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 or lapse of time, “Defaults”) shall occur: (a) 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) the Borrower shall fail to pay any interest on the Loans, any reimbursement obligations with respect to the Letters of Credit, or any fees or 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; (c) the Borrower shall fail to comply with the covenant contained in §9.1 and such failure shall continue for five (5) Business Days after written notice thereof shall have been given to the Borrower by the Agent; (d) any of the Borrower, the Guarantors or any of their respective Subsidiaries shall fail to perform any other term, covenant or agreement contained in §8.20, §9.3, §9.4, §9.5 or §9.6; (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 which they are required to perform (other than those specified in the other subclauses of this §12 or in the other Loan Documents); (f) any representation or warranty 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, 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; (g) any of the Borrower, the Guarantors or any of their respective Subsidiaries shall fail to pay when due (including, without limitation, at maturity), or within any applicable period of grace, any principal, interest or other amount on account any obligation for borrowed money or credit received or other Indebtedness (including under any Derivatives Contract), or shall fail to observe or perform any term, covenant or agreement contained in any agreement by which it is bound, evidencing or securing any obligation for borrowed money or credit received or other Indebtedness (including under any Derivatives Contract) 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 the termination or other settlement of such obligation; 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 in the aggregate obligations for borrowed money or credit received or other Recourse Indebtedness totaling in excess of $15,000,000.00 or Non-Recourse Indebtedness in excess of $60,000,000.00; (h) any of the Borrower, the Guarantors or any of their respective Subsidiaries (i) shall make an assignment for the benefit of creditors, or admit in writing its general 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 for it or any substantial part of its assets, (ii) shall commence any case or other proceeding relating to 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 (iii) shall take any action to authorize or in furtherance of any of the foregoing; (i) a petition or application shall be filed for the appointment of a trustee or other custodian, liquidator or receiver of any of the Borrower, the Guarantors or any of their respective Subsidiaries or any substantial part of the assets of any thereof, or a case or other proceeding shall be commenced against any 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, and any such Person shall indicate its approval thereof, consent thereto or acquiescence therein or such petition, application, case or proceeding shall not have been dismissed within sixty (60) days following the filing or commencement thereof; (j) a decree or order is entered appointing a trustee, custodian, liquidator or receiver for any of the Borrower, the Guarantors or any of their respective Subsidiaries or adjudicating any 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 any such Person in an involuntary case under federal bankruptcy laws as now or hereafter constituted; (k) there shall remain in force, undischarged, unsatisfied and unstayed, for more than sixty (60) days, whether or not consecutive, one or more uninsured or unbonded final judgments, orders, awards, writs execution or attachments against the Borrower, Guarantors or any of their respective Subsidiaries that, either individually or in the aggregate, exceed $10,000,000.00; (l) any of the Loan Documents, the Contribution Agreement, the Equipment Intercreditor Agreement or the Subordination and Standstill Agreements 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, the Contribution Agreement, the Equipment Intercreditor Agreement or the Subordination and Standstill Agreements shall be commenced by or on behalf of the Borrower or any of 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, the Contribution Agreement, the Equipment Intercreditor Agreement or the Subordination and Standstill Agreements 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 of their respective Subsidiaries shall occur or any sale, transfer or other disposition of the assets of any of the Borrower, 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; (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 their respective Subsidiaries to the PBGC or such Guaranteed Pension Plan in an aggregate amount exceeding $10,000,000.00 and (x) 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 (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) the Borrower, any Guarantor or any of their respective Subsidiaries 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 the Borrower, the Guarantors 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 Unencumbered Asset Pool Properties; (p) any Change of Control shall occur; (q) an Event of Default under any of the other Loan Documents shall occur; (r) notwithstanding anything herein to the contrary (including without limitation §12.1(g)), the Borrower and the Guarantors hereby expressly agree that any “Event of Default” (as defined in the Equipment Loan Documents) (which shall be deemed to include maturity of the debt evidenced and secured by the Equipment Loan Documents or any other occurrence which would give the Equipment Lender the right to exercise remedies under the Equipment Loan Documents) shall constitute and be deemed to be an Event of Default under this Agreement for which no right to cure shall be available. Without limiting the foregoing, an “Event of Default” under the Equipment Loan Documents shall conclusively be deemed to have occurred upon the declaration, statement or notice from the Equipment Lender’s as to the existence or occurrence of an “Event of Default” under any of the Equipment Loan Documents; (s) Any default, material misrepresentation or breach of warranty in the QTLP Subordination and Standstill Agreement by Borrower or the subordinate lender that is the holder of QTLP Subordinate Note; (t) [Intentionally Omitted.] (u) Any default, material misrepresentation or breach of warranty in the Bond Subordination and Standstill Agreement by the Authority or the subordinate lender that is the holder of the Bond; then, and in any such event, the 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 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 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 Lenders or the Agent. Upon demand by Agent or the Majority Revolving Credit 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, the Borrower will Cash Collateralize the Letter of Credit Liabilities (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 Lenders as security for any amounts that become payable under the Letters of Credit and all other Obligations and Hedge Obligations in accordance with §2.12. 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 and 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 the Borrower will be released to the Borrower.
Appears in 1 contract
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 or lapse of time, “Defaults”) shall occur:
(a) 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) the Borrower shall fail to pay any interest on the Loans, any reimbursement obligations with respect to the Letters of Credit, Loans or any fees or other sums due hereunder or under any of the other Loan Documents (including, without limitation, amounts due under §8.17) when the same shall become due and payable, whether at and such failure continues for three (3) days (provided that in the stated date case of maturity or any accelerated date such sums due other than for interest, the Borrower shall have received from the Agent notice of maturity or at any the nature and amount of such other date fixed for paymentamounts and that payment therefor is due);
(c) the Borrower or BPI shall fail to comply comply, or to cause BPI to comply, as the case may be, with any of the covenant respective covenants contained in §9.1 the following:
(i) 8.1 (except with respect to principal, interest and other sums covered by clauses (a) or (b) above);
(ii) 8.5 (clauses (a) through (d)), unless such failure shall continue for five is cured within fifteen (515) Business Days after written notice thereof shall have been given Days;
(iii) 8.6 (as to the Borrower by legal existence of Borrower);
(iv) 8.7 (as to the Agentlegal existence and REIT status of BPI or as it otherwise relates to BPI);
(v) 8.10, unless such failure is cured within three (3) Business Days;
(vi) 8.12;
(vii) [Intentionally Deleted];
(viii) 8.14;
(ix) 9.1;
(x) 9.2;
(xi) 9.3;
(xii) 9.4;
(xiii) 9.6; and
(xiv) 10;
(d) any of the Borrower, the Guarantors Borrower or any of their respective Subsidiaries BPI shall fail to perform any other termperform, covenant or agreement contained in §8.20to cause BPI to perform, §9.3, §9.4, §9.5 or §9.6;
(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 which they are required to perform (other than those specified elsewhere in the other subclauses of this §12 14) and such failure continues for thirty (30) days after written notice of such failure 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 other Loan DocumentsAgent 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 such initial written notice from the Agent) to effect such cure;
(fe) any representation or warranty made by or on behalf of the Borrower, the Guarantors Borrower or any of their respective Subsidiaries BPI 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, 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 repeatedrepeated and the same is not otherwise specified herein to be a Non-Material Breach;
(gf) the Borrower or any of its Subsidiaries or, to the Borrowerextent of Recourse to the Borrower or such Subsidiaries thereunder, the Guarantors or any of their respective Subsidiaries Affiliates, shall fail to pay when due (including, without limitation, at maturity), or within any applicable period of grace, any principal, interest or other amount on account any obligation for borrowed money or credit received or in respect of any Capitalized Leases (other Indebtedness (including under any Derivatives Contractthan non-recourse obligations or credit), the recourse component of the principal amount of which is in excess of $50,000,000, either individually or shall in the aggregate, or fail to observe or perform any material term, covenant covenant, condition or agreement contained in any agreement agreement, document or instrument by which it is boundbound evidencing, securing or otherwise relating to such Recourse obligations, evidencing or securing any obligation for borrowed money or credit received or other Indebtedness (including under in respect of any Derivatives Contract) Capitalized Leases for such period of time as would permit (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 or require thereof; provided, however that notwithstanding the termination or other settlement of such obligation; provided that the events described in §12.1(gforegoing, (i) shall not constitute an no Event of Default shall occur pursuant to this subparagraph (f) unless and until the holder or holders of such failure to perform, together with other failures to perform as described in §12.1(g), involve singly or in the aggregate obligations for borrowed money or credit received or other Recourse Indebtedness totaling have declared an event of default beyond any applicable notice and grace periods, if any, on in excess of $15,000,000.00 or Non-50,000,000 of such Recourse Indebtedness (determined on the basis of the principal amount of such Recourse Indebtedness) either individually or in excess the aggregate, and (ii) with respect solely to any such Recourse Indebtedness of $60,000,000.00a 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;
(hg) any of the BorrowerBPLP, the Guarantors BPI or any of their respective Subsidiaries (i) shall make an assignment for the benefit of creditors, or admit in writing its general 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 for it of any of BPLP, BPI or any of their respective Subsidiaries or of any substantial part of its assets, (ii) the properties or assets of any of such parties or shall commence any case or other proceeding relating to it any of the BPLP, BPI or any 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 (iii) shall take any action to authorize or in furtherance of any of the foregoing;
(i) a , or if any such petition or application shall be filed for the appointment of a trustee or other custodian, liquidator or receiver of any of the Borrower, the Guarantors or any of their respective Subsidiaries or any substantial part of the assets of any thereof, or a such case or other proceeding shall be commenced against any such Person under of BPLP, BPI or any bankruptcyof their respective Subsidiaries and (i) any of BPLP, reorganization, arrangement, insolvency, readjustment BPI or any of debt, dissolution or liquidation or similar law of any jurisdiction, now or hereafter in effect, and any such Person their respective Subsidiaries shall indicate its approval thereof, consent thereto or acquiescence therein or (ii) any such petition, application, case or other proceeding shall not have been dismissed within sixty continue undismissed, or unstayed and in effect, for a period of ninety (6090) days following days, except, with respect solely to such parties other than BPLP and BPI, any of the filing or commencement thereofforegoing constitutes a Non-Material Breach;
(jh) a decree or order is entered appointing a any trustee, custodian, liquidator or receiver for or adjudicating any of the BorrowerBPLP, the Guarantors BPI or any of their respective Subsidiaries or adjudicating any 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 any such Person of BPLP, BPI or any of their respective Subsidiaries in an involuntary case under federal bankruptcy laws 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;
(ki) there shall remain in force, undischarged, unsatisfied and unstayed, for more than sixty thirty (6030) days, whether or not consecutive, one or more any uninsured or unbonded final judgmentsjudgment against any of BPLP, orders, awards, writs execution or attachments against the Borrower, Guarantors BPI or any of their respective Subsidiaries that, either individually or with other outstanding uninsured final judgments, undischarged, unsatisfied and unstayed, against any of such parties exceeds in the aggregateaggregate $20,000,000, exceed $10,000,000.00except, with respect solely to such parties other than BPLP and BPI, any of the foregoing constitutes a Non-Material Breach;
(lj) any of the Loan Documents, the Contribution Agreement, the Equipment Intercreditor Agreement Documents or the Subordination and Standstill Agreements any material provision of any Loan Document shall be 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 LendersAgent, 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, the Contribution Agreement, the Equipment Intercreditor Agreement or the Subordination and Standstill Agreements Documents shall be commenced by or on behalf of the Borrower or any of the GuarantorsBPI, or any court or any other governmental or regulatory authority or agency of competent jurisdiction shall make a determinationdetermination that, or issue a judgment, order, decree or ruling, ruling to the effect that that, any one or more of the Loan Documents, the Contribution Agreement, the Equipment Intercreditor Agreement or the Subordination and Standstill Agreements Documents is illegal, invalid or unenforceable in accordance with the as to any material terms thereof;
(mk) any dissolution, termination, partial “Event of Default” or complete liquidation, merger or consolidation default (after notice and expiration of any period of grace, to the Borrowerextent provided), the Guarantors as defined or provided in any of their respective Subsidiaries shall occur or any sale, transfer or other disposition of the assets of any of the Borrower, 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, shall occur and be continuing;
(nl) with respect to any Guaranteed Pension Plan, an ERISA Reportable Event shall have occurred and the Required Lenders 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 Borrower or any of their respective Subsidiaries BPI to the PBGC or such Guaranteed Pension Plan in an aggregate amount exceeding $10,000,000.00 10,000,000 and (x) 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 (y) a trustee shall have been appointed by the United States District Court to administer such Pension Plan; or (z) the PBGC shall have instituted proceedings to terminate such Guaranteed Pension Plan;; or
(om) without limitation of the Borrowerother provisions of this §14.1, BPI shall at any Guarantor time fail to be the sole general partner of BPLP or shall at any of their respective Subsidiaries or any shareholder, officer, director, partner or member time be in contravention of any of them shall be indicted for a federal crime, a punishment for which could include the forfeiture of (i) any assets of the Borrower, the Guarantors or any of their respective Subsidiaries which requirements contained in the good faith judgment of the Required Lenders could have a Material Adverse Effect, or (ii) the Unencumbered Asset Pool Properties;
(p) any Change of Control shall occur;
(q) an Event of Default under any of the other Loan Documents shall occur;
(r) notwithstanding anything herein to the contrary (including without limitation §12.1(g)9.1(e), the Borrower and the Guarantors hereby expressly agree that any “Event last paragraph of Default” §9.2, or §9.3 (as defined in the Equipment Loan Documents) (which shall be deemed to include maturity of the debt evidenced and secured by the Equipment Loan Documents or any other occurrence which would give the Equipment Lender the right to exercise remedies under the Equipment Loan Documents) shall constitute and be deemed to be an Event of Default under this Agreement for which no right to cure shall be available. Without limiting the foregoingincluding, an “Event of Default” under the Equipment Loan Documents shall conclusively be deemed to have occurred upon the declaration, statement or notice from the Equipment Lender’s as to the existence or occurrence of an “Event of Default” under any of the Equipment Loan Documents;
(s) Any default, material misrepresentation or breach of warranty in the QTLP Subordination and Standstill Agreement by Borrower or the subordinate lender that is the holder of QTLP Subordinate Note;
(t) [Intentionally Omitted.]
(u) Any default, material misrepresentation or breach of warranty in the Bond Subordination and Standstill Agreement by the Authority or the subordinate lender that is the holder of the Bond; then, and in any such eventwithout limitation, the Agent may, and upon the request last paragraph of the Required Lenders shall, by notice in writing to the Borrower 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 Borrower; provided that in the event of any Event of Default specified in §12.1(h9.3), §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 Lenders or the Agent. Upon demand by Agent or the Majority Revolving Credit 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, the Borrower will Cash Collateralize the Letter of Credit Liabilities (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 Lenders as security for any amounts that become payable under the Letters of Credit and all other Obligations and Hedge Obligations in accordance with §2.12. 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 and 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 the Borrower will be released to the Borrower.
Appears in 1 contract
Sources: Revolving 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 or lapse of time, “Defaults”) shall occur:
(a) the Borrower shall fail to pay any principal of any portion of the Loans Term 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) the Borrower shall fail to pay any interest on any portion of the Loans, any reimbursement obligations with respect to the Letters of Credit, Term Loan or any fees or other sums due hereunder or under any of the other Loan Documents or any fee letter (including, without limitation, amounts due under §8.16) 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 and such failure continues for paymentthree (3) days;
(c) the Borrower shall fail to comply with the covenant contained in §9.1 and such failure shall continue for five (5) Business Days after written notice thereof shall have been given to the Borrower by the Agent;
(d) any of the Borrower, the Guarantors Trust or any of their respective Subsidiaries shall fail to perform comply, or to cause the Trust to comply, as the case may be, with any other term, covenant or agreement 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; §§8.4 through §8.10, inclusive; §8.12; §8.13; §8.19; §8.20, ; §9.3, 9 and §9.4, §9.5 or §9.611;
(ed) any of the Borrower, the Guarantors 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 which they are required to perform (other than those specified elsewhere in the other subclauses of this §12 or in the other Loan Documents)14) and such failure continues for thirty (30) days;
(fe) any representation or warranty made by or on behalf of the Borrower, the Guarantors Trust 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, 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;
(gf) any of the Borrower, the Guarantors Trust or any of its Subsidiaries or, to the extent of Recourse to the Borrower, the Trust or such Subsidiaries thereunder, any Partially-Owned Entity or other of their respective Subsidiaries Affiliates, shall fail to pay when due (including, without limitation, at maturity)due, or within any applicable period of grace, any principalConsolidated Total Indebtedness which is in excess of (i) $5,000,000, interest either individually or other amount on account any obligation for borrowed money in the aggregate, if such Indebtedness is without Recourse and (ii) $1,000,000, either individually or credit received or other in the aggregate, if such Indebtedness (including under any Derivatives Contract)is Recourse, or shall fail to observe or perform any material term, covenant covenant, condition or agreement contained in any agreement agreement, document or instrument by which it is boundbound evidencing, evidencing securing or securing any obligation for borrowed money or credit received or other otherwise relating to such Consolidated Total Indebtedness (including under any Derivatives Contract) for such period of time as would permit (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 (i) $5,000,000, either individually or in the aggregate, if such Indebtedness is without Recourse and (ii) $1,000,000, either individually or in the aggregate, if such Indebtedness is Recourse, to accelerate the maturity thereof or require the termination or other settlement of such obligation; 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 in the aggregate obligations for borrowed money or credit received or other Recourse Indebtedness totaling in excess of $15,000,000.00 or Non-Recourse Indebtedness in excess of $60,000,000.00thereof;
(hg) any of the Borrower, the Guarantors Trust or any of their respective Subsidiaries (i) shall make an assignment for the benefit of creditors, or admit in writing its general 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 for it of any of the Borrower, the Trust or any of their respective Subsidiaries or of any substantial part of its assets, (ii) the properties or assets of any of such parties or shall commence any case or other proceeding relating to it any of the Borrower, the Trust or any 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 (iii) shall take any action to authorize or in furtherance of any of the foregoing;
(i) a , or if any such petition or application shall be filed for the appointment of a trustee or other custodian, liquidator or receiver of any of the Borrower, the Guarantors or any of their respective Subsidiaries or any substantial part of the assets of any thereof, or a such case or other proceeding shall be commenced against any such Person under of the Borrower, the Trust or any bankruptcyof their respective Subsidiaries and (i) any of the Borrower, reorganization, arrangement, insolvency, readjustment the Trust or any of debt, dissolution or liquidation or similar law of any jurisdiction, now or hereafter in effect, and any such Person their respective Subsidiaries shall indicate its approval thereof, consent thereto or acquiescence therein or (ii) any such petition, application, case or other proceeding shall not have been dismissed within sixty continue undismissed, or unstayed and in effect, for a period of forty-five (6045) days following the filing or commencement thereofdays;
(jh) a decree or order is entered appointing a any trustee, custodian, liquidator or receiver for or adjudicating any of the Borrower, the Guarantors Trust or any of their respective Subsidiaries or adjudicating any 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 any such Person of the Borrower, the Trust or any of their respective Subsidiaries in an involuntary case under federal bankruptcy laws as now or hereafter constituted;
(ki) there shall remain in force, undischarged, unsatisfied and unstayed, for more than sixty thirty (6030) days, whether or not consecutive, one or more uninsured or unbonded any final judgments, orders, awards, writs execution or attachments judgment that is not fully insured against any of the Borrower, Guarantors the Trust or any of their respective Subsidiaries that, either individually or with other outstanding uninsured final judgments, undischarged, unsatisfied and unstayed, against any of such parties exceeds in the aggregate, exceed aggregate $10,000,000.001,000,000;
(lj) any of the Loan Documents, the Contribution Agreement, the Equipment Intercreditor Agreement Documents or the Subordination and Standstill Agreements any provision of any Loan Document shall be canceled, terminated, revoked or rescinded otherwise than in accordance with the terms thereof (other than the Guaranty, which may not be terminated without the prior consent of the Agent) or with the express prior written agreement, consent or approval of the LendersAgent, 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, the Contribution Agreement, the Equipment Intercreditor Agreement or the Subordination and Standstill Agreements Documents shall be commenced by or on behalf of the Borrower or any of its Subsidiaries or the GuarantorsTrust or any of its Subsidiaries, or any court or any other governmental or regulatory authority or agency of competent jurisdiction shall make a determinationdetermination that, or issue a judgment, order, decree or ruling, ruling to the effect that that, any one or more of the Loan Documents, the Contribution Agreement, the Equipment Intercreditor Agreement or the Subordination and Standstill Agreements Documents is illegal, invalid or unenforceable in accordance with the as to any material terms thereof; the Guaranty shall be terminated, revoked or rescinded; or the Agent shall at any time fail to have a perfected, first-priority security interest in the Project;
(mk) any dissolution, termination, partial “Event of Default” or complete liquidation, merger or consolidation default (after notice and expiration of any period of grace, to the Borrowerextent provided), the Guarantors as defined or provided in any of their respective Subsidiaries shall occur or any sale, transfer or other disposition of the assets of any of the Borrower, 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, shall occur and be continuing;
(nl) with respect to any Guaranteed Pension Plan, an ERISA Reportable Event shall have occurred and the Required Lenders Agent 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 Borrower or any of their respective its Subsidiaries or the Trust or any of its Subsidiaries to the PBGC or such Guaranteed Pension Plan in an aggregate amount exceeding $10,000,000.00 1,000,000 and (x) 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 (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;
(m) Reserved;
(n) the failure of ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇, for any reason, to cease to retain the title of President of the Trust and to perform the functions typically performed under such office and to be actively involved in strategic planning and decision-making for the Trust, unless within six (6) months after such failure, the board of directors or board of trustees has duly elected or appointed a qualified substitute to replace such individual who is acceptable to the Agent in its sole discretion (as notified to the Borrower by the Agent in writing); or the occurrence of any transaction in which any “person” or “group” (within the meaning of Section 13(d) and 14(d)(2) of the Securities Exchange Act of 1934) becomes the “beneficial owner” (as defined in Rule 13d-3 under the Securities Exchange Act of 1934), directly or indirectly, of a sufficient number of voting rights applicable to the Trust ordinarily entitled to vote in the election of directors or trustees, empowering such “person” or “group” to elect a majority of the board of directors or board of trustees of the Trust, who did not have such power before such transaction; or during any twelve-month period on or after the Closing Date, individuals who at the beginning of such period constituted the board of trustees of the Trust (together with any new Trustees whose election by the board of trustees or whose nomination for election by the shareholders of the Trust was approved by a vote of at least a majority of the members of the board of trustees then in office who either were members of the board of trustees at the beginning of such period or whose election or nomination for election was previously so approved) ceased for any reason to constitute a majority of the members of the board of trustees of the Trust then in office;
(o) without limitation of the Borrowerother provisions of this §14.1, (i) the Trust shall at any Guarantor time fail to be the sole general partner of Whitestone OP or shall at any of their respective Subsidiaries or any shareholder, officer, director, partner or member time be in contravention of any of them shall be indicted for a federal crime, a punishment for which could include the forfeiture of (i) any assets of the Borrower, the Guarantors or any of their respective Subsidiaries which requirements contained in the good faith judgment last paragraph of §9.2, (ii) Whitestone OP shall fail at any time to be the Required Lenders could have a Material Adverse Effectsole member of Pima Norte, or (iiiii) the Unencumbered Asset Pool PropertiesBorrower or the Trust shall at any time fail to be self-managed;
(p) any Change Event of Control shall occur;Default under (and as defined in) the Revolving Credit Agreement; or
(q) an any Disqualifying Environmental Event of Default under any of the other Loan Documents or Disqualifying Structural Event shall occur;
(r) notwithstanding anything herein to the contrary (including without limitation §12.1(g)), the Borrower and the Guarantors hereby expressly agree that any “Event of Default” (as defined in the Equipment Loan Documents) (which shall be deemed to include maturity of the debt evidenced and secured by the Equipment Loan Documents or any other occurrence which would give the Equipment Lender the right to exercise remedies under the Equipment Loan Documents) shall constitute and be deemed to be an Event of Default under this Agreement for which no right to cure shall be available. Without limiting the foregoing, an “Event of Default” under the Equipment Loan Documents shall conclusively be deemed to have occurred upon the declaration, statement or notice from the Equipment Lender’s as to the existence or occurrence of an “Event of Default” under any of the Equipment Loan Documents;
(s) Any default, material misrepresentation or breach of warranty in the QTLP Subordination and Standstill Agreement by Borrower or the subordinate lender that is the holder of QTLP Subordinate Note;
(t) [Intentionally Omitted.]
(u) Any default, material misrepresentation or breach of warranty in the Bond Subordination and Standstill Agreement by the Authority or the subordinate lender that is the holder of the Bondoccurred; then, and in any such event, so long as the same may be continuing, the Agent may, and upon the request of the Required Majority Lenders shall, by notice in writing to the Borrower declare all amounts owing with respect to this Agreement, the Notes, the Letters of 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 any kind, all of which are hereby expressly waived by the Borrower, the Trust and each of their respective Subsidiaries; provided that in the event of any Event of Default specified in §12.1(h), §12.1(i14.1(g) or §12.1(j14.1(h), 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 Lenders or the Agent or action by the Lenders or the Agent. Upon demand by Agent or Without limitation of the Majority Revolving Credit Lenders in their absolute and sole discretion after foregoing, upon the occurrence of an Event of Default, and regardless Default and/or the acceleration of whether the conditions precedent in this Agreement for a Revolving Credit Loans or other enforcement action under any Loan have been satisfiedDocument, the Revolving Credit Lenders will cause a Revolving Credit Loan Agent shall have the right to be made in terminate the undrawn amount Management Agreement, effective on the date of all Letters of Credit. The proceeds of any such Revolving Credit Loan will be pledged to and held by Agent termination (or such later date 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, the Borrower will Cash Collateralize the Letter of Credit Liabilities (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 Lenders as security for any amounts that become payable under the Letters of Credit and all other Obligations and Hedge Obligations in accordance with §2.12. 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 and 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 the Borrower will be released to the Borrowerelect).
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 or lapse of time, “Defaults”) shall occur:
(a) 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) the Borrower shall fail to pay any interest on the Loans, any reimbursement obligations with respect to the Letters of Credit, Loans or any fees or other sums due hereunder or under any of the other Loan Documents (including, without limitation, amounts due under §8.17) when the same shall become due and payable, whether at and such failure continues for three (3) days (provided that in the stated date case of maturity or any accelerated date such sums due other than for interest, the Borrower shall have received from the Agent notice of maturity or at any the nature and amount of such other date fixed for paymentamounts and that payment therefor is due);
(c) the Borrower or BPI shall fail to comply comply, or to cause BPI to comply, as the case may be, with any of the covenant respective covenants contained in §9.1 the following:
(i) 8.1 (except with respect to principal, interest and other sums covered by clauses (a) or (b) above);
(ii) 8.5 (clauses (a) through (d)), unless such failure shall continue for five is cured within fifteen (515) Business Days after written notice thereof shall have been given Days;
(iii) 8.6 (as to the Borrower by legal existence of Borrower);
(iv) 8.7 (as to the Agentlegal existence and REIT status of BPI or as it otherwise relates to BPI);
(v) 8.10, unless such failure is cured within three (3) Business Days;
(vi) 8.12;
(vii) [Intentionally Deleted];
(viii) 8.14;
(ix) 9.1;
(x) 9.2;
(xi) 9.3;
(xii) 9.4;
(xiii) 9.6; and
(xiv) 10;
(d) any of the Borrower, the Guarantors Borrower or any of their respective Subsidiaries BPI shall fail to perform any other termperform, covenant or agreement contained in §8.20to cause BPI to perform, §9.3, §9.4, §9.5 or §9.6;
(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 which they are required to perform (other than those specified elsewhere in the other subclauses of this §12 14) and such failure continues for thirty (30) days after written notice of such failure 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 other Loan DocumentsAgent 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 such initial written notice from the Agent) to effect such cure;
(fe) any representation or warranty made by or on behalf of the Borrower, the Guarantors Borrower or any of their respective Subsidiaries BPI 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, 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 repeatedrepeated and the same is not otherwise specified herein to be a Non-Material Breach;
(gf) the Borrower or any of its Subsidiaries or, to the Borrowerextent of Recourse to the Borrower or such Subsidiaries thereunder, the Guarantors or any of their respective Subsidiaries Affiliates, shall fail to pay when due (including, without limitation, at maturity), or within any applicable period of grace, any principal, interest or other amount on account any obligation for borrowed money or credit received or in respect of any Capitalized Leases (other Indebtedness (including under any Derivatives Contractthan non-recourse obligations or credit), the recourse component of which is in excess of $50,000,000, either individually or shall in the aggregate, or fail to observe or perform any material term, covenant covenant, condition or agreement contained in any agreement agreement, document or instrument by which it is boundbound evidencing, securing or otherwise relating to such Recourse obligations, evidencing or securing any obligation for borrowed money or credit received or other Indebtedness (including under in respect of any Derivatives Contract) Capitalized Leases for such period of time as would permit (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 which is in excess of $50,000,000, either individually or in the aggregate, to accelerate the maturity thereof or require thereof; provided, however that notwithstanding the termination or other settlement of such obligation; provided that the events described in §12.1(gforegoing, (i) shall not constitute an no Event of Default shall occur pursuant to this subparagraph (f) unless and until the holder or holders of such failure to perform, together with other failures to perform as described in §12.1(g), involve singly or in the aggregate obligations for borrowed money or credit received or other Recourse Indebtedness totaling have declared an event of default beyond any applicable notice and grace periods, if any, on in excess of $15,000,000.00 or Non-50,000,000 of such Recourse Indebtedness either individually or in excess the aggregate, and (ii) with respect solely to any such Recourse Indebtedness of $60,000,000.00a 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-6 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;
(hg) any of the BorrowerBPLP, the Guarantors BPI or any of their respective Subsidiaries (i) shall make an assignment for the benefit of creditors, or admit in writing its general 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 for it of any of BPLP, BPI or any of their respective Subsidiaries or of any substantial part of its assets, (ii) the properties or assets of any of such parties or shall commence any case or other proceeding relating to it any of the BPLP, BPI or any 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 (iii) shall take any action to authorize or in furtherance of any of the foregoing;
(i) a , or if any such petition or application shall be filed for the appointment of a trustee or other custodian, liquidator or receiver of any of the Borrower, the Guarantors or any of their respective Subsidiaries or any substantial part of the assets of any thereof, or a such case or other proceeding shall be commenced against any such Person under of BPLP, BPI or any bankruptcyof their respective Subsidiaries and (i) any of BPLP, reorganization, arrangement, insolvency, readjustment BPI or any of debt, dissolution or liquidation or similar law of any jurisdiction, now or hereafter in effect, and any such Person their respective Subsidiaries shall indicate its approval thereof, consent thereto or acquiescence therein or (ii) any such petition, application, case or other proceeding shall not have been dismissed within sixty continue undismissed, or unstayed and in effect, for a period of ninety (6090) days following days, except, with respect solely to such parties other than BPLP and BPI, any of the filing or commencement thereofforegoing constitutes a Non-Material Breach;
(jh) a decree or order is entered appointing a any trustee, custodian, liquidator or receiver for or adjudicating any of the BorrowerBPLP, the Guarantors BPI or any of their respective Subsidiaries or adjudicating any 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 any such Person of BPLP, BPI or any of their respective Subsidiaries in an involuntary case under federal bankruptcy laws 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;
(ki) there shall remain in force, undischarged, unsatisfied and unstayed, for more than sixty thirty (6030) days, whether or not consecutive, one or more any uninsured or unbonded final judgmentsjudgment against any of BPLP, orders, awards, writs execution or attachments against the Borrower, Guarantors BPI or any of their respective Subsidiaries that, either individually or with other outstanding uninsured final judgments, undischarged, unsatisfied and unstayed, against any of such parties exceeds in the aggregateaggregate $20,000,000, exceed $10,000,000.00except, with respect solely to such parties other than BPLP and BPI, any of the foregoing constitutes a Non-Material Breach;
(lj) any of the Loan Documents, the Contribution Agreement, the Equipment Intercreditor Agreement Documents or the Subordination and Standstill Agreements any material provision of any Loan Document shall be 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 LendersAgent, 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, the Contribution Agreement, the Equipment Intercreditor Agreement or the Subordination and Standstill Agreements Documents shall be commenced by or on behalf of the Borrower or any of the GuarantorsBPI, or any court or any other governmental or regulatory authority or agency of competent jurisdiction shall make a determinationdetermination that, or issue a judgment, order, decree or ruling, ruling to the effect that that, any one or more of the Loan Documents, the Contribution Agreement, the Equipment Intercreditor Agreement or the Subordination and Standstill Agreements Documents is illegal, invalid or unenforceable in accordance with the as to any material terms thereof;
(mk) any dissolution, termination, partial “Event of Default” or complete liquidation, merger or consolidation default (after notice and expiration of any period of grace, to the Borrowerextent provided), the Guarantors as defined or provided in any of their respective Subsidiaries shall occur or any sale, transfer or other disposition of the assets of any of the Borrower, 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, shall occur and be continuing;
(nl) with respect to any Guaranteed Pension Plan, an ERISA Reportable Event shall have occurred and the Required Lenders 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 Borrower or any of their respective Subsidiaries BPI to the PBGC or such Guaranteed Pension Plan in an aggregate amount exceeding $10,000,000.00 10,000,000 and (x) 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 (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;; or
(om) without limitation of the Borrowerother provisions of this §14.1, BPI shall at any Guarantor time fail to be the sole general partner of BPLP or shall at any of their respective Subsidiaries or any shareholder, officer, director, partner or member time be in contravention of any of them shall be indicted for a federal crime, a punishment for which could include the forfeiture of (i) any assets of the Borrower, the Guarantors or any of their respective Subsidiaries which requirements contained in the good faith judgment of the Required Lenders could have a Material Adverse Effect, or (ii) the Unencumbered Asset Pool Properties;
(p) any Change of Control shall occur;
(q) an Event of Default under any of the other Loan Documents shall occur;
(r) notwithstanding anything herein to the contrary (including without limitation §12.1(g)9.1(e), the Borrower and last paragraph of §9.2, or §9.3 (including, without limitation, the Guarantors hereby expressly agree that any “Event last paragraph of Default” (as defined in the Equipment Loan Documents) (which shall be deemed to include maturity of the debt evidenced and secured by the Equipment Loan Documents or any other occurrence which would give the Equipment Lender the right to exercise remedies under the Equipment Loan Documents) shall constitute and be deemed to be an Event of Default under this Agreement for which no right to cure shall be available. Without limiting the foregoing, an “Event of Default” under the Equipment Loan Documents shall conclusively be deemed to have occurred upon the declaration, statement or notice from the Equipment Lender’s as to the existence or occurrence of an “Event of Default” under any of the Equipment Loan Documents;
(s) Any default, material misrepresentation or breach of warranty in the QTLP Subordination and Standstill Agreement by Borrower or the subordinate lender that is the holder of QTLP Subordinate Note;
(t) [Intentionally Omitted.]
