebtor; and
(2) In the case of any Event of Default other than under clauses (f) or (g), and/or (B) terminate RACC may, by written notice to ▇▇▇▇▇▇, declare the Commitments as unpaid principal amount of this Promissory Note and all other amounts payable hereunder, to such defaulting Borrowerbe forthwith due and payable, whereupon the Commitments of the Banks to make Committed Credit Loans hereunder to such defaulting Borrower shall forthwith terminate without any other presentment, demand, protest or further notice of any kind kind, all of which are hereby expressly waived by Debtor. In addition to and without in any way limiting the percentages foregoing, upon the occurrence of an Event of Default or at any time thereafter, RACC may employ all remedies allowed by law, including, without limitation, those available to a secured party under the Commitment Fee Uniform Commercial Code. No remedy herein conferred upon RACC is intended to be exclusive of any other remedy and other fees each and expenses otherwise payable by such defaulting Borrower hereunder accruing from and after the date of termination every remedy shall be reallocated among the remaining Borrowers PRO RATA on the basis of the percentages set forth opposite such remaining Borrowers' names on SCHEDULE 1cumulative and in addition to every other remedy hereunder, as now or hereafter existing at law or in effect at the time of such terminationequity or otherwise.
Appears in 1 contract
Sources: Group a Return Conditions Note (Great Lakes Aviation LTD)
Events of Default; Acceleration. If any Any of the following events (each shall constitute an "EVENT OF DEFAULTEvent of Default") shall occur with respect to any Borrower:: ----------------
(a) Such Borrower (i) the Company shall default in the any payment of any principal of amount outstanding hereunder or under any Loan, interest accrued thereon or fee due hereunder after the same becomes Notes when due and payable, whether at maturity or at any date fixed for payment or prepayment or by acceleration declaration or otherwise, or (ii) shall default in the payment of any other amount due hereunder after the same becomes due and payable; or
(b) Such Borrower the Company shall fail to pay any interest with respect to principal outstanding hereunder, or any fee pursuant to the terms of Section 2.9, within five (5) Business Days after the date due and payable, whether at maturity or at any date fixed for payment or prepayment or by declaration or otherwise, other than due to a failure of the Administrative Agent to charge an account of the Company having a sufficient credit balance; or
(c) there shall be a default in the performance of or compliance with any term contained covenant in Sections 9.01(a) or 9.01(b) and such default shall have continued for more than three (3) Banking Days, or such Borrower shall default in the performance of or compliance with any term contained in Sections 8.02(d), 8.02(e), 8.02(g), 8.05, 9.02, 9.03 or 9.04Section 7 hereof; or
(cd) Such Borrower the Company shall default in the performance of or compliance with any term contained herein (other than those expressly referred to above in this Section 10.018), and such default shall not have been remedied within five thirty (530) Banking Business Days after written notice thereof shall have been given to such Borrower by the Operations Agent; or
(d) Such Borrower shall default in the performance of, or compliance with, any material term contained in any other written agreement with the Operations Agent or any Bank pertaining to this Agreement or such Borrower's Loans, and such default shall continue for more than the period of grace, if any, specified therein and shall not have been waived pursuant theretooccurrence thereof; or
(e) Any representationany representation or warranty made in writing by or on behalf of the Company herein, warranty certification or statement made or deemed made by such Borrower in this Agreement any other Loan Document or in connection with any certificate, financial statement or other document delivered pursuant hereto of the transactions contemplated hereby shall prove to have been false or incorrect in any material respect when on the date as of which made; or
(f) Except as otherwise provided in this Section 10.01the Parent, such Borrower the Company or any of their respective Subsidiaries shall default (as principal or guarantor or other surety) in the payment of any payment due on Indebtedness for borrowed money principal or the deferred purchase price of property, the aggregate outstanding principal amount of which is in excess of five percent (5%) of such Borrower's Total Assets, and such default shall continue for more than the period of gracepremium, if any, applicable thereto of, or interest or fees on, any other Indebtedness to any Bank, or any other Indebtedness in respect of borrowed money in an aggregate principal amount of $10,000,000 or more (which default is in payment thereof at its stated maturity or shall result in such Indebtedness becoming or being declared due prior to the scheduled maturity thereof) or if the Parent, the Company or any of their respective Subsidiaries shall fail to comply (and shall such failure to comply has not have been waived pursuant thereto cured or waived) with any of the terms of any document evidencing any such Indebtedness or any mortgage, pledge, assignment, indenture or other document relating thereto, and shall permit as a consequence of any of the foregoing, the holder of such Indebtedness shall have the right to declare such Indebtedness all amounts payable with respect thereto to be due and payable before its stated maturity, or in the performance of or compliance with any term of any evidence by reason of such Indebtedness default prior to the scheduled maturity thereof or demand payment of any mortgage, indenture or other agreement relating thereto, and any such default shall continue for more than the period of grace, if any, specified therein and shall not have been waived pursuant thereto and shall permit the holder of such Indebtedness to declare such Indebtedness due and all amounts payable before its stated maturity, unless such Borrower shall be contesting such payment or obligation in good faith by appropriate proceedings promptly initiated and diligently conducted and such Borrower shall have set aside on its books such reserves, if any, with respect thereto as are required by GAAP and deemed appropriate by such Borrower and its independent public accountants, PROVIDED, that no Event of Default pursuant to paragraphs (b) or (i) of this Section 10.01 shall have occurred and be continuing as a result of such claim having been asserted in respect of such Indebtednessany Indebtedness payable on demand; or
(g) Such Borrower shall discontinue its business (other than in connection with a permitted merger if the Parent, the Company or consolidation any of such Borrower) or shall make their respective Subsidiaries makes an assignment for the benefit of creditors, or shall fail generally to pay its debts as such debts become due, petitions or shall apply applies for or consent to the appointment of a liquidator or taking possession by a trustee, receiver of or liquidator (or other similar official) for any of such Borrower Persons, or of any substantial part of the property respective assets thereof, or assets commences any proceeding relating to any of such Borrower Persons under any bankruptcy, reorganization, arrangement, insolvency, readjustment of debt, dissolution or shall commence a case liquidation or have an order for relief entered against it under the federal bankruptcy lawssimilar law of any jurisdiction, as now or hereafter constituted, or any other applicable federal or state bankruptcy, insolvency or other similar law, or if any action shall be taken to dissolve or liquidate such Borrower (other than in connection with a permitted merger or consolidation of such Borrower)effect; or
(h) Ifif any such petition or application is filed or any such proceeding is commenced against the Parent, within sixty (60) days after the commencement against Company or any of their respective Subsidiaries, and any of such Borrower of a case under the federal bankruptcy lawsPersons indicates its approval thereof, as now consents thereto or hereafter constitutedacquiesces therein, or any other applicable federal such petition, application or state bankruptcy, insolvency or other similar law, such case shall have been consented to or shall not have been dismissed or all orders or proceedings thereunder affecting the operations or the business of such Borrower stayedproceeding remains undischarged for thirty (30) days, or if the stay of an order is entered appointing any such order liquidator or proceeding shall thereafter be set asidereceiver, or if within sixty (60) days after adjudicating the entry of a decree appointing a trusteeParent, receiver or liquidator (or other similar official) of such Borrower the Company or any substantial part of the property of their respective Subsidiaries bankrupt or insolvent, or approving a petition in any such Borrower such appointment shall not have been vacatedproceeding; or
(i) A final judgment whichany order is entered in any proceeding by or against the Parent, together with other outstanding final judgments against such Borrower, exceeds an amount in the aggregate equal to five percent (5%) Company or any of their respective Subsidiaries decreeing or permitting the dissolution or split-up of any of such Borrower's Total Assets (exclusive Persons or the winding-up of amounts covered by available insurance) shall be rendered against such Borrower and if, within thirty (30) days after entry thereof, such judgment shall not have been discharged or execution thereof stayed pending appeal, or if, within thirty (30) days after the expiration affairs of any of such stay, such judgment shall not have been dischargedPersons; or
(j) Such Borrower there shall be in force, undischarged, unsatisfied and unstayed, for more than thirty (30) days, whether or not consecutive, any member final judgment (from which all appeals have been taken and determined or as to which all time for the taking of the Controlled Group shall fail to pay when due an amount or amounts aggregating appeals has lapsed) in excess of $500,000 which it is obligated to pay to 1,000,000 in the PBGC or to a Plan under Title IV of ERISA; or a notice of intent to terminate a Plan or Plans having aggregate Unfunded Liabilities in excess of $500,000 shall be filed under Title IV of ERISA by such Borrower against the Parent, the Company or any member of the Controlled Group, any plan administrator or any combination of the foregoing; or the PBGC shall institute proceedings under Title IV of ERISA to terminate or to cause a trustee to be appointed to administer any such Plan or Plans or a proceeding shall be instituted by a fiduciary of any such Plan or Plans against such Borrower or any member of the Controlled Group to enforce Sections 515 or 4219(c)(5) of ERISA; or a condition shall exist by reason of which the PBGC would be entitled to obtain a decree adjudicating that any such Plan or Plans must be terminated; or there shall occur a complete or partial withdrawal from, or a default, within the meaning of Section 4219(c)(5) of ERISA, with respect to, one or more Multiemployer Plans which could cause such Borrower or one or more members of the Controlled Group to incur a current payment obligation in excess of $500,000their respective Subsidiaries; or
(k) Such Borrower any representation or warranty made in writing by or on behalf of the Parent in the Guaranty, in any other Loan Document or in connection with any of the transactions contemplated hereby or thereby shall prove to have been false or incorrect in any material respect on the date as of when made, or if the Parent shall default in respect of any of its obligations under the Guaranty or if the Guaranty shall cease to be an investment management company in full force and effect without the prior written consent of the Banks; or
(or a Portfolio thereofl) registered under the Investment Company Act, or such Borrower's registration under the Investment Company Act, or that of any Borrower Agent of such Borrower, Parent shall lapse or be suspended; then, and in any such event, and at any time thereafterown, if any Event beneficially, and of Default shall then be continuing with respect to such defaulting Borrowerrecord, (i) in the case less than a majority of any Event of Default specified in paragraphs (g) and (h) above, the Commitments as to such defaulting Borrower shall thereupon automatically be terminated and the principal of and accrued interest on the Loans shall automatically become due and payable without presentment, demand, protest or other notice or formality of any kind, all of which are hereby expressly waived, the issued and (ii) in the case outstanding shares of any other Event of Default specified above, either or both capital stock of the following actions may be taken: Company having ordinary voting rights for the Operations Agent may, and upon the written or telephonic (confirmed in writing) request election of the Majority Banks shall, by written notice to such defaulting Borrower (A) declare the principal of and accrued interest in respect of such defaulting Borrower's Loans to be forthwith due and payable, whereupon the principal of and accrued interest in respect of such Loans shall become forthwith due and payable without presentment, demand, protest or other notice of any kind, all of which are hereby expressly waived by such Borrower, and/or (B) terminate the Commitments as to such defaulting Borrower, whereupon the Commitments of the Banks to make Committed Credit Loans hereunder to such defaulting Borrower shall forthwith terminate without any other notice of any kind and the percentages of the Commitment Fee and other fees and expenses otherwise payable by such defaulting Borrower hereunder accruing from and after the date of termination shall be reallocated among the remaining Borrowers PRO RATA on the basis of the percentages set forth opposite such remaining Borrowers' names on SCHEDULE 1, as in effect at the time of such terminationdirectors.
