Events of Default and Acceleration. If any of the following events (“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, “Defaults”) shall occur: (a) if the Borrower shall fail to pay any principal of the Loans when 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; (b) if the Borrower shall fail to pay any interest or fees or other amounts owing hereunder (other than those specified in subsection (a) above) within five (5) Business Days after the same shall become due and payable whether at the Maturity Date or any accelerated date of maturity or at any other date fixed for payment; (c) if the Borrower shall fail to comply with any of the covenants contained in §§7.4, 7.5, 7.15, 7.16, 8 and 9 hereof; (d) if the Borrower shall fail to perform any term, covenant or agreement contained herein or in any of the other Loan Documents (other than those specified in subsections (a), (b), and (c) above) and such failure shall not be remedied within 30 days after written notice of such failure shall have been given to the Borrower by the Administrative Agent or any of the Banks; (e) if any representation or warranty contained in this Agreement or in any document or instrument delivered pursuant to or in connection with this Agreement shall prove to have been false in any material respect upon the date when made or repeated; (f) if the Borrower or any of its Subsidiaries shall fail to pay when due, or within any applicable period of grace, any Indebtedness or obligations under Swap Contracts in an aggregate amount greater than $75,000,000, or fail to observe or perform any material term, covenant or agreement contained in any one or more agreements by which it is bound, evidencing or securing any Indebtedness or obligations under Swap Contracts in an aggregate amount greater than $75,000,000 for such period of time as would permit, or would have permitted (assuming the giving of appropriate notice if required) the holder or holders thereof or of any obligations issued thereunder to accelerate the maturity thereof or terminate its commitment with respect thereto; (g) if the Borrower, the Guarantor or any Significant Subsidiary makes an assignment for the benefit of creditors, or admits in writing its inability to pay or generally fails to pay its debts as they mature or become due, or petitions or applies for the appointment of a trustee or other custodian, liquidator or receiver of the Borrower, the Guarantor or any Significant Subsidiary, or of any substantial part of the assets of the Borrower, the Guarantor or any Significant Subsidiary or commences any case or other proceeding relating to the Borrower, the Guarantor or any Significant Subsidiary 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, the Guarantor or any Significant Subsidiary or the Borrower, the Guarantor or any Significant Subsidiary 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 Borrower or the Guarantor or any Significant Subsidiary 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 or the Guarantor or any Significant Subsidiary in an involuntary case under federal bankruptcy laws of any jurisdiction as now or hereafter constituted; (i) if there shall remain in force, undischarged, unsatisfied and unstayed, for more than thirty days, whether or not consecutive, any final judgment against the Borrower or any Subsidiary which, with other outstanding final judgments against the Borrower and its Subsidiaries, exceeds in the aggregate $50,000,000 after taking into account any undisputed insurance coverage; (j) if, with respect to any Guaranteed Pension Plan, an ERISA Reportable Event shall have occurred and the Banks shall have determined in their reasonable discretion that such event reasonably could be expected to result in liability of the Borrower or any Subsidiary to the PBGC or such Plan in an aggregate amount exceeding $50,000,000 and such event in the circumstances occurring reasonably could constitute grounds for the partial or complete termination of such Plan by the PBGC or for the appointment by the appropriate United States District Court of a trustee to administer such Plan; or a trustee shall have been appointed by the appropriate United States District Court to administer such Plan; or the PBGC shall have instituted proceedings to terminate such Plan; (k) if 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 Banks, 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 or on behalf of the Borrower, the Guarantor, or any of their respective stockholders, 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 effect that, any one or more of the Loan Documents is illegal, invalid or unenforceable in accordance with the terms thereof; or (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 25% or more of the outstanding shares of common voting stock of the Borrower; or during any period of twelve consecutive calendar months, individuals who were directors of the Borrower on the first day of such period (together with any new directors whose election by such board or whose nomination for election by the shareholders of the Borrower was approved by a vote of a majority of the directors still in office who were either directors at the beginning of such period or whose election or nomination for election was previously so approved) shall cease to constitute a majority of the board of directors of the Borrower;
Appears in 5 contracts
Sources: Revolving Credit Agreement (Waste Management Inc), Revolving Credit Agreement (Waste Management Inc), Revolving Credit Agreement (Waste Management Inc)
Events of Default and Acceleration. If 8.1 The occurrence of any one or more of the following shall constitute an Event of Default hereunder:
8.1.1 Failure to make any payment of any principal, interest or other charges in respect of any of the following events Obligations within ten (“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, “Defaults”10) shall occur:
(a) if the Borrower shall fail to pay any principal days of the Loans when date on which the same shall become due be due.
8.1.2 Default in the observance or performance of any covenant or agreement of Borrower herein set forth or set forth in any of the Loan and payableSecurity Documents or in any agreement, whether at the stated date note or instrument heretofore, now or hereafter executed by Borrower in favor of maturity or any accelerated date of maturity or at any other date fixed for payment;
(b) if the Borrower shall fail to pay any interest or fees or other amounts owing hereunder Bank (other than those specified set forth in subsection this Section 8.1) which is not cured within thirty (a30) above) within five (5) Business Days after the same shall become due and payable whether at the Maturity Date or any accelerated date days of maturity or at any other date fixed for paymentwritten notice from Bank;
(c) if the 8.1.3 If any representation, warranty, certificate, schedule or other information made or furnished by Borrower shall fail to comply with any of the covenants contained in §§7.4, 7.5, 7.15, 7.16, 8 and 9 hereof;
(d) if the Borrower shall fail to perform any term, covenant or agreement contained herein or in any of the other Loan Documents (other than those specified in subsections (a), (b), and (c) above) and such failure shall not be remedied within 30 days after written notice of such failure shall have been given pursuant hereto or pursuant to the Borrower by the Administrative Agent Loan and Security Documents is or any of the Banks;
(e) if any representation shall be incorrect, untrue or warranty contained in this Agreement or in any document or instrument delivered pursuant to or in connection with this Agreement shall prove to have been false misleading in any material respect upon at the date when time made or repeatedgiven;
(f) if 8.1.4 Default in the performance of any material obligations of Borrower to any third party; unless the Borrower is disputing such obligation in good faith and has set aside adequate reserves therefor;
8.1.5 Any change for any reason whatsoever in the majority ownership or control of Borrower other than as expressly permitted hereunder;
8.1.6 Loss, theft, damage or destruction of any portion of its Subsidiaries Property of Borrower for which there is either no insurance coverage or for which, in the opinion of Bank, there is insufficient insurance coverage or the making of any levy, seizure or attachment upon any portion of the property of Borrower, provided that Borrower shall fail not be deemed to be in default of this provision if Borrower has maintained or caused to be maintained the insurance coverage required by Section 6.2 and Section 6.3 hereof;
8.1.7 Insolvency of Borrower or failure of Borrower generally to pay when due, its debts as they come due or within any applicable period if a creditors' committee is appointed for the business of grace, any Indebtedness Borrower; or obligations under Swap Contracts in an aggregate amount greater than $75,000,000, or fail to observe or perform any material term, covenant or agreement contained in any one or more agreements by which it is bound, evidencing or securing any Indebtedness or obligations under Swap Contracts in an aggregate amount greater than $75,000,000 for such period of time as would permit, or would have permitted (assuming the giving of appropriate notice if required) the holder or holders thereof or of any obligations issued thereunder to accelerate the maturity thereof or terminate its commitment with respect thereto;
(g) if the Borrower, the Guarantor or any Significant Subsidiary Borrower makes an a general assignment for the benefit of creditors, or admits in writing its inability an Order for Relief is entered with respect to pay Borrower under the federal bankruptcy laws as now or generally fails to pay its debts as they mature or become duehereafter constituted, or petitions if a case in bankruptcy or a petition for reorganization or to effect a plan or arrangement with creditors is filed by or against Borrower; or if Borrower applies for or permits the appointment of a trustee receiver, trustee, custodian or other custodian, liquidator or receiver of the Borrower, the Guarantor or any Significant Subsidiary, or of any substantial part of the assets of the Borrower, the Guarantor or any Significant Subsidiary or commences any case or other proceeding relating to the Borrower, the Guarantor or any Significant Subsidiary 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 for any of the foregoingits property or assets, or if any such petition receiver, trustee, custodian or application liquidator is appointed for any of such property or assets; and, in the case of any one of the above actions or proceedings commenced against Borrower, such action or proceeding is not dismissed within sixty (60) days;
8.1.8 If a proceeding is filed or any such case or other proceeding is commenced against the Borrower, the Guarantor or any Significant Subsidiary or the Borrower, the Guarantor or any Significant Subsidiary 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 Borrower or the Guarantor or any Significant Subsidiary 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 or the Guarantor or any Significant Subsidiary in an involuntary case under federal bankruptcy laws of any jurisdiction as now or hereafter constituted;
(i) if there shall remain in force, undischarged, unsatisfied and unstayed, for more than thirty days, whether or not consecutive, any final judgment against the Borrower or any Subsidiary which, with other outstanding final judgments against the Borrower and its Subsidiaries, exceeds in the aggregate $50,000,000 after taking into account any undisputed insurance coverage;
(j) if, with respect to any Guaranteed Pension Plan, an ERISA Reportable Event shall have occurred and the Banks shall have determined in their reasonable discretion that such event reasonably could be expected to result in liability of the Borrower or any Subsidiary to the PBGC or such Plan in an aggregate amount exceeding $50,000,000 and such event in the circumstances occurring reasonably could constitute grounds for the partial or complete termination of such Plan by the PBGC or for the appointment by the appropriate United States District Court of a trustee to administer such Plan; or a trustee shall have been appointed by the appropriate United States District Court to administer such Plan; or the PBGC shall have instituted proceedings to terminate such Plan;
(k) if 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 Banks, 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 or on behalf against Borrower for its dissolution or liquidation and in the event of a proceeding commenced against Borrower the Borrowersame remains undismissed or unstayed for a period of sixty (60) days; or if Borrower voluntarily or involuntarily dissolves or is dissolved, the Guarantorterminates or is terminated;
8.1.9 If Borrower is enjoined, restrained or in any way prevented by a final, non-appealable Court or Administrative order from conducting all or any material part of their respective stockholders, or any court or any other governmental or regulatory authority or agency its business affairs;
8.1.10 The occurrence of competent jurisdiction shall make a determination that, or issue a judgment, order, decree or ruling to the effect that, an Event of Default under any one or more of the Loan and Security Documents or under any other document, instrument or agreement now or hereafter evidencing, securing or executed in connection with any indebtedness or obligation of Borrower to the Bank;
8.1.11 The entry of a final judgment for the payment of money in excess of an aggregate of One Hundred Thousand and 00/100 ($100,000.00) Dollars shall be rendered against the Borrower, and the same shall remain undischarged for a period of thirty (30) consecutive days, during which execution shall not be effectively stayed;
8.1.12 The occurrence of any attachment of any deposits or other property of the Borrower in the hands or possession of the Bank, or the occurrence of any attachment of any other property of the Borrower in an amount exceeding One Hundred Thousand and 00/100 ($100,000.00) Dollars which shall not be discharged within thirty (30) days of the date of such attachment;
8.1.13 Default with respect to any evidence of indebtedness of the Borrower (other than to the Bank) relating to the Property, if the effect of such default is illegalto accelerate the maturity of such indebtedness or to permit the holder thereof to cause such indebtedness to become due prior to the stated maturity thereof, invalid or unenforceable if any indebtedness of the Borrower (other than to the Bank) is not paid when due and payable, whether at the due date thereof or a date fixed for prepayment, whether by acceleration or otherwise;
8.1.14 The Borrower attempts to assign its rights under this Agreement or any interest herein, or if the Property is conveyed or encumbered contrary to the provisions of this Agreement;
8.1.15 Any "Event of Default" as defined in accordance with the terms thereofProperty Ground Lease (in each case only to the extent that such Event of Default is not cured by any leasehold mortgagee as permitted under the Property Ground Lease) or termination of the Property Ground Lease; or
(l) if 8.1.16 The Property is materially damaged or destroyed by fire or other casualty or cause, and as a result thereof, Tenant has exercised any person contractual right it may have to terminate the Property Ground Lease.
8.2 If any Event of Default shall occur, then or group at any time thereafter, Bank may declare the Obligations to be immediately due and payable, without notice, protest, presentment or demand, all 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 which are hereby expressly waived by the Securities and Exchange Commission under said Act) of 25% or more of the outstanding shares of common voting stock of the Borrower; or during any period of twelve consecutive calendar months, individuals who were directors of the Borrower on the first day of such period (together with any new directors whose election by such board or whose nomination for election by the shareholders of the Borrower was approved by a vote of a majority of the directors still in office who were either directors at the beginning of such period or whose election or nomination for election was previously so approved) shall cease to constitute a majority of the board of directors of the Borrower;.
Appears in 4 contracts
Sources: Loan Agreement (Capital Properties Inc /Ri/), Loan Agreement (Capital Properties Inc /Ri/), Loan Agreement (Capital Properties Inc /Ri/)
Events of Default and Acceleration. If any of the following events (“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 or lapse of time, “Defaults”) shall occur:
(a) if the Borrower shall fail to pay any principal of the Revolving Credit Loans, the Term Loan, Swing Line Loans or any Reimbursement Obligation when 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 paymentpayment and, except in the case of an acceleration of the maturity of the Loans, in which case an Event of Default shall occur immediately, such failure shall continue for a period of five (5) days;
(b) if the Borrower or any of its Subsidiaries shall fail to pay any interest on the Revolving Credit Loans, the Term Loan or the Swing Line Loans, any fees or other amounts owing sums due hereunder (or under any of the other than those specified in subsection (a) above) within five (5) Business Days after Loan Documents, when the same shall become due and payable payable, whether at the Maturity Date stated date of maturity or any accelerated date of maturity or at any other date fixed for paymentpayment and, except in the case of an acceleration of the maturity of the Loans, in which case an Event of Default shall occur immediately, such failure shall continue for a period of five (5) days;
(c) if the Borrower shall fail to comply with any of the its covenants contained in §§7.48.1, 7.58.2 (other than with respect to moves within the State of California), 7.158.4, 7.168.5, 8 and 8.9, 8.12, 8.14, 8.15, 9 hereofor 10 or any of the covenants contained in any of the Security Documents (provided, that this reference to covenants in the Security Documents shall not abridge grace periods provided therein with respect to certain Defaults also addressed in this Agreement);
(d) if the Borrower or any of its Subsidiaries shall fail to perform any term, covenant or agreement contained herein or in any of the other Loan Documents (other than those specified elsewhere in subsections this §13.1) for fifteen (a), (b), and (c15) above) and such failure shall not be remedied within 30 days after written notice of such failure shall have has been given to the Borrower by the Administrative Agent or any of the BanksAgent;
(e) if any representation or warranty contained of the Borrower or any of its Subsidiaries in this Credit Agreement or any of the other Loan Documents or in any other document or instrument delivered pursuant to or in connection with this Credit Agreement shall prove to have been false false, incorrect or incomplete in any material respect upon the date when made or deemed to have been made or repeated;
(f) if the Borrower or any of its Subsidiaries shall (x) fail to pay when dueat maturity, or within any applicable period of grace, (i) any Indebtedness obligation for borrowed money or obligations under Swap Contracts credit received in an aggregate principal amount in excess of $100,000, (ii) any obligation in respect of any Capitalized Leases in an aggregate amount greater than in excess of $75,000,000100,000, or (iii) any obligation in respect of any operating leases with respect to which the present value (calculated at a discount rate of nine percent (9%) per annum) of the future obligations of the Borrower and its Subsidiaries thereunder exceeds $100,000, or (y) fail to observe or perform any material term, covenant or agreement contained in any one or more agreements by which it is bound, evidencing or securing any Indebtedness or obligations under Swap Contracts agreement referenced in an aggregate amount greater than $75,000,000 clauses (i) through (iii) above for such period of time as would permit, or would have permitted permit (assuming the giving of appropriate notice if required) the holder or holders thereof or of any obligations issued thereunder to accelerate the maturity thereof thereof, or terminate its commitment with respect theretoany such holder or holders shall rescind or shall have a right to rescind the purchase of any such obligations;
(gi) if the Borrower, the Guarantor Borrower or any Significant Subsidiary makes of its Subsidiaries shall make an assignment for the benefit of creditors, or admits admit in writing its inability to pay or generally fails fail to pay its debts as they mature or become due, or petitions shall petition or applies apply for the appointment of a trustee or other custodian, liquidator or receiver of the Borrower, the Guarantor Borrower or any Significant Subsidiary, of its Subsidiaries or of any substantial part of the assets of the Borrower, the Guarantor Borrower or any Significant Subsidiary of its Subsidiaries or commences shall commence any case or other proceeding relating to the Borrower, the Guarantor Borrower or any Significant Subsidiary of 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 shall take any action to authorize or in furtherance of any of the foregoing, ; or (ii) if any such petition or application is shall be filed or any such case or other proceeding is shall be commenced against the Borrower, the Guarantor Borrower or any Significant Subsidiary or of its Subsidiaries and, with respect to this clause (ii) only, (x) the Borrower, the Guarantor Borrower or any Significant Subsidiary indicates of its Subsidiaries shall indicate its approval thereof, consent thereto or acquiescence thereintherein or (y) such petition or application shall not have been dismissed within thirty (30) days following the filing thereof;
(h) if a decree or order is entered appointing any such trustee, custodian, liquidator or receiver or adjudicating the Borrower or the Guarantor or any Significant Subsidiary of 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 in respect of the Borrower or any Subsidiary of the Guarantor or any Significant Subsidiary Borrower in an involuntary case under federal bankruptcy laws of any jurisdiction as now or hereafter constituted;
(i) if there shall remain in force, undischarged, unsatisfied and unstayed, for more than thirty (30) days, whether or not consecutive, any final judgment against the Borrower or any Subsidiary whichof its Subsidiaries that, with other outstanding final judgments judgments, undischarged, against the Borrower and or any of its Subsidiaries, Subsidiaries exceeds in the aggregate $50,000,000 after taking into account any undisputed insurance coverage50,000;
(j) ifthe holders of all or any part of the Subordinated Debt shall accelerate the maturity of all or any part of the Subordinated Debt, or a notice of redemption (mandatory or otherwise) shall be issued with respect to any Guaranteed Pension Planthe Subordinated Debt, an ERISA Reportable Event shall have occurred and the Banks shall have determined in their reasonable discretion that such event reasonably could be expected to result in liability of the Borrower or any Subsidiary to the PBGC or such Plan in an aggregate amount exceeding $50,000,000 and such event in the circumstances occurring reasonably could constitute grounds for the partial or complete termination of such Plan by the PBGC or for the appointment by the appropriate United States District Court of a trustee to administer such Plan; or a trustee shall have been appointed by the appropriate United States District Court to administer such Plan; or the PBGC Subordinated Debt shall have instituted proceedings to terminate such Planbe prepaid, redeemed or repurchased in whole or in part (except as otherwise permitted under §9.8 of this Credit Agreement);
(k) Interpool shall fail to comply with any of the terms of the Subordination and Intercreditor Agreement;
(l) if any of the Loan Documents shall be cancelled, terminated, revoked or rescinded or the Administrative Agent’s 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 accordance with the terms thereof or with the express prior written agreement, consent or approval of the BanksLenders, 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 or on behalf of the Borrower, the Guarantor, Borrower or any of its 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 determination that, or issue a judgment, order, decree or ruling to the effect that, any one or more of the Loan Documents is illegal, invalid or unenforceable in accordance with the terms thereof; or;
(lm) if the Borrower or any person ERISA Affiliate incurs any liability to the PBGC or group a Guaranteed Pension Plan in connection with the termination of persons a Guaranteed Pension Plan pursuant to Title IV of ERISA in an aggregate amount exceeding $500,000, or the Borrower or any ERISA Affiliate is assessed withdrawal liability pursuant to Title IV of ERISA by a Multiemployer Plan requiring aggregate annual payments exceeding $500,000, or any of the following occurs with respect to a Guaranteed Pension Plan: (i) an ERISA Reportable Event, or a failure to make a required installment or other payment (within the meaning of Section 13 or 14 §302(f)(1) of ERISA), provided that the Administrative Agent determines in its reasonable discretion that such event (A) could be expected to result in liability of the Securities Exchange Act Borrower or any of 1934, as amendedits Subsidiaries to the PBGC or such Guaranteed Pension Plan in an aggregate amount exceeding $500,000 and (B) shall have acquired beneficial ownership (within could constitute grounds for the meaning termination of Rule 13d-3 promulgated such Guaranteed Pension Plan by the Securities PBGC, for the appointment by the appropriate United States District Court of a trustee to administer such Guaranteed Pension Plan or for the imposition of a Lien in favor of such Guaranteed Pension Plan; or (ii) the appointment by a United States District Court of a trustee to administer such Guaranteed Pension Plan; or (iii) the institution by the PBGC of proceedings to terminate such Guaranteed Pension Plan;
(n) the Borrower or any of its Subsidiaries shall be enjoined, restrained or in any way prevented by the order of any Governmental Authority from conducting any material part of its business and Exchange Commission under said Actsuch order shall continue in effect for more than thirty (30) days;
(o) there shall occur any material damage to, or loss, theft or destruction of, any Collateral, whether or not insured, or any strike, lockout, labor dispute, embargo, condemnation, act of 25% God or public enemy, or other casualty, which in any such case causes, for more than fifteen (15) consecutive days, the cessation or substantial curtailment of revenue producing activities at any facility of the outstanding shares Borrower or any of common voting stock its Subsidiaries if such event or circumstance is not covered by business interruption insurance and would have a Material Adverse Effect;
(p) there shall occur the loss, suspension or revocation of, or failure to renew, any license or permit now held or hereafter acquired by the Borrower or any of its Subsidiaries if such loss, suspension, revocation or failure to renew would have a Material Adverse Effect;
(q) the Borrower or any of its Subsidiaries shall be indicted for a state or federal crime, or any civil or criminal action shall otherwise have been brought against the Borrower or any of its Subsidiaries, a punishment for which in any such case could include the forfeiture of any assets of the Borrower or such Subsidiary included in the Borrowing Base or any assets of the Borrower or such Subsidiary not included in the Borrowing Base but having a fair market value in excess of $500,000; or
(r) a Change of Control shall occur; then, and in any such event, so long as the same may be continuing, the Administrative Agent may, and upon the request of the Required Lenders shall, by notice in writing to the Borrower declare all amounts owing with respect to this Credit Agreement, the Notes and the other Loan Documents and all Reimbursement Obligations and Swing Line Loans to be, and they shall thereupon forthwith become, 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 §§13.1(g), 13.1(h) or during 13.1(j), all such amounts shall become immediately due and payable automatically and without any period requirement of twelve consecutive calendar months, individuals who were directors of notice from the Borrower on the first day of such period (together with Administrative Agent or any new directors whose election by such board or whose nomination for election by the shareholders of the Borrower was approved by a vote of a majority of the directors still in office who were either directors at the beginning of such period or whose election or nomination for election was previously so approved) shall cease to constitute a majority of the board of directors of the Borrower;Lender.
Appears in 3 contracts
Sources: Revolving Credit and Term Loan Agreement (CAI International, Inc.), Revolving Credit and Term Loan Agreement (CAI International, Inc.), Revolving Credit and Term Loan Agreement (CAI International, Inc.)
Events of Default and Acceleration. If any of the following events (“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 or lapse of time, “Defaults”) shall occur:
(a) if the Borrower Borrowers shall fail to pay any principal of the Loans when 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;
(b) if the Borrower Borrowers shall fail to pay any interest or fees or other amounts owing hereunder (other than those specified in subsection (a) above) on the Loans within five (5) Business Days after days of the date that the same shall become due and payable payable, any reimbursement obligations with respect to the Letters of Credit or any fees or other sums due hereunder (other than any voluntary prepayment) or under any of the other Loan Documents within ten (10) days after notice from Agent, whether at the Maturity Date stated date of maturity or any accelerated date of maturity or at any other date fixed for payment;
(c) if the Borrower Borrowers shall fail to comply with any of the covenants covenant contained in §9.1 and such failure shall continue uncured after written notice thereof shall have been given to the Borrowers by the Agent as provided in §7.4, 7.5, 7.15, 7.16, 8 and 9 hereof3.2;
(d) if any of the Borrower Borrowers or any of their respective Subsidiaries shall fail to perform any other term, covenant or agreement contained in §9.2, §9.3, §9.4, §9.5, §9.6, §9.7 or §9.8 and such failure shall continue for the thirty (30) day cure period provided in the preamble to Article 9 after written notice thereof shall have been given to the Borrowers by Agent as provided in the preamble to Article 9;
(e) any of the Borrowers shall fail to perform any other term, covenant or agreement contained herein or in any of the other Loan Documents which they are required to perform (other than those specified in subsections the other subclauses of this §12 (aincluding, without limitation, §12.2 below) or in the other Loan Documents), (b), and (c) above) and such failure shall continue for thirty (30) days after Borrower receives from Agent written notice thereof, and in the case of a default that cannot be remedied cured within 30 such thirty (30) day period despite Borrower’s diligent efforts but is susceptible of being cured within ninety (90) days after written notice of such failure Borrower’s receipt of Agent’s original notice, then Borrower shall have been given such additional time as is reasonably necessary to effect such cure, but in no event in excess of ninety (90) days from Borrower’s receipt of Lender’s original notice;
(f) any material representation or warranty made by or on behalf of the Borrower by the Administrative Agent Borrowers or any of the Banks;
(e) if any representation or warranty contained their respective Subsidiaries in this Agreement or any other Loan Document, or any report, certificate, financial statement, request for a Loan, Letter of Credit Request, or in any other document or instrument delivered pursuant to or in connection with this Agreement Agreement, any advance of a Loan, the issuance of any Letter of Credit or any of the other Loan Documents shall prove to have been false in any material respect upon the date when made or deemed to have been made or repeated;
(fg) if the Borrower or any of its Subsidiaries the Borrowers shall fail to pay when duedue (including, without limitation, at maturity), or within any applicable period of notice and grace, any Indebtedness principal, interest or obligations under Swap Contracts in an aggregate other amount greater than $75,000,000on account of any obligation for borrowed money or credit received or other Indebtedness, or shall fail to observe or perform any material term, covenant or agreement contained in any one or more agreements agreement by which it is bound, evidencing or securing any obligation for borrowed money or credit received or other Indebtedness or obligations under Swap Contracts in an aggregate amount greater than $75,000,000 for such period of time as would permit, or would have permitted (assuming the giving of appropriate notice if required) and the holder or holders thereof or of any obligations issued thereunder to accelerate have accelerated the maturity thereof thereof; provided that the events described in §12.1(g) shall not constitute an Event of Default unless such failure to perform, together with other failures to perform as described in §12.1(g), involve singly or terminate its commitment with respect theretoin the aggregate obligations for borrowed money or credit received or other Indebtedness totaling in excess of $25,000,000;
(gh) if any of the BorrowerBorrowers or REIT, the Guarantor or any Significant Subsidiary makes (i) shall make an assignment for the benefit of creditors, or admits admit in writing its general inability to pay or generally fails fail to pay its debts as they mature or become due, or petitions shall petition or applies apply for the appointment of a trustee or other custodian, liquidator or receiver of the Borrower, the Guarantor for it or any Significant Subsidiary, or of any substantial part of the assets of the Borrowerits assets, the Guarantor or any Significant Subsidiary or commences (ii) shall commence any case or other proceeding relating to the Borrower, the Guarantor or any Significant Subsidiary it 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 (iii) shall take any action to authorize or in furtherance of any of the foregoing, or if any such ;
(i) a petition or application is shall be filed for the appointment of a trustee or other custodian, liquidator or receiver of any of the Borrowers or REIT or any such substantial part of the assets of any thereof, or a case or other proceeding is shall be commenced against the Borrowerany such Person under any bankruptcy, the Guarantor reorganization, arrangement, insolvency, readjustment of debt, dissolution or liquidation or similar law of any Significant Subsidiary jurisdiction, now or the Borrowerhereafter in effect, the Guarantor or and any Significant Subsidiary indicates such Person shall indicate its approval thereof, consent thereto or acquiescence thereintherein or such petition, application, case or proceeding shall not have been dismissed within ninety (90) days following the filing or commencement thereof;
(hj) if a decree or order is entered appointing any such a trustee, custodian, liquidator or receiver for any of the Borrowers or REIT or adjudicating the Borrower or the Guarantor or any Significant Subsidiary such Person, 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 or the Guarantor or any Significant Subsidiary such Person in an involuntary case under federal bankruptcy laws of any jurisdiction as now or hereafter constituted;
(ik) if there shall remain in force, undischarged, unsatisfied and unstayed, for more than thirty days, whether sixty (60) days one or not consecutive, any more uninsured or unbonded final judgment judgments against the Parent Borrower or any Subsidiary whichBorrower that, with other outstanding final judgments against the Borrower and its Subsidiaries, exceeds either individually or in the aggregate aggregate, exceed $50,000,000 after taking into account any undisputed insurance coverage25,000,000;
(jl) if, with respect to any Guaranteed Pension Plan, an ERISA Reportable Event shall have occurred and the Banks shall have determined in their reasonable discretion that such event reasonably could be expected to result in liability of the Borrower or any Subsidiary to the PBGC or such Plan in an aggregate amount exceeding $50,000,000 and such event in the circumstances occurring reasonably could constitute grounds for the partial or complete termination of such Plan by the PBGC or for the appointment by the appropriate United States District Court of a trustee to administer such Plan; or a trustee shall have been appointed by the appropriate United States District Court to administer such Plan; or the PBGC shall have instituted proceedings to terminate such Plan;
(k) if any of the Loan Documents shall be cancelledcanceled, terminated, revoked or rescinded otherwise than in accordance with the terms thereof or with the express prior written agreement, consent or approval of the BanksRequired Lenders, 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 or on behalf of the Borrower, the Guarantor, or any of their respective stockholdersthe Borrowers, or any court or any other governmental or regulatory authority or agency of competent jurisdiction shall make a determination thatdetermination, or issue a judgment, order, decree or ruling ruling, to the effect that, that any one or more of the Loan Documents is illegal, invalid or unenforceable in accordance with the terms thereof; or;
(lm) if any person dissolution, termination, partial or group complete liquidation, merger or consolidation of persons (within the meaning of Section 13 or 14 any of the Securities Exchange Act Borrowers shall occur or any sale, transfer or other disposition of 1934the assets of any of the Borrowers shall occur other than as permitted under the terms of this Agreement or the other Loan Documents;
(n) with respect to any Guaranteed Pension Plan, as amended) an ERISA Reportable Event shall have acquired beneficial ownership occurred and such event reasonably would be expected to result in liability of any of the Borrowers to pay money to the PBGC or such Guaranteed Pension Plan in an aggregate amount exceeding $25,000,000 and one of the following shall apply with respect to such event: (within x) such event in the meaning circumstances occurring reasonably would be expected to result in the termination of Rule 13d-3 promulgated such Guaranteed Pension Plan by the Securities and Exchange Commission PBGC or for the appointment by the appropriate United States District Court of a trustee to administer such Guaranteed Pension Plan; or (y) a trustee shall have been appointed by the United States District Court to administer such Plan; or (z) the PBGC shall have instituted proceedings to terminate such Guaranteed Pension Plan;
(o) any Change of Control shall occur;
(p) an Event of Default under said Act) of 25% or more any of the outstanding shares other Loan Documents shall occur; then, and upon any such Event of common voting stock Default, the Agent may, and upon the request of the BorrowerRequired Lenders shall, by notice in writing to the Borrowers declare all amounts owing with respect to this Agreement, the Notes, the Letters of Credit and the other Loan Documents to be, and they shall thereupon forthwith become, 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 §12.1(h), §12.1(i) or during §12.1(j), all such amounts shall become immediately due and payable automatically and without any period requirement of twelve consecutive calendar monthspresentment, individuals who were directors demand, protest or other notice of any kind from any of the Borrower on Lenders or the first day Agent. If demanded by Agent in its absolute and sole discretion after the occurrence and during the continuance of such period (together an Event of Default, Borrowers will deposit with any new directors whose election and pledge to Agent cash in an amount equal to the amount of all undrawn Letters of Credit. Such amounts will be pledged to and held by such board or whose nomination Agent for election by the shareholders benefit of the Lenders as security for any amounts that become payable under the Letters of Credit and all other Obligations, In the event the Borrower was approved fails to deliver such cash collateral, upon demand by Agent or the Majority Lenders in their absolute and sole discretion after the occurrence and during the continuance of an Event of Default, and regardless of whether the conditions precedent in this Agreement for a vote Revolving Credit Loan have been satisfied, the Revolving Credit Lenders will cause a Revolving Credit Loan to be made in the undrawn amount of a majority all Letters of Credit. The proceeds of any such Revolving Credit Loan will be pledged to and held by Agent as security for any amounts that become payable under the Letters of Credit and all other Obligations. Upon any draws under Letters of Credit, at Agent’s sole discretion, Agent may apply any such amounts pledged or funded hereunder to the repayment of amounts drawn thereunder and upon the expiration of the directors still in office who were either directors at Letters of Credit any remaining amounts will be applied to the beginning payment of all other Obligations or if there are no outstanding Obligations and Lenders have no further obligation to make Revolving Credit Loans or issue Letters of Credit or if such period or whose election or nomination for election was previously so approved) shall cease excess no longer exists, such proceeds deposited by Borrowers will be released to constitute a majority of the board of directors of the Borrower;Borrowers.
Appears in 3 contracts
Sources: Credit Agreement (CoreSite Realty Corp), Credit Agreement (CoreSite Realty Corp), Credit Agreement (CoreSite Realty Corp)
Events of Default and Acceleration. If any of the following events (“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 or lapse of time, “Defaults”) shall occur:
(a) if the Borrower shall fail to pay any principal of the Loans when 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;
(b) if the Borrower shall fail to pay any interest on the Loans within five (5) Business Days of the date that the same shall become due and payable, any reimbursement obligations with respect to the Letters of Credit or any fees or other amounts owing sums due hereunder (other than those specified in subsection (aany voluntary prepayment) above) or under any of the other Loan Documents within five (5) Business Days after the same shall become due and payable notice from Agent, whether at the Maturity Date 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 any of the covenants contained in §§7.4, 7.5, 7.15, 7.16, 8 and 9 hereof[Reserved];
(d) if any of the Borrower or the other Credit Parties or any of their respective Subsidiaries shall fail to perform any other term, covenant or agreement contained in §7.5(a), §7.6(a), §7.19, §7.22, §▇, ▇▇ §▇;
(e) any of the Borrower or the other Credit Parties shall fail to perform any other term, covenant or agreement contained herein or in any of the other Loan Documents which they are required to perform (other than those specified in subsections the other subclauses of this §12 (aincluding, without limitation, §12.2 below) or in the other Loan Documents), (b), and (c) above) and such failure shall continue for thirty (30) days after Borrower receives from Agent written notice thereof, and in the case of a default that cannot be remedied cured within 30 such thirty (30) day period despite Borrower’s diligent efforts but is susceptible of being cured within ninety (90) days after of Borrower’s receipt of Agent’s original notice, then Borrower shall have such additional time as is reasonably necessary to effect such cure, but in no event in excess of ninety (90) days from Borrower’s receipt of Agent’s original notice; provided that the foregoing cure provisions shall not pertain to any Default excluded from any provision of cure of defaults contained in any other of the Loan Documents and with respect to any defaults under § 7.4 and §7.5 (other than §7.5(a)), the thirty (30) day cure period described above shall be reduced to a period of five (5) Business Days from the earlier of any Credit Party obtaining knowledge thereof or receipt of notice from Agent written notice thereof, and no additional cure period shall be provided with respect to such defaults;
(f) any material representation or warranty made by or on behalf of such failure shall have been given to the Borrower by the Administrative Agent Credit Parties or any of the Banks;
(e) if any representation or warranty contained their respective Subsidiaries in this Agreement or any other Loan Document, or any report, certificate, financial statement, request for a Loan, or in any other document or instrument delivered pursuant to or in connection with this Agreement Agreement, any advance of a Loan, or any of the other Loan Documents shall prove to have been false in any material respect upon the date when made or repeated;
(f) if deemed to have been made or repeated except to the Borrower or any of its Subsidiaries shall fail to pay when due, or within any applicable period of grace, any Indebtedness or obligations under Swap Contracts in an aggregate amount greater than $75,000,000, or fail to observe or perform any material term, covenant or agreement contained in any one or more agreements by which extent it is bound, evidencing or securing any Indebtedness or obligations under Swap Contracts in an aggregate amount greater than $75,000,000 for such period of time as would permit, or would not reasonably expected to have permitted (assuming the giving of appropriate notice if required) the holder or holders thereof or of any obligations issued thereunder to accelerate the maturity thereof or terminate its commitment with respect theretoa Material Adverse Effect;
(g) if Any (i) Borrower or other Credit Party defaults (after the expiration of any notice and cure or grace period) under any Recourse Indebtedness or suffers a claim under non-recourse carve-out guaranty with respect to all uncured defaults at any time, each in an aggregate amount equal to or greater than $10,000,000, or (ii) Borrower, the Guarantor or any Significant Subsidiary makes thereof defaults (after the expiration of any notice and cure or grace period) under any Non-Recourse Indebtedness in an aggregate amount equal to or greater than $50,000,000 with respect to all uncured defaults at any time;
(h) any of the Borrower or any other Credit Party, (i) shall make an assignment for the benefit of creditors, or admits admit in writing its general inability to pay or generally fails fail to pay its debts as they mature or become due, or petitions shall petition or applies apply for the appointment of a trustee or other custodian, liquidator or receiver of the Borrower, the Guarantor for it or any Significant Subsidiary, or of any substantial part of the assets of the Borrowerits assets, the Guarantor or any Significant Subsidiary or commences (ii) shall commence any case or other proceeding relating to the Borrower, the Guarantor or any Significant Subsidiary it 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 (iii) shall take any action to authorize any of the foregoing;
(i) a petition or in furtherance application shall be filed for the appointment of a trustee or other custodian, liquidator or receiver of any of the foregoingBorrower or other Credit Party or any substantial part of the assets of any thereof, or if any such petition or application is filed or any such a case or other proceeding is shall be commenced against the Borrowerany such Person under any bankruptcy, the Guarantor reorganization, arrangement, insolvency, readjustment of debt, dissolution or liquidation or similar law of any Significant Subsidiary jurisdiction, now or the Borrowerhereafter in effect, the Guarantor or and any Significant Subsidiary indicates such Person shall indicate its approval thereof, consent thereto or acquiescence thereintherein or such petition, application, case or proceeding shall not have been dismissed within ninety (90) days following the filing or commencement thereof;
(hj) if a decree or order is entered appointing any such a trustee, custodian, liquidator or receiver or adjudicating for any of the Borrower or the Guarantor other Credit Party or adjudicating any Significant Subsidiary such Person, 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 or the Guarantor or any Significant Subsidiary such Person in an involuntary case under federal bankruptcy laws of any jurisdiction as now or hereafter constituted;
(ik) if there shall remain in force, undischarged, unsatisfied and unstayed, for more than thirty (30) days, whether one or not consecutive, any more uninsured or unbonded final judgment judgments against the Borrower REIT Guarantor or any Subsidiary whichthat, with other outstanding final judgments against the Borrower and its Subsidiaries, exceeds either individually or in the aggregate aggregate, exceed in excess of $50,000,000 after taking into account 5,000,000.00 in any undisputed insurance coveragecalendar year;
(jl) ifany of the material Loan Documents shall be canceled, terminated, revoked or rescinded otherwise than in accordance with the terms thereof or the express prior written agreement, consent or approval of the Required Lenders, or any action at law, suit in equity or other legal proceeding to cancel, revoke or rescind any of the material Loan Documents shall be commenced by or on behalf of any of the Credit Parties, or any court or any other governmental or regulatory authority or agency of competent jurisdiction shall make a determination, or issue a judgment, order, decree or ruling, to the effect that any one or more of the material Loan Documents is illegal, invalid or unenforceable in accordance with the terms thereof;
(m) REIT Guarantor ceases to be treated as a real estate investment trust under the Code in any taxable year or the common Equity Interests of the REIT Guarantor shall fail to be listed and traded on the New York Stock Exchange or another publicly recognized exchange;
(n) with respect to any Guaranteed Pension Plan, an ERISA Reportable Event shall have occurred and the Banks shall have determined in their reasonable discretion that such event reasonably could would be expected to result in liability of any of the Borrower or any Subsidiary Credit Parties to pay money to the PBGC or such Guaranteed Pension Plan in an aggregate amount exceeding $50,000,000 5,000,000 and one of the following shall apply with respect to such event: (x) such event in the circumstances occurring reasonably could constitute grounds for would be expected to result in the partial or complete termination of such Guaranteed Pension Plan by the PBGC or for the appointment by the appropriate United States District Court of a trustee to administer such Guaranteed Pension Plan; or (y) a trustee shall have been appointed by the appropriate United States District Court to administer such Plan; or (z) the PBGC shall have instituted proceedings to terminate such Guaranteed Pension Plan;
(ko) if any dissolution, termination, partial or complete liquidation, merger or consolidation 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 Banks, 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 or on behalf of the Borrower, the GuarantorGuarantors or any of the Subsidiaries of Borrower shall occur or any sale, transfer or other disposition of the assets of any of the Borrower, the Guarantors or any of the Subsidiaries of Borrower shall occur other than as permitted under the terms of this Agreement or the other Loan Documents;
(p) any of the Borrower, the Guarantors or any of their respective stockholdersSubsidiaries or any shareholder, officer, director, partner or member of any of them shall be indicted for a federal crime, a punishment for which could include the forfeiture of (i) any assets of such Person which in the good faith judgment of the Required Lenders could have a Material Adverse Effect, or (ii) the Unencumbered Property;
(q) any court Guarantor denies that it has any liability or obligation under the Guaranty or any other governmental or regulatory authority or agency of competent jurisdiction shall make a determination thatLoan Document, or issue a judgment, order, decree shall notify the Agent or ruling to the effect that, any one or more of the Lenders of such Guarantor’s intention to attempt to cancel or terminate any Guaranty or any other Loan Documents is illegalDocument, invalid or unenforceable in accordance shall fail to observe or comply with the terms thereofany term, covenant, condition or agreement under any Guaranty or any other Loan Document; or
(lr) if any person or group Change of persons (within Control shall occur; then, and upon any such Event of Default, the meaning of Section 13 or 14 Agent may, and upon the request of the Securities Exchange Act Required Lenders shall, by notice in writing to the Borrower declare all amounts owing with respect to this Agreement, the Notes, and the other Loan Documents to be, and they shall thereupon forthwith become, immediately due and payable without presentment, demand, protest or other notice of 1934any kind, as amended) shall have acquired beneficial ownership (within the meaning all of Rule 13d-3 promulgated which are hereby expressly waived by the Securities and Exchange Commission under said Act) of 25% or more of the outstanding shares of common voting stock of the Borrower; provided that in the event of any Event of Default specified in §12.1(h), §12.1(i) or during §12.1(j), all such amounts shall become immediately due and payable automatically and without any period requirement of twelve consecutive calendar monthspresentment, individuals who were directors demand, protest or other notice of any kind from any of the Lenders or the Agent. If demanded by Agent in its absolute and sole discretion or at the request of the Required Lenders after the occurrence and during the continuance of an Event of Default, Borrower on will deposit with and pledge to Agent cash in an amount equal to the first day amount of all undrawn Letters of Credit; provided that in the event of any Event of Default specified in §12.1(h), §12.1(i) or §12.1(j), the obligation to deposit and pledge such period (together with cash in an amount equal to the amount of all undrawn Letters of Credit shall be automatic and without any new directors whose election requirement of presentment, demand, protest, or other notice of any kind from the Agent or any of the Lenders. Such amounts will be pledged to and held by Agent for the benefit of the Lenders as security for any amounts that become payable under the Letters of Credit and all other Obligations. In the event the Borrower fails to deliver such board Cash Collateral, upon demand by Agent or whose nomination the Required Lenders in their absolute and sole discretion after the occurrence and during the continuance of an Event of Default, and regardless of whether the conditions precedent in this Agreement for election a Revolving Credit Loan have been satisfied, the Revolving Credit Lenders will cause a Revolving Credit Loan to be made in the undrawn amount of all Letters of Credit. The proceeds of any such Revolving Credit Loan will be pledged to and held by Agent as security for any amounts that become payable under the Letters of Credit and all other Obligations. Upon any draws under Letters of Credit, at Agent’s sole discretion, Agent may apply any such amounts pledged or funded hereunder to the repayment of amounts drawn thereunder and upon the expiration of the Letters of Credit any remaining amounts will be applied to the payment of all other Obligations or if there are no outstanding Obligations and Lenders have no further obligation to make Revolving Credit Loans or issue Letters of Credit or if such excess no longer exists, such proceeds deposited by the shareholders of the Borrower was approved by a vote of a majority of the directors still in office who were either directors at the beginning of such period or whose election or nomination for election was previously so approved) shall cease will be released to constitute a majority of the board of directors of the Borrower;.
Appears in 3 contracts
Sources: Credit Agreement (Plymouth Industrial REIT, Inc.), Credit Agreement (Plymouth Industrial REIT, Inc.), Credit Agreement (Plymouth Industrial REIT Inc.)
Events of Default and Acceleration. If any of the following events (“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, “Defaults”) shall occur:
(a) if the any Borrower shall fail to pay any principal of the Loans when 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;
(b) if the any Borrower shall fail to pay any interest on the Loans or fees or other amounts owing payable hereunder (other than those specified in subsection (a) above) within five (5) Business Days after when the same shall become due and payable payable, whether at the Maturity Date stated date of maturity or any accelerated date of maturity or at any other date fixed for payment, and such failure shall continue for five (5) days after written notice of such failure has been given to a Borrower by the Administrative Agent;
(c) if the any Borrower shall fail to comply with perform or observe any of the its covenants contained in §§7.4Sections 6.3.1, 7.56.4.1, 7.157.1, 7.167.2, 8 and 9 hereof7.3(xvi), 7.7, 7.8, 7.9, 8, or, if such failure relates to a Lien securing Funded Debt, 7.3;
(d) if the any Borrower or any of its Subsidiaries shall fail to perform or observe any term, covenant covenant, or agreement contained herein or in any of the other Loan Documents (other than those specified elsewhere in subsections this Section 11) for thirty (a), (b), and (c30) above) and such failure shall not be remedied within 30 days after written notice of such failure shall have has been given to the such Borrower by the Administrative Agent Agent, provided, that a failure to perform or any observe the terms, covenants and agreements set forth in Section 6.2, Section 6.3.3, Section 6.7 or Section 6.11.1 that continues for more than ten (10) days (regardless of the Bankswhether notice of such failure is given to such Borrower) shall constitute an Event of Default hereunder;
(e) if any representation or warranty contained of any Borrower or any of its Subsidiaries in this Agreement Credit Agreement, any of the other Loan Documents, or in any other document or instrument delivered pursuant to or in connection with this Credit Agreement shall prove to have been false incorrect in any material respect upon the date when made or deemed to have been made or repeated;
(f) if failure to make a payment of principal or interest, or the Borrower occurrence of a default, event of default, or other event permitting (with or without the passage of time or the giving of notice) acceleration or exercise of remedies or, with respect to any Swap Contract, as to which the Company or any Subsidiary is the defaulting party, permitting early termination thereof shall occur with respect to (i) any Indebtedness for money borrowed, (ii) any Indebtedness in respect of the deferred purchase price of goods or services, (iii) any Capitalized Lease, (iv) any Broker-Dealer Debt, (v) any Swap Contract or (vi) any Synthetic Lease Obligation, of the Company or any of its Subsidiaries shall fail Subsidiaries, having a principal amount (or (x) in the case of a Capitalized Lease, scheduled rental payments with a discounted present value from the last day of the initial term to pay when duethe date of determination as determined in accordance with generally accepted accounting principles or (y) in the case of a Swap Contract, the Swap Termination Value or within any applicable period (z) in the case of gracea Synthetic Lease Obligation, any the amount of Attributable Indebtedness or obligations under Swap Contracts in an aggregate amount greater than $75,000,000with respect thereto), or fail to observe or perform any material term, covenant or agreement contained (A) in any one case, of $100,000,000 or more agreements by which it is boundmore, evidencing or securing any Indebtedness (B) in the aggregate, of $250,000,000 or obligations under Swap Contracts in an aggregate amount greater than $75,000,000 more, and such failure to make a payment of principal or interest, or a default, event of default, or other event shall continue for such period of time as would permit, or would have permitted (assuming the giving of appropriate notice if required) entitle the holder of such Indebtedness, Capitalized Lease, Swap Contract or holders thereof Synthetic Lease Obligation (with or of any obligations issued thereunder without notice) to accelerate the maturity thereof such Indebtedness or terminate its commitment with respect theretosuch Capitalized Lease, Swap Contract or Synthetic Lease Obligation;
(g) if any of the BorrowerLoan 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 Banks, or any Proceeding to cancel, revoke, or rescind any of the Loan Documents shall be commenced by or on behalf of any Borrower or any of its Subsidiaries party thereto, or any Government Authority of competent jurisdiction shall make a determination that, or issue a Government Mandate to the effect that, any material provision of one or more of the Loan Documents is illegal, invalid, or unenforceable in accordance with the terms thereof; or any material provision of Section 14 shall cease to be valid and binding on or enforceable against the Company, or the Company shall so state in writing;
(h) the Company, Alliance Distributors, the Guarantor General Partner, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ or any Significant Material Subsidiary makes shall make an assignment for the benefit of creditors, or admits admit in writing its inability to pay or generally fails fail to pay its debts as they mature or become due, or petitions shall petition or applies apply for the appointment of a trustee or other custodian, liquidator liquidator, or receiver of the BorrowerCompany, Alliance Distributors, the Guarantor General Partner, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ or any Significant Subsidiary, Material Subsidiary or of any substantial part of the assets of the BorrowerCompany, Alliance Distributors, the Guarantor General Partner, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ or any Significant Subsidiary Material Subsidiary, or commences shall commence any case or other proceeding Proceeding relating to the BorrowerCompany, Alliance Distributors, the Guarantor General Partner, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ or any Significant Material Subsidiary under any bankruptcy, reorganization, arrangement, insolvency, readjustment of debt, dissolution or liquidation dissolution, liquidation, or similar law of any jurisdiction, now or hereafter in effect, or takes shall take any action to authorize or in furtherance of any of the foregoing, or if any such petition or application is shall be filed or any such case or other proceeding is Proceeding shall be commenced against the BorrowerCompany, Alliance Distributors, the Guarantor General Partner, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ or any Significant Material Subsidiary or the Borrower, the Guarantor or and any Significant Subsidiary indicates of such parties shall indicate its approval thereof, consent thereto thereto, or acquiescence therein;
(hi) if either (i) an involuntary Proceeding relating to the Company, Alliance Distributors, the General Partner, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ or any Material Subsidiary under any bankruptcy, reorganization, arrangement, insolvency, readjustment of debt, dissolution, liquidation, or similar law of any jurisdiction, now or hereafter in effect is commenced and not dismissed or vacated within sixty (60) days following entry thereof, or (ii) a decree or order is entered appointing any such trustee, custodian, liquidator liquidator, or receiver described in (h) or adjudicating the Borrower or Company, Alliance Distributors, the Guarantor General Partner, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ or any Significant Material Subsidiary bankrupt or insolvent, or approving a petition in any such case or other proceedingProceeding, or a decree or order for relief is entered in respect of the Borrower or Company, Alliance Distributors, the Guarantor General Partner, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ or any Significant Material Subsidiary in an involuntary case Proceeding under federal bankruptcy laws of any jurisdiction as now or hereafter constituted;
(ij) if there shall remain in force, undischarged, unsatisfied unsatisfied, and unstayed, for more than thirty forty-five (45) days, whether or not consecutive, any final judgment or order against the Borrower Company or any Subsidiary whichof its Subsidiaries, that, with any other such outstanding final judgments or orders, undischarged, against the Borrower Company and its Subsidiaries, Subsidiaries taken together exceeds in the aggregate $50,000,000 after taking into account any undisputed insurance coverage50,000,000;
(jk) if, with respect to any Guaranteed Pension Plan, an ERISA Reportable Event shall have occurred and the Majority Banks shall have determined in their reasonable discretion that such event reasonably could be expected to result in liability of the Borrower Company or any Subsidiary of its Subsidiaries to the PBGC or such Guaranteed Pension Plan in an aggregate amount exceeding $50,000,000 and such event in the circumstances occurring reasonably could constitute grounds for the partial or complete termination of such Guaranteed Pension Plan by the PBGC or for the appointment by the appropriate United States District Court of a trustee to administer such Guaranteed Pension Plan; or a trustee shall have been appointed by the appropriate United States District Court to administer such Guaranteed Pension Plan; or the PBGC shall have instituted proceedings to terminate such Guaranteed Pension Plan; or any representation with respect to any Guaranteed Pension Plan or Multiemployer Plan made in Section 5.9 shall prove to be incorrect during the term of this Credit Agreement and the Majority Banks shall have determined in their reasonable discretion that the events underlying the incorrect representation could reasonably be expected to result in liability to the Company or its Subsidiaries, in the aggregate, in excess of $50,000,000;
(kl) if any of the Loan Documents following: (i) the Company shall fail to be cancelledduly registered as an “investment adviser” under the Investment Advisers Act of 1940; (ii) Alliance Distributors shall cease to be duly registered as a “broker/dealer” under the Securities Exchange Act of 1934 or shall cease to be a member of the Financial Industry Regulatory Authority, terminatedInc. , revoked or rescinded otherwise than (iii) ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ shall cease to be duly registered as a “broker/dealer” under the Securities Exchange Act of 1934 or shall cease to be a member of the Financial Industry Regulatory Authority, Inc. , in accordance each case, to the extent required;
(m) the Company, Alliance Distributors, the General Partner, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ or any Material Subsidiary shall either (i) be indicted for a federal or state crime and, in connection with such indictment, Government Authorities shall seek to seize or attach, or seek a civil forfeiture of, property of the terms thereof Company, Alliance Distributors, the General Partner, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ or one or more of such Material Subsidiaries having a fair market value in excess of $50,000,000, or (ii) be found guilty of, or shall plead guilty, no contest, or nolo contendere to, any federal or state crime, a punishment for which could include a fine, penalty, or forfeiture of any assets of the Company, Alliance Distributors, the General Partner, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ or such Material Subsidiary having in any such case a fair market value in excess of $50,000,000; or
(n) AllianceBernstein Corporation shall cease to be the sole general partner of the Company, and such circumstance shall continue for thirty (30) days after written notice of such circumstance has been given to the Company, provided, that the admission of additional Persons as general partner of the Company shall not constitute an Event of Default if, prior to the admission of any such general partner, the Company delivers to the Banks (i) the documentation with respect to such general partner that would be required under Section 9.3 if such Person were a General Partner on the express prior written agreementClosing Date, consent or approval of (ii) an incumbency certificate for such general partner as required for the Company pursuant to Section 9.8, and (iii) an opinion from counsel reasonably acceptable to the Banks, or any action at lawin form and substance reasonably satisfactory to the Banks, suit or in equity or other legal proceeding as to cancel, revoke or rescind any of the Loan Documents shall be commenced by or such general partner’s power and authority to act on behalf of the BorrowerCompany as a general partner of the Company; then, and in any such event, so long as the same may be continuing, the GuarantorAdministrative Agent shall, at the request of, or any of their respective stockholdersmay with the consent of, 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 effect that, any Majority Banks take one or more of the following actions: (x) declare the Commitment of each Bank to make Loans to be terminated, whereupon such Commitment shall be terminated; and (y) by notice in writing to the Borrowers declare all amounts owing with respect to this Credit Agreement, any Notes, and the other Loan Documents is illegalto be, invalid and they shall thereupon forthwith become, immediately due and payable without presentment, demand, protest, or unenforceable other notice of any kind, all of which are hereby expressly waived by each Borrower. In addition, in accordance with any such event, so long as the terms thereof; same may be continuing, the Administrative Agent may or
(l) if any person or group of persons (within , at the meaning of Section 13 or 14 request of the Securities Exchange Act Majority Banks, shall exercise on behalf of 1934itself and the Banks all other rights and remedies available to it and the Banks under the Loan Documents or applicable law. Notwithstanding the foregoing, as amendedin the event of any Event of Default specified in Section 11.1(h) or Section 11.1(i), all such amounts shall have acquired beneficial ownership (within become immediately due and payable automatically and without any requirement of notice from the meaning Administrative Agent or any Bank, and any unused portion of Rule 13d-3 promulgated the Total Commitment hereunder shall forthwith terminate and each of the Banks shall be relieved of all obligations to make Loans to the Borrowers. Any declaration under this Section 11.1 may be rescinded by the Securities and Exchange Commission under said Act) Majority Banks after the Events of 25% Default leading to such declaration are cured or more of the outstanding shares of common voting stock of the Borrower; or during any period of twelve consecutive calendar months, individuals who were directors of the Borrower on the first day of such period (together with any new directors whose election by such board or whose nomination for election by the shareholders of the Borrower was approved by a vote of a majority of the directors still in office who were either directors at the beginning of such period or whose election or nomination for election was previously so approved) shall cease to constitute a majority of the board of directors of the Borrower;waived.
Appears in 2 contracts
Sources: Revolving Credit Agreement (Alliancebernstein Holding L.P.), Revolving Credit Agreement (Alliancebernstein L.P.)
Events of Default and Acceleration. If any of the following events (“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 or lapse of time, “Defaults”) shall occur:
(a) if the Borrower shall fail to pay any principal of any of the Loans when 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;
(b) if the Borrower shall fail to pay any interest on the Loans, or any other fees or sums due hereunder or under any of the other amounts owing hereunder Loan Documents, within ten (other than those specified in subsection (a10) above) within five (5) Business Days days after the same shall become due and payable payable, whether at the Maturity Date stated date of maturity or any accelerated date of maturity or at any other date fixed for payment;
(c) if the Borrower or any Guarantor or any of their respective Subsidiaries shall fail to comply with perform or observe any of term, covenant, condition or agreement contained in §7.24 and such failure under this §12.1(c) shall, as to the particular covenant or covenants contained in §§7.4, 7.5, 7.15, 7.16, 8 the Secured Credit Agreement not so performed or observed continue beyond the period of any grace or notice and 9 hereofcure period set forth in the Secured Credit Agreement with respect to the non-performance of such covenant;
(d) if the Borrower or any Guarantor shall fail to perform any other material term, covenant or agreement contained herein or in any of the other Loan Documents (other than those specified in subsections (athis §12), (b), and (c) above) and such failure shall not be remedied within 30 continue for thirty (30) days after written notice of such failure thereof shall have been given to the Borrower by the Administrative Agent or any of the BanksAgent;
(e) if any representation or warranty contained made by or on behalf of the Borrower or any Guarantor in this Agreement or any other Loan Document, or in any report, certificate, financial statement, request for a Loan, or in any other document or instrument delivered pursuant to or in connection with this Agreement Agreement, any advance of a Loan or any of the other Loan Documents shall prove to have been false in any material respect upon the date when made or deemed to have been made or repeated;
(f) if the Borrower or any of its Subsidiaries Guarantor shall fail to pay when dueat maturity, or within any applicable period of grace, any obligation for borrowed money or credit received or other Indebtedness or obligations under Swap Contracts in an aggregate amount greater than $75,000,000(including, without limitation, any Derivatives Contract), or fail to observe or perform any material term, covenant or agreement contained in any one or more agreements agreement by which it is bound, evidencing or securing any such borrowed money or credit received or other Indebtedness or obligations under Swap Contracts in an aggregate amount greater than $75,000,000 for such period of time as would permit, or would have permitted permit (assuming the giving of appropriate notice if required) the holder or holders thereof or of any obligations issued thereunder to accelerate the maturity thereof or terminate its commitment require the prepayment or purchase thereof, provided that solely with respect theretoto Borrower and Trust the events described in this §12.1(f) shall not constitute an Event of Default unless such failure to perform, together with other failures to perform as described in this §12.1(f), involve singly or in the aggregate obligations for Recourse Indebtedness totaling in excess of $10,000,000.00 or Non-recourse Indebtedness totaling in excess of $30,000,000.00;
(g) if the Borrower, the Guarantor Borrower or any Significant Subsidiary makes Guarantor, (i) shall make an assignment for the benefit of creditors, or admits admit in writing its general inability to pay or generally fails fail to pay its debts as they mature or become due, or petitions shall petition or applies apply for the appointment of a trustee or other custodian, liquidator or receiver of the Borrower, the Guarantor or any Significant Subsidiary, such Person or of any substantial part of the assets of the Borrowerany thereof, the Guarantor or any Significant Subsidiary or commences (ii) shall commence any case or other proceeding relating to the Borrower, the Guarantor or any Significant Subsidiary such Person 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 (iii) shall take any action to authorize or in furtherance of any of the foregoing, or if any such ;
(h) a petition or application is shall be filed for the appointment of a trustee or other custodian, liquidator or receiver of any of the Borrower or any such Guarantor or any substantial part of the assets of any thereof, or a case or other proceeding is shall be commenced against the Borrowerany such Person under any bankruptcy, the Guarantor reorganization, arrangement, insolvency, readjustment of debt, dissolution or liquidation or similar law of any Significant Subsidiary jurisdiction, now or the Borrowerhereafter in effect, the Guarantor or and any Significant Subsidiary indicates such Person shall indicate its approval thereof, consent thereto or acquiescence thereintherein or such petition, application, case or proceeding shall not have been dismissed within sixty (60) days following the filing or commencement thereof;
(hi) if a decree or order is entered appointing any such trustee, custodian, liquidator or receiver or adjudicating any of the Borrower or the any Guarantor or any Significant Subsidiary 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 or the Guarantor or any Significant Subsidiary such Person in an involuntary case under federal bankruptcy laws of any jurisdiction as now or hereafter constituted;
(ij) if there shall remain in force, undischarged, unsatisfied and unstayed, for more than thirty sixty (60) days, whether or not consecutive, any uninsured final judgment against any of the Borrower or any Subsidiary whichGuarantor that, with other outstanding uninsured final judgments judgments, undischarged, against the Borrower and its Subsidiaries, such Persons exceeds in the aggregate $50,000,000 after taking into account any undisputed insurance coverage;
(j) if, 1,000,000.00 with respect to any Guaranteed Pension Plan, an ERISA Reportable Event shall have occurred Subsidiary Property Owner and $10,000,000 with respect to the Borrower and the Banks shall have determined in their reasonable discretion that such event reasonably could be expected to result in liability of the Borrower or any Subsidiary to the PBGC or such Plan in an aggregate amount exceeding $50,000,000 and such event in the circumstances occurring reasonably could constitute grounds for the partial or complete termination of such Plan by the PBGC or for the appointment by the appropriate United States District Court of a trustee to administer such Plan; or a trustee shall have been appointed by the appropriate United States District Court to administer such Plan; or the PBGC shall have instituted proceedings to terminate such PlanTrust;
(k) if any of the Loan Documents shall be cancelledcanceled, terminated, revoked or rescinded otherwise than in accordance with the terms thereof or with the express prior written agreement, consent or approval of the Banks, 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 or on behalf of the Borrower, the any Guarantor, any of their respective Subsidiaries or any of their respective stockholdersholders of Voting Interests, 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 effect that, any one or more of the Loan Documents is illegal, invalid or unenforceable in accordance with the terms thereof;
(l) any dissolution, termination, partial or complete liquidation, merger or consolidation of the Borrower or any Guarantor or any sale, transfer or other disposition of the assets of the Borrower or any Guarantor other than as permitted under the terms of this Agreement or the other Loan Documents;
(m) any suit or proceeding shall be filed against any of the Borrower or any Guarantor or any of their respective assets which in the good faith business judgment of the Majority Banks after giving consideration to the likelihood of success of such suit or proceeding and the availability of insurance to cover any judgment with respect thereto and based on the information available to them if adversely determined, would have a materially adverse effect on the ability of the Borrower or any Guarantor to perform each and every one of its obligations under and by virtue of the Loan Documents and such suit or proceeding is not dismissed within sixty (60) days following the filing or commencement thereof;
(n) the Borrower or any Guarantor or any Person so connected with them shall be indicted for a federal crime, a punishment for which could include the forfeiture of any assets of the Borrower or any Guarantor, including the Collateral;
(o) with respect to any Guaranteed Pension Plan, an ERISA Reportable Event shall have occurred and the Majority Banks shall have determined in their reasonable discretion that such event reasonably could be expected to result in liability of the Borrower or any Guarantor to the PBGC or such Guaranteed Pension Plan in an aggregate amount exceeding $1,000,000 and such event in the circumstances occurring reasonably could constitute grounds for the termination of such Guaranteed Pension Plan by the PBGC or for the appointment by the appropriate United States District Court of a trustee to administer such Guaranteed Pension Plan; or a trustee shall have been appointed by the United States District Court to administer such Plan or the PBGC shall have instituted proceedings to terminate such Guaranteed Pension Plan;
(p) a Change of Control shall occur;
(q) ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ shall cease to be active on a daily basis in the management of the Trust and the Borrower and a competent and experienced successor for such Person shall not be approved by the Majority Banks within six (6) months of such event, such approval not to be unreasonably withheld;
(r) The Borrower and the Trust and any of their respective Subsidiaries shall fail to pay at maturity, or within any applicable period of grace, any Subordinated Debt, or fail to observe or perform any material term, covenant or agreement contained in any agreement by which it is bound, evidencing or securing any such Subordinated Debt for such period of time as would permit (assuming the giving of appropriate notice if required) the holder or holders thereof or of any obligations issued thereunder to accelerate the maturity thereof or require a redemption, retirement, prepayment, purchase or defeasance thereof;
(s) any Event of Default (as defined in any of the other Loan Documents) shall occur; or
(lt) if An “Event of Default” (as defined in the Secured Credit Agreement) shall occur. then, and in any person or group of persons (within such event, the meaning of Section 13 or 14 Agent may, and upon the request of the Securities Exchange Act Majority Banks shall, by notice in writing to the Borrower (in addition to the rights afforded under §12.3) declare all amounts owing with respect to this Agreement, the Notes, and the other Loan Documents to be, and they shall thereupon forthwith become, immediately due and payable without presentment, demand, protest or other notice of 1934any kind, as amended) shall have acquired beneficial ownership (within the meaning all of Rule 13d-3 promulgated which are hereby expressly waived by the Securities and Exchange Commission under said Act) of 25% or more of the outstanding shares of common voting stock of the Borrower; provided that in the event of any Event of Default specified in §12.1(g), §12.1(h) or during §12.1(i), all such amounts shall become immediately due and payable automatically without any period requirement of twelve consecutive calendar monthspresentment, individuals who were directors demand, protest or other notice of any kind from any of the Borrower on Banks or the first day of such period (together with any new directors whose election by such board or whose nomination for election by the shareholders of the Borrower was approved by a vote of a majority of the directors still in office who were either directors at the beginning of such period or whose election or nomination for election was previously so approved) shall cease to constitute a majority of the board of directors of the Borrower;Agent.
Appears in 2 contracts
Sources: Revolving Credit Agreement (Ramco Gershenson Properties Trust), Revolving Credit Agreement (Ramco Gershenson Properties Trust)
Events of Default and Acceleration. If any Each of the following events (“Events shall constitute an Event 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:
(a) if the Borrower shall fail to pay any principal of the Loans when the same shall become due and payable, whether at payable and in the stated date of maturity or any accelerated date of maturity or at any other date fixed for paymentcurrency required hereunder;
(b) if the Borrower shall fail to pay any interest on the Loans or fees any other sums due hereunder or under any of the other Loan Documents (including, without limitation, amounts owing hereunder (other than those specified in subsection (adue under §8.17) above) within five (5) Business Days after when the same shall become due and payable whether at payable, and such failure continues for three (3) days (provided that in the Maturity Date or any accelerated date case of maturity or at any such sums due other date fixed than for paymentinterest, the Borrower shall have received from the Agent notice of the nature and amount of such other amounts and that payment therefor is due);
(c) if the Borrower or BPI shall fail to comply comply, or to cause BPI to comply, as the case may be, with any of the respective covenants contained in §§7.4the following:
(i) 8.1 (except with respect to principal, 7.5interest and other sums covered by clauses (a) or (b) above);
(ii) 8.5 (clauses (a) through (d)), 7.15unless such failure is cured within fifteen (15) Business Days;
(iii) 8.6 (as to the legal existence of the Borrower);
(iv) 8.7 (as to the legal existence and REIT status of BPI or as it otherwise relates to BPI);
(v) 8.10, 7.16, 8 and 9 hereofunless such failure is cured within three (3) Business Days;
(vi) 8.12;
(vii) [Intentionally Deleted];
(viii) [Intentionally Deleted];
(ix) 9.1;
(x) 9.2;
(xi) 9.3;
(xii) 9.4;
(xiii) 9.6; and
(xiv) 10;
(d) if the Borrower or BPI shall fail to perform perform, or to cause BPI to perform, any other term, covenant or agreement contained herein or in any of the other Loan Documents (other than those specified elsewhere in subsections (a), (b), and (c) abovethis §14) and such failure shall not be remedied within 30 continues for thirty (30) days after written notice of such failure shall have been given from the Agent (such notice not, however, being required for any failure with respect to which the Borrower is otherwise obligated hereunder to notify the Agent or the Banks), provided, however, that if the Borrower is diligently and in good faith prosecuting a cure of any such failure or breach that is capable of being cured (all as determined by the Administrative Agent or in its reasonable and good faith judgment), the Borrower shall be permitted an additional thirty (30) days (but in no event more than an aggregate of sixty (60) days after any of such initial written notice from the BanksAgent) to effect such cure;
(e) if any representation or warranty contained made by or on behalf of the Borrower or BPI in this Agreement or in any document or instrument delivered pursuant to or in connection with this Agreement of the other Loan Documents shall prove to have been false in any material respect upon the date when made or repeateddeemed to have been made or repeated and the same is not otherwise specified herein to be a Non-Material Breach;
(f) if the Borrower or any of its Subsidiaries or, to the extent of Recourse to the Borrower or such Subsidiaries thereunder, any of their respective Affiliates, shall fail to pay when dueat maturity, or within any applicable period of grace, any Indebtedness obligation for borrowed money or credit received or in respect of any Capitalized Leases (other than non-recourse obligations under Swap Contracts or credit), the recourse component of the principal amount of which is in an aggregate amount greater than excess of $75,000,00050,000,000, either individually or in the aggregate, or fail to observe or perform any material term, covenant covenant, condition or agreement contained in any one agreement, document or more agreements instrument by which it is boundbound evidencing, securing or otherwise relating to such Recourse obligations, evidencing or securing borrowed money or credit received or in respect of any Indebtedness or obligations under Swap Contracts in an aggregate amount greater than $75,000,000 Capitalized Leases for such period of time as would permit, or would have permitted (assuming after the giving of appropriate notice if required) as would permit the holder or holders thereof or of any obligations issued thereunder the recourse component of the principal amount of which is in excess of $50,000,000, either individually or in the aggregate, to accelerate the maturity thereof thereof; provided, however that notwithstanding the foregoing, (i) no Event of Default shall occur pursuant to this subparagraph (f) unless and until the holder or terminate its commitment holders of such Recourse Indebtedness have declared an event of default beyond any applicable notice and grace periods, if any, on in excess of $50,000,000 of such Recourse Indebtedness (determined on the basis of the principal amount of such Recourse Indebtedness) either individually or in the aggregate, and (ii) with respect theretosolely to any such Recourse Indebtedness of a Subsidiary or Affiliate of the Borrower (not including any such Indebtedness which is Recourse to the Borrower), no Event of Default shall occur pursuant to this subparagraph (f) if, upon the occurrence of such event, the Borrower, promptly after obtaining knowledge of the same, notifies the Agent in writing of such event and includes with such notice a Compliance Certificate in the form of Exhibit C-3 evidencing to the satisfaction of the Agent that, as of the date thereof, the Borrower is in compliance with all of the covenants set ▇▇▇▇▇ ▇▇ §▇▇ after excluding such Subsidiary or Affiliate, and any Real Estate Asset owned by such Subsidiary or Affiliate, from the calculation of such covenants;
(g) if the Borrowerany of BPLP, the Guarantor BPI or any Significant Subsidiary makes of their respective Subsidiaries shall make an assignment for the benefit of creditors, or admits admit in writing its inability to pay or generally fails fail to pay its debts as they mature or become due, or petitions shall petition or applies apply for the appointment of a trustee or other custodian, liquidator or receiver of the Borrowerany of BPLP, the Guarantor BPI or any Significant Subsidiary, of their respective Subsidiaries or of any substantial part of the properties or assets of the Borrower, the Guarantor any of such parties or any Significant Subsidiary or commences shall commence any case or other proceeding relating to the Borrowerany of BPLP, the Guarantor BPI or any Significant Subsidiary of their respective 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 shall take any action to authorize or in furtherance of any of the foregoing, or if any such petition or application is shall be filed or any such case or other proceeding is shall be commenced against the Borrowerany of BPLP, the Guarantor BPI or any Significant Subsidiary or the Borrowerof their respective Subsidiaries and (i) any of BPLP, the Guarantor BPI or any Significant Subsidiary indicates of their respective Subsidiaries shall indicate its approval thereof, consent thereto or acquiescence thereintherein or (ii) any such petition, application, case or other proceeding shall continue undismissed, or unstayed and in effect, for a period of ninety (90) days, except, with respect solely to such parties other than BPLP and BPI, any of the foregoing constitutes a Non-Material Breach;
(h) if a decree or order is entered appointing any such trustee, custodian, liquidator or receiver or adjudicating the Borrower or the Guarantor any of BPLP, BPI or any Significant Subsidiary of their respective Subsidiaries 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 or the Guarantor any of BPLP, BPI or any Significant Subsidiary of their respective Subsidiaries in an involuntary case under federal bankruptcy laws of any jurisdiction as now or hereafter constituted, except, with respect solely to such parties other than BPLP and BPI, any of the foregoing constitutes a Non-Material Breach;
(i) if there shall remain in force, undischarged, unsatisfied and unstayed, for more than thirty (30) days, whether or not consecutive, any uninsured final judgment against the Borrower any of BPLP, BPI or any Subsidiary whichof their respective Subsidiaries that, with other outstanding uninsured final judgments judgments, undischarged, unsatisfied and unstayed, against the Borrower and its Subsidiaries, any of such parties exceeds in the aggregate $50,000,000 after taking into account 20,000,000 except, with respect solely to such parties other than BPLP and BPI, any undisputed insurance coverageof the foregoing constitutes a Non-Material Breach, and excluding in all events (x) judgments in respect of non-recourse loans secured by Real Estate Assets and (y) defaults in respect of borrowed money that would otherwise be included in §14.1(f);
(j) if, with respect to any Guaranteed Pension Plan, an ERISA Reportable Event shall have occurred and the Banks shall have determined in their reasonable discretion that such event reasonably could be expected to result in liability of the Borrower or any Subsidiary to the PBGC or such Plan in an aggregate amount exceeding $50,000,000 and such event in the circumstances occurring reasonably could constitute grounds for the partial or complete termination of such Plan by the PBGC or for the appointment by the appropriate United States District Court of a trustee to administer such Plan; or a trustee shall have been appointed by the appropriate United States District Court to administer such Plan; or the PBGC shall have instituted proceedings to terminate such Plan;
(k) if any of the Loan Documents or any material provision of any Loan Document shall be cancelledcanceled, terminated, revoked or rescinded otherwise than in accordance with the terms thereof or with the express prior written agreement, consent or approval of the BanksAgent, or any action at law, suit or in equity or other legal proceeding to make unenforceable, cancel, revoke or rescind any of the Loan Documents shall be commenced by or on behalf of the Borrower, the Guarantor, Borrower or any of their respective stockholdersBPI, 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 effect that, any one or more of the Loan Documents is illegal, invalid or unenforceable in accordance with the as to any material terms thereof;
(k) any “Event of Default” or default (after notice and expiration of any period of grace, to the extent provided), as defined or provided in any of the other Loan Documents, shall occur and be continuing;
(l) with respect to any Pension Plan, an ERISA Reportable Event shall have occurred and the Required Banks shall have determined in their reasonable discretion that such event reasonably could be expected to result in liability of the Borrower or BPI to the PBGC or such Pension Plan in an aggregate amount exceeding $10,000,000 and such event in the circumstances occurring reasonably could constitute grounds for the termination of such Pension Plan by the PBGC or for the appointment by the appropriate United States District Court of a trustee to administer such Pension Plan; or a trustee shall have been appointed by the United States District Court to administer such Pension Plan; or the PBGC shall have instituted proceedings to terminate such Pension Plan; or
(lm) if any person or group of persons (within the meaning of Section 13 or 14 without limitation of the Securities Exchange Act other provisions of 1934this §14.1, as amended) BPI shall have acquired beneficial ownership (within at any time fail to be the meaning sole general partner of Rule 13d-3 promulgated by the Securities and Exchange Commission under said Act) BPLP or shall at any time be in contravention of 25% or more any of the outstanding shares requirements contained in §9.1(e), the last paragraph of common voting stock §9.2, or §9.3 (including, without limitation, the last paragraph of the Borrower; or during any period of twelve consecutive calendar months, individuals who were directors of the Borrower on the first day of such period (together with any new directors whose election by such board or whose nomination for election by the shareholders of the Borrower was approved by a vote of a majority of the directors still in office who were either directors at the beginning of such period or whose election or nomination for election was previously so approved) shall cease to constitute a majority of the board of directors of the Borrower;§9.3).
Appears in 2 contracts
Sources: Credit Agreement (Boston Properties LTD Partnership), Credit Agreement (Boston Properties LTD Partnership)
Events of Default and Acceleration. If any of the following events (“"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, “"Defaults”") shall occur:
(a) if the Borrower shall fail to pay any principal of the Loans when 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;
(b) if the Borrower shall fail to pay any interest or fees or other amounts owing hereunder (other than those specified in subsection (a) above) within five (5) Business Days after the same shall become due and payable whether at the Maturity Date or any accelerated date of maturity or at any other date fixed for payment;
(c) if the Borrower shall fail to comply with any of the covenants contained in §§Sections 7.4, 7.5, 7.15, 7.16, 8 and 9 hereof;
(d) if the Borrower shall fail to perform any term, covenant or agreement contained herein or in any of the other Loan Documents (other than those specified in subsections (a), (b), and (c) above) and such failure shall not be remedied within 30 days after written notice of such failure shall have been given to the Borrower by the Administrative Agent or any of the Banks;
(e) if any representation or warranty contained in this Agreement or in any document or instrument delivered pursuant to or in connection with this Agreement shall prove to have been false in any material respect upon the date when made or repeated;
(f) if the Borrower or any of its Subsidiaries shall fail to pay when due, or within any applicable period of grace, any Indebtedness or obligations under Swap Contracts in an aggregate amount greater than $75,000,000, or fail to observe or perform any material term, covenant or agreement contained in any one or more agreements by which it is bound, evidencing or securing any Indebtedness or obligations under Swap Contracts in an aggregate amount greater than $75,000,000 for such period of time as would permit, or would have permitted (assuming the giving of appropriate notice if required) the holder or holders thereof or of any obligations issued thereunder to accelerate the maturity thereof or terminate its commitment with respect thereto;
(g) if the Borrower, the Guarantor or any Significant Subsidiary makes an assignment for the benefit of creditors, or admits in writing its inability to pay or generally fails to pay its debts as they mature or become due, or petitions or applies for the appointment of a trustee or other custodian, liquidator or receiver of the Borrower, the Guarantor or any Significant Subsidiary, or of any substantial part of the assets of the Borrower, the Guarantor or any Significant Subsidiary or commences any case or other proceeding relating to the Borrower, the Guarantor or any Significant Subsidiary 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, the Guarantor or any Significant Subsidiary or the Borrower, the Guarantor or any Significant Subsidiary 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 Borrower or the Guarantor or any Significant Subsidiary 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 or the Guarantor or any Significant Subsidiary in an involuntary case under federal bankruptcy laws of any jurisdiction as now or hereafter constituted;
(i) if there shall remain in force, undischarged, unsatisfied and unstayed, for more than thirty days, whether or not consecutive, any final judgment against the Borrower or any Subsidiary which, with other outstanding final judgments against the Borrower and its Subsidiaries, exceeds in the aggregate $50,000,000 after taking into account any undisputed insurance coverage;
(j) if, with respect to any Guaranteed Pension Plan, an ERISA Reportable Event shall have occurred and the Banks shall have determined in their reasonable discretion that such event reasonably could be expected to result in liability of the Borrower or any Subsidiary to the PBGC or such Plan in an aggregate amount exceeding $50,000,000 and such event in the circumstances occurring reasonably could constitute grounds for the partial or complete termination of such Plan by the PBGC or for the appointment by the appropriate United States District Court of a trustee to administer such Plan; or a trustee shall have been appointed by the appropriate United States District Court to administer such Plan; or the PBGC shall have instituted proceedings to terminate such Plan;
(k) if 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 Banks, 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 or on behalf of the Borrower, the Guarantor, or any of their respective stockholders, 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 effect that, any one or more of the Loan Documents is illegal, invalid or unenforceable in accordance with the terms thereof; or
(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 25% or more of the outstanding shares of common voting stock of the Borrower; or during any period of twelve consecutive calendar months, individuals who were directors of the Borrower on the first day of such period (together with any new directors whose election by such board or whose nomination for election by the shareholders of the Borrower was approved by a vote of a majority of the directors still in office who were either directors at the beginning of such period or whose election or nomination for election was previously so approved) shall cease to constitute a majority of the board of directors of the Borrower;
Appears in 2 contracts
Sources: Quarterly Report, Revolving Credit Agreement (Waste Management Inc)
Events of Default and Acceleration. If Any part or all of the amount due to the Holder hereunder, at the option of the Holder shall become immediately due and payable without notice or demand (which are expressly waived by VRH) upon the occurrence of any of the following events (“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, “Defaults”) shall occurdefault:
(a) if any default in the Borrower shall fail to pay any payment of (1) the principal of the Loans amount hereunder when due, or (2) interest on this Note, as and when the same shall become due and payable, payable (whether at on the stated date of maturity Maturity Date or any accelerated date of maturity by acceleration or at any other date fixed for payment;otherwise) that is not corrected within 3 business days; or
(b) if the Borrower VRH shall fail to pay any interest or fees or other amounts owing hereunder (other than those specified in subsection (a) above) within five (5) Business Days after the same shall become due and payable whether at the Maturity Date or any accelerated date of maturity or at any other date fixed for payment;
(c) if the Borrower shall fail to comply with any of the covenants contained in §§7.4, 7.5, 7.15, 7.16, 8 and 9 hereof;
(d) if the Borrower shall fail to perform any term, covenant or agreement contained herein or in any of the other Loan Documents (other than those specified in subsections (a), (b), and (c) above) and such failure shall not be remedied within 30 days after written notice of such failure shall have been given to the Borrower by the Administrative Agent or any of the Banks;
(e) if any representation or warranty contained in this Agreement or in any document or instrument delivered pursuant to or in connection with this Agreement shall prove to have been false in any material respect upon the date when made or repeated;
(f) if the Borrower or any of its Subsidiaries shall fail to pay when due, or within any applicable period of grace, any Indebtedness or obligations under Swap Contracts in an aggregate amount greater than $75,000,000, or fail to observe or perform any other material term, covenant or agreement contained in this Note, which failure is not cured, if possible to cure, within 30 days after receipt of notice thereof; or
(c) any one merger, consolidation, reorganization or more agreements by which it is boundconversion of VRH, evidencing without the prior written consent of the Agent; or
(d) VRH shall (i) apply for or securing any Indebtedness or obligations under Swap Contracts in an aggregate amount greater than $75,000,000 for such period of time as would permitconsent to the appointment of, or would have permitted (assuming the giving taking of appropriate notice if required) the holder possession by, a receiver, custodian, trustee or holders thereof liquidator of itself or of any obligations issued thereunder to accelerate the maturity thereof all or terminate a substantial part of its commitment with respect thereto;
property or assets, (gii) if the Borrower, the Guarantor or any Significant Subsidiary makes an make a general assignment for the benefit of its creditors, or admits in writing its inability to pay or generally fails to pay its debts (iii) commence a voluntary case under the United States Bankruptcy Code (as they mature or become due, or petitions or applies for the appointment of a trustee or other custodian, liquidator or receiver of the Borrower, the Guarantor or any Significant Subsidiary, or of any substantial part of the assets of the Borrower, the Guarantor or any Significant Subsidiary or commences any case or other proceeding relating to the Borrower, the Guarantor or any Significant Subsidiary under any bankruptcy, reorganization, arrangement, insolvency, readjustment of debt, dissolution or liquidation or similar law of any jurisdiction, now or hereafter in effect) or under the comparable laws of any jurisdiction (foreign or domestic), (iv) file a petition seeking to take advantage of any bankruptcy, insolvency, moratorium, reorganization or other similar law affecting the enforcement of creditors’ rights generally, (v) acquiesce in writing to any petition filed against it in an involuntary case under United States Bankruptcy Code (as now or hereafter in effect) or under the comparable laws of any jurisdiction (foreign or domestic), (vi) issue a notice of bankruptcy or winding down of its operations or issue a press release regarding same, or takes (vii) take any action under the laws of any jurisdiction (foreign or domestic) analogous to authorize or in furtherance of any of the foregoing; or
(e) a proceeding or case shall be commenced in respect of VRH, without its application or consent, in any court of competent jurisdiction, seeking (i) the liquidation, reorganization, moratorium, dissolution, winding up, or if any such petition composition or application is filed or any such case or other proceeding is commenced against readjustment of its debts, (ii) the Borrowerappointment of a trustee, the Guarantor or any Significant Subsidiary or the Borrower, the Guarantor or any Significant Subsidiary indicates its approval thereof, consent thereto or acquiescence therein;
(h) if a decree or order is entered appointing any such trusteereceiver, custodian, liquidator or receiver the like of it or adjudicating the Borrower or the Guarantor of all or any Significant Subsidiary bankrupt substantial part of its assets in connection with the liquidation or insolventdissolution of VRH or (iii) similar relief in respect of it under any law providing for the relief of debtors, and such proceeding or case described in clause (i), (ii) or (iii) shall continue undismissed, or approving unstayed and in effect, for a petition in period of sixty (60) days or any such case or other proceeding, or a decree or order for relief is shall be entered in respect of the Borrower or the Guarantor or any Significant Subsidiary in an involuntary case under federal bankruptcy United States Bankruptcy Code (as now or hereafter in effect) or under the comparable laws of any jurisdiction as now (foreign or hereafter constituted;
domestic) against VRH or action under the laws of any jurisdiction (iforeign or domestic) if there analogous to any of the foregoing shall remain in force, undischarged, unsatisfied and unstayed, for more than thirty days, whether or not consecutive, any final judgment against the Borrower or any Subsidiary which, with other outstanding final judgments against the Borrower and its Subsidiaries, exceeds in the aggregate $50,000,000 after taking into account any undisputed insurance coverage;
(j) if, be taken with respect to any Guaranteed Pension Plan, an ERISA Reportable Event VRH and shall have occurred and the Banks shall have determined in their reasonable discretion that such event reasonably could be expected to result in liability of the Borrower or any Subsidiary to the PBGC or such Plan in an aggregate amount exceeding $50,000,000 and such event in the circumstances occurring reasonably could constitute grounds for the partial or complete termination of such Plan by the PBGC or for the appointment by the appropriate United States District Court of a trustee to administer such Plan; or a trustee shall have been appointed by the appropriate United States District Court to administer such Plan; or the PBGC shall have instituted proceedings to terminate such Plan;
(k) if 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 Bankscontinue undismissed, or any action at law, suit or unstayed and 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 Borrower, the Guarantor, or any of their respective stockholders, or any court or any other governmental or regulatory authority or agency of competent jurisdiction shall make effect for a determination that, or issue a judgment, order, decree or ruling to the effect that, any one or more of the Loan Documents is illegal, invalid or unenforceable in accordance with the terms thereof; or
(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 25% or more of the outstanding shares of common voting stock of the Borrower; or during any period of twelve consecutive calendar months, individuals who were directors of the Borrower on the first day of such period sixty (together with any new directors whose election by such board or whose nomination for election by the shareholders of the Borrower was approved by a vote of a majority of the directors still in office who were either directors at the beginning of such period or whose election or nomination for election was previously so approved60) shall cease to constitute a majority of the board of directors of the Borrower;days.
Appears in 2 contracts
Sources: Separation Agreement (VR Holdings, Inc.), Assumption and Novation Agreement (VR Holdings, Inc.)
Events of Default and Acceleration. If any The following conditions or events shall constitute events of the following events default (“"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, “Defaults”) shall occur:"):
(a) if the Borrower Company shall fail to pay default in the payment of any principal of the Loans on any Note when the same shall become becomes due and payable, whether at the stated date of maturity or any accelerated date of maturity or at any other a date fixed for payment;prepayment or by declaration or otherwise; or
(b) if the Borrower Company shall fail to pay default in the payment of any interest or fees or other amounts owing hereunder (other on any Note for more than those specified in subsection (a) above) within five (5) Business Days days after the same shall become becomes due and payable whether at the Maturity Date or any accelerated date of maturity or at any other date fixed for payment;payable; or
(c) if the Borrower Company shall fail to comply default in the performance of or compliance with any of the covenants term contained in §§7.4, 7.5, 7.15, 7.16, 8 and 9 Article 5 hereof;; or
(d) if the Borrower Company shall fail to perform default in the performance of or compliance with any term, covenant or agreement other term contained herein or in any of the other Loan Documents (other than those specified in subsections (a), (b), and (c) above) Related Agreements and such failure default shall not be have been remedied within 30 days after the earlier of (x) an officer of the Company obtaining knowledge of such default and (y) receipt by the Company of written notice of such failure shall have been given to the Borrower by the Administrative Agent or default from any holder of the Banks;any Note; or
(e) if any representation or warranty contained made in this Agreement writing by or on behalf of the Company herein or in any document instrument furnished in compliance with or instrument delivered pursuant to in reference hereto or otherwise in connection with this Agreement the transactions contemplated hereby shall prove to have been false or incorrect in any material respect upon on the date when made or repeated;as of which made; or
(f) if the Borrower Company or any Subsidiary shall be in default (as principal or as guarantor or other surety) in the payment of any principal of or premium or interest on any Indebtedness with a principal amount in excess of $50,000 (other than the Notes) or in the performance of or compliance with any term of any evidence of any such Indebtedness or of any mortgage, indenture or other agreement relating thereto the effect of which is to cause such Indebtedness to become due and payable before its Subsidiaries stated maturity or before its regularly scheduled dates of payment, and such default, event or condition shall fail to pay when due, or within any applicable continue for more than the period of grace, any Indebtedness or obligations under Swap Contracts in an aggregate amount greater than $75,000,000if any, or fail to observe or perform any material term, covenant or agreement contained in any one or more agreements by which it is bound, evidencing or securing any Indebtedness or obligations under Swap Contracts in an aggregate amount greater than $75,000,000 for such period of time as would permit, or would specified therein and shall not have permitted (assuming the giving of appropriate notice if required) the holder or holders thereof or of any obligations issued thereunder to accelerate the maturity thereof or terminate its commitment with respect been waived pursuant thereto;; or
(g) if the Borrower, the Guarantor Company or any Significant Subsidiary makes shall (i) be generally not paying 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 admits in writing its inability (iv) consent to pay or generally fails to pay its debts as they mature or become due, or petitions or applies for the appointment of a custodian, receiver, trustee or other custodian, liquidator officer with similar powers with respect to it or receiver of the Borrower, the Guarantor or any Significant Subsidiary, or of with respect to any substantial part of its property, (v) be adjudicated an insolvent or be liquidated, or (vi) take corporate action for the assets purpose of any of the Borrowerforegoing; or
(h) if a court or governmental authority of competent jurisdiction shall enter an order appointing, without consent by the Guarantor Company or any Significant Subsidiary or commences any case Subsidiary, a custodian, receiver, trustee or other proceeding relating officer with similar powers with respect to the Borrowerit or with respect to any substantial part of its property, the Guarantor or constituting an order for relief or approving a petition for relief or reorganization or any Significant Subsidiary under any bankruptcy, reorganization, arrangement, insolvency, readjustment of debt, dissolution other petition in bankruptcy or for liquidation or similar to take advantage of any bankruptcy or insolvency law of any jurisdiction, now or hereafter in effectordering the dissolution, winding-up or takes any action to authorize or in furtherance of any liquidation of the foregoingCompany or any Subsidiary, or if any such petition or application is shall be filed against the Company or any Subsidiary and such case or other proceeding is commenced against the Borrower, the Guarantor or any Significant Subsidiary or the Borrower, the Guarantor or any Significant Subsidiary 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 Borrower or the Guarantor or any Significant Subsidiary 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 or the Guarantor or any Significant Subsidiary in an involuntary case under federal bankruptcy laws of any jurisdiction as now or hereafter constituted;shall not be dismissed within 30 days; or
(i) if there shall remain in force, undischarged, unsatisfied and unstayed, for more than thirty days, whether or not consecutive, any a final judgment against the Borrower or any Subsidiary which, with other outstanding final judgments against the Borrower Company and its the Subsidiaries, exceeds in $100,000 shall be entered against the aggregate $50,000,000 after taking into account any undisputed insurance coverage;
(j) if, with respect to any Guaranteed Pension Plan, an ERISA Reportable Event shall have occurred and the Banks shall have determined in their reasonable discretion that such event reasonably could be expected to result in liability of the Borrower Company or any Subsidiary to the PBGC or and if, within 60 days after entry thereof, such Plan in an aggregate amount exceeding $50,000,000 and such event in the circumstances occurring reasonably could constitute grounds for the partial or complete termination of such Plan by the PBGC or for the appointment by the appropriate United States District Court of a trustee to administer such Plan; or a trustee judgment shall not have been appointed by the appropriate United States District Court to administer such Plan; discharged or the PBGC shall have instituted proceedings to terminate such Plan;
(k) if any of the Loan Documents shall be cancelled, terminated, revoked or rescinded otherwise than in accordance with the terms execution thereof or with the express prior written agreement, consent or approval of the Banksstayed pending appeal, or if, within 60 days after the expiration of any action at lawsuch stay, suit or in equity or other legal proceeding to cancel, revoke or rescind any of the Loan Documents such judgment shall be commenced by or on behalf of the Borrower, the Guarantor, or any of their respective stockholders, 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 effect that, any one or more of the Loan Documents is illegal, invalid or unenforceable in accordance with the terms thereof; or
(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 not have acquired beneficial ownership (within the meaning of Rule 13d-3 promulgated by the Securities and Exchange Commission under said Act) of 25% or more of the outstanding shares of common voting stock of the Borrower; or during any period of twelve consecutive calendar months, individuals who were directors of the Borrower on the first day of such period (together with any new directors whose election by such board or whose nomination for election by the shareholders of the Borrower was approved by a vote of a majority of the directors still in office who were either directors at the beginning of such period or whose election or nomination for election was previously so approved) shall cease to constitute a majority of the board of directors of the Borrower;been discharged.
Appears in 2 contracts
Sources: Note Purchase Agreement (Mortgage Com Inc), Note Purchase Agreement (Mortgage Com Inc)
Events of Default and Acceleration. If any of the following events (“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, “Defaults”) shall occur:
(a) if the Borrower shall fail to pay any principal of the any Loans when 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;
(b) if the Borrower shall fail to pay any interest on the Loans or fees any other sums due hereunder or under any of the other Loan Documents or any fee letter (including, without limitation, amounts owing hereunder (other than those specified in subsection (adue under §8.16) above) within five (5) Business Days after when the same shall become due and payable whether at the Maturity Date or any accelerated date of maturity or at any other date fixed payable, and such failure continues for paymentthree (3) days;
(c) if the Borrower Borrower, any Subsidiary Guarantor, the Trust or any of their respective Subsidiaries shall fail to comply comply, or to cause the Trust to comply, as the case may be, with any of the respective covenants contained in the following: §8.1 (except with respect to principal, interest and other sums covered by clauses (a) or (b) above); §8.2; §§7.48.4 through §8.10, 7.5, 7.15, 7.16, 8 inclusive; §8.12; §8.13; §8.14(b); §8.15; §8.19; §8.20; §9; §10 and 9 hereof§11;
(d) if the Borrower Borrower, any Subsidiary Guarantor, the Trust or any of their respective Subsidiaries shall fail to perform any other term, covenant or agreement contained herein or in any of the other Loan Documents (other than those specified elsewhere in subsections (a), (b), and (c) abovethis §14) and such failure shall not be remedied within 30 days after written notice of such failure shall have been given to the Borrower by the Administrative Agent or any of the Bankscontinues for thirty (30) days;
(e) if any representation or warranty contained made by or on behalf of the Borrower, any Subsidiary Guarantor, the Trust or any of their respective Subsidiaries in this Agreement or in any document or instrument delivered pursuant to or in connection with this Agreement of the other Loan Documents shall prove to have been false in any material respect upon the date when made or deemed to have been made or repeated;
(fi) if the Borrower Borrower, any Subsidiary Guarantor, the Trust or any of its Subsidiaries or, to the extent of Recourse to the Borrower, the Subsidiary Guarantor, the Trust or such Subsidiaries thereunder, any Partially-Owned Entity or other of their respective Affiliates, shall fail to pay when dueat maturity, or within any applicable period of grace, any Indebtedness for borrowed money or obligations under Swap Contracts credit received or in an aggregate amount greater than respect of any Capitalized Leases, which is in excess of (A) $75,000,00025,000,000, either individually or in the aggregate, if such Indebtedness is Without Recourse and (B) $5,000,000, either individually or in the aggregate, if such Indebtedness is Recourse, or fail to observe or perform any material term, covenant covenant, condition or agreement contained in any one agreement, document or more agreements instrument by which it is boundbound evidencing, securing or otherwise relating to such Indebtedness or Recourse obligations, evidencing or securing borrowed money or credit received or in respect of any Indebtedness or obligations under Swap Contracts in an aggregate amount greater than $75,000,000 Capitalized Leases for such period of time as would permit, or would have permitted (assuming after the giving of appropriate notice if required) as would permit the holder or holders thereof or of any obligations issued thereunder in excess of (A) $25,000,000, either individually or in the aggregate, if such Indebtedness is without Recourse and (B) $5,000,000, either individually or in the aggregate, if such Indebtedness is Recourse, to accelerate the maturity thereof thereof; or terminate its commitment with respect thereto(ii) any Event of Default shall occur under (and as defined in, respectively) the Unsecured Revolver Agreement, the Existing Term Loan Agreement or the 2008 Term Loan Agreement;
(g) if the Borrowerany of FPLP, any Subsidiary Guarantor, the Guarantor Trust or any Significant Subsidiary makes of their respective Subsidiaries shall make an assignment for the benefit of creditors, or admits admit in writing its inability to pay or generally fails fail to pay its debts as they mature or become due, or petitions shall petition or applies apply for the appointment of a trustee or other custodian, liquidator or receiver of the Borrowerany of FPLP, a Subsidiary Guarantor, the Guarantor Trust or any Significant Subsidiary, of their respective Subsidiaries or of any substantial part of the properties or assets of the Borrower, the Guarantor any of such parties or any Significant Subsidiary or commences shall commence any case or other proceeding relating to the Borrowerany of FPLP, a Subsidiary Guarantor, the Guarantor Trust or any Significant Subsidiary of their respective 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 shall take any action to authorize or in furtherance of any of the foregoing, or if any such petition or application is shall be filed or any such case or other proceeding is shall be commenced against the Borrowerany of FPLP, a Subsidiary Guarantor, the Guarantor Trust or any Significant of their respective Subsidiaries and (i) any of FPLP, a Subsidiary or the BorrowerGuarantor, the Guarantor Trust or any Significant Subsidiary indicates of their respective Subsidiaries shall indicate its approval thereof, consent thereto or acquiescence thereintherein or (ii) any such petition, application, case or other proceeding shall continue undismissed, or unstayed and in effect, for a period of forty-five (45) days;
(h) if a decree or order is entered appointing any such trustee, custodian, liquidator or receiver or adjudicating any of FPLP, a Subsidiary Guarantor, the Borrower or the Guarantor Trust or any Significant Subsidiary of their respective Subsidiaries 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 any of FPLP, a Subsidiary Guarantor, the Borrower or the Guarantor Trust or any Significant Subsidiary of their respective Subsidiaries in an involuntary case under federal bankruptcy laws of any jurisdiction as now or hereafter constituted;
(i) if there shall remain in force, undischarged, unsatisfied and unstayed, for more than thirty (30) days, whether or not consecutive, any uninsured final judgment against any of FPLP, a Subsidiary Guarantor, the Borrower Trust or any Subsidiary whichof their respective Subsidiaries that, with other outstanding uninsured final judgments judgments, undischarged, unsatisfied and unstayed, against the Borrower and its Subsidiaries, any of such parties exceeds in the aggregate $50,000,000 after taking into account any undisputed insurance coverage2,000,000;
(j) if, with respect to any Guaranteed Pension Plan, an ERISA Reportable Event shall have occurred and the Banks shall have determined in their reasonable discretion that such event reasonably could be expected to result in liability of the Borrower or any Subsidiary to the PBGC or such Plan in an aggregate amount exceeding $50,000,000 and such event in the circumstances occurring reasonably could constitute grounds for the partial or complete termination of such Plan by the PBGC or for the appointment by the appropriate United States District Court of a trustee to administer such Plan; or a trustee shall have been appointed by the appropriate United States District Court to administer such Plan; or the PBGC shall have instituted proceedings to terminate such Plan;
(k) if any of the Loan Documents or any material provision of any Loan Document shall be cancelledcanceled, terminated, revoked or rescinded otherwise than in accordance with the terms thereof or with the express prior written agreement, consent or approval of the BanksAgent, or any action at law, suit or in equity or other legal proceeding to make unenforceable, cancel, revoke or rescind any of the Loan Documents shall be commenced by or on behalf of the Borrower, the Guarantor, Borrower or a Subsidiary Guarantor or any of their respective stockholdersSubsidiaries or the Trust or any of its Subsidiaries, 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 effect that, any one or more of the Loan Documents is illegal, invalid or unenforceable as to any material terms thereof; or the Agent shall fail to have a perfected first-priority security interest in any of the Collateral;
(k) any “Event of Default” or default (after notice and expiration of any period of grace, to the extent provided, as defined or provided in any of the other Loan Documents, shall occur and be continuing;
(l) with respect to any Guaranteed Pension Plan, an ERISA Reportable Event shall have occurred and the Majority Lenders shall have determined in their reasonable discretion that such event reasonably could be expected to result in liability of the Borrower or any of its Subsidiaries or the Trust or any of its Subsidiaries to the PBGC or such Guaranteed Pension Plan in an aggregate amount exceeding $2,000,000 and such event in the circumstances occurring reasonably could constitute grounds for the termination of such Guaranteed Pension Plan by the PBGC or for the appointment by the appropriate United States District Court of a trustee to administer such Guaranteed Pension Plan; or a trustee shall have been appointed by the United States District Court to administer such Plan; or the PBGC shall have instituted proceedings to terminate such Guaranteed Pension Plan;
(m) subject to the Borrower’s ability to remove Real Estate Assets from the Borrowing Base Pool in accordance with the terms thereof; orprovisions set forth below in this §14, the failure of any of the Real Estate Assets being included from time to time as part of the Borrowing Base Pool to comply with any of the conditions set forth in the definition of Eligible Borrowing Base Properties;
(ln) if the occurrence of any person transaction in which any “person” or group of persons “group” (within the meaning of Section 13 or 14 13(d) and 14(d)(2) of the Securities Exchange Act of 1934, ) becomes the “beneficial owner” (as amended) shall have acquired beneficial ownership (within the meaning of defined in Rule 13d-3 promulgated by under the Securities and Exchange Commission under said Act) Act of 25% 1934), directly or more indirectly, of a sufficient number of shares of all classes of stock then outstanding of the outstanding shares Trust ordinarily entitled to vote in the election of common voting stock directors, empowering such “person” or “group” to elect a majority of the BorrowerBoard of Directors or Board of Trustees of the Trust, who did not have such power before such transaction; or during any twelve-month period of twelve consecutive calendar monthson or after the Closing Date, individuals who were directors of at the Borrower on the first day beginning of such period constituted the Board of Trustees of the Trust (together with any new directors whose election by such board the Board of Trustees or whose nomination for election by the shareholders of the Borrower Trust was approved by a vote of at least a majority of the directors still members of the Board of Trustees then in office who either were either directors members of the Board of Trustees at the beginning of such period or whose election or nomination for election was previously so approved) shall cease ceased for any reason to constitute a majority of the board of directors members of the Board of Trustees of the Trust then in office; or the occurrence of any “Capital Transaction” or “Dissolution Event” (each as defined in the Tech LP Agreement); or the Borrower or any Subsidiary Guarantor fails to make a capital contribution required pursuant to Article III of the Tech LP Agreement and/or becomes a Defaulting Partner (as defined in Section 3.8 of the Tech LP Agreement); or any Default Loan (as defined in Section 3.8 of the Tech LP Agreement) is made by Perseus pursuant to Section 3.8 of the Tech LP Agreement;
(o) without limitation of the other provisions of this §14.1, the Trust shall at any time fail to be the sole general partner of FPLP (or shall enter into any agreement to permit any other Person to acquire a general partner interest in FPLP) or shall at any time be in contravention of any of the requirements contained in the last paragraph of §9.2 hereof, or §9.3 (including, without limitation, the last paragraph of §9.3); or
(i) the Borrower shall fail to own, directly or indirectly, 100% of the Equity Interests of each Subsidiary Guarantor, (ii) the Borrower shall fail to own, directly or indirectly, 100% of the Equity Interests of the general partner of FP Redland Tech or (iii) the Borrower shall fail to own, directly or indirectly, the FP Redland Tech Equity Interests; or the Agent shall fail to have, for any reason, a first-priority, perfected security interest in the Pledged Equity Interests; then, and in any such event, so long as the same may be continuing, the Agent may, and upon the request of the Majority Lenders shall, declare all amounts owing with respect to this Agreement, the Notes and the other Loan Documents to be, and they shall thereupon forthwith become, immediately due and payable without presentment, demand, protest or other notice of any kind, all of which are hereby expressly waived by the Borrower;, each Subsidiary Guarantor, the Trust and each of their respective Subsidiaries; provided that in the event of any Event of Default specified in §14.1(g) or 14.1(h), all such amounts shall become immediately due and payable automatically and without any requirement of notice from any of the Lenders or the Agent or action by the Lenders or the Agent. Notwithstanding the foregoing provisions of this §14.1, in the event of a Default or Event of Default arising as a result of the inclusion of any Real Estate Asset in the Borrowing Base Pool at any particular time of reference, if such Default or Event of Default is capable of being cured by the exclusion of such Real Estate Asset from the Borrowing Base Pool in accordance with, and subject to, §8.13 and from all other covenant calculations under §10 or otherwise, the Borrower shall be permitted a period not to exceed five (5) days to submit to the Agent (with copies to the Agent for each Lender) a compliance certificate in the form of Exhibit C hereto evidencing compliance with the covenants set forth in §10 (with calculations evidencing such compliance after excluding from Adjusted Net Operating Income all of the Adjusted Net Operating Income generated by the Real Estate Asset to be excluded from the Borrowing Base Pool) and with the Borrowing Base Property Conditions, and otherwise certifying that, after giving effect to the exclusion of such Real Estate Asset from the Borrowing Base Pool, no Default or Event of Default will be continuing.
Appears in 2 contracts
Sources: Senior Secured Term Loan Agreement (First Potomac Realty Trust), Senior Secured Term Loan Agreement (First Potomac Realty Trust)
Events of Default and Acceleration. If any of 8.1 In the following events (“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, “Defaults”) shall occurevent that:
(a) if Fang or CIH does not pay on the Borrower shall fail due date any amount payable pursuant to pay any principal of this Deed (including but not limited to the Loans when the same shall become due and payablepayments in, whether at the stated date of maturity or any accelerated date of maturity or at any other date fixed for paymentClauses 5.1, 5.2 and/or 6.1);
(b) if the Borrower shall fail to pay any interest Fang or fees or other amounts owing hereunder CIH fails (other than those specified in subsection (aby failing to pay) above) within five (5) Business Days after the same shall become due and payable whether at the Maturity Date or to comply with any accelerated date provision of maturity or at any other date fixed for paymentthis Deed;
(c) if the Borrower shall fail if:
(i) any Indebtedness is not paid when due or within any originally applicable grace period; or
(ii) any Indebtedness becomes due, or capable or being declared due and payable prior to comply with its stated maturity by reason of an event of default (howsoever described);
(iii) any commitment for Indebtedness is cancelled or suspended by a creditor of the covenants contained in §§7.4, 7.5, 7.15, 7.16, 8 Fang or CIH by reason of an event of default (howsoever described); or
(iv) any creditor of Fang or CIH becomes entitled to declare any Indebtedness due and 9 hereof;payable prior to its stated maturity by reason of an event of default (howsoever described).
(d) if the Borrower shall fail to perform any term, covenant Fang or agreement contained herein CIH stops or in suspends payment of any of the other Loan Documents (other than those specified in subsections (a)its debts, (b)or is unable to, and (c) above) and such failure shall not be remedied within 30 days after written notice of such failure shall have been given to the Borrower by the Administrative Agent or any of the Banksadmits its inability to, pay its debts as they fall due;
(e) if any representation the value of Fang or warranty contained in this Agreement or in any document or instrument delivered pursuant to or in connection with this Agreement shall prove to have been false in any material respect upon the date when made or repeatedCIH’s assets is less than its liabilities (taking into account contingent and prospective liabilities);
(f) if the Borrower or any a moratorium is declared in respect of its Subsidiaries shall fail to pay when due, or within any applicable period of grace, any Indebtedness of Fang or obligations under Swap Contracts in an aggregate amount greater than $75,000,000, or fail to observe or perform any material term, covenant or agreement contained in any one or more agreements by which it is bound, evidencing or securing any Indebtedness or obligations under Swap Contracts in an aggregate amount greater than $75,000,000 for such period of time as would permit, or would have permitted (assuming the giving of appropriate notice if required) the holder or holders thereof or of any obligations issued thereunder to accelerate the maturity thereof or terminate its commitment with respect theretoCIH;
(g) if the Borrower, the Guarantor or any Significant Subsidiary makes an assignment for the benefit of creditors, or admits in writing its inability to pay or generally Fang fails to pay its debts apply for a Validation Order within the timeline as they mature stipulated in Clause 7.1 or become dueobtain a Validation Order on or prior to 30 September 2021 or
(h) any action, proceedings, procedure or petitions step is taken for:
(i) the suspension of payments, a moratorium of any Indebtedness, winding-up (whether voluntary or applies for by the courts of the Cayman Islands or the British Virgin Islands or in any other courts), liquidation, dissolution, strike off, administration, reorganisation (by way of voluntary arrangement, creditors' arrangement, scheme of arrangement or otherwise), of Fang or CIH; or
(ii) the composition, compromise, assignment or arrangement with any creditor; or
(iii) the appointment of a trustee provisional liquidator, liquidator, receiver, administrative receiver, administrator, compulsory manager or other custodian, liquidator or receiver of the Borrower, the Guarantor or any Significant Subsidiary, or of any substantial part of the assets of the Borrower, the Guarantor or any Significant Subsidiary or commences any case or other proceeding relating to the Borrower, the Guarantor or any Significant Subsidiary 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, the Guarantor or any Significant Subsidiary or the Borrower, the Guarantor or any Significant Subsidiary 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 Borrower or the Guarantor or any Significant Subsidiary bankrupt or insolvent, or approving a petition in any such case or other proceeding, or a decree or order for relief is entered officer in respect of the Borrower Fang or the Guarantor CIH or any Significant Subsidiary in an involuntary case under federal bankruptcy laws of its assets; or
(iv) the enforcement of any jurisdiction as now security over any assets of Fang or hereafter constitutedCIH;
(i) if there shall remain in forceFang or CIH commences negotiations, undischargedor enters into any composition, unsatisfied and unstayedcompromise, for more than thirty days, whether assignment or not consecutive, any final judgment against the Borrower or any Subsidiary whicharrangement, with other outstanding final judgments against the Borrower and one or more of its Subsidiaries, exceeds in the aggregate $50,000,000 after taking into account creditors with a view to rescheduling any undisputed insurance coverageof its Indebtedness (because of actual or anticipated financial difficulties);
(j) if, with respect any event occurs in relation to Fang or CIH similar to those in paragraph (i) above under the laws of any Guaranteed Pension Plan, an ERISA Reportable Event shall have occurred and the Banks shall have determined in their reasonable discretion that such event reasonably could be expected to result in liability of the Borrower or any Subsidiary to the PBGC or such Plan in an aggregate amount exceeding $50,000,000 and such event in the circumstances occurring reasonably could constitute grounds for the partial or complete termination of such Plan by the PBGC or for the appointment by the appropriate United States District Court of a trustee to administer such Plan; or a trustee shall have been appointed by the appropriate United States District Court to administer such Plan; or the PBGC shall have instituted proceedings to terminate such Planapplicable jurisdiction;
(k) if any of the Loan Documents shall be cancelleda distress, terminatedattachment, revoked execution, expropriation, sequestration or rescinded otherwise than in accordance with the terms thereof another analogous legal process is levied, enforced or with the express prior written agreement, consent or approval of the Bankssued out on, or any action at lawagainst, suit Fang or 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 Borrower, the Guarantor, or any of their respective stockholders, 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 effect that, any one or more of the Loan Documents is illegal, invalid or unenforceable in accordance with the terms thereof; orCIH's assets;
(l) if any person provision of this Deed is or group becomes, for any reason, invalid, unlawful, unenforceable, terminated, disputed or ceases to be effective or to have full force and effect;
(m) any event occurs (or circumstances exist) which, in the opinion of persons Fountain II. has or is likely to materially and adversely affect the Fang or CIH's ability to perform all or any of its obligations under, or otherwise comply with the terms of, this Deed, unless otherwise agreed in writing by the Parties, the all outstanding Indebtedness shall automatically be immediately due and payable by Fang to Fountain II in full without any action on the part of Fountain II.