(u) Any default, material misrepresentation or breach of warranty in the Bond Subordination and Standstill Agreement by the Authority or the subordinate lender that is the holder of the Bond§9.3); then, and in any such event, so long as the same may be continuing, the Agent may, and upon the request of the Required Lenders Banks shall, by notice in writing to the Borrower Borrower, declare all amounts owing with respect to this Agreement, the Notes, the Letters of 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, BPI and each of their respective Subsidiaries; provided that in the event of any Event of Default specified in §12.1(h), §12.1(i14.1(g) or §12.1(j14.1(h), 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 Lenders Banks or the Agent or action by the Banks or the Agent. Upon demand by Agent or the Majority Revolving Credit 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, the Borrower will Cash Collateralize the Letter of Credit Liabilities (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 Lenders as security for any amounts that become payable under the Letters of Credit and all other Obligations and Hedge Obligations in accordance with §2.12. 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 and 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 the Borrower will be released to 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 or lapse of time, “"Defaults”") shall occur:
(a) 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) the Borrower or any of the Subsidiary Guarantors shall fail to pay any interest on the Loans, the commitment fee, any reimbursement obligations with respect to Letter of Credit Fee, the Letters of CreditAgent's fee, or any fees or other sums due hereunder or under any of the other Loan Documents when within two (2) days after the same shall become due and payable, whether at the stated date of maturity or any accelerated date of maturity or at any other date fixed for payment;
(c) the Parent, the Borrower or any of their respective Subsidiaries shall fail to comply with the covenant any of its covenants contained in §9.1 and such failure shall continue for five (5) Business Days after written notice thereof shall have been given to S)(S)10.2, 10.4, 10.5, 10.6, 10.8, 10.10, 10.12, 10.14, 10.15, 11 or 12 or any of the Borrower by covenants contained in any of the AgentMortgages;
(d) any of the BorrowerParent, the Guarantors Borrower or any of their respective Subsidiaries shall fail to perform any other term, covenant or agreement contained in §8.20, §9.3, §9.4, §9.5 or §9.6;
(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 which they are required to perform (other than those specified elsewhere in this (S)15.1) for fifteen (15) days after written notice of such failure has been given to the other subclauses of this §12 or in Borrower by the other Loan Documents)Agent;
(fe) any representation or warranty made by or on behalf of the BorrowerParent, the Guarantors Borrower or any of their respective Subsidiaries in this Credit Agreement or any of the other Loan Document, or any report, certificate, financial statement, request for a Loan, Letter of Credit Request, Documents or in any other document or instrument delivered pursuant to or in connection with this Agreement, any advance of a Loan, the issuance of any Letter of Credit or any of the other Loan Documents Agreement shall prove to have been false in any material respect upon the date when made or deemed to have been made or repeated;
(gf) any of the BorrowerParent, the Guarantors Borrower or any of their respective Subsidiaries shall fail to pay when due (including, without limitation, at maturity), or within any applicable period of grace, any principal, interest or other amount on account any obligation for borrowed money or credit received or other Indebtedness (including under in respect of any Derivatives Contract)Capitalized Leases in an aggregate amount in excess of $500,000, or shall fail to observe or perform any material term, covenant or agreement contained in any agreement by which it is bound, evidencing or securing any obligation for borrowed money or credit received or other Indebtedness (including under in respect of any Derivatives Contract) Capitalized Leases in an aggregate amount 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 thereof, or require any such holder or holders shall rescind or shall have a right to rescind the termination or other settlement purchase of any such obligation; 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 in the aggregate obligations for borrowed money or credit received or other Recourse Indebtedness totaling in excess of $15,000,000.00 or Non-Recourse Indebtedness in excess of $60,000,000.00obligations;
(hg) any of the BorrowerParent, the Guarantors Borrower or any of their respective Subsidiaries (i) shall make an assignment for the benefit of creditors, or admit in writing its general 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 for it of such Person or of any substantial part of its assets, (ii) the assets of such Person or shall commence any case or other proceeding relating to 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 (iii) shall take any action to authorize or in furtherance of any of the foregoing;
(i) a petition or application shall be filed for the appointment of a trustee or other custodian, liquidator or receiver of any of the Borrower, the Guarantors or any of their respective Subsidiaries or any substantial part of the assets of any thereof, or a case or other proceeding shall be commenced against any 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 foregoing, or if any such petition or application shall be filed or any such case or other proceeding shall be commenced against such Person and any such Person shall indicate its approval thereof, consent thereto or acquiescence therein or such petition, application, case petition or proceeding application shall not have been dismissed within sixty forty-five (6045) days following the filing or commencement thereof;
(jh) a decree or order is entered appointing a any such trustee, custodian, liquidator or receiver for any of or adjudicating the BorrowerParent, the Guarantors Borrower or any of their respective Subsidiaries or adjudicating any 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 any such Person in an involuntary case under federal bankruptcy laws as now or hereafter constituted;
(ki) there shall remain in force, unvacated, undischarged, unsatisfied and unstayed, for more than sixty thirty (6030) days, whether or not consecutive, one or more uninsured or unbonded any final judgments, orders, awards, writs execution or attachments judgment against the BorrowerParent, Guarantors the Borrower or any of their respective Subsidiaries that, either individually or with other outstanding final judgments, undischarged, against such Person exceeds in the aggregate, exceed aggregate $10,000,000.001,000,000;
(lj) if any of the Loan Documents, the Contribution Agreement, the Equipment Intercreditor Agreement or the Subordination and Standstill Agreements Documents shall be canceledcancelled, 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 LendersBanks, or any action at law, suit or in equity or other legal proceeding to cancel, revoke or rescind any of the Loan Documents, the Contribution Agreement, the Equipment Intercreditor Agreement or the Subordination and Standstill Agreements Documents shall be commenced by or on behalf of the Parent, the Borrower or any of the Guarantorstheir respective 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 determinationdetermination that, or issue a judgment, order, decree or ruling, ruling to the effect that that, any one or more of the Loan Documents, the Contribution Agreement, the Equipment Intercreditor Agreement or the Subordination and Standstill Agreements Documents is illegal, invalid or unenforceable in accordance with the terms thereof;
(mk) the Borrower or any dissolutionERISA 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 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, termination, partial or complete liquidation, merger or consolidation of any of the Borrower, the Guarantors or any of their respective Subsidiaries shall occur or any sale, transfer or other disposition of the assets of any of the Borrower, 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;
(n) 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 Required Lenders shall have determined meaning of (S)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 any of the Borrower, the Guarantors Borrower or any of their respective its Subsidiaries to the PBGC or such Guaranteed Pension Plan in an aggregate amount exceeding $10,000,000.00 1,000,000 and (xB) such event in the circumstances occurring reasonably could constitute grounds for the 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 (yii) the appointment by a trustee shall have been appointed by the United States District Court of a trustee to administer such Guaranteed Pension Plan; or (ziii) the institution by the PBGC shall have instituted of proceedings to terminate such Guaranteed Pension Plan;
(ol) the BorrowerParent, any Guarantor the Borrower or any of their respective Subsidiaries shall be enjoined, restrained or in any way prevented by the order of any court or any shareholderadministrative or regulatory agency from conducting any material part of its business and such order shall continue in effect for more than thirty (30) days;
(m) there shall occur any material damage to, officeror loss, directortheft or destruction of, partner any Collateral, whether or member 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 them shall be indicted for a federal crime, a punishment for which could include the forfeiture of (i) revenue producing activities at any assets facility of the Borrower, the Guarantors Borrower or any of their respective Subsidiaries 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 or such Subsidiary;
(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 Parent, the Borrower or any of their respective Subsidiaries if such loss, suspension, revocation or failure to renew would have a material adverse effect on the business or financial condition of the Parent, the Borrower or such Subsidiary;
(o) the Parent, the Borrower or any of their respective Subsidiaries shall be indicted for a state or federal crime, or any civil or criminal action shall otherwise have been brought against the Parent, the Borrower or any of their respective Subsidiaries, a punishment for which in any such case could include the good faith judgment forfeiture of the Required Lenders could have any assets of such Person having a Material Adverse Effect, or (ii) the Unencumbered Asset Pool Propertiesfair market value in excess of $1,000,000;
(p) the Parent shall at any Change of Control shall occur;
time, legally or beneficially own less than one hundred percent (q100%) an Event of Default under any shares of the other Loan Documents shall occur;
(r) notwithstanding anything herein to the contrary (including without limitation §12.1(g)), the Borrower and the Guarantors hereby expressly agree that any “Event of Default” (as defined in the Equipment Loan Documents) (which shall be deemed to include maturity common stock of the debt evidenced and secured by the Equipment Loan Documents Borrower, as adjusted pursuant to any stock split, stock dividend or any other occurrence which would give the Equipment Lender the right to exercise remedies under the Equipment Loan Documents) shall constitute and be deemed to be an Event of Default under this Agreement for which no right to cure shall be available. Without limiting the foregoing, an “Event of Default” under the Equipment Loan Documents shall conclusively be deemed to have occurred upon the declaration, statement recapitalization or notice from the Equipment Lender’s as to the existence or occurrence of an “Event of Default” under any reclassification of the Equipment Loan Documents;
(s) Any default, material misrepresentation or breach of warranty in the QTLP Subordination and Standstill Agreement by Borrower or the subordinate lender that is the holder of QTLP Subordinate Note;
(t) [Intentionally Omitted.]
(u) Any default, material misrepresentation or breach of warranty in the Bond Subordination and Standstill Agreement by the Authority or the subordinate lender that is the holder capital of the Bond; then, and in any such event, the 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 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 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 Lenders or the Agent. Upon demand by Agent or the Majority Revolving Credit 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, the Borrower will Cash Collateralize the Letter of Credit Liabilities (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 Lenders as security for any amounts that become payable under the Letters of Credit and all other Obligations and Hedge Obligations in accordance with §2.12. 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 and 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 the Borrower will be released to the Borrower.;
Appears in 1 contract
Sources: Revolving Credit and Term Loan Agreement (Chart House Enterprises Inc)
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 or lapse of time, “Defaults”) shall occur:
(a) 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) the Borrower shall fail to pay any interest on the Loans, any reimbursement obligations with respect to the Letters of Credit, Loans or any fees or other sums due hereunder or under any of the other Loan Documents (including, without limitation, amounts due under §8.17) when the same shall become due and payable, whether at and such failure continues for three (3) days (provided that in the stated date case of maturity or any accelerated date such sums due other than for interest, the Borrower shall have received from the Agent notice of maturity or at any the nature and amount of such other date fixed for paymentamounts and that payment therefor is due);
(c) the Borrower or BPI shall fail to comply comply, or to cause BPI to comply, as the case may be, with any of the covenant respective covenants contained in §9.1 the following:
(i) 8.1 (except with respect to principal, interest and other sums covered by clauses (a) or (b) above);
(ii) 8.5 (clauses (a) through (d)), unless such failure shall continue for five is cured within fifteen (515) Business Days after written notice thereof shall have been given Days;
(iii) 8.6 (as to the Borrower by legal existence of the AgentBorrower);
(iv) 8.7 (as to the legal existence and REIT status of BPI or as it otherwise relates to BPI);
(v) 8.10, unless such failure is cured within three (3) Business Days;
(vi) 8.12;
(vii) 8.13;
(viii) [Intentionally Deleted];
(ix) 9.1;
(x) 9.2;
(xi) 9.3;
(xii) 9.4;
(xiii) 9.6;
(xiv) 9.7; and
(xv) 10;
(d) any of the Borrower, the Guarantors Borrower or any of their respective Subsidiaries BPI shall fail to perform any other termperform, covenant or agreement contained in §8.20to cause BPI to perform, §9.3, §9.4, §9.5 or §9.6;
(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 which they are required to perform (other than those specified elsewhere in the other subclauses of this §12 14) and such failure continues for thirty (30) days after written notice of such failure 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 other Loan DocumentsAgent 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 such initial written notice from the Agent) to effect such cure;
(fe) any representation or warranty made by or on behalf of the Borrower, the Guarantors Borrower or any of their respective Subsidiaries BPI 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, 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 repeatedrepeated and the same is not otherwise specified herein to be a Non-Material Breach;
(gf) the Borrower or any of its Subsidiaries or, to the Borrowerextent of Recourse to the Borrower or such Subsidiaries thereunder, the Guarantors or any of their respective Subsidiaries Affiliates, shall fail to pay when due (including, without limitation, at maturity), or within any applicable period of grace, any principal, interest or other amount on account any obligation for borrowed money or credit received or in respect of any Capitalized Leases (other Indebtedness (including under any Derivatives Contractthan non-recourse obligations or credit), the recourse component of the principal amount of which is in excess of $50,000,000, either individually or shall in the aggregate, or fail to observe or perform any material term, covenant covenant, condition or agreement contained in any agreement agreement, document or instrument by which it is boundbound evidencing, securing or otherwise relating to such Recourse obligations, evidencing or securing any obligation for borrowed money or credit received or other Indebtedness (including under in respect of any Derivatives Contract) Capitalized Leases for such period of time as would permit (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 or require thereof; provided, however that notwithstanding the termination or other settlement of such obligation; provided that the events described in §12.1(gforegoing, (i) shall not constitute an no Event of Default shall occur pursuant to this subparagraph (f) unless and until the holder or holders of such failure to perform, together with other failures to perform as described in §12.1(g), involve singly or in the aggregate obligations for borrowed money or credit received or other Recourse Indebtedness totaling have declared an event of default beyond any applicable notice and grace periods, if any, on in excess of $15,000,000.00 or Non-50,000,000 of such Recourse Indebtedness (determined on the basis of the principal amount of such Recourse Indebtedness) either individually or in excess the aggregate, and (ii) with respect solely to any such Recourse Indebtedness of $60,000,000.00a 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;
(hg) any of the BorrowerBPLP, the Guarantors BPI or any of their respective Subsidiaries (i) shall make an assignment for the benefit of creditors, or admit in writing its general 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 for it of any of BPLP, BPI or any of their respective Subsidiaries or of any substantial part of its assets, (ii) the properties or assets of any of such parties or shall commence any case or other proceeding relating to it any of BPLP, BPI or any 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 (iii) shall take any action to authorize or in furtherance of any of the foregoing;
(i) a , or if any such petition or application shall be filed for the appointment of a trustee or other custodian, liquidator or receiver of any of the Borrower, the Guarantors or any of their respective Subsidiaries or any substantial part of the assets of any thereof, or a such case or other proceeding shall be commenced against any such Person under of BPLP, BPI or any bankruptcyof their respective Subsidiaries and (i) any of BPLP, reorganization, arrangement, insolvency, readjustment BPI or any of debt, dissolution or liquidation or similar law of any jurisdiction, now or hereafter in effect, and any such Person their respective Subsidiaries shall indicate its approval thereof, consent thereto or acquiescence therein or (ii) any such petition, application, case or other proceeding shall not have been dismissed within sixty continue undismissed, or unstayed and in effect, for a period of ninety (6090) days following days, except, with respect solely to such parties other than BPLP and BPI, any of the filing or commencement thereofforegoing constitutes a Non-Material Breach;
(jh) a decree or order is entered appointing a any trustee, custodian, liquidator or receiver for or adjudicating any of the BorrowerBPLP, the Guarantors BPI or any of their respective Subsidiaries or adjudicating any 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 any such Person of BPLP, BPI or any of their respective Subsidiaries in an involuntary case under federal bankruptcy laws 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;
(ki) there shall remain in force, undischarged, unsatisfied and unstayed, for more than sixty thirty (6030) days, whether or not consecutive, one or more any uninsured or unbonded final judgmentsjudgment against any of BPLP, orders, awards, writs execution or attachments against the Borrower, Guarantors BPI or any of their respective Subsidiaries that, either individually or with other outstanding uninsured final judgments, undischarged, unsatisfied and unstayed, against any of such parties exceeds in the aggregateaggregate $20,000,000 except, exceed $10,000,000.00with respect solely to such parties other than BPLP and BPI, any of 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);
(lj) any of the Loan Documents, the Contribution Agreement, the Equipment Intercreditor Agreement Documents or the Subordination and Standstill Agreements any material provision of any Loan Document shall be 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 LendersAgent, 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, the Contribution Agreement, the Equipment Intercreditor Agreement or the Subordination and Standstill Agreements Documents shall be commenced by or on behalf of the Borrower or any of the GuarantorsBPI, or any court or any other governmental or regulatory authority or agency of competent jurisdiction shall make a determinationdetermination that, or issue a judgment, order, decree or ruling, ruling to the effect that that, any one or more of the Loan Documents, the Contribution Agreement, the Equipment Intercreditor Agreement or the Subordination and Standstill Agreements Documents is illegal, invalid or unenforceable in accordance with the as to any material terms thereof;
(mk) any dissolution, termination, partial “Event of Default” or complete liquidation, merger or consolidation default (after notice and expiration of any period of grace, to the Borrowerextent provided), the Guarantors as defined or provided in any of their respective Subsidiaries shall occur or any sale, transfer or other disposition of the assets of any of the Borrower, 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, shall occur and be continuing;
(nl) with respect to any Guaranteed Pension Plan, an ERISA Reportable Event shall have occurred and the Required Lenders 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 Borrower or any of their respective Subsidiaries BPI to the PBGC or such Guaranteed Pension Plan in an aggregate amount exceeding $10,000,000.00 10,000,000 and (x) 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 (y) a trustee shall have been appointed by the United States District Court to administer such Pension Plan; or (z) the PBGC shall have instituted proceedings to terminate such Guaranteed Pension Plan;; or
(om) without limitation of the Borrowerother provisions of this §14.1, BPI shall at any Guarantor time fail to be the sole general partner of BPLP or shall at any of their respective Subsidiaries or any shareholder, officer, director, partner or member time be in contravention of any of them shall be indicted for a federal crime, a punishment for which could include the forfeiture of (i) any assets of the Borrower, the Guarantors or any of their respective Subsidiaries which requirements contained in the good faith judgment of the Required Lenders could have a Material Adverse Effect, or (ii) the Unencumbered Asset Pool Properties;
(p) any Change of Control shall occur;
(q) an Event of Default under any of the other Loan Documents shall occur;
(r) notwithstanding anything herein to the contrary (including without limitation §12.1(g)9.1(e), the Borrower and the Guarantors hereby expressly agree that any “Event last paragraph of Default” §9.2, or §9.3 (as defined in the Equipment Loan Documents) (which shall be deemed to include maturity of the debt evidenced and secured by the Equipment Loan Documents or any other occurrence which would give the Equipment Lender the right to exercise remedies under the Equipment Loan Documents) shall constitute and be deemed to be an Event of Default under this Agreement for which no right to cure shall be available. Without limiting the foregoingincluding, an “Event of Default” under the Equipment Loan Documents shall conclusively be deemed to have occurred upon the declaration, statement or notice from the Equipment Lender’s as to the existence or occurrence of an “Event of Default” under any of the Equipment Loan Documents;
(s) Any default, material misrepresentation or breach of warranty in the QTLP Subordination and Standstill Agreement by Borrower or the subordinate lender that is the holder of QTLP Subordinate Note;
(t) [Intentionally Omitted.]
(u) Any default, material misrepresentation or breach of warranty in the Bond Subordination and Standstill Agreement by the Authority or the subordinate lender that is the holder of the Bond; then, and in any such eventwithout limitation, the Agent may, and upon the request last paragraph of the Required Lenders shall, by notice in writing to the Borrower 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 Borrower; provided that in the event of any Event of Default specified in §12.1(h9.3), §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 Lenders or the Agent. Upon demand by Agent or the Majority Revolving Credit 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, the Borrower will Cash Collateralize the Letter of Credit Liabilities (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 Lenders as security for any amounts that become payable under the Letters of Credit and all other Obligations and Hedge Obligations in accordance with §2.12. 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 and 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 the Borrower will be released to the Borrower.
Appears in 1 contract
Sources: Credit Agreement (Boston Properties LTD Partnership)
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 or lapse of time, “Defaults”) shall occur:
(a) 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) the Borrower shall fail to pay any interest on the Loans, any reimbursement obligations with respect to the Letters of Credit, Loans or any fees or other sums due hereunder or under any of the other Loan Documents (including, without limitation, amounts due under §8.17) when the same shall become due and payable, whether at and such failure continues for three (3) days (provided that in the stated date case of maturity or any accelerated date such sums due other than for interest, the Borrower shall have received from the Agent notice of maturity or at any the nature and amount of such other date fixed for paymentamounts and that payment therefor is due);
(c) the Borrower or BPI shall fail to comply comply, or to cause BPI to comply, as the case may be, with any of the covenant respective covenants contained in §9.1 the following:
(i) 8.1 (except with respect to principal, interest and other sums covered by clauses (a) or (b) above);
(ii) 8.5 (clauses (a) through (d)), unless such failure shall continue for five is cured within fifteen (515) Business Days after written notice thereof shall have been given Days;
(iii) 8.6 (as to the Borrower by legal existence of Borrower);
(iv) 8.7 (as to the Agentlegal existence and REIT status of BPI or as it otherwise relates to BPI);
(v) 8.10, unless such failure is cured within three (3) Business Days;
(vi) 8.12;
(vii) [Intentionally Deleted];
(viii) 8.14;
(ix) 9.1;
(x) 9.2;
(xi) 9.3;
(xii) 9.4;
(xiii) 9.6; and
(xiv) 10;
(d) any of the Borrower, the Guarantors Borrower or any of their respective Subsidiaries BPI shall fail to perform any other termperform, covenant or agreement contained in §8.20to cause BPI to perform, §9.3, §9.4, §9.5 or §9.6;
(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 which they are required to perform (other than those specified elsewhere in the other subclauses of this §12 14) and such failure continues for thirty (30) days after written notice of such failure 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 other Loan DocumentsAgent 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 such initial written notice from the Agent) to effect such cure;
(fe) any representation or warranty made by or on behalf of the Borrower, the Guarantors Borrower or any of their respective Subsidiaries BPI 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, 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 repeatedrepeated and the same is not otherwise specified herein to be a Non-Material Breach;
(gf) the Borrower or any of its Subsidiaries or, to the Borrowerextent of Recourse to the Borrower or such Subsidiaries thereunder, the Guarantors or any of their respective Subsidiaries Affiliates, shall fail to pay when due (including, without limitation, at maturity), or within any applicable period of grace, any principal, interest or other amount on account any obligation for borrowed money or credit received or in respect of any Capitalized Leases (other Indebtedness (including under any Derivatives Contractthan non-recourse obligations or credit), the recourse component of the principal amount of which is in excess of $50,000,000, either individually or shall in the aggregate, or fail to observe or perform any material term, covenant covenant, condition or agreement contained in any agreement agreement, document or instrument by which it is boundbound evidencing, securing or otherwise relating to such Recourse obligations, evidencing or securing any obligation for borrowed money or credit received or other Indebtedness (including under in respect of any Derivatives Contract) Capitalized Leases for such period of time as would permit (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 or require thereof; provided, however that notwithstanding the termination or other settlement of such obligation; provided that the events described in §12.1(gforegoing, (i) shall not constitute an no Event of Default shall occur pursuant to this subparagraph (f) unless and until the holder or holders of such failure to perform, together with other failures to perform as described in §12.1(g), involve singly or in the aggregate obligations for borrowed money or credit received or other Recourse Indebtedness totaling have declared an event of default beyond any applicable notice and grace periods, if any, on in excess of $15,000,000.00 or Non-50,000,000 of such Recourse Indebtedness (determined on the basis of the principal amount of such Recourse Indebtedness) either individually or in excess the aggregate, and (ii) with respect solely to any such Recourse Indebtedness of $60,000,000.00a 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-6 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;
(hg) any of the BorrowerBPLP, the Guarantors BPI or any of their respective Subsidiaries (i) shall make an assignment for the benefit of creditors, or admit in writing its general 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 for it of any of BPLP, BPI or any of their respective Subsidiaries or of any substantial part of its assets, (ii) the properties or assets of any of such parties or shall commence any case or other proceeding relating to it any of the BPLP, BPI or any 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 (iii) shall take any action to authorize or in furtherance of any of the foregoing;
(i) a , or if any such petition or application shall be filed for the appointment of a trustee or other custodian, liquidator or receiver of any of the Borrower, the Guarantors or any of their respective Subsidiaries or any substantial part of the assets of any thereof, or a such case or other proceeding shall be commenced against any such Person under of BPLP, BPI or any bankruptcyof their respective Subsidiaries and (i) any of BPLP, reorganization, arrangement, insolvency, readjustment BPI or any of debt, dissolution or liquidation or similar law of any jurisdiction, now or hereafter in effect, and any such Person their respective Subsidiaries shall indicate its approval thereof, consent thereto or acquiescence therein or (ii) any such petition, application, case or other proceeding shall not have been dismissed within sixty continue undismissed, or unstayed and in effect, for a period of ninety (6090) days following days, except, with respect solely to such parties other than BPLP and BPI, any of the filing or commencement thereofforegoing constitutes a Non-Material Breach;
(jh) a decree or order is entered appointing a any trustee, custodian, liquidator or receiver for or adjudicating any of the BorrowerBPLP, the Guarantors BPI or any of their respective Subsidiaries or adjudicating any 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 any such Person of BPLP, BPI or any of their respective Subsidiaries in an involuntary case under federal bankruptcy laws 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;
(ki) there shall remain in force, undischarged, unsatisfied and unstayed, for more than sixty thirty (6030) days, whether or not consecutive, one or more any uninsured or unbonded final judgmentsjudgment against any of BPLP, orders, awards, writs execution or attachments against the Borrower, Guarantors BPI or any of their respective Subsidiaries that, either individually or with other outstanding uninsured final judgments, undischarged, unsatisfied and unstayed, against any of such parties exceeds in the aggregateaggregate $20,000,000, exceed $10,000,000.00except, with respect solely to such parties other than BPLP and BPI, any of the foregoing constitutes a Non-Material Breach;
(lj) any of the Loan Documents, the Contribution Agreement, the Equipment Intercreditor Agreement Documents or the Subordination and Standstill Agreements any material provision of any Loan Document shall be 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 LendersAgent, 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, the Contribution Agreement, the Equipment Intercreditor Agreement or the Subordination and Standstill Agreements Documents shall be commenced by or on behalf of the Borrower or any of the GuarantorsBPI, or any court or any other governmental or regulatory authority or agency of competent jurisdiction shall make a determinationdetermination that, or issue a judgment, order, decree or ruling, ruling to the effect that that, any one or more of the Loan Documents, the Contribution Agreement, the Equipment Intercreditor Agreement or the Subordination and Standstill Agreements Documents is illegal, invalid or unenforceable in accordance with the as to any material terms thereof;
(mk) any dissolution, termination, partial “Event of Default” or complete liquidation, merger or consolidation default (after notice and expiration of any period of grace, to the Borrowerextent provided), the Guarantors as defined or provided in any of their respective Subsidiaries shall occur or any sale, transfer or other disposition of the assets of any of the Borrower, 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, shall occur and be continuing;
(nl) with respect to any Guaranteed Pension Plan, an ERISA Reportable Event shall have occurred and the Required Lenders 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 Borrower or any of their respective Subsidiaries BPI to the PBGC or such Guaranteed Pension Plan in an aggregate amount exceeding $10,000,000.00 10,000,000 and (x) 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 (y) a trustee shall have been appointed by the United States District Court to administer such Pension Plan; or (z) the PBGC shall have instituted proceedings to terminate such Guaranteed Pension Plan;; or
(om) without limitation of the Borrowerother provisions of this §14.1, BPI shall at any Guarantor time fail to be the sole general partner of BPLP or shall at any of their respective Subsidiaries or any shareholder, officer, director, partner or member time be in contravention of any of them shall be indicted for a federal crime, a punishment for which could include the forfeiture of (i) any assets of the Borrower, the Guarantors or any of their respective Subsidiaries which requirements contained in the good faith judgment of the Required Lenders could have a Material Adverse Effect, or (ii) the Unencumbered Asset Pool Properties;
(p) any Change of Control shall occur;
(q) an Event of Default under any of the other Loan Documents shall occur;
(r) notwithstanding anything herein to the contrary (including without limitation §12.1(g)9.1(e), the Borrower and the Guarantors hereby expressly agree that any “Event last paragraph of Default” §9.2, or §9.3 (as defined in the Equipment Loan Documents) (which shall be deemed to include maturity of the debt evidenced and secured by the Equipment Loan Documents or any other occurrence which would give the Equipment Lender the right to exercise remedies under the Equipment Loan Documents) shall constitute and be deemed to be an Event of Default under this Agreement for which no right to cure shall be available. Without limiting the foregoingincluding, an “Event of Default” under the Equipment Loan Documents shall conclusively be deemed to have occurred upon the declaration, statement or notice from the Equipment Lender’s as to the existence or occurrence of an “Event of Default” under any of the Equipment Loan Documents;
(s) Any default, material misrepresentation or breach of warranty in the QTLP Subordination and Standstill Agreement by Borrower or the subordinate lender that is the holder of QTLP Subordinate Note;
(t) [Intentionally Omitted.]
(u) Any default, material misrepresentation or breach of warranty in the Bond Subordination and Standstill Agreement by the Authority or the subordinate lender that is the holder of the Bond; then, and in any such eventwithout limitation, the Agent may, and upon the request last paragraph of the Required Lenders shall, by notice in writing to the Borrower 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 Borrower; provided that in the event of any Event of Default specified in §12.1(h9.3), §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 Lenders or the Agent. Upon demand by Agent or the Majority Revolving Credit 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, the Borrower will Cash Collateralize the Letter of Credit Liabilities (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 Lenders as security for any amounts that become payable under the Letters of Credit and all other Obligations and Hedge Obligations in accordance with §2.12. 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 and 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 the Borrower will be released to the Borrower.
Appears in 1 contract
Sources: Revolving 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 or lapse of time, “Defaults”) shall occur:
(a) 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) the Borrower shall fail to pay any interest on the Loans, any reimbursement obligations with respect to the Letters of Credit, Loans or any fees or other sums due hereunder or under any of the other Loan Documents or any fee letter (including, without limitation, amounts due under §8.16) 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 and such failure continues for paymentthree (3) days;
(c) the Borrower shall fail to comply with the covenant contained in §9.1 and such failure shall continue for five (5) Business Days after written notice thereof shall have been given to the Borrower by the Agent;
(d) any of the Borrower, the Guarantors Trust or any of their respective Subsidiaries shall fail to perform comply, or to cause the Trust to comply, as the case may be, with any other term, covenant or agreement 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; §§8.4 through §8.10, inclusive; §8.12; §8.13; §8.15; §8.19; §8.20, ; §9.3, 8.21; §9.4, 9; and §9.5 or §9.610;
(ed) any of the Borrower, the Guarantors 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 which they are required to perform (other than those specified elsewhere in the other subclauses of this §12 14) and such failure continues for thirty (30) days after the earlier of the knowledge of any responsible officer of the Borrower or in notice thereof from the other Loan Documents)Agent;
(fe) any representation or warranty made by or on behalf of the Borrower, the Guarantors Trust 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, 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;
(gf) any of the Borrower, the Guarantors Trust or any of its Subsidiaries or, to the extent of Recourse to the Borrower, the Trust or such Subsidiaries thereunder, any Partially-Owned Entity or other of their respective Subsidiaries Affiliates, shall (x) fail to pay when due (including, without limitation, at maturity), or within any applicable period of grace, any principal, interest or other amount on account any obligation Indebtedness for borrowed money or credit received or other in respect of any Capitalized Leases, which is in excess of (i) $60,000,000, either individually or in the aggregate, if such Indebtedness is Without Recourse and (including under ii) $20,000,000, either individually or in the aggregate, if such Indebtedness is Recourse, (y) with respect to any Derivatives Contract)Indebtedness that is Recourse and in excess of $20,000,000, either individually or shall in the aggregate, fail to observe or perform any material term, covenant covenant, condition or agreement contained in any agreement agreement, document or instrument by which it is boundbound evidencing, securing or otherwise relating to such Indebtedness or Recourse obligations, evidencing or securing any obligation for borrowed money or credit received or other Indebtedness (including under in respect of any Derivatives Contract) Capitalized Leases for such period of time as would permit (assuming after the giving of appropriate notice if required) as would permit the holder or holders thereof or of any obligations issued thereunder to accelerate the maturity thereof thereof, or require the termination or other settlement (z) with respect to any Indebtedness that is Without Recourse and in excess of such obligation; provided that the events described in §12.1(g) shall not constitute an Event of Default unless such failure to perform$60,000,000, together with other failures to perform as described in §12.1(g), involve singly either individually or in the aggregate obligations for 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 other 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 totaling in excess of $15,000,000.00 or Non-that is Recourse Indebtedness in excess of $60,000,000.00;
(h) any of to the extent that the same has become Recourse to the Borrower, the Guarantors 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;
(g) the Borrower, the Trust or any of their respective Subsidiaries (i) shall make an assignment for the benefit of creditors, or admit in writing its general 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 for it of any of the Borrower, the Trust or any of their respective Subsidiaries or of any substantial part of its assets, (ii) the properties or assets of any of such parties or shall commence any case or other proceeding relating to it any of the Borrower, the Trust or any 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 (iii) shall take any action to authorize or in furtherance of any of the foregoing;
(i) a , or if any such petition or application shall be filed for the appointment of a trustee or other custodian, liquidator or receiver of any of the Borrower, the Guarantors or any of their respective Subsidiaries or any substantial part of the assets of any thereof, or a such case or other proceeding shall be commenced against any such Person under of the Borrower, the Trust or any bankruptcyof their respective Subsidiaries and (i) any of the Borrower, reorganization, arrangement, insolvency, readjustment the Trust or any of debt, dissolution or liquidation or similar law of any jurisdiction, now or hereafter in effect, and any such Person their respective Subsidiaries shall indicate its approval thereof, consent thereto or acquiescence therein or (ii) any such petition, application, case or other proceeding shall not have been dismissed within continue undismissed, or unstayed and in effect, for a period of sixty (60) days following days; provided that the filing foregoing, to the extent applicable solely to one or commencement thereofmore Subsidiaries of FPLP that are not Borrowers hereunder 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;
(jh) a decree or order is entered appointing a any trustee, custodian, liquidator or receiver for or adjudicating any of the Borrower, the Guarantors Trust or any of their respective Subsidiaries or adjudicating any 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 any such Person of the Borrower, the Trust or any of their respective Subsidiaries in an involuntary case under federal bankruptcy laws as now or hereafter constituted; provided that the foregoing, to the extent applicable solely to one or more Subsidiaries of FPLP that are not Borrowers hereunder 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;
(ki) there shall remain in force, undischarged, unsatisfied and unstayed, for more than sixty thirty (6030) days, whether or not consecutive, one or more any uninsured or unbonded final judgments, orders, awards, writs execution or attachments judgment against any of the Borrower, Guarantors the Trust or any of their respective Subsidiaries that, either with other outstanding uninsured final judgments, undischarged, unsatisfied and unstayed, against any of such parties exceeds in the aggregate $5,000,000; provided that the foregoing, to the extent applicable solely to one or more Subsidiaries of FPLP that are not Borrowers hereunder to which no more than 5% (individually or and in the aggregate) of the most recently reported Consolidated Gross Asset Value is attributable, exceed $10,000,000.00it shall not be an Event of Default hereunder so long as neither the Borrower, the Trust or any Subsidiaries not meeting the de minimus test above are liable for such judgements;
(lj) any of the Loan Documents, the Contribution Agreement, the Equipment Intercreditor Agreement Documents or the Subordination and Standstill Agreements any material provision of any Loan Document shall be 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 LendersAgent, 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, the Contribution Agreement, the Equipment Intercreditor Agreement or the Subordination and Standstill Agreements Documents shall be commenced by or on behalf of the Borrower or any of its Subsidiaries or the GuarantorsTrust or any of its Subsidiaries, or any court or any other governmental or regulatory authority or agency of competent jurisdiction shall make a determinationdetermination that, or issue a judgment, order, decree or ruling, ruling to the effect that that, any one or more of the Loan Documents, the Contribution Agreement, the Equipment Intercreditor Agreement or the Subordination and Standstill Agreements Documents is illegal, invalid or unenforceable in accordance with the as to any material terms thereof;
(mk) any dissolution“Event of Default”, termination, partial as defined or complete liquidation, merger or consolidation of provided in any of the Borrowerother Loan Documents has occurred, the Guarantors or any of their respective Subsidiaries shall occur or any sale, transfer or other disposition of the assets of default under any of the Borrower, the Guarantors or any of their respective Subsidiaries shall occur other than as permitted under the terms of this Agreement or the other Loan DocumentsDocuments has occurred that has not been remedied to the satisfaction of the Agent or waived within the applicable cure period set forth therein;
(nl) with respect to any Guaranteed Pension Plan, an ERISA Reportable Event shall have occurred and the Required Majority 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 Borrower or any of their respective 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 $10,000,000.00 and (x) 5,000,000 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 (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; 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 Unencumbered Pool in accordance with the provisions 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 Unencumbered Pool to comply with any of the conditions set forth in the definition of Eligible Unencumbered Properties;
(n) there occurs any Change of Control;
(o) without limitation of the Borrowerother provisions of this §14.1, the Trust shall at any Guarantor time fail to be the sole general partner of FPLP (or enters into any of their respective Subsidiaries agreement to permit any other Person to acquire a general partner interest in FPLP) or shall at any shareholder, officer, director, partner or member time be in contravention of any of them shall be indicted for a federal crimethe requirements contained in the last paragraph of §9.2 hereof, a punishment for which could include the forfeiture of or §9.3 (i) any assets of the Borrowerincluding, without limitation, the Guarantors or any last paragraph of their respective Subsidiaries which in the good faith judgment of the Required Lenders could have a Material Adverse Effect, or (ii) the Unencumbered Asset Pool Properties;§9.3); or
(p) any Change of Control shall occur;
(q) an Event of Default under any of the other Loan Documents shall occur;
(r) notwithstanding anything herein to the contrary (including without limitation §12.1(g)), the Borrower and the Guarantors hereby expressly agree that shall make any “Event of Default” (as defined in the Equipment Loan Documents) (which shall be deemed to include maturity of the debt evidenced and secured by the Equipment Loan Documents or any other occurrence which would give the Equipment Lender the right to exercise remedies principal payment under the Equipment 2007 Term Loan Documents) shall constitute and be deemed at a time when the Minimum Liquidity does not equal or exceed the Minimum Liquidity Threshold (after giving effect to be an Event of Default under this Agreement for which no right to cure shall be available. Without limiting the foregoing, an “Event of Default” under the Equipment Loan Documents shall conclusively be deemed to have occurred upon the declaration, statement or notice from the Equipment Lender’s as to the existence or occurrence of an “Event of Default” under any of the Equipment Loan Documents;
(s) Any default, material misrepresentation or breach of warranty in the QTLP Subordination and Standstill Agreement by Borrower or the subordinate lender that is the holder of QTLP Subordinate Note;
(t) [Intentionally Omitted.]