Appears in 1 contract
Sources: Credit Agreement (Xtra Corp /De/)
Events of Default; Acceleration. If any of the following conditions or events (each an "EVENT OF DEFAULTEvents of Default") shall occur with respect to any Borrowerand be continuing:
(a) Such Borrower (i) the Company shall default in the payment of any principal of or Make Whole Amount or Premium Amount, if any, on any Loan, interest accrued thereon or fee due hereunder after Note when the same becomes due and payable, whether at maturity or at a date fixed for prepayment or by acceleration declaration or otherwise, or ; or
(iib) the Company shall default in the payment of any other interest on any Note or any amount due hereunder and payable under any Operative Agreement for more than 5 Business Days after the same becomes due and payable; or
(bc) Such Borrower the Company or any Restricted Subsidiary shall default in the performance of or compliance with any term contained in Section 7(f), any of Sections 9.01(a) or 9.01(b) and such default shall have continued for more 10.1 through 10.8 (other than three (3) Banking DaysSection 10.8(c)), inclusive, or such Borrower the Dedicated Funds are not used to repay Indebtedness as specified in the pro forma calculations set forth in the definition of Consolidated Pro Forma Debt Service or the definition of Maximum Consolidated Pro Forma Debt Service, as the case may be; or
(d) the Company, either General Partner, the Public Partnership or any Restricted Subsidiary shall default in the performance of or compliance with any other term contained in Sections 8.02(d), 8.02(e), 8.02(g), 8.05, 9.02, 9.03 this Agreement or 9.04; or
(c) Such Borrower shall default in the performance of or compliance with any term contained herein other than those expressly referred to in this Section 10.01, Operative Agreement and such default shall not have been remedied within five (5) Banking 30 Business Days after the earlier of the date such default shall first have become actually known to any Responsible Officer of such Person or the date written notice thereof shall have been given to such Borrower received by the Operations AgentCompany from the Trustee or from any Note holder; or
(de) Such Borrower any material representation or warranty made in writing by or on behalf of the Company or any of its Affiliates in this Agreement, any other Operative Agreement or in any instrument furnished in connection with the transactions contemplated by this Agreement shall prove to have been false or incorrect in any material respect on the date as of which made or deemed made; or
(i) the Company or any Restricted Subsidiary (as principal or guarantor or other surety) shall default (after receiving notice, if any, and/or the expiration of any applicable grace period) in the performance of, payment of any amount of principal of or compliance with, any material term contained in any other written agreement with premium or interest on the Operations Agent Parity Debt or any Bank pertaining event shall occur or condition shall exist in respect of the Parity Debt the effect of which is to this Agreement cause such Parity Debt to become due before its stated maturity or such Borrower's Loans, before its regularly scheduled dates of payment and such default default, event or condition shall continue for more than the period of grace, if any, specified therein and shall not have been waived pursuant thereto; or;
(eii) Any representation, warranty certification the Company or statement made any Restricted Subsidiary (as principal or deemed made by such Borrower in this Agreement or in any certificate, financial statement guarantor or other document delivered pursuant hereto shall prove to have been false or incorrect in any material respect when made; or
(fsurety) Except as otherwise provided in this Section 10.01, such Borrower shall default in any payment due on Indebtedness for borrowed money or the deferred purchase price of property, the aggregate outstanding principal amount of which is in excess of five percent (5%) of such Borrower's Total Assets, and such default shall continue for more than the period of graceafter receiving notice, if any, and/or the expiration of any applicable thereto and grace period) in the payment of any amount of principal of or premium or interest on any Indebtedness in an amount at least equal to $10,000,000; or any event shall not have been waived pursuant thereto and occur or condition shall permit the holder exist in respect of such other Indebtedness to declare such Indebtedness due and payable before its stated maturity, which is outstanding in a principal amount of at least $10,000,000 or in the performance of or compliance with any term of under any evidence of any such Indebtedness or of any mortgage, indenture or other agreement relating theretoto such other Indebtedness, and any the effect of which is to cause such default shall continue for more than the period of grace, if any, specified therein and shall not have been waived pursuant thereto and shall permit the holder of such other Indebtedness to declare such Indebtedness become due and payable before its stated maturity, unless such Borrower shall be contesting such payment maturity or obligation in good faith by appropriate proceedings promptly initiated and diligently conducted and such Borrower shall have set aside on before its books such reserves, if any, with respect thereto as are required by GAAP and deemed appropriate by such Borrower and its independent public accountants, PROVIDED, that no Event regularly scheduled dates of Default pursuant to paragraphs (b) or (i) of this Section 10.01 shall have occurred and be continuing as a result of such claim having been asserted in respect of such Indebtednesspayment; or
(g) Such Borrower shall discontinue filing by or on the behalf of the Company or the Managing General Partner of a voluntary petition or an answer seeking reorganization, arrangement, readjustment of its business debts or for any other relief under any bankruptcy, reorganization, compromise, arrangement, insolvency, readjustment of debt, dissolution or liquidation or similar act or law, state or federal, now or hereafter existing ("Bankruptcy Law"), or any action by the Company or the Managing General Partner, or consent or acquiescence to, the appointment of a receiver, trustee or other than in connection with custodian of the Company or the Managing General Partner, or of all or a permitted merger substantial part of its property; or consolidation the making by the Company or the Managing General Partner of such Borrower) or shall make an any assignment for the benefit of creditors, ; or shall fail generally the admission by the Company or the Managing General Partner of the Company in writing of its inability to pay its debts as such debts they become due, or shall apply for or consent to the appointment of or taking possession by a trustee, receiver or liquidator (or other similar official) of such Borrower or any substantial part of the property or assets of such Borrower or shall commence a case or have an order for relief entered against it under the federal bankruptcy laws, as now or hereafter constituted, or any other applicable federal or state bankruptcy, insolvency or other similar law, or if any action shall be taken to dissolve or liquidate such Borrower (other than in connection with a permitted merger or consolidation of such Borrower); or
(h) Iffiling of any involuntary petition against the Company or the Managing General Partner in bankruptcy or seeking reorganization, within sixty (60) days after arrangement, readjustment of its debts or for any other relief under any Bankruptcy Law and an order for relief by a court having jurisdiction in the commencement against such Borrower of a case under the federal bankruptcy laws, as now premises shall have been issued or hereafter constituted, entered therein; or any other similar relief shall be granted under any applicable federal Federal or state bankruptcylaw; or a decree or order of a court having jurisdiction in the premises for the appointment of a receiver, insolvency liquidator, sequestrator, trustee or other officer having similar law, such case powers over the Company or the Managing General Partner or over all or a part of its property shall have been consented to or shall not have been dismissed or all orders or proceedings thereunder affecting the operations entered; or the business involuntary appointment of such Borrower stayedan interim receiver, trustee or if other custodian of the stay Company or the Managing General Partner or of any such order all or proceeding shall thereafter be set aside, a substantial part of its property; or if within sixty (60) days after the entry issuance of a decree appointing a trusteewarrant of attachment, receiver execution or liquidator (or other similar official) of such Borrower or process against any substantial part of the property of the Company or the Managing General Partner; and continuance of any such Borrower such appointment shall not have been vacatedevent for 60 consecutive days unless dismissed, bonded to the satisfaction of the court having jurisdiction in the premises or discharged; or
(i) A filing by or on the behalf of any Restricted Subsidiary of a voluntary petition or an answer seeking reorganization, arrangement, readjustment of its debts or for any other relief under any Bankruptcy Law, or any action by any Restricted Subsidiary for, or consent or acquiescence to, the appointment of a receiver, trustee or other custodian of such Restricted Subsidiary or of all or a substantial part of its property; or the making by any Restricted Subsidiary of any assignment for the benefit of creditors; or the admission by any Restricted Subsidiary in writing of its inability to pay its debts as they become due; or
(j) filing of any involuntary petition against any Restricted Subsidiary in bankruptcy or seeking reorganization, arrangement, readjustment of its debts or for any other relief under any Bankruptcy Law and an order for relief by a court having jurisdiction in the premises shall have been issued or entered therein; or any other similar relief shall be granted under any applicable Federal or state law; or a decree or order of a court having jurisdiction in the premises for the appointment of a receiver, liquidator, sequestrator, trustee or other officer having similar powers over any Restricted Subsidiary or over all or a part of its property shall have been entered; or the involuntary appointment of an interim receiver, trustee or other custodian of any Restricted Subsidiary or of all or a substantial part of its property; or the issuance of a warrant of attachment, execution or similar process against any substantial part of the property of any Restricted Subsidiary; and continuance of any such event for 60 consecutive days unless dismissed, bonded to the satisfaction of the court having jurisdiction in the premises or discharged; or
(k) a final judgment which, together with other outstanding final or judgments against such Borrower, exceeds an amount in the aggregate equal (which is or are non-appealable or which has or have not been stayed pending appeal or as to five percent (5%) of such Borrower's Total Assets (exclusive of amounts covered by available insurancewhich all rights to appeal have expired or been exhausted) shall be rendered against the Company or any Restricted Subsidiary for the payment of money in excess of $10,000,000 in the aggregate (net of any insurance coverage) and any one of such Borrower and if, within thirty (30) days after entry thereof, such judgment judgments shall not have been be discharged or execution thereof thereon stayed pending appeal, or if, appeal within thirty (30) 60 days after the expiration date due, or, in the event of any such a stay, such judgment shall not have been dischargedbe discharged within 60 days after such stay expires or any action shall be legally taken by a judgment creditor to levy upon the assets or properties of the Company or any Restricted Subsidiary to enforce any such judgment; or
(jl) Such Borrower any of the Security Documents shall at any time, for any reason, cease in any material respect to be in full force and effect or shall be declared to be null and void in whole or in any material part by the final judgment (which is non-appealable or has not been stayed pending appeal or as to which all rights to appeal have expired or been exhausted) of any court or other governmental or regulatory authority having jurisdiction in respect thereof, or if the validity or the enforceability of any of the Security Documents shall be contested by or on behalf of the Company, either General Partner, the Public Partnership, or any member Restricted Subsidiary, or the Company, either General Partner, the Public Partnership, or any Restricted Subsidiary shall renounce any of the Controlled Group shall fail to pay when due an amount Security Documents or amounts aggregating in excess of $500,000 which deny that it is obligated to pay to bound by the PBGC or to a Plan under Title IV terms of ERISA; or a notice of intent to terminate a Plan or Plans having aggregate Unfunded Liabilities in excess of $500,000 shall be filed under Title IV of ERISA by such Borrower or any member of the Controlled Group, any plan administrator or any combination of the foregoing; or the PBGC shall institute proceedings under Title IV of ERISA to terminate or to cause a trustee to be appointed to administer any such Plan or Plans or a proceeding shall be instituted by a fiduciary of any such Plan or Plans against such Borrower or any member of the Controlled Group to enforce Sections 515 or 4219(c)(5) of ERISA; or a condition shall exist by reason of which the PBGC would be entitled to obtain a decree adjudicating that any such Plan or Plans must be terminated; or there shall occur a complete or partial withdrawal from, or a default, within the meaning of Section 4219(c)(5) of ERISA, with respect to, one or more Multiemployer Plans which could cause such Borrower or one or more members of the Controlled Group to incur a current payment obligation in excess of $500,000Security Documents; or
(km) Such Borrower any order, judgment or decree is entered in any proceedings against the Company decreeing a split-up of the Company, and such order, judgment or decree shall cease to not be an investment management company (dismissed or a Portfolio execution thereon stayed pending appeal or review within 60 days after entry thereof) registered under the Investment Company Act, or such Borrower's registration under in the Investment Company Act, or that of any Borrower Agent event of such Borrowera stay, such order, judgment or decree shall lapse or not be suspended; then, and in any dismissed within 60 days after such event, and at any time thereafter, if any Event of Default shall then be continuing with respect to such defaulting Borrower, (i) in the case of any Event of Default specified in paragraphs (g) and (h) above, the Commitments as to such defaulting Borrower shall thereupon automatically be terminated and the principal of and accrued interest on the Loans shall automatically become due and payable without presentment, demand, protest or other notice or formality of any kind, all of which are hereby expressly waived, and (ii) in the case of any other Event of Default specified above, either or both of the following actions may be taken: the Operations Agent may, and upon the written or telephonic (confirmed in writing) request of the Majority Banks shall, by written notice to such defaulting Borrower (A) declare the principal of and accrued interest in respect of such defaulting Borrower's Loans to be forthwith due and payable, whereupon the principal of and accrued interest in respect of such Loans shall become forthwith due and payable without presentment, demand, protest or other notice of any kind, all of which are hereby expressly waived by such Borrower, and/or (B) terminate the Commitments as to such defaulting Borrower, whereupon the Commitments of the Banks to make Committed Credit Loans hereunder to such defaulting Borrower shall forthwith terminate without any other notice of any kind and the percentages of the Commitment Fee and other fees and expenses otherwise payable by such defaulting Borrower hereunder accruing from and after the date of termination shall be reallocated among the remaining Borrowers PRO RATA on the basis of the percentages set forth opposite such remaining Borrowers' names on SCHEDULE 1, as in effect at the time of such termination.stay expires;