8.2 If Fang and/or CIH fails to pay any amount payable by it under this Deed on its due date, interest shall accrue on the unpaid sum (within the meaning of Section 13 or 14 of the Securities Exchange Act of 1934or, as amendedthe case may be the balance thereof outstanding) shall have acquired beneficial ownership from its due date up to the date of actual payment (within the meaning of Rule 13d-3 promulgated by the Securities both before and Exchange Commission under said Actafter judgment) of 25% or more of the outstanding shares of common voting stock of the Borrower; or during any period of twelve consecutive calendar months, individuals who were directors of the Borrower on the first day of such period (together with any new directors whose election by such board or whose nomination for election by the shareholders of the Borrower was approved by a vote of a majority of the directors still in office who were either directors at the beginning of such period or whose election or nomination for election was previously so approved) shall cease to constitute a majority of the board of directors of the Borrower;Default Rate.
Appears in 2 contracts
Sources: Settlement Deed (China Index Holdings LTD), Settlement Deed (Fang Holdings LTD)
Events of Default and Acceleration. If any of the following events (“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 or lapse of time, “Defaults”) shall occur:
(a) if the Borrower shall fail failure to pay any principal of the Loans when 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;
(b) if the Borrower shall fail failure to pay any interest or fees or other amounts owing hereunder (other than those specified in subsection (a) above) within five (5) Business Days after on the Loans when the same shall become due and payable payable, whether at the Maturity Date stated date of maturity or any accelerated date of maturity or at any other date fixed for payment, and such failure shall continue for five (5) days after written notice of such failure has been given to the Borrower by the Administrative Agent;
(c) if the Borrower any US Loan Party shall fail to comply with perform or observe any of the its covenants contained in §§7.4Sections 6.5.1, 7.56.6.1, 7.157.1, 7.167.2, 8 and 9 hereof7.3(xiv), 7.11, 8, or, if such failure relates to a Lien securing Funded Debt, 7.3;
(d) if the Borrower any US Loan Party or any of its Subsidiaries shall fail to perform or observe any term, covenant covenant, or agreement contained herein or in any of the other Loan Documents (other than those specified elsewhere in subsections this Section 11) for thirty (a), (b), and (c30) above) and such failure shall not be remedied within 30 days after written notice of such failure shall have has been given to the Borrower such US Loan Party by the Administrative Agent Agent, provided, that a failure to perform or any observe the terms, covenants and agreements set forth in Section 6.4, Section 6.5.3, Section 6.9 or Section 6.13.1 that continues for more than ten (10) days (regardless of the Bankswhether notice of such failure is given to such US Loan Party) shall constitute an Event of Default hereunder;
(e) if any representation or warranty contained of any US Loan Party or any of its Subsidiaries in this Agreement Credit Agreement, any of the other Loan Documents, or in any other document or instrument delivered pursuant to or in connection with this Credit Agreement shall prove to have been false incorrect in any material respect upon the date when made or deemed to have been made or repeated;
(f) if failure to make a payment of principal or interest, or the Borrower occurrence of a default, event of default, or other event permitting (with or without the passage of time or the giving of notice) acceleration or exercise of remedies or, with respect to any Swap Contract, as to which the US Guarantor or any Subsidiary is the defaulting party, permitting early termination thereof shall occur with respect to (i) any Indebtedness for money borrowed, (ii) any Indebtedness in respect of the deferred purchase price of goods or services, (iii) any Capitalized Lease, (iv) any Broker-Dealer Debt, (v) any Swap Contract or (vi) any Synthetic Lease Obligation, of the US Guarantor or any of its Subsidiaries shall fail Subsidiaries, having a principal amount (or (x) in the case of a Capitalized Lease, scheduled rental payments with a discounted present value from the last day of the initial term to pay when duethe date of determination as determined in accordance with generally accepted accounting principles or (y) in the case of a Swap Contract, the Swap Termination Value or within any applicable period (z) in the case of gracea Synthetic Lease Obligation, any the amount of Attributable Indebtedness or obligations under Swap Contracts in an aggregate amount greater than $75,000,000with respect thereto), or fail to observe or perform any material term, covenant or agreement contained (A) in any one case, of $100,000,000 or more agreements by which it is boundmore, evidencing or securing any Indebtedness (B) in the aggregate, of $250,000,000 or obligations under Swap Contracts in an aggregate amount greater than $75,000,000 more, and such failure to make a payment of principal or interest, or a default, event of default, or other event shall continue for such period of time as would permit, or would have permitted (assuming the giving of appropriate notice if required) entitle the holder of such Indebtedness, Capitalized Lease, Swap Contract or holders thereof Synthetic Lease Obligation (with or of any obligations issued thereunder without notice) to accelerate the maturity thereof such Indebtedness or terminate its commitment with respect theretosuch Capitalized Lease, Swap Contract or Synthetic Lease Obligation;
(g) if any of the BorrowerLoan 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 Banks, or any Proceeding to cancel, revoke, or rescind any of the Loan Documents shall be commenced by or on behalf of any Loan Party or any of its Subsidiaries party thereto, or any Government Authority of competent jurisdiction shall make a determination that, or issue a Government Mandate to the effect that, any material provision of one or more of the Loan Documents is illegal, invalid, or unenforceable in accordance with the terms thereof;
(h) the US Guarantor, Alliance Distributors, the Guarantor General Partner, the Borrower or any Significant Material Subsidiary makes shall make an assignment for the benefit of creditors, or admits admit in writing its inability to pay or generally fails fail to pay its debts as they mature or become due, or petitions shall petition or applies apply for the appointment of a trustee or other custodian, liquidator liquidator, or receiver of the BorrowerUS Guarantor, Alliance Distributors, the Guarantor General Partner, the Borrower or any Significant Subsidiary, Material Subsidiary or of any substantial part of the assets of the BorrowerUS Guarantor, Alliance Distributors, the Guarantor General Partner, the Borrower or any Significant Subsidiary Material Subsidiary, or commences shall commence any case or other proceeding Proceeding relating to the BorrowerUS Guarantor, Alliance Distributors, the Guarantor General Partner, the Borrower or any Significant Material Subsidiary under any bankruptcy, reorganization, arrangement, insolvency, readjustment of debt, dissolution or liquidation dissolution, liquidation, or similar law of any jurisdiction, now or hereafter in effect, or takes shall take any action to authorize or in furtherance of any of the foregoing, or if any such petition or application is shall be filed or any such case or other proceeding is Proceeding shall be commenced against the BorrowerUS Guarantor, Alliance Distributors, the Guarantor General Partner, the Borrower or any Significant Material Subsidiary or the Borrower, the Guarantor or and any Significant Subsidiary indicates of such parties shall indicate its approval thereof, consent thereto thereto, or acquiescence therein;
(hi) if either (i) an involuntary Proceeding relating to the US Guarantor, Alliance Distributors, the General Partner, the Borrower or any Material Subsidiary under any bankruptcy, reorganization, arrangement, insolvency, readjustment of debt, dissolution, liquidation, or similar law of any jurisdiction, now or hereafter in effect is commenced and not dismissed or vacated within sixty (60) days following entry thereof, or (ii) a decree or order is entered appointing any such trustee, custodian, liquidator liquidator, or receiver described in (h) or adjudicating the US Guarantor, Alliance Distributors, the General Partner, the Borrower or the Guarantor or any Significant Material Subsidiary bankrupt or insolvent, or approving a petition in any such case or other proceedingProceeding, or a decree or order for relief is entered in respect of the US Guarantor, Alliance Distributors, the General Partner, the Borrower or the Guarantor or any Significant Material Subsidiary in an involuntary case Proceeding under federal bankruptcy laws of any jurisdiction as now or hereafter constituted;
(ij) if there shall remain in force, undischarged, unsatisfied unsatisfied, and unstayed, for more than thirty forty-five (45) days, whether or not consecutive, any final judgment or order against the Borrower US Guarantor or any Subsidiary whichof its Subsidiaries, that, with any other such outstanding final judgments or orders, undischarged, against the Borrower US Guarantor and its Subsidiaries, Subsidiaries taken together exceeds in the aggregate $50,000,000 after taking into account any undisputed insurance coverage50,000,000;
(jk) if, with respect to any Guaranteed Pension Plan, an ERISA Reportable Event shall have occurred and the Majority Banks shall have determined in their reasonable discretion that such event reasonably could be expected to result in liability of the Borrower US Guarantor or any Subsidiary of its Subsidiaries to the PBGC or such Guaranteed Pension Plan in an aggregate amount exceeding $50,000,000 and such event in the circumstances occurring reasonably could constitute grounds for the partial or complete termination of such Guaranteed Pension Plan by the PBGC or for the appointment by the appropriate United States District Court of a trustee to administer such Guaranteed Pension Plan; or a trustee shall have been appointed by the appropriate United States District Court to administer such Guaranteed Pension Plan; or the PBGC shall have instituted proceedings to terminate such Guaranteed Pension Plan;
(kl) if any of the Loan Documents following: (i) the US Guarantor shall fail to be cancelled, terminated, revoked duly registered as an “investment adviser” under the Investment Advisers Act of 1940; or rescinded otherwise than in accordance with the terms thereof or with the express prior written agreement, consent or approval of the Banks, or any action at law, suit or in equity or other legal proceeding (ii) Alliance Distributors shall cease to cancel, revoke or rescind any of the Loan Documents shall be commenced by or on behalf of the Borrower, the Guarantor, or any of their respective stockholders, or any court or any other governmental or regulatory authority or agency of competent jurisdiction shall make duly registered as a determination that, or issue a judgment, order, decree or ruling to the effect that, any one or more of the Loan Documents is illegal, invalid or unenforceable in accordance with the terms thereof; or
(l) if any person or group of persons (within the meaning of Section 13 or 14 of “broker/dealer” under the Securities Exchange Act of 19341934 or shall cease to be a member in good standing of the National Association of Securities Dealers, as amendedInc., in each case, to the extent required;
(m) the US Guarantor, Alliance Distributors, the General Partner, the Borrower or any Material Subsidiary shall have acquired beneficial ownership either (within i) be indicted for a federal or state crime and, in connection with such indictment, Government Authorities shall seek to seize or attach, or seek a civil forfeiture of, property of the meaning of Rule 13d-3 promulgated by US Guarantor, Alliance Distributors, the Securities and Exchange Commission under said Act) of 25% General Partner, the Borrower or one or more of the outstanding shares such Material Subsidiaries having a fair market value in excess of common voting stock $50,000,000, or (ii) be found guilty of, or shall plead guilty, no contest, or nolo contendere to, any federal or state crime, a punishment for which could include a fine, penalty, or forfeiture of any assets of the Borrower; or during any period of twelve consecutive calendar monthsUS Guarantor, individuals who were directors of Alliance Distributors, the General Partner, the Borrower on the first day or such Material Subsidiary having in any such case a fair market value in excess of such period $50,000,000; or
(together with any new directors whose election by such board or whose nomination for election by the shareholders of the Borrower was approved by a vote of a majority of the directors still in office who were either directors at the beginning of such period or whose election or nomination for election was previously so approvedn) AllianceBernstein Corporation shall cease to constitute a majority be the sole general partner of the board US Guarantor, and such circumstance shall continue for thirty (30) days after written notice of directors such circumstance has been given to the US Guarantor, provided, that the admission of additional Persons as general partner of the Borrower;US Guarantor shall not constitute an Event of Default if, prior to the admission of any such general partner, the US Guarantor delivers to the Banks (i) the documentation with respect to such general partner that would be required under Section 9.3 if such Person were a General Partner on the Closing Date, (ii) an incumbency certificate for such general partner as required for the US Guarantor pursuant to Section 9.8, and (iii) an opinion from counsel reasonably acceptable to the Banks, in form and substance reasonably satisfactory to the Banks, as to such general partner’s power and authority to act on behalf of the US Guarantor as a general partner of the US Guarantor; or
Appears in 2 contracts
Sources: Revolving Credit Agreement (Alliancebernstein L.P.), Revolving Credit Agreement (Alliancebernstein Holding L.P.)
Events of Default and Acceleration. If any of the following events (“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 or lapse of time, “Defaults”) shall occur:
(a) if the Borrower shall fail to pay any principal of the Loans when 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, and the Administrative Agent shall have delivered to the Borrower written notice of such Default;
(b) if the Borrower or any of its Subsidiaries shall fail to pay any interest or fees on the Loans, any fees, or other amounts owing sums due hereunder or under any of the other Loan Documents, within three (other than those specified in subsection (a3) above) within five (5) Business Days after days following the date upon which the same shall become due and payable payable, whether at the Maturity Date stated date of maturity or any accelerated date of maturity or at any other date fixed for payment, and the Administrative Agent shall have delivered to the Borrower written notice of such Default;
(c) if the Borrower shall fail to comply with any of the its covenants contained in §§Sections 7.1, 7.4, 7.57.5.1, 7.15the first sentence of 7.6, 7.167.11 or 8 (other than 8.7 and 8.8), 8 and 9 hereofthe Administrative Agent shall have delivered to the Borrower written notice of such Default;
(d) if the Borrower or any of its Subsidiaries shall fail to perform any term, covenant or agreement contained herein or in any of the other Loan Documents (other than those specified elsewhere in subsections this Section 11.1) for thirty (a), (b), and (c30) above) and such failure shall not be remedied within 30 days after written notice of such failure shall have has been given to the Borrower by the Administrative Agent or any (such grace period to be applicable only in the event such Default can be remedied by corrective action of the BanksBorrower as determined by the Administrative Agent in its sole discretion);
(e) if any representation or warranty contained of the Borrower or any of its Subsidiaries in this Credit Agreement or any of the other Loan Documents or in any other document or instrument delivered pursuant to or in connection with this Credit Agreement shall prove to have been false in any material respect upon the date when made or deemed to have been made or repeated, and the underlying events or circumstances are not cured within thirty (30) days after written notice of such Default has been given to the Borrower by the Administrative Agent (such grace period to be applicable only in the event the underlying events or circumstances can be remedied by corrective action of the Borrower as determined by the Administrative Agent in its sole discretion);
(fi) if the Borrower or any of its Subsidiaries shall fail to pay when dueat maturity, or within any applicable period of grace, any obligation for Indebtedness or obligations under Swap Contracts in with an aggregate outstanding principal amount greater than in excess of $75,000,000, 25,000,000 or fail to observe or perform any material term, covenant or agreement contained in any one or more agreements agreement by which it is bound, bound evidencing or securing any Indebtedness or obligations under Swap Contracts in with an aggregate outstanding principal amount greater than in excess of $75,000,000 25,000,000 for such period of time as would permit, or would have permitted permit (assuming the giving of appropriate notice if required) the holder or holders thereof or of any obligations issued thereunder to accelerate the maturity thereof, or any such holder or holders shall rescind or shall have a right to rescind the purchase of any such obligations; or (ii) any of the Paperchase Companies shall fail to pay at maturity, or within any applicable period of grace, any obligation for Indebtedness with an aggregate outstanding principal amount in excess of $10,000,000 or fail to observe or perform any material term, covenant or agreement contained in any agreement by which it is bound evidencing or securing Indebtedness with an aggregate outstanding principal amount in excess of $10,000,000 for such period of time as would permit (assuming the giving of appropriate notice if required) the holder or holders thereof or terminate its commitment with respect theretoof any obligations issued thereunder to accelerate the maturity thereof, or any such holder or holders shall rescind or shall have a right to rescind the purchase of any such obligations, and, in in the case of each of clauses (i) and (ii), such Default is not cured within fifteen (15) days after written notice of such Default has been given to the Borrower by the Administrative Agent;
(g) if the Borrower, the Guarantor Borrower or any Significant Subsidiary makes of its Subsidiaries shall make an assignment for the benefit of creditors, or admits admit in writing its inability to pay or generally fails fail to pay its debts as they mature or become due, or petitions shall petition or applies apply for the appointment of a trustee or other custodian, liquidator liquidator, receiver or receiver administrator of the Borrower, the Guarantor Borrower or any Significant Subsidiary, of its Subsidiaries or of any substantial part of the assets of the Borrower, the Guarantor Borrower or any Significant Subsidiary of its Subsidiaries or commences shall commence any case or other proceeding relating to the Borrower, the Guarantor Borrower or any Significant Subsidiary of 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 shall take any action to authorize or in furtherance of any of the foregoing, or if any such petition or application is shall be filed or any such case or other proceeding is shall be commenced against the Borrower, the Guarantor Borrower or any Significant Subsidiary or of its Subsidiaries and the Borrower, the Guarantor Borrower or any Significant Subsidiary indicates of its Subsidiaries shall indicate its approval thereof, consent thereto or acquiescence thereintherein or such petition or application shall not have been dismissed within forty-five (45) days following the filing thereof;
(h) if a decree or order is entered appointing any such trustee, custodian, liquidator liquidator, receiver or receiver administrator or adjudicating the Borrower or the Guarantor or any Significant Subsidiary of 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 in respect of the Borrower or any Subsidiary of the Guarantor or any Significant Subsidiary Borrower in an involuntary case under federal bankruptcy laws of any jurisdiction as now or hereafter constituted;
(i) if there shall remain in force, undischarged, unsatisfied and unstayed, for more than thirty sixty days, whether or not consecutive, any final judgment against the Borrower or any Subsidiary whichof its Subsidiaries that, with other outstanding final judgments judgments, undischarged, against (i) the Borrower and or any of its Subsidiaries, Subsidiaries exceeds in the aggregate $50,000,000 25,000,000 or (ii) any of the Paperchase Companies exceeds in the aggregate $10,000,000, and, in the case of each of clauses (i) and (ii), such Default is not cured within fifteen (15) days after taking into account any undisputed insurance coveragewritten notice of such Default has been given to the Borrower by the Administrative Agent;
(j) if, with respect to any Guaranteed Pension Plan, an ERISA Reportable Event shall have occurred and the Banks shall have determined in their reasonable discretion that such event reasonably could be expected to result in liability of the Borrower or any Subsidiary to the PBGC or such Plan in an aggregate amount exceeding $50,000,000 and such event in the circumstances occurring reasonably could constitute grounds for the partial or complete termination of such Plan by the PBGC or for the appointment by the appropriate United States District Court of a trustee to administer such Plan; or a trustee shall have been appointed by the appropriate United States District Court to administer such Plan; or the PBGC shall have instituted proceedings to terminate such Plan;
(k) if any of the Loan Documents shall be cancelled, terminated, revoked or rescinded rescinded, in each case otherwise than in accordance with the terms thereof or with the express prior written agreement, consent or approval of the BanksLenders, or any action at law, suit or in equity or other legal proceeding to cancel, revoke or rescind any of the Loan Documents or contest the Administrative Agent’s security interests and liens in any portion of the Collateral or the priority of the Administrative Agent’s security interests and liens in any portion of the Collateral contemplated by the Pledge Agreement, shall be commenced by or on behalf of the Borrower, the Guarantor, Borrower or any of its 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 determination that, or issue a judgment, order, decree or ruling to the effect that, any one or more of the Loan Documents is illegal, invalid or unenforceable in accordance with the terms thereof; or, and the Administrative Agent shall have delivered to the Borrower written notice of such Default;
(lk) if the Borrower or any person ERISA Affiliate incurs any liability to the PBGC or group a Guaranteed Pension Plan pursuant to Title IV of persons ERISA in an aggregate amount exceeding $25,000,000, or the Borrower or any ERISA Affiliate is assessed withdrawal liability pursuant to Title IV of ERISA by a Multiemployer Plan requiring aggregate annual payments exceeding $25,000,000, or any of the following occurs with respect to a Guaranteed Pension Plan: (i) an ERISA Reportable Event, or a failure to make a required installment or other payment (within the meaning of Section 13 302(f)(1) of ERISA), provided that the Administrative Agent determines in its reasonable discretion that such event (A) could be expected to result in liability of (x) the Borrower or 14 any of its Subsidiaries or (y) any of the Securities Exchange Act Paperchase Companies to the PBGC or such Guaranteed Pension Plan in an aggregate amount exceeding, in the case of 1934(x), as amended$25,000,000 or, in the case of (y), $10,000,000, and (B) could constitute grounds for the termination of such Guaranteed Pension Plan by the PBGC, for the appointment by the appropriate United States District Court of a trustee to administer such Guaranteed Pension Plan or for the imposition of a lien in favor of such Guaranteed Pension Plan; or (ii) the appointment by a United States District Court of a trustee to administer such Guaranteed Pension Plan; or (iii) the institution by the PBGC of proceedings to terminate such Guaranteed Pension Plan, and in the case of each of clauses (i), (ii) or (iii), such Default is not cured within thirty (30) days after written notice of such Default has been given to the Borrower by the Administrative Agent;
(l) the Borrower or any of its Subsidiaries shall be enjoined, restrained or in any way prevented by the order of any Governmental Authority from conducting any material part of its business and such order shall continue in effect for more than thirty (30) days and such restraint or enjoinment or similar restriction by any Governmental Authority would have a Material Adverse Effect, and the Administrative Agent shall have delivered to the Borrower written notice of such Default;
(m) there shall occur the loss, suspension or revocation of, or failure to renew, any license or permit now held or hereafter acquired beneficial ownership (within the meaning of Rule 13d-3 promulgated by the Securities Borrower or any of its Subsidiaries if such loss, suspension, revocation or failure to renew would have a Material Adverse Effect, and Exchange Commission under said Actsuch Default is not cured within thirty (30) days after written notice of 25% or more such Default has been given to the Borrower by the Administrative Agent (such grace period to be applicable only in the event such Default can be remedied by corrective action of the outstanding shares Borrower as determined by the Administrative Agent in its sole discretion)
(n) a Change of common voting stock Control shall occur, and the Administrative Agent shall have delivered to the Borrower written notice of such Default;
(o) any Lien under the Pledge Agreement on any Collateral shall, at any time, cease to be in full force and effect (other than in accordance with the terms of the Pledge Agreement and this Credit Agreement) for any reason other than the satisfaction in full of all of the Obligations or the release of any such Lien in accordance with the terms hereof or (ii) the Pledge Agreement or any Lien created thereunder on any Collateral shall be declared invalid or unenforceable or the Borrower shall assert in writing that any such Lien is invalid or unenforceable, and, in any such case, such event or circumstance continues for 10 days, and the Administrative Agent shall have delivered to the Borrower written notice of such Default; and
(p) an Event of Default under the Existing Credit Agreement; then, and in any such event, so long as the same may be continuing, the Administrative Agent may, and upon the request of the Required Lenders shall, by notice in writing to the Borrower declare all amounts owing with respect to this Credit Agreement, the Notes and the other Loan Documents to be, and they shall thereupon forthwith become, 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 Sections 11.1(g) or during (h), all such amounts shall become immediately due and payable automatically and without any period requirement of twelve consecutive calendar months, individuals who were directors of notice from the Borrower on the first day of such period (together with Administrative Agent or any new directors whose election by such board or whose nomination for election by the shareholders of the Borrower was approved by a vote of a majority of the directors still in office who were either directors at the beginning of such period or whose election or nomination for election was previously so approved) shall cease to constitute a majority of the board of directors of the Borrower;Lender.
Appears in 2 contracts
Sources: Senior Secured Credit Agreement (Borders Group Inc), Senior Secured Credit Agreement (Pershing Square Capital Management, L.P.)
Events of Default and Acceleration. If any of the following events (“"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 or lapse of time, “"Defaults”") shall occur:
(a) if the Borrower shall fail to pay any principal of the Loans when 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;
(b) if the Borrower shall fail to pay any interest on the Loans or fees any other sums due hereunder or under any of the other amounts owing hereunder (other than those specified in subsection (a) above) Loan Documents within five (5) Business Days days after the same shall become due and payable whether at or the Maturity Date or any accelerated date of maturity or at any other date fixed for paymentBorrower shall fail to deposit in the IRB Indebtedness Account sufficient funds as required by Section 2.8;
(c) if the Borrower or the Company shall fail to comply with any of the its covenants contained in §§7.4, Section 7.5, 7.15the first sentence of Section 7.6, 7.16the first sentence of Section 7.7, Section 7.20, Section 8 and or Section 9 hereof;
(d) if the Borrower Borrower, the Company or any Guarantor shall fail to perform any other term, covenant or agreement contained herein or in any of the other Loan Documents (other than those specified elsewhere in subsections this Section 12) for thirty (a), (b), and (c30) above) and such failure shall not be remedied within 30 days after written notice of such failure from Agent to the Borrower, provided, however that if the Borrower fails to give notice of any Default as required by Section 7.5(a), such thirty (30) day cure period shall be deemed to have started on the date such notice should have been given to the Borrower by the Administrative Agent or any of the Banksgiven;
(e) if any representation or warranty contained of the Borrower or the Company in this Agreement or any of the other Loan Documents or in any other document or instrument delivered pursuant to or in connection with this Agreement Agreement, shall prove to have been false in any material respect upon the date when made or deemed to have been made or repeated, and shall continue to be false on the date that the Agent or any Lender takes action based on the Default relating to such representation or warranty, provided, however, that with respect to the representations and warranties of the Borrower contained in Section 6.2, Section 6.3, Section 6.13, Section 6.18 and in paragraphs (a), (c), (d), (e) and (f) of Section 6.22, if the condition or event making the representation and warranty false is capable of being cured by the Borrower, no enforcement action has been commenced against the Borrower or the applicable Mortgaged Property on account of such condition or event nor is the applicable Mortgaged Property subject to risk of forfeiture due to such condition or event, and the Borrower promptly commences the cure thereof after the Borrower's first obtaining knowledge of such condition or event, the Borrower shall have a period of thirty (30) days after the date that the Borrower first obtained knowledge of such condition or event during which the Borrower may cure such condition or event (or, if such condition or event is not reasonably capable of being cured within such thirty (30) day period, such additional period of time as may be reasonably required in order to cure such condition or event but in any event such period shall not exceed six (6) months from the date that the Borrower first obtained knowledge of such condition or event), and no Event of Default shall exist hereunder during such thirty (30) day or additional period so long as the Borrower continuously and diligently pursues the cure of such condition or event and the other conditions to such cure period have not changed;
(f) if the Borrower Borrower, the Company, any of the Related Companies or any of its Subsidiaries Permitted Joint Venture shall fail to pay when dueat maturity, or within any applicable period of grace, any Indebtedness or obligations under Swap Contracts in an aggregate amount greater than $75,000,000Recourse Indebtedness, or shall fail to observe or perform any material term, covenant or agreement contained in any one or more agreements agreement by which it is bound, evidencing or securing any Indebtedness or obligations under Swap Contracts in an aggregate amount greater than $75,000,000 for such period of time as would permit, or would have permitted permit (assuming the giving of appropriate notice if required) the holder or holders thereof or of any obligations issued thereunder to accelerate the maturity thereof or terminate its commitment with respect theretothereof, and in any event, such failure shall continue for thirty (30) days, unless the aggregate amount of all such defaulted Recourse Indebtedness plus the amount of any unsatisfied judgments described in paragraph (i) of this Section 12.1 is less than $10,000,000.00;
(g) if any of the Borrower, the Guarantor Company or any Significant Subsidiary makes Guarantor shall make an assignment for the benefit of creditors, or admits admit in writing its inability to pay or generally fails fail to pay its debts as they mature or become due, or petitions shall petition or applies apply for the appointment of a trustee or other custodian, liquidator or receiver of the Borrower, the Guarantor or any Significant Subsidiary, or of any substantial part of the assets of the Borrower, the Guarantor its properties or any Significant Subsidiary or commences shall commence any case or other proceeding relating to the Borrower, the Guarantor or any Significant Subsidiary 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 shall take any action to authorize or in furtherance of any of the foregoing, or if any such petition or application is shall be filed or any such case or other proceeding is shall be commenced against the Borrower, the Guarantor or any Significant Subsidiary or the Borrower, the Guarantor or any Significant Subsidiary indicates such Person and such Person shall indicate its approval thereof, consent thereto or acquiescence thereintherein or any of the events described in this paragraph shall occur with respect to any other Related Company or any Permitted Joint Venture and such event shall have a Material Adverse Effect;
(h) if a decree or order is entered appointing any such trustee, custodian, liquidator or receiver or adjudicating the Borrower or Borrower, the Guarantor Company, or any Significant Subsidiary 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 or Borrower, the Guarantor Company, or any Significant Subsidiary Guarantor in an involuntary case under federal bankruptcy laws of any jurisdiction as now or hereafter constitutedconstituted or any of the events described in this paragraph shall occur with respect to any other Related Company or any Permitted Joint Venture and such event shall have a Material Adverse Effect;
(i) if there shall remain in force, undischarged, unsatisfied and unstayed, for more than thirty days, whether or not consecutive, any uninsured final judgment against the Borrower or any Subsidiary whichthat, with other outstanding uninsured final judgments judgments, undischarged, against the Borrower and its SubsidiariesBorrower, the Company or any of the Related Companies plus the amount of any defaulted Recourse Indebtedness under paragraph (f) of this Section 12.1, exceeds in the aggregate $50,000,000 after taking into account any undisputed insurance coverage10,000,000.00;
(j) if, with respect to any Guaranteed Pension Plan, an ERISA Reportable Event shall have occurred and the Banks shall have determined in their reasonable discretion that such event reasonably could be expected to result in liability of the Borrower or any Subsidiary to the PBGC or such Plan in an aggregate amount exceeding $50,000,000 and such event in the circumstances occurring reasonably could constitute grounds for the partial or complete termination of such Plan by the PBGC or for the appointment by the appropriate United States District Court of a trustee to administer such Plan; or a trustee shall have been appointed by the appropriate United States District Court to administer such Plan; or the PBGC shall have instituted proceedings to terminate such Plan;
(k) if any of the Loan Documents or any material provision of any Loan Documents shall be unenforceable, 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 BanksAgent, or any action at law, suit or in equity or other legal proceeding to make unenforceable, cancel, revoke or rescind any of the Loan Documents shall be commenced by or on behalf of the Borrower, the Guarantor, Company or any of their respective stockholdersGuarantor, 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 effect that, any one or more of the Loan Documents is illegal, invalid or unenforceable in accordance with the terms thereof; or;
(k) the Borrower, the Company or any Guarantor shall be indicted for a federal crime, a punishment for which could include the forfeiture of any assets of the Borrower;
(l) if any person or group "Event of persons (within the meaning of Section 13 or 14 Default," as defined in any of the Securities Exchange Act IRB Documents shall occur provided that if such Event of 1934Default is caused by the issuer or other Person other than the Guarantor Subsidiary, the same shall constitute an Event of Default hereunder only if the maturity of the applicable IRB Indebtedness is accelerated based thereon;
(m) any "Event of Default", 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 25% or more defined in any of the outstanding shares other Loan Documents shall occur; then, and in any such event, so long as the same may be continuing, the Agent may, and upon the request of common voting stock the Requisite Lenders shall, by notice in writing to the Borrower declare all amounts owing with respect to this Agreement, the Notes and the other Loan Documents to be, and they shall thereupon forthwith become, 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 Sections 12.1(g) or during 12.1(h), all such amounts shall become immediately due and payable automatically and without any period requirement of twelve consecutive calendar months, individuals who were directors of notice from the Borrower on the first day of such period (together with any new directors whose election by such board Agent or whose nomination for election action by the shareholders of the Borrower was approved by a vote of a majority of the directors still in office who were either directors at the beginning of such period or whose election or nomination for election was previously so approved) shall cease to constitute a majority of the board of directors of the Borrower;Requisite Lenders.
Appears in 2 contracts
Sources: Credit Agreement (Prime Group Realty Trust), Credit Agreement (Prime Group Realty Trust)
Events of Default and Acceleration. If any of the following events (“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 or lapse of time, “Defaults”) shall occur:
(a) if the Borrower shall fail to pay any principal of the Revolving Credit Loans, Swing Line Loans or any Reimbursement Obligation when 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 paymentpayment and, except in the case of an acceleration of the maturity of the Revolving Credit Loans, in which case an Event of Default shall occur immediately, such failure shall continue for a period of five (5) days;
(b) if the Borrower or any of its Subsidiaries shall fail to pay any interest on the Revolving Credit Loans or the Swing Line Loans, any fees or other amounts owing sums due hereunder (or under any of the other than those specified in subsection (a) above) within five (5) Business Days after Loan Documents, when the same shall become due and payable payable, whether at the Maturity Date stated date of maturity or any accelerated date of maturity or at any other date fixed for paymentpayment and, except in the case of an acceleration of the maturity of the Revolving Credit Loans, in which case an Event of Default shall occur immediately, such failure shall continue for a period of five (5) days;
(c) if the Borrower or CAI shall fail to comply with (i) any of its covenants contained in §§8.1, 8.2 (other than with respect to CAI or the Borrower, moves within the State of California), 8.4(f), 8.5, 8.7, 8.9, 8.12, 9 or 10 or any of the covenants contained in any of the Security Documents (provided, that this reference to covenants in the Security Documents shall not abridge grace periods provided therein with respect to certain Defaults also addressed in this Agreement) or (ii) any of its covenants contained in §§7.4, 7.5, 7.15, 7.16, 8 8.4 (except for clause (f) thereof) and 9 hereofsuch failure shall continue unremedied for ten (10) days);
(d) if the Borrower any Loan Party or any of its Subsidiaries shall fail to perform any term, covenant or agreement contained herein or in any of the other Loan Documents (other than those specified elsewhere in subsections this §13.1) for thirty (a), (b), and (c30) above) and such failure shall not be remedied within 30 days after written notice of such failure shall have has been given to the Borrower such Loan Party by the Administrative Agent or any of the BanksAgent;
(e) if any representation or warranty contained of any Loan Party or any of its Subsidiaries in this Credit Agreement or any of the other Loan Documents or in any other document or instrument delivered pursuant to or in connection with this Credit Agreement shall prove to have been false false, incorrect or incomplete in any material respect upon the date when made or deemed to have been made or repeated;
(f) if the Borrower any Loan Party or any of its Subsidiaries shall (x) fail to pay when dueat maturity, or within any applicable period of grace, (i) any Indebtedness obligation for borrowed money or obligations under Swap Contracts credit received in an aggregate principal amount in excess of $20,000,000, (ii) any obligation in respect of any Capitalized Leases in an aggregate amount greater than in excess of $75,000,00020,000,000, (iii) any obligation in respect of any operating leases with respect to which the present value (calculated at a discount rate of nine percent (9%) per annum) of the future obligations of such Loan Party and its Subsidiaries thereunder exceeds $20,000,000, or (iv) any obligation under any documentation of Indebtedness incurred in connection with a Permitted Securitization in an aggregate amount in excess of $20,000,000 (including any “termination event”, “event of termination” or any default or event of default thereunder), or (y) fail to observe or perform any material term, covenant or agreement contained in any one or more agreements by which it is bound, evidencing or securing any Indebtedness or obligations under Swap Contracts agreement referenced in an aggregate amount greater than $75,000,000 clauses (i) through (iv) above for such period of time as would permit, or would have permitted permit (assuming the giving of appropriate notice if required) the holder or holders thereof or of any obligations issued thereunder to accelerate the maturity thereof thereof, or terminate its commitment with respect theretoany such holder or holders shall rescind or shall have a right to rescind the purchase of any such obligations;
(g) if the Borrower, the Guarantor (i) any Loan Party or any Significant Material Subsidiary makes shall make an assignment for the benefit of creditors, or admits admit in writing its inability to pay or generally fails fail to pay its debts as they mature or become due, or petitions shall petition or applies apply for the appointment of a trustee or other custodian, liquidator or receiver of the Borrower, the Guarantor such Loan Party or any Significant Subsidiary, such Material Subsidiary or of any substantial part of the assets of the Borrower, the Guarantor such Loan Party or any Significant such Material Subsidiary or commences shall commence any case or other proceeding relating to the Borrower, the Guarantor such Loan Party or any Significant such Material Subsidiary 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 shall take any action to authorize or in furtherance of any of the foregoing, ; or (ii) if any such petition or application is shall be filed or any such case or other proceeding is shall be commenced against the Borrower, the Guarantor any Loan Party or any Significant Material Subsidiary and, with respect to this clause (ii) only, (x) such Loan Party or the Borrower, the Guarantor or any Significant such Material Subsidiary indicates shall indicate its approval thereof, consent thereto or acquiescence thereintherein or (y) such petition or application shall not have been dismissed within thirty (30) days following the filing thereof;
(h) if a decree or order is entered appointing any such trustee, custodian, liquidator or receiver or adjudicating the Borrower or the Guarantor any Loan Party or any Significant Material Subsidiary 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 or the Guarantor such Loan Party or any Significant Material Subsidiary in an involuntary case under federal bankruptcy laws of any jurisdiction as now or hereafter constituted;
(i) if there shall remain in force, undischarged, unsatisfied and unstayed, for more than thirty (30) days, whether or not consecutive, any final judgment against the Borrower any Loan Party or any Subsidiary whichof its Subsidiaries that, with other outstanding final judgments judgments, undischarged, against the Borrower and such Loan Party or any of its Subsidiaries, Subsidiaries exceeds in the aggregate Five Million Dollars ($50,000,000 after taking into account any undisputed insurance coverage5,000,000);
(j) if, with respect to any Guaranteed Pension Plan, an ERISA Reportable Event shall have occurred and the Banks shall have determined in their reasonable discretion that such event reasonably could be expected to result in liability of the Borrower or any Subsidiary to the PBGC or such Plan in an aggregate amount exceeding $50,000,000 and such event in the circumstances occurring reasonably could constitute grounds for the partial or complete termination of such Plan by the PBGC or for the appointment by the appropriate United States District Court of a trustee to administer such Plan; or a trustee shall have been appointed by the appropriate United States District Court to administer such Plan; or the PBGC shall have instituted proceedings to terminate such Plan;
(k) if any of the Loan Documents shall be cancelled, terminated, revoked or rescinded or the Administrative Agent’s 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 accordance with the terms thereof or with the express prior written agreement, consent or approval of the BanksLenders, 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 or on behalf of the Borrower, the Guarantor, any Loan Party or any of its 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 determination that, or issue a judgment, order, decree or ruling to the effect that, any one or more of the Loan Documents is illegal, invalid or unenforceable in accordance with the terms thereof;
(i) An ERISA Event occurs with respect to a Pension Plan or Multiemployer Plan which has resulted or could reasonably be expected to result in liability of the Borrower under Title IV of ERISA to the Pension Plan, Multiemployer Plan or the PBGC in an aggregate amount in excess of $5,000,000, or (ii) any Loan Party or any ERISA Affiliate fails to pay when due, after the expiration of any applicable grace period, any installment payment with respect to its withdrawal liability under Section 4201 of ERISA under a Multiemployer Plan in an aggregate amount in excess of $5,000,000;
(l) any Loan Party or any Material Subsidiary shall be enjoined, restrained or in any way prevented by the order of any Governmental Authority from conducting any part of its business if such circumstance could reasonably be expected to have a Material Adverse Effect, and such order shall continue in effect for more than thirty (30) days;
(m) there shall occur any material damage to, or loss, theft or destruction of, any Collateral, whether or not insured, or any strike, lockout, labor dispute, embargo, condemnation, act of God or public enemy, or other casualty, which in any such case causes, for more than fifteen (15) consecutive days, the cessation or substantial curtailment of revenue producing activities at any facility of any Loan Party or any of its Subsidiaries if such event or circumstance is not covered by business interruption insurance and would have a Material Adverse Effect;
(n) there shall occur the loss, suspension or revocation of, or failure to renew, any license or permit now held or hereafter acquired by any Loan Party or any of its Subsidiaries if such loss, suspension, revocation or failure to renew would have a Material Adverse Effect;
(o) any Loan Party or any of its Subsidiaries shall be indicted for a state or federal crime, or any civil or criminal action shall otherwise have been brought against such Loan Party or any of its Subsidiaries, a punishment for which in any such case could include the forfeiture of any assets of such Loan Party or such Subsidiary included in the Borrowing Base or any assets of such Loan Party or such Subsidiary not included in the Borrowing Base but having a fair market value in excess of Five Million Dollars ($5,000,000); or
(lp) if a Change of Control shall occur; then, and in any person or group of persons (within such event, so long as the meaning of Section 13 or 14 same may be continuing, the Administrative Agent may, and upon the request of the Securities Exchange Act Required Lenders shall, by notice in writing to the Borrower declare all amounts owing with respect to this Credit Agreement, the Revolving Credit Notes and the other Loan Documents and all Reimbursement Obligations and Swing Line Loans to be, and they shall thereupon forthwith become, immediately due and payable and the require the Borrower to provide Cash Collateral for all L/C Exposure, in each case, without presentment, demand, protest or other notice of 1934any kind, as amended) shall have acquired beneficial ownership (within the meaning all of Rule 13d-3 promulgated which are hereby expressly waived by the Securities and Exchange Commission under said Act) of 25% or more of the outstanding shares of common voting stock of the Borrower; provided that in the event of any Event of Default specified in §§13.1(g) or during any period of twelve consecutive calendar months13.1(h), individuals who were directors of all such amounts shall become immediately due and payable and the Borrower on shall be required to provide Cash Collateral for all L/C Exposure, in each case, automatically and without any requirement of notice from the first day of such period (together with Administrative Agent or any new directors whose election by such board or whose nomination for election by the shareholders of the Borrower was approved by a vote of a majority of the directors still in office who were either directors at the beginning of such period or whose election or nomination for election was previously so approved) shall cease to constitute a majority of the board of directors of the Borrower;Lender.
Appears in 2 contracts
Sources: Revolving Credit Agreement (CAI International, Inc.), Revolving Credit Agreement (CAI International, Inc.)
Events of Default and Acceleration. If any of the following events (“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 or lapse of time, “Defaults”) shall occur:
(a) if the Borrower shall fail to pay any principal of the Loans when 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;
(b) if the Borrower shall fail to pay any interest on the Loans or any fees or other amounts owing Obligations due hereunder or under any of the other Loan Documents (other than those specified described in subsection (a§12.1(a)) above) within five (5) Business Days after when the same shall become due and payable payable, whether at the Maturity Date stated date of maturity or any accelerated date of maturity or at any other date fixed for payment;
(c) if the Borrower or any of their respective Subsidiaries shall fail to comply with perform any of the covenants other term, covenant or agreement contained in §§7.4, 7.5, 7.15, 7.16, 8 and 9 hereof9.1 - 9.7;
(d) if the Borrower Borrower, the Guarantors or any of their respective Subsidiaries shall fail to perform any other term, covenant or agreement contained herein or in any of the other Loan Documents which they are required to perform (other than those specified in subsections (athe other subclauses of this §12 or in the other Loan Documents), (b), and (c) above) and such failure shall not be remedied within 30 days after written notice of such failure shall have been given to the Borrower by the Administrative Agent or any of the Banks;
(e) if any representation or warranty contained made by or on behalf of the Borrower, the Guarantors or any of their respective Subsidiaries in this Agreement or any other Loan Document, or any report, certificate, financial statement, request for a Loan or in any other document or instrument delivered pursuant to or in connection with this Agreement Agreement, any advance of a Loan, or any of the other Loan Documents shall prove to have been false in any material respect upon the date when made or deemed to have been made or repeated;
(f) if the Borrower Borrower, the Guarantors or any of its their respective Subsidiaries shall fail to pay when duedue (including, without limitation, at maturity), or within any applicable period of grace, any Indebtedness principal, interest or obligations other amount on account of any obligation for borrowed money or credit received or under Swap Contracts in an aggregate amount greater than $75,000,000a Derivatives Contract or other Indebtedness, or shall fail to observe or perform any material term, covenant or agreement agreement, or any other event occurs, contained in any one or more agreements agreement by which it is bound, evidencing or securing any obligation for borrowed money or credit received or under a Derivatives Contract or other Indebtedness or obligations under Swap Contracts in an aggregate amount greater than $75,000,000 for such period of time as would permit, or would have permitted permit (assuming the giving of appropriate notice if required) the holder or holders thereof or of any obligations issued thereunder to accelerate the maturity thereof or terminate its commitment require the prepayment, redemption, settlement or purchase thereof; provided that the events described in this §12.1(f) shall not constitute an Event of Default unless such failure to pay or perform or the occurrence of such event, together with respect theretoother failures to pay or perform or the occurrence of such events as described in this §12.1(f), involve singly or in the aggregate (i) obligations for Indebtedness (other than Non-Recourse Indebtedness) totaling in excess of $25,000,000.00 or (ii) Non-Recourse Indebtedness totaling in excess of $50,000,000.00;
(g) if the Borrower, the Guarantor Guarantors or any Significant Subsidiary makes of their respective Material Subsidiaries (i) shall make an assignment for the benefit of creditors, or admits admit in writing its general inability to pay or generally fails fail to pay its debts as they mature or become due, or petitions shall petition or applies apply for the appointment of a trustee or other custodian, liquidator or receiver of the Borrower, the Guarantor for it or any Significant Subsidiary, or of any substantial part of the assets of the Borrowerits assets, the Guarantor or any Significant Subsidiary or commences (ii) shall commence any case or other proceeding relating to the Borrower, the Guarantor or any Significant Subsidiary it 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 (iii) shall take any action to authorize or in furtherance of any of the foregoing, or if any such ;
(h) a petition or application is shall be filed for the appointment of a trustee or other custodian, liquidator or receiver of the Borrower, the Guarantors or any such of their respective Material Subsidiaries or any substantial part of the assets of any thereof, or a case or other proceeding is shall be commenced against the Borrowerany such Person under any bankruptcy, the Guarantor reorganization, arrangement, insolvency, readjustment of debt, dissolution or liquidation or similar law of any Significant Subsidiary jurisdiction, now or the Borrowerhereafter in effect, the Guarantor or and any Significant Subsidiary indicates such Person shall indicate its approval thereof, consent thereto or acquiescence thereintherein or such petition, application, case or proceeding shall not have been dismissed within sixty (60) days following the filing or commencement thereof;
(hi) if a decree or order is entered appointing any such a trustee, custodian, liquidator or receiver for any of the Borrower, the Guarantors or any of their respective Material Subsidiaries or adjudicating the Borrower or the Guarantor or any Significant Subsidiary such Person, 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 or the Guarantor or any Significant Subsidiary such Person in an involuntary case under federal bankruptcy laws of any jurisdiction as now or hereafter constituted;
(ij) if there shall remain in force, undischarged, unsatisfied and unstayed, for more than thirty (30) days, whether or not consecutive, one or more uninsured or unbonded final judgments, orders or awards against the Borrower, the Guarantors or any final judgment against of their respective Subsidiaries that exceed $50,000,000.00 per occurrence or in the aggregate in any calendar year;
(k) any of the Loan Documents or the Contribution Agreement (if any) shall be disavowed, canceled, terminated, revoked or rescinded otherwise than in accordance with the terms thereof or the express prior written agreement, consent or approval of the Lenders, or any action at law, suit in equity or other legal proceeding to disavow, cancel, revoke or rescind any of the Loan Documents or the Contribution Agreement (if any), or to contest or challenge the validity or enforceability of any of the Loan Documents or the Contribution Agreement (if any) shall be commenced by or on behalf of the Borrower or any Subsidiary whichof the Guarantors, or any court or any other governmental or regulatory authority or agency of competent jurisdiction shall make a determination, or issue a judgment, order, decree or ruling, to the effect that any one or more of the Loan Documents or the Contribution Agreement (if any) is illegal, invalid or unenforceable in accordance with other outstanding final judgments against the Borrower and its Subsidiaries, exceeds in the aggregate $50,000,000 after taking into account any undisputed insurance coverageterms thereof;
(jl) ifany dissolution, termination, partial or complete liquidation, merger or consolidation of the Borrower, any of the Guarantors or any of their respective Subsidiaries shall occur or any sale, transfer or other disposition of the assets of the Borrower, any of the Guarantors or any of their respective Subsidiaries shall occur other than as permitted under the terms of this Agreement or the other Loan Documents;
(m) with respect to any Guaranteed Pension Plan, an ERISA Reportable Event shall have occurred and the Banks Required Lenders shall have determined in their reasonable discretion that such event reasonably could be expected to result in liability of the Borrower Borrower, any of the Guarantors or any Subsidiary of their respective Subsidiaries to the PBGC or such Guaranteed Pension Plan in an aggregate amount exceeding $50,000,000 20,000,000.00 and (x) such event in the circumstances occurring reasonably could constitute grounds for the partial or complete termination of such Guaranteed Pension Plan by the PBGC or for the appointment by the appropriate United States District Court of a trustee to administer such Guaranteed Pension Plan; or (y) a trustee shall have been appointed by the appropriate United States District Court to administer such Plan; or (z) the PBGC shall have instituted proceedings to terminate such Guaranteed Pension Plan;
(kn) if the Borrower, any Guarantor or any of the Loan Documents their respective Subsidiaries or any shareholder, officer, director, partner or member of any of them shall be cancelledindicted for a federal crime, terminated, revoked or rescinded otherwise than in accordance with a punishment for which could include the terms thereof or with the express prior written agreement, consent or approval forfeiture of the Banks, or (i) 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 or on behalf assets of the Borrower, the Guarantor, Guarantors or any of their respective stockholdersSubsidiaries which in the good faith judgment of the Required Lenders could have a Material Adverse Effect, or (ii) 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 effect that, any one or more of the Loan Documents is illegal, invalid or unenforceable in accordance with the terms thereofUnencumbered Borrowing Base Properties;
(o) any Change of Control shall occur; or
(lp) if an Event of Default under any person or group of persons (within the meaning of Section 13 or 14 of the Securities Exchange Act of 1934other Loan Documents shall occur; then, as amended) shall have acquired beneficial ownership (within and in any such event, the meaning of Rule 13d-3 promulgated by Agent may, and upon the Securities and Exchange Commission under said Act) of 25% or more request of the outstanding shares Required Lenders shall, by notice in writing to the Borrower declare all amounts owing with respect to this Agreement, the Notes, and the other Loan Documents to be, and they shall thereupon forthwith become, immediately due and payable without presentment, demand, protest or other notice of common voting stock any kind, all of which are hereby expressly waived by the Borrower; provided that in the event of any Event of Default specified in §12.1(g), §12.1(h) or during §12.1(i), all such amounts shall become immediately due and payable automatically and without any period requirement of twelve consecutive calendar monthspresentment, individuals who were directors demand, protest or other notice of any kind from any of the Borrower on Lenders or the first day Agent, all of such period (together with any new directors whose election by such board or whose nomination for election by the shareholders of which the Borrower was approved by a vote of a majority of the directors still in office who were either directors at the beginning of such period or whose election or nomination for election was previously so approved) shall cease to constitute a majority of the board of directors of the Borrower;hereby waives.
Appears in 2 contracts
Sources: Term Loan Agreement (Mid-America Apartments, L.P.), Term Loan Agreement (Mid-America Apartments, L.P.)
Events of Default and Acceleration. If any of the following events (“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 or lapse of time, “Defaults”) shall occur:
(a) if the Borrower shall fail to pay any the then unpaid principal of the Loans when the same shall become due and payable, within three (3) Business Days of the date the same shall become due and payable, whether at the Maturity Date or any accelerated date of maturity or at any other date fixed for payment (other than as set forth in Section 4.2.1, which failure to pay is dealt with in Section 13.1(m) hereof);
(b) the Borrower shall fail to pay (i) on any Payment Date any interest on the Loans or any Fees then due and payable, or (ii) other sums due hereunder or under any of the other Loan Documents, within five (5) Business Days of the date 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;
(b) if the Borrower shall fail to pay any interest or fees or other amounts owing hereunder payment (other than those specified as set forth in subsection (aSection 4.2.1, which failure to pay is dealt with in Section 13.1(m) above) within five (5) Business Days after the same shall become due and payable whether at the Maturity Date or any accelerated date of maturity or at any other date fixed for paymenthereof);
(c) if the Borrower shall fail to comply (i) with any of the its covenants contained in §§7.4Section 9 or Section 10, 7.5which failure continues for a period of fifteen (15) days after the earliest of (x) any Senior Designated Officer of the Borrower first acquiring knowledge thereof, 7.15(y) the Administrative Agent’s giving written notice thereof to the Borrower, 7.16or (z) any Lender giving written notice thereof to the Borrower and the Administrative Agent, 8 and 9 hereofor (ii) within ten (10) days after the delivery dates required therein, with any of its covenants contained in Sections 8.1 or 8.2; provided, that the cure periods set forth herein shall only apply to the extent any such failure to comply is capable of being cured;
(d) if the Borrower shall fail to perform default in the observation or performance of any term, other covenant or agreement contained herein or in any (not otherwise covered by Section 13.1) of the Borrower set forth in this Credit Agreement or other Loan Documents Document, which continues for a period of thirty (other than those specified in subsections 30) days after the earliest of (a)x) any Senior Designated Officer of the Borrower, first acquiring knowledge thereof, (b), and (cy) above) and such failure shall not be remedied within 30 days after the Administrative Agent’s giving written notice of such failure shall have been given thereof to the Borrower, or (z) any Lender giving written notice thereof to the Borrower by and the Administrative Agent or any of the Banks;Agent.
(e) if any representation or warranty contained of the Borrower or the Seller (other than, in this Agreement or the case of the Seller, the Container Representations and Warranties) made in any document or instrument delivered pursuant to or in connection with this Agreement other Loan Document shall prove to have been false be incorrect in any material respect upon as of the date time when the same shall have been made which continues and if capable of cure, the continuance of such condition for a period of thirty (30) days after the earliest of (i) any Senior Designated Officer of the Borrower or repeatedthe Seller, as the case may be, first acquiring knowledge thereof, (ii) the Administrative Agent’s giving written notice thereof to the Borrower or the Seller, as the case may be, or (iii) any Lender giving written notice thereof to the Borrower or the Seller, as the case may be, and the Administrative Agent;
(f) if All of the Borrower or any of its Subsidiaries following: (A) a Manager Default shall fail to pay when duehave occurred and be continuing, or within any applicable period of grace, any Indebtedness or obligations under Swap Contracts in an aggregate amount greater than $75,000,000, or fail to observe or perform any material term, covenant or agreement contained in any one or more agreements by which it is bound, evidencing or securing any Indebtedness or obligations under Swap Contracts in an aggregate amount greater than $75,000,000 for such period of time as would permit, or would have permitted (assuming the giving of appropriate notice if requiredB) the holder Majority Lenders have notified the Manager of their intent to locate a successor Manager in accordance with the terms of the Loan Documents and (C) no successor Manager shall have assumed the duties of the Manager pursuant to a successor management agreement in accordance with the terms of the Management Agreement and the other Loan Documents within the earlier of (i) sixty (60) days from the date on which the Majority Lenders shall notify the Manager of their intent to locate a successor Manager in accordance with the terms of the Loan Documents and at any time during such sixty (60) day period a Asset Base Deficiency shall exist or holders thereof or (ii) ninety (90) days from the date which the Majority Lenders shall notify the Manager of any obligations issued thereunder their intent to accelerate locate a successor Manager in accordance with the maturity thereof or terminate its commitment with respect theretoterms of the Loan Documents;
(g) if the Borrower, the Guarantor or any Significant Subsidiary makes Borrower shall make an assignment for the benefit of creditors, or admits admit in writing its inability to pay or generally fails fail to pay its debts as they mature or become due, or petitions shall petition or applies apply for the appointment of a trustee or other custodian, liquidator or receiver of the Borrower, the Guarantor or any Significant Subsidiary, Borrower or of any substantial part of the assets of the Borrower, the Guarantor Borrower or any Significant Subsidiary or commences shall commence any case or other proceeding relating to the Borrower, the Guarantor or any Significant Subsidiary 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 shall take any action to authorize or in furtherance of any of the foregoing, or if any such petition or application is shall be filed or any such case or other proceeding is shall be commenced against the Borrower, Borrower and the Guarantor or any Significant Subsidiary or the Borrower, the Guarantor or any Significant Subsidiary indicates Borrower shall indicate its approval thereof, consent thereto or acquiescence thereintherein or such petition or application shall not have been dismissed within sixty (60) days following the filing thereof;
(h) if a decree or order is entered appointing any such trustee, custodian, liquidator or receiver or adjudicating the Borrower or the Guarantor or any Significant Subsidiary 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 or any Subsidiary of the Guarantor or any Significant Subsidiary Borrower in an involuntary case under federal bankruptcy laws of any jurisdiction Insolvency Law as now or hereafter constituted;
(i) if there shall remain in force, undischarged, unsatisfied and unstayed, for more than thirty (30) consecutive days, whether or not consecutive, any final judgment against the Borrower or any Subsidiary whichnot covered by insurance that, with other outstanding final judgments judgments, undischarged, against the Borrower and its Subsidiaries, not covered by insurance exceeds in the aggregate $50,000,000 after taking into account any undisputed insurance coverage250,000;
(j) if, with respect to any Guaranteed Pension Plan, an ERISA Reportable Event shall have occurred and the Banks shall have determined in their reasonable discretion that such event reasonably could be expected to result in liability of the Borrower or any Subsidiary to the PBGC or such Plan in an aggregate amount exceeding $50,000,000 and such event in the circumstances occurring reasonably could constitute grounds for the partial or complete termination of such Plan by the PBGC or for the appointment by the appropriate United States District Court of a trustee to administer such Plan; or a trustee shall have been appointed by the appropriate United States District Court to administer such Plan; or the PBGC shall have instituted proceedings to terminate such Plan;
(k) if any of the Loan Documents shall be cancelled, terminated, revoked or rescinded or if the Administrative Agent’s security interests, mortgages or liens in 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 accordance with the terms thereof or with the express prior written agreement, consent or approval of the BanksLenders, 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 or on behalf of the Borrower, the Guarantor, Borrower party thereto or any of their respective stockholdersmembers or stockholders (as the case may be), or any court of competent jurisdiction 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 effect that, any one or more of the Loan Documents is illegal, invalid or unenforceable in accordance with the terms thereof; or;
(lk) if the Borrower or any person ERISA Affiliate incurs any liability to the PBGC or group a Guaranteed Pension Plan pursuant to Title IV of persons ERISA which would result in a Material Adverse Effect, or the Borrower or any ERISA Affiliate is assessed withdrawal liability pursuant to Title IV of ERISA by a Multiemployer Plan requiring aggregate annual payments by any ERISA Affiliate exceeding $250,000, or any of the following occurs with respect to a Guaranteed Pension Plan: (i) a “reportable event” as defined in Section 4043 of ERISA or the regulations issued thereunder (other than an event for which the 30 day notice period is waived), or a failure to make a required installment or other payment (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 Act302(f)(1) of 25% or more of ERISA), provided, that the outstanding shares of common voting stock of Administrative Agent determines in its reasonable discretion that such event could be expected to result in (i) a Material Adverse Effect on the Borrower; (ii) the appointment by a United States District Court of a trustee to administer such Guaranteed Pension Plan; or during (iii) the institution by the PBGC of proceedings to terminate such Guaranteed Pension Plan;
(l) Carlisle shall at any time (i) own less than all of the Capital Stock of the Borrower unless waived by the Majority Lenders or (ii) fail to have sole control of the Borrower and, legally and beneficially, own less than a majority of 51% of Capital Stock of the Borrower unless waived by the Majority Lenders;
(m) the Aggregate Note Principal Balance exceeds the Asset Base on any Payment Date and the Borrower does not remedy such situation (by payment of the amount set forth in Section 3.2 or otherwise) within forty-five (45) days; or
(n) one or more judgments or decrees shall be entered against the Guarantor involving a liability (to the extent not paid when due or covered by a reputable and solvent insurance company (with any portion of any judgment or decree not so covered to be included in any determination hereunder)) equal to or in excess of Ten Million Dollars ($10,000,000) for all such judgments and decrees and all such judgments or decrees shall either be final and non-appealable or shall not have been vacated, discharged or stayed or bonded pending appeal for any period of twelve thirty (30) consecutive calendar monthsdays; then, individuals who were directors and in any such event, so long as the same may be continuing, the Administrative Agent may, and upon the request of the Majority Lenders shall, by notice in writing to the Borrower on declare all amounts owing with respect to this Credit Agreement, the first day Notes and the other Loan Documents to be, and they shall thereupon forthwith become, immediately due and payable without presentment, demand, protest or other notice of such period (together with any new directors whose election by such board or whose nomination for election kind, all of which are hereby expressly waived by the shareholders Borrower; provided, that in the event of any Event of Default specified in Sections 13.1(g) or 13.1(h), all such amounts shall become immediately due and payable automatically and without any requirement of notice from the Borrower was approved by a vote of a majority of the directors still in office who were either directors at the beginning of such period Administrative Agent or whose election or nomination for election was previously so approved) shall cease to constitute a majority of the board of directors of the Borrower;any Lender.
Appears in 2 contracts
Sources: Credit Agreement (SeaCube Container Leasing Ltd.), Credit Agreement (Seacastle Inc.)
Events of Default and Acceleration. If any of the following events (“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, “Defaults”) shall occur:
(a) if the any Borrower shall fail to pay any principal of the Loans when 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;
(b) if the any Borrower shall fail to pay any interest on the Loans or fees or other amounts owing payable hereunder (other than those specified in subsection (a) above) within five (5) Business Days after when the same shall become due and payable payable, whether at the Maturity Date stated date of maturity or any accelerated date of maturity or at any other date fixed for payment, and such failure shall continue for five (5) days after written notice of such failure has been given to a Borrower by the Administrative Agent;
(c) if the any Borrower shall fail to comply with perform or observe any of the its covenants contained in §§7.4Sections 6.3.1, 7.56.4.1, 7.157.1, 7.167.2, 8 and 9 hereof7.3(xiv), 7.7, 8, or, if such failure relates to a Lien securing Funded Debt, 7.3;
(d) if the any Borrower or any of its Subsidiaries shall fail to perform or observe any term, covenant covenant, or agreement contained herein or in any of the other Loan Documents (other than those specified elsewhere in subsections this Section 11) for thirty (a), (b), and (c30) above) and such failure shall not be remedied within 30 days after written notice of such failure shall have has been given to the such Borrower by the Administrative Agent Agent, provided, that a failure to perform or any observe the terms, covenants and agreements set forth in Section 6.2, Section 6.3.3, Section 6.7 or Section 6.11.1 that continues for more than ten (10) days (regardless of the Bankswhether notice of such failure is given to such Borrower) shall constitute an Event of Default hereunder;
(e) if any representation or warranty contained of any Borrower or any of its Subsidiaries in this Agreement Credit Agreement, any of the other Loan Documents, or in any other document or instrument delivered pursuant to or in connection with this Credit Agreement shall prove to have been false incorrect in any material respect upon the date when made or deemed to have been made or repeated;
(f) if failure to make a payment of principal or interest, or the Borrower occurrence of a default, event of default, or other event permitting (with or without the passage of time or the giving of notice) acceleration or exercise of remedies or, with respect to any Swap Contract, as to which the Company or any Subsidiary is the defaulting party, permitting early termination thereof shall occur with respect to (i) any Indebtedness for money borrowed, (ii) any Indebtedness in respect of the deferred purchase price of goods or services, (iii) any Capitalized Lease, (iv) any Broker-Dealer Debt, (v) any Swap Contract or (vi) any Synthetic Lease Obligation, of the Company or any of its Subsidiaries shall fail Subsidiaries, having a principal amount (or (x) in the case of a Capitalized Lease, scheduled rental payments with a discounted present value from the last day of the initial term to pay when duethe date of determination as determined in accordance with generally accepted accounting principles or (y) in the case of a Swap Contract, the Swap Termination Value or within any applicable period (z) in the case of gracea Synthetic Lease Obligation, any the amount of Attributable Indebtedness or obligations under Swap Contracts in an aggregate amount greater than $75,000,000with respect thereto), or fail to observe or perform any material term, covenant or agreement contained (A) in any one case, of $100,000,000 or more agreements by which it is boundmore, evidencing or securing any Indebtedness (B) in the aggregate, of $250,000,000 or obligations under Swap Contracts in an aggregate amount greater than $75,000,000 more, and such failure to make a payment of principal or interest, or a default, event of default, or other event shall continue for such period of time as would permit, or would have permitted (assuming the giving of appropriate notice if required) entitle the holder of such Indebtedness, Capitalized Lease, Swap Contract or holders thereof Synthetic Lease Obligation (with or of any obligations issued thereunder without notice) to accelerate the maturity thereof such Indebtedness or terminate its commitment with respect theretosuch Capitalized Lease, Swap Contract or Synthetic Lease Obligation;
(g) if any of the BorrowerLoan 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 Banks, or any Proceeding to cancel, revoke, or rescind any of the Loan Documents shall be commenced by or on behalf of any Borrower or any of its Subsidiaries party thereto, or any Government Authority of competent jurisdiction shall make a determination that, or issue a Government Mandate to the effect that, any material provision of one or more of the Loan Documents is illegal, invalid, or unenforceable in accordance with the terms thereof; or any material provision of Section 14 shall cease to be valid and binding on or enforceable against the Company, or the Company shall so state in writing;
(h) the Company, Alliance Distributors, the Guarantor General Partner, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ or any Significant Material Subsidiary makes shall make an assignment for the benefit of creditors, or admits admit in writing its inability to pay or generally fails fail to pay its debts as they mature or become due, or petitions shall petition or applies apply for the appointment of a trustee or other custodian, liquidator liquidator, or receiver of the BorrowerCompany, Alliance Distributors, the Guarantor General Partner, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ or any Significant Subsidiary, Material Subsidiary or of any substantial part of the assets of the BorrowerCompany, Alliance Distributors, the Guarantor General Partner, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ or any Significant Subsidiary Material Subsidiary, or commences shall commence any case or other proceeding Proceeding relating to the BorrowerCompany, Alliance Distributors, the Guarantor General Partner, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ or any Significant Material Subsidiary under any bankruptcy, reorganization, arrangement, insolvency, readjustment of debt, dissolution or liquidation dissolution, liquidation, or similar law of any jurisdiction, now or hereafter in effect, or takes shall take any action to authorize or in furtherance of any of the foregoing, or if any such petition or application is shall be filed or any such case or other proceeding is Proceeding shall be commenced against the BorrowerCompany, Alliance Distributors, the Guarantor General Partner, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ or any Significant Material Subsidiary or the Borrower, the Guarantor or and any Significant Subsidiary indicates of such parties shall indicate its approval thereof, consent thereto thereto, or acquiescence therein;
(hi) if either (i) an involuntary Proceeding relating to the Company, Alliance Distributors, the General Partner, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ or any Material Subsidiary under any bankruptcy, reorganization, arrangement, insolvency, readjustment of debt, dissolution, liquidation, or similar law of any jurisdiction, now or hereafter in effect is commenced and not dismissed or vacated within sixty (60) days following entry thereof, or (ii) a decree or order is entered appointing any such trustee, custodian, liquidator liquidator, or receiver described in (h) or adjudicating the Borrower or Company, Alliance Distributors, the Guarantor General Partner, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ or any Significant Material Subsidiary bankrupt or insolvent, or approving a petition in any such case or other proceedingProceeding, or a decree or order for relief is entered in respect of the Borrower or Company, Alliance Distributors, the Guarantor General Partner, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ or any Significant Material Subsidiary in an involuntary case Proceeding under federal bankruptcy laws of any jurisdiction as now or hereafter constituted;
(ij) if there shall remain in force, undischarged, unsatisfied unsatisfied, and unstayed, for more than thirty forty-five (45) days, whether or not consecutive, any final judgment or order against the Borrower Company or any Subsidiary whichof its Subsidiaries, that, with any other such outstanding final judgments or orders, undischarged, against the Borrower Company and its Subsidiaries, Subsidiaries taken together exceeds in the aggregate $50,000,000 after taking into account any undisputed insurance coverage50,000,000;
(jk) if, with respect to any Guaranteed Pension Plan, an ERISA Reportable Event shall have occurred and the Majority Banks shall have determined in their reasonable discretion that such event reasonably could be expected to result in liability of the Borrower Company or any Subsidiary of its Subsidiaries to the PBGC or such Guaranteed Pension Plan in an aggregate amount exceeding $50,000,000 and such event in the circumstances occurring reasonably could constitute grounds for the partial or complete termination of such Guaranteed Pension Plan by the PBGC or for the appointment by the appropriate United States District Court of a trustee to administer such Guaranteed Pension Plan; or a trustee shall have been appointed by the appropriate United States District Court to administer such Guaranteed Pension Plan; or the PBGC shall have instituted proceedings to terminate such Guaranteed Pension Plan; or any representation with respect to any Guaranteed Pension Plan or Multiemployer Plan made in Section 5.9 shall prove to be incorrect during the term of this Credit Agreement and the Majority Banks shall have determined in their reasonable discretion that the events underlying the incorrect representation could reasonably be expected to result in liability to the Company or its Subsidiaries, in the aggregate, in excess of $50,000,000;
(kl) if any of the Loan Documents following: (i) the Company shall fail to be cancelledduly registered as an “investment adviser” under the Investment Advisers Act of 1940; (ii) Alliance Distributors shall cease to be duly registered as a “broker/dealer” under the Securities Exchange Act of 1934 or shall cease to be a member of the Financial Industry Regulatory Authority, terminatedInc. , revoked or rescinded otherwise than (iii) ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ shall cease to be duly registered as a “broker/dealer” under the Securities Exchange Act of 1934 or shall cease to be a member of the Financial Industry Regulatory Authority, Inc. , in accordance each case, to the extent required;
(m) the Company, Alliance Distributors, the General Partner, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ or any Material Subsidiary shall either (i) be indicted for a federal or state crime and, in connection with such indictment, Government Authorities shall seek to seize or attach, or seek a civil forfeiture of, property of the terms thereof Company, Alliance Distributors, the General Partner, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ or one or more of such Material Subsidiaries having a fair market value in excess of $50,000,000, or (ii) be found guilty of, or shall plead guilty, no contest, or nolo contendere to, any federal or state crime, a punishment for which could include a fine, penalty, or forfeiture of any assets of the Company, Alliance Distributors, the General Partner, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ or such Material Subsidiary having in any such case a fair market value in excess of $50,000,000; or
(n) AllianceBernstein Corporation shall cease to be the sole general partner of the Company, and such circumstance shall continue for thirty (30) days after written notice of such circumstance has been given to the Company, provided, that the admission of additional Persons as general partner of the Company shall not constitute an Event of Default if, prior to the admission of any such general partner, the Company delivers to the Banks (i) the documentation with respect to such general partner that would be required under Section 9.3 if such Person were a General Partner on the express prior written agreementClosing Date, consent or approval of (ii) an incumbency certificate for such general partner as required for the Company pursuant to Section 9.8, and (iii) an opinion from counsel reasonably acceptable to the Banks, or any action at lawin form and substance reasonably satisfactory to the Banks, suit or in equity or other legal proceeding as to cancel, revoke or rescind any of the Loan Documents shall be commenced by or such general partner’s power and authority to act on behalf of the BorrowerCompany as a general partner of the Company; then, and in any such event, so long as the same may be continuing, the GuarantorAdministrative Agent shall, at the request of, or any of their respective stockholdersmay with the consent of, 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 effect that, any Majority Banks take one or more of the following actions: (x) declare the Commitment of each Bank to make Loans to be terminated, whereupon such Commitment shall be terminated; and (y) by notice in writing to the Borrowers declare all amounts owing with respect to this Credit Agreement, any Notes, and the other Loan Documents is illegalto be, invalid and they shall thereupon forthwith become, immediately due and payable without presentment, demand, protest, or unenforceable other notice of any kind, all of which are hereby expressly waived by each Borrower. In addition, in accordance with any such event, so long as the terms thereof; same may be continuing, the Administrative Agent may or
(l) if any person or group of persons (within , at the meaning of Section 13 or 14 request of the Securities Exchange Act Majority Banks, shall exercise on behalf of 1934itself and the Banks all other rights and remedies available to it and the Banks under the Loan Documents or applicable law. Notwithstanding the foregoing, as amendedin the event of any Event of Default specified in Section 11.1(h) or Section 11.1(i), all such amounts shall have acquired beneficial ownership (within become immediately due and payable automatically and without any requirement of notice from the meaning Administrative Agent or any Bank, and any unused portion of Rule 13d-3 promulgated the Total Commitment hereunder shall forthwith terminate and each of the Banks shall be relieved of all obligations to make Loans to the Borrowers. Any declaration under this Section 11.1 may be rescinded by the Securities and Exchange Commission under said Act) Majority Banks after the Events of 25% Default leading to such declaration are cured or more of the outstanding shares of common voting stock of the Borrower; or during any period of twelve consecutive calendar months, individuals who were directors of the Borrower on the first day of such period (together with any new directors whose election by such board or whose nomination for election by the shareholders of the Borrower was approved by a vote of a majority of the directors still in office who were either directors at the beginning of such period or whose election or nomination for election was previously so approved) shall cease to constitute a majority of the board of directors of the Borrower;waived.
Appears in 2 contracts
Sources: Revolving Credit Agreement (Alliancebernstein L.P.), Revolving Credit Agreement (Alliancebernstein L.P.)
Events of Default and Acceleration. If any of the following events (“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 or lapse of time, “Defaults”) shall occur:
(a) if the Borrower shall fail to pay any principal of the Loans Loan when 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;
(b) if the Borrower shall fail to pay any interest on the Loan or any other fees or sums due hereunder or under any of the other amounts owing hereunder (other than those specified in subsection (a) above) within five (5) Business Days after Loan Documents, when the same shall become due and payable payable, whether at the Maturity Date 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 any of the its covenants contained in §3.2 or §7.4§8.1, 7.58.2, 7.158.3, 7.168.4, 8 and 9 8.5, 8.7, 8.8, 8.9, 8.10, 8.13 or 8.14 hereof;
(d) if the Borrower Borrower, Assignor, Guarantors, or any other party shall fail to perform or cause to be performed any other term, covenant or agreement contained herein or in any of the other Loan Documents (other than those specified in subsections (athis §12.1), (b), and (c) above) and such failure shall not be remedied within 30 days after written notice of such failure shall have been given to the Borrower by the Administrative Agent or any of the Banks;
(e) if any representation or warranty contained made by or on behalf of Borrower, Assignor or Guarantors in this Agreement or any other Loan Document, or in any report, certificate, financial statement, request for a Loan, or in any other document or instrument delivered pursuant to or in connection with this Agreement Agreement, any advance of a Loan or any of the other Loan Documents shall prove to have been false in any material respect upon the date when made or deemed to have been made or repeated;
(f) if the Borrower or any of its Subsidiaries shall fail to pay when due, or within any applicable period of grace, any Indebtedness or obligations under Swap Contracts in an aggregate amount greater than $75,000,000, or fail to observe or perform any material term, covenant or agreement contained in any one or more agreements by which it is bound, evidencing or securing any Indebtedness or obligations under Swap Contracts in an aggregate amount greater than $75,000,000 for such period of time as would permit, or would have permitted (assuming the giving of appropriate notice if required) the holder or holders thereof or of any obligations issued thereunder to accelerate the maturity thereof or terminate its commitment with respect theretoIntentionally Omitted;
(g) if the occurrence of any “Default” (as defined in the Mortgage Loan Documents) under the Mortgage Loan Documents;
(h) Borrower, the Guarantor Assignor or any Significant Subsidiary makes Guarantor (A) shall make an assignment for the benefit of creditors, or admits admit in writing its general inability to pay or generally fails fail to pay its debts as they mature or become due, or petitions shall petition or applies apply for the appointment of a trustee or other custodian, liquidator or receiver of the Borrower, the Guarantor or any Significant Subsidiary, or such Person of any substantial part of the assets of the Borrowerany thereof, the Guarantor or any Significant Subsidiary or commences (B) shall commence any case or other proceeding relating to the Borrower, the Guarantor or any Significant Subsidiary such Person 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 (C) shall take any action to authorize or in furtherance of any of the foregoing, or if any such ;
(i) a petition or application is shall be filed for the appointment of a trustee or other custodian, liquidator or receiver of Borrower, Assignor or any such Guarantor or any substantial part of the assets of any thereof, or a case or other proceeding is shall be commenced against the Borrowerany such Person under any bankruptcy, the Guarantor reorganization, arrangement, insolvency, readjustment of debt, dissolution or liquidation or similar law of any Significant Subsidiary jurisdiction, now or the Borrowerhereafter in effect, the Guarantor or any Significant Subsidiary indicates and such Person shall indicate its approval thereof, consent thereto or acquiescence thereintherein or such petition, application, case or proceeding shall not have been dismissed within sixty (60) days following the filing or commencement thereof;
(hj) if a decree or order is entered appointing any such trustee, custodian, liquidator or receiver or adjudicating the Borrower or the Guarantor Borrower, Assignor or any Significant Subsidiary 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 any such Person, in each case of the Borrower or the Guarantor or any Significant Subsidiary foregoing in an involuntary case under federal bankruptcy laws of any jurisdiction as now or hereafter constituted;
(ik) if there shall remain in force, undischarged, unsatisfied and unstayed, for more than thirty 60 days, whether or not consecutive, any uninsured final judgment against the Borrower or any Subsidiary whichGuarantors that, with other outstanding uninsured final judgments judgments, undischarged, against the Borrower and its Subsidiaries, such Person exceeds (a) in the aggregate $50,000,000 after taking into account any undisputed insurance coverage;
10,000.00 with respect to Borrower or (jb) if, $10,000.00 with respect to any Guaranteed Pension Plan, an ERISA Reportable Event shall have occurred and the Banks shall have determined in their reasonable discretion that such event reasonably could be expected to result in liability of the Borrower or any Subsidiary to the PBGC or such Plan in an aggregate amount exceeding $50,000,000 and such event in the circumstances occurring reasonably could constitute grounds for the partial or complete termination of such Plan by the PBGC or for the appointment by the appropriate United States District Court of a trustee to administer such Plan; or a trustee shall have been appointed by the appropriate United States District Court to administer such Plan; or the PBGC shall have instituted proceedings to terminate such PlanGuarantor;
(kl) if any of the Loan Documents or any material provision of any Loan Documents shall be cancelledunenforceable, canceled, terminated, revoked or rescinded otherwise than in accordance with the terms thereof or with the express prior written agreement, consent or approval of the BanksLender, or any action at law, suit or in equity or other legal proceeding to make unenforceable, cancel, revoke or rescind any of the Loan Documents shall be commenced by or on behalf of the Borrower, the GuarantorAssignor, any Guarantor or any of their respective stockholdersholders of Voting Interests, 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 effect that, any one or more of the Loan Documents is illegal, invalid or unenforceable in accordance with the terms thereof; or;
(lm) if any person dissolution, termination, partial or group of persons (within the meaning of Section 13 complete liquidation, merger 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 25% or more of the outstanding shares of common voting stock consolidation of the Borrower; , Assignor or during any period Guarantor or any sale, transfer or other disposition of twelve consecutive calendar months, individuals who were directors the assets of the Borrower or any Guarantor other than as permitted under the terms of this Agreement or the other Loan Documents;
(n) any suit or proceeding shall be filed against Borrower, Assignor or any Guarantor or any of their respective assets which in the good faith business judgment of Lender after giving consideration to the likelihood of success of such suit or proceeding and the availability of insurance to cover any judgment with respect thereto and based on the first day information available to them, if adversely determined, would have a materially adverse affect on the ability of such period Person to perform each and every one of their respective material obligations under and by virtue of the Loan Documents;
(together o) Borrower, Assignor or any Guarantor shall be indicted for a federal crime, a punishment for which could include the forfeiture of any assets of such Person;
(p) a Change of Control shall occur without the prior written approval of Lender;
(q) with respect to any Guaranteed Pension Plan, an ERISA Reportable Event shall have occurred and Lender shall have determined in its reasonable discretion that such event reasonably could be expected to result in liability of Borrower, Assignor or any Guarantor or to the PBGC or such Guaranteed Pension Plan in an aggregate amount exceeding $100,000.00 and such event in the circumstances occurring reasonably could constitute grounds for the termination of such Guaranteed Pension Plan by the PBGC or for the appointment by the appropriate United States District Court of a trustee to administer such Guaranteed Pension Plan; or a trustee shall have been appointed by the United States District Court to administer such Plan; or the PBGC shall have instituted proceedings to terminate such Guaranteed Pension Plan;
(r) any Guarantor denies that it has any liability or obligation under the Guaranty, or shall notify Lender of such Guarantor’s intention to attempt to cancel or terminate the Guaranty, or shall fail to observe or comply with any new directors whose election term, covenant, condition or agreement under the Guaranty;
(s) any default or event of default, as defined in any of the other Loan Documents shall occur and continue to exist beyond any applicable grace or notice or cure period provided in such other Loan Documents;
(t) any material default by Borrower shall occur under any of the Basic Agreements, which is not cured within any applicable cure period, or any of the Basic Agreements are terminated or amended without obtaining the approval of Lender, if such board or whose nomination for election approval is required by the shareholders Loan Documents;
(u) the failure of Borrower to perform its obligations under the Purchase Option Agreement; then, and in any such event, Lender may, by notice in writing to Borrower was approved declare all amounts owing with respect to this Agreement, the Notes and the other Loan Documents to be, and they shall thereupon forthwith become, immediately due and payable without presentment, demand, protest or other notice of any kind, all of which are hereby expressly waived by a vote Borrower; provided that in the event of a majority any Event of the directors still Default specified in office who were either directors at the beginning §12.1(h), §12.1(i) or §12.1(j), all such amounts shall become immediately due and payable automatically and without any requirement of such period or whose election or nomination for election was previously so approved) shall cease to constitute a majority notice from any of the board of directors of the Borrower;Lender.
Appears in 2 contracts
Sources: Mezzanine Loan Agreement (Preferred Apartment Communities Inc), Mezzanine Loan Agreement (Preferred Apartment Communities Inc)
Events of Default and Acceleration. If any of the following events (“"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 or lapse of time, “"Defaults”") shall occur:
(a) if the Borrower shall fail to pay any principal of the Loans when 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;
(b) if the Borrower shall fail to pay any interest on the Loans or fees any other sums due hereunder or under any of the other amounts owing hereunder (other than those specified in subsection (a) above) Loan Documents within five (5) Business Days days after the same shall become due and payable whether at the Maturity Date or any accelerated date of maturity or at any other date fixed for paymentpayable;
(c) if the Borrower shall fail to comply with any of the its covenants contained in §§7.4ss.7.5, 7.5ss.7.6, 7.15ss.7.7, 7.16ss.7.8, 8 and 9 ss.8 or ss.9 hereof;
(d) if the Borrower shall fail to perform any other term, covenant or agreement contained herein or in any of the other Loan Documents (other than those specified elsewhere in subsections this ss.12) for thirty (a), (b), and (c30) above) and such failure shall not be remedied within 30 days after written notice of such failure shall have been given from Agent to the Borrower by the Administrative Agent or any of the BanksBorrower;
(e) if any representation or warranty contained of the Borrower in this Agreement or any of the other Loan Documents or in any other document or instrument delivered pursuant to or in connection with this Agreement Agreement, shall prove to have been false in any material respect upon the date when made or deemed to have been made or repeated, provided, however, that with respect to the representations and warranties of the Borrower contained in ss.6.18 and in paragraphs (a), (c), (d), (e) and (f) of ss.6.22, if the condition or event making the representation and warranty false is capable of being cured by the Borrower, no enforcement action has been commenced against the Borrower or the applicable Mortgaged Property on account of such condition or event nor is the applicable Mortgaged Property subject to risk of forfeiture due to such condition or event, and the Borrower promptly commences the cure thereof after the Borrower's first obtaining knowledge of such condition or event, the Borrower shall have a period of thirty (30) days after the date that the Borrower first obtained knowledge of such condition or event during which the Borrower may cure such condition or event (or, if such condition or event is not reasonably capable of being cured within such thirty (30) day period, such additional period of time as may be reasonably required in order to cure such condition or event but in any event such period shall not exceed six (6) months from the date that the Borrower first obtained knowledge of such condition or event), and no Event of Default shall exist hereunder during such thirty (30) day or additional period so long as the Borrower continuously and diligently pursues the cure of such condition or event and the other conditions to such cure period have not changed;
(f) if the Borrower Borrower, any of the Related Companies or any of its Subsidiaries Controlled Unconsolidated Entity shall fail to pay when dueat maturity, or within any applicable period of grace, any Indebtedness or obligations under Swap Contracts in an aggregate amount greater than $75,000,000Indebtedness, or shall fail to observe or perform any material term, covenant or agreement contained in any one or more agreements agreement by which it is bound, evidencing or securing any Indebtedness or obligations under Swap Contracts in an aggregate amount greater than $75,000,000 for such period of time as would permit, or would have permitted permit (assuming the giving of appropriate notice if required) the holder or holders thereof or of any obligations issued thereunder to accelerate the maturity thereof or terminate its commitment with respect thereto;
thereof, and in any event, such failure shall continue for thirty (g30) if days, unless the Borrower, aggregate amount of all such defaulted Indebtedness plus the Guarantor or any Significant Subsidiary makes an assignment for the benefit of creditors, or admits in writing its inability to pay or generally fails to pay its debts as they mature or become due, or petitions or applies for the appointment of a trustee or other custodian, liquidator or receiver of the Borrower, the Guarantor or any Significant Subsidiary, or amount of any substantial part of the assets of the Borrower, the Guarantor or any Significant Subsidiary or commences any case or other proceeding relating to the Borrower, the Guarantor or any Significant Subsidiary under any bankruptcy, reorganization, arrangement, insolvency, readjustment of debt, dissolution or liquidation or similar law of any jurisdiction, now or hereafter unsatisfied judgments described 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, the Guarantor or any Significant Subsidiary or the Borrower, the Guarantor or any Significant Subsidiary 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 Borrower or the Guarantor or any Significant Subsidiary 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 or the Guarantor or any Significant Subsidiary in an involuntary case under federal bankruptcy laws of any jurisdiction as now or hereafter constituted;
paragraph (i) if there shall remain in force, undischarged, unsatisfied and unstayed, for more of this ss.12.1 is less than thirty days, whether or not consecutive, any final judgment against the Borrower or any Subsidiary which, with other outstanding final judgments against the Borrower and its Subsidiaries, exceeds in the aggregate $50,000,000 after taking into account any undisputed insurance coverage5,000,000.00;
(j) if, with respect to any Guaranteed Pension Plan, an ERISA Reportable Event shall have occurred and the Banks shall have determined in their reasonable discretion that such event reasonably could be expected to result in liability of the Borrower or any Subsidiary to the PBGC or such Plan in an aggregate amount exceeding $50,000,000 and such event in the circumstances occurring reasonably could constitute grounds for the partial or complete termination of such Plan by the PBGC or for the appointment by the appropriate United States District Court of a trustee to administer such Plan; or a trustee shall have been appointed by the appropriate United States District Court to administer such Plan; or the PBGC shall have instituted proceedings to terminate such Plan;
(k) if 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 Banks, 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 or on behalf of the Borrower, the Guarantor, or any of their respective stockholders, 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 effect that, any one or more of the Loan Documents is illegal, invalid or unenforceable in accordance with the terms thereof; or
(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 25% or more of the outstanding shares of common voting stock of the Borrower; or during any period of twelve consecutive calendar months, individuals who were directors of the Borrower on the first day of such period (together with any new directors whose election by such board or whose nomination for election by the shareholders of the Borrower was approved by a vote of a majority of the directors still in office who were either directors at the beginning of such period or whose election or nomination for election was previously so approved) shall cease to constitute a majority of the board of directors of the Borrower;
Appears in 2 contracts
Sources: Term Loan Agreement (Amerivest Properties Inc), Revolving Credit Agreement (Amerivest Properties Inc)
Events of Default and Acceleration. If any of the following events (“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 or lapse of time, “Defaults”) shall occur:
(a) if the Borrower Issuer shall fail to pay any principal of the Loans Notes when 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;
(b) if the Borrower Issuer shall fail to pay any interest other sums due hereunder or fees or under any of the other amounts owing hereunder Purchase Documents, within three (other than those specified in subsection (a) above) within five (53) Business Days after of when the same shall become due and payable payable, whether at the Maturity Date stated date of maturity or any accelerated date of maturity or at any other date fixed for payment;
(ci) if the Borrower Issuer shall fail to comply with any of the its covenants contained in §9.2, §7.49.4, 7.5§9.5 (other than §9.5.5), 7.15§9.6(iii) through (vi), 7.16§9.9, 8 §9.17 (other than §9.17(b)(i), §9.17(b)(ii) and 9 hereof§9.17(d)(i)) or §10; or (ii) the Issuer, any Bridge to Sale Excluded Subsidiary, any Bridge to Sale License Subsidiary or any Affiliate thereof shall fail to comply with §9.17(b)(i), §9.17(b)(ii) or §9.17(d)(i) and such failure continues for fifteen (15) days;
(d) if the Borrower Issuer shall fail (i) to comply with §9.7 for ten (10) Business Days after written notice of such failure has been given to the Issuer by the Purchaser; or (ii) to perform any term, covenant or agreement contained herein or in any of the other Loan Purchase Documents (other than those specified elsewhere in subsections this §14.1) for thirty (a), (b), and (c30) above) and such failure shall not be remedied within 30 days after written notice of such failure shall have has been given to the Borrower Issuer by the Administrative Agent or any of the BanksPurchaser;
(e) if any representation or warranty contained of the Issuer in this Purchase Agreement or any of the other Purchase Documents or in any other document or instrument delivered pursuant to or in connection with this Purchase Agreement shall prove to have been false in any material respect upon the date when made or deemed to have been made or repeated;
(f) if the Borrower any Senior Debt Obligations or any obligation for borrowed money or credit received or in respect of its Subsidiaries shall fail to pay when due, or within any applicable period of grace, any Indebtedness or obligations under Swap Contracts Capitalized Leases in each case in an aggregate amount greater than $75,000,00010,000,000 shall be declared to be due and payable, or fail required to observe be prepaid other than by a regularly scheduled required prepayment or perform any material term, covenant or agreement contained in any one or more agreements by which it is bound, evidencing or securing any Indebtedness or obligations under Swap Contracts in an aggregate amount greater than $75,000,000 for such period of time as would permit, or would have permitted (assuming a mandatory prepayment prior to the giving of appropriate notice if required) the holder or holders thereof or of any obligations issued thereunder to accelerate the statement maturity thereof or terminate its commitment with respect theretothereof;
(g) if any of the BorrowerIssuer, any of the Guarantor Subsidiaries or any Significant Subsidiary makes the Austin Partnership or RAM, shall make an assignment for the benefit of creditors, or admits admit in writing its inability to pay or generally fails fail to pay its debts as they mature or become due, or petitions shall petition or applies apply for the appointment of a trustee or other custodian, liquidator or receiver of any of the BorrowerIssuer, any of the Guarantor Subsidiaries, or any Significant Subsidiarythe Austin Partnership or RAM, or of any substantial part of the assets of the Borrowerany such Person, the Guarantor or any Significant Subsidiary or commences shall commence any case or other proceeding relating to the Borrower, the Guarantor or any Significant Subsidiary such Person 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 shall take any action to authorize or in furtherance of any of the foregoing, or if any such petition or application is shall be filed or any such case or other proceeding is shall be commenced against any of the BorrowerIssuer, any Subsidiary, the Guarantor Austin Partnership or RAM, and any Significant Subsidiary or the Borrower, the Guarantor or any Significant Subsidiary indicates such Person shall indicate its approval thereof, consent thereto or acquiescence thereintherein or such petition or application shall not have been dismissed within sixty (60) days following the filing thereof;
(h) if a decree or order is entered appointing any such trustee, custodian, liquidator or receiver or adjudicating any of the Borrower Issuer, any Subsidiary, the Austin Partnership or the Guarantor or any Significant Subsidiary RAM, 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 or the Guarantor or any Significant Subsidiary such Person in an involuntary case under federal bankruptcy laws of any jurisdiction as now or hereafter constituted;
(i) if there shall remain in force, undischarged, unsatisfied and unstayed, for more than thirty (30) days, whether or not consecutive, any final judgment against any of the Borrower Issuer, any Subsidiary, the Austin Partnership or any Subsidiary whichRAM, that, with other outstanding final judgments judgments, undischarged, against the Borrower and its Subsidiaries, such Person exceeds in the aggregate $50,000,000 after taking into account any undisputed insurance coverage5,000,000;
(j) if, any default shall occur with respect to all or any Guaranteed Pension Plan, an ERISA Reportable Event shall have occurred and the Banks shall have determined in their reasonable discretion that such event reasonably could be expected to result in liability part of the Borrower Subordinated Debt or the holders of all or any Subsidiary part of the Subordinated Debt shall accelerate the maturity of all or any part of the Subordinated Debt; the Subordinated Debt shall be prepaid, redeemed or repurchased in whole or in part (other than pursuant to §10.4(d) of the PBGC OpCo Credit Agreement (as in effect on the date hereof)) or such Plan an offer to prepay, redeem or repurchase the Subordinated Debt in an aggregate amount exceeding $50,000,000 and such event whole or in the circumstances occurring reasonably could constitute grounds for the partial or complete termination of such Plan by the PBGC or for the appointment by the appropriate United States District Court of a trustee to administer such Plan; or a trustee part shall have been appointed made (other than pursuant to §10.4(d) of the OpCo Credit Agreement (as in effect on the date hereof)) or the subordination provisions of such Subordinated Debt are found by any court, or asserted by the appropriate United States District Court trustee in respect of, or any holder of, Subordinated Debt in a judicial proceeding to administer such Plan; be, invalid or the PBGC shall have instituted proceedings to terminate such Planunenforceable;
(k) if any of the Loan Purchase 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 BanksPurchaser, or any action or suit at law, suit law or in equity or other legal proceeding to cancel, revoke or rescind any of the Loan Purchase Documents shall be commenced by or on behalf of the Borrower, Issuer or any of the Guarantor, 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 determination that, or issue a judgment, order, decree or ruling to the effect that, any one or more of the Loan Purchase Documents is illegal, invalid or unenforceable in accordance with the terms thereof; or;
(l) if the Issuer or any person ERISA Affiliate incurs any liability to the PBGC or group a Guaranteed Pension Plan pursuant to Title IV of persons ERISA in an aggregate amount exceeding $5,000,000, or the Issuer or any ERISA Affiliate is assessed withdrawal liability pursuant to Title IV of ERISA by a Multiemployer Plan requiring aggregate annual payments exceeding $5,000,000, or any of the following occurs with respect to a Guaranteed Pension Plan: (i) an ERISA Reportable Event, or a failure to make a required installment or other payment (within the meaning of Section 13 or 14 §302(f)(1) of ERISA), provided that the Purchaser determines in its reasonable discretion that such event (A) could be expected to result in liability of the Securities Exchange Act Issuer or any of 1934its Subsidiaries to the PBGC or such Guaranteed Pension Plan in an aggregate amount exceeding $5,000,000 and (B) is reasonably likely to constitute grounds for the termination of such Guaranteed Pension Plan by the PBGC, as amendedfor the appointment by the appropriate United States District Court of a trustee to administer such Guaranteed Pension Plan or for the imposition of a lien in favor of such Guaranteed Pension Plan; or (ii) the appointment by a United States District Court of a trustee to administer such Guaranteed Pension Plan; or (iii) the institution by the PBGC of proceedings to terminate such Guaranteed Pension Plan;
(m) any of the Issuer, any Subsidiary, the Austin Partnership or RAM, shall be enjoined, restrained or in any way prevented by the order of any Governmental Authority from conducting any material part of its business and such order shall continue in effect for more than thirty (30) days, provided that with respect to any such order relating to the renewal or availability of any Necessary Authorization, if the issuance of such order would not otherwise constitute an Event of Default under §14.1(t), it shall not cause an Event of Default solely by virtue of meeting the criteria of this clause (m);
(n) there shall occur any strike, lockout, labor dispute, embargo, condemnation, act of God or public enemy, or other casualty, which in any such case causes, for more than fifteen (15) consecutive days, the cessation or substantial curtailment of revenue producing activities at any facility of the Issuer or any of its Subsidiaries if such event or circumstance is not covered by business interruption insurance and would have a Material Adverse Effect;
(o) there shall occur the loss, suspension or revocation of, or failure to renew, any license or permit now held or hereafter acquired by any of the Issuer, any Subsidiary, the Austin Partnership or RAM, if such loss, suspension, revocation or failure to renew would have a Material Adverse Effect;
(p) a Change of Control shall occur;
(q) any default or event of default shall occur under any documents entered into in connection with any Permitted Acquisition, which such default or event of default could reasonably be expected to have a Material Adverse Effect;
(r) [Reserved];
(s) the commencement of proceedings to suspend, revoke, terminate or substantially and adversely modify any material FCC License or other material license of any of the Issuer, any Subsidiary, the Austin Partnership or RAM, or of any Stations of any thereof, if such proceeding shall continue uncontested for forty-five (45) days;
(t) appropriate proceedings for the renewal of any material Necessary Authorization shall not be commenced prior to the expiration thereof or if such Necessary Authorization is not renewed or otherwise made available for the use of any of the Issuer, any Subsidiary, the Austin Partnership or RAM, provided that no Event of Default shall be deemed to occur under this clause (t) if (A) no Material Adverse Effect shall have acquired beneficial ownership occurred as a result of such event and (within B) the meaning of Rule 13d-3 promulgated by the Securities and Exchange Commission under said Act) of 25% or more Issuer shall have demonstrated compliance with §11 of the outstanding shares OpCo Credit Agreement (as in effect on the date hereof) on a “Pro Forma Basis” (as defined in the OpCo Credit Agreement (as in effect on the date hereof) and both before and after giving effect to such event) as though the affected Station had been sold in an Asset Sale as of common voting stock of the Borrower; or during any period of twelve consecutive calendar months, individuals who were directors of the Borrower on the first day of the Reference Period most recently ended and the Issuer, the Subsidiary, the Austin Partnership or RAM, (as applicable) received no consideration for such period sale;
(together u) any contractual obligation which is necessary to the broadcasting operations of any of the Issuer, any Subsidiary, the Austin Partnership or RAM, shall be revoked or terminated and not replaced by a substitute, without a Material Adverse Effect, within ninety (90) days after such revocation or termination;
(v) any order of the FCC relating to any Permitted Acquisition granting or consenting to a transfer of an FCC License in connection with any new directors whose election by Permitted Acquisition which has been completed shall not have become final and any Governmental Authority shall have entered an order reversing such board order (whether or whose nomination for election not such order shall be subject to further appeal);
(w) [Reserved];
(x) [Reserved];
(i) the Austin Partnership shall incur any Indebtedness in an aggregate amount at any one time outstanding in excess of $20,000,000 or (ii) the partnership agreement or any other governing documents relating to the Austin Partnership shall permit, after giving effect to any amendment, modification or waiver of the terms thereof, or there shall occur, any cash or other distribution (including any redemption, purchase, retirement or other acquisition of any partnership interests or return of capital attributable to any partnership interests) by the shareholders Austin Partnership to all or any of its partners which is not made simultaneously to all of its partners on a pro rata basis, in terms of both value and kind, in accordance with such partners’ proportional equity interests in the Austin Partnership; provided that it shall not be an Event of Default hereunder if the Issuer or any of its Subsidiaries receives any distribution in excess of their pro rata share as so determined or if the Issuer or any of its Subsidiaries receives any repayment of Indebtedness advanced by the Issuer or any of its Subsidiaries to the Austin Partnership;
(z) any Bridge to Sale Excluded Subsidiary or any Bridge to Sale License Subsidiary shall make an assignment for the benefit of creditors, or admit in writing its inability to pay or generally fail to pay its debts as they mature or become due, or shall petition or apply for the appointment of a trustee or other custodian, liquidator or receiver of any Bridge to Sale Excluded Subsidiary or any Bridge to Sale License Subsidiary or of any substantial part of the Borrower was approved by a vote assets of a majority such Person or shall commence any case or other proceeding relating to such Person 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 directors still foregoing, or if any such petition or application shall be filed or any such case or other proceeding shall be commenced against any Bridge to Sale Excluded Subsidiary or any Bridge to Sale License Subsidiary and such Person shall indicate its approval thereof, consent thereto or acquiescence therein or such petition or application shall not have been dismissed within sixty (60) days following the filing thereof;
(aa) a decree or order is entered appointing any such trustee, custodian, liquidator or receiver or adjudicating any Bridge to Sale Excluded Subsidiary or any Bridge to Sale License Subsidiary bankrupt or insolvent, or approving a petition in office who were either directors at any such case or other proceeding, or a decree or order for relief is entered in respect of any such Person in an involuntary case under federal bankruptcy laws as now or hereafter constituted; or
(bb) the beginning Issuer shall fail to issue a Note in accordance with §2. then, and in any such event, so long as the same may be continuing, the Purchaser may, by notice in writing to the Issuer declare all amounts owing with respect to this Purchase Agreement, the Notes and the other Purchase Documents to be, and they shall thereupon forthwith become, immediately due and payable without presentment, demand, protest or other notice of any kind, all of which are hereby expressly waived by the Issuer; provided that in the event of any Event of Default specified in §14.1(g) or §14.1(h), all such period or whose election or nomination for election was previously so approved) amounts shall cease to constitute a majority become immediately due and payable automatically and without any requirement of notice from the board of directors of the Borrower;Purchaser.
Appears in 2 contracts
Sources: Revolving Credit and Term Loan Agreement (Emmis Communications Corp), Note Purchase Agreement (Emmis Communications Corp)
Events of Default and Acceleration. If any of the following events (“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, “Defaults”) shall occur:
(a) if the Borrower shall fail to pay any principal of the Loans when 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;
(b) if the Borrower shall fail to pay any interest on the Loans, any reimbursement obligations with respect to the Letters of Credit or fees any other sums due hereunder or under any of the other amounts owing hereunder Loan Documents (other than those specified in subsection (aexcluding payments due under §12.1(a) above) within five (5) Business Days days after the same shall become due and payable whether payable, on any fixed date for payment or otherwise, provided however that such grace period shall not be applicable where any interest payment is due at the Maturity Date stated date of maturity or any accelerated date of maturity or at any other date fixed for paymentmaturity;
(c) if the Borrower shall fail to comply with the covenants contained in §7.5 (a) or §9.1 and, with respect to §9.1, such failure shall continue to exist after written notice thereof shall have been given to the Borrower by the Agent and the cure period provided in §12.2 shall have ended;
(d) the Borrower shall fail to comply with any of the covenants covenant contained in §9.3 through §7.49.11 and such failure shall continue for thirty (30) days after written notice thereof shall have been given to the Borrower by the Agent, 7.5except that, 7.15notwithstanding anything to the contrary contained herein, 7.16, 8 and 9 hereof;any failure to comply with the covenant contained in §9.9 shall be an immediate default with no notice or cure period hereunder.
(de) if the Borrower shall fail to perform any other term, covenant or agreement contained herein or in any of the other Loan Documents which they are required to perform (other than those specified in subsections (a), (b), and (c) abovethe other subclauses of this §12 or in the other Loan Documents) and shall fail to remedy such failure shall not be remedied within 30 thirty (30) days after written notice of such failure thereof shall have been given to the Borrower by the Administrative Agent or any of the BanksAgent;
(ef) if any representation or warranty contained made by or on behalf of the Borrower or any of its Subsidiaries in this Agreement or any other Loan Document, or any report, certificate, financial statement, request for a Loan, Letter of Credit Request or in any other document or instrument delivered pursuant to or in connection with this Agreement Agreement, any advance of a Loan, the issuance of any Letter of Credit or any of the other Loan Documents, other than constituting or based upon Third Party Information on which Borrower or any of its Subsidiaries relied and had no knowledge or reason to believe was untrue in any material respect, shall prove to have been false in any material respect upon the date when made or deemed to have been made or repeated;; notwithstanding anything to the contrary contained in this provision, the Borrower shall have a period of thirty (30) days to cure any unintentional inaccuracy or misrepresentation .
(fg) if any of the Borrower or any of its Subsidiaries (i) shall fail to pay when dueat maturity, or within any applicable period of grace, any Indebtedness obligation for borrowed money or obligations under Swap Contracts in an aggregate amount greater than $75,000,000credit received or other Indebtedness, or (ii) shall fail to observe or perform any material term, covenant or agreement contained in any one or more agreements agreement by which it is bound, evidencing or securing any obligation for borrowed money or credit received or other Indebtedness or obligations under Swap Contracts in an aggregate amount greater than $75,000,000 for such period of time as would permit, or would have permitted permit (assuming the giving of appropriate notice if required) the holder or holders thereof or of any obligations issued thereunder to accelerate the maturity thereof thereof; provided that the events described in this §12.1(g) shall not constitute an Event of Default unless such failure to perform, together with other failures to perform as described in this §12.1(g), involve singly or terminate its commitment with respect theretoin the aggregate obligations for borrowed money or credit received totaling in excess of $5,000,000.00;
(gh) if any of the Borrower, the Guarantor Borrower or any Significant Subsidiary makes of its Subsidiaries, (i) shall make an assignment for the benefit of creditors, or admits admit in writing its general inability to pay or generally fails fail to pay its debts as they mature or become due, or petitions shall petition or applies apply for the appointment of a trustee or other custodian, liquidator or receiver of the Borrower, the Guarantor for it or any Significant Subsidiary, or of any substantial part of the assets of the Borrowerits assets, the Guarantor or any Significant Subsidiary or commences (ii) shall commence any case or other proceeding relating to the Borrower, the Guarantor or any Significant Subsidiary it 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 (iii) shall take any action to authorize or in furtherance of any of the foregoing, or if any such ;
(i) a petition or application is shall be filed for the appointment of a trustee or other custodian, liquidator or receiver of any of the Borrower or any such of its Subsidiaries or any substantial part of the assets of any thereof, or a case or other proceeding is shall be commenced against the Borrowerany such Person under any bankruptcy, the Guarantor reorganization, arrangement, insolvency, readjustment of debt, dissolution or liquidation or similar law of any Significant Subsidiary jurisdiction, now or the Borrowerhereafter in effect, the Guarantor or and any Significant Subsidiary indicates such Person shall indicate its written approval thereof, written consent thereto or written acquiescence thereintherein or such petition, application, case or proceeding shall not have been dismissed within sixty (60) days following the filing or commencement thereof;
(hj) if a decree or order is entered appointing any such a trustee, custodian, liquidator or receiver or adjudicating for any of the Borrower or the Guarantor any of its Subsidiaries or adjudicating any Significant Subsidiary such Person, 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 or the Guarantor or any Significant Subsidiary such Person in an involuntary case under federal bankruptcy laws of any jurisdiction as now or hereafter constituted;
(ik) if there shall remain in force, undischarged, unsatisfied and unstayed, for more than thirty sixty (60) days, whether or not consecutive, any final judgment against the Borrower one or any Subsidiary which, with other outstanding more uninsured or unbonded final judgments against the Borrower and its Subsidiaries, exceeds in the aggregate $50,000,000 after taking into account any undisputed insurance coverage;
(j) if, with respect to any Guaranteed Pension Plan, an ERISA Reportable Event shall have occurred and the Banks shall have determined in their reasonable discretion that such event reasonably could be expected to result in liability of the Borrower or any Subsidiary to the PBGC of its Subsidiaries that, either individually or such Plan in an aggregate amount exceeding $50,000,000 and such event in the circumstances occurring reasonably could constitute grounds for the partial or complete termination of such Plan by the PBGC or for the appointment by the appropriate United States District Court of a trustee to administer such Plan; or a trustee shall have been appointed by the appropriate United States District Court to administer such Plan; or the PBGC shall have instituted proceedings to terminate such Planaggregate, exceed $1,000,000;
(kl) if any of the Loan Documents shall be cancelledcanceled, terminated, revoked or rescinded otherwise than in accordance with the terms thereof or with the express prior written agreement, consent or approval of the BanksLenders, 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 or on behalf of any of the Borrower, the Guarantor, or any of their respective stockholders, or any court or any other governmental or regulatory authority or agency of competent jurisdiction shall make a determination thatdetermination, or issue a judgment, order, decree or ruling ruling, to the effect that, that any one or more of the Loan Documents is illegal, invalid or unenforceable in accordance with the terms thereof;
(m) any dissolution, termination, liquidation of all or substantially all of the assets, merger or consolidation of any of the Borrower shall occur unless Borrower is the surviving entity, or any sale, transfer or other disposition of all or substantially all of the assets, measured either by value or quantity, of any of the Borrower shall occur, in each case other than as permitted under the terms of this Agreement or the other Loan Documents;
(n) with respect to any Guaranteed Pension Plan, an ERISA Reportable Event shall have occurred and the Required Lenders shall have determined in their reasonable discretion that such event reasonably could be expected to result in liability of any of the Borrower or any of its Subsidiaries to the PBGC or such Guaranteed Pension Plan in an aggregate amount exceeding $2,000,000 and such event in the circumstances occurring reasonably could constitute grounds for the termination of such Guaranteed Pension Plan by the PBGC or for the appointment by the appropriate United States District Court of a trustee to administer such Guaranteed Pension Plan; or a trustee shall have been appointed by the United States District Court to administer such Plan; or the PBGC shall have instituted proceedings to terminate such Guaranteed Pension Plan;
(o) EPR shall cease at any time to qualify as a real estate investment trust under the Code and/or Borrower-SPE shall fail to be a Special Purpose Entity;
(p) the Borrower-SPE, EPR or any of its Subsidiaries or any Person so connected with any of them shall be indicted for a federal crime, a punishment for which could include the forfeiture of (i) any assets of Borrower-SPE, EPR or any of its Subsidiaries which in the good faith judgment of the Required Lenders could have a Material Adverse Effect, or (ii) the Borrowing Base Properties;
(q) any Change in Control shall occur with respect to any Borrower; or
(lr) if an event of default, however defined, under any person or group of persons (within the meaning of Section 13 or 14 of the Securities Exchange Act of 1934other Loan Documents shall occur; then, as amended) shall have acquired beneficial ownership (within and in any such event, the meaning of Rule 13d-3 promulgated by Agent may, and upon the Securities and Exchange Commission under said Act) of 25% or more request of the outstanding shares Required Lenders shall, by notice in writing to the Borrower terminate the Facility and/or declare all amounts owing with respect to this Agreement, the Notes, the Letters of common voting stock Credit and the other Loan Documents (including prepayment penalties or yield maintenance fees) to be, and they shall thereupon forthwith become, 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 §12.1(h), §12.1(i) or during §12.1(j), all such amounts shall become immediately due and payable automatically and without any period requirement of twelve consecutive calendar monthspresentment, individuals who were directors demand, protest or other notice of any kind from any of the Lenders or the Agent. Upon demand by Agent or the Required Lenders in their absolute and sole discretion after the occurrence of an Event of Default, and regardless of whether the conditions precedent in this Agreement for a Revolving Credit Loan have been satisfied, the Lenders will cause a Revolving Credit Loan to be made in the undrawn amount of all Letters of Credit. The proceeds of any such Revolving Credit Loan will be pledged to and held by Agent as security for any amounts that become payable under the Letters of Credit and all other Obligations. In the alternative, if demanded by Agent in its absolute and sole discretion after the occurrence of an Event of Default, Borrower on will deposit with and pledge to Agent cash in an amount equal to the first day amount of all undrawn Letters of Credit. Such amounts will be pledged to and held by Agent for the benefit of the Lenders as security for any amounts that become payable under the Letters of Credit and all other Obligations. Upon any draws under Letters of Credit, at Agent’s sole discretion, Agent may apply any such amounts to the repayment of amounts drawn thereunder and upon the expiration of the Letters of Credit any remaining amounts will be applied to the payment of all other Obligations or if there are no outstanding Obligations and Lenders have no further obligation to make Revolving Credit Loans or issue Letters of Credit or if such excess no longer exists, such proceeds deposited by Borrower will be released to Borrower. If at any time the aggregate amount of funds pledged to Agent as collateral for such Letters of Credit shall exceed one hundred percent (100%) of the aggregate face amount of all amounts available to be drawn under such Letters of Credit (including any amounts that may be reinstated thereunder), Agent shall release the amount of such period (together with any new directors whose election by such board or whose nomination for election excess deposited by the shareholders Borrower to the Borrower. Notwithstanding anything to the contrary contained herein, the occurrence of any one of the Borrower was approved aforementioned terms or conditions in this §12.1, shall be, prior to the giving of any applicable notice or grace period, and until the same is cured as permitted by this Agreement, a vote of a majority of the directors still in office who were either directors at the beginning of such period or whose election or nomination for election was previously so approved) shall cease to constitute a majority of the board of directors of the Borrower;“Default.”