(u) Any default, material misrepresentation or breach of warranty in the Bond Subordination and Standstill Agreement by the Authority or the subordinate lender that is the holder of the Bondsuch principal payment); then, and in any such event, so long as the same may be continuing, the Agent may, and upon the request of the Required Majority Lenders shall, by notice in writing to the Borrower (i) declare all amounts owing with respect to this Agreement, the Notes, the Letters of 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 any kind, all of which are hereby expressly waived by the Borrower, the Trust and each of their respective Subsidiaries and (ii) require that the Borrower Cash Collateralize the Letter of Credit Obligations (in an amount equal to the then outstanding amount thereof); provided that in the event of any Event of Default specified in §12.1(h), §12.1(i14.1(g) or §12.1(j14.1(h), 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 Lenders or the Agent. Upon demand by Agent or action by the Majority Revolving Credit Lenders in their absolute and sole discretion after or the occurrence of an Event of DefaultAgent, and regardless the obligation 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, the Borrower will to Cash Collateralize the Letter of Credit Liabilities Obligations as aforesaid shall automatically become effective, in each case without further act of the Agent or any Lender. 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 Unencumbered 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 Unencumbered Pool in accordance with, and subject to, §8.13 and with all other covenant calculations under §10 or otherwise, the Borrower shall be permitted a period not to exceed five (in an amount equal 5) days to submit to the amount Agent (with copies to the Agent for each Lender) a compliance certificate in the form of Exhibit C hereto evidencing compliance with §2.1 and with all undrawn Letters of Credit). Such amounts 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 Unencumbered Pool) and with the Unencumbered Property Conditions, and otherwise certifying that, after giving effect to the exclusion of such Real Estate Asset from the Unencumbered Pool, no Default or Event of Default 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 in accordance with §2.12. 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 and 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 the Borrower will be released to the Borrowercontinuing.
Appears in 1 contract
Sources: Revolving Credit 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 or lapse of time, “Defaults”) shall occur:
(a) 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) the Borrower shall fail to pay any interest on the Loans, any reimbursement obligations with respect to the Letters of Credit, or any fees or 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;
(c) the Borrower shall fail to comply with the covenant contained in §9.1 and such failure shall continue for five (5) Business Days after written notice thereof shall have been given to the Borrower by the Agent;
(d) any of the Borrower, the Guarantors or any of their respective Subsidiaries shall fail to perform any other term, covenant or agreement contained in §8.20, §9.3, §9.4, §9.5 or §9.6;
(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 which they are required to perform (other than those specified in the other subclauses of this §12 or in the other Loan Documents);
(f) any representation or warranty 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, 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;
(g) any of the Borrower, the Guarantors or any of their respective Subsidiaries shall fail to pay when due (including, without limitation, at maturity), or within any applicable period of grace, any principal, interest or other amount on account any obligation for borrowed money or credit received or other Indebtedness (including under any Derivatives Contract), or shall fail to observe or perform any term, covenant or agreement contained in any agreement by which it is bound, evidencing or securing any obligation for borrowed money or credit received or other Indebtedness (including under any Derivatives Contract) 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 the termination or other settlement of such obligation; 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 in the aggregate obligations for borrowed money or credit received or other Recourse Indebtedness totaling in excess of $15,000,000.00 50,000,000.00 or Non-Recourse Indebtedness in excess of $60,000,000.00100,000,000.00;
(h) any of the Borrower, the Guarantors or any of their respective Subsidiaries (i) shall make an assignment for the benefit of creditors, or admit in writing its general 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 for it or any substantial part of its assets, (ii) shall commence any case or other proceeding relating to 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 (iii) shall take any action to authorize or in furtherance of any of the foregoing;
(i) a petition or application shall be filed for the appointment of a trustee or other custodian, liquidator or receiver of any of the Borrower, the Guarantors or any of their respective Subsidiaries or any substantial part of the assets of any thereof, or a case or other proceeding shall be commenced against any 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, and any such Person shall indicate its approval thereof, consent thereto or acquiescence therein or such petition, application, case or proceeding shall not have been dismissed within sixty (60) days following the filing or commencement thereof;
(j) a decree or order is entered appointing a trustee, custodian, liquidator or receiver for any of the Borrower, the Guarantors or any of their respective Subsidiaries or adjudicating any 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 any such Person in an involuntary case under federal bankruptcy laws as now or hereafter constituted;
(k) there shall remain in force, undischarged, unsatisfied and unstayed, for more than sixty (60) days, whether or not consecutive, one or more uninsured or unbonded final judgments, orders, awards, writs execution or attachments against the Borrower, Guarantors or any of their respective Subsidiaries that, either individually or in the aggregate, exceed $10,000,000.0050,000,000.00;
(l) any of the Loan Documents, the Contribution Agreement, the Equipment Intercreditor Agreement or the Bond Subordination and Standstill Agreements 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, the Contribution Agreement, the Equipment Intercreditor Agreement or the Bond Subordination and Standstill Agreements Agreement shall be commenced by or on behalf of the Borrower or any of 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, the Contribution Agreement, the Equipment Intercreditor Agreement or the Bond Subordination and Standstill Agreements 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 of their respective Subsidiaries shall occur or any sale, transfer or other disposition of the assets of any of the Borrower, 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;
(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 their respective Subsidiaries to the PBGC or such Guaranteed Pension Plan in an aggregate amount exceeding $10,000,000.00 20,000,000.00 and (x) 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 (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) the Borrower, any Guarantor or any of their respective Subsidiaries 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 the Borrower, the Guarantors 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 Unencumbered Asset Pool Properties;
(p) any Change of Control shall occur;
(q) an Event of Default under any of the other Loan Documents shall occur;
(r) notwithstanding anything herein to the contrary (including without limitation §12.1(g)), the Borrower and the Guarantors hereby expressly agree that any “Event of Default” (as defined in the Equipment Loan Documents) (which shall be deemed to include maturity of the debt evidenced and secured by the Equipment Loan Documents or any other occurrence which would give the Equipment Lender the right to exercise remedies under the Equipment Loan Documents) shall constitute and be deemed to be an Event of Default under this Agreement for which no right to cure shall be available. Without limiting the foregoing, an “Event of Default” under the Equipment Loan Documents shall conclusively be deemed to have occurred upon the declaration, statement or notice from the Equipment Lender’s as to the existence or occurrence of an “Event of Default” under any of the Equipment Loan Documents[Intentionally Omitted];
(s) Any default, material misrepresentation or breach of warranty in the QTLP Subordination and Standstill Agreement by Borrower or the subordinate lender that is the holder of QTLP Subordinate Note[Intentionally Omitted];
(t) [Intentionally Omitted.]REIT fails to perform any term, covenant or agreement contained in §7.12 which it is required to perform;
(u) Any default, material misrepresentation or breach of warranty in the Bond Subordination and Standstill Agreement by the Authority or the subordinate lender that is the holder of the Bond; then, and in any such event, the 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 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 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 Lenders or the Agent. Upon demand by Agent or the Majority U.S. Dollar Revolving Credit 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 U.S. Dollar Revolving Credit Loan have been satisfied, the U.S. Dollar Revolving Credit Lenders will cause a U.S. Dollar 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, the Borrower will Cash Collateralize the Letter of Credit Liabilities (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 Lenders as security for any amounts that become payable under the Letters of Credit and all other Obligations and Hedge Obligations in accordance with §2.12. 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 and 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 the Borrower will be released to the Borrower.
Appears in 1 contract
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 or lapse of time, “Defaults”) shall occur:
(a) 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) the Borrower shall fail to pay any interest on the Loans, any reimbursement obligations with respect to the Letters of Credit, Loans or any fees or other sums due hereunder or under any of the other Loan Documents (including, without limitation, amounts due under §8.17) when the same shall become due and payable, whether at and such failure continues for three (3) days (provided that in the stated date case of maturity or any accelerated date such sums due other than for interest, the Borrower shall have received from the Agent notice of maturity or at any the nature and amount of such other date fixed for paymentamounts and that payment therefor is due);
(c) the Borrower or BPI shall fail to comply comply, or to cause BPI to comply, as the case may be, with any of the covenant respective covenants contained in §9.1 the following:
(i) 8.1 (except with respect to principal, interest and other sums covered by clauses (a) or (b) above);
(ii) 8.5 (clauses (a) through (d)), unless such failure shall continue for five is cured within fifteen (515) Business Days after written notice thereof shall have been given Days;
(iii) 8.6 (as to the Borrower by legal existence of the AgentBorrower);
(iv) 8.7 (as to the legal existence and REIT status of BPI or as it otherwise relates to BPI);
(v) 8.10, unless 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) any of the Borrower, the Guarantors Borrower or any of their respective Subsidiaries BPI shall fail to perform any other termperform, covenant or agreement contained in §8.20to cause BPI to perform, §9.3, §9.4, §9.5 or §9.6;
(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 which they are required to perform (other than those specified elsewhere in the other subclauses of this §12 14) and such failure continues for thirty (30) days after written notice of such failure 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 other Loan DocumentsAgent 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 such initial written notice from the Agent) to effect such cure;
(fe) any representation or warranty made by or on behalf of the Borrower, the Guarantors Borrower or any of their respective Subsidiaries BPI 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, 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 repeatedrepeated and the same is not otherwise specified herein to be a Non-Material Breach;
(gf) the Borrower or any of its Subsidiaries or, to the Borrowerextent of Recourse to the Borrower or such Subsidiaries thereunder, the Guarantors or any of their respective Subsidiaries Affiliates, shall fail to pay when due (including, without limitation, at maturity), or within any applicable period of grace, any principal, interest or other amount on account any obligation for borrowed money or credit received or in respect of any Capitalized Leases (other Indebtedness (including under any Derivatives Contractthan non-recourse obligations or credit), the recourse component of the principal amount of which is in excess of $50,000,000, either individually or shall in the aggregate, or fail to observe or perform any material term, covenant covenant, condition or agreement contained in any agreement agreement, document or instrument by which it is boundbound evidencing, securing or otherwise relating to such Recourse obligations, evidencing or securing any obligation for borrowed money or credit received or other Indebtedness (including under in respect of any Derivatives Contract) Capitalized Leases for such period of time as would permit (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 or require thereof; provided, however that notwithstanding the termination or other settlement of such obligation; provided that the events described in §12.1(gforegoing, (i) shall not constitute an no Event of Default shall occur pursuant to this subparagraph (f) unless and until the holder or holders of such failure to perform, together with other failures to perform as described in §12.1(g), involve singly or in the aggregate obligations for borrowed money or credit received or other Recourse Indebtedness totaling have declared an event of default beyond any applicable notice and grace periods, if any, on in excess of $15,000,000.00 or Non-50,000,000 of such Recourse Indebtedness (determined on the basis of the principal amount of such Recourse Indebtedness) either individually or in excess the aggregate, and (ii) with respect solely to any such Recourse Indebtedness of $60,000,000.00a 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 forth in §10 after excluding such Subsidiary or Affiliate, and any Real Estate Asset owned by such Subsidiary or Affiliate, from the calculation of such covenants;
(hg) any of the BorrowerBPLP, the Guarantors BPI or any of their respective Subsidiaries (i) shall make an assignment for the benefit of creditors, or admit in writing its general 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 for it of any of BPLP, BPI or any of their respective Subsidiaries or of any substantial part of its assets, (ii) the properties or assets of any of such parties or shall commence any case or other proceeding relating to it any of BPLP, BPI or any 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 (iii) shall take any action to authorize or in furtherance of any of the foregoing;
(i) a , or if any such petition or application shall be filed for the appointment of a trustee or other custodian, liquidator or receiver of any of the Borrower, the Guarantors or any of their respective Subsidiaries or any substantial part of the assets of any thereof, or a such case or other proceeding shall be commenced against any such Person under of BPLP, BPI or any bankruptcyof their respective Subsidiaries and (i) any of BPLP, reorganization, arrangement, insolvency, readjustment BPI or any of debt, dissolution or liquidation or similar law of any jurisdiction, now or hereafter in effect, and any such Person their respective Subsidiaries shall indicate its approval thereof, consent thereto or acquiescence therein or (ii) any such petition, application, case or other proceeding shall not have been dismissed within sixty continue undismissed, or unstayed and in effect, for a period of ninety (6090) days following days, except, with respect solely to such parties other than BPLP and BPI, any of the filing or commencement thereofforegoing constitutes a Non-Material Breach;
(jh) a decree or order is entered appointing a any trustee, custodian, liquidator or receiver for or adjudicating any of the BorrowerBPLP, the Guarantors BPI or any of their respective Subsidiaries or adjudicating any 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 any such Person of BPLP, BPI or any of their respective Subsidiaries in an involuntary case under federal bankruptcy laws 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;
(ki) there shall remain in force, undischarged, unsatisfied and unstayed, for more than sixty thirty (6030) days, whether or not consecutive, one or more any uninsured or unbonded final judgmentsjudgment against any of BPLP, orders, awards, writs execution or attachments against the Borrower, Guarantors BPI or any of their respective Subsidiaries that, either individually or with other outstanding uninsured final judgments, undischarged, unsatisfied and unstayed, against any of such parties exceeds in the aggregateaggregate $20,000,000 except, exceed $10,000,000.00with respect solely to such parties other than BPLP and BPI, any of 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);
(lj) any of the Loan Documents, the Contribution Agreement, the Equipment Intercreditor Agreement Documents or the Subordination and Standstill Agreements any material provision of any Loan Document shall be 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 LendersAgent, 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, the Contribution Agreement, the Equipment Intercreditor Agreement or the Subordination and Standstill Agreements Documents shall be commenced by or on behalf of the Borrower or any of the GuarantorsBPI, or any court or any other governmental or regulatory authority or agency of competent jurisdiction shall make a determinationdetermination that, or issue a judgment, order, decree or ruling, ruling to the effect that that, any one or more of the Loan Documents, the Contribution Agreement, the Equipment Intercreditor Agreement or the Subordination and Standstill Agreements Documents is illegal, invalid or unenforceable in accordance with the as to any material terms thereof;
(mk) any dissolution, termination, partial “Event of Default” or complete liquidation, merger or consolidation default (after notice and expiration of any period of grace, to the Borrowerextent provided), the Guarantors as defined or provided in any of their respective Subsidiaries shall occur or any sale, transfer or other disposition of the assets of any of the Borrower, 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, shall occur and be continuing;
(nl) with respect to any Guaranteed Pension Plan, an ERISA Reportable Event shall have occurred and the Required Lenders 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 Borrower or any of their respective Subsidiaries BPI to the PBGC or such Guaranteed Pension Plan in an aggregate amount exceeding $10,000,000.00 10,000,000 and (x) 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 (y) a trustee shall have been appointed by the United States District Court to administer such Pension Plan; or (z) the PBGC shall have instituted proceedings to terminate such Guaranteed Pension Plan;; or
(om) without limitation of the Borrowerother provisions of this §14.1, BPI shall at any Guarantor time fail to be the sole general partner of BPLP or shall at any of their respective Subsidiaries or any shareholder, officer, director, partner or member time be in contravention of any of them shall be indicted for a federal crime, a punishment for which could include the forfeiture of (i) any assets of the Borrower, the Guarantors or any of their respective Subsidiaries which requirements contained in the good faith judgment of the Required Lenders could have a Material Adverse Effect, or (ii) the Unencumbered Asset Pool Properties;
(p) any Change of Control shall occur;
(q) an Event of Default under any of the other Loan Documents shall occur;
(r) notwithstanding anything herein to the contrary (including without limitation §12.1(g)9.1(e), the Borrower and the Guarantors hereby expressly agree that any “Event last paragraph of Default” §9.2, or §9.3 (as defined in the Equipment Loan Documents) (which shall be deemed to include maturity of the debt evidenced and secured by the Equipment Loan Documents or any other occurrence which would give the Equipment Lender the right to exercise remedies under the Equipment Loan Documents) shall constitute and be deemed to be an Event of Default under this Agreement for which no right to cure shall be available. Without limiting the foregoingincluding, an “Event of Default” under the Equipment Loan Documents shall conclusively be deemed to have occurred upon the declaration, statement or notice from the Equipment Lender’s as to the existence or occurrence of an “Event of Default” under any of the Equipment Loan Documents;
(s) Any default, material misrepresentation or breach of warranty in the QTLP Subordination and Standstill Agreement by Borrower or the subordinate lender that is the holder of QTLP Subordinate Note;
(t) [Intentionally Omitted.]
(u) Any default, material misrepresentation or breach of warranty in the Bond Subordination and Standstill Agreement by the Authority or the subordinate lender that is the holder of the Bond; then, and in any such eventwithout limitation, the Agent may, and upon the request last paragraph of the Required Lenders shall, by notice in writing to the Borrower 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 Borrower; provided that in the event of any Event of Default specified in §12.1(h9.3), §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 Lenders or the Agent. Upon demand by Agent or the Majority Revolving Credit 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, the Borrower will Cash Collateralize the Letter of Credit Liabilities (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 Lenders as security for any amounts that become payable under the Letters of Credit and all other Obligations and Hedge Obligations in accordance with §2.12. 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 and 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 the Borrower will be released to the Borrower.
Appears in 1 contract
Sources: 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 or lapse of time, “Defaults”) shall occur:
(a) the 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) the The Borrower shall fail to pay any interest on the Loans, any reimbursement obligations with respect to Loan within five (5) days of the Letters of Creditdate 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 when the same shall become due and payablewithin five (5) days after notice from Agent, whether at the stated date of maturity or any accelerated date of maturity or at any other date fixed for payment;
(c) the Borrower shall fail to comply with the covenant contained in §9.1 and such failure shall continue for five (5) Business Days after written notice thereof shall have been given to the Borrower by the Agent[Reserved];
(d) any of the Borrower, Borrower or the Guarantors other Credit Parties or any of their respective Subsidiaries shall fail to perform any other term, covenant or agreement contained in §8.209.1, §9.2, §9.3, or §9.4, 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 §9.5 or §9.612.1(d);
(e) any of the Borrower, Borrower or the Guarantors or any of their respective Subsidiaries 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 the other subclauses of this §12 (including, without limitation, §12.2 below) or in the other Loan Documents), 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 cured within such thirty (30)-day period despite the Borrower’s diligent efforts but is susceptible of being cured within ninety (90) days of the Borrower’s receipt of the Agent’s original notice, then the 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 the 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, §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 Borrower, the Guarantors 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, Letter of Credit Request, or in any other document or instrument delivered pursuant to or in connection with this 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 repeatedrepeated except to the extent it is not reasonably expected to have a Material Adverse Effect;
(g) any of the Borrower, Borrower or the Guarantors Pledgor or any of their respective Subsidiaries shall fail to pay when due (including, without limitation, at maturity), or within any applicable period of grace, any principal, interest or other amount on account any obligation for borrowed money or credit received or other Indebtedness (including Subsidiary defaults under any Derivatives Contract), or shall fail to observe or perform any term, covenant or agreement contained in any agreement by which it is bound, evidencing or securing any obligation for borrowed money or credit received or other Indebtedness (including under any Derivatives Contract) 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 the termination or other settlement of such obligation; 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 in the aggregate obligations for borrowed money or credit received or other Recourse Indebtedness totaling in excess of $15,000,000.00 or Non-Recourse Indebtedness in excess of $60,000,000.00Indebtedness;
(h) any of the BorrowerBorrower or other Credit Party, the Guarantors or any of their respective Subsidiaries (i) shall make an assignment for the benefit of creditors, or admit in writing its general 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 for it or any substantial part of its assets, (ii) shall commence any case or other proceeding relating to 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 (iii) shall take any action to authorize or in furtherance of any of the foregoing;
(i) a petition or application shall be filed for the appointment of a trustee or other custodian, liquidator or receiver of any of the Borrower, the Guarantors Borrower or any of their respective Subsidiaries other Credit Party or any substantial part of the assets of any thereof, or a case or other proceeding shall be commenced against any 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, and any such Person shall indicate its approval thereof, consent thereto or acquiescence therein or such petition, application, case or proceeding shall not have been dismissed within sixty ninety (6090) days following the filing or commencement thereof;
(j) a decree or order is entered appointing a trustee, custodian, liquidator or receiver for any of the Borrower, the Guarantors Borrower or any of their respective Subsidiaries other Credit Party or adjudicating any 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 any such Person in an involuntary case under federal bankruptcy laws as now or hereafter constituted;
(k) there shall remain in force, undischarged, unsatisfied and unstayed, for more than sixty (60) days, whether or not consecutive, one or more uninsured or unbonded final judgments, orders, awards, writs execution or attachments judgments against the Borrower, Guarantors Pledgor or any the Borrower in excess of their respective Subsidiaries that, either individually or in the aggregate, exceed $10,000,000.005,000,000;
(l) any of the material Loan Documents, the Contribution Agreement, the Equipment Intercreditor Agreement or the Subordination and Standstill Agreements 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, the Contribution Agreement, the Equipment Intercreditor Agreement or the Subordination and Standstill Agreements Documents shall be commenced by or on behalf of the Borrower or any of the GuarantorsCredit 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, the Contribution Agreement, the Equipment Intercreditor Agreement or the Subordination and Standstill Agreements 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 of their respective Subsidiaries shall occur or any sale, transfer or other disposition of the assets of any of the Borrower, the Guarantors or any of their respective Subsidiaries shall occur other than as permitted under the terms of this Agreement or the other Loan DocumentsRESERVED;
(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 would be expected to result in liability of any of the Borrower, the Guarantors or any of their respective Subsidiaries Credit Parties to pay money to the PBGC or such Guaranteed Pension Plan in an aggregate amount exceeding $10,000,000.00 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 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) the Borrower, any Guarantor or any of their respective Subsidiaries 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 the Borrower, the Guarantors 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 Unencumbered Asset Pool Properties;
(p) any Change of Control shall occur;; or
(qp) an Event of Default under then, and upon any of the other Loan Documents shall occur;
(r) notwithstanding anything herein to the contrary (including without limitation §12.1(g)), the Borrower and the Guarantors hereby expressly agree that any “such Event of Default” (as defined in the Equipment Loan Documents) (which shall be deemed to include maturity of the debt evidenced and secured by the Equipment Loan Documents or any other occurrence which would give the Equipment Lender the right to exercise remedies under the Equipment Loan Documents) shall constitute and be deemed to be an Event of Default under this Agreement for which no right to cure shall be available. Without limiting the foregoing, an “Event of Default” under the Equipment Loan Documents shall conclusively be deemed to have occurred upon the declaration, statement or notice from the Equipment Lender’s as to the existence or occurrence of an “Event of Default” under any of the Equipment Loan Documents;
(s) Any default, material misrepresentation or breach of warranty in the QTLP Subordination and Standstill Agreement by Borrower or the subordinate lender that is the holder of QTLP Subordinate Note;
(t) [Intentionally Omitted.]
(u) Any default, material misrepresentation or breach of warranty in the Bond Subordination and Standstill Agreement by the Authority or the subordinate lender that is the holder of the Bond; then, and in any such event, the 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 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 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 Lenders or the Agent. Upon demand by Agent or the Majority Revolving Credit 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, the Borrower will Cash Collateralize the Letter of Credit Liabilities (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 Lenders as security for any amounts that become payable under the Letters of Credit and all other Obligations and Hedge Obligations in accordance with §2.12. 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 and 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 the Borrower will be released to 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 or lapse of time, “Defaults”) shall occur:
(a) 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) the Borrower shall fail to pay any interest on the Loans, any reimbursement obligations with respect to the Letters of Credit, or any fees or 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;
(c) the Borrower shall fail to comply with the covenant contained in §9.1 and such failure shall continue for five (5) Business Days after written notice thereof shall have been given to the Borrower by the Agent;
(d) any of the Borrower, the Guarantors or any of their respective Subsidiaries shall fail to perform any other term, covenant or agreement contained in §8.20, §9.3, §9.4, §9.5 or §9.6;
(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 which they are required to perform (other than those specified in the other subclauses of this §12 or in the other Loan Documents);
(f) any representation or warranty 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, 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;
(g) any of the Borrower, the Guarantors or any of their respective Subsidiaries shall fail to pay when due (including, without limitation, at maturity), or within any applicable period of grace, any principal, interest or other amount on account any obligation for borrowed money or credit received or other Indebtedness (including under any Derivatives Contract), or shall fail to observe or perform any term, covenant or agreement contained in any agreement by which it is bound, evidencing or securing any obligation for borrowed money or credit received or other Indebtedness (including under any Derivatives Contract) 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 the termination or other settlement of such obligation; 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 in the aggregate obligations for borrowed money or credit received or other Recourse Indebtedness totaling in excess of $15,000,000.00 50,000,000.00 or Non-Recourse Indebtedness in excess of $60,000,000.0075,000,000.00;
(h) any of the Borrower, the Guarantors or any of their respective Subsidiaries (i) shall make an assignment for the benefit of creditors, or admit in writing its general 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 for it or any substantial part of its assets, (ii) shall commence any case or other proceeding relating to 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 (iii) shall take any action to authorize or in furtherance of any of the foregoing;
(i) a petition or application shall be filed for the appointment of a trustee or other custodian, liquidator or receiver of any of the Borrower, the Guarantors or any of their respective Subsidiaries or any substantial part of the assets of any thereof, or a case or other proceeding shall be commenced against any 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, and any such Person shall indicate its approval thereof, consent thereto or acquiescence therein or such petition, application, case or proceeding shall not have been dismissed within sixty (60) days following the filing or commencement thereof;
(j) a decree or order is entered appointing a trustee, custodian, liquidator or receiver for any of the Borrower, the Guarantors or any of their respective Subsidiaries or adjudicating any 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 any such Person in an involuntary case under federal bankruptcy laws as now or hereafter constituted;
(k) there shall remain in force, undischarged, unsatisfied and unstayed, for more than sixty (60) days, whether or not consecutive, one or more uninsured or unbonded final judgments, orders, awards, writs execution or attachments against the Borrower, Guarantors or any of their respective Subsidiaries that, either individually or in the aggregate, exceed $10,000,000.0020,000,000.00;
(l) any of the Loan Documents, the Contribution Agreement, the Equipment Intercreditor Agreement or the Bond Subordination and Standstill Agreements 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, the Contribution Agreement, the Equipment Intercreditor Agreement or the Bond Subordination and Standstill Agreements Agreement shall be commenced by or on behalf of the Borrower or any of 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, the Contribution Agreement, the Equipment Intercreditor Agreement or the Bond Subordination and Standstill Agreements 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 of their respective Subsidiaries shall occur or any sale, transfer or other disposition of the assets of any of the Borrower, 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;
(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 their respective Subsidiaries to the PBGC or such Guaranteed Pension Plan in an aggregate amount exceeding $10,000,000.00 20,000,000.00 and (x) 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 (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) the Borrower, any Guarantor or any of their respective Subsidiaries 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 the Borrower, the Guarantors 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 Unencumbered Asset Pool Properties;
(p) any Change of Control shall occur;
(q) an Event of Default under any of the other Loan Documents shall occur;
(r) notwithstanding anything herein to the contrary (including without limitation §12.1(g)), the Borrower and the Guarantors hereby expressly agree that any “Event of Default” (as defined in the Equipment Loan Documents) (which shall be deemed to include maturity of the debt evidenced and secured by the Equipment Loan Documents or any other occurrence which would give the Equipment Lender the right to exercise remedies under the Equipment Loan Documents) shall constitute and be deemed to be an Event of Default under this Agreement for which no right to cure shall be available. Without limiting the foregoing, an “Event of Default” under the Equipment Loan Documents shall conclusively be deemed to have occurred upon the declaration, statement or notice from the Equipment Lender’s as to the existence or occurrence of an “Event of Default” under any of the Equipment Loan Documents;
(s) Any default, material misrepresentation or breach of warranty in the QTLP Subordination and Standstill Agreement by Borrower or the subordinate lender that is the holder of QTLP Subordinate Note[Intentionally Omitted];
(t) [Intentionally Omitted.]REIT fails to perform any term, covenant or agreement contained in §7.12 which it is required to perform;
(u) Any default, material misrepresentation or breach of warranty in the Bond Subordination and Standstill Agreement by the Authority or the subordinate lender that is the holder of the Bond; then, and in any such event, the 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 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 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 Lenders or the Agent. Upon demand by Agent or the Majority Revolving Credit 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, the Borrower will Cash Collateralize the Letter of Credit Liabilities (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 Lenders as security for any amounts that become payable under the Letters of Credit and all other Obligations and Hedge Obligations in accordance with §2.12. 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 and 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 the Borrower will be released to 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 or lapse of time, “Defaults”) shall occur:
(a) 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) the Borrower shall fail to pay any interest on the Loans, any reimbursement obligations with respect to the Letters of Credit, Loans or any fees or other sums due hereunder or under any of the other Loan Documents or any fee letter (including, without limitation, amounts due under §8.16) 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 and such failure continues for paymentthree (3) days;
(c) the Borrower shall fail to comply with the covenant contained in §9.1 and such failure shall continue for five (5) Business Days after written notice thereof shall have been given to the Borrower by the Agent;
(d) any of the Borrower, the Guarantors Trust or any of their respective Subsidiaries shall fail to perform comply, or to cause the Trust to comply, as the case may be, with any other term, covenant or agreement 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; §§8.4 through §8.10, inclusive; §8.12; §8.13; §8.15; §8.19; §8.20, ; §9.3, 9; and §9.4, §9.5 or §9.610;
(ed) any of the Borrower, the Guarantors 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 which they are required to perform (other than those specified elsewhere in the other subclauses of this §12 or in the other Loan Documents)14) and such failure continues for thirty (30) days;
(fe) any representation or warranty made by or on behalf of the Borrower, the Guarantors Trust 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, 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;
(gf) any of the Borrower, the Guarantors Trust or any of its Subsidiaries or, to the extent of Recourse to the Borrower, the Trust or such Subsidiaries thereunder, any Partially-Owned Entity or other of their respective Subsidiaries Affiliates, shall fail to pay when due (including, without limitation, at maturity), or within any applicable period of grace, any principal, interest or other amount on account any obligation Indebtedness for borrowed money or credit received or other in respect of any Capitalized Leases, which is in excess of (i) $25,000,000, either individually or in the aggregate, if such Indebtedness is Without Recourse and (including under any Derivatives Contract)ii) $5,000,000, either individually or in the aggregate, if such Indebtedness is Recourse, or shall fail to observe or perform any material term, covenant covenant, condition or agreement contained in any agreement agreement, document or instrument by which it is boundbound evidencing, securing or otherwise relating to such Indebtedness or Recourse obligations, evidencing or securing any obligation for borrowed money or credit received or other Indebtedness (including under in respect of any Derivatives Contract) Capitalized Leases for such period of time as would permit (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 (i) $25,000,000, either individually or in the aggregate, if such Indebtedness is without Recourse and (ii) $5,000,000, either individually or in the aggregate, if such Indebtedness is Recourse, to accelerate the maturity thereof or require the termination or other settlement of such obligation; 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 in the aggregate obligations for borrowed money or credit received or other Recourse Indebtedness totaling in excess of $15,000,000.00 or Non-Recourse Indebtedness in excess of $60,000,000.00thereof;
(hg) any of the BorrowerFPLP, the Guarantors Trust or any of their respective Subsidiaries (i) shall make an assignment for the benefit of creditors, or admit in writing its general 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 for it of any of FPLP, the Trust or any of their respective Subsidiaries or of any substantial part of its assets, (ii) the properties or assets of any of such parties or shall commence any case or other proceeding relating to it any of the FPLP, the Trust or any 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 (iii) shall take any action to authorize or in furtherance of any of the foregoing;
(i) a , or if any such petition or application shall be filed for the appointment of a trustee or other custodian, liquidator or receiver of any of the Borrower, the Guarantors or any of their respective Subsidiaries or any substantial part of the assets of any thereof, or a such case or other proceeding shall be commenced against any such Person under of FPLP, the Trust or any bankruptcyof their respective Subsidiaries and (i) any of FPLP, reorganization, arrangement, insolvency, readjustment the Trust or any of debt, dissolution or liquidation or similar law of any jurisdiction, now or hereafter in effect, and any such Person their respective Subsidiaries shall indicate its approval thereof, consent thereto or acquiescence therein or (ii) any such petition, application, case or other proceeding shall not have been dismissed within sixty continue undismissed, or unstayed and in effect, for a period of forty-five (6045) days following the filing or commencement thereofdays;
(jh) a decree or order is entered appointing a any trustee, custodian, liquidator or receiver for or adjudicating any of the BorrowerFPLP, the Guarantors Trust or any of their respective Subsidiaries or adjudicating any 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 any such Person of FPLP, the Trust or any of their respective Subsidiaries in an involuntary case under federal bankruptcy laws as now or hereafter constituted;
(ki) there shall remain in force, undischarged, unsatisfied and unstayed, for more than sixty thirty (6030) days, whether or not consecutive, one or more any uninsured or unbonded final judgmentsjudgment against any of FPLP, orders, awards, writs execution or attachments against the Borrower, Guarantors Trust or any of their respective Subsidiaries that, either individually or with other outstanding uninsured final judgments, undischarged, unsatisfied and unstayed, against any of such parties exceeds in the aggregate, exceed aggregate $10,000,000.002,000,000;
(lj) any of the Loan Documents, the Contribution Agreement, the Equipment Intercreditor Agreement Documents or the Subordination and Standstill Agreements any material provision of any Loan Document shall be 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 LendersAgent, 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, the Contribution Agreement, the Equipment Intercreditor Agreement or the Subordination and Standstill Agreements Documents shall be commenced by or on behalf of the Borrower or any of its Subsidiaries or the GuarantorsTrust or any of its Subsidiaries, or any court or any other governmental or regulatory authority or agency of competent jurisdiction shall make a determinationdetermination that, or issue a judgment, order, decree or ruling, ruling to the effect that that, any one or more of the Loan Documents, the Contribution Agreement, the Equipment Intercreditor Agreement or the Subordination and Standstill Agreements Documents is illegal, invalid or unenforceable in accordance with the as to any material terms thereof;
(mk) any dissolution, termination, partial “Event of Default” or complete liquidation, merger or consolidation default (after notice and expiration of any period of grace, to the Borrowerextent provided, the Guarantors as defined or provided in any of their respective Subsidiaries shall occur or any sale, transfer or other disposition of the assets of any of the Borrower, 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, shall occur and be continuing;
(nl) with respect to any Guaranteed Pension Plan, an ERISA Reportable Event shall have occurred and the Required Majority 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 Borrower or any of their respective its Subsidiaries or the Trust or any of its Subsidiaries to the PBGC or such Guaranteed Pension Plan in an aggregate amount exceeding $10,000,000.00 2,000,000 and (x) 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 (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;
(om) subject to the Borrower’s ability to remove Real Estate Assets from the Unencumbered Pool in accordance with the provisions set forth below in this §14, any Guarantor or any of their respective Subsidiaries or any shareholder, officer, director, partner or member the failure of any of them shall be indicted for a federal crime, a punishment for which could include the forfeiture of (i) any assets Real Estate Assets being included from time to time as part of the Borrower, the Guarantors or Unencumbered Pool to comply with any of their respective Subsidiaries which the conditions set forth in the good faith judgment definition of the Required Lenders could have a Material Adverse Effect, or (ii) the Eligible Unencumbered Asset Pool Properties;
(pn) the occurrence of any Change transaction in which any “person” or “group” (within the meaning of Control shall occur;
(qSection 13(d) an Event of Default under any and 14(d)(2) of the other Loan Documents shall occur;
(rSecurities Exchange Act of 1934) notwithstanding anything herein to becomes the contrary (including without limitation §12.1(g)), the Borrower and the Guarantors hereby expressly agree that any “Event of Defaultbeneficial owner” (as defined in Rule 13d-3 under the Equipment Loan Documents) (which shall be deemed to include maturity Securities Exchange Act of 1934), directly or indirectly, of a sufficient number of shares of all classes of stock then outstanding of the debt evidenced and secured Trust ordinarily entitled to vote in the election of directors, empowering such “person” or “group” to elect a majority of the Board of Directors or Board of Trustees of the Trust, who did not have such power before such transaction; or during any twelve-month period on or after the Closing Date, individuals who at the beginning of such period constituted the Board of Trustees of the Trust (together with any new directors whose election by the Equipment Loan Documents Board of Trustees or whose nomination for election by the shareholders of the Trust was approved by a vote of at least a majority of the members of the Board of Trustees then in office who either were members of the Board of Trustees at the beginning of such period or whose election or nomination for election was previously so approved) ceased for any reason to constitute a majority of the members of the Board of Trustees of the Trust then in office; 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 enters into any agreement to permit any other occurrence which would give the Equipment Lender the right Person to exercise remedies under the Equipment Loan Documentsacquire a general partner interest in FPLP) or shall constitute and at any time be deemed to be an Event in contravention of Default under this Agreement for which no right to cure shall be available. Without limiting the foregoing, an “Event of Default” under the Equipment Loan Documents shall conclusively be deemed to have occurred upon the declaration, statement or notice from the Equipment Lender’s as to the existence or occurrence of an “Event of Default” under any of the Equipment Loan Documents;requirements contained in the last paragraph of §9.2 hereof, or §9.3 (including, without limitation, the last paragraph of §9.3); or
(sp) Any default, material misrepresentation the Borrower shall make any principal payment under the 2007 Term Loan at a time when the Minimum Liquidity does not equal or breach of warranty in exceed the QTLP Subordination and Standstill Agreement by Borrower or the subordinate lender that is the holder of QTLP Subordinate Note;
Minimum Liquidity Threshold (t) [Intentionally Omitted.]