Appears in 1 contract
Events of Default; Acceleration. If any In case one or more of the following events Events of Default (each an "EVENT OF DEFAULT"whatever the reason for such Event of Default and whether it shall be voluntary or involuntary or be effected by operation of law or pursuant to any judgment, decree or order of any court or any order, rule or regulation of any administrative or governmental body) shall occur with respect to any Borrowerhave occurred and be continuing:
(a) Such Borrower (i) shall default in the payment of principal of any Loan, interest accrued thereon or fee due hereunder after the same becomes due and payable, whether at maturity or by acceleration or otherwise, or (ii) shall default in the payment of any other amount due hereunder after installment of interest or Liquidated Damages with respect to any of the Notes as and when the same becomes shall become due and payable, and continuance of such default for a period of thirty (30) days; or
(b) Such Borrower shall default in the performance payment of the principal of or compliance premium, if any, on any of the Notes as and when the same shall become due and payable either at maturity or in connection with any term contained redemption or repurchase, in Sections 9.01(a) each case pursuant to Article 3, by acceleration or 9.01(b) otherwise (and regardless of whether such default shall have continued for more than three (3) Banking Dayspayment is to be made in cash, Common Stock or such Borrower shall default in the performance of or compliance with any term contained in Sections 8.02(da combination thereof), 8.02(e), 8.02(g), 8.05, 9.02, 9.03 or 9.04; or
(c) Such Borrower shall default in the performance of or compliance with any term contained herein other than those expressly referred Company's obligation to provide a Fundamental Change Notice upon a Fundamental Change as provided in this Section 10.01, and such default shall not have been remedied within five (5) Banking Days after written notice thereof shall have been given to such Borrower by the Operations Agent3.05; or
(d) Such Borrower shall failure on the part of the Company duly to observe or perform any other of the covenants or agreements on the part of the Company in the Notes or in this Indenture (other than a covenant or agreement a default in whose performance or whose breach is elsewhere in this Section 6.01 specifically dealt with) continued for a period of sixty (60) days after the performance ofdate on which written notice of such failure, requiring the Company to remedy the same, shall have been given to the Company by the Trustee, or compliance with, any material term contained the Company and a Responsible Officer of the Trustee by the holders of at least twenty-five percent (25%) in any other written agreement aggregate principal amount of the Notes at the time outstanding determined in accordance with the Operations Agent or any Bank pertaining to this Agreement or such Borrower's Loans, and such default shall continue for more than the period of grace, if any, specified therein and shall not have been waived pursuant theretoSection 8.04; or
(e) Any representation, warranty certification or statement made or deemed made by such Borrower in this Agreement or in any certificate, financial statement the Company shall commence a voluntary case or other document delivered pursuant hereto shall prove proceeding seeking liquidation, reorganization or other relief with respect to have been false its debts under any bankruptcy, insolvency or incorrect other similar law now or hereafter in effect or seeking the appointment of a trustee, receiver, liquidator, custodian or other similar official of it or any material respect when made; or
(f) Except as otherwise provided in this Section 10.01, such Borrower shall default in any payment due on Indebtedness for borrowed money or the deferred purchase price substantial part of its property, or shall consent to any such relief or to the aggregate outstanding principal amount of which is in excess of five percent (5%) of such Borrower's Total Assets, and such default shall continue for more than the period of grace, if any, applicable thereto and shall not have been waived pursuant thereto and shall permit the holder of such Indebtedness to declare such Indebtedness due and payable before its stated maturity, or in the performance appointment of or compliance with taking possession by any term of any evidence of such Indebtedness or of any mortgage, indenture official in an involuntary case or other agreement relating theretoproceeding commenced against it, and any such default shall continue for more than the period of grace, if any, specified therein and shall not have been waived pursuant thereto and shall permit the holder of such Indebtedness to declare such Indebtedness due and payable before its stated maturity, unless such Borrower shall be contesting such payment or obligation in good faith by appropriate proceedings promptly initiated and diligently conducted and such Borrower shall have set aside on its books such reserves, if any, with respect thereto as are required by GAAP and deemed appropriate by such Borrower and its independent public accountants, PROVIDED, that no Event of Default pursuant to paragraphs (b) or (i) of this Section 10.01 shall have occurred and be continuing as a result of such claim having been asserted in respect of such Indebtedness; or
(g) Such Borrower shall discontinue its business (other than in connection with a permitted merger or consolidation of such Borrower) or shall make an a general assignment for the benefit of creditors, or shall fail generally to pay its debts as such debts they become due, or shall apply for or consent to the appointment of or taking possession by a trustee, receiver or liquidator ; or
(f) an involuntary case or other similar official) of such Borrower proceeding shall be commenced against the Company seeking liquidation, reorganization or other relief with respect to its debts under any substantial part of the property or assets of such Borrower or shall commence a case or have an order for relief entered against it under the federal bankruptcy laws, as now or hereafter constituted, or any other applicable federal or state bankruptcy, insolvency or other similar law, or if any action shall be taken to dissolve or liquidate such Borrower (other than in connection with a permitted merger or consolidation of such Borrower); or
(h) If, within sixty (60) days after the commencement against such Borrower of a case under the federal bankruptcy laws, as law now or hereafter constitutedin effect or seeking the appointment of a trustee, or any other applicable federal or state bankruptcyreceiver, insolvency liquidator, custodian or other similar law, such case shall have been consented to or shall not have been dismissed or all orders or proceedings thereunder affecting the operations or the business official of such Borrower stayed, or if the stay of any such order or proceeding shall thereafter be set aside, or if within sixty (60) days after the entry of a decree appointing a trustee, receiver or liquidator (or other similar official) of such Borrower it or any substantial part of the property of its property, and such Borrower such appointment shall not have been vacated; or
(i) A final judgment which, together with involuntary case or other outstanding final judgments against such Borrower, exceeds an amount in the aggregate equal to five percent (5%) of such Borrower's Total Assets (exclusive of amounts covered by available insurance) shall be rendered against such Borrower and if, within thirty (30) days after entry thereof, such judgment shall not have been discharged or execution thereof stayed pending appeal, or if, within thirty (30) days after the expiration of any such stay, such judgment shall not have been discharged; or
(j) Such Borrower or any member of the Controlled Group shall fail to pay when due an amount or amounts aggregating in excess of $500,000 which it is obligated to pay to the PBGC or to a Plan under Title IV of ERISA; or a notice of intent to terminate a Plan or Plans having aggregate Unfunded Liabilities in excess of $500,000 shall be filed under Title IV of ERISA by such Borrower or any member of the Controlled Group, any plan administrator or any combination of the foregoing; or the PBGC shall institute proceedings under Title IV of ERISA to terminate or to cause a trustee to be appointed to administer any such Plan or Plans or a proceeding shall be instituted by remain undismissed and unstayed for a fiduciary period of any such Plan or Plans against such Borrower or any member of the Controlled Group to enforce Sections 515 or 4219(c)(5ninety (90) of ERISA; or a condition shall exist by reason of which the PBGC would be entitled to obtain a decree adjudicating that any such Plan or Plans must be terminated; or there shall occur a complete or partial withdrawal from, or a default, within the meaning of Section 4219(c)(5) of ERISA, with respect to, one or more Multiemployer Plans which could cause such Borrower or one or more members of the Controlled Group to incur a current payment obligation in excess of $500,000; or
(k) Such Borrower shall cease to be an investment management company (or a Portfolio thereof) registered under the Investment Company Act, or such Borrower's registration under the Investment Company Act, or that of any Borrower Agent of such Borrower, shall lapse or be suspendedconsecutive days; then, and in any each and every such event, and at any time thereafter, if any Event of Default shall then be continuing with respect to such defaulting Borrower, case (i) in the case of any other than an Event of Default specified in paragraphs Section 6.01(e) or 6.01(f)), unless the principal of all of the Notes shall have already become due and payable, either the Trustee or the holders of not less than twenty-five percent (g25%) in aggregate principal amount of the Notes then outstanding hereunder determined in accordance with Section 8.04, by notice in writing to the Company (and to the Trustee if given by Noteholders) specifying the respective Event of Default and stating that it is a "notice of acceleration," may declare the principal of and premium, if any, on all the Notes and the interest accrued thereon to be due and payable immediately, and upon receipt of such notice the same shall become and shall be immediately due and payable. If an Event of Default specified in Section 6.01(e) or (hf) aboveoccurs, the Commitments principal of all the Notes and the interest accrued thereon shall be immediately and automatically due and payable without necessity of further action. This provision, however, is subject to the conditions that if, at any time after the principal of the Notes shall have been so declared due and payable, and before any judgment or decree for the payment of the monies due shall have been obtained or entered as hereinafter provided, the Company shall pay or shall deposit with the Trustee a sum sufficient to such defaulting Borrower shall thereupon automatically be terminated pay all matured installments of interest upon all Notes and the principal of and premium, if any, on any and all Notes which shall have become due otherwise than by acceleration (with interest on overdue installments of interest (to the extent that payment of such interest is enforceable under applicable law) and on such principal and premium, if any, at the rate borne by the Notes plus 1%, to the date of such payment or deposit) and amounts due to the Trustee pursuant to Section 7.06, and if any and all defaults under this Indenture, other than the nonpayment of principal of and premium, if any, and accrued interest on the Loans Notes which shall automatically have become due by acceleration, shall have been cured or waived pursuant to Section 6.07, then and payable without presentment, demand, protest or other notice or formality in every such case the holders of any kind, all of which are hereby expressly waived, and (ii) a majority in the case of any other Event of Default specified above, either or both aggregate principal amount of the following actions may be taken: the Operations Agent may, and upon the written or telephonic (confirmed in writing) request of the Majority Banks shallNotes then outstanding, by written notice to the Company and to the Trustee, may waive all defaults or Events of Default and rescind and annul such defaulting Borrower (A) declare declaration and its consequences; but no such waiver or rescission and annulment shall extend to or shall affect any subsequent default or Event of Default, or shall impair any right consequent thereon. The Company shall notify in writing a Responsible Officer of the principal Trustee, promptly upon becoming aware thereof, of any Event of Default. In case the Trustee shall have proceeded to enforce any right under this Indenture and accrued interest in respect such proceedings shall have been discontinued or abandoned because of such defaulting Borrower's Loans waiver or rescission and annulment or for any other reason or shall have been determined adversely to the Trustee, then and in every such case the Company, the holders of Notes, and the Trustee shall be forthwith due restored respectively to their several positions and payablerights hereunder, whereupon the principal of and accrued interest in respect of such Loans shall become forthwith due all rights, remedies and payable without presentment, demand, protest or other notice of any kind, all of which are hereby expressly waived by such Borrower, and/or (B) terminate the Commitments as to such defaulting Borrower, whereupon the Commitments powers of the Banks to make Committed Credit Loans hereunder to such defaulting Borrower shall forthwith terminate without any other notice Company, the holders of any kind Notes, and the percentages of the Commitment Fee and other fees and expenses otherwise payable by Trustee shall continue as though no such defaulting Borrower hereunder accruing from and after the date of termination shall be reallocated among the remaining Borrowers PRO RATA on the basis of the percentages set forth opposite such remaining Borrowers' names on SCHEDULE 1, as in effect at the time of such terminationproceeding had been taken.