Appears in 2 contracts
Sources: Master Credit Agreement (Entertainment Properties Trust), Master Credit Agreement (Entertainment Properties Trust)
Events of Default and Acceleration. If any of the following events (“"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, “"Defaults”") shall occur:
(a) if the Borrower shall fail to pay any principal of the Loans when 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;
(b) if the Borrower shall fail to pay any interest or fees or other amounts owing hereunder (other than those specified in subsection (a) above) within five (5) Business Days after the same shall become due and payable whether at the Maturity Date or any accelerated date of maturity or at any other date fixed for payment;
(c) if the Borrower shall fail to comply with any of the covenants contained in §§7.4, 7.5, 7.15, 7.16Sections 7, 8 and 9 hereof;
(d) if the Borrower shall fail to perform any term, covenant or agreement contained herein or in any of the other Loan Documents (other than those specified in subsections (a), (b), and (c) above) and such failure shall not be remedied within 30 days after written notice of such failure shall have been given to the Borrower by the Administrative Agent or any of the Banks;
(e) if any representation or warranty contained in this Agreement or in any document or instrument delivered pursuant to or in connection with this Agreement shall prove to have been false in any material respect upon the date when made or repeated;
(f) if the Borrower or any of its Subsidiaries shall fail to pay when due, or within any applicable period of grace, any Indebtedness or obligations under Swap Contracts in an aggregate amount greater than $75,000,00050,000,000, or fail to observe or perform any material term, covenant or agreement contained in any one or more agreements by which it is bound, evidencing or securing any Indebtedness or obligations under Swap Contracts in an aggregate amount greater than $75,000,000 50,000,000 for such period of time as would permitwould, or would have permitted (assuming the giving of appropriate notice if required) the holder or holders thereof or of any obligations issued thereunder to accelerate the maturity thereof or terminate its commitment with respect thereto;
(g) if the Borrower, the any Guarantor or any Significant Material Subsidiary makes an assignment for the benefit of creditors, or admits in writing its inability to pay or generally fails to pay its debts as they mature or become due, or petitions or applies for the appointment of a trustee or other custodian, liquidator or receiver of the Borrower, the Guarantor Guarantors or any Significant Material Subsidiary, or of any substantial part of the assets of the Borrower, the Guarantor Guarantors or any Significant Material Subsidiary or commences any case or other proceeding relating to the Borrower, the Guarantor Guarantors or any Significant Material Subsidiary 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, the Guarantor Guarantors or any Significant Material Subsidiary or the Borrower, the any Guarantor or any Significant Material Subsidiary 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 Borrower or the any Guarantor or any Significant Material Subsidiary 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 or the any Guarantor or any Significant Material Subsidiary in an involuntary case under federal bankruptcy laws of any jurisdiction as now or hereafter constituted, and such decree or order remains in effect for more than 30 days, whether or not consecutive;
(i) if there shall remain in force, undischarged, unsatisfied and unstayed, for more than thirty days, whether or not consecutive, any final judgment against the Borrower or any Subsidiary which, with other outstanding final judgments against the Borrower and its Subsidiaries, Subsidiaries exceeds in the aggregate $50,000,000 25,000,000 after taking into account any undisputed insurance coverage;
(j) if, with respect to any Guaranteed Pension PlanPlan (or any corresponding plan described in any Applicable Canadian Pension Legislation), an ERISA Reportable Event or similar event under Applicable Canadian Pension Legislation shall have occurred and the Banks shall have determined in their reasonable discretion that such event reasonably could be expected to result in liability of the Borrower or any Subsidiary to the PBGC or such similar Canadian authorities or the Plan in an aggregate amount exceeding $50,000,000 25,000,000 and such event in the circumstances occurring reasonably could constitute grounds for the partial or complete termination of such Plan by the PBGC or similar Canadian authorities or for the appointment by the appropriate United States District Court or Canadian Court of a trustee to administer such Plan; or a trustee shall have been appointed by the appropriate United States District Court or Canadian Court to administer such Plan; or the PBGC or similar Canadian authorities shall have instituted proceedings to terminate such Plan;
(k) if 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 Banks, 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 or on behalf of the Borrower, the any Guarantor, or any of their respective stockholders, 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 effect that, any one or more of the Loan Documents is illegal, invalid or unenforceable in accordance with the terms thereof; or
(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 25% or more of the outstanding shares of common voting stock of the Borrower; or during any period of twelve consecutive calendar months, individuals who were directors of the Borrower on the first day of such period (together with any new directors whose election by such board or whose nomination for election by the shareholders of the Borrower was approved by a vote of a majority of the directors still in office who were either directors at the beginning of such period or whose election or nomination for election was previously so approved) shall cease to constitute a majority of the board of directors of the Borrower;; then, and in any such event, so long as the same may be continuing, the Administrative Agent may, and upon the request of the Majority Banks shall, by notice in writing to the Borrower, declare all amounts owing with respect to this Agreement, the Notes and the other Loan Documents and all Reimbursement Obligations to be, and they shall thereupon forthwith become, immediately due and payable without presentment, demand, protest, notice of intent to accelerate, notice of acceleration to the extent permitted by law 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 12.1(g) or 12.1(h), all such amounts shall become immediately due and payable automatically and without any requirement of notice from the Administrative Agent or any Bank. Upon demand by the Majority Banks after the occurrence of any Event of Default, the Borrower shall immediately provide to the Administrative Agent cash in an amount equal to the aggregate Maximum Drawing Amount to be held by the Administrative Agent as collateral security for the Reimbursement Obligations.
Appears in 2 contracts
Sources: Quarterly Report, Revolving Credit Agreement (Waste Management Inc)
Events of Default and Acceleration. If any of the following events (“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 or lapse of time, “Defaults”) shall occur:
(a) if the Borrower shall fail to pay any principal of the Loans or any Reimbursement Obligation when 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;
(b) if the Borrower or any of its Subsidiaries shall fail to pay any interest or fees on the Loans, any Fees, or other amounts owing sums due hereunder or under any of the other Loan Documents, within three (other than those specified in subsection (a) above) within five (53) Business Days after of when the same shall become due and payable payable, whether at the Maturity Date stated date of maturity or any accelerated date of maturity or at any other date fixed for payment;
(c) if (i) the Borrower Parent or the Borrower, as applicable, shall fail to comply with any of the its covenants contained in §9.2, §7.49.4, 7.5§9.5 (other than §9.5.5 and §9.5.6), 7.15§9.6(iii) through (vi), 7.16§9.9, 8 §9.12, §9.15, §9.17 (other than §9.17(b)(i), §9.17 (b)(ii) and 9 hereof§9.17 (d)(i)), §▇▇ ▇▇ §▇▇ after the expiration of any applicable period; or (ii) the Parent, the Borrower, any Bridge to Sale Excluded Subsidiary, any Bridge to Sale License Subsidiary or any Affiliate thereof shall fail to comply with §9.17(b)(i), §9.17 (b)(ii) or §9.17(d)(i) and such failure continues for fifteen (15) days;
(d) if the Borrower or any of its Subsidiaries shall fail (i) to comply with §9.7 for ten (10) Business Days after written notice of such failure has been given to the Borrower by the Administrative Agent; or (ii) to perform any term, covenant or agreement contained herein or in any of the other Loan Documents (other than those specified elsewhere in subsections this §14.1) for thirty (a), (b), and (c30) above) and such failure shall not be remedied within 30 days after written notice of such failure shall have has been given to the Borrower by the Administrative Agent or any of the BanksAgent;
(e) if any representation or warranty contained of the Parent, the Borrower or any of the Subsidiaries in this Credit Agreement or any of the other Loan Documents or in any other document or instrument delivered pursuant to or in connection with this Credit Agreement shall prove to have been false in any material respect upon the date when made or deemed to have been made or repeated;
(f) if the Borrower or any of its Subsidiaries the Parent, the Borrower, any Subsidiary, the Austin Partnership or RAM, shall fail to pay when dueat maturity, or within any applicable period of grace, any Indebtedness obligation for borrowed money or obligations under Swap Contracts credit received or in respect of any Capitalized Leases in each case in an aggregate amount greater than $75,000,0005,000,000, or fail to observe or perform any material term, covenant or agreement contained in any one or more agreements agreement by which it is bound, evidencing or securing borrowed money or credit received or in respect of any Indebtedness or obligations under Swap Contracts Capitalized Leases in each case in an aggregate amount greater than $75,000,000 5,000,000 for such period of time as would permit, or would have permitted permit (assuming the giving of appropriate notice if required) the holder or holders thereof or of any obligations issued thereunder to accelerate the maturity thereof thereof, or terminate its commitment with respect theretoany such holder or holders shall rescind or shall have a right to rescind the purchase of any such obligations;
(g) if any of the Parent, the Borrower, any of the Guarantor Subsidiaries or any Significant Subsidiary makes the Austin Partnership or RAM, shall make an assignment for the benefit of creditors, or admits admit in writing its inability to pay or generally fails fail to pay its debts as they mature or become due, or petitions shall petition or applies apply for the appointment of a trustee or other custodian, liquidator or receiver of any of the Parent, the Borrower, any of the Guarantor Subsidiaries, or any Significant Subsidiarythe Austin Partnership or RAM, or of any substantial part of the assets of the Borrowerany such Person, the Guarantor or any Significant Subsidiary or commences shall commence any case or other proceeding relating to the Borrower, the Guarantor or any Significant Subsidiary such Person 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 shall take any action to authorize or in furtherance of any of the foregoing, or if any such petition or application is shall be filed or any such case or other proceeding is shall be commenced against any of the Parent, the Borrower, the Guarantor or any Significant Subsidiary or the BorrowerSubsidiary, the Guarantor Austin Partnership or RAM, and any Significant Subsidiary indicates such Person shall indicate its approval thereof, consent thereto or acquiescence thereintherein or such petition or application shall not have been dismissed within sixty (60) days following the filing thereof;
(h) if a decree or order is entered appointing any such trustee, custodian, liquidator or receiver or adjudicating any of the Borrower Parent, the Borrower, any Subsidiary, the Austin Partnership or the Guarantor or any Significant Subsidiary RAM, 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 or the Guarantor or any Significant Subsidiary such Person in an involuntary case under federal bankruptcy laws of any jurisdiction as now or hereafter constituted;
(i) if there shall remain in force, undischarged, unsatisfied and unstayed, for more than thirty (30) days, whether or not consecutive, any final judgment against any of the Borrower Parent, the Borrower, any Subsidiary, the Austin Partnership or any Subsidiary whichRAM, that, with other outstanding final judgments judgments, undischarged, against the Borrower and its Subsidiaries, such Person exceeds in the aggregate $50,000,000 after taking into account any undisputed insurance coverage5,000,000;
(j) if, any default shall occur with respect to all or any Guaranteed Pension Plan, an ERISA Reportable Event shall have occurred and the Banks shall have determined in their reasonable discretion that such event reasonably could be expected to result in liability part of the Borrower Subordinated Debt or the holders of all or any Subsidiary part of the Subordinated Debt shall accelerate the maturity of all or any part of the Subordinated Debt; the Subordinated Debt shall be prepaid, redeemed or repurchased in whole or in part (other than pursuant to §10.4(d)) or an offer to prepay, redeem or repurchase the PBGC Subordinated Debt in whole or such Plan in an aggregate amount exceeding $50,000,000 and such event in the circumstances occurring reasonably could constitute grounds for the partial or complete termination of such Plan by the PBGC or for the appointment by the appropriate United States District Court of a trustee to administer such Plan; or a trustee part shall have been appointed made (other than pursuant to §10.4(d)) or the subordination provisions of such Subordinated Debt are found by any court, or asserted by the appropriate United States District Court trustee in respect of, or any holder of, Subordinated Debt in a judicial proceeding to administer such Plan; be, invalid or the PBGC shall have instituted proceedings to terminate such Planunenforceable;
(k) if any of the Loan Documents shall be cancelled, terminated, revoked or rescinded or the Administrative Agent’s security interests, mortgages or liens in a material portion of the Collateral shall cease to be perfected, or shall cease to have the priority contemplated by the Security Documents otherwise than in accordance with the terms thereof with respect to the release of any Collateral or in each case with the express prior written agreement, consent or approval of the BanksLenders, or any action or suit at law, suit law or 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 BorrowerParent, the Guarantor, Borrower or any of the 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 determination that, or issue a judgment, order, decree or ruling to the effect that, any one or more of the Loan Documents is illegal, invalid or unenforceable in accordance with the terms thereof; or;
(l) if the Borrower or any person ERISA Affiliate incurs any liability to the PBGC or group a Guaranteed Pension Plan pursuant to Title IV of persons ERISA in an aggregate amount exceeding $5,000,000, or the Borrower or any ERISA Affiliate is assessed withdrawal liability pursuant to Title IV of ERISA by a Multiemployer Plan requiring aggregate annual payments exceeding $5,000,000, or any of the following occurs with respect to a Guaranteed Pension Plan: (i) an ERISA Reportable Event, or a failure to make a required installment or other payment (within the meaning of Section 13 or 14 §302(f)(1) of ERISA), provided that the Administrative Agent determines in its reasonable discretion that such event (A) could be expected to result in liability of the Securities Exchange Act Borrower or any of 1934, as amendedits Subsidiaries to the PBGC or such Guaranteed Pension Plan in an aggregate amount exceeding $5,000,000 and (B) shall have acquired beneficial ownership (within is reasonably likely to constitute grounds for the meaning termination of Rule 13d-3 promulgated such Guaranteed Pension Plan by the Securities and Exchange Commission under said ActPBGC, for the appointment by the appropriate United States District Court of a trustee to administer such Guaranteed Pension Plan or for the imposition of a lien in favor of such Guaranteed Pension Plan; or (ii) the appointment by a United States District Court of 25% a trustee to administer such Guaranteed Pension Plan; or more (iii) the institution by the PBGC of the outstanding shares of common voting stock proceedings to terminate such Guaranteed Pension Plan;
(m) any of the Borrower; , any Subsidiary, the Austin Partnership or during RAM, shall be enjoined, restrained or in any period way prevented by the order of twelve any Governmental Authority from conducting any material part of its business and such order shall continue in effect for more than thirty (30) days, provided that with respect to any such order relating to the renewal or availability of any Necessary Authorization, if the issuance of such order would not otherwise constitute an Event of Default under §14.1(t), it shall not cause an Event of Default solely by virtue of meeting the criteria of this clause (m);
(n) there shall occur any material damage to, or loss, theft or destruction of, any Collateral, whether or not insured, or any strike, lockout, labor dispute, embargo, condemnation, act of God or public enemy, or other casualty, which in any such case causes, for more than fifteen (15) consecutive calendar monthsdays, individuals who were directors the cessation or substantial curtailment of revenue producing activities at any facility of the Borrower or any of its Subsidiaries if such event or circumstance is not covered by business interruption insurance and would have a Material Adverse Effect;
(o) there shall occur the loss, suspension or revocation of, or failure to renew, any license or permit now held or hereafter acquired by any of the Borrower, any Subsidiary, the Austin Partnership or RAM, if such loss, suspension, revocation or failure to renew would have a Material Adverse Effect;
(p) a Change of Control shall occur;
(q) any default or event of default shall occur under any documents entered into in connection with any Permitted Acquisition, which such default or event of default could reasonably be expected to have a Material Adverse Effect;
(r) at any time, any of the Subsidiaries or Excluded Subsidiaries shall provide a guaranty of the Borrower’s obligations under any Subordinated Debt if such subsidiary is not at such time guarantying the Obligations pursuant to the Guaranty or if such guaranty of the Borrower’s obligations under such other Subordinated Debt, as applicable, is not subordinated to such subsidiary’s Obligations under the Guaranty;
(s) the commencement of proceedings to suspend, revoke, terminate or substantially and adversely modify any material FCC License or other material license of any of the Borrower, any Subsidiary, the Austin Partnership or RAM, or of any Stations of any thereof, if such proceeding shall continue uncontested for forty-five (45) days;
(t) appropriate proceedings for the renewal of any material Necessary Authorization shall not be commenced prior to the expiration thereof or if such Necessary Authorization is not renewed or otherwise made available for the use of any of the Borrower, any Subsidiary, the Austin Partnership or RAM, provided that no Event of Default shall be deemed to occur under this clause (t) if (A) no Material Adverse Effect shall have occurred as a result of such event and (B) the Borrower shall have demonstrated compliance with §11 on a Pro Forma Basis (both before and after giving effect to such event) as though the affected Station had been sold in an Asset Sale as of the first day of the Reference Period most recently ended and the Borrower, the Subsidiary, the Austin Partnership or RAM, (as applicable) received no consideration for such period sale;
(together with u) any new directors whose election by such board or whose nomination for election by contractual obligation which is necessary to the shareholders broadcasting operations of the Borrower was approved by a vote of a majority of the directors still in office who were either directors at the beginning of such period or whose election or nomination for election was previously so approved) shall cease to constitute a majority of the board of directors any of the Borrower, any Subsidiary, the Austin Partnership or RAM, shall be revoked or terminated and not replaced by a substitute, without a Material Adverse Effect, within ninety (90) days after such revocation or termination;
(v) any order of the FCC relating to any Permitted Acquisition granting or consenting to a transfer of an FCC License in connection with any Permitted Acquisition which has been completed shall not have become final and any Governmental Authority shall have entered an order reversing such order (whether or not such order shall be subject to further appeal);
Appears in 2 contracts
Sources: Revolving Credit and Term Loan Agreement (Emmis Communications Corp), Revolving Credit and Term Loan Agreement (Emmis Communications Corp)
Events of Default and Acceleration. If any of the following events (each an “Events Event of Default” or, if the giving of notice or the lapse of time or both is required, then, prior to such notice and/or or lapse of time, each a “DefaultsDefault”) shall occur:
(a) if the Borrower Borrowers shall fail to pay any principal of the Revolving Credit Loans or any Reimbursement Obligation when 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;
(b) if the Borrower Borrowers shall fail to pay any interest or fees on the Revolving Credit Loans, any Fees, or other amounts owing sums due hereunder or under any of the other Loan Documents, within two (other than those specified in subsection (a) above) within five (52) Business Days after the same shall become due and payable payable, whether at the Maturity Date stated date of maturity or any accelerated date of maturity or at any other date fixed for payment;
(c) if any of the Borrower Borrowers (i) shall fail to comply with any of the its covenants contained in §§7.4§ 9.5, 7.59.7, 7.159.9, 7.169.12, 8 and 9 hereof9.13, 10 or 11 or the first sentence of § 9.6, or (ii) shall fail to comply with its covenants contained in § 9.4 for a period in excess of five (5) days;
(d) if the Parent, any Borrower or any of its Subsidiaries shall fail to perform any term, covenant or agreement contained herein or in any of the other Loan Documents (other than those specified elsewhere in subsections this § 14.1) for thirty (a), (b), and (c30) above) and such failure shall not be remedied within 30 days after written notice of such failure shall have has been given to the Parent or such Borrower by the Administrative Agent Agent, or any of if such failure is not susceptible to cure within such 30-day period, the Banksapplicable Parent, Borrower or Subsidiary fails to commence to cure within the 30-day period and to continuously and diligently pursues such cure thereafter;
(e) if any representation or warranty contained of a Parent, any Borrower or any of its Subsidiaries in this Credit Agreement or any of the other Loan Documents or in any other document or instrument delivered pursuant to or in connection with this Credit Agreement shall prove to have been false in any material respect upon the date when made or deemed to have been made or repeated;
(f) if the (i) a Parent, any Borrower or any of its Subsidiaries shall (A) fail to pay when dueat maturity, or within any applicable period of grace, any Indebtedness obligation for borrowed money or obligations under Swap Contracts credit received or in respect of any Capitalized Leases in an aggregate amount greater than in excess of $75,000,0002,000,000, or (B) fail to observe or perform any material term, covenant or agreement contained in any one or more agreements agreement by which it is bound, evidencing or securing borrowed money or credit received or in respect of any Indebtedness or obligations under Swap Contracts Capitalized Leases in an aggregate amount greater than in excess of $75,000,000 2,000,000 for such period of time as would permit, or would have permitted permit (assuming the giving of appropriate notice if required) the holder or holders thereof or of any obligations issued thereunder to accelerate the maturity thereof thereof, or terminate any such holder or holders shall rescind or shall have a right to rescind the purchase of any such obligations, or (ii) any Indebtedness in an aggregate amount in excess of $2,000,000 of a Parent, any Borrower or any of its commitment with respect theretoSubsidiaries shall be declared due and payable or be required to be prepaid prior to a regularly scheduled maturity date or amortization payment date;
(g) if the Borrowera Parent, the Guarantor any Borrower or any Significant Subsidiary makes of its Subsidiaries shall make an assignment for the benefit of creditors, or admits admit in writing its inability to pay or generally fails fail to pay its debts as they mature or become due, or petitions shall petition or applies apply for the appointment of a trustee or other custodian, liquidator or receiver of the Borrowersuch Parent, the Guarantor such Borrower or any Significant Subsidiary, of its Subsidiaries or of any substantial part of the assets of the Borrowersuch Parent, the Guarantor such Borrower or any Significant Subsidiary of its Subsidiaries or commences shall commence any case or other proceeding relating to the Borrowersuch Parent, the Guarantor such Borrower or any Significant Subsidiary of 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 shall take any action to authorize or in furtherance of any of the foregoing, or if any such petition or application is shall be filed or any such case or other proceeding is shall be commenced against the Borrowersuch Parent, the Guarantor such Borrower or any Significant Subsidiary or the Borrowerof its Subsidiaries and such Parent, the Guarantor such Borrower or any Significant Subsidiary indicates of its Subsidiaries shall indicate its approval thereof, consent thereto or acquiescence thereintherein or such petition or application shall not have been dismissed within forty-five (45) days following the filing thereof;
(h) if a decree or order is entered appointing any such trustee, custodian, liquidator or receiver or adjudicating the a Parent, any Borrower or the Guarantor or any Significant Subsidiary of 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 in respect of the a Parent, any Borrower or the Guarantor or any Significant Subsidiary of its Subsidiaries in an involuntary case under federal bankruptcy laws of any jurisdiction as now or hereafter constituted;
(i) If the Canadian Borrower or any Canadian Subsidiary of a Borrower shall:
(i) commit an act of bankruptcy under the Bankruptcy and Insolvency Act (Canada), or makes an assignment of its property for the general benefit of its creditors under such Act, or makes a proposal (or files a notice of its intention to do so) under such Act; or
(ii) institute any proceeding seeking to adjudicate it an insolvent, or seeking liquidation, dissolution, winding-up, reorganization, compromise, arrangement, adjustment, protection, moratorium, relief, stay of proceedings of creditors generally (or any class of creditors), or composition of it or its debts or any other relief, under any federal, provincial or foreign law now or hereafter in effect relating to bankruptcy, winding-up, insolvency, reorganization, receivership, plans of arrangement or relief or protection of debtors (including the Bankruptcy and Insolvency Act (Canada), the Companies’ Creditors Arrangement Act (Canada) and any applicable corporations legislation) or at common law or in equity, or files an answer admitting the material allegations of a petition filed against it in any such proceeding;
(j) In respect of the Canadian Borrower or any Canadian Subsidiary of a Borrower, any petition is filed, application made or other proceeding instituted against or in respect of such Person:
(i) seeking to adjudicate it an insolvent;
(ii) seeking a receiving order against it under the Bankruptcy and Insolvency Act (Canada); or
(iii) seeking liquidation, dissolution, winding-up, reorganization, compromise, arrangement, adjustment, protection, moratorium, relief, stay of proceedings of creditors generally (or any class of creditors), or composition of it or its debts or any other relief under any federal, provincial or foreign law now or hereafter in effect relating to bankruptcy, winding-up, insolvency, reorganization, receivership, plans of arrangement or relief or protection of debtors (including the Bankruptcy and Insolvency Act (Canada), the Companies’ Creditors Arrangement Act (Canada) and any applicable corporations legislation) or at common law or in equity; and such petition, application or proceeding continues undismissed, or unstayed and in effect, for a period of 30 days after the institution thereof, provided that if an order, decree or judgment is granted or entered (whether or not entered or subject to appeal) against such Person thereunder in the interim, such grace period will cease to apply, and provided further that if such Person files an answer admitting the material allegations of a petition filed against it in any such proceeding, such grace period will cease to apply;
(k) there shall remain in force, undischarged, unsatisfied and unstayed, for more than thirty (30) days, whether or not consecutive, any final judgment against the a Parent, any Borrower or any Subsidiary whichof its Subsidiaries that, with other outstanding final judgments judgments, undischarged, against the Parent, any Borrower and or any of its Subsidiaries, Subsidiaries exceeds in the aggregate $50,000,000 after taking into account any undisputed insurance coverage2,000,000;
(j) if, with respect to any Guaranteed Pension Plan, an ERISA Reportable Event shall have occurred and the Banks shall have determined in their reasonable discretion that such event reasonably could be expected to result in liability of the Borrower or any Subsidiary to the PBGC or such Plan in an aggregate amount exceeding $50,000,000 and such event in the circumstances occurring reasonably could constitute grounds for the partial or complete termination of such Plan by the PBGC or for the appointment by the appropriate United States District Court of a trustee to administer such Plan; or a trustee shall have been appointed by the appropriate United States District Court to administer such Plan; or the PBGC shall have instituted proceedings to terminate such Plan;
(kl) if any of the Loan Documents shall be cancelled, terminated, revoked or rescinded or the Collateral 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 accordance with the terms thereof or with the express prior written agreement, consent or approval of the BanksLenders, 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 or on behalf of the Borrower, the Guarantor, any Credit Party or any of their respective stockholders, or any court or any other governmental or regulatory authority or agency Governmental Authority of competent jurisdiction shall make a determination that, or issue a judgment, order, decree or ruling to the effect that, any one or more of the Loan Documents is illegal, invalid or unenforceable in accordance with the terms thereof; or;
(lm) if any person Credit Party incurs any liability to the PBGC or group a Guaranteed Pension Plan pursuant to Title IV of persons ERISA in an aggregate amount exceeding $2,000,000, or any Credit Party is assessed withdrawal liability pursuant to Title IV of ERISA by a Multiemployer Plan requiring aggregate annual payments exceeding $2,000,000, or any of the following occurs with respect to a Guaranteed Pension Plan: (i) an ERISA Reportable Event, or a failure to make a required installment or other payment (within the meaning of Section 13 302(f)(1) of ERISA), provided that the Administrative Agent determines in its reasonable discretion that such event (A) could be expected to result in liability of a Parent, any Borrower or 14 any of its Subsidiaries to the PBGC or such Guaranteed Pension Plan in an aggregate amount exceeding $2,000,000 and (B) could reasonably be expected to constitute grounds for the termination of such Guaranteed Pension Plan by the PBGC, for the appointment by the appropriate United States District Court of a trustee to administer such Guaranteed Pension Plan or for the imposition of a lien in favor of such Guaranteed Pension Plan; or (ii) the appointment by a United States District Court of a trustee to administer such Guaranteed Pension Plan; or (iii) the institution by the PBGC of proceedings to terminate such Guaranteed Pension Plan;
(n) any Borrower or any of its Subsidiaries shall be enjoined, restrained or in any way prevented by the order of any Governmental Authority from conducting any material part of the Securities Exchange Act business of 1934MSRC, individually, or the Borrowers and their Subsidiaries, taken as amendeda whole, and such order shall continue in effect for more than thirty (30) consecutive days;
(o) there shall (i) occur any material damage to, or loss, theft or destruction of, any Collateral or any strike, lockout, labor dispute, embargo, condemnation, act of God or public enemy, or other casualty, which in any such case causes, for more than thirty (30) consecutive days, the cessation or substantial curtailment of revenue producing activities at any facility of any Borrower or any of their Subsidiaries if such event or circumstance is not covered by insurance and (ii) such occurrence would have acquired beneficial ownership a Material Adverse Effect;
(within p) a Parent, any Borrower or any of its Subsidiaries shall be indicted for a state or federal crime, or any civil or criminal action shall otherwise have been brought against such Person, a punishment for which in any such case is reasonably likely to include the meaning forfeiture of Rule 13d-3 promulgated any assets of such Person having a fair market value in excess of $2,000,000;
(q) a Change of Control shall occur; or
(r) a Parent (i) directly or indirectly, beneficially or otherwise, holds or owns stock or other securities of any Person (other than MSAC II, the Borrowers or Subsidiaries of the Borrowers and other than Investments permitted under § 10.3), (ii) conducts any activity which is inconsistent with activities which are normal and customary for a holding company, or (iii) owns any material assets other than the Equity Interests of either the Domestic Borrower or MSAC II; then, and in any such event, so long as the same may be continuing, the Administrative Agent may, and upon the request of the Required Lenders shall, by notice in writing to the Borrowers declare all amounts owing with respect to this Credit Agreement, the Notes and the other Loan Documents and all Reimbursement Obligations to be, and they shall thereupon forthwith become, immediately due and payable without presentment, demand, protest or other notice of any kind, all of which are hereby expressly waived by the Securities Borrowers; provided that in the event of any Event of Default specified in §§ 14.1(g), 14.1(h), 14.1(i) or 14.1(j) all such amounts shall become immediately due and Exchange Commission under said Act) payable automatically and without any requirement of 25% notice from the Administrative Agent or more of the outstanding shares of common voting stock of the Borrower; or during any period of twelve consecutive calendar months, individuals who were directors of the Borrower on the first day of such period (together with any new directors whose election by such board or whose nomination for election by the shareholders of the Borrower was approved by a vote of a majority of the directors still in office who were either directors at the beginning of such period or whose election or nomination for election was previously so approved) shall cease to constitute a majority of the board of directors of the Borrower;Lender.
Appears in 2 contracts
Sources: Credit Agreement (McCormick & Schmicks Seafood Restaurants Inc.), Revolving Credit Agreement (McCormick & Schmicks Seafood Restaurants Inc.)
Events of Default and Acceleration. If any of the following events (“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 or lapse of time, “Defaults”) shall occur:
(a) if the Borrower shall fail to pay any principal of the Loans when 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;
(b) if the Borrower shall fail to pay any interest on the Loans or fees any other sums due hereunder or under any of the other amounts owing hereunder (other than those specified in subsection (a) above) Loan Documents within five (5) Business Days days after the same shall become due and payable whether at the Maturity Date or any accelerated date of maturity or at any other date fixed for paymentpayable;
(c) if the Borrower shall fail to comply with any of the its covenants contained in §3.2, §7.4, 7.5, 7.15§7.6, 7.16§7.7, §7.8, §8 and or §9 hereof;
(d) if the Borrower shall fail to perform any other term, covenant or agreement contained herein or in any of the other Loan Documents (other than those specified elsewhere in subsections this §12) for thirty (a), (b), and (c30) above) and such failure shall not be remedied within 30 days after written notice of such failure shall have been given from Agent to the Borrower by the Administrative Agent or any of the BanksBorrower;
(e) if any representation or warranty contained of the Borrower in this Agreement or any of the other Loan Documents or in any other document or instrument delivered pursuant to or in connection with this Agreement Agreement, shall prove to have been false in any material respect upon the date when made or deemed to have been made or repeated, provided, however, that with respect to the representations and warranties of the Borrower contained in §6.18 and §6.22, if the condition or event making the representation and warranty false is capable of being cured by the Borrower, no enforcement action has been commenced against the Borrower or the applicable Real Estate on account of such condition or event nor is the applicable Real Estate subject to risk of forfeiture due to such condition or event, and the Borrower promptly commences the cure thereof after the Borrower’s first obtaining knowledge of such condition or event, the Borrower shall have a period of thirty (30) days after the date that the Borrower first obtained knowledge of such condition or event during which the Borrower may cure such condition or event (or, if such condition or event is not reasonably capable of being cured within such thirty (30) day period, such additional period of time as may be reasonably required in order to cure such condition or event but in any event such period shall not exceed six (6) months from the date that the Borrower first obtained knowledge of such condition or event), and no Event of Default shall exist hereunder during such thirty (30) day or additional period so long as the Borrower continuously and diligently pursues the cure of such condition or event and the other conditions to such cure period have not changed;
(f) if the Borrower Borrower, any of the Related Companies or any of its Subsidiaries Controlled Unconsolidated Entity shall fail to pay when dueat maturity, or within any applicable period of grace, any Indebtedness or obligations under Swap Contracts in an aggregate amount greater than $75,000,000Indebtedness, or shall fail to observe or perform any material term, covenant or agreement contained in any one or more agreements agreement by which it is bound, evidencing or securing any Indebtedness or obligations under Swap Contracts in an aggregate amount greater than $75,000,000 for such period of time as would permit, or would have permitted permit (assuming the giving of appropriate notice if required) the holder or holders thereof or of any obligations issued thereunder to accelerate the maturity thereof or terminate its commitment with respect theretothereof, and in any event, such failure shall continue for thirty (30) days, unless the aggregate amount of all such defaulted Indebtedness plus the amount of any unsatisfied judgments described in paragraph (i) of this §12.1 is less than $5,000,000.00;
(g) if any of the Borrower, any of the Guarantor Related Companies or any Significant Subsidiary makes Controlled Unconsolidated Entity shall make an assignment for the benefit of creditors, or admits admit in writing its inability to pay or generally fails fail to pay its debts as they mature or become due, or petitions shall petition or applies apply for the appointment of a trustee or other custodian, liquidator or receiver of the Borrower, the Guarantor or any Significant Subsidiary, or of any substantial part of the assets of the Borrower, the Guarantor its properties or any Significant Subsidiary or commences shall commence any case or other proceeding relating to the Borrower, the Guarantor or any Significant Subsidiary 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 shall take any action to authorize or in furtherance of any of the foregoing, or if any such petition or application is shall be filed or any such case or other proceeding is shall be commenced against the Borrower, the Guarantor or any Significant Subsidiary or the Borrower, the Guarantor or any Significant Subsidiary indicates such Person and such Person shall indicate 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 Borrower or Borrower, any of the Guarantor Related Companies or any Significant Subsidiary Controlled Unconsolidated Entity 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 or Borrower, any of the Guarantor Related Companies or any Significant Subsidiary Controlled Unconsolidated Entity in an involuntary case under federal bankruptcy laws of any jurisdiction as now or hereafter constituted;
(i) if there shall remain in force, undischarged, unsatisfied and unstayed, for more than thirty days, whether or not consecutive, any uninsured final judgment against the Borrower Borrower, any of the Related Companies or any Subsidiary whichControlled Unconsolidated Entity that, with other outstanding uninsured final judgments judgments, undischarged, against the Borrower and its SubsidiariesBorrower, any of the Related Companies or any Controlled Unconsolidated Entity plus the amount of any defaulted Indebtedness under paragraph (f) of this §12.1, exceeds in the aggregate $50,000,000 after taking into account any undisputed insurance coverage5,000,000.00;
(j) if, with respect to any Guaranteed Pension Plan, an ERISA Reportable Event shall have occurred and the Banks shall have determined in their reasonable discretion that such event reasonably could be expected to result in liability of the Borrower or any Subsidiary to the PBGC or such Plan in an aggregate amount exceeding $50,000,000 and such event in the circumstances occurring reasonably could constitute grounds for the partial or complete termination of such Plan by the PBGC or for the appointment by the appropriate United States District Court of a trustee to administer such Plan; or a trustee shall have been appointed by the appropriate United States District Court to administer such Plan; or the PBGC shall have instituted proceedings to terminate such Plan;
(k) if any of the Loan Documents or any material provision of any Loan Documents shall be unenforceable, 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 BanksAgent, or any action at law, suit or in equity or other legal proceeding to make unenforceable, cancel, revoke or rescind any of the Loan Documents shall be commenced by or on behalf of the Borrower, the Guarantor, or any of their respective stockholders, 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 effect that, any one or more of the Loan Documents is illegal, invalid or unenforceable in accordance with the terms thereof;
(k) the Borrower, any of the Related Companies or any Controlled Unconsolidated Entity shall be indicted for a federal crime, a punishment for which could include the forfeiture of any assets of the Borrower;
(l) the Borrower shall fail to pay, observe or perform any term, covenant, condition or agreement contained in any agreement, document or instrument evidencing, securing or otherwise relating to any Indebtedness of the Borrower to any Lender (other than the Obligations) and/or relating to any Permitted Lien (other than the Obligations) within any applicable period of grace provided for in such agreement, document or instrument;
(m) [Intentionally Omitted];
(n) any “Event of Default”, as defined in any of the other Loan Documents, shall occur; or
(lo) 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 25% Any two or more of ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ and ▇▇▇▇ ▇▇▇▇▇▇▇▇ shall cease to be a senior executive officer of the outstanding shares Borrower and the Board of common voting stock Directors of the Borrower shall not, within six months thereafter, hire a substitute officer who has been approved by the Majority Lenders, with each Lender having the right to approve or disapprove any proposed successor in its sole reasonable discretion;
(p) a Change of Control shall occur without the prior written consent of all Lenders;
(q) any “Event of Default” as defined in the Secured Revolving Credit Agreement shall occur; then, and in any such event, so long as the same may be continuing, the Agent may, and upon the request of the Majority Lenders shall, by notice in writing to the Borrower declare all amounts owing with respect to this Agreement, the Notes and the other Loan Documents to be, and they shall thereupon forthwith become, 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 §§12.1(g) or during 12.1(h), all such amounts shall become immediately due and payable automatically and without any period requirement of twelve consecutive calendar months, individuals who were directors of notice from the Borrower on the first day of such period (together with any new directors whose election by such board Agent or whose nomination for election action by the shareholders of the Borrower was approved by a vote of a majority of the directors still in office who were either directors at the beginning of such period or whose election or nomination for election was previously so approved) shall cease to constitute a majority of the board of directors of the Borrower;Majority Lenders.
Appears in 2 contracts
Sources: Unsecured Revolving Credit Agreement (Amerivest Properties Inc), Unsecured Revolving Credit Agreement (Amerivest Properties Inc)
Events of Default and Acceleration. If any of the following events (“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, “Defaults”"EVENTS OF DEFAULT") shall occuroccur and be continuing:
(a) if the Borrower shall fail to pay any principal of the Loans or any Reimbursement Obligation when 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;
(b) if the Borrower or any of its Subsidiaries shall fail to pay any interest or fees on the Loans, any Fees, or other amounts owing sums due hereunder or under any of the other Loan Documents, within three (other than those specified in subsection (a) above) within five (53) Business Days after the same shall have become due and payable payable, whether at the Maturity Date 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 any of the its covenants contained in §§7.4Sections 8.3(a), 7.5(b) or (c), 7.15the first sentence of 8.5, 7.168.9, 8 and 8.10, 8.11, 9 hereofor 10;
(d) if the Borrower or any of its Subsidiaries shall fail to perform any term, covenant or agreement contained herein or in any of the other Loan Documents (other than those specified elsewhere in subsections this Section 13.1) for thirty (a), (b), and (c30) above) and such failure shall not be remedied within 30 days after written notice of such failure shall have has been given to the Borrower by the Administrative Agent or any of the BanksAgent;
(e) if any representation or warranty contained of the Borrower or any of its Subsidiaries in this Credit Agreement or any of the other Loan Documents or in any other document or instrument delivered pursuant to or in connection with this Credit Agreement shall prove to have been false in any material respect upon the date when made or deemed to have been made or repeated;
(f) if the Borrower or any of its Subsidiaries shall fail to pay when dueat maturity, or within any applicable period of grace, any Indebtedness obligation for borrowed money or obligations under Swap Contracts credit received or in an respect of any Capitalized Leases or any Synthetic Leases, individually or in the aggregate amount greater than which exceeds $75,000,00010,000,000 ("MATERIAL DEBT"), or fail to observe or perform any material term, covenant or agreement contained in any one or more agreements by which it is bound, evidencing or securing any Indebtedness or obligations under Swap Contracts in an aggregate amount greater than $75,000,000 agreement for such period of time Material Debt as would permit, or would have permitted permit (assuming the giving of appropriate notice if required) the holder or holders thereof or of any obligations issued thereunder to accelerate the maturity thereof thereof, or terminate its commitment with respect theretoany such holder or holders shall rescind or shall have a right to rescind the purchase of any such obligations constituting Material Debt;
(g) if the Borrower, the Guarantor Borrower or any Significant Subsidiary makes of its Subsidiaries shall make an assignment for the benefit of creditors, or admits admit in writing its inability to pay or generally fails fail to pay its debts as they mature or become due, or petitions shall petition or applies apply for the appointment of a trustee or other custodian, liquidator or receiver of the Borrower, the Guarantor Borrower or any Significant Subsidiary, of its Subsidiaries or of any substantial part of the assets of the Borrower, the Guarantor Borrower or any Significant Subsidiary of its Subsidiaries or commences shall commence any case or other proceeding relating to the Borrower, the Guarantor Borrower or any Significant Subsidiary of 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 shall take any action to authorize or in furtherance of any of the foregoing, or if any such petition or application is shall be filed or any such case or other proceeding is shall be commenced against the Borrower, the Guarantor Borrower or any Significant Subsidiary or of its Subsidiaries and the Borrower, the Guarantor Borrower or any Significant Subsidiary indicates of its Subsidiaries shall indicate its approval thereof, consent thereto or acquiescence thereintherein or such petition or application shall not have been dismissed within sixty (60) days following the filing thereof;
(h) if a decree or order is entered appointing any such trustee, custodian, liquidator or receiver or adjudicating the Borrower or the Guarantor or any Significant Subsidiary of 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 in respect of the Borrower or any Subsidiary of the Guarantor or any Significant Subsidiary Borrower in an involuntary case under federal bankruptcy laws of any jurisdiction as now or hereafter constituted, which shall not have been dismissed or stayed within sixty (60) days after the filing thereof;
(i) if there shall remain in force, undischarged, unsatisfied and unstayed, for more than thirty sixty (60) days, whether or not consecutive, any final judgment against the Borrower or any Subsidiary whichof its Subsidiaries that, with other outstanding final judgments judgments, undischarged, against the Borrower and or any of its Subsidiaries, Subsidiaries exceeds in the aggregate $50,000,000 after taking into account any undisputed insurance coverage10,000,000;
(j) if, with respect to any Guaranteed Pension Plan, an ERISA Reportable Event shall have occurred and the Banks shall have determined in their reasonable discretion that such event reasonably could be expected to result in liability of the Borrower or any Subsidiary to the PBGC or such Plan in an aggregate amount exceeding $50,000,000 and such event in the circumstances occurring reasonably could constitute grounds for the partial or complete termination of such Plan by the PBGC or for the appointment by the appropriate United States District Court of a trustee to administer such Plan; or a trustee shall have been appointed by the appropriate United States District Court to administer such Plan; or the PBGC shall have instituted proceedings to terminate such Plan;
(k) if 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 BanksLenders required thereby, 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 or on behalf of the Borrower, the Guarantor, Borrower or any of its 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 determination that, or issue a judgment, order, decree or ruling to the effect that, any one or more of the Loan Documents is illegal, invalid or unenforceable in accordance with the terms thereof; or;
(li) if the Borrower or any person ERISA Affiliate shall fail to pay when due an amount or group amounts aggregating in excess of persons $10,000,000 which it shall have become liable to pay under Title IV of ERISA; (ii) notice of intent to terminate a Material Plan shall be filed under Title IV of ERISA by the Borrower or any ERISA Affiliate, any plan administrator or any combination of the foregoing; (iii) the PBGC shall institute proceedings under Title IV of ERISA to terminate, to impose liability (other than for premiums under Section 4007 of ERISA) in respect of, or to cause a trustee to be appointed to administer any Material Plan; (iv) a condition shall exist by reason of which the PBGC would be entitled to obtain a decree adjudicating that any Material Plan must be terminated; (v) there shall occur a complete or partial withdrawal from, or a default, 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 Act4219(c)(5) of 25% ERISA, with respect to, one or more of the outstanding shares of common voting stock of the Borrower; or during any period of twelve consecutive calendar months, individuals who were directors of Multiemployer Plans which could cause the Borrower on the first day and/or any ERISA Affiliate to incur a current payment obligation in excess of such period (together with any new directors whose election by such board or whose nomination for election by the shareholders of the Borrower was approved by a vote of a majority of the directors still in office who were either directors at the beginning of such period or whose election or nomination for election was previously so approved) shall cease to constitute a majority of the board of directors of the Borrower;$10,000,000; or
Appears in 1 contract
Events of Default and Acceleration. If any of the following events (“"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 or lapse of time, “"Defaults”") shall occur:
(a) if the Borrower or any Other Obligor shall fail to pay any principal of the Loans or any Reimbursement Obligation (for which a Revolving Credit Loan is not made as provided in Section 2.8) when 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;
(b) if the Borrower or any Other Obligor shall fail to pay any interest or fees or other amounts owing hereunder (other than those specified in subsection (a) above) within five (5) Business Days after on the Loans when the same shall become due and payable payable, whether at the Maturity Date stated date of maturity or any accelerated date of maturity or at any other date fixed for payment, and such failure shall continue for five (5) days after written notice of such failure has been given to the Borrower (or if the Borrower no longer exists, such other Obligor) by the Administrative Agent;
(c) if the Borrower or any Other Obligor shall fail to comply with perform or observe any of the its covenants contained in §§7.4Sections 7.5.1, 7.57.6.1, 7.158.1, 7.168.2, 8 and 9 hereof8.3, 8.4(x), 8.13, 9, or, if such failure relates to a Lien securing Funded Debt, 8.4;
(d) if the Borrower Borrower, any Other Obligor, or any of their respective Subsidiaries shall fail to perform or observe any term, covenant covenant, or agreement contained herein or in any of the other Loan Documents (other than those specified elsewhere in subsections this Section 12) for thirty (a), (b), and (c30) above) and such failure shall not be remedied within 30 days after written notice of such failure shall have has been given to the Borrower (or if the Borrower no longer exists, such Other Obligor) by the Administrative Agent Agent, provided, that a failure to perform or any observe the terms, covenants and agreements set forth in Section 7.4 or Section 7.5.3 that continues for more than ten (10) days (regardless of whether notice of such failure is given to the BanksBorrower) shall constitute an Event of Default hereunder;
(e) if any representation or warranty contained of the Borrower, any Other Obligor, or any of their respective Subsidiaries in this Agreement Credit Agreement, any of the other Loan Documents, or in any other document or instrument delivered pursuant to or in connection with this Credit Agreement shall prove to have been false incorrect in any material respect upon the date when made or deemed to have been made or repeated;
(f) if failure to make a payment of principal or interest, or a default, event of default, or other event permitting (with or without the Borrower passage of time or the giving of notice) acceleration or exercise of remedies shall occur with respect to any (i) Indebtedness for money borrowed, (ii) Indebtedness in respect of the deferred purchase price of goods or services, or (iii) Capitalized Lease, of the Borrower, any Other Obligor, or any of its Subsidiaries shall fail their respective Subsidiaries, having a principal amount (or, in the case of a Capitalized Lease, scheduled rental payments with a discounted present value from the last day of the initial term to pay when due, or within any applicable period the date of grace, any Indebtedness or obligations under Swap Contracts determination as determined in an aggregate amount greater than $75,000,000, or fail to observe or perform any material term, covenant or agreement contained accordance with generally accepted accounting principles) (A) in any one case, of $50,000,000 or more agreements by which it is boundmore, evidencing or securing any Indebtedness (B) in the aggregate, of $150,000,000 or obligations under Swap Contracts in an aggregate amount greater than $75,000,000 more, and such failure to make a payment of principal or interest, or a default, event of default, or other event shall continue for such period of time as would permit, or would have permitted (assuming the giving of appropriate notice if required) entitle the holder of such Indebtedness or holders thereof Capitalized Lease (with or of any obligations issued thereunder without notice) to accelerate the maturity thereof such Indebtedness or terminate its commitment with respect theretosuch Capitalized Lease;
(g) if 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 Banks, or any Proceeding to cancel, revoke, or rescind any of the Loan Documents shall be commenced by or on behalf of the Borrower, the Guarantor any Other Obligor, or any Significant of their respective Subsidiaries party thereto, or any Government Authority of competent jurisdiction shall make a determination that, or issue a Government Mandate to the effect that, any material provision of one or more of the Loan Documents is illegal, invalid, or unenforceable in accordance with the terms thereof;
(h) the Borrower, any Other Obligor, Alliance Distributors, the General Partner, or any Material Subsidiary makes shall make an assignment for the benefit of creditors, or admits admit in writing its inability to pay or generally fails fail to pay its debts as they mature or become due, or petitions shall petition or applies apply for the appointment of a trustee or other custodian, liquidator liquidator, or receiver of the Borrower, any Other Obligor, Alliance Distributors, the Guarantor General Partner or any Significant Subsidiary, Material Subsidiary or of any substantial part of the assets of the Borrower, any Other Obligor, Alliance Distributors, the Guarantor General Partner, or any Significant Subsidiary Material Subsidiary, or commences shall commence any case or other proceeding Proceeding relating to the Borrower, any Other Obligor, Alliance Distributors, the Guarantor General Partner, or any Significant Material Subsidiary under any bankruptcy, reorganization, arrangement, insolvency, readjustment of debt, dissolution or liquidation dissolution, liquidation, or similar law of any jurisdiction, now or hereafter in effect, or takes shall take any action to authorize or in furtherance of any of the foregoing, or if any such petition or application is shall be filed or any such case or other proceeding is Proceeding shall be commenced against the Borrower, any Other Obligor, Alliance Distributors, the Guarantor General Partner, or any Significant Material Subsidiary or the Borrower, the Guarantor or and any Significant Subsidiary indicates of such parties shall indicate its approval thereof, consent thereto thereto, or acquiescence therein;
(hi) if either (i) an involuntary Proceeding relating to the Borrower, any Other Obligor, Alliance Distributors, the General Partner, or any Material Subsidiary under any bankruptcy, reorganization, arrangement, insolvency, readjustment of debt, dissolution, liquidation, or similar law of any jurisdiction, now or hereafter in effect is commenced and not dismissed or vacated within sixty (60) days following entry thereof, or (ii) a decree or order is entered appointing any such trustee, custodian, liquidator liquidator, or receiver described in (h) or adjudicating the Borrower or Borrower, any Other Obligor, Alliance Distributors, the Guarantor General Partner, or any Significant Material Subsidiary bankrupt or insolvent, or approving a petition in any such case or other proceedingProceeding, or a decree or order for relief is entered in respect of the Borrower or Borrower, any Other Obligor, Alliance Distributors, the Guarantor General Partner, or any Significant Material Subsidiary in an involuntary case Proceeding under federal bankruptcy laws of any jurisdiction as now or hereafter constituted;
(ij) if there shall remain in force, undischarged, unsatisfied unsatisfied, and unstayed, for more than thirty forty-five (45) days, whether or not consecutive, any final judgment or order against the Borrower Borrower, any Other Obligor, or any Subsidiary whichof their respective Subsidiaries, that, with any other such outstanding final judgments or orders, undischarged, against the Borrower Borrower, any Other Obligors, and its Subsidiaries, their respective Subsidiaries taken together exceeds in the aggregate $50,000,000 after taking into account any undisputed insurance coverage20,000,000;
(jk) if, with respect to any Guaranteed Pension Plan, an ERISA Reportable Event shall have occurred and the Majority Banks shall have determined in their reasonable discretion that such event reasonably could be expected to result in liability of the Borrower Borrower, any Other Obligor, or any Subsidiary of their respective Subsidiaries to the PBGC or such Guaranteed Pension Plan in an aggregate amount exceeding $50,000,000 20,000,000 and such event in the circumstances occurring reasonably could constitute grounds for the partial or complete termination of such Guaranteed Pension Plan by the PBGC or for the appointment by the appropriate United States District Court of a trustee to administer such Guaranteed Pension Plan; or a trustee shall have been appointed by the appropriate United States District Court to administer such Guaranteed Pension Plan; or the PBGC shall have instituted proceedings to terminate such Guaranteed Pension Plan;
(kl) if any of the Loan Documents following: (i) the Borrower or (if required to be so registered) any Other Obligor shall fail to be cancelled, terminated, revoked duly registered as an "investment adviser" under the Investment Advisers Act of 1940; or rescinded otherwise than in accordance with the terms thereof or with the express prior written agreement, consent or approval of the Banks, or any action at law, suit or in equity or other legal proceeding (ii) Alliance Distributors shall cease to cancel, revoke or rescind any of the Loan Documents shall be commenced by or on behalf of the Borrower, the Guarantor, or any of their respective stockholders, or any court or any other governmental or regulatory authority or agency of competent jurisdiction shall make duly registered as a determination that, or issue a judgment, order, decree or ruling to the effect that, any one or more of the Loan Documents is illegal, invalid or unenforceable in accordance with the terms thereof; or
(l) if any person or group of persons (within the meaning of Section 13 or 14 of "broker/dealer" under the Securities Exchange Act of 19341934 or shall cease to be a member in good standing of the National Association of Securities Dealers, as amendedInc.;
(m) the Borrower, any Other Obligor, Alliance Distributors, the General Partner, or any Material Subsidiary shall have acquired beneficial ownership either (within i) be indicted for a federal or state crime and, in connection with such indictment, Government Authorities shall seek to seize or attach, or seek a civil forfeiture of, property of the meaning of Rule 13d-3 promulgated by Borrower, any Other Obligor, Alliance Distributors, the Securities and Exchange Commission under said Act) of 25% General Partner, or one or more of the outstanding shares such Material Subsidiary having a fair market value in excess of common voting stock $20,000,000, or (ii) be found guilty of, or shall plead guilty, no contest, or nolo contendere to, any federal or state crime, a punishment for which could include a fine, penalty, or forfeiture of any assets of the Borrower, such Other Obligor, Alliance Distributors, the General Partner, or such Material Subsidiary having in any such case a fair market value in excess of $20,000,000; or during or
(n) Alliance Capital Management Corporation shall cease to be the sole general partner of the Borrower, and such circumstance shall continue for thirty (30) days after written notice of such circumstance has been given to the Borrower (or, if the Borrower no longer exists, any period Other Obligor), provided, that the admission of twelve consecutive calendar months, individuals who were directors additional Persons as (a) general partner of the Borrower shall not constitute an Event of Default if, prior to the admission of any such general partner, the Borrower delivers to the Banks (i) the documentation with respect to such general partner that would be required under Section 10.3 if such Person were a General Partner on the first day of Closing Date, (ii) an incumbency certificate for such period general partner as required for the Borrower pursuant to Section 10.8, and (together with any new directors whose election by c) an opinion from counsel reasonably acceptable to the Banks, in form and substance reasonably satisfactory to the Banks, as to such board or whose nomination for election by the shareholders general partner's power and authority to act on behalf of the Borrower was approved by as a vote of a majority of the directors still in office who were either directors at the beginning of such period or whose election or nomination for election was previously so approved) shall cease to constitute a majority of the board of directors general partner of the Borrower;, and provided, further, that a Reorganization of the Borrower pursuant to Section 8.2(c) as permitted under Section 2.6 of the Borrower Partnership Agreement shall not constitute a Default or an Event of Default under this clause(n); then, and in any such event, so long as the same may be continuing, the Administrative Agent, upon the request of the Majority Banks, shall by notice in writing to the Borrower declare all amounts owing with respect to this Credit Agreement, the Notes, and the other Loan Documents and all Reimbursement Obligations (including with respect to outstanding undrawn Letters of Credit) to be, and they shall thereupon forthwith become, 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 12.1(h) or Section 12.1(i), all such amounts shall become immediately due and payable automatically and without any requirement of notice from the Administrative Agent, any Co-Agent or any Bank; and provided, further, that any such declaration may be rescinded by the Majority Banks after the Events of Default leading to such declaration are cured or waived.
Appears in 1 contract
Sources: Revolving Credit Agreement (Alliance Capital Management Lp)
Events of Default and Acceleration. If any of the following events (“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 or lapse of time, “Defaults”) shall occur:
(a) if the Borrower Borrowers shall fail to pay any principal of the Loans when 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;
(b) if the Borrower Borrowers shall fail to pay any interest on the Loans, any reimbursement obligations with respect to the Letters of Credit or any fees or other amounts owing sums due hereunder (or under any of the other than those specified in subsection (a) above) within five (5) Business Days after Loan Documents when the same shall become due and payable payable, whether at the Maturity Date stated date of maturity or any accelerated date of maturity or at any other date fixed for payment;
(c) if the Borrower Borrowers shall fail to comply with any of the covenants covenant contained in §§7.4, 7.5, 7.15, 7.16, 8 9.1 and 9 hereofsuch failure shall continue for five (5) days after written notice thereof shall have been given to the Borrowers by the Agent;
(d) if any of the Borrower Borrowers or any of their respective Subsidiaries shall fail to perform any other term, covenant or agreement contained in §9.2, §9.3, §9.4, §9.5, §9.6 or §9.7;
(e) any of the Borrowers or any of their respective Subsidiaries shall fail to perform any other term, covenant or agreement contained herein or in any of the other Loan Documents which they are required to perform (other than those specified in subsections (athe other subclauses of this §12 or in the other Loan Documents), (b), and (c) above) and such failure shall not be remedied within 30 days after written notice of such failure shall have been given to the Borrower by the Administrative Agent or any of the Banks;
(ef) if any representation or warranty contained made by or on behalf of the Borrowers or any of their respective Subsidiaries in this Agreement or any other Loan Document, or any report, certificate, financial statement, request for a Loan, Letter of Credit Request, or in any other document or instrument delivered pursuant to or in connection with this Agreement Agreement, any advance of a Loan, the issuance of any Letter of Credit or any of the other Loan Documents shall prove to have been false in any material respect upon the date when made or deemed to have been made or repeated;
(fg) if any of the Borrower Borrowers or any of its their Subsidiaries shall fail to pay when duedue (including, without limitation, at maturity), or within any applicable period of grace, any Indebtedness principal, interest or obligations under Swap Contracts in an aggregate other amount greater than $75,000,000on account any obligation for borrowed money or credit received or other Indebtedness, or shall fail to observe or perform any material term, covenant or agreement contained in any one or more agreements agreement by which it is bound, evidencing or securing any obligation for borrowed money or credit received or other Indebtedness or obligations under Swap Contracts in an aggregate amount greater than $75,000,000 for such period of time as would permit, or would have permitted permit (assuming the giving of appropriate notice if required) the holder or holders thereof or of any obligations issued thereunder to accelerate the maturity thereof thereof; provided that the events described in §12.1(g) shall not constitute an Event of Default unless such failure to perform, together with other failures to perform as described in §12.1(g), involve singly or terminate its commitment with respect theretoin the aggregate obligations for borrowed money or credit received or other Indebtedness totaling in excess of $25,000,000.00;
(gh) if any of the Borrower, the Guarantor Borrowers or any Significant Subsidiary makes of their respective Subsidiaries or REIT, (i) shall make an assignment for the benefit of creditors, or admits admit in writing its general inability to pay or generally fails fail to pay its debts as they mature or become due, or petitions shall petition or applies apply for the appointment of a trustee or other custodian, liquidator or receiver of the Borrower, the Guarantor for it or any Significant Subsidiary, or of any substantial part of the assets of the Borrowerits assets, the Guarantor or any Significant Subsidiary or commences (ii) shall commence any case or other proceeding relating to the Borrower, the Guarantor or any Significant Subsidiary it 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 (iii) shall take any action to authorize or in furtherance of any of the foregoing, or if any such ;
(i) a petition or application is shall be filed for the appointment of a trustee or other custodian, liquidator or receiver of any of the Borrowers or any such of their respective Subsidiaries or REIT or any substantial part of the assets of any thereof, or a case or other proceeding is shall be commenced against the Borrowerany such Person under any bankruptcy, the Guarantor reorganization, arrangement, insolvency, readjustment of debt, dissolution or liquidation or similar law of any Significant Subsidiary jurisdiction, now or the Borrowerhereafter in effect, the Guarantor or and any Significant Subsidiary indicates such Person shall indicate its approval thereof, consent thereto or acquiescence thereintherein or such petition, application, case or proceeding shall not have been dismissed within sixty (60) days following the filing or commencement thereof;
(hj) if a decree or order is entered appointing any such a trustee, custodian, liquidator or receiver for any of the Borrowers or any of their respective Subsidiaries or REIT or adjudicating the Borrower or the Guarantor or any Significant Subsidiary such Person, 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 or the Guarantor or any Significant Subsidiary such Person in an involuntary case under federal bankruptcy laws of any jurisdiction as now or hereafter constituted;
(ik) if there shall remain in force, undischarged, unsatisfied and unstayed, for more than thirty sixty (60) days, whether or not consecutive, any one or more uninsured or unbonded final judgment judgments against the Parent Borrower or any Subsidiary whichof its Subsidiaries that, with other outstanding final judgments against the Borrower and its Subsidiaries, exceeds either individually or in the aggregate aggregate, exceed $50,000,000 after taking into account any undisputed insurance coverage1,000,000.00;
(jl) ifany of the Loan Documents or the Contribution Agreement shall be canceled, terminated, revoked or rescinded otherwise than in accordance with the terms thereof or the express prior written agreement, consent or approval of the Lenders, or any action at law, suit in equity or other legal proceeding to cancel, revoke or rescind any of the Loan Documents or the Contribution Agreement shall be commenced by or on behalf of any of the Borrowers, or any court or any other governmental or regulatory authority or agency of competent jurisdiction shall make a determination, or issue a judgment, order, decree or ruling, to the effect that any one or more of the Loan Documents or the Contribution Agreement is illegal, invalid or unenforceable in accordance with the terms thereof;
(m) any dissolution, termination, partial or complete liquidation, merger or consolidation of any of the Borrowers or any of their respective Subsidiaries shall occur or any sale, transfer or other disposition of the assets of any of the Borrowers or any of their respective Subsidiaries shall occur other than as permitted under the terms of this Agreement or the other Loan Documents;
(n) with respect to any Guaranteed Pension Plan, an ERISA Reportable Event shall have occurred and the Banks Required Lenders shall have determined in their reasonable discretion that such event reasonably could be expected to result in liability of any of the Borrower Borrowers or any Subsidiary of their respective Subsidiaries to the PBGC or such Guaranteed Pension Plan in an aggregate amount exceeding $50,000,000 1,000,000.00 and (x) such event in the circumstances occurring reasonably could constitute grounds for the partial or complete termination of such Guaranteed Pension Plan by the PBGC or for the appointment by the appropriate United States District Court of a trustee to administer such Guaranteed Pension Plan; or (y) a trustee shall have been appointed by the appropriate United States District Court to administer such Plan; or (z) the PBGC shall have instituted proceedings to terminate such Guaranteed Pension Plan;
(ko) if 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 Banks, 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 or on behalf of the Borrower, the Guarantor, Borrower or any of their respective stockholdersSubsidiaries or any shareholder, officer, director, partner or member of any of them shall be indicted for a federal crime, a punishment for which could include the forfeiture of (i) any assets of Borrowers or any of their respective Subsidiaries which in the good faith judgment of the Required Lenders could have a Material Adverse Effect, or (ii) the Collateral;
(p) any court or Change of Control shall occur;
(q) an Event of Default under 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 effect that, any one or more of the other Loan Documents is illegal, invalid or unenforceable in accordance with the terms thereofshall occur; or
(lr) the Borrowers shall fail to comply with the covenants set forth in §8.6 hereof; provided, however, no Event of Default shall occur hereunder as a result of such failure if such failure relates solely to a parcel or parcels of Real Estate that is/are not a Mortgaged Property and whose book value, either individually or in the aggregate, does not exceed $1,000,000.00; then, and in any person or group of persons (within such event, the meaning of Section 13 or 14 Agent may, and upon the request of the Securities Exchange Act Required Lenders shall, by notice in writing to the Borrowers declare all amounts owing with respect to this Agreement, the Notes, the Letters of 1934Credit and the other Loan Documents to be, as amended) and they shall have acquired beneficial ownership (within the meaning thereupon forthwith become, immediately due and payable without presentment, demand, protest or other notice of Rule 13d-3 promulgated any kind, all of which are hereby expressly waived by the Securities Borrowers; provided that in the event of any Event of Default specified in §12.1(h), §12.1(i) or §12.1(j), all such amounts shall become immediately due and Exchange Commission under said Act) payable automatically and without any requirement of 25% presentment, demand, protest or more other notice of any kind from any of the outstanding shares Lenders or the Agent. Upon demand by Agent or the Majority Revolving Credit Lenders in their absolute and sole discretion after the occurrence of common voting stock an Event of Default, and regardless of whether the conditions precedent in this Agreement for a Revolving Credit Loan have been satisfied, the Revolving Credit Lenders will cause a Revolving Credit Loan to be made in the undrawn amount of all Letters of Credit. The proceeds of any such Revolving Credit Loan will be pledged to and held by Agent as security for any amounts that become payable under the Letters of Credit and all other Obligations and Hedge Obligations. In the alternative, if demanded by Agent in its absolute and sole discretion after the occurrence of an Event of Default, Borrowers will deposit with and pledge to Agent cash in an amount equal to the amount of all undrawn Letters of Credit. Such amounts will be pledged to and held by Agent for the benefit of the Borrower; or during Lenders as security for any period amounts that become payable under the Letters of twelve consecutive calendar monthsCredit and all other Obligations and Hedge Obligations. Upon any draws under Letters of Credit, individuals who were directors at Agent’s sole discretion, Agent may apply any such amounts to the repayment of amounts drawn thereunder and upon the expiration of the Borrower on Letters of Credit any remaining amounts will be applied to the first day payment of all other Obligations and Hedge Obligations or if there are no outstanding Obligations and Hedge Obligations and Lenders have no further obligation to make Revolving Credit Loans or issue Letters of Credit or if such period (together with any new directors whose election excess no longer exists, such proceeds deposited by such board or whose nomination for election by the shareholders of the Borrower was approved by a vote of a majority of the directors still in office who were either directors at the beginning of such period or whose election or nomination for election was previously so approved) shall cease Borrowers will be released to constitute a majority of the board of directors of the Borrower;Borrowers.
Appears in 1 contract
Events of Default and Acceleration. If any of the following events (“"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 or lapse of time, “"Defaults”") shall occur:
(a) if the any Borrower shall fail to pay any principal of the Revolving Credit Loans or any Reimbursement Obligation when 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;
(b) if the any Borrower shall fail to pay any interest or fees on the Revolving Credit Loans, the commitment fee, any Letter of Credit Fee, the Agent's Fee, or other amounts owing sums due hereunder (or under any of the other than those specified in subsection (a) above) within five (5) Business Days after Loan Documents, when the same shall become due and payable payable, whether at the Maturity Date stated date of maturity or any accelerated date of maturity or at any other date fixed for payment, and such failure shall continue for three (3) days;
(c) if the any Borrower shall fail to comply with any of the its covenants contained in §§7.4ss.ss.8.1-8.4, 7.58.5.1, 7.158.7, 7.168.9, 8 and 9 hereof8.10-8.12, 8.15-8.17, 9.1-9.6, 9.8, 9.10-9.17 or 10;
(d) if the any Borrower or any of its Subsidiaries shall fail to perform any term, covenant or agreement contained herein or in any of the other Loan Documents (other than those specified elsewhere in subsections this ss.
13.1) for thirty (a), (b), and (c30) above) and such failure shall not be remedied within 30 days after written notice of such failure shall have has been given to the Borrower by the Administrative Agent or any of the BanksAgent;
(e) if any representation or warranty contained of any Borrower or any of its Subsidiaries in this Credit Agreement or any of the other Loan Documents or in any of the Transaction Documents or the Offering Documents or in any other document or instrument delivered pursuant to or in connection with this Credit Agreement or any of the other Loan Documents, or any of the Transaction Documents or the Offering Documents shall prove to have been false in any material respect upon the date when made or deemed to have been made or repeated;
(f) if the any Borrower or any of its Subsidiaries shall fail to pay when dueat maturity, or within any applicable period of grace, any Indebtedness obligation for borrowed money or obligations under Swap Contracts credit received or in respect of any Capitalized Leases in an aggregate amount greater than in excess of $75,000,0002,000,000, or fail to observe or perform any material term, covenant or agreement contained in any one or more agreements agreement by which it is bound, evidencing or securing borrowed money or credit received or in respect of any Indebtedness or obligations under Swap Contracts Capitalized Leases in an aggregate amount greater than in excess of $75,000,000 2,000,000 for such period of time as would permit, or would have permitted permit (assuming the giving of appropriate notice if required) the holder or holders thereof or of any obligations issued thereunder to accelerate the maturity thereof or terminate its commitment with respect theretothereof;
(g) if the Borrower, the Guarantor any Borrower or any Significant Subsidiary makes of its Subsidiaries shall make an assignment for the benefit of creditors, or admits admit in writing its inability to pay or generally fails fail to pay its debts as they mature or become due, or petitions shall petition or applies apply for the appointment of a trustee or other custodian, liquidator or receiver of the Borrower, the Guarantor any Borrower or any Significant Subsidiary, of its Subsidiaries or of any substantial part of the assets of the Borrower, the Guarantor any Borrower or any Significant Subsidiary of its Subsidiaries or commences shall commence any case or other proceeding relating to the Borrower, the Guarantor any Borrower or any Significant Subsidiary of 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 shall take any action to authorize or in furtherance of any of the foregoing, or if any such petition or application is shall be filed or any such case or other proceeding is shall be commenced against the Borrower, the Guarantor any Borrower or any Significant Subsidiary or the Borrower, the Guarantor of its Subsidiaries and such Borrower or any Significant Subsidiary indicates of its Subsidiaries shall indicate its approval thereof, consent thereto or acquiescence thereintherein or such petition or application shall not have been dismissed within forty-five (45) days following the filing thereof;
(h) if a decree or order is entered appointing any such trustee, custodian, liquidator or receiver or adjudicating the any Borrower or the Guarantor or any Significant Subsidiary of 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 in respect of the any Borrower or the Guarantor or any Significant Subsidiary of such Borrower in an involuntary case under federal bankruptcy laws of any jurisdiction as now or hereafter constituted;
(i) if there shall remain in force, undischarged, unsatisfied and unstayed, for more than thirty days, whether or not consecutive, any final judgment against the any Borrower or any Subsidiary whichof its Subsidiaries that, with other outstanding final judgments judgments, undischarged, against the such Borrower and or any of its Subsidiaries, Subsidiaries exceeds in the aggregate $50,000,000 after taking into account any undisputed insurance coverage1,000,000;
(j) if, with respect to the holders of all or any Guaranteed Pension Plan, an ERISA Reportable Event shall have occurred and the Banks shall have determined in their reasonable discretion that such event reasonably could be expected to result in liability part of the Borrower Subordinated Debt shall accelerate the maturity of all or any Subsidiary part of the Subordinated Debt or, except as expressly permitted by ss.9.8, the Subordinated Debt shall be (or shall be required at such time to the PBGC be) prepaid, redeemed or such Plan repurchased in an aggregate amount exceeding $50,000,000 and such event whole or in the circumstances occurring reasonably could constitute grounds for the partial or complete termination of such Plan by the PBGC or for the appointment by the appropriate United States District Court of a trustee to administer such Plan; or a trustee shall have been appointed by the appropriate United States District Court to administer such Planpart; or the PBGC Company or any of its Subsidiaries shall have instituted proceedings be or become required under the Subordinated Indenture to terminate such Planprepay, redeem or repurchase (or shall be or become required thereunder to offer to prepay, redeem or repurchase) all or any part of the Subordinated Debt;
(k) if any of the Loan Documents shall be cancelled, 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 accordance with the terms thereof or with the express prior written agreement, consent or approval of the Banks, 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 or on behalf of the Borrower, the Guarantor, any Borrower or any of its 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 determination that, or issue a judgment, order, decree or ruling to the effect that, any one or more of the Loan Documents is illegal, invalid or unenforceable in accordance with the terms thereof;
(l) any Borrower or any of its Subsidiaries incurs any liability to the PBGC or a Guaranteed Pension Plan pursuant to Title IV of ERISA in an aggregate amount exceeding $1,000,000, or any Borrower or any of its Subsidiaries is assessed withdrawal liability pursuant to Title IV of ERISA by a Multiemployer Plan requiring aggregate annual payments exceeding $1,000,000, or any of the following occurs with respect to a Guaranteed Pension Plan: (i) an ERISA Reportable Event, a failure to make a required installment or other payment (within the meaning of ss.302(f)(1) of ERISA), an ERISA Affiliate incurs any liability to the PBGC or a Guaranteed Pension Plan pursuant to Title IV of ERISA or is assessed withdrawal liability pursuant to Title IV of ERISA, provided that the Agent determines in its reasonable discretion that such event (A) could reasonably be expected to result in liability of the Borrowers or any of their Subsidiaries to the PBGC or such Guaranteed Pension Plan in an aggregate amount exceeding $1,000,000 and (B) could constitute grounds for the termination of such Guaranteed Pension Plan by the PBGC, for the appointment by the appropriate United States District Court of a trustee to administer such Guaranteed Pension Plan or for the imposition of a lien in favor of such Guaranteed Pension Plan; or (ii) the appointment by a United States District Court of a trustee to administer such Guaranteed Pension Plan; or (iii) the institution by the PBGC of proceedings to terminate such Guaranteed Pension Plan;
(m) any Borrower or any of its Subsidiaries shall be enjoined, restrained or in any way prevented by the order of any court or any administrative or regulatory agency from conducting any material part of its business and such order shall continue in effect for more than thirty (30) days;
(n) there shall occur any material damage to, or loss, theft or destruction of, any Collateral, whether or not insured, or any strike, lockout, labor dispute, embargo, condemnation, act of God or public enemy, or other casualty, which in any such case causes, for more than fifteen (15) consecutive days, the cessation or substantial curtailment of revenue producing activities at any facility of any Borrower or any of its Subsidiaries if such event or circumstance is not covered by business interruption insurance and would have a Material Adverse Effect;
(o) there shall occur the loss, suspension or revocation of, or failure to renew, any license or permit now held or hereafter acquired by any Borrower or any of its Subsidiaries if such loss, suspension, revocation or failure to renew would have a Material Adverse Effect;
(p) the Company shall at any time, legally or beneficially own less than (i) 100% of the capital stock of each of its Subsidiaries existing on the Closing Date, or (ii) the greater of (1) 80% of that portion of the capital stock of any Subsidiary acquired or formed after the Closing Date which the Company owned on the date of such acquisition or formation, and (2) 51% of the capital stock of such Subsidiary;
(q) a Change of Control (as such term is defined in the Subordinated Indenture) occurs; or
(lr) if prior to the Initial Public Offering, the Principals shall at any time, legally or beneficially own less than 51% of the capital stock of the Company, as adjusted pursuant to any stock split, stock dividend or recapitalization or reclassification of the capital of the Company and after the Initial Public Offering, any person or group of persons (within the meaning of Section 13 or 14 of the Securities Exchange Act of 1934, as amended) other than the Principals shall have acquired beneficial ownership (within the meaning of Rule 13d-3 promulgated by the Securities and Exchange Commission under said Act) of twenty five percent (25% %) or more of the outstanding shares of common voting stock of the Borrower; or during Company or, at any period of twelve consecutive calendar monthstime, individuals who were directors of the Borrower on the first day of such period (together with any new directors whose election by such board or whose nomination for election by the shareholders of the Borrower was approved by a vote of more than a majority of the directors still in office who were either directors at the beginning of such period or whose election or nomination for election was previously so approved) shall cease to constitute a majority members of the board Board of directors Directors of the Borrower;Company are not Continuing Directors. then, and in any such event, so long as the same may be continuing, the Agent, upon the request of the Majority Banks shall, by notice in writing to the Company declare all amounts owing with respect to this Credit Agreement, the Revolving Credit Notes and the other Loan Documents and all Reimbursement Obligations to be, and they shall thereupon forthwith become, 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 ss.ss.13.1(g), 13.1(h) or 13.1(j), all such amounts shall become immediately due and payable automatically and without any requirement of notice from the Agent or any Bank.
Appears in 1 contract
Events of Default and Acceleration. If any of the following events (“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 or lapse of time, “Defaults”) shall occur:
(a) if the Borrower Borrowers shall fail to pay any principal of the Loans when 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;
(b) if the Borrower Borrowers shall fail to pay any interest on the Loans within five (5) Business Days of the date that the same shall become due and payable or any fees or other amounts owing sums due hereunder (other than those specified in subsection (aany voluntary prepayment) above) or under any of the other Loan Documents within five (5) Business Days after the same shall become due and payable notice from Agent, whether at the Maturity Date 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 any of the covenants contained in §§7.4, 7.5, 7.15, 7.16, 8 and 9 hereof[Reserved];
(d) if any of the Borrower Borrowers shall fail to perform any other term, covenant or agreement contained in §9.1, §9.2, §9.3, §9.4, §9.5, §9.6, §9.7, §9.9 or §9.10 which they are required to perform;
(e) any of the Loan Parties shall fail to perform any other term, covenant or agreement contained herein or in any of the other Loan Documents which they are required to perform (other than those specified in subsections the other subclauses of this §12 (aincluding, without limitation, §12.2 below) or in the other Loan Documents), (b), and (c) above) and such failure shall continue for thirty (30) days after such Borrower receives from Agent written notice thereof, and in the case of a default that cannot be remedied cured within 30 such thirty (30)-day period despite such Borrower’s diligent efforts but is susceptible of being cured within ninety (90) days after written notice of such failure Borrower’s receipt of Agent’s original notice, then such Borrower shall have been given such additional time as is reasonably necessary to effect such cure, but in no event in excess of ninety (90) days from such Borrower’s receipt of Agent’s original notice; provided that the Borrower foregoing cure provisions shall not pertain to any default consisting of a failure to comply with §8.4, or to any Default excluded from any provision of cure of defaults contained in any other of the Loan Documents and with respect to any defaults under §8.1, §8.2 or §8.8, the thirty (30) day cure period described above shall be reduced to a period of ten (10) Business Days and no additional cure period shall be provided with respect to such defaults;
(f) any material representation or warranty made by or on behalf of the Administrative Agent Borrowers or any of the Banks;
(e) if any representation or warranty contained their respective Subsidiaries in this Agreement or any other Loan Document, or any report, certificate, financial statement, request for a Loan, or in any other document or instrument delivered pursuant to or in connection with this Agreement Agreement, any advance of a Loan, or any of the other Loan Documents shall prove to have been false in any material respect upon the date when made or repeated;
(f) if the Borrower or any of its Subsidiaries shall fail deemed to pay when due, or within any applicable period of grace, any Indebtedness or obligations under Swap Contracts in an aggregate amount greater than $75,000,000, or fail to observe or perform any material term, covenant or agreement contained in any one or more agreements by which it is bound, evidencing or securing any Indebtedness or obligations under Swap Contracts in an aggregate amount greater than $75,000,000 for such period of time as would permit, or would have permitted (assuming the giving of appropriate notice if required) the holder or holders thereof or of any obligations issued thereunder to accelerate the maturity thereof or terminate its commitment with respect theretobeen made;
(g) if Any Borrower or Guarantor (or Subsidiary thereof) defaults under (i) any Recourse Indebtedness in an aggregate amount equal to or greater than $5,000,000.00 with respect to all uncured defaults at any time, (ii) any Non-Recourse Indebtedness in an aggregate amount equal to or greater than $50,000,000.00 with respect to all uncured defaults at any time, or (iii) the BorrowerExisting Credit Agreement.
(h) any of the Borrowers or Guarantors, the Guarantor or any Significant Subsidiary makes (i) shall make an assignment for the benefit of creditors, or admits admit in writing its general inability to pay or generally fails fail to pay its debts as they mature or become due, or petitions shall petition or applies apply for the appointment of a trustee or other custodian, liquidator or receiver of the Borrower, the Guarantor for it or any Significant Subsidiary, or of any substantial part of the assets of the Borrowerits assets, the Guarantor or any Significant Subsidiary or commences (ii) shall commence any case or other proceeding relating to the Borrower, the Guarantor or any Significant Subsidiary it 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 (iii) shall take any action to authorize any of the foregoing;
(i) a petition or in furtherance application shall be filed for the appointment of a trustee or other custodian, liquidator or receiver of any of the foregoingBorrowers or Guarantors or any substantial part of the assets of any thereof, or if any such petition or application is filed or any such a case or other proceeding is shall be commenced against the Borrowerany such Person under any bankruptcy, the Guarantor reorganization, arrangement, insolvency, readjustment of debt, dissolution or liquidation or similar law of any Significant Subsidiary jurisdiction, now or the Borrowerhereafter in effect, the Guarantor or and any Significant Subsidiary indicates such Person shall indicate its approval thereof, consent thereto or acquiescence thereintherein or such petition, application, case or proceeding shall not have been dismissed within sixty (60) days following the filing or commencement thereof;
(hj) if a decree or order is entered appointing any such a trustee, custodian, liquidator or receiver for any of the Borrowers or Guarantors or adjudicating the Borrower or the Guarantor or any Significant Subsidiary such Person, 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 or the Guarantor or any Significant Subsidiary such Person in an involuntary case under federal bankruptcy laws of any jurisdiction as now or hereafter constituted;
(ik) if there shall remain in force, undischarged, unsatisfied and unstayed, for more than thirty sixty (60) days, whether or not consecutive, one or more uninsured or unbonded final judgments against any final judgment against Guarantor or Borrower (or Subsidiary thereof) that, either individually or in the aggregate, exceed $5,000,000.00;
(l) any of the Loan Documents shall be canceled, terminated, revoked or rescinded by any Borrower or any Subsidiary whichGuarantor otherwise than in accordance with the terms thereof or the express prior written agreement, consent or approval of the Required Lenders, 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 any of the Borrowers, or any court or any other governmental or regulatory authority or agency of competent jurisdiction shall make a determination, or issue a judgment, order, decree or ruling, to the effect that any one or more of the material Loan Documents is illegal, invalid or unenforceable in accordance with other outstanding final judgments against the Borrower terms thereof, and its Subsidiariesin each case of the foregoing the Borrowers fail to enter into an amendment or modification to the existing Loan Documents or enter into new documentation, exceeds each in form and substance reasonably satisfactory to Agent and Required Lenders, which have the aggregate $50,000,000 after taking into account any undisputed insurance coverageeffect of rendering the cancellation, termination, revocation, rescission, illegality, invalidity or unenforceability immaterial;
(jm) ifany dissolution, termination, partial or complete liquidation, merger or consolidation of any of the Loan Parties shall occur or any sale, transfer or other disposition of the assets of any of the Loan Parties shall occur other, in each case, than as permitted under the terms of this Agreement or the other Loan Documents;
(n) with respect to any Guaranteed Pension Plan, an ERISA Reportable Event shall have occurred and the Banks shall have determined in their reasonable discretion that such event reasonably could would be expected likely to result in liability of any of the Borrower or any Subsidiary Borrowers to pay money to the PBGC or such Plan in an aggregate amount exceeding $50,000,000 5,000,000.00 and one of the following shall apply with respect to such event: (x) such event in the circumstances occurring reasonably could constitute grounds for would be likely to result in the partial or complete termination of such Plan by the PBGC or for the appointment by the appropriate United States District Court of a trustee to administer such Plan; or (y) a trustee shall have been appointed by the appropriate United States District Court to administer such Plan; or (z) the PBGC shall have instituted proceedings to terminate such Plan;
(ko) if the occurrence of any Change 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 Banks, 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 or on behalf of the Borrower, the Guarantor, or any of their respective stockholders, 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 effect that, any one or more of the Loan Documents is illegal, invalid or unenforceable in accordance with the terms thereofControl; or
(lp) if an Event of Default under any person or group of persons (within the meaning of Section 13 or 14 of the Securities Exchange Act other Loan Documents shall occur (subject, in any case, to any applicable cure provision set forth in §12.1(e); then, and upon any such Event of 1934Default, as amended) Agent may, and upon the request of the Required Lenders shall, by notice in writing to the Borrowers declare all amounts owing with respect to this Agreement, the Notes, and the other Loan Documents to be, and they shall have acquired beneficial ownership (within the meaning thereupon forthwith become, immediately due and payable without presentment, demand, protest or other notice of Rule 13d-3 promulgated any kind, all of which are hereby expressly waived by the Securities Borrowers; provided that in the event of any Event of Default specified in §12.1(h), §12.1(i) or §12.1(j), all such amounts shall become immediately due and Exchange Commission under said Act) payable automatically and without any requirement of 25% presentment, demand, protest or more other notice of the outstanding shares of common voting stock of the Borrower; any kind from any Lender or during any period of twelve consecutive calendar months, individuals who were directors of the Borrower on the first day of such period (together with any new directors whose election by such board or whose nomination for election by the shareholders of the Borrower was approved by a vote of a majority of the directors still in office who were either directors at the beginning of such period or whose election or nomination for election was previously so approved) shall cease to constitute a majority of the board of directors of the Borrower;Agent.
Appears in 1 contract
Sources: Term Loan Agreement (Independence Realty Trust, Inc.)
Events of Default and Acceleration. If any of the following events (each, an “Events Event 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:
(a) if the any Borrower shall fail to pay any principal of the Loans made to such Borrower, any L/C Obligation or any obligation in respect of any Banker’s Acceptance when 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 paymentpayment and such default shall not have been remedied within one (1) Business Day after written notice thereof shall have been given to such Borrower and Ryder by an Agent;
(b) if the Borrower applicable Borrowers shall fail to pay any interest or fees or other amounts owing by such Borrower hereunder (other than those specified in subsection (a) above) within five (5) Business Days after when the same shall become due and payable payable, whether at the Maturity Date stated date of maturity or any accelerated date of maturity or at any other date fixed for paymentpayment and such default shall not have been remedied within three (3) Business Days after written notice thereof shall have been given to such Borrower and Ryder by an Agent;
(c) if the Borrower Borrowers shall fail to comply with any of the covenants contained in §9.1, §7.49.2, 7.5§9.3, 7.15, 7.16, 8 and 9 or §10.1 hereof;
(d) if the Borrower Borrowers shall fail to perform any term, covenant or agreement contained herein or in any of the other Loan Documents or pay any amounts (other than those specified in subsections (a), (b), and (c) above) and such failure shall not be remedied within 30 twenty (20) days after written notice of such failure shall have been given to the Borrower Borrowers and Ryder by the Administrative Agent or any of the Banksan Agent;
(e) if any representation or warranty contained in this Agreement or in any document or instrument delivered pursuant to or in connection with this Agreement shall prove to have been false in any material respect upon the date when made or repeated;
(f) if the Borrower or any of its Subsidiaries shall fail to pay when due, or within any applicable period of grace, any Indebtedness or obligations under Swap Contracts in an aggregate amount greater than $75,000,000, or fail to observe or perform any material term, covenant or agreement contained in any one or more agreements by which it is bound, evidencing or securing any Indebtedness or obligations under Swap Contracts in an aggregate amount greater than $75,000,000 for such period of time as would permit, or would have permitted (assuming the giving of appropriate notice if required) the holder or holders thereof or of any obligations issued thereunder to accelerate the maturity thereof or terminate its commitment with respect thereto;
(g) if the Borrower, the Guarantor or any Significant Subsidiary makes an assignment for the benefit of creditors, or admits in writing its inability to pay or generally fails to pay its debts as they mature or become due, or petitions or applies for the appointment of a trustee or other custodian, liquidator or receiver of the Borrower, the Guarantor or any Significant Subsidiary, or of any substantial part of the assets of the Borrower, the Guarantor or any Significant Subsidiary or commences any case or other proceeding relating to the Borrower, the Guarantor or any Significant Subsidiary 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, the Guarantor or any Significant Subsidiary or the Borrower, the Guarantor or any Significant Subsidiary 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 Borrower or the Guarantor or any Significant Subsidiary 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 or the Guarantor or any Significant Subsidiary in an involuntary case under federal bankruptcy laws of any jurisdiction as now or hereafter constituted;
(i) if there shall remain in force, undischarged, unsatisfied and unstayed, for more than thirty days, whether or not consecutive, any final judgment against the Borrower or any Subsidiary which, with other outstanding final judgments against the Borrower and its Subsidiaries, exceeds in the aggregate $50,000,000 after taking into account any undisputed insurance coverage;
(j) if, with respect to any Guaranteed Pension Plan, an ERISA Reportable Event shall have occurred and the Banks shall have determined in their reasonable discretion that such event reasonably could be expected to result in liability of the Borrower or any Subsidiary to the PBGC or such Plan in an aggregate amount exceeding $50,000,000 and such event in the circumstances occurring reasonably could constitute grounds for the partial or complete termination of such Plan by the PBGC or for the appointment by the appropriate United States District Court of a trustee to administer such Plan; or a trustee shall have been appointed by the appropriate United States District Court to administer such Plan; or the PBGC shall have instituted proceedings to terminate such Plan;
(k) if 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 Banks, 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 or on behalf of the Borrower, the Guarantor, or any of their respective stockholders, 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 effect that, any one or more of the Loan Documents is illegal, invalid or unenforceable in accordance with the terms thereof; or
(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 25% or more of the outstanding shares of common voting stock of the Borrower; or during any period of twelve consecutive calendar months, individuals who were directors of the Borrower on the first day of such period (together with any new directors whose election by such board or whose nomination for election by the shareholders of the Borrower was approved by a vote of a majority of the directors still in office who were either directors at the beginning of such period or whose election or nomination for election was previously so approved) shall cease to constitute a majority of the board of directors of the Borrower;
Appears in 1 contract
Sources: Global Revolving Credit Agreement (Ryder System Inc)
Events of Default and Acceleration. If any of the following events (“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, “Defaults”) shall occur:
(a) if the Borrower Borrowers shall fail to pay any principal of the Loans when 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;
(b) if the Borrower Borrowers shall fail to pay any interest or fees or other amounts owing hereunder (other than those specified in subsection (a) above) within five (5) Business Days after the same shall become due and payable whether at the Maturity Date or any accelerated date of maturity or at any other date fixed for payment;
(c) if the Borrower Borrowers shall fail to comply with any of the covenants contained in §§7.4, 7.5, 7.15, 7.16, 8 and 9 hereof;
(d) if the Borrower Borrowers shall fail to perform any term, covenant or agreement contained herein or in any of the other Loan Documents (other than those specified in subsections (a), (b), and (c) above) and such failure shall not be remedied within 30 days after written notice of such failure shall have been given to the Borrower Company by the Administrative Agent or any of the Banks;
(e) if any representation or warranty contained in this Agreement or in any document or instrument delivered pursuant to or in connection with this Agreement shall prove to have been false in any material respect upon the date when made or repeated;
(f) if the Borrower Borrowers or any of its their Subsidiaries shall fail to pay when due, or within any applicable period of grace, any Indebtedness or obligations under Swap Contracts in an aggregate amount greater than $75,000,000100,000,000, or fail to observe or perform any material term, covenant or agreement contained in any one or more agreements by which it is bound, evidencing or securing any Indebtedness or obligations under Swap Contracts in an aggregate amount greater than $75,000,000 100,000,000 for such period of time as would permit, or would have permitted (assuming the giving of appropriate notice if required) the holder or holders thereof or of any obligations issued thereunder to accelerate the maturity thereof or terminate its commitment with respect thereto;
(g) if the any Borrower, the Guarantor or any Significant Subsidiary makes an assignment for the benefit of creditors, makes a proposal to its creditors or files notice of its intention to do so, institutes any other proceeding under applicable law seeking to adjudicate it a bankrupt or an insolvent, or seeking liquidation, dissolution, winding-up, reorganization, compromise, arrangement, adjustment, protection, moratorium, relief, stay of proceedings of creditors, composition of it or its debts or any other similar relief, or admits in writing its inability to pay or generally fails to pay its debts as they mature or become due, or petitions or applies for the appointment of a trustee or other custodian, liquidator or receiver of the any Borrower, the Guarantor or any Significant Subsidiary, or of any substantial part of the assets of the any Borrower, the Guarantor or any Significant Subsidiary or commences any case or other proceeding relating to the any Borrower, the Guarantor or any Significant Subsidiary 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 any Borrower, the Guarantor or any Significant Subsidiary or the any Borrower, the Guarantor or any Significant Subsidiary 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 any Borrower or the Guarantor or any Significant Subsidiary 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 any Borrower or the Guarantor or any Significant Subsidiary in an involuntary case under federal bankruptcy laws of any jurisdiction as now or hereafter constituted;
(i) if there shall remain in force, undischarged, unsatisfied and unstayed, for more than thirty days, whether or not consecutive, any final judgment against the any Borrower or any Subsidiary which, with other outstanding final judgments against the any Borrower and or its Subsidiaries, exceeds in the aggregate $50,000,000 100,000,000 after taking into account any undisputed insurance coverage;
(j) (i) if, with respect to any Guaranteed Pension Plan, an ERISA Reportable Event shall have occurred and the Banks shall have determined in their reasonable discretion that such event reasonably could be expected to result in liability of the any Borrower or any Subsidiary to the PBGC or such Plan in an aggregate amount exceeding $50,000,000 and such event in the circumstances occurring reasonably could constitute grounds for the partial or complete termination of such Plan by the PBGC or for the appointment by the appropriate United States District Court of a trustee to administer such Plan; or a trustee shall have been appointed by the appropriate United States District Court to administer such Plan; or the PBGC shall have instituted proceedings to terminate such PlanPlan or (ii) any event, condition or circumstances, including any failure by any Loan Party or any Subsidiary to perform its obligations under a Canadian Pension Plan in respect of all Canadian Pension Plans and the Banks shall have determined in their reasonable discretion that such event reasonably could be expected to result in liability of any Borrower or any Subsidiary in an aggregate amount exceeding $50,000,000;
(k) if 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 Banks, 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 or on behalf of the any Borrower, the Guarantor, or any of their respective stockholders, 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 effect that, any one or more of the Loan Documents is illegal, invalid or unenforceable in accordance with the terms thereof; or;
(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 2530% or more of the outstanding shares of common voting stock of the BorrowerCompany; or during any period of twelve consecutive calendar months, individuals who were directors of the any Borrower on the first day of such period (together with any new directors whose election by such board or whose nomination for election by the shareholders of the such Borrower was approved by a vote of a majority of the directors still in office who were either directors at the beginning of such period or whose election or nomination for election was previously so approved) shall cease to constitute a majority of the board of directors of such Borrower; or
(m) either of the Canadian Borrowers ceases to be directly or indirectly wholly-owned Subsidiaries of the Company; then, and in any such event, so long as the same may be continuing, the Administrative Agent may, and upon the request of the Majority Banks shall, by notice in writing to the Company, declare all amounts owing with respect to this Agreement and the other Loan Documents and all Reimbursement Obligations to be, and they shall thereupon forthwith become, immediately due and payable without presentment, demand, protest, notice of intent to accelerate, notice of acceleration to the extent permitted by law or other notice of any kind, all of which are hereby expressly waived by each Borrower;; provided that in the event of any Event of Default specified in §12.1(g) or 12.1(h) with respect to any Borrower or the Guarantor, all such amounts shall become immediately due and payable automatically and without any requirement of notice from the Administrative Agent or any Bank. Upon demand by the Majority Banks after the occurrence of any Event of Default (or, in the event of any Event of Default specified in §12.1(g) or 12.1(h) with respect to any Borrower or the Guarantor, automatically without demand), the Borrowers shall immediately provide to the Administrative Agent cash in an amount equal to the aggregate Maximum Drawing Amount to be held by the Administrative Agent as collateral security for the Reimbursement Obligations.
Appears in 1 contract
Events of Default and Acceleration. If any of the following events (“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, “Defaults”) shall occuroccur and be continuing:
(a) if the Borrower shall fail to pay any principal of the Loans or any Reimbursement Obligation when 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;
(b) if the Borrower or any of its Subsidiaries shall fail to pay any interest or fees on the Loans, any Fees, or other amounts owing sums due hereunder or under any of the other Loan Documents, within three (other than those specified in subsection (a) above) within five (53) Business Days after the same shall have become due and payable payable, whether at the Maturity Date 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 any of the its covenants contained in §§7.47.3(a), (b) or (c), the first sentence of 7.5, 7.157.9, 7.167.10, 8 and 9 hereofor 9;
(d) if the Borrower or any of its Subsidiaries shall fail to perform any term, covenant or agreement contained herein or in any of the other Loan Documents (other than those specified elsewhere in subsections this §12.1) for thirty (a), (b), and (c30) above) and such failure shall not be remedied within 30 days after written notice of such failure shall have has been given to the Borrower by the Administrative Agent or any of the BanksAgent;
(e) if any representation or warranty contained of the Borrower or any of its Subsidiaries in this Credit Agreement or any of the other Loan Documents or in any other document or instrument delivered pursuant to or in connection with this Credit Agreement shall prove to have been false in any material respect upon the date when made or deemed to have been made or repeated;
(f) if the Borrower or any of its Subsidiaries shall fail to pay when dueat maturity, or within any applicable period of grace, any Indebtedness obligation for borrowed money or obligations under Swap Contracts credit received or in an respect of any Capitalized Leases or any Synthetic Leases, individually or in the aggregate amount greater than which exceeds $75,000,00025,000,000 (“Material Debt”), or fail to observe or perform any material term, covenant or agreement contained in any one or more agreements by which it is bound, evidencing or securing any Indebtedness or obligations under Swap Contracts in an aggregate amount greater than $75,000,000 agreement for such period of time Material Debt as would permit, or would have permitted permit (assuming the giving of appropriate notice if required) the holder or holders thereof or of any obligations issued thereunder to accelerate the maturity thereof thereof, or terminate its commitment with respect theretoany such holder or holders shall rescind or shall have a right to rescind the purchase of any such obligations constituting Material Debt;
(g) if the Borrower, the Guarantor Borrower or any Significant Subsidiary makes of its Subsidiaries shall make an assignment for the benefit of creditors, or admits admit in writing its inability to pay or generally fails fail to pay its debts as they mature or become due, or petitions shall petition or applies apply for the appointment of a trustee or other custodian, liquidator or receiver of the Borrower, the Guarantor Borrower or any Significant Subsidiary, of its Subsidiaries or of any substantial part of the assets of the Borrower, the Guarantor Borrower or any Significant Subsidiary of its Subsidiaries or commences shall commence any case or other proceeding relating to the Borrower, the Guarantor Borrower or any Significant Subsidiary of 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 shall take any action to authorize or in furtherance of any of the foregoing, or if any such petition or application is shall be filed or any such case or other proceeding is shall be commenced against the Borrower, the Guarantor Borrower or any Significant Subsidiary or of its Subsidiaries and the Borrower, the Guarantor Borrower or any Significant Subsidiary indicates of its Subsidiaries shall indicate its approval thereof, consent thereto or acquiescence thereintherein or such petition or application shall not have been dismissed within sixty (60) days following the filing thereof;
(h) if a decree or order is entered appointing any such trustee, custodian, liquidator or receiver or adjudicating the Borrower or the Guarantor or any Significant Subsidiary of 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 in respect of the Borrower or any Subsidiary of the Guarantor or any Significant Subsidiary Borrower in an involuntary case under federal bankruptcy laws of any jurisdiction as now or hereafter constituted, which shall not have been dismissed or stayed within sixty (60) days after the filing thereof;
(i) if there shall remain in force, undischarged, unsatisfied and unstayed, for more than thirty sixty (60) days, whether or not consecutive, any final judgment against the Borrower or any Subsidiary whichof its Subsidiaries that, with other outstanding final judgments judgments, undischarged, against the Borrower and or any of its Subsidiaries, Subsidiaries exceeds in the aggregate $50,000,000 after taking into account any undisputed insurance coverage15,000,000;
(j) if, with respect to any Guaranteed Pension Plan, an ERISA Reportable Event shall have occurred and the Banks shall have determined in their reasonable discretion that such event reasonably could be expected to result in liability of the Borrower or any Subsidiary to the PBGC or such Plan in an aggregate amount exceeding $50,000,000 and such event in the circumstances occurring reasonably could constitute grounds for the partial or complete termination of such Plan by the PBGC or for the appointment by the appropriate United States District Court of a trustee to administer such Plan; or a trustee shall have been appointed by the appropriate United States District Court to administer such Plan; or the PBGC shall have instituted proceedings to terminate such Plan;
(k) if 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 BanksLenders required thereby, 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 or on behalf of the Borrower, the Guarantor, Borrower or any of its 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 determination that, or issue a judgment, order, decree or ruling to the effect that, any one or more of the Loan Documents is illegal, invalid or unenforceable in accordance with the terms thereof;
(i) An ERISA Event occurs with respect to a Pension Plan or Multiemployer Plan which has resulted or could reasonably be expected to result in liability of the Borrower under Title IV of ERISA to the Pension Plan, Multiemployer Plan or the PBGC in an aggregate amount in excess of the Threshold Amount, or (ii) the Borrower or any ERISA Affiliate fails to pay when due, after the expiration of any applicable grace period, any installment payment with respect to its withdrawal liability under Section 4201 of ERISA under a Multiemployer Plan in an aggregate amount in excess of the Threshold Amount; or
(l) if a Change of Control shall occur. then, and in any person or group of persons (within such event, so long as the meaning of Section 13 or 14 same may be continuing, the Administrative Agent may, and upon the request of the Securities Exchange Act Required Lenders shall, by notice in writing to the Borrower declare all amounts owing with respect to this Credit Agreement and the other Loan Documents and all Reimbursement Obligations to be, and they shall thereupon forthwith become, immediately due and payable without presentment, demand, protest or other notice of 1934any kind, as amended) shall have acquired beneficial ownership (within the meaning all of Rule 13d-3 promulgated which are hereby expressly waived by the Securities and Exchange Commission under said Act) of 25% or more of the outstanding shares of common voting stock of the Borrower; provided that in the event of any Event of Default specified in §§12.1(g) or during 12.1(h), all such amounts shall become immediately due and payable automatically and without any period requirement of twelve consecutive calendar months, individuals who were directors of notice from the Borrower on the first day of such period (together with Administrative Agent or any new directors whose election by such board or whose nomination for election by the shareholders of the Borrower was approved by a vote of a majority of the directors still in office who were either directors at the beginning of such period or whose election or nomination for election was previously so approved) shall cease to constitute a majority of the board of directors of the Borrower;Lender.
Appears in 1 contract
Events of Default and Acceleration. If any of the following events (“"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 or lapse of time, “"Defaults”") shall occur:
(a) if any of the Borrower Borrowers shall fail to pay any principal of the Loans or any Reimbursement Obligation when 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;
(b) if any of the Borrower Borrowers or any of their Subsidiaries shall fail to pay any interest or fees on the Loans, any Fees, or other amounts owing sums due hereunder (or under any of the other than those specified in subsection (a) above) within five (5) Business Days after Loan Documents, when the same shall become due and payable payable, whether at the Maturity Date stated date of maturity or any accelerated date of maturity or at any other date fixed for payment;
(c) if any of the Borrower Borrowers shall fail to comply with any of the its covenants contained in §§7.4ss.ss.9.1, 7.59.2, 7.15, 7.16, 8 9.4 (except for 9.4(f)(B) and 9 hereof;
(d) if the Borrower shall fail to perform any term, covenant or agreement contained herein or in any of the other Loan Documents (other than those specified in subsections (ag)), 9.5 through 9.10, 9.12, 9.14, 9.15, 9.16(a) and (b), and 9.17, 10.1 through 10.6, 10.8, 10.10 through 10.15 or 11;
15.1) for thirty (c30) above) and such failure shall not be remedied within 30 days after written notice of such failure shall have has been given to the Borrower Borrowers by the Administrative Agent or any of the BanksAgent;
(e) if any representation or warranty contained of any of the Borrowers or any of their Subsidiaries in this Credit Agreement or any of the other Loan Documents or in any other document or instrument delivered pursuant to or in connection with this Credit Agreement shall prove to have been false in any material respect upon the date when made or deemed to have been made or repeated;
(f) if any of the Borrower Borrowers or any of its their Subsidiaries shall fail to pay when dueat maturity, or within any applicable period of grace, any Indebtedness obligation for borrowed money or obligations under Swap Contracts credit received or in an aggregate amount greater than $75,000,000respect of any Capitalized Leases, or fail to observe or perform any material term, covenant or agreement contained in any one or more agreements agreement by which it is bound, evidencing or securing borrowed money or credit received or in respect of any Indebtedness or obligations under Swap Contracts in an aggregate amount greater than $75,000,000 Capitalized Leases for such period of time as would permit, or would have permitted permit (assuming the giving of appropriate notice if required) the holder or holders thereof or of any obligations issued thereunder to accelerate the maturity thereof thereof, or terminate its commitment with respect theretoany such holder or holders shall rescind or shall have a right to rescind the purchase of any such obligations;
(g) if any of the Borrower, the Guarantor Borrowers or any Significant Subsidiary makes of their Subsidiaries shall make an assignment for the benefit of creditors, or admits admit in writing its inability to pay or generally fails fail to pay its debts as they mature or become due, or petitions shall petition or applies apply for the appointment of a trustee or other custodian, liquidator or receiver of any of the Borrower, the Guarantor Borrowers or any Significant Subsidiary, of their Subsidiaries or of any substantial part of the assets of any of the Borrower, the Guarantor Borrowers or any Significant Subsidiary of their Subsidiaries or commences shall commence any case or other proceeding relating to any of the Borrower, the Guarantor Borrowers or any Significant Subsidiary of 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 shall take any action to authorize or in furtherance of any of the foregoing, or if any such petition or application is shall be filed or any such case or other proceeding is shall be commenced against any of the Borrower, the Guarantor Borrowers or any Significant Subsidiary or of their Subsidiaries and any of the Borrower, the Guarantor Borrowers or any Significant Subsidiary indicates of their Subsidiaries shall indicate its approval thereof, consent thereto or acquiescence thereintherein or such petition or application shall not have been dismissed within sixty (60) days following the filing thereof;
(h) if a decree or order is entered appointing any such trustee, custodian, liquidator or receiver or adjudicating any of the Borrower or the Guarantor Borrowers or any Significant Subsidiary of 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 in respect of any of the Borrower or the Guarantor Borrowers or any Significant Subsidiary of any Borrower in an involuntary case under federal bankruptcy laws of any jurisdiction as now or hereafter constituted;
(i) if there shall remain in force, undischarged, unsatisfied and unstayed, for more than thirty forty (40) days, whether or not consecutive, any final judgment (not adequately covered by insurance with respect to which the relevant insurance company has acknowledged coverage or for which adequate reserves are not maintained on the consolidated balance sheet of the Borrowers) against any of the Borrower Borrowers or any Subsidiary whichof their Subsidiaries that, with other outstanding final judgments judgments, undischarged, against any of the Borrower and its Subsidiaries, Borrowers or any of their Subsidiaries exceeds in the aggregate $50,000,000 after taking into account any undisputed insurance coverage3,000,000;
(j) if, with respect to the holders of all or any Guaranteed Pension Plan, an ERISA Reportable Event shall have occurred and the Banks shall have determined in their reasonable discretion that such event reasonably could be expected to result in liability part of the Borrower Subordinated Debt or PBGC Debt shall accelerate the maturity of all or any Subsidiary to part of the PBGC or such Plan in an aggregate amount exceeding $50,000,000 and such event in the circumstances occurring reasonably could constitute grounds for the partial or complete termination of such Plan by the PBGC or for the appointment by the appropriate United States District Court of a trustee to administer such Plan; or a trustee shall have been appointed by the appropriate United States District Court to administer such Plan; Subordinated Debt or the PBGC Debt, 73 -66- respectively, the Subordinated Debt shall have instituted proceedings be prepaid, redeemed or repurchased in whole or in part or the Borrowers shall fail to terminate such Planmake any required payments in respect of the PBGC Debt;
(k) if any of the Loan Documents shall be cancelled, 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 or the Replacement Security Documents, as the case may be, in each case otherwise than in accordance with the terms thereof or with the express prior written agreement, consent or approval of the BanksLenders or other than due to an act or omission of the Agent or any Lender, 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 or on behalf of any of the Borrower, the Guarantor, 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 Governmental Authority of competent jurisdiction shall make a determination that, or issue a judgment, order, decree or ruling to the effect that, any one or more of the Loan Documents is illegal, invalid or unenforceable in accordance with the terms thereof; or;
(l) any of the Borrowers or any ERISA Affiliate incurs any liability to the PBGC or a Guaranteed Pension Plan pursuant to Title IV of ERISA in an aggregate amount exceeding $1,000,000, or any of the Borrowers or any ERISA Affiliate is assessed withdrawal liability pursuant to Title IV of ERISA by a Multiemployer Plan requiring aggregate annual payments exceeding $1,000,000, or any of the following occurs with respect to a Guaranteed Pension Plan: (i) an ERISA Reportable Event, or a failure to make a required installment or other payment (within the meaning of ss.302(f)(1) of ERISA), provided that the Agent determines in its reasonable discretion that such event (A) could be expected to result in liability of any of the Borrowers or any of their Subsidiaries to the PBGC or such Guaranteed Pension Plan in an aggregate amount exceeding $1,000,000 and (B) could constitute grounds for the termination of such Guaranteed Pension Plan by the PBGC, for the appointment by the appropriate United States District Court of a trustee to administer such Guaranteed Pension Plan or for the imposition of a Lien in favor of such Guaranteed Pension Plan; or (ii) the appointment by a United States District Court of a trustee to administer such Guaranteed Pension Plan; or (iii) the institution by the PBGC of proceedings to terminate such Guaranteed Pension Plan;
(m) any of the Borrowers or any of their Subsidiaries shall be enjoined, restrained or in any way prevented by the order of any court or any administrative or regulatory agency from conducting any material part of its business and such order shall continue in effect for more than thirty (30) days;
(n) there shall occur any material damage to, or loss, theft or destruction of, any Collateral, whether or not insured, or any strike, lockout, labor dispute, embargo, condemnation, act of God or public enemy, or other casualty, which in any such case causes, for more than fifteen (15) consecutive days, the cessation or substantial curtailment of revenue producing activities at any facility of any of the Borrowers or any of their Subsidiaries if such event or circumstance is not covered by business interruption insurance and would have a Materially Adverse Effect;
(o) there shall occur the loss, suspension or revocation of, or failure to renew, any license or permit now held or hereafter acquired by any of the Borrowers or any of their Subsidiaries if such loss, suspension, revocation or failure to renew would have a Materially Adverse Effect; 74 -67-
(p) any person (other than Glencore) 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 25% fifty-one percent (51%) or more of the outstanding shares of common voting stock of the BorrowerCentury Aluminum; or
(q) Century Aluminum shall (subject to ss.9.5 hereof) at any time, directly or during any period of twelve consecutive calendar monthsindirectly through one or more Subsidiaries, individuals who were directors legally or beneficially own less than one hundred percent (100%) of the shares of the capital stock and other outstanding equity interests of each of the Borrowers (other than itself) and the other Guarantors; then, and in any such event, so long as the same may be continuing, the Agent may, and upon the request of the Majority Lenders shall, by notice in writing to the Borrower on declare all amounts owing with respect to this Credit Agreement, the first day Notes and the other Loan Documents and all Reimbursement Obligations to be, and they shall thereupon forthwith become, immediately due and payable without presentment, demand, protest or other notice of such period (together with any new directors whose election by such board or whose nomination for election kind, all of which are hereby expressly waived by the shareholders Borrowers; provided that in the event of any Event of Default specified in ss.ss.15.1(g), 15.1(h) or 15.1(j), all such amounts shall become immediately due and payable automatically and without any requirement of notice from the Borrower was approved by a vote of a majority of the directors still in office who were either directors at the beginning of such period Agent or whose election or nomination for election was previously so approved) shall cease to constitute a majority of the board of directors of the Borrower;any Lender.