(u) Any default, material misrepresentation or breach of warranty in the Bond Subordination and Standstill Agreement by the Authority or the subordinate lender that is the holder of the Bondafter giving effect to such principal payment); then, and in any such event, so long as the same may be continuing, the Agent may, and upon the request of the Required Majority Lenders shall, by notice in writing to the Borrower declare all amounts owing with respect to this Agreement, the Notes, the Letters of 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 any kind, all of which are hereby expressly waived by the Borrower, the Trust and each of their respective Subsidiaries; provided that in the event of any Event of Default specified in §12.1(h), §12.1(i14.1(g) or §12.1(j14.1(h), 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 Lenders or the Agent or action by the Lenders or the Agent. Upon demand by Agent Notwithstanding the foregoing provisions of this §14.1, in the event of a Default or the Majority Revolving Credit Lenders in their absolute and sole discretion after the occurrence of an Event of DefaultDefault arising as a result of the inclusion of any Real Estate Asset in the Unencumbered 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 Unencumbered Pool in accordance with, and regardless of whether the conditions precedent in this Agreement for a Revolving Credit Loan have been satisfiedsubject to, 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 §8.13 and held by Agent as security for any amounts that become payable under the Letters of Credit and with 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 Defaultcovenant calculations under §10 or otherwise, the Borrower will Cash Collateralize the Letter of Credit Liabilities shall be permitted a period not to exceed five (in an amount equal 5) days to submit to the amount Agent (with copies to the Agent for each Lender) a compliance certificate in the form of Exhibit C hereto evidencing compliance with §2.1 and with all undrawn Letters of Credit). Such amounts 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 Unencumbered Pool) and with the Unencumbered Property Conditions, and otherwise certifying that, after giving effect to the exclusion of such Real Estate Asset from the Unencumbered Pool, no Default or Event of Default 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 in accordance with §2.12. 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 and 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 the Borrower will be released to the Borrowercontinuing.
Appears in 1 contract
Sources: Revolving Credit 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 or lapse of time, “Defaults”) shall occur:
(a) 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) the Borrower shall fail to pay any interest on the Loans, any reimbursement obligations with respect to the Letters of Credit, or any fees or 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;
(c) the Borrower shall fail to comply with the covenant contained in §9.1 and such failure shall continue for five (5) Business Days after written notice thereof shall have been given to the Borrower by the Agent;
(d) any of the Borrower, the Guarantors or any of their respective Subsidiaries shall fail to perform any other term, covenant or agreement contained in §8.20, §9.3, §9.4, §9.5 or §9.6;
(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 which they are required to perform (other than those specified in the other subclauses of this §12 or in the other Loan Documents);
(f) any representation or warranty 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, 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;
(g) any of the Borrower, the Guarantors or any of their respective Subsidiaries shall fail to pay when due (including, without limitation, at maturity), or within any applicable period of grace, any principal, interest or other amount on account any obligation for borrowed money or credit received or other Indebtedness (including under any Derivatives Contract), or shall fail to observe or perform any term, covenant or agreement contained in any agreement by which it is bound, evidencing or securing any obligation for borrowed money or credit received or other Indebtedness (including under any Derivatives Contract) 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 the termination or other settlement of such obligation; 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 in the aggregate obligations for borrowed money or credit received or other Recourse Indebtedness totaling in excess of $15,000,000.00 50,000,000.00 or Non-Recourse Indebtedness in excess of $60,000,000.0075,000,000.00;
(h) any of the Borrower, the Guarantors or any of their respective Subsidiaries (i) shall make an assignment for the benefit of creditors, or admit in writing its general 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 for it or any substantial part of its assets, (ii) shall commence any case or other proceeding relating to 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 (iii) shall take any action to authorize or in furtherance of any of the foregoing;
(i) a petition or application shall be filed for the appointment of a trustee or other custodian, liquidator or receiver of any of the Borrower, the Guarantors or any of their respective Subsidiaries or any substantial part of the assets of any thereof, or a case or other proceeding shall be commenced against any 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, and any such Person shall indicate its approval thereof, consent thereto or acquiescence therein or such petition, application, case or proceeding shall not have been dismissed within sixty (60) days following the filing or commencement thereof;
(j) a decree or order is entered appointing a trustee, custodian, liquidator or receiver for any of the Borrower, the Guarantors or any of their respective Subsidiaries or adjudicating any 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 any such Person in an involuntary case under federal bankruptcy laws as now or hereafter constituted;
(k) there shall remain in force, undischarged, unsatisfied and unstayed, for more than sixty (60) days, whether or not consecutive, one or more uninsured or unbonded final judgments, orders, awards, writs execution or attachments against the Borrower, Guarantors or any of their respective Subsidiaries that, either individually or in the aggregate, exceed $10,000,000.0050,000,000.00;
(l) any of the Loan Documents, the Contribution Agreement, the Equipment Intercreditor Agreement or the Bond Subordination and Standstill Agreements 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, the Contribution Agreement, the Equipment Intercreditor Agreement or the Bond Subordination and Standstill Agreements Agreement shall be commenced by or on behalf of the Borrower or any of 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, the Contribution Agreement, the Equipment Intercreditor Agreement or the Bond Subordination and Standstill Agreements 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 of their respective Subsidiaries shall occur or any sale, transfer or other disposition of the assets of any of the Borrower, 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;
(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 their respective Subsidiaries to the PBGC or such Guaranteed Pension Plan in an aggregate amount exceeding $10,000,000.00 20,000,000.00 and (x) 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 (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) the Borrower, any Guarantor or any of their respective Subsidiaries 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 the Borrower, the Guarantors 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 Unencumbered Asset Pool Properties;
(p) any Change of Control shall occur;
(q) an Event of Default under any of the other Loan Documents shall occur;
(r) notwithstanding anything herein to the contrary (including without limitation §12.1(g)), the Borrower and the Guarantors hereby expressly agree that any “Event of Default” (as defined in the Equipment Loan Documents) (which shall be deemed to include maturity of the debt evidenced and secured by the Equipment Loan Documents or any other occurrence which would give the Equipment Lender the right to exercise remedies under the Equipment Loan Documents) shall constitute and be deemed to be an Event of Default under this Agreement for which no right to cure shall be available. Without limiting the foregoing, an “Event of Default” under the Equipment Loan Documents shall conclusively be deemed to have occurred upon the declaration, statement or notice from the Equipment Lender’s as to the existence or occurrence of an “Event of Default” under any of the Equipment Loan Documents[Intentionally Omitted];
(s) Any default, material misrepresentation or breach of warranty in the QTLP Subordination and Standstill Agreement by Borrower or the subordinate lender that is the holder of QTLP Subordinate Note[Intentionally Omitted];
(t) [Intentionally Omitted.]REIT fails to perform any term, covenant or agreement contained in §7.12 which it is required to perform;
(u) Any default, material misrepresentation or breach of warranty in the Bond Subordination and Standstill Agreement by the Authority or the subordinate lender that is the holder of the Bond; then, and in any such event, the 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 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 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 Lenders or the Agent. Upon demand by Agent or the Majority Revolving Credit 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, the Borrower will Cash Collateralize the Letter of Credit Liabilities (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 Lenders as security for any amounts that become payable under the Letters of Credit and all other Obligations and Hedge Obligations in accordance with §2.12. 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 and 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 the Borrower will be released to the Borrower.
Appears in 1 contract
Sources: Credit Agreement (QualityTech, 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, following such events but prior to such notice or lapse of time, “Defaults”) shall occur:
(a) 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, except with respect to the final payment at the state maturity, such failure continues for two (2) Business Days from the date of written notice from Agent;
(b) the Borrower shall fail to pay any interest on the Loans, any reimbursement obligations with respect to Loans within five (5) days of the Letters of Creditdate 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 when the same shall become due and payablewithin five (5) days after notice from Agent, whether at the stated date of maturity or any accelerated date of maturity or at any other date fixed for payment;
(c) the Borrower shall fail to comply with or the covenant contained in §9.1 and such failure shall continue for five (5) Business Days after written notice thereof shall have been given to the Borrower by the Agent;
(d) any of the Borrower, the Guarantors other Credit Parties or any of their respective Subsidiaries shall fail to perform any other term, covenant or agreement contained in (i) §8.207.6(a), (ii) §9.38, or (iii) §9.4, §9.5 or §9.69;
(ed) any of the Borrower, Borrower or the Guarantors or any of their respective Subsidiaries 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 the other subclauses of this §12 or in the other Loan Documents), 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 cured within such thirty (30)-day period despite Borrower’s diligent efforts but is susceptible of being cured within ninety (90) days 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 with respect to any defaults under §7.4, §7.5, §7.7, or §7.9, the thirty (30) day cure period described above shall be reduced to a period of fifteen (15) days and no additional cure period shall be provided with respect to such defaults;
(fe) any representation or warranty made by or on behalf of the Borrower, the Guarantors 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, Letter of Credit Request, or in any other document or instrument delivered pursuant to or in connection with this 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 repeatedrepeated except to the extent it is not reasonably expected to have a Material Adverse Effect;
(f) Any (a) Borrower, any other Credit Party, or any of their Subsidiaries defaults under any Recourse Indebtedness, or (b) Borrower or any Subsidiary thereof defaults under any Non- Recourse Indebtedness in an aggregate outstanding amount equal to or greater than $100,000,000 with respect to all uncured defaults at any time, in each case, after the exhaustion of all applicable cure periods;
(g) any of the Borrower, the Guarantors or any of their respective Subsidiaries shall fail to pay when due (including, without limitation, at maturity), or within any applicable period of grace, any principal, interest Borrower or other amount on account any obligation for borrowed money or credit received or other Indebtedness (including under any Derivatives Contract)Credit Party, or shall fail to observe or perform any term, covenant or agreement contained in any agreement by which it is bound, evidencing or securing any obligation for borrowed money or credit received or other Indebtedness (including under any Derivatives Contract) 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 the termination or other settlement of such obligation; 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 in the aggregate obligations for borrowed money or credit received or other Recourse Indebtedness totaling in excess of $15,000,000.00 or Non-Recourse Indebtedness in excess of $60,000,000.00;
(h) any of the Borrower, the Guarantors or any of their respective Subsidiaries (i) shall make an assignment for the benefit of creditors, or admit in writing its general 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 for it or any substantial part of its assets, (ii) shall commence any case or other proceeding relating to 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 (iii) shall take any action to authorize or in furtherance of any of the foregoing;
(ih) a petition or application shall be filed (other than by any Lender) for the appointment of a trustee or other custodian, liquidator or receiver of any of the Borrower, the Guarantors Borrower or any of their respective Subsidiaries other Credit Party or any substantial part of the assets of any thereof, or a case or other proceeding shall be commenced (other than by any Lender) against any 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, and any such Person shall indicate its approval thereof, consent thereto or acquiescence therein or such petition, application, case or proceeding shall not have been dismissed within sixty ninety (6090) days following the filing or commencement thereof;
(ji) a decree or order is entered appointing a trustee, custodian, liquidator or receiver for any of the Borrower, the Guarantors Borrower or any of their respective Subsidiaries other Credit Party or adjudicating any 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 any such Person in an involuntary case under federal bankruptcy laws as now or hereafter constituted;
(kj) there shall remain in force, undischarged, unsatisfied and unstayed, for more than sixty (60) days, whether or not consecutive, one or more uninsured or unbonded final judgments, orders, awards, writs execution or attachments judgments against the Borrower, Guarantors Borrower or any of their respective Subsidiaries Credit Party that, either individually or in the aggregate, exceed in excess of $10,000,000.005,000,000.00 in the case of the Borrower or $500,000.00 in the case of any Credit Party;
(lk) any of the material Loan Documents, the Contribution Agreement, the Equipment Intercreditor Agreement or the Subordination and Standstill Agreements 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 LendersRequired Lenders (and not reinstated within thirty (30) days), or any action at law, suit in equity or other legal proceeding to cancel, revoke or rescind any of the material Loan Documents, the Contribution Agreement, the Equipment Intercreditor Agreement or the Subordination and Standstill Agreements Documents shall be commenced by or on behalf of the Borrower or any of the GuarantorsCredit 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, the Contribution Agreement, the Equipment Intercreditor Agreement or the Subordination and Standstill Agreements Documents is illegal, invalid or unenforceable in accordance with the terms thereofthereof (and such action is not stayed or overturned within thirty (30) days);
(ml) any dissolution, termination, partial or complete liquidation, merger or consolidation of any of the Borrower, the Guarantors or any of their respective Subsidiaries Credit Parties shall occur or any sale, transfer or other disposition of the assets of any of the Borrower, the Guarantors or any of their respective Subsidiaries Credit Parties shall occur other than as permitted under the terms of this Agreement or the other Loan Documents;
(m) the failure of any Credit Party or its Subsidiaries to remediate within the time period permitted 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) a material environmental matter with respect to Hazardous Substances related to (i) Collateral 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;
(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 would be expected to result in liability of any of the Borrower, the Guarantors or any of their respective Subsidiaries Credit Parties to pay money to the PBGC or such Guaranteed Pension Plan in an aggregate amount exceeding $10,000,000.00 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 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;; or
(o) the Borrower, any Guarantor or any of their respective Subsidiaries 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 the Borrower, the Guarantors 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 Unencumbered Asset Pool Properties;
(p) any Change of Control shall occur;
(q) an Event of Default under any of the other Loan Documents shall occur;
(r) notwithstanding anything herein to the contrary (including without limitation §12.1(g)), the Borrower and the Guarantors hereby expressly agree that any “Event of Default” (as defined in the Equipment Loan Documents) (which shall be deemed to include maturity of the debt evidenced and secured by the Equipment Loan Documents or any other occurrence which would give the Equipment Lender the right to exercise remedies under the Equipment Loan Documents) shall constitute and be deemed to be an Event of Default under this Agreement for which no right to cure shall be available. Without limiting the foregoing, an “Event of Default” under the Equipment Loan Documents shall conclusively be deemed to have occurred upon the declaration, statement or notice from the Equipment Lender’s as to the existence or occurrence of an “Event of Default” under any of the Equipment Loan Documents;
(s) Any default, material misrepresentation or breach of warranty in the QTLP Subordination and Standstill Agreement by Borrower or the subordinate lender that is the holder of QTLP Subordinate Note;
(t) [Intentionally Omitted.]
(u) Any default, material misrepresentation or breach of warranty in the Bond Subordination and Standstill Agreement by the Authority or the subordinate lender that is the holder of the Bond; then, and in upon any such eventEvent of Default, the 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 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 Borrower; provided that in the event of any Event of Default specified in §12.1(h12.1(g), §12.1(i12.1(h) or §12.1(j12.1(i), 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 Lenders or the Agent. Upon demand by Agent or the Majority Revolving Credit 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, the Borrower will Cash Collateralize the Letter of Credit Liabilities (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 Lenders as security for any amounts that become payable under the Letters of Credit and all other Obligations and Hedge Obligations in accordance with §2.12. 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 and 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 the Borrower will be released to 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 or lapse of time, “Defaults”) shall occur:
(a) 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) the Borrower shall fail to pay any interest on the Loans, any reimbursement obligations with respect to the Letters of Credit, Loans or any fees or other sums due hereunder or under any of the other Loan Documents or any fee letter (including, without limitation, amounts due under §8.16) 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 and such failure continues for paymentthree (3) days;
(c) the Borrower shall fail to comply with the covenant contained in §9.1 and such failure shall continue for five (5) Business Days after written notice thereof shall have been given to the Borrower by the Agent;
(d) any of the Borrower, the Guarantors Trust or any of their respective Subsidiaries shall fail to perform comply, or to cause the Trust to comply, as the case may be, with any other term, covenant or agreement 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; §§8.4 through §810, inclusive; §8.12; §8.13; §8.15; §8.19; §8.20, ; §9.3, 9; §9.4, 10 and §9.5 or §9.611;
(ed) any of the Borrower, the Guarantors 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 which they are required to perform (other than those specified elsewhere in the other subclauses of this §12 or in the other Loan Documents)14) and such failure continues for thirty (30) days;
(fe) any representation or warranty made by or on behalf of the Borrower, the Guarantors Trust 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, 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;
(gf) any of the Borrower, the Guarantors Trust or any of its Subsidiaries or, to the extent of Recourse to the Borrower, the Trust or such Subsidiaries thereunder, any Partially-Owned Entity or other of their respective Subsidiaries Affiliates, shall fail to pay when due (including, without limitation, at maturity)due, or within any applicable period of grace, any principalConsolidated Total Indebtedness which is in excess of (i) $5,000,000, interest either individually or other amount on account any obligation for borrowed money in the aggregate, if such Indebtedness is without Recourse and (ii) $1,000,000, either individually or credit received or other in the aggregate, if such Indebtedness (including under any Derivatives Contract)is Recourse, or shall fail to observe or perform any material term, covenant covenant, condition or agreement contained in any agreement agreement, document or instrument by which it is boundbound evidencing, evidencing securing or securing any obligation for borrowed money or credit received or other otherwise relating to such Consolidated Total Indebtedness (including under any Derivatives Contract) for such period of time as would permit (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 (i) $5,000,000, either individually or in the aggregate, if such Indebtedness is without Recourse and (ii) $1,000,000, either individually or in the aggregate, if such Indebtedness is Recourse, to accelerate the maturity thereof or require the termination or other settlement of such obligation; 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 in the aggregate obligations for borrowed money or credit received or other Recourse Indebtedness totaling in excess of $15,000,000.00 or Non-Recourse Indebtedness in excess of $60,000,000.00thereof;
(hg) any of the Borrower▇▇▇▇▇▇▇ OP, ▇▇▇▇▇▇▇ III, the Guarantors Trust or any of their respective Subsidiaries (i) Subsidiaries, ▇▇▇▇▇▇▇ Management or ▇▇▇▇▇▇▇ Property LLC shall make an assignment for the benefit of creditors, or admit in writing its general 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 for it of any of ▇▇▇▇▇▇▇ OP, ▇▇▇▇▇▇▇ III, the Trust or any of their respective Subsidiaries or of any substantial part of its assets, (ii) the properties or assets of any of such parties or shall commence any case or other proceeding relating to it any of ▇▇▇▇▇▇▇ OP, ▇▇▇▇▇▇▇ III, the Trust or any 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 (iii) shall take any action to authorize or in furtherance of any of the foregoing;
(i) a , or if any such petition or application shall be filed for the appointment of a trustee or other custodian, liquidator or receiver of any of the Borrower, the Guarantors or any of their respective Subsidiaries or any substantial part of the assets of any thereof, or a such case or other proceeding shall be commenced against any such Person under of ▇▇▇▇▇▇▇ OP, ▇▇▇▇▇▇▇ III, the Trust or any bankruptcyof their respective Subsidiaries and (i) any of ▇▇▇▇▇▇▇ OP, reorganization▇▇▇▇▇▇▇ III, arrangement, insolvency, readjustment the Trust or any of debt, dissolution or liquidation or similar law of any jurisdiction, now or hereafter in effect, and any such Person their respective Subsidiaries shall indicate its approval thereof, consent thereto or acquiescence therein or (ii) any such petition, application, case or other proceeding shall not have been dismissed within sixty continue undismissed, or unstayed and in effect, for a period of forty-five (6045) days following the filing or commencement thereofdays;
(jh) a decree or order is entered appointing a any trustee, custodian, liquidator or receiver for or adjudicating any of the Borrower▇▇▇▇▇▇▇ OP, ▇▇▇▇▇▇▇ III, the Guarantors Trust or any of their respective Subsidiaries Subsidiaries, ▇▇▇▇▇▇▇ Management or adjudicating any such Person, ▇▇▇▇▇▇▇ Property LLC 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 of ▇▇▇▇▇▇▇ OP, ▇▇▇▇▇▇▇ III, the Trust or any of their respective Subsidiaries, ▇▇▇▇▇▇▇ Management or ▇▇▇▇▇▇▇ Property LLC in an involuntary case under federal bankruptcy laws as now or hereafter constituted;
(ki) there shall remain in force, undischarged, unsatisfied and unstayed, for more than sixty thirty (6030) days, whether or not consecutive, one or more uninsured or unbonded any final judgmentsjudgment that is not fully insured against any of ▇▇▇▇▇▇▇ OP, orders▇▇▇▇▇▇▇ III, awards, writs execution or attachments against the Borrower, Guarantors Trust or any of their respective Subsidiaries that, either individually or with other outstanding uninsured final judgments, undischarged, unsatisfied and unstayed, against any of such parties exceeds in the aggregate, exceed aggregate $10,000,000.001,000,000;
(lj) any of the Loan Documents, the Contribution Agreement, the Equipment Intercreditor Agreement Documents or the Subordination and Standstill Agreements any provision of any Loan Document shall be canceled, terminated, revoked or rescinded otherwise than in accordance with the terms thereof (other than the Guaranty, which may not be terminated without the prior consent of the Agent) or with the express prior written agreement, consent or approval of the LendersAgent, 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, the Contribution Agreement, the Equipment Intercreditor Agreement or the Subordination and Standstill Agreements Documents shall be commenced by or on behalf of the Borrower or any of its Subsidiaries or the GuarantorsTrust or any of its Subsidiaries, or any court or any other governmental or regulatory authority or agency of competent jurisdiction shall make a determinationdetermination that, or issue a judgment, order, decree or ruling, ruling to the effect that that, any one or more of the Loan Documents, the Contribution Agreement, the Equipment Intercreditor Agreement or the Subordination and Standstill Agreements Documents is illegal, invalid or unenforceable in accordance with the as to any material terms thereof; the Guaranty shall be terminated, revoked or rescinded; or the Agent shall at any time fail to have a perfected, first-priority pledge of and security interest in the equity interests of each entity owning any Eligible Unencumbered Property;
(mk) any dissolution, termination, partial “Event of Default” or complete liquidation, merger or consolidation default (after notice and expiration of any period of grace, to the Borrowerextent provided), the Guarantors as defined or provided in any of their respective Subsidiaries shall occur or any sale, transfer or other disposition of the assets of any of the Borrower, 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, shall occur and be continuing;
(nl) with respect to any Guaranteed Pension Plan, an ERISA Reportable Event shall have occurred and the Required Lenders Agent 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 Borrower or any of their respective its Subsidiaries or the Trust or any of its Subsidiaries to the PBGC or such Guaranteed Pension Plan in an aggregate amount exceeding $10,000,000.00 1,000,000 and (x) 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 (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;
(om) subject to the Borrower’s ability to remove Real Estate Assets from the Borrowing Base Pool in accordance with the provisions set forth below in this §14, any Guarantor or any of their respective Subsidiaries or any shareholder, officer, director, partner or member the failure of any of them shall be indicted for a federal crime, a punishment for which could include the forfeiture of (i) any assets Real Estate Assets being included from time to time as part of the Borrower, the Guarantors or Borrowing Base Pool to comply with any of their respective Subsidiaries which the conditions set forth in the good faith judgment definition of the Required Lenders could have a Material Adverse Effect, or (ii) the Eligible Unencumbered Asset Pool Properties;
(pn) the failure of ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, for any Change reason, to cease to retain the titles of Control shall occur;
President of ▇▇▇▇▇▇▇ Management and Chairman of ▇▇▇▇▇▇▇ OP and to perform the functions typically performed under such respective offices and to be actively involved in strategic planning and decision-making for the Trust, unless within six (q6) an Event months after such failure, the Board of Default under Directors or Board of Trustees has duly elected or appointed a qualified substitute to replace such individual who is acceptable to the Agent in its sole discretion (as notified to the Borrower by the Agent in writing); or the occurrence of any transaction in which any “person” or “group” (within the meaning of Section 13(d) and 14(d)(2) of the other Loan Documents shall occur;
(rSecurities Exchange Act of 1934) notwithstanding anything herein to becomes the contrary (including without limitation §12.1(g)), the Borrower and the Guarantors hereby expressly agree that any “Event of Defaultbeneficial owner” (as defined in Rule 13d-3 under the Equipment Loan Documents) (which shall be deemed Securities Exchange Act of 1934), directly or indirectly, of a sufficient number of voting rights applicable to include maturity the Trust ordinarily entitled to vote in the election of directors or trustees, empowering such “person” or “group” to elect a majority of the debt evidenced and secured Board of Directors or Board of Trustees of the Trust, who did not have such power before such transaction; or during any twelve-month period on or after the Closing Date, individuals who at the beginning of such period constituted the Board of Trustees of the Trust (together with any new directors whose election by the Equipment Loan Documents Board of Trustees or whose nomination for election by the shareholders of the Trust was approved by a vote of at least a majority of the members of the Board of Trustees then in office who either were members of the Board of Trustees at the beginning of such period or whose election or nomination for election was previously so approved) ceased for any reason to constitute a majority of the members of the Board of Trustees of the Trust then in office; or
(o) without limitation of the other occurrence which would give provisions of this §14.1, (i) the Equipment Lender the right to exercise remedies under the Equipment Loan Documents) Trust shall constitute and be deemed at any time fail to be an Event the sole general partner of Default under this Agreement for which no right to cure ▇▇▇▇▇▇▇ OP or shall at any time be available. Without limiting the foregoing, an “Event in contravention of Default” under the Equipment Loan Documents shall conclusively be deemed to have occurred upon the declaration, statement or notice from the Equipment Lender’s as to the existence or occurrence of an “Event of Default” under any of the Equipment Loan Documents;
(s) Any default, material misrepresentation or breach of warranty requirements contained in the QTLP Subordination last paragraph of §9.2 hereof, or §9.3 (including, without limitation, the last paragraph of §9.3), (ii) ▇▇▇▇▇▇▇ OP shall at any time fail to be the sole general partner and Standstill the sole limited partner of ▇▇▇▇▇▇▇ III, (iii) the Management Agreement by Borrower shall be terminated, amended or modified without the subordinate lender that is the holder of QTLP Subordinate Note;
(t) [Intentionally Omitted.]
(u) Any default, material misrepresentation or breach of warranty in the Bond Subordination and Standstill Agreement by the Authority or the subordinate lender that is the holder prior written consent of the BondAgent, or (iv) ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ shall fail to be the 100% legal and beneficial equity interests in ▇▇▇▇▇▇▇ Management or ▇▇▇▇▇▇▇ Property LLC; then, and in any such event, so long as the same may be continuing, the Agent may, and upon the request of the Required Majority Lenders shall, by notice in writing to the Borrower declare all amounts owing with respect to this Agreement, the Notes, the Letters of 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 any kind, all of which are hereby expressly waived by the Borrower, the Trust and each of their respective Subsidiaries; provided that in the event of any Event of Default specified in §12.1(h), §12.1(i14.1(g) or §12.1(j14.1(h), 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 Lenders or the Agent or action by the Lenders or the Agent. Upon demand by Agent or Without limitation of the Majority Revolving Credit Lenders in their absolute and sole discretion after foregoing, upon the occurrence of an Event of DefaultDefault and/or the acceleration of the Loans or other enforcement action under any Loan Document (including the Pledge Agreement), the Agent shall have the right to terminate the Management Agreement, effective on the date of such termination (or such later date as the Agent may elect). 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 regardless of whether the conditions precedent in this Agreement for a Revolving Credit Loan have been satisfiedsubject to, 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 §8.13 and held by Agent as security for any amounts that become payable under the Letters of Credit and from 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 Defaultcovenant calculations under §10 or otherwise, the Borrower will Cash Collateralize the Letter of Credit Liabilities shall be permitted a period not to exceed five (in an amount equal 5) days to submit to the amount Agent (with copies to the Agent for each Bank) a compliance certificate in the form of Exhibit C-1 hereto evidencing compliance with §2.1 and with all undrawn Letters of Credit). Such amounts the covenants set forth in §10 (with calculations evidencing such compliance after excluding from such covenants all Net Operating Income and Consolidated EBITDA generated by the Real Estate Asset to be excluded from the Borrowing Base Pool) and with the Unencumbered 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 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 in accordance with §2.12. 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 and 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 the Borrower will be released to the Borrowercontinuing.