Appears in 1 contract
Sources: Indenture (Standard Management Corp)
Events of Default; Acceleration. If any of the following events (each an "EVENT OF DEFAULTEvent of Default") shall occur with respect to any Borroweroccur:
(a) Such Any Borrower (i) shall default in the payment of principal of or interest on any Loan, interest accrued thereon Note or any other fee due hereunder after the same becomes due and payablehereunder, whether at maturity or by acceleration or otherwise, or (ii) shall default in at a date fixed for the payment of any other amount due hereunder after installment or prepayment thereof or otherwise, and in the same becomes due and payablecase of any such fee payment default, such default shall continue for a period of three (3) Business Days following the date of such default; or
(b) Such Any Borrower shall default in the performance of or compliance with any term contained in Sections 9.01(a6.2(g), 6.2(h), 6.2(i), 6.3, 6.9, 6.10 and 7.1 to and including 7.14, and 8; or
(c) or 9.01(b) and such default shall have continued for more than three (3) Banking Days, or such Any Borrower shall default in the performance of or compliance with any term contained in Sections 8.02(d)term, 8.02(e)condition, 8.02(g), 8.05, 9.02, 9.03 covenant or 9.04; or
agreement (c) Such Borrower shall default in the performance of or compliance with any term contained herein other than those expressly referred listed in 9.1(b)) to in be performed or observed by it under this Section 10.01, Credit Agreement or under any other Loan Document and such default shall not have been remedied within five continue for a period of thirty (530) Banking Days after written notice thereof shall have been given to such Borrower by the Operations Agentdays or more; or
(d) Such Borrower shall default in the performance of, Any representation or compliance with, any material term contained in any other written agreement with the Operations Agent or any Bank pertaining to this Agreement or such Borrower's Loans, and such default shall continue for more than the period of grace, if any, specified therein and shall not have been waived pursuant thereto; or
(e) Any representation, warranty certification or statement made or deemed made by such any Borrower in this Agreement herein or in any certificate, financial statement or other document delivered pursuant hereto shall prove to have been false or incorrect in any material respect when made or when deemed to have been made; or
(fe) Except as otherwise provided in this Section 10.01, such Any Borrower or any Subsidiary shall default in (i) the payment of any payment due on Indebtedness for in respect of borrowed money (other than the Loans), any Capitalized Lease or the deferred purchase price of property, the aggregate outstanding principal amount of which is in excess of five percent (5%) of such Borrower's Total Assets, any property and such default (A) shall continue for more than the period after giving effect to any applicable grace periods and (B) shall be in respect of grace, if any, applicable thereto an aggregate amount of principal (whether or not due) and shall not have been waived pursuant thereto and shall permit the holder of such Indebtedness to declare such Indebtedness due and payable before its stated maturity, accrued interest exceeding $250,000; or in (ii) the performance of or compliance with any term of any evidence of agreement or instrument relating to such Indebtedness or of any mortgage, indenture or other agreement relating thereto, and any such default (A) shall continue for more than continue, without having been duly cured, waived or consented to, beyond the period of grace, if any, specified therein in such agreement or instrument, and shall not have been waived pursuant thereto and (B) shall permit the holder acceleration of such Indebtedness prior to declare such Indebtedness due and payable before its stated maturity, unless such Borrower shall be contesting such payment or obligation in good faith by appropriate proceedings promptly initiated and diligently conducted and such Borrower shall have set aside on its books such reserves, if any, with respect thereto as are required by GAAP and deemed appropriate by such Borrower and its independent public accountants, PROVIDED, that no Event of Default pursuant to paragraphs (b) or (i) of this Section 10.01 shall have occurred and be continuing as a result of such claim having been asserted in respect of such Indebtedness; or
(gf) Such Except as permitted by 7.5, any Borrower or any Subsidiary shall discontinue its business (other than in connection with a permitted merger or consolidation of such Borrower) or shall make an assignment for the benefit of creditors, or shall fail generally to pay its debts as such debts become due, or shall apply for or consent to the appointment of or taking possession by a trustee, receiver or liquidator (or other similar official) of any Borrower or such Borrower Subsidiary or any substantial part of the property of any Borrower or assets of such Borrower Subsidiary, or shall commence a case or have an order for relief entered against it under the federal bankruptcy laws, as now or hereafter constituted, or any other applicable federal or state bankruptcy, insolvency or other similar law, or if any Borrower or any Subsidiary shall take any action shall be taken to dissolve or liquidate any Borrower or such Borrower (other than in connection with a permitted merger or consolidation of such Borrower)Subsidiary; or
(hg) If, within sixty (60) days after the commencement against such any Borrower or any Subsidiary of a case under the federal bankruptcy laws, as now or hereafter constituted, or any other applicable federal or state bankruptcy, insolvency or other similar law, such case shall have been consented to or shall not have been dismissed or all orders or proceedings thereunder affecting the operations or the business of any Borrower and such Borrower Subsidiary stayed, or if the stay of any such order or proceeding shall thereafter be set aside, or if within sixty (60) days after the entry of a decree appointing a trustee, receiver or liquidator (or other similar official) of such any Borrower or any Subsidiary or any substantial part of the property of any Borrower or such Borrower Subsidiary, such appointment shall not have been vacated; or
(ih) A final judgment which, together with other outstanding final judgments against such Borrowerany or all of the Borrowers and its Subsidiaries, exceeds an amount in the aggregate equal to five percent (5%) of such Borrower's Total Assets (exclusive of amounts covered by available insurance) $250,000 shall be rendered against such any Borrower or any Subsidiary and if, within thirty sixty (3060) days after entry thereof, such judgment shall not have been discharged or execution thereof stayed pending appeal, or if, within thirty sixty (3060) days after the expiration of any such stay, such judgment shall not have been discharged, or if any such judgment shall not be discharged forthwith upon the commencement of proceedings to foreclose any lien, attachment or charge which may attach as security therefor and before any of the property or assets of any Borrower or any Subsidiary shall have been seized in satisfaction thereof; or
(i) Any Borrower or any Subsidiary loses, fails to keep in force, suffers the termination or revocation of or terminates, forfeits or suffers an amendment to any License which would have a material adverse effect on the operations of such Borrower or such Subsidiary; or
(j) Such Borrower There shall have occurred a Change in Control; or
(k) If with respect to any Employee Benefit Plans or Multiemployer Plans, there shall occur any member of the Controlled Group shall fail following which could reasonably be expected to pay when due an amount or amounts aggregating in excess have a material adverse effect on the financial condition of $500,000 which it is obligated any Borrower: (i) the violation of any of the provisions of ERISA; (ii) the loss by such a plan intended to pay to be a Qualified Plan of its qualification under Section 401(a) of the PBGC or to a Plan Code; (iii) the incurrence of liability under Title IV of ERISA; (iv) a failure to make full payment when due of all amounts which, under the provisions of any such plan or applicable law, any Borrower or any ERISA Affiliate is required to make; (v) the filing of a notice of intent to terminate such a Plan plan under Sections 4041 or Plans having aggregate Unfunded Liabilities in excess of $500,000 shall be filed under Title IV of ERISA by such Borrower or any member of the Controlled Group, any plan administrator or any combination of the foregoing; or the PBGC shall institute proceedings under Title IV of ERISA to terminate or to cause a trustee to be appointed to administer any such Plan or Plans or a proceeding shall be instituted by a fiduciary of any such Plan or Plans against such Borrower or any member of the Controlled Group to enforce Sections 515 or 4219(c)(5) 4041A of ERISA; or a condition shall exist by reason of which the PBGC would be entitled to obtain a decree adjudicating that any such Plan or Plans must be terminated; or there shall occur (vi) a complete or partial withdrawal fromof a Borrower or an ERISA Affiliate from any such plan; (vii) the receipt of a notice by the plan administrator of such a plan that the PBGC has instituted proceedings to terminate such plan or appoint a trustee to administer such plan; (viii) a commencement or increase of contributions to, or the adoption of or the amendment of, such a default, within plan; and (ix) the meaning of Section 4219(c)(5) of ERISA, with respect to, one or more Multiemployer Plans which could cause such assessment against a Borrower or one or more members any ERISA Affiliate of a tax under Section 4980B of the Controlled Group to incur a current payment obligation in excess of $500,000; or
(k) Such Borrower shall cease to be an investment management company (or a Portfolio thereof) registered under the Investment Company Act, or such Borrower's registration under the Investment Company Act, or that of any Borrower Agent of such Borrower, shall lapse or be suspendedCode; then, and in any such event, and at any time thereafter, if any Event of Default (other than an event described in 9(f) or 9(g) shall then be continuing with respect to such defaulting Borrower, (i) in the case of any Event of Default specified in paragraphs (g) and (h) abovecontinuing, the Commitments as to such defaulting Borrower shall thereupon automatically be terminated and Required Lenders may direct the principal of and accrued interest on the Loans shall automatically become due and payable without presentment, demand, protest or other notice or formality of any kind, all of which are hereby expressly waived, and (ii) in the case of any other Event of Default specified above, either or both of the following actions may be taken: the Operations Agent may, and upon the written or telephonic (confirmed in writing) request of the Majority Banks shallto, by written notice to such defaulting Borrower any Borrower, (Ai) declare the principal of and accrued interest in respect of such defaulting Borrower's Loans the Notes to be forthwith due and payable, whereupon the principal of and accrued interest in respect of such Loans the Notes, and all other amounts then due hereunder, shall become forthwith due and payable without presentment, demand, protest or other notice of any kind, all of which are hereby expressly waived by such each Borrower, and/or (Bii) terminate the Commitments as to such defaulting BorrowerTotal Commitment, whereupon the Commitments Total Commitment of the Banks Lenders (and the Commitment of each individual Lender) to make Committed Credit Loans hereunder to such defaulting Borrower shall forthwith terminate without any other notice of any kind kind; and with respect to any event described in 9(f) or 9(g) above, the Commitments shall automatically terminate and the percentages principal of the Commitment Fee Notes then outstanding, together with accrued interest thereon and all other fees amounts then due hereunder, shall automatically become due and expenses otherwise payable payable, without presentment, demand, protest or any other notice of any kind, all of which are hereby expressly waived by such defaulting Borrower hereunder accruing from and after the date of termination shall be reallocated among the remaining Borrowers PRO RATA on the basis each of the percentages set forth opposite such remaining Borrowers' names on SCHEDULE 1, as anything contained herein or in effect at any other Loan Document to the time of such terminationcontrary notwithstanding.