Appears in 1 contract
Sources: Revolving Credit and Term Loan Agreement (Century Aluminum Co)
Events of Default and Acceleration. If any of the following events (“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 or lapse of time, “Defaults”) shall occur:
(a) if the Borrower shall fail to pay any principal of the Loans when 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;
(b) if the Borrower shall fail to pay any interest on the Loans or fees any other sums due hereunder or under any of the other amounts owing hereunder Loan Documents (other than those specified in subsection (a) aboveprincipal) within five (5) Business Days days after the same shall become due and payable whether at the Maturity Date or any accelerated date of maturity or at any other date fixed for paymentpayable;
(c) if the Borrower or the Company shall fail to comply with any of the its covenants contained in §§7.4, 7.5, 7.15the first sentence of §7.6, 7.16§7.7, §7.13, §7.20, §8 and or §9 hereofhereof or;
(d) if the Borrower or any Guarantor shall fail to perform any other term, covenant or agreement contained herein or in any of the other Loan Documents (other than those specified elsewhere in subsections this §12) for thirty (a), (b), and (c30) above) and such failure shall not be remedied within 30 days after written notice of such failure shall have been given from Agent to the Borrower by the Administrative Agent or any of the BanksBorrower;
(e) if any representation or warranty contained of the Borrower or any Guarantor in this Agreement or in any of the other Loan Documents or in any other document or instrument delivered pursuant to or in connection with this Agreement Agreement, shall prove to have been false in any material respect upon the date when made or deemed to have been made or repeated;
(f) if (i) any “Event of Default”, as such term is defined in the Borrower Unsecured Revolving Credit Facility, shall have occurred and be continuing under the Unsecured Revolving Credit Facility, whether or any of its Subsidiaries shall fail to pay when due, or within any applicable period of grace, any Indebtedness or obligations under Swap Contracts in an aggregate amount greater than $75,000,000, or fail to observe or perform any material term, covenant or agreement contained in any one or more agreements by which it is bound, evidencing or securing any Indebtedness or obligations under Swap Contracts in an aggregate amount greater than $75,000,000 for such period of time as would permit, or would have permitted (assuming not the giving of appropriate notice if required) the holder or holders thereof or maturity of any obligations issued thereunder to accelerate has been accelerated; (ii) any “Event of Default”, as such term is defined in the maturity thereof or terminate its commitment with respect thereto;
(g) if Term Loan Facility, shall have occurred and be continuing under the Borrower, the Guarantor or any Significant Subsidiary makes an assignment for the benefit of creditors, or admits in writing its inability to pay or generally fails to pay its debts as they mature or become due, or petitions or applies for the appointment of a trustee or other custodian, liquidator or receiver of the Borrower, the Guarantor or any Significant Subsidiary, or of any substantial part of the assets of the Borrower, the Guarantor or any Significant Subsidiary or commences any case or other proceeding relating to the Borrower, the Guarantor or any Significant Subsidiary 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, the Guarantor or any Significant Subsidiary or the Borrower, the Guarantor or any Significant Subsidiary 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 Borrower or the Guarantor or any Significant Subsidiary 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 or the Guarantor or any Significant Subsidiary in an involuntary case under federal bankruptcy laws of any jurisdiction as now or hereafter constituted;
(i) if there shall remain in force, undischarged, unsatisfied and unstayed, for more than thirty daysTerm Loan Facility, whether or not consecutive, any final judgment against the Borrower or any Subsidiary which, with other outstanding final judgments against the Borrower and its Subsidiaries, exceeds in the aggregate $50,000,000 after taking into account any undisputed insurance coverage;
(j) if, with respect to any Guaranteed Pension Plan, an ERISA Reportable Event shall have occurred and the Banks shall have determined in their reasonable discretion that such event reasonably could be expected to result in liability maturity of the Borrower or any Subsidiary to the PBGC or such Plan in an aggregate amount exceeding $50,000,000 and such event in the circumstances occurring reasonably could constitute grounds for the partial or complete termination of such Plan by the PBGC or for the appointment by the appropriate United States District Court of a trustee to administer such Plan; or a trustee shall have been appointed by the appropriate United States District Court to administer such Plan; or the PBGC shall have instituted proceedings to terminate such Plan;
(k) if 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 Banks, 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 or on behalf of the Borrower, the Guarantor, or any of their respective stockholders, 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 effect that, any one or more of the Loan Documents is illegal, invalid or unenforceable in accordance with the terms thereof; or
(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 25% or more of the outstanding shares of common voting stock of the Borrower; or during any period of twelve consecutive calendar months, individuals who were directors of the Borrower on the first day of such period (together with any new directors whose election by such board or whose nomination for election by the shareholders of the Borrower was approved by a vote of a majority of the directors still in office who were either directors at the beginning of such period or whose election or nomination for election was previously so approved) shall cease to constitute a majority of the board of directors of the Borrower;any
Appears in 1 contract
Sources: Revolving Secured Credit and Guaranty Agreement (Sl Green Realty Corp)
Events of Default and Acceleration. If any of the following events (“"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 or lapse of time, “"Defaults”") shall occur:
(a) if the Borrower shall fail to pay any principal of the Loans when 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;
(b) if the Borrower shall fail to pay any interest or fees on the Loans, the commitment fee, any Letter of Credit Fee, or other amounts owing sums due hereunder (or under any of the other than those specified in subsection (a) above) Loan Documents, within five (5) Business Days days after the same shall become due and payable payable, whether at the Maturity Date 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 any of its covenants contained in 9.1, 9.5.1, 9.7, 9.8, 9.9, 9.12-9.15, 10 (other than certain provisions of 10.2 as set forth in 14.1(d) and 10.7) or 11, or any of the covenants contained in §§7.4, 7.5, 7.15, 7.16, 8 and 9 hereofany of the Mortgages;
(d) if the Borrower shall fail to comply with any of its covenants contained in 9.11 or, only as to involuntary liens, the provisions of 10.2 applicable to such involuntary liens, within thirty (30) days after the occurrence of such noncompliance;
(e) the Borrower shall fail to perform any term, covenant or agreement contained in 9.2, 9.4, 9.5 (other than 9.5.1), and 10.8 (other than those specified elsewhere in this 14.1) for fifteen (15) days after written notice of such failure has been given to the Borrower by the Agent;
(f) the Borrower shall fail to comply with any of its covenants contained herein or in any of the other Loan Documents (other than those specified elsewhere in subsections this 14.1) for thirty (a), (b), and (c30) above) and such failure shall not be remedied within 30 days after written notice of such failure shall have has been given to the Borrower by the Administrative Agent Agent;
(g) any representation or warranty of the Borrower in this Credit Agreement or any of the Banks;
(e) if any representation or warranty contained in this Agreement other Loan Documents or in any other document or instrument delivered pursuant to or in connection with this Credit Agreement shall prove to have been false in any material respect upon the date when made or deemed to have been made or repeated;
(fh) if the Borrower or any of its Subsidiaries shall fail to pay when dueat maturity, or within any applicable period of grace, any Indebtedness obligation for borrowed money or obligations under Swap Contracts credit received (other than trade credit) or in respect of any Capitalized Leases (other than Capitalized Leases for vehicles and forklifts) in an aggregate amount greater than in excess of $75,000,000250,000, or fail to observe or perform any material term, covenant or agreement contained in any one or more agreements agreement by which it is bound, evidencing or securing borrowed money or credit received (other than trade credit) or in respect of any Indebtedness or obligations under Swap Contracts in an aggregate amount greater than $75,000,000 Capitalized Leases for such period of time as would permit, or would have permitted permit (assuming the giving of appropriate notice if required) the holder or holders thereof or of any obligations issued thereunder to accelerate the maturity thereof or terminate its commitment with respect theretothereof;
(gi) if the Borrower, the Guarantor Borrower or any Significant Subsidiary makes shall make an assignment for the benefit of creditors, or admits admit in writing its inability to pay or generally fails fail to pay its debts as they mature or become due, or petitions shall petition or applies apply for the appointment of a trustee or other custodian, liquidator or receiver of the Borrower, the Guarantor Borrower or any Significant Subsidiary, Subsidiary or of any substantial part of the assets of the Borrower, the Guarantor Borrower or any Significant Subsidiary or commences shall commence any case or other proceeding relating to the Borrower, the Guarantor Borrower or any Significant Subsidiary 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 shall take any action to authorize or in furtherance of any of the foregoing, or if any such petition or application is shall be filed or any such case or other proceeding is shall be commenced against the Borrower, the Guarantor Borrower or any Significant Subsidiary and the Borrower or the Borrower, the Guarantor or any Significant such Subsidiary indicates shall indicate its written approval thereof, consent thereto or acquiescence therein;
(hj) if a decree or order is entered appointing any such trustee, custodian, liquidator or receiver or adjudicating the Borrower or the Guarantor or any Significant Subsidiary bankrupt or insolvent, or approving a petition in any such case or other proceeding, or a decree or order for relief is entered and remains in force for more than forty- five (45) days, whether or not consecutive, in respect of the Borrower or the Guarantor or any Significant Subsidiary in an involuntary case under federal bankruptcy laws of any jurisdiction as now or hereafter constituted, provided, such an involuntary case was brought by creditors of the Borrower having an aggregate claim of not more than $100,000;
(ik) if there shall remain in force, undischarged, unsatisfied and unstayed, for more than thirty (30) days, whether or not consecutive, any final judgment against the Borrower or any Subsidiary whichnot covered by insurance that, with other outstanding final judgments not otherwise covered by insurance, undischarged, against the Borrower and its Subsidiaries, exceeds in the aggregate $50,000,000 after taking into account any undisputed insurance coverage500,000;
(j) if, with respect to any Guaranteed Pension Plan, an ERISA Reportable Event shall have occurred and the Banks shall have determined in their reasonable discretion that such event reasonably could be expected to result in liability of the Borrower or any Subsidiary to the PBGC or such Plan in an aggregate amount exceeding $50,000,000 and such event in the circumstances occurring reasonably could constitute grounds for the partial or complete termination of such Plan by the PBGC or for the appointment by the appropriate United States District Court of a trustee to administer such Plan; or a trustee shall have been appointed by the appropriate United States District Court to administer such Plan; or the PBGC shall have instituted proceedings to terminate such Plan;
(kl) if any of the Loan Documents shall be cancelledcanceled, terminated, revoked or rescinded otherwise than in accordance with the terms thereof or with the express prior written agreement, consent or approval of the Banks, 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 or on behalf of the Borrower, the Guarantor, or any of their respective stockholders, 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 effect that, any one or more of the Loan Documents is illegal, invalid or unenforceable in accordance with the terms thereof;
(m) with respect to any Guaranteed Pension Plan, an ERISA Reportable Event shall have occurred and the Majority Banks has determined in their reasonable discretion that such event reasonably could be expected to result in liability of the Borrower to the PBGC or such Guaranteed Pension Plan in an aggregate amount exceeding $500,000 and such event in the circumstances occurring reasonably could constitute grounds for the termination of such Guaranteed Pension Plan by the PBGC or for the appointment by the appropriate United States District Court of a trustee to administer such Guaranteed Pension Plan; or a trustee shall have been appointed by the United States District Court to administer such Plan; or the PBGC shall have instituted proceedings to terminate such Guaranteed Pension Plan;
(n) the Borrower shall be enjoined, restrained or in any way prevented by the order of any court or any administrative or regulatory agency from conducting any part of its business and such order shall continue in effect for more than thirty (30) days if such enjoinment, restriction or prevention would have a material adverse effect on the business or financial condition of the Borrower;
(o) there shall occur any material damage to, or loss, theft or destruction of, any Collateral, whether or not insured, or any embargo, condemnation (other than by eminent domain), act of God or public enemy, or other casualty, which in any such case causes, for more than thirty (30) consecutive days, the cessation or substantial curtailment of revenue producing activities at any facility of the Borrower if such event or circumstance is not covered by business interruption insurance and would have a material adverse effect on the business or financial condition of the Borrower;
(p) there shall occur the loss, suspension or revocation of, or failure to renew, any license or permit for a period of more than thirty (30) days in any twelve (12) month period, whether or not consecutive now held or hereafter acquired by the Borrower if such loss, suspension, revocation or failure to renew would have a material adverse effect on the business or financial condition of the Borrower; or
(lq) if a Change of Control has occurred; then, and in any person or group of persons (within such event, so long as the meaning of Section 13 or 14 same may be continuing, the Agent may and, upon the request of the Securities Exchange Act Majority Banks shall, by notice in writing to the Borrower declare all amounts owing with respect to this Credit Agreement, the Notes and the other Loan Documents to be, and they shall thereupon forthwith become, immediately due and payable without presentment, demand, protest or other notice of 1934any kind, as amended) shall have acquired beneficial ownership (within the meaning all of Rule 13d-3 promulgated which are hereby expressly waived by the Securities and Exchange Commission under said Act) of 25% or more of the outstanding shares of common voting stock of the Borrower; provided that in the event of any Event of Default specified in 14.1(i) or during 14.1(j), all such amounts shall become immediately due and payable automatically and without any period requirement of twelve consecutive calendar months, individuals who were directors of notice from the Borrower on the first day of such period (together with Agent or any new directors whose election by such board or whose nomination for election by the shareholders of the Borrower was approved by a vote of a majority of the directors still in office who were either directors at the beginning of such period or whose election or nomination for election was previously so approved) shall cease to constitute a majority of the board of directors of the Borrower;Bank.
Appears in 1 contract
Sources: Revolving Credit and Term Loan Agreement (Arrow Automotive Industries Inc)
Events of Default and Acceleration. If any of the following events (“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, “Defaults”"EVENTS OF DEFAULT") shall occur:
(a) if the Borrower Borrowers shall fail to pay any principal of the Loans, any interest on the Loans or any other sums due hereunder or under any of the other Loan Documents, when 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;
(b) if the Borrower shall fail to pay any interest or fees or other amounts owing hereunder (other than those specified in subsection (a) above) within five (5) Business Days after the same shall become due and payable whether at the Maturity Date or any accelerated date of maturity or at any other date fixed for payment;
(c) if the Borrower Borrowers shall fail to comply with any of the their covenants contained in §§7.4ss.ss. 7.1, 7.57.5(e), 7.157.10, 7.167.12, 7.13, 7.14, 8 and or 9 hereof;
(c) the Borrowers shall fail to comply with any of their covenants contained in (i) ss.7.4 hereof for two (2) Business Days after the date when due or (ii) ss.7.8 hereof for five (5) Business Days;
(d) if the Borrower Borrowers or any of their Subsidiaries shall fail to perform any other term, covenant or agreement contained herein (other than those specified elsewhere in this ss.12) or in any of the covenants contained in any other Loan Documents (other than those specified elsewhere in subsections this ss.12) for fifteen (a), (b), and (c15) above) and such failure shall not be remedied within 30 days after written notice of such failure shall have has been given to the Borrower Borrowers by the Administrative Agent or any of the BanksLender;
(e) if any representation or warranty contained of the Borrowers or any of their Subsidiaries in this Agreement or any of the other Loan Documents or in any other document or instrument delivered pursuant to or in connection with this Agreement shall prove is determined by the Lender to have been false in any material respect upon the date when made or deemed to have been made or repeated;
(f) if the any Borrower or any of its Subsidiaries shall fail to pay when dueat maturity, or within any applicable period of grace, any Indebtedness post-petition obligation for borrowed money or obligations under Swap Contracts credit received or in an aggregate amount greater than $75,000,000respect of any capital leases, or fail to observe or perform any material term, covenant or agreement contained in any one or more agreements agreement by which it is bound, evidencing or securing borrowed money or credit received or in respect of any Indebtedness or obligations under Swap Contracts in an aggregate amount greater than $75,000,000 capital leases for such period of time as would permit, or would have permitted permit (assuming the giving of appropriate notice if required) the holder or holders thereof or of any obligations issued thereunder to accelerate the maturity thereof or terminate its commitment with respect theretothereof;
(g) if the Borrower, the Guarantor or any Significant Subsidiary makes an assignment for the benefit of creditors, or admits in writing its inability to pay or generally fails to pay its debts as they mature or become due, or petitions or applies for the appointment of a trustee or other custodian, liquidator or receiver of the Borrower, the Guarantor or any Significant Subsidiary, or of any substantial part of the assets of the Borrower, the Guarantor or any Significant Subsidiary or commences any case or other proceeding relating to the Borrower, the Guarantor or any Significant Subsidiary 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, the Guarantor or any Significant Subsidiary or the Borrower, the Guarantor or any Significant Subsidiary 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 Borrower or the Guarantor or any Significant Subsidiary 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 or the Guarantor or any Significant Subsidiary in an involuntary case under federal bankruptcy laws of any jurisdiction as now or hereafter constituted;
(i) if there shall remain in force, undischarged, unsatisfied and unstayed, for more than thirty days, whether or not consecutive, any post-petition final judgment judgments in excess of $100,000 in the aggregate against the any Borrower or any Subsidiary which, with other outstanding final judgments against the Borrower and of its Subsidiaries, exceeds in the aggregate $50,000,000 after taking into account any undisputed insurance coverage;
(j) if, with respect to any Guaranteed Pension Plan, an ERISA Reportable Event shall have occurred and the Banks shall have determined in their reasonable discretion that such event reasonably could be expected to result in liability of the Borrower or any Subsidiary to the PBGC or such Plan in an aggregate amount exceeding $50,000,000 and such event in the circumstances occurring reasonably could constitute grounds for the partial or complete termination of such Plan by the PBGC or for the appointment by the appropriate United States District Court of a trustee to administer such Plan; or a trustee shall have been appointed by the appropriate United States District Court to administer such Plan; or the PBGC shall have instituted proceedings to terminate such Plan;
(kh) if any of the Loan Documents shall be cancelledcanceled, terminated, revoked or rescinded otherwise than in accordance with the terms thereof or with the express prior written agreement, consent or approval of the Banks, 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 or on behalf of the Borrower, the Guarantor, any Borrower or any of their respective stockholdersits Subsidiaries, 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 effect that, any one or more of the Loan Documents is illegal, invalid or unenforceable in accordance with the terms thereof;
(i) any Borrower or any Subsidiary shall be indicted for a federal crime, a punishment for which could include the forfeiture of any assets of any Borrower or such Subsidiaries;
(j) there shall have occurred any material adverse change, as determined by the Lender in good faith, in or to the assets, liabilities, financial condition, business operations, or prospects of the Borrowers and its Subsidiaries, taken as a whole;
(k) Any Change in Control;
(l) Unless the transactions described in ss.10.9 and 10.10 have been consummated and the Obligations theretofore paid in full, the failure of the Borrowers to have obtained a Final Borrowing Order on or before June 10, 2000;
(m) The failure of the Borrowers to have obtained a final order from the Bankruptcy Court in the Proceedings on or before June 15, 2000 approving the transactions described in ss.ss.10.9 and 10.10 hereof; or the entry of an order of the Bankruptcy Court at any time denying approval of the transactions described in ss.ss.10.9 and 10.10 hereof;
(n) The termination of any of the commitments described in ss.10.10 hereof for any reason, including, but not limited to, a notice from any Investor stating that it is not in a position to fund its entire commitment in accordance with the terms thereof;
(o) The failure of the Borrowers and the other parties thereto to have consummated the transactions described in ss.ss.10.9 and 10.10 hereof on or before June 30, 2000 (or such later date as the Lender may agree in writing);
(p) The entry of an order in the Proceedings, which order constitutes the stay, modification, appeal, or reversal of any Borrowing Order or which otherwise affects the effectiveness of any Borrowing Order;
(q) The appointment in the Proceedings of a trustee or of any examiner having expanded powers to operate all or any part of any Borrower's business;
(r) The conversion of the Proceedings to a case under Chapter 7 of the Bankruptcy Code; or
(ls) if The entry of any person or group of persons (within order which provides relief from the meaning of automatic stay otherwise imposed pursuant to Section 13 or 14 362 of the Securities Exchange Act Bankruptcy Code, which order permits any creditor, other than the Lender , to realize upon, or to exercise any right or remedy with respect to, any material asset of 1934any Borrower or to terminate any license, franchise, or similar agreement, where such termination could have a material adverse effect on any Borrower's financial condition or ability to conduct its business in the ordinary course; or
(t) An "event of default" shall arise under the Stipulation, substantially in the form of EXHIBIT E hereto, pursuant to which the agent and the lenders under the Pre-Petition Loan Agreement shall be afforded adequate protection during the Proceedings with respect to the Pre-Petition Revolver, the Pre-Petition Term Loan and the other obligations under the Pre-Petition Loan Agreement. then, and in any such event, so long as amended) the same may be continuing, subject to the terms of the Borrowing Order, the Lender, may, by notice in writing to the Borrowers declare all amounts owing with respect to this Agreement, the Note and the other Loan Documents to be, and they shall have acquired beneficial ownership (within the meaning thereupon forthwith become, immediately due and payable without presentment, demand, protest or other notice of Rule 13d-3 promulgated any kind, all of which are hereby expressly waived by the Securities and Exchange Commission under said Act) of 25% or more of the outstanding shares of common voting stock of the Borrower; or during any period of twelve consecutive calendar months, individuals who were directors of the Borrower on the first day of such period (together with any new directors whose election by such board or whose nomination for election by the shareholders of the Borrower was approved by a vote of a majority of the directors still in office who were either directors at the beginning of such period or whose election or nomination for election was previously so approved) shall cease to constitute a majority of the board of directors of the Borrower;Borrowers.
Appears in 1 contract
Sources: Revolving Credit Agreement (Nutramax Products Inc /De/)
Events of Default and Acceleration. If any of the following events (“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 or lapse of time, “Defaults”) shall occur:
(a) if the Borrower shall fail to pay any principal of the Loans when 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;
(b) if the Borrower shall fail to pay any interest on the Loans or fees any other sums due hereunder or under any of the other amounts owing hereunder (other than those specified in subsection (a) above) within five (5) Business Days after Loan Documents when the same shall become due and payable payable, whether at the Maturity Date stated date of maturity or any accelerated date of maturity or at any other date fixed for payment, and such failure shall continue for ten (10) days (provided that such grace period will not apply to interest due upon the maturity of the Obligations);
(c) if the Borrower or any other Loan Party shall fail to comply with any of the covenants covenant contained in §§7.4, 7.5§7.9, 7.15, 7.16, §8 and 9 hereofor §9;
(d) if the Borrower or any other Loan Party shall fail to perform any other term, covenant or agreement contained herein or in any of the other Loan Documents (other than those 6231593.9\0334186 specified in subsections (athe other subclauses of this §12), (b), and (c) above) ; and such failure shall not be remedied within 30 continue for thirty (30) days after written notice of such failure thereof shall have been given to the Borrower by the Administrative Agent or any of the BanksAgent;
(e) if any Any representation or warranty contained made by any Loan Party in this Agreement or in any other Loan Document to which it is a party, or in any report, certificate, financial statement, request for a Loan, or in any other document or instrument delivered pursuant to or in connection with this Agreement Agreement, any advance of a Loan, or any of the other Loan Documents shall prove to have been false or misleading in any material respect upon the date when made or deemed to have been made or repeated;
(f) if the Borrower or any of its Subsidiaries Any Loan Party shall fail to pay at maturity or otherwise when due, or within any applicable period of grace, any obligation for borrowed money or credit received or other Indebtedness or obligations under Swap Contracts in having an aggregate principal amount greater than outstanding of at least $75,000,000100,000, or fail to observe or perform any material term, covenant or agreement contained in any one or more agreements agreement by which it is bound, evidencing or securing any such borrowed money or credit received or other Indebtedness or obligations under Swap Contracts in an aggregate amount greater than $75,000,000 for such period of time as would permit, or would have permitted permit (assuming the giving of appropriate notice if required) the holder or holders thereof or of any obligations issued thereunder to accelerate the maturity thereof or terminate its commitment with respect theretothereof;
(g) if the Borrower, the Guarantor or any Significant Subsidiary makes Any Loan Party (1) shall make an assignment for the benefit of creditors, or admits admit in writing its general inability to pay or generally fails fail to pay its debts as they mature or become due, or petitions shall petition or applies apply for the appointment of a trustee or other custodian, liquidator or receiver of the Borrower, the Guarantor or any Significant Subsidiary, Loan Party or of any substantial part of the assets of the Borrowerany thereof, the Guarantor or including, without limitation, any Significant Subsidiary or commences Eligible Investment, (2) shall commence any case or other proceeding relating to the Borrower, the Guarantor or any Significant Subsidiary Loan Party 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 (3) shall take any action to authorize or in furtherance of any of the foregoing, or if any such ;
(h) A petition or application is shall be filed for the appointment of a trustee or other custodian, liquidator or receiver of any Loan Party, or any such substantial part of the assets of any thereof, including, without limitation, any Eligible Investment, or a case or other proceeding is shall be commenced against the BorrowerBorrower under any bankruptcy, the Guarantor reorganization, arrangement, insolvency, readjustment of debt, dissolution or liquidation or similar law of any Significant Subsidiary jurisdiction, now or the Borrowerhereafter in effect, the Guarantor or any Significant Subsidiary indicates and such Loan Party shall indicate its approval thereof, consent thereto or acquiescence thereintherein or such petition, application, case or proceeding shall not have been dismissed within ninety (90) days following the filing or commencement thereof;
(hi) if a A decree or order is entered appointing any such trustee, custodian, liquidator or receiver or adjudicating the Borrower or the Guarantor or any Significant Subsidiary Loan Party 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 or the Guarantor or any Significant Subsidiary Loan Party in an involuntary case under federal bankruptcy laws of any jurisdiction as now or hereafter constituted;
(ij) if there There shall remain in force, undischarged, unsatisfied and unstayed, for more than thirty sixty (60) days, whether or not consecutive, any final judgment against the Borrower or any Subsidiary whichLoan Party, that, with other outstanding final judgments judgments, undischarged, against the Borrower and its Subsidiaries, Loan Parties exceeds in the aggregate $50,000,000 after taking into account any undisputed insurance coverage;
5,000,000 (j) if, with respect to any Guaranteed Pension Plan, an ERISA Reportable Event shall have occurred and the Banks shall have determined in their reasonable discretion that such event reasonably could be expected to result in liability of the Borrower or any Subsidiary to the PBGC extent not paid or such Plan in an aggregate amount exceeding $50,000,000 and such event in the circumstances occurring reasonably could constitute grounds for the partial or complete termination of such Plan covered by the PBGC or for the appointment by the appropriate United States District Court of a trustee to administer such Planinsurance); or a trustee shall have been appointed by the appropriate United States District Court to administer such Plan; or the PBGC shall have instituted proceedings to terminate such Plan;6231593.9\0334186
(k) if If any of the Loan Documents shall be cancelledcanceled, terminated, revoked or rescinded otherwise than in accordance with the terms thereof or with the express prior written agreement, consent or approval of the BanksLenders, 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 or on behalf of the Borrower, the Guarantor, any Loan Party or any of their respective stockholders, partners, members or beneficiaries, 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 effect that, any one or more of the Loan Documents is illegal, invalid or unenforceable in accordance with the terms thereof;
(l) Any dissolution, termination, partial or complete liquidation, merger or consolidation of any Loan Party, or any sale, transfer or other disposition of the assets of any Loan Party, other than as permitted under the terms of this Agreement or the other Loan Documents;
(m) Any Loan Party shall be indicted for a federal crime, a punishment for which could include the forfeiture of any assets of Borrower included in the Collateral;
(n) With respect to any Guaranteed Pension Plan, an ERISA Reportable Event shall have occurred that reasonably could be expected to result in liability of any Loan Party to the PBGC or such Guaranteed Pension Plan in an aggregate amount exceeding $1,000,000 and such event in the circumstances occurring reasonably could constitute grounds for the termination of such Guaranteed Pension Plan by the PBGC or for the appointment by the appropriate United States District Court of a trustee to administer such Guaranteed Pension Plan; or a trustee shall have been appointed by the United States District Court to administer such Guaranteed Pension Plan; or the PBGC shall have instituted proceedings to terminate such Guaranteed Pension Plan;
(o) A Change of Control shall occur without the prior written approval of all of Lenders (which consent may be withheld by Lenders in their sole and absolute discretion);
(p) Any Event of Default, as defined in any of the other Loan Documents, shall occur;
(q) Any amendment to or termination of a financing statement naming any Loan Party as debtor and Agent as secured party relating to the Collateral, or any correction statement with respect thereto, is filed in any jurisdiction by, or caused by, or at the instance of any Loan Party without the prior written consent of Agent (except to the extent of a release of Collateral permitted by this Agreement); or any amendment to or termination of a financing statement naming any Loan Party as debtor and Agent as secured party, or any correction statement with respect thereto, is filed in any jurisdiction by any party other than Agent or Agent’s counsel (or by Borrower at Agent’s direction) without the prior written consent of Agent and Borrower fails to use its best efforts to cause the effect of such filing to be completely nullified to the reasonable satisfaction of Agent within ten (10) days after notice to Borrower thereof; or
(lr) if An event of default shall occur under any person Eligible Lease or group of persons (within Eligible Mortgage; then, and in any such event, Agent may, and upon the meaning of Section 13 or 14 request of the Securities Exchange Act Required Lenders shall, by notice in writing to Borrower declare all amounts owing with respect to this Agreement, the Notes 6231593.9\0334186 and the other Loan Documents to be, and they shall thereupon forthwith become, immediately due and payable without presentment, demand, protest or other notice of 1934any kind, as amended) shall have acquired beneficial ownership (within the meaning all of Rule 13d-3 promulgated which are hereby expressly waived by the Securities and Exchange Commission under said Act) of 25% or more of the outstanding shares of common voting stock of the Borrower; provided that in the event of any Event of Default specified in §12.1(g), §12.1(h) or during §12.1(i), all such amounts shall become immediately due and payable automatically and without any period requirement of twelve consecutive calendar months, individuals who were directors notice from any of the Borrower on the first day of such period (together with any new directors whose election by such board Lenders or whose nomination for election by the shareholders of the Borrower was approved by a vote of a majority of the directors still in office who were either directors at the beginning of such period or whose election or nomination for election was previously so approved) shall cease to constitute a majority of the board of directors of the Borrower;Agent.
Appears in 1 contract
Sources: Revolving Credit Agreement (CorEnergy Infrastructure Trust, Inc.)
Events of Default and Acceleration. If any of the following events (“"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 or lapse of time, “"Defaults”") shall occur:
(a) if the Borrower shall fail to pay any principal of the Loans when 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;
(b) if the Borrower shall fail to pay any interest on the Loans, any reimbursement obligations with respect to the Letters of Credit or fees any other sums due hereunder or under any of the other amounts owing hereunder (other than those specified in subsection (a) above) within five (5) Business Days after Loan Documents when the same shall become due and payable payable, whether at the Maturity Date 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 the covenant contained in Section 9.1 and such failure shall continue to exist after written notice thereof shall have been given to the Borrower by the Agent and the cure period provided in Section 12.2 shall have ended;
(d) the Borrower shall fail to comply with any of the covenants covenant contained in §§7.4Section 9.2, 7.5Section 9.3, 7.15Section 9.4, 7.16Section 9.5, 8 Section 9.6, Section 9.7, Section 9.8 or Section 9.9 and 9 hereofsuch failure shall continue for thirty (30) days after written notice thereof shall have been given to the Borrower by the Agent;
(de) if any of the Borrower Borrower, the Guarantors, or any of their respective Subsidiaries shall fail to perform any other term, covenant or agreement contained herein or in any of the other Loan Documents which they are required to perform (other than those specified in subsections (athe other subclauses of this Section 12 or in the other Loan Documents), (b), and (c) above) and such failure shall not be remedied within 30 days after written notice of such failure shall have been given to the Borrower by the Administrative Agent or any of the Banks;
(ef) if any representation or warranty contained made by or on behalf of the Borrower, the Guarantors, or any of their respective Subsidiaries in this Agreement or any other Loan Document, or any report, certificate, financial statement, request for a Loan, Letter of Credit Request, or in any other document or instrument delivered pursuant to or in connection with this Agreement Agreement, any advance of a Loan, the issuance of any Letter of Credit or any of the other Loan Documents shall prove to have been false in any material respect upon the date when made or deemed to have been made or repeated;
(fg) if any of the Borrower Borrower, the Guarantors, or any of its their respective Subsidiaries (i) shall fail to pay when dueat maturity, or within any applicable period of grace, any Indebtedness obligation for borrowed money or obligations under Swap Contracts in an aggregate amount greater than $75,000,000credit received or other Indebtedness, or (ii) shall fail to observe or perform any material term, covenant or agreement contained in any one or more agreements agreement by which it is bound, evidencing or securing any obligation for borrowed money or credit received or other Indebtedness or obligations under Swap Contracts in an aggregate amount greater than $75,000,000 for such period of time as would permit, or would have permitted permit (assuming the giving of appropriate notice if required) the holder or holders thereof or of any obligations issued thereunder to accelerate the maturity thereof thereof; provided that the events described in this Section 12.1(g) shall not constitute an Event of Default unless such failure to perform, together with other failures to perform as described in this Section 12.1(g), involve singly or terminate its commitment with respect theretoin the aggregate obligations for borrowed money or credit received totaling in excess of $5,000,000.00;
(gh) if any of the Borrower, the Guarantor Guarantors, or any Significant Subsidiary makes of their respective Subsidiaries, (i) shall make an assignment for the benefit of creditors, or admits admit in writing its general inability to pay or generally fails fail to pay its debts as they mature or become due, or petitions shall petition or applies apply for the appointment of a trustee or other custodian, liquidator or receiver of the Borrower, the Guarantor for it or any Significant Subsidiary, or of any substantial part of the assets of the Borrowerits assets, the Guarantor or any Significant Subsidiary or commences (ii) shall commence any case or other proceeding relating to the Borrower, the Guarantor or any Significant Subsidiary it 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 (iii) shall take any action to authorize or in furtherance of any of the foregoing, or if any such ;
(i) a petition or application is shall be filed for the appointment of a trustee or other custodian, liquidator or receiver of any of the Borrower, the Guarantors, or any such of their respective Subsidiaries or any substantial part of the assets of any thereof, or a case or other proceeding is shall be commenced against the Borrowerany such Person under any bankruptcy, the Guarantor reorganization, arrangement, insolvency, readjustment of debt, dissolution or liquidation or similar law of any Significant Subsidiary jurisdiction, now or the Borrowerhereafter in effect, the Guarantor or and any Significant Subsidiary indicates such Person shall indicate its approval thereof, consent thereto or acquiescence thereintherein or such petition, application, case or proceeding shall not have been dismissed within sixty (60) days following the filing or commencement thereof;
(hj) if a decree or order is entered appointing any such a trustee, custodian, liquidator or receiver for any of the Borrower, the Guarantors, or any of their respective Subsidiaries or adjudicating the Borrower or the Guarantor or any Significant Subsidiary such Person, 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 or the Guarantor or any Significant Subsidiary such Person in an involuntary case under federal bankruptcy laws of any jurisdiction as now or hereafter constituted;
(ik) if there shall remain in force, undischarged, unsatisfied and unstayed, for more than thirty sixty (60) days, whether or not consecutive, one or more uninsured or unbonded final judgments against any final judgment against of the Borrower, the Guarantors, or any of their respective Subsidiaries that, either individually or in the aggregate, exceed $5,000,000;
(l) any of the Loan Documents or the Contribution Agreement shall be canceled, terminated, revoked or rescinded otherwise than in accordance with the terms thereof or the express prior written agreement, consent or approval of the Lenders, or any action at law, suit in equity or other legal proceeding to cancel, revoke or rescind any of the Loan Documents or the Contribution Agreement shall be commenced by or on behalf of any of the Borrower or the Guarantors, or any court or any other governmental or regulatory authority or agency of competent jurisdiction shall make a determination, or issue a judgment, order, decree or ruling, to the effect that any one or more of the Loan Documents or the Contribution Agreement is illegal, invalid or unenforceable in accordance with the terms thereof;
(m) any dissolution, termination, partial or complete liquidation, merger or consolidation of any of the Borrower or any Subsidiary whichGuarantor shall occur or any sale, with transfer or other outstanding final judgments against disposition of the assets of any of the Borrower and its Subsidiaries, exceeds in or any Guarantor shall occur other than as permitted under the aggregate $50,000,000 after taking into account any undisputed insurance coverageterms of this Agreement or the other Loan Documents;
(jn) if, with respect to any Guaranteed Pension Plan, an ERISA Reportable Event shall have occurred and the Banks Required Lenders shall have determined in their reasonable discretion that such event reasonably could be expected to result in liability of any of the Borrower -84- Borrower, the Guarantors or any Subsidiary of their respective Subsidiaries to the PBGC or such Guaranteed Pension Plan in an aggregate amount exceeding $50,000,000 2,000,000 and such event in the circumstances occurring reasonably could constitute grounds for the partial or complete termination of such Guaranteed Pension Plan by the PBGC or for the appointment by the appropriate United States District Court of a trustee to administer such Guaranteed Pension Plan; or a trustee shall have been appointed by the appropriate United States District Court to administer such Plan; or the PBGC shall have instituted proceedings to terminate such Guaranteed Pension Plan;
(ko) if any suit or proceeding shall be filed against or with respect to the Borrower, any Guarantor, any of their respective Subsidiaries or any Collateral which in 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 good faith business judgment of the Banks, or any action at law, Required Lenders after giving consideration to the likelihood of success of such suit or in equity or other legal proceeding and the availability of insurance to cancelcover any judgment with respect thereto and based on the information available to them if adversely determined, revoke or rescind any of would have a materially adverse effect on the Loan Documents shall be commenced by or on behalf ability of the Borrower, the Guarantor, any Guarantor or any of their respective stockholders, or any court or any other governmental or regulatory authority or agency Subsidiaries to perform each and every one of competent jurisdiction shall make a determination that, or issue a judgment, order, decree or ruling to the effect that, any one or more its obligations under and by virtue of the Loan Documents is illegaland such suit or proceeding shall not have been dismissed within sixty (60) days following the filing thereof;
(p) the Borrower, invalid any Guarantor or unenforceable any of their respective Subsidiaries or any Person so connected with any of them shall be indicted for a federal crime, a punishment for which could include the forfeiture of (i) any assets of Borrower, any Guarantor or any of their respective Subsidiaries which in accordance the good faith judgment of the Required Lenders could have a Material Adverse Effect, or (ii) the Collateral;
(q) any Guarantor denies that it has any liability or obligation under the Guaranty or any other Loan Document, or shall notify the Agent or any of the Lenders of such Guarantor's intention to attempt to cancel or terminate the Guaranty or any other Loan Document, or shall fail to observe or comply with any term, covenant, condition or agreement under the terms thereofGuaranty or any other Loan Document beyond any applicable cure period;
(r) any Change of Control shall occur; or
(ls) if an Event of Default under any person or group of persons (within the meaning of Section 13 or 14 of the Securities Exchange Act of 1934other Loan Documents shall occur; then, as amended) shall have acquired beneficial ownership (within and in any such event, the meaning of Rule 13d-3 promulgated by Agent may, and upon the Securities and Exchange Commission under said Act) of 25% or more request of the outstanding shares Required Lenders shall, by notice in writing to the Borrower declare all amounts owing with respect to this Agreement, the Notes, the Letters of common voting stock Credit and the other Loan Documents to be, and they shall thereupon forthwith become, 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 12.1(h), Section 12.1(i) or during Section 12.1(j), all such amounts shall become immediately due and payable automatically and without any period requirement of twelve consecutive calendar monthspresentment, individuals who were directors demand, protest or other notice of any kind from any of the Lenders or the Agent. Upon demand by Agent or the Required Lenders in their absolute and sole discretion after the occurrence of an Event of Default, and regardless of whether the conditions precedent in this Agreement for a Revolving Credit Loan have been satisfied, the Revolving Credit Lenders will cause a Revolving Credit Loan to be made in the undrawn amount of all Letters of Credit. The proceeds of any such Revolving Credit Loan will be pledged to and held by Agent as security for any amounts that become payable under the Letters of Credit and all other Obligations and Hedge Obligations. In the alternative, if demanded by Agent in its absolute and sole discretion after the occurrence of an Event of Default, Borrower on will deposit with and pledge to Agent cash in an amount equal to the first day amount of all undrawn Letters of Credit. Such amounts will be pledged to and held by Agent for the benefit of the Lenders as security for any amounts that become payable under the Letters of Credit and all other Obligations and Hedge Obligations. Upon any draws under Letters of Credit, at Agent's sole discretion, Agent may apply any such amounts to the repayment of amounts drawn thereunder and upon the expiration of the Letters of Credit any remaining amounts will be applied to the payment of all other Obligations and Hedge Obligations or if there are no outstanding Obligations or Hedge Obligations and Lenders have no further obligation to make Revolving Credit Loans or issue Letters of Credit or if such excess no longer exists, such proceeds deposited by Borrower will be released to Borrower. If at any time the aggregate amount of funds pledged to Agent as collateral for such Letters of Credit shall exceed one hundred percent (100%) of the aggregate face amount of all amounts available to be drawn under such Letters of Credit (including any amounts that may be reinstated thereunder), Agent shall release the amount of such period (together with any new directors whose election by such board or whose nomination for election excess deposited by the shareholders of the Borrower was approved by a vote of a majority of the directors still in office who were either directors at the beginning of such period or whose election or nomination for election was previously so approved) shall cease to constitute a majority of the board of directors of the Borrower;.
Appears in 1 contract
Events of Default and Acceleration. If any of the following events (“"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 or lapse of time, “"Defaults”") shall occur:
(a) if the Borrower shall fail to pay any principal of the Loans or any Reimbursement Obligation when 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;
(b) if the Parent, the Borrower or any of their Subsidiaries shall fail to pay any interest or fees on the Loans, the Fees, or other amounts owing sums due hereunder (or under any of the other than those specified in subsection (a) above) within five (5) Business Days after Loan Documents, when the same shall become due and payable payable, whether at the Maturity Date stated date of maturity or any accelerated date of maturity or at any other date fixed for paymentpayment and such failure shall continue for three (3) days after written notice of such failure has been given to the Parent and the Borrower by the Administrative Agent;
(c) if either the Parent or the Borrower shall fail to comply with any of the its covenants contained in §§ss.ss.7.1 7.2, 7.4, 7.5, 7.6(a)(i), 7.6(b)(iii), 7.7, 7.10, 7.11, 7.12, 7.13, 7.14, 7.15, 7.16, 7.17, 7.18, 7.20, Article 8 and or Article 9 hereofof this Credit Agreement or any of the covenants contained in any of the Mortgages;
(d) if the Borrower Parent or any of its Subsidiaries shall fail to perform any term, covenant or agreement contained herein or in any of the other Loan Documents (other than those specified elsewhere in subsections this ss.
12.1) for thirty (a), (b), and (c30) above) and such failure shall not be remedied within 30 days after written notice of such failure shall have has been given to the Parent and the Borrower by the Administrative Agent or any of the BanksAgent;
(e) if any representation or warranty contained of the Parent or any of its Subsidiaries in this Credit Agreement or any of the other Loan Documents or in any other document or instrument delivered pursuant to or in connection with this Credit Agreement shall prove to have been false in any material respect upon the date when made or deemed to have been made or repeated;
(f) if the Borrower Parent or any of its Subsidiaries shall fail to pay when due, or within any applicable period of grace, any Indebtedness or obligations under Swap Contracts in an aggregate amount greater than $75,000,000, or fail to observe or perform any material term, covenant or agreement contained in any one or more agreements by which it is bound, evidencing or securing any Indebtedness or obligations under Swap Contracts in an aggregate amount greater than $75,000,000 for such period of time as would permit, or would have permitted (assuming the giving of appropriate notice if required) the holder or holders thereof or of any obligations issued thereunder to accelerate the maturity thereof or terminate its commitment with respect thereto;
(g) if the Borrower, the Guarantor or any Significant Subsidiary makes make an assignment for the benefit of creditors, or admits admit in writing its inability to pay or generally fails fail to pay its debts as they mature or become due, or petitions shall petition or applies apply for the appointment of a trustee or other custodian, liquidator or receiver of the Borrower, the Guarantor Parent or any Significant Subsidiary, of its Subsidiaries or of any substantial part of the assets of the Borrower, the Guarantor Parent or any Significant Subsidiary of its Subsidiaries or commences shall commence any case or other proceeding relating to the Borrower, the Guarantor Parent or any Significant Subsidiary of 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 shall take any action to authorize or in furtherance of any of the foregoing, or if any such petition or application is (including bankruptcy application) shall be filed or any such case or other proceeding is shall be commenced against the Borrower, the Guarantor Parent or any Significant Subsidiary of its Subsidiaries or the Borrower, the Guarantor Parent or any Significant Subsidiary indicates of its Subsidiaries shall indicate its approval thereof, consent thereto or acquiescence thereintherein or such petition or application shall not have been dismissed within sixty (60) days following the filing thereof;
(hg) if a decree or order (including a bankruptcy order) is entered appointing any such trustee, custodian, liquidator or receiver or adjudicating the Borrower or the Guarantor Parent or any Significant Subsidiary of its Subsidiaries bankrupt or insolvent, or approving a petition or bankruptcy application in any such case or other proceeding, or a decree or order (including a bankruptcy order) for relief is entered in respect of the Borrower or the Guarantor Parent or any Significant Subsidiary of the Parent in an involuntary case under federal bankruptcy laws of any jurisdiction as now or hereafter constituted;
(ih) if there shall remain in force, undischarged, unsatisfied and unstayed, for more than thirty (30) days, whether or not consecutive, any final judgment against the Borrower or Parent and any Subsidiary whichof its Subsidiaries (considered collectively) that, with other outstanding final judgments judgments, undischarged, against the Borrower Parent and its Subsidiaries, Subsidiaries (considered collectively) exceeds in the aggregate $50,000,000 after taking into account any undisputed insurance coverage1,000,000;
(jA) ifthe Parent, the Borrower or any ERISA Affiliate incurs any liability to the PBGC or a Guaranteed Pension Plan pursuant to Title IV of ERISA in an aggregate amount exceeding $1,000,000, or the Parent, the Borrower or any ERISA Affiliate is assessed withdrawal liability pursuant to Title IV of ERISA by a Multiemployer Plan requiring aggregate annual payments exceeding $1,000,000, or any of the following occurs with respect to any a Guaranteed Pension Plan, : (i) an ERISA Reportable Event shall have occurred and Event, or a failure to make a required installment or other payment (within the Banks shall have determined meaning of ss.302(f)(1) of ERISA), PROVIDED that the Administrative Agent determines in their its reasonable discretion that such event reasonably (A) could be expected to result in liability of the Borrower Parent or any Subsidiary of its Subsidiaries to the PBGC or such Guaranteed Pension Plan in an aggregate amount exceeding $50,000,000 1,000,000 and such event in the circumstances occurring reasonably (B) could constitute grounds for the partial or complete termination of such Guaranteed Pension Plan by the PBGC or PBGC, for the appointment by the appropriate United States District Court of a trustee to administer such Guaranteed Pension Plan or for the imposition of a lien in favor of such Guaranteed Pension Plan; or (ii) the appointment by a trustee shall have been appointed by the appropriate United States District Court of a trustee to administer such Guaranteed Pension Plan; or (iii) the institution by the PBGC shall have instituted of proceedings to terminate such Guaranteed Pension Plan;
(j) the Parent or any of its Subsidiaries shall fail to pay at maturity, or within any applicable period of grace, any obligation for Indebtedness in excess of $500,000, or fail to observe or perform any material term, covenant or agreement contained in any agreement by which it is bound, evidencing or securing Indebtedness in excess of $500,000 for such period of time as would permit (assuming the giving of appropriate notice if required) the holder or holders thereof or of any obligations issued thereunder to accelerate the maturity thereof;
(k) if any of the Loan Documents shall be cancelled, terminated, revoked or rescinded or the Administrative Agent's security interests, mortgages or liens in all or a substantial portion of the Collateral shall cease to be perfected, or shall cease to have the priority contemplated by the Security Documents and the Intercreditor Agreement, in each case otherwise than in accordance with the terms thereof or with the express prior written agreement, consent or approval of the BanksLenders, 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 or on behalf of the BorrowerParent, its Subsidiaries, the Guarantor, Guarantors or any of their respective stockholders, 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 effect that, any one or more of the Loan Documents is illegal, invalid or unenforceable in accordance with the terms thereof; or;
(l) if any person material covenant, agreement or group of persons (within the meaning of Section 13 or 14 obligation of the Securities Exchange Act Parent or the Borrower contained in or evidenced by the Loan Documents shall cease to be legal, valid, binding, or enforceable in accordance with the terms thereof other than as a result of 1934a default or waiver thereof by the Administrative Agent;
(m) a Change of Control shall occur;
(n) there shall occur any material damage to, or loss, theft or destruction of, any Collateral, whether or not insured, or any strike, lockout, labor dispute, embargo, condemnation, expropriation, act of God or public enemy, or other casualty, which in any such case causes, for more than thirty (30) consecutive days, the cessation or substantial curtailment of revenue producing activities at any facility of the Parent or any of its Subsidiaries if such event or circumstance is not covered by business interruption insurance and would have a material adverse effect on the business, assets, operation or financial condition of the Borrower and the Guarantors (taken as amendeda whole), or the ability of the Parent or any Subsidiary of the Parent to fulfill its obligations under this Credit Agreement or the other Loan Documents;
(o) the Parent or any of its Subsidiaries shall be enjoined, restrained or in any way prevented by the order of any Governmental Authority from conducting any part of their business and such order shall continue in effect for more than thirty (30) days unless such order would not have a material adverse effect on the business, assets, operation or financial condition of the Borrower and the Guarantors (taken as a whole), or the ability of the Parent or any Subsidiary of the Parent to fulfill its obligations under this Credit Agreement or the other Loan Documents;
(p) there shall occur the loss, suspension or revocation of, or failure to renew, any license or permit now held or hereafter acquired by the Parent or any of its Subsidiaries if such loss, suspension, revocation or failure to renew would have a material adverse effect on the business, assets, operation or financial condition of the Borrower and the Guarantors (taken as a whole), or the ability of the Parent or any Subsidiary of the Parent to fulfill its obligations under this Credit Agreement or the other Loan Documents;
(q) any "event of default" under the Term Loan Agreement shall occur and be continuing; or
(r) the subordination provisions in the Intercreditor Agreement relative to the liens of the Term Loan Agent in the Collateral (other than the Fixed Asset Collateral) shall have acquired beneficial ownership (within cease, in whole or in part, to be effective or cease to be legally valid, binding and enforceable against the meaning of Rule 13d-3 promulgated by Term Loan Agent and the Securities and Exchange Commission under said Act) of 25% or more holders of the outstanding shares Term Loans, then, and in any such event, so long as the same may be continuing, the Administrative Agent may, and upon the request of common voting stock the Required Lenders shall, by notice in writing to the Borrower, declare all amounts owing with respect to this Credit Agreement and the other Loan Documents and all Reimbursement Obligations to be, and they shall thereupon forthwith become, immediately due and payable without presentment, demand, protest or other notice of any kind, all of which are hereby expressly waived by each of the Parent and the Borrower; provided that in the event of any Event of Default specified in ss.ss.12.1(f) or during 12.1(g), all such amounts shall becOme immediately due and payable automatically and without any period requirement of twelve consecutive calendar months, individuals who were directors of notice from the Borrower on the first day of such period (together with Administrative Agent or any new directors whose election by such board or whose nomination for election by the shareholders of the Borrower was approved by a vote of a majority of the directors still in office who were either directors at the beginning of such period or whose election or nomination for election was previously so approved) shall cease to constitute a majority of the board of directors of the Borrower;Lender.
Appears in 1 contract
Sources: Revolving Credit Agreement (Quaker Fabric Corp /De/)
Events of Default and Acceleration. If any of the following events (“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 or lapse of time, “Defaults”) shall occur:
(a) if the Borrower shall fail to pay any principal of the Term Loans when 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 paymentpayment and, except in the case of an acceleration of the maturity of the Term Loans, in which case an Event of Default shall occur immediately, such failure shall continue for a period of five (5) days;
(b) if the Borrower or any of its Subsidiaries shall fail to pay any interest or on the Term Loans, any fees or other amounts owing sums due hereunder (or under any of the other than those specified in subsection (a) above) within five (5) Business Days after Loan Documents, when the same shall become due and payable payable, whether at the Maturity Date stated date of maturity or any accelerated date of maturity or at any other date fixed for paymentpayment and, except in the case of an acceleration of the maturity of the Term Loans, in which case an Event of Default shall occur immediately, such failure shall continue for a period of five (5) days;
(c) if the Borrower shall fail to comply with any of the its covenants contained in §§7.48.1, 7.58.2 (other than, 7.15with respect to CAI, 7.16moves within the State of California or with respect to the Borrower, 8 and moves within Barbados), 8.4, 8.5, 8.6, 8.9, 8.12, 8.19, 9 hereofor 10 or any of the covenants contained in any of the Security Documents (provided, that this reference to covenants in the Security Documents shall not abridge grace periods provided therein with respect to certain Defaults also addressed in this Agreement);
(d) if the Borrower or any of its Subsidiaries shall fail to perform any term, covenant or agreement contained herein or in any of the other Loan Documents (other than those specified elsewhere in subsections this §13.1) for fifteen (a), (b), and (c15) above) and such failure shall not be remedied within 30 days after written notice of such failure shall have has been given to the Borrower by the Administrative Agent or any of the BanksAgent;
(e) if any representation or warranty contained of the Borrower or any of its Subsidiaries in this Loan Agreement or any of the other Loan Documents or in any other document or instrument delivered pursuant to or in connection with this Loan Agreement shall prove to have been false false, incorrect or incomplete in any material respect upon the date when made or deemed to have been made or repeated;
(f) if the Borrower or any of its Subsidiaries shall (x) fail to pay when dueat maturity, or within any applicable period of grace, (i) any Indebtedness obligation for borrowed money or obligations under Swap Contracts credit received in an aggregate principal amount in excess of $20,000,000, (ii) any obligation in respect of any Capitalized Leases in an aggregate amount greater than in excess of $75,000,00020,000,000, or (iii) any obligation in respect of any operating leases with respect to which the present value (calculated at a discount rate of nine percent (9%) per annum) of the future obligations of the Borrower and its Subsidiaries thereunder exceeds $20,000,000, or (y) fail to observe or perform any material term, covenant or agreement contained in any one or more agreements by which it is bound, evidencing or securing any Indebtedness or obligations under Swap Contracts agreement referenced in an aggregate amount greater than $75,000,000 clauses (i) through (iii) above for such period of time as would permit, or would have permitted permit (assuming the giving of appropriate notice if required) the holder or holders thereof or of any obligations issued thereunder to accelerate the maturity thereof thereof, or terminate its commitment with respect theretoany such holder or holders shall rescind or shall have a right to rescind the purchase of any such obligations;
(gi) if the Borrower, the any Guarantor or any Significant Material Subsidiary makes shall make an assignment for the benefit of creditors, or admits admit in writing its inability to pay or generally fails fail to pay its debts as they mature or become due, or petitions shall petition or applies apply for the appointment of a trustee or other custodian, liquidator or receiver of the Borrower, the such Guarantor or any Significant Subsidiary, such Material Subsidiary or of any substantial part of the assets of the Borrower, the such Guarantor or any Significant such Material Subsidiary or commences shall commence any case or other proceeding relating to the Borrower, the such Guarantor or any Significant such Material Subsidiary 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 shall take any action to authorize or in furtherance of any of the foregoing, ; or (ii) if any such petition or application is shall be filed or any such case or other proceeding is shall be commenced against the Borrower, the any Guarantor or any Significant Material Subsidiary or and, with respect to this clause (ii) only, (x) the Borrower, the such Guarantor or any Significant such Material Subsidiary indicates shall indicate its approval thereof, consent thereto or acquiescence thereintherein or (y) such petition or application shall not have been dismissed within thirty (30) days following the filing thereof;
(h) if a decree or order is entered appointing any such trustee, custodian, liquidator or receiver or adjudicating the Borrower or the Borrower, any Guarantor or any Significant Material Subsidiary 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 or the Borrower, any Guarantor or any Significant Material Subsidiary in an involuntary case under federal bankruptcy laws of any jurisdiction as now or hereafter constituted;
(i) if there shall remain in force, undischarged, unsatisfied and unstayed, for more than thirty (30) days, whether or not consecutive, any final judgment against the Borrower or any Subsidiary whichof its Subsidiaries that, with other outstanding final judgments judgments, undischarged, against the Borrower and or any of its Subsidiaries, Subsidiaries exceeds in the aggregate $50,000,000 after taking into account any undisputed insurance coverage5,000,000;
(j) if, with respect to any Guaranteed Pension Plan, an ERISA Reportable Event shall have occurred and the Banks shall have determined in their reasonable discretion that such event reasonably could be expected to result in liability of the Borrower or any Subsidiary to the PBGC or such Plan in an aggregate amount exceeding $50,000,000 and such event in the circumstances occurring reasonably could constitute grounds for the partial or complete termination of such Plan by the PBGC or for the appointment by the appropriate United States District Court of a trustee to administer such Plan; or a trustee shall have been appointed by the appropriate United States District Court to administer such Plan; or the PBGC shall have instituted proceedings to terminate such Plan[reserved];
(k) if any of the Loan Documents shall be cancelled, terminated, revoked or rescinded or the Administrative Agent’s 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 accordance with the terms thereof or with the express prior written agreement, consent or approval of the BanksLenders, 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 or on behalf of the Borrower, the Guarantor, Borrower or any of its 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 determination that, or issue a judgment, order, decree or ruling to the effect that, any one or more of the Loan Documents is illegal, invalid or unenforceable in accordance with the terms thereof;
(i) An ERISA Event occurs with respect to a Pension Plan or Multiemployer Plan which has resulted or could reasonably be expected to result in liability of the Borrower under Title IV of ERISA to the Pension Plan, Multiemployer Plan or the PBGC in an aggregate amount in excess of $5,000,000, or (ii) any Loan Party or any ERISA Affiliate fails to pay when due, after the expiration of any applicable grace period, any installment payment with respect to its withdrawal liability under Section 4201 of ERISA under a Multiemployer Plan in an aggregate amount in excess of $5,000,000;
(m) the Borrower, any Guarantor or any Material Subsidiary shall be enjoined, restrained or in any way prevented by the order of any Governmental Authority from conducting any part of its business if such circumstance could reasonably be expected to have a Material Adverse Effect, and such order shall continue in effect for more than thirty (30) days;
(n) there shall occur any material damage to, or loss, theft or destruction of, any Collateral, whether or not insured, or any strike, lockout, labor dispute, embargo, condemnation, act of God or public enemy, or other casualty, which in any such case causes, for more than fifteen (15) consecutive days, the cessation or substantial curtailment of revenue producing activities at any facility of the Borrower or any of its Subsidiaries if such event or circumstance is not covered by business interruption insurance and would have a Material Adverse Effect;
(o) there shall occur the loss, suspension or revocation of, or failure to renew, any license or permit now held or hereafter acquired by the Borrower or any of its Subsidiaries if such loss, suspension, revocation or failure to renew would have a Material Adverse Effect;
(p) the Borrower or any of its Subsidiaries shall be indicted for a state or federal crime, or any civil or criminal action shall otherwise have been brought against the Borrower or any of its Subsidiaries, a punishment for which in any such case could include the forfeiture of any assets of the Borrower or such Subsidiary included in the Borrowing Base or any assets of the Borrower or such Subsidiary not included in the Borrowing Base but having a fair market value in excess of $5,000,000; or
(lq) if a Change of Control shall occur; then, and in any person or group of persons (within such event, so long as the meaning of Section 13 or 14 same may be continuing, the Administrative Agent may, and upon the request of the Securities Exchange Act Required Lenders shall, by notice in writing to the Borrower declare all amounts owing with respect to this Loan Agreement, the Term Notes and the other Loan Documents to be, and they shall thereupon forthwith become, immediately due and payable, without presentment, demand, protest or other notice of 1934any kind, as amended) shall have acquired beneficial ownership (within the meaning all of Rule 13d-3 promulgated which are hereby expressly waived by the Securities and Exchange Commission under said Act) of 25% or more of the outstanding shares of common voting stock of the Borrower; provided that in the event of any Event of Default specified in § § 13.1(g) or during 13.1(h), all such amounts shall become immediately due and payable, automatically and without any period requirement of twelve consecutive calendar months, individuals who were directors of notice from the Borrower on the first day of such period (together with Administrative Agent or any new directors whose election by such board or whose nomination for election by the shareholders of the Borrower was approved by a vote of a majority of the directors still in office who were either directors at the beginning of such period or whose election or nomination for election was previously so approved) shall cease to constitute a majority of the board of directors of the Borrower;Lender.
Appears in 1 contract
Events of Default and Acceleration. If any of the following events (“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, “Defaults”) shall occur:
(a) if Except as permitted hereunder, the Borrower shall fail to pay any principal of the Loans Term Loan A, Term Loan B, Term Loan C or Term Loan D when 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;
(b) if the Borrower shall fail to pay any interest on Term Loan A, Term Loan B, Term Loan C or fees Term Loan D or any other sums due hereunder or under any of the other Loan Documents or any fee letter (including, without limitation, amounts owing hereunder (other than those specified in subsection (adue under §8.16) above) within five (5) Business Days after when the same shall become due and payable whether at the Maturity Date or any accelerated date of maturity or at any other date fixed payable, and such failure continues for paymentthree (3) days;
(c) if the Borrower Borrower, any Subsidiary Guarantor, the Trust or any of their respective Subsidiaries shall fail to comply comply, or to cause the Trust to comply, as the case may be, with any of the respective covenants contained in the following: §8.1 (except with respect to principal, interest and other sums covered by clauses (a) or (b) above); §8.2; §§7.48.4 through §8.10, 7.5, 7.15, 7.16, 8 inclusive; §8.12; §8.13; §8.15; §8.19; §8.20; §98.21; §109 and 9 hereof§1110;
(d) if the Borrower Borrower, any Subsidiary Guarantor, the Trust or any of their respective Subsidiaries shall fail to perform any other term, covenant or agreement contained herein or in any of the other Loan Documents (other than those specified elsewhere in subsections (a), (b), and (c) abovethis §14) and such failure shall not be remedied within 30 continues for thirty (30) days after written notice the earlier of such failure shall have been given to the knowledge of any responsible officer of the Borrower by or notice thereof from the Administrative Agent or any of the BanksAgent;
(e) if any representation or warranty contained made by or on behalf of the Borrower, any Subsidiary Guarantor, the Trust or any of their respective Subsidiaries in this Agreement or in any document or instrument delivered pursuant to or in connection with this Agreement of the other Loan Documents shall prove to have been false in any material respect upon the date when made or deemed to have been made or repeated;
(fi) if the Borrower Borrower, any Subsidiary Guarantor, the Trust or any of its Subsidiaries or, to the extent of Recourse to the Borrower, the Subsidiary Guarantor, the Trust or such Subsidiaries thereunder, any Partially-Owned Entity or other of their respective Affiliates, shall (x) fail to pay when dueat maturity, or within any applicable period of grace, any Indebtedness for borrowed money or obligations under Swap Contracts credit received or in an aggregate amount greater than respect of any Capitalized Leases, which is in excess of (A) $75,000,00025,000,000, 60,000,000, either individually or in the aggregate, if such Indebtedness is Without Recourse and (B) $5,000,000, 20,000,000, either individually or in the aggregate, if such Indebtedness is Recourse, or(y) with respect to any Indebtedness that is Recourse and in excess of $20,000,000, either individually or in the aggregate, fail to observe or perform any material term, covenant covenant, condition or agreement contained in any one agreement, document or more agreements instrument by which it is boundbound evidencing, securing or otherwise relating to such Indebtedness or Recourse obligations, evidencing or securing borrowed money or credit received or in respect of any Indebtedness or obligations under Swap Contracts in an aggregate amount greater than $75,000,000 Capitalized Leases for such period of time as would permit, or would have permitted (assuming after the giving of appropriate notice if required) as would permit the holder or holders thereof or of any obligations issued thereunder in excess of (Ai) $25,000,000, either individually or in the aggregate, if such Indebtedness is without Recourse and (B) $5,000,000, either individually or in the aggregate, if such Indebtedness is Recourse, to accelerate the maturity thereof or terminate its commitment (z) with respect thereto;to any Indebtedness that is Without Recourse and in excess of $60,000,000, either individually or in the aggregate, (1) fail to pay at maturity, or within any applicable period of grace, any such Indebtedness or (2) fail to observe or perform any material term, covenant, condition or agreement contained in any agreement, document or instrument by which it is bound evidencing, securing or otherwise relating to such Indebtedness or obligations, evidencing or securing borrowed money or credit received or in respect of any Capitalized Leases for such period of time (after the giving of appropriate notice if required) that results in the holder or holders thereof or of any obligations issued thereunder accelerating the maturity thereof; provided, however, that any such Indebtedness that is Without Recourse shall be treated as Indebtedness that is Recourse to the extent that the same has become Recourse to the Borrower, the Trust or any of its Subsidiaries upon the occurrence of an event constituting an exception to non-recourse liability, such as fraud, misapplication of funds, violations of Environmental Laws, and other similar exceptions, under any agreement, document or instrument evidencing, securing or otherwise relating to such Indebtedness; (ii) any Event of Default shall occur under (and as defined in) the Unsecured Revolver Agreement; or (iii) or under (and as defined in) the 2011 Term Loan Agreement; or (iii) subject to the Borrower’s ability to remove Real Estate Assets from the Borrowing Base Pool in accordance with the provisions set forth in this §14, any event of default (beyond any applicable notice and grace periods) shall occur under any Property Level Loan Document; or
(g) if the any of FPLPthe Borrower, anya Subsidiary Guarantor, the Guarantor Trust or any Significant Subsidiary makes of their respective Subsidiaries shall make an assignment for the benefit of creditors, or admits admit in writing its inability to pay or generally fails fail to pay its debts as they mature or become due, or petitions shall petition or applies apply for the appointment of a trustee or other custodian, liquidator or receiver of the any of FPLPthe Borrower, a Subsidiary Guarantor, the Guarantor Trust or any Significant Subsidiary, of their respective Subsidiaries or of any substantial part of the properties or assets of the Borrower, the Guarantor any of such parties or any Significant Subsidiary or commences shall commence any case or other proceeding relating to the any of FPLPthe Borrower, a Subsidiary Guarantor, the Guarantor Trust or any Significant Subsidiary of their respective 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 shall take any action to authorize or in furtherance of any of the foregoing, or if any such petition or application is shall be filed or any such case or other proceeding is shall be commenced against the any of FPLPthe Borrower, a Subsidiary Guarantor, the Guarantor Trust or any Significant Subsidiary or the of their respective Subsidiaries and (i) any of FPLPthe Borrower, a Subsidiary Guarantor, the Guarantor Trust or any Significant Subsidiary indicates of their respective Subsidiaries shall indicate its approval thereof, consent thereto or acquiescence thereintherein or (ii) any such petition, application, case or other proceeding shall continue undismissed, or unstayed and in effect, for a period of forty-five (45) dayssixty (60) days provided that the foregoing, to the extent applicable solely to one or more Subsidiaries of FPLP to which no more than 5% (individually and in the aggregate) of the most recently reported Consolidated Gross Asset Value is attributable, shall not be an Event of Default hereunder so long as no motion to consolidate the Borrower, the Trust or any other Subsidiaries has been made;
(h) if a decree or order is entered appointing any such trustee, custodian, liquidator or receiver or adjudicating any of FPLPthe Borrower, a Subsidiary Guarantor, the Borrower or the Guarantor Trust or any Significant Subsidiary of their respective Subsidiaries 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 any of FPLPthe Borrower, a Subsidiary Guarantor, the Borrower or the Guarantor Trust or any Significant Subsidiary of their respective Subsidiaries in an involuntary case under federal bankruptcy laws of any jurisdiction as now or hereafter constitutedconstituted provided that the foregoing, to the extent applicable solely to one or more Subsidiaries of FPLP to which no more than 5% (individually and in the aggregate) of the most recently reported Consolidated Gross Asset Value is attributable, shall not be an Event of Default hereunder so long as no motion to consolidate the Borrower, the Trust or any other Subsidiaries has been made at any time prior thereto or in connection therewith;
(i) if there shall remain in force, undischarged, unsatisfied and unstayed, for more than thirty (30) days, whether or not consecutive, any uninsured final judgment against any of FPLPthe Borrower, a Subsidiary Guarantor, the Borrower Trust or any Subsidiary whichof their respective Subsidiaries that, with other outstanding uninsured final judgments judgments, undischarged, unsatisfied and unstayed, against the Borrower and its Subsidiaries, any of such parties exceeds in the aggregate $50,000,000 after taking into account 2,000,0005,000,000; provided that the foregoing, to the extent applicable solely to one or more Subsidiaries of FPLP to which no more than 5% (individually and in the aggregate) of the most recently reported Consolidated Gross Asset Value is attributable, it shall not be an Event of Default hereunder so long as neither the Borrower, the Trust or any undisputed insurance coverageSubsidiaries not meeting the de minimus test above are liable for such judgments;
(j) if, with respect to any Guaranteed Pension Plan, an ERISA Reportable Event shall have occurred and the Banks shall have determined in their reasonable discretion that such event reasonably could be expected to result in liability of the Borrower or any Subsidiary to the PBGC or such Plan in an aggregate amount exceeding $50,000,000 and such event in the circumstances occurring reasonably could constitute grounds for the partial or complete termination of such Plan by the PBGC or for the appointment by the appropriate United States District Court of a trustee to administer such Plan; or a trustee shall have been appointed by the appropriate United States District Court to administer such Plan; or the PBGC shall have instituted proceedings to terminate such Plan;
(k) if any of the Loan Documents or any material provision of any Loan Document shall be cancelledcanceled, terminated, revoked or rescinded otherwise than in accordance with the terms thereof or with the express prior written agreement, consent or approval of the BanksAgent, or any action at law, suit or in equity or other legal proceeding to make unenforceable, cancel, revoke or rescind any of the Loan Documents shall be commenced by or on behalf of the Borrower, the Guarantor, Borrower or a Subsidiary Guarantor or any of their respective stockholdersSubsidiaries or the Trust or any of its Subsidiaries, 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 effect that, any one or more of the Loan Documents is illegal, invalid or unenforceable as to any material terms thereof; or the Agent shall fail to have a perfected first-priority security interest in any of the Collateral; or
(k) any “Event of Default” or default (after notice and expiration of any period of grace, to the extent provided, as defined or provided in any of the other Loan Documents, shall occur and be continuinghas occurred;
(l) with respect to any Guaranteed Pension Plan, an ERISA Reportable Event shall have occurred and the Majority Lenders shall have determined in their reasonable discretion that such event reasonably could be expected to result in liability of the Borrower or any of its Subsidiaries or the Trust or any of its Subsidiaries or any ERISA Affiliate of any such entity to the PBGC or such Guaranteed Pension Plan in an aggregate amount exceeding $2,000,000 and5,000,000 or such event in the circumstances occurring reasonably could constitute grounds for the termination of such Guaranteed Pension Plan by the PBGC or for the appointment by the appropriate United States District Court of a trustee to administer such Guaranteed Pension Plan; or a trustee shall have been appointed by the United States District Court to administer such Plan; or the PBGC shall have instituted proceedings to terminate such Guaranteed Pension Plan; or with respect to any Multiemployer Plan, the Borrower or any of its Subsidiaries or the Trust or any of its Subsidiaries or any ERISA Affiliate of any such entity shall have become subject to a withdrawal liability (or with the passage of time will become subject to a withdrawal liability) in an aggregate amount exceeding $5,000,000;
(m) subject to the Borrower’s ability to remove Real Estate Assets from the Borrowing Base Pool in accordance with the terms thereof; orprovisions set forth below in this §14, the failure of any of the Real Estate Assets being included from time to time as part of the Borrowing Base Pool to comply with any of the conditions set forth in the definition of Eligible Borrowing Base Properties;
(ln) if the occurrence of any person transaction in which any “person” or group of persons “group” (within the meaning of Section 13 or 14 13(d) and 14(d)(2) of the Securities Exchange Act of 1934, ) becomes the “beneficial owner” (as amended) shall have acquired beneficial ownership (within the meaning of defined in Rule 13d-3 promulgated by under the Securities and Exchange Commission under said Act) Act of 25% 1934), directly or more indirectly, of a sufficient number of shares of all classes of stock then outstanding of the outstanding shares Trust ordinarily entitled to vote in the election of common voting stock directors, empowering such “person” or “group” to elect a majority of the BorrowerBoard of Directors or Board of Trustees of the Trust, who did not have such power before such transaction; or during any twelve-month period of twelve consecutive calendar monthson or after the Closing Date, individuals who were directors of at the Borrower on the first day beginning of such period constituted the Board of Trustees of the Trust (together with any new directors whose election by such board the Board of Trustees or whose nomination for election by the shareholders of the Borrower Trust was approved by a vote of at least a majority of the directors still members of the Board of Trustees then in office who either were either directors members of the Board of Trustees at the beginning of such period or whose election or nomination for election was previously so approved) shall cease ceased for any reason to constitute a majority of the board of directors members of the Board of Trustees of the Trust then in office; there occurs any Change of Control; or
(o) without limitation of the other provisions of this §14.1, the Trust shall at any time fail to be the sole general partner of FPLP (or shall enter into any agreement to permit any other Person to acquire a general partner interest in FPLP) or shall at any time be in contravention of any of the requirements contained in the last paragraph of §9.2 hereof, or §9.3 (including, without limitation, the last paragraph of §9.3); or
(p) the Borrower shall fail to own, directly or indirectly, 100% of the Equity Interests of each Subsidiary Guarantor; then, and in any such event, so long as the same may be continuing, the Agent may, and upon shall, at the direction of the Majority Lenders, or may, with the requestconsent of the Majority Lenders shall, declare all amounts owing with respect to this Agreement, the Notes and the other Loan Documents to be, and they shall thereupon forthwith become, immediately due and payable without presentment, demand, protest or other notice of any kind, all of which are hereby expressly waived by the Borrower;, each Subsidiary Guarantor, the Trust and each of their respective Subsidiaries; provided that in the event of any Event of Default specified in §14.1(g) or 14.1(h), all such amounts shall become immediately due and payable automatically and without any requirement of notice from any of the Lenders or the Agent or action by the Lenders or the Agent. Notwithstanding the foregoing provisions of this §14.1, in the event of a Default or Event of Default arising as a result of the inclusion of any Real Estate Asset in the Borrowing Base Pool at any particular time of reference, if such Default or Event of Default is capable of being cured by the exclusion of such Real Estate Asset from the Borrowing Base Pool in accordance with, and subject to, §8.13 and fromwith all other covenant calculations under §10 or otherwise, the Borrower shall be permitted a period not to exceed five (5) days to submit to the Agent (with copies to the Agent for each Lender) a compliance certificate in the form of Exhibit C hereto evidencing compliance with the covenants set forth in §10 (with calculations evidencing such compliance after excluding from Adjusted Net Operating Income all of the Adjusted Net Operating Income generated by the Real Estate Asset to be excluded from the Borrowing Base Pool) and with the Borrowing Base Property Conditions, and otherwise certifying that, after giving effect to the exclusion of such Real Estate Asset from the Borrowing Base Pool, no Default or Event of Default will be continuing.
Appears in 1 contract
Sources: Secured Term Loan Agreement (First Potomac Realty Trust)
Events of Default and Acceleration. If any of the following events (“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, “Defaults”) shall occur:
(a) if the Borrower Borrowers shall fail to pay any principal of the Loans or any Reimbursement Obligation when the same shall become due and payable, whether at the stated date of maturity Revolving Credit Maturity Date, the Term Loan Maturity Date or any accelerated date of maturity or at any other date fixed for payment;
(b) if the Borrower Borrowers shall fail to pay any interest or fees or other amounts owing hereunder (other than those specified in subsection (a) above) within five (5) Business Days after the same shall become due and payable whether at the Revolving Credit Maturity Date, the Term Loan Maturity Date or any accelerated date of maturity or at any other date fixed for payment;
(c) if the Borrower Borrowers shall fail to comply with any of the covenants contained in §7 (other than §7.4§7.2, 7.57.3, 7.157.6, 7.7, 7.8, 7.9, 7.12, 7.14, 7.16, 7.17, and 7.18), §8 and or §9 hereof;
(d) if the Borrower Borrowers shall fail to perform any term, covenant or agreement contained herein or in any of the other Loan Documents (other than those specified in subsections (a), (b), and (c) above) and such failure shall not be remedied within 30 thirty (30) days after written notice of such failure shall have has been given to the Borrower Borrowers by the Administrative Agent or any of the BanksLenders;
(e) if any representation or warranty contained in this Credit Agreement or in any document or instrument delivered pursuant to or in connection with this Credit Agreement shall prove to have been false in any material respect upon the date when made or repeated;
(f) if the any Borrower or any of its Subsidiaries Excluded Subsidiary shall fail to pay when dueat maturity, or within any applicable period of grace, any Indebtedness and all obligations for borrowed money or obligations under Swap Contracts any guaranty with respect thereto or credit received or in respect of any Capitalized Leases, in each case, in an aggregate amount greater than $75,000,0001,000,000 (including, without limitation, the Indebtedness evidenced by the Indenture), or fail to observe or perform any material term, covenant or agreement contained in any one or more agreements agreement by which it is bound, evidencing or securing borrowed money or credit received or in respect of any Indebtedness or obligations under Swap Contracts Capitalized Leases in an aggregate amount greater than $75,000,000 1,000,000 (including, without limitation, the Indenture) for such period of time as would permit, or would have permitted (assuming the giving of appropriate notice if required) , the holder or holders thereof or of any obligations issued thereunder to accelerate the maturity thereof or terminate its commitment with respect theretothereof;
(g) if the Borrower, the Guarantor any Borrower or any Significant Excluded Subsidiary makes an assignment for the benefit of creditors, or admits in writing its inability to pay or generally fails to pay its debts as they mature or become due, or petitions or applies for the appointment of a trustee or other custodian, liquidator liquidator, receiver or receiver receiver/manager of the Borrower, the Guarantor any Borrower or any Significant Subsidiary, Excluded Subsidiary or of any substantial part of the assets of the Borrower, the Guarantor any Borrower or any Significant Excluded Subsidiary or commences any case or other proceeding relating to the Borrower, the Guarantor any Borrower or any Significant Excluded Subsidiary 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, the Guarantor any Borrower or Excluded Subsidiary and any Significant Subsidiary Borrower or the Borrower, the Guarantor or any Significant Excluded Subsidiary indicates its approval thereof, consent thereto or acquiescence therein;
(h) if a decree or order is entered appointing any such trustee, custodian, liquidator or liquidator, receiver or receiver/manager or adjudicating the any Borrower or the Guarantor or any Significant Excluded Subsidiary 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 any Borrower or the Guarantor or any Significant Excluded Subsidiary in an involuntary case under federal bankruptcy laws of any jurisdiction as now or hereafter constituted, and such decree or order remains in effect for more than sixty (60) days, whether or not consecutive;
(i) if there shall remain in force, undischarged, unsatisfied and unstayed, for more than thirty forty-five (45) days, whether or not consecutive, any final judgment against the any Borrower or any Excluded Subsidiary which, with other outstanding final judgments judgments, against the Borrower Borrowers and its Subsidiaries, Excluded Subsidiaries exceeds in the aggregate $50,000,000 2,500,000 after taking into account any undisputed insurance coverage;
(j) ifany Borrower or Excluded Subsidiary or any ERISA Affiliate incurs any liability to the PBGC or similar Canadian authorities or a Guaranteed Pension Plan (or any corresponding plan described in any Applicable Canadian Pension Legislation) pursuant to Title IV of ERISA in an aggregate amount exceeding $1,000,000, or any Borrower or Excluded Subsidiary or any ERISA Affiliate is assessed withdrawal liability pursuant to Title IV of ERISA by a Multiemployer Plan requiring aggregate annual payments exceeding $1,000,000, or any of the following occurs with respect to any a Guaranteed Pension Plan, Plan (or any corresponding plan described in any Applicable Canadian Pension Legislation): (i) an ERISA Reportable Event shall have occurred and or similar event under Applicable Canadian Pension Legislation, or a failure to make a required installment or other payment (within the Banks shall have determined meaning of §302(f)(1) of ERISA), provided that the Administrative Agent determines in their its reasonable discretion that such event reasonably (A) could be expected to result in liability of the any Borrower or any Excluded Subsidiary to the PBGC PBGC, similar Canadian authorities or such Plan in an aggregate amount exceeding $50,000,000 1,000,000 and such event in the circumstances occurring reasonably (B) could constitute grounds for the partial or complete termination of such Plan by the PBGC or similar Canadian authorities, for the appointment by the appropriate United States District Court or Canadian Court of a trustee to administer such Plan or for the imposition of a lien in favor of such Plan; or (ii) the appointment by a United States District Court or Canadian Court of a trustee to administer such Plan; or a trustee shall have been appointed (iii) the institution by the appropriate United States District Court to administer such Plan; PBGC or the PBGC shall have instituted similar Canadian authorities of proceedings to terminate such Plan;
(k) if 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 BanksLenders, 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 or on behalf of the Borrower, the Guarantor, Borrowers or any of their respective stockholders, 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 effect that, any one or more of the Loan Documents is illegal, invalid or unenforceable in accordance with the terms thereof; or;
(l) if any person Person or group of persons 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 25% or more of the outstanding shares of common voting stock of the BorrowerParent (other than Berkshire Partners LLC); or or, during any period of twelve consecutive calendar months, individuals who were directors of the Borrower Parent on the first day of such period (together with any new directors whose election by such board or whose nomination for election by the shareholders of the Borrower was approved by a vote of a majority of the directors still in office who were either directors at the beginning of such period or whose election or nomination for election was previously so approved) shall cease to constitute a majority of the board of directors of the BorrowerParent;
Appears in 1 contract
Sources: Revolving Credit and Term Loan Agreement (Casella Waste Systems Inc)
Events of Default and Acceleration. If any of the following events (“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 or lapse of time, “Defaults”) shall occur:
(a) if the Borrower shall fail to pay any principal of the Loans when 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;
(b) if the Borrower shall fail to pay any interest on the Loans within five (5) Business Days of the date that the same shall become due and payable or any fees or other amounts owing sums due hereunder (other than those specified in subsection (aany voluntary prepayment) above) or under any of the other Loan Documents within five (5) Business Days after the same shall become due and payable notice from Agent, whether at the Maturity Date 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 any of the covenants contained in §§7.4, 7.5, 7.15, 7.16, 8 and 9 hereof[Reserved];
(d) if any of the Borrower or the other Credit Parties or any of their respective Subsidiaries shall fail to perform any other term, covenant or agreement contained in §7.5(a), §7.6(a), §7.19, §7.22, §▇, ▇▇ §▇;
(e) any of the Borrower or the other Credit Parties shall fail to perform any other term, covenant or agreement contained herein or in any of the other Loan Documents which they are required to perform (other than those specified in subsections the other subclauses of this §12 (aincluding, without limitation, §12.2 below) or in the other Loan Documents), (b), and (c) above) and such failure shall continue for thirty (30) days after Borrower receives from Agent written notice thereof, and in the case of a default that cannot be remedied cured within 30 such thirty (30) day period despite Borrower’s diligent efforts but is susceptible of being cured within ninety (90) days after of Borrower’s receipt of Agent’s original notice, then Borrower shall have such additional time as is reasonably necessary to effect such cure, but in no event in excess of ninety (90) days from Borrower’s receipt of Agent’s original notice; provided that the foregoing cure provisions shall not pertain to any Default excluded from any provision of cure of defaults contained in any other of the Loan Documents and with respect to any defaults under § 7.4 and §7.5 (other than §7.5(a)), the thirty (30) day cure period described above shall be reduced to a period of five (5) Business Days from the earlier of any Credit Party obtaining knowledge thereof or receipt of notice from Agent written notice thereof, and no additional cure period shall be provided with respect to such defaults;
(f) any material representation or warranty made by or on behalf of such failure shall have been given to the Borrower by the Administrative Agent Credit Parties or any of the Banks;
(e) if any representation or warranty contained their respective Subsidiaries in this Agreement or any other Loan Document, or any report, certificate, financial statement, request for a Loan, or in any other document or instrument delivered pursuant to or in connection with this Agreement Agreement, any advance of a Loan, or any of the other Loan Documents shall prove to have been false in any material respect upon the date when made or repeated;
(f) if deemed to have been made or repeated except to the Borrower or any of its Subsidiaries shall fail to pay when due, or within any applicable period of grace, any Indebtedness or obligations under Swap Contracts in an aggregate amount greater than $75,000,000, or fail to observe or perform any material term, covenant or agreement contained in any one or more agreements by which extent it is bound, evidencing or securing any Indebtedness or obligations under Swap Contracts in an aggregate amount greater than $75,000,000 for such period of time as would permit, or would not reasonably expected to have permitted (assuming the giving of appropriate notice if required) the holder or holders thereof or of any obligations issued thereunder to accelerate the maturity thereof or terminate its commitment with respect theretoa Material Adverse Effect;
(g) if Any (i) Borrower or other Credit Party defaults (after the expiration of any notice and cure or grace period) under any Recourse Indebtedness or suffers a claim under non-recourse carve-out guaranty with respect to all uncured defaults at any time, each in an aggregate amount equal to or greater than $10,000,000, or (ii) Borrower, the Guarantor or any Significant Subsidiary makes thereof defaults (after the expiration of any notice and cure or grace period) under any Non- Recourse Indebtedness in an aggregate amount equal to or greater than $50,000,000 with respect to all uncured defaults at any time;
(h) any of the Borrower or any other Credit Party, (i) shall make an assignment for the benefit of creditors, or admits admit in writing its general inability to pay or generally fails fail to pay its debts as they mature or become due, or petitions shall petition or applies apply for the appointment of a trustee or other custodian, liquidator or receiver of the Borrower, the Guarantor for it or any Significant Subsidiary, or of any substantial part of the assets of the Borrowerits assets, the Guarantor or any Significant Subsidiary or commences (ii) shall commence any case or other proceeding relating to the Borrower, the Guarantor or any Significant Subsidiary it 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 (iii) shall take any action to authorize any of the foregoing;
(i) a petition or in furtherance application shall be filed for the appointment of a trustee or other custodian, liquidator or receiver of any of the foregoingBorrower or other Credit Party or any substantial part of the assets of any thereof, or if any such petition or application is filed or any such a case or other proceeding is shall be commenced against the Borrowerany such Person under any bankruptcy, the Guarantor reorganization, arrangement, insolvency, readjustment of debt, dissolution or liquidation or similar law of any Significant Subsidiary jurisdiction, now or the Borrowerhereafter in effect, the Guarantor or and any Significant Subsidiary indicates such Person shall indicate its approval thereof, consent thereto or acquiescence thereintherein or such petition, application, case or proceeding shall not have been dismissed within ninety (90) days following the filing or commencement thereof;
(hj) if a decree or order is entered appointing any such a trustee, custodian, liquidator or receiver or adjudicating for any of the Borrower or the Guarantor other Credit Party or adjudicating any Significant Subsidiary such Person, 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 or the Guarantor or any Significant Subsidiary such Person in an involuntary case under federal bankruptcy laws of any jurisdiction as now or hereafter constituted;
(ik) if there shall remain in force, undischarged, unsatisfied and unstayed, for more than thirty (30) days, whether one or not consecutive, any more uninsured or unbonded final judgment judgments against the Borrower REIT Guarantor or any Subsidiary whichthat, with other outstanding final judgments against the Borrower and its Subsidiaries, exceeds either individually or in the aggregate aggregate, exceed in excess of $50,000,000 after taking into account 5,000,000.00 in any undisputed insurance coveragecalendar year;
(jl) ifany of the material Loan Documents shall be canceled, terminated, revoked or rescinded otherwise than in accordance with the terms thereof or the express prior written agreement, consent or approval of the Required Lenders, or any action at law, suit in equity or other legal proceeding to cancel, revoke or rescind any of the material Loan Documents shall be commenced by or on behalf of any of the Credit Parties, or any court or any other governmental or regulatory authority or agency of competent jurisdiction shall make a determination, or issue a judgment, order, decree or ruling, to the effect that any one or more of the material Loan Documents is illegal, invalid or unenforceable in accordance with the terms thereof;
(m) REIT Guarantor ceases to be treated as a real estate investment trust under the Code in any taxable year or the common Equity Interests of the REIT Guarantor shall fail to be listed and traded on the New York Stock Exchange or another publicly recognized exchange;
(n) with respect to any Guaranteed Pension Plan, an ERISA Reportable Event shall have occurred and the Banks shall have determined in their reasonable discretion that such event reasonably could would be expected to result in liability of any of the Borrower or any Subsidiary Credit Parties to pay money to the PBGC or such Guaranteed Pension Plan in an aggregate amount exceeding $50,000,000 5,000,000 and one of the following shall apply with respect to such event: (x) such event in the circumstances occurring reasonably could constitute grounds for would be expected to result in the partial or complete termination of such Guaranteed Pension Plan by the PBGC or for the appointment by the appropriate United States District Court of a trustee to administer such Guaranteed Pension Plan; or (y) a trustee shall have been appointed by the appropriate United States District Court to administer such Plan; or (z) the PBGC shall have instituted proceedings to terminate such Guaranteed Pension Plan;
(ko) if any dissolution, termination, partial or complete liquidation, merger or consolidation 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 Banks, 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 or on behalf of the Borrower, the GuarantorGuarantors or any of the Subsidiaries of Borrower shall occur or any sale, transfer or other disposition of the assets of any of the Borrower, the Guarantors or any of the Subsidiaries of Borrower shall occur other than as permitted under the terms of this Agreement or the other Loan Documents;
(p) any of the Borrower, the Guarantors or any of their respective stockholdersSubsidiaries or any shareholder, officer, director, partner or member of any of them shall be indicted for a federal crime, a punishment for which could include the forfeiture of (i) any assets of such Person which in the good faith judgment of the Required Lenders could have a Material Adverse Effect, or (ii) the Unencumbered Property;
(q) any court Guarantor denies that it has any liability or obligation under the Guaranty or any other governmental or regulatory authority or agency of competent jurisdiction shall make a determination thatLoan Document, or issue a judgment, order, decree shall notify the Agent or ruling to the effect that, any one or more of the Lenders of such Guarantor’s intention to attempt to cancel or terminate any Guaranty or any other Loan Documents is illegalDocument, invalid or unenforceable in accordance shall fail to observe or comply with the terms thereofany term, covenant, condition or agreement under any Guaranty or any other Loan Document; or
(lr) if any person or group Change of persons (within Control shall occur; then, and upon any such Event of Default, the meaning of Section 13 or 14 Agent may, and upon the request of the Securities Exchange Act Required Lenders shall, by notice in writing to the Borrower declare all amounts owing with respect to this Agreement, the Notes, and the other Loan Documents to be, and they shall thereupon forthwith become, immediately due and payable without presentment, demand, protest or other notice of 1934any kind, as amended) shall have acquired beneficial ownership (within the meaning all of Rule 13d-3 promulgated which are hereby expressly waived by the Securities and Exchange Commission under said Act) of 25% or more of the outstanding shares of common voting stock of the Borrower; provided that in the event of any Event of Default specified in §12.1(h), §12.1(i) or during §12.1(j), all such amounts shall become immediately due and payable automatically and without any period requirement of twelve consecutive calendar monthspresentment, individuals who were directors demand, protest or other notice of any kind from any of the Borrower on Lenders or the first day of such period (together with any new directors whose election by such board or whose nomination for election by the shareholders of the Borrower was approved by a vote of a majority of the directors still in office who were either directors at the beginning of such period or whose election or nomination for election was previously so approved) shall cease to constitute a majority of the board of directors of the Borrower;Agent.
Appears in 1 contract
Sources: Term Loan Credit Agreement (Plymouth Industrial REIT, Inc.)
Events of Default and Acceleration. If any of the following events (“"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, “Defaults”") shall occur:
: (a) if the Borrower shall fail to pay any principal of the Loans or any Reimbursement Obligation when 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;
payment thereof; (b) if the Borrower shall fail to pay any interest or fees on the Loans, the Commitment Fee, any Letter of Credit Fee, the Agents' fee, or other amounts owing sums due hereunder (or under any of the other than those specified in subsection (a) above) within five (5) Business Days after Loan Documents, when the same shall become due and payable payable, whether at the Maturity Date stated date of maturity or any accelerated date of maturity or at any other date fixed for payment;
payment thereof, and such failure shall not have been cured within five (5) calendar days after such payment date; (c) if the Borrower shall fail to comply with any of the its covenants contained in §§7.4, 7.5, 7.15the first sentence of 7.6, 7.167.8, 7.10, 7.12, 8 and 9 hereof;
or 9; (d) if the Borrower or any of its Subsidiaries shall fail to perform any term, covenant or agreement contained herein or in any of the other Loan Documents (other than those specified elsewhere in subsections this 12.1) for thirty (a), (b), and (c30) above) and such failure shall not be remedied within 30 days after written notice any Designated Officer has knowledge of such failure shall have been given to failure; (e) any representation or warranty of the Borrower by the Administrative Agent or any of its Subsidiaries in this Credit Agreement or any of the Banks;
(e) if any representation or warranty contained in this Agreement other Loan Documents or in any other document or instrument delivered pursuant to or in connection with this Credit Agreement shall prove to have been false in any material respect upon the date when made or deemed to have been made or repeated;
; (f) if the Borrower or any of its Subsidiaries shall fail to pay when dueat maturity, or within any applicable period of grace, any Indebtedness obligation for borrowed money or obligations under Swap Contracts credit received or in an respect of any Capitalized Leases in excess of $5,000,000 in aggregate amount greater than $75,000,000principal amount, or fail to observe or perform any material term, covenant or agreement contained in any one or more agreements agreement by which it is bound, evidencing or securing borrowed money or credit received or in respect of any Indebtedness or obligations under Swap Contracts Capitalized Leases in an excess of $5,000,000 in aggregate principal amount greater than $75,000,000 for such period of time as would permit, or would have permitted permit (assuming the giving of appropriate notice if required) the holder or holders thereof or of any obligations issued thereunder to accelerate the maturity thereof or terminate its commitment with respect thereto;
thereof; (g) if the Borrower, the Guarantor Borrower or any Significant Subsidiary makes of its Subsidiaries shall make an assignment for the benefit of creditors, or admits admit in writing its inability to pay or generally fails fail to pay its debts as they mature or become due, or petitions shall petition or applies apply for the appointment of a trustee or other custodian, liquidator or receiver of the Borrower, the Guarantor Borrower or any Significant Subsidiary, of its Subsidiaries or of any substantial part of the assets of the Borrower, the Guarantor Borrower or any Significant Subsidiary of its Subsidiaries or commences shall commence any case or other proceeding relating to the Borrower, the Guarantor Borrower or any Significant Subsidiary of 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 shall take any action to authorize or in furtherance of any of the foregoing, or if any such petition or application is shall be filed or any such case or other proceeding is shall be commenced against the Borrower, the Guarantor Borrower or any Significant Subsidiary or of its Subsidiaries and the Borrower, the Guarantor Borrower or any Significant Subsidiary indicates of its Subsidiaries shall indicate its approval thereof, consent thereto or acquiescence therein;
therein or such petition or application shall not have been dismissed within forty-five (45) days following the filing thereof; (h) if a decree or order is entered appointing any such trustee, custodian, liquidator or receiver or adjudicating the Borrower or the Guarantor or any Significant Subsidiary of 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 in respect of the Borrower or any Subsidiary of the Guarantor or any Significant Subsidiary Borrower in an involuntary case under federal bankruptcy laws of any jurisdiction as now or hereafter constituted;
; (i) if there shall remain in force, undischarged, unsatisfied and unstayed, for more than thirty forty-five (45) days, whether or not consecutive, any final judgment against the Borrower or any Subsidiary whichof its Subsidiaries that, with other outstanding final judgments judgments, undischarged, against the Borrower and or any of its Subsidiaries, Subsidiaries exceeds in the aggregate $50,000,000 after taking into account any undisputed insurance coverage;
5,000,000 and the Borrower shall have failed to provide evidence satisfactory to the Agents and the Banks that such judgment or award is fully covered by independent third- party insurance; (j) if, with respect to the holders of all or any Guaranteed Pension Plan, an ERISA Reportable Event shall have occurred and the Banks shall have determined in their reasonable discretion that such event reasonably could be expected to result in liability part of the Borrower Subordinated Debt or Permitted New Subordinated Debt shall accelerate the maturity of all or any Subsidiary to the PBGC or such Plan in an aggregate amount exceeding $50,000,000 and such event in the circumstances occurring reasonably could constitute grounds for the partial or complete termination part of such Plan by the PBGC or for the appointment by the appropriate United States District Court of a trustee to administer such Plan; or a trustee shall have been appointed by the appropriate United States District Court to administer such Plan; Indebtedness or the PBGC Subordinated Debt shall have instituted proceedings to terminate such Plan;
be redeemed or repurchased in whole or in part (other than with proceeds from Permitted New Subordinated Debt) or the Permitted New Subordinated Debt shall be redeemed or repurchased in whole or in part; (k) if any of the Loan Documents or any material provision thereof shall be cancelledcanceled, terminated, revoked or rescinded rescinded, otherwise than in accordance with the terms thereof or with the express prior written agreement, consent or approval of the Banks, or any action at law, suit or in equity or other legal proceeding to cancel, revoke or rescind any of the Loan Documents or any material provision thereof shall be commenced by or on behalf of the Borrower, the Guarantor, Borrower (or any of its 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 determination that, or issue a judgment, order, decree or ruling to the effect that, any one or more of the Loan Documents or any material provision thereof is illegal, invalid or unenforceable in accordance with the terms thereof; or
(l) with respect to any Guaranteed Pension Plan, an ERISA Reportable Event shall have occurred and the Majority Banks shall have reasonably determined that such event reasonably could be expected to result in liability of the Borrower or any of its Subsidiaries to the PBGC or such Guaranteed Pension Plan in an aggregate amount exceeding $5,000,000 and such event in the circumstances occurring reasonably could constitute grounds for the termination of such Guaranteed Pension Plan by the PBGC or for the appointment by the appropriate United States District Court of a trustee to administer such Guaranteed Pension Plan; or a trustee shall have been appointed by the United States District Court to administer such Plan; or the PBGC shall have instituted proceedings to terminate such Guaranteed Pension Plan; (m) with the Borrower or any of its Subsidiaries shall be enjoined, restrained or in any way prevented by the order of any court or any administrative or regulatory agency from conducting any material part of its business and such order shall continue in effect for more than thirty (30) days; (n) there shall occur any strike, lockout, labor dispute, embargo, condemnation, act of God or public enemy, or other casualty, which in any such case causes, for more than fifteen (15) consecutive days, the cessation or substantial curtailment of revenue producing activities of the Borrower and its Subsidiaries on a consolidated basis if such event or circumstance is not covered by business interruption insurance and would have a material adverse effect on the business or financial condition of the Borrower and its Subsidiaries, taken as a whole; (o) there shall occur the loss, suspension or revocation of, or failure to renew, any person license, permit or consent issued by any government or government agency or authority now held or hereafter acquired by the Borrower or any of its Subsidiaries if such loss, suspension, revocation or failure to renew would have a material adverse effect on the business or financial condition of the Borrower and its Subsidiaries, taken as a whole; or (p) any Person or group of persons affiliated Persons, other than a group comprised of some or all of (within the meaning of Section 13 or 14 i) Summit Ventures II, L.P., Summit Ventures IV, L.P., and Summit Subordinated Debt Fund, L.P., including for this purpose their affiliates and partners, (ii) current management of the Securities Exchange Act Borrower and (iii) employee stockholders of 1934, as amendedthe Borrower shall acquire in excess of fifty percent (50%) shall have acquired beneficial ownership (within the meaning of Rule 13d-3 promulgated by the Securities and Exchange Commission under said Act) of 25% or more of the outstanding shares of common voting stock Voting Stock of the Borrower; or during (q) the Borrower or any other Person shall fail to perform or observe any term, covenant or agreement contained in the Collateral Documents on its part to be performed or observed and any such failure shall remain unremedied for a period of twelve consecutive calendar months30 days from the occurrence thereof, individuals who were directors or any "Event of Default" as defined in any Collateral Document shall have occurred or any of the Collateral Documents after delivery thereof shall for any reason be revoked or invalidated, or otherwise cease to be in full force and effect (other than pursuant to the operation of Section 28), or the Borrower on or any other Person shall contest in any manner the first day validity or enforceability thereof, or the Borrower or any other Person shall deny that it has any further liability or obligation thereunder; or any of such period (together with the Collateral Documents for any new directors whose election by such board or whose nomination for election reason, except to the extent permitted by the shareholders of the Borrower was approved by a vote of a majority of the directors still in office who were either directors at the beginning of such period or whose election or nomination for election was previously so approved) terms thereof, shall cease to constitute create a majority valid and perfected first priority Lien subject only to Permitted Liens in any of the board of directors Collateral purported to be covered thereby; then, and in any such event, so long as the same may be continuing, the Agents may, and upon the request of the Majority Banks shall, by notice in writing to the Borrower declare all Obligations to be, and they shall thereupon forthwith become, 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 12.1(g), 12.1(h) or 12.1(j), all such amounts shall become immediately due and payable automatically and without any requirement of notice from the Agents or any Bank.
Appears in 1 contract
Events of Default and Acceleration. If any of the following events (“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 or lapse of time, “Defaults”) shall occur:
(a) if any of the Borrower Borrowers shall fail to pay (i) any principal of the Term Loans, (ii) interest on the Term Loans or (iii) other sums due hereunder or under any of the other Loan Documents when 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;
(b) if any of the Borrower shall fail to pay any interest or fees or other amounts owing hereunder (other than those specified in subsection (a) above) within five (5) Business Days after the same shall become due and payable whether at the Maturity Date or any accelerated date of maturity or at any other date fixed for payment;
(c) if the Borrower Borrowers shall fail to comply with any of the its covenants contained in §§7.48.1, 7.58.3, 7.158.4, 7.168.5, 8 and 9 hereof8.9, 8.10, 8.11, 8.12, 8.13, 8.14, 8.15, 8.16, 8.17, 8.18, 8.20, 8.22, or 8.23, or 9;
(dc) if any of the Borrower Borrowers or Guarantors shall fail to perform any term, covenant or agreement contained herein or in any of the other Loan Documents (other than those specified elsewhere in subsections this §13.1) for fifteen (a), (b), and (c15) above) and such failure shall not be remedied within 30 days after written notice of such failure shall have has been given to the Borrower Borrowers by any Lender;
(d) any representation or warranty of the Administrative Agent Borrowers or Guarantors in this Credit Agreement, or any of the Banks;
(e) if any representation or warranty contained in this Agreement other Loan Documents or in any other document or instrument delivered pursuant to or in connection with this Agreement Credit Agreement, or any of the other Loan Documents shall prove to have been false in any material respect upon the date when made or deemed to have been made or repeated;
(fe) if any of the Borrower Borrowers or their Subsidiaries shall default in the payment when due of any principal of or interest on any postpetition Indebtedness, or any prepetition Indebtedness if, by order of its Subsidiaries shall fail the Bankruptcy Court issued with respect to pay when duesuch prepetition Indebtedness, the default thereunder entitles the holder thereof to relief from the automatic stay of Section 362 of the Bankruptcy Code, in excess of $500,000 in the aggregate of such postpetition or prepetition Indebtedness, or within any applicable period of grace, any Indebtedness or obligations under Swap Contracts in an aggregate amount greater than $75,000,000, or fail to observe or perform any material term, covenant or agreement contained event specified in any one note, agreement, indenture or more agreements by which it is bound, other document evidencing or securing any such Indebtedness or obligations under Swap Contracts in an aggregate amount greater than $75,000,000 for shall occur if the effect of such period of time as would permitevent is to cause, or would have permitted (assuming with the giving of appropriate notice if requiredor the lapse of time or both) to permit the holder or holders thereof of such Indebtedness (or a trustee or agent on behalf of any obligations issued thereunder such holder or holders) to accelerate the maturity thereof or terminate its commitment with respect thereto;
(g) if the Borrower, the Guarantor or any Significant Subsidiary makes an assignment for the benefit of creditors, or admits in writing its inability cause such Indebtedness to pay or generally fails to pay its debts as they mature or become due, or petitions to be prepaid in full prior to its stated maturity or applies for the appointment of a trustee or other custodian, liquidator or receiver of the Borrower, the Guarantor or any Significant Subsidiary, or of any substantial part of the assets of the Borrower, the Guarantor or any Significant Subsidiary or commences any case or other proceeding relating to the Borrower, the Guarantor or any Significant Subsidiary 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 divest 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, the Guarantor or any Significant Subsidiary or the Borrower, the Guarantor or any Significant Subsidiary 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 Borrower or the Guarantor or any Significant Subsidiary 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 or the Guarantor or any Significant Subsidiary in an involuntary case under federal bankruptcy laws Borrowers of any jurisdiction as now or hereafter constitutedassets;
(i) if any of the Borrowers shall be enjoined from conducting any part of its Business as a debtor in possession, (ii) there shall remain in forceoccur any strike, undischargedlockout, unsatisfied and unstayedlabor dispute, for more than thirty daysembargo, whether condemnation, act of God or not consecutivepublic enemy, or other casualty which causes the cessation or substantial curtailment of revenue producing activities of any of the Borrowers or their Subsidiaries, if any such event or circumstance could reasonably be expected to have a Material Adverse Effect, or (iii) or there shall occur any damage to, or loss, theft or destruction of, any final judgment against assets of any of the Borrower Borrowers or any Subsidiary which, with other outstanding final judgments against the Borrower and its of their Subsidiaries, exceeds which in the aggregate $50,000,000 after taking into account any undisputed insurance coverageeach such case would reasonably be expected to have a Material Adverse Effect;
(j) if, with respect to any Guaranteed Pension Plan, an ERISA Reportable Event shall have occurred and the Banks shall have determined in their reasonable discretion that such event reasonably could be expected to result in liability of the Borrower or any Subsidiary to the PBGC or such Plan in an aggregate amount exceeding $50,000,000 and such event in the circumstances occurring reasonably could constitute grounds for the partial or complete termination of such Plan by the PBGC or for the appointment by the appropriate United States District Court of a trustee to administer such Plan; or a trustee shall have been appointed by the appropriate United States District Court to administer such Plan; or the PBGC shall have instituted proceedings to terminate such Plan;
(kg) if any of the Loan Documents shall be cancelled, terminated, revoked or rescinded or the Collateral Agent’s security interests, mortgages or liens in substantially all of the Collateral shall cease to be perfected, or shall cease to have the priority contemplated by this Credit Agreement or the Orders, in each case otherwise than in accordance with the terms thereof or with the express prior written agreement, consent or approval of the BanksLenders, or any action at law, suit or in equity or other legal proceeding to cancel, revoke or rescind or otherwise challenge any of the Loan Documents shall be commenced by or on behalf of the Borrower, the Guarantor, 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 determination that, or issue a judgment, order, decree or ruling to the effect that, any one or more of the Loan Documents is illegal, invalid or unenforceable in accordance with the terms thereof;
(h) the Bankruptcy Court shall enter any order (i) amending, supplementing, altering, staying, vacating, rescinding or otherwise modifying the Interim Order, the Final Order or any other order with respect to the Case affecting in any material respect this Credit Agreement or the Loan Documents, without the Lenders’ consent, (ii) appointing a chapter 11 trustee or an examiner pursuant to Section 1104 of the Bankruptcy Code with enlarged powers relating to the operation of the Business (powers beyond those set forth in Section 1106(a)(3) and (4) and 1106(b) of the Bankruptcy Code) of the Bankruptcy Code in the Case, (iii) dismissing the Case or converting the Case to a chapter 7 case or (iv) granting relief from the automatic stay to any creditor holding or asserting a Lien or reclamation claim on a material portion (i.e., more than $500,000 in the aggregate) of the assets of any of the Borrowers;
(i) the Bankruptcy Court shall fail to enter the Final Order within forty (40) days of the Petition Date, or (ii) the Borrowers shall fail to obtain entry of the Sale Procedure Order within sixty (60) days of the Petition Date;
(j) an application shall be filed by any of the Borrowers for the approval of any other Superpriority Claim in the Case which is pari passu with or senior to the claims of the Lenders against any of the Borrowers unless after giving effect to the transactions contemplated by such application, all Obligations (whether contingent or otherwise) shall be paid in full in cash at the Redemption Price), or there shall arise any such Superpriority Claim;
(k) any of the Borrowers shall be unable to pay its postpetition debts as they mature or shall fail to comply with any order of the Bankruptcy Court in any material respect;
(l) there shall remain undischarged for more than thirty (30) days any final postpetition judgment or execution action against any of the Borrowers, or relief from the automatic stay of Section 362(a) of the Bankruptcy Code shall be granted to any creditor or creditors of any of the Borrowers with respect to assets having an aggregate value in excess of $500,000 (excluding any proceeds of such insurance policies if no deductible is paid in connection therewith);
(m) any of the Borrowers shall file a motion in the Case (i) except as provided in the Orders, to use cash collateral of the Lenders under Section 363(c) of the Bankruptcy Code without the Lenders’ consent (ii) to recover from any portions of the Collateral any costs or expenses of preserving or disposing of such Collateral under Section 506(c) of the Bankruptcy Code, or (iii) to take any other action or actions adverse to the Lenders or their rights and remedies hereunder or under any of the other Loan Documents or any of the documents evidencing or creating the Lenders’ interest in any of the Collateral;
(n) (i) the failure within ninety (90) days of the Petition Date to have entered into purchase and sale agreements for the sale of (i) all or substantially all of the assets of the Borrowers on terms reasonably satisfactory to the Lenders or (ii) less than all or substantially all of the assets of the Borrowers which would result in the payment in full in cash of the Obligations at the Redemption Price and the obligations under the Prepetition Notes;
(o) any payment of prepetition debt other than pursuant to customary orders entered prior to the formation of a statutory creditors’ committee and acceptable to the Lenders;
(p) any of the Borrowers shall fail to comply with the Budget (within a variance not to exceed 10% per line item);
(q) any of the Borrowers, the Guarantors or their respective ERISA Affiliates incurs any liability to the PBGC or a Guaranteed Pension Plan pursuant to Title IV of ERISA in an aggregate amount exceeding $500,000, any of the Borrowers, the Guarantors or their respective ERISA Affiliates is assessed withdrawal liability pursuant to Title IV of ERISA by a Multiemployer Plan requiring aggregate annual payments exceeding $500,000, the receipt by any of the Borrowers, the Guarantors or their respective ERISA Affiliates of notice from any Multiemployer Plan that it is in critical or endangered status pursuant to §432 of the Code and §305 of ERISA; or any of the following occurs with respect to a Guaranteed Pension Plan: (i) an ERISA Reportable Event, or a failure to satisfy the minimum funding standards under the Pension Funding Rules, provided that the Lenders determine in their reasonable discretion that such event (A) could be expected to result in liability of any of the Borrowers or any of their Subsidiaries to the PBGC or such Guaranteed Pension Plan in an aggregate amount exceeding $500,000 and (B) could constitute grounds for the termination of such Guaranteed Pension Plan by the PBGC, for the appointment by the appropriate United States District Court of a trustee to administer such Guaranteed Pension Plan or for the imposition of a lien in favor of such Guaranteed Pension Plan; or (ii) the appointment by a United States District Court of a trustee to administer such Guaranteed Pension Plan; or (iii) the institution by the PBGC of proceedings to terminate such Guaranteed Pension Plan;
(r) the occurrence of a Change of Control;
(s) any Non-Obligor Subsidiary shall (i) become insolvent or generally fail to pay, or admit in writing its inability or unwillingness generally to pay, its debts as they become due, apply for, consent to, or acquiesce in the appointment of a trustee, receiver, sequestrator or other custodian for any substantial part of the assets or other property of any such Non-Obligor Subsidiary, or make a general assignment for the benefit of creditors; (ii) in the absence of such application, consent or acquiescence, permit or suffer to exist, the appointment of a trustee, receiver, sequestrator or other custodian for a substantial part of the property of such Non-Obligor Subsidiary, and such trustee, receiver, sequestrator or other custodian shall not be discharged within forty-five (45) days; provided, that each Non-Obligor Subsidiary hereby expressly authorizes each Lender to appear in any court conducting any relevant proceeding during such 45-day period to preserve, protect and defend their rights under the Loan Documents; (iii) permit or suffer to exist the commencement of any bankruptcy, reorganization, debt arrangement or other case or proceeding under any bankruptcy or insolvency law or any dissolution, winding up or liquidation proceeding, in respect thereof, and, if any such case or proceeding is not commenced by such Non-Obligor Subsidiary, such case or proceeding shall be consented to or acquiesced in by such Non-Obligor Subsidiary, or shall result in the entry of an order for relief or shall remain for forty-five (45) days undismissed; provided, that each Non-Obligor Subsidiary hereby expressly authorizes each Lender to appear in any court conducting any such case or proceeding during such 45-day period to preserve, protect and defend their rights under the Loan Documents; or (v) take any action authorizing, or in furtherance of, any of the foregoing, unless in the case of each of (i) through (v), the CRO provides the Lenders within three (3) Business Days of the occurrence of such event, (A) a written statement that his good faith opinion based on the facts available to him is that such event would not have an adverse effect on the Collateral and (B) access to all information (other than information protected by attorney client privilege) relating to such event and/or the proposed sale of all or substantially all of the Business; or
(lt) if at any person time that any Obligations or group any Prepetition Lender Debt has not been paid in full, any incentive compensation is paid or becomes payable to the CRO unless such compensation is acceptable to the Lenders in their sole discretion; then, and in any such event, so long as the same may be continuing, the Lenders may, by notice in writing to the Borrowers declare all amounts owing with respect to this Credit Agreement, the Term Loan Notes and the other Loan Documents, and they shall thereupon forthwith become, immediately due and payable without presentment, demand, protest or other notice of persons (within the meaning any kind, all 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 which are hereby expressly waived by the Securities and Exchange Commission under said Act) of 25% or more of the outstanding shares of common voting stock of the Borrower; or during any period of twelve consecutive calendar months, individuals who were directors of the Borrower on the first day of such period (together with any new directors whose election by such board or whose nomination for election by the shareholders of the Borrower was approved by a vote of a majority of the directors still in office who were either directors at the beginning of such period or whose election or nomination for election was previously so approved) shall cease to constitute a majority of the board of directors of the Borrower;Borrowers.