Appears in 1 contract
Sources: Revolving Credit Agreement (Hartman Commercial Properties Reit)
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 or lapse of time, “Defaults”) shall occur:
(a) 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) the Borrower shall fail to pay any interest on the Loans, any reimbursement obligations with respect to the Letters of Credit, or any fees or 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;
(c) the Borrower shall fail to comply with the covenant contained in §9.1 and such failure shall continue for five (5) Business Days after written notice thereof shall have been given to the Borrower by the Agent;
(d) any of the Borrower, the Guarantors or any of their respective Subsidiaries shall fail to perform any other term, covenant or agreement contained in §8.20, §9.3, §9.4, §9.5 or §9.6;
(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 which they are required to perform (other than those specified in the other subclauses of this §12 or in the other Loan Documents);
(f) any representation or warranty 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, 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;
(g) any of the Borrower, the Guarantors or any of their respective Subsidiaries shall fail to pay when due (including, without limitation, at maturity), or within any applicable period of grace, any principal, interest or other amount on account any obligation for borrowed money or credit received or other Indebtedness (including under any Derivatives ContractContract included in Indebtedness), or shall fail to observe or perform any term, covenant or agreement contained in any agreement by which it is bound, evidencing or securing any obligation for borrowed money or credit received or other Indebtedness (including under any Derivatives ContractContract included in 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 or require the termination or other settlement of such obligation; 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 in the aggregate obligations for borrowed money or credit received or other Recourse Indebtedness totaling in excess of $15,000,000.00 50,000,000.00 or Non-Recourse Indebtedness in excess of $60,000,000.00100,000,000.00;
(h) any of the Borrower, the Guarantors or any of their respective Subsidiaries (i) shall make an assignment for the benefit of creditors, or admit in writing its general 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 for it or any substantial part of its assets, (ii) shall commence any case or other proceeding relating to 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 (iii) shall take any action to authorize or in furtherance of any of the foregoing;
(i) a petition or application shall be filed for the appointment of a trustee or other custodian, liquidator or receiver of any of the Borrower, the Guarantors or any of their respective Subsidiaries or any substantial part of the assets of any thereof, or a case or other proceeding shall be commenced against any 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, and any such Person shall indicate its approval thereof, consent thereto or acquiescence therein or such petition, application, case or proceeding shall not have been dismissed within sixty (60) days following the filing or commencement thereof;
(j) a decree or order is entered appointing a trustee, custodian, liquidator or receiver for any of the Borrower, the Guarantors or any of their respective Subsidiaries or adjudicating any 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 any such Person in an involuntary case under federal bankruptcy laws as now or hereafter constituted;
(k) there shall remain in force, undischarged, unsatisfied and unstayed, for more than sixty (60) days, whether or not consecutive, one or more uninsured or unbonded final judgments, orders, awards, writs execution or attachments against the Borrower, Guarantors or any of their respective Subsidiaries that, either individually or in the aggregate, exceed $10,000,000.0050,000,000.00;
(l) any of the Loan Documents, the Contribution Agreement, the Equipment Intercreditor Agreement or the Bond Subordination and Standstill Agreements 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, the Contribution Agreement, the Equipment Intercreditor Agreement or the Bond Subordination and Standstill Agreements Agreement shall be commenced by or on behalf of the Borrower or any of 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, the Contribution Agreement, the Equipment Intercreditor Agreement or the Bond Subordination and Standstill Agreements 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 of their respective Subsidiaries shall occur or any sale, transfer or other disposition of the assets of any of the Borrower, 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;
(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 their respective Subsidiaries to the PBGC or such Guaranteed Pension Plan in an aggregate amount exceeding $10,000,000.00 20,000,000.00 and (x) 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 (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) the Borrower, any Guarantor or any of their respective Subsidiaries 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 the Borrower, the Guarantors 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 Unencumbered Asset Pool Properties;
(p) any Change of Control shall occur;
(q) an Event of Default under any of the other Loan Documents shall occur;
(r) notwithstanding anything herein to the contrary (including without limitation §12.1(g)), the Borrower and the Guarantors hereby expressly agree that any “Event of Default” (as defined in the Equipment Loan Documents) (which shall be deemed to include maturity of the debt evidenced and secured by the Equipment Loan Documents or any other occurrence which would give the Equipment Lender the right to exercise remedies under the Equipment Loan Documents) shall constitute and be deemed to be an Event of Default under this Agreement for which no right to cure shall be available. Without limiting the foregoing, an “Event of Default” under the Equipment Loan Documents shall conclusively be deemed to have occurred upon the declaration, statement or notice from the Equipment Lender’s as to the existence or occurrence of an “Event of Default” under any of the Equipment Loan Documents[Intentionally Omitted];
(s) Any default, material misrepresentation or breach of warranty in the QTLP Subordination and Standstill Agreement by Borrower or the subordinate lender that is the holder of QTLP Subordinate Note[Intentionally Omitted];
(t) [Intentionally Omitted.]REIT fails to perform any term, covenant or agreement contained in §7.12 which it is required to perform;
(u) Any default, material misrepresentation or breach of warranty in the Bond Subordination and Standstill Agreement by the Authority DAFC or the subordinate lender that is the holder of the BondBond Subordinate Debt; then, and in any such event, the 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 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 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 Lenders or the Agent. Upon demand by Agent or the Majority U.S. Dollar Revolving Credit 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 U.S. Dollar Revolving Credit Loan have been satisfied, the U.S. Dollar Revolving Credit Lenders will cause a U.S. Dollar 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, the Borrower will Cash Collateralize the Letter of Credit Liabilities (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 Lenders as security for any amounts that become payable under the Letters of Credit and all other Obligations and Hedge Obligations in accordance with §2.12. 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 and 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 the Borrower will be released to 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 or lapse of time, “Defaults”) shall occur:
(a) 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) the Borrower shall fail to pay any interest on the Loans, any reimbursement obligations with respect to the Letters of Credit, Loans or any fees or other sums due hereunder or under any of the other Loan Documents or any fee letter (including, without limitation, amounts due under §8.16) 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 and such failure continues for paymentthree (3) days;
(c) the Borrower shall fail to comply with the covenant contained in §9.1 and such failure shall continue for five (5) Business Days after written notice thereof shall have been given to the Borrower by the Agent;
(d) any of the Borrower, the Guarantors Trust or any of their respective Subsidiaries shall fail to perform comply, or to cause the Trust to comply, as the case may be, with any other term, covenant or agreement 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; §§8.4 through §8.10, inclusive; §8.12; §8.13; §8.15; §8.19; §8.20, ; §9.3, 9; §9.4, 10 and §9.5 or §9.611;
(ed) any of the Borrower, the Guarantors 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 which they are required to perform (other than those specified elsewhere in the other subclauses of this §12 or in the other Loan Documents)14) and such failure continues for thirty (30) days;
(fe) any representation or warranty made by or on behalf of the Borrower, the Guarantors Trust 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, 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;
(gf) any of the Borrower, the Guarantors Trust or any of its Subsidiaries or, to the extent of Recourse to the Borrower, the Trust or such Subsidiaries thereunder, any Partially-Owned Entity or other of their respective Subsidiaries Affiliates, shall fail to pay when due (including, without limitation, at maturity), or within any applicable period of grace, any principal, interest or other amount on account any obligation Indebtedness for borrowed money or credit received or other in respect of any Capitalized Leases, which is in excess of (i) $25,000,000, either individually or in the aggregate, if such Indebtedness is Without Recourse and (including under any Derivatives Contract)ii) $5,000,000, either individually or in the aggregate, if such Indebtedness is Recourse, or shall fail to observe or perform any material term, covenant covenant, condition or agreement contained in any agreement agreement, document or instrument by which it is boundbound evidencing, securing or otherwise relating to such Indebtedness or Recourse obligations, evidencing or securing any obligation for borrowed money or credit received or other Indebtedness (including under in respect of any Derivatives Contract) Capitalized Leases for such period of time as would permit (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 (i) $25,000,000, either individually or in the aggregate, if such Indebtedness is without Recourse and (ii) $5,000,000, either individually or in the aggregate, if such Indebtedness is Recourse, to accelerate the maturity thereof or require the termination or other settlement of such obligation; 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 in the aggregate obligations for borrowed money or credit received or other Recourse Indebtedness totaling in excess of $15,000,000.00 or Non-Recourse Indebtedness in excess of $60,000,000.00thereof;
(hg) any of the BorrowerFPLP, the Guarantors Trust or any of their respective Subsidiaries (i) shall make an assignment for the benefit of creditors, or admit in writing its general 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 for it of any of FPLP, the Trust or any of their respective Subsidiaries or of any substantial part of its assets, (ii) the properties or assets of any of such parties or shall commence any case or other proceeding relating to it any of the FPLP, the Trust or any 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 (iii) shall take any action to authorize or in furtherance of any of the foregoing;
(i) a , or if any such petition or application shall be filed for the appointment of a trustee or other custodian, liquidator or receiver of any of the Borrower, the Guarantors or any of their respective Subsidiaries or any substantial part of the assets of any thereof, or a such case or other proceeding shall be commenced against any such Person under of FPLP, the Trust or any bankruptcyof their respective Subsidiaries and (i) any of FPLP, reorganization, arrangement, insolvency, readjustment the Trust or any of debt, dissolution or liquidation or similar law of any jurisdiction, now or hereafter in effect, and any such Person their respective Subsidiaries shall indicate its approval thereof, consent thereto or acquiescence therein or (ii) any such petition, application, case or other proceeding shall not have been dismissed within sixty continue undismissed, or unstayed and in effect, for a period of forty-five (6045) days following the filing or commencement thereofdays;
(jh) a decree or order is entered appointing a any trustee, custodian, liquidator or receiver for or adjudicating any of the BorrowerFPLP, the Guarantors Trust or any of their respective Subsidiaries or adjudicating any 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 any such Person of FPLP, the Trust or any of their respective Subsidiaries in an involuntary case under federal bankruptcy laws as now or hereafter constituted;
(ki) there shall remain in force, undischarged, unsatisfied and unstayed, for more than sixty thirty (6030) days, whether or not consecutive, one or more any uninsured or unbonded final judgmentsjudgment against any of FPLP, orders, awards, writs execution or attachments against the Borrower, Guarantors Trust or any of their respective Subsidiaries that, either individually or with other outstanding uninsured final judgments, undischarged, unsatisfied and unstayed, against any of such parties exceeds in the aggregate, exceed aggregate $10,000,000.002,000,000;
(lj) any of the Loan Documents, the Contribution Agreement, the Equipment Intercreditor Agreement Documents or the Subordination and Standstill Agreements any material provision of any Loan Document shall be 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 LendersAgent, 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, the Contribution Agreement, the Equipment Intercreditor Agreement or the Subordination and Standstill Agreements Documents shall be commenced by or on behalf of the Borrower or any of its Subsidiaries or the GuarantorsTrust or any of its Subsidiaries, or any court or any other governmental or regulatory authority or agency of competent jurisdiction shall make a determinationdetermination that, or issue a judgment, order, decree or ruling, ruling to the effect that that, any one or more of the Loan Documents, the Contribution Agreement, the Equipment Intercreditor Agreement or the Subordination and Standstill Agreements Documents is illegal, invalid or unenforceable in accordance with the as to any material terms thereof;
(mk) any dissolution, termination, partial “Event of Default” or complete liquidation, merger or consolidation default (after notice and expiration of any period of grace, to the Borrowerextent provided, the Guarantors as defined or provided in any of their respective Subsidiaries shall occur or any sale, transfer or other disposition of the assets of any of the Borrower, 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, shall occur and be continuing;
(nl) with respect to any Guaranteed Pension Plan, an ERISA Reportable Event shall have occurred and the Required Majority 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 Borrower or any of their respective its Subsidiaries or the Trust or any of its Subsidiaries to the PBGC or such Guaranteed Pension Plan in an aggregate amount exceeding $10,000,000.00 2,000,000 and (x) 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 (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;
(om) subject to the Borrower’s ability to remove Real Estate Assets from the Unencumbered Pool in accordance with the provisions set forth below in this §14, any Guarantor or any of their respective Subsidiaries or any shareholder, officer, director, partner or member the failure of any of them shall be indicted for a federal crime, a punishment for which could include the forfeiture Real Estate Assets being included from time to time as part of the Unencumbered Pool to comply with any of the conditions set forth in the definition of Eligible Unencumbered Properties;
(n) the failure of any two of (i) ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, for any assets reason, to cease to retain the titles of President, Chief Executive Officer and Trustee of the Borrower, the Guarantors or any of their respective Subsidiaries which in the good faith judgment of the Required Lenders could have a Material Adverse EffectTrust, or (ii) ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, for any reason, to cease to retain the Unencumbered Asset Pool Properties;
titles of Executive Vice President and Chief Investment Officer, or (piii) ▇▇▇▇▇ ▇. ▇▇▇▇, for any Change reason, to cease to retain the titles of Control shall occur;
Senior Vice President and Chief Financial Officer, and in each case, to perform the functions typically performed under such respective offices and to be actively involved in strategic planning and decision-making for the Trust, unless within six (q6) an Event months after such failure, the Board of Default under Directors or Board of Trustees has duly elected or appointed a qualified substitute to replace such individual who is acceptable to the Majority Lenders in their sole discretion (as notified to the Borrower by the Agent in writing); or the occurrence of any transaction in which any “person” or “group” (within the meaning of Section 13(d) and 14(d)(2) of the other Loan Documents shall occur;
(rSecurities Exchange Act of 1934) notwithstanding anything herein to becomes the contrary (including without limitation §12.1(g)), the Borrower and the Guarantors hereby expressly agree that any “Event of Defaultbeneficial owner” (as defined in Rule 13d-3 under the Equipment Loan Documents) (which shall be deemed to include maturity Securities Exchange Act of 1934), directly or indirectly, of a sufficient number of shares of all classes of stock then outstanding of the debt evidenced and secured Trust ordinarily entitled to vote in the election of directors, empowering such “person” or “group” to elect a majority of the Board of Directors or Board of Trustees of the Trust, who did not have such power before such transaction; or during any twelve-month period on or after the Closing Date, individuals who at the beginning of such period constituted the Board of Trustees of the Trust (together with any new directors whose election by the Equipment Loan Documents Board of Trustees or whose nomination for election by the shareholders of the Trust was approved by a vote of at least a majority of the members of the Board of Trustees then in office who either were members of the Board of Trustees at the beginning of such period or whose election or nomination for election was previously so approved) ceased for any reason to constitute a majority of the members of the Board of Trustees of the Trust then in office; or
(o) without limitation of the other occurrence which would give provisions of this §14.1, the Equipment Lender the right to exercise remedies under the Equipment Loan Documents) Trust shall constitute and be deemed at any time fail to be an Event the sole general partner of Default under this Agreement for which no right to cure FPLP or shall at any time be available. Without limiting the foregoing, an “Event in contravention of Default” under the Equipment Loan Documents shall conclusively be deemed to have occurred upon the declaration, statement or notice from the Equipment Lender’s as to the existence or occurrence of an “Event of Default” under any of the Equipment Loan Documents;
(s) Any default, material misrepresentation or breach of warranty requirements contained in the QTLP Subordination and Standstill Agreement by Borrower last paragraph of §9.2 hereof, or §9.3 (including, without limitation, the subordinate lender that is the holder last paragraph of QTLP Subordinate Note;
(t) [Intentionally Omitted.]
(u) Any default, material misrepresentation or breach of warranty in the Bond Subordination and Standstill Agreement by the Authority or the subordinate lender that is the holder of the Bond§9.3); then, and in any such event, so long as the same may be continuing, the Agent may, and upon the request of the Required Majority Lenders shall, by notice in writing to the Borrower declare all amounts owing with respect to this Agreement, the Notes, the Letters of 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 any kind, all of which are hereby expressly waived by the Borrower, the Trust and each of their respective Subsidiaries; provided that in the event of any Event of Default specified in §12.1(h), §12.1(i14.1(g) or §12.1(j14.1(h), 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 Lenders or the Agent or action by the Lenders or the Agent. Upon demand by Agent Notwithstanding the foregoing provisions of this §14.1, in the event of a Default or the Majority Revolving Credit Lenders in their absolute and sole discretion after the occurrence of an Event of DefaultDefault arising as a result of the inclusion of any Real Estate Asset in the Unencumbered 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 Unencumbered Pool in accordance with, and regardless of whether the conditions precedent in this Agreement for a Revolving Credit Loan have been satisfiedsubject to, 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 §8.13 and held by Agent as security for any amounts that become payable under the Letters of Credit and from 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 Defaultcovenant calculations under §10 or otherwise, the Borrower will Cash Collateralize the Letter of Credit Liabilities shall be permitted a period not to exceed five (in an amount equal 5) days to submit to the amount Agent (with copies to the Agent for each Lender) a compliance certificate in the form of Exhibit C hereto evidencing compliance with §2.1 and with all undrawn Letters of Credit). Such amounts 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 Unencumbered Pool) and with the Unencumbered Property Conditions, and otherwise certifying that, after giving effect to the exclusion of such Real Estate Asset from the Unencumbered Pool, no Default or Event of Default 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 in accordance with §2.12. 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 and 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 the Borrower will be released to the Borrowercontinuing.
Appears in 1 contract
Sources: Revolving Credit 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 or lapse of time, “"Defaults”") shall occur:
(a) 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) the Borrower shall fail to pay any interest on the Loans, any reimbursement obligations with respect to the Letters of Credit, Loans or any fees or other sums due hereunder or under any of the other Loan Documents when Documents, within three (3) days from 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;
(c) the Borrower or REA 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 12.1B(a) shall have ended;
(d) the Borrower or REA shall fail to comply with any covenant contained in Section 9.2, Section 9.3, Section 9.4 or Section 9.5 and such failure shall continue for five thirty (530) Business Days days after written notice thereof shall have been given to the Borrower by the Agent;
(d) any of the Borrower, the Guarantors or any of their respective Subsidiaries shall fail to perform any other term, covenant or agreement contained in §8.20, §9.3, §9.4, §9.5 or §9.6;
(e) any of the Borrower, REA, the Guarantors 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 the other subclauses of this §12 Section 12) and such failure shall continue for thirty (30) days after written notice thereof shall have been given to the Borrower by the Agent or in the other Loan Documents)such longer period, not to exceed an additional sixty (60) days, as may be required to cure such default, PROVIDED that cure is being diligently pursued;
(f) any representation or warranty made by or on behalf of the Borrower, REA, the Guarantors 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, any advance of a Loan, the issuance of any Letter of Credit 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 repeatedrepeated and such representation or warranty shall continue to be false after written notice thereof shall have been given to the Borrower by the Agent and the cure period provided in Section 12.1(B)(c) shall have ended;
(g) any of the Borrower, REA, the Guarantors Guarantors, or any of their respective Subsidiaries (i) shall fail to pay when due (including, without limitation, at maturity), or within any applicable period of grace, any principal, interest or other amount on account any obligation for borrowed money or credit received or other Indebtedness (including under any Derivatives Contract)in a principal amount exceeding $2,000,000, or (ii) shall fail to observe or perform any term, covenant or agreement contained in any agreement by which it is bound, evidencing or securing any obligation for borrowed money or credit received or other Indebtedness (including under any Derivatives Contract) in a principal amount exceeding $2,000,000 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 or require the termination or other settlement of such obligation; 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 in the aggregate obligations for borrowed money or credit received or other Recourse Indebtedness totaling in excess of $15,000,000.00 or Non-Recourse Indebtedness in excess of $60,000,000.00thereof;
(h) any of the Borrower, REA, the Guarantors Guarantors, or any of their respective Subsidiaries Subsidiaries, (i) shall make an assignment for the benefit of creditors, or admit in writing its general 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 for it or any substantial part of its assets, (ii) shall commence any case or other proceeding relating to 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 (iii) shall take any action to authorize or in furtherance of any of the foregoing;
(i) a petition or application shall be filed for the appointment of a trustee or other custodian, liquidator or receiver of any of the Borrower, REA, the Guarantors Guarantors, or any of their respective Subsidiaries or any substantial part of the assets of any thereof, or a case or other proceeding shall be commenced against any 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, and any such Person shall indicate its approval thereof, consent thereto or acquiescence therein or such petition, application, case or proceeding shall not have been dismissed within sixty ninety (6090) days following the filing or commencement thereof;
(j) a decree or order is entered appointing a trustee, custodian, liquidator or receiver for any of the Borrower, REA, the Guarantors Guarantors, or any of their respective Subsidiaries or adjudicating any 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 any such Person in an involuntary case under federal bankruptcy laws as now or hereafter constituted;
(k) there shall remain in force, undischarged, unsatisfied and unstayed, for more than sixty (60) days, whether or not consecutive, one or more uninsured or unbonded final judgments, orders, awards, writs execution or attachments judgments against any of the Borrower, Guarantors REA, the Guarantors, or any of their respective Subsidiaries that, either individually or in the aggregate, exceed $10,000,000.002,000,000;
(l) any of the Loan Documents, the Contribution Agreement, the Equipment Intercreditor Agreement or the Subordination and Standstill Agreements 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 Lenders, or any action at law, suit in equity or other legal proceeding to cancel, revoke or rescind any of the Loan Documents, the Contribution Agreement, the Equipment Intercreditor Agreement or the Subordination and Standstill Agreements Documents shall be commenced by or on behalf of the Borrower or any of the Borrower, REA 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, the Contribution Agreement, the Equipment Intercreditor Agreement or the Subordination and Standstill Agreements 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 REA or any of their respective Subsidiaries Guarantor shall occur or any sale, transfer or other disposition of the assets of any of the Borrower, the Guarantors REA or any of their respective Subsidiaries Guarantor shall occur other than as permitted under the terms of this Agreement or the other Loan Documents;
(n) the Borrower or REA shall fail to comply with the covenant contained in Section 7.19;
(o) all of any portion of a Mortgaged Property (or any interest therein) is forfeited as a result of any criminal or quasi-criminal activity by the owner thereof (or any Person related to the owner thereof);
(p) with respect to any Guaranteed Pension Plan, an ERISA Reportable Event shall have occurred and the Required Majority Lenders shall have determined in their reasonable discretion that such event reasonably could be expected to result in liability of any of the Borrower, REA, the Guarantors or any of their respective Subsidiaries to the PBGC or such Guaranteed Pension Plan in an aggregate amount exceeding $10,000,000.00 2,000,000 and (x) 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 (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;
(oq) ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ shall cease to have chief executive responsibilities of REA, and a competent and experienced successor for such Person shall not be approved by the BorrowerMajority Lenders within six (6) months of such event, any Guarantor or any of their respective Subsidiaries or any shareholder, officer, director, partner or member of any of them shall such approval not to be indicted for a federal crime, a punishment for which could include the forfeiture of (i) any assets of the Borrower, the Guarantors 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 Unencumbered Asset Pool Propertiesunreasonably withheld;
(pr) REA shall fail to pay or perform any Change of Control its obligations under Section 32 or any Guarantor shall occur;fail to pay or perform any of its obligations under its Guaranty; or
(qs) an Event event of Default default under any of the other Loan Documents shall occur;
(r) notwithstanding anything herein to the contrary (including without limitation §12.1(g)), the Borrower and the Guarantors hereby expressly agree that any “Event of Default” (as defined in the Equipment Loan Documents) (which shall be deemed to include maturity of the debt evidenced and secured by the Equipment Loan Documents or any other occurrence which would give the Equipment Lender the right to exercise remedies under the Equipment Loan Documents) shall constitute and be deemed to be an Event of Default under this Agreement for which no right to cure shall be available. Without limiting the foregoing, an “Event of Default” under the Equipment Loan Documents shall conclusively be deemed to have occurred upon the declaration, statement or notice from the Equipment Lender’s as to the existence or occurrence of an “Event of Default” under any of the Equipment Loan Documents;
(s) Any default, material misrepresentation or breach of warranty in the QTLP Subordination and Standstill Agreement by Borrower or the subordinate lender that is the holder of QTLP Subordinate Note;
(t) [Intentionally Omitted.]
(u) Any default, material misrepresentation or breach of warranty in the Bond Subordination and Standstill Agreement by the Authority or the subordinate lender that is the holder of the Bond; then, and in any such event, the Agent may, and upon the request of the Required Majority Lenders shall, by notice in writing to the Borrower declare all amounts owing with respect to this Agreement, the Notes, the Letters of 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 any kind, all of which are hereby expressly waived by the Borrower; provided PROVIDED that in the event of any Event of Default specified in §Section 12.1(h), §Section 12.1(i) or §Section 12.1(j), all such amounts shall become immediately due and payable automatically and without any requirement of presentmentpresentment , demand, protest or other notice of any kind from any of the Lenders or the Agent. Upon demand by Agent or the Majority Revolving Credit 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, the Borrower will Cash Collateralize the Letter of Credit Liabilities (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 Lenders as security for any amounts that become payable under the Letters of Credit and all other Obligations and Hedge Obligations in accordance with §2.12. 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 and 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 the Borrower will be released to the Borrower.
Appears in 1 contract
Sources: Revolving Credit Agreement (American Real Estate Investment Corp)
Events of Default and Acceleration. If any Any 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 or lapse of time, a “DefaultsDefault”) shall occur:
(a) the any Borrower shall fail to pay any principal of the its Loans or any Borrower shall fail to pay 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) the any Borrower shall fail to pay (i) any interest on the its Loans, any reimbursement obligations with respect to the Letters Commitment Fee, any Letter of CreditCredit Fee, any Duration Fee, or any fees or other sums due hereunder or under any of the other Loan Documents Fee Letter, 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;
(c) the Borrower shall fail to comply with the covenant contained in §9.1 , and such failure shall continue for five three (53) Business Days after written notice thereof days; or (ii) any other sums due hereunder or under any of the other Loan Documents, when the same shall have been given 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 such failure shall continue for thirty (30) days;
(c) any of the Borrowers or any of their Restricted Subsidiaries shall fail to comply with any of the Borrower by covenants contained in §§9.1, 9.5.1, the Agentfirst sentence of §9.6, 9.12, 9.14, 10 or 11;
(d) any of the Borrower, the Guarantors Borrowers or any of their respective Restricted Subsidiaries shall fail to perform any other term, covenant or agreement contained in §8.20, §9.3, §9.4, §9.5 or §9.6;
(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 which they are required to perform (other than those specified elsewhere in the other subclauses of this §12 or in 14.1) for thirty (30) days after written notice of such failure has been given to the other Loan Documents)Applicable Borrower by the Administrative Agent;
(fe) any representation or warranty made by or on behalf of any of the Borrower, the Guarantors Borrowers or any of their respective Restricted Subsidiaries in this Credit Agreement or any of the other Loan Document, or any report, certificate, financial statement, request for a Loan, Letter of Credit Request, Documents or in any other document or instrument delivered pursuant to or in connection with this Agreement, any advance of a Loan, the issuance of any Letter of Credit or any of the other Loan Documents Agreement shall prove to have been false in any material respect upon the date when made or deemed to have been made or repeatedmade;
(gf) any of the Borrower, the Guarantors Borrowers or any of their respective Restricted Subsidiaries shall fail to pay when due (including, without limitation, at maturity)due, or within any applicable period of grace, any principalobligation in excess of the aggregate amount of $50,000,000, interest or other amount on account any obligation for borrowed money or credit received or other Indebtedness (including under in respect of any Derivatives Contract)Capitalized Leases, 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 any obligation for borrowed money or credit received or other Indebtedness (including under in respect of any Derivatives Contract) Capitalized Leases 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 the termination or other settlement of such obligation; 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 in the aggregate obligations for borrowed money or credit received or other Recourse Indebtedness totaling in excess of $15,000,000.00 or Non-Recourse Indebtedness in excess of $60,000,000.00thereof;
(hg) any of the Borrower, the Guarantors or Borrowers and any of their respective Restricted Subsidiaries (iother than Immaterial Restricted Subsidiaries) shall make an assignment for the benefit of creditors, or admit in writing its general 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 liquidator, administrator or receiver for it of any of the Borrowers or any of their Restricted Subsidiaries (other than Immaterial Restricted Subsidiaries) or of any substantial part of its assets, the assets of any of the Borrowers or any of their Restricted Subsidiaries (iiother than Immaterial Restricted Subsidiaries) or shall commence any case or other proceeding relating to it any of the Borrowers or any of their Restricted Subsidiaries (other than Immaterial Restricted Subsidiaries) under any bankruptcy, reorganization, arrangement, insolvency, readjustment of debt, dissolution or liquidation or similar law of any jurisdiction, now or hereafter in effectDebtor Relief Law, or (iii) shall take any action to authorize or in furtherance of any of the foregoing;
(i) a , or if any such petition or application shall be filed for the appointment of a trustee or other custodian, liquidator or receiver of any of the Borrower, the Guarantors or any of their respective Subsidiaries or any substantial part of the assets of any thereof, or a such case or other proceeding shall be commenced against any such Person under of the Borrowers or any bankruptcy, reorganization, arrangement, insolvency, readjustment of debt, dissolution their Restricted Subsidiaries (other than Immaterial Restricted Subsidiaries) and the Borrowers or liquidation or similar law any of any jurisdiction, now or hereafter in effect, and any such Person their Restricted Subsidiaries (other than Immaterial Restricted Subsidiaries) shall indicate its their approval thereof, consent thereto or acquiescence therein or such petition, application, case petition or proceeding application shall not have been dismissed within sixty (60) days following the filing or commencement thereof;
(jh) a decree or order is entered appointing a any such trustee, custodian, liquidator liquidator, administrator or receiver for or adjudicating any of the Borrower, the Guarantors Borrowers or any of their respective Restricted Subsidiaries or adjudicating any such Person, (other than Immaterial Restricted 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 such Person of the Borrowers or any Restricted Subsidiary (other than Immaterial Restricted Subsidiaries) of the Borrowers in an involuntary case under federal bankruptcy laws any Debtor Relief Law as now or hereafter constituted;
(ki) there shall remain in force, undischarged, unsatisfied and unstayed, for more than sixty thirty (6030) days, whether or not consecutive, one or more uninsured or unbonded any final judgments, orders, awards, writs execution or attachments judgment against any of the Borrower, Guarantors Borrowers or any of their respective Restricted Subsidiaries that, either individually with other outstanding final judgments, undischarged, against any of the Borrowers or any of their Restricted Subsidiaries exceeds in the aggregate, exceed aggregate $10,000,000.0050,000,000;
(lj) if any of the Loan Documents, the Contribution Agreement, the Equipment Intercreditor Agreement or the Subordination and Standstill Agreements Documents shall be canceledcancelled, terminated, revoked or rescinded otherwise than in accordance with the terms thereof or with the express prior written agreement, consent or approval of the Lenders, or any action at law, suit or in equity or other legal proceeding to cancel, revoke or rescind any of the Loan Documents, the Contribution Agreement, the Equipment Intercreditor Agreement or the Subordination and Standstill Agreements Documents shall be commenced by or on behalf of any of the Borrower Borrowers or any of the Guarantorstheir Restricted 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 determinationdetermination that, or issue a judgment, order, decree or ruling, ruling to the effect that that, any one or more of the Loan Documents, the Contribution Agreement, the Equipment Intercreditor Agreement or the Subordination and Standstill Agreements Documents is illegal, invalid or unenforceable in accordance with the terms thereof;
(mk) any dissolution, termination, partial or complete liquidation, merger or consolidation of any of the Borrower, the Guarantors or any of their respective Subsidiaries shall occur or any sale, transfer or other disposition of the assets of any of the Borrower, 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;
(n) an ERISA Event occurs with respect to any Guaranteed a Pension Plan, an ERISA Reportable Event shall have occurred and the Required Lenders shall have determined in their reasonable discretion that such event Plan or Multiemployer Plan which results or could reasonably could be expected to result in liability under Title IV of ERISA to the Pension Plan, the Multiemployer Plan and/or the PBGC in an aggregate amount in excess of $50,000,000; or (ii) GWI 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 §4201 of the Borrower, the Guarantors or any of their respective Subsidiaries to the PBGC or such Guaranteed Pension ERISA under a Multiemployer Plan in an aggregate amount exceeding in excess of $10,000,000.00 and (x) 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 Plan50,000,000; or (yiii) there is a trustee shall have been appointed by the United States District Court failure of legal compliance with respect to administer any Canadian Plan or Foreign Plan and such Planfailure results or could reasonably be expected to result in accelerated liability in an aggregate amount in excess of $50,000,000; or (ziv) a Canadian Plan or a Foreign Plan is terminated and such termination results or could reasonably be expected to result in accelerated liability in an aggregate amount in excess of $50,000,000;
(l) any of the PBGC Borrowers or any of their Restricted Subsidiaries (other than Immaterial Restricted 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;
(m) 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 thirty (30) consecutive days, the cessation or substantial curtailment of revenue producing activities at any facility of any Borrower or any of its Restricted Subsidiaries if such event or circumstance is not covered by business interruption insurance and would have instituted proceedings a Material Adverse Effect;
(n) there shall occur the loss, suspension or revocation of, or failure to terminate renew, any license or permit now held or hereafter acquired by any Borrower or any of its Restricted Subsidiaries if such Guaranteed Pension Planloss, suspension, revocation or failure to renew would have a Material Adverse Effect;
(o) any of the Borrower, any Guarantor Borrowers or any of their respective Restricted Subsidiaries or any shareholder, officer, director, partner or member of any of them shall be indicted for a state or federal crime, or any civil or criminal action shall otherwise have been brought against any of the Borrowers or any of their Restricted Subsidiaries, a punishment for which in any such case could include the forfeiture of (i) any assets of the Borrower, the Guarantors such Borrower or any such Restricted Subsidiary having a fair market value in excess of their respective Subsidiaries which in the good faith judgment of the Required Lenders could have a Material Adverse Effect, or (ii) the Unencumbered Asset Pool Properties$50,000,000;
(p) (i) any person or group of persons (within the meaning of §13 or 14 of the Securities Exchange Act of 1934, as amended) other than ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, III, his interest in his father’s estate and any of his children or grandchildren and any trust or other Person controlled by, and a majority of the beneficial ownership interest of which is owned by, any of such individuals, singly or jointly, shall have acquired beneficial ownership (within the meaning of Rule 13d-3 promulgated by the Securities and Exchange Commission under said Act) of more than thirty-five percent (35%) of the outstanding shares of the Capital Stock of GWI that is common stock, (ii) during any period of twelve consecutive calendar months, individuals who were directors of GWI on the first day of such period shall cease to constitute a majority of the board of directors of GWI, (iii) any of the Borrowers shall at any time own directly or indirectly less than 100% of the shares of the Capital Stock of each of their Restricted Subsidiaries, as adjusted pursuant to any stock split, stock dividend or recapitalization or reclassification of the capital of such Person, except as otherwise consented to by the Applicable Lenders pursuant to §10.5.2, and except as otherwise described in §8.17; or (iv) any event shall occur which would constitute a “Change of Control shall occur;Control” as defined in any other Indebtedness in excess of $100,000,000; or
(q) any Guarantees (other than a Guarantee by an Event of Default under any of Immaterial Restricted Subsidiary) or security interests in the Collateral (including, without limitation, the Voting Trust Certificates (or other Loan Documents shall occur;
(r) notwithstanding anything herein to ownership or profit interest in the contrary (including without limitation §12.1(gVoting Trust)), the Borrower at any time after its execution and the Guarantors hereby expressly agree that any “Event of Default” (as defined in the Equipment Loan Documents) (which shall be deemed to include maturity delivery of the debt evidenced and secured by the Equipment Loan Documents for any reason other than as expressly permitted hereunder or thereunder or satisfaction in full of all the Obligations, ceases to be in full force and effect (except in accordance with the terms of §16.11); or to create a valid and perfected first priority Lien on the Collateral purported to be covered thereby (subject to the Liens permitted by §10.2) or any Loan Party or any other occurrence which would give Person contests in any manner the Equipment Lender validity or enforceability of any provision of §7 or of any Collateral Document (including, without limitation, the right to exercise remedies under the Equipment Loan Documents) shall constitute and be deemed to be an Event of Default under this Agreement for which no right to cure shall be available. Without limiting the foregoing, an “Event of Default” under the Equipment Loan Documents shall conclusively be deemed to have occurred upon the declaration, statement or notice from the Equipment Lender’s as to the existence or occurrence of an “Event of Default” under any pledge of the Equipment Loan Documents;
Voting Trust Certificates (s) Any default, material misrepresentation or breach of warranty other ownership or profit interest in the QTLP Subordination and Standstill Agreement by Borrower or the subordinate lender that is the holder of QTLP Subordinate Note;
(t) [Intentionally OmittedVoting Trust)).]
(u) Any default, material misrepresentation or breach of warranty in the Bond Subordination and Standstill Agreement by the Authority or the subordinate lender that is the holder of the Bond; then, and in any such event, the 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 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 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 Lenders or the Agent. Upon demand by Agent or the Majority Revolving Credit 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, the Borrower will Cash Collateralize the Letter of Credit Liabilities (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 Lenders as security for any amounts that become payable under the Letters of Credit and all other Obligations and Hedge Obligations in accordance with §2.12. 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 and 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 the Borrower will be released to the Borrower.