Appears in 1 contract
Sources: Revolving Credit and Term Loan Agreement (Dynamics Research Corp)
Events of Default; Acceleration. If any of the following events (each an "EVENT OF DEFAULTEvents of Default") shall occur with respect to any Borroweroccur:
(a) Such The Borrowers shall fail to pay when due and payable any principal of or interest on the Loans or any other sum due under any of the Loan Documents when the same becomes due;
(b) The Borrowers shall fail to perform any term, covenant or agreement contained in Section 6 hereof;
(c) The Borrowers or any Subsidiaries shall fail to perform any other term, covenant or agreement contained in this Agreement or any of the other Loan Documents, which failure continues for more than thirty (30) days;
(d) Any representation or warranty of the Borrowers in the Loan Documents or in any certificate or notice given in connection therewith shall have been false or misleading in any material respect at the time made or deemed to have been made;
(e) Any Borrower or any of its Subsidiaries (i) shall be in default under any agreement or agreements evidencing Indebtedness (A) owing to the Bank or are affiliated with the Bank or (B) to any other person owing in excess of $50,000 in aggregate principal amount, which default shall give the payment of principal of any Loan, interest accrued thereon or fee due hereunder after holder thereof the same becomes due and payable, whether at maturity or by acceleration or otherwiseright to accelerate such indebtedness, or (ii) shall default in the payment of fail to pay any other amount due hereunder after the same becomes due and payable; or
(b) Such Borrower shall default in the performance of or compliance with any term contained in Sections 9.01(a) or 9.01(b) and such default shall have continued for more than three (3) Banking DaysIndebtedness when due, or such Borrower shall default in the performance of or compliance with within any term contained in Sections 8.02(d), 8.02(e), 8.02(g), 8.05, 9.02, 9.03 or 9.04; or
(c) Such Borrower shall default in the performance of or compliance with any term contained herein other than those expressly referred to in this Section 10.01, and such default shall not have been remedied within five (5) Banking Days after written notice thereof shall have been given to such Borrower by the Operations Agent; or
(d) Such Borrower shall default in the performance of, or compliance with, any material term contained in any other written agreement with the Operations Agent or any Bank pertaining to this Agreement or such Borrower's Loans, and such default shall continue for more than the applicable period of grace, if any, specified therein and shall not have been waived pursuant thereto; or
(e) Any representation, warranty certification or statement made or deemed made by such Borrower in this Agreement or in any certificate, financial statement or other document delivered pursuant hereto shall prove to have been false or incorrect in any material respect when made; or;
(f) Except as otherwise provided Any of the Loan Documents shall cease to be in this Section 10.01, such Borrower shall default in any payment due on Indebtedness for borrowed money or the deferred purchase price of property, the aggregate outstanding principal amount of which is in excess of five percent (5%) of such Borrower's Total Assets, full force and such default shall continue for more than the period of grace, if any, applicable thereto and shall not have been waived pursuant thereto and shall permit the holder of such Indebtedness to declare such Indebtedness due and payable before its stated maturity, or in the performance of or compliance with any term of any evidence of such Indebtedness or of any mortgage, indenture or other agreement relating thereto, and any such default shall continue for more than the period of grace, if any, specified therein and shall not have been waived pursuant thereto and shall permit the holder of such Indebtedness to declare such Indebtedness due and payable before its stated maturity, unless such Borrower shall be contesting such payment or obligation in good faith by appropriate proceedings promptly initiated and diligently conducted and such Borrower shall have set aside on its books such reserves, if any, with respect thereto as are required by GAAP and deemed appropriate by such Borrower and its independent public accountants, PROVIDED, that no Event of Default pursuant to paragraphs (b) or (i) of this Section 10.01 shall have occurred and be continuing as a result of such claim having been asserted in respect of such Indebtedness; oreffect;
(g) Such Any Borrower shall discontinue or any of its business Subsidiaries (other than in connection with a permitted merger or consolidation of such Borroweri) or shall make an assignment for the benefit of creditors, (ii) shall be adjudicated bankrupt or insolvent, (iii) shall fail seek the appointment of, or be the subject of an order appointing, a trustee, liquidate or receiver as to all or part of its assets, (iv) shall commence, approve or consent to, any case or proceeding under any bankruptcy, reorganization or similar law and, in the case of an involuntary case or proceeding, such case or proceeding is not dismissed within forty-five (45) days following the commencement thereof, or (v) shall be the subject of an order for relief in an involuntary case under federal bankruptcy law;
(h) Any Borrower or any of its Subsidiaries shall admit in writing its inability to pay or generally fails to pay its debts as such debts they mature or become due, or shall apply for or consent to the appointment of or taking possession by a trustee, receiver or liquidator (or other similar official) of such Borrower or any substantial part of the property or assets of such Borrower or shall commence a case or have an order for relief entered against it under the federal bankruptcy laws, as now or hereafter constituted, or any other applicable federal or state bankruptcy, insolvency or other similar law, or if any action shall be taken to dissolve or liquidate such Borrower (other than in connection with a permitted merger or consolidation of such Borrower); or
(h) If, within sixty (60) days after the commencement against such Borrower of a case under the federal bankruptcy laws, as now or hereafter constituted, or any other applicable federal or state bankruptcy, insolvency or other similar law, such case shall have been consented to or shall not have been dismissed or all orders or proceedings thereunder affecting the operations or the business of such Borrower stayed, or if the stay of any such order or proceeding shall thereafter be set aside, or if within sixty (60) days after the entry of a decree appointing a trustee, receiver or liquidator (or other similar official) of such Borrower or any substantial part of the property of such Borrower such appointment shall not have been vacated; or
(i) A There shall remain undischarged for more than ten (10) days any final judgment whichor execution action against any Borrower or any of its Subsidiaries that, together with other outstanding final judgments claims and execution actions against the Borrower and such Borrower, Subsidiary exceeds an amount $50,000 in the aggregate equal to five percent (5%) of such Borrower's Total Assets (exclusive of amounts covered by available insurance) shall be rendered against such Borrower and if, within thirty (30) days after entry thereof, such judgment shall not have been discharged or execution thereof stayed pending appealaggregate. THEN, or if, within thirty (30) days after the expiration of any such stay, such judgment shall not have been discharged; or
(j) Such Borrower or any member of the Controlled Group shall fail to pay when due an amount or amounts aggregating in excess of $500,000 which it is obligated to pay to the PBGC or to a Plan under Title IV of ERISA; or a notice of intent to terminate a Plan or Plans having aggregate Unfunded Liabilities in excess of $500,000 shall be filed under Title IV of ERISA by such Borrower or any member of the Controlled Group, any plan administrator or any combination of the foregoing; or the PBGC shall institute proceedings under Title IV of ERISA to terminate or to cause a trustee to be appointed to administer any such Plan or Plans or a proceeding shall be instituted by a fiduciary of any such Plan or Plans against such Borrower or any member of the Controlled Group to enforce Sections 515 or 4219(c)(5) of ERISA; or a condition shall exist by reason of which the PBGC would be entitled to obtain a decree adjudicating that any such Plan or Plans must be terminated; or there shall occur a complete or partial withdrawal from, or a default, within the meaning of Section 4219(c)(5) of ERISA, with respect to, one or more Multiemployer Plans which could cause such Borrower or one or more members of the Controlled Group to incur a current payment obligation in excess of $500,000; or
(k) Such Borrower shall cease to be an investment management company (or a Portfolio thereof) registered under the Investment Company Act, or such Borrower's registration under the Investment Company Act, or that of any Borrower Agent of such Borrower, shall lapse or be suspended; then, and in any such event, and at any time thereafter, if any Event of Default shall then be continuing with respect to such defaulting Borrower, :
(i1) in In the case of any Event of Default specified in paragraphs under paragraph (g) and or (h) aboveconcerning any Borrower, the Commitments as to such defaulting Borrower Commitment shall thereupon automatically be terminated terminate, and the entire unpaid principal amount of the Loans, all interest accrued and accrued interest on unpaid thereof, and a other amounts payable hereunder and under the Loans other Loan Documents shall automatically become forthwith due and payable payable, without presentment, demand, protest or other notice or formality of any kind, all of which are hereby expressly waived, and (ii) in the case of any other Event of Default specified above, either or both of the following actions may be taken: the Operations Agent may, and upon the written or telephonic (confirmed in writing) request of the Majority Banks shall, by written notice to such defaulting Borrower (A) declare the principal of and accrued interest in respect of such defaulting Borrower's Loans to be forthwith due and payable, whereupon the principal of and accrued interest in respect of such Loans shall become forthwith due and payable without presentment, demand, protest or other notice of any kind, all of which are hereby expressly waived by such the Borrowers; and
(2) In the case of any Event of Default other than under paragraph (g) or (h), the Bank may, by written notice to the Borrower, and/or (B) terminate the Commitments as to such defaulting Borrower, whereupon Commitment and/or declare the Commitments unpaid principal amount of the Banks Loans, all interest accrued and unpaid thereof, and all other amounts payable hereunder and under the other Loan Documents to make Committed Credit Loans hereunder to such defaulting Borrower shall be forthwith terminate due and payable, without any other presentment, demand, protest or further notice of any kind kind, all of which are hereby expressly waived by the Borrowers. No remedy herein conferred upon the Bank is intended to be exclusive of any other remedy and the percentages of the Commitment Fee each and other fees and expenses otherwise payable by such defaulting Borrower hereunder accruing from and after the date of termination every remedy shall be reallocated among the remaining Borrowers PRO RATA on the basis of the percentages set forth opposite such remaining Borrowers' names on SCHEDULE 1cumulative and in addition to every other remedy hereunder, as now or hereafter existing at law or in effect at the time of such terminationequity or otherwise.