Appears in 1 contract
Sources: Credit Agreement (WorldSpace, Inc)
Events of Default and Acceleration. If any of the following events (occur, it is hereby defined as and declared to be and constitute an “Events Event 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:
(a) if During the Borrower shall fail Cash Collateralized Mode, the failure to pay any principal installment of interest on any Bond payable hereunder within five (5) calendar days after the Borrower’s receipt of notice of the Loans when the same shall become amount due and payable; or
(b) During the Permanent Mode, the failure to pay any installment of principal and interest as provided in the Permanent Loan Agreement; or
(c) the principal of any Bond is not paid or the redemption price of any Bond on the date on which the same becomes due, whether at the stated date of maturity thereof, by call for redemption, acceleration or any accelerated date of maturity or at any other date fixed for payment;
(b) if the Borrower shall fail to pay any interest or fees or other amounts owing hereunder (other than those specified in subsection (a) above) within five (5) Business Days after the same shall become due and payable whether at the Maturity Date or any accelerated date of maturity or at any other date fixed for payment;
(c) if the Borrower shall fail to comply with any of the covenants contained in §§7.4, 7.5, 7.15, 7.16, 8 and 9 hereof;otherwise; or
(d) if an Event of Default occurs under the Borrower shall fail Loan Agreement; or
(e) the Issuer fails to perform duly and promptly perform, comply with, or observe any termcovenant, covenant condition, agreement or agreement contained herein or in any of the other Loan Documents provision (other than those as specified in subsections (ai), (b)ii) or (iii) of this Section 9.01) contained in the Bonds or in this Indenture on the part of the Issuer to be performed, and (c) above) and such failure shall not be remedied within 30 continue for a period of 90 days after written notice of specifying such failure and requiring the same to be remedied shall have been given to the Issuer and the Borrower by the Administrative Agent or any Trustee, which notice may be given by the Trustee in its discretion and shall be given at the written request of the Banks;
Holders of not less than 100% in principal amount of the Bonds then Outstanding; provided, however, that if such default be such that it is correctable but cannot be corrected within 90 days, it shall not be an Event of Default if the Issuer or the Borrower is taking appropriate corrective action to cure such failure and if such failure will not impair the security for the Loan or the Bonds. If any Loan payment required under the Loan Agreement to avoid a default under (ei) if any representation or warranty contained in (ii) of this Agreement or in any document or instrument delivered pursuant to or in connection with this Agreement Section shall prove to not have been false in any material respect upon received at the date when close of business on the last business day preceding the day on which payment must be made to avoid a default under such (i) or repeated;
(f) if the Borrower or any of its Subsidiaries shall fail to pay when due, or within any applicable period of grace, any Indebtedness or obligations under Swap Contracts in an aggregate amount greater than $75,000,000, or fail to observe or perform any material term, covenant or agreement contained in any one or more agreements by which it is bound, evidencing or securing any Indebtedness or obligations under Swap Contracts in an aggregate amount greater than $75,000,000 for such period of time as would permit, or would have permitted (assuming the giving of appropriate notice if required) the holder or holders thereof or of any obligations issued thereunder to accelerate the maturity thereof or terminate its commitment with respect thereto;
(g) if the Borrowerii), the Guarantor or any Significant Subsidiary makes an assignment for the benefit Trustee shall use commercially reasonable efforts to give telephonic notice of creditors, or admits in writing its inability to pay or generally fails to pay its debts as they mature or become due, or petitions or applies for the appointment of a trustee or other custodian, liquidator or receiver of the Borrower, the Guarantor or any Significant Subsidiary, or of any substantial part of the assets of the Borrower, the Guarantor or any Significant Subsidiary or commences any case or other proceeding relating such default to the Borrower, which telephonic notice shall be confirmed by telegraphic or written notice to the Guarantor or Borrower. If any Significant Subsidiary other default shall occur under any bankruptcythe provisions of this Section, reorganizationthe Trustee shall, arrangementwithin five days after having actual knowledge of such default, insolvencyuse its best efforts to give written notice of such default to the Issuer, 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 the Borrower and the Holders of the foregoing, Bonds. A default or if any such petition or application is filed or any such case or other proceeding is commenced against the Borrower, the Guarantor or any Significant Subsidiary or the Borrower, the Guarantor or any Significant Subsidiary 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 Borrower or the Guarantor or any Significant Subsidiary bankrupt or insolvent, or approving a petition an Event of Default specified in any such case or other proceeding, or a decree or order for relief is entered in respect of the Borrower or the Guarantor or any Significant Subsidiary in an involuntary case under federal bankruptcy laws of any jurisdiction as now or hereafter constituted;
(i) if there through (v) above shall remain occur even though the Trustee fails to give the notice required by this paragraph, the giving of such notice being intended solely to aid in forcethe enforcement of the rights of Bondholders and not in limitation of such rights. Upon the occurrence of any Event of Default hereunder, undischargedthe Trustee shall, unsatisfied and unstayedupon the written consent of the Holders of the majority in aggregate principal amount of the Bonds then Outstanding, for more than thirty days, whether or not consecutive, any final judgment against the Borrower or any Subsidiary which, with other outstanding final judgments against declare by a notice in writing delivered to the Borrower and its Subsidiariesthe Issuer, exceeds in the aggregate $50,000,000 after taking into account any undisputed insurance coverage;
principal of all Bonds (j) ifif not then due and payable), with respect to any Guaranteed Pension Plan, an ERISA Reportable Event shall have occurred and the Banks interest thereon, to be due and payable immediately. Upon such declaration, the principal and interest on the Bonds shall have determined in their reasonable discretion that such event reasonably could become and be expected to result in liability of due and payable immediately. Interest on the Borrower or any Subsidiary Bonds shall accrue to the PBGC or such Plan in an aggregate amount exceeding $50,000,000 and such event in date determined by the circumstances occurring reasonably could constitute grounds Trustee for the partial or complete termination tender of such Plan payment to the Holders pursuant to that declaration; provided, that interest on any unpaid principal of Bonds shall continue to accrue from the date determined by the PBGC or Trustee for the appointment by the appropriate United States District Court tender of a trustee to administer such Plan; or a trustee shall have been appointed by the appropriate United States District Court to administer such Plan; or the PBGC shall have instituted proceedings to terminate such Plan;
(k) if 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 Banks, 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 or on behalf of the Borrower, the Guarantor, or any of their respective stockholders, 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 payment to the effect that, any one or more Holders of the Loan Documents is illegal, invalid or unenforceable in accordance with the terms thereof; or
(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 25% or more of the outstanding shares of common voting stock of the Borrower; or during any period of twelve consecutive calendar months, individuals who were directors of the Borrower on the first day of such period (together with any new directors whose election by such board or whose nomination for election by the shareholders of the Borrower was approved by a vote of a majority of the directors still in office who were either directors at the beginning of such period or whose election or nomination for election was previously so approved) shall cease to constitute a majority of the board of directors of the Borrower;those Bonds.]
Appears in 1 contract
Sources: Trust Indenture
Events of Default and Acceleration. If any of the following events (“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, “Defaults”) shall occur:
(a) if the any Borrower shall fail to pay any principal of the Loans made to such Borrower, any L/C Obligation or any obligation in respect of any Banker’s Acceptance when 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 paymentpayment and such default shall not have been remedied within one (1) Business Day after written notice thereof shall have been given to such Borrower and Ryder by an Agent;
(b) if the Borrower applicable Borrowers shall fail to pay any interest or fees or other amounts owing by such Borrower hereunder (other than those specified in subsection (a) above) within five (5) Business Days after when the same shall become due and payable payable, whether at the Maturity Date stated date of maturity or any accelerated date of maturity or at any other date fixed for paymentpayment and such default shall not have been remedied within three (3) Business Days after written notice thereof shall have been given to such Borrower and Ryder by an Agent;
(c) if the Borrower Borrowers shall fail to comply with any of the covenants contained in §9.1, §7.49.2, 7.5§9.3, 7.15, 7.16, 8 and 9 or §10.1 hereof;
(d) if the Borrower Borrowers shall fail to perform any term, covenant or agreement contained herein or in any of the other Loan Documents or pay any amounts (other than those specified in subsections (a), (b), and (c) above) and such failure shall not be remedied within 30 twenty (20) days after written notice of such failure shall have been given to the Borrower Borrowers and Ryder by the Administrative Agent or any of the Banksan Agent;
(e) if any representation or warranty contained in this Agreement or in any document or instrument delivered pursuant to or in connection with this Agreement shall prove to have been false in any material respect upon the date when made or repeated;
(f) if the Borrower or any of its Subsidiaries shall fail to pay when due, or within any applicable period of grace, any Indebtedness or obligations under Swap Contracts in an aggregate amount greater than $75,000,000, or fail to observe or perform any material term, covenant or agreement contained in any one or more agreements by which it is bound, evidencing or securing any Indebtedness or obligations under Swap Contracts in an aggregate amount greater than $75,000,000 for such period of time as would permit, or would have permitted (assuming the giving of appropriate notice if required) the holder or holders thereof or of any obligations issued thereunder to accelerate the maturity thereof or terminate its commitment with respect thereto;
(g) if the Borrower, the Guarantor or any Significant Subsidiary makes an assignment for the benefit of creditors, or admits in writing its inability to pay or generally fails to pay its debts as they mature or become due, or petitions or applies for the appointment of a trustee or other custodian, liquidator or receiver of the Borrower, the Guarantor or any Significant Subsidiary, or of any substantial part of the assets of the Borrower, the Guarantor or any Significant Subsidiary or commences any case or other proceeding relating to the Borrower, the Guarantor or any Significant Subsidiary 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, the Guarantor or any Significant Subsidiary or the Borrower, the Guarantor or any Significant Subsidiary 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 Borrower or the Guarantor or any Significant Subsidiary 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 or the Guarantor or any Significant Subsidiary in an involuntary case under federal bankruptcy laws of any jurisdiction as now or hereafter constituted;
(i) if there shall remain in force, undischarged, unsatisfied and unstayed, for more than thirty days, whether or not consecutive, any final judgment against the Borrower or any Subsidiary which, with other outstanding final judgments against the Borrower and its Subsidiaries, exceeds in the aggregate $50,000,000 after taking into account any undisputed insurance coverage;
(j) if, with respect to any Guaranteed Pension Plan, an ERISA Reportable Event shall have occurred and the Banks shall have determined in their reasonable discretion that such event reasonably could be expected to result in liability of the Borrower or any Subsidiary to the PBGC or such Plan in an aggregate amount exceeding $50,000,000 and such event in the circumstances occurring reasonably could constitute grounds for the partial or complete termination of such Plan by the PBGC or for the appointment by the appropriate United States District Court of a trustee to administer such Plan; or a trustee shall have been appointed by the appropriate United States District Court to administer such Plan; or the PBGC shall have instituted proceedings to terminate such Plan;
(k) if 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 Banks, 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 or on behalf of the Borrower, the Guarantor, or any of their respective stockholders, 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 effect that, any one or more of the Loan Documents is illegal, invalid or unenforceable in accordance with the terms thereof; or
(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 25% or more of the outstanding shares of common voting stock of the Borrower; or during any period of twelve consecutive calendar months, individuals who were directors of the Borrower on the first day of such period (together with any new directors whose election by such board or whose nomination for election by the shareholders of the Borrower was approved by a vote of a majority of the directors still in office who were either directors at the beginning of such period or whose election or nomination for election was previously so approved) shall cease to constitute a majority of the board of directors of the Borrower;
Appears in 1 contract
Sources: Global Revolving Credit Agreement (Ryder System Inc)
Events of Default and Acceleration. If any of the following events (“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, “Defaults”) shall occur:
(a) if the any Borrower shall fail to pay any principal of the Loans when 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;
(b) if the any Borrower shall fail to pay any interest on the Loans or fees or other amounts owing payable hereunder (other than those specified in subsection (a) above) within five (5) Business Days after when the same shall become due and payable payable, whether at the Maturity Date stated date of maturity or any accelerated date of maturity or at any other date fixed for payment, and such failure shall continue for five (5) days after written notice of such failure has been given to a Borrower by the Administrative Agent;
(c) if the any Borrower shall fail to comply with perform or observe any of the its covenants contained in §§7.4Sections 6.3.1, 7.56.4.1, 7.15, 7.16, 8 and 9 hereof7 or 8;
(d) if the any Borrower or any of its Subsidiaries shall fail to perform or observe any term, covenant covenant, or agreement contained herein or in any of the other Loan Documents (other than those specified elsewhere in subsections this Section 11) for thirty (a), (b), and (c30) above) and such failure shall not be remedied within 30 days after written notice of such failure shall have has been given to the such Borrower by the Administrative Agent Agent, provided, that a failure to perform or any observe the terms, covenants and agreements set forth in Section 6.2, Section 6.3.3, Section 6.7 or Section 6.9.1 that continues for more than ten (10) days (regardless of the Bankswhether notice of such failure is given to such Borrower) shall constitute an Event of Default hereunder;
(e) if any representation or warranty contained of any Borrower or any of its Subsidiaries in this Agreement Credit Agreement, any of the other Loan Documents, or in any other document or instrument delivered pursuant to or in connection with this Credit Agreement shall prove to have been false incorrect in any material respect upon the date when made or deemed to have been made or repeated;
(f) if failure to make a payment of principal or interest, or the Borrower occurrence of a default, event of default, or other event permitting (with or without the passage of time or the giving of notice) acceleration or exercise of remedies or, with respect to any Swap Contract, as to which the Company or any Subsidiary is the defaulting party, permitting early termination thereof shall occur with respect to (i) any Indebtedness for money borrowed, (ii) any Indebtedness in respect of the deferred purchase price of goods or services, (iii) any Capitalized Lease, (iv) any Broker-Dealer Debt, (v) any Swap Contract or (vi) any Synthetic Lease Obligation, of the Company or any of its Subsidiaries shall fail Subsidiaries, having a principal amount (or (x) in the case of a Capitalized Lease, scheduled rental payments with a discounted present value from the last day of the initial term to pay when duethe date of determination as determined in accordance with generally accepted accounting principles or (y) in the case of a Swap Contract, the Swap Termination Value or within any applicable period (z) in the case of gracea Synthetic Lease Obligation, any the amount of Attributable Indebtedness or obligations under Swap Contracts in an aggregate amount greater than $75,000,000with respect thereto), or fail to observe or perform any material term, covenant or agreement contained in any one case, of $100,000,000 or more agreements by which it is boundmore, evidencing and such failure to make a payment of principal or securing any Indebtedness interest, or obligations under Swap Contracts in an aggregate amount greater than $75,000,000 a default, event of default, or other event shall continue for such period of time as would permit, or would have permitted (assuming the giving of appropriate notice if required) entitle the holder of such Indebtedness, Capitalized Lease, Swap Contract or holders thereof Synthetic Lease Obligation (with or of any obligations issued thereunder without notice) to accelerate the maturity thereof such Indebtedness or terminate its commitment with respect theretosuch Capitalized Lease, Swap Contract or Synthetic Lease Obligation;
(g) if any of the BorrowerLoan 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 Banks, or any Proceeding to cancel, revoke, or rescind any of the Loan Documents shall be commenced by or on behalf of any Borrower or any of its Subsidiaries party thereto, or any Government Authority of competent jurisdiction shall make a determination that, or issue a Government Mandate to the effect that, any material provision of one or more of the Loan Documents is illegal, invalid, or unenforceable in accordance with the terms thereof; or any material provision of Section 14 shall cease to be valid and binding on or enforceable against the Company, or the Company shall so state in writing;
(h) the Company, Alliance Distributors, the Guarantor General Partner, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ or any Significant Material Subsidiary makes shall make an assignment for the benefit of creditors, or admits admit in writing its inability to pay or generally fails fail to pay its debts as they mature or become due, or petitions shall petition or applies apply for the appointment of a trustee or other custodian, liquidator liquidator, or receiver of the BorrowerCompany, Alliance Distributors, the Guarantor General Partner, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ or any Significant Subsidiary, Material Subsidiary or of any substantial part of the assets of the BorrowerCompany, Alliance Distributors, the Guarantor General Partner, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ or any Significant Subsidiary Material Subsidiary, or commences shall commence any case or other proceeding Proceeding relating to the BorrowerCompany, Alliance Distributors, the Guarantor General Partner, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ or any Significant Material Subsidiary under any bankruptcy, reorganization, arrangement, insolvency, readjustment of debt, dissolution or liquidation dissolution, liquidation, or similar law of any jurisdiction, now or hereafter in effect, or takes shall take any action to authorize or in furtherance of any of the foregoing, or if any such petition or application is shall be filed or any such case or other proceeding is Proceeding shall be commenced against the BorrowerCompany, Alliance Distributors, the Guarantor General Partner, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ or any Significant Material Subsidiary or the Borrower, the Guarantor or and any Significant Subsidiary indicates of such parties shall indicate its approval thereof, consent thereto thereto, or acquiescence therein;
(hi) if either (i) an involuntary Proceeding relating to the Company, Alliance Distributors, the General Partner, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ or any Material Subsidiary under any bankruptcy, reorganization, arrangement, insolvency, readjustment of debt, dissolution, liquidation, or similar law of any jurisdiction, now or hereafter in effect is commenced and not dismissed or vacated within sixty (60) days following entry thereof, or (ii) a decree or order is entered appointing any such trustee, custodian, liquidator liquidator, or receiver described in (h) or adjudicating the Borrower or Company, Alliance Distributors, the Guarantor General Partner, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ or any Significant Material Subsidiary bankrupt or insolvent, or approving a petition in any such case or other proceedingProceeding, or a decree or order for relief is entered in respect of the Borrower or Company, Alliance Distributors, the Guarantor General Partner, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ or any Significant Material Subsidiary in an involuntary case Proceeding under federal bankruptcy laws of any jurisdiction as now or hereafter constituted;
(ij) if there shall remain in force, undischarged, unsatisfied unsatisfied, and unstayed, for more than thirty forty-five (45) days, whether or not consecutive, any final judgment or order against the Borrower Company or any Subsidiary whichof its Subsidiaries, that, with any other such outstanding final judgments or orders, undischarged, against the Borrower Company and its Subsidiaries, Subsidiaries taken together exceeds in the aggregate $50,000,000 after taking into account any undisputed insurance coverage100,000,000;
(jk) if, with respect to any Guaranteed Pension Plan, an ERISA Reportable Event shall have occurred and the Majority Banks shall have determined in their reasonable discretion that such event reasonably could would be expected to result in liability of the Borrower Company or any Subsidiary of its Subsidiaries to the PBGC or such Guaranteed Pension Plan in an aggregate amount exceeding $50,000,000 100,000,000 and such event in the circumstances occurring reasonably could would constitute grounds for the partial or complete termination of such Guaranteed Pension Plan by the PBGC or for the appointment by the appropriate United States District Court of a trustee to administer such Guaranteed Pension Plan; or a trustee shall have been appointed by the appropriate United States District Court to administer such Guaranteed Pension Plan; or the PBGC shall have instituted proceedings to terminate such Guaranteed Pension Plan; or any representation with respect to any Guaranteed Pension Plan or Multiemployer Plan made in Section 5.9 shall prove to be incorrect during the term of this Credit Agreement and the Majority Banks shall have determined in their reasonable discretion that the events underlying the incorrect representation would reasonably be expected to result in liability to the Company or its Subsidiaries, in the aggregate, in excess of $100,000,000;
(kl) if any of the Loan Documents following: (i) the Company shall fail to be cancelledduly registered as an “investment adviser” under the Investment Advisers Act of 1940; (ii) Alliance Distributors shall cease to be duly registered as a “broker/dealer” under the Securities Exchange Act of 1934 or shall cease to be a member of the Financial Industry Regulatory Authority, terminatedInc., revoked or rescinded otherwise than (iii) ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ shall cease to be duly registered as a “broker/dealer” under the Securities Exchange Act of 1934 or shall cease to be a member of the Financial Industry Regulatory Authority, Inc., in accordance each case, to the extent required;
(m) the Company, Alliance Distributors, the General Partner, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ or any Material Subsidiary shall either (i) be indicted for a federal or state crime and, in connection with such indictment, Government Authorities shall seek to seize or attach, or seek a civil forfeiture of, property of the terms thereof Company, Alliance Distributors, the General Partner, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ or one or more of such Material Subsidiaries having a fair market value in excess of $100,000,000, or (ii) be found guilty of, or shall plead guilty, no contest, or nolo contendere to, any federal or state crime, a punishment for which would include a fine, penalty, or forfeiture of any assets of the Company, Alliance Distributors, the General Partner, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ or such Material Subsidiary having in any such case a fair market value in excess of $100,000,000; or
(n) AllianceBernstein Corporation shall cease to be the sole general partner of the Company, and such circumstance shall continue for thirty (30) days after written notice of such circumstance has been given to the Company, provided, that the admission of additional Persons as general partner of the Company shall not constitute an Event of Default if, prior to the admission of any such general partner, the Company delivers to the Banks (i) the documentation with respect to such general partner that would be required under Section 9.3 if such Person were a General Partner on the express prior written agreementClosing Date, consent or approval of (ii) an incumbency certificate for such general partner as required for the Company pursuant to Section 9.8, and (iii) an opinion from counsel reasonably acceptable to the Banks, or any action at lawin form and substance reasonably satisfactory to the Banks, suit or in equity or other legal proceeding as to cancel, revoke or rescind any of the Loan Documents shall be commenced by or such general partner’s power and authority to act on behalf of the BorrowerCompany as a general partner of the Company; then, and in any such event, so long as the same may be continuing, the GuarantorAdministrative Agent shall, at the request of, or any of their respective stockholdersmay with the consent of, 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 effect that, any Majority Banks take one or more of the following actions: (x) declare the Commitment of each Bank to make Loans to be terminated, whereupon such Commitment shall be terminated; and (y) by notice in writing to the Borrowers declare all amounts owing with respect to this Credit Agreement, any Notes, and the other Loan Documents is illegalto be, invalid and they shall thereupon forthwith become, immediately due and payable without presentment, demand, protest, or unenforceable other notice of any kind, all of which are hereby expressly waived by each Borrower. In addition, in accordance with any such event, so long as the terms thereof; same may be continuing, the Administrative Agent may or
(l) if any person or group of persons (within , at the meaning of Section 13 or 14 request of the Securities Exchange Act Majority Banks, shall exercise on behalf of 1934itself and the Banks all other rights and remedies available to it and the Banks under the Loan Documents or applicable law. Notwithstanding the foregoing, as amendedin the event of any Event of Default specified in Section 11.1(h) or Section 11.1(i), all such amounts shall have acquired beneficial ownership (within become immediately due and payable automatically and without any requirement of notice from the meaning Administrative Agent or any Bank, and any unused portion of Rule 13d-3 promulgated the Total Commitment hereunder shall forthwith terminate and each of the Banks shall be relieved of all obligations to make Loans to the Borrowers. Any declaration under this Section 11.1 may be rescinded by the Securities and Exchange Commission under said Act) Majority Banks after the Events of 25% Default leading to such declaration are cured or more of the outstanding shares of common voting stock of the Borrower; or during any period of twelve consecutive calendar months, individuals who were directors of the Borrower on the first day of such period (together with any new directors whose election by such board or whose nomination for election by the shareholders of the Borrower was approved by a vote of a majority of the directors still in office who were either directors at the beginning of such period or whose election or nomination for election was previously so approved) shall cease to constitute a majority of the board of directors of the Borrower;waived.
Appears in 1 contract
Sources: Revolving Credit Agreement (Alliancebernstein L.P.)
Events of Default and Acceleration. If any of the following events (“"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 or lapse of time, “"Defaults”") shall occur:
: (a) if the Borrower shall fail to pay any principal of the Loans within five (5) days after the same shall become due and payable; (b) the Borrower shall fail to pay any interest on the Loans or any other sums due hereunder or under any of the other Loan Documents when 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;
(b) if the Borrower shall fail to pay any interest or fees or other amounts owing hereunder (other than those specified in subsection (a) above) within five (5) Business Days after the same shall become due and payable whether at the Maturity Date or any accelerated date of maturity or at any other date fixed for payment;
; (c) if the Borrower or the Company shall fail to comply with any of the its covenants contained in §§7.4, 7.5, 7.15the first sentence of 7.6, 7.167.7, 8 and or 9 hereof;
; (d) if the Borrower or any Guarantor shall fail to perform any other term, covenant or agreement contained herein or in any of the other Loan Documents (other than those specified elsewhere in subsections this 12) for thirty (a), (b), and (c30) above) and such failure shall not be remedied within 30 days after written notice of such failure shall have been given from Agent to the Borrower; (e) any representation or warranty of the Borrower by the Administrative Agent in this Agreement or any of the Banks;
(e) if any representation or warranty contained in this Agreement other Loan Documents or in any other document or instrument delivered pursuant to or in connection with this Agreement Agreement, shall prove to have been false in any material respect upon the date when made or deemed to have been made or repeated;
, provided, however, that with respect to the representations and warranties of the Borrower contained in 6.2, 6.3, 6.13, 6.18 and in paragraphs (a), (c), (d), (e) and (f) of 6.22, if the condition or event making the representation and warranty false is capable of being cured by the Borrower, no enforcement action has been commenced against the Borrower or the applicable Mortgaged Property on account of such condition or event nor is the applicable Mortgaged Property subject to risk of forfeiture due to such condition or event, and the Borrower promptly commences the cure thereof after the Borrower's first obtaining knowledge of such condition or event, the Borrower shall have a period of thirty (30) days after the date that the Borrower first obtained knowledge of such condition or event during which the Borrower may cure such condition or event (or, if such condition or event is not reasonably capable of being cured within such thirty (30) day period, such additional period of time as may be reasonably required in order to cure such condition or event but in any event such period shall not exceed six (6) months from the date that the Borrower first obtained knowledge of such condition or event), and no Event of Default shall exist hereunder during such thirty (30) day or additional period so long as the Borrower continuously and diligently pursues the cure of such condition or event and the other conditions to such cure period have not changed; (f) the Borrower, the Company, any of its Subsidiaries the Related Companies or any Permitted Joint Venture shall fail to pay when dueat maturity, or within any applicable period of grace, any Indebtedness or obligations under Swap Contracts in an aggregate amount greater than $75,000,000Recourse Indebtedness, or shall fail to observe or perform any material term, covenant or agreement contained in any one or more agreements agreement by which it is bound, evidencing or securing any Indebtedness or obligations under Swap Contracts in an aggregate amount greater than $75,000,000 for such period of time as would permit, or would have permitted permit (assuming the giving of appropriate notice if required) the holder or holders thereof or of any obligations issued thereunder to accelerate the maturity thereof or terminate its commitment with respect thereto;
thereof, and in any event, such failure shall continue for thirty (30) days, unless the aggregate amount of all such defaulted Recourse Indebtedness plus the amount of any unsatisfied judgments described in paragraph (i) of this 12.1 is less than $30,000,000.00; (g) if any of the Borrower, the Guarantor Company or any Significant Subsidiary makes Guarantor shall make an assignment for the benefit of creditors, or admits admit in writing its inability to pay or generally fails fail to pay its debts as they mature or become due, or petitions shall petition or applies apply for the appointment of a trustee or other custodian, liquidator or receiver of the Borrower, the Guarantor or any Significant Subsidiary, or of any substantial part of the assets of the Borrower, the Guarantor its properties or any Significant Subsidiary or commences shall commence any case or other proceeding relating to the Borrower, the Guarantor or any Significant Subsidiary 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 shall take any action to authorize or in furtherance of any of the foregoing, or if any such petition or application is shall be filed or any such case or other proceeding is shall be commenced against the Borrower, the Guarantor or any Significant Subsidiary or the Borrower, the Guarantor or any Significant Subsidiary indicates such Person and such Person shall indicate its approval thereof, consent thereto or acquiescence therein;
therein or any of the events described in this paragraph shall occur with respect to any other Related Company or any Permitted Joint Venture and such event shall have a Material Adverse Effect; (h) if a decree or order is entered appointing any such trustee, custodian, liquidator or receiver or adjudicating the Borrower or Borrower, the Guarantor Company, or any Significant Subsidiary 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 or Borrower, the Guarantor Company, or any Significant Subsidiary Guarantor in an involuntary case under federal bankruptcy laws of any jurisdiction as now or hereafter constituted;
constituted or any of the events described in this paragraph shall occur with respect to any other Related Company or any Permitted Joint Venture and such event shall have a Material Adverse Effect; (i) if there shall remain in force, undischarged, unsatisfied and unstayed, for more than thirty days, whether or not consecutive, any uninsured final judgment against the Borrower or any Subsidiary whichthat, with other outstanding uninsured final judgments judgments, undischarged, against the Borrower and its SubsidiariesBorrower, the Company or any of the Related Companies plus the amount of any defaulted Recourse Indebtedness under paragraph (f) of this 12.1, exceeds in the aggregate $50,000,000 after taking into account any undisputed insurance coverage;
30,000,000.00; (j) if, with respect to any Guaranteed Pension Plan, an ERISA Reportable Event shall have occurred and the Banks shall have determined in their reasonable discretion that such event reasonably could be expected to result in liability of the Borrower or any Subsidiary to the PBGC or such Plan in an aggregate amount exceeding $50,000,000 and such event in the circumstances occurring reasonably could constitute grounds for the partial or complete termination of such Plan by the PBGC or for the appointment by the appropriate United States District Court of a trustee to administer such Plan; or a trustee shall have been appointed by the appropriate United States District Court to administer such Plan; or the PBGC shall have instituted proceedings to terminate such Plan;
(k) if any of the Loan Documents or any material provision of any Loan Documents shall be unenforceable, 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 BanksAgent, or any action at law, suit or in equity or other legal proceeding to make unenforceable, cancel, revoke or rescind any of the Loan Documents shall be commenced by or on behalf of the Borrower, the Guarantor, Borrower or any of their respective stockholdersGuarantor, 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 effect that, any one or more of the Loan Documents is illegal, invalid or unenforceable in accordance with the terms thereof; or
(lk) if the Borrower or any person or group Guarantor shall be indicted for a federal crime, a punishment for which could include the forfeiture 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 25% or more of the outstanding shares of common voting stock any assets of the Borrower; (l) the Borrower shall fail to pay, observe or during perform any period of twelve consecutive calendar monthsterm, individuals who were directors covenant, condition or agreement contained in any agreement, document or instrument evidencing, securing or otherwise relating to any Indebtedness of the Borrower on to any Bank (other than the first day Obligations) and/or relating to any Permitted Lien (other than the Obligations) within any applicable period of grace provided for in such period agreement, document or instrument; (together m) any "Event of Default", as defined in any of the other Loan Documents or in the Subordinated Debenture Indenture, shall occur; then, and in any such event, so long as the same may be continuing, the Agent may, and upon the request of the Requisite Banks shall, by notice in writing to the Borrower declare all amounts owing with respect to this Agreement, the Notes and the other Loan Documents to be, and they shall thereupon forthwith become, immediately due and payable without presentment, demand, protest or other notice of any new directors whose election by such board or whose nomination for election kind, all of which are hereby expressly waived by the shareholders Borrower; provided that in the event of any Event of Default specified in 12.1(g) or 12.1(h), all such amounts shall become immediately due and payable automatically and without any requirement of notice from the Borrower was approved Agent or action by a vote of a majority of the directors still in office who were either directors at the beginning of such period or whose election or nomination for election was previously so approved) shall cease to constitute a majority of the board of directors of the Borrower;Requisite Banks.
Appears in 1 contract
Sources: Loan Agreement (Liberty Property Limited Partnership)
Events of Default and Acceleration. If any (a) Each of the following events (“Events shall constitute an Event 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 occurDefault hereunder:
(a1) if Failure by the Borrower shall fail Purchaser to pay any principal of the Loans Installment Payment or interest or prepayment premium (if any) or any Additional Payment pursuant to Section 3.03(a) when and as 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;
(b2) if Failure by the Borrower shall fail Purchaser to pay any interest or fees or other amounts owing hereunder (other than those specified in subsection (a) above) within five (5) Business Days after the same shall become due observe and payable whether at the Maturity Date or any accelerated date of maturity or at any other date fixed for payment;
(c) if the Borrower shall fail to comply with perform any of the covenants covenants, agreements or conditions on its part contained in §§7.4this Agreement, 7.5, 7.15, 7.16, 8 and 9 hereof;
(d) if the Borrower shall fail to perform any term, covenant or agreement contained herein or in any of the other Loan Documents (other than those specified as referred to in subsections the preceding subsection (a1), for a period of sixty (b), and (c60) above) and such failure shall not be remedied within 30 days after written notice of such failure shall have has been given to the Borrower Purchaser by IBank, or to the Purchaser and IBank, specifying such failure and requesting that such failure be remedied; provided, however, that if the failure stated in such notice can be corrected, but not within such sixty (60) day period, IBank may consent to an extension of such time if corrective action is instituted by the Administrative Agent or any of the BanksPurchaser within such sixty (60) day period and diligently pursued until such failure is corrected;
(e3) The filing by the Purchaser of a petition or answer seeking reorganization or arrangement under the federal bankruptcy laws or any other applicable law of the United States of America, or if a court of competent jurisdiction shall approve a petition, filed with or without the consent of the Purchaser, seeking reorganization under the federal bankruptcy laws or any other applicable law of the United States of America, or if, under the provisions of any other law for the relief or aid of debtors, any court of competent jurisdiction shall assume custody or control of the Purchaser or of the whole or any substantial part of its property;
(4) Any representation or warranty other written statement made by the Purchaser contained in this Agreement Agreement, the application for financing or in any document or instrument delivered pursuant to furnished in compliance with or in connection with this Agreement reference thereto shall prove to have been false incorrect in any material respect upon the date when made or repeatedrespect;
(f5) if An unexcused failure by the Borrower or any of its Subsidiaries shall fail Purchaser to pay when dueamounts due under any bond, note, installment sale agreement, capital lease, or within any applicable period of grace, any Indebtedness other agreement or obligations under Swap Contracts in an aggregate amount greater than $75,000,000, or fail instrument to observe or perform any material term, covenant or agreement contained in any one or more agreements by which it is bound, evidencing or securing any Indebtedness or obligations under Swap Contracts in an aggregate amount greater than $75,000,000 for such period of time as would permit, or would have permitted (assuming the giving of appropriate notice if required) the holder or holders thereof or of any obligations issued thereunder to accelerate the maturity thereof or terminate its commitment with respect thereto;
(g) if the Borrower, the Guarantor or any Significant Subsidiary makes an assignment for the benefit of creditors, or admits in writing its inability to pay or generally fails to pay its debts as they mature or become due, or petitions or applies for the appointment of a trustee or other custodian, liquidator or receiver of the Borrower, the Guarantor or any Significant Subsidiary, or of any substantial part of the assets of the Borrower, the Guarantor or any Significant Subsidiary or commences any case or other proceeding party relating to the Borrowerborrowing of money, the Guarantor if such unpaid amount shall exceed fifty thousand dollars ($50,000); or
(6) The occurrence of an event of default with respect to any Parity Debt or any Significant Subsidiary under any bankruptcy, reorganization, arrangement, insolvency, readjustment Subordinate Debt which causes all principal of debt, dissolution such Parity Debt or liquidation or similar law of any jurisdiction, now or hereafter in effect, or takes any action Subordinate Debt 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, the Guarantor or any Significant Subsidiary or the Borrower, the Guarantor or any Significant Subsidiary indicates its approval thereof, consent thereto or acquiescence therein;become due and payable immediately.
(hb) if a decree or order If an Event of Default has occurred and is entered appointing any such trusteecontinuing, custodian, liquidator or receiver or adjudicating the Borrower or the Guarantor or any Significant Subsidiary 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 or the Guarantor or any Significant Subsidiary in an involuntary case under federal bankruptcy laws of any jurisdiction as now or hereafter constituted;IBank may
(i) if there declare the principal of the Purchase Price, together with the accrued interest on all unpaid installments thereof, to be due and payable immediately, and upon any such declaration the same shall remain become immediately due and payable, anything in forcethis Agreement to the contrary notwithstanding, undischargedand (ii) exercise any other remedies available to IBank in law or at equity. Immediately upon becoming aware of the occurrence of an Event of Default, unsatisfied and unstayedIBank shall give notice of such Event of Default to the Purchaser by telephone, for more than thirty daystelecopier, whether facsimile or not consecutiveother telecommunication device, any final judgment against promptly confirmed in writing. This provision, however, is subject to the Borrower or any Subsidiary which, with other outstanding final judgments against the Borrower and its Subsidiaries, exceeds in the aggregate $50,000,000 after taking into account any undisputed insurance coverage;
(j) condition that if, with respect to at any Guaranteed Pension Plan, an ERISA Reportable Event shall have occurred and time after the Banks shall have determined in their reasonable discretion that such event reasonably could be expected to result in liability principal of the Borrower or any Subsidiary to the PBGC or such Plan in an aggregate amount exceeding $50,000,000 and such event in the circumstances occurring reasonably could constitute grounds for the partial or complete termination of such Plan by the PBGC or for the appointment by the appropriate United States District Court of a trustee to administer such Plan; or a trustee Purchase Price shall have been appointed by so declared due and payable, and before any judgment or decree for the appropriate United States District Court payment of the moneys due shall have been obtained or entered, the Purchaser shall deposit with IBank a sum sufficient to administer pay all installments of principal of the Purchase Price due prior to such Plan; declaration and all accrued interest thereon, with interest on such overdue Installment Payments at the rate of the lesser of twelve percent (12%) per annum or the PBGC maximum rate permitted by law, and the reasonable expenses of IBank (including but not limited to attorneys fees and costs), and any and all other defaults known to IBank (other than in the payment of principal of and interest on the Purchase Price due and payable solely by reason of such declaration), including the payment of Additional Payments due and owing, shall have instituted proceedings been made good or cured to terminate the satisfaction of IBank or provision deemed by IBank to be adequate shall have been made therefor, then, and in every such Plan;
(k) if case, IBank may, by written notice to the Purchaser, rescind and annul such declaration and its consequences. However, no such rescission and annulment shall extend to or shall affect 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 Bankssubsequent default, or shall impair or exhaust any action at law, suit right or 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 Borrower, the Guarantor, or any of their respective stockholders, 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 effect that, any one or more of the Loan Documents is illegal, invalid or unenforceable in accordance with the terms thereof; or
(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 25% or more of the outstanding shares of common voting stock of the Borrower; or during any period of twelve consecutive calendar months, individuals who were directors of the Borrower on the first day of such period (together with any new directors whose election by such board or whose nomination for election by the shareholders of the Borrower was approved by a vote of a majority of the directors still in office who were either directors at the beginning of such period or whose election or nomination for election was previously so approved) shall cease to constitute a majority of the board of directors of the Borrower;power consequent thereon.
Appears in 1 contract
Sources: Installment Sale Agreement
Events of Default and Acceleration. If any of the following events (“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 or lapse of time, “Defaults”) shall occur:: NYDOCS03/1056463.7
(a) if the Borrower Borrowers shall fail to pay any principal of the Loans when 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;
(b) if the Borrower Borrowers shall fail to pay any interest on the Loans within five (5) Business Days of the date that the same shall become due and payable, any reimbursement obligations with respect to the Letters of Credit or any fees or other amounts owing sums due hereunder (other than those specified in subsection (aany voluntary prepayment) above) or under any of the other Loan Documents within five (5) Business Days after the same shall become due and payable notice from Agent, whether at the Maturity Date 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 any of the covenants contained in §§7.4, 7.5, 7.15, 7.16, 8 and 9 hereof[Reserved];
(d) if any of the Borrower Borrowers shall fail to perform any other term, covenant or agreement contained in §9.1, §9.2, §9.3, §9.4, §9.5, §9.6, §9.7, §9.9 or §9.10 which they are required to perform;
(e) any of the Loan Parties shall fail to perform any other term, covenant or agreement contained herein or in any of the other Loan Documents which they are required to perform (other than those specified in subsections the other subclauses of this §12 (aincluding, without limitation, §12.2 below) or in the other Loan Documents), (b), and (c) above) and such failure shall continue for thirty (30) days after such Borrower receives from Agent written notice thereof, and in the case of a default that cannot be remedied cured within 30 such thirty (30)-day period despite such Borrower’s diligent efforts but is susceptible of being cured within ninety (90) days after written notice of such failure Borrower’s receipt of Agent’s original notice, then such Borrower shall have been given such additional time as is reasonably necessary to effect such cure, but in no event in excess of ninety (90) days from such Borrower’s receipt of Agent’s original notice; provided that the Borrower foregoing cure provisions shall not pertain to any default consisting of a failure to comply with §8.4, or to any Default excluded from any provision of cure of defaults contained in any other of the Loan Documents and with respect to any defaults under §8.1, §8.2 or §8.8, the thirty (30) day cure period described above shall be reduced to a period of ten (10) Business Days and no additional cure period shall be provided with respect to such defaults;
(f) any material representation or warranty made by or on behalf of the Administrative Agent Borrowers or any of the Banks;
(e) if any representation or warranty contained their respective Subsidiaries in this Agreement or any other Loan Document, or any report, certificate, financial statement, request for a Loan, or in any other document or instrument delivered pursuant to or in connection with this Agreement Agreement, any advance of a Loan, or any of the other Loan Documents shall prove to have been false in any material respect upon the date when made or repeated;
(f) if the Borrower or any of its Subsidiaries shall fail deemed to pay when due, or within any applicable period of grace, any Indebtedness or obligations under Swap Contracts in an aggregate amount greater than $75,000,000, or fail to observe or perform any material term, covenant or agreement contained in any one or more agreements by which it is bound, evidencing or securing any Indebtedness or obligations under Swap Contracts in an aggregate amount greater than $75,000,000 for such period of time as would permit, or would have permitted (assuming the giving of appropriate notice if required) the holder or holders thereof or of any obligations issued thereunder to accelerate the maturity thereof or terminate its commitment with respect theretobeen made;
(g) if Any Borrower or Guarantor (or Subsidiary thereof) defaults under (i) any Recourse Indebtedness in an aggregate amount equal to or greater than $5,000,000.00 with respect to all uncured defaults at any time, or (ii) any Non-Recourse Indebtedness in an aggregate amount equal to or greater than $50,000,000.00 with respect to all uncured defaults at any time;
(h) any of the BorrowerBorrowers or Guarantors, the Guarantor or any Significant Subsidiary makes (i) shall make an assignment for the benefit of creditors, or admits admit in writing its general inability to pay or generally fails fail to pay its debts as they mature or become due, or petitions shall petition or applies apply for the appointment of a trustee or other custodian, liquidator or receiver of the Borrower, the Guarantor for it or any Significant Subsidiary, or of any substantial part of the assets of the Borrowerits assets, the Guarantor or any Significant Subsidiary or commences (ii) shall commence any case or other proceeding relating to the Borrower, the Guarantor or any Significant Subsidiary it 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 (iii) shall take any action to authorize any of the foregoing;
(i) a petition or in furtherance application shall be filed for the appointment of a trustee or other custodian, liquidator or receiver of any of the foregoingBorrowers or Guarantors or any substantial part of the assets of any thereof, or if any such petition or application is filed or any such a case or other proceeding is shall be commenced against the Borrowerany such Person under any bankruptcy, the Guarantor reorganization, arrangement, insolvency, readjustment of debt, dissolution or liquidation or similar law of any Significant Subsidiary jurisdiction, now or the Borrowerhereafter in effect, the Guarantor or and any Significant Subsidiary indicates such Person shall indicate its approval thereof, consent thereto NYDOCS03/1056463.7 or acquiescence thereintherein or such petition, application, case or proceeding shall not have been dismissed within sixty (60) days following the filing or commencement thereof;
(hj) if a decree or order is entered appointing any such a trustee, custodian, liquidator or receiver for any of the Borrowers or Guarantors or adjudicating the Borrower or the Guarantor or any Significant Subsidiary such Person, 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 or the Guarantor or any Significant Subsidiary such Person in an involuntary case under federal bankruptcy laws of any jurisdiction as now or hereafter constituted;
(ik) if there shall remain in force, undischarged, unsatisfied and unstayed, for more than thirty sixty (60) days, whether or not consecutive, one or more uninsured or unbonded final judgments against any final judgment against Guarantor or Borrower (or Subsidiary thereof) that, either individually or in the aggregate, exceed $5,000,000.00;
(l) any of the Loan Documents shall be canceled, terminated, revoked or rescinded by any Borrower or any Subsidiary whichGuarantor otherwise than in accordance with the terms thereof or the express prior written agreement, consent or approval of the Required Lenders, 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 any of the Borrowers, or any court or any other governmental or regulatory authority or agency of competent jurisdiction shall make a determination, or issue a judgment, order, decree or ruling, to the effect that any one or more of the material Loan Documents is illegal, invalid or unenforceable in accordance with other outstanding final judgments against the Borrower terms thereof, and its Subsidiariesin each case of the foregoing the Borrowers fail to enter into an amendment or modification to the existing Loan Documents or enter into new documentation, exceeds each in form and substance reasonably satisfactory to Agent and Required Lenders, which have the aggregate $50,000,000 after taking into account any undisputed insurance coverageeffect of rendering the cancellation, termination, revocation, rescission, illegality, invalidity or unenforceability immaterial;
(jm) ifany dissolution, termination, partial or complete liquidation, merger or consolidation of any of the Loan Parties shall occur or any sale, transfer or other disposition of the assets of any of the Loan Parties shall occur other, in each case, than as permitted under the terms of this Agreement or the other Loan Documents;
(n) with respect to any Guaranteed Pension Plan, an ERISA Reportable Event shall have occurred and the Banks shall have determined in their reasonable discretion that such event reasonably could would be expected likely to result in liability of any of the Borrower or any Subsidiary Borrowers to pay money to the PBGC or such Plan in an aggregate amount exceeding $50,000,000 5,000,000.00 and one of the following shall apply with respect to such event: (x) such event in the circumstances occurring reasonably could constitute grounds for would be likely to result in the partial or complete termination of such Plan by the PBGC or for the appointment by the appropriate United States District Court of a trustee to administer such Plan; or (y) a trustee shall have been appointed by the appropriate United States District Court to administer such Plan; or (z) the PBGC shall have instituted proceedings to terminate such Plan;
(ko) if the occurrence of any Change 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 Banks, 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 or on behalf of the Borrower, the Guarantor, or any of their respective stockholders, 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 effect that, any one or more of the Loan Documents is illegal, invalid or unenforceable in accordance with the terms thereofControl; or
(lp) if an Event of Default under any person or group of persons (within the meaning of Section 13 or 14 of the Securities Exchange Act other Loan Documents shall occur (subject, in any case, to any applicable cure provision set forth in §12.1(e); then, and upon any such Event of 1934Default, as amended) Agent may, and upon the request of the Required Lenders shall, by notice in writing to the Borrowers declare all amounts owing with respect to this Agreement, the Notes, and the other Loan Documents to be, and they shall have acquired beneficial ownership (within the meaning thereupon forthwith become, immediately due and payable without presentment, demand, protest or other notice of Rule 13d-3 promulgated any kind, all of which are hereby expressly waived by the Securities Borrowers; provided that in the event of any Event of Default specified in §12.1(h), §12.1(i) or §12.1(j), all such amounts shall become immediately due and Exchange Commission under said Act) payable automatically and without any requirement of 25% presentment, demand, protest or more other notice of the outstanding shares of common voting stock of the Borrower; any kind from any Lender or during any period of twelve consecutive calendar months, individuals who were directors of the Borrower on the first day of such period (together with any new directors whose election by such board or whose nomination for election by the shareholders of the Borrower was approved by a vote of a majority of the directors still in office who were either directors at the beginning of such period or whose election or nomination for election was previously so approved) shall cease to constitute a majority of the board of directors of the Borrower;Agent.
Appears in 1 contract
Events of Default and Acceleration. If any of the following events (“"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 or lapse of time, “"Defaults”") shall occur:
(a) if the Borrower shall fail to pay any principal of the Loans when 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;
(b) if the Borrower shall fail to pay any interest on the Loans or fees any other sums due hereunder or under any of the other amounts owing hereunder (other than those specified in subsection (a) above) within five (5) Business Days after Loan Documents, when the same shall become due and payable payable, whether at the Maturity Date stated date of maturity or any accelerated date of maturity or at any other date fixed for payment;
(c) if the Borrower or PSB shall fail to comply with any of the covenants covenant contained in §§7.4ss.7.4(c), 7.5, 7.15, 7.16, 8 and 9 hereofsuch failure shall continue for five (5) days after written notice thereof shall have been given to the Borrower by the Agent;
(d) if the Borrower or PSB shall fail to comply with any covenant contained in ss.7.13, ss.7.14 or ss.9, and such failure shall continue for thirty (30) days after written notice thereof shall have been given to the Borrower by the Agent;
(e) any of the Borrower, the Guarantors or any of their respective Subsidiaries shall fail to perform any other term, covenant or agreement contained herein or in any of the other Loan Documents (other than those specified in subsections (athis ss.12), (b), and (c) above) and such failure shall not be remedied within 30 days after written notice of such failure shall have been given to the Borrower by the Administrative Agent or any of the Banks;
(ef) if any representation or warranty contained made by or on behalf of the Borrower, the Guarantors or any of their respective Subsidiaries in this Agreement or any other Loan Document, or in any report, certificate, financial statement, request for a Loan or in any other document or instrument delivered pursuant to or in connection with this Agreement Agreement, any advance of a Loan or any of the other Loan Documents shall prove to have been false or misleading in any material respect upon the date when made or deemed to have been made or repeated;
(fg) if any of the Borrower Borrower, the Guarantors or any of its their respective Subsidiaries shall fail to pay when dueat maturity, or within any applicable period of grace, any Indebtedness obligation for borrowed money or obligations under Swap Contracts in an aggregate amount greater than $75,000,000credit received or other Indebtedness, or fail to observe or perform any material term, covenant or agreement contained in any one or more agreements agreement by which it is bound, evidencing or securing any such borrowed money or credit received or other Indebtedness or obligations under Swap Contracts in an aggregate amount greater than $75,000,000 for such period of time as would permit, or would have permitted permit (assuming the giving of appropriate notice if required) the holder or holders thereof or of any obligations issued thereunder to accelerate the maturity thereof thereof; provided that the events described in this ss.12.1(g) shall not constitute an Event of Default unless such failure to pay or terminate its commitment perform, together with respect theretoother failures to pay or perform, involve singly or in the aggregate obligations for borrowed money or credit received or other Indebtedness totaling in excess of $10,000,000.00;
(gh) if any of the Borrower, the Guarantor Guarantors or any Significant Subsidiary makes of their respective Subsidiaries, (i) shall make an assignment for the benefit of creditors, or admits admit in writing its general inability to pay or generally fails fail to pay its debts as they mature or become due, or petitions shall petition or applies apply for the appointment of a trustee or other custodian, liquidator or receiver of the Borrower, the Guarantor or any Significant Subsidiary, such Person or of any substantial part of the assets of the Borrowerany thereof, the Guarantor or any Significant Subsidiary or commences (ii) shall commence any case or other proceeding relating to the Borrower, the Guarantor or any Significant Subsidiary such Person 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 (iii) shall take any action to authorize or in furtherance of any of the foregoing, or if any such ;
(i) a petition or application is shall be filed for the appointment of a trustee or other custodian, liquidator or receiver of any of the Borrower, the Guarantors or any such of their respective Subsidiaries or any substantial part of the assets of any thereof, or a case or other proceeding is shall be commenced against the Borrowerany such Person under any bankruptcy, the Guarantor reorganization, arrangement, insolvency, readjustment of debt, dissolution or liquidation or similar law of any Significant Subsidiary jurisdiction, now or the Borrowerhereafter in effect, the Guarantor or and any Significant Subsidiary indicates such Person shall indicate its approval thereof, consent thereto or acquiescence thereintherein or such petition, application, case or proceeding shall not have been dismissed within 60 days following the filing or commencement thereof;
(hj) if a decree or order is entered appointing any such trustee, custodian, liquidator or receiver or adjudicating any of the Borrower or Borrower, the Guarantor Guarantors or any Significant Subsidiary of their respective Subsidiaries 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 or the Guarantor or any Significant Subsidiary such Person, in an involuntary case under federal bankruptcy laws of any jurisdiction as now or hereafter constituted;
(ik) if there shall remain in force, undischarged, unsatisfied and unstayed, for more than thirty 60 days, whether or not consecutive, any uninsured final judgment against any of the Borrower Borrower, the Guarantors or any Subsidiary whichof their respective Subsidiaries that, with other outstanding uninsured final judgments judgments, undischarged, against the Borrower and its Subsidiaries, such Persons exceeds in the aggregate $50,000,000 after taking into account any undisputed insurance coverage10,000,000.00;
(j) if, with respect to any Guaranteed Pension Plan, an ERISA Reportable Event shall have occurred and the Banks shall have determined in their reasonable discretion that such event reasonably could be expected to result in liability of the Borrower or any Subsidiary to the PBGC or such Plan in an aggregate amount exceeding $50,000,000 and such event in the circumstances occurring reasonably could constitute grounds for the partial or complete termination of such Plan by the PBGC or for the appointment by the appropriate United States District Court of a trustee to administer such Plan; or a trustee shall have been appointed by the appropriate United States District Court to administer such Plan; or the PBGC shall have instituted proceedings to terminate such Plan;
(kl) if any of the Loan Documents or the Contribution Agreement shall be cancelledcanceled, terminated, revoked or rescinded otherwise than in accordance with the terms thereof or with the express prior written agreement, consent or approval of the Banks, or any of the Borrower or the Guarantors or any of their respective holders of Voting Interests shall assert that any of the Loan Documents or the Contribution Agreement do not apply to advances under this Agreement, or any action at law, suit or in equity or other legal proceeding to cancel, revoke or rescind any of the Loan Documents or the Contribution Agreement shall be commenced by or on behalf of any of the Borrower, the Guarantor, Guarantors or any of their respective stockholdersholders of Voting Interests, 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 effect that, any one or more of the Loan Documents or the Contribution Agreement is illegal, invalid or unenforceable in accordance with the terms thereof;
(m) any dissolution, termination, partial or complete liquidation, merger or consolidation of any of the Borrower, the Guarantors or any sale, transfer or other disposition of the assets of any of the Borrower, the Guarantors other than as permitted under the terms of this Agreement or the other Loan Documents;
(n) any suit or proceeding shall be filed against any of the Borrower, or the Guarantors or any of their respective assets which in the good faith business judgment of the Majority Banks after giving consideration to the likelihood of success of such suit or proceeding and the availability of insurance to cover any judgment with respect thereto and based on the information available to them, if adversely determined, would have a materially adverse affect on the ability of the Borrower or a Guarantor to perform each and every one of its obligations under and by virtue of the Loan Documents;
(o) any of the Borrower, the Guarantors or any other Person so related to any of them shall be indicted for a federal crime, a punishment for which could include the forfeiture of any assets of the Borrower or the Guarantor;
(p) with respect to any Guaranteed Pension Plan, an ERISA Reportable Event shall have occurred and the Majority Banks shall have determined in their reasonable discretion that such event reasonably could be expected to result in liability of any of the Borrower, the Guarantors or any of their Subsidiaries to the PBGC or such Guaranteed Pension Plan in an aggregate amount exceeding $1,000,000 and such event in the circumstances occurring reasonably could constitute grounds for the termination of such Guaranteed Pension Plan by the PBGC or for the appointment by the appropriate United States District Court of a trustee to administer such Guaranteed Pension Plan; or a trustee shall have been appointed by the United States District Court to administer such Plan; or the PBGC shall have instituted proceedings to terminate such Guaranteed Pension Plan;
(q) any of the Guarantors denies that such Guarantor has any liability or obligation under the Guaranty, or shall notify the Agent or any of the Banks of such Guarantor's intention to attempt to cancel or terminate the Guaranty, or shall fail to observe or comply with any term, covenant, condition or agreement under the Guaranty;
(r) a Change of Control shall occur;
(s) any Event of Default as defined in any of the other Loan Documents, shall occur; or
(lt) if any person default or group breach shall occur and continue beyond the expiration of persons (within any applicable grace or notice and cure period under the meaning of Section 13 terms or 14 conditions of the Securities Exchange Act of 1934Revolving Credit Agreement; then, as amended) shall have acquired beneficial ownership (within and in any such event, the meaning of Rule 13d-3 promulgated by Agent may, and upon the Securities and Exchange Commission under said Act) of 25% or more request of the outstanding shares Majority Banks shall, by notice in writing to the Borrower declare all amounts owing with respect to this Agreement, the Notes and the other Loan Documents to be, and they shall thereupon forthwith become, immediately due and payable without presentment, demand, protest or other notice of common voting stock any kind, all of which are hereby expressly waived by the Borrower; provided that in the event of any Event of Default specified in ss.12.1(h), ss.12.1(i) or during ss.12.1(j), all such amounts shall become immediately due and payable automatically and without any period requirement of twelve consecutive calendar monthspresentment, individuals who were directors demand, protest or other notice of any kind from any of the Borrower on Banks or the first day of such period (together with any new directors whose election by such board or whose nomination for election by the shareholders of the Borrower was approved by a vote of a majority of the directors still in office who were either directors at the beginning of such period or whose election or nomination for election was previously so approved) shall cease to constitute a majority of the board of directors of the Borrower;Agent.
Appears in 1 contract
Events of Default and Acceleration. If any of the following events (“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 or lapse of time, “Defaults”) shall occur:
(a) if the Borrower shall fail to pay any principal of the Loans when 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;
(b) if the Borrower shall fail to pay any interest or fees or other amounts owing hereunder (other than those specified in subsection (a) above) on the Loans within five (5) Business Days after of the date that the same shall become due and payable payable, any reimbursement obligations with respect to the Letters of Credit or any fees or other sums due hereunder (other than any voluntary prepayment) or under any of the other Loan Documents within five (5) days after notice from Agent, whether at the Maturity Date 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 any of the covenants contained in §§7.4, 7.5, 7.15, 7.16, 8 and 9 hereof[Reserved];
(d) if any of the Borrower Loan Parties shall fail to perform any other term, covenant or agreement contained in §9.1, §9.2, §9.3, §9.4, §9.5, §9.6 or §9.7 which they are required to perform;
(e) any of the Loan Parties shall fail to perform any other term, covenant or agreement contained herein or in any of the other Loan Documents which they are required to perform (other than those specified in subsections the other subclauses of this §12 (aincluding, without limitation, §12.2 below) or in the other Loan Documents), (b), and (c) above) and such failure shall continue for thirty (30) days after the Borrower receives from Agent written notice thereof, and in the case of a default that cannot be remedied cured within 30 such thirty (30)-day period despite the Borrower’s diligent efforts but is susceptible of being cured within ninety (90) days after written notice of such failure the Borrower’s receipt of Agent’s original notice, then the Borrower shall have been given such additional time as is reasonably necessary to effect such cure, but in no event in excess of ninety (90) days from the Borrower Borrower’s receipt of Agent’s original notice; provided that the foregoing cure provisions shall not pertain to any default consisting of a failure to comply with §8.4, §8.7, or to any Default excluded from any provision of cure of defaults contained in any other of the Loan Documents and with respect to any defaults under §8.1, §8.2, §8.3, or §8.8, the thirty (30) day cure period described above shall be reduced to a period of ten (10) days and no additional cure period shall be provided with respect to such defaults;
(f) any material representation or warranty made by or on behalf of the Administrative Agent Loan Parties or any of the Banks;
(e) if any representation or warranty contained their respective Subsidiaries in this Agreement or any other Loan Document, or any report, certificate, financial statement, request for a Loan, or in any other document or instrument delivered pursuant to or in connection with this Agreement Agreement, any advance of a Loan, or any of the other Loan Documents shall prove to have been false in any material respect upon the date when made or deemed to have been made or repeated;
(f) if the Borrower or any of its Subsidiaries shall fail to pay when due, or within any applicable period of grace, any Indebtedness or obligations under Swap Contracts in an aggregate amount greater than $75,000,000, or fail to observe or perform any material term, covenant or agreement contained in any one or more agreements by which it is bound, evidencing or securing any Indebtedness or obligations under Swap Contracts in an aggregate amount greater than $75,000,000 for such period of time as would permit, or would have permitted (assuming the giving of appropriate notice if required) the holder or holders thereof or of any obligations issued thereunder to accelerate the maturity thereof or terminate its commitment with respect thereto;
(g) if Any (i) Borrower, Guarantor or any Subsidiary thereof defaults under (a) any Recourse Indebtedness in an individual or aggregate amount equal to or greater than $10,000,000 with respect to all uncured defaults at any time, or (b) the Borrower, the Guarantor or any Significant Subsidiary makes thereof defaults under any Non-Recourse Indebtedness in an individual or aggregate amount equal to or greater than $20,000,000 with respect to all uncured defaults at any time;
(h) any Loan Party, (i) shall make an assignment for the benefit of creditors, or admits admit in writing its general inability to pay or generally fails fail to pay its debts as they mature or become due, or petitions shall petition or applies apply for the appointment of a trustee or other custodian, liquidator or receiver of the Borrower, the Guarantor for it or any Significant Subsidiary, or of any substantial part of the assets of the Borrowerits assets, the Guarantor or any Significant Subsidiary or commences (ii) shall commence any case or other proceeding relating to the Borrower, the Guarantor or any Significant Subsidiary it 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 (iii) shall take any action to authorize any of the foregoing;
(i) a petition or in furtherance application shall be filed for the appointment of a trustee or other custodian, liquidator or receiver of any of the foregoingLoan Parties or any substantial part of the assets of any thereof, or if any such petition or application is filed or any such a case or other proceeding is shall be commenced against the Borrowerany such Person under any bankruptcy, the Guarantor reorganization, arrangement, insolvency, readjustment of debt, dissolution or liquidation or similar law of any Significant Subsidiary jurisdiction, now or the Borrowerhereafter in effect, the Guarantor or and any Significant Subsidiary indicates such Person shall indicate its approval thereof, consent thereto or acquiescence thereintherein or such petition, application, case or proceeding shall not have been dismissed within ninety (90) days following the filing or commencement thereof;
(hj) if a decree or order is entered appointing any such a trustee, custodian, liquidator or receiver for any of the Loan Parties or adjudicating the Borrower or the Guarantor or any Significant Subsidiary such Person, 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 or the Guarantor or any Significant Subsidiary such Person in an involuntary case under federal bankruptcy laws of any jurisdiction as now or hereafter constituted;
(ik) if there shall remain in force, undischarged, unsatisfied and unstayed, for more than thirty (30) days, whether or not consecutive, one or more uninsured or unbonded final judgments against any final judgment against the Borrower Loan Party or any Subsidiary whichthat, with other outstanding final judgments against either individually or in the Borrower and its Subsidiariesaggregate, exceeds exceed in excess of $2,000,000 per occurrence or in the aggregate $50,000,000 after taking into account during any undisputed insurance coveragecalendar year;
(jl) ifany of the material Loan Documents shall be canceled, terminated, revoked or rescinded otherwise than in accordance with the terms thereof or the express prior written agreement, consent or approval of the Required Lenders, or any action at law, suit in equity or other legal proceeding to cancel, revoke or rescind any of the material Loan Documents shall be commenced by or on behalf of any of the Loan Parties, or any court or any other governmental or regulatory authority or agency of competent jurisdiction shall make a determination, or issue a judgment, order, decree or ruling, to the effect that any one or more of the material Loan Documents is illegal, invalid or unenforceable in accordance with the terms thereof;
(m) failure of the REIT to maintain real estate investment trust status under Section 856 of the Code or to comply with all reporting requirements of the Securities and Exchange Commission;
(n) with respect to any Guaranteed Pension Plan, an ERISA Reportable Event shall have occurred and the Banks shall have determined in their reasonable discretion that such event reasonably could would be expected to result in liability of any of the Borrower or any Subsidiary Loan Parties to pay money to the PBGC or such Guaranteed Pension Plan in an aggregate amount exceeding $50,000,000 1,000,000.00 and one of the following shall apply with respect to such event: (x) such event in the circumstances occurring reasonably could constitute grounds for would be expected to result in the partial or complete termination of such Guaranteed Pension Plan by the PBGC or for the appointment by the appropriate United States District Court of a trustee to administer such Guaranteed Pension Plan; or (y) a trustee shall have been appointed by the appropriate United States District Court to administer such Plan; or (z) the PBGC shall have instituted proceedings to terminate such Guaranteed Pension Plan;
(ko) Failure to remediate within the time period permitted by law or governmental order (or within a reasonable time given the nature of the problem if no specific time period has been given) material environmental problems related to Properties whose aggregate book values are in excess of $2,000,000.00 after all administrative hearings and appeals have been exhausted;
(p) The occurrence of any of the Loan Documents shall be cancelledfollowing:
(i) the failure of REIT to, terminateddirectly or indirectly, revoked or rescinded otherwise than in accordance with the terms thereof or with the express prior written agreement, consent or approval own at least 75% of the Bankspartnership interests in the Borrower;
(ii) Borrower fails to own directly or indirectly, or free of any action at lawlien, suit or in equity encumbrance or other legal proceeding to canceladverse claim, revoke or rescind any one hundred percent (100%) of the Loan Documents shall be commenced by or on behalf economic, voting and beneficial interest of the Borrower, the each Subsidiary Guarantor, or any ;
(iii) A Change of their respective stockholders, 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 effect that, any one or more of the Loan Documents is illegal, invalid or unenforceable in accordance with the terms thereofControl; or
(liv) if A Key Man Event shall occur.
(q) then, and upon any person or group such Event of persons (within Default, the meaning of Section 13 or 14 Agent may, and upon the request of the Securities Exchange Act Required Lenders shall, by notice in writing to the Borrower declare all amounts owing with respect to this Agreement, the Notes, and the other Loan Documents to be, and they shall thereupon forthwith become, immediately due and payable without presentment, demand, protest or other notice of 1934any kind, as amended) shall have acquired beneficial ownership (within the meaning all of Rule 13d-3 promulgated which are hereby expressly waived by the Securities and Exchange Commission under said Act) of 25% or more of the outstanding shares of common voting stock of the Borrower; provided that in the event of any Event of Default specified in §12.1(h), §12.1(i) or during §12.1(j), all such amounts shall become immediately due and payable automatically and without any period requirement of twelve consecutive calendar monthspresentment, individuals who were directors demand, protest or other notice of any kind from any of the Lenders or the Agent. If demanded by Agent in its absolute and sole discretion after the occurrence and during the continuance of an Event of Default, Borrower on will deposit with and pledge to Agent cash in an amount equal to the first day amount of such period (together with any new directors whose election all undrawn Letters of Credit. Such amounts will be pledged to and held by such board or whose nomination Agent for election by the shareholders benefit of the Lenders as security for any amounts that become payable under the Letters of Credit and all other Obligations, In the event the Borrower was approved fails to deliver such cash collateral, upon demand by Agent in its absolute and sole discretion after the occurrence and during the continuance of an Event of Default, and regardless of whether the conditions precedent in this Agreement for a vote Revolving Credit Loan have been satisfied, the Revolving Credit Lenders will cause a Revolving Credit Loan to be made in the undrawn amount of a majority all Letters of Credit. The proceeds of any such Revolving Credit Loan will be pledged to and held by Agent as security for any amounts that become payable under the Letters of Credit and all other Obligations. Upon any draws under Letters of Credit, at Agent’s sole discretion, Agent may apply any such amounts pledged or funded hereunder to the repayment of amounts drawn thereunder and upon the expiration of the directors still in office who were either directors at Letters of Credit any remaining amounts will be applied to the beginning payment of all other Obligations or if there are no outstanding Obligations and Lenders have no further obligation to make Revolving Credit Loans or issue Letters of Credit or if such period or whose election or nomination for election was previously so approved) shall cease excess no longer exists, such proceeds deposited by Borrower will be released to constitute a majority of the board of directors of the Borrower;.
Appears in 1 contract
Sources: Credit Agreement (Wheeler Real Estate Investment Trust, Inc.)
Events of Default and Acceleration. If any of the following events (“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 or lapse of time, “Defaults”) shall occur:
(a) if the Borrower shall fail to pay any principal of the Loans when 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;
(b) if the Borrower shall fail to pay any interest on the Loans within five (5) Business Days of the date that the same shall become due and payable or any fees or other amounts owing sums due hereunder (other than those specified in subsection (aany voluntary prepayment) above) or under any of the other Loan Documents within five (5) Business Days after the same shall become due and payable notice from Agent, whether at the Maturity Date 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 any of the covenants contained in §§7.4, 7.5, 7.15, 7.16, 8 and 9 hereof[Reserved];
(d) if any of the Borrower or the other Credit Parties or any of their respective Subsidiaries shall fail to perform any other term, covenant or agreement contained in §7.5(a), §7.6(a), §7.19, §7.22, §▇, ▇▇ §▇;
(e) any of the Borrower or the other Credit Parties shall fail to perform any other term, covenant or agreement contained herein or in any of the other Loan Documents which they are required to perform (other than those specified in subsections the other subclauses of this §12 (aincluding, without limitation, §12.2 below) or in the other Loan Documents), (b), and (c) above) and such failure shall continue for thirty (30) days after Borrower receives from Agent written notice thereof, and in the case of a default that cannot be remedied cured within 30 such thirty (30) day period despite Borrower’s diligent efforts but is susceptible of being cured within ninety (90) days after of Borrower’s receipt of Agent’s original notice, then Borrower shall have such additional time as is reasonably necessary to effect such cure, but in no event in excess of ninety (90) days from Borrower’s receipt of Agent’s original notice; provided that the foregoing cure provisions shall not pertain to any Default excluded from any provision of cure of defaults contained in any other of the Loan Documents and with respect to any defaults under § 7.4 and §7.5 (other than §7.5(a)), the thirty (30) day cure period described above shall be reduced to a period of five (5) Business Days from the earlier of any Credit Party obtaining knowledge thereof or receipt of notice from Agent written notice thereof, and no additional cure period shall be provided with respect to such defaults;
(f) any material representation or warranty made by or on behalf of such failure shall have been given to the Borrower by the Administrative Agent Credit Parties or any of the Banks;
(e) if any representation or warranty contained their respective Subsidiaries in this Agreement or any other Loan Document, or any report, certificate, financial statement, request for a Loan, or in any other document or instrument delivered pursuant to or in connection with this Agreement Agreement, any advance of a Loan, or any of the other Loan Documents shall prove to have been false in any material respect upon the date when made or repeated;
(f) if deemed to have been made or repeated except to the Borrower or any of its Subsidiaries shall fail to pay when due, or within any applicable period of grace, any Indebtedness or obligations under Swap Contracts in an aggregate amount greater than $75,000,000, or fail to observe or perform any material term, covenant or agreement contained in any one or more agreements by which extent it is bound, evidencing or securing any Indebtedness or obligations under Swap Contracts in an aggregate amount greater than $75,000,000 for such period of time as would permit, or would not reasonably expected to have permitted (assuming the giving of appropriate notice if required) the holder or holders thereof or of any obligations issued thereunder to accelerate the maturity thereof or terminate its commitment with respect theretoa Material Adverse Effect;
(g) if Any (i) Borrower or other Credit Party defaults (after the expiration of any notice and cure or grace period) under any Recourse Indebtedness or suffers a claim under non-recourse carve-out guaranty with respect to all uncured defaults at any time, each in an aggregate amount equal to or greater than $10,000,000, or (ii) Borrower, the Guarantor or any Significant Subsidiary makes thereof defaults (after the expiration of any notice and cure or grace period) under any Non-Recourse Indebtedness in an aggregate amount equal to or greater than $50,000,000 with respect to all uncured defaults at any time;
(h) any of the Borrower or any other Credit Party, (i) shall make an assignment for the benefit of creditors, or admits admit in writing its general inability to pay or generally fails fail to pay its debts as they mature or become due, or petitions shall petition or applies apply for the appointment of a trustee or other custodian, liquidator or receiver of the Borrower, the Guarantor for it or any Significant Subsidiary, or of any substantial part of the assets of the Borrowerits assets, the Guarantor or any Significant Subsidiary or commences (ii) shall commence any case or other proceeding relating to the Borrower, the Guarantor or any Significant Subsidiary it 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 (iii) shall take any action to authorize any of the foregoing;
(i) a petition or in furtherance application shall be filed for the appointment of a trustee or other custodian, liquidator or receiver of any of the foregoingBorrower or other Credit Party or any substantial part of the assets of any thereof, or if any such petition or application is filed or any such a case or other proceeding is shall be commenced against the Borrowerany such Person under any bankruptcy, the Guarantor reorganization, arrangement, insolvency, readjustment of debt, dissolution or liquidation or similar law of any Significant Subsidiary jurisdiction, now or the Borrowerhereafter in effect, the Guarantor or and any Significant Subsidiary indicates such Person shall indicate its approval thereof, consent thereto or acquiescence thereintherein or such petition, application, case or proceeding shall not have been dismissed within ninety (90) days following the filing or commencement thereof;
(hj) if a decree or order is entered appointing any such a trustee, custodian, liquidator or receiver or adjudicating for any of the Borrower or the Guarantor other Credit Party or adjudicating any Significant Subsidiary such Person, 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 or the Guarantor or any Significant Subsidiary such Person in an involuntary case under federal bankruptcy laws of any jurisdiction as now or hereafter constituted;
(ik) if there shall remain in force, undischarged, unsatisfied and unstayed, for more than thirty (30) days, whether one or not consecutive, any more uninsured or unbonded final judgment judgments against the Borrower REIT Guarantor or any Subsidiary whichthat, with other outstanding final judgments against the Borrower and its Subsidiaries, exceeds either individually or in the aggregate aggregate, exceed in excess of $50,000,000 after taking into account 5,000,000.00 in any undisputed insurance coveragecalendar year;
(jl) ifany of the material Loan Documents shall be canceled, terminated, revoked or rescinded otherwise than in accordance with the terms thereof or the express prior written agreement, consent or approval of the Required Lenders, or any action at law, suit in equity or other legal proceeding to cancel, revoke or rescind any of the material Loan Documents shall be commenced by or on behalf of any of the Credit Parties, or any court or any other governmental or regulatory authority or agency of competent jurisdiction shall make a determination, or issue a judgment, order, decree or ruling, to the effect that any one or more of the material Loan Documents is illegal, invalid or unenforceable in accordance with the terms thereof;
(m) REIT Guarantor ceases to be treated as a real estate investment trust under the Code in any taxable year or the common Equity Interests of the REIT Guarantor shall fail to be listed and traded on the New York Stock Exchange or another publicly recognized exchange;
(n) with respect to any Guaranteed Pension Plan, an ERISA Reportable Event shall have occurred and the Banks shall have determined in their reasonable discretion that such event reasonably could would be expected to result in liability of any of the Borrower or any Subsidiary Credit Parties to pay money to the PBGC or such Guaranteed Pension Plan in an aggregate amount exceeding $50,000,000 5,000,000 and one of the following shall apply with respect to such event: (x) such event in the circumstances occurring reasonably could constitute grounds for would be expected to result in the partial or complete termination of such Guaranteed Pension Plan by the PBGC or for the appointment by the appropriate United States District Court of a trustee to administer such Guaranteed Pension Plan; or (y) a trustee shall have been appointed by the appropriate United States District Court to administer such Plan; or (z) the PBGC shall have instituted proceedings to terminate such Guaranteed Pension Plan;
(ko) if any dissolution, termination, partial or complete liquidation, merger or consolidation 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 Banks, 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 or on behalf of the Borrower, the GuarantorGuarantors or any of the Subsidiaries of Borrower shall occur or any sale, transfer or other disposition of the assets of any of the Borrower, the Guarantors or any of the Subsidiaries of Borrower shall occur other than as permitted under the terms of this Agreement or the other Loan Documents;
(p) any of the Borrower, the Guarantors or any of their respective stockholdersSubsidiaries or any shareholder, officer, director, partner or member of any of them shall be indicted for a federal crime, a punishment for which could include the forfeiture of (i) any assets of such Person which in the good faith judgment of the Required Lenders could have a Material Adverse Effect, or (ii) the Unencumbered Property;
(q) any court Guarantor denies that it has any liability or obligation under the Guaranty or any other governmental or regulatory authority or agency of competent jurisdiction shall make a determination thatLoan Document, or issue a judgment, order, decree shall notify the Agent or ruling to the effect that, any one or more of the Lenders of such Guarantor’s intention to attempt to cancel or terminate any Guaranty or any other Loan Documents is illegalDocument, invalid or unenforceable in accordance shall fail to observe or comply with the terms thereofany term, covenant, condition or agreement under any Guaranty or any other Loan Document; or
(lr) if any person or group Change of persons (within Control shall occur; then, and upon any such Event of Default, the meaning of Section 13 or 14 Agent may, and upon the request of the Securities Exchange Act Required Lenders shall, by notice in writing to the Borrower declare all amounts owing with respect to this Agreement, the Notes, and the other Loan Documents to be, and they shall thereupon forthwith become, immediately due and payable without presentment, demand, protest or other notice of 1934any kind, as amended) shall have acquired beneficial ownership (within the meaning all of Rule 13d-3 promulgated which are hereby expressly waived by the Securities and Exchange Commission under said Act) of 25% or more of the outstanding shares of common voting stock of the Borrower; provided that in the event of any Event of Default specified in §12.1(h), §12.1(i) or during §12.1(j), all such amounts shall become immediately due and payable automatically and without any period requirement of twelve consecutive calendar monthspresentment, individuals who were directors demand, protest or other notice of any kind from any of the Borrower on Lenders or the first day of such period (together with any new directors whose election by such board or whose nomination for election by the shareholders of the Borrower was approved by a vote of a majority of the directors still in office who were either directors at the beginning of such period or whose election or nomination for election was previously so approved) shall cease to constitute a majority of the board of directors of the Borrower;Agent.
Appears in 1 contract
Sources: Term Loan Credit Agreement (Plymouth Industrial REIT, Inc.)
Events of Default and Acceleration. If any of the following events (“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 or lapse of time, “Defaults”) shall occur:
(a) if the Borrower shall fail to pay any principal of the Loans when 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;
(b) if the Borrower shall fail to pay any interest on the Loans or any fees or other amounts owing Obligations due hereunder or under any of the other Loan Documents (other than those specified described in subsection (a§12.1(a)) above) within five (5) Business Days after when the same shall become due and payable payable, whether at the Maturity Date stated date of maturity or any accelerated date of maturity or at any other date fixed for payment;
(c) if the Borrower or any of their respective Subsidiaries shall fail to comply with perform any of the covenants other term, covenant or agreement contained in §§7.4, 7.5, 7.15, 7.16, 8 and 9 hereof9.1 - 9.8;
(d) if the Borrower Borrower, the Guarantors or any of their respective Subsidiaries shall fail to perform any other term, covenant or agreement contained herein or in any of the other Loan Documents which they are required to perform (other than those specified in subsections (athe other subclauses of this §12 or in the other Loan Documents), (b), and (c) above) and such failure shall not be remedied within 30 days after written notice of such failure shall have been given to the Borrower by the Administrative Agent or any of the Banks;
(e) if any representation or warranty contained made by or on behalf of the Borrower, the Guarantors or any of their respective Subsidiaries, in this Agreement or any other Loan Document, or any report, certificate, financial statement request for a Loan or in any other document or instrument delivered pursuant to or in connection with this Agreement Agreement, any advance of a Loan or any of the .other Loan Documents shall prove to have been false in any material respect upon the date when made or deemed to have been made or repeated;
(f) if the Borrower Borrower, the Guarantors or any of its their respective Subsidiaries shall fail to pay when duedue (including, without limitation, at maturity), or within any applicable period of grace, any Indebtedness principal, interest or obligations other amount on account of any obligation for borrowed money or credit received or under Swap Contracts in an aggregate amount greater than $75,000,000a Derivatives Contract or other Indebtedness, or shall fail to observe or perform any material term, covenant or agreement agreement, or any other event occurs, contained in any one or more agreements agreement by which it is bound, evidencing or securing any obligation for borrowed money or credit received or under a Derivatives Contract or other Indebtedness or obligations under Swap Contracts in an aggregate amount greater than $75,000,000 for such period of time as would permit, or would have permitted permit (assuming the giving of appropriate notice if required) the holder or holders thereof or of any obligations issued thereunder to accelerate the maturity thereof or terminate its commitment require the prepayment, redemption, settlement or purchase thereof; provided that the events described in this §12.1(f) shall not constitute an Event of Default unless such failure to pay or perform or the occurrence of such event, together with respect theretoother failures to pay or perform or the occurrence of such events as described in this §12.1(f), involve singly or in the aggregate (i) obligations for Indebtedness (other than Non-Recourse Indebtedness) totaling in excess of $25,000,000.00 or (ii) Non-Recourse Indebtedness totaling in excess of $50,000,000.00;
(g) if the Borrower, the Guarantor Guarantors or any Significant Subsidiary makes of their respective Material Subsidiaries (i) shall make an assignment for the benefit of creditors, or admits admit in writing its general inability to pay or generally fails fail to pay its debts as they mature or become due, or petitions shall petition or applies apply for the appointment of a trustee or other custodian, liquidator or receiver of the Borrower, the Guarantor for it or any Significant Subsidiary, or of any substantial part of the assets of the Borrowerits assets, the Guarantor or any Significant Subsidiary or commences (ii) shall commence any case or other proceeding relating to the Borrower, the Guarantor or any Significant Subsidiary it 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 (iii) shall take any action to authorize or in furtherance of any of the foregoing, or if any such ;
(h) a petition or application is shall be filed for the appointment of a trustee or other custodian, liquidator or receiver of the Borrower, the Guarantors or any such of their respective Material Subsidiaries or any substantial part of the assets of any thereof, or a case or other proceeding is shall be commenced against the Borrowerany such Person under any bankruptcy, the Guarantor reorganization, arrangement, insolvency, readjustment of debt, dissolution or liquidation or similar law of any Significant Subsidiary jurisdiction, now or the Borrowerhereafter in effect, the Guarantor or and any Significant Subsidiary indicates such Person shall indicate its approval thereof, consent thereto or acquiescence thereintherein or such petition, application, case or proceeding shall not have been dismissed within sixty (60) days following the filing or commencement thereof;
(hi) if a decree or order is entered appointing any such a trustee, custodian, liquidator or receiver for any of the Borrower, the Guarantors or any of their respective Material Subsidiaries or adjudicating the Borrower or the Guarantor or any Significant Subsidiary such Person, 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 or the Guarantor or any Significant Subsidiary such Person in an involuntary case under federal bankruptcy laws of any jurisdiction as now or hereafter constituted;
(ij) if there shall remain in force, undischarged, unsatisfied and unstayed, for more than thirty (30) days, whether or not consecutive, one or more uninsured or unbonded final judgments, orders or awards against the Borrower, the Guarantors or any final judgment against of their respective Subsidiaries that exceed $50,000,000.00 per occurrence or in the aggregate in any calendar year;
(k) any of the Loan Documents or the Contribution Agreement (if any) shall be disavowed, canceled, terminated, revoked or rescinded otherwise than in accordance with the terms thereof or the express prior written agreement, consent or approval of the Lenders, or any action at law, suit in equity or other legal proceeding to disavow, cancel, revoke or rescind any of the Loan Documents or the Contribution Agreement (if any), or to contest or challenge the validity or enforceability of any of the Loan Documents or the Contribution Agreement (if any) shall be commenced by or on behalf of the Borrower or any Subsidiary whichof the Guarantors, or any court or any other governmental or regulatory authority or agency of competent jurisdiction shall make a determination, or issue a judgment, order, decree or ruling, to the effect that any one or more of the Loan Documents or the Contribution Agreement (if any) is illegal, invalid or unenforceable in accordance with other outstanding final judgments against the Borrower and its Subsidiaries, exceeds in the aggregate $50,000,000 after taking into account any undisputed insurance coverageterms thereof;
(jl) ifany dissolution, termination, partial or complete liquidation, merger or consolidation of the Borrower, any of the Guarantors or any of their respective Subsidiaries shall occur or any sale, transfer or other disposition of the assets of the Borrower, any of the Guarantors or any of their respective Subsidiaries shall occur other than as permitted under the terms of this Agreement or the other Loan Documents;
(m) with respect to any Guaranteed Pension Plan, an ERISA Reportable Event shall have occurred and the Banks Required Lenders shall have determined in their reasonable discretion that such event reasonably could be expected to result in in. liability of the Borrower Borrower, any of the Guarantors or any Subsidiary of their, respective Subsidiaries to the PBGC or such Guaranteed Pension Plan in an aggregate amount exceeding $50,000,000 20,000,000.00 and (x) such event in the circumstances occurring reasonably could constitute grounds for the partial or complete termination of such Guaranteed Pension Plan by the PBGC or for the appointment by the appropriate United States District Court of a trustee to administer such Guaranteed Pension Plan; or (y) a trustee shall have been appointed by the appropriate United States District Court to administer such Plan; or (z) the PBGC shall have instituted proceedings to terminate such Guaranteed Pension Plan;
(kn) if the Borrower, any Guarantor or any of the Loan Documents their respective Subsidiaries or any shareholder, officer, director, partner or member of any of them shall be cancelledindicted for a federal crime, terminated, revoked or rescinded otherwise than in accordance with a punishment for which could include the terms thereof or with the express prior written agreement, consent or approval forfeiture of the Banks, or (i) 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 or on behalf assets of the Borrower, the Guarantor, Guarantors or any of their respective stockholdersSubsidiaries which in the good faith judgment of the Required Lenders could have a Material Adverse Effect, or (ii) 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 effect that, any one or more of the Unencumbered Borrowing Base Properties;
(o) any Change of Control shall occur;
(p) an Event of Default under any of the other Loan Documents is illegal, invalid or unenforceable in accordance with the terms thereofshall occur; or
(lq) if the REIT shall fail to maintain its status, and election to be treated, as a real estate investment trust under the Code, or the REIT shall fail to cause its common shares to be duly listed and traded on the New York Stock Exchange. then, and in any person or group of persons (within such event, the meaning of Section 13 or 14 Agent may, and upon the request of the Securities Exchange Act Required Lenders shall, by notice in writing to the Borrower declare all amounts owing with respect to this Agreement, the Notes, and the other Loan Documents to be, and they shall thereupon forthwith become, immediately due and payable without presentment, demand, protest or other notice of 1934any kind, as amended) shall have acquired beneficial ownership (within the meaning all of Rule 13d-3 promulgated which are hereby expressly waived by the Securities and Exchange Commission under said Act) of 25% or more of the outstanding shares of common voting stock of the Borrower; provided that in the event of any Event of Default specified in §12.1(g), §12.1(h) or during §12.1(i), all such amounts shall become immediately due and payable automatically and without any period requirement of twelve consecutive calendar monthspresentment, individuals who were directors demand, protest or other notice of any kind from any of the Borrower on Lenders or the first day Agent, all of such period (together with any new directors whose election by such board or whose nomination for election which are hereby expressly waived by the shareholders of the Borrower was approved by a vote of a majority of the directors still in office who were either directors at the beginning of such period or whose election or nomination for election was previously so approved) shall cease to constitute a majority of the board of directors of the Borrower;.
Appears in 1 contract
Sources: Term Loan Agreement (Mid America Apartment Communities Inc)
Events of Default and Acceleration. If any of the following events (“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 or lapse of time, “Defaults”) shall occur:
(a) if the Borrower shall fail to pay any principal of the Loans or any Reimbursement Obligation when 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;
(b) if the Borrower or any of its Subsidiaries shall fail to pay any interest or fees on the Loans, any Fees, or other amounts owing sums due hereunder or under any of the other Loan Documents, within three (other than those specified in subsection (a) above) within five (53) Business Days after of when the same shall become due and payable payable, whether at the Maturity Date stated date of maturity or any accelerated date of maturity or at any other date fixed for payment;
(c) if the Borrower Parent or the Borrower, as applicable, shall fail to comply with any of the its covenants contained in §9.2, §7.49.4, 7.5§9.5 (other than §9.5.5), 7.15§9.6(iii) through (vi), 7.16§9.9, 8 and 9 hereof§9.12, §9.15, §9.16, §▇▇ ▇▇ §▇▇ after the expiration of any applicable period;
(d) if the Borrower or any of its Subsidiaries shall fail to perform any term, covenant or agreement contained herein or in any of the other Loan Documents (other than those specified elsewhere in subsections this §14.1) for thirty (a), (b), and (c30) above) and such failure shall not be remedied within 30 days after written notice of such failure shall have has been given to the Borrower by the Administrative Agent or any of the BanksAgent;
(e) if any representation or warranty contained of the Parent, the Borrower or any of the Subsidiaries in this Credit Agreement or any of the other Loan Documents or in any Subordinated Note Document, Refinancing Note Document, or in any other document or instrument delivered pursuant to or in connection with this Credit Agreement shall prove to have been false in any material respect upon the date when made or deemed to have been made or repeated;
(f) if the Borrower or any of its Subsidiaries shall fail to pay when dueat maturity, or within any applicable period of grace, any Indebtedness obligation for borrowed money or obligations under Swap Contracts credit received or in respect of any Capitalized Leases in each case in an aggregate amount greater than $75,000,0005,000,000, or fail to observe or perform any material term, covenant or agreement contained in any one or more agreements agreement by which it is bound, evidencing or securing borrowed money or credit received or in respect of any Indebtedness or obligations under Swap Contracts Capitalized Leases in each case in an aggregate amount greater than $75,000,000 5,000,000 for such period of time as would permit, or would have permitted permit (assuming the giving of appropriate notice if required) the holder or holders thereof or of any obligations issued thereunder to accelerate the maturity thereof thereof, or terminate its commitment with respect theretoany such holder or holders shall rescind or shall have a right to rescind the purchase of any such obligations;
(g) if the BorrowerParent, the Guarantor Borrower or any Significant Subsidiary makes of their respective Subsidiaries shall make an assignment for the benefit of creditors, or admits admit in writing its inability to pay or generally fails fail to pay its debts as they mature or become due, or petitions shall petition or applies apply for the appointment of a trustee or other custodian, liquidator or receiver of the BorrowerParent, the Guarantor Borrower or any Significant Subsidiary, of their respective Subsidiaries or of any substantial part of the assets of the Borrower, the Guarantor such Person or any Significant Subsidiary or commences shall commence any case or other proceeding relating to the Borrower, the Guarantor or any Significant Subsidiary such Person 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 shall take any action to authorize or in furtherance of any of the foregoing, or if any such petition or application is shall be filed or any such case or other proceeding is shall be commenced against the BorrowerParent, the Guarantor Borrower or any Significant Subsidiary or the Borrower, the Guarantor or any Significant Subsidiary indicates of their respective Subsidiaries and such Person shall indicate its approval thereof, consent thereto or acquiescence thereintherein or such petition or application shall not have been dismissed within sixty (60) days following the filing thereof;
(h) if a decree or order is entered appointing any such trustee, custodian, liquidator or receiver or adjudicating the Parent, the Borrower or the Guarantor or any Significant Subsidiary of their respective Subsidiaries 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 or the Guarantor or any Significant Subsidiary such Person in an involuntary case under federal bankruptcy laws of any jurisdiction as now or hereafter constituted;
(i) if there shall remain in force, undischarged, unsatisfied and unstayed, for more than thirty (30) days, whether or not consecutive, any final judgment against the Parent, the Borrower or any Subsidiary whichof their respective Subsidiaries that, with other outstanding final judgments judgments, undischarged, against the Borrower and Parent or any of its Subsidiaries, Subsidiaries exceeds in the aggregate $50,000,000 after taking into account any undisputed insurance coverage5,000,000;
(j) if, any default shall occur with respect to all or any Guaranteed Pension Plan, an ERISA Reportable Event shall have occurred and the Banks shall have determined in their reasonable discretion that such event reasonably could be expected to result in liability part of the Borrower Subordinated Debt or the holders of all or any Subsidiary part of the Subordinated Debt shall accelerate the maturity of all or any part of the Subordinated Debt; the Subordinated Debt shall be prepaid, redeemed or repurchased in whole or in part (other than pursuant to §10.4(c)) or an offer to prepay, redeem or repurchase the PBGC Subordinated Debt in whole or such Plan in an aggregate amount exceeding $50,000,000 and such event in the circumstances occurring reasonably could constitute grounds for the partial or complete termination of such Plan by the PBGC or for the appointment by the appropriate United States District Court of a trustee to administer such Plan; or a trustee part shall have been appointed made (other than pursuant to §10.4(c)) or the subordination provisions of such Subordinated Debt are found by any court, or asserted by the appropriate United States District Court trustee in respect of, or any holder of, Subordinated Debt in a judicial proceeding to administer such Plan; be, invalid or the PBGC shall have instituted proceedings to terminate such Planunenforceable;
(k) if any of the Loan Documents shall be cancelled, terminated, revoked or rescinded or the Administrative Agent’s security interests, mortgages or liens in a material portion of the Collateral shall cease to be perfected, or shall cease to have the priority contemplated by the Security Documents otherwise than in accordance with the terms thereof with respect to the release of any Collateral or in each case with the express prior written agreement, consent or approval of the BanksLenders, or any action or suit at law, suit law or 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 BorrowerParent, the Guarantor, Borrower or any of the 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 determination that, or issue a judgment, order, decree or ruling to the effect that, any one or more of the Loan Documents is illegal, invalid or unenforceable in accordance with the terms thereof; or;
(l) if the Borrower or any person ERISA Affiliate incurs any liability to the PBGC or group a Guaranteed Pension Plan pursuant to Title IV of persons ERISA in an aggregate amount exceeding $5,000,000, or the Borrower or any ERISA Affiliate is assessed withdrawal liability pursuant to Title IV of ERISA by a Multiemployer Plan requiring aggregate annual payments exceeding $5,000,000, or any of the following occurs with respect to a Guaranteed Pension Plan: (i) an ERISA Reportable Event, or a failure to make a required installment or other payment (within the meaning of Section 13 or 14 §302(f)(1) of ERISA), provided that the Administrative Agent determines in its reasonable discretion that such event (A) could be expected to result in liability of the Securities Exchange Act Borrower or any of 1934, as amendedits Subsidiaries to the PBGC or such Guaranteed Pension Plan in an aggregate amount exceeding $5,000,000 and (B) shall have acquired beneficial ownership (within is reasonably likely to constitute grounds for the meaning termination of Rule 13d-3 promulgated such Guaranteed Pension Plan by the Securities PBGC, for the appointment by the appropriate United States District Court of a trustee to administer such Guaranteed Pension Plan or for the imposition of a lien in favor of such Guaranteed Pension Plan; or (ii) the appointment by a United States District Court of a trustee to administer such Guaranteed Pension Plan; or (iii) the institution by the PBGC of proceedings to terminate such Guaranteed Pension Plan;
(m) the Borrower or any of its Subsidiaries shall be enjoined, restrained or in any way prevented by the order of any Governmental Authority from conducting any material part of its business and Exchange Commission such order shall continue in effect for more than thirty (30) days, provided that with respect to any such order relating to the renewal or availability of any Necessary Authorization, if the issuance of such order would not otherwise constitute an Event of Default under said Act§14.1(t), it shall not cause an Event of Default solely by virtue of meeting the criteria of this clause (m);
(n) there shall occur any material damage to, or loss, theft or destruction of, any Collateral, whether or not insured, or any strike, lockout, labor dispute, embargo, condemnation, act of 25% God or public enemy, or other casualty, which in any such case causes, for more than fifteen (15) consecutive days, the cessation or substantial curtailment of revenue producing activities at any facility of the outstanding shares Borrower or any of common voting stock its Subsidiaries if such event or circumstance is not covered by business interruption insurance and would have a Material Adverse Effect;
(o) there shall occur the loss, suspension or revocation of, or failure to renew, any license or permit now held or hereafter acquired by the Borrower or any of its Subsidiaries if such loss, suspension, revocation or failure to renew would have a Material Adverse Effect;
(p) a Change of Control shall occur;
(q) any default or event of default shall occur under any documents entered into in connection with any Permitted Acquisition, which such default or event of default could reasonably be expected to have a Material Adverse Effect;
(r) at any time, (i) any of the Subsidiaries or Excluded Subsidiaries shall provide a guaranty of the Parent’s obligations under the Senior Discount Notes, or (ii) any of the Subsidiaries shall provide a guaranty of the Borrower; ’s obligations under the Subordinated Notes or during the Refinancing Notes, as applicable, or any period other Subordinated Debt if such Subsidiary is not at such time guarantying the Obligations pursuant to the Guaranty or if such guaranty of twelve consecutive calendar monthsthe Borrower’s obligations under the Subordinated Notes, individuals who were directors the Refinancing Notes or such other Subordinated Debt, as applicable, is not subordinated to such Subsidiary’s Obligations under the Guaranty;
(s) the commencement of proceedings to suspend, revoke, terminate or substantially and adversely modify any material FCC License or other material license of the Borrower, any of its Subsidiaries or of any Stations thereof if such proceeding shall continue uncontested for forty-five (45) days;
(t) appropriate proceedings for the renewal of any material Necessary Authorization shall not be commenced prior to the expiration thereof or if such Necessary Authorization is not renewed or otherwise made available for the use of the Borrower or any of its Subsidiaries; provided that no Event of Default shall be deemed to occur under this clause (t) if (A) no Material Adverse Effect shall have occurred as a result of such event and (B) the Borrower shall have demonstrated compliance with §11 on a Pro Forma Basis (both before and after giving effect to such event) as though the affected Station had been sold in an Asset Sale as of the first day of the Reference Period most recently ended and the Borrower or the applicable Subsidiary received no consideration for such period sale;
(together with u) any new directors whose election by such board or whose nomination for election by contractual obligation which is necessary to the shareholders broadcasting operations of the Borrower was approved and its Subsidiaries shall be revoked or terminated and not replaced by a vote of substitute, without a majority Material Adverse Effect, within ninety (90) days after such revocation or termination;
(v) any order of the directors still FCC relating to any Permitted Acquisition granting or consenting to a transfer of an FCC License in office who were either directors connection with any Permitted Acquisition which has been completed shall not have become final and any Governmental Authority shall have entered an order reversing such order (whether or not such order shall be subject to further appeal);
(w) any “Default” or “Event of Default” under the Senior Discount Notes shall have occurred;
(x) the Parent shall fail to make any equity contribution to the Borrower in the amount or at the beginning time required pursuant to §10.13 or §10.14;
(i) the Austin Partnership shall incur any Indebtedness in an aggregate amount at any one time outstanding in excess of such period $20,000,000 or whose election (ii) the partnership agreement or nomination for election was previously so approved) any other governing documents relating to the Austin Partnership shall cease permit, after giving effect to constitute a majority any amendment, modification or waiver of the board terms thereof, or there shall occur, any cash or other distribution (including any redemption, purchase, retirement or other acquisition of directors any partnership interests or return of capital attributable to any partnership interests) by the Austin Partnership to all or any of its partners which is not made simultaneously to all of its partners on a pro rata basis, in terms of both value and kind, in accordance with such partners’ proportional equity interests in the Austin Partnership; provided that it shall not be an Event of Default hereunder if the Borrower or any of its Subsidiaries receives any distribution in excess of their pro rata share as so determined or if the Borrower or any of its Subsidiaries receives any repayment of Indebtedness advanced by the Borrower or any of its Subsidiaries to the Austin Partnership; then, and in any such event, so long as the same may be continuing, the Administrative Agent may, and upon the request of the Required Lenders shall, by notice in writing to the Borrower declare all amounts owing with respect to this Credit Agreement, the Notes and the other Loan Documents and all Reimbursement Obligations to be, and they shall thereupon forthwith become, 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 §14.1(g) or §14.1(h), all such amounts shall become immediately due and payable automatically and without any requirement of notice from the Administrative Agent or any Lender. In addition, the Administrative Agent may direct the Borrower by notice in writing to pay (and the Borrower hereby agrees upon notice to pay) to the Administrative Agent such additional amounts of cash, to be held as security for all Reimbursement Obligations, equal to the Maximum Drawing Amount of Letters of Credit then outstanding.
Appears in 1 contract
Sources: Revolving Credit and Term Loan Agreement (Emmis Operating Co)
Events of Default and Acceleration. If any of the following events (“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 or lapse of time, “Defaults”) shall occur:
(a) if the Borrower shall fail to pay any principal of the Loans Loan when 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;
(b) if the Borrower shall fail to pay any interest or fees or other amounts owing hereunder (other than those specified in subsection (a) above) on the Loan within five (5) Business Days after days of the date that the same shall become due and payable or any fees or other sums due hereunder (other than any voluntary prepayment) or under any of the other Loan Documents within ten (10) days after notice from the Agent, whether at the Maturity Date 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 any of the covenants covenant contained in §§7.4, 7.5, 7.15, 7.16, 8 § 9.1 and 9 hereofsuch failure shall continue uncured after written notice thereof shall have been given to Loan Parties by the Agent as provided in § 3.2;
(d) if the Borrower shall fail to perform any other term, covenant or agreement contained in § 9.2, § 9.3, § 9.4, § 9.5, § 9.6, § 9.7 or § 9.8 and such failure shall continue for the thirty (30) day cure period provided in the preamble to Article 9 after written notice thereof shall have been given to Loan Parties by the Agent as provided in the preamble to Article 9;
(e) any Loan Party shall fail to perform any other term, covenant or agreement contained herein or in any of the other Loan Documents which they are required to perform (other than those specified in subsections the other subclauses of this § 12 (aincluding, without limitation, § 12.2 below) or in the other Loan Documents), (b), and (c) above) and such failure shall continue for thirty (30) days after Loan Parties’ receipt from the Agent of written notice thereof, and in the case of a default that cannot be remedied cured within 30 such thirty (30) day period despite Loan Parties’ diligent efforts but is susceptible of being cured within ninety (90) days after written notice of such failure Loan Parties’ receipt of the Agent’s original notice, then Loan Parties shall have been given such additional time as is reasonably necessary to effect such cure, but in no event in excess of ninety (90) days from Loan Parties’ receipt of the Borrower Agent’s original notice;
(f) any material representation or warranty made by the Administrative Agent or on behalf of Loan Parties or any of the Banks;
(e) if any representation or warranty contained their respective Subsidiaries in this Agreement or any other Loan Document, or any report, certificate, financial statement, request for an Advance, or in any other document or instrument delivered pursuant to or in connection with the Loan, any Advance, this Agreement Agreement, or any of the other Loan Documents shall prove to have been false in any material respect upon the date when made or deemed to have been made or repeated;
(fg) if the Borrower or any of its Subsidiaries Loan Party shall fail to pay when duedue (including, without limitation, at maturity), or within any applicable period of notice and grace, any Indebtedness principal, interest or obligations under Swap Contracts in an aggregate other amount greater than $75,000,000on account of any obligation for borrowed money or credit received or other Indebtedness, or shall fail to observe or perform any material term, covenant or agreement contained in any one or more agreements agreement by which it is bound, evidencing or securing any obligation for borrowed money or credit received or other Indebtedness or obligations under Swap Contracts in an aggregate amount greater than $75,000,000 for such period of time as would permit, or would have permitted (assuming the giving of appropriate notice if required) and the holder or holders thereof or of any obligations issued thereunder to accelerate have accelerated the maturity thereof thereof; provided that the events described in §12.1(g) shall not constitute an Event of Default unless such failure to perform, together with other failures to perform as described in §12.1(g), involve singly or terminate its commitment with respect theretoin the aggregate obligations for (x) any Indebtedness which is recourse to Borrower or any of the Subsidiary Guarantors (including, without limitation, Secured Recourse Indebtedness) totaling in excess of $25,000,000 or (y) Non-Recourse Indebtedness of Borrower or any of the Subsidiary Guarantors totaling in excess of $50,000,000;
(gh) if the Borrowerany Loan Party or REIT, the Guarantor or any Significant Subsidiary makes (i) shall make an assignment for the benefit of creditors, or admits admit in writing its general inability to pay or generally fails fail to pay its debts as they mature or become due, or petitions shall petition or applies apply for the appointment of a trustee or other custodian, liquidator or receiver of the Borrower, the Guarantor for it or any Significant Subsidiary, or of any substantial part of the assets of the Borrowerits assets, the Guarantor or any Significant Subsidiary or commences (ii) shall commence any case or other proceeding relating to the Borrower, the Guarantor or any Significant Subsidiary it 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 (iii) shall take any action to authorize or in furtherance of any of the foregoing, or if any such ;
(i) a petition or application is shall be filed for the appointment of a trustee or other custodian, liquidator or receiver of any Loan Party or REIT or any such substantial part of the assets of any thereof, or a case or other proceeding is shall be commenced against the Borrowerany such Person under any bankruptcy, the Guarantor reorganization, arrangement, insolvency, readjustment of debt, dissolution or liquidation or similar law of any Significant Subsidiary jurisdiction, now or the Borrowerhereafter in effect, the Guarantor or and any Significant Subsidiary indicates such Person shall indicate its approval thereof, consent thereto or acquiescence thereintherein or such petition, application, case or proceeding shall not have been dismissed within ninety (90) days following the filing or commencement thereof;
(hj) if a decree or order is entered appointing any such a trustee, custodian, liquidator or receiver for any Loan Party or REIT or adjudicating the Borrower or the Guarantor or any Significant Subsidiary such Person, 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 or the Guarantor or any Significant Subsidiary such Person in an involuntary case under federal bankruptcy laws of any jurisdiction as now or hereafter constituted;
(ik) if there shall remain in force, undischarged, unsatisfied and unstayed, for more than thirty days, whether sixty (60) days one or not consecutive, any more uninsured or unbonded final judgment judgments against the Borrower or any Subsidiary whichGuarantor that, with other outstanding final judgments against the Borrower and its Subsidiaries, exceeds either individually or in the aggregate aggregate, exceed $50,000,000 after taking into account any undisputed insurance coverage50,000,000;
(jl) if, with respect to any Guaranteed Pension Plan, an ERISA Reportable Event shall have occurred and the Banks shall have determined in their reasonable discretion that such event reasonably could be expected to result in liability of the Borrower or any Subsidiary to the PBGC or such Plan in an aggregate amount exceeding $50,000,000 and such event in the circumstances occurring reasonably could constitute grounds for the partial or complete termination of such Plan by the PBGC or for the appointment by the appropriate United States District Court of a trustee to administer such Plan; or a trustee shall have been appointed by the appropriate United States District Court to administer such Plan; or the PBGC shall have instituted proceedings to terminate such Plan;
(k) if any of the Loan Documents shall be cancelledcanceled, terminated, revoked or rescinded otherwise than in accordance with the terms thereof or with the express prior written agreement, consent or approval of the BanksRequired Lenders, 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 or on behalf of the Borrower, the Guarantor, or any of their respective stockholdersLoan Party, or any court or any other governmental or regulatory authority or agency of competent jurisdiction shall make a determination thatdetermination, or issue a judgment, order, decree or ruling ruling, to the effect that, that any one or more of the Loan Documents is illegal, invalid or unenforceable in accordance with the terms thereof;
(m) any dissolution, termination, partial or complete liquidation, merger or consolidation of any Loan Party shall occur or any sale, transfer or other disposition of the assets of any Loan Party shall occur other than as permitted under the terms of this Agreement or the other Loan Documents;
(n) with respect to any Guaranteed Pension Plan, an ERISA Reportable Event shall have occurred and such event reasonably would be expected to result in liability of any Loan Party to pay money to the PBGC or such Guaranteed Pension Plan in an aggregate amount exceeding $25,000,000 and one of the following shall apply with respect to such event: (x) such event in the circumstances occurring reasonably would be expected to result in the termination of such Guaranteed Pension Plan by the PBGC or for the appointment by the appropriate United States District Court of a trustee to administer such Guaranteed Pension Plan; or (y) a trustee shall have been appointed by the United States District Court to administer such Plan; or (z) the PBGC shall have instituted proceedings to terminate such Guaranteed Pension Plan;
(o) any Change of Control shall occur; or
(lp) if an Event of Default under any person or group of persons (within the meaning of Section 13 or 14 of the Securities Exchange Act other Loan Documents shall occur; then, and upon any such Event of 1934Default, as amended) shall have acquired beneficial ownership (within the meaning of Rule 13d-3 promulgated by Agent may, and upon the Securities and Exchange Commission under said Act) of 25% or more request of the outstanding shares Required Lenders shall, by notice in writing to Loan Parties declare all amounts owing with respect to this Agreement, the Notes and the other Loan Documents to be, and they shall thereupon forthwith become, immediately due and payable without presentment, demand, protest or other notice of common voting stock any kind, all of which are hereby expressly waived by Borrower; provided that in the event of any Event of Default specified in § 12.1(h), § 12.1(i) or § 12.1(j), all such amounts shall become immediately due and payable automatically and without any requirement of presentment, demand, protest or other notice of any kind from any of the Borrower; Lenders or during any period of twelve consecutive calendar months, individuals who were directors of the Borrower on the first day of such period (together with any new directors whose election by such board or whose nomination for election by the shareholders of the Borrower was approved by a vote of a majority of the directors still in office who were either directors at the beginning of such period or whose election or nomination for election was previously so approved) shall cease to constitute a majority of the board of directors of the Borrower;Agent.