Appears in 1 contract
Sources: Senior Secured Syndicated Facility Agreement (Genesee & Wyoming 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 or lapse of time, “Defaults”) shall occur:
(a) 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) the Borrower shall fail to pay any interest on the Loans, any reimbursement obligations with respect to the Letters of Credit, Loans or any fees or other sums due hereunder or under any of the other Loan Documents or any fee letter (including, without limitation, amounts due under §8.16) 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 and such failure continues for paymentthree (3) days;
(c) the Borrower shall fail to comply with the covenant contained in §9.1 and such failure shall continue for five (5) Business Days after written notice thereof shall have been given to the Borrower by the Agent;
(d) any of the Borrower, any Subsidiary Guarantor, the Guarantors Trust or any of their respective Subsidiaries shall fail to perform comply, or to cause the Trust to comply, as the case may be, with any other term, covenant or agreement 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; §§8.4 through §8.10, inclusive; §8.12; §8.13; §8.15; §8.19; §8.20, ; §9.3, 9; §9.4, 10 and §9.5 or §9.611;
(ed) any of the Borrower, any Subsidiary Guarantor, the Guarantors 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 which they are required to perform (other than those specified elsewhere in the other subclauses of this §12 or in the other Loan Documents)14) and such failure continues for thirty (30) days;
(fe) any representation or warranty made by or on behalf of the Borrower, any Subsidiary Guarantor, the Guarantors Trust 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, 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;
(gi) the Borrower, any Subsidiary Guarantor, the Trust or any of its Subsidiaries or, to the extent of Recourse to the Borrower, the Guarantors Subsidiary Guarantor, the Trust or such Subsidiaries thereunder, any Partially-Owned Entity or other of their respective Subsidiaries Affiliates, shall fail to pay when due (including, without limitation, at maturity), or within any applicable period of grace, any principal, interest or other amount on account any obligation Indebtedness for borrowed money or credit received or other in respect of any Capitalized Leases, which is in excess of (A) $25,000,000, either individually or in the aggregate, if such Indebtedness is Without Recourse and (including under any Derivatives Contract)B) $5,000,000, either individually or in the aggregate, if such Indebtedness is Recourse, or shall fail to observe or perform any material term, covenant covenant, condition or agreement contained in any agreement agreement, document or instrument by which it is boundbound evidencing, securing or otherwise relating to such Indebtedness or Recourse obligations, evidencing or securing any obligation for borrowed money or credit received or other Indebtedness (including under in respect of any Derivatives Contract) Capitalized Leases for such period of time as would permit (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 require the termination or other settlement of such obligationthereof; provided that the events described in §12.1(g(ii) shall not constitute an any Event of Default unless such failure to perform, together with other failures to perform shall occur under (and as described in §12.1(g), involve singly defined in) the Unsecured Revolver Agreement; or in the aggregate obligations for borrowed money or credit received or other Recourse Indebtedness totaling in excess (iii) any event of $15,000,000.00 or Non-Recourse Indebtedness in excess of $60,000,000.00;default (beyond any applicable notice and grace periods) shall occur under any Property Level Loan Document; or
(hg) any of the BorrowerFPLP, any Subsidiary Guarantor, the Guarantors Trust or any of their respective Subsidiaries (i) shall make an assignment for the benefit of creditors, or admit in writing its general 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 for it of any of FPLP, a Subsidiary Guarantor, the Trust or any of their respective Subsidiaries or of any substantial part of its assets, (ii) the properties or assets of any of such parties or shall commence any case or other proceeding relating to it any of FPLP, a Subsidiary Guarantor, the Trust or any 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 (iii) shall take any action to authorize or in furtherance of any of the foregoing;
(i) a , or if any such petition or application shall be filed for the appointment of a trustee or other custodian, liquidator or receiver of any of the Borrower, the Guarantors or any of their respective Subsidiaries or any substantial part of the assets of any thereof, or a such case or other proceeding shall be commenced against any such Person under of FPLP, a Subsidiary Guarantor, the Trust or any bankruptcyof their respective Subsidiaries and (i) any of FPLP, reorganizationa Subsidiary Guarantor, arrangement, insolvency, readjustment the Trust or any of debt, dissolution or liquidation or similar law of any jurisdiction, now or hereafter in effect, and any such Person their respective Subsidiaries shall indicate its approval thereof, consent thereto or acquiescence therein or (ii) any such petition, application, case or other proceeding shall not have been dismissed within sixty continue undismissed, or unstayed and in effect, for a period of forty-five (6045) days following the filing or commencement thereofdays;
(jh) a decree or order is entered appointing a any trustee, custodian, liquidator or receiver for or adjudicating any of the BorrowerFPLP, a Subsidiary Guarantor, the Guarantors Trust or any of their respective Subsidiaries or adjudicating any 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 any such Person of FPLP, a Subsidiary Guarantor, the Trust or any of their respective Subsidiaries in an involuntary case under federal bankruptcy laws as now or hereafter constituted;
(ki) there shall remain in force, undischarged, unsatisfied and unstayed, for more than sixty thirty (6030) days, whether or not consecutive, one or more any uninsured or unbonded final judgmentsjudgment against any of FPLP, ordersa Subsidiary Guarantor, awards, writs execution or attachments against the Borrower, Guarantors Trust or any of their respective Subsidiaries that, either individually or with other outstanding uninsured final judgments, undischarged, unsatisfied and unstayed, against any of such parties exceeds in the aggregate, exceed aggregate $10,000,000.002,000,000;
(lj) any of the Loan Documents, the Contribution Agreement, the Equipment Intercreditor Agreement Documents or the Subordination and Standstill Agreements any material provision of any Loan Document shall be 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 LendersAgent, 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, the Contribution Agreement, the Equipment Intercreditor Agreement or the Subordination and Standstill Agreements Documents shall be commenced by or on behalf of the Borrower or a Subsidiary Guarantor or any of their Subsidiaries or the GuarantorsTrust or any of its Subsidiaries, or any court or any other governmental or regulatory authority or agency of competent jurisdiction shall make a determinationdetermination that, or issue a judgment, order, decree or ruling, ruling to the effect that that, any one or more of the Loan Documents, the Contribution Agreement, the Equipment Intercreditor Agreement or the Subordination and Standstill Agreements Documents is illegal, invalid or unenforceable in accordance with the as to any material terms thereof;
(m) any dissolution, termination, partial ; or complete liquidation, merger or consolidation of the Agent shall fail to have a perfected first-priority security interest in any of the BorrowerCollateral; or
(k) any “Event of Default” or default (after notice and expiration of any period of grace, to the Guarantors extent provided, as defined or provided in any of their respective Subsidiaries shall occur or any sale, transfer or other disposition of the assets of any of the Borrower, 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, shall occur and be continuing;
(nl) with respect to any Guaranteed Pension Plan, an ERISA Reportable Event shall have occurred and the Required Majority 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 Borrower or any of their respective its Subsidiaries or the Trust or any of its Subsidiaries to the PBGC or such Guaranteed Pension Plan in an aggregate amount exceeding $10,000,000.00 2,000,000 and (x) 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 (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;
(om) subject to the Borrower’s ability to remove Real Estate Assets from the Borrowing Base Pool in accordance with the provisions set forth below in this §14, any Guarantor or any of their respective Subsidiaries or any shareholder, officer, director, partner or member the failure of any of them shall be indicted for a federal crime, a punishment for which could include the forfeiture 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;
(n) the failure of any two of (i) D▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, for any assets reason, to cease to retain the titles of President, Chief Executive Officer and Trustee of the Borrower, the Guarantors or any of their respective Subsidiaries which in the good faith judgment of the Required Lenders could have a Material Adverse EffectTrust, or (ii) N▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, for any reason, to cease to retain the Unencumbered Asset Pool Properties;
titles of Executive Vice President and Chief Investment Officer, or (piii) B▇▇▇▇ ▇. ▇▇▇▇, for any Change reason, to cease to retain the titles of Control shall occur;
Senior Vice President and Chief Financial Officer, and in each case, to perform the functions typically performed under such respective offices and to be actively involved in strategic planning and decision-making for the Trust, unless within six (q6) an Event months after such failure, the Board of Default under Directors or Board of Trustees has duly elected or appointed a qualified substitute to replace such individual who is acceptable to the Majority Lenders in their sole discretion (as notified to the Borrower by the Agent in writing); or the occurrence of any transaction in which any “person” or “group” (within the meaning of Section 13(d) and 14(d)(2) of the other Loan Documents shall occur;
(rSecurities Exchange Act of 1934) notwithstanding anything herein to becomes the contrary (including without limitation §12.1(g)), the Borrower and the Guarantors hereby expressly agree that any “Event of Defaultbeneficial owner” (as defined in Rule 13d-3 under the Equipment Loan Documents) (which shall be deemed to include maturity Securities Exchange Act of 1934), directly or indirectly, of a sufficient number of shares of all classes of stock then outstanding of the debt evidenced and secured Trust ordinarily entitled to vote in the election of directors, empowering such “person” or “group” to elect a majority of the Board of Directors or Board of Trustees of the Trust, who did not have such power before such transaction; or during any twelve-month period on or after the Closing Date, individuals who at the beginning of such period constituted the Board of Trustees of the Trust (together with any new directors whose election by the Equipment Loan Documents Board of Trustees or whose nomination for election by the shareholders of the Trust was approved by a vote of at least a majority of the members of the Board of Trustees then in office who either were members of the Board of Trustees at the beginning of such period or whose election or nomination for election was previously so approved) ceased for any reason to constitute a majority of the members of the Board of Trustees of the Trust then in office; or
(o) without limitation of the other occurrence which would give provisions of this §14.1, the Equipment Lender the right to exercise remedies under the Equipment Loan Documents) Trust shall constitute and be deemed at any time fail to be an Event the sole general partner of Default under this Agreement for which no right to cure FPLP or shall at any time be available. Without limiting the foregoing, an “Event in contravention of Default” under the Equipment Loan Documents shall conclusively be deemed to have occurred upon the declaration, statement or notice from the Equipment Lender’s as to the existence or occurrence of an “Event of Default” under any of the Equipment Loan Documents;requirements contained in the last paragraph of §9.2 hereof, or §9.3 (including, without limitation, the last paragraph of §9.3); or
(sp) Any defaultthe Borrower shall fail to own, material misrepresentation directly or breach of warranty in the QTLP Subordination and Standstill Agreement by Borrower or the subordinate lender that is the holder of QTLP Subordinate Note;
(t) [Intentionally Omitted.]
(u) Any defaultindirectly, material misrepresentation or breach of warranty in the Bond Subordination and Standstill Agreement by the Authority or the subordinate lender that is the holder 100% of the BondEquity Interests of each Subsidiary Guarantor; then, and in any such event, so long as the same may be continuing, the Agent may, and upon the request of the Required Majority Lenders shall, by notice in writing to the Borrower declare all amounts owing with respect to this Agreement, the Notes, the Letters of 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 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 §12.1(h), §12.1(i14.1(g) or §12.1(j14.1(h), 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 Lenders or the Agent or action by the Lenders or the Agent. Upon demand by Agent Notwithstanding the foregoing provisions of this §14.1, in the event of a Default or the Majority Revolving Credit Lenders in their absolute and sole discretion after the occurrence of an Event of DefaultDefault 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 regardless of whether the conditions precedent in this Agreement for a Revolving Credit Loan have been satisfiedsubject to, 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 §8.13 and held by Agent as security for any amounts that become payable under the Letters of Credit and from 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 Defaultcovenant calculations under §10 or otherwise, the Borrower will Cash Collateralize the Letter of Credit Liabilities shall be permitted a period not to exceed five (in an amount equal 5) days to submit to the amount 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 undrawn Letters of Credit). Such amounts 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 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 in accordance with §2.12. 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 and 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 the Borrower will be released to the Borrowercontinuing.
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 or lapse of time, “Defaults”) shall occur:
(a) 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) the Borrower shall fail to pay any interest on the Loans, any reimbursement obligations with respect to the Letters of Credit, Loans or any fees or other sums due hereunder or under any of the other Loan Documents or any fee letter (including, without limitation, amounts due under §8.16) 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 and such failure continues for paymentthree (3) days;
(c) the Borrower shall fail to comply with the covenant contained in §9.1 and such failure shall continue for five (5) Business Days after written notice thereof shall have been given to the Borrower by the Agent;
(d) any of the Borrower, the Guarantors Trust or any of their respective Subsidiaries shall fail to perform comply, or to cause the Trust to comply, as the case may be, with any other term, covenant or agreement 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; §§8.4 through §810, inclusive; §8.12; §8.13; §8.15; §8.19; §8.20, ; §9.3, 9; §9.4, 10 and §9.5 or §9.611;
(ed) any of the Borrower, the Guarantors 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 which they are required to perform (other than those specified elsewhere in the other subclauses of this §12 or in the other Loan Documents)14) and such failure continues for thirty (30) days;
(fe) any representation or warranty made by or on behalf of the Borrower, the Guarantors Trust 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, 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;
(gf) any of the Borrower, the Guarantors Trust or any of its Subsidiaries or, to the extent of Recourse to the Borrower, the Trust or such Subsidiaries thereunder, any Partially-Owned Entity or other of their respective Subsidiaries Affiliates, shall fail to pay when due (including, without limitation, at maturity), or within any applicable period of grace, any principal, interest or other amount on account any obligation Indebtedness for borrowed money or credit received or other in respect of any Capitalized Leases, which is in excess of (i) $20,000,000, either individually or in the aggregate, if such Indebtedness is without Recourse and (including under any Derivatives Contract)ii) $2,000,000, either individually or in the aggregate, if such Indebtedness is Recourse, or shall fail to observe or perform any material term, covenant covenant, condition or agreement contained in any agreement agreement, document or instrument by which it is boundbound evidencing, securing or otherwise relating to such Indebtedness or Recourse obligations, evidencing or securing any obligation for borrowed money or credit received or other Indebtedness (including under in respect of any Derivatives Contract) Capitalized Leases for such period of time as would permit (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 (i) $20,000,000, either individually or in the aggregate, if such Indebtedness is without Recourse and (ii) $2,000,000, either individually or in the aggregate, if such Indebtedness is Recourse, to accelerate the maturity thereof or require the termination or other settlement of such obligation; 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 in the aggregate obligations for borrowed money or credit received or other Recourse Indebtedness totaling in excess of $15,000,000.00 or Non-Recourse Indebtedness in excess of $60,000,000.00thereof;
(hg) any of the BorrowerFPLP, the Guarantors Trust or any of their respective Subsidiaries (i) shall make an assignment for the benefit of creditors, or admit in writing its general 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 for it of any of FPLP, the Trust or any of their respective Subsidiaries or of any substantial part of its assets, (ii) the properties or assets of any of such parties or shall commence any case or other proceeding relating to it any of the FPLP, the Trust or any 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 (iii) shall take any action to authorize or in furtherance of any of the foregoing;
(i) a , or if any such petition or application shall be filed for the appointment of a trustee or other custodian, liquidator or receiver of any of the Borrower, the Guarantors or any of their respective Subsidiaries or any substantial part of the assets of any thereof, or a such case or other proceeding shall be commenced against any such Person under of FPLP, the Trust or any bankruptcyof their respective Subsidiaries and (i) any of FPLP, reorganization, arrangement, insolvency, readjustment the Trust or any of debt, dissolution or liquidation or similar law of any jurisdiction, now or hereafter in effect, and any such Person their respective Subsidiaries shall indicate its approval thereof, consent thereto or acquiescence therein or (ii) any such petition, application, case or other proceeding shall not have been dismissed within sixty continue undismissed, or unstayed and in effect, for a period of forty-five (6045) days following the filing or commencement thereofdays;
(jh) a decree or order is entered appointing a any trustee, custodian, liquidator or receiver for or adjudicating any of the BorrowerFPLP, the Guarantors Trust or any of their respective Subsidiaries or adjudicating any 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 any such Person of FPLP, the Trust or any of their respective Subsidiaries in an involuntary case under federal bankruptcy laws as now or hereafter constituted;
(ki) there shall remain in force, undischarged, unsatisfied and unstayed, for more than sixty thirty (6030) days, whether or not consecutive, one or more any uninsured or unbonded final judgmentsjudgment against any of FPLP, orders, awards, writs execution or attachments against the Borrower, Guarantors Trust or any of their respective Subsidiaries that, either individually or with other outstanding uninsured final judgments, undischarged, unsatisfied and unstayed, against any of such parties exceeds in the aggregate, exceed aggregate $10,000,000.001,000,000;
(lj) any of the Loan Documents, the Contribution Agreement, the Equipment Intercreditor Agreement Documents or the Subordination and Standstill Agreements any material provision of any Loan Document shall be 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 LendersAgent, 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, the Contribution Agreement, the Equipment Intercreditor Agreement or the Subordination and Standstill Agreements Documents shall be commenced by or on behalf of the Borrower or any of its Subsidiaries or the GuarantorsTrust or any of its Subsidiaries, or any court or any other governmental or regulatory authority or agency of competent jurisdiction shall make a determinationdetermination that, or issue a judgment, order, decree or ruling, ruling to the effect that that, any one or more of the Loan Documents, the Contribution Agreement, the Equipment Intercreditor Agreement or the Subordination and Standstill Agreements Documents is illegal, invalid or unenforceable in accordance with the as to any material terms thereof;
(mk) any dissolution, termination, partial “Event of Default” or complete liquidation, merger or consolidation default (after notice and expiration of any period of grace, to the Borrowerextent provided, the Guarantors as defined or provided in any of their respective Subsidiaries shall occur or any sale, transfer or other disposition of the assets of any of the Borrower, 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, shall occur and be continuing;
(nl) with respect to any Guaranteed Pension Plan, an ERISA Reportable Event shall have occurred and the Required Majority 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 Borrower or any of their respective its Subsidiaries or the Trust or any of its Subsidiaries to the PBGC or such Guaranteed Pension Plan in an aggregate amount exceeding $10,000,000.00 1,000,000 and (x) 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 (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;
(om) subject to the Borrower’s ability to remove Real Estate Assets from the Unencumbered Pool in accordance with the provisions set forth below in this §14, any Guarantor or any of their respective Subsidiaries or any shareholder, officer, director, partner or member the failure of any of them shall be indicted for a federal crime, a punishment for which could include the forfeiture Real Estate Assets being included from time to time as part of the Unencumbered Pool to comply with any of the conditions set forth in the definition of Eligible Unencumbered Properties;
(n) the failure of any two of (i) D▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, for any assets reason, to cease to retain the titles of President, Chief Executive Officer and Trustee of the Borrower, the Guarantors or any of their respective Subsidiaries which in the good faith judgment of the Required Lenders could have a Material Adverse EffectTrust, or (ii) N▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, for any reason, to cease to retain the Unencumbered Asset Pool Properties;
titles of Executive Vice President and Chief Investment Officer, or (piii) B▇▇▇▇ ▇. ▇▇▇▇, for any Change reason, to cease to retain the titles of Control shall occur;
Senior Vice President and Chief Financial Officer, and in each case, to perform the functions typically performed under such respective offices and to be actively involved in strategic planning and decision-making for the Trust, unless within six (q6) an Event months after such failure, the Board of Default under Directors or Board of Trustees has duly elected or appointed a qualified substitute to replace such individual who is acceptable to the Majority Lenders in their sole discretion (as notified to the Borrower by the Agent in writing); or the occurrence of any transaction in which any “person” or “group” (within the meaning of Section 13(d) and 14(d)(2) of the other Loan Documents shall occur;
(rSecurities Exchange Act of 1934) notwithstanding anything herein to becomes the contrary (including without limitation §12.1(g)), the Borrower and the Guarantors hereby expressly agree that any “Event of Defaultbeneficial owner” (as defined in Rule 13d-3 under the Equipment Loan Documents) (which shall be deemed to include maturity Securities Exchange Act of 1934), directly or indirectly, of a sufficient number of shares of all classes of stock then outstanding of the debt evidenced and secured Trust ordinarily entitled to vote in the election of directors, empowering such “person” or “group” to elect a majority of the Board of Directors or Board of Trustees of the Trust, who did not have such power before such transaction; or during any twelve-month period on or after the Closing Date, individuals who at the beginning of such period constituted the Board of Trustees of the Trust (together with any new directors whose election by the Equipment Loan Documents Board of Trustees or whose nomination for election by the shareholders of the Trust was approved by a vote of at least a majority of the members of the Board of Trustees then in office who either were members of the Board of Trustees at the beginning of such period or whose election or nomination for election was previously so approved) ceased for any reason to constitute a majority of the members of the Board of Trustees of the Trust then in office; or
(o) without limitation of the other occurrence which would give provisions of this §14.1, the Equipment Lender the right to exercise remedies under the Equipment Loan Documents) Trust shall constitute and be deemed at any time fail to be an Event the sole general partner of Default under this Agreement for which no right to cure FPLP or shall at any time be available. Without limiting the foregoing, an “Event in contravention of Default” under the Equipment Loan Documents shall conclusively be deemed to have occurred upon the declaration, statement or notice from the Equipment Lender’s as to the existence or occurrence of an “Event of Default” under any of the Equipment Loan Documents;
(s) Any default, material misrepresentation or breach of warranty requirements contained in the QTLP Subordination and Standstill Agreement by Borrower last paragraph of §9.2 hereof, or §9.3 (including, without limitation, the subordinate lender that is the holder last paragraph of QTLP Subordinate Note;
(t) [Intentionally Omitted.]
(u) Any default, material misrepresentation or breach of warranty in the Bond Subordination and Standstill Agreement by the Authority or the subordinate lender that is the holder of the Bond§9.3); then, and in any such event, so long as the same may be continuing, the Agent may, and upon the request of the Required Majority Lenders shall, by notice in writing to the Borrower declare all amounts owing with respect to this Agreement, the Notes, the Letters of 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 any kind, all of which are hereby expressly waived by the Borrower, the Trust and each of their respective Subsidiaries; provided that in the event of any Event of Default specified in §12.1(h), §12.1(i14.1(g) or §12.1(j14.1(h), 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 Lenders or the Agent or action by the Lenders or the Agent. Upon demand by Agent Notwithstanding the foregoing provisions of this §14.1, in the event of a Default or the Majority Revolving Credit Lenders in their absolute and sole discretion after the occurrence of an Event of DefaultDefault arising as a result of the inclusion of any Real Estate Asset in the Unencumbered 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 Unencumbered Pool in accordance with, and regardless of whether the conditions precedent in this Agreement for a Revolving Credit Loan have been satisfiedsubject to, 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 §8.13 and held by Agent as security for any amounts that become payable under the Letters of Credit and from 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 Defaultcovenant calculations under §10 or otherwise, the Borrower will Cash Collateralize the Letter of Credit Liabilities shall be permitted a period not to exceed five (in an amount equal 5) days to submit to the amount Agent (with copies to the Agent for each Bank) a compliance certificate in the form of Exhibit C hereto evidencing compliance with §2.1 and with all undrawn Letters of Credit). Such amounts 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 Unencumbered Pool) and with the Unencumbered Property Conditions, and otherwise certifying that, after giving effect to the exclusion of such Real Estate Asset from the Unencumbered Pool, no Default or Event of Default 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 in accordance with §2.12. 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 and 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 the Borrower will be released to the Borrowercontinuing.
Appears in 1 contract
Sources: Revolving Credit 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 or lapse of time, “Defaults”) shall occur:
(a) 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) the Borrower shall fail to pay any interest on the Loans, any reimbursement obligations with respect to Loan within five (5) days of the Letters of Credit, 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 when within ten (10) days after notice from the same shall become due and payableAgent, whether at the stated date of maturity or any accelerated date of maturity or at any other date fixed for payment;
(c) the Borrower shall fail to comply with the covenant contained in §§ 9.1 and such failure shall continue for five (5) Business Days uncured after written notice thereof shall have been given to the Borrower Loan Parties by the AgentAgent as provided in § 3.2;
(d) any of the Borrower, the Guarantors or any of their respective Subsidiaries Borrower shall fail to perform any other term, covenant or agreement contained in (i) §8.208.15 and such failure continues for thirty (30) days after written notice thereof shall have been given to the Loan Parties by the Agent, §or (ii) § 9.2, § 9.3, §§ 9.4, §§ 9.5 or §9.6§ 9.6 and such failure under this clause (d)(ii) 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 of the Borrower, the Guarantors or any of their respective Subsidiaries 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 the other subclauses of this §§ 12 (including, without limitation, § 12.2 below) or in the other Loan Documents), 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 cured within such thirty (30) day period despite Loan Parties’ diligent efforts but is susceptible of being cured within ninety (90) days of Loan Parties’ receipt of the Agent’s original notice, then Loan Parties shall have 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 Agent’s original notice;
(f) any material representation or warranty made by or on behalf of the Borrower, the Guarantors Loan 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, Letter of Credit Requestan Advance, or in any other document or instrument delivered pursuant to or in connection with the Loan, any Advance, this 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;
(g) any of the Borrower, the Guarantors or any of their respective Subsidiaries Transaction Party shall fail to pay when due (including, without limitation, at maturity), or within any applicable period of notice and grace, any principal, interest or other amount on account of any obligation for borrowed money or credit received or other Indebtedness (including under any Derivatives Contract)Indebtedness, or shall fail to observe or perform any term, covenant or agreement contained in any agreement by which it is bound, evidencing or securing any obligation for borrowed money or credit received or other Indebtedness (including under any Derivatives Contract) for such period of time as would permit (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 or require the termination or other settlement of such obligationthereof; 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 in the aggregate obligations for borrowed money (x) any Indebtedness which is recourse to Borrower or credit received or other any of the Pool Owners (including, without limitation, Secured Recourse Indebtedness Indebtedness) totaling in excess of $15,000,000.00 50,000,000 or (y) Non-Recourse Indebtedness of Borrower or any of the Pool Owners totaling in excess of $60,000,000.00100,000,000;
(h) any of the BorrowerTransaction Party or REIT, the Guarantors or any of their respective Subsidiaries (i) shall make an assignment for the benefit of creditors, or admit in writing its general 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 for it or any substantial part of its assets, (ii) shall commence any case or other proceeding relating to 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 (iii) shall take any action to authorize or in furtherance of any of the foregoing;
(i) a petition or application shall be filed for the appointment of a trustee or other custodian, liquidator or receiver of any of the Borrower, the Guarantors Transaction Party or any of their respective Subsidiaries REIT or any substantial part of the assets of any thereof, or a case or other proceeding shall be commenced against any 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, and any such Person shall indicate its approval thereof, consent thereto or acquiescence therein or such petition, application, case or proceeding shall not have been dismissed within sixty ninety (6090) days following the filing or commencement thereof;
(j) a decree or order is entered appointing a trustee, custodian, liquidator or receiver for any of the Borrower, the Guarantors Transaction Party or any of their respective Subsidiaries REIT or adjudicating any 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 any such Person in an involuntary case under federal bankruptcy laws as now or hereafter constituted;
(k) there shall remain in force, undischarged, unsatisfied and unstayed, for more than sixty (60) days, whether or not consecutive, days one or more uninsured or unbonded final judgments, orders, awards, writs execution or attachments judgments against the Borrower, Guarantors Borrower or any of their respective Subsidiaries Pool Owner that, either individually or in the aggregate, exceed $10,000,000.0050,000,000;
(l) any of the Loan Documents, the Contribution Agreement, the Equipment Intercreditor Agreement or the Subordination and Standstill Agreements 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, the Contribution Agreement, the Equipment Intercreditor Agreement or the Subordination and Standstill Agreements Documents shall be commenced by or on behalf of the Borrower or any of the GuarantorsLoan Party, 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, the Contribution Agreement, the Equipment Intercreditor Agreement or the Subordination and Standstill Agreements Documents is illegal, invalid or unenforceable in accordance with the terms thereof;
(m) any dissolution, termination, partial or complete liquidation, Division, merger or consolidation of any of the Borrower, the Guarantors or any of their respective Subsidiaries Transaction Party shall occur or any sale, transfer or other disposition of the assets of any of the Borrower, the Guarantors or any of their respective Subsidiaries Transaction 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 the Required Lenders shall have determined in their reasonable discretion that such event reasonably could would be expected to result in liability of any of the Borrower, the Guarantors or any of their respective Subsidiaries Transaction Party to pay money to the PBGC or such Guaranteed Pension Plan in an aggregate amount exceeding $10,000,000.00 25,000,000 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 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) the Borrower, any Guarantor or any of their respective Subsidiaries 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 the Borrower, the Guarantors 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 Unencumbered Asset Pool Properties;
(p) any Change of Control shall occur;; or
(qp) an Event of Default under any of the other Loan Documents shall occur;
(r) notwithstanding anything herein to the contrary (including without limitation §12.1(g)), the Borrower and the Guarantors hereby expressly agree that any “Event of Default” (as defined in the Equipment Loan Documents) (which shall be deemed to include maturity of the debt evidenced and secured by the Equipment Loan Documents or any other occurrence which would give the Equipment Lender the right to exercise remedies under the Equipment Loan Documents) shall constitute and be deemed to be an Event of Default under this Agreement for which no right to cure shall be available. Without limiting the foregoing, an “Event of Default” under the Equipment Loan Documents shall conclusively be deemed to have occurred upon the declaration, statement or notice from the Equipment Lender’s as to the existence or occurrence of an “Event of Default” under any of the Equipment Loan Documents;
(s) Any default, material misrepresentation or breach of warranty in the QTLP Subordination and Standstill Agreement by Borrower or the subordinate lender that is the holder of QTLP Subordinate Note;
(t) [Intentionally Omitted.]
(u) Any default, material misrepresentation or breach of warranty in the Bond Subordination and Standstill Agreement by the Authority or the subordinate lender that is the holder of the Bond; then, and in upon any such eventEvent of Default, the Agent may, and upon the request of the Required Lenders shall, by notice in writing to the Borrower Loan Parties declare all amounts owing with respect to this Agreement, the Notes, the Letters of 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 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 §§ 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 Lenders or the Agent. Upon demand by Agent or the Majority Revolving Credit 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, the Borrower will Cash Collateralize the Letter of Credit Liabilities (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 Lenders as security for any amounts that become payable under the Letters of Credit and all other Obligations and Hedge Obligations in accordance with §2.12. 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 and 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 the Borrower will be released to 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 or lapse of time, “Defaults”) shall occur:
(a) 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) the Borrower shall fail to pay any interest on the Loans, any reimbursement obligations with respect to the Letters of Credit, or any fees or 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;
(c) the Borrower shall fail to comply with the covenant contained in §9.1 and such failure shall continue for five (5) Business Days after written notice thereof shall have been given to the Borrower by the Agent;
(d) any of the Borrower, the Guarantors or any of their respective Subsidiaries shall fail to perform any other term, covenant or agreement contained in §8.20, §9.3, §9.4, §9.5 or §9.6;
(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 which they are required to perform (other than those specified in the other subclauses of this §12 or in the other Loan Documents);
(f) any representation or warranty 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, 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;
(g) any of the Borrower, the Guarantors or any of their respective Subsidiaries shall fail to pay when due (including, without limitation, at maturity), or within any applicable period of grace, any principal, interest or other amount on account any obligation for borrowed money or credit received or other Indebtedness (including under any Derivatives Contract), or shall fail to observe or perform any term, covenant or agreement contained in any agreement by which it is bound, evidencing or securing any obligation for borrowed money or credit received or other Indebtedness (including under any Derivatives Contract) 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 the termination or other settlement of such obligation; 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 in the aggregate obligations for borrowed money or credit received or other Recourse Indebtedness totaling in excess of $15,000,000.00 50,000,000.00 or Non-Recourse Indebtedness in excess of $60,000,000.00100,000,000.00;
(h) any of the Borrower, the Guarantors or any of their respective Subsidiaries (i) shall make an assignment for the benefit of creditors, or admit in writing its general 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 for it or any substantial part of its assets, (ii) shall commence any case or other proceeding relating to 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 (iii) shall take any action to authorize or in furtherance of any of the foregoing;
(i) a petition or application shall be filed for the appointment of a trustee or other custodian, liquidator or receiver of any of the Borrower, the Guarantors or any of their respective Subsidiaries or any substantial part of the assets of any thereof, or a case or other proceeding shall be commenced against any 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, and any such Person shall indicate its approval thereof, consent thereto or acquiescence therein or such petition, application, case or proceeding shall not have been dismissed within sixty (60) days following the filing or commencement thereof;
(j) a decree or order is entered appointing a trustee, custodian, liquidator or receiver for any of the Borrower, the Guarantors or any of their respective Subsidiaries or adjudicating any 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 any such Person in an involuntary case under federal bankruptcy laws as now or hereafter constituted;
(k) there shall remain in force, undischarged, unsatisfied and unstayed, for more than sixty (60) days, whether or not consecutive, one or more uninsured or unbonded final judgments, orders, awards, writs execution or attachments against the Borrower, Guarantors or any of their respective Subsidiaries that, either individually or in the aggregate, exceed $10,000,000.0050,000,000.00;
(l) any of the Loan Documents, the Contribution Agreement, the Equipment Intercreditor Agreement or the Bond Subordination and Standstill Agreements 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, the Contribution Agreement, the Equipment Intercreditor Agreement or the Bond Subordination and Standstill Agreements Agreement shall be commenced by or on behalf of the Borrower or any of 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, the Contribution Agreement, the Equipment Intercreditor Agreement or the Bond Subordination and Standstill Agreements 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 of their respective Subsidiaries shall occur or any sale, transfer or other disposition of the assets of any of the Borrower, 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;
(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 their respective Subsidiaries to the PBGC or such Guaranteed Pension Plan in an aggregate amount exceeding $10,000,000.00 20,000,000.00 and (x) 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 (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) the Borrower, any Guarantor or any of their respective Subsidiaries 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 the Borrower, the Guarantors 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 Unencumbered Asset Pool Properties;
(p) any Change of Control shall occur;
(q) an Event of Default under any of the other Loan Documents shall occur;
(r) notwithstanding anything herein to the contrary (including without limitation §12.1(g)), the Borrower and the Guarantors hereby expressly agree that any “Event of Default” (as defined in the Equipment Loan Documents) (which shall be deemed to include maturity of the debt evidenced and secured by the Equipment Loan Documents or any other occurrence which would give the Equipment Lender the right to exercise remedies under the Equipment Loan Documents) shall constitute and be deemed to be an Event of Default under this Agreement for which no right to cure shall be available. Without limiting the foregoing, an “Event of Default” under the Equipment Loan Documents shall conclusively be deemed to have occurred upon the declaration, statement or notice from the Equipment Lender’s as to the existence or occurrence of an “Event of Default” under any of the Equipment Loan Documents[Intentionally Omitted];
(s) Any default, material misrepresentation or breach of warranty in the QTLP Subordination and Standstill Agreement by Borrower or the subordinate lender that is the holder of QTLP Subordinate Note[Intentionally Omitted];
(t) [Intentionally Omitted.]REIT fails to perform any term, covenant or agreement contained in §7.12 which it is required to perform;
(u) Any default, material misrepresentation or breach of warranty in the Bond Subordination and Standstill Agreement by the Authority or the subordinate lender that is the holder of the Bond; then, and in any such event, the 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 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 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 Lenders or the Agent. Upon demand by Agent or the Majority Revolving Credit 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, the Borrower will Cash Collateralize the Letter of Credit Liabilities (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 Lenders as security for any amounts that become payable under the Letters of Credit and all other Obligations and Hedge Obligations in accordance with §2.12. 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 and 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 the Borrower will be released to 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 or lapse of time, “Defaults”) shall occur:
(a) 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) the Borrower shall fail to pay any interest on the Loans, any reimbursement obligations with respect to Loan within five (5) days of the Letters of Credit, 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 when within ten (10) days after notice from the same shall become due and payableAgent, whether at the stated date of maturity or any accelerated date of maturity or at any other date fixed for payment;
(c) the Borrower shall fail to comply with the covenant contained in §§ 9.1 and such failure shall continue for five (5) Business Days uncured after written notice thereof shall have been given to the Borrower Loan Parties by the AgentAgent as provided in § 3.2;
(d) any of the Borrower, the Guarantors or any of their respective Subsidiaries Borrower shall fail to perform any other term, covenant or agreement contained in (i) §8.208.15 and such failure continues for thirty (30) days after written notice thereof shall have been given to the Loan Parties by the Agent, §or (ii) § 9.2, § 9.3, §§ 9.4, §9.5 § 9.5, or §§ 9.6, § 9.7 or § 9.8 and such failure under this clause (d)(ii) 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 of the Borrower, the Guarantors or any of their respective Subsidiaries 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 the other subclauses of this §§ 12 (including, without limitation, § 12.2 below) or in the other Loan Documents), 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 cured within such thirty (30) day period despite Loan Parties’ diligent efforts but is susceptible of being cured within ninety (90) days of Loan Parties’ receipt of the Agent’s original notice, then Loan Parties shall have 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 Agent’s original notice;
(f) any material representation or warranty made by or on behalf of the Borrower, the Guarantors Loan 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, Letter of Credit Requestan Advance, or in any other document or instrument delivered pursuant to or in connection with the Loan, any Advance, this 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;
(g) any of the Borrower, the Guarantors or any of their respective Subsidiaries LoanTransaction Party shall fail to pay when due (including, without limitation, at maturity), or within any applicable period of notice and grace, any principal, interest or other amount on account of any obligation for borrowed money or credit received or other Indebtedness (including under any Derivatives Contract)Indebtedness, or shall fail to observe or perform any term, covenant or agreement contained in any agreement by which it is bound, evidencing or securing any obligation for borrowed money or credit received or other Indebtedness (including under any Derivatives Contract) for such period of time as would permit (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 or require the termination or other settlement of such obligationthereof; 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 in the aggregate obligations for borrowed money (x) any Indebtedness which is recourse to Borrower or credit received or other any of the Subsidiary GuarantorsPool Owners (including, without limitation, Secured Recourse Indebtedness Indebtedness) totaling in excess of $15,000,000.00 25,000,000 or (y) Non-Recourse Indebtedness of Borrower or any of the Subsidiary GuarantorsPool Owners totaling in excess of $60,000,000.0050,000,000;
(h) any of the BorrowerLoanTransaction Party or REIT, the Guarantors or any of their respective Subsidiaries (i) shall make an assignment for the benefit of creditors, or admit in writing its general 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 for it or any substantial part of its assets, (ii) shall commence any case or other proceeding relating to 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 (iii) shall take any action to authorize or in furtherance of any of the foregoing;
(i) a petition or application shall be filed for the appointment of a trustee or other custodian, liquidator or receiver of any of the Borrower, the Guarantors LoanTransaction Party or any of their respective Subsidiaries REIT or any substantial part of the assets of any thereof, or a case or other proceeding shall be commenced against any 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, and any such Person shall indicate its approval thereof, consent thereto or acquiescence therein or such petition, application, case or proceeding shall not have been dismissed within sixty ninety (6090) days following the filing or commencement thereof;
(j) a decree or order is entered appointing a trustee, custodian, liquidator or receiver for any of the Borrower, the Guarantors LoanTransaction Party or any of their respective Subsidiaries REIT or adjudicating any 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 any such Person in an involuntary case under federal bankruptcy laws as now or hereafter constituted;
(k) there shall remain in force, undischarged, unsatisfied and unstayed, for more than sixty (60) days, whether or not consecutive, days one or more uninsured or unbonded final judgments, orders, awards, writs execution or attachments judgments against the Borrower, Guarantors Borrower or any of their respective Subsidiaries Subsidiary GuarantorPool Owner that, either individually or in the aggregate, exceed $10,000,000.0050,000,000;
(l) any of the Loan Documents, the Contribution Agreement, the Equipment Intercreditor Agreement or the Subordination and Standstill Agreements 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, the Contribution Agreement, the Equipment Intercreditor Agreement or the Subordination and Standstill Agreements Documents shall be commenced by or on behalf of the Borrower or any of the GuarantorsLoan Party, 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, the Contribution Agreement, the Equipment Intercreditor Agreement or the Subordination and Standstill Agreements 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 of their respective Subsidiaries LoanTransaction Party shall occur or any sale, transfer or other disposition of the assets of any of the Borrower, the Guarantors or any of their respective Subsidiaries LoanTransaction 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 the Required Lenders shall have determined in their reasonable discretion that such event reasonably could would be expected to result in liability of any of the Borrower, the Guarantors or any of their respective Subsidiaries LoanTransaction Party to pay money to the PBGC or such Guaranteed Pension Plan in an aggregate amount exceeding $10,000,000.00 25,000,000 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 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) the Borrower, any Guarantor or any of their respective Subsidiaries 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 the Borrower, the Guarantors 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 Unencumbered Asset Pool Properties;
(p) any Change of Control shall occur;; or
(qp) an Event of Default under any of the other Loan Documents shall occur;
(r) notwithstanding anything herein to the contrary (including without limitation §12.1(g)), the Borrower and the Guarantors hereby expressly agree that any “Event of Default” (as defined in the Equipment Loan Documents) (which shall be deemed to include maturity of the debt evidenced and secured by the Equipment Loan Documents or any other occurrence which would give the Equipment Lender the right to exercise remedies under the Equipment Loan Documents) shall constitute and be deemed to be an Event of Default under this Agreement for which no right to cure shall be available. Without limiting the foregoing, an “Event of Default” under the Equipment Loan Documents shall conclusively be deemed to have occurred upon the declaration, statement or notice from the Equipment Lender’s as to the existence or occurrence of an “Event of Default” under any of the Equipment Loan Documents;
(s) Any default, material misrepresentation or breach of warranty in the QTLP Subordination and Standstill Agreement by Borrower or the subordinate lender that is the holder of QTLP Subordinate Note;
(t) [Intentionally Omitted.]