Appears in 1 contract
Events of Default; Acceleration. 8.1 If any of the following events (each an "EVENT OF DEFAULTEvent of Default," or, if the giving of notice or the lapse of time or both is required, then, prior to such notice and/or lapse of time, a "Default") shall occur with respect to any Borroweroccur:
(a) Such Borrower shall fail to make any payment of principal or interest on any Loan within five (5) Business Days after the date that such payment is due;
(b) Borrower shall fail to pay any fees, overriding royalty payments or other sums due hereunder or under any Loan Document within ten (10) days after the date that any such payment is due;
(c) Borrower shall fail to either (i) shall default in the payment of principal of any Loan, interest accrued thereon or fee due hereunder after the same becomes due and payable, whether at maturity or by acceleration or otherwisemake a prepayment to EIF, or (ii) grant and convey to EIF additional collateral, in compliance with the terms of Section 2.9 of this Agreement within five (5) Business Days after the date on which Section 2.9 requires Borrower to take such action;
(d) Borrower shall fail to perform any other term, covenant or agreement contained herein or in any Loan Document and such failure shall continue for thirty (30) days after written notice of such failure has been given to Borrower by EIF;
(e) An event of default entitling EIF to accelerate any other loan from EIF to Borrower shall occur;
(f) Any representation or warranty of Borrower in this Agreement or in any document or instrument delivered pursuant to or in connection with this Agreement or any other Loan Document shall prove to have been false in any material respect upon the date when made;
(g) Borrower shall default in the payment of any other amount due hereunder after the same becomes due and payable; or
(b) Such Borrower shall default in the performance principal of or compliance with interest on any term contained in Sections 9.01(a) Indebtedness aggregating $100,000 or 9.01(b) and such default shall have continued for more than three (3) Banking Days, or such Borrower shall default in the performance of or compliance with beyond any term contained in Sections 8.02(d), 8.02(e), 8.02(g), 8.05, 9.02, 9.03 or 9.04; or
(c) Such Borrower shall default in the performance of or compliance with any term contained herein other than those expressly referred to in this Section 10.01, and such default shall not have been remedied within five (5) Banking Days after written notice thereof shall have been given to such Borrower by the Operations Agent; or
(d) Such Borrower shall default in the performance of, or compliance with, any material term contained in any other written agreement with the Operations Agent or any Bank pertaining to this Agreement or such Borrower's Loans, and such default shall continue for more than the period of grace, if any, specified therein and shall not have been waived pursuant thereto; or
(e) Any representation, warranty certification grace provided with respect thereto unless the validity or statement made or deemed made by such Borrower in this Agreement or in any certificate, financial statement or other document delivered pursuant hereto shall prove to have been false or incorrect in any material respect when made; or
(f) Except as otherwise provided in this Section 10.01, such Borrower shall default in any payment due on Indebtedness for borrowed money or the deferred purchase price of property, the aggregate outstanding principal amount of which is in excess of five percent (5%) of such Borrower's Total Assets, and such default shall continue for more than the period of grace, if any, applicable thereto and shall not have been waived pursuant thereto and shall permit the holder of such Indebtedness to declare such Indebtedness due and payable before its stated maturity, or in the performance of or compliance with any term of any evidence of such Indebtedness or of any mortgage, indenture or other agreement relating thereto, and any such default shall continue for more than the period of grace, if any, specified therein and shall not have been waived pursuant thereto and shall permit the holder of such Indebtedness to declare such Indebtedness due and payable before its stated maturity, unless such currently be contested by Borrower shall be contesting such payment or obligation in good faith by appropriate proceedings promptly initiated and diligently conducted and such unless Borrower shall have set aside on its books such reserves, if any, adequate reserves with respect thereto as are required by GAAP thereto; or any other event shall occur which is specified in any note, agreement, indenture or other document evidencing or relating to any such Indebtedness if the effect of such event is to cause or to permit the holder or holders of such Indebtedness to cause (assuming the giving of any notice and deemed appropriate by the lapse of any time period commencing on the giving of notice) such Indebtedness to become due prior to its stated maturity;
(h) Borrower and its independent public accountants, PROVIDED, that no Event of Default pursuant to paragraphs (b) or shall: (i) of this Section 10.01 shall have occurred and be continuing as a result of such claim having been asserted in respect of such Indebtedness; or
(g) Such Borrower shall discontinue its business (other than in connection with a permitted merger apply for or consolidation of such Borrower) or shall make an assignment for consent to the benefit of creditorsappointment of, or shall fail the taking of possession by, a receiver, custodian, trustee or liquidator of itself or of all or a substantial part of its property; (ii) be generally unable to pay its debts as such debts become due; (iii) make a general assignment for the benefit of its creditors; (iv) commence a voluntary case under the United States Bankruptcy Code (as now or hereafter in effect); (v) file a petition seeking to take advantage of any other law of any jurisdiction relating to bankruptcy, insolvency, reorganization, winding-up, or composition or readjustment of debts; (vi) fail to controvert in a timely and appropriate manner, or acquiesce in writing to, any petition filed against Borrower in an involuntary case under the United States Bankruptcy Code; or (vii) take any action for the purpose of effecting any of the foregoing;
(i) A proceeding or case shall apply for be commenced, without the application or consent to of Borrower, in any court of competent jurisdiction, seeking (i) Borrower's liquidation, reorganization, dissolution or winding-up, or the composition or readjustment of its debts, (ii) the appointment of or taking possession by a trustee, receiver receiver, custodian, liquidator or liquidator (the like of Borrower or other similar official) of such Borrower all or any substantial part of its assets, or (iii) similar relief in respect of Borrower under any law of any jurisdiction relating to bankruptcy, insolvency, reorganization, winding-up, or the property composition or assets readjustment of its debts, and such Borrower proceeding or case shall commence continue undismissed, or an order, judgment or decree approving or ordering any of the foregoing shall be entered and continue unstayed and in effect for a case period of sixty (60) days; or have an order for relief against Borrower shall be entered against it in an involuntary case under the federal bankruptcy laws, as now or hereafter constituted, or any other applicable federal or state bankruptcy, insolvency insolvency, reorganization, winding-up, composition, readjustment of debt, dissolution or other liquidation or similar law, or if any action shall be taken to dissolve or liquidate such Borrower (other than in connection with a permitted merger or consolidation of such Borrower); or
(h) If, within sixty (60) days after the commencement against such Borrower of a case under the federal bankruptcy laws, as now or hereafter constituted, or any other applicable federal or state bankruptcy, insolvency or other similar law, such case shall have been consented to or shall not have been dismissed or all orders or proceedings thereunder affecting the operations or the business of such Borrower stayed, or if the stay law of any such order or proceeding shall thereafter be set aside, or if within sixty (60) days after the entry of a decree appointing a trustee, receiver or liquidator (or other similar official) of such Borrower or any substantial part of the property of such Borrower such appointment shall not have been vacated; or
(i) A final judgment which, together with other outstanding final judgments against such Borrower, exceeds an amount in the aggregate equal to five percent (5%) of such Borrower's Total Assets (exclusive of amounts covered by available insurance) shall be rendered against such Borrower and if, within thirty (30) days after entry thereof, such judgment shall not have been discharged or execution thereof stayed pending appeal, or if, within thirty (30) days after the expiration of any such stay, such judgment shall not have been dischargedjurisdiction; or
(j) Such A Change of Control of Borrower shall occur without the consent of EIF;
(k) There shall remain in force, undischarged, unsatisfied or unstayed, for more than sixty (60) days, any final judgment against Borrower that, with other outstanding final judgments, undischarged, against Borrower exceeds in the aggregate $100,000;
(l) Any breach of a representation, warranty, or covenant contained herein regarding any Employee Benefit Plan that, in the opinion of EIF, could subject Borrower to any tax, penalty or other liability; any Employee Benefit Plan or Multiemployer Plan shall fail to maintain the minimum funding standard required for any plan year or part thereof or extension of any amortization period is sought or granted under Section 412 of the Code; any Employee Benefit Plan or Multiemployer Plan is, shall have been, or is likely to be terminated or the subject of termination proceedings under ERISA; any Prohibited Transaction shall occur involving any Employee Benefit Plan; any Termination Event shall occur with respect to any Employee Benefit Plan; any Employee Benefit Plan shall have an Unfunded Current Liability; provided that there shall result from any such event or events the imposition of a lien upon the assets of Borrower or any member ERISA Affiliate, the granting of the Controlled Group shall fail to pay when due an amount a security interest, or amounts aggregating in excess a liability or a material risk of $500,000 which it is obligated to pay incurring a liability to the PBGC or to a Multiemployer Plan under Title IV of ERISA; or an Employee Benefit Plan or a notice trustee appointed under ERISA or a penalty under Section 4971 of intent to terminate a Plan the Code (or Plans having aggregate Unfunded Liabilities any combination thereof), which, in excess the opinion of $500,000 shall be filed under Title IV EIF, will have an adverse effect on the -49- 55 business, operations, condition (financial or otherwise) or prospects of ERISA by such Borrower or any member of the Controlled Group, any plan administrator or any combination of the foregoing; or the PBGC shall institute proceedings under Title IV of ERISA to terminate or to cause a trustee to be appointed to administer any such Plan or Plans or a proceeding shall be instituted by a fiduciary of any such Plan or Plans against such Borrower or any member of the Controlled Group to enforce Sections 515 or 4219(c)(5) of ERISA; or a condition shall exist by reason of which the PBGC would be entitled to obtain a decree adjudicating that any such Plan or Plans must be terminated; or there shall occur a complete or partial withdrawal from, or a default, within the meaning of Section 4219(c)(5) of ERISA, with respect to, one or more Multiemployer Plans which could cause such Borrower or one or more members of the Controlled Group to incur a current payment obligation in excess of $500,000; or
(k) Such Borrower shall cease to be an investment management company (or a Portfolio thereof) registered under the Investment Company Act, or such Borrower's registration under the Investment Company Act, or that of any Borrower Agent of such Borrower, shall lapse or be suspended; thenAffiliate. Then, and in any such event, and at any time thereafterso long as the same may be continuing, if any Event of Default shall then be continuing EIF may, by notice in writing to Borrower, declare all amounts owing with respect to such defaulting Borrowerthis Agreement and the Notes to be, (i) in the case of any Event of Default specified in paragraphs (g) and (h) above, the Commitments as to such defaulting Borrower they shall thereupon automatically be terminated and the principal of and accrued interest on the Loans shall automatically become due and payable without presentmentforthwith become, demand, protest or other notice or formality of any kind, all of which are hereby expressly waived, and (ii) in the case of any other Event of Default specified above, either or both of the following actions may be taken: the Operations Agent may, and upon the written or telephonic (confirmed in writing) request of the Majority Banks shall, by written notice to such defaulting Borrower (A) declare the principal of and accrued interest in respect of such defaulting Borrower's Loans to be forthwith due and payable, whereupon the principal of and accrued interest in respect of such Loans shall become forthwith immediately due and payable without presentment, demand, protest or other notice of any kind, all of which are hereby expressly waived by Borrower; provided that in the event of any Event of Default specified in paragraphs (h) and (i) hereof, all such Borroweramounts shall become immediately due and payable automatically and without any requirement of notice from EIF. In addition, and/or (B) terminate upon the Commitments as to such defaulting Borroweroccurrence of an Event of Default, whereupon the Commitments EIF may exercise any of its rights and remedies under any of the Banks to make Committed Credit Loans hereunder to such defaulting Borrower shall forthwith terminate without any other notice of any kind and the percentages of the Commitment Fee and other fees and expenses otherwise payable by such defaulting Borrower hereunder accruing from and after the date of termination shall be reallocated among the remaining Borrowers PRO RATA on the basis of the percentages set forth opposite such remaining Borrowers' names on SCHEDULE 1, as in effect at the time of such terminationSecurity Instruments.