Appears in 1 contract
Events of Default and Acceleration. If any of the following events (“"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, “"Defaults”") shall occur:
(a) if the Borrower Borrowers shall fail to pay any principal of the Loans or any Reimbursement Obligation when the same shall become due and payable, whether at the stated date of maturity Maturity Date or any accelerated date of maturity or at any other date fixed for payment;
(b) if the Borrower Borrowers shall fail to pay any interest or fees or other amounts owing hereunder (other than those specified in subsection (a) above) within five (5) Business Days after the same shall become due and payable whether at the Maturity Date or any accelerated date of maturity or at any other date fixed for payment;
(c) if the Borrower Borrowers shall fail to comply with any of the covenants contained in §§7.4Sections 6.1, 7.56.7, 7.156.8, 7.166.10, 8 and 9 hereof6.13, 6.14, 6.16, 6.17, 6.19, 7 or 8;
(d) if the Borrower Borrowers shall fail to comply with the covenants contained in (i) Sections 6.2, 6.3, 6.5, 6.6, 6.9, 6.11, 6.12, 6.15, or 6.18 within thirty (30) days of the Borrowers' knowledge of a violation of such covenants or (ii) Section 6.4 within five (5) days of the Borrowers' knowledge of a violation of such covenant;
(e) if the Borrowers shall fail to perform any term, covenant or agreement contained herein or in any of the other Loan Documents (other than those specified in subsections (a), (b), and (c) and (d) above) and such failure shall not be remedied within 30 days after written notice of such failure shall have has been given to the Borrower Borrowers by the Administrative Agent or any of the BanksBank;
(ef) if any representation or warranty contained in this Credit Agreement or in any document or instrument delivered pursuant to or in connection with this Credit Agreement shall prove to have been false in any material respect upon the date when made or repeated;
(fg) if the any Borrower or any of its Subsidiaries shall fail to pay when dueat maturity, or within any applicable period of grace, any Indebtedness and all obligations for borrowed money (other than the Obligations) or obligations under Swap Contracts any guaranty with respect thereto in an aggregate amount greater than $75,000,000, 250,000 or fail 61 -55- to observe or perform any material term, covenant or agreement contained in any one or more agreements agreement by which it is bound, evidencing or securing any Indebtedness or obligations under Swap Contracts borrowed money in an aggregate amount greater than $75,000,000 250,000 for such period of time as would permitwould, or would have permitted (assuming the giving of appropriate notice if required) the holder or holders thereof or of any obligations issued thereunder to accelerate the maturity thereof or terminate its commitment with respect thereto;thereof, unless the same shall have been waived by the holder(s) thereof; or
(gh) if the Borrower, the Guarantor or any Significant Subsidiary Borrower makes an assignment for the benefit of creditors, or admits in writing its inability to pay or generally fails to pay its debts as they mature or become due, or petitions or applies for the appointment of a trustee or other custodian, liquidator or receiver of the Borrower, the Guarantor or any Significant Subsidiary, Borrower or of any substantial part of the assets of the Borrower, the Guarantor or any Significant Subsidiary Borrower or commences any case or other proceeding relating to the Borrower, the Guarantor or any Significant Subsidiary 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, the Guarantor any Borrower or any Significant Subsidiary or the Borrower, the Guarantor or any Significant Subsidiary such Borrower indicates its approval thereof, consent thereto or acquiescence therein, or such petition or application shall not have been dismissed within sixty (60) days following the filing thereof;
(hi) if a decree or order is entered appointing any such trustee, custodian, liquidator or receiver or adjudicating the any Borrower or the Guarantor or any Significant Subsidiary 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 any Borrower or the Guarantor or any Significant Subsidiary in an involuntary case under federal bankruptcy laws of any jurisdiction as now or hereafter constituted;
(ij) if there shall remain in force, undischarged, unsatisfied and unstayed, for more than thirty (30) days, whether or not consecutive, any final judgment against the any Borrower or any Subsidiary which, with other outstanding final judgments against the Borrower and its SubsidiariesBorrowers, exceeds in the aggregate $50,000,000 250,000 after taking into account any undisputed insurance coverage;
(jk) ifany Borrower or any ERISA Affiliate incurs any liability to the PBGC or a Guaranteed Pension Plan pursuant to Title IV of ERISA in an aggregate amount exceeding $250,000, or any Borrower or any ERISA Affiliate is assessed withdrawal liability pursuant to Title IV of ERISA by a Multiemployer Plan requiring aggregate annual payments exceeding $250,000, or any of the following occurs with respect to any a Guaranteed Pension Plan, : (i) an ERISA Reportable Event shall have occurred and Event, or a failure to make a required installment or other payment (within the Banks shall have determined meaning of Section 302(f)(1) of ERISA), provided that the Agent determines in their its reasonable discretion that such event reasonably (A) could be expected to result in liability of the any Borrower or any Subsidiary to the PBGC or such Guaranteed Pension Plan in an aggregate amount exceeding $50,000,000 250,000 and such event in the circumstances occurring reasonably (B) could constitute grounds for the partial or complete termination of such Guaranteed Pension Plan by the PBGC or PBGC, for the appointment by the appropriate United States District Court of a trustee to administer such Guaranteed Pension Plan or for the imposition of a lien in favor of such Guaranteed Pension Plan; or (ii) the appointment by a trustee shall have been appointed by the appropriate United States District Court of a trustee to administer such 62 -56- Guaranteed Pension Plan; or (iii) the institution by the PBGC shall have instituted of proceedings to terminate such Guaranteed Pension Plan;
(kl) if any of the Loan Documents shall be cancelled, terminated, revoked or rescinded or the Agent's security interests 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 accordance with the terms thereof or with the express prior written agreement, consent or approval of the Banks, 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 or on behalf of the Borrower, the Guarantor, any Borrower or any stockholder of their respective stockholdersany Borrower who is an officer or director of such Borrower, 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 effect that, any one or more of the Loan Documents is illegal, invalid or unenforceable in accordance with the terms thereof; or;
(li) if the Parent shall at any time, legally or beneficially own less than one hundred percent (100%) of the shares of the capital stock of each other Borrower (indirectly through W.C. of Washington in the case of W.C. International), or (ii) any person or group of persons (within the meaning of Section 13 or 14 of the Securities Exchange Act of 1934, as amended) other than existing shareholders of the Parent as of the Closing Date shall have acquired beneficial ownership (within the meaning of Rule 13d-3 promulgated by the Securities and Exchange Commission under said Act) of 2520% or more of the outstanding shares of common voting stock of the BorrowerParent; or or, during any period of twelve consecutive calendar months, individuals who were directors of the Borrower Parent on the first day of such period (together with any new directors whose election by such board or whose nomination for election by the shareholders of the Borrower was approved by a vote of a majority of the directors still in office who were either directors at the beginning of such period or whose election or nomination for election was previously so approved) shall cease to constitute a majority of the board of directors directors; provided, however, that any such change of control resulting from an acquisition permitted under Section 7.4 shall not constitute a Default or an Event of Default hereunder; or
(n) the early termination or cancellation of, or any material default by a Borrower under, any Material Contract; then, and in any such event, so long as the same may be continuing, the Agent may, and at the request of the Borrower;Majority Banks shall, by notice in writing to the Borrowers, declare all amounts owing with respect to this Credit Agreement, the Notes and the other Loan Documents and all Reimbursement Obligations to be, and they shall thereupon forthwith become, 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 12.1(h) or 12.1(i), all such amounts shall become immediately due and payable automatically and without any requirement of notice from the Agent or any Bank. Upon demand by the Banks after the occurrence of any Event of Default, the Borrowers shall immediately provide to the Agent cash in an amount equal to the Maximum Drawing Amount, to be held by the Agent as collateral security for the Obligations, provided that in the event of any Event of Default specified in Sections 12.1(h) or 12.1(i), all such amounts shall become immediately due and payable automatically and without any requirement of notice from the Agent or any Bank.
Appears in 1 contract
Sources: Revolving Credit Agreement (Waste Connections Inc/De)
Events of Default and Acceleration. If any of the following events (“"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, “"Defaults”") shall occur:
(a) if the Borrower Borrowers shall fail to pay any principal of the Loans when the same shall become due and payable, whether at the stated date of maturity Revolving Credit Maturity Date or any accelerated date of maturity or at any other date fixed for payment;
(b) if the Borrower Borrowers shall fail to pay any interest or fees or other amounts owing hereunder (other than those specified in subsection (a) above) within five (5) Business Days after the same shall become due and payable whether at the Maturity Date or any accelerated date of maturity or at any other date fixed for payment;
(c) if the Borrower Borrowers shall fail to comply with any of the covenants contained in §§7.47 (other than 7.6, 7.57.14, 7.15, 7.167.15 and 7.18), 8 and or 9 hereof;
(d) if the Borrower Borrowers shall fail to perform any term, covenant or agreement contained herein or in any of the other Loan Documents (other than those specified in subsections (a), (b), and (c) above) and such failure shall not be remedied within 30 days after written notice of such failure shall have has been given to the Borrower Borrowers by the Administrative Agent or any of the Banks;
(e) if any representation or warranty contained in this Agreement or in any document or instrument delivered pursuant to or in connection with this Agreement shall prove to have been false in any material respect upon the date when made or repeated;
(f) if the any Borrower or any of its Subsidiaries shall fail to pay when dueat maturity, or within any applicable period of grace, any Indebtedness and all obligations for borrowed money or obligations under Swap Contracts any guaranty with respect thereto in an aggregate amount greater than $75,000,000250,000, or fail to observe or perform any material term, covenant or agreement contained in any one or more agreements agreement by which it is bound, evidencing or securing any Indebtedness or obligations under Swap Contracts borrowed money in an aggregate amount greater than $75,000,000 250,000 for such period of time as would permitwould, or would have permitted (assuming the giving of appropriate notice if required) the holder or holders thereof or of any obligations issued thereunder to accelerate the maturity thereof or terminate its commitment with respect thereto;thereof; or
(g) if the Borrower, the Guarantor or any Significant Subsidiary Borrower makes an assignment for the benefit of creditors, or admits in writing its inability to pay or generally fails to pay its debts as they mature or become due, or petitions or applies for the appointment of a trustee or other custodian, liquidator or receiver of the Borrower, the Guarantor or any Significant Subsidiary, Borrower or of any substantial part of the assets of the Borrower, the Guarantor or any Significant Subsidiary Borrower or commences any case or other proceeding relating to the Borrower, the Guarantor or any Significant Subsidiary 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, the Guarantor any Borrower and or any Significant Subsidiary or the Borrower, the Guarantor or any Significant Subsidiary Borrower 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 any Borrower or the Guarantor or any Significant Subsidiary 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 any Borrower or the Guarantor or any Significant Subsidiary in an involuntary case under federal bankruptcy laws of any jurisdiction as now or hereafter constituted, and such decree or order remains in effect for more than sixty (60) days, whether or not consecutive;
(i) if there shall remain in force, undischarged, unsatisfied and unstayed, for more than thirty (30) days, whether or not consecutive, any final judgment against the any Borrower or any Subsidiary which, with other outstanding final judgments judgments, against the Borrower and its Subsidiaries, Borrowers exceeds in the aggregate $50,000,000 250,000 after taking into account any undisputed insurance coverage;
(j) if, with respect to any Guaranteed Pension Plan, an ERISA Reportable Event shall have occurred and the Banks shall have determined in their reasonable discretion that such event reasonably could be expected to result in liability of the Borrower or any Subsidiary to the PBGC or such Plan in an aggregate amount exceeding $50,000,000 and such event in the circumstances occurring reasonably could constitute grounds for the partial or complete termination of such Plan by the PBGC or for the appointment by the appropriate United States District Court of a trustee to administer such Plan; or a trustee shall have been appointed by the appropriate United States District Court to administer such Plan; or the PBGC shall have instituted proceedings to terminate such Plan;
(k) if 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 Banks, 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 or on behalf of the Borrower, the Guarantor, or any of their respective stockholders, 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 effect that, any one or more of the Loan Documents is illegal, invalid or unenforceable in accordance with the terms thereof; or
(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 25% or more of the outstanding shares of common voting stock of the Borrower; or during any period of twelve consecutive calendar months, individuals who were directors of the Borrower on the first day of such period (together with any new directors whose election by such board or whose nomination for election by the shareholders of the Borrower was approved by a vote of a majority of the directors still in office who were either directors at the beginning of such period or whose election or nomination for election was previously so approved) shall cease to constitute a majority of the board of directors of the Borrower;
Appears in 1 contract
Sources: Revolving Credit Agreement (Casella Waste Systems Inc)
Events of Default and Acceleration. If any of the following followinG events (“"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, “"Defaults”") shall occur:
(a) if the Borrower Borrowers shall fail to pay any principal of the Loans when the same shall become due and payable, whether at the stated date of maturity Maturity Date or any accelerated date of maturity or at any other date fixed for payment;
(b) if the Borrower Borrowers shall fail to pay any interest or Reimbursement Obligation, interest, fees or other amounts owing hereunder (other than those specified in subsection (a) above) within five (5) Business Days after the same shall become due and payable whether at the Maturity Date or any accelerated date of maturity or at any other date fixed for payment;
(c) if the Borrower Borrowers shall fail to comply with any of the covenants contained in §§7.4ss.ss.6.1, 7.56.3, 7.156.4, 7.166.5, 6.6, 6.7, 6.8, 6.13, 6.14, 6.17, 6.19, 7 or 8 and 9 hereof;
(d) if the Borrower Borrowers shall fail to perform any term, covenant or agreement contained herein or in any of the other Loan Documents (other than those specified in subsections (a), (b), and (c) above) and such failure shall not be remedied within 30 thirty (30) days after written notice of such failure shall have has been given to the Borrower Borrowers by the Administrative Agent or any of the BanksLender;
(e) if any representation or warranty contained in this Agreement or in any document or instrument delivered pursuant to or in connection with this Agreement shall prove to have been false in any material respect upon the date when made or repeated;
(f) if the any Borrower or any of its Subsidiaries shall fail to pay when dueat maturity, or within any applicable period of grace, any Indebtedness and all obligations for borrowed money or obligations under Swap Contracts any guaranty with respect thereto in an aggregate amount greater than $75,000,000100,000, or fail to observe or perform any material term, covenant or agreement contained in any one or more agreements agreement by which it is bound, evidencing or securing any Indebtedness or obligations under Swap Contracts borrowed money in an aggregate amount greater than $75,000,000 100,000 for such period of time as would permitwould, or would have permitted (assuming the giving of appropriate notice if required) the holder or holders thereof or of any obligations issued thereunder to accelerate the maturity thereof or terminate its commitment with respect thereto;thereof; or
(g) if the Borrower, the Guarantor or any Significant Subsidiary Borrower makes an assignment for the benefit of creditors, or admits in writing its inability to pay or generally fails to pay its debts as they mature or become due, or petitions or applies for the appointment of a trustee or other custodian, liquidator or receiver of the Borrower, the Guarantor or any Significant Subsidiary, Borrower or of any substantial part of the assets of the Borrower, the Guarantor or any Significant Subsidiary Borrower or commences any case or other proceeding relating to the Borrower, the Guarantor or any Significant Subsidiary 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, the Guarantor any Borrower and or any Significant Subsidiary or the Borrower, the Guarantor or any Significant Subsidiary Borrower 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 any Borrower or the Guarantor or any Significant Subsidiary 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 any Borrower or the Guarantor or any Significant Subsidiary in an involuntary case under federal bankruptcy laws of any jurisdiction as now or hereafter constituted, and such decree or order remains in effect for more than sixty (60) days, whether or not consecutive;
(i) if there shall remain in force, undischarged, unsatisfied and unstayed, for more than thirty (30) days, whether or not consecutive, any final judgment against the any Borrower or any Subsidiary which, with other outstanding final judgments judgments, against the Borrower and its Subsidiaries, Borrowers exceeds in the aggregate $50,000,000 100,000 after taking into account any undisputed insurance coverage;
(j) ifany Borrower or any ERISA Affiliate incurs any liability to the PBGC or a Guaranteed Pension Plan pursuant to Title IV of ERISA in an aggregate amount exceeding $100,000; any Borrower or any ERISA Affiliate is assessed withdrawal liability pursuant to Title IV of ERISA by a Multiemployer Plan requiring aggregate annual payments exceeding $100,000, or any of the following occurs with respect to any a Guaranteed Pension Plan, : (i) an ERISA Reportable Event shall have occurred and Event, or a failure to make a required installment or other payment (within the Banks shall have determined meaning of ss.302(f)(1) of ERISA), provided the Lender determines in their its reasonable discretion that such event reasonably (A) could be expected to result in liability of the such Borrower or any Subsidiary to the PBGC or such the Plan in an aggregate amount exceeding $50,000,000 100,000 and such event in the circumstances occurring reasonably (B) could constitute grounds for the partial or complete termination of such Plan by the PBGC or PBGC, for the appointment by the appropriate United States District Court of a trustee to administer such Plan or for the imposition of a lien in favor of the Guaranteed Pension Plan; or (ii) the appointment by a trustee shall have been appointed by the appropriate United States District Court of a trustee to administer such Plan; or (iii) the institution by the PBGC shall have instituted of proceedings to terminate such Plan;
(kl) unless the Lender approves, 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 20% or more of the outstanding shares of common stock of any Borrower; or, during any period of twelve consecutive calendar months, individuals who were directors of any Borrower on the first day of such period shall cease to constitute a majority of the board of directors of such Borrower; or
(m) if any of the Loan Documents shall be cancelledcanceled, terminated, revoked or rescinded otherwise than in accordance with the terms thereof or with the express prior written agreement, consent or approval of the BanksLender, 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 or on behalf of the Borrower, the Guarantor, Borrowers or any of their respective stockholders, 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 effect that, any one or more of the Loan Documents is illegal, invalid or unenforceable in accordance with the terms thereof; or
(l) if , then, and in any person such event, so long as the same may be continuing, the Lender may, by notice in writing to the Borrowers, declare all amounts owing with respect to this Agreement, the Note and the other Loan Documents and all Reimbursement Obligations to be, and they shall thereupon forthwith become, immediately due and payable without presentment, demand, protest or group other notice of persons (within the meaning any kind, all 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 which are hereby expressly waived by the Securities Borrowers; PROVIDED THAT in the event of any Event of Default specified in ss.12.1(g) or 12.1(h), all such amounts shall become immediately due and Exchange Commission under said Act) payable automatically and without any requirement of 25% or more of notice from the outstanding shares of common voting stock of the Borrower; or during any period of twelve consecutive calendar months, individuals who were directors of the Borrower on the first day of such period (together with any new directors whose election by such board or whose nomination for election Lender. Upon demand by the shareholders Lender after the occurrence of any Event of Default, the Borrower was approved Borrowers shall immediately provide to the Lender cash in an amount equal to the aggregate Maximum Drawing Amount of all Letters of Credit outstanding, to be held by a vote of a majority of the directors still in office who were either directors at Lender as collateral security for the beginning of such period or whose election or nomination for election was previously so approved) shall cease to constitute a majority of the board of directors of the Borrower;Obligations.
Appears in 1 contract
Events of Default and Acceleration. If any of the following events (“Events of Default” Default or, if the giving of notice or the lapse of time or both is required, then, prior to such notice and/or or lapse of time, “Defaults”) shall occur:
(a) if the Borrower shall fail to pay any principal of the Loans or any Reimbursement Obligation when 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;
(b) if the Borrower shall fail to pay any interest or fees on the Loans, the Fees, or other amounts owing sums due hereunder (or under any of the other than those specified in subsection (a) above) within five (5) Business Days after Loan Documents, when the same shall become due and payable payable, whether at the Maturity Date stated date of maturity or any accelerated date of maturity or at any other date fixed for paymentpayment and such failure shall continue for three (3) days after written notice of such failure has been given to the Borrower by the Administrative Agent;
(c) if the Borrower any Credit Party shall fail to comply with any of the its covenants contained in §§7.1, 7.4, 7.5, 7.6, 7.7, 7.10, 7.11, 7.12, 7.13, 7.15, 7.16, 7.17, 8 and 9 hereofor, if applicable, 9;
(d) if the Borrower any Credit Party shall fail to perform any term, covenant or agreement contained herein or in any of the other Loan Documents (other than those specified elsewhere in subsections this 12.1) for thirty (a), (b), and (c30) above) and such failure shall not be remedied within 30 days after written notice of such failure shall have has been given to the Borrower by the Administrative Agent or any of the BanksAgent;
(e) if any representation or warranty contained of any Credit Party in this Credit Agreement or any of the other Loan Documents or in any other document or instrument delivered pursuant to or in connection with this Credit Agreement shall prove to have been false in any material respect upon the date when made or repeateddeemed to have been made or repeated other than inadvertent immaterial errors not exceeding $750,000 in the aggregate in any Borrowing Base Report and errors that have the effect of understating the Borrowing Base;
(f) if the Borrower or any of its Subsidiaries Credit Party shall fail to pay when due, or within any applicable period of grace, any Indebtedness or obligations under Swap Contracts in an aggregate amount greater than $75,000,000, or fail to observe or perform any material term, covenant or agreement contained in any one or more agreements by which it is bound, evidencing or securing any Indebtedness or obligations under Swap Contracts in an aggregate amount greater than $75,000,000 for such period of time as would permit, or would have permitted (assuming the giving of appropriate notice if required) the holder or holders thereof or of any obligations issued thereunder to accelerate the maturity thereof or terminate its commitment with respect thereto;
(g) if the Borrower, the Guarantor or any Significant Subsidiary makes make an assignment for the benefit of creditors, or admits in writing its inability to pay shall petition or generally fails to pay its debts as they mature or become due, or petitions or applies apply for the appointment of a trustee or other custodian, liquidator or receiver of the Borrower, the Guarantor or any Significant Subsidiary, such Credit Party or of any substantial part of the assets of the Borrower, the Guarantor any Credit Party or any Significant Subsidiary or commences shall commence any case or other proceeding relating to the Borrower, the Guarantor or any Significant Subsidiary Credit Party 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 shall take any action to authorize or in furtherance of any of the foregoing, or if any such petition or application is (including a bankruptcy application) shall be filed or any such case or other proceeding is shall be commenced against the Borrower, the Guarantor or any Significant Subsidiary or the Borrower, the Guarantor or any Significant Subsidiary indicates Credit Party and such Credit Party shall indicate its approval thereof, consent thereto or acquiescence therein;
therein or such petition or application shall not have been dismissed or stayed within sixty (h60) if days following the filing thereof; or a receiver, trustee or other similar official shall be appointed for any Canadian Subsidiary or for any substantial part of the assets any Canadian Subsidiary; (g) a decree or order (including a bankruptcy order) is entered appointing any such trustee, custodian, liquidator or receiver or adjudicating the Borrower or the Guarantor or any Significant Subsidiary Credit Party bankrupt or insolvent, or approving a petition or a bankruptcy application in any such case or other proceeding, or a decree or order (including a bankruptcy order) for relief is entered in respect of the Borrower or the Guarantor or any Significant Subsidiary Credit Party in an involuntary case under federal bankruptcy laws of any jurisdiction as now or hereafter constituted;
(i) if there shall remain in force, undischarged, unsatisfied and unstayed, for more than thirty days, whether or not consecutive, any final judgment against the Borrower or any Subsidiary which, with other outstanding final judgments against the Borrower and its Subsidiaries, exceeds in the aggregate $50,000,000 after taking into account any undisputed insurance coverage;
(j) if, with respect to any Guaranteed Pension Plan, an ERISA Reportable Event shall have occurred and the Banks shall have determined in their reasonable discretion that such event reasonably could be expected to result in liability of the Borrower or any Subsidiary to the PBGC or such Plan in an aggregate amount exceeding $50,000,000 and such event in the circumstances occurring reasonably could constitute grounds for the partial or complete termination of such Plan by the PBGC or for the appointment by the appropriate United States District Court of a trustee to administer such Plan; or a trustee shall have been appointed by the appropriate United States District Court to administer such Plan; or the PBGC shall have instituted proceedings to terminate such Plan;
(k) if 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 Banks, 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 or on behalf of the Borrower, the Guarantor, or any of their respective stockholders, 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 effect that, any one or more of the Loan Documents is illegal, invalid or unenforceable in accordance with the terms thereof; or
(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 25% or more of the outstanding shares of common voting stock of the Borrower; or during any period of twelve consecutive calendar months, individuals who were directors of the Borrower on the first day of such period (together with any new directors whose election by such board or whose nomination for election by the shareholders of the Borrower was approved by a vote of a majority of the directors still in office who were either directors at the beginning of such period or whose election or nomination for election was previously so approved) shall cease to constitute a majority of the board of directors of the Borrower;
Appears in 1 contract
Events of Default and Acceleration. If any of the following events (“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 or lapse of time, “Defaults”) shall occur:
(a) if the Borrower Borrowers shall fail to pay any principal of the Loans when 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;
(b) if the Borrower Borrowers shall fail to pay any interest on the Loans within five (5) Business Days of the date that the same shall become due and payable, any reimbursement obligations with respect to the Letters of Credit or any fees or other amounts owing sums due hereunder (other than those specified in subsection (aany voluntary prepayment) above) or under any of the other Loan Documents within five (5) Business Days after the same shall become due and payable notice from Agent, whether at the Maturity Date 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 any of the covenants contained in §§7.4, 7.5, 7.15, 7.16, 8 and 9 hereof[Reserved];
(d) if any of the Borrower Borrowers shall fail to perform any other term, covenant or agreement contained in §9.1, §9.2, §9.3, §9.4, §9.5, §9.7, §9.9 or §9.10 which they are required to perform;
(e) any of the Loan Parties shall fail to perform any other term, covenant or agreement contained herein or in any of the other Loan Documents which they are required to perform (other than those specified in subsections the other subclauses of this §12 (aincluding, without limitation, §12.2 below) or in the other Loan Documents), (b), and (c) above) and such failure shall continue for thirty (30) days after such Borrower receives from Agent written notice thereof, and in the case of a default that cannot be remedied cured within 30 such thirty (30)-day period despite such Borrower’s diligent efforts but is susceptible of being cured within ninety (90) days after written notice of such failure Borrower’s receipt of Agent’s original notice, then such Borrower shall have been given such additional time as is reasonably necessary to effect such cure, but in no event in excess of ninety (90) days from such Borrower’s receipt of Agent’s original notice; provided that the Borrower foregoing cure provisions shall not pertain to any default consisting of a failure to comply with §8.4, or to any Default excluded from any provision of cure of defaults contained in any other of the Loan Documents and with respect to any defaults under §8.1, §8.2 or §8.8, the thirty (30) day cure period described above shall be reduced to a period of ten (10) Business Days and no additional cure period shall be provided with respect to such defaults;
(f) any material representation or warranty made by or on behalf of the Administrative Agent Borrowers or any of the Banks;
(e) if any representation or warranty contained their respective Subsidiaries in this Agreement or any other Loan Document, or any report, certificate, financial statement, request for a Loan, or in any other document or instrument delivered pursuant to or in connection with this Agreement Agreement, any advance of a Loan, or any of the other Loan Documents shall prove to have been false in any material respect upon the date when made or repeated;
(f) if the Borrower or any of its Subsidiaries shall fail deemed to pay when due, or within any applicable period of grace, any Indebtedness or obligations under Swap Contracts in an aggregate amount greater than $75,000,000, or fail to observe or perform any material term, covenant or agreement contained in any one or more agreements by which it is bound, evidencing or securing any Indebtedness or obligations under Swap Contracts in an aggregate amount greater than $75,000,000 for such period of time as would permit, or would have permitted (assuming the giving of appropriate notice if required) the holder or holders thereof or of any obligations issued thereunder to accelerate the maturity thereof or terminate its commitment with respect theretobeen made;
(g) if Any Borrower or Guarantor (or Subsidiary thereof) defaults under (i) any Recourse Indebtedness in an aggregate amount equal to or greater than $5,000,000.00 with respect to all uncured defaults at any time, (ii) any Non-Recourse Indebtedness in an aggregate amount equal to or greater than $50,000,000.00 with respect to all uncured defaults at any time, (iii) the Borrower2017 Term Loan Agreement or (iv) the 2018 Term Loan Agreement;
(h) any of the Borrowers or Guarantors, the Guarantor or any Significant Subsidiary makes (i) shall make an assignment for the benefit of creditors, or admits admit in writing its general inability to pay or generally fails fail to pay its debts as they mature or become due, or petitions shall petition or applies apply for the appointment of a trustee or other custodian, liquidator or receiver of the Borrower, the Guarantor for it or any Significant Subsidiary, or of any substantial part of the assets of the Borrowerits assets, the Guarantor or any Significant Subsidiary or commences (ii) shall commence any case or other proceeding relating to the Borrower, the Guarantor or any Significant Subsidiary it 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 (iii) shall take any action to authorize any of the foregoing;
(i) a petition or in furtherance application shall be filed for the appointment of a trustee or other custodian, liquidator or receiver of any of the foregoingBorrowers or Guarantors or any substantial part of the assets of any thereof, or if any such petition or application is filed or any such a case or other proceeding is shall be commenced against the Borrowerany such Person under any bankruptcy, the Guarantor reorganization, arrangement, insolvency, readjustment of debt, dissolution or liquidation or similar law of any Significant Subsidiary jurisdiction, now or the Borrowerhereafter in effect, the Guarantor or and any Significant Subsidiary indicates such Person shall indicate its approval thereof, consent thereto or acquiescence thereintherein or such petition, application, case or proceeding shall not have been dismissed within sixty (60) days following the filing or commencement thereof;
(hj) if a decree or order is entered appointing any such a trustee, custodian, liquidator or receiver for any of the Borrowers or Guarantors or adjudicating the Borrower or the Guarantor or any Significant Subsidiary such Person, 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 or the Guarantor or any Significant Subsidiary such Person in an involuntary case under federal bankruptcy laws of any jurisdiction as now or hereafter constituted;
(ik) if there shall remain in force, undischarged, unsatisfied and unstayed, for more than thirty sixty (60) days, whether or not consecutive, one or more uninsured or unbonded final judgments against any final judgment against Guarantor or Borrower (or Subsidiary thereof) that, either individually or in the aggregate, exceed $5,000,000.00;
(l) any of the Loan Documents shall be canceled, terminated, revoked or rescinded by any Borrower or any Subsidiary whichGuarantor otherwise than in accordance with the terms thereof or the express prior written agreement, consent or approval of the Required Lenders, 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 any of the Borrowers, or any court or any other governmental or regulatory authority or agency of competent jurisdiction shall make a determination, or issue a judgment, order, decree or ruling, to the effect that any one or more of the material Loan Documents is illegal, invalid or unenforceable in accordance with other outstanding final judgments against the Borrower terms thereof, and its Subsidiariesin each case of the foregoing the Borrowers fail to enter into an amendment or modification to the existing Loan Documents or enter into new documentation, exceeds each in form and substance reasonably satisfactory to Agent and Required Lenders, which have the aggregate $50,000,000 after taking into account any undisputed insurance coverageeffect of rendering the cancellation, termination, revocation, rescission, illegality, invalidity or unenforceability immaterial;
(jm) ifany dissolution, termination, partial or complete liquidation, merger or consolidation of any of the Loan Parties shall occur or any sale, transfer or other disposition of the assets of any of the Loan Parties shall occur other, in each case, than as permitted under the terms of this Agreement or the other Loan Documents;
(n) with respect to any Guaranteed Pension Plan, an ERISA Reportable Event shall have occurred and the Banks shall have determined in their reasonable discretion that such event reasonably could would be expected likely to result in liability of any of the Borrower or any Subsidiary Borrowers to pay money to the PBGC or such Plan in an aggregate amount exceeding $50,000,000 5,000,000.00 and one of the following shall apply with respect to such event: (x) such event in the circumstances occurring reasonably could constitute grounds for would be likely to result in the partial or complete termination of such Plan by the PBGC or for the appointment by the appropriate United States District Court of a trustee to administer such Plan; or (y) a trustee shall have been appointed by the appropriate United States District Court to administer such Plan; or (z) the PBGC shall have instituted proceedings to terminate such Plan;
(ko) if the occurrence of any Change 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 Banks, 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 or on behalf of the Borrower, the Guarantor, or any of their respective stockholders, 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 effect that, any one or more of the Loan Documents is illegal, invalid or unenforceable in accordance with the terms thereofControl; or
(lp) if an Event of Default under any person or group of persons (within the meaning of Section 13 or 14 of the Securities Exchange Act other Loan Documents shall occur (subject, in any case, to any applicable cure provision set forth in §12.1(e); then, and upon any such Event of 1934Default, as amended) Agent may, and upon the request of the Required Lenders shall, by notice in writing to the Borrowers declare all amounts owing with respect to this Agreement, the Notes, and the other Loan Documents to be, and they shall have acquired beneficial ownership (within the meaning thereupon forthwith become, immediately due and payable without presentment, demand, protest or other notice of Rule 13d-3 promulgated any kind, all of which are hereby expressly waived by the Securities Borrowers; provided that in the event of any Event of Default specified in §12.1(h), §12.1(i) or §12.1(j), all such amounts shall become immediately due and Exchange Commission under said Act) payable automatically and without any requirement of 25% presentment, demand, protest or more other notice of the outstanding shares of common voting stock of the Borrower; any kind from any Lender or during any period of twelve consecutive calendar months, individuals who were directors of the Borrower on the first day of such period (together with any new directors whose election by such board or whose nomination for election by the shareholders of the Borrower was approved by a vote of a majority of the directors still in office who were either directors at the beginning of such period or whose election or nomination for election was previously so approved) shall cease to constitute a majority of the board of directors of the Borrower;Agent.
Appears in 1 contract
Events of Default and Acceleration. If any of the following events (“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 or lapse of time, “Defaults”) shall occur:
(a) if the Borrower shall fail to pay any principal of the Loans when 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;
(b) if the Borrower shall fail to pay any interest or fees or other amounts owing hereunder (other than those specified in subsection (a) above) within five (5) Business Days after on the Loans when the same shall become due and payable payable, whether at the Maturity Date stated date of maturity or any accelerated date of maturity or at any other date fixed for payment, and such failure shall continue for five (5) days after written notice of such failure has been given to the Borrower by the Administrative Agent;
(c) if the Borrower shall fail to comply with any of the covenants contained in §§7.4, 7.5, 7.15, 7.16, 8 and 9 hereof;
(d) if the Borrower shall fail to perform or observe any of its covenants contained in Sections 6.5.1, 6.6.1, 7.1, 7.2, 7.3(xiv), 7.11, 8, or, if such failure relates to a Lien securing Funded Debt, 7.3;
(d) the Borrower or any of its Subsidiaries shall fail to perform or observe any term, covenant covenant, or agreement contained herein or in any of the other Loan Documents (other than those specified elsewhere in subsections this Section 11) for thirty (a), (b), and (c30) above) and such failure shall not be remedied within 30 days after written notice of such failure shall have has been given to the Borrower by the Administrative Agent Agent, provided, that a failure to perform or any observe the terms, covenants and agreements set forth in Section 6.4, Section 6.5.3, Section 6.9 or Section 6.13.1 that continues for more than ten (10) days (regardless of whether notice of such failure is given to the BanksBorrower) shall constitute an Event of Default hereunder;
(e) if any representation or warranty contained of the Borrower or any of its Subsidiaries in this Agreement Credit Agreement, any of the other Loan Documents, or in any other document or instrument delivered pursuant to or in connection with this Credit Agreement shall prove to have been false incorrect in any material respect upon the date when made or deemed to have been made or repeated;
(f) if failure to make a payment of principal or interest, or the occurrence of a default, event of default, or other event permitting (with or without the passage of time or the giving of notice) acceleration or exercise of remedies or, with respect to any Swap Contract, as to which the Borrower or any Subsidiary is the defaulting party, permitting early termination thereof shall occur with respect to (i) any Indebtedness for money borrowed, (ii) any Indebtedness in respect of the deferred purchase price of goods or services, (iii) any Capitalized Lease, (iv) any Broker-Dealer Debt, (v) any Swap Contract or (vi) any Synthetic Lease Obligation, of the Borrower or any of its Subsidiaries, having a principal amount (or (x) in the case of a Capitalized Lease, scheduled rental payments with a discounted present value from the last day of the initial term to the date of determination as determined in accordance with generally accepted accounting principles or (y) in the case of a Swap Contract, the Swap Termination Value or (z) in the case of a Synthetic Lease Obligation, the amount of Attributable Indebtedness with respect thereto), (A) in any one case, of $100,000,000 or more, or (B) in the aggregate, of $250,000,000 or more, and such failure to make a payment of principal or interest, or a default, event of default, or other event shall continue for such period of time as would entitle the holder of such Indebtedness, Capitalized Lease, Swap Contract or Synthetic Lease Obligation (with or without notice) to accelerate such Indebtedness or terminate such Capitalized Lease, Swap Contract or Synthetic Lease Obligation;
(g) 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 Banks, or any Proceeding to cancel, revoke, or rescind any of the Loan Documents shall be commenced by or on behalf of the Borrower or any of its Subsidiaries shall fail to pay when dueparty thereto, or within any applicable period Government Authority of gracecompetent jurisdiction shall make a determination that, or issue a Government Mandate to the effect that, any Indebtedness or obligations under Swap Contracts in an aggregate amount greater than $75,000,000, or fail to observe or perform any material term, covenant or agreement contained in any provision of one or more agreements by which it of the Loan Documents is boundillegal, evidencing or securing any Indebtedness or obligations under Swap Contracts in an aggregate amount greater than $75,000,000 for such period of time as would permitinvalid, or would have permitted (assuming unenforceable in accordance with the giving of appropriate notice if required) the holder or holders thereof or of any obligations issued thereunder to accelerate the maturity thereof or terminate its commitment with respect theretoterms thereof;
(gh) if the Borrower, Alliance Distributors, the Guarantor General Partner, or any Significant Material Subsidiary makes shall make an assignment for the benefit of creditors, or admits admit in writing its inability to pay or generally fails fail to pay its debts as they mature or become due, or petitions shall petition or applies apply for the appointment of a trustee or other custodian, liquidator liquidator, or receiver of the Borrower, Alliance Distributors, the Guarantor General Partner or any Significant Subsidiary, Material Subsidiary or of any substantial part of the assets of the Borrower, Alliance Distributors, the Guarantor General Partner, or any Significant Subsidiary Material Subsidiary, or commences shall commence any case or other proceeding Proceeding relating to the Borrower, Alliance Distributors, the Guarantor General Partner, or any Significant Material Subsidiary under any bankruptcy, reorganization, arrangement, insolvency, readjustment of debt, dissolution or liquidation dissolution, liquidation, or similar law of any jurisdiction, now or hereafter in effect, or takes shall take any action to authorize or in furtherance of any of the foregoing, or if any such petition or application is shall be filed or any such case or other proceeding is Proceeding shall be commenced against the Borrower, Alliance Distributors, the Guarantor General Partner, or any Significant Material Subsidiary or the Borrower, the Guarantor or and any Significant Subsidiary indicates of such parties shall indicate its approval thereof, consent thereto thereto, or acquiescence therein;
(hi) if either (i) an involuntary Proceeding relating to the Borrower, Alliance Distributors, the General Partner, or any Material Subsidiary under any bankruptcy, reorganization, arrangement, insolvency, readjustment of debt, dissolution, liquidation, or similar law of any jurisdiction, now or hereafter in effect is commenced and not dismissed or vacated within sixty (60) days following entry thereof, or (ii) a decree or order is entered appointing any such trustee, custodian, liquidator liquidator, or receiver described in (h) or adjudicating the Borrower or Borrower, Alliance Distributors, the Guarantor General Partner, or any Significant Material Subsidiary bankrupt or insolvent, or approving a petition in any such case or other proceedingProceeding, or a decree or order for relief is entered in respect of the Borrower or Borrower, Alliance Distributors, the Guarantor General Partner, or any Significant Material Subsidiary in an involuntary case Proceeding under federal bankruptcy laws of any jurisdiction as now or hereafter constituted;
(ij) if there shall remain in force, undischarged, unsatisfied unsatisfied, and unstayed, for more than thirty forty-five (45) days, whether or not consecutive, any final judgment or order against the Borrower or any Subsidiary whichof its Subsidiaries, that, with any other such outstanding final judgments or orders, undischarged, against the Borrower and its Subsidiaries, Subsidiaries taken together exceeds in the aggregate $50,000,000 after taking into account any undisputed insurance coverage50,000,000;
(jk) if, with respect to any Guaranteed Pension Plan, an ERISA Reportable Event shall have occurred and the Majority Banks shall have determined in their reasonable discretion that such event reasonably could be expected to result in liability of the Borrower or any Subsidiary of its Subsidiaries to the PBGC or such Guaranteed Pension Plan in an aggregate amount exceeding $50,000,000 and such event in the circumstances occurring reasonably could constitute grounds for the partial or complete termination of such Guaranteed Pension Plan by the PBGC or for the appointment by the appropriate United States District Court of a trustee to administer such Guaranteed Pension Plan; or a trustee shall have been appointed by the appropriate United States District Court to administer such Guaranteed Pension Plan; or the PBGC shall have instituted proceedings to terminate such Guaranteed Pension Plan;
(kl) if any of the Loan Documents following: (i) the Borrower shall fail to be cancelledduly registered as an “investment adviser” under the Investment Advisers Act of 1940; or (ii) Alliance Distributors shall cease to be duly registered as a “broker/dealer” under the Securities Exchange Act of 1934 or shall cease to be a member in good standing of the National Association of Securities Dealers, terminatedInc., revoked in each case, to the extent required;
(m) the Borrower, Alliance Distributors, the General Partner, or rescinded otherwise than any Material Subsidiary shall either (i) be indicted for a federal or state crime and, in accordance connection with such indictment, Government Authorities shall seek to seize or attach, or seek a civil forfeiture of, property of the terms thereof Borrower, Alliance Distributors, the General Partner, or one or more of such Material Subsidiaries having a fair market value in excess of $50,000,000, or (ii) be found guilty of, or shall plead guilty, no contest, or nolo contendere to, any federal or state crime, a punishment for which could include a fine, penalty, or forfeiture of any assets of the Borrower, Alliance Distributors, the General Partner, or such Material Subsidiary having in any such case a fair market value in excess of $50,000,000; or
(n) Alliance Capital Management Corporation shall cease to be the sole general partner of the Borrower, and such circumstance shall continue for thirty (30) days after written notice of such circumstance has been given to the Borrower, provided, that the admission of additional Persons as general partner of the Borrower shall not constitute an Event of Default if, prior to the admission of any such general partner, the Borrower delivers to the Banks (i) the documentation with respect to such general partner that would be required under Section 9.3 if such Person were a General Partner on the express prior written agreementClosing Date, consent or approval of (ii) an incumbency certificate for such general partner as required for the Borrower pursuant to Section 9.8, and (iii) an opinion from counsel reasonably acceptable to the Banks, or any action at lawin form and substance reasonably satisfactory to the Banks, suit or in equity or other legal proceeding as to cancel, revoke or rescind any of the Loan Documents shall be commenced by or such general partner’s power and authority to act on behalf of the Borrower as a general partner of the Borrower; then, and in any such event, so long as the same may be continuing, the GuarantorAdministrative Agent shall, at the request of, or any of their respective stockholdersmay with the consent of, 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 effect that, any Majority Banks take one or more of the following actions: (x) declare the Commitment of each Bank to make Loans to be terminated, whereupon such Commitment shall be terminated; and (y) by notice in writing to the Borrower declare all amounts owing with respect to this Credit Agreement, any Notes, and the other Loan Documents is illegalto be, invalid and they shall thereupon forthwith become, immediately due and payable without presentment, demand, protest, or unenforceable other notice of any kind, all of which are hereby expressly waived by the Borrower. In addition, in accordance with any such event, so long as the terms thereof; same may be continuing, the Administrative Agent may or
(l) if any person or group of persons (within , at the meaning of Section 13 or 14 request of the Securities Exchange Act Majority Banks, shall exercise on behalf of 1934itself and the Banks all other rights and remedies available to it and the Banks under the Loan Documents or applicable law. Notwithstanding the foregoing, as amendedin the event of any Event of Default specified in Section 11.1(h) or Section 11.1(i), all such amounts shall have acquired beneficial ownership (within become immediately due and payable automatically and without any requirement of notice from the meaning Administrative Agent or any Bank, and any unused portion of Rule 13d-3 promulgated the Total Commitment hereunder shall forthwith terminate and each of the Banks shall be relieved of all obligations to make Loans to the Borrower. Any declaration under this Section 11.1 may be rescinded by the Securities and Exchange Commission under said Act) Majority Banks after the Events of 25% Default leading to such declaration are cured or more of the outstanding shares of common voting stock of the Borrower; or during any period of twelve consecutive calendar months, individuals who were directors of the Borrower on the first day of such period (together with any new directors whose election by such board or whose nomination for election by the shareholders of the Borrower was approved by a vote of a majority of the directors still in office who were either directors at the beginning of such period or whose election or nomination for election was previously so approved) shall cease to constitute a majority of the board of directors of the Borrower;waived.
Appears in 1 contract
Sources: Revolving Credit Agreement (Alliancebernstein Holding L.P.)
Events of Default and Acceleration. If any of the following events (“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 or lapse of time, “Defaults”) shall occur:
(a) if the Borrower shall fail to pay any principal of the Loans when 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;
(b) if the Borrower shall fail to pay any interest on the Loans within five (5) Business Days of the date that the same shall become due and payable or any fees or other amounts owing sums due hereunder (other than those specified in subsection (aany voluntary prepayment) above) or under any of the other Loan Documents within five (5) Business Days after the same shall become due and payable notice from Agent, whether at the Maturity Date 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 any of the covenants contained in §§7.4, 7.5, 7.15, 7.16, 8 and 9 hereof[Reserved];
(d) if the Borrower shall fail to perform any other term, covenant or agreement contained in §9.1,§9.2, §9.3, §9.4, §9.5, §9.6, §9.7, or §9.9 which they are required to perform;
(e) Borrower or any other Loan Party shall fail to perform any other term, covenant or agreement contained herein or in any of the other Loan Documents which it is required to perform (other than those specified in subsections the other subclauses of this §12 (aincluding, without limitation, §12.2 below) or in the other Loan Documents), (b), and (c) above) and such failure shall not be remedied within 30 continue for thirty (30) days after Borrower receives from Agent written notice thereof; provided that the foregoing cure provisions shall not pertain to any default consisting of such a failure shall have been given to comply with any provision of §8 or §7.17, or to any Default excluded from any provision of cure of defaults contained in any other of the Loan Documents;
(f) any material representation or warranty made by or on behalf of the Borrower by the Administrative Agent or any of the Banks;
(e) if any representation or warranty contained its respective Subsidiaries in this Agreement or any other Loan Document, or any report, certificate, financial statement, request for a Loan, or in any other document or instrument delivered pursuant to or in connection with this Agreement Agreement, any advance of a Loan, or any of the other Loan Documents shall prove to have been false in any material respect upon the date when made or repeated;
(f) if the Borrower or any of its Subsidiaries shall fail deemed to pay when due, or within any applicable period of grace, any Indebtedness or obligations under Swap Contracts in an aggregate amount greater than $75,000,000, or fail to observe or perform any material term, covenant or agreement contained in any one or more agreements by which it is bound, evidencing or securing any Indebtedness or obligations under Swap Contracts in an aggregate amount greater than $75,000,000 for such period of time as would permit, or would have permitted (assuming the giving of appropriate notice if required) the holder or holders thereof or of any obligations issued thereunder to accelerate the maturity thereof or terminate its commitment with respect theretobeen made;
(g) if Borrower, any Guarantor (or any Subsidiary thereof) defaults under (i) any Recourse Indebtedness in an aggregate amount equal to or greater than $5,000,000.00 with respect to all uncured defaults at any time, or (ii) any Non-Recourse Indebtedness in an aggregate amount equal to or greater than $50,000,000.00 with respect to all uncured defaults at any time;
(h) any of the Borrower, the Guarantor Borrower Subsidiaries, or any Significant Subsidiary makes Guarantors, (i) shall make an assignment for the benefit of creditors, or admits admit in writing its general inability to pay or generally fails fail to pay its debts as they mature or become due, or petitions shall petition or applies apply for the appointment of a trustee or other custodian, liquidator or receiver of the Borrower, the Guarantor for it or any Significant Subsidiary, or of any substantial part of the assets of the Borrowerits assets, the Guarantor or any Significant Subsidiary or commences (ii) shall commence any case or other proceeding relating to the Borrower, the Guarantor or any Significant Subsidiary it 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 (iii) shall take any action to authorize any of the foregoing;
(i) a petition or in furtherance application shall be filed for the appointment of a trustee or other custodian, liquidator or receiver of any of the foregoingBorrower, Borrower Subsidiaries, or if any such petition or application is filed Guarantors or any such substantial part of the assets of any thereof, or a case or other proceeding is shall be commenced against the Borrowerany such Person under any bankruptcy, the Guarantor reorganization, arrangement, insolvency, readjustment of debt, dissolution or liquidation or similar law of any Significant Subsidiary jurisdiction, now or the Borrowerhereafter in effect, the Guarantor or and any Significant Subsidiary indicates such Person shall indicate its approval thereof, consent thereto or acquiescence thereintherein or such petition, application, case or proceeding shall not have been dismissed within sixty (60) days following the filing or commencement thereof;
(hj) if a decree or order is entered appointing any such a trustee, custodian, liquidator or receiver for any of the Borrower, Borrower Subsidiaries, or Guarantors or adjudicating the Borrower or the Guarantor or any Significant Subsidiary such Person, 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 or the Guarantor or any Significant Subsidiary such Person in an involuntary case under federal bankruptcy laws of any jurisdiction as now or hereafter constituted;
(ik) if there shall remain in force, undischarged, unsatisfied and unstayed, for more than thirty sixty (60) days, whether or not consecutive, one or more uninsured or unbonded final judgments against any final judgment against Guarantor or Borrower (or any Subsidiary thereof) that, either individually or in the aggregate, exceed in excess of $5,000,000.00;
(l) any of the Loan Documents shall be canceled, terminated, revoked or rescinded otherwise than in accordance with the terms thereof or the express prior written agreement, consent or approval of the Required Lenders, 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 any of the Borrower or the Borrower Subsidiaries, or any court or any other governmental or regulatory authority or agency of competent jurisdiction shall make a determination, or issue a judgment, order, decree or ruling, to the effect that any one or more of the material Loan Documents is illegal, invalid or unenforceable in accordance with the terms thereof, and in each case of the foregoing the Borrower or any Borrower Subsidiary whichfails to enter into an amendment or modification to the existing Loan Documents or enter into new documentation, with other outstanding final judgments against each in form and substance reasonably satisfactory to the Borrower Agent and its SubsidiariesRequired Lenders, exceeds in which have the aggregate $50,000,000 after taking into account any undisputed insurance coverageeffect of rendering the cancellation, termination, revocation, rescission, illegality, invalidity or unenforceability immaterial;
(jm) ifany dissolution, termination, partial or complete liquidation, merger or consolidation of any of the Loan Parties or Borrower Subsidiaries shall occur or any sale, transfer or other disposition of the assets of any of the Loan Parties shall occur other, in each case, than as permitted under the terms of this Agreement or the other Loan Documents;
(n) with respect to any Guaranteed Pension Plan, an ERISA Reportable Event shall have occurred and the Banks shall have determined in their reasonable discretion that such event reasonably could would be expected likely to result in liability of any of the Borrower or any Subsidiary Borrower Subsidiaries to pay money to the PBGC or such Plan in an aggregate amount exceeding $50,000,000 5,000,000.00 and one of the following shall apply with respect to such event: (x) such event in the circumstances occurring reasonably could constitute grounds for would be likely to result in the partial or complete termination of such Plan by the PBGC or for the appointment by the appropriate United States District Court of a trustee to administer such Plan; or (y) a trustee shall have been appointed by the appropriate United States District Court to administer such Plan; or (z) the PBGC shall have instituted proceedings to terminate such Plan;
(ko) if the occurrence of any Change of Control;
(p) an Event of Default under any of the other Loan Documents shall be cancelledoccur (subject, terminatedin any case, revoked or rescinded otherwise than to any applicable cure provision set forth in accordance with the terms thereof or with the express prior written agreement, consent or approval of the Banks, 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 or on behalf of the Borrower, the Guarantor, or any of their respective stockholders, 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 effect that, any one or more of the Loan Documents is illegal, invalid or unenforceable in accordance with the terms thereof§12.1(e)); or
(lq) if without limiting the provisions of §12.1(g), the occurrence of any person or group “Event of persons Default” (within as defined in the meaning Specified Senior Secured Credit Agreement)(after the expiration of Section 13 or 14 all grace and cure periods thereunder). then, and upon any such Event of Default, the Agent may, and upon the request of the Securities Exchange Act Required Lenders shall, by notice in writing to the Borrower declare all amounts owing with respect to this Agreement, the Notes, and the other Loan Documents to be, and they shall thereupon forthwith become, immediately due and payable without presentment, demand, protest or other notice of 1934any kind, as amended) shall have acquired beneficial ownership (within the meaning all of Rule 13d-3 promulgated which are hereby expressly waived by the Securities and Exchange Commission under said Act) of 25% or more of the outstanding shares of common voting stock of the Borrower; provided that in the event of any Event of Default specified in §12.1(h), §12.1(i) or during §12.1(j), all such amounts shall become immediately due and payable automatically and without any period requirement of twelve consecutive calendar monthspresentment, individuals who were directors demand, protest or other notice of any kind from any of the Borrower on Lenders or the first day of such period (together with any new directors whose election by such board or whose nomination for election by the shareholders of the Borrower was approved by a vote of a majority of the directors still in office who were either directors at the beginning of such period or whose election or nomination for election was previously so approved) shall cease to constitute a majority of the board of directors of the Borrower;Agent.
Appears in 1 contract
Events of Default and Acceleration. If any of the following events (“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 or lapse of time, “Defaults”) shall occur:
(a) if the Borrower shall fail to pay any principal of the Loans or any Reimbursement Obligation when 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;
(b) if the Borrower or any of its Subsidiaries shall fail to pay any interest or fees on the Loans, any Fees, or other amounts owing sums due hereunder or under any of the other Loan Documents, within three (other than those specified in subsection (a) above) within five (53) Business Days after of when the same shall become due and payable payable, whether at the Maturity Date stated date of maturity or any accelerated date of maturity or at any other date fixed for payment;
(c) if (i) the Borrower Parent or the Borrower, as applicable, shall fail to comply with any of the its covenants contained in §9.2, §7.49.4, 7.5§9.5 (other than §9.5.5 and §9.5.6), 7.15§9.6(iii) through (vi), 7.16§9.9, 8 §9.12, §9.15, §9.17 (other than §9.17(b)(i), §9.17 (b)(ii) and 9 hereof§9.17 (d)(i)), §▇▇ ▇▇ §▇▇ after the expiration of any applicable period; or (ii) the Parent, the Borrower, any Bridge to Sale Excluded Subsidiary, any Bridge to Sale License Subsidiary or any Affiliate thereof shall fail to comply with §9.17(b)(i), §9.17 (b)(ii) or §9.17(d)(i) and such failure continues for fifteen (15) days;
(d) if the Borrower or any of its Subsidiaries shall fail (i) to comply with §9.7 for ten (10) Business Days after written notice of such failure has been given to the Borrower by the Administrative Agent; or (ii) to perform any term, covenant or agreement contained herein or in any of the other Loan Documents (other than those specified elsewhere in subsections this §14.1) for thirty (a), (b), and (c30) above) and such failure shall not be remedied within 30 days after written notice of such failure shall have has been given to the Borrower by the Administrative Agent or any of the BanksAgent;
(e) if any representation or warranty contained of the Parent, the Borrower or any of the Subsidiaries in this Credit Agreement or any of the other Loan Documents or in any Refinancing Note Document or in any other document or instrument delivered pursuant to or in connection with this Credit Agreement shall prove to have been false in any material respect upon the date when made or deemed to have been made or repeated;
(f) if the Borrower or any of its Subsidiaries shall fail to pay when dueat maturity, or within any applicable period of grace, any Indebtedness obligation for borrowed money or obligations under Swap Contracts credit received or in respect of any Capitalized Leases in each case in an aggregate amount greater than $75,000,0005,000,000, or fail to observe or perform any material term, covenant or agreement contained in any one or more agreements agreement by which it is bound, evidencing or securing borrowed money or credit received or in respect of any Indebtedness or obligations under Swap Contracts Capitalized Leases in each case in an aggregate amount greater than $75,000,000 5,000,000 for such period of time as would permit, or would have permitted permit (assuming the giving of appropriate notice if required) the holder or holders thereof or of any obligations issued thereunder to accelerate the maturity thereof thereof, or terminate its commitment with respect theretoany such holder or holders shall rescind or shall have a right to rescind the purchase of any such obligations;
(g) if the BorrowerParent, the Guarantor Borrower or any Significant Subsidiary makes of their respective Subsidiaries shall make an assignment for the benefit of creditors, or admits admit in writing its inability to pay or generally fails fail to pay its debts as they mature or become due, or petitions shall petition or applies apply for the appointment of a trustee or other custodian, liquidator or receiver of the BorrowerParent, the Guarantor Borrower or any Significant Subsidiary, of their respective Subsidiaries or of any substantial part of the assets of the Borrower, the Guarantor such Person or any Significant Subsidiary or commences shall commence any case or other proceeding relating to the Borrower, the Guarantor or any Significant Subsidiary such Person 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 shall take any action to authorize or in furtherance of any of the foregoing, or if any such petition or application is shall be filed or any such case or other proceeding is shall be commenced against the BorrowerParent, the Guarantor Borrower or any Significant Subsidiary or the Borrower, the Guarantor or any Significant Subsidiary indicates of their respective Subsidiaries and such Person shall indicate its approval thereof, consent thereto or acquiescence thereintherein or such petition or application shall not have been dismissed within sixty (60) days following the filing thereof;
(h) if a decree or order is entered appointing any such trustee, custodian, liquidator or receiver or adjudicating the Parent, the Borrower or the Guarantor or any Significant Subsidiary of their respective Subsidiaries 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 or the Guarantor or any Significant Subsidiary such Person in an involuntary case under federal bankruptcy laws of any jurisdiction as now or hereafter constituted;
(i) if there shall remain in force, undischarged, unsatisfied and unstayed, for more than thirty (30) days, whether or not consecutive, any final judgment against the Parent, the Borrower or any Subsidiary whichof their respective Subsidiaries that, with other outstanding final judgments judgments, undischarged, against the Borrower and Parent or any of its Subsidiaries, Subsidiaries exceeds in the aggregate $50,000,000 after taking into account any undisputed insurance coverage5,000,000;
(j) if, any default shall occur with respect to all or any Guaranteed Pension Plan, an ERISA Reportable Event shall have occurred and the Banks shall have determined in their reasonable discretion that such event reasonably could be expected to result in liability part of the Borrower Subordinated Debt or the holders of all or any Subsidiary part of the Subordinated Debt shall accelerate the maturity of all or any part of the Subordinated Debt; the Subordinated Debt shall be prepaid, redeemed or repurchased in whole or in part (other than pursuant to §10.4(d)) or an offer to prepay, redeem or repurchase the PBGC Subordinated Debt in whole or such Plan in an aggregate amount exceeding $50,000,000 and such event in the circumstances occurring reasonably could constitute grounds for the partial or complete termination of such Plan by the PBGC or for the appointment by the appropriate United States District Court of a trustee to administer such Plan; or a trustee part shall have been appointed made (other than pursuant to §10.4(d)) or the subordination provisions of such Subordinated Debt are found by any court, or asserted by the appropriate United States District Court trustee in respect of, or any holder of, Subordinated Debt in a judicial proceeding to administer such Plan; be, invalid or the PBGC shall have instituted proceedings to terminate such Planunenforceable;
(k) if any of the Loan Documents shall be cancelled, terminated, revoked or rescinded or the Administrative Agent’s security interests, mortgages or liens in a material portion of the Collateral shall cease to be perfected, or shall cease to have the priority contemplated by the Security Documents otherwise than in accordance with the terms thereof with respect to the release of any Collateral or in each case with the express prior written agreement, consent or approval of the BanksLenders, or any action or suit at law, suit law or 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 BorrowerParent, the Guarantor, Borrower or any of the 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 determination that, or issue a judgment, order, decree or ruling to the effect that, any one or more of the Loan Documents is illegal, invalid or unenforceable in accordance with the terms thereof; or;
(l) if the Borrower or any person ERISA Affiliate incurs any liability to the PBGC or group a Guaranteed Pension Plan pursuant to Title IV of persons ERISA in an aggregate amount exceeding $5,000,000, or the Borrower or any ERISA Affiliate is assessed withdrawal liability pursuant to Title IV of ERISA by a Multiemployer Plan requiring aggregate annual payments exceeding $5,000,000, or any of the following occurs with respect to a Guaranteed Pension Plan: (i) an ERISA Reportable Event, or a failure to make a required installment or other payment (within the meaning of Section 13 or 14 §302(f)(1) of ERISA), provided that the Administrative Agent determines in its reasonable discretion that such event (A) could be expected to result in liability of the Securities Exchange Act Borrower or any of 1934, as amendedits Subsidiaries to the PBGC or such Guaranteed Pension Plan in an aggregate amount exceeding $5,000,000 and (B) shall have acquired beneficial ownership (within is reasonably likely to constitute grounds for the meaning termination of Rule 13d-3 promulgated such Guaranteed Pension Plan by the Securities PBGC, for the appointment by the appropriate United States District Court of a trustee to administer such Guaranteed Pension Plan or for the imposition of a lien in favor of such Guaranteed Pension Plan; or (ii) the appointment by a United States District Court of a trustee to administer such Guaranteed Pension Plan; or (iii) the institution by the PBGC of proceedings to terminate such Guaranteed Pension Plan;
(m) the Borrower or any of its Subsidiaries shall be enjoined, restrained or in any way prevented by the order of any Governmental Authority from conducting any material part of its business and Exchange Commission such order shall continue in effect for more than thirty (30) days, provided that with respect to any such order relating to the renewal or availability of any Necessary Authorization, if the issuance of such order would not otherwise constitute an Event of Default under said Act§14.1(t), it shall not cause an Event of Default solely by virtue of meeting the criteria of this clause (m);
(n) there shall occur any material damage to, or loss, theft or destruction of, any Collateral, whether or not insured, or any strike, lockout, labor dispute, embargo, condemnation, act of 25% God or public enemy, or other casualty, which in any such case causes, for more than fifteen (15) consecutive days, the cessation or substantial curtailment of revenue producing activities at any facility of the outstanding shares Borrower or any of common voting stock its Subsidiaries if such event or circumstance is not covered by business interruption insurance and would have a Material Adverse Effect;
(o) there shall occur the loss, suspension or revocation of, or failure to renew, any license or permit now held or hereafter acquired by the Borrower or any of its Subsidiaries if such loss, suspension, revocation or failure to renew would have a Material Adverse Effect;
(p) a Change of Control shall occur;
(q) any default or event of default shall occur under any documents entered into in connection with any Permitted Acquisition, which such default or event of default could reasonably be expected to have a Material Adverse Effect;
(r) at any time, any of the Subsidiaries or Excluded Subsidiaries shall provide a guaranty of the Borrower; ’s obligations under the Refinancing Notes or during any period other Subordinated Debt if such subsidiary is not at such time guarantying the Obligations pursuant to the Guaranty or if such guaranty of twelve consecutive calendar monthsthe Borrower’s obligations under the Refinancing Notes or such other Subordinated Debt, individuals who were directors as applicable, is not subordinated to such subsidiary’s Obligations under the Guaranty;
(s) the commencement of proceedings to suspend, revoke, terminate or substantially and adversely modify any material FCC License or other material license of the Borrower, any of its Subsidiaries or of any Stations thereof if such proceeding shall continue uncontested for forty-five (45) days;
(t) appropriate proceedings for the renewal of any material Necessary Authorization shall not be commenced prior to the expiration thereof or if such Necessary Authorization is not renewed or otherwise made available for the use of the Borrower or any of its Subsidiaries; provided that no Event of Default shall be deemed to occur under this clause (t) if (A) no Material Adverse Effect shall have occurred as a result of such event and (B) the Borrower shall have demonstrated compliance with §11 on a Pro Forma Basis (both before and after giving effect to such event) as though the affected Station had been sold in an Asset Sale as of the first day of the Reference Period most recently ended and the Borrower or the applicable Subsidiary received no consideration for such period sale;
(together with u) any new directors whose election by such board or whose nomination for election by contractual obligation which is necessary to the shareholders broadcasting operations of the Borrower was approved and its Subsidiaries shall be revoked or terminated and not replaced by a vote substitute, without a Material Adverse Effect, within ninety (90) days after such revocation or termination;
(v) any order of the FCC relating to any Permitted Acquisition granting or consenting to a transfer of an FCC License in connection with any Permitted Acquisition which has been completed shall not have become final and any Governmental Authority shall have entered an order reversing such order (whether or not such order shall be subject to further appeal);
(w) any “Default” or “Event of Default” under the Refinancing Note Indenture shall have occurred;
(x) the Parent shall fail to make any equity contribution to the Borrower in the amount or at the time required pursuant to §10.14;
(i) the Austin Partnership shall incur any Indebtedness in an aggregate amount at any one time outstanding in excess of $20,000,000 or (ii) the partnership agreement or any other governing documents relating to the Austin Partnership shall permit, after giving effect to any amendment, modification or waiver of the terms thereof, or there shall occur, any cash or other distribution (including any redemption, purchase, retirement or other acquisition of any partnership interests or return of capital attributable to any partnership interests) by the Austin Partnership to all or any of its partners which is not made simultaneously to all of its partners on a pro rata basis, in terms of both value and kind, in accordance with such partners’ proportional equity interests in the Austin Partnership; provided that it shall not be an Event of Default hereunder if the Borrower or any of its Subsidiaries receives any distribution in excess of their pro rata share as so determined or if the Borrower or any of its Subsidiaries receives any repayment of Indebtedness advanced by the Borrower or any of its Subsidiaries to the Austin Partnership;
(z) any Bridge to Sale Excluded Subsidiary or any Bridge to Sale License Subsidiary shall make an assignment for the benefit of creditors, or admit in writing its inability to pay or generally fail to pay its debts as they mature or become due, or shall petition or apply for the appointment of a majority trustee or other custodian, liquidator or receiver of any Bridge to Sale Excluded Subsidiary or any Bridge to Sale License Subsidiary or of any substantial part of the directors still in office who were either directors at the beginning assets of such period Person or whose election shall commence any case or nomination for election was previously so approved) other proceeding relating to such Person 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 cease take any action to constitute a majority authorize or in furtherance of any of the board foregoing, or if any such petition or application shall be filed or any such case or other proceeding shall be commenced against any Bridge to Sale Excluded Subsidiary or any Bridge to Sale License Subsidiary and such Person shall indicate its approval thereof, consent thereto or acquiescence therein or such petition or application shall not have been dismissed within sixty (60) days following the filing thereof; or
(aa) a decree or order is entered appointing any such trustee, custodian, liquidator or receiver or adjudicating any Bridge to Sale Excluded Subsidiary or any Bridge to Sale License Subsidiary 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 directors any such Person in an involuntary case under federal bankruptcy laws as now or hereafter constituted; then, and in any such event, so long as the same may be continuing, the Administrative Agent may, and upon the request of the Required Lenders shall, by notice in writing to the Borrower declare all amounts owing with respect to this Credit Agreement, the Notes and the other Loan Documents and all Reimbursement Obligations to be, and they shall thereupon forthwith become, 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 §14.1(g) or §14.1(h), all such amounts shall become immediately due and payable automatically and without any requirement of notice from the Administrative Agent or any Lender. In addition, the Administrative Agent may direct the Borrower by notice in writing to pay (and the Borrower hereby agrees upon notice to pay) to the Administrative Agent such additional amounts of cash, to be held as security for all Reimbursement Obligations, equal to the Maximum Drawing Amount of Letters of Credit then outstanding.
Appears in 1 contract
Sources: Revolving Credit and Term Loan Agreement (Emmis Communications Corp)
Events of Default and Acceleration. If any of the following events (“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 or lapse of time, “Defaults”) shall occur:
(a) if default in the Borrower shall fail to pay payment when due of all or any part of the principal of the Loans when the same shall become due and payable, whether or interest on any Loan at the stated date of maturity or any accelerated date of maturity or at any other date fixed for paymentthereof;
(b) if default in the Borrower shall fail payment when due of all or any part of the principal of or interest on any Loan at any other time provided for in this Agreement or of any reimbursement obligation or of any fee or other Obligation payable hereunder or under any other Loan Document, and, in each case, such failure to pay any interest or fees or other amounts owing hereunder (other than those specified in subsection (a) above) within shall continue unremedied for a period of five (5) Business Days after the same shall become due and payable whether at the Maturity Date or any accelerated date of maturity or at any other date fixed for paymentDays;
(c) if default in the Borrower shall fail to comply with observance or performance of any covenant set forth in Section 6.1, Section 6.2, Section 6.3, Section 6.6 or Section 6.15 or Article 7 of the covenants contained in §§7.4, 7.5, 7.15, 7.16, 8 and 9 hereofthis Agreement;
(d) if default in the Borrower shall fail to perform observance or performance of any term, covenant other provision hereof or agreement contained herein or in of any of the other Loan Documents Document which is not remedied within thirty (other than those specified in subsections 30) days after the earlier of (a), (b), and (ci) above) and the date on which such failure shall not be remedied within 30 days after first become known to any Loan Party or (ii) written notice of such failure shall have been thereof is given to the Borrower by the Administrative Agent or any Lender; provided, however, that if such default is susceptible of cure, but cannot reasonably be cured within such thirty (30) day period and provided, further that Borrower shall have commenced to cure such default within such thirty (30) day period and thereafter diligently and expeditiously proceeds to cure the Bankssame, such thirty (30) day period shall be extended for such time as is reasonably necessary for Borrower in NAI-5000431466v13 the exercise of due diligence to cure such Default, such additional period not to exceed thirty (30) days;
(e) if any representation or warranty contained in this Agreement made herein or in any document other Loan Document or instrument delivered in any certificate furnished to the Agent or the Lenders pursuant to hereto or thereto or in connection with this Agreement shall prove to have been false any transaction contemplated hereby or thereby proves untrue in any material respect upon as of the date when made of the issuance or repeatedmaking or deemed making thereof;
(fi) if any event occurs or condition exists (other than those described in subsections (a) through (d) above) which is specified as an event of default under any of the other Loan Documents, (ii) any of the Loan Documents shall for any reason not be or shall cease to be in full force and effect or is declared to be null and void, or (iii) any Loan Party takes any action for the purpose of terminating, repudiating or rescinding any Loan Document executed by it or any of its obligations thereunder except as expressly permitted by the terms hereof;
(i) default shall occur under (x) any Material Indebtedness of any Loan Party, (y) any Material Indebtedness that is Recourse Indebtedness of any Subsidiary of any Loan Party, or (z) any indenture, agreement or other instrument under which the Indebtedness referred to in the foregoing clause (x) or (y) may be issued, and, in each case, such default shall continue for a period of time sufficient to permit the acceleration of the maturity of any such Indebtedness (whether or not such maturity is in fact accelerated), or (ii) any such Indebtedness referred to in the foregoing clause (i)(x) or (i)(y) shall not be paid when due (whether by demand, lapse of time, acceleration or otherwise);
(i) any judgment or judgments, writ or writs or warrant or warrants of attachment, or any similar process or processes, shall be entered or filed against any Loan Party or any Subsidiary of a Loan Party or against any of their respective Property, in an aggregate amount for all such Persons in excess of $50,000,000 (except to the extent covered by insurance pursuant to which the insurer has not disputed coverage), and which remains undischarged, unvacated, unbonded or unstayed for a period of 30 days, or any action shall be legally taken by a judgment creditor to attach or levy upon any Property of any Loan Party to enforce any such judgment, or (ii) any Loan Party shall fail within thirty (30) days to discharge one or more non-monetary judgments or orders which, individually or in the aggregate, could reasonably be expected to have a Material Adverse Effect, which judgments or orders, in any such case, are not stayed on appeal or otherwise being appropriately contested in good faith by proper proceedings diligently pursued;
(i) (i) an ERISA Event occurs or (ii) the Borrower or any of its Subsidiaries shall fail ERISA Affiliate fails to pay when due, or within after the expiration of any applicable period of gracegrace period, any Indebtedness or obligations under Swap Contracts in an aggregate amount greater than $75,000,000, or fail to observe or perform any material term, covenant or agreement contained in any one or more agreements by which it is bound, evidencing or securing any Indebtedness or obligations under Swap Contracts in an aggregate amount greater than $75,000,000 for such period of time as would permit, or would have permitted (assuming the giving of appropriate notice if required) the holder or holders thereof or of any obligations issued thereunder to accelerate the maturity thereof or terminate its commitment installment payment with respect theretoto its withdrawal liability under Section 4201 of ERISA, in each case, which, individually or in the aggregate, could reasonably be expected to have a Material Adverse Effect;
(gj) if any Change of Control shall occur;
(k) the REIT, the Borrower, the any Joint Venture Guarantor or any Significant Material Subsidiary makes within the meaning of clause (a) or (c) of the definition thereof shall (i) have entered involuntarily against it an order for relief under the United States Bankruptcy Code, as amended, (ii) not pay, or admit in writing in a legal proceeding its inability to pay, its debts generally as they become due, (iii) make an assignment for the benefit of creditors, (iv) apply for, seek, consent to or admits in writing its inability to pay or generally fails to pay its debts as they mature or become dueacquiesce in, or petitions or applies for the appointment of a trustee or other receiver, custodian, trustee, examiner, liquidator or receiver of the Borrower, the Guarantor similar official for it or any Significant Subsidiary, or of any substantial part of its Property, (v) institute any proceeding seeking to have entered against it an order for relief under the assets of the BorrowerUnited States Bankruptcy Code, the Guarantor as amended, to adjudicate it insolvent, or any Significant Subsidiary or commences any case or other proceeding relating to the Borrowerseeking dissolution, the Guarantor or any Significant Subsidiary under any bankruptcywinding up, liquidation, NAI-5000431466v13 reorganization, arrangement, insolvencyadjustment or composition of it or its debts under any law relating to bankruptcy, readjustment insolvency or reorganization or relief of debt, dissolution debtors or liquidation fail to file an answer or similar law other pleading denying the material allegations of any jurisdictionsuch proceeding filed against it, now (vi) take partnership, membership or hereafter corporate action authorizing any matter described 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, the Guarantor or any Significant Subsidiary or the Borrower, the Guarantor or any Significant Subsidiary 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 Borrower or the Guarantor or any Significant Subsidiary 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 or the Guarantor or any Significant Subsidiary in an involuntary case under federal bankruptcy laws of any jurisdiction as now or hereafter constituted;
parts (i) if there shall remain in force, undischarged, unsatisfied and unstayed, for more than thirty days, whether or not consecutive, any final judgment against the Borrower or any Subsidiary which, with other outstanding final judgments against the Borrower and its Subsidiaries, exceeds in the aggregate $50,000,000 after taking into account any undisputed insurance coverage;
through (jv) if, with respect to any Guaranteed Pension Plan, an ERISA Reportable Event shall have occurred and the Banks shall have determined in their reasonable discretion that such event reasonably could be expected to result in liability of the Borrower or any Subsidiary to the PBGC or such Plan in an aggregate amount exceeding $50,000,000 and such event in the circumstances occurring reasonably could constitute grounds for the partial or complete termination of such Plan by the PBGC or for the appointment by the appropriate United States District Court of a trustee to administer such Plan; or a trustee shall have been appointed by the appropriate United States District Court to administer such Plan; or the PBGC shall have instituted proceedings to terminate such Plan;
(k) if 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 Banksabove, or (vii) fail to contest in good faith any action at law, suit appointment or proceeding described 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 Borrower, the Guarantor, or any of their respective stockholders, 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 effect that, any one or more of the Loan Documents is illegal, invalid or unenforceable in accordance with the terms thereofSection 9.1(k); or
(l) if a custodian, receiver, trustee, examiner, liquidator or similar official shall be appointed for the REIT, the Borrower, any person Joint Venture Guarantor or group of persons (any Material Subsidiary within the meaning of Section 13 clause (a) or 14 (c) of the Securities Exchange Act definition thereof, or any substantial part of 1934any of its Assets, as amendedor a proceeding described in Section 9.1(k)(v) shall have acquired beneficial ownership (within be instituted against the meaning REIT, the Borrower, any Joint Venture Guarantor or any such Material Subsidiary, and such appointment continues undischarged or such proceeding continues undismissed or unstayed for a period of Rule 13d-3 promulgated by 60 days; then, and in any such event, the Securities and Exchange Commission under said Act) of 25% or more Agent may, and, upon the request of the outstanding shares Majority Lenders, shall by notice in writing to the Borrower declare all amounts owing with respect to this Agreement, the Notes, the Letters of common voting stock Credit and the other Loan Documents to be, and they shall thereupon forthwith become, 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 any Event of Default specified in Section 9.1(k) or during Section 9.1(l) shall occur with respect to the Borrower, REIT or any period other Guarantor, all such amounts shall become immediately due and payable automatically and without any requirement of twelve consecutive calendar monthspresentment, individuals who were directors demand, protest or other notice of any kind from any of the Lenders or the Agent, the Borrower on hereby expressly waiving any right to notice of intent to accelerate and notice of acceleration. Upon demand by the first day Agent or the Required Dollar Revolving Credit Lenders in their absolute and sole discretion after the occurrence and during the continuance of an Event of Default, and regardless of whether the conditions precedent in this Agreement for a Dollar Revolving Credit Loan have been satisfied, the Dollar Revolving Credit Lenders will cause a Dollar Revolving Credit Loan to be made in the undrawn amount of all Dollar Letters of Credit. Upon demand by the Agent or the Required Alternative Currency Revolving Lenders in their absolute and sole discretion after the occurrence and during the continuance of an Event of Default, and regardless of whether the conditions precedent in this Agreement for an Alternative Currency Loan have been satisfied, the Alternative Currency Revolving Lenders will cause an Alternative Currency Loan to be made in the undrawn amount of all Alternative Currency Letters of Credit (in equivalent currency). The proceeds of any such Revolving Credit Loans will be pledged to and held by the Agent as security for any amounts that become payable under the applicable Letters of Credit and all other Obligations and Hedge Obligations. In the alternative, if demanded by the Agent in its absolute and sole discretion after the occurrence and during the continuance of an Event of Default, the Borrower will deposit into the Collateral Account and pledge to the Agent cash in an amount equal to the amount of all undrawn Letters of Credit. Such amounts will be pledged to and held by the Agent for the benefit of the applicable Revolving Credit Lenders and the Lender Hedge Providers as security for any amounts that become payable under the Letters of Credit and all other Obligations and Hedge Obligations. Upon any draws under Letters of Credit, at the Agent’s sole discretion, the Agent may apply any such amounts to the repayment of amounts drawn thereunder and upon the expiration of the Letters of Credit any remaining amounts will be applied to the payment of all other Obligations and Hedge Obligations or if there NAI-5000431466v13 are no outstanding Obligations and Hedge Obligations and the Revolving Credit Lenders have no further obligation to make Revolving Credit Loans or issue Letters of Credit or if such excess no longer exists, such proceeds deposited by the Borrower will be released to the Borrower. If any Default shall occur solely as a result of circumstances affecting certain Unencumbered Pool Assets or the owner(s) thereof (such that such Default would be cured by the removal of such period Unencumbered Pool Asset(s)), then the Borrower may elect to cure such Default (together with any new directors whose election so long as no other Default or Event of Default would arise as a result) by electing to remove such board or whose nomination for election by Unencumbered Pool Assets from the shareholders calculation of the Unencumbered Pool Aggregate Asset Value in accordance with the terms of Section 2.16(b) and, to the extent required hereunder in connection with such removal, by reducing the outstanding Loans and Letters of Credit or other Unsecured Indebtedness of REIT and its Subsidiaries so that no Default exists under this Agreement, in which event such removal and reduction shall be completed within fifteen (15) Business Days after the earlier of (i) the date on which such Default shall first become known to any Loan Party or (ii) the delivery of written notice thereof to the Borrower was approved by a vote of a majority of from the directors still in office who were either directors at the beginning of such period Agent or whose election or nomination for election was previously so approved) shall cease to constitute a majority of the board of directors of the Borrower;any Lender.
Appears in 1 contract
Sources: Credit Agreement (Blue Owl Real Estate Net Lease Trust)
Events of Default and Acceleration. If any of the following events (“"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 or lapse of time, “"Defaults”") shall occur:
(a) if the Borrower shall fail to pay any principal of the Loans within five (5) days after the same shall become due and payable;
(b) the Borrower shall fail to pay any interest on the Loans or any other sums due hereunder or under any of the other Loan Documents when 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;
(b) if the Borrower shall fail to pay any interest or fees or other amounts owing hereunder (other than those specified in subsection (a) above) within five (5) Business Days after the same shall become due and payable whether at the Maturity Date or any accelerated date of maturity or at any other date fixed for payment;
(c) if the Borrower or the Company shall fail to comply with any of the its covenants contained in §§7.4, Section 7.5, 7.15the first sentence of Section 7.6, 7.16Section 7.7, Section 7.13, Section 8 and or Section 9 hereof;
(d) if the Borrower or any Guarantor shall fail to perform any other term, covenant or agreement contained herein or in any of the other Loan Documents (other than those specified elsewhere in subsections this Section 12) for thirty (a), (b), and (c30) above) and such failure shall not be remedied within 30 days after written notice of such failure shall have been given from Agent to the Borrower by the Administrative Agent or any of the BanksBorrower;
(e) if any representation or warranty contained of the Borrower in this Agreement or any of the other Loan Documents or in any other document or instrument delivered pursuant to or in connection with this Agreement Agreement, shall prove to have been false in any material respect upon the date when made or deemed to have been made or repeated, provided, however, that with respect to the representations and warranties of the Borrower contained in Section 6.2, Section 6.3, Section 6.13, Section 6.18 and Section 6.21, if the condition or event making the representation and warranty false is capable of being cured by the Borrower, no enforcement action has been commenced against the Borrower or the applicable Unencumbered Property or Unencumbered Development Property on account of such condition or event nor is the applicable Unencumbered Property or Unencumbered Development Property subject to risk of forfeiture due to such condition or event, and the Borrower promptly commences the cure thereof after the Borrower's first obtaining knowledge of such condition or event, the Borrower shall have a period of thirty (30) days after the date that the Borrower first obtained knowledge of such condition or event during which the Borrower may cure such condition or event (or, if such condition or event is not reasonably capable of being cured within such thirty (30) day period, such additional period of time as may be reasonably required in order to cure such condition or event but in any event such period shall not exceed six (6) months from the date that the Borrower first obtained knowledge of such condition or event), and no Event of Default shall exist hereunder during such thirty (30) day or additional period so long as the Borrower continuously and diligently pursues the cure of such condition or event and the other conditions to such cure period have not changed;
(f) if the Borrower Borrower, the Company or any of its Subsidiaries the Related Companies shall fail to pay when dueat maturity, or within any applicable period of grace, any Indebtedness or obligations under Swap Contracts in an aggregate amount greater than $75,000,000Recourse Indebtedness, or shall fail to observe or perform any material term, covenant or agreement contained in any one or more agreements agreement by which it is bound, evidencing or securing any Indebtedness or obligations under Swap Contracts in an aggregate amount greater than $75,000,000 for such period of time as would permit, or would have permitted permit (assuming the giving of appropriate notice if required) the holder or holders thereof or of any obligations issued thereunder to accelerate the maturity thereof or terminate its commitment with respect theretothereof, and in any event, such failure shall continue for thirty (30) days, unless the aggregate amount of all such defaulted Recourse Indebtedness plus the amount of any unsatisfied judgments described in paragraph (i) of this Section 12.1 is less than $30,000,000.00;
(g) if any of the Borrower, the Guarantor Company or any Significant Subsidiary makes Guarantor shall make an assignment for the benefit of creditors, or admits admit in writing its inability to pay or generally fails fail to pay its debts as they mature or become due, or petitions shall petition or applies apply for the appointment of a trustee or other custodian, liquidator or receiver of the Borrower, the Guarantor or any Significant Subsidiary, or of any substantial part of the assets of the Borrower, the Guarantor its properties or any Significant Subsidiary or commences shall commence any case or other proceeding relating to the Borrower, the Guarantor or any Significant Subsidiary 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 shall take any action to authorize or in furtherance of any of the foregoing, or if any such petition or application is shall be filed or any such case or other proceeding is shall be commenced against the Borrower, the Guarantor or any Significant Subsidiary or the Borrower, the Guarantor or any Significant Subsidiary indicates such Person and such Person shall indicate its approval thereof, consent thereto or acquiescence thereintherein or any of the events described in this paragraph shall occur with respect to any other Related Company or any Unconsolidated Entity and such event shall have a Material Adverse Effect;
(h) if a decree or order is entered appointing any such trustee, custodian, liquidator or receiver or adjudicating the Borrower or Borrower, the Guarantor Company, or any Significant Subsidiary 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 or Borrower, the Guarantor Company, or any Significant Subsidiary Guarantor in an involuntary case under federal bankruptcy laws of any jurisdiction as now or hereafter constitutedconstituted or any of the events described in this paragraph shall occur with respect to any other Related Company or any Unconsolidated Entity and such event shall have a Material Adverse Effect;
(i) if there shall remain in force, undischarged, unsatisfied and unstayed, for more than thirty days, whether or not consecutive, any uninsured final judgment against the Borrower or any Subsidiary whichthat, with other outstanding uninsured final judgments judgments, undischarged, against the Borrower and its SubsidiariesBorrower, the Company or any of the Related Companies plus the amount of any defaulted Recourse Indebtedness under paragraph (f) of this Section 12.1, exceeds in the aggregate $50,000,000 after taking into account any undisputed insurance coverage30,000,000.00;
(j) if, with respect to any Guaranteed Pension Plan, an ERISA Reportable Event shall have occurred and the Banks shall have determined in their reasonable discretion that such event reasonably could be expected to result in liability of the Borrower or any Subsidiary to the PBGC or such Plan in an aggregate amount exceeding $50,000,000 and such event in the circumstances occurring reasonably could constitute grounds for the partial or complete termination of such Plan by the PBGC or for the appointment by the appropriate United States District Court of a trustee to administer such Plan; or a trustee shall have been appointed by the appropriate United States District Court to administer such Plan; or the PBGC shall have instituted proceedings to terminate such Plan;
(k) if any of the Loan Documents or any material provision of any Loan Documents shall be unenforceable, 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 BanksAgent, or any action at law, suit or in equity or other legal proceeding to make unenforceable, cancel, revoke or rescind any of the Loan Documents shall be commenced by or on behalf of the Borrower, the Guarantor, Borrower or any of their respective stockholdersGuarantor, 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 effect that, any one or more of the Loan Documents is illegal, invalid or unenforceable in accordance with the terms thereof; or;
(k) the Borrower or any Guarantor shall be indicted for a federal crime, a punishment for which could include the forfeiture of any assets of the Borrower;
(l) if the Borrower shall fail to pay, observe or perform any person term, covenant, condition or group of persons (within the meaning of Section 13 agreement contained in any agreement, document or 14 instrument evidencing, securing or otherwise relating to any Indebtedness of the Securities Exchange Act Borrower to any Lender (other than the Obligations) and/or relating to any Permitted Lien (other than the Obligations) within any applicable period of 1934grace provided for in such agreement, document or instrument;
(m) any "Event of Default", 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 25% or more defined in any of the outstanding shares other Loan Documents or in the Subordinated Debenture Indenture, shall occur; then, and in any such event, so long as the same may be continuing, the Agent may, and upon the request of common voting stock the Requisite Lenders shall, by notice in writing to the Borrower declare all amounts owing with respect to this Agreement, the Notes and the other Loan Documents to be, and they shall thereupon forthwith become, 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 12.1(g) or during 12.1(h), all such amounts shall become immediately due and payable automatically and without any period requirement of twelve consecutive calendar months, individuals who were directors of notice from the Borrower on the first day of such period (together with any new directors whose election by such board Agent or whose nomination for election action by the shareholders of the Borrower was approved by a vote of a majority of the directors still in office who were either directors at the beginning of such period or whose election or nomination for election was previously so approved) shall cease to constitute a majority of the board of directors of the Borrower;Requisite Lenders.
Appears in 1 contract
Sources: Credit Agreement (Liberty Property Limited Partnership)
Events of Default and Acceleration. If any of the following events (“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 or lapse of time, “Defaults”) shall occur:
(a) if the Borrower shall fail to pay any principal of the Loans when 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;
(b) if the Borrower shall fail to pay any interest or fees or other amounts owing hereunder (other than those specified in subsection (a) above) on the Loans within five (5) Business Days after of the date that the same shall become due and payable payable, or any fees or other sums due hereunder (other than any voluntary prepayment) or under any of the other Loan Documents within five (5) days after notice from Agent, whether at the Maturity Date stated date of maturity or any accelerated date of maturity or at any other date fixed for payment;
(c) if any of the Borrower Credit Parties or any of their respective Subsidiaries shall fail to comply with perform or shall violate any of the covenants other term, covenant or agreement contained in §8.1, §7.48.2, 7.58.3, 7.15§8.4, 7.16§8.5, 8 and §8.7, §8.8, §8.10, §8.12 or §9 hereof(other than those specified in the other subclauses of this §12, if any);
(d) if any of the Borrower Credit Parties shall fail to perform any other term, covenant or agreement contained herein or in any of the other Loan Documents which they are required to perform (other than those specified in subsections (athe other subclauses of this §12 or in the other Loan Documents), (b), and (c) above) and such failure shall not be remedied within 30 continue for thirty (30) days after Borrower receives from Agent written notice of such failure shall have been given to the Borrower by the Administrative Agent or any of the Banksthereof;
(e) if any material representation or warranty contained made by or on behalf of the Credit Parties or any of their respective Subsidiaries in this Agreement or any other Loan Document, or any report, certificate, financial statement, request for a Loan, or in any other document or instrument delivered pursuant to or in connection with this Agreement or any of the other Loan Documents shall prove to have been false in any material respect upon the date when made or deemed to have been made or repeated;
(f) if any of the Borrower Credit Parties or their Subsidiaries (or any Affiliate of its the Advisor, the Credit Parties or their Subsidiaries that derives income from the REIT) shall fail to pay when duedue (including, without limitation, at maturity), or within any applicable period of notice and grace, any Indebtedness principal, interest or obligations under Swap Contracts in an aggregate other amount greater than $75,000,000on account of any obligation for borrowed money or credit received or other Indebtedness, or shall fail to observe or perform any material term, covenant or agreement contained in any one or more agreements agreement by which it is bound, evidencing or securing any obligation for borrowed money or credit received or other Indebtedness; provided that the events described in this §12.1(f) shall not constitute an Event of Default unless such failure to perform, together with other failures to perform as described in §12.1(f), involve singly or in the aggregate obligations for borrowed money or credit received or other Indebtedness or obligations under Swap Contracts totaling in an aggregate amount greater than excess of $75,000,000 for such period of time as would permit, or would have permitted (assuming the giving of appropriate notice if required) the holder or holders thereof or of any obligations issued thereunder to accelerate the maturity thereof or terminate its commitment with respect thereto1,000,000;
(g) if any of the Borrower, the Guarantor Credit Parties or any Significant Subsidiary makes their Subsidiaries (i) shall make an assignment for the benefit of creditors, or admits admit in writing writing, in a legal proceeding, its general inability to pay or shall generally fails fail to pay its debts as they mature or become due, or petitions shall petition or applies apply for the appointment of a trustee or other custodian, liquidator or receiver of the Borrower, the Guarantor for it or any Significant Subsidiary, or of any substantial part of the assets of the Borrowerits assets, the Guarantor or any Significant Subsidiary or commences (ii) shall commence any case or other proceeding relating to the Borrower, the Guarantor or any Significant Subsidiary it 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 (iii) shall take any action to authorize or in furtherance of any of the foregoing, or if any such ;
(h) a petition or application is shall be filed for the appointment of a trustee or other custodian, liquidator or receiver of any of the Credit Parties or their Subsidiaries or any such substantial part of the assets of any thereof, or a case or other proceeding is shall be commenced against the Borrowerany such Person under any bankruptcy, the Guarantor reorganization, arrangement, insolvency, readjustment of debt, dissolution or liquidation or similar law of any Significant Subsidiary jurisdiction, now or the Borrowerhereafter in effect, the Guarantor or and any Significant Subsidiary indicates such Person shall indicate its approval thereof, consent thereto or acquiescence thereintherein or such petition, application, case or proceeding shall not have been dismissed within ninety (90) days following the filing or commencement thereof;
(hi) if a decree or order is entered appointing any such a trustee, custodian, liquidator or receiver for any of the Credit Parties or their respective Subsidiaries or adjudicating the Borrower or the Guarantor or any Significant Subsidiary such Person 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 or the Guarantor or any Significant Subsidiary such Person in an involuntary case under federal bankruptcy laws of any jurisdiction as now or hereafter constituted;
(ij) if there shall remain in force, undischarged, unsatisfied and unstayed, for more than thirty days, whether (30) days one or not consecutive, any final judgment against the Borrower more uninsured or any Subsidiary which, with other outstanding unbonded final judgments against any Credit Party or their respective Subsidiaries that, either individually or in the Borrower and its Subsidiariesaggregate, exceeds in the aggregate $50,000,000 after taking into account any undisputed insurance coverage;
(j) if, with respect to any Guaranteed Pension Plan, an ERISA Reportable Event shall have occurred and the Banks shall have determined in their reasonable discretion that such event reasonably could be expected to result in liability of the Borrower or any Subsidiary to the PBGC or such Plan in an aggregate amount exceeding $50,000,000 and such event in the circumstances occurring reasonably could constitute grounds for the partial or complete termination of such Plan by the PBGC or for the appointment by the appropriate United States District Court of a trustee to administer such Plan; or a trustee shall have been appointed by the appropriate United States District Court to administer such Plan; or the PBGC shall have instituted proceedings to terminate such Plan10,000,000;
(k) if any of the Loan Documents shall be cancelledcanceled, terminated, revoked or rescinded otherwise than in accordance with the terms thereof or with hereof or the express prior written agreement, consent or approval of the BanksRequired Lenders, or any action at law, suit or in equity equity, or other legal proceeding to cancel, revoke revoke, rescind or rescind challenge the validity or enforceability any of the Loan Documents shall be commenced by or on behalf of the Borrower, the Guarantor, or any of their respective stockholdersthe Credit Parties, or any court or any other governmental or regulatory authority or agency of competent jurisdiction shall make a determination thatdetermination, or issue a judgment, order, decree or ruling ruling, to the effect that, that any one or more of the Loan Documents is illegal, invalid or unenforceable in accordance with the terms thereof; or
(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 25% or more of the outstanding shares of common voting stock of the Borrower; or during any period of twelve consecutive calendar months, individuals who were directors of the Borrower on the first day of such period (together with any new directors whose election by such board or whose nomination for election by the shareholders of the Borrower was approved by a vote of a majority of the directors still in office who were either directors at the beginning of such period or whose election or nomination for election was previously so approved) shall cease to constitute a majority of the board of directors of the Borrower;
Appears in 1 contract
Events of Default and Acceleration. If any of the following events (“"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 or lapse of time, “"Defaults”") shall occur:
(a) if the Borrower shall fail to pay any principal of the Revolving Credit Loans when 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;
(b) if the Borrower shall fail to pay any interest or fees on the Revolving Credit Loans, the commitment fee or other amounts owing sums due hereunder (or under any of the other than those specified in subsection (a) above) within five (5) Business Days after Loan Documents, when the same shall become due and payable payable, whether at the Maturity Date stated date of maturity or any accelerated date of maturity or at any other date fixed for paymentpayment and such failure shall continue for a period of three (3) Business Days;
(c) if the Borrower shall fail to comply with any of the its covenants contained in §§7.4Section 8.1, 7.58.4 - 8.7, 7.158.9, 7.168.10, 8 and 9 hereof8.12, 8.14 or 9.1 - 9.4;
(d) if the Borrower shall fail to perform any term, covenant or agreement contained herein or in any of the other Loan Documents (other than those specified elsewhere in subsections this Section 12.1) for fifteen (a), (b), and (c15) above) and such failure shall not be remedied within 30 days after written notice of such failure shall have has been given to the Borrower by the Administrative Agent or any of the BanksAgent;
(e) if any representation or warranty contained of the Borrower or any Subsidiary in this Credit Agreement or any of the other Loan Documents or in any other document or instrument delivered pursuant to or in connection with this Credit Agreement shall prove to have been false in any material respect upon the date when made or deemed to have been made or repeated;
(f) if the Borrower or any of its Subsidiaries shall fail to pay when dueat maturity, or within any applicable period of grace, any Indebtedness obligation for borrowed money or credit received or in respect of any Capitalized Leases, in either case with respect to obligations under Swap Contracts in an aggregate amount greater than excess of 48 50 $75,000,000100,000, or fail to observe or perform any material term, covenant or agreement contained in any one or more agreements agreement by which it is bound, evidencing or securing borrowed money or credit received or in respect of any Indebtedness or Capitalized Leases, in either case with respect to obligations under Swap Contracts in an aggregate amount greater than excess of $75,000,000 100,000, for such period of time as would permit, or would have permitted permit (assuming the giving of appropriate notice if required) the holder or holders thereof or of any obligations issued thereunder to accelerate the maturity thereof or terminate its commitment with respect thereto;thereof, and shall not cure such failure within three (3) Business Days thereof.
(g) if the Borrower, the Guarantor or any Significant Subsidiary makes Borrower shall make an assignment for the benefit of creditors, or admits admit in writing its inability to pay or generally fails fail to pay its debts as they mature or become due, or petitions shall petition or applies apply for the appointment of a trustee or other custodian, liquidator or receiver of the Borrower, the Guarantor Borrower or any Significant Subsidiary, of its Subsidiaries or of any substantial part of the assets of the Borrower, the Guarantor Borrower or any Significant Subsidiary of its Subsidiaries or commences shall commence any case or other proceeding relating to the Borrower, the Guarantor Borrower or any Significant Subsidiary of 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 shall take any action to authorize or in furtherance of any of the foregoing, or if any such petition or application is shall be filed or any such case or other proceeding is shall be commenced against the Borrower, the Guarantor Borrower or any Significant of its Subsidiaries and the Borrower or such Subsidiary or the Borrower, the Guarantor or any Significant Subsidiary indicates shall indicate its approval thereof, consent thereto or acquiescence thereintherein or such petition or application shall not have been dismissed within sixty (60) days following the filing thereof;
(h) if a decree or order is entered appointing any such trustee, custodian, liquidator or receiver or adjudicating the Borrower or the Guarantor or any Significant Subsidiary of 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 in respect of the Borrower or the Guarantor or any Significant Subsidiary of its Subsidiaries in an involuntary 49 51 case under federal bankruptcy laws of any jurisdiction as now or hereafter constituted;
(i) if there shall remain in force, undischarged, unsatisfied and unstayed, for more than thirty days, whether or not consecutive, any final judgment against the Borrower or any Subsidiary whichof its Subsidiaries that, with other outstanding final judgments judgments, undischarged, against the Borrower and or any of its Subsidiaries, Subsidiaries exceeds in the aggregate $50,000,000 after taking into account any undisputed insurance coverage100,000;
(j) if, with respect to any Guaranteed Pension Plan, an ERISA Reportable Event shall have occurred and the Banks shall have determined in their reasonable discretion that such event reasonably could be expected to result in liability of the Borrower or any Subsidiary to the PBGC or such Plan in an aggregate amount exceeding $50,000,000 and such event in the circumstances occurring reasonably could constitute grounds for the partial or complete termination of such Plan by the PBGC or for the appointment by the appropriate United States District Court of a trustee to administer such Plan; or a trustee shall have been appointed by the appropriate United States District Court to administer such Plan; or the PBGC shall have instituted proceedings to terminate such Plan;
(k) if any of the Loan Documents shall be cancelledcanceled, 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 accordance with the terms thereof or with the express prior written agreement, consent or approval of the Banks, 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 or on behalf of the Borrower, the Guarantor, Borrower or Subsidiary party thereto or any of their respective its stockholders, 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 effect that, any one or more of the Loan Documents is illegal, invalid or unenforceable in accordance with the terms thereof; or,
(lk) if with respect to any person or group of persons (within the meaning of Section 13 or 14 of the Securities Exchange Act of 1934Guaranteed Pension Plan, as amended) an ERISA Reportable Event shall have acquired beneficial ownership (within occurred and the meaning of Rule 13d-3 promulgated by the Securities and Exchange Commission under said Act) of 25% or more of the outstanding shares of common voting stock of the Borrower; or during any period of twelve consecutive calendar months, individuals who were directors Majority Banks shall have determined in their reasonable discretion that such event reasonably could be expected to result in liability of the Borrower on or any of its Subsidiaries to the first day PBGC or such Guaranteed Pension Plan in an aggregate amount exceeding $100,000 and such event in the circumstances occurring reasonably could constitute grounds for the termination of such period (together with any new directors whose election by such board or whose nomination for election Guaranteed Pension Plan by the shareholders of PBGC or for the Borrower was approved appointment by a vote the appropriate United States District Court of a majority of trustee to administer such Guaranteed Pension Plan; or a trustee shall have been appointed by the directors still in office who were either directors at the beginning of such period or whose election or nomination for election was previously so approved) shall cease to constitute a majority of the board of directors of the Borrower;United
Appears in 1 contract
Sources: Revolving Credit Agreement (Bridgestreet Accommodations Inc)
Events of Default and Acceleration. If any of the following events (“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 or lapse of time, “Defaults”) shall occur:
(a) if the Borrower Borrowers shall fail to pay any principal of the Loans when 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;
(b) if the Borrower Borrowers shall fail to pay any interest or fees or other amounts owing hereunder (other than those specified in subsection (a) above) on the Loans within five (5) Business Days after days of the date that the same shall become due and payable or any fees or other sums due hereunder (other than any voluntary prepayment) or under any of the other Loan Documents within five (5) days after notice from Agent, whether at the Maturity Date 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 any of the covenants contained in §§7.4, 7.5, 7.15, 7.16, 8 and 9 hereof[Reserved];
(d) if any of the Borrower Borrowers or the other Credit Parties or any of their respective Subsidiaries shall fail to perform any other term, covenant or agreement contained in §9.1, §9.2, §9.3, §9.4, §9.5, §9.6 or §9.7, in each case without prepaying a portion of the Loan in order to comply with such financial covenant within fifteen (15) days after written notice of a Default under this §12.1(d);
(e) any of the Borrowers or the other Credit Parties shall fail to perform any other term, covenant or agreement contained herein or in any of the other Loan Documents which they are required to perform (other than those specified in subsections the other subclauses of this §12 (aincluding, without limitation, §12.2 below) or in the other Loan Documents), (b), and (c) above) and such failure shall continue for thirty (30) days after Borrower receives from Agent written notice thereof, and in the case of a default that cannot be remedied cured within 30 such thirty (30)-day period despite Borrower’s diligent efforts but is susceptible of being cured within ninety (90) days after written notice of such failure Borrower’s receipt of Agent’s original notice, then Borrower shall have been given such additional time as is reasonably necessary to effect such cure, but in no event in excess of ninety (90) days from Borrower’s receipt of Agent’s original notice; provided that the Borrower foregoing cure provisions shall not pertain to any default consisting of a failure to comply with §8.4, §8.7, or to any Default excluded from any provision of cure of defaults contained in any other of the Loan Documents and with respect to any defaults under §8.1, §8.2, §8.3, §8.4, §8.7 or §8.8, the thirty (30) day cure period described above shall be reduced to a period of ten (10) days and no additional cure period shall be provided with respect to such defaults;
(f) any material representation or warranty made by or on behalf of the Administrative Agent Credit Parties or any of the Banks;
(e) if any representation or warranty contained their respective Subsidiaries in this Agreement or any other Loan Document, or any report, certificate, financial statement, request for a Loan, or in any other document or instrument delivered pursuant to or in connection with this Agreement Agreement, any advance of a Loan, or any of the other Loan Documents shall prove to have been false in any material respect upon the date when made or repeated;
(f) if deemed to have been made or repeated except to the Borrower or any of its Subsidiaries shall fail to pay when due, or within any applicable period of grace, any Indebtedness or obligations under Swap Contracts in an aggregate amount greater than $75,000,000, or fail to observe or perform any material term, covenant or agreement contained in any one or more agreements by which extent it is bound, evidencing or securing any Indebtedness or obligations under Swap Contracts in an aggregate amount greater than $75,000,000 for such period of time as would permit, or would not reasonably expected to have permitted (assuming the giving of appropriate notice if required) the holder or holders thereof or of any obligations issued thereunder to accelerate the maturity thereof or terminate its commitment with respect theretoa Material Adverse Effect;
(g) if the Any (a) Borrower or other Credit Party defaults under any recourse Indebtedness with respect to all uncured defaults at any time, or (b) Borrower, the Guarantor or Subsidiary thereof defaults under any Significant Subsidiary makes Non-Recourse Indebtedness in an aggregate amount equal to or greater than $50,000,000 with respect to all uncured defaults at any time;
(h) any of the Borrowers or other Credit Party, (i) shall make an assignment for the benefit of creditors, or admits admit in writing its general inability to pay or generally fails fail to pay its debts as they mature or become due, or petitions shall petition or applies apply for the appointment of a trustee or other custodian, liquidator or receiver of the Borrower, the Guarantor for it or any Significant Subsidiary, or of any substantial part of the assets of the Borrowerits assets, the Guarantor or any Significant Subsidiary or commences (ii) shall commence any case or other proceeding relating to the Borrower, the Guarantor or any Significant Subsidiary it 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 (iii) shall take any action to authorize any of the foregoing;
(i) a petition or in furtherance application shall be filed for the appointment of a trustee or other custodian, liquidator or receiver of any of the foregoingBorrowers or other Credit Party or any substantial part of the assets of any thereof, or if any such petition or application is filed or any such a case or other proceeding is shall be commenced against the Borrowerany such Person under any bankruptcy, the Guarantor reorganization, arrangement, insolvency, readjustment of debt, dissolution or liquidation or similar law of any Significant Subsidiary jurisdiction, now or the Borrowerhereafter in effect, the Guarantor or and any Significant Subsidiary indicates such Person shall indicate its approval thereof, consent thereto or acquiescence thereintherein or such petition, application, case or proceeding shall not have been dismissed within ninety (90) days following the filing or commencement thereof;
(hj) if a decree or order is entered appointing any such a trustee, custodian, liquidator or receiver for any of the Borrowers or other Credit Party or adjudicating the Borrower or the Guarantor or any Significant Subsidiary such Person, 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 or the Guarantor or any Significant Subsidiary such Person in an involuntary case under federal bankruptcy laws of any jurisdiction as now or hereafter constituted;
(ik) if there shall remain in force, undischarged, unsatisfied and unstayed, for more than thirty sixty (60) days, whether one or not consecutive, any more uninsured or unbonded final judgment judgments against the Guarantor or Parent Borrower or any Subsidiary whichCredit Party that, with other outstanding final judgments against the Borrower and its Subsidiaries, exceeds either individually or in the aggregate aggregate, exceed in excess of $50,000,000 after taking into account 5,000,000.00 in the case of the Guarantor or the Parent Borrower or $500,000.00 in the case of any undisputed insurance coverageSubsidiary Credit Party;
(jl) ifany of the material Loan Documents shall be canceled, terminated, revoked or rescinded otherwise than in accordance with the terms thereof or the express prior written agreement, consent or approval of the Required Lenders, or any action at law, suit in equity or other legal proceeding to cancel, revoke or rescind any of the material Loan Documents shall be commenced by or on behalf of any of the Credit Parties, or any court or any other governmental or regulatory authority or agency of competent jurisdiction shall make a determination, or issue a judgment, order, decree or ruling, to the effect that any one or more of the material Loan Documents is illegal, invalid or unenforceable in accordance with the terms thereof;
(m) Intentionally Deleted;
(n) with respect to any Guaranteed Pension Plan, an ERISA Reportable Event shall have occurred and the Banks shall have determined in their reasonable discretion that such event reasonably could would be expected to result in liability of any of the Borrower or any Subsidiary Credit Parties to pay money to the PBGC or such Guaranteed Pension Plan in an aggregate amount exceeding $50,000,000 1,000,000 and one of the following shall apply with respect to such event: (x) such event in the circumstances occurring reasonably could constitute grounds for would be expected to result in the partial or complete termination of such Guaranteed Pension Plan by the PBGC or for the appointment by the appropriate United States District Court of a trustee to administer such Guaranteed Pension Plan; or (y) a trustee shall have been appointed by the appropriate United States District Court to administer such Plan; or (z) the PBGC shall have instituted proceedings to terminate such Guaranteed Pension Plan;
(ko) if any Change of Control shall occur;
(p) then, and upon any such Event of Default, the Agent may, and upon the request of the Required Lenders shall, by notice in writing to the Borrowers declare all amounts owing with respect to this Agreement, the Notes, and the other Loan Documents to be, and they shall thereupon forthwith become, 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 §12.1(h), §12.1(i) or §12.1(j), all such amounts shall become immediately due and payable automatically and without any requirement of presentment, demand, protest or other notice of any kind from any of the Loan Documents shall be cancelled, terminated, revoked Lenders or rescinded otherwise than in accordance with the terms thereof or with the express prior written agreement, consent or approval of the Banks, 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 or on behalf of the Borrower, the Guarantor, or any of their respective stockholders, 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 effect that, any one or more of the Loan Documents is illegal, invalid or unenforceable in accordance with the terms thereof; or
(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 25% or more of the outstanding shares of common voting stock of the Borrower; or during any period of twelve consecutive calendar months, individuals who were directors of the Borrower on the first day of such period (together with any new directors whose election by such board or whose nomination for election by the shareholders of the Borrower was approved by a vote of a majority of the directors still in office who were either directors at the beginning of such period or whose election or nomination for election was previously so approved) shall cease to constitute a majority of the board of directors of the Borrower;Agent.