(u) Any default, material misrepresentation or breach of warranty in the Bond Subordination and Standstill Agreement by the Authority or the subordinate lender that is the holder of the Bond; then, and in upon any such eventEvent of Default, the Agent may, and upon the request of the Required Lenders shall, by notice in writing to the Borrower Loan Parties declare all amounts owing with respect to this Agreement, the Notes, the Letters of 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 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 §§ 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 Lenders or the Agent. Upon demand by Agent or the Majority Revolving Credit 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, the Borrower will Cash Collateralize the Letter of Credit Liabilities (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 Lenders as security for any amounts that become payable under the Letters of Credit and all other Obligations and Hedge Obligations in accordance with §2.12. 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 and 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 the Borrower will be released to 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 or lapse of time, “Defaults”) shall occur:
(a) 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) the Borrower shall fail to pay any interest on the Loans, any reimbursement obligations with respect to the Letters of Credit, Loans or any fees or other sums due hereunder or under any of the other Loan Documents or any fee letter (including, without limitation, amounts due under §3.3 or §8.16) 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 and such failure continues for paymentthree (3) days;
(c) the Borrower shall fail to comply with the covenant contained in §9.1 and such failure shall continue for five (5) Business Days after written notice thereof shall have been given to the Borrower by the Agent;
(d) any of the Borrower, any Subsidiary Guarantor, the Guarantors Trust or any of their respective Subsidiaries shall fail to perform comply, or to cause the Trust to comply, as the case may be, with any other term, covenant or agreement 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; §§8.4 through §8.10, inclusive; §8.12; §8.13; §8.14(b); §8.15; §8.19; §8.20, ; §9.3, 9; §9.4, 10 and §9.5 or §9.611;
(ed) any of the Borrower, any Subsidiary Guarantor, the Guarantors 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 which they are required to perform (other than those specified elsewhere in the other subclauses of this §12 or in the other Loan Documents)14) and such failure continues for thirty (30) days;
(fe) any representation or warranty made by or on behalf of the Borrower, any Subsidiary Guarantor, the Guarantors Trust 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, 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;
(gi) the Borrower, any Subsidiary Guarantor, the Trust or any of its Subsidiaries or, to the extent of Recourse to the Borrower, the Guarantors Subsidiary Guarantor, the Trust or such Subsidiaries thereunder, any Partially-Owned Entity or other of their respective Subsidiaries Affiliates, shall fail to pay when due (including, without limitation, at maturity), or within any applicable period of grace, any principal, interest or other amount on account any obligation Indebtedness for borrowed money or credit received or other in respect of any Capitalized Leases, which is in excess of (A) $25,000,000, either individually or in the aggregate, if such Indebtedness is Without Recourse and (including under any Derivatives Contract)B) $5,000,000, either individually or in the aggregate, if such Indebtedness is Recourse, or shall fail to observe or perform any material term, covenant covenant, condition or agreement contained in any agreement agreement, document or instrument by which it is boundbound evidencing, securing or otherwise relating to such Indebtedness or Recourse obligations, evidencing or securing any obligation for borrowed money or credit received or other Indebtedness (including under in respect of any Derivatives Contract) Capitalized Leases for such period of time as would permit (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 require the termination or other settlement of such obligation; provided that the events described in §12.1(g(ii) shall not constitute an any Event of Default unless such failure to performshall occur under (and as defined in, together with other failures to perform as described in §12.1(g), involve singly respectively) the Unsecured Revolver Agreement or in the aggregate obligations for borrowed money or credit received or other Recourse Indebtedness totaling in excess of $15,000,000.00 or Non-Recourse Indebtedness in excess of $60,000,000.00;Existing Term Loan Agreement; or
(hg) any of the BorrowerFPLP, any Subsidiary Guarantor, the Guarantors Trust or any of their respective Subsidiaries (i) shall make an assignment for the benefit of creditors, or admit in writing its general 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 for it of any of FPLP, a Subsidiary Guarantor, the Trust or any of their respective Subsidiaries or of any substantial part of its assets, (ii) the properties or assets of any of such parties or shall commence any case or other proceeding relating to it any of FPLP, a Subsidiary Guarantor, the Trust or any 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 (iii) shall take any action to authorize or in furtherance of any of the foregoing;
(i) a , or if any such petition or application shall be filed for the appointment of a trustee or other custodian, liquidator or receiver of any of the Borrower, the Guarantors or any of their respective Subsidiaries or any substantial part of the assets of any thereof, or a such case or other proceeding shall be commenced against any such Person under of FPLP, a Subsidiary Guarantor, the Trust or any bankruptcyof their respective Subsidiaries and (i) any of FPLP, reorganizationa Subsidiary Guarantor, arrangement, insolvency, readjustment the Trust or any of debt, dissolution or liquidation or similar law of any jurisdiction, now or hereafter in effect, and any such Person their respective Subsidiaries shall indicate its approval thereof, consent thereto or acquiescence therein or (ii) any such petition, application, case or other proceeding shall not have been dismissed within sixty continue undismissed, or unstayed and in effect, for a period of forty-five (6045) days following the filing or commencement thereofdays;
(jh) a decree or order is entered appointing a any trustee, custodian, liquidator or receiver for or adjudicating any of the BorrowerFPLP, a Subsidiary Guarantor, the Guarantors Trust or any of their respective Subsidiaries or adjudicating any 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 any such Person of FPLP, a Subsidiary Guarantor, the Trust or any of their respective Subsidiaries in an involuntary case under federal bankruptcy laws as now or hereafter constituted;
(ki) there shall remain in force, undischarged, unsatisfied and unstayed, for more than sixty thirty (6030) days, whether or not consecutive, one or more any uninsured or unbonded final judgmentsjudgment against any of FPLP, ordersa Subsidiary Guarantor, awards, writs execution or attachments against the Borrower, Guarantors Trust or any of their respective Subsidiaries that, either individually or with other outstanding uninsured final judgments, undischarged, unsatisfied and unstayed, against any of such parties exceeds in the aggregate, exceed aggregate $10,000,000.002,000,000;
(lj) any of the Loan Documents, the Contribution Agreement, the Equipment Intercreditor Agreement Documents or the Subordination and Standstill Agreements any material provision of any Loan Document shall be 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 LendersAgent, 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, the Contribution Agreement, the Equipment Intercreditor Agreement or the Subordination and Standstill Agreements Documents shall be commenced by or on behalf of the Borrower or a Subsidiary Guarantor or any of their Subsidiaries or the GuarantorsTrust or any of its Subsidiaries, or any court or any other governmental or regulatory authority or agency of competent jurisdiction shall make a determinationdetermination that, or issue a judgment, order, decree or ruling, ruling to the effect that that, any one or more of the Loan Documents, the Contribution Agreement, the Equipment Intercreditor Agreement or the Subordination and Standstill Agreements Documents is illegal, invalid or unenforceable in accordance with the as to any material terms thereof;
(m) any dissolution, termination, partial ; or complete liquidation, merger or consolidation of the Agent shall fail to have a perfected first-priority security interest in any of the BorrowerCollateral; or
(k) any “Event of Default” or default (after notice and expiration of any period of grace, to the Guarantors extent provided, as defined or provided in any of their respective Subsidiaries shall occur or any sale, transfer or other disposition of the assets of any of the Borrower, 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, shall occur and be continuing;
(nl) with respect to any Guaranteed Pension Plan, an ERISA Reportable Event shall have occurred and the Required Majority 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 Borrower or any of their respective its Subsidiaries or the Trust or any of its Subsidiaries to the PBGC or such Guaranteed Pension Plan in an aggregate amount exceeding $10,000,000.00 2,000,000 and (x) 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 (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;
(om) subject to the Borrower’s ability to remove Real Estate Assets from the Borrowing Base Pool in accordance with the provisions set forth below in this §14, any Guarantor or any of their respective Subsidiaries or any shareholder, officer, director, partner or member the failure of any of them shall be indicted for a federal crime, a punishment for which could include the forfeiture 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;
(n) the failure of any two of (i) ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, for any assets reason, to cease to retain the titles of President, Chief Executive Officer and Trustee of the Borrower, the Guarantors or any of their respective Subsidiaries which in the good faith judgment of the Required Lenders could have a Material Adverse EffectTrust, or (ii) ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, for any reason, to cease to retain the Unencumbered Asset Pool Properties;
titles of Executive Vice President and Chief Investment Officer, or (piii) ▇▇▇▇▇ ▇. ▇▇▇▇, for any Change reason, to cease to retain the titles of Control shall occur;
Senior Vice President and Chief Financial Officer, and in each case, to perform the functions typically performed under such respective offices and to be actively involved in strategic planning and decision-making for the Trust, unless within six (q6) an Event months after such failure, the Board of Default under Directors or Board of Trustees has duly elected or appointed a qualified substitute to replace such individual who is acceptable to the Majority Lenders in their sole discretion (as notified to the Borrower by the Agent in writing); or the occurrence of any transaction in which any “person” or “group” (within the meaning of Section 13(d) and 14(d)(2) of the other Loan Documents shall occur;
(rSecurities Exchange Act of 1934) notwithstanding anything herein to becomes the contrary (including without limitation §12.1(g)), the Borrower and the Guarantors hereby expressly agree that any “Event of Defaultbeneficial owner” (as defined in Rule 13d-3 under the Equipment Loan Documents) (which shall be deemed to include maturity Securities Exchange Act of 1934), directly or indirectly, of a sufficient number of shares of all classes of stock then outstanding of the debt evidenced and secured Trust ordinarily entitled to vote in the election of directors, empowering such “person” or “group” to elect a majority of the Board of Directors or Board of Trustees of the Trust, who did not have such power before such transaction; or during any twelve-month period on or after the Closing Date, individuals who at the beginning of such period constituted the Board of Trustees of the Trust (together with any new directors whose election by the Equipment Loan Documents Board of Trustees or whose nomination for election by the shareholders of the Trust was approved by a vote of at least a majority of the members of the Board of Trustees then in office who either were members of the Board of Trustees at the beginning of such period or whose election or nomination for election was previously so approved) ceased for any reason to constitute a majority of the members of the Board of Trustees of the Trust then in office; or
(o) without limitation of the other occurrence which would give provisions of this §14.1, the Equipment Lender the right to exercise remedies under the Equipment Loan Documents) Trust shall constitute and be deemed at any time fail to be an Event the sole general partner of Default under this Agreement for which no right to cure FPLP or shall at any time be available. Without limiting the foregoing, an “Event in contravention of Default” under the Equipment Loan Documents shall conclusively be deemed to have occurred upon the declaration, statement or notice from the Equipment Lender’s as to the existence or occurrence of an “Event of Default” under any of the Equipment Loan Documents;requirements contained in the last paragraph of §9.2 hereof, or §9.3 (including, without limitation, the last paragraph of §9.3); or
(sp) Any defaultthe Borrower shall fail to own, material misrepresentation directly or breach of warranty in the QTLP Subordination and Standstill Agreement by Borrower or the subordinate lender that is the holder of QTLP Subordinate Note;
(t) [Intentionally Omitted.]
(u) Any defaultindirectly, material misrepresentation or breach of warranty in the Bond Subordination and Standstill Agreement by the Authority or the subordinate lender that is the holder 100% of the BondEquity Interests of each Subsidiary Guarantor; then, and in any such event, so long as the same may be continuing, the Agent may, and upon the request of the Required Majority Lenders shall, by notice in writing to the Borrower declare all amounts owing with respect to this Agreement, the Notes, the Letters of 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 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 §12.1(h), §12.1(i14.1(g) or §12.1(j14.1(h), 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 Lenders or the Agent or action by the Lenders or the Agent. Upon demand by Agent Notwithstanding the foregoing provisions of this §14.1, in the event of a Default or the Majority Revolving Credit Lenders in their absolute and sole discretion after the occurrence of an Event of DefaultDefault 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 regardless of whether the conditions precedent in this Agreement for a Revolving Credit Loan have been satisfiedsubject to, 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 §8.13 and held by Agent as security for any amounts that become payable under the Letters of Credit and from 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 Defaultcovenant calculations under §10 or otherwise, the Borrower will Cash Collateralize the Letter of Credit Liabilities shall be permitted a period not to exceed five (in an amount equal 5) days to submit to the amount 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 undrawn Letters of Credit). Such amounts 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 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 in accordance with §2.12. 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 and 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 the Borrower will be released to the Borrowercontinuing.
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 or lapse of time, “"Defaults”") shall occur:
(a) 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) the Borrower shall fail to pay any interest on the Loans, any reimbursement obligations with respect to the Letters of Credit, Loans or any fees or other sums due hereunder or under any of the other Loan Documents when Documents, within three (3) days from 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;
(c) the Borrower or REA 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 12.1B(a) shall have ended;
(d) the Borrower or REA shall fail to comply with any covenant contained in Section 9.2, Section 9.3, Section 9.4 or Section 9.5 and such failure shall continue for five thirty (530) Business Days days after written notice thereof shall have been given to the Borrower by the Agent;
(d) any of the Borrower, the Guarantors or any of their respective Subsidiaries shall fail to perform any other term, covenant or agreement contained in §8.20, §9.3, §9.4, §9.5 or §9.6;
(e) any of the Borrower, REA, the Guarantors 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 the other subclauses of this §12 Section 12) and such failure shall continue for thirty (30) days after written notice thereof shall have been given to the Borrower by the Agent or in the other Loan Documents)such longer period, not to exceed an additional sixty (60) days, as may be required to cure such default, provided that cure is being diligently pursued;
(f) any representation or warranty made by or on behalf of the Borrower, REA, the Guarantors 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, any advance of a Loan, the issuance of any Letter of Credit 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 repeatedrepeated and such representation or warranty shall continue to be false after written notice thereof shall have been given to the Borrower by the Agent and the cure period provided in Section 12.1(B)(c) shall have ended;
(g) any of the Borrower, REA, the Guarantors Guarantors, or any of their respective Subsidiaries (i) shall fail to pay when due (including, without limitation, at maturity), or within any applicable period of grace, any principal, interest or other amount on account any obligation for borrowed money or credit received or other Indebtedness (including under any Derivatives Contract)in a principal amount exceeding $2,000,000, or (ii) shall fail to observe or perform any term, covenant or agreement contained in any agreement by which it is bound, evidencing or securing any obligation for borrowed money or credit received or other Indebtedness (including under any Derivatives Contract) in a principal amount exceeding $2,000,000 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 or require the termination or other settlement of such obligation; 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 in the aggregate obligations for borrowed money or credit received or other Recourse Indebtedness totaling in excess of $15,000,000.00 or Non-Recourse Indebtedness in excess of $60,000,000.00thereof;
(h) any of the Borrower, REA, the Guarantors Guarantors, or any of their respective Subsidiaries Subsidiaries, (i) shall make an assignment for the benefit of creditors, or admit in writing its general 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 for it or any substantial part of its assets, (ii) shall commence any case or other proceeding relating to 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 (iii) shall take any action to authorize or in furtherance of any of the foregoing;
(i) a petition or application shall be filed for the appointment of a trustee or other custodian, liquidator or receiver of any of the Borrower, REA, the Guarantors Guarantors, or any of their respective Subsidiaries or any substantial part of the assets of any thereof, or a case or other proceeding shall be commenced against any 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, and any such Person shall indicate its approval thereof, consent thereto or acquiescence therein or such petition, application, case or proceeding shall not have been dismissed within sixty ninety (6090) days following the filing or commencement thereof;
(j) a decree or order is entered appointing a trustee, custodian, liquidator or receiver for any of the Borrower, REA, the Guarantors Guarantors, or any of their respective Subsidiaries or adjudicating any 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 any such Person in an involuntary case under federal bankruptcy laws as now or hereafter constituted;
(k) there shall remain in force, undischarged, unsatisfied and unstayed, for more than sixty (60) days, whether or not consecutive, one or more uninsured or unbonded final judgments, orders, awards, writs execution or attachments judgments against any of the Borrower, Guarantors REA, the Guarantors, or any of their respective Subsidiaries that, either individually or in the aggregate, exceed $10,000,000.002,000,000;
(l) any of the Loan Documents, the Contribution Agreement, the Equipment Intercreditor Agreement or the Subordination and Standstill Agreements 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 Lenders, or any action at law, suit in equity or other legal proceeding to cancel, revoke or rescind any of the Loan Documents, the Contribution Agreement, the Equipment Intercreditor Agreement or the Subordination and Standstill Agreements Documents shall be commenced by or on behalf of the Borrower or any of the Borrower, REA 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, the Contribution Agreement, the Equipment Intercreditor Agreement or the Subordination and Standstill Agreements 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 REA or any of their respective Subsidiaries Guarantor shall occur or any sale, transfer or other disposition of the assets of any of the Borrower, the Guarantors REA or any of their respective Subsidiaries Guarantor shall occur other than as permitted under the terms of this Agreement or the other Loan Documents;
(n) the Borrower or REA shall fail to comply with the covenant contained in Section 7.19;
(o) all of any portion of a Mortgaged Property (or any interest therein) is forfeited as a result of any criminal or quasi-criminal activity by the owner thereof (or any Person related to the owner thereof);
(p) with respect to any Guaranteed Pension Plan, an ERISA Reportable Event shall have occurred and the Required Majority Lenders shall have determined in their reasonable discretion that such event reasonably could be expected to result in liability of any of the Borrower, REA, the Guarantors or any of their respective Subsidiaries to the PBGC or such Guaranteed Pension Plan in an aggregate amount exceeding $10,000,000.00 2,000,000 and (x) 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 (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;
(oq) ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ shall cease to have chief executive responsibilities of REA, and a competent and experienced successor for such Person shall not be approved by the BorrowerMajority Lenders within six (6) months of such event, any Guarantor or any of their respective Subsidiaries or any shareholder, officer, director, partner or member of any of them shall such approval not to be indicted for a federal crime, a punishment for which could include the forfeiture of (i) any assets of the Borrower, the Guarantors 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 Unencumbered Asset Pool Propertiesunreasonably withheld;
(pr) REA shall fail to pay or perform any Change of Control its obligations under Section 32 or any Guarantor shall occur;fail to pay or perform any of its obligations under its Guaranty; or
(qs) an Event event of Default default under any of the other Loan Documents shall occur;
(r) notwithstanding anything herein to the contrary (including without limitation §12.1(g)), the Borrower and the Guarantors hereby expressly agree that any “Event of Default” (as defined in the Equipment Loan Documents) (which shall be deemed to include maturity of the debt evidenced and secured by the Equipment Loan Documents or any other occurrence which would give the Equipment Lender the right to exercise remedies under the Equipment Loan Documents) shall constitute and be deemed to be an Event of Default under this Agreement for which no right to cure shall be available. Without limiting the foregoing, an “Event of Default” under the Equipment Loan Documents shall conclusively be deemed to have occurred upon the declaration, statement or notice from the Equipment Lender’s as to the existence or occurrence of an “Event of Default” under any of the Equipment Loan Documents;
(s) Any default, material misrepresentation or breach of warranty in the QTLP Subordination and Standstill Agreement by Borrower or the subordinate lender that is the holder of QTLP Subordinate Note;
(t) [Intentionally Omitted.]
(u) Any default, material misrepresentation or breach of warranty in the Bond Subordination and Standstill Agreement by the Authority or the subordinate lender that is the holder of the Bond; then, and in any such event, the Agent may, and upon the request of the Required Majority Lenders shall, by notice in writing to the Borrower declare all amounts owing with respect to this Agreement, the Notes, the Letters of 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 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 §Section 12.1(j), all such amounts shall become immediately due and payable automatically and without any requirement of presentmentpresentment , demand, protest or other notice of any kind from any of the Lenders or the Agent. Upon demand by Agent or the Majority Revolving Credit 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, the Borrower will Cash Collateralize the Letter of Credit Liabilities (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 Lenders as security for any amounts that become payable under the Letters of Credit and all other Obligations and Hedge Obligations in accordance with §2.12. 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 and 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 the Borrower will be released to the Borrower.
Appears in 1 contract
Sources: Revolving Credit Agreement (American Real Estate Investment 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 or lapse of time, “Defaults”) shall occur:
(a) 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) the Borrower shall fail to pay any interest on the Loans, any reimbursement obligations with respect to the Letters of Credit, Loans or any fees or other sums due hereunder or under any of the other Loan Documents or any fee letter (including, without limitation, amounts due under §8.16) 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 and such failure continues for paymentthree (3) days;
(c) the Borrower shall fail to comply with the covenant contained in §9.1 and such failure shall continue for five (5) Business Days after written notice thereof shall have been given to the Borrower by the Agent;
(d) any of the Borrower, the Guarantors Trust or any of their respective Subsidiaries shall fail to perform comply, or to cause the Trust to comply, as the case may be, with any other term, covenant or agreement 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; §§8.4 through §8.10, inclusive; §8.12; §8.13; §8.15; §8.19; §8.20, ; §9.3, 8.21; §9.4, 9; and §9.5 or §9.610;
(ed) any of the Borrower, the Guarantors 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 which they are required to perform (other than those specified elsewhere in the other subclauses of this §12 14) and such failure continues for thirty (30) days after the earlier of the knowledge of any responsible officer of the Borrower or in notice thereof from the other Loan Documents)Agent;
(fe) any representation or warranty made by or on behalf of the Borrower, the Guarantors Trust 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, 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;
(gf) any of the Borrower, the Guarantors Trust or any of its Subsidiaries or, to the extent of Recourse to the Borrower, the Trust or such Subsidiaries thereunder, any Partially-Owned Entity or other of their respective Subsidiaries Affiliates, shall (x) fail to pay when due (including, without limitation, at maturity), or within any applicable period of grace, any principal, interest or other amount on account any obligation Indebtedness for borrowed money or credit received or other in respect of any Capitalized Leases, which is in excess of (i) $60,000,000, either individually or in the aggregate, if such Indebtedness is Without Recourse and (including under ii) $20,000,000, either individually or in the aggregate, if such Indebtedness is Recourse, (y) with respect to any Derivatives Contract)Indebtedness that is Recourse and in excess of $20,000,000, either individually or shall in the aggregate, fail to observe or perform any material term, covenant covenant, condition or agreement contained in any agreement agreement, document or instrument by which it is boundbound evidencing, securing or otherwise relating to such Indebtedness or Recourse obligations, evidencing or securing any obligation for borrowed money or credit received or other Indebtedness (including under in respect of any Derivatives Contract) Capitalized Leases for such period of time as would permit (assuming after the giving of appropriate notice if required) as would permit the holder or holders thereof or of any obligations issued thereunder to accelerate the maturity thereof thereof, or require the termination or other settlement (z) with respect to any Indebtedness that is Without Recourse and in excess of such obligation; provided that the events described in §12.1(g) shall not constitute an Event of Default unless such failure to perform$60,000,000, together with other failures to perform as described in §12.1(g), involve singly either individually or in the aggregate obligations for 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 other 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 totaling in excess of $15,000,000.00 or Non-that is Recourse Indebtedness in excess of $60,000,000.00;
(h) any of to the extent that the same has become Recourse to the Borrower, the Guarantors 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;
(g) the Borrower, the Trust or any of their respective Subsidiaries (i) shall make an assignment for the benefit of creditors, or admit in writing its general 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 for it of any of the Borrower, the Trust or any of their respective Subsidiaries or of any substantial part of its assets, (ii) the properties or assets of any of such parties or shall commence any case or other proceeding relating to it any of the Borrower, the Trust or any 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 (iii) shall take any action to authorize or in furtherance of any of the foregoing;
(i) a , or if any such petition or application shall be filed for the appointment of a trustee or other custodian, liquidator or receiver of any of the Borrower, the Guarantors or any of their respective Subsidiaries or any substantial part of the assets of any thereof, or a such case or other proceeding shall be commenced against any such Person under of the Borrower, the Trust or any bankruptcyof their respective Subsidiaries and (i) any of the Borrower, reorganization, arrangement, insolvency, readjustment the Trust or any of debt, dissolution or liquidation or similar law of any jurisdiction, now or hereafter in effect, and any such Person their respective Subsidiaries shall indicate its approval thereof, consent thereto or acquiescence therein or (ii) any such petition, application, case or other proceeding shall not have been dismissed within continue undismissed, or unstayed and in effect, for a period of sixty (60) days following days; provided that the filing foregoing, to the extent applicable solely to one or commencement thereofmore Subsidiaries of FPLP that are not Borrowers hereunder 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;
(jh) a decree or order is entered appointing a any trustee, custodian, liquidator or receiver for or adjudicating any of the Borrower, the Guarantors Trust or any of their respective Subsidiaries or adjudicating any 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 any such Person of the Borrower, the Trust or any of their respective Subsidiaries in an involuntary case under federal bankruptcy laws as now or hereafter constituted; provided that the foregoing, to the extent applicable solely to one or more Subsidiaries of FPLP that are not Borrowers hereunder 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;
(ki) there shall remain in force, undischarged, unsatisfied and unstayed, for more than sixty thirty (6030) days, whether or not consecutive, one or more any uninsured or unbonded final judgments, orders, awards, writs execution or attachments judgment against any of the Borrower, Guarantors the Trust or any of their respective Subsidiaries that, either with other outstanding uninsured final judgments, undischarged, unsatisfied and unstayed, against any of such parties exceeds in the aggregate $5,000,000; provided that the foregoing, to the extent applicable solely to one or more Subsidiaries of FPLP that are not Borrowers hereunder to which no more than 5% (individually or and in the aggregate) of the most recently reported Consolidated Gross Asset Value is attributable, exceed $10,000,000.00it shall not be an Event of Default hereunder so long as neither the Borrower, the Trust or any Subsidiaries not meeting the de minimus test above are liable for such judgments;
(lj) any of the Loan Documents, the Contribution Agreement, the Equipment Intercreditor Agreement Documents or the Subordination and Standstill Agreements any material provision of any Loan Document shall be 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 LendersAgent, 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, the Contribution Agreement, the Equipment Intercreditor Agreement or the Subordination and Standstill Agreements Documents shall be commenced by or on behalf of the Borrower or any of its Subsidiaries or the GuarantorsTrust or any of its Subsidiaries, or any court or any other governmental or regulatory authority or agency of competent jurisdiction shall make a determinationdetermination that, or issue a judgment, order, decree or ruling, ruling to the effect that that, any one or more of the Loan Documents, the Contribution Agreement, the Equipment Intercreditor Agreement or the Subordination and Standstill Agreements Documents is illegal, invalid or unenforceable in accordance with the as to any material terms thereof;
(mk) any dissolution“Event of Default”, termination, partial as defined or complete liquidation, merger or consolidation of provided in any of the Borrower, the Guarantors or any of their respective Subsidiaries shall occur or any sale, transfer or other disposition of the assets of any of the Borrower, the Guarantors or any of their respective Subsidiaries shall occur other than as permitted under the terms of this Agreement or the other Loan DocumentsDocuments has occurred;
(nl) with respect to any Guaranteed Pension Plan, an ERISA Reportable Event shall have occurred and the Required Majority 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 Borrower or any of their respective 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 $10,000,000.00 and (x) 5,000,000 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 (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; 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 Unencumbered Pool in accordance with the provisions 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 Unencumbered Pool to comply with any of the conditions set forth in the definition of Eligible Unencumbered Properties;
(n) there occurs any Change of Control;
(o) without limitation of the Borrowerother provisions of this §14.1, the Trust shall at any Guarantor time fail to be the sole general partner of FPLP (or enters into any of their respective Subsidiaries agreement to permit any other Person to acquire a general partner interest in FPLP) or shall at any shareholder, officer, director, partner or member time be in contravention of any of them shall be indicted for a federal crimethe requirements contained in the last paragraph of §9.2 hereof, a punishment for which could include the forfeiture of or §9.3 (i) any assets of the Borrowerincluding, without limitation, the Guarantors or any last paragraph of their respective Subsidiaries which in the good faith judgment of the Required Lenders could have a Material Adverse Effect, or (ii) the Unencumbered Asset Pool Properties;§9.3); or
(p) any Change of Control shall occur;
(q) an Event of Default under any of the other Loan Documents shall occur;
(r) notwithstanding anything herein to the contrary (including without limitation §12.1(g)), the Borrower and the Guarantors hereby expressly agree that shall make any “Event of Default” (as defined in the Equipment Loan Documents) (which shall be deemed to include maturity of the debt evidenced and secured by the Equipment Loan Documents or any other occurrence which would give the Equipment Lender the right to exercise remedies principal payment under the Equipment 2007 Term Loan Documents) shall constitute and be deemed at a time when the Minimum Liquidity does not equal or exceed the Minimum Liquidity Threshold (after giving effect to be an Event of Default under this Agreement for which no right to cure shall be available. Without limiting the foregoing, an “Event of Default” under the Equipment Loan Documents shall conclusively be deemed to have occurred upon the declaration, statement or notice from the Equipment Lender’s as to the existence or occurrence of an “Event of Default” under any of the Equipment Loan Documents;
(s) Any default, material misrepresentation or breach of warranty in the QTLP Subordination and Standstill Agreement by Borrower or the subordinate lender that is the holder of QTLP Subordinate Note;
(t) [Intentionally Omitted.]
(u) Any default, material misrepresentation or breach of warranty in the Bond Subordination and Standstill Agreement by the Authority or the subordinate lender that is the holder of the Bondsuch principal payment); then, and in any such event, so long as the same may be continuing, the Agent shall, at the direction of the Majority Lenders, or may, and upon with the request consent of the Required Lenders shallMajority Lenders, by notice in writing to the Borrower declare all amounts owing with respect to this Agreement, the Notes, the Letters of 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 any kind, all of which are hereby expressly waived by the Borrower, the Trust and each of their respective Subsidiaries; provided that in the event of any Event of Default specified in §12.1(h), §12.1(i14.1(g) or §12.1(j14.1(h), 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 Lenders or the Agent or action by the Lenders or the Agent. Upon demand by Agent Notwithstanding the foregoing provisions of this §14.1, in the event of a Default or the Majority Revolving Credit Lenders in their absolute and sole discretion after the occurrence of an Event of DefaultDefault arising as a result of the inclusion of any Real Estate Asset in the Unencumbered 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 Unencumbered Pool in accordance with, and regardless of whether the conditions precedent in this Agreement for a Revolving Credit Loan have been satisfiedsubject to, 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 §8.13 and held by Agent as security for any amounts that become payable under the Letters of Credit and with 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 Defaultcovenant calculations under §10 or otherwise, the Borrower will Cash Collateralize the Letter of Credit Liabilities shall be permitted a period not to exceed five (in an amount equal 5) days to submit to the amount Agent (with copies to the Agent for each Lender) a compliance certificate in the form of Exhibit C hereto evidencing compliance with §2.1 and with all undrawn Letters of Credit). Such amounts 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 Unencumbered Pool) and with the Unencumbered Property Conditions, and otherwise certifying that, after giving effect to the exclusion of such Real Estate Asset from the Unencumbered Pool, no Default or Event of Default 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 in accordance with §2.12. 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 and 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 the Borrower will be released to the Borrowercontinuing.