Appears in 1 contract
Events of Default; Acceleration. If any of the following events (each an "EVENT OF DEFAULTEvents of Default") shall occur with respect to any Borroweroccur:
(a) Such the Borrower (i) shall default in fails to pay the payment of principal of any Loanprincipal, interest accrued thereon or fee due hereunder after both under the same becomes due and payableterms of the Note, whether at maturity or by acceleration or otherwiseacceleration, or (ii) shall default in the payment of any other amount due hereunder after the same becomes due and payable; or
(b) Such Borrower shall default in the performance of or compliance with any term contained in Sections 9.01(a) or 9.01(b) and such default shall have continued for more than three (3) Banking Days, or such Borrower shall default in the performance of or compliance with any term contained in Sections 8.02(d), 8.02(e), 8.02(g), 8.05, 9.02, 9.03 or 9.04; or
(c) Such Borrower shall default in the performance of or compliance with any term contained herein other than those expressly referred to in this Section 10.01, and such default shall not have been remedied within five (5) Banking Days days after the Lender has given written notice thereof of such failure to the Borrower;
(b) any representation or warranty of the Borrower in the Loan Documents or in any certificate or notice given in connection therewith shall have been given false or misleading in any material respect at the time made or deemed to such Borrower by have been made;
(c) any of the Operations Agent; orLoan Documents shall cease to be in full force and effect;
(d) Such the Borrower shall default materially breach the agreements specified in the performance of, Section 5.1(e) or compliance with, any material term contained in any other written agreement with the Operations Agent or any Bank pertaining to this Agreement or such Borrower's Loans, and such default shall continue for more than the period of grace, if any, specified therein and shall not have been waived pursuant thereto; or(f) hereof;
(e) Any representation, warranty certification or statement made or deemed made by the Borrower shall materially breach any of the agreements specified in Section 5.2 hereof which breach is not cured within ten (10) days after the Lender has given written notice of such Borrower in this Agreement or in any certificate, financial statement or other document delivered pursuant hereto shall prove breach to have been false or incorrect in any material respect when made; orthe Borrower;
(f) Except as otherwise provided in this Section 10.01, such the Borrower shall default fail to perform any other term, covenant or agreement contained in any payment due on Indebtedness for borrowed money or the deferred purchase price of property, Loan Documents within thirty (30) days after the aggregate outstanding principal amount of which is in excess of five percent (5%) Lender has given written notice of such failure to the Borrower's Total Assets, and such default shall continue for more than the period of grace, if any, applicable thereto and shall not have been waived pursuant thereto and shall permit the holder of such Indebtedness to declare such Indebtedness due and payable before its stated maturity, or in the performance of or compliance with any term of any evidence of such Indebtedness or of any mortgage, indenture or other agreement relating thereto, and any such default shall continue for more than the period of grace, if any, specified therein and shall not have been waived pursuant thereto and shall permit the holder of such Indebtedness to declare such Indebtedness due and payable before its stated maturity, unless such Borrower shall be contesting such payment or obligation in good faith by appropriate proceedings promptly initiated and diligently conducted and such Borrower shall have set aside on its books such reserves, if any, with respect thereto as are required by GAAP and deemed appropriate by such Borrower and its independent public accountants, PROVIDED, that no Event of Default pursuant to paragraphs (b) or (i) of this Section 10.01 shall have occurred and be continuing as a result of such claim having been asserted in respect of such Indebtedness; or;
(g) Such the Borrower shall discontinue its business (other than in connection with a permitted merger or consolidation of such Borroweri) or shall make an assignment for the benefit of creditors, (ii) shall be adjudicated bankrupt or insolvent, (iii) shall fail generally to pay its debts as such debts become dueseek the appointment of, or shall apply for or consent to be the appointment subject of or taking possession by an order appointing, a trustee, liquidator or receiver as to all or liquidator (or other similar official) of such Borrower or any substantial part of the property its assets, (iv) shall commence, approve or assets of such Borrower or shall commence a consent to, any case or have proceeding under any bankruptcy, reorganization or similar law and, in the case of an involuntary case or proceeding, such case or proceeding is not dismissed within forty-five (45) days following the commencement thereof, or (v) shall be the subject of an order for relief entered against it in an involuntary case under the federal bankruptcy laws, as now or hereafter constituted, or any other applicable federal or state bankruptcy, insolvency or other similar law, or if any action shall be taken to dissolve or liquidate such Borrower (other than in connection with a permitted merger or consolidation of such Borrower); or;
(h) If, within sixty (60) days after upon the commencement against such Borrower effective date of a case under the federal bankruptcy laws, as now sale of all or hereafter constituted, or any other applicable federal or state bankruptcy, insolvency or other similar law, such case shall have been consented to or shall not have been dismissed or substantially all orders or proceedings thereunder affecting the operations or the business of such Borrower stayed, or if the stay of any such order or proceeding shall thereafter be set aside, or if within sixty (60) days after the entry of a decree appointing a trustee, receiver or liquidator (or other similar official) of such Borrower or any substantial part of the property assets of such Borrower such appointment shall not have been vacated; orthe Borrower;
(i) A the entry of any final judgment which, together with other outstanding final judgments or order in excess of $250,000 against such Borrower, exceeds an amount Borrower which is uninsured and remains unsatisfied or undischarged and in the aggregate equal to five percent (5%) of such Borrower's Total Assets (exclusive of amounts covered by available insurance) shall be rendered against such Borrower and if, within effect for thirty (30) days after such entry thereof, such judgment shall not have been discharged without a stay of enforcement or execution thereof stayed pending appeal, or if, within thirty (30) days after the expiration of any such stay, such judgment shall not have been discharged; orexecution;
(j) Such Borrower the occurrence of an event of default under any other agreement or any member of the Controlled Group shall fail to pay when due an amount or amounts aggregating instrument evidencing indebtedness for borrowed money in excess of $500,000 which it is obligated to pay to the PBGC executed or to a Plan under Title IV of ERISA; or a notice of intent to terminate a Plan or Plans having aggregate Unfunded Liabilities in excess of $500,000 shall be filed under Title IV of ERISA delivered by such Borrower or any member of the Controlled Group, any plan administrator pursuant to which agreement or any combination of the foregoing; or the PBGC shall institute proceedings under Title IV of ERISA to terminate or to cause a trustee to be appointed to administer any such Plan or Plans or a proceeding shall be instituted by a fiduciary of any such Plan or Plans against such instrument Borrower or any member of the Controlled Group to enforce Sections 515 its properties is or 4219(c)(5) of ERISA; or a condition shall exist by reason of which the PBGC would may be entitled to obtain a decree adjudicating that any such Plan or Plans must be terminated; or there shall occur a complete or partial withdrawal from, or a default, within the meaning of Section 4219(c)(5) of ERISA, with respect to, one or more Multiemployer Plans which could cause such Borrower or one or more members of the Controlled Group to incur a current payment obligation in excess of $500,000bound; or
(k) Such Borrower shall cease to be an investment management company (the occurrence of any event or condition which has had a Portfolio thereof) registered under the Investment Company ActMaterial Adverse Effect. THEN, or such Borrower's registration under the Investment Company Act, or that of any Borrower Agent of such Borrower, shall lapse or be suspended; then, and in any such event, and at any time thereafter, if any Event of Default shall then be continuing with respect to such defaulting Borrower, :
(i1) in In the case of any Event of Default specified in paragraphs under clause (g) and (h) abovef), the Commitments as to such defaulting Borrower Commitment shall thereupon automatically be terminated terminate, and the entire unpaid principal amount of the Loans, all interest accrued and accrued interest on unpaid thereon, and all other amounts payable thereunder and under the Loans Note shall automatically become forthwith due and payable without presentment, demand, protest or other notice or formality in accordance with the terms of any kind, all of which are hereby expressly waived, and the Note;
(ii2) in In the case of any other Event of Default specified aboveother than (f), either or both of the following actions may be taken: the Operations Agent Lender may, and upon the written or telephonic (confirmed in writing) request of the Majority Banks shall, by written notice to such defaulting Borrower (A) the Borrower, terminate the Commitment and upon any Event of Default the Lender may, without further notice, declare the unpaid principal amount of the Loans, all interest accrued and accrued interest in respect of such defaulting Borrower's Loans unpaid thereon, and all other amounts payable hereunder and under the Note to be forthwith due and payablepayable in accordance with the terms of the Note, whereupon and may exercise any and all remedies available at law, in equity or under any of the principal of and accrued interest in respect of such Loans shall become forthwith due and payable without presentment, demand, protest or other notice Loan Documents. No remedy herein conferred upon the Lender is intended to be exclusive of any kindother remedy and each and every remedy shall be cumulative and in addition to every other remedy hereunder, all now or hereafter existing at law or in equity or otherwise. No course of which are hereby expressly waived by such Borrower, and/or (B) terminate dealing between the Commitments Borrower and the Lender or any failure or delay on the Lender's part in exercising any rights or remedies hereunder shall operate as to such defaulting Borrower, whereupon the Commitments of the Banks to make Committed Credit Loans hereunder to such defaulting Borrower shall forthwith terminate without any other notice a waiver of any kind and the percentages of the Commitment Fee and other fees and expenses otherwise payable by such defaulting Borrower hereunder accruing from and after the date of termination shall be reallocated among the remaining Borrowers PRO RATA on the basis of the percentages set forth opposite such remaining Borrowers' names on SCHEDULE 1, as in effect at the time of such terminationrights or remedies.