Appears in 1 contract
Events of Default and Acceleration. If any of the following events (“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, “Defaults”) shall occur:
(a) if the Borrower shall fail to pay any principal of the Loans when the same shall become due and payable, whether at the stated date of maturity Maturity Date or any accelerated date of maturity or at any other date fixed for payment;
(b) if the Borrower shall fail to pay any interest or fees or other amounts owing hereunder (other than those specified in subsection (a) above) within five (5) Business Days after the same shall become due and payable payable, whether at the Maturity Date or any accelerated date of maturity or at any other date fixed for payment;
(c) if the Borrower shall fail to comply with any of the covenants contained in §§7.4, 7.5, 7.15, 7.16, 8 and 9 hereof;
(d) if the Borrower shall fail to perform any term, covenant or agreement contained herein or in any of the other Loan Documents (other than those specified in subsections (a), (b), and (c) above) and such failure shall not be remedied within 30 days after written notice of such failure shall have been given to the Borrower by the Administrative Agent or any of the Banks;
(e) if any representation or warranty of any Loan Party contained in this Agreement or in any document or instrument delivered pursuant to or in connection with this Agreement shall prove to have been false in any material respect upon the date when made or repeated;
(f) if the Borrower or any of its Subsidiaries shall fail to pay when due, or within any applicable period of grace, any Indebtedness or obligations under Swap Contracts in an aggregate amount greater than $75,000,000200,000,000, or fail to observe or perform any material term, covenant or agreement contained in any one or more agreements by which it is bound, bound evidencing or securing any Indebtedness or obligations under Swap Contracts in an aggregate amount greater than $75,000,000 200,000,000 for such period of time as would permit, or would have permitted (assuming the giving of appropriate notice if required) the holder or holders thereof or of any obligations issued thereunder to accelerate the maturity thereof or terminate its commitment with respect thereto;
(g) if the Borrower, the Guarantor or any Significant Subsidiary makes an assignment for the benefit of creditors, makes a proposal to its creditors or files notice of its intention to do so, institutes any other proceeding under applicable law seeking to adjudicate it a bankrupt or an insolvent, or seeking liquidation, dissolution, winding-up, reorganization, compromise, arrangement, adjustment, protection, moratorium, relief, stay of proceedings of creditors, composition of it or its debts or any other similar relief, or admits in writing its inability to pay or generally fails to pay its debts as they mature or become due, or petitions or applies for the appointment of a trustee or other custodian, liquidator or receiver of the Borrower, the Guarantor or any Significant Subsidiary, or of any substantial part of the assets of the Borrower, the Guarantor or any Significant Subsidiary or commences any case or other proceeding relating to the Borrower, the Guarantor or any Significant Subsidiary 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, the Guarantor or any Significant Subsidiary or the Borrower, the Guarantor or any Significant Subsidiary 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 Borrower or Borrower, the Guarantor or any Significant Subsidiary 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 or Borrower, the Guarantor or any Significant Subsidiary in an involuntary case under federal bankruptcy laws of any jurisdiction as now or hereafter constituted;
(i) if there shall remain in force, undischarged, unsatisfied and unstayed, for more than thirty days, whether or not consecutive, any final judgment against the Borrower or any Subsidiary which, with other outstanding final judgments against the Borrower and or its Subsidiaries, exceeds in the aggregate $50,000,000 200,000,000 after taking into account any undisputed insurance coverage;
(j) Except as could not reasonably be expected to have a Material Adverse Effect, (i) if, with respect to any Guaranteed Pension Plan, an ERISA Reportable Event shall have occurred and the Banks shall have determined in their reasonable discretion that such event reasonably could be expected to result in liability of the Borrower or any Subsidiary or (ii) any event, condition or circumstances, including any failure by the Borrower or any Subsidiary to the PBGC or such perform its obligations under a Canadian Pension Plan in an aggregate amount exceeding $50,000,000 and such event in the circumstances occurring reasonably could constitute grounds for the partial or complete termination respect of such Plan by the PBGC or for the appointment by the appropriate United States District Court of a trustee to administer such Plan; or a trustee shall have been appointed by the appropriate United States District Court to administer such Plan; or the PBGC shall have instituted proceedings to terminate such Planall Canadian Pension Plans;
(k) if 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 Banks, 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 or on behalf of the any Borrower, the Guarantor, or any of their respective stockholders, 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 effect that, any one or more of the Loan Documents is illegal, invalid or unenforceable in accordance with the terms thereof; or
(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 2530% or more of the outstanding shares of common voting stock of the Borrower; or during any period of twelve consecutive calendar months, individuals who were directors of the Borrower on the first day of such period (together with any new directors whose election by such board or whose nomination for election by the shareholders of the Borrower was approved by a vote of a majority of the directors still in office who were either directors at the beginning of such period or whose election or nomination for election was previously so approved) shall cease to constitute a majority of the board of directors of the Borrower;; then, and in any such event, so long as the same may be continuing, the Administrative Agent may with the consent of the Majority Banks, and upon the request of the Majority Banks shall, by notice in writing to the Borrower, declare all amounts owing with respect to this Agreement and the other Loan Documents to be, and they shall thereupon forthwith become, immediately due and payable without presentment, demand, protest, notice of intent to accelerate, notice of acceleration to the extent permitted by law 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 §12.1(g) or 12.1(h) with respect to the Borrower or the Guarantor, all such amounts shall become immediately due and payable automatically and without any requirement of notice from the Administrative Agent or any Bank and without presentment, demand, protest, notice of intent to accelerate, notice of acceleration to the extent permitted by law or notice of any kind, all of which are hereby expressly waived by the Borrower.
Appears in 1 contract
Events of Default and Acceleration. If The occurrence and continuance of any of the following events shall constitute an event of default (each an “Events Event 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:):
(a) if the Borrower Company shall fail to pay any principal of the Loans any Loan when and as the same shall become due and payable, whether at the stated due date of maturity or any accelerated date of maturity thereof or at any other a date fixed for paymentprepayment thereof or otherwise;
(b) if the Borrower Company shall fail to pay any interest on any Loan or fees any Fee or any other amounts owing hereunder amount (other than an amount referred to in clause (a) of this Section) payable under this Agreement or under any other Loan Document, when and as the same shall become due and payable, and such failure shall continue unremedied for a period of three or more Business Days;
(c) any representation, warranty, certification or statement of fact made or deemed made by or on behalf of a Loan Party herein, in any Loan Document or in any document delivered in connection herewith or therewith shall be incorrect or misleading in any material respect when made or deemed made;
(d) default in the performance of any of the agreements or covenants of the Loan Parties set forth in Section 5.05, the first sentence and clause (iii) of the second sentence of 5.06, 5.10, 6.01, 6.04, 6.05, 6.06, 6.07, Section 6.08, Section 6.10, Section 6.11 or 6.12 after the date upon which any applicable grace or cure periods that are expressly herein provided shall have elapsed;
(e) default in the performance of any of the agreements or covenants of the Guarantor set forth in Section 6.09 and continuance of such default for a period of 30 days unless a Cure Contribution is made during such 30 days;
(f) default in the performance of any of the agreements or covenants of the Loan Parties under this Agreement or any other Loan Document (other than those specified in subsection (a) above) within five (5) Business Days after the same shall become due and payable whether at the Maturity Date or any accelerated date of maturity or at any other date fixed for payment;
(c) if the Borrower shall fail to comply with any of the covenants contained in §§7.4, 7.5, 7.15, 7.16, 8 and 9 hereof;
(d) if the Borrower shall fail to perform any term, covenant or agreement contained herein or in any of the other Loan Documents (other than those specified in subsections (aSection 7.01(a), (b), and (c), (d) or (e) above) and continuance of such failure shall not be remedied within default for a period of 30 days after written notice the date upon which (x) any Responsible Officer of a Loan Party had actual knowledge of such failure default or (y) any applicable grace or cure periods that are expressly herein provided shall have been given to the Borrower by the Administrative Agent or any of the Banks;
(e) if any representation or warranty contained in this Agreement or in any document or instrument delivered pursuant to or in connection with this Agreement shall prove to have been false in any material respect upon the date when made or repeated;
(f) if the Borrower or any of its Subsidiaries shall fail to pay when due, or within any applicable period of grace, any Indebtedness or obligations under Swap Contracts in an aggregate amount greater than $75,000,000, or fail to observe or perform any material term, covenant or agreement contained in any one or more agreements by which it is bound, evidencing or securing any Indebtedness or obligations under Swap Contracts in an aggregate amount greater than $75,000,000 for such period of time as would permit, or would have permitted (assuming the giving of appropriate notice if required) the holder or holders thereof or of any obligations issued thereunder to accelerate the maturity thereof or terminate its commitment with respect theretoelapsed;
(g) if a Material Party shall be enjoined, restrained or in any way prevented by the Borrower, the Guarantor order of any court or any Significant Subsidiary makes an assignment administrative or regulatory agency from conducting any material part of its business and such order shall continue in effect for the benefit of creditors, or more than thirty (30) days;
(h) a Material Party admits in writing its inability that it is generally unable to pay or generally fails to pay its debts as they mature or become due;
(i) a Material Party makes a general assignment for the benefit of creditors;
(j) the commencement of a proceeding by or against a Material Party under any Debtor Relief Law seeking to adjudicate a Material Party as bankrupt or insolvent, or petitions or applies for seeking the appointment of a trustee or other custodianliquidation, liquidator or receiver of the Borrower, the Guarantor or any Significant Subsidiary, or of any substantial part of the assets of the Borrower, the Guarantor or any Significant Subsidiary or commences any case or other proceeding relating to the Borrower, the Guarantor or any Significant Subsidiary under any bankruptcywinding up, reorganization, arrangement, insolvencyadjustment, readjustment protection, relief or composition of debta Material Party or its debts under any law relating to bankruptcy, dissolution insolvency or liquidation reorganization or relief of debtors, or seeking the entry of an order for relief or the appointment of a receiver, liquidator, assignee, custodian, trustee, sequestrator, debtor in possession, examiner or other similar law official for a Material Party, any substantial part of a Material Party’s property, with or without consent of such Material Party, for any purpose whatsoever and, in the case of any jurisdictionsuch proceeding instituted against a Material Party (but not instituted by it), now either such proceeding shall remain unstayed and undismissed for a period of sixty (60) days; or hereafter in effect, or takes any action to authorize or in furtherance of any of the foregoing, or if any following actions sought in such petition or application is filed or any such case or other proceeding is commenced against shall occur: the Borrower, the Guarantor or any Significant Subsidiary or the Borrower, the Guarantor or any Significant Subsidiary 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 Borrower or the Guarantor or any Significant Subsidiary bankrupt or insolvent, or approving a petition in any such case or other proceeding, or a decree or entry of an order for relief is entered in respect of the Borrower against, or the Guarantor appointment of a receiver, trustee, custodian or any Significant Subsidiary in an involuntary case under federal bankruptcy laws of any jurisdiction as now or hereafter constituted;
(i) if there shall remain in forceother similar official for, undischargeda Material Party, unsatisfied and unstayed, for more than thirty days, whether or not consecutive, any final judgment against the Borrower or any Subsidiary which, with other outstanding final judgments against the Borrower and its Subsidiaries, exceeds in the aggregate $50,000,000 after taking into account any undisputed insurance coverage;
(j) if, with respect to any Guaranteed Pension Plan, an ERISA Reportable Event shall have occurred and the Banks shall have determined in their reasonable discretion that such event reasonably could be expected to result in liability of the Borrower or any Subsidiary to the PBGC or such Plan in an aggregate amount exceeding $50,000,000 and such event in the circumstances occurring reasonably could constitute grounds for the partial or complete termination of such Plan by the PBGC or for the appointment by the appropriate United States District Court any substantial part of a trustee to administer such Plan; or a trustee shall have been appointed by the appropriate United States District Court to administer such Plan; or the PBGC shall have instituted proceedings to terminate such Planits property;
(k) if the taking of any action by a regulatory authority to obtain control of a Material Party or a substantial part of its assets (which shall not have been vacated, discharged or stayed or bonded pending appeal within sixty (60) days from the entry thereof);
(l) the Company shall (or its shareholders shall elect to) discontinue operations or liquidate;
(m) The Debt Rating of the Loan Documents Guarantor 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 fall below BBB-.
(n) a Change of the Banks, or any action at law, suit or in equity or other legal proceeding to cancel, revoke or rescind any of the Loan Documents Control shall be commenced by or on behalf of the Borrower, the Guarantor, or any of their respective stockholders, 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 effect that, any one or more of the Loan Documents is illegal, invalid or unenforceable in accordance with the terms thereofoccur; or
(lo) if there shall occur any person (i) default in the payment when due (subject to any applicable grace period), whether by acceleration or group otherwise, of persons (within the meaning of Section 13 or 14 any other Debt of the Securities Exchange Act Company and/or any other Material Party if the aggregate amount of 1934Debt of the Company and/or any other Material Party which is accelerated or due and payable, or which (subject to any applicable grace period) may be accelerated or otherwise become due and payable, by reason of such default or defaults is $25,000,000 or more, (ii) default in the performance or observance of any obligation or condition with respect to any such other Debt of, or guaranteed by, a Material Party if the effect of such default or defaults is to accelerate the maturity (subject to any applicable grace period) of any such Debt of $25,000,000 or more in the aggregate or to permit the holder or holders of such indebtedness of $25,000,000 or more in the aggregate, or any trustee or agent for such holders, to cause such Debt to become due and payable prior to its expressed maturity, or (iii) a final judgment or judgments which exceed an aggregate of $25,000,000 (excluding any portion thereof which is covered by insurance so long as amendedthe insurer is reasonably likely to be able to pay and is not denying coverage in writing) shall be rendered against a Material Party and shall not have acquired beneficial ownership been discharged or vacated or had execution thereof stayed pending appeal within 60 days after entry or filing of such judgment(s). If an Event of Default shall occur and be continuing, then, and in every such event (within other than an event with respect to any Loan Party described in clause (h), (i) or (j) of this Section), and at any time thereafter during the meaning continuance of Rule 13d-3 promulgated such event, the Lender may take any or all of the following actions, at the same or different times:
(i) terminate the Commitment, and thereupon the Commitment shall terminate immediately;
(ii) declare the Loans then outstanding to be due and payable in whole (or in part, in which case any principal not so declared to be due and payable may thereafter be declared to be due and payable), and thereupon the principal of the Loans so declared to be due and payable, together with accrued interest thereon and all fees and other Obligations of the Company accrued hereunder, shall become due and payable immediately, without presentment, demand, protest or other notice of any kind, all of which are hereby waived by the Securities Company; and
(iii) exercise all rights and Exchange Commission remedies available to it under said Actthe Loan Documents and/or applicable Law; provided that, in case of any event with respect to any Loan Party described in clause (h), (i) or (j) of 25% or more this Section, the Commitment shall automatically terminate and the principal of the outstanding shares of common voting stock of the Borrower; or during any period of twelve consecutive calendar monthsLoans then outstanding, individuals who were directors of the Borrower on the first day of such period (together with accrued interest thereon and all fees and other Obligations accrued hereunder, shall automatically become due and payable without presentment, demand, protest or other notice of any new directors whose election by such board or whose nomination for election kind, all of which are hereby waived by the shareholders of the Borrower was approved by a vote of a majority of the directors still in office who were either directors at the beginning of such period or whose election or nomination for election was previously so approved) shall cease to constitute a majority of the board of directors of the Borrower;Company.
Appears in 1 contract
Events of Default and Acceleration. If any of the following events (“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 or lapse of time, “Defaults”) shall occur:
(a) if the Borrower shall fail to pay any principal of the Loans when 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;
(b) if the Borrower shall fail to pay any interest on the Loans or fees any other sums due hereunder or under any of the other amounts owing hereunder Loan Documents (other than those specified in subsection (a) aboveprincipal) within five (5) Business Days days after the same shall become due and payable whether at the Maturity Date or any accelerated date of maturity or at any other date fixed for paymentpayable;
(c) if the Borrower or the Company shall fail to comply with any of the its covenants contained in §§7.4, 7.5, 7.15the first sentence of §7.6, 7.16§7.7, §7.13, §7.20, §8 and 9 hereofor §9;
(d) if the Borrower or any Guarantor shall fail to perform any other term, covenant or agreement contained herein or in any of the other Loan Documents (other than those specified elsewhere in subsections this §12) for thirty (a), (b), and (c30) above) and such failure shall not be remedied within 30 days after written notice of such failure shall have been given from Agent to the Borrower by the Administrative Agent or any of the BanksBorrower;
(e) if any representation or warranty contained of the Borrower or any Guarantor in this Agreement or in any of the other Loan Documents or in any other document or instrument delivered pursuant to or in connection with this Agreement Agreement, shall prove to have been false in any material respect upon the date when made or deemed to have been made or repeated;
(f) if (i) any “Event of Default”, as such term is defined in the Borrower credit agreement referred to in the definition of Unsecured Revolving Credit Facility, shall have occurred and be continuing, whether or not the maturity of any obligations issued thereunder has been accelerated; (ii) any “Event of Default”, as such term is defined in the credit agreement referred to in the definition of Term Loan Facility, shall have occurred and be continuing, whether or not the maturity of any obligations issued thereunder has been accelerated; or (iii) the Borrower, the Company, any Guarantor, any of the Related Companies or any of its Subsidiaries Unconsolidated Entity shall fail to pay when dueat maturity, or within any applicable period of grace, any Recourse Indebtedness (other than the Unsecured Revolving Credit Facility or obligations under Swap Contracts in an aggregate amount greater than $75,000,000the Term Loan Facility), or shall fail to observe or perform any material term, covenant or agreement contained in any one or more agreements agreement by which it is bound, evidencing or securing any Recourse Indebtedness (other than the Unsecured Revolving Credit Facility or obligations under Swap Contracts in an aggregate amount greater than $75,000,000 the Term Loan Facility) for such period of time as would permit, or would have permitted permit (assuming the giving of appropriate notice if required) the holder or holders thereof or of any obligations issued thereunder to accelerate the maturity thereof thereof, and in any event, such failure shall continue for thirty (30) days, unless the aggregate amount of all such defaulted Recourse Indebtedness is less than $10,000,000.00, provided, however, that defaulted Recourse Indebtedness of an Unconsolidated Entity shall only be included, for purposes of determining whether the aggregate amount of all such defaulted Recourse Indebtedness is less than $10,000,000, to the extent, if any, that said Recourse Indebtedness is Recourse, directly or terminate its commitment with respect thereto;
(g) if the indirectly, to Borrower, the any Guarantor or any Significant Subsidiary makes an assignment for the benefit of creditors, or admits in writing its inability to pay or generally fails to pay its debts as they mature or become due, or petitions or applies for the appointment of a trustee or other custodian, liquidator or receiver of the Borrower, the Guarantor or any Significant Subsidiary, or of any substantial part of the assets of the Borrower, the Guarantor or any Significant Subsidiary or commences any case or other proceeding relating to the Borrower, the Guarantor or any Significant Subsidiary 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, the Guarantor or any Significant Subsidiary or the Borrower, the Guarantor or any Significant Subsidiary 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 Borrower or the Guarantor or any Significant Subsidiary 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 or the Guarantor or any Significant Subsidiary in an involuntary case under federal bankruptcy laws of any jurisdiction as now or hereafter constituted;
(i) if there shall remain in force, undischarged, unsatisfied and unstayed, for more than thirty days, whether or not consecutive, any final judgment against the Borrower or any Subsidiary which, with other outstanding final judgments against the Borrower and its Subsidiaries, exceeds in the aggregate $50,000,000 after taking into account any undisputed insurance coverage;
(j) if, with respect to any Guaranteed Pension Plan, an ERISA Reportable Event shall have occurred and the Banks shall have determined in their reasonable discretion that such event reasonably could be expected to result in liability of the Borrower or any Subsidiary to the PBGC or such Plan in an aggregate amount exceeding $50,000,000 and such event in the circumstances occurring reasonably could constitute grounds for the partial or complete termination of such Plan by the PBGC or for the appointment by the appropriate United States District Court of a trustee to administer such Plan; or a trustee shall have been appointed by the appropriate United States District Court to administer such Plan; or the PBGC shall have instituted proceedings to terminate such Plan;
(k) if 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 Banks, 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 or on behalf of the Borrower, the Guarantor, Related Company or any of their respective stockholdersassets (other than their respective interests in such Unconsolidated Entity), provided, further, however, that Indebtedness of any Unconsolidated Entity in or to which Borrower, any Guarantor or any court Related Company has made a Structured Finance Investment shall not be considered Indebtedness for purposes of this § 12.1(f) (For purposes of this § 12.1(f) “Recourse” shall mean any obligation or any other governmental liability except an obligation or regulatory authority or agency of competent jurisdiction shall make a determination that, or issue a judgment, order, decree or ruling liability with respect to the effect that, any one or more of the Loan Documents which recourse for payment is illegal, invalid or unenforceable in accordance with the terms thereof; or
contractually limited (lexcept for customary exclusions) 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 25% or more of the outstanding shares of common voting stock of the Borrower; or during any period of twelve consecutive calendar months, individuals who were directors of the Borrower on the first day of such period (together with any new directors whose election by such board or whose nomination for election by the shareholders of the Borrower was approved by a vote of a majority of the directors still in office who were either directors at the beginning of such period or whose election or nomination for election was previously so approved) shall cease to constitute a majority of the board of directors of the Borrowerspecifically identified assets only);
Appears in 1 contract
Sources: Revolving Secured Credit and Guaranty Agreement (Sl Green Realty Corp)
Events of Default and Acceleration. If any of the following events (“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 or lapse of time, “Defaults”) shall occur:
(a) if either of the Borrower Borrowers shall fail to pay any principal of the Loans when 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;
(b) if either of the Borrower Borrowers shall fail to pay any interest on the Loans or fees any other sums due hereunder or under any of the other amounts owing hereunder (other than those specified in subsection (a) above) within five (5) Business Days after Loan Documents, when the same shall become due and payable payable, whether at the Maturity Date stated date of maturity or any accelerated date of maturity or at any other date fixed for payment;
(c) if either of the Borrower Borrowers shall fail to comply with any of the covenants covenant contained in §7.13, §7.48.1, 7.5§8.2, 7.15§8.3, 7.16, 8 §8.7 and 9 hereof§8.14;
(d) if either of the Borrower Borrowers shall fail to comply with any covenant contained in §9, and such failure shall continue for twenty (20) days after written notice thereof shall have been given to the Borrowers by the Agent (provided that with respect to any failure to comply with §9.2 or §9.5, such failure shall be cured by Borrowers prepaying the Loans as provided in §3.3 to an amount which would have resulted in compliance on a proforma basis with the applicable covenant based on actual Operating Cash Flow for the Test Period and the average interest payable with respect to the Loans during the Test Period);
(e) either of the Borrowers or any of their respective Restricted Subsidiaries or any Guarantor shall fail to perform any other term, covenant or agreement contained herein or in any of the other Loan Documents (other than those specified above in subsections this §12);
(a)f) any representation or warranty made by or on behalf of any Borrower, (b), and (c) above) and such failure shall not be remedied within 30 days after written notice of such failure shall have been given to the Borrower by the Administrative Agent any Guarantor or any of the Banks;
(e) if any representation or warranty contained Restricted Subsidiaries of a Borrower in this Agreement or any other Loan Document, or in any report, certificate, financial statement, request for a Loan, or in any other document or instrument delivered pursuant to or in connection with this Agreement Agreement, any advance of a Loan or any of the other Loan Documents shall prove to have been false in any material respect upon the date when made or deemed to have been made or repeated;
(fg) if any of the Borrower Borrowers, any Guarantor or any of its the Restricted Subsidiaries of a Borrower shall fail to pay when dueat maturity, or within any applicable period of grace, any Indebtedness obligation for borrowed money or obligations under Swap Contracts in an aggregate amount greater than $75,000,000credit received or other Indebtedness, or fail to observe or perform any material term, covenant or agreement contained in any one or more agreements agreement by which it is bound, evidencing or securing any such borrowed money or credit received or other Indebtedness or obligations under Swap Contracts in an aggregate amount greater than $75,000,000 for such period of time as would permit, or would have permitted permit (assuming the giving of appropriate notice if required) the holder or holders thereof or of any obligations issued thereunder to accelerate the maturity thereof thereof; provided that the events described in this §12.1(g) shall not constitute an Event of Default unless such failure to pay or terminate its commitment perform, together with other failures to pay or perform, involve singly or in the aggregate recourse obligations for borrowed money or credit received or other Indebtedness totaling in excess of $5,000,000.00 or, with respect theretoto non-recourse obligations for borrowed money or credit received or other Indebtedness totaling in excess of $15,000,000.00 (except that with respect to Non-Recourse Indebtedness of a Restricted Subsidiary of a Borrower it shall not be an Event of Default hereunder unless the Borrowers’ aggregate equity Investment in all of such Restricted Subsidiaries exceeds $15,000,000.00);
(gh) if any of the BorrowerBorrowers, the any Guarantor or any Significant Subsidiary makes of the Restricted Subsidiaries of a Borrower, (1)shall make an assignment for the benefit of creditors, or admits admit in writing its general inability to pay or generally fails fail to pay its debts as they mature or become due, or petitions shall petition or applies apply for the appointment of a trustee or other custodian, liquidator or receiver of any of the BorrowerBorrowers, the any Guarantor or any Significant Subsidiary, of the Restricted Subsidiaries of a Borrower or of any substantial part of the assets of the Borrowerany thereof, the Guarantor or any Significant Subsidiary or commences (2) shall commence any case or other proceeding relating to any of the BorrowerBorrowers, the any Guarantor or any Significant Subsidiary of the Restricted Subsidiaries of a 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 (3)shall take any action to authorize or in furtherance of any of the foregoing, or if any such ;
(i) a petition or application is shall be filed for the appointment of a trustee or other custodian, liquidator or receiver of any of the Borrowers, any Guarantor or any such of the Restricted Subsidiaries of a Borrower or any substantial part of the assets of any thereof, or a case or other proceeding is shall be commenced against any of the BorrowerBorrowers, the any Guarantor or any Significant Subsidiary of the Restricted Subsidiaries of a Borrower under any bankruptcy, reorganization, arrangement, insolvency, readjustment of debt, dissolution or liquidation or similar law of any jurisdiction, now or hereafter in effect, and any of the BorrowerBorrowers, the any Guarantor or any Significant Subsidiary indicates of the Restricted Subsidiaries of a Borrower shall indicate its approval thereof, consent thereto or acquiescence thereintherein or such petition, application, case or proceeding shall not have been dismissed within ninety (90) days following the filing or commencement thereof;
(hj) if a decree or order is entered appointing any such trustee, custodian, liquidator or receiver or adjudicating any of the Borrower or the Borrowers, any Guarantor or any Significant Subsidiary of the Restricted Subsidiaries of a Borrower 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 any of the Borrower or the Borrowers, any Guarantor or any Significant Subsidiary of the Restricted Subsidiaries of a Borrower, in an involuntary case under federal bankruptcy laws of any jurisdiction as now or hereafter constituted;
(ik) if there shall remain in force, undischarged, unsatisfied and unstayed, for more than thirty sixty (60) days, whether or not consecutive, any uninsured final judgment against any of the Borrower Borrowers, any Guarantor or any Subsidiary whichof the Restricted Subsidiaries of a Borrower that, with other outstanding uninsured final judgments judgments, undischarged, against any of the Borrowers, any Guarantor or any of the Restricted Subsidiaries of a Borrower and its Subsidiaries, exceeds in the aggregate $50,000,000 after taking into account any undisputed insurance coverage5,000,000.00;
(j) if, with respect to any Guaranteed Pension Plan, an ERISA Reportable Event shall have occurred and the Banks shall have determined in their reasonable discretion that such event reasonably could be expected to result in liability of the Borrower or any Subsidiary to the PBGC or such Plan in an aggregate amount exceeding $50,000,000 and such event in the circumstances occurring reasonably could constitute grounds for the partial or complete termination of such Plan by the PBGC or for the appointment by the appropriate United States District Court of a trustee to administer such Plan; or a trustee shall have been appointed by the appropriate United States District Court to administer such Plan; or the PBGC shall have instituted proceedings to terminate such Plan;
(kl) if (i) any of the Loan Documents shall be cancelledcanceled, terminated, revoked or rescinded otherwise than in accordance with the terms thereof or with the express prior written agreement, consent or approval of the BanksLenders, or (ii) 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 or on behalf of any of the BorrowerBorrowers, the Guarantor, any Guarantor or any of their respective stockholders, partners or beneficiaries, or (iii) 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 effect that, any one or more of the Loan Documents is illegal, invalid or unenforceable in accordance with the terms thereof and, with respect to Defaults under this clause (iii) Borrowers do not cure such illegality, invalidity or unenforceability in a manner satisfactory to Agent within ten (10) days of such determination, judgment, order, decree or ruling, as applicable;
(m) any dissolution, termination, partial or complete liquidation, merger or consolidation of any of the Borrowers or any Guarantor, or any sale, transfer or other disposition of the assets of any of the Borrowers or any Guarantor, other than as permitted under the terms of this Agreement or the other Loan Documents;
(n) any suit or proceeding shall be filed against any of the Borrowers, any Guarantor or any of their respective assets which in the good faith business judgment of the Majority Lenders after giving consideration to the likelihood of success of such suit or proceeding and the availability of insurance to cover any judgment with respect thereto and based on the information available to them, if adversely determined, would have a materially adverse affect on the ability of any of the Borrowers or any Guarantor to perform its obligations under and by virtue of the Loan Documents;
(o) any of the Borrowers, any Guarantor or any of the Restricted Subsidiaries of a Borrower shall be indicted for a federal crime, a punishment for which could include the forfeiture of any assets of such Person included in the Collateral or the Property;
(i) an ERISA Reportable Event shall occur with respect to, or proceedings shall commence to have a trustee appointed, or a trustee shall be appointed, to administer or to terminate, any Employee Benefit Plan, which ERISA Reportable Event or institution of proceedings is, in the opinion of the Majority Lenders, likely to result in the termination of such Plan for purposes of Title IV of ERISA, and, in the case of an ERISA Reportable Event, the continuance of such ERISA Reportable Event unremedied for thirty (30) days after notice of such ERISA Reportable Event pursuant to Section 4043 of ERISA is given or, in the case of institution of proceedings, the continuance of such proceedings for thirty (30) days after commencement thereof, (ii) any Employee Benefit Plan shall terminate for purposes of Title IV of ERISA, or (iii) any other event or condition shall occur or exist with respect to an Employee Benefit Plan and in each case in clauses (i) through (iii) above, such event or condition, together with all other such events or conditions, if any, could subject any of the Borrowers or any of their respective Restricted Subsidiaries or any Guarantor to any tax, penalty or other liabilities in the aggregate material in relation to the business, operations, property or financial or other condition of any of the Borrowers, any Guarantor or of a Borrower and its Restricted Subsidiaries taken as a whole;
(q) any Guarantor denies that such Guarantor has any liability or obligation under the Guaranty or the Guarantor Contribution Agreement, or shall notify the Agent or any of the Lenders of such Guarantor’s intention to attempt to cancel or terminate the Guaranty or the Guarantor Contribution Agreement, or shall fail to observe or comply with any term, covenant, condition or agreement under the Guaranty or the Guarantor Contribution Agreement;
(r) a Change of Control shall occur without the prior written approval of all of the Lenders (which consent may be withheld by the Lenders in their sole and absolute discretion); or
(ls) if any person or group Event of persons (within the meaning of Section 13 or 14 Default, as defined in any of the Securities Exchange Act other Loan Documents, shall occur; then, and in any such event, the Agent may, and upon the request of 1934the Majority Lenders shall, as amended) by notice in writing to the Borrowers declare all amounts owing with respect to this Agreement, the Notes and the other Loan Documents to be, and they shall have acquired beneficial ownership (within the meaning thereupon forthwith become, immediately due and payable without presentment, demand, protest or other notice of Rule 13d-3 promulgated any kind, all of which are hereby expressly waived by the Securities Borrowers; provided that in the event of any Event of Default specified in §12.1(h), §12.1(i) or §12.1(j), all such amounts shall become immediately due and Exchange Commission under said Act) payable automatically and without any requirement of 25% or more notice from any of the outstanding shares Lenders or the Agent. Notwithstanding the foregoing, it shall not be an Event of common voting stock Default upon the occurrence of any of the Borrower; events described under §12.1(f), (h), (i) or during any period of twelve consecutive calendar months, individuals who were directors of (j) with respect to a Restricted Subsidiary or Unrestricted Subsidiary unless the Borrower on the first day Borrowers’ aggregate equity Investment in all of such period (together with any new directors whose election by such board Restricted Subsidiaries or whose nomination for election by the shareholders of the Borrower was approved by a vote of a majority of the directors still in office who were either directors at the beginning of such period or whose election or nomination for election was previously so approved) shall cease to constitute a majority of the board of directors of the Borrower;Unrestricted Subsidiaries exceeds $15,000,000.00.
Appears in 1 contract
Events of Default and Acceleration. If any of the following events (“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 or lapse of time, “Defaults”) shall occur:
(a) if default in the Borrower shall fail to pay payment when due of all or any part of the principal of the Loans when the same shall become due and payable, whether or interest on any Loan at the stated date of maturity or any accelerated date of maturity or at any other date fixed for paymentthereof;
(b) if default in the Borrower shall fail payment when due of all or any part of the principal of or interest on any Loan at any other time provided for in this Agreement or of any reimbursement obligation or of any fee or other Obligation payable hereunder or under any other Loan Document, and, in each case, such failure to pay any interest or fees or other amounts owing hereunder (other than those specified in subsection (a) above) within shall continue unremedied for a period of five (5) Business Days after the same shall become due and payable whether at the Maturity Date or any accelerated date of maturity or at any other date fixed for paymentDays;
(c) if default in the Borrower shall fail to comply with observance or performance of any covenant set forth in Section 6.1, Section 6.2, Section 6.3, Section 6.6 or Section 6.15 or Article 7 of the covenants contained in §§7.4, 7.5, 7.15, 7.16, 8 and 9 hereofthis Agreement;
(d) if default in the Borrower shall fail to perform observance or performance of any term, covenant other provision hereof or agreement contained herein or in of any of the other Loan Documents Document which is not remedied within thirty (other than those specified in subsections 30) days after the earlier of (a), (b), and (ci) above) and the date on which such failure shall not be remedied within 30 days after first become known to any Loan Party or (ii) written notice of such failure shall have been thereof is given to the Borrower by the Administrative Agent or any Lender; provided, however, that if such default is susceptible of cure, but cannot reasonably be cured within such thirty (30) day period and provided, further that Borrower shall have commenced to cure such default within such thirty (30) day period and thereafter diligently and expeditiously proceeds to cure the Bankssame, such thirty (30) day period shall be extended for such time as is reasonably necessary for Borrower in the exercise of due diligence to cure such Default, such additional period not to exceed thirty (30) days;
(e) if any representation or warranty contained in this Agreement made herein or in any document other Loan Document or instrument delivered in any certificate furnished to the Agent or the Lenders pursuant to hereto or thereto or in connection with this Agreement shall prove to have been false any transaction contemplated hereby or thereby proves untrue in any material respect upon as of the date when made of the issuance or repeatedmaking or deemed making thereof;
(fi) if any event occurs or condition exists (other than those described in subsections (a) through (d) above) which is specified as an event of default under any of the other Loan Documents, (ii) any of the Loan Documents shall for any reason not be or shall cease to be in full force and effect or is declared to be null and void, or (iii) any Loan Party takes any action for the purpose of terminating, repudiating or rescinding any Loan Document executed by it or any of its obligations thereunder except as expressly permitted by the terms hereof;
(g) default shall occur under any Material Indebtedness issued, assumed or guaranteed by any Loan Party or any Subsidiary of a Loan Party, or under any indenture, agreement or other instrument under which the same may be issued, and such default shall continue for a period of time sufficient to permit the acceleration of the maturity of any such Indebtedness (whether or not such maturity is in fact accelerated), or any such Indebtedness shall not be paid when due (whether by demand, lapse of time, acceleration or otherwise);
(i) any judgment or judgments, writ or writs or warrant or warrants of attachment, or any similar process or processes, shall be entered or filed against any Loan Party or any Subsidiary of a Loan Party or against any of their respective Property, in an aggregate amount for all such Persons in excess of $50,000,000 (except to the extent covered by insurance pursuant to which the insurer has not disputed coverage), and which remains undischarged, unvacated, unbonded or unstayed for a period of 30 days, or any action shall be legally taken by a judgment creditor to attach or levy upon any Property of any Loan Party to enforce any such judgment, or (ii) any Loan Party shall fail within thirty (30) days to discharge one or more non-monetary judgments or orders which, individually or in the aggregate, could reasonably be expected to have a Material Adverse Effect, which judgments or orders, in any such case, are not stayed on appeal or otherwise being appropriately contested in good faith by proper proceedings diligently pursued;
(i) (i) an ERISA Event occurs or (ii) the Borrower or any of its Subsidiaries shall fail ERISA Affiliate fails to pay when due, or within after the expiration of any applicable period of gracegrace period, any Indebtedness or obligations under Swap Contracts in an aggregate amount greater than $75,000,000, or fail to observe or perform any material term, covenant or agreement contained in any one or more agreements by which it is bound, evidencing or securing any Indebtedness or obligations under Swap Contracts in an aggregate amount greater than $75,000,000 for such period of time as would permit, or would have permitted (assuming the giving of appropriate notice if required) the holder or holders thereof or of any obligations issued thereunder to accelerate the maturity thereof or terminate its commitment installment payment with respect theretoto its withdrawal liability under Section 4201 of ERISA, in each case, which, individually or in the aggregate, could reasonably be expected to have a Material Adverse Effect;
(gj) if any Change of Control shall occur;
(k) the REIT, the Borrower, the any Joint Venture Guarantor or any Significant Material Subsidiary makes within the meaning of clause (a) or (c) of the definition thereof shall (i) have entered involuntarily against it an order for relief under the United States Bankruptcy Code, as amended, (ii) not pay, or admit in writing in a legal proceeding its inability to pay, its debts generally as they become due, (iii) make an assignment for the benefit of creditors, (iv) apply for, seek, consent to or admits in writing its inability to pay or generally fails to pay its debts as they mature or become dueacquiesce in, or petitions or applies for the appointment of a trustee or other receiver, custodian, trustee, examiner, liquidator or receiver of the Borrower, the Guarantor similar official for it or any Significant Subsidiary, or of any substantial part of its Property, (v) institute any proceeding seeking to have entered against it an order for relief under the assets of the BorrowerUnited States Bankruptcy Code, the Guarantor as amended, to adjudicate it insolvent, or any Significant Subsidiary or commences any case or other proceeding relating to the Borrowerseeking dissolution, the Guarantor or any Significant Subsidiary under any bankruptcywinding up, liquidation, reorganization, arrangement, insolvencyadjustment or composition of it or its debts under any law relating to bankruptcy, readjustment insolvency or reorganization or relief of debt, dissolution debtors or liquidation fail to file an answer or similar law other pleading denying the material allegations of any jurisdictionsuch proceeding filed against it, now (vi) take partnership, membership or hereafter corporate action authorizing any matter described 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, the Guarantor or any Significant Subsidiary or the Borrower, the Guarantor or any Significant Subsidiary 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 Borrower or the Guarantor or any Significant Subsidiary 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 or the Guarantor or any Significant Subsidiary in an involuntary case under federal bankruptcy laws of any jurisdiction as now or hereafter constituted;
parts (i) if there shall remain in force, undischarged, unsatisfied and unstayed, for more than thirty days, whether or not consecutive, any final judgment against the Borrower or any Subsidiary which, with other outstanding final judgments against the Borrower and its Subsidiaries, exceeds in the aggregate $50,000,000 after taking into account any undisputed insurance coverage;
through (jv) if, with respect to any Guaranteed Pension Plan, an ERISA Reportable Event shall have occurred and the Banks shall have determined in their reasonable discretion that such event reasonably could be expected to result in liability of the Borrower or any Subsidiary to the PBGC or such Plan in an aggregate amount exceeding $50,000,000 and such event in the circumstances occurring reasonably could constitute grounds for the partial or complete termination of such Plan by the PBGC or for the appointment by the appropriate United States District Court of a trustee to administer such Plan; or a trustee shall have been appointed by the appropriate United States District Court to administer such Plan; or the PBGC shall have instituted proceedings to terminate such Plan;
(k) if 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 Banksabove, or (vii) fail to contest in good faith any action at law, suit appointment or proceeding described 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 Borrower, the Guarantor, or any of their respective stockholders, 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 effect that, any one or more of the Loan Documents is illegal, invalid or unenforceable in accordance with the terms thereofSection 9.1(k); or
(l) if a custodian, receiver, trustee, examiner, liquidator or similar official shall be appointed for the REIT, the Borrower, any person Joint Venture Guarantor or group of persons (any Material Subsidiary within the meaning of Section 13 clause (a) or 14 (c) of the Securities Exchange Act definition thereof, or any substantial part of 1934any of its Assets, as amendedor a proceeding described in Section 9.1(k)(v) shall have acquired beneficial ownership (within be instituted against the meaning REIT, the Borrower, any Joint Venture Guarantor or any such Material Subsidiary, and such appointment continues undischarged or such proceeding continues undismissed or unstayed for a period of Rule 13d-3 promulgated by 60 days; then, and in any such event, the Securities and Exchange Commission under said Act) of 25% or more Agent may, and, upon the request of the outstanding shares Majority Lenders, shall by notice in writing to the Borrower declare all amounts owing with respect to this Agreement, the Notes, the Letters of common voting stock Credit and the other Loan Documents to be, and they shall thereupon forthwith become, 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 any Event of Default specified in Section 9.1(k) or during Section 9.1(l) shall occur with respect to the Borrower, REIT or any period other Guarantor, all such amounts shall become immediately due and payable automatically and without any requirement of twelve consecutive calendar monthspresentment, individuals who were directors demand, protest or other notice of any kind from any of the Lenders or the Agent, the Borrower on hereby expressly waiving any right to notice of intent to accelerate and notice of acceleration. Upon demand by the first day Agent or the Required Revolving Credit Lenders in their absolute and sole discretion after the occurrence and during the continuance of an Event of Default, and regardless of whether the conditions precedent in this Agreement for a Revolving Credit Loan have been satisfied, the Revolving Credit Lenders will cause a Revolving Credit Loan to be made in the undrawn amount of all Letters of Credit. The proceeds of any such Revolving Credit Loan will be pledged to and held by the Agent as security for any amounts that become payable under the Letters of Credit and all other Obligations and Hedge Obligations. In the alternative, if demanded by the Agent in its absolute and sole discretion after the occurrence and during the continuance of an Event of Default, the Borrower will deposit into the Collateral Account and pledge to the Agent cash in an amount equal to the amount of all undrawn Letters of Credit. Such amounts will be pledged to and held by the Agent for the benefit of the Revolving Credit Lenders as security for any amounts that become payable under the Letters of Credit and all other Obligations and Hedge Obligations. Upon any draws under Letters of Credit, at the Agent’s sole discretion, the Agent may apply any such amounts to the repayment of amounts drawn thereunder and upon the expiration of the Letters of Credit any remaining amounts will be applied to the payment of all other Obligations and Hedge Obligations or if there are no outstanding Obligations and Hedge Obligations and the Revolving Credit Lenders have no further obligation to make Revolving Credit Loans or issue Letters of Credit or if such excess no longer exists, such proceeds deposited by the Borrower will be released to the Borrower. If any Default shall occur solely as a result of circumstances affecting certain Unencumbered Pool Assets or the owner(s) thereof (such that such Default would be cured by the removal of such period Unencumbered Pool Asset(s)), then the Borrower may elect to cure such Default (together with any new directors whose election so long as no other Default or Event of Default would arise as a result) by electing to remove such board or whose nomination for election by Unencumbered Pool Assets from the shareholders calculation of the Unencumbered Pool Aggregate Asset Value in accordance with the terms of Section 2.16(b) and, to the extent required hereunder in connection with such removal, by reducing the outstanding Loans and Letters of Credit or other Unsecured Indebtedness of REIT and its Subsidiaries so that no Default exists under this Agreement, in which event such removal and reduction shall be completed within ten (10) Business Days after the earlier of (i) the date on which such Default shall first become known to any Loan Party or (ii) the delivery of written notice thereof to the Borrower was approved by a vote of a majority of from the directors still in office who were either directors at the beginning of such period Agent or whose election or nomination for election was previously so approved) shall cease to constitute a majority of the board of directors of the Borrower;any Lender.
Appears in 1 contract
Events of Default and Acceleration. If any of the following events (“"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, “"Defaults”") shall occur:
(a) if the Borrower Borrowers shall fail to pay any principal of the Loans or any Reimbursement Obligation when the same shall become due and payable, whether at the stated date of maturity Maturity Date or any accelerated date of maturity or at any other date fixed for payment;
(b) if the Borrower Borrowers shall fail to pay any interest or fees or other amounts owing hereunder (other than those specified in subsection (a) above) within five (5) Business Days after the same shall become due and payable whether at the Maturity Date or any accelerated date of maturity or at any other date fixed for payment;
(c) if the Borrower Borrowers shall fail to comply with any of the covenants contained in §§7.4Sections 6.1, 7.56.7, 7.156.8, 7.166.10, 8 and 9 hereof6.13, 6.14, 6.17, 6.18, 6.20, 7 or 8;
(d) if the Borrower Borrowers shall fail to comply with the covenants contained in (i) Sections 6.2, 6.3, 6.5, 6.6, 6.9, 6.11, 6.12, 6.15, 6.16 or 6.19 within thirty (30) days of the Borrowers' knowledge of a violation of such covenants or (ii) Section 6.4 within five (5) days of the Borrowers' knowledge of a violation of such covenant;
(e) if the Borrowers shall fail to perform any term, covenant or agreement contained herein or in any of the other Loan Documents (other than those specified in subsections (a), (b), and (c) and (d) above) and such failure shall not be remedied within 30 days after written notice of such failure shall have has been given to the Borrower Borrowers by the Administrative Agent or any of the BanksBank;
(ef) if any representation or warranty contained in this Credit Agreement or in any document or instrument delivered pursuant to or in connection with this Credit Agreement shall prove to have been false in any material respect upon the date when made or repeated;
(fg) if the any Borrower or any of its Subsidiaries shall fail to pay when dueat maturity, or within any applicable period of grace, any Indebtedness and all obligations for borrowed money (other than the Obligations) or obligations under Swap Contracts any guaranty with respect thereto in an aggregate amount greater than $75,000,000, 250,000 or fail to observe or perform any material term, covenant or agreement contained in any one or more agreements agreement by which it is bound, evidencing or securing any Indebtedness or obligations under Swap Contracts borrowed money in an aggregate amount greater than $75,000,000 250,000 for such period of time as would permitwould, or would have permitted (assuming the giving of appropriate notice if required) the holder or holders thereof or of any obligations issued thereunder to accelerate the maturity thereof or terminate its commitment with respect thereto;thereof, unless the same shall have been waived by the holder(s) thereof; or
(gh) if the Borrower, the Guarantor or any Significant Subsidiary Borrower makes an assignment for the benefit of creditors, or admits in writing its inability to pay or generally fails to pay its debts as they mature or become due, or petitions or applies for the appointment of a trustee or other custodian, liquidator or receiver of the Borrower, the Guarantor or any Significant Subsidiary, Borrower or of any substantial part of the assets of the Borrower, the Guarantor or any Significant Subsidiary Borrower or commences any case or other proceeding relating to the Borrower, the Guarantor or any Significant Subsidiary 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, the Guarantor any Borrower or any Significant Subsidiary or the Borrower, the Guarantor or any Significant Subsidiary such Borrower indicates its approval thereof, consent thereto or acquiescence therein, or such petition or application shall not have been dismissed within sixty (60) days following the filing thereof;
(hi) if a decree or order is entered appointing any such trustee, custodian, liquidator or receiver or adjudicating the any Borrower or the Guarantor or any Significant Subsidiary 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 any Borrower or the Guarantor or any Significant Subsidiary in an involuntary case under federal bankruptcy laws of any jurisdiction as now or hereafter constituted;
(ij) if there shall remain in force, undischarged, unsatisfied and unstayed, for more than thirty (30) days, whether or not consecutive, any final judgment against the any Borrower or any Subsidiary which, with other outstanding final judgments against the Borrower and its SubsidiariesBorrowers, exceeds in the aggregate $50,000,000 250,000 after taking into account any undisputed insurance coverage;
(jk) ifany Borrower or any ERISA Affiliate incurs any liability to the PBGC or a Guaranteed Pension Plan pursuant to Title IV of ERISA in an aggregate amount exceeding $250,000, or any Borrower or any ERISA Affiliate is assessed withdrawal liability pursuant to Title IV of ERISA by a Multiemployer Plan requiring aggregate annual payments exceeding $250,000, or any of the following occurs with respect to any a Guaranteed Pension Plan, : (i) an ERISA Reportable Event shall have occurred and Event, or a failure to make a required installment or other payment (within the Banks shall have determined meaning of Section 302(f)(1) of ERISA), provided that the Agent determines in their its reasonable discretion that such event reasonably (A) could be expected to result in liability of the any Borrower or any Subsidiary to the PBGC or such Guaranteed Pension Plan in an aggregate amount exceeding $50,000,000 250,000 and such event in the circumstances occurring reasonably (B) could constitute grounds for the partial or complete termination of such Guaranteed Pension Plan by the PBGC or PBGC, for the appointment by the appropriate United States District Court of a trustee to administer such Guaranteed Pension Plan or for the imposition of a lien in favor of such Guaranteed Pension Plan; or (ii) the appointment by a trustee shall have been appointed by the appropriate United States District Court of a trustee to administer such Guaranteed Pension Plan; or (iii) the institution by the PBGC shall have instituted of proceedings to terminate such Guaranteed Pension Plan;
(kl) if any of the Loan Documents shall be cancelled, terminated, revoked or rescinded or the Agent's security interests 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 accordance with the terms thereof or with the express prior written agreement, consent or approval of the Banks, 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 or on behalf of the Borrower, the Guarantor, any Borrower or any stockholder of their respective stockholdersany Borrower who is an officer or director of such Borrower, 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 effect that, any one or more of the Loan Documents is illegal, invalid or unenforceable in accordance with the terms thereof; or;
(li) if the Parent shall at any time, legally or beneficially own less than one hundred percent (100%) of the shares of the capital stock of each other Borrower (indirectly through W.C. of Washington in the case of W.C. International), as adjusted pursuant to any stock split, stock dividend or recapitalization or reclassification of the capital of such Borrower; or (ii) any person or group of persons (within the meaning of Section 13 or 14 of the Securities Exchange Act of 1934, as amended) other than existing shareholders of the Parent as of the Closing Date shall have acquired beneficial ownership (within the meaning of Rule 13d-3 promulgated by the Securities and Exchange Commission under said Act) of 2520% or more of the outstanding shares of common voting stock of the BorrowerParent; or or, during any period of twelve consecutive calendar months, individuals who were directors of the Borrower Parent on the first day of such period (together with any new directors whose election by such board or whose nomination for election by the shareholders of the Borrower was approved by a vote of a majority of the directors still in office who were either directors at the beginning of such period or whose election or nomination for election was previously so approved) shall cease to constitute a majority of the board of directors; provided, however, that any such change of control resulting from an acquisition permitted under Section 7.4 shall not constitute a Default or an Event of Default hereunder, and provided further, that any change in the composition of the board of directors of the Borrower;Parent which occurs between the Closing Date and April 1, 1998 with the approval of Ron ▇. ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇ll not constitute a Default or an Event of Default hereunder; or
(n) the early termination or cancellation of, or any material default by a Borrower under, any Material Contract; then, and in any such event, so long as the same may be continuing, the Agent may, and at the request of the Majority Banks shall, by notice in writing to the Borrowers, declare all amounts owing with respect to this Credit Agreement, the Notes and the other Loan Documents and all Reimbursement Obligations to be, and they shall thereupon forthwith become, 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 12.1(h) or 12.1(i), all such amounts shall become immediately due and payable automatically and without any requirement of notice from the Agent or any Bank. Upon demand by the Banks after the occurrence of any Event of Default, the Borrowers shall immediately provide to the Agent cash in an amount equal to the Maximum Drawing Amount, to be held by the Agent as collateral security for the Obligations, provided that in the event of any Event of Default specified in Sections 12.1(h) or 12.1(i), all such amounts shall become immediately due and payable automatically and without any requirement of notice from the Agent or any Bank.
Appears in 1 contract
Sources: Revolving Credit Agreement (Waste Connections Inc/De)
Events of Default and Acceleration. If any of the following events (“"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 or lapse of time, “"Defaults”") shall occur:
(a) if the Borrower Borrowers shall fail to pay any principal of the Loans or any Reimbursement Obligation when 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;
(b) if the Borrower Borrowers shall fail to pay any interest or fees on the Loans, the commitment fee, any Letter of Credit Fees, the Agent's fee, or other amounts owing sums due hereunder or under any of the other Loan Documents, within two (other than those specified in subsection (a2) above) within five (5) Business Days after days of the date when the same shall become due and payable payable, whether at the Maturity Date stated date of maturity or any accelerated date of maturity or at any other date fixed for payment;
(c) if the Borrower Borrowers shall fail to comply with (i) any of their covenants contained in Sections 8, 9 (other than Sections 9.1, 9.3, 9.4(d), 9.7, 9.8, 9.9) or 10 or any of the covenants contained in §§7.4the Security Documents; or (ii) any of their covenants contained in Sections 9.1, 7.59.3, 7.159,7, 7.16, 8 and 9 hereof9.8 or 9.9 for more than five (5) days after the occurrence of such failure to comply;
(d) if the Borrower Borrowers shall fail to perform any term, covenant or agreement contained herein or in any of the other Loan Documents (other than those specified elsewhere in subsections this Section 13.1) for thirty (a), (b), and (c30) above) and such failure shall not be remedied within 30 days after written notice of such failure shall have has been given to the Borrower Borrowers by the Administrative Agent or any of the BanksAgent;
(e) if any representation or warranty contained of the Borrowers in this Credit Agreement or any of the other Loan Documents or in any other document or instrument delivered pursuant to or in connection with this Credit Agreement shall prove to have been false in any material respect upon the date when made or deemed to have been made or repeated;
(f) if the Borrower or any of its the Borrowers or the Designated Subsidiaries shall fail to pay when dueat maturity, or within any applicable period of grace, any Indebtedness obligation for borrowed money or obligations under Swap Contracts credit received in an aggregate amount greater than excess of $75,000,0005,000,000 in the aggregate, including, without limitation, the Indenture and Debentures, or in respect of any Consolidated Capitalized Leases, or fail to observe or perform any material term, covenant or agreement contained in any one or more agreements agreement by which it is bound, evidencing or securing borrowed money or credit received in excess of $5,000,000 in the aggregate, including, without limitation, the Indenture and Debentures, or in respect of any Indebtedness or obligations under Swap Contracts in an aggregate amount greater than $75,000,000 Consolidated Capitalized Leases for such period of time as would permit, or would have permitted permit (assuming the giving of appropriate notice if required) the holder or holders thereof or of any obligations issued thereunder to accelerate the maturity thereof or terminate its commitment with respect theretothereof;
(g) if either of the Borrower, the Guarantor Borrowers or any Significant Subsidiary makes of Zale ▇▇▇ll make an assignment for the benefit of creditors, or admits admit in writing its inability to pay or generally fails fail to pay its debts as they mature or become due, or petitions shall petition or applies apply for the appointment of a trustee or other custodian, liquidator or receiver of the such Borrower, the Guarantor or any Significant Subsidiary, or such Subsidiary of Zale ▇▇ of any substantial part of the assets of the such Borrower, the Guarantor or any Significant such Subsidiary or commences of Zale ▇▇ shall commence any case or other proceeding relating to the such Borrower, the Guarantor or any Significant such Subsidiary under of Zale ▇▇▇er any bankruptcy, reorganization, arrangement, insolvency, readjustment of debt, dissolution or liquidation or similar law of any jurisdiction, now or hereafter in effect, or takes shall take any action to authorize or in furtherance of any of the foregoing, or if any such petition or application is shall be filed or any such case or other proceeding is shall be commenced against the such Borrower, the Guarantor or any Significant such Subsidiary or the of Zale ▇▇▇ such Borrower, the Guarantor or any Significant such Subsidiary indicates of Zale ▇▇▇ll indicate its written approval thereof, written consent thereto or formal acquiescence therein;
(h) if a decree or order is entered appointing any such trustee, custodian, liquidator or receiver or adjudicating either of the Borrower or the Guarantor Borrowers or any Significant Subsidiary bankrupt of Zale ▇▇▇krupt 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 either of the Borrower or the Guarantor Borrowers or any Significant Subsidiary in an of Zale ▇▇ any involuntary case under federal bankruptcy laws of any jurisdiction as now or hereafter constitutedconstituted or, if earlier, sixty (60) days shall pass from the date of filing of such involuntary case without the dismissal thereof;
(i) if there shall remain in force, undischarged, unsatisfied and unstayed, for more than thirty sixty (60) days, whether or not consecutive, any final judgment against either of the Borrower Borrowers or any Subsidiary whichof Zale ▇▇▇t, with other outstanding final judgments judgments, undischarged, against either of the Borrower and its Subsidiaries, exceeds Borrowers or any Subsidiary of Zale ▇▇▇eeds in the aggregate $50,000,000 after taking into account any undisputed insurance coverage1,000,000;
(j) if, with respect to any Guaranteed Pension Plan, an ERISA Reportable Event shall have occurred and the Banks shall have determined in their reasonable discretion that such event reasonably could be expected to result in liability of the Borrower or any Subsidiary to the PBGC or such Plan in an aggregate amount exceeding $50,000,000 and such event in the circumstances occurring reasonably could constitute grounds for the partial or complete termination of such Plan by the PBGC or for the appointment by the appropriate United States District Court of a trustee to administer such Plan; or a trustee shall have been appointed by the appropriate United States District Court to administer such Plan; or the PBGC shall have instituted proceedings to terminate such Plan;
(k) if any of the Loan Documents shall be cancelledcanceled, terminated, revoked or rescinded otherwise than in accordance with the terms thereof or Section 6.3 hereof or with the express prior written agreement, consent or approval of the Banksrequisite Lenders in accordance with Section 26, 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 or on behalf of either of the Borrower, the Guarantor, Borrowers 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 determination that, or issue a judgment, order, decree or ruling to the effect that, any material provision of one or more of the Loan Documents is illegal, invalid or unenforceable in accordance with the terms thereof;
(k) with respect to any Guaranteed Pension Plan, an ERISA Reportable Event shall have occurred and such event would reasonably be expected to result in liability of either Borrower or any Designated Subsidiary to the PBGC or such Guaranteed Pension Plan in an aggregate amount exceeding $1,000,000 and such event in the circumstances occurring reasonably would constitute grounds for the termination of such Guaranteed Pension Plan by the PBGC or for the appointment by the appropriate United States District Court of a trustee to administer such Guaranteed Pension Plan; or a trustee shall have been appointed by the United States District Court to administer such Guaranteed Pension Plan; or the PBGC shall have instituted proceedings to terminate such Guaranteed Pension Plan;
(l) either of the Borrowers or any Designated Subsidiary shall be enjoined, restrained or in any way prevented by the order of any court or any administrative or regulatory agency from conducting any significant part of its domestic business in the continental United States and such order shall continue in effect for more than thirty (30) days;
(m) there shall occur any material damage to, or loss, theft or destruction of, any Collateral, whether or not insured, or any strike, lockout, labor dispute, embargo, condemnation, act of God or public enemy, or other casualty, which in any such case causes, for more than fifteen (15) consecutive days, the cessation or substantial curtailment of revenue producing activities at any facility of either of the Borrowers or any Designated Subsidiary if such event or circumstance is not covered by business interruption insurance and would have a materially adverse effect on the business or financial condition of the Borrowers and the Designated Subsidiaries taken as a whole;
(n) there shall occur the loss, suspension or revocation of, or failure to renew, any license or permit now held or hereafter acquired by either of the Borrowers or any Designated Subsidiary if such loss, suspension, revocation or failure to renew would have a materially adverse effect on the business or financial condition of the Borrowers and the Designated Subsidiaries taken as a whole;
(o) either of the Borrowers or any Designated Subsidiary shall be indicted for a federal crime, a punishment for which, assuming a conviction, would reasonably be expected to include the forfeiture of any assets of Zale ▇▇▇aware included in the Borrowing Base or any assets of either Borrower or any Designated Subsidiary not included in the Borrowing Base but having a fair market value in excess of $5,000,000;
(p) Zale ▇▇▇ll, at any time, legally or beneficially own less than one hundred percent (100%) of the issued and outstanding shares of the capital stock of Zale ▇▇▇aware (unless Zale ▇▇▇ Zale ▇▇▇aware are merged or consolidated as permitted by Section 9.5.1 hereof);
(q) there shall occur, with respect to any of the Receivables Securitization Facility Documents, any Purchase Termination Date, or Amortization Commencement Date;
(r) any and all payments and other amounts to which any of the Borrowers or the Designated Subsidiaries is entitled pursuant to the Receivables Securitization Facility Documents (which shall not include proceeds of ZFT Receivables not due to the Borrowers or the Designated Subsidiaries), including amounts in respect of Zale ▇▇▇aware's interest in ZFT or any other Receivables Securitization Subsidiary or amounts under the Subordinated Notes, shall not have been paid directly into the FNBB Concentration Accounts or other depository accounts maintained by the Borrowers, or either of them, and subject to agency agreements reasonably satisfactory in all respects to the Agent, in accordance with the terms and conditions of the Receivables Purchase Payment Instructions; provided however, that no Event of Default shall occur under this Section 13.1(r) if, within one (1) Business Day following any unintended failure to pay such payments or other amounts into the FNBB Concentration Accounts or such other accounts subject to such agency agreements, all such amounts have been deposited into the FNBB Concentration Accounts or such other accounts subject to such agency agreements; or
(ls) Any of the Borrowers or the Designated Subsidiaries shall make Distributions during any fiscal year in excess of the limitations set forth in Section 9.4(d), whether or not such Distributions were permitted by the terms of such clause at the time when made; provided, however, that any Distribution with respect to any fiscal year shall not be an Event of Default because of losses occurring after the end of the fiscal year in which such Distribution was made. then, in any such event, so long as the same may be continuing, the Agent may, and upon the request of the Majority Lenders shall, by notice in writing to the Borrowers, declare all amounts owing with respect to this Credit Agreement, the Notes and the other Loan Documents and all Reimbursement Obligations to be, and they shall thereupon forthwith become, immediately due and payable without presentment, demand, protest or other notice of any kind, all of which are hereby expressly waived by each of the Borrowers; provided that in the event of any Event of Default specified in Sections 13.1(g) or 13.1(h), or if any person or group of persons (within the meaning of Section 13 or 14 of the Securities Exchange Act obligations of 1934, as amended) the Borrowers under the Debentures shall have acquired beneficial ownership be declared due and payable before the stated maturity thereof (within the meaning of Rule 13d-3 promulgated other than pursuant to a voluntary redemption thereof by the Securities Borrowers, or either of them), all such amounts shall become immediately due and Exchange Commission under said Act) payable automatically and without any requirement of 25% notice from the Agent or more of the outstanding shares of common voting stock of the Borrower; or during any period of twelve consecutive calendar months, individuals who were directors of the Borrower on the first day of Lender (any such period (together with any new directors whose election by such board or whose nomination requirement for election by the shareholders of the Borrower was approved by a vote of a majority of the directors still in office who were either directors at the beginning of such period or whose election or nomination for election was previously so approved) shall cease payment pursuant to constitute a majority of the board of directors of the Borrower;this Section 13.1 being an "Acceleration").
Appears in 1 contract
Events of Default and Acceleration. If any of the following events (“"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 or lapse of time, “"Defaults”") shall occur:
(a) if the Borrower shall fail to pay any principal of the Loans when 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;
(b) if the Borrower shall fail to pay any interest on the Loans or fees any other sums due hereunder or under any of the other amounts owing hereunder Loan Documents (other than those specified in subsection (a) aboveprincipal) within five (5) Business Days days after the same shall become due and payable whether at the Maturity Date or any accelerated date of maturity or at any other date fixed for paymentpayable;
(c) if Borrower or the Borrower Company shall fail to comply with any of the its covenants contained in §§7.4, § 7.5, 7.15the first sentence of § 7.6, 7.16§ 7.7, § 7.13, § 8 and or § 9 hereof;
(d) if the Borrower or any Guarantor shall fail to perform any other term, covenant or agreement contained herein or in any of the other Loan Documents (other than those specified elsewhere in subsections this § 12) for thirty (a), (b), and (c30) above) and such failure shall not be remedied within 30 days after written notice of such failure shall have been given from Agent to the Borrower by the Administrative Agent or any of the BanksBorrower;
(e) if any representation or warranty contained of Borrower in this Agreement or any of the other Loan Documents or in any other document or instrument delivered pursuant to or in connection with this Agreement Agreement, shall prove to have been false in any material respect upon the date when made or deemed to have been made or repeated;
(f) if Borrower, the Borrower Company, any Guarantor, any of the Related Companies or any of its Subsidiaries Unconsolidated Entity shall fail to pay when dueat maturity, or within any applicable period of grace, any Indebtedness or obligations under Swap Contracts in an aggregate amount greater than $75,000,000Recourse Indebtedness, or shall fail to observe or perform any material term, covenant or agreement contained in any one or more agreements agreement by which it is bound, evidencing or securing any Recourse Indebtedness or obligations under Swap Contracts in an aggregate amount greater than $75,000,000 for such period of time as would permit, or would have permitted permit (assuming the giving of appropriate notice if required) the holder or holders thereof or of any obligations issued thereunder to accelerate the maturity thereof thereof, and in any event, such failure shall continue for thirty (30) days, unless the aggregate amount of all such defaulted Recourse Indebtedness is less than $10,000,000.00, provided, however, that defaulted Recourse Indebtedness of an Unconsolidated Entity in which Borrower and/or any Guarantor and/or any Related Company (x) owns less than fifty percent (50%) of the equity interest and (y) has no power to control the management and policies of such Unconsolidated Entity (any such defaulted Recourse Indebtedness, "Special Recourse Indebtedness") shall only be included for purposes of determining whether the aggregate amount of all such defaulted Recourse Indebtedness is less than $10,000,000 to the extent, if any, that said Special Recourse Indebtedness is Recourse, directly or terminate its commitment with respect thereto;
(g) if the indirectly, to Borrower, the any Guarantor or any Significant Subsidiary makes an assignment for the benefit of creditors, or admits in writing its inability to pay or generally fails to pay its debts as they mature or become due, or petitions or applies for the appointment of a trustee or other custodian, liquidator or receiver of the Borrower, the Guarantor or any Significant Subsidiary, or of any substantial part of the assets of the Borrower, the Guarantor or any Significant Subsidiary or commences any case or other proceeding relating to the Borrower, the Guarantor or any Significant Subsidiary 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, the Guarantor or any Significant Subsidiary or the Borrower, the Guarantor or any Significant Subsidiary 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 Borrower or the Guarantor or any Significant Subsidiary 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 or the Guarantor or any Significant Subsidiary in an involuntary case under federal bankruptcy laws of any jurisdiction as now or hereafter constituted;
(i) if there shall remain in force, undischarged, unsatisfied and unstayed, for more than thirty days, whether or not consecutive, any final judgment against the Borrower or any Subsidiary which, with other outstanding final judgments against the Borrower and its Subsidiaries, exceeds in the aggregate $50,000,000 after taking into account any undisputed insurance coverage;
(j) if, with respect to any Guaranteed Pension Plan, an ERISA Reportable Event shall have occurred and the Banks shall have determined in their reasonable discretion that such event reasonably could be expected to result in liability of the Borrower or any Subsidiary to the PBGC or such Plan in an aggregate amount exceeding $50,000,000 and such event in the circumstances occurring reasonably could constitute grounds for the partial or complete termination of such Plan by the PBGC or for the appointment by the appropriate United States District Court of a trustee to administer such Plan; or a trustee shall have been appointed by the appropriate United States District Court to administer such Plan; or the PBGC shall have instituted proceedings to terminate such Plan;
(k) if 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 Banks, 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 or on behalf of the Borrower, the Guarantor, Related Company or any of their respective stockholders, or any court or any assets (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 effect that, any one or more of the Loan Documents is illegal, invalid or unenforceable than their respective interests in accordance with the terms thereof; or
(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 25% or more of the outstanding shares of common voting stock of the Borrower; or during any period of twelve consecutive calendar months, individuals who were directors of the Borrower on the first day of such period (together with any new directors whose election by such board or whose nomination for election by the shareholders of the Borrower was approved by a vote of a majority of the directors still in office who were either directors at the beginning of such period or whose election or nomination for election was previously so approved) shall cease to constitute a majority of the board of directors of the Borrower;Unconsolidated Entity),
Appears in 1 contract
Sources: Credit and Guaranty Agreement (Sl Green Realty Corp)
Events of Default and Acceleration. If any of the following events (“"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 or lapse of time, “"Defaults”") shall occur:: (
(a) if the Borrower shall fail to pay (i) any principal of the Loans or any Reimbursement Obligation when 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 or (ii) any interest on the Loans within three (3) Business Days following the date when 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;
; (b) if the Borrower shall fail to pay the commitment fee, any interest or fees Letter of Credit Fee, or other amounts owing sums due hereunder (or under any of the other than those specified in subsection (a) above) Loan Documents, within five (5) Business Days after following the date when the same shall become due and payable payable, whether at the Maturity Date stated date of maturity or any accelerated date of maturity or at any other date fixed for payment;
; (c) if the Guarantor or the Borrower shall fail to comply with any of its covenants contained in 8 (other than the covenants contained in §§7.48.1 (which are governed by 13.1(a) and (b)), 7.58.6(b) or 8.8 (only with respect to state and local taxes, 7.15assessments, 7.16and other governmental charges, 8 and which shall be contested in good faith at the time)), 9 hereof;
(other than the covenants contained in 9.8) or 10 or any of the covenants contained in any of the Mortgages (after all applicable grace periods contained therein have elapsed); (d) if the Guarantor or the Borrower or any of their Subsidiaries shall fail to perform any term, covenant or agreement contained herein or in any of the other Loan Documents (other than those specified elsewhere in subsections this 13.1) for thirty (a), (b), and (c30) above) and such failure shall not be remedied within 30 days after written notice of such failure shall have has been given to the Guarantor or the Borrower by the Administrative Agent or any of Lender; provided, however, that in the Banks;
(e) if event that any representation or warranty contained in this Agreement or in any document or instrument delivered pursuant such failure to or in connection with this Agreement shall prove to have been false in any material respect upon the date when made or repeated;
(f) if the Borrower or any of its Subsidiaries shall fail to pay when due, or within any applicable period of grace, any Indebtedness or obligations under Swap Contracts in an aggregate amount greater than $75,000,000, or fail to observe or perform any material such term, covenant or agreement (other than the covenants contained in any one or more agreements by which it is bound, evidencing or securing any Indebtedness or obligations under Swap Contracts in an aggregate amount greater than $75,000,000 for such period of time as would permit, or would have permitted 8.8 (assuming the giving of appropriate notice if required) the holder or holders thereof or of any obligations issued thereunder to accelerate the maturity thereof or terminate its commitment with respect thereto;
(g) if the Borrower, the Guarantor or any Significant Subsidiary makes an assignment for the benefit of creditors, or admits in writing its inability to pay or generally fails to pay its debts as they mature or become due, or petitions or applies for the appointment of a trustee or other custodian, liquidator or receiver of the Borrower, the Guarantor or any Significant Subsidiary, or of any substantial part of the assets of the Borrower, the Guarantor or any Significant Subsidiary or commences any case or other proceeding relating to the Borrower, the Guarantor or any Significant Subsidiary 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, the Guarantor or any Significant Subsidiary or the Borrower, the Guarantor or any Significant Subsidiary 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 Borrower or the Guarantor or any Significant Subsidiary 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 or the Guarantor or any Significant Subsidiary in an involuntary case under federal bankruptcy laws of any jurisdiction as now or hereafter constituted;
(i) if there shall remain in force, undischarged, unsatisfied and unstayed, for more than thirty days, whether or not consecutive, any final judgment against the Borrower or any Subsidiary which, with other outstanding final judgments against the Borrower and its Subsidiaries, exceeds in the aggregate $50,000,000 after taking into account any undisputed insurance coverage;
(j) if, only with respect to any Guaranteed Pension Planstate and local taxes, an ERISA Reportable Event shall have occurred assessments and the Banks shall have determined in their reasonable discretion that such event reasonably could be expected to result in liability of the Borrower or any Subsidiary to the PBGC or such Plan in an aggregate amount exceeding $50,000,000 and such event in the circumstances occurring reasonably could constitute grounds for the partial or complete termination of such Plan by the PBGC or for the appointment by the appropriate United States District Court of a trustee to administer such Plan; or a trustee shall have been appointed by the appropriate United States District Court to administer such Plan; or the PBGC shall have instituted proceedings to terminate such Plan;
(k) if any of the Loan Documents other governmental charges which shall be cancelled, terminated, revoked or rescinded otherwise than contested in accordance with the terms thereof or with the express prior written agreement, consent or approval of the Banks, 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 or on behalf of the Borrower, the Guarantor, or any of their respective stockholders, 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 effect that, any one or more of the Loan Documents is illegal, invalid or unenforceable in accordance with the terms thereof; or
(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 25% or more of the outstanding shares of common voting stock of the Borrower; or during any period of twelve consecutive calendar months, individuals who were directors of the Borrower on the first day of such period (together with any new directors whose election by such board or whose nomination for election by the shareholders of the Borrower was approved by a vote of a majority of the directors still in office who were either directors good faith at the beginning of such period or whose election or nomination for election was previously so approvedtime) shall cease to constitute a majority of the board of directors of the Borrower;and 9.
Appears in 1 contract
Events of Default and Acceleration. If any of the following events (“Events 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 and/or or lapse of time, “"Defaults”") shall occur:
(a) if the Borrower shall fail to pay any principal of the Revolving Credit Loans when 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;
(b) if the Borrower shall fail to pay any interest or fees on the Revolving Credit Loans, the commitment fee, any Letter of Credit Fee, the Administrative Agent's fee, or other amounts owing sums due hereunder or under any of the other Loan Documents, within ten (other than those specified in subsection (a10) above) within five (5) Business Days after days of the same shall become due and payable whether at the Maturity Date 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 any of the its covenants contained in §§7.4Section 8.1 (including, 7.5as it applies to Section 13.1(b), 7.15any grace period applicable thereto), 7.16Section 8.4 (within five (5) days of when any monthly financial statement would otherwise be due and within fifteen (15) days of when any quarterly or annual statement would otherwise be due), 8 and 9 hereofSection 8.5.1, Section 8.5.4 (within fifteen (15) days of when notice would otherwise be due), the first sentence of Section 8.6, Section 8.7, Section 8.12, Section Section 9.1 through 9.6, Section Section 9.8 through 9.13, Section 10 or any covenant contained in the Mortgage the violation of which would constitute an immediate "Event of Default" under such Mortgage;
(d) if the Borrower shall fail to perform any term, covenant or agreement contained herein or in any of the other Loan Documents (other than those specified elsewhere in subsections this Section 13.1) for thirty (a), (b), and (c30) above) and such failure shall not be remedied within 30 days after written notice of such failure shall have has been given to the Borrower by the Administrative Agent or any of the BanksAgent;
(e) if any representation or warranty contained of the Borrower or any of its Subsidiaries in this Credit Agreement or any of the other Loan Documents or in any other document or instrument delivered pursuant to or in connection with this Credit Agreement shall prove to have been false in any material respect upon the date when made or deemed to have been made or repeated;
(f) if the Borrower or any of its Subsidiaries shall fail to pay default in the payment when duedue of the principal of or interest on the post-petition Indebtedness in excess of $1,000,000, or within any applicable period the pre-petition Indebtedness in excess of grace$1,000,000 if, any Indebtedness by order of the Bankruptcy Court issued with respect to such pre-petition Indebtedness, a default thereunder would entitle the holder thereof to relief from the automatic stay of Section 362 of the Bankruptcy Code of such post-petition or obligations under Swap Contracts in an aggregate amount greater than $75,000,000pre-petition Indebtedness, or fail to observe or perform any material term, covenant or agreement contained event specified in any one note, agreement, indenture or more agreements by which it is bound, other document evidencing or securing any such Indebtedness or obligations under Swap Contracts in an aggregate amount greater than $75,000,000 for shall occur if the effect of such period of time as would permitevent is to cause, or would have permitted (assuming with the giving of appropriate notice if requiredor the lapse of time or both) to permit the holder or holders thereof of such Indebtedness (or a trustee or agent on behalf of any obligations issued thereunder such holder or holders) to accelerate the maturity thereof cause such Indebtedness to become due, or terminate to be prepaid in full prior to its commitment with respect theretostated maturity;
(g) if the Borrower, the Guarantor or any Significant Subsidiary makes an assignment for the benefit of creditors, or admits in writing its inability to pay or generally fails to pay its debts as they mature or become due, or petitions or applies for the appointment of a trustee or other custodian, liquidator or receiver of the Borrower, the Guarantor or any Significant Subsidiary, or of any substantial part of the assets of the Borrower, the Guarantor or any Significant Subsidiary or commences any case or other proceeding relating to the Borrower, the Guarantor or any Significant Subsidiary 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, the Guarantor or any Significant Subsidiary or the Borrower, the Guarantor or any Significant Subsidiary 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 Borrower or the a Guarantor or shall be enjoined from conducting any Significant Subsidiary bankrupt or insolventpart of its business as a debtor in possession, or approving a petition there shall occur any disruption to such business, or there shall occur any loss or change in any such case license or other proceeding, or a decree or order for relief is entered in respect permit of the Borrower or the Guarantor or any Significant Subsidiary Guarantor, which in an involuntary each such case under federal bankruptcy laws of any jurisdiction as now or hereafter constituted;
(i) if there shall remain in force, undischarged, unsatisfied and unstayed, for more than thirty days, whether or not consecutive, any final judgment against the Borrower or any Subsidiary which, with other outstanding final judgments against would reasonably be expected to have a material adverse effect on the Borrower and its Subsidiaries, exceeds in the aggregate $50,000,000 after taking into account any undisputed insurance coverageconsidered as a whole;
(j) if, with respect to any Guaranteed Pension Plan, an ERISA Reportable Event shall have occurred and the Banks shall have determined in their reasonable discretion that such event reasonably could be expected to result in liability of the Borrower or any Subsidiary to the PBGC or such Plan in an aggregate amount exceeding $50,000,000 and such event in the circumstances occurring reasonably could constitute grounds for the partial or complete termination of such Plan by the PBGC or for the appointment by the appropriate United States District Court of a trustee to administer such Plan; or a trustee shall have been appointed by the appropriate United States District Court to administer such Plan; or the PBGC shall have instituted proceedings to terminate such Plan;
(ki) if any of the Loan Documents shall be cancelledcanceled, terminated, revoked or rescinded or the Administrative Agent's security interests 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 accordance with the terms thereof or with the express prior written agreement, consent or approval of the BanksLenders, or (ii) 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 or on behalf of the Borrower, the Guarantor, Borrower or any of its 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 determination that, or issue a judgment, order, decree or ruling to the effect that, any one or more of the Loan Documents is illegal, invalid or unenforceable in accordance with the terms thereof; or;
(li) if The Borrower or any person ERISA Affiliate incurs any liability to the PBGC or group a Guaranteed Pension Plan in connection with the termination of persons a Guaranteed Pension Plan pursuant to Title IV of ERISA in an aggregate amount exceeding $15,000,000; the Borrower or any ERISA Affiliate is assessed withdrawal liability pursuant to Title IV of ERISA by a Multiemployer Plan requiring aggregate annual payments exceeding $15,000,000, or any of the following occurs with respect to a Guaranteed Pension Plan: (i) a failure to make timely (without consideration of any extension or waiver) any required quarterly contribution or other payment pursuant to the funding provisions of Section 302 of ERISA; (ii) the appointment by a United States District Court of a trustee to administer such Plan; or (iii) the institution by the PBGC, or by the Borrower, of proceedings (including before the PBGC) to terminate such Plan other than in a standard termination within the meaning of Section 13 4041(b) of ERISA.
(j) the Borrower or 14 any of its Subsidiaries shall be enjoined, restrained or in any way prevented by the order of any court or any administrative or regulatory agency from conducting any material part of its business and such order shall continue in effect for more than thirty (30) days;
(k) there shall occur any material damage to, or loss, theft or destruction of, any Collateral, whether or not insured, or any strike, lockout, labor dispute, embargo, condemnation, act of God or public enemy, or other casualty, which in any such case causes, for more than fifteen (15) consecutive days, the cessation or substantial curtailment of revenue producing activities at any facility of the Securities Exchange Act Borrower or any of 1934its Subsidiaries if such event or circumstance is not covered by business interruption insurance and would have a Material Adverse Effect;
(l) there shall occur the loss, suspension or revocation of, or failure to renew, any license or permit now held or hereafter acquired by the Borrower or any of its Subsidiaries if such loss, suspension, revocation or failure to renew would have a Material Adverse Effect;
(m) the Borrower or any of its Subsidiaries shall be convicted for a federal crime, a punishment for which could include the forfeiture of any assets of the Borrower or such Subsidiary included in the Borrowing Base or any assets of the Borrower or such Subsidiary not included in the Borrowing Base but having a fair market value in excess of $5,000,000;
(n) a Change of Control shall have occurred;
(o) the Availability shall at any time be less than zero;
(p) the Bankruptcy Court shall enter any order (i) amending, supplementing, altering, staying, vacating, rescinding or otherwise modifying any Order without the consent of the Agents and the Lenders, (ii) appointing a chapter 11 trustee or an examiner with enlarged powers relating to the operation of the business (powers beyond those set forth in Section 1106(a)(3) and (4) of the Bankruptcy Code) under Section 1106(b) of the Bankruptcy Code in any of the Cases, (iii) dismissing any of the Cases or converting any of the Cases to a chapter 7 case or (iv) granting relief from the automatic stay to any creditor holding or asserting a Lien or reclamation claim on a material portion (i.e., more than $100,000 per creditor or $500,000 in the aggregate) of the assets of the Borrower or a Guarantor or where the deprivation of the Borrower or a Guarantor of such assets would reasonably be expected to have a material adverse effect on the Borrower and its Subsidiaries, considered as amendeda whole;
(q) the Bankruptcy Court shall fail to enter the Final Order within thirty (30) days of the Filing Date, such Final Order to be in form and substance reasonably satisfactory to the Agents;
(r) an application shall be filed by the Borrower or a Guarantor for the approval of any other Super-Priority Claim in any of the Cases which is PARI PASSU with or senior to the claims of the Agents and the Lenders against the Borrower or a Guarantor hereunder or under any of the other Loan Documents (unless after giving effect to the transactions contemplated by such application, all Obligations (whether contingent or otherwise) shall be paid in full in cash and the Commitments shall be terminated), or there shall arise any such Super-Priority Claim;
(s) the Borrower or a Guarantor shall be unable to pay its post-petition debts as they mature or shall fail to comply with any order of the Bankruptcy Court in any material respect;
(t) there shall remain undischarged for more than thirty (30) days any final post-petition judgment or execution action against the Borrower or a Guarantor, or relief from the automatic stay of Section 362(a) of the Bankruptcy Code shall be granted to any creditor or creditors of the Borrower or a Guarantor with respect to assets having an aggregate value in excess of $500,000 or where the deprivation of the Borrower or a Guarantor of such assets would reasonably be expected to have acquired beneficial ownership a material adverse effect on the Borrower and its Subsidiaries, considered as a whole;
(within u) the meaning Borrower or a Guarantor shall pay or discharge any pre-petition Indebtedness (other than Prepetition Bank Debt, pre-petition Indebtedness contemplated to be paid pursuant to the Cash Budget, and customary first day orders reasonably acceptable to the Agents) in excess of Rule 13d-3 promulgated $250,000 in the aggregate;
(v) the Borrower or a Guarantor shall file a motion in any of the Cases (i) to use cash collateral of the Lenders under Section 363(c) of the Bankruptcy Code without the Lenders' consent, (ii) to recover from any portions of the Collateral any costs or expenses of preserving or disposing of such Collateral under Section 506(c) of the Bankruptcy Code, or (iii) to take any other action or actions adverse to the Lenders or their rights and remedies hereunder or under any of the other Loan Documents or the Lenders' interest in any of the Collateral, which other action or actions would, individually or in the aggregate, have a material adverse effect on the Borrower and its Subsidiaries, considered as a whole;
(w) a suit or action against the Lenders or the Agents shall be commenced by the Securities Borrower, a Guarantor, any federal, state environmental protection or health and Exchange Commission under said Act) safety agency or any official committee in any Case, which suit or action asserts any claim or legal or equitable remedy contemplating subordination of 25% any claim or more Lien of the outstanding shares Lenders or the Agents, and, with respect to any suit or action by any such federal or state agency, (i) a preliminary order for relief or judgment or decree shall have been entered in such suit or action against the Lenders or the Agents or (ii) a motion to dismiss brought by the Lenders or the Agents in response thereto shall have been denied;
(i) the failure, by July 31, 2002, of common voting stock a Reorganization Plan, contemplating the repayment in full, in cash, of the Obligations (excluding any such Obligations disallowed by the Bankruptcy Court pursuant to paragraph 21 of the Interim Order) and the provision for the cash-collateralization of all Letters of Credit in an amount equal to 110% of the Maximum Drawing Amount thereof, to be filed with the Bankruptcy Court; (ii) the failure of such Reorganization Plan to be confirmed by the Bankruptcy Court by November 15, 2002; or (iii) the failure of such Reorganization Plan to become effective by December 1, 2002; or
(i) actual expenditures for any line item for any month shall exceed the amount set forth in the Cash Budget such line item for such month by more than ten percent (10%)or (ii) actual disbursements for any month shall exceed the total disbursement amount set forth in the Cash Budget for such month by more than five percent (5%);
(z) Jose▇▇ ▇▇▇▇▇▇▇▇ ▇▇ another person acceptable to the Majority Lenders ceases to be the Chief Executive Officer of the Borrower; or during and
(aa) any period unpaid and overdue liability in respect of twelve consecutive calendar monthsemployment and trust fund taxes in excess of $250,000 in the aggregate; then, individuals who were directors and in any such event, so long as the same may be continuing, the Administrative Agent may, and upon the request of the Majority Lenders shall, by notice in writing to the Borrower on declare all amounts owing with respect to this Credit Agreement, the first day Revolving Credit Notes and the other Loan Documents to be, and they shall thereupon forthwith become, immediately due and payable without presentment, demand, protest or other notice of such period (together with any new directors whose election by such board or whose nomination for election kind, all of which are hereby expressly waived by the shareholders of the Borrower was approved by a vote of a majority of the directors still in office who were either directors at the beginning of such period or whose election or nomination for election was previously so approved) shall cease to constitute a majority of the board of directors of the Borrower;.
Appears in 1 contract
Sources: Revolving Credit Agreement (Republic Technologies International Holdings LLC)
Events of Default and Acceleration. If any of the following events (“"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 or lapse of time, “"Defaults”") shall occur:
(a) if the Borrower shall fail to pay any principal of the Loans when 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;
(b) if the Borrower shall fail to pay any interest on the Loans or fees any other sums due hereunder or under any of the other amounts owing hereunder Loan Documents (other than those specified in subsection (a) aboveprincipal) within five (5) Business Days days after the same shall become due and payable whether at the Maturity Date or any accelerated date of maturity or at any other date fixed for paymentpayable;
(c) if the Borrower or the Company shall fail to comply with any of the its covenants contained in §§7.4, Section 7.5, 7.15the first sentence of Section 7.6, 7.16Section 7.7, Section 7.13, Section 8 and or Section 9 hereof;
(d) if the Borrower or any Guarantor shall fail to perform any other term, covenant or agreement contained herein or in any of the other Loan Documents (other than those specified elsewhere in subsections this Section 12) for thirty (a), (b), and (c30) above) and such failure shall not be remedied within 30 days after written notice of such failure shall have been given from Agent to the Borrower by the Administrative Agent or any of the BanksBorrower;
(e) if any representation or warranty contained of the Borrower in this Agreement or any of the other Loan Documents or in any other document or instrument delivered pursuant to or in connection with this Agreement Agreement, shall prove to have been false in any material respect upon the date when made or deemed to have been made or repeated;
(f) if the Borrower Borrower, the Company, any Guarantor, any of the Related Companies or any of its Subsidiaries Unconsolidated Entity shall fail to pay when dueat maturity, or within any applicable period of grace, any Indebtedness or obligations under Swap Contracts in an aggregate amount greater than $75,000,000Recourse Indebtedness, or shall fail to observe or perform any material term, covenant or agreement contained in any one or more agreements agreement by which it is bound, evidencing or securing any Recourse Indebtedness or obligations under Swap Contracts in an aggregate amount greater than $75,000,000 for such period of time as would permit, or would have permitted permit (assuming the giving of appropriate notice if required) the holder or holders thereof or of any obligations issued thereunder to accelerate the maturity thereof or terminate its commitment with respect theretothereof, and in any event, such failure shall continue for thirty (30) days, unless the aggregate amount of all such defaulted Recourse Indebtedness is less than $5,000,000.00;
(g) if the Borrower, the Guarantor Company, any Guarantor, any of the Related Companies or any Significant Subsidiary makes Unconsolidated Entity shall fail to pay at maturity, or within any applicable period of grace, any Indebtedness other than Recourse Indebtedness, 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 Indebtedness other than Recourse Indebtedness for such period of time as would permit (assuming the giving of appropriate notice if required) the holder or holders thereof or of any obligations issued thereunder to accelerate the maturity thereof, and in any event, such failure shall continue for thirty (30) days, unless the aggregate amount of all such defaulted Indebtedness other than Recourse Indebtedness plus the amount of any unsatisfied judgments is less than $15,000,000.00;
(i) any of the Borrower, the Company or any Guarantor shall make an assignment for the benefit of creditors, or admits admit in writing its inability to pay or generally fails fail to pay its debts as they mature or become due, or petitions shall petition or applies apply for the appointment of a trustee or other custodian, liquidator or receiver of the Borrower, the Guarantor or any Significant Subsidiary, or of any substantial part of the assets of the Borrower, the Guarantor its properties or any Significant Subsidiary or commences shall commence any case or other proceeding relating to the Borrower, the Guarantor or any Significant Subsidiary 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 shall take any action to authorize or in furtherance of any of the foregoing, or if any such petition or application is shall be filed or any such case or other proceeding is shall be commenced against the Borrower, the Guarantor or any Significant Subsidiary or the Borrower, the Guarantor or any Significant Subsidiary indicates such Person and such Person shall indicate its approval thereof, consent thereto or acquiescence therein, or (ii) any of the events described in clause (i) of this paragraph shall occur with respect to any other Related Company or any Unconsolidated Entity and such event shall have a Material Adverse Effect;
(hi) if a decree or order is entered appointing any such trustee, custodian, liquidator or receiver or adjudicating the Borrower or Borrower, the Guarantor Company, or any Significant Subsidiary 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 or Borrower, the Guarantor Company, or any Significant Subsidiary Guarantor in an involuntary case under federal bankruptcy laws of any jurisdiction as now or hereafter constitutedconstituted or (ii) any of the events described in clause (i) of this paragraph shall occur with respect to any other Related Company or any Unconsolidated Entity and such event shall have a Material Adverse Effect;
(ij) if there shall remain in force, undischarged, unsatisfied and unstayed, for more than thirty days, whether or not consecutive, any uninsured final judgment against the Borrower or any Subsidiary whichthat, with other outstanding uninsured final judgments judgments, undischarged, against the Borrower and its SubsidiariesBorrower, the Company or any of the Related Companies, exceeds in the aggregate $50,000,000 after taking into account any undisputed insurance coverage;
(j) if, with respect to any Guaranteed Pension Plan, an ERISA Reportable Event shall have occurred and the Banks shall have determined in their reasonable discretion that such event reasonably could be expected to result in liability of the Borrower or any Subsidiary to the PBGC or such Plan in an aggregate amount exceeding $50,000,000 and such event in the circumstances occurring reasonably could constitute grounds for the partial or complete termination of such Plan by the PBGC or for the appointment by the appropriate United States District Court of a trustee to administer such Plan; or a trustee shall have been appointed by the appropriate United States District Court to administer such Plan; or the PBGC shall have instituted proceedings to terminate such Plan5,000,000.00;
(k) if any of the Loan Documents or any material provision of any Loan Documents shall be unenforceable, 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 BanksAgent, or any action at law, suit or in equity or other legal proceeding to make unenforceable, cancel, revoke or rescind any of the Loan Documents shall be commenced by or on behalf of the Borrower, the Guarantor, Borrower or any of their respective stockholdersGuarantor, 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 effect that, any one or more of the Loan Documents is illegal, invalid or unenforceable in accordance with the terms thereof; or;
(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 25% one or more of ERISA Events occurs which individually or in the outstanding shares of common voting stock of the Borrower; aggregate results in or during any period of twelve consecutive calendar months, individuals who were directors might reasonably be expected to result in liability of the Borrower on or any of its ERISA Affiliates in excess of $5,000,000 at any one time during the first day term of this Agreement; or if, at any one time, there exists an amount of unfunded pension liabilities (as defined in Section 4001(a)(18) of ERISA), individually or in the aggregate for all Guaranteed Pension Plans (excluding for purposes of such period computation any Guaranteed Pension Plans with respect to which assets exceed benefit liabilities), which exceeds $5,000,000;
(together with any new directors whose election by such board or whose nomination for election by the shareholders of m) the Borrower was approved by or any Guarantor shall be indicted for a vote federal crime, a punishment for which could include the forfeiture of a majority of the directors still in office who were either directors at the beginning of such period or whose election or nomination for election was previously so approved) shall cease to constitute a majority of the board of directors any assets of the Borrower;
(n) the Borrower shall fail to pay, observe or perform any term, covenant, condition or agreement contained in any agreement, document or instrument evidencing, securing or otherwise relating to any Indebtedness of the Borrower to any Lender (other than the Obligations) within any applicable period of grace provided for in such agreement, document or instrument;
(o) any Material Adverse Effect shall occur;
(p) any "Event of Default", as defined in any of the other Loan Documents shall occur; then, and in any such event, so long as the same may be continuing, the Agent may, and upon the request of the Requisite Lenders shall, by notice in writing to the Borrower declare all amounts owing with respect to this Agreement, the Notes and the other Loan Documents to be, and they shall thereupon forthwith become, 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 Sections 12.1(h) or 12.1(i), all such amounts shall become immediately due and payable automatically and without any requirement of notice from the Agent or action by the Requisite Lenders.
Appears in 1 contract
Sources: Revolving Credit and Guaranty Agreement (Sl Green Realty Corp)
Events of Default and Acceleration. If any of the following events (“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 or lapse of time, “Defaults”) shall occur:
(a) if the Borrower shall fail to pay any principal of the Loans when 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;
(b) if the Borrower shall fail to pay any interest on the Loans or any fees or other amounts owing sums due hereunder or under any of the other Loan Documents (other than those specified described in subsection (a§12.1(a)) above) within five (5) Business Days after when the same shall become due and payable payable, whether at the Maturity Date stated date of maturity or any accelerated date of maturity or at any other date fixed for payment;
(c) if the Borrower or any of their respective Subsidiaries shall fail to comply with perform any of the covenants other term, covenant or agreement contained in §§7.4, 7.5, 7.15, 7.16, 8 and 9 hereof9.1 - 9.8;
(d) if the Borrower Borrower, the Guarantors or any of their respective Subsidiaries shall fail to perform any other term, covenant or agreement contained herein or in any of the other Loan Documents which they are required to perform (other than those specified in subsections (athe other subclauses of this §12 or in the other Loan Documents), (b), and (c) above) and such failure shall not be remedied within 30 days after written notice of such failure shall have been given to the Borrower by the Administrative Agent or any of the Banks;
(e) if any representation or warranty contained made by or on behalf of the Borrower, the Guarantors or any of their respective Subsidiaries in this Agreement or any other Loan Document, or any report, certificate, financial statement, request for a Loan or in any other document or instrument delivered pursuant to or in connection with this Agreement Agreement, any advance of a Loan or any of the other Loan Documents shall prove to have been false in any material respect upon the date when made or deemed to have been made or repeated;
(f) if the Borrower Borrower, the Guarantors or any of its their respective Subsidiaries shall fail to pay when duedue (including, without limitation, at maturity), or within any applicable period of grace, any Indebtedness principal, interest or obligations under Swap Contracts in an aggregate other amount greater than $75,000,000on account of any obligation for borrowed money or credit received or other Indebtedness, or shall fail to observe or perform any material term, covenant or agreement agreement, or any other event occurs, contained in any one or more agreements agreement by which it is bound, evidencing or securing any obligation for borrowed money or credit received or under a Derivatives Contract or other Indebtedness or obligations under Swap Contracts in an aggregate amount greater than $75,000,000 for such period of time as would permit, or would have permitted permit (assuming the giving of appropriate notice if required) the holder or holders thereof or of any obligations issued thereunder to accelerate the maturity thereof or terminate its commitment with respect thereto;
(grequire the prepayment, redemption, settlement or purchase thereof; provided that the events described in this §12.1(f) if the Borrower, the Guarantor or any Significant Subsidiary makes shall not constitute an assignment for the benefit Event of creditors, or admits in writing its inability Default unless such failure to pay or generally fails perform or the occurrence of such event, together with other failures to pay its debts or perform or the occurrence of such events as they mature or become duedescribed in this §12.1(f), or petitions or applies for the appointment of a trustee or other custodian, liquidator or receiver of the Borrower, the Guarantor or any Significant Subsidiary, or of any substantial part of the assets of the Borrower, the Guarantor or any Significant Subsidiary or commences any case or other proceeding relating to the Borrower, the Guarantor or any Significant Subsidiary 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 involve singly 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, the Guarantor or any Significant Subsidiary or the Borrower, the Guarantor or any Significant Subsidiary 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 Borrower or the Guarantor or any Significant Subsidiary 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 or the Guarantor or any Significant Subsidiary in an involuntary case under federal bankruptcy laws of any jurisdiction as now or hereafter constituted;
aggregate (i) if there shall remain obligations for Indebtedness (other than Non-Recourse Indebtedness) totaling in force, undischarged, unsatisfied and unstayed, for more than thirty days, whether excess of $25,000,000.00 or not consecutive, any final judgment against the Borrower or any Subsidiary which, with other outstanding final judgments against the Borrower and its Subsidiaries, exceeds (ii) Non-Recourse Indebtedness totaling in the aggregate excess of $50,000,000 after taking into account any undisputed insurance coverage50,000,000.00;
(j) if, with respect to any Guaranteed Pension Plan, an ERISA Reportable Event shall have occurred and the Banks shall have determined in their reasonable discretion that such event reasonably could be expected to result in liability of the Borrower or any Subsidiary to the PBGC or such Plan in an aggregate amount exceeding $50,000,000 and such event in the circumstances occurring reasonably could constitute grounds for the partial or complete termination of such Plan by the PBGC or for the appointment by the appropriate United States District Court of a trustee to administer such Plan; or a trustee shall have been appointed by the appropriate United States District Court to administer such Plan; or the PBGC shall have instituted proceedings to terminate such Plan;
(k) if 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 Banks, 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 or on behalf of the Borrower, the Guarantor, or any of their respective stockholders, 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 effect that, any one or more of the Loan Documents is illegal, invalid or unenforceable in accordance with the terms thereof; or
(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 25% or more of the outstanding shares of common voting stock of the Borrower; or during any period of twelve consecutive calendar months, individuals who were directors of the Borrower on the first day of such period (together with any new directors whose election by such board or whose nomination for election by the shareholders of the Borrower was approved by a vote of a majority of the directors still in office who were either directors at the beginning of such period or whose election or nomination for election was previously so approved) shall cease to constitute a majority of the board of directors of the Borrower;
Appears in 1 contract
Sources: Term Loan Agreement (Mid America Apartment Communities Inc)
Events of Default and Acceleration. If Upon the occurrence and ---------------------------------- during the continuance of any of the following events (“Events each an "Event 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:"),
(a) if the Borrower shall fail to pay (i) any principal of the Loans when due or (ii) any fee payable pursuant to Section 2.3 or any interest on the Loans or any other sum hereunder or under any of the other Loan Documents to which it is a party, in each such case, with respect to this clause (ii), within three days after the date on which 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;; or
(b) if the Borrower shall fail to pay any interest Grand Parent or fees or other amounts owing hereunder (other than those specified in subsection (a) above) within five (5) Business Days after the same shall become due and payable whether at the Maturity Date or any accelerated date of maturity or at any other date fixed for payment;
(c) if the Borrower shall fail to comply with any of the covenants contained in §§7.4Section 6.13(h), 7.5, 7.15, 7.16, 8 and 9 hereof;6.16 or Article VII; or
(dc) if the Borrower Any Omnipoint Loan Party shall fail to perform any term, covenant or agreement contained herein or in any of the other Loan Documents (other than those specified elsewhere in subsections (a), (b), and (c) abovethis Section 10.1) and such failure shall not be remedied within continue for a period of 30 consecutive days after the earlier of (i) written notice of such failure shall have been given to the Borrower by thereof from the Administrative Agent or any of the Banks;(ii) actual knowledge thereof by such Omnipoint Loan Party; or
(ed) if any representation or warranty contained in of any Omnipoint Entity under this Agreement or any of the other Loan Documents or in any other document or instrument delivered pursuant to or in connection with this Agreement or any Loan Document shall prove to have been false not be correct in any material respect upon the date when made or deemed to have been made or repeated;; or
(fi) if the Borrower or any of its Subsidiaries shall fail to pay when due, or within any applicable period of grace, any Indebtedness or obligations under Swap Contracts in an aggregate amount greater than $75,000,000, or fail to observe or perform any material term, covenant or agreement contained in any one or more agreements by which it is bound, evidencing or securing any Indebtedness or obligations under Swap Contracts in an aggregate amount greater than $75,000,000 for such period of time as would permit, or would have permitted (assuming the giving of appropriate notice if required) the holder or holders thereof or of any obligations issued thereunder to accelerate the maturity thereof or terminate its commitment with respect thereto;Significant Entity shall
(gA) if the Borrower, the Guarantor or any Significant Subsidiary makes make an assignment for the benefit of creditors, or
(B) generally not pay its debts as such debts become due or admits admit in writing its inability to generally pay or generally fails fail to pay its debts as they mature or become due, or
(C) petition or petitions or applies apply for the appointment of a trustee or other custodian, liquidator or receiver of the Borrower, the Guarantor for itself or any Significant Subsidiary, or of for any substantial part of the assets of the Borrowerits assets, the Guarantor or any Significant Subsidiary or commences or
(D) shall commence any case or other proceeding relating to the Borrower, the Guarantor or any Significant Subsidiary under any bankruptcy, reorganization, arrangement, insolvency, readjustment of debt, dissolution or liquidation or similar law of any jurisdictionjurisdiction providing for the relief of debtors, now or hereafter in effect, or takes
(ii) any action to authorize or in furtherance of any of the foregoing, or if any such petition or application is described in (i)(C) or (D) above shall be filed or any such case or other proceeding is shall be commenced against the Borrower, the Guarantor or any Significant Subsidiary or the Borrower, the Guarantor or Entity and (x) any Significant Subsidiary indicates Entity shall indicate 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 Borrower or the Guarantor or any Significant Subsidiary bankrupt or insolvent, or approving a petition in any (y) such case petition, application or other proceedingproceeding is not dismissed within 45 days thereof, or a decree (z) any of the actions sought in such petition, application or proceeding (including the entry of an order for relief is entered against, or the appointment of a receiver, trustee, custodian or other similar official for, it or any substantial part of its property) shall occur; or
(iii) any Significant Entity shall take any corporate action to authorize any of the actions set forth above in this subsection (e); or
(f) any Significant Entity shall fail to pay any principal of, premium or interest on or any other amount payable in respect of any Indebtedness that is outstanding in a principal amount of at least $10 million in the Borrower aggregate (but excluding Indebtedness outstanding hereunder and Indebtedness owed to the FCC), when the same becomes due and payable (whether by scheduled maturity, required prepayment, acceleration, demand or the Guarantor otherwise), or any Significant Subsidiary in an involuntary case other event shall occur or condition shall exist under federal bankruptcy laws any agreement or instrument relating to any such Indebtedness of any jurisdiction as now Significant Entity, if the effect of such event or hereafter constituted;
condition is to accelerate, or to permit the acceleration of, the maturity of such Indebtedness or otherwise to cause, or to permit the holder thereof to cause, such Indebtedness to mature; or any such Indebtedness of any Significant Entity shall be declared to be due and payable or required to be prepaid or redeemed (other than by a regularly scheduled required prepayment or redemption), purchased or defeased, or an offer to prepay, redeem, purchase or defease such Indebtedness shall be required to be 84 made, other than (i) if there shall remain in force, undischarged, unsatisfied and unstayed, for the redemption or repurchase of not more than thirty days, whether or not consecutive, any final judgment against the Borrower or any Subsidiary which, with other outstanding final judgments against the Borrower and its Subsidiaries, exceeds $15,000,000 of Senior Notes as permitted in the aggregate $50,000,000 after taking into account any undisputed insurance coverage;
(j) if, with respect to any Guaranteed Pension Plan, an ERISA Reportable Event shall have occurred and the Banks shall have determined in their reasonable discretion that such event reasonably could be expected to result in liability last sentence of the Borrower or any Subsidiary to definition of "Change of Control" in Article I and (ii) from the PBGC or such Plan in an aggregate amount exceeding $50,000,000 and such event in the circumstances occurring reasonably could constitute grounds for the partial or complete termination Net Cash Proceeds of such Plan by the PBGC or for the appointment by the appropriate United States District Court of a trustee to administer such Plan; or a trustee shall have been appointed by the appropriate United States District Court to administer such Plan; or the PBGC shall have instituted proceedings to terminate such Plan;
asset sales (k) if 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 BanksSection 3.2), or any action at law, suit or in equity or other legal proceeding to canceldebt issuances, revoke or rescind any of the Loan Documents shall be commenced by or on behalf of the Borrower, the Guarantor, or any of their respective stockholders, 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 in each case prior to the effect that, any one or more of the Loan Documents is illegal, invalid or unenforceable in accordance with the terms stated maturity thereof; or
(lg) if any person final judgment or group order for the payment of persons money in an amount of $10,000,000 or more (within excluding any portion thereof that an insurance company of recognized standing and creditworthiness reasonably satisfactory to the meaning of Section 13 or 14 of the Securities Exchange Act of 1934, as amendedAdministrative Agent has agreed to pay) shall have acquired beneficial ownership (within the meaning of Rule 13d-3 promulgated by the Securities and Exchange Commission under said Act) of 25% be rendered against one or more of the outstanding shares of common voting stock of the Borrower; Significant Entities and shall not be paid, discharged or during bonded and either
(i) enforcement proceedings shall have been commenced by any creditor upon such judgment or order, or
(ii) there shall be any period of twelve 30 consecutive calendar months, individuals who were directors days during which a stay of the Borrower on the first day enforcement of such period (together with any new directors whose election judgment or order, by such board or whose nomination for election by the shareholders of the Borrower was approved by a vote reason of a majority of the directors still pending appeal or otherwise, shall not be in office who were either directors at the beginning of such period or whose election or nomination for election was previously so approved) shall cease to constitute a majority of the board of directors of the Borrower;effect; or
Appears in 1 contract
Sources: Loan Agreement (Omnipoint Corp \De\)
Events of Default and Acceleration. If any of the following events (“"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, “Defaults”") shall occur:
(a) if the Borrower shall fail to pay any principal of the Loans or any Reimbursement Obligation when 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;
(b) if the Borrower or any of the other Transaction Parties shall fail to pay any interest on the Loans, the commitment fee, any Letter of Credit Fee, or fees the Agent's fee or other amounts owing sums due hereunder (or under any of the other than those specified in subsection (a) above) within five (5) Business Days after Loan Documents, when the same shall become due and payable payable, whether at the Maturity Date stated date of maturity or any accelerated date of maturity or at any other date fixed for payment;
(c) if the Borrower or the Guarantor shall fail to comply with any of the its covenants contained in §§7.4Section 8 (other than Sections 8.3, 7.58.4, 7.158.5 and 8.9), 7.16, 8 and 9 hereof(other than Section 9.11) or 10;
(d) if the Borrower Borrower, the Guarantor or any of the other Transaction Parties shall fail to perform any term, covenant or agreement contained herein or in any of the other Loan Documents (other than those specified elsewhere in subsections this Section 13.1) for fifteen (a), (b), and (c15) above) and such failure shall not be remedied within 30 days after written notice of such failure shall have has been given to the Borrower by the Administrative Agent or shall fail to pay any sum due under any of the BanksLoan Documents (other than the sums referred to in paragraphs (a) and (b) of this Section 13.1) within fifteen (15) days after written notice of such failure has been given to the Borrower by the Agent;
(e) if any representation or warranty contained of the Borrower or any of the other Transaction Parties in this Credit Agreement or any of the other Loan Documents, in any document certificate or instrument delivered pursuant to or notice given in connection with this Agreement therewith shall prove to have been false in any material respect upon the date when made or deemed to have been made or repeated;
(f) if the Borrower or any of its Subsidiaries the other Transaction Parties shall fail to pay when dueat maturity, or within any applicable period of grace, any obligation in respect of any Indebtedness or obligations under Swap Contracts in an For Borrowed Money (the aggregate amount greater than of which Indebtedness For Borrowed Money exceeds $75,000,000, 500,000) or fail to observe or perform any material term, covenant or agreement contained in any one or more agreements agreement by which it is bound, evidencing or securing any Indebtedness or obligations under Swap Contracts in an For Borrowed Money (the aggregate amount greater than of which Indebtedness For Borrowed Money exceeds $75,000,000 500,000) for such period of time as would permit, or would have permitted permit (assuming the giving of appropriate notice if required) the holder or holders thereof or of any obligations issued thereunder to accelerate the maturity thereof or terminate its commitment with respect theretothereof;
(g) if the Borrower, the Guarantor Borrower or any Significant Subsidiary makes of the other Transaction Parties (i) shall make an assignment for the benefit of creditors, (ii) shall be adjudicated bankrupt or admits in writing its inability to pay or generally fails to pay its debts as they mature or become dueinsolvent, (iii) shall seek the appointment of, or petitions or applies for be the appointment subject of an order appointing, a trustee or other custodiantrustee, liquidator or receiver of the Borrower, the Guarantor as to all or any Significant Subsidiary, or of any substantial part of the assets of the Borrowerits assets, the Guarantor (iv) shall commence, approve or any Significant Subsidiary or commences consent to, any case or other proceeding relating to the Borrower, the Guarantor or any Significant Subsidiary under any bankruptcy, reorganization, arrangement, insolvency, readjustment of debt, dissolution or liquidation reorganization or similar law and, in the case of any jurisdictionan involuntary case or proceeding, 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 not dismissed within forty-five (45) days following the Borrower, the Guarantor or any Significant Subsidiary or the Borrower, the Guarantor or any Significant Subsidiary indicates its approval commencement thereof, consent thereto or acquiescence therein;
(hv) if a decree or order is entered appointing any such trustee, custodian, liquidator or receiver or adjudicating shall be the Borrower or the Guarantor or any Significant Subsidiary bankrupt or insolvent, or approving a petition in any such case or other proceeding, or a decree or subject of an order for relief is entered in respect of the Borrower or the Guarantor or any Significant Subsidiary in an involuntary case under federal bankruptcy laws law;
(h) the Borrower or any of any jurisdiction the other Transaction Parties shall be unable to pay its debts as now or hereafter constitutedthey mature;
(i) if there shall remain in force, undischarged, unsatisfied and unstayed, for more than thirty days, whether or not consecutive, any final judgment against the Borrower or any Subsidiary whichof the other Transaction Parties that, with other outstanding final judgments judgments, undischarged, unsatisfied and unstayed against the Borrower and its Subsidiaries, or any of the other Transaction Parties exceeds in the aggregate $50,000,000 after taking into account any undisputed insurance coverage500,000;
(j) if, with respect to the holders of all or any Guaranteed Pension Plan, an ERISA Reportable Event shall have occurred and the Banks shall have determined in their reasonable discretion that such event reasonably could be expected to result in liability part of the Borrower Subordinated Debt shall accelerate the maturity of all or any Subsidiary to part of the PBGC or such Plan in an aggregate amount exceeding $50,000,000 and such event in the circumstances occurring reasonably could constitute grounds for the partial or complete termination of such Plan by the PBGC or for the appointment by the appropriate United States District Court of a trustee to administer such Plan; or a trustee shall have been appointed by the appropriate United States District Court to administer such Plan; Subordinated Debt or the PBGC Subordinated Debt shall have instituted proceedings to terminate such Planbe prepaid, redeemed or repurchased in whole or in part;
(k) if any of the Loan Documents shall be cancelled, 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 accordance with the terms thereof or with the express prior written agreement, consent or approval of the Banks, 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 or on behalf of the Borrower, Borrower or any of the Guarantor, other Transaction Parties 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 determination that, or issue a judgment, order, decree or ruling to the effect that, any one or more of the Loan Documents is is, in its or their entirety or in any material respect, illegal, invalid or unenforceable in accordance with the terms thereof; or;
(li) if the Guarantor shall at any person time, legally or group of persons (within the meaning of Section 13 or 14 beneficially cease to own 100% of the Securities Exchange Act Voting Stock of 1934the Borrower, except as amendedpermitted by Section 9.5.1, (ii) the Funds or their affiliates, collectively shall have acquired beneficial ownership cease to own legally or beneficially fifty-one percent (within the meaning of Rule 13d-3 promulgated by the Securities and Exchange Commission under said Act51%) of 25% or more of the outstanding shares Voting Stock of common voting stock the Guarantor on a fully-diluted basis or (iii) ▇▇▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇, ▇.▇. shall cease to manage the Funds; then, and in any such event, so long as the same may be continuing, the Agent may, and upon the request of the Majority Banks shall, by notice in writing to the Borrower declare all amounts owing with respect to this Credit Agreement, the Notes and the other Loan Documents and all Reimbursement Obligations to be, and they shall thereupon forthwith become, 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 Sections 13.1(g) or during 13.1(h), all such amounts shall become immediately due and payable automatically and without any period requirement of twelve consecutive calendar months, individuals who were directors of notice from the Borrower on the first day of such period (together with Agent or any new directors whose election by such board or whose nomination for election by the shareholders of the Borrower was approved by a vote of a majority of the directors still in office who were either directors at the beginning of such period or whose election or nomination for election was previously so approved) shall cease to constitute a majority of the board of directors of the Borrower;Bank.
Appears in 1 contract
Sources: Revolving Credit Agreement (Charlotte Russe Holding Inc)
Events of Default and Acceleration. If any of the following events (“"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, “Defaults”") shall occuroccur and be continuing:
(a) if the Borrower shall fail to pay any principal of the Loans or any Reimbursement Obligation when 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;
(b) if the Borrower or any of its Subsidiaries shall fail to pay any interest or fees on the Loans, any Fees, or other amounts owing sums due hereunder or under any of the other Loan Documents, within three (other than those specified in subsection (a) above) within five (53) Business Days after the same shall have become due and payable payable, whether at the Maturity Date 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 any of the its covenants contained in §§7.4Sections 7.3(a), (b) or (c), the first sentence of 7.5, 7.157.9, 7.167.10, 8 and 9 hereofor 9;
(d) if the Borrower or any of its Subsidiaries shall fail to perform any term, covenant or agreement contained herein or in any of the other Loan Documents (other than those specified elsewhere in subsections this Section 12.1) for thirty (a), (b), and (c30) above) and such failure shall not be remedied within 30 days after written notice of such failure shall have has been given to the Borrower by the Administrative Agent or any of the BanksAgent;
(e) if any representation or warranty contained of the Borrower or any of its Subsidiaries in this Credit Agreement or any of the other Loan Documents or in any other document or instrument delivered pursuant to or in connection with this Credit Agreement shall prove to have been false in any material respect upon the date when made or deemed to have been made or repeated;
(f) if the Borrower or any of its Subsidiaries shall fail to pay when dueat maturity, or within any applicable period of grace, any Indebtedness obligation for borrowed money or obligations under Swap Contracts credit received or in an respect of any Capitalized Leases or any Synthetic Leases, individually or in the aggregate amount greater than which exceeds $75,000,00025,000,000 ("Material Debt"), or fail to observe or perform any material term, covenant or agreement contained in any one or more agreements by which it is bound, evidencing or securing any Indebtedness or obligations under Swap Contracts in an aggregate amount greater than $75,000,000 agreement for such period of time Material Debt as would permit, or would have permitted permit (assuming the giving of appropriate notice if required) the holder or holders thereof or of any obligations issued thereunder to accelerate the maturity thereof thereof, or terminate its commitment with respect theretoany such holder or holders shall rescind or shall have a right to rescind the purchase of any such obligations constituting Material Debt;
(g) if the Borrower, the Guarantor Borrower or any Significant Subsidiary makes of its Subsidiaries shall make an assignment for the benefit of creditors, or admits admit in writing its inability to pay or generally fails fail to pay its debts as they mature or become due, or petitions shall petition or applies apply for the appointment of a trustee or other custodian, liquidator or receiver of the Borrower, the Guarantor Borrower or any Significant Subsidiary, of its Subsidiaries or of any substantial part of the assets of the Borrower, the Guarantor Borrower or any Significant Subsidiary of its Subsidiaries or commences shall commence any case or other proceeding relating to the Borrower, the Guarantor Borrower or any Significant Subsidiary of 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 shall take any action to authorize or in furtherance of any of the foregoing, or if any such petition or application is shall be filed or any such case or other proceeding is shall be commenced against the Borrower, the Guarantor Borrower or any Significant Subsidiary or of its Subsidiaries and the Borrower, the Guarantor Borrower or any Significant Subsidiary indicates of its Subsidiaries shall indicate its approval thereof, consent thereto or acquiescence thereintherein or such petition or application shall not have been dismissed within sixty (60) days following the filing thereof;
(h) if a decree or order is entered appointing any such trustee, custodian, liquidator or receiver or adjudicating the Borrower or the Guarantor or any Significant Subsidiary of 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 in respect of the Borrower or any Subsidiary of the Guarantor or any Significant Subsidiary Borrower in an involuntary case under federal bankruptcy laws of any jurisdiction as now or hereafter constituted, which shall not have been dismissed or stayed within sixty (60) days after the filing thereof;
(i) if there shall remain in force, undischarged, unsatisfied and unstayed, for more than thirty sixty (60) days, whether or not consecutive, any final judgment against the Borrower or any Subsidiary whichof its Subsidiaries that, with other outstanding final judgments judgments, undischarged, against the Borrower and or any of its Subsidiaries, Subsidiaries exceeds in the aggregate $50,000,000 after taking into account any undisputed insurance coverage15,000,000;
(j) if, with respect to any Guaranteed Pension Plan, an ERISA Reportable Event shall have occurred and the Banks shall have determined in their reasonable discretion that such event reasonably could be expected to result in liability of the Borrower or any Subsidiary to the PBGC or such Plan in an aggregate amount exceeding $50,000,000 and such event in the circumstances occurring reasonably could constitute grounds for the partial or complete termination of such Plan by the PBGC or for the appointment by the appropriate United States District Court of a trustee to administer such Plan; or a trustee shall have been appointed by the appropriate United States District Court to administer such Plan; or the PBGC shall have instituted proceedings to terminate such Plan;
(k) if 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 BanksLenders required thereby, 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 or on behalf of the Borrower, the Guarantor, Borrower or any of its 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 determination that, or issue a judgment, order, decree or ruling to the effect that, any one or more of the Loan Documents is illegal, invalid or unenforceable in accordance with the terms thereof;
(i) the Borrower or any ERISA Affiliate shall fail to pay when due an amount or amounts aggregating in excess of $15,000,000 which it shall have become liable to pay under Title IV of ERISA; (ii) notice of intent to terminate a Material Plan shall be filed under Title IV of ERISA by the Borrower or any ERISA Affiliate, any plan administrator or any combination of the foregoing; (iii) the PBGC shall institute proceedings under Title IV of ERISA to terminate, to impose liability (other than for premiums under Section 4007 of ERISA) in respect of, or to cause a trustee to be appointed to administer any Material Plan; (iv) a condition shall exist by reason of which the PBGC would be entitled to obtain a decree adjudicating that any Material Plan must be terminated; (v) 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 the Borrower and/or any ERISA Affiliate to incur a current payment obligation in excess of $15,000,000; or
(l) if a Change of Control shall occur; then, and in any person or group of persons (within such event, so long as the meaning of Section 13 or 14 same may be continuing, the Administrative Agent may, and upon the request of the Securities Exchange Act Required Lenders shall, by notice in writing to the Borrower declare all amounts owing with respect to this Credit Agreement and the other Loan Documents and all Reimbursement Obligations to be, and they shall thereupon forthwith become, immediately due and payable without presentment, demand, protest or other notice of 1934any kind, as amended) shall have acquired beneficial ownership (within the meaning all of Rule 13d-3 promulgated which are hereby expressly waived by the Securities and Exchange Commission under said Act) of 25% or more of the outstanding shares of common voting stock of the Borrower; provided that in the event of any Event of Default specified in Sections 12.1 (g) or during 12.1(h), all such amounts shall become immediately due and payable automatically and without any period requirement of twelve consecutive calendar months, individuals who were directors of notice from the Borrower on the first day of such period (together with Administrative Agent or any new directors whose election by such board or whose nomination for election by the shareholders of the Borrower was approved by a vote of a majority of the directors still in office who were either directors at the beginning of such period or whose election or nomination for election was previously so approved) shall cease to constitute a majority of the board of directors of the Borrower;Lender.
Appears in 1 contract
Events of Default and Acceleration. If any of the following events (“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 or lapse of time, “Defaults”) shall occur:
(a) if the Borrower shall fail to pay any principal of the Loans or any reimbursement obligations with respect to the Letters of Credit when 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;
(b) if the Borrower shall fail to pay any interest on the Loans within five (5) Business Days of the date that the same shall become due and payable, or any fees or other amounts owing sums due hereunder (other than those specified in subsection (aany voluntary prepayment) above) or under any of the other Loan Documents within five (5) Business Days after the same shall become due and payable notice from Agent, whether at the Maturity Date stated date of maturity or any accelerated date of maturity or at any other date fixed for payment;
(c) if any of the Borrower or the other Credit Parties or any of their respective Subsidiaries, to the extent applicable, shall fail to comply with perform any of the covenants other term, covenant or agreement contained in (i) §§7.48.1, 7.58.2, 7.158.3, 7.168.4, 8 and 9 hereof8.9, 8.13, 8.14, and/or 8.15, or (ii) §9;
(d) if any of the Borrower or the other Credit Parties shall fail to perform any other term, covenant or agreement contained herein or in any of the other Loan Documents which they are required to perform (other than those specified in subsections the other subclauses of this §▇▇ (a▇▇▇▇▇▇▇▇▇, §▇▇.▇ below) or in the other Loan Documents), (b), and (c) above) and such failure shall continue for thirty (30) days after Borrower receives from Agent written notice thereof, and in the case of a default that cannot be remedied cured within 30 days after written notice such thirty (30)-day period despite Borrower’s diligent efforts but is susceptible of such failure being cured, then Borrower shall have been given such additional time as is reasonably necessary to effect such cure, but in no event in excess of one hundred twenty (120) days from Borrower’s receipt of Agent’s original notice; provided that with respect to any defaults under §7.4, §7.5, §7.7, or §7.9 no additional cure period following the Borrower by the Administrative Agent or any of the Banksinitial thirty (30) day cure period shall be provided with respect to such defaults;
(e) if any representation or warranty contained made by or on behalf of the Credit Parties or any of their respective Subsidiaries in this Agreement or any other Loan Document, or any report, certificate, financial statement, request for a Loan, or in any other document or instrument delivered pursuant to or in connection with this Agreement Agreement, any advance of a Loan, or any of the other Loan Documents shall prove to have been false or misleading in any material respect upon the date when made or deemed to have been made or repeated; provided, however, that as to any such false or misleading representation or warranty which was unintentionally made to Agent or any Lender and which can be made true and correct by action of Borrower, Borrower shall have a period of thirty (30) days following Borrower’s Knowledge of such falsity to undertake and complete all action necessary to make such representation or warranty, true and correct in all material respects;
(f) if the Borrower any Credit Party or any of its Subsidiaries Subsidiary thereof shall fail to pay when duedue (including, at maturity), or within any applicable period of notice and grace, any Indebtedness principal, interest or obligations other amount on account of any obligation under Swap Contracts in an aggregate amount greater than $75,000,000any Material Indebtedness, or shall fail to observe or perform any material term, covenant or agreement contained in any one or more agreements agreement by which it is bound, evidencing or securing any Indebtedness or obligations material obligation under Swap Contracts in an aggregate amount greater than $75,000,000 for such period of time as would permitany Material Indebtedness, or would have permitted (assuming the giving of appropriate notice if required) and the holder or holders thereof of such Material Indebtedness or of any obligations issued thereunder to accelerate have accelerated the maturity thereof or terminate its commitment with respect theretothereof;
(g) if any of the Borrower, the Guarantor other Credit Party or any Significant a Subsidiary makes that had previously been valued at $10,000,000 or more in accordance with GAAP: (i) shall make an assignment for the benefit of creditors, or admits admit in writing in a legal proceeding its general inability to pay or generally fails fail to pay its debts as they mature or become due, or petitions shall petition or applies apply for the appointment of a trustee or other custodian, liquidator or receiver of the Borrower, the Guarantor for it or any Significant Subsidiary, or of any substantial part of the assets of the Borrowerits assets, the Guarantor or any Significant Subsidiary or commences (ii) shall commence any case or other proceeding relating to the Borrower, the Guarantor or any Significant Subsidiary it 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 (iii) shall take any action to authorize or in furtherance of any of the foregoing, or if any such ;
(h) a petition or application is shall be filed for the appointment of a trustee or other custodian, liquidator or receiver of any of the Borrower, other Credit Party, or Subsidiary or any such substantial part of the assets of any thereof or a case or other proceeding is shall be commenced against the Borrowerany such Person under any bankruptcy, the Guarantor reorganization, arrangement, insolvency, readjustment of debt, dissolution or liquidation or similar law of any Significant Subsidiary jurisdiction, now or the Borrowerhereafter in effect, the Guarantor or and any Significant Subsidiary indicates such Person shall indicate its approval thereof, consent thereto or acquiescence thereintherein or such petition, application, case or proceeding shall not have been dismissed within ninety (90) days following the filing or commencement thereof;
(hi) if a decree or order is entered appointing any such a trustee, custodian, liquidator or receiver for any of the Borrower, other Credit Party, or Subsidiary or adjudicating the Borrower or the Guarantor or any Significant Subsidiary such Person, 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 or the Guarantor or any Significant Subsidiary such Person in an involuntary case under federal bankruptcy laws of any jurisdiction as now or hereafter constituted;
(ij) if there shall remain in force, undischarged, unsatisfied and unstayed, for more than thirty sixty (60) days, whether or not consecutive, one or more uninsured or unbonded final judgments against any final judgment against the Borrower Credit Party or any Subsidiary whichthat is not a Guarantor that, with other outstanding final judgments against the Borrower and its Subsidiaries, exceeds either individually or in the aggregate $50,000,000 after taking into account any undisputed insurance coverage;
(j) ifaggregate, with respect to any Guaranteed Pension Plan, an ERISA Reportable Event shall have occurred and the Banks shall have determined exceed in their reasonable discretion that such event reasonably could be expected to result in liability excess of the Borrower or greater of $2,500,000, in any Subsidiary to the PBGC or such Plan in an aggregate amount exceeding $50,000,000 and such event in the circumstances occurring reasonably could constitute grounds for the partial or complete termination of such Plan by the PBGC or for the appointment by the appropriate United States District Court of a trustee to administer such Plan; or a trustee shall have been appointed by the appropriate United States District Court to administer such Plan; or the PBGC shall have instituted proceedings to terminate such Plancalendar year;
(k) if any of the Loan Documents shall be cancelledcanceled, terminated, revoked or rescinded otherwise than in accordance with the terms hereof or thereof or with the express prior written agreement, consent or approval of the BanksRequired Lenders, 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 or on behalf of the Borrower, the Guarantor, or any of their respective stockholdersthe Credit Parties, or any court or any other governmental or regulatory authority Governmental Authority or agency of competent jurisdiction shall make a determination thatdetermination, or issue a judgment, order, decree or ruling ruling, to the effect that, that any one or more of the Loan Documents is illegal, invalid or unenforceable in accordance with the terms thereof;
(l) any dissolution, termination, partial or complete liquidation, merger or consolidation of any of the Credit Parties or any of the Subsidiaries of a Borrower shall occur or any sale, transfer or other disposition of the assets of any of the any of the Credit Parties or any of the Subsidiaries shall occur, in each case of any of the foregoing, in violation of the express terms of this Agreement or the other Loan Documents;
(m) the failure of Borrower to maintain its status as a real estate investment trust under the Code;
(n) the failure of any Credit Party or its Subsidiaries to remediate within the time period required by applicable law or lawful governmental order (or within a reasonable time given the nature of the problem if no specific time period has been given) material environmental matter with respect to Hazardous Substances, in violation of applicable law, related to (i) any Pool Properties or (ii) any other Real Estate whose aggregate book values are in excess of Ten Million Dollars ($10,000,000) after all administrative hearings and appeals have been concluded or waived;
(o) except as permitted herein, any Change of Control shall occur;
(p) the failure of any Credit Party to pay money to the PBGC or any Guaranteed Pension Plan as and when due;
(q) the violation of any Non-Recourse Exclusions or other non-recourse carveout set forth in a guaranty or indemnity which results in what would otherwise be Non-Recourse Indebtedness becoming Recourse Indebtedness to Borrower; or
(lr) if an “Event of Default” as defined in any person or group of persons (within the meaning of Section 13 or 14 of the Securities Exchange Act other Loan Documents shall occur; then, and upon any such Event of 1934Default, as amended) shall have acquired beneficial ownership (within the meaning of Rule 13d-3 promulgated by Agent may, and upon the Securities and Exchange Commission under said Act) of 25% or more request of the outstanding shares Required Lenders shall, by notice in writing to the Borrower declare all amounts owing with respect to this Agreement, the Notes, the Letter of common voting stock Credit, and the other Loan Documents to be, and they shall thereupon forthwith become, 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 by Borrower specified in §12.1(g), §12.1(h), or during §12.1(i), all such amounts shall become immediately due and payable automatically (“Acceleration”) and without any period requirement of twelve consecutive calendar monthspresentment, individuals who were directors demand, protest or other notice of any kind from any of the Lenders or the Agent. If demanded by Agent in its absolute and sole discretion after the occurrence and during the continuance of an Event of Default, Borrower on will deposit with and pledge to Agent cash in an amount equal to the first day amount of all undrawn Letters of Credit. In the event the Borrower fails to deliver such period (together with cash collateral, upon demand by Agent or the Required Lenders in their absolute and sole discretion after the occurrence and during the continuance of an Event of Default, and regardless of whether the conditions precedent in this Agreement for a Revolving Credit Loan have been satisfied, the Revolving Credit Lenders will cause a Revolving Credit Loan to be made in the undrawn amount of all Letters of Credit to be pledged to and held by Agent as security for any new directors whose election by amounts that become payable under the Letters of Credit and all other Obligations. Upon any draws under Letters of Credit, at Agent’s sole discretion, Agent may apply any such board amounts pledged or whose nomination for election funded hereunder to the repayment of amounts drawn thereunder and upon the expiration of the Letters of Credit any remaining amounts will be applied to the payment of all other Obligations and Hedge Obligations or if there are no outstanding Obligations and Hedge Obligations and the Lenders have no further obligation to make Revolving Credit Loans or issue Letters of Credit or if such excess no longer exists, such proceeds deposited by the shareholders of the Borrower was approved by a vote of a majority of the directors still in office who were either directors at the beginning of such period or whose election or nomination for election was previously so approved) shall cease will be released to constitute a majority of the board of directors of the Borrower;.
Appears in 1 contract
Events of Default and Acceleration. If any of the following events (“"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 or lapse of time, “"Defaults”") shall occur:
(a) if the Borrower shall fail to pay any principal of the Revolving Credit Loans when 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;
(b) if the Borrower shall fail to pay any interest or fees on the Revolving Credit Loans, the commitment fee, any Letter of Credit Fee, the Agent's fee, or other amounts owing sums due hereunder or under any of the other Loan Documents, within three (other than those specified in subsection (a3) above) within five (5) Business Days after days of the same shall become due and payable whether at the Maturity Date 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 any of the its covenants contained in §§7.4Section 8.1 (including, 7.5as it applies to Section 13.1(b), 7.15any grace period applicable thereto), 7.16Section 8.4 (within five (5) days of when any monthly financial statement would otherwise be due and within fifteen (15) days of when any quarterly or annual statement would otherwise be due), 8 and 9 hereofSection 8.5.1, Section 8.5.4 (within fifteen (15) days of when notice would otherwise be due), the first sentence of Section 8.6, Section 8.7, Section 8.12, Sections 9.1 through 9.6, Sections 9.8 through 9.13, Section 10 or any covenant contained in the Mortgage the violation of which would constitute an immediate "Event of Default" under such Mortgage;
(d) if the Borrower shall fail to perform any term, covenant or agreement contained herein or in any of the other Loan Documents (other than those specified elsewhere in subsections this Section 13.1) for thirty (a), (b), and (c30) above) and such failure shall not be remedied within 30 days after written notice of such failure shall have has been given to the Borrower by the Administrative Agent or any of the BanksAgent;
(e) if any representation or warranty contained of the Borrower or any of its Subsidiaries in this Credit Agreement or any of the other Loan Documents or in any other document or instrument delivered pursuant to or in connection with this Credit Agreement shall prove to have been false in any material respect upon the date when made or deemed to have been made or repeated;
(f) if the Borrower or any of its Subsidiaries shall fail to pay when dueat maturity, or within any applicable period of grace, any Indebtedness obligation for borrowed money or obligations under Swap Contracts credit received or in an aggregate respect of any Capitalized Leases the outstanding principal amount greater than of which exceeds $75,000,00015,000,000, or fail to observe or perform any material term, covenant or agreement contained in any one or more agreements agreement by which it is bound, evidencing or securing borrowed money or credit received or in respect of any Indebtedness or obligations under Swap Contracts in an aggregate Capitalized Leases, the outstanding principal amount greater than of which exceeds $75,000,000 15,000,000, for such period of time as would permit, or would have permitted permit (assuming the giving of appropriate notice if required) the holder or holders thereof or of any obligations issued thereunder to accelerate the maturity thereof or terminate its commitment with respect theretothereof;
(g) if the Borrower, the Guarantor Borrower or any Significant Subsidiary makes of its Subsidiaries shall make an assignment for the benefit of creditors, or admits admit in writing its inability to pay or generally fails fail to pay its debts as they mature or become due, or petitions shall petition or applies apply for the appointment of a trustee or other custodian, liquidator or receiver of the Borrower, the Guarantor Borrower or any Significant Subsidiary, of its Subsidiaries or of any substantial part of the assets of the Borrower, the Guarantor Borrower or any Significant Subsidiary of its Subsidiaries or commences shall commence any case or other proceeding relating to the Borrower, the Guarantor Borrower or any Significant Subsidiary of 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 shall take any action to authorize or in furtherance of any of the foregoing, or if any such petition or application is shall be filed or any such case or other proceeding is shall be commenced against the Borrower, the Guarantor Borrower or any Significant Subsidiary or of its Subsidiaries and the Borrower, the Guarantor Borrower or any Significant Subsidiary indicates of its Subsidiaries shall indicate its approval thereof, consent thereto or acquiescence thereintherein or such petition or application shall not have been dismissed within forty-five (45) days following the filing thereof;
(h) if a decree or order is entered appointing any such trustee, custodian, liquidator or receiver or adjudicating the Borrower or the Guarantor or any Significant Subsidiary of 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 in respect of the Borrower or any Subsidiary of the Guarantor or any Significant Subsidiary Borrower in an involuntary case under federal bankruptcy laws of any jurisdiction as now or hereafter constituted;
(i) if there shall remain in force, undischarged, unsatisfied unsatisfied, unstayed and unstayedunbonded, for more than thirty (30) days, whether or not consecutive, any final judgment against the Borrower or any Subsidiary whichof its Subsidiaries that, with other outstanding final judgments judgments, undischarged, unsatisfied, unstayed and unbonded, against the Borrower and or any of its Subsidiaries, Subsidiaries exceeds in the aggregate $50,000,000 after taking into account any undisputed insurance coverage15,000,000;
(j) if, with respect if the Agency Agreements required pursuant to any Guaranteed Pension Plan, an ERISA Reportable Event Section 8.13.2(a) shall have occurred not be in full force and effect within forty-five (45) days after the Banks shall have determined in their reasonable discretion that such event reasonably could be expected to result in liability of the Borrower or any Subsidiary to the PBGC or such Plan in an aggregate amount exceeding $50,000,000 and such event in the circumstances occurring reasonably could constitute grounds for the partial or complete termination of such Plan by the PBGC or for the appointment by the appropriate United States District Court of a trustee to administer such Plan; or a trustee shall have been appointed by the appropriate United States District Court to administer such Plan; or the PBGC shall have instituted proceedings to terminate such PlanEffective Date;
(k) if any of the Loan Documents shall be cancelledcanceled, terminated, revoked or rescinded or the Agent's security interests 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 accordance with the terms thereof or with the express prior written agreement, consent or approval of the Banks, 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 or on behalf of the Borrower, the Guarantor, Borrower or any of its 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 determination that, or issue a judgment, order, decree or ruling to the effect that, any one or more of the Loan Documents is illegal, invalid or unenforceable in accordance with the terms thereof; or;
(l) if the Borrower or any person ERISA Affiliate incurs any liability to the PBGC or group in the event of persons a termination or withdrawal from a Guaranteed Pension Plan pursuant to Title IV of ERISA in an aggregate amount exceeding $15,000,000; the Borrower or any ERISA Affiliate is assessed withdrawal liability pursuant to Title IV of ERISA by a Multiemployer Plan requiring aggregate annual payments exceeding $15,000,000, or any of the following occurs with respect to a Guaranteed Pension Plan: (i) an ERISA Reportable Event, or a failure to make a required installment or other payment (within the meaning of Section 13 or 14 302(f)(1) of ERISA), provided the Agent determines in its reasonable judgment that such event (A) could be expected to result in liability of the Securities Exchange Act Borrower to the PBGC or the Plan in an aggregate amount exceeding $15,000,000 and (B) could constitute grounds for the termination of 1934such Plan by the PBGC, as amendedfor the appointment by the appropriate United States District Court of a trustee to administer such Plan or for the imposition of a lien in favor of the Guaranteed Pension Plan; (ii) the appointment by a United States District Court of a trustee to administer such Plan; or (iii) the institution by the PBGC of proceedings to terminate such Plan;
(m) the Borrower or any of its Subsidiaries shall be enjoined, restrained or in any way prevented by the order of any court or any administrative or regulatory agency from conducting any material part of its business and such order shall continue in effect for more than thirty (30) days;
(n) there shall occur any material damage to, or loss, theft or destruction of, any Collateral, whether or not insured, or any strike, lockout, labor dispute, embargo, condemnation, act of God or public enemy, or other casualty, which in any such case causes, for more than fifteen (15) consecutive days, the cessation or substantial curtailment of revenue producing activities at any facility of the Borrower or any of its Subsidiaries if such event or circumstance is not covered by business interruption insurance and would have a Material Adverse Effect;
(o) there shall occur the loss, suspension or revocation of, or failure to renew, any license or permit now held or hereafter acquired by the Borrower or any of its Subsidiaries if such loss, suspension, revocation or failure to renew would have a Material Adverse Effect;
(p) the Borrower or any of its Subsidiaries shall be convicted for a federal crime, a punishment for which could include the forfeiture of any assets of the Borrower or such Subsidiary included in the Borrowing Base or any assets of the Borrower or such Subsidiary not included in the Borrowing Base but having a fair market value in excess of $15,000,000;
(q) a Change of Control shall have acquired beneficial ownership occurred;
(within r) the meaning of Rule 13d-3 promulgated by Availability shall at any time be less than zero; then, and in any such event, so long as the Securities same may be continuing, the Agent may, and Exchange Commission under said Act) of 25% or more upon the request of the outstanding shares Majority Banks shall, by notice in writing to the Borrower declare all amounts owing with respect to this Credit Agreement, the Revolving Credit Notes and the other Loan Documents to be, and they shall thereupon forthwith become, immediately due and payable without presentment, demand, protest or other notice of common voting stock any kind, all of which are hereby expressly waived by the Borrower; provided that in the event of any Event of Default specified in Sections 13.1(g) or during 13.1(h), all such amounts shall become immediately due and payable automatically and without any period requirement of twelve consecutive calendar months, individuals who were directors of notice from the Borrower on the first day of such period (together with Agent or any new directors whose election by such board or whose nomination for election by the shareholders of the Borrower was approved by a vote of a majority of the directors still in office who were either directors at the beginning of such period or whose election or nomination for election was previously so approved) shall cease to constitute a majority of the board of directors of the Borrower;Bank.
Appears in 1 contract
Events of Default and Acceleration. If any Any one or more of the following events (shall constitute an “Events Event 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 occurhereunder:
(a) if default in the Borrower shall fail to pay payment when due of all or any part of the principal of the Loans when the same shall become due and payable, or interest on any Note (whether at the stated date of maturity or any accelerated date of maturity thereof or at any other date fixed time provided for paymentin this Agreement) or of any Unreimbursed Amount or default for a period of 5 Business Days in the payment when due of any interest, fee, or other Obligation payable hereunder or under any other Loan Document;
(b) if default in the Borrower shall fail to pay observance or performance of any interest covenant set forth in Sections 8.1, 8.5, 9, 10 or fees or other amounts owing hereunder (other than those specified in subsection (a11.3(b) above) within five (5) Business Days after the same shall become due and payable whether at the Maturity Date or any accelerated date of maturity or at any other date fixed for paymenthereof;
(c) if default in the Borrower observance or performance of any other provision hereof or of any other Loan Document which is not remedied within 30 days after the earlier of (i) the date on which such failure shall fail first become known to comply with any officer of LoJack or (ii) written notice thereof is given to LoJack by the covenants contained in §§7.4, 7.5, 7.15, 7.16, 8 and 9 hereofAdministrative Agent;
(d) if the Borrower shall fail to perform any term, covenant representation or agreement contained warranty made herein or in any other Loan Document or in any certificate furnished to the Administrative Agent or the Lenders pursuant hereto or thereto or in connection with any transaction contemplated hereby or thereby proves untrue in any material respect as of the date of the issuance or making or deemed making thereof;
(e) any event occurs or condition exists (other than those described in subsections (a) through (d) above) which is specified as an event of default under any of the other Loan Documents (other than those specified in subsections (a)Documents, (b), and (c) above) and such failure shall not be remedied within 30 days after written notice of such failure shall have been given to the Borrower by the Administrative Agent or any of the Banks;
(e) if Loan Documents shall for any representation reason not be or warranty contained shall cease to be in this Agreement full force and effect or in is declared to be null and void, or the Borrowers or any document of their Subsidiaries takes any action for the purpose of repudiating or instrument delivered pursuant to rescinding any Loan Document executed by it or in connection with this Agreement shall prove to have been false in any material respect upon the date when made or repeatedof its obligations thereunder;
(f) if default shall occur under any Indebtedness issued, assumed or guaranteed by any of the Borrower Borrowers or any of its their Subsidiaries aggregating in excess of the Dollar Equivalent of $2,000,000, or under any indenture, agreement or other instrument under which the same may be issued, and such default shall continue for a period of time sufficient to permit the acceleration of the maturity of any such Indebtedness (whether or not such maturity is in fact accelerated), or any such Indebtedness shall not be paid when due (whether by demand, lapse of time, acceleration or otherwise), subject to the passage of any applicable grace or notice period;
(g) any judgment or judgments, writ or writs or warrant or warrants of attachment, or any similar process or processes, shall be entered or filed against any Borrower, or any of their Subsidiaries, or against any of their Property, in an aggregate amount in excess of the Dollar Equivalent of $2,000,000 (except to the extent fully covered by insurance pursuant to which the insurer has accepted liability therefor in writing), and which remains undischarged, unvacated, unbonded or unstayed for a period of 30 days;
(h) Any of the Borrowers, or any of their Subsidiaries, or any member of the Borrowers’ Controlled Group, shall fail to pay when duedue an amount or amounts aggregating in excess of the Dollar Equivalent of $3,000,000 which it shall have become liable to pay to the PBGC or to a Plan under Title IV of ERISA; or any of the Borrowers, or within any applicable period of gracetheir Subsidiaries, or any member of the Borrowers’ Controlled Group shall be subject to actual or potential liability for an amount or amounts aggregating in excess of the Dollar Equivalent of $3,000,000 upon or as the result of the receipt of a notice of intent to terminate a Plan or Plans (collectively, a “Material Plan”) filed under Title IV of ERISA by any of the Borrowers, or any of their Subsidiaries, or any other member of the Borrowers’ Controlled Group, any Indebtedness plan administrator or obligations any combination of the foregoing; or the PBGC shall institute proceedings under Swap Contracts in an aggregate amount greater than $75,000,000Title IV of ERISA to terminate or to cause a trustee to be appointed to administer any Material Plan or a proceeding shall be instituted by a fiduciary of any Material Plan against any of the Borrowers, or fail to observe or perform any material term, covenant or agreement contained in any one or more agreements by which it is bound, evidencing or securing any Indebtedness or obligations under Swap Contracts in an aggregate amount greater than $75,000,000 for such period of time as would permittheir Subsidiaries, or any member of the Borrowers’ Controlled Group, to enforce Section 515 or 4219(c)(5) of ERISA and such proceeding shall not have been dismissed within 30 days thereafter; or a condition shall exist by reason of which the PBGC would have permitted (assuming the giving of appropriate notice if required) the holder or holders thereof or of be entitled to obtain a decree adjudicating that any obligations issued thereunder to accelerate the maturity thereof or terminate its commitment with respect theretoMaterial Plan must be terminated;
(gi) if any Change of Control shall occur;
(j) any of the Borrower, the Guarantor Borrowers or any Significant of their Subsidiaries (other than an Immaterial Foreign Subsidiary) shall (i) have had entered involuntarily against it an order for relief under the United States Bankruptcy Code or any other legislation in respect of bankruptcy, insolvency, or the relief of debtors (all as amended) in any jurisdiction outside of the United States in which any Borrower or Subsidiary makes is located, (ii) not pay, or admit in writing its inability to pay, its debts generally as they become due, (iii) make an assignment for the benefit of creditors, (iv) apply for, seek, consent to or admits in writing its inability to pay or generally fails to pay its debts as they mature or become dueacquiesce in, or petitions or applies for the appointment of a trustee or other receiver, interim receiver, custodian, trustee, examiner, liquidator or receiver of the Borrower, the Guarantor similar official for it or any Significant Subsidiary, or of any substantial part of its Property, (v) institute any proceeding (including, without limitation, any assignment, proposal, or notice of intention to make a proposal) seeking relief under the assets of the Borrower, the Guarantor United States Bankruptcy Code or any Significant Subsidiary other legislation respect of bankruptcy, insolvency, or commences any case the relief of debtors (all as amended), to adjudicate it insolvent, or other proceeding relating to the Borrowerseeking dissolution, the Guarantor or any Significant Subsidiary under any bankruptcywinding up, liquidation, reorganization, arrangement, insolvencyadjustment or composition of it or its debts under any law relating to bankruptcy, readjustment insolvency or reorganization or relief of debt, dissolution debtors or liquidation fail to file an answer or similar law other pleading denying (or shall admit) the material allegations of any jurisdictionsuch proceeding filed against it, now or hereafter in effect, or takes (vi) take 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, the Guarantor or any Significant Subsidiary or the Borrower, the Guarantor or any Significant Subsidiary 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 Borrower or the Guarantor or any Significant Subsidiary bankrupt or insolvent, or approving a petition matter described in any such case or other proceeding, or a decree or order for relief is entered in respect of the Borrower or the Guarantor or any Significant Subsidiary in an involuntary case under federal bankruptcy laws of any jurisdiction as now or hereafter constituted;
parts (i) if there shall remain through (v) above, or (vii) fail to contest in force, undischarged, unsatisfied and unstayed, for more than thirty days, whether good faith any appointment or not consecutive, any final judgment against the Borrower or any Subsidiary which, with other outstanding final judgments against the Borrower and its Subsidiaries, exceeds proceeding described in the aggregate $50,000,000 after taking into account any undisputed insurance coverage;
(jSection 12.1(k) if, with respect to any Guaranteed Pension Plan, an ERISA Reportable Event shall have occurred and the Banks shall have determined in their reasonable discretion that such event reasonably could be expected to result in liability of the Borrower or any Subsidiary to the PBGC or such Plan in an aggregate amount exceeding $50,000,000 and such event in the circumstances occurring reasonably could constitute grounds for the partial or complete termination of such Plan by the PBGC or for the appointment by the appropriate United States District Court of a trustee to administer such Plan; or a trustee shall have been appointed by the appropriate United States District Court to administer such Plan; or the PBGC shall have instituted proceedings to terminate such Planhereof;
(k) if a custodian, monitor, receiver, receiver and manager, interim receiver, trustee, examiner, liquidator or similar official (a “Receiver”) shall be appointed for 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 Banks, 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 or on behalf of the Borrower, the GuarantorBorrowers, or any of their respective stockholdersSubsidiaries (other than an Immaterial Foreign Subsidiary), or any court substantial part of any of their Property, or a proceeding described in Section 12.1(j)(v) shall be instituted against the Borrowers or any other governmental of their Subsidiaries, and such appointment continues undischarged or regulatory authority such proceeding continues undismissed or agency unstayed for a period of competent jurisdiction 60 days or if, within such period, a Receiver or creditor shall make a determination thattake possession of any Property of any of the Borrowers, or issue a judgment, order, decree or ruling to the effect that, any one or more of the Loan Documents is illegal, invalid or unenforceable in accordance with the terms thereoftheir Subsidiaries; or
(l) if any person or group of persons (i) LoJack Exchangeco Canada, Inc. remains in legal existence after December 31, 2009; and (ii) within the meaning of Section 13 or 14 30 days of the Securities Exchange Act Closing Date, LoJack does not execute an Additional Pledge in the form attached as Annex 2 to the Security Agreement in favor of 1934, as amended) shall have acquired beneficial ownership (within the meaning Administrative Agent for the benefit of Rule 13d-3 promulgated by the Securities and Exchange Commission under said Act) Lenders with respect to 100% of 25% or more all of the outstanding shares Capital Stock of common voting stock of the Borrower; or during any period of twelve consecutive calendar monthsLoJack Exchangeco Canada, individuals who were directors of the Borrower on the first day of such period (together with any new directors whose election by such board or whose nomination for election by the shareholders of the Borrower was approved by a vote of a majority of the directors still in office who were either directors at the beginning of such period or whose election or nomination for election was previously so approved) shall cease to constitute a majority of the board of directors of the Borrower;Inc.
Appears in 1 contract
Events of Default and Acceleration. If any of the The following events (shall constitute “Events of Default” or, if the giving for purposes of notice or the lapse of time or both is required, then, prior to such notice and/or lapse of time, “Defaults”) shall occurthis Agreement:
(a) if the Borrower shall fail to pay any principal of the Loans any Loan when 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;; or
(b) if the Borrower shall fail to pay any interest or on any Loan, any fees or other amounts owing sums due hereunder (or under any of the other than those specified in subsection (a) above) within Loan Documents, for a period of five (5) Business Days after following the date when the same shall become due and payable payable, whether at the Maturity Date stated date of maturity or any accelerated date of maturity or at any other date fixed for payment;; or 110
(c) if the Borrower shall fail to comply with (i) any of the covenants contained in §§7.4, 7.5, 7.15, 7.16, 8 and 9 hereof;
(d) if the Borrower Loan Party shall fail to perform any term, covenant or agreement contained in Section 6.05, Section 6.06 (but only as to corporate existence), Section 6.10, Section 6.11, Section 6.13 through 6.30, inclusive, or, for so long as NEE Partners has any obligations pursuant to the NEE Partners Guaranty, NEE Partners shall fail to perform any term, covenant or agreement contained in Article IV of the NEE Partners Guaranty or (ii) any Loan Party shall fail to perform any term covenant or agreement contained herein or in any of the other Loan Documents (other than those specified elsewhere in subsections this Section 8.01) for thirty (a), (b), and (c30) above) and such failure shall not be remedied within 30 days after written notice Notice of such failure shall have has been given to the Borrower by the Administrative Agent or any Lender; or
(d) any representation or warranty of any Loan Party in this Agreement or any of the Banks;
(e) if any representation or warranty contained in this Agreement other Loan Documents or in any other document or instrument delivered pursuant to or in connection with this Agreement Agreement, or for so long as NEE Partners has obligations pursuant to the NEE Partners Guaranty any representation or warranty of NEE Partners in the NEE Partners Guaranty, shall prove to have been false in any material respect upon the date when made or repeated;
(f) if the Borrower or any of its Subsidiaries shall fail deemed to pay when due, or within any applicable period of grace, any Indebtedness or obligations under Swap Contracts in an aggregate amount greater than $75,000,000, or fail to observe or perform any material term, covenant or agreement contained in any one or more agreements by which it is bound, evidencing or securing any Indebtedness or obligations under Swap Contracts in an aggregate amount greater than $75,000,000 for such period of time as would permit, or would have permitted (assuming the giving of appropriate notice if required) the holder or holders thereof or of any obligations issued thereunder to accelerate the maturity thereof or terminate its commitment with respect thereto;
(g) if the Borrower, the Guarantor or any Significant Subsidiary makes an assignment for the benefit of creditors, or admits in writing its inability to pay or generally fails to pay its debts as they mature or become due, or petitions or applies for the appointment of a trustee or other custodian, liquidator or receiver of the Borrower, the Guarantor or any Significant Subsidiary, or of any substantial part of the assets of the Borrower, the Guarantor or any Significant Subsidiary or commences any case or other proceeding relating to the Borrower, the Guarantor or any Significant Subsidiary 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, the Guarantor or any Significant Subsidiary or the Borrower, the Guarantor or any Significant Subsidiary 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 Borrower or the Guarantor or any Significant Subsidiary 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 or the Guarantor or any Significant Subsidiary in an involuntary case under federal bankruptcy laws of any jurisdiction as now or hereafter constituted;
(i) if there shall remain in force, undischarged, unsatisfied and unstayed, for more than thirty days, whether or not consecutive, any final judgment against the Borrower or any Subsidiary which, with other outstanding final judgments against the Borrower and its Subsidiaries, exceeds in the aggregate $50,000,000 after taking into account any undisputed insurance coverage;
(j) if, with respect to any Guaranteed Pension Plan, an ERISA Reportable Event shall have occurred and the Banks shall have determined in their reasonable discretion that such event reasonably could be expected to result in liability of the Borrower or any Subsidiary to the PBGC or such Plan in an aggregate amount exceeding $50,000,000 and such event in the circumstances occurring reasonably could constitute grounds for the partial or complete termination of such Plan been made by the PBGC or for the appointment by the appropriate United States District Court terms of a trustee to administer such Plan; or a trustee shall have been appointed by the appropriate United States District Court to administer such Plan; or the PBGC shall have instituted proceedings to terminate such Plan;
(k) if 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 Banks, 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 or on behalf of the Borrower, the Guarantor, or any of their respective stockholders, 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 effect that, any one or more of the Loan Documents is illegal, invalid or unenforceable in accordance with the terms thereofthis Agreement; or
(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 25% or more of the outstanding shares of common voting stock of the Borrower; or during any period of twelve consecutive calendar months, individuals who were directors of the Borrower on the first day of such period (together with any new directors whose election by such board or whose nomination for election by the shareholders of the Borrower was approved by a vote of a majority of the directors still in office who were either directors at the beginning of such period or whose election or nomination for election was previously so approved) shall cease to constitute a majority of the board of directors of the Borrower;
Appears in 1 contract
Sources: Revolving Credit Agreement (Nextera Energy Partners, Lp)
Events of Default and Acceleration. If any of the following events (“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, “Defaults”) shall occur:
(a) if the any Borrower shall fail to pay any principal of the Loans when 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;
(b) if the any Borrower shall fail to pay any interest on the Loans or fees or other amounts owing payable hereunder (other than those specified in subsection (a) above) within five (5) Business Days after when the same shall become due and payable payable, whether at the Maturity Date stated date of maturity or any accelerated date of maturity or at any other date fixed for payment, and such failure shall continue for five (5) days after written notice of such failure has been given to a Borrower by the Administrative Agent;
(c) if the any Borrower shall fail to comply with perform or observe any of the its covenants contained in §§7.4Sections 6.3.1, 7.56.4.1, 7.157.1, 7.167.2, 8 and 9 hereof7.3(xvi), 7.7, 7.8, 7.9, 8, or, if such failure relates to a Lien securing Funded Debt, 7.3;
(d) if the any Borrower or any of its Subsidiaries shall fail to perform or observe any term, covenant covenant, or agreement contained herein or in any of the other Loan Documents (other than those specified elsewhere in subsections this Section 11) for thirty (a), (b), and (c30) above) and such failure shall not be remedied within 30 days after written notice of such failure shall have has been given to the such Borrower by the Administrative Agent Agent, provided, that a failure to perform or any observe the terms, covenants and agreements set forth in Section 6.2, Section 6.3.3, Section 6.7 or Section 6.11.1 that continues for more than ten (10) days (regardless of the Bankswhether notice of such failure is given to such Borrower) shall constitute an Event of Default hereunder;
(e) if any representation or warranty contained of any Borrower or any of its Subsidiaries in this Agreement Credit Agreement, any of the other Loan Documents, or in any other document or instrument delivered pursuant to or in connection with this Credit Agreement shall prove to have been false incorrect in any material respect upon the date when made or deemed to have been made or repeated;
(f) if failure to make a payment of principal or interest, or the Borrower occurrence of a default, event of default, or other event permitting (with or without the passage of time or the giving of notice) acceleration or exercise of remedies or, with respect to any Swap Contract, as to which the Company or any Subsidiary is the defaulting party, permitting early termination thereof shall occur with respect to (i) any Indebtedness for money borrowed, (ii) any Indebtedness in respect of the deferred purchase price of goods or services, (iii) any Capitalized Lease, (iv) any Broker-Dealer Debt, (v) any Swap Contract or (vi) any Synthetic Lease Obligation, of the Company or any of its Subsidiaries shall fail Subsidiaries, having a principal amount (or (x) in the case of 41 Americas 91904575 (2K) a Capitalized Lease, scheduled rental payments with a discounted present value from the last day of the initial term to pay when duethe date of determination as determined in accordance with generally accepted accounting principles or (y) in the case of a Swap Contract, the Swap Termination Value or within any applicable period (z) in the case of gracea Synthetic Lease Obligation, any the amount of Attributable Indebtedness or obligations under Swap Contracts in an aggregate amount greater than $75,000,000with respect thereto), or fail to observe or perform any material term, covenant or agreement contained (A) in any one case, of $100,000,000 or more agreements by which it is boundmore, evidencing or securing any Indebtedness (B) in the aggregate, of $250,000,000 or obligations under Swap Contracts in an aggregate amount greater than $75,000,000 more, and such failure to make a payment of principal or interest, or a default, event of default, or other event shall continue for such period of time as would permit, or would have permitted (assuming the giving of appropriate notice if required) entitle the holder of such Indebtedness, Capitalized Lease, Swap Contract or holders thereof Synthetic Lease Obligation (with or of any obligations issued thereunder without notice) to accelerate the maturity thereof such Indebtedness or terminate its commitment with respect theretosuch Capitalized Lease, Swap Contract or Synthetic Lease Obligation;
(g) if any of the BorrowerLoan 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 Banks, or any Proceeding to cancel, revoke, or rescind any of the Loan Documents shall be commenced by or on behalf of any Borrower or any of its Subsidiaries party thereto, or any Government Authority of competent jurisdiction shall make a determination that, or issue a Government Mandate to the effect that, any material provision of one or more of the Loan Documents is illegal, invalid, or unenforceable in accordance with the terms thereof; or any material provision of Section 14 shall cease to be valid and binding on or enforceable against the Company, or the Company shall so state in writing;
(h) the Company, Alliance Distributors, the Guarantor General Partner, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ or any Significant Material Subsidiary makes shall make an assignment for the benefit of creditors, or admits admit in writing its inability to pay or generally fails fail to pay its debts as they mature or become due, or petitions shall petition or applies apply for the appointment of a trustee or other custodian, liquidator liquidator, or receiver of the BorrowerCompany, Alliance Distributors, the Guarantor General Partner, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ or any Significant Subsidiary, Material Subsidiary or of any substantial part of the assets of the BorrowerCompany, Alliance Distributors, the Guarantor General Partner, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ or any Significant Subsidiary Material Subsidiary, or commences shall commence any case or other proceeding Proceeding relating to the BorrowerCompany, Alliance Distributors, the Guarantor General Partner, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ or any Significant Material Subsidiary under any bankruptcy, reorganization, arrangement, insolvency, readjustment of debt, dissolution or liquidation dissolution, liquidation, or similar law of any jurisdiction, now or hereafter in effect, or takes shall take any action to authorize or in furtherance of any of the foregoing, or if any such petition or application is shall be filed or any such case or other proceeding is Proceeding shall be commenced against the BorrowerCompany, Alliance Distributors, the Guarantor General Partner, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ or any Significant Material Subsidiary or the Borrower, the Guarantor or and any Significant Subsidiary indicates of such parties shall indicate its approval thereof, consent thereto thereto, or acquiescence therein;
(hi) if either (i) an involuntary Proceeding relating to the Company, Alliance Distributors, the General Partner, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ or any Material Subsidiary under any bankruptcy, reorganization, arrangement, insolvency, readjustment of debt, dissolution, liquidation, or similar law of any jurisdiction, now or hereafter in effect is commenced and not dismissed or vacated within sixty (60) days following entry thereof, or (ii) a decree or order is entered appointing any such trustee, custodian, liquidator liquidator, or receiver described in (h) or adjudicating the Borrower or Company, Alliance Distributors, the Guarantor General Partner, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ or any Significant Material Subsidiary bankrupt or insolvent, or approving a petition in any such case or other proceedingProceeding, or a decree or order for relief is entered in respect of the Borrower or Company, Alliance Distributors, the Guarantor General Partner, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ or any Significant Material Subsidiary in an involuntary case Proceeding under federal bankruptcy laws of any jurisdiction as now or hereafter constituted;
(ij) if there shall remain in force, undischarged, unsatisfied unsatisfied, and unstayed, for more than thirty forty-five (45) days, whether or not consecutive, any final judgment or order against the Borrower Company or any Subsidiary whichof its Subsidiaries, that, with any other such outstanding final judgments or orders, undischarged, against the Borrower Company and its Subsidiaries, Subsidiaries taken together exceeds in the aggregate $50,000,000 after taking into account any undisputed insurance coverage50,000,000;
(jk) if, with respect to any Guaranteed Pension Plan, an ERISA Reportable Event shall have occurred and the Majority Banks shall have determined in their reasonable discretion that such event reasonably could be expected to result in liability of the Borrower Company or any Subsidiary of its Subsidiaries to the PBGC or such Guaranteed Pension Plan in an aggregate amount exceeding $50,000,000 and such event in the 42 Americas 91904575 (2K) circumstances occurring reasonably could constitute grounds for the partial or complete termination of such Guaranteed Pension Plan by the PBGC or for the appointment by the appropriate United States District Court of a trustee to administer such Guaranteed Pension Plan; or a trustee shall have been appointed by the appropriate United States District Court to administer such Guaranteed Pension Plan; or the PBGC shall have instituted proceedings to terminate such Guaranteed Pension Plan; or any representation with respect to any Guaranteed Pension Plan or Multiemployer Plan made in Section 5.9 shall prove to be incorrect during the term of this Credit Agreement and the Majority Banks shall have determined in their reasonable discretion that the events underlying the incorrect representation could reasonably be expected to result in liability to the Company or its Subsidiaries, in the aggregate, in excess of $50,000,000;
(kl) if any of the Loan Documents following: (i) the Company shall fail to be cancelledduly registered as an “investment adviser” under the Investment Advisers Act of 1940; (ii) Alliance Distributors shall cease to be duly registered as a “broker/dealer” under the Securities Exchange Act of 1934 or shall cease to be a member of the Financial Industry Regulatory Authority, terminatedInc. , revoked or rescinded otherwise than (iii) ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ shall cease to be duly registered as a “broker/dealer” under the Securities Exchange Act of 1934 or shall cease to be a member of the Financial Industry Regulatory Authority, Inc. , in accordance each case, to the extent required;
(m) the Company, Alliance Distributors, the General Partner, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ or any Material Subsidiary shall either (i) be indicted for a federal or state crime and, in connection with such indictment, Government Authorities shall seek to seize or attach, or seek a civil forfeiture of, property of the terms thereof Company, Alliance Distributors, the General Partner, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ or one or more of such Material Subsidiaries having a fair market value in excess of $50,000,000, or (ii) be found guilty of, or shall plead guilty, no contest, or nolo contendere to, any federal or state crime, a punishment for which could include a fine, penalty, or forfeiture of any assets of the Company, Alliance Distributors, the General Partner, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ or such Material Subsidiary having in any such case a fair market value in excess of $50,000,000; or
(n) AllianceBernstein Corporation shall cease to be the sole general partner of the Company, and such circumstance shall continue for thirty (30) days after written notice of such circumstance has been given to the Company, provided, that the admission of additional Persons as general partner of the Company shall not constitute an Event of Default if, prior to the admission of any such general partner, the Company delivers to the Banks (i) the documentation with respect to such general partner that would be required under Section 9.3 if such Person were a General Partner on the express prior written agreementClosing Date, consent or approval of (ii) an incumbency certificate for such general partner as required for the Company pursuant to Section 9.8, and (iii) an opinion from counsel reasonably acceptable to the Banks, or any action at lawin form and substance reasonably satisfactory to the Banks, suit or in equity or other legal proceeding as to cancel, revoke or rescind any of the Loan Documents shall be commenced by or such general partner’s power and authority to act on behalf of the BorrowerCompany as a general partner of the Company; then, and in any such event, so long as the same may be continuing, the GuarantorAdministrative Agent shall, at the request of, or any of their respective stockholdersmay with the consent of, 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 effect that, any Majority Banks take one or more of the following actions: (x) declare the Commitment of each Bank to make Loans to be terminated, whereupon such Commitment shall be terminated; and (y) by notice in writing to the Borrowers declare all amounts owing with respect to this Credit Agreement, any Notes, and the other Loan Documents is illegalto be, invalid and they shall thereupon forthwith become, immediately due and payable without presentment, demand, protest, or unenforceable other notice of any kind, all of which are hereby expressly waived by each Borrower. In addition, in accordance with any such event, so long as the terms thereof; same may be continuing, the Administrative Agent may or
(l) if any person or group of persons (within , at the meaning of Section 13 or 14 request of the Securities Exchange Act Majority Banks, shall exercise on behalf of 1934itself and the Banks all other rights and remedies available to it and the Banks under the Loan Documents or applicable law. Notwithstanding the foregoing, as amendedin the event of any Event of Default specified in Section 11.1(h) or Section 11.1(i), all such amounts shall have acquired beneficial ownership (within become immediately due and payable automatically and without any requirement of notice from the meaning Administrative Agent or any Bank, and any unused portion of Rule 13d-3 promulgated the Total Commitment hereunder shall forthwith terminate and each of the Banks shall be relieved of all obligations to make Loans to the Borrowers. Any declaration under this Section 11.1 may be rescinded by the Securities and Exchange Commission under said Act) Majority Banks after the Events of 25% Default leading to such declaration are cured or more of the outstanding shares of common voting stock of the Borrower; or during any period of twelve consecutive calendar months, individuals who were directors of the Borrower on the first day of such period waived. 43 Americas 91904575 (together with any new directors whose election by such board or whose nomination for election by the shareholders of the Borrower was approved by a vote of a majority of the directors still in office who were either directors at the beginning of such period or whose election or nomination for election was previously so approved) shall cease to constitute a majority of the board of directors of the Borrower;2K)
Appears in 1 contract
Sources: Revolving Credit Agreement (Alliancebernstein L.P.)
Events of Default and Acceleration. If any of the following events (“"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, “Defaults”") shall occur:
(a) if the Borrower shall fail to pay any principal of the Loans when 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;
(b) if the Borrower shall fail to pay any interest on the Loans, or fees any other sums due hereunder or under any of the other amounts owing hereunder Loan Documents (other than those specified in subsection (aexcluding payments due under ss.12.1(a) above) within five (5) Business Days days after the same shall become due and payable whether payable, on any fixed date for payment or otherwise, provided however that such grace period shall not be applicable where any interest payment is due at the Maturity Date stated date of maturity or any accelerated date of maturity or at any other date fixed for paymentmaturity;
(c) if the Borrower shall fail to comply with the covenant contained in ss.
9.1 and such failure shall continue to exist after written notice thereof shall have been given to the Borrower by the Agent and the cure period provided in ss.
12.2 shall have ended;
(d) the Borrower shall fail to comply with any of the covenants covenant contained in §§7.4, 7.5, 7.15, 7.16, 8 ss.9.2 through ss.9.7 and 9 hereofsuch failure shall continue for thirty (30) days after written notice thereof shall have been given to the Borrower by the Agent;
(de) if any of the Borrower Borrower, the Guarantors, or any of its Subsidiaries shall fail to perform any other term, covenant or agreement contained herein or in any of the other Loan Documents which they are required to perform (other than those specified in subsections (a), (b), and (c) abovethe other subclauses of this ss.12 or in the other Loan Documents) and shall fail to remedy such failure shall not be remedied within 30 thirty (30) days after written notice of such failure shall have been given to the Borrower by the Administrative Agent or any of the Banksfrom Agent;
(ef) if any representation or warranty contained made by or on behalf of the Borrower, the Guarantor, or any of its Subsidiaries in this Agreement or any other Loan Document, or any report, certificate, financial statement, request for a Loan, or in any other document or instrument delivered pursuant to or in connection with this Agreement Agreement, any advance of a Loan, or any of the other Loan Documents other than constituting or based upon Third Party Information on which Borrower, Guarantor or any of its Subsidiaries relied and had no knowledge or reason to believe was untrue in any material respect, shall prove to have been false in any material respect upon the date when made or deemed to have been made or repeated;; notwithstanding anything to the contrary contained in this provision, the Borrower shall have a period of thirty (30) days to cure any unintentional inaccuracy or misrepresentation.
(fg) if any of the Borrower Borrower, the Guarantors, or any of its Subsidiaries (i) shall fail to pay when dueat maturity, or within any applicable period of grace, any Indebtedness obligation for borrowed money or obligations under Swap Contracts in an aggregate amount greater than $75,000,000credit received or other Indebtedness, or (ii) shall fail to observe or perform any material term, covenant or agreement contained in any one or more agreements agreement by which it is bound, evidencing or securing any obligation for borrowed money or credit received or other Indebtedness or obligations under Swap Contracts in an aggregate amount greater than $75,000,000 for such period of time as would permit, or would have permitted permit (assuming the giving of appropriate notice if required) the holder or holders thereof or of any obligations issued thereunder to accelerate the maturity thereof thereof; provided that the events described in this ss.12.1(g) shall not constitute an Event of Default unless such failure to perform, together with other failures to perform as described in this ss.12.1(g), involve singly or terminate its commitment with respect theretoin the aggregate obligations for borrowed money or credit received totaling in excess of $5,000,000.00;
(gh) if any of the Borrower, the Guarantor Guarantors, or any Significant Subsidiary makes of its Subsidiaries, (i) shall make an assignment for the benefit of creditors, or admits admit in writing its general inability to pay or generally fails fail to pay its debts as they mature or become due, or petitions shall petition or applies apply for the appointment of a trustee or other custodian, liquidator or receiver of the Borrower, the Guarantor for it or any Significant Subsidiary, or of any substantial part of the assets of the Borrowerits assets, the Guarantor or any Significant Subsidiary or commences (ii) shall commence any case or other proceeding relating to the Borrower, the Guarantor or any Significant Subsidiary it 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 (iii) shall take any action to authorize or in furtherance of any of the foregoing, or if any such ;
(i) a petition or application is shall be filed for the appointment of a trustee or other custodian, liquidator or receiver of any of the Borrower, the Guarantors, or any such of its Subsidiaries or any substantial part of the assets of any thereof, or a case or other proceeding is shall be commenced against the Borrowerany such Person under any bankruptcy, the Guarantor reorganization, arrangement, insolvency, readjustment of debt, dissolution or liquidation or similar law of any Significant Subsidiary jurisdiction, now or the Borrowerhereafter in effect, the Guarantor or and any Significant Subsidiary indicates such Person shall indicate its written approval thereof, written consent thereto or written acquiescence thereintherein or such petition, application, case or proceeding shall not have been dismissed within sixty (60) days following the filing or commencement thereof;
(hj) if a decree or order is entered appointing any such a trustee, custodian, liquidator or receiver for any of the Borrower, the Guarantors, or any of its Subsidiaries or adjudicating the Borrower or the Guarantor or any Significant Subsidiary such Person, 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 or the Guarantor or any Significant Subsidiary such Person in an involuntary case under federal bankruptcy laws of any jurisdiction as now or hereafter constituted;
(ik) if there shall remain in force, undischarged, unsatisfied and unstayed, for more than thirty sixty (60) days, whether or not consecutive, any final judgment against the Borrower one or any Subsidiary which, with other outstanding more uninsured or unbonded final judgments against any of the Borrower and Borrower, the Guarantors, or any of its SubsidiariesSubsidiaries that, exceeds either individually or in the aggregate aggregate, exceed $50,000,000 after taking into account any undisputed insurance coverage1,000,000;
(jl) if, with respect to any Guaranteed Pension Plan, an ERISA Reportable Event shall have occurred and the Banks shall have determined in their reasonable discretion that such event reasonably could be expected to result in liability of the Borrower or any Subsidiary to the PBGC or such Plan in an aggregate amount exceeding $50,000,000 and such event in the circumstances occurring reasonably could constitute grounds for the partial or complete termination of such Plan by the PBGC or for the appointment by the appropriate United States District Court of a trustee to administer such Plan; or a trustee shall have been appointed by the appropriate United States District Court to administer such Plan; or the PBGC shall have instituted proceedings to terminate such Plan;
(k) if any of the Loan Documents shall be cancelledcanceled, terminated, revoked or rescinded otherwise than in accordance with the terms thereof or with the express prior written agreement, consent or approval of the BanksLenders, 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 or on behalf of the Borrower, the Guarantor, or any of their respective stockholdersthe Borrower or the Guarantors, or any court or any other governmental or regulatory authority or agency of competent jurisdiction shall make a determination thatdetermination, or issue a judgment, order, decree or ruling ruling, to the effect that, that any one or more of the Loan Documents is illegal, invalid or unenforceable in accordance with the terms thereof;
(m) any dissolution, termination, liquidation of all or substantially all of the assets, merger or consolidation of any of the Borrower or any Guarantor shall occur unless Borrower or Guarantor is the surviving entity, or any sale, transfer or other disposition of all or substantially all of the assets, measured either by value or quantity, of any of the Borrower or any Guarantor shall occur, in each case other than as permitted under the terms of this Agreement or the other Loan Documents;
(n) with respect to any Guaranteed Pension Plan, an ERISA Reportable Event shall have occurred and the Required Lenders shall have determined in their reasonable discretion that such event reasonably could be expected to result in liability of any of the Borrower, the Guarantors or any of its Subsidiaries to the PBGC or such Guaranteed Pension Plan in an aggregate amount exceeding $2,000,000 and such event in the circumstances occurring reasonably could constitute grounds for the termination of such Guaranteed Pension Plan by the PBGC or for the appointment by the appropriate United States District Court of a trustee to administer such Guaranteed Pension Plan; or a trustee shall have been appointed by the United States District Court to administer such Plan; or the PBGC shall have instituted proceedings to terminate such Guaranteed Pension Plan;
(o) Intentionally deleted;
(p) the Borrower, any Guarantor or any of its Subsidiaries or any Person so connected with any of them shall be indicted for a federal crime, a punishment for which could include the forfeiture of (i) any assets of Borrower, any Guarantor or any of its Subsidiaries which in the good faith judgment of the Required Lenders could have a Material Adverse Effect, or (ii) the Collateral;
(q) any Guarantor denies that it has any liability or obligation under the Guaranty or any other Loan Document, or shall notify the Agent or any of the Lenders of such Guarantor's intention to attempt to cancel or terminate the Guaranty or any other Loan Document, or shall fail to observe or comply with any term, covenant, condition or agreement under the Guaranty or any other Loan Document beyond any applicable cure period;
(r) any Change of Control shall occur; or
(ls) if an Event of Default under any person or group of persons (within the meaning of Section 13 or 14 of the Securities Exchange Act of 1934other Loan Documents shall occur; then, as amended) shall have acquired beneficial ownership (within and in any such event, the meaning of Rule 13d-3 promulgated by Agent may, and upon the Securities and Exchange Commission under said Act) of 25% or more request of the outstanding shares Required Lenders shall, by notice in writing to the Borrower terminate the Revolving Line of common voting stock Credit and/or declare all amounts owing with respect to this Agreement, the Notes, and the other Loan Documents (including prepayment penalties or yield maintenance fees) to be, and they shall thereupon forthwith become, 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 ss.12.1(h), ss.12.1(i) or during ss.12.1(j), all such amounts shall become immediately due and payable automatically and without any period requirement of twelve consecutive calendar monthspresentment, individuals who were directors demand, protest or other notice of any kind from any of the Borrower on Lenders or the first day Agent. Notwithstanding anything to the contrary contained herein, the occurrence of such period (together with any new directors whose election by such board or whose nomination for election by the shareholders one of the Borrower was approved aforementioned terms or conditions in this Section 12.2, shall be, prior to the giving of any applicable notice or grace period, and until the same is cured as permitted by this Agreement, a vote of a majority of the directors still in office who were either directors at the beginning of such period or whose election or nomination for election was previously so approved) shall cease to constitute a majority of the board of directors of the Borrower;"Non-Advance Condition."
Appears in 1 contract
Sources: Master Credit Agreement (Entertainment Properties Trust)
Events of Default and Acceleration. If any of the following events (“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 or lapse of time, “Defaults”) shall occur:
(a) if the Borrower shall fail to pay any principal of the Revolving Credit Loans or any Reimbursement Obligation when 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;
(b) if the Borrower or any of its Subsidiaries shall fail to pay any interest or fees on the Revolving Credit Loans, any Fees, or other amounts owing sums due hereunder (or under any of the other than those specified in subsection (a) above) within five (5) Business Days after Loan Documents, when the same shall become due and payable payable, whether at the Maturity Date 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 any of the its covenants contained in §§7.48.1, 7.58.4, 7.158.5.1, 7.16the first sentence of 8.6, 8 and 8.12, 8.14, 8.15, 8.16, 8.17, 8.18, 8.19, 9 hereofor 10;
(d) if the Borrower or any of its Subsidiaries shall fail to perform any term, covenant or agreement contained herein or in any of the other Loan Documents (other than those specified elsewhere in subsections this §13.1) for thirty (a), (b), and (c30) above) and such failure shall not be remedied within 30 days after written notice of such failure shall have has been given to the Borrower by the Administrative Agent or any of the BanksAgent;
(e) if any representation or warranty contained of the Borrower or any of its Subsidiaries in this Credit Agreement or any of the other Loan Documents or in any other document or instrument delivered pursuant to or in connection with this Credit Agreement shall prove to have been false in any material respect upon the date when made or deemed to have been made or repeated;
(f) if the Borrower or any of its Subsidiaries shall fail to pay when dueat maturity, or within any applicable period of grace, any Indebtedness obligation for borrowed money or obligations under Swap Contracts credit received or in respect of any Capitalized Leases in an aggregate principal amount greater than in excess of $75,000,0001,000,000, or fail to observe or perform any material term, covenant or agreement contained in any one or more agreements agreement by which it is bound, evidencing or securing borrowed money or credit received or in respect of any Indebtedness or obligations under Swap Contracts Capitalized Leases in an aggregate principal amount greater than in excess of $75,000,000 1,000,000, for such period of time as would permit, or would have permitted permit (assuming the giving of appropriate notice if required) the holder or holders thereof or of any obligations issued thereunder to accelerate the maturity thereof thereof, or terminate its commitment with respect theretoany such holder or holders shall rescind or shall have a right to rescind the purchase of any such obligations;
(g) if the Borrower, the Guarantor Borrower or any Significant Subsidiary makes of its Subsidiaries shall make an assignment for the benefit of creditors, or admits admit in writing its inability to pay or generally fails fail to pay its debts as they mature or become due, or petitions shall petition or applies apply for the appointment of a trustee or other custodian, liquidator or receiver of the Borrower, the Guarantor Borrower or any Significant Subsidiary, of its Subsidiaries or of any substantial part of the assets of the Borrower, the Guarantor Borrower or any Significant Subsidiary of its Subsidiaries or commences shall commence any case or other proceeding relating to the Borrower, the Guarantor Borrower or any Significant Subsidiary of 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 shall take any action to authorize or in furtherance of any of the foregoing, or if any such petition or application is shall be filed or any such case or other proceeding is shall be commenced against the Borrower, the Guarantor Borrower or any Significant Subsidiary or of its Subsidiaries and the Borrower, the Guarantor Borrower or any Significant Subsidiary indicates of its Subsidiaries shall indicate its approval thereof, consent thereto or acquiescence thereintherein or such petition or application shall not have been dismissed within forty-five (45) days following the filing thereof;
(h) if a decree or order is entered appointing any such trustee, custodian, liquidator or receiver or adjudicating the Borrower or the Guarantor or any Significant Subsidiary of 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 in respect of the Borrower or any Subsidiary of the Guarantor or any Significant Subsidiary Borrower in an involuntary case under federal bankruptcy laws of any jurisdiction as now or hereafter constituted;
(i) if there shall remain in force, undischarged, unsatisfied and unstayed, for more than thirty days, whether or not consecutive, any final judgment against the Borrower or any Subsidiary whichof its Subsidiaries that, with other outstanding final judgments judgments, undischarged, against the Borrower and or any of its Subsidiaries, Subsidiaries exceeds in the aggregate $50,000,000 after taking into account any undisputed insurance coverage1,000,000;
(j) if, with respect to any Guaranteed Pension Plan, an ERISA Reportable Event shall have occurred and the Banks shall have determined in their reasonable discretion that such event reasonably could be expected to result in liability of the Borrower or any Subsidiary to the PBGC or such Plan in an aggregate amount exceeding $50,000,000 and such event in the circumstances occurring reasonably could constitute grounds for the partial or complete termination of such Plan by the PBGC or for the appointment by the appropriate United States District Court of a trustee to administer such Plan; or a trustee shall have been appointed by the appropriate United States District Court to administer such Plan; or the PBGC shall have instituted proceedings to terminate such Plan;
(k) if any of the Loan Documents shall be cancelled, 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 accordance with the terms thereof or with the express prior written agreement, consent or approval of the Banks, 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 or on behalf of the Borrower, the Guarantor, Borrower or any of its 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 determination that, or issue a judgment, order, decree or ruling to the effect that, any one or more of the Loan Documents is illegal, invalid or unenforceable in accordance with the terms thereof; or;
(lk) if the Borrower or any person ERISA Affiliate incurs any liability to the PBGC or group a Guaranteed Pension Plan pursuant to Title IV of persons ERISA in an aggregate amount exceeding $2,500,000, or the Borrower or any ERISA Affiliate is assessed withdrawal liability pursuant to Title IV of ERISA by a Multiemployer Plan requiring aggregate annual payments exceeding $2,500,000, or any of the following occurs with respect to a Guaranteed Pension Plan: (i) an ERISA Reportable Event, or a failure to make a required installment or other payment (within the meaning of Section 13 or 14 §302(f)(1) of ERISA), provided that the Agent determines in its reasonable discretion that such event (A) could be expected to result in liability of the Securities Exchange Act Borrower or any of 1934, as amendedits Subsidiaries to the PBGC or such Guaranteed Pension Plan in an aggregate amount exceeding $2,500,000 and (B) shall have acquired beneficial ownership (within could constitute grounds for the meaning termination of Rule 13d-3 promulgated such Guaranteed Pension Plan by the Securities PBGC, for the appointment by the appropriate United States District Court of a trustee to administer such Guaranteed Pension Plan or for the imposition of a lien in favor of such Guaranteed Pension Plan; or (ii) the appointment by a United States District Court of a trustee to administer such Guaranteed Pension Plan; or (iii) the institution by the PBGC of proceedings to terminate such Guaranteed Pension Plan;
(l) the Borrower or any of its Subsidiaries shall be enjoined, restrained or in any way prevented by the order of any Governmental Authority from conducting any material part of its business and Exchange Commission under said Actsuch order shall continue in effect for more than thirty (30) days;
(m) there shall occur any material damage to, or loss, theft or destruction of, any Collateral, whether or not insured, or any strike, lockout, labor dispute, embargo, condemnation, act of 25% God or public enemy, or other casualty, which in any such case causes, for more than fifteen (15) consecutive days, the cessation or substantial curtailment of revenue producing activities at any facility of the outstanding shares Borrower or any of common voting stock its Subsidiaries if such event or circumstance is not covered by business interruption insurance and would have a Material Adverse Effect;
(n) there shall occur the loss, suspension or revocation of, or failure to renew, any license or permit now held or hereafter acquired by the Borrower or any of its Subsidiaries if such loss, suspension, revocation or failure to renew would have a Material Adverse Effect;
(o) the Borrower or any of its Subsidiaries shall be indicted for a state or federal crime, or any civil or criminal action shall otherwise have been brought against the Borrower or any of its Subsidiaries, a punishment for which in any such case could include the forfeiture of any assets of the Borrower or such Subsidiary included in the Borrowing Base or any assets of the Borrower or such Subsidiary not included in the Borrowing Base but having a fair market value in excess of $1,000,000;
(p) a Change of Control shall occur; or
(q) the Borrower shall at any time, legally or beneficially directly or indirectly own less than 100% of the Capital Stock of any of its Subsidiaries (other than directors’ qualifying shares); then, and in any such event, so long as the same may be continuing, the Agent may, and upon the request of the Majority Banks shall, by notice in writing to the Borrower declare all amounts owing with respect to this Credit Agreement, the Revolving Credit Notes and the other Loan Documents and all Reimbursement Obligations to be, and they shall thereupon forthwith become, 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 §§13.1(g) or during 13.1(h), all such amounts shall become immediately due and payable automatically and without any period requirement of twelve consecutive calendar months, individuals who were directors of notice from the Borrower on the first day of such period (together with Agent or any new directors whose election by such board or whose nomination for election by the shareholders of the Borrower was approved by a vote of a majority of the directors still in office who were either directors at the beginning of such period or whose election or nomination for election was previously so approved) shall cease to constitute a majority of the board of directors of the Borrower;Bank..
Appears in 1 contract
Events of Default and Acceleration. If any of the following events (“"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 or lapse of time, “"Defaults”") shall occur:
(a) if the Borrower shall fail to pay any principal of the Loans when 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;
(b) if the Borrower shall fail to pay any interest on the Loans or fees any other sums due hereunder or under any of the other amounts owing hereunder (other than those specified in subsection (a) above) within five (5) Business Days after Loan Documents, when the same shall become due and payable payable, whether at the Maturity Date stated date of maturity or any accelerated date of maturity or at any other date fixed for payment, and such failure is not cured within five (5) days following receipt of written notice of such default, provided, however, that no such cure period shall apply to any payments due upon the maturity of the Notes;
(c) if the Borrower shall fail to comply with any of the covenants covenant contained in §§7.4Section 7.4(e), 7.5, Section 7.14 or Section 7.15, 7.16, 8 and 9 hereof;
(d) if the Borrower shall fail to comply with any covenant contained in Section 9, and such failure shall continue for thirty (30) days after written notice thereof shall have been given to the Borrower by the Agent;
(e) any of the Borrower, the Guarantors or any of their respective Subsidiaries shall fail to perform any other term, covenant or agreement contained herein or in any of the other Loan Documents (other than those specified above in subsections (a), (bthis Section 12), and (c) above) and such failure shall is not be remedied cured within 30 thirty (30) days after following receipt of written notice of such failure default, provided, that the provisions of this Section 12.1(e) shall have been given not pertain to the Borrower by the Administrative Agent or any default excluded from any provision of cure of defaults contained in any other of the Banks;Loan Documents.
(ef) if any representation or warranty contained made by or on behalf of the Borrower, the Guarantors or any of their respective Subsidiaries in this Agreement or any other Loan Document, or in any report, certificate, financial statement, request for a Loan, or in any other document or instrument delivered pursuant to or in connection with this Agreement Agreement, any advance of a Loan or any of the other Loan Documents shall prove to have been false or misleading in any material respect upon the date when made or deemed to have been made or repeated;
(fg) if any of the Borrower Borrower, the Guarantors or any of its their respective Subsidiaries shall fail to pay when dueat maturity, or within any applicable period of grace, any Indebtedness recourse obligation for borrowed money or obligations under Swap Contracts in an aggregate amount greater than $75,000,000credit received or other Indebtedness, or fail to observe or perform any material term, covenant or agreement contained in any one or more agreements agreement by which it is bound, evidencing or securing any such borrowed money or credit received or other Indebtedness or obligations under Swap Contracts in an aggregate amount greater than $75,000,000 for such period of time as would permit, or would have permitted permit (assuming the giving of appropriate notice if required) the holder or holders thereof or of any obligations issued thereunder to accelerate the maturity thereof or terminate its commitment with respect theretothereof;
(gh) if any of the Borrower, the Guarantor Guarantors or any Significant Subsidiary makes of their respective Subsidiaries, (i) shall make an assignment for the benefit of creditors, or admits admit in writing its general inability to pay or generally fails fail to pay its debts as they mature or become due, or petitions shall petition or applies apply for the appointment of a trustee or other custodian, liquidator or receiver of the Borrower, the Guarantor or any Significant Subsidiary, such Person or of any substantial part of the assets of the Borrowerany thereof, the Guarantor or any Significant Subsidiary or commences (ii) shall commence any case or other proceeding relating to the Borrower, the Guarantor or any Significant Subsidiary such Person 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 (iii) shall take any action to authorize or in furtherance of any of the foregoing, or if any such ;
(i) a petition or application is shall be filed for the appointment of a trustee or other custodian, liquidator or receiver of any of the Borrower, the Guarantors or any such of their respective Subsidiaries or any substantial part of the assets of any thereof, or a case or other proceeding is shall be commenced against the Borrowerany such Person under any bankruptcy, the Guarantor reorganization, arrangement, insolvency, readjustment of debt, dissolution or liquidation or similar law of any Significant Subsidiary jurisdiction, now or the Borrowerhereafter in effect, the Guarantor or and any Significant Subsidiary indicates such Person shall indicate its approval thereof, consent thereto or acquiescence thereintherein or such petition, application, case or proceeding shall not have been dismissed within 60 days following the filing or commencement thereof;
(hj) if a decree or order is entered appointing any such trustee, custodian, liquidator or receiver or adjudicating any of the Borrower or Borrower, the Guarantor Guarantors or any Significant Subsidiary of their respective Subsidiaries 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 or the Guarantor or any Significant Subsidiary such Person, in an involuntary case under federal bankruptcy laws of any jurisdiction as now or hereafter constituted;
(ik) if there shall remain in force, undischarged, unsatisfied and unstayed, for more than thirty 60 days, whether or not consecutive, any uninsured final judgment against any of the Borrower Borrower, the Guarantors or any Subsidiary whichof their respective Subsidiaries that, with other outstanding uninsured final judgments judgments, undischarged, against the Borrower and its Subsidiaries, such Persons exceeds in the aggregate $50,000,000 after taking into account any undisputed insurance coverage5,000,000.00;
(j) if, with respect to any Guaranteed Pension Plan, an ERISA Reportable Event shall have occurred and the Banks shall have determined in their reasonable discretion that such event reasonably could be expected to result in liability of the Borrower or any Subsidiary to the PBGC or such Plan in an aggregate amount exceeding $50,000,000 and such event in the circumstances occurring reasonably could constitute grounds for the partial or complete termination of such Plan by the PBGC or for the appointment by the appropriate United States District Court of a trustee to administer such Plan; or a trustee shall have been appointed by the appropriate United States District Court to administer such Plan; or the PBGC shall have instituted proceedings to terminate such Plan;
(kl) if any of the Loan Documents shall be cancelledcanceled, terminated, revoked or rescinded otherwise than in accordance with the terms thereof or with the express prior written agreement, consent or approval of the Banks, 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 or on behalf of any of the Borrower, the Guarantor, Guarantors or any of their respective stockholdersholders of Voting Interests, 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 effect that, any one or more of the Loan Documents is illegal, invalid or unenforceable in accordance with the terms thereof;
(m) any dissolution, termination, partial or complete liquidation, merger or consolidation of any of the Borrower, the Guarantors or any sale, transfer or other disposition of the assets of any of the Borrower, the Guarantors other than as permitted under the terms of this Agreement or the other Loan Documents;
(n) any suit or proceeding shall be filed against any of the Borrower, or the Guarantors or any of their respective assets which in the good faith business judgment of the Majority Banks after giving consideration to the likelihood of success of such suit or proceeding and the availability of insurance to cover any judgment with respect thereto and based on the information available to them, if adversely determined, would have a materially adverse affect on the ability of the Borrower or a Guarantor to perform each and every one of its obligations under and by virtue of the Loan Documents;
(o) any of the Borrower or the Guarantors shall be indicted for a federal crime, a punishment for which could include the forfeiture of the Borrower or the Guarantor;
(p) with respect to any Guaranteed Pension Plan, an ERISA Reportable Event shall have occurred and the Majority Banks shall have determined in their reasonable discretion that such event reasonably could be expected to result in liability of any of the Borrower, the Guarantors or any of their Subsidiaries to the PBGC or such Guaranteed Pension Plan in an aggregate amount exceeding $1,000,000 and such event in the circumstances occurring reasonably could constitute grounds for the termination of such Guaranteed Pension Plan by the PBGC or for the appointment by the appropriate United States District Court of a trustee to
(q) any of the Guarantors denies that such Guarantor has any liability or obligation under the Guaranty, or shall notify the Agent or any of the Banks of such Guarantor's intention to attempt to cancel or terminate the Guaranty, or shall fail to observe or comply with any term, covenant, condition or agreement under the Guaranty;
(r) Gary ▇▇▇▇▇ ▇▇▇ll, in the aggregate, own directly or indirectly less than three percent (3.0%) of the issued and outstanding shares of the capital stock of the Borrower, except as such ownership may be diluted to a percentage approved by Agent as a result of an Equity Offering of the Borrower;
(s) Gary ▇▇▇▇▇ ▇▇▇ll cease to be the Chairman and Chief Executive Officer of, or Rich▇▇▇ ▇. ▇▇▇▇ ▇▇▇ll cease to be the Chief Operating Officer of, the Borrower and a competent and experienced successor for such Person shall not be approved by the Majority Banks within six (6) months of such event, such approval not to be unreasonably withheld; or
(lt) if any person or group Event of persons (within the meaning of Section 13 or 14 Default as defined in any of the Securities Exchange Act of 1934other Loan Documents, as amended) shall have acquired beneficial ownership (within occur; then, and in any such event, the meaning of Rule 13d-3 promulgated by Agent may, and upon the Securities and Exchange Commission under said Act) of 25% or more request of the outstanding shares Majority Banks shall, by notice in writing to the Borrower declare all amounts owing with respect to this Agreement, the Notes and the other Loan Documents to be, and they shall thereupon forthwith become, immediately due and payable without presentment, demand, protest or other notice of common voting stock 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 12.1(h), Section 12.1(i) or during Section 12.1(j), all such amounts shall become immediately due and payable automatically and without any requirement of notice from any of the Banks or the Agent. The Borrower and any other Person shall be entitled to conclusively rely on a statement from the Agent that it has the authority to act for and bind the Banks pursuant to this Agreement and the other Loan Documents. Notwithstanding the provisions of subsections (d) and (e) of Section 12.1, the cure periods provided therein shall not be allowed and the occurrence of a Default thereunder immediately shall constitute an Event of Default for all purposes of this Agreement and the other Loan Documents if, within the period of twelve consecutive calendar months, individuals who were directors of months immediately preceding the Borrower on the first day occurrence of such period (together with Default, there shall have occurred two periods of cure or portions thereof under any new directors whose election by such board one or whose nomination for election by the shareholders more than one of the Borrower was approved by a vote of a majority of the directors still in office who were either directors at the beginning of such period or whose election or nomination for election was previously so approved) shall cease to constitute a majority of the board of directors of the Borrower;said subsections.
Appears in 1 contract
Sources: Revolving Credit Agreement (Excel Realty Trust Inc)
Events of Default and Acceleration. If any of the following events (“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, “Defaults”) shall occur:
(a) if the Borrower Company shall fail to pay any principal of the Loans when 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;
(b) if the Borrower Company shall fail to pay any interest or fees or other amounts owing hereunder (other than those specified in subsection (a) above) within five (5) Business Days after the same shall become due and payable whether at the Maturity Date, the Term Loan Maturity Date or any accelerated date of maturity or at any other date fixed for payment;
(c) if the Borrower Company shall fail to comply with any of the covenants contained in §§Sections 7.4, 7.5, 7.15, 7.16, 8 and 9 hereof;
(d) if the Borrower Company shall fail to perform any term, covenant or agreement contained herein or in any of the other Loan Documents (other than those specified in subsections (a), (b), and (c) above) and such failure shall not be remedied within 30 days after written notice of such failure shall have been given to the Borrower Company by the Administrative Agent or any of the Banks;
(e) if any representation or warranty contained in this Agreement or in any document or instrument delivered pursuant to or in connection with this Agreement shall prove to have been false in any material respect upon the date when made or repeated;
(f) if the Borrower Company or any of its Subsidiaries shall fail to pay when due, or within any applicable period of grace, any Indebtedness or obligations under Swap Contracts in an aggregate amount greater than $75,000,000200,000,000, or fail to observe or perform any material term, covenant or agreement contained in any one or more agreements by which it is bound, evidencing or securing any Indebtedness or obligations under Swap Contracts in an aggregate amount greater than $75,000,000 200,000,000 for such period of time as would permit, or would have permitted (assuming the giving of appropriate notice if required) the holder or holders thereof or of any obligations issued thereunder to accelerate the maturity thereof or terminate its commitment with respect thereto;
(g) if the BorrowerCompany, the Guarantor or any Significant Subsidiary makes an assignment for the benefit of creditors, makes a proposal to its creditors or files notice of its intention to do so, institutes any other proceeding under applicable law seeking to adjudicate it a bankrupt or an insolvent, or seeking liquidation, dissolution, winding-up, reorganization, compromise, arrangement, adjustment, protection, moratorium, relief, stay of proceedings of creditors, composition of it or its debts or any other similar relief, or admits in writing its inability to pay or generally fails to pay its debts as they mature or become due, or petitions or applies for the appointment of a trustee or other custodian, liquidator or receiver of the BorrowerCompany, the Guarantor or any Significant Subsidiary, or of any substantial part of the assets of the BorrowerCompany, the Guarantor or any Significant Subsidiary or commences any case or other proceeding relating to the BorrowerCompany, the Guarantor or any Significant Subsidiary 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 BorrowerCompany, the Guarantor or any Significant Subsidiary or the BorrowerCompany, the Guarantor or any Significant Subsidiary 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 Borrower Company or the Guarantor or any Significant Subsidiary 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 Company or the Guarantor or any Significant Subsidiary in an involuntary case under federal bankruptcy laws of any jurisdiction as now or hereafter constituted;
(i) if there shall remain in force, undischarged, unsatisfied and unstayed, for more than thirty days, whether or not consecutive, any final judgment against the Borrower Company or any Subsidiary which, with other outstanding final judgments against the Borrower and Company or its Subsidiaries, exceeds in the aggregate $50,000,000 200,000,000 after taking into account any undisputed insurance coverage;
(j) Except as could not reasonably be expected to have a Material Adverse Effect, (i) if, with respect to any Guaranteed Pension Plan, an ERISA Reportable Event shall have occurred and the Banks shall have determined in their reasonable discretion that such event reasonably could be expected to result in liability of the Borrower Company or any Subsidiary or (ii) any event, condition or circumstances, including any failure by any Loan Party or any Subsidiary to the PBGC or such perform its obligations under a Canadian Pension Plan in an aggregate amount exceeding $50,000,000 and such event in the circumstances occurring reasonably could constitute grounds for the partial or complete termination respect of such Plan by the PBGC or for the appointment by the appropriate United States District Court of a trustee to administer such Plan; or a trustee shall have been appointed by the appropriate United States District Court to administer such Plan; or the PBGC shall have instituted proceedings to terminate such Planall Canadian Pension Plans;
(k) if 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 Banks, 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 or on behalf of the BorrowerCompany, the Guarantor, or any of their respective stockholders, 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 effect that, any one or more of the Loan Documents is illegal, invalid or unenforceable in accordance with the terms thereof; or;
(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 2530% or more of the outstanding shares of common voting stock of the BorrowerCompany; or during any period of twelve consecutive calendar months, individuals who were directors of the Borrower Company on the first day of such period (together with any new directors whose election by such board or whose nomination for election by the shareholders of the Borrower Company was approved by a vote of a majority of the directors still in office who were either directors at the beginning of such period or whose election or nomination for election was previously so approved) shall cease to constitute a majority of the board of directors of the BorrowerCompany; or
(m) either Waste Management of Canada Corporation, a Nova Scotia unlimited company, or WM Quebec Inc., a corporation incorporated under the laws of Canada, ceases to be a directly or indirectly wholly-owned Subsidiary of the Company;
Appears in 1 contract
Events of Default and Acceleration. If any of the following events (“"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 or lapse of time, “"Defaults”") shall occur:
(a) if the any Borrower shall fail to pay any principal of the Revolving Credit Loans when 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;
(b) if the any Borrower or any Guarantor shall fail to pay any interest or fees on the Revolving Credit Loans, any Fees, or other amounts owing sums due hereunder (or under any of the other than those specified in subsection (a) above) Loan Documents, within five (5) Business Days days after the same shall have become due and payable payable, whether at the Maturity Date stated date of maturity or any accelerated date of maturity or at any other date fixed for payment;
(c) if the Borrower Parent or any of its Subsidiaries shall fail to comply with any of the its covenants contained in §§ss.ss.7.1, 7.4, 7.57.5.1, the first sentence of 7.6, 7.9.1, 7.12, 7.14, 7.15, 7.167.18, 8 and 9 hereofor 9;
(d) if the Borrower Parent or any of its Subsidiaries shall fail to perform any term, covenant or agreement contained herein or in any of the other Loan Documents (other than those specified elsewhere in subsections this ss.
12.1) for thirty (a), (b), and (c30) above) and such failure shall not be remedied within 30 days after written notice of such failure shall have has been given to the Borrower Parent by the Administrative Agent or any of the BanksLender entitled to give such notice;
(e) if any representation or warranty contained of the Parent or any of its Subsidiaries in this Credit Agreement or any of the other Loan Documents or in any other document or instrument delivered pursuant to or in connection with this Credit Agreement shall prove to have been false in any material respect upon the date when made or deemed to have been made or repeated;
(f) if the Borrower Parent or any of its Subsidiaries shall (i) fail to pay when dueat maturity, or within any applicable period of grace, any Indebtedness (A) obligation for borrowed money or obligations under Swap Contracts credit received or in respect of any Capitalized Leases, in an aggregate amount greater than in excess of $75,000,00010,000,000, or (B) obligation in respect of any of the Indenture Debt, or (ii) fail to observe or perform any material term, covenant or agreement contained in any one or more agreements agreement by which it is bound, evidencing or securing borrowed money or credit received or in respect of any Indebtedness or obligations under Swap Contracts Capitalized Leases, in an aggregate amount greater than in excess of $75,000,000 10,000,000, for such period of time as would permit, or would have permitted permit (assuming the giving of appropriate notice if required) the holder or holders thereof or of any obligations issued thereunder to accelerate the maturity thereof thereof, or terminate its commitment with respect theretoany such holder or holders shall rescind or shall have a right to rescind the purchase of any such obligations;
(g) if the Borrower, the Guarantor Parent or any Significant Subsidiary makes of its Subsidiaries shall make an assignment for the benefit of creditors, or admits admit in writing its inability to pay or generally fails fail to pay its debts as they mature or become due, or petitions shall petition or applies apply for the appointment of a trustee or other custodian, liquidator or receiver of the Borrower, the Guarantor Parent or any Significant Subsidiary, of its Subsidiaries or of any substantial part of the assets of the Borrower, the Guarantor Parent or any Significant Subsidiary of its Subsidiaries or commences shall commence any case or other proceeding relating to the Borrower, the Guarantor Parent or any Significant Subsidiary of 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 shall take any action to authorize or in furtherance of any of the foregoing, or if any such petition or application is shall be filed or any such case or other proceeding is shall be commenced against the Borrower, the Guarantor Parent or any Significant Subsidiary or of its Subsidiaries and the Borrower, the Guarantor Parent or any Significant Subsidiary indicates of its Subsidiaries shall indicate its approval thereof, consent thereto or acquiescence thereintherein or such petition or application shall not have been dismissed within forty-five (45) days following the filing thereof;
(h) if a decree or order is entered appointing any such trustee, custodian, liquidator or receiver or adjudicating the Borrower or the Guarantor Parent or any Significant Subsidiary of 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 in respect of the Borrower or the Guarantor Parent or any Significant Subsidiary of the Parent in an involuntary case under federal bankruptcy laws of any jurisdiction as now or hereafter constituted;
(i) if there shall remain in force, undischarged, unsatisfied and unstayed, for more than thirty days, whether or not consecutive, any final judgment against the Borrower Parent or any Subsidiary whichof its Subsidiaries that, with other outstanding final judgments judgments, undischarged, against the Borrower and Parent or any of its Subsidiaries, Subsidiaries exceeds in the aggregate $50,000,000 after taking into account any undisputed insurance coverage5,000,000;
(ji) if, with respect to the holders of all or any Guaranteed Pension Plan, an ERISA Reportable Event shall have occurred and the Banks shall have determined in their reasonable discretion that such event reasonably could be expected to result in liability part of the Borrower Indenture Debt or the Refinanced Indenture Debt (if any) shall accelerate the maturity of all or any Subsidiary part of the Indenture Debt or the Refinanced Indenture Debt (if any), as the case may be, or (ii) the Indenture Debt or the Refinanced Indenture Debt (if any) shall be prepaid, redeemed or repurchased in whole or in part or an offer to prepay, redeem or repurchase the PBGC Indenture Debt or such Plan the Refinanced Indenture Debt (if any), as the case may be, in an aggregate amount exceeding $50,000,000 and such event whole or in the circumstances occurring reasonably could constitute grounds for the partial or complete termination of such Plan by the PBGC or for the appointment by the appropriate United States District Court of a trustee to administer such Plan; or a trustee part shall have been appointed by made (provided, any regularly scheduled repayment of the appropriate United States District Court to administer such Plan; or Indenture Debt made on the PBGC maturity date thereof shall have instituted proceedings to terminate such Plannot be considered a prepayment hereunder);
(k) if any of the Loan Documents shall be cancelled, terminated, revoked or rescinded otherwise other than in accordance with the terms thereof or with the express prior written agreement, consent or approval of the BanksLenders, 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 or on behalf of the Borrower, the Guarantor, Parent or any of its 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 determination that, or issue a judgment, order, decree or ruling to the effect that, any one or more of the Loan Documents is illegal, invalid or unenforceable in accordance with the terms thereof; or;
(l) if the Parent or any person ERISA Affiliate incurs any liability to the PBGC or group a Guaranteed Pension Plan pursuant to Title IV of persons ERISA in an aggregate amount exceeding $1,000,000, or the Parent or any ERISA Affiliate is assessed withdrawal liability pursuant to Title IV of ERISA by a Multiemployer Plan requiring aggregate annual payments exceeding $1,000,000, or any of the following occurs with respect to a Guaranteed Pension Plan: (i) an ERISA Reportable Event, or a failure to make a required installment or other payment (within the meaning of Section 13 or 14 ss.302(f)(1) of ERISA), provided that the Administrative Agent determines in its reasonable discretion that such event (A) could be expected to result in liability of the Securities Exchange Act Parent or any of 1934, as amendedits Subsidiaries to the PBGC or such Guaranteed Pension Plan in an aggregate amount exceeding $1,000,000 and (B) shall have acquired beneficial ownership (within could constitute grounds for the meaning termination of Rule 13d-3 promulgated such Guaranteed Pension Plan by the Securities PBGC, for the appointment by the appropriate United States District Court of a trustee to administer such Guaranteed Pension Plan or for the imposition of a lien in favor of such Guaranteed Pension Plan; or (ii) the appointment by a United States District Court of a trustee to administer such Guaranteed Pension Plan; or (iii) the institution by the PBGC of proceedings to terminate such Guaranteed Pension Plan;
(m) the Parent or any of its Subsidiaries shall be enjoined, restrained or in any way prevented by the order of any Governmental Authority from conducting any material part of its business and Exchange Commission under said Actsuch order shall continue in effect for more than thirty (30) days;
(n) there shall occur any strike, lockout, labor dispute, embargo, condemnation, act of 25% God or public enemy, or other casualty, which in any such case causes, for more than fifteen (15) consecutive days, the cessation or substantial curtailment of revenue producing activities at any facility of the outstanding shares Parent or any of common voting stock its Subsidiaries if such event or circumstance is not covered by business interruption insurance and would have a Material Adverse Effect;
(o) there shall occur the loss, suspension or revocation of, or failure to renew, any license or permit now held or hereafter acquired by the Parent or any of its Subsidiaries if such loss, suspension, revocation or failure to renew would have a Material Adverse Effect; or
(p) a Change of Control shall occur; then, and in any such event, so long as the same may be continuing, the Administrative Agent may, and upon the request of the Borrower; Required Lenders shall, by notice in writing to the Borrowers declare all amounts owing with respect to this Credit Agreement, the Revolving Credit Notes and the other Loan Documents to be, and they shall thereupon forthwith become, immediately due and payable without presentment, demand, protest or during other notice of any period kind, all of twelve consecutive calendar months, individuals who were directors which are hereby expressly waived by each of the Borrower on Borrowers; provided that in the first day event of any Event of Default specified in ss.ss.12.1(g) or 12.1(h), all such period (together with amounts shall become immediately due and payable automatically and without any new directors whose election by such board requirement of notice from the Administrative Agent or whose nomination for election by the shareholders of the Borrower was approved by a vote of a majority of the directors still in office who were either directors at the beginning of such period or whose election or nomination for election was previously so approved) shall cease to constitute a majority of the board of directors of the Borrower;any Lender.
Appears in 1 contract
Events of Default and Acceleration. If any of the following events (“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 or lapse of time, “Defaults”) shall occur:
(a) if either of the Borrower Borrowers shall fail to pay any principal of the Loans when 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;
(b) if either of the Borrower Borrowers shall fail to pay any interest on the Loans or fees any other sums due hereunder or under any of the other amounts owing hereunder (other than those specified in subsection (a) above) within five (5) Business Days after Loan Documents, when the same shall become due and payable payable, whether at the Maturity Date stated date of maturity or any accelerated date of maturity or at any other date fixed for payment;
(c) if either of the Borrower Borrowers shall fail to comply with any of the covenants covenant contained in §7.13, §7.48.1, 7.5§8.2, 7.15, 7.16, 8 §8.3 and 9 hereof§8.7;
(d) if either of the Borrower Borrowers shall fail to comply with any covenant contained in §9, and such failure shall continue for twenty (20) days after written notice thereof shall have been given to the Borrowers by the Agent (provided that with respect to any failure to comply with §9.2, such failure shall be cured by Borrowers prepaying the Loans as provided in §3.3 to an amount which would have resulted in compliance on a pro forma basis with the applicable covenant based on actual Operating Cash Flow for the Test Period and the average interest payable with respect to the Loans during the Test Period);
(e) either of the Borrowers or any of their respective Restricted Subsidiaries or any Guarantor shall fail to perform any other term, covenant or agreement contained herein or in any of the other Loan Documents (other than those specified above in subsections this §12);
(a)f) any representation or warranty made by or on behalf of any Borrower, (b), and (c) above) and such failure shall not be remedied within 30 days after written notice of such failure shall have been given to the Borrower by the Administrative Agent any Guarantor or any of the Banks;
(e) if any representation or warranty contained Restricted Subsidiaries of a Borrower in this Agreement or any other Loan Document, or in any report, certificate, financial statement, request for a Loan, or in any other document or instrument delivered pursuant to or in connection with this Agreement Agreement, any advance of a Loan or any of the other Loan Documents shall prove to have been false in any material respect upon the date when made or deemed to have been made or repeated;
(fg) if any of the Borrower Borrowers, any Guarantor or any of its the Restricted Subsidiaries of a Borrower shall fail to pay when dueat maturity, or within any applicable period of grace, any Indebtedness obligation for borrowed money or obligations under Swap Contracts in an aggregate amount greater than $75,000,000credit received or other Indebtedness, or fail to observe or perform any material term, covenant or agreement contained in any one or more agreements agreement by which it is bound, evidencing or securing any such borrowed money or credit received or other Indebtedness or obligations under Swap Contracts in an aggregate amount greater than $75,000,000 for such period of time as would permit, or would have permitted permit (assuming the giving of appropriate notice if required) the holder or holders thereof or of any obligations issued thereunder to accelerate the maturity thereof thereof; provided that the events described in this §12.1(g) shall not constitute an Event of Default unless such failure to pay or terminate its commitment perform, together with other failures to pay or perform, involve singly or in the aggregate recourse obligations for borrowed money or credit received or other Indebtedness totaling in excess of $50,000,000.00 or, with respect theretoto non-recourse obligations for borrowed money or credit received or other Indebtedness totaling singly or in the aggregate in excess of $150,000,000.00 (except that with respect to Non-Recourse Indebtedness of a Restricted Subsidiary of a Borrower it shall not be an Event of Default hereunder unless the Borrowers’ aggregate equity Investment in all of such Restricted Subsidiaries exceeds $15,000,000.00);
(gh) if any of the BorrowerBorrowers, the any Guarantor or any Significant Subsidiary makes of the Restricted Subsidiaries of a Borrower, (1) shall make an assignment for the benefit of creditors, or admits admit in writing its general inability to pay or generally fails fail to pay its debts as they mature or become due, or petitions shall petition or applies apply for the appointment of a trustee or other custodian, liquidator or receiver of any of the BorrowerBorrowers, the any Guarantor or any Significant Subsidiary, of the Restricted Subsidiaries of a Borrower or of any substantial part of the assets of the Borrowerany thereof, the Guarantor or any Significant Subsidiary or commences (2) shall commence any case or other proceeding relating to any of the BorrowerBorrowers, the any Guarantor or any Significant Subsidiary of the Restricted Subsidiaries of a 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 (3) shall take any action to authorize or in furtherance of any of the foregoing, or if any such ;
(i) a petition or application is shall be filed for the appointment of a trustee or other custodian, liquidator or receiver of any of the Borrowers, any Guarantor or any such of the Restricted Subsidiaries of a Borrower or any substantial part of the assets of any thereof, or a case or other proceeding is shall be commenced against any of the BorrowerBorrowers, the any Guarantor or any Significant Subsidiary of the Restricted Subsidiaries of a Borrower under any bankruptcy, reorganization, arrangement, insolvency, readjustment of debt, dissolution or liquidation or similar law of any jurisdiction, now or hereafter in effect, and any of the BorrowerBorrowers, the any Guarantor or any Significant Subsidiary indicates of the Restricted Subsidiaries of a Borrower shall indicate its approval thereof, consent thereto or acquiescence thereintherein or such petition, application, case or proceeding shall not have been dismissed within ninety (90) days following the filing or commencement thereof;
(hj) if a decree or order is entered appointing any such trustee, custodian, liquidator or receiver or adjudicating any of the Borrower or the Borrowers, any Guarantor or any Significant Subsidiary of the Restricted Subsidiaries of a Borrower 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 any of the Borrower or the Borrowers, any Guarantor or any Significant Subsidiary of the Restricted Subsidiaries of a Borrower, in an involuntary case under federal bankruptcy laws of any jurisdiction as now or hereafter constituted;
(ik) if there shall remain in force, undischarged, unsatisfied and unstayed, (i) for more than thirty sixty (60) days, whether or not consecutive, any uninsured final judgment against any of the Borrower Borrowers, any Guarantor or any Subsidiary whichof the Restricted Subsidiaries of a Borrower that, with other outstanding uninsured final judgments judgments, undischarged, against any of the Borrowers, any Guarantor or any of the Restricted Subsidiaries of a Borrower and its Subsidiaries, exceeds in the aggregate $50,000,000 after taking into account 5,000,000.00, or (ii) for more than thirty (30) days, whether or not consecutive, any undisputed insurance coverageuninsured final judgment against any of the Borrowers, any Guarantor or any of the Restricted Subsidiaries of a Borrower that, with other outstanding uninsured final judgments, undischarged, against any of the Borrowers, any Guarantor or any of the Restricted Subsidiaries of a Borrower exceeds in the aggregate $10,000,000.00;
(j) if, with respect to any Guaranteed Pension Plan, an ERISA Reportable Event shall have occurred and the Banks shall have determined in their reasonable discretion that such event reasonably could be expected to result in liability of the Borrower or any Subsidiary to the PBGC or such Plan in an aggregate amount exceeding $50,000,000 and such event in the circumstances occurring reasonably could constitute grounds for the partial or complete termination of such Plan by the PBGC or for the appointment by the appropriate United States District Court of a trustee to administer such Plan; or a trustee shall have been appointed by the appropriate United States District Court to administer such Plan; or the PBGC shall have instituted proceedings to terminate such Plan;
(kl) if (i) any of the Loan Documents shall be cancelledcanceled, terminated, revoked or rescinded otherwise than in accordance with the terms thereof or with the express prior written agreement, consent or approval of the BanksLenders, or (ii) 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 or on behalf of any of the BorrowerBorrowers, the Guarantor, any Guarantor or any of their respective stockholders, partners or beneficiaries, or (iii) 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 effect that, any one or more of the Loan Documents is illegal, invalid or unenforceable in accordance with the terms thereof and, with respect to Defaults under this clause (iii) Borrowers do not cure such illegality, invalidity or unenforceability in a manner satisfactory to Agent within ten (10) days of such determination, judgment, order, decree or ruling, as applicable;
(m) any dissolution, termination, partial or complete liquidation, merger or consolidation of any of the Borrowers or any Guarantor, or any sale, transfer or other disposition of the assets of any of the Borrowers or any Guarantor, other than as permitted under the terms of this Agreement or the other Loan Documents;
(n) any suit or proceeding shall be filed against any of the Borrowers, any Guarantor or any of their respective assets which in the good faith business judgment of the Majority Lenders after giving consideration to the likelihood of success of such suit or proceeding and the availability of insurance to cover any judgment with respect thereto and based on the information available to them, if adversely determined, would have a materially adverse affect on the ability of any of the Borrowers or any Guarantor to perform its obligations under and by virtue of the Loan Documents;
(o) any of the Borrowers, any Guarantor or any of the Restricted Subsidiaries of a Borrower shall be indicted for a federal crime, a punishment for which could include the forfeiture of any assets of such Person included in the Collateral or the Property;
(i) an ERISA Reportable Event shall occur with respect to, or proceedings shall commence to have a trustee appointed, or a trustee shall be appointed, to administer or to terminate, any Employee Benefit Plan, which ERISA Reportable Event or institution of proceedings is, in the opinion of the Majority Lenders, likely to result in the termination of such Plan for purposes of Title IV of ERISA, and, in the case of an ERISA Reportable Event, the continuance of such ERISA Reportable Event unremedied for thirty (30) days after notice of such ERISA Reportable Event pursuant to §4043 of ERISA is given or, in the case of institution of proceedings, the continuance of such proceedings for thirty (30) days after commencement thereof, (ii) any Employee Benefit Plan shall terminate for purposes of Title IV of ERISA, or (iii) any other event or condition shall occur or exist with respect to an Employee Benefit Plan and in each case in clauses (i) through (iii) above, such event or condition, together with all other such events or conditions, if any, could subject any of the Borrowers or any of their respective Restricted Subsidiaries or any Guarantor to any tax, penalty or other liabilities in the aggregate material in relation to the business, operations, property or financial or other condition of any of the Borrowers, any Guarantor or of a Borrower and its Restricted Subsidiaries taken as a whole;
(q) any Guarantor denies that such Guarantor has any liability or obligation under the Guaranty or the Guarantor Contribution Agreement, or shall notify the Agent or any of the Lenders of such Guarantor’s intention to attempt to cancel or terminate the Guaranty or the Guarantor Contribution Agreement, or shall fail to observe or comply with any term, covenant, condition or agreement under the Guaranty or the Guarantor Contribution Agreement;
(r) a Change of Control shall occur without the prior written approval of all of the Lenders (which consent may be withheld by the Lenders in their sole and absolute discretion); or
(ls) if any person or group Event of persons (within the meaning of Section 13 or 14 Default, as defined in any of the Securities Exchange Act other Loan Documents, shall occur; then, and in any such event, the Agent may, and upon the request of 1934the Majority Lenders shall, as amended) by notice in writing to the Borrowers declare all amounts owing with respect to this Agreement, the Notes and the other Loan Documents to be, and they shall have acquired beneficial ownership (within the meaning thereupon forthwith become, immediately due and payable without presentment, demand, protest or other notice of Rule 13d-3 promulgated any kind, all of which are hereby expressly waived by the Securities Borrowers; provided that in the event of any Event of Default specified in §12.1(h), §12.1(i) or §12.1(j), all such amounts shall become immediately due and Exchange Commission under said Act) payable automatically and without any requirement of 25% or more notice from any of the outstanding shares Lenders or the Agent. Notwithstanding the foregoing, it shall not be an Event of common voting stock Default upon the occurrence of any of the Borrower; events described under §12.1(f), (h), (i) or during any period of twelve consecutive calendar months, individuals who were directors of (j) with respect to a Restricted Subsidiary or Unrestricted Subsidiary unless the Borrower on the first day Borrowers’ aggregate equity Investment in all of such period (together with any new directors whose election by such board Restricted Subsidiaries or whose nomination for election by the shareholders of the Borrower was approved by a vote of a majority of the directors still in office who were either directors at the beginning of such period or whose election or nomination for election was previously so approved) shall cease to constitute a majority of the board of directors of the Borrower;Unrestricted Subsidiaries exceeds $15,000,000.00.
Appears in 1 contract