Appears in 1 contract
Sources: Credit Agreement (Shepherd Surveillance Solutions Inc)
Events of Default; Acceleration. If any one or more of the following events (each an "EVENT OF DEFAULT"herein called “Events of Default”) shall occur with respect for any reason whatsoever (and whether such occurrence shall be voluntary or involuntary or be effected by operation of law or pursuant to any Borrower:judgment, decree or order of any court or any order, rule or regulation of any administrative or governmental body):
(a) Such Borrower default in the payment of any interest upon, or any scheduled installment payment of principal under, any of the Notes when such interest or installment payment becomes due and payable which default in payment remains outstanding for five (i5) shall Business Days; or
(b) default in the payment of principal of (and Prepayment Price, if any, on) any Loan, interest accrued thereon or fee due hereunder after of the Notes when and as the same becomes shall become due and payable, whether at maturity or at a date fixed for principal payment or prepayment (including, without limitation, a principal payment or prepayment as provided in Section 6), or by acceleration or otherwise, or (ii) shall default in the but not including any scheduled quarterly installment payment of any other amount due hereunder after the same becomes due and payable; or
principal which is addressed in subsection (ba) Such Borrower shall default above in the performance of or compliance with any term contained in Sections 9.01(a) or 9.01(b) and such default shall have continued for more than three (3) Banking Days, or such Borrower shall default in the performance of or compliance with any term contained in Sections 8.02(d), 8.02(e), 8.02(g), 8.05, 9.02, 9.03 or 9.04this Section 10.1; or
(c) Such Borrower shall default in the performance or observance of any other covenant, agreement or compliance with condition contained herein, or in any term contained herein of the Notes or the Mortgage, or any other than those expressly referred document or instrument relating to in this Section 10.01the Loan, and such non-monetary default shall not have been remedied within five cured on or before the expiration of thirty (530) Banking Days days after written notice thereof is sent by Lender to Borrower; provided, however, that if due to its nature any such default is not susceptible of cure within thirty (30) days, then the same shall have been given not constitute an Event of Default if Borrower has promptly instituted steps to cure such Borrower by default and the Operations Agentsame is cured within a reasonable time, not to exceed six (6) months after notice in any event; or
(d) Such Borrower or any Guarantor shall default in file a petition seeking relief for itself under Title 11 of the performance ofUnited States Code, as now constituted or hereafter amended, or compliance withan answer consenting to, admitting the material allegations of or otherwise not controverting, or shall fail to timely controvert, a petition filed against Borrower or such Guarantor seeking relief under Title 11 of the United States Code, as now constituted or hereafter amended; or Borrower or any material term contained in Guarantor shall file such a petition or answer with respect to relief under the provisions of any other written agreement with now existing or future bankruptcy, insolvency or other similar law of the Operations Agent United States of America or any Bank pertaining to this Agreement State thereof or such Borrower's Loansof any other country or jurisdiction providing for the reorganization, and such default shall continue for more than the period winding-up or liquidation of graceEntities or an arrangement, if anycomposition, specified therein and shall not have been waived pursuant theretoextension or adjustment with creditors; or
(e) Any representationa court of competent jurisdiction shall enter an order for relief which is not stayed within sixty (60) days from the date of entry thereof against Borrower or any Guarantor under Title 11 of the United States Code, warranty certification as now constituted or statement made hereafter amended; or deemed made there shall be entered an order, judgment or decree by such operation of law or by a court having jurisdiction in the premises which is not stayed within sixty (60) days from the date of entry thereof adjudging Borrower or any Guarantor a bankrupt or insolvent, or ordering relief against Borrower or any Guarantor, or approving as properly filed a petition seeking relief against Borrower or any Guarantor, under the provisions of any other now existing or future bankruptcy, insolvency or other similar law of the United States of America or any State thereof or of any other country or jurisdiction providing for the reorganization, winding-up or liquidation of Entities or an arrangement, composition, extension or adjustment with creditors, or appointing a receiver, liquidator, assignee, sequestrator, trustee, custodian or similar official of Borrower or any Guarantor, or of any substantial part of the property of any of them, or ordering the reorganization, winding-up or liquidation of the affairs of any of them; or any involuntary petition against Borrower or any Guarantor seeking any of the relief specified in this Agreement or in any certificate, financial statement or other document delivered pursuant hereto clause shall prove to have been false or incorrect in any material respect when madenot be dismissed within sixty (60) days of its filing; or
(f) Except as otherwise provided in this Section 10.01, such Borrower shall default in or any payment due on Indebtedness for borrowed money or the deferred purchase price of property, the aggregate outstanding principal amount of which is in excess of five percent (5%) of such Borrower's Total Assets, and such default shall continue for more than the period of grace, if any, applicable thereto and shall not have been waived pursuant thereto and shall permit the holder of such Indebtedness to declare such Indebtedness due and payable before its stated maturity, or in the performance of or compliance with any term of any evidence of such Indebtedness or of any mortgage, indenture or other agreement relating thereto, and any such default shall continue for more than the period of grace, if any, specified therein and shall not have been waived pursuant thereto and shall permit the holder of such Indebtedness to declare such Indebtedness due and payable before its stated maturity, unless such Borrower shall be contesting such payment or obligation in good faith by appropriate proceedings promptly initiated and diligently conducted and such Borrower shall have set aside on its books such reserves, if any, with respect thereto as are required by GAAP and deemed appropriate by such Borrower and its independent public accountants, PROVIDED, that no Event of Default pursuant to paragraphs (b) or (i) of this Section 10.01 shall have occurred and be continuing as a result of such claim having been asserted in respect of such Indebtedness; or
(g) Such Borrower shall discontinue its business (other than in connection with a permitted merger or consolidation of such Borrower) or Guarantor shall make an a general assignment for the benefit of its creditors, ; or Borrower or any Guarantor shall fail generally to pay its debts as such debts become due, or shall apply for or consent to the appointment of or taking possession by a receiver, liquidator, assignee, sequestrator, trustee, receiver custodian or liquidator (or other similar official) official of such Borrower or any substantial part such Guarantor or of the property or assets of such Borrower or shall commence a case or have an order for relief entered against it under the federal bankruptcy laws, as now or hereafter constituted, or any other applicable federal or state bankruptcy, insolvency or other similar law, or if any action shall be taken to dissolve or liquidate such Borrower (other than in connection with a permitted merger or consolidation of such Borrower); or
(h) If, within sixty (60) days after the commencement against such Borrower of a case under the federal bankruptcy laws, as now or hereafter constituted, or any other applicable federal or state bankruptcy, insolvency or other similar law, such case shall have been consented to or shall not have been dismissed or all orders or proceedings thereunder affecting the operations or the business of such Borrower stayed, or if the stay of any such order or proceeding shall thereafter be set aside, or if within sixty (60) days after the entry of a decree appointing a trustee, receiver or liquidator (or other similar official) of such Borrower or any substantial part of the property of any of them; or Borrower or any Guarantor shall have admitted to its insolvency or inability to pay, or shall have failed to pay, its debts generally as such debts become due; or Borrower such appointment or any Guarantor, or their respective directors or majority members shall take any action to dissolve or liquidate any Borrower Guarantor (it being understood that any merger of, or sale of interest in, any Borrower or Guarantor permitted under Section 8.4(a) shall not be considered to be a dissolution or liquidation under this Section 10.1(f); or
(g) Borrower or any Guarantor shall (1) engage in any non-exempted “prohibited transaction,” as defined in Sections 406 of ERISA and Section 4975 of the Internal Revenue Code of 1986, as amended, involving any Plan, or (2) the Pension Benefit Guaranty Corporation shall institute proceedings to terminate any Plan, if the occurrences described in either (1) or (2) could reasonably be expected to result in liability of Borrower or any Subsidiary in an aggregate amount exceeding $5,000,000.00; or
(h) any representation or warranty made by Borrower in Section 3 hereof or by Borrower or Guarantor in any Collateral Document or in any certificate or instrument furnished in connection therewith shall prove to have been vacatedfalse or misleading in any material respect as of the date made; or
(i) A final judgment whichthe dissolution of Borrower or of Guarantor, together with whether by operation of law or otherwise (other outstanding final judgments against than for failure to timely file annual reports, if such Borrower, exceeds an amount in reports are filed and the aggregate equal to five percent applicable Borrower or Guarantor is re-instated within ten (5%) of such Borrower's Total Assets (exclusive of amounts covered by available insurance) shall be rendered against such Borrower and if, within thirty (3010) days after entry thereof, such judgment shall not have been discharged or execution written notice thereof stayed pending appeal, or if, within thirty (30) days after the expiration of any such stay, such judgment shall not have been dischargedis sent by Lender to Borrower); or
(j) Such Borrower if any Guaranty is terminated or any member of the Controlled Group shall fail Guarantor attempts to pay when due an amount withdraw, cancel or amounts aggregating in excess of $500,000 which it is obligated to pay to the PBGC or to a Plan under Title IV of ERISA; or a notice of intent to terminate a Plan or Plans having aggregate Unfunded Liabilities in excess of $500,000 shall be filed under Title IV of ERISA by such Borrower or disclaim any member of the Controlled Group, any plan administrator or any combination of the foregoing; or the PBGC shall institute proceedings under Title IV of ERISA to terminate or to cause a trustee to be appointed to administer any such Plan or Plans or a proceeding shall be instituted by a fiduciary of any such Plan or Plans against such Borrower or any member of the Controlled Group to enforce Sections 515 or 4219(c)(5) of ERISA; or a condition shall exist by reason of which the PBGC would be entitled to obtain a decree adjudicating that any such Plan or Plans must be terminated; or there shall occur a complete or partial withdrawal from, or a default, within the meaning of Section 4219(c)(5) of ERISA, with respect to, one or more Multiemployer Plans which could cause such Borrower or one or more members of the Controlled Group to incur a current payment obligation in excess of $500,000Guaranty; or
(k) Such if any default or event of default occurs (after applicable notice and cure period(s)) under any other agreement or obligation of Borrower shall cease or any Guarantor, to be an investment management company (or a Portfolio thereof) registered under the Investment Company ActLender, or such Borrower's registration under the Investment Company Actwith respect to any other loan from Lender to Borrower or any Guarantor, or any other agreement between Lender and Borrower or any Guarantor; or
(l) if any event or condition occurs that enables or permits (with all applicable grace periods having expired) the holder or holders of any indebtedness in excess of $17,500,000.00 of Borrower Agent or any Guarantor to cause such indebtedness to become due, and if such indebtedness is not discharged or such event or condition has not been cured on or before the expiration of such Borrower, shall lapse or be suspendedten (10) Business Days from the occurrence thereof; then, and in any such eventat the option of Servicer, and at any time thereafterthe entire outstanding principal amount of the Notes, if any Event together with (1) all accrued but unpaid interest on the outstanding principal amount of Default shall then be continuing with respect to such defaulting Borrowerthe Notes, (i2) in an amount equal to the case Prepayment Price (except that, for purposes of any Event such computation, the Prepayment Date shall be deemed to be the date upon which the holder of Default specified in paragraphs (gthe Notes shall have declared the Notes to be due and payable) and (h3) above, the Commitments as to such defaulting Borrower shall thereupon automatically be terminated and the principal of and accrued interest on the Loans shall automatically become due and payable without presentment, demand, protest or other notice or formality of any kind, all of which are hereby expressly waived, and (ii) in the case of any other Event of foregoing computed at the Default specified above, either or both of the following actions may be taken: the Operations Agent may, and upon the written or telephonic (confirmed in writing) request of the Majority Banks shall, by written notice to such defaulting Borrower (A) declare the principal of and accrued interest in respect of such defaulting Borrower's Loans to be forthwith due and payable, whereupon the principal of and accrued interest in respect of such Loans shall become forthwith due and payable without presentment, demand, protest or other notice of any kind, all of which are hereby expressly waived by such Borrower, and/or (B) terminate the Commitments as to such defaulting Borrower, whereupon the Commitments of the Banks to make Committed Credit Loans hereunder to such defaulting Borrower shall forthwith terminate without any other notice of any kind and the percentages of the Commitment Fee and other fees and expenses otherwise payable by such defaulting Borrower hereunder accruing Rate from and after the date of termination the Event of Default, shall, at Lender’s option, immediately become due and payable without notice or demand to Borrower. Borrower shall be reallocated among obligated to notify Lender, in accordance with Section 11.6 below, immediately upon the remaining Borrowers PRO RATA on the basis occurrence of the percentages set forth opposite such remaining Borrowers' names on SCHEDULE 1any event, as in effect at the time act or omission constituting an Event of such terminationDefault, other than an Event of Default pursuant to paragraphs 10.1(a) or (b) above.
Appears in 1 contract
Sources: Credit Agreement (Alico Inc)