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 or lapse of time, “Defaults”") shall occur:
(a) the Borrower any Consignee shall fail to purchase or pay for (whether by payment of cash or by Redelivery) any principal Consigned Precious Metal when required to do so pursuant to the terms 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 paymentthis Agreement;
(b) the Borrower any Consignee shall fail to pay any interest on the LoansDaily Consignment Fees, any reimbursement obligations with respect to the Letters of Credit, commitment fees or any fees other sum due under this Agreement or other sums due hereunder or under any of the other Loan Consignment Documents when within three (3) Business Days after the date on which the same shall have first become due and payable, whether at the stated date of maturity or any accelerated date of maturity or at any other date fixed for payment;
(c) the Borrower any Consignee or any of its Subsidiaries shall fail to comply with the perform any term, covenant or agreement contained in §9.1 ss.ss.3.1, 3.2, 8.1 (other than 8.1.2(i) and such failure shall continue for five (5) Business Days after written notice thereof shall have been given to the Borrower by the Agent8.1.3(ii)), 8.2 and 8.3;
(d) any of the Borrower, the Guarantors Consignee or any of their respective its Subsidiaries shall fail to perform (i) any term, covenant or agreement contained in ss.8.1.2(i) or ss.8.1.3(ii) or any other term, covenant or agreement contained in §8.20the Consignment Documents (other than those terms, §9.3covenants and agreements contained in ss.4 of the Security Agreement), §9.4and such failure shall continue unremedied for a period of thirty (30) days after Notice thereof shall have been given by the Agent to a Consignee, §9.5 or §9.6(ii) any term, covenant or agreement contained in ss.4 of the Security Agreement, and such failure shall continue unremedied for a period of thirty (30) days;
(e) any representation or warranty of the Borrower, the Guarantors any Consignee or any of their respective its Subsidiaries shall fail to perform any other term, covenant or agreement contained herein in the Consignment Documents or in any of certificate or notice given in connection therewith shall have been false or misleading in any material respect at the other Loan Documents which they are required time made or deemed to perform (other than those specified in the other subclauses of this §12 or in the other Loan Documents)have been made;
(f) any representation or warranty made by or on behalf of the Borrower, the Guarantors Consignee 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, 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;
(g) any of the Borrower, the Guarantors or any of their respective its Subsidiaries shall fail to pay when due (including, without limitation, at maturity), or within any applicable period of grace, any principal, interest obligation owed by it under the Senior Notes or any other amount on account any obligation for borrowed money or credit received or in respect of Capitalized Leases (other Indebtedness (including under any Derivatives Contract)than in respect of the Dollar Facility and the Senior Debentures) which other obligation shall be in excess of $1,000,000 in aggregate principal amount, or shall fail to observe or perform any material term, covenant or agreement contained in the Senior Notes or the documents executed in connection therewith or any material term, covenant or agreement contained in any agreement by which it is bound, evidencing or securing any other obligation for borrowed money or credit received or in respect of Capitalized Leases (other Indebtedness (including under any Derivatives Contractthan in respect of the Dollar Facility and the Senior Debentures) which other obligation shall be in excess of $1,000,000 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 thereof;
(g) the Parent shall fail to pay at maturity, or require within any applicable period of grace, any obligation owed by it under the termination Senior Debentures or any other settlement of such obligation; 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 in the aggregate obligations obligation for borrowed money or credit received or in respect of Capitalized Leases (other Recourse Indebtedness totaling than in respect of the Dollar Facility and the Senior Notes) which other obligation shall be in excess of $15,000,000.00 1,000,000 in aggregate principal amount, or Non-Recourse Indebtedness fail to observe or perform any material term, covenant or agreement contained in the Senior Debentures or the documents executed in connection therewith or any material term, covenant or agreement contained in any other obligation for borrowed money or credit received or in respect of Capitalized Leases (other than in respect of the Dollar Facility and the Senior Notes) which other obligation shall be in excess of $60,000,000.001,000,000 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;
(h) any of Consignee or the Borrower, the Guarantors or any of their respective Subsidiaries (i) Parent shall make an assignment for the benefit of creditors, or admit in writing its general inability to pay or generally fail to pay its debts as they mature at maturity, or become duewithin any applicable period of grace, any obligation owed by it under the Dollar Facility, or shall petition fail to observe or apply perform any material term, covenant or agreement contained in the Dollar Facility, for such period of time as would permit (assuming the appointment giving of a trustee appropriate notice if required) the Dollar Agent or other custodian, liquidator or receiver for it or any substantial part of its assets, the Lenders (iias defined in the Dollar Facility) shall commence any case or other proceeding relating to 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 (iii) shall take any action to authorize or in furtherance of any of accelerate the foregoingmaturity thereof;
(i) a petition or application shall be filed for the appointment of a trustee or other custodian, liquidator or receiver of any of the Borrower, the Guarantors or any of their respective Subsidiaries or any substantial part of the assets of any thereof, or a case or other proceeding shall be commenced against any 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, and any such Person shall indicate its approval thereof, consent thereto or acquiescence therein or such petition, application, case or proceeding shall not have been dismissed within sixty (60) days following the filing or commencement thereof;
(j) a decree or order is entered appointing a trustee, custodian, liquidator or receiver for any of the Borrower, the Guarantors or any of their respective Subsidiaries or adjudicating any 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 any such Person in an involuntary case under federal bankruptcy laws as now or hereafter constituted;
(k) there shall remain in force, undischarged, unsatisfied and unstayed, for more than sixty (60) days, whether or not consecutive, one or more uninsured or unbonded final judgments, orders, awards, writs execution or attachments against the Borrower, Guarantors or any of their respective Subsidiaries that, either individually or in the aggregate, exceed $10,000,000.00;
(l) any of the Loan Documents, the Contribution Agreement, the Equipment Intercreditor Agreement or the Subordination and Standstill Agreements shall be canceled, terminated, revoked or rescinded otherwise than except in accordance with the terms thereof or with the express prior written agreement, consent or approval of the LendersAgent, (i) (A) any of the Consignment Documents shall be cancelled, terminated, revoked or rescinded, (B) the Agent's Liens for the benefit of the Institutions and the Agent in all or any portion of the Collateral having an aggregate value in excess of the lesser of two and one-half percent (2 1/2%) of the Fair Market Value of all Consigned Precious Metal then outstanding and $500,000, shall cease to be perfected or shall cease to have the priority contemplated by the Security Documents and the Intercreditor Agreement, or (C) the Agent's Liens for the benefit of the Institutions and the Agent in any portion of the Collateral having an aggregate value less than or equal to the lesser of two and one-half percent (2 1/2%) of the Fair Market Value of all Consigned Precious Metal then outstanding and $500,000 shall cease to be perfected or shall cease to have the priority contemplated by the Security Documents and the Intercreditor Agreement, and such cessation of perfection or priority shall continue unremedied for a period of thirty (30) days, or (ii) any action at law, suit or in equity or other legal proceeding to cancel, revoke or rescind any of the Loan Documents, the Contribution Agreement, the Equipment Intercreditor Agreement or the Subordination and Standstill Agreements Consignment Documents shall be commenced by or on behalf of the Borrower any Consignee or any of the Guarantorsits Subsidiaries party thereto or any of their respective stockholders, or (iii) any court or any other governmental or regulatory authority or agency of competent jurisdiction shall make a determinationdetermination that, or issue a judgment, order, decree or ruling, ruling to the effect that that, any one or more of the Loan Documents, the Contribution Agreement, the Equipment Intercreditor Agreement or the Subordination and Standstill Agreements Consignment Documents is illegal, invalid or unenforceable in accordance with the terms thereof;
(j) any of the Parent, any Consignee or any of its Subsidiaries (i) shall make an assignment for the benefit of creditors, (ii) shall be adjudicated bankrupt or insolvent, (iii) shall seek the appointment of, or be the subject of an order appointing, a trustee, liquidator or receiver as to all or a substantial part of its assets, (iv) shall commence, approve or consent to, any case or proceeding under any bankruptcy, reorganization or similar law and, in the case of an involuntary case or proceeding, such case or proceeding is not dismissed within sixty (60) days following the commencement thereof, or (v) shall be the subject of an order for relief in an involuntary case under federal bankruptcy law;
(k) any of the Parent, any Consignee or any of its Subsidiaries shall be unable to pay its debts generally as they mature;
(l) there shall remain undischarged and unstayed for more than thirty (30) days any final judgment or execution action against any of the Parent, any Consignee or any of its Subsidiaries that, together with other outstanding claims and execution actions against the Parent, the Consignees and their Subsidiaries exceeds $1,000,000 in the aggregate;
(m) any dissolution, termination, partial or complete liquidation, merger or consolidation of any of the Borrower, the Guarantors Consignee or any of their respective its Subsidiaries shall occur be enjoined, restrained or in any way prevented by the order of any court or any sale, transfer administrative or other disposition regulatory agency from conducting any material part of the assets of any of the Borrower, the Guarantors or any of their respective Subsidiaries its domestic business and such order shall occur other continue in effect for more than as permitted under the terms of this Agreement or the other Loan Documentsthirty (30) days;
(n) with respect to there shall occur any Guaranteed Pension Planmaterial damage to, 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 or loss, theft or destruction of, any of the BorrowerConsigned Precious Metal, the Guarantors or any of their respective Subsidiaries products or property which includes Consigned Precious Metal, for which additional Eligible Specified Gold Jewelry in replacement thereof is not immediately delivered or as to which immediate payment therefor (equal to the PBGC or such Guaranteed Pension Plan in an aggregate amount exceeding $10,000,000.00 and (x) such event in Fair Market Value thereof at the circumstances occurring reasonably could constitute grounds for the termination time of such Guaranteed Pension Plan loss, theft or destruction plus twenty-five cents ($0.25) per t▇▇▇ ounce thereof) has not been made by the PBGC or for Consignees to 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 PlanAgent;
(o) 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 thirty (30) consecutive days, the Borrower, cessation or substantial curtailment of revenue producing activities at any Guarantor facility of any Consignee or any of their respective its Subsidiaries if such event or any shareholder, officer, director, partner circumstance is not covered by business interruption insurance satisfactory to the Agent and has or member of any of them shall could reasonably be indicted for a federal crime, a punishment for which could include the forfeiture of (i) any assets of the Borrower, the Guarantors or any of their respective Subsidiaries which in the good faith judgment of the Required Lenders could expected to have a Material Materially Adverse Effect, or (ii) the Unencumbered Asset Pool Properties;
(p) there shall occur the loss, suspension or revocation of, or failure to renew, any Change license or permit now held or hereafter acquired by any Consignee or any of Control shall occurits Subsidiaries if such loss, suspension, revocation or failure to renew has or could reasonably be expected to have a Materially Adverse Effect;
(q) an Event of Default under the Parent shall at any time, legally or beneficially, own less than 100% of the other Loan Documents outstanding capital stock of Finlay or Finlay shall occurat any time, legally or beneficially, own less than 100% of the outstanding capital stock of any Consignee Subsidiary, including eFinlay;
(r) notwithstanding anything herein to (i) any "person" or "group" (within the contrary (including without limitation §12.1(g)meaning of Section 13(d) or 14(d)(2) of the Securities Exchange Act of 1934, as amended), other than the Borrower Principals and their Related Parties, or an entity controlled by the Guarantors hereby expressly agree that any “Event Principals and their Related Parties, becomes the "beneficial owner" (within the meaning of Default” (as defined in Rule 13d-3 promulgated by the Equipment Loan DocumentsSecurities and Exchange Commission under said Act) (which shall be deemed to include maturity of more than 50% of the debt evidenced and secured total aggregate voting power of all classes of the voting stock of any Consignee or the Parent and/or warrants or options to acquire such voting stock, calculated on a fully diluted basis; or (ii) during any period of two consecutive calendar years, individuals who at the beginning of such period constituted any Consignee's board of directors (together with any new directors whose election by such Consignee's board of directors or whose nomination for election by such Consignee's stockholders was approved by a vote of at least two-thirds of the directors then still in office who either were directors at the beginning of such period or whose election or nomination for election was previously so approved) cease for any reason to constitute a majority of the directors of such Consignee then in office, unless such majority of the directors then in office has been elected or nominated for election by the Equipment Loan Documents Principals or any other occurrence which would give their Related Parties or an entity controlled by the Equipment Lender the right to exercise remedies under the Equipment Loan Documents) shall constitute and be deemed to be an Event of Default under this Agreement for which no right to cure shall be available. Without limiting the foregoing, an “Event of Default” under the Equipment Loan Documents shall conclusively be deemed to have occurred upon the declaration, statement Principals or notice from the Equipment Lender’s as to the existence or occurrence of an “Event of Default” under any of the Equipment Loan Documentstheir Related Parties;
(s) Any defaultthe Parent shall engage in any activities other than the ownership of the stock of Finlay, material misrepresentation or breach compliance with the terms of warranty in the QTLP Subordination Senior Debentures, and Standstill Agreement by Borrower or such other activities which are incidental to either of the subordinate lender that is the holder of QTLP Subordinate Noteforegoing;
(t) [Intentionally Omitted.]there shall be less than thirty (30) days until the expiration of the Letter of Credit and such Letter of Credit shall not have been extended or renewed by the issuer thereof; or
(u) Any defaultthe credit rating of the issuer of the Letter of Credit shall fall below a "B" LACE rating, material misrepresentation and the Consignees shall not, within thirty (30) days following such change in rating, have obtained a substitute Letter of Credit in form and substance acceptable to the Institutions and the Agent and issued by an issuer having at least a "B" LACE rating and otherwise acceptable to the Institutions and the Agent; THEN, or breach at any time thereafter:
(1) If any Event of warranty in Default under clause (j) or (k) shall occur, (A) the Bond Subordination Commitments shall automatically terminate and Standstill Agreement the Agent and the Institutions shall be relieved of all further obligations to make Purchases and Consignments to any Consignee, (B) the Consignees shall be immediately jointly and severally obligated to (i) Redeliver an amount of Consigned Precious Metal and/or (ii) pay to the Agent an amount equal to the Spot Value of any Consigned Precious Metal on the date of such payment divided by the Authority or Second London Fixing for such date, such that the subordinate lender that is combined amount of Consigned Precious Metal Redelivered and/or paid for pursuant to subclauses (i) and (ii) of this clause (B) shall be equal to the holder aggregate number of the Bond; thenounces of Consigned Precious Metal outstanding, and in any such event, the Agent may(C) all accrued and unpaid Daily Consignment Fees and commitment fees, and upon the request of the Required Lenders shall, by notice in writing to the Borrower declare all other amounts owing with respect to this Agreement, the Notes, the Letters of Credit payable hereunder and under the other Loan Consignment Documents to be, and they shall thereupon automatically become forthwith become, immediately due and payable 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 each Consignee;
(2) If any Event of Default specified in §12.1(hother than an Event of Default under (h), §12.1(i(j) or §12.1(j)and (k) shall occur and be continuing, the Agent may, and upon the request of the Required Institutions shall, by Notice to the Consignees, (A) terminate the Commitment and the Agent and the Institutions shall be relieved of all further obligations to make Purchases and Consignments to any Consignee, (B) require that the Consignees immediately (such obligation of the Consignees to be joint and several) (i) Redeliver an amount of Consigned Precious Metal and/or (ii) pay to the Agent an amount equal to the Spot Value of any Consigned Precious Metal on the date of such payment divided by the Second London Gold Fixing for such date, such that the combined amount of Consigned Precious Metal Redelivered and/or paid for pursuant to subclauses (i) and (ii) of this clause (B) shall be equal to the aggregate number of ounces of Consigned Precious Metal outstanding, and/or (C) declare all accrued and unpaid Daily Consignment Fees and commitment fees, and all other amounts shall become immediately payable hereunder and under the other Consignment Documents to be forthwith due and payable automatically and payable, without any requirement of presentment, demand, protest or other further notice of any kind from kind, all of which are hereby expressly waived by each Consignee; and
(3) If any Event of Default under clause (h) shall have occurred and be continuing, the Agent may, and upon the request of the Lenders or Required Institutions shall, by Notice to the Agent. Upon demand by Agent or the Majority Revolving Credit Lenders in their absolute and sole discretion after Consignees no earlier than ninety (90) days following the occurrence of an such Event of DefaultDefault (A) terminate the Commitments and the Agent and the Institutions shall be relieved of all further obligations to make Purchases and Consignments to any Consignee, and regardless (B) require that the Consignees immediately (such obligation 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 Consignees to be made in the undrawn joint and several) (i) Redeliver an amount of all Letters of Credit. The proceeds of any such Revolving Credit Loan will be pledged Consigned Precious Metal and/or (ii) pay 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 Agent in its absolute and sole discretion after the occurrence of an Event of Default, the Borrower will Cash Collateralize the Letter of Credit Liabilities (in an amount equal to the Spot Value of any Consigned Precious Metal on the date of such payment divided by the Second London Gold Fixing for such date, such that the combined number of ounces of Consigned Precious Metal Redelivered and/or paid for pursuant to subclauses (i) and (ii) of this clause (B) shall be equal to the aggregate amount of Consigned Precious Metal outstanding, and/or (C) declare all undrawn Letters of Credit). Such amounts will be pledged to accrued and held by Agent for the benefit of the Lenders as security for any amounts that become payable under the Letters of Credit unpaid Daily Consignment Fees and commitment fees, and all other Obligations amounts payable hereunder and Hedge Obligations in accordance with §2.12. Upon under the other Consignment Documents to be forthwith due and payable, without presentment, demand, protest or further notice of any draws under Letters kind, all 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 which 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 excess no longer exists, such proceeds deposited hereby expressly waived by the Borrower will be released to the Borrowereach Consignee.
Appears in 1 contract
Sources: Gold Consignment Agreement (Finlay Enterprises 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 or lapse of time, “Defaults”"EVENTS OF DEFAULT") shall occur:
(a) 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) the Borrower or any of its Subsidiaries shall fail to pay any interest on the Loans, any reimbursement obligations with respect to the Letters of CreditFees, or any fees or other sums due hereunder or under any of the other Loan Documents when the same shall become Documents, within three (3) days of such sum becoming due and payable, whether at the stated date of maturity or any accelerated date of maturity or at any other date fixed for payment;
(c) the Borrower shall fail to comply with the covenant any of its covenants contained in §9.1 and such failure Sections 8.5, 8.6.1, 8.12, 9 or 10;
(d) the Borrower or any of its Subsidiaries shall continue (i) fail to comply with the covenants contained in Section 8.4 for five (5) Business Days after written notice thereof shall have been given to the Borrower by the Agent;
days, or (dii) any of the Borrower, the Guarantors or any of their respective Subsidiaries shall fail to perform any other term, covenant or agreement contained in §8.20, §9.3, §9.4, §9.5 or §9.6;
(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 which they are required to perform (other than those specified elsewhere in this Section 13.1 (including Section 13.1(a) and (b))) for twenty (20) days after written notice of such failure has been given to the other subclauses of this §12 or in Borrower by the other Loan Documents)Administrative Agent;
(fe) any representation or warranty made by or on behalf of the Borrower, the Guarantors Borrower or any of their respective its Subsidiaries in this Credit Agreement or any of the other Loan Document, or any report, certificate, financial statement, request for a Loan, Letter of Credit Request, Documents or in any other document or instrument delivered pursuant to or in connection with this Agreement, any advance of a Loan, the issuance of any Letter of 81 Credit or any of the other Loan Documents Agreement shall prove to have been false in any material respect upon the date when made or deemed to have been made or repeated;
(gf) any of the Borrower, the Guarantors Borrower or any of their respective its Subsidiaries (other than the SPVs) shall (i)(A) fail to pay when due (including, without limitation, at maturity), or within any applicable period of grace, any principal, interest or other amount on account any obligation for borrowed money (including the obligations of the Borrower and its Subsidiaries, as the case may be, under the Senior Note Indenture or the Sale-Leaseback Transaction but excluding (subject to clause (i)(B) hereof) the FFCA Mortgage Financing Documents), credit received or other Indebtedness (including under in respect of any Derivatives Contract)Capitalized Leases which obligation exceeds $1,000,000, or shall (B) fail to observe or perform any material term, covenant or agreement contained in the FFCA Master Leases or the FFCA Amended and Restated Master Lease, or (ii) fail to observe or perform any material term, covenant or agreement contained in any agreement by which it is bound, evidencing or securing any obligation for borrowed money (including the Senior Note Indenture and the Sale-Leaseback Transaction Documents but excluding the FFCA Mortgage Financing Documents) or credit received or other Indebtedness (including under in respect of any Derivatives Contract) Capitalized Leases which obligation exceeds $1,000,000 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 or to require the termination Borrower, to prepay, redeem or other settlement of repurchase such obligation; provided that the events described obligations 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 whole or in the aggregate part or offer to prepay, redeem or repurchase such obligations for borrowed money in whole or credit received or other Recourse Indebtedness totaling in excess of $15,000,000.00 or Non-Recourse Indebtedness in excess of $60,000,000.00part;
(hg) any of the Borrower, the Guarantors Borrower or any of their respective its Subsidiaries (i) shall make an assignment for the benefit of creditors, or admit in writing its general 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 for it of the Borrower or any of its Subsidiaries or of any substantial part of the assets of the Borrower or any of its assets, (ii) Subsidiaries or shall commence any case or other proceeding relating to it the Borrower or any 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 (iii) shall take any action to authorize or in furtherance of any of the foregoing;
(i) a , or if any such petition or application shall be filed for the appointment of a trustee or other custodian, liquidator or receiver of any of the Borrower, the Guarantors or any of their respective Subsidiaries or any substantial part of the assets of any thereof, or a such case or other proceeding shall be commenced against the Borrower or any such Person under of its Subsidiaries and the Borrower or any bankruptcy, reorganization, arrangement, insolvency, readjustment of debt, dissolution or liquidation or similar law of any jurisdiction, now or hereafter in effect, and any such Person its Subsidiaries shall indicate its approval thereof, consent thereto or acquiescence therein or such petition, application, case petition or proceeding application shall not have been dismissed within sixty (60) days following the filing or commencement thereof;
(jh) a decree or order is entered appointing a any such trustee, custodian, liquidator or receiver for any of or adjudicating the Borrower, the Guarantors Borrower or any of their respective its Subsidiaries or adjudicating any 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 any such Person Subsidiary of the Borrower in an involuntary case under federal bankruptcy laws as now or hereafter constituted;
(ki) there shall remain in force, undischarged, unsatisfied and unstayed, for more than sixty (60) daysthirty days any final judgment against the Borrower or any of its Subsidiaries that, whether or not consecutive, one or more uninsured or unbonded with other outstanding final judgments, ordersundischarged, awards, writs execution or attachments against the Borrower, Guarantors Borrower or any of their respective its Subsidiaries that, either individually or exceeds in the aggregate, exceed aggregate (exclusive of any amounts fully covered by insurance (less any applicable deductible)) $10,000,000.001,000,000;
(lj) if any of the Loan Documents, the Contribution Agreement, the Equipment Intercreditor Agreement or the Subordination and Standstill Agreements Documents shall be canceledcancelled, terminated, revoked or rescinded or the Administrative 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 pursuant to any transaction permitted hereunder or with the express prior written agreement, consent or approval of the Lenders, or any action at law, suit or in equity or other legal proceeding to cancel, revoke or rescind any of the Loan Documents, the Contribution Agreement, the Equipment Intercreditor Agreement or the Subordination and Standstill Agreements Documents shall be commenced by or on behalf of the Borrower or any of the Guarantorsits 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 determinationdetermination that, or issue a judgment, order, decree or ruling, ruling to the effect that that, any one or more of the Loan Documents, the Contribution Agreement, the Equipment Intercreditor Agreement or the Subordination and Standstill Agreements Documents is illegal, invalid or unenforceable in accordance with the terms thereof;
(mk) the Borrower or any dissolutionERISA Affiliate incurs any termination liability to the PBGC or a Guaranteed Pension Plan pursuant to Title IV of ERISA in an aggregate amount exceeding $1,000,000, terminationor 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 $100,000, partial or complete liquidation, merger or consolidation of any of the Borrower, the Guarantors or any of their respective Subsidiaries shall occur or any sale, transfer or other disposition of the assets of any of the Borrower, 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;
(n) 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 Required Lenders shall have determined in their reasonable discretion meaning of Section 302(f)(1) of ERISA), PROVIDED that such event (A) could reasonably could be expected to result in liability of any of the Borrower, the Guarantors Borrower or any of their respective its Subsidiaries to the PBGC or such Guaranteed Pension Plan in an aggregate amount exceeding $10,000,000.00 100,000 and (xB) such event in the circumstances occurring could reasonably could be expected to constitute grounds for the 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 (yii) the appointment by a trustee shall have been appointed by the United States District Court of a trustee to administer such Guaranteed Pension Plan; or (ziii) the institution by the PBGC shall have instituted of proceedings to terminate such Guaranteed Pension Plan;
(ol) the Borrowerthere shall occur any material damage to, or loss, theft or destruction of, any Guarantor Collateral, whether or not insured, or any strike, lockout, labor dispute, embargo, condemnation, act of God or public enemy, or other casualty, or any eviction of the Borrower from any Units, 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 or any of their respective Subsidiaries 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 the Borrower, the Guarantors or any of their respective its Subsidiaries which in the good faith judgment of the Required Lenders could would have a Material Adverse Effect, or (ii) the Unencumbered Asset Pool Properties;
(pm) any a Change of Control shall occur;
(q) an Event of Default under any of the other Loan Documents shall occur;
(r) notwithstanding anything herein to the contrary (including without limitation §12.1(g)), the Borrower and the Guarantors hereby expressly agree that any “Event of Default” (as defined in the Equipment Loan Documents) (which shall be deemed to include maturity of the debt evidenced and secured by the Equipment Loan Documents or any other occurrence which would give the Equipment Lender the right to exercise remedies under the Equipment Loan Documents) shall constitute and be deemed to be an Event of Default under this Agreement for which no right to cure shall be available. Without limiting the foregoing, an “Event of Default” under the Equipment Loan Documents shall conclusively be deemed to have occurred upon the declaration, statement or notice from the Equipment Lender’s as to the existence or occurrence of an “Event of Default” under any of the Equipment Loan Documents;
(s) Any default, material misrepresentation or breach of warranty in the QTLP Subordination and Standstill Agreement by Borrower or the subordinate lender that is the holder of QTLP Subordinate Note;
(t) [Intentionally Omitted.]
(u) Any default, material misrepresentation or breach of warranty in the Bond Subordination and Standstill Agreement by the Authority or the subordinate lender that is the holder of the Bond; 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, the Letters of 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 PROVIDED that in the event of any Event of Default specified in §12.1(h), §12.1(iSection Section 13.1(g) or §12.1(j13.1(h), 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 Lenders or the Agent. Upon demand by Administrative Agent or the Majority Revolving Credit 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, the Borrower will Cash Collateralize the Letter of Credit Liabilities (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 Lenders as security for any amounts that become payable under the Letters of Credit and all other Obligations and Hedge Obligations in accordance with §2.12. 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 and 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 the Borrower will be released to the BorrowerLender.
Appears in 1 contract
Sources: Revolving Credit Agreement (Friendly Ice Cream 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 or lapse of time, “Defaults”) shall occur:
(a) 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;; none of the foregoing is a Non-Material Breach.
(b) the Borrower shall fail to pay any interest on the Loans, any reimbursement obligations with respect to the Letters of Credit, Loans or any fees or other sums due hereunder or under any of the other Loan Documents (including, without limitation, amounts due under §7.15) 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 such failure continues for five (5) days; none of the foregoing is a Non-Material Breach.
(c) the Borrower shall fail to comply with the covenant contained in §9.1 and such failure shall continue for five (5) Business Days after written notice thereof shall have been given to the Borrower by the Agent;
(d) any of the Borrower, the Guarantors MCRC or any of their respective Subsidiaries shall fail to perform comply with any of their respective covenants contained in: §7.1 within ten (10) days of any such amount being due (except with respect to interest, fees and other termsums covered by clause (b) above or principal covered by clause (a) above); §7.6 (as to the legal existence of MCRLP for which no period to cure is granted); §7.7 (as to the legal existence and REIT status of MCRC for which no period to cure is granted); §7.12; §7.19 within ten (10) days of the occurrence of same; §8 (except with respect to §8.4 for Non-Material Breaches only, covenant or agreement contained in §8.20, §9.3, §9.4, §9.5 or §9.6;8.5); or §9; none of the foregoing is a Non-Material Breach.
(ed) any of the Borrower, the Guarantors MCRC 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 Document (other than those specified elsewhere in the other subclauses of this §12 12) and such failure continues for thirty (30) days (other than a Non-Material Breach (excluding §8.4 for which the Non-Material Breach must be cured within the thirty or ten days, as applicable, provided therein) and such cure period shall not extend any specific cure period set forth in the other Loan Documentsany term, covenant or agreement covered by this §12.1(d);).
(fe) any representation or warranty made by or on behalf of the Borrower, the Guarantors MCRC or any of their respective Subsidiaries in this Agreement or any of the other Loan Document, or any report, certificate, financial statement, request for a Loan, Letter of Credit Request, Documents or in any other document or instrument delivered pursuant to or in connection with this Agreement, any advance of a Loan, the issuance of any Letter of Credit or any of the other Loan Documents Agreement shall prove to have been false in any material respect upon the date when made or deemed to have been made or repeated;repeated (other than a Non-Material Breach).
(gf) any of the Borrower, the Guarantors MCRC or any of their respective Subsidiaries shall (i) fail to pay when due (including, without limitation, at maturity), or within any applicable period of gracegrace or cure, any principal, interest or other amount on account any obligation for borrowed money or credit received by it (other than current obligations in the ordinary course of business) or other Indebtedness in respect of any Capitalized Leases, in each case only in respect of any Recourse obligations or credit in an aggregate amount in excess of $50,000,000 (including under any Derivatives Contract), determined in accordance with §9.9 hereof) or shall (ii) fail to observe or perform any material term, covenant or agreement contained in any agreement by which it is bound, evidencing or securing any obligation for borrowed money or credit received (other than current obligations in the ordinary course of business) or other Indebtedness in respect of any Capitalized Leases, in each case only in respect of any Recourse obligations or credit in an aggregate amount in excess of $50,000,000 (including under any Derivatives Contract) determined in accordance with §9.9 hereof), for such period of time as would permit (assuming after the giving of appropriate notice if required) as would permit the holder or holders thereof or of any obligations issued thereunder to accelerate the maturity thereof or require any such obligations to be prepaid, redeemed, repurchased or defeased prior to the termination or other settlement maturity thereof; and none of such obligation; 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 in the aggregate obligations for borrowed money or credit received or other Recourse Indebtedness totaling in excess of $15,000,000.00 or foregoing is a Non-Recourse Indebtedness in excess of $60,000,000.00;Material Breach.
(hg) any of the Borrower, the Guarantors MCRC, or any Material Subsidiary excluding any Material Subsidiary which is the subject of their respective Subsidiaries (ia Permitted Event) shall make an assignment for the benefit of creditors, or admit in writing its general 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 for it of the Borrower, MCRC, or any Material Subsidiary (excluding any Material Subsidiary which is the subject of a Permitted Event) or of any substantial part of its assetsthe properties or assets of the Borrower, MCRC, or any Material Subsidiary (iiexcluding any Material Subsidiary which is the subject of a Permitted Event) or shall commence any case or other proceeding relating to it the Borrower, MCRC, or any Material Subsidiary (excluding any Material Subsidiary which is the subject of a Permitted Event) under any bankruptcy, reorganization, arrangement, insolvency, readjustment of debt, dissolution or liquidation or similar law of any jurisdiction, now or hereafter in effect, or (iii) shall take any action to authorize or in furtherance of any of the foregoing;
(i) a , or if any such petition or application shall be filed for the appointment of a trustee or other custodian, liquidator or receiver of any of the Borrower, the Guarantors or any of their respective Subsidiaries or any substantial part of the assets of any thereof, or a such case or other proceeding shall be commenced against the Borrower, MCRC, or any such Person under Material Subsidiary (excluding any bankruptcyMaterial Subsidiary which is the subject of a Permitted Event) and (i) the Borrower, reorganizationMCRC, arrangement, insolvency, readjustment or any Material Subsidiary (excluding any Material Subsidiary which is the subject of debt, dissolution or liquidation or similar law of any jurisdiction, now or hereafter in effect, and any such Person a Permitted Event) shall indicate its approval thereof, consent thereto or acquiescence therein or (ii) any such petition, application, case or other proceeding shall not have been dismissed within sixty continue undismissed, or unstayed and in effect, for a period of seventy-five (6075) days following the filing or commencement thereof;days.
(jh) a decree or order is entered appointing a any trustee, custodian, liquidator or receiver for any of or adjudicating the Borrower, the Guarantors MCRC or any Material Subsidiary (excluding any Material Subsidiary which is the subject of their respective Subsidiaries or adjudicating any such Person, a Permitted Event) 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, MCRC or any such Person Material Subsidiary (excluding any Material Subsidiary which is the subject of a Permitted Event) in an involuntary case under federal bankruptcy laws as now or hereafter constituted;, and such proceeding, decree or order shall continue undismissed, or unstayed and in effect, for a period of seventy-five (75) days.
(ki) there shall remain in force, undischarged, unsatisfied and unstayed, for a period of more than sixty thirty (6030) days, whether or not consecutive, one or more any uninsured or unbonded final judgments, orders, awards, writs execution or attachments judgment against the Borrower, Guarantors MCRC or any Material Subsidiary (excluding any Material Subsidiary which is the subject of their respective Subsidiaries a Permitted Event) that, either individually or in the aggregatewith other outstanding uninsured final judgments, exceed $10,000,000.00;
(l) any of the Loan Documentsundischarged, the Contribution Agreementunsatisfied and unstayed, the Equipment Intercreditor Agreement or the Subordination and Standstill Agreements 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, the Contribution Agreement, the Equipment Intercreditor Agreement or the Subordination and Standstill Agreements shall be commenced by or on behalf of the Borrower or any of 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, the Contribution Agreement, the Equipment Intercreditor Agreement or the Subordination and Standstill Agreements 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 against the Borrower, the Guarantors MCRC or any Material Subsidiary (excluding any Material Subsidiary which is the subject of their respective Subsidiaries shall occur or any sale, transfer or other disposition of the assets of any of the Borrower, 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;
(na Permitted Event) 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 their respective Subsidiaries to the PBGC or such Guaranteed Pension Plan in an aggregate amount exceeding $10,000,000.00 and (x) such event exceeds 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 (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) the Borrower, any Guarantor or any of their respective Subsidiaries 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 the Borrower, the Guarantors 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 Unencumbered Asset Pool Properties;
(p) any Change of Control shall occur;
(q) an Event of Default under any of the other Loan Documents shall occur;
(r) notwithstanding anything herein to the contrary (including without limitation §12.1(g)), the Borrower and the Guarantors hereby expressly agree that any “Event of Default” (as defined in the Equipment Loan Documents) (which shall be deemed to include maturity of the debt evidenced and secured by the Equipment Loan Documents or any other occurrence which would give the Equipment Lender the right to exercise remedies under the Equipment Loan Documents) shall constitute and be deemed to be an Event of Default under this Agreement for which no right to cure shall be available. Without limiting the foregoing, an “Event of Default” under the Equipment Loan Documents shall conclusively be deemed to have occurred upon the declaration, statement or notice from the Equipment Lender’s as to the existence or occurrence of an “Event of Default” under any of the Equipment Loan Documents;
(s) Any default, material misrepresentation or breach of warranty in the QTLP Subordination and Standstill Agreement by Borrower or the subordinate lender that is the holder of QTLP Subordinate Note;
(t) [Intentionally Omittedaggregate $10,000,000.]
(u) Any default, material misrepresentation or breach of warranty in the Bond Subordination and Standstill Agreement by the Authority or the subordinate lender that is the holder of the Bond; then, and in any such event, the 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 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 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 Lenders or the Agent. Upon demand by Agent or the Majority Revolving Credit 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, the Borrower will Cash Collateralize the Letter of Credit Liabilities (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 Lenders as security for any amounts that become payable under the Letters of Credit and all other Obligations and Hedge Obligations in accordance with §2.12. 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 and 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 the Borrower will be released to 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 or lapse of time, “Defaults”) shall occur:
(a) 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) the Borrower shall fail to pay any interest on the LoansLoans within five (5) 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 sums due hereunder (other than any voluntary prepayment) or under any of the other Loan Documents when the same shall become due and payablewithin five (5) days after notice from Agent, whether at the stated date of maturity or any accelerated date of maturity or at any other date fixed for payment;
(c) the Borrower shall fail to comply with the covenant contained in §9.1 and such failure shall continue for five (5) Business Days after written notice thereof shall have been given to the Borrower by the Agent[Reserved];
(d) any of the Borrower, Borrower or the Guarantors other Credit Parties or any of their respective Subsidiaries shall fail to perform any other term, covenant or agreement contained in §8.209.1, §9.39.2, §9.4, §9.5 9.3 or §9.69.4;
(e) any of the Borrower, Borrower or the Guarantors or any of their respective Subsidiaries 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 the other subclauses of this §12 or in the other Loan Documents), 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 cured within such thirty (30)-day period despite Borrower’s diligent efforts but is susceptible of being cured within ninety (90) days 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 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 Borrower, the Guarantors 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, Letter of Credit Loan Request, or in any other document or instrument delivered pursuant to or in connection with this 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 repeatedrepeated except to the extent it is not reasonably expected to have a Material Adverse Effect;
(g) Any (i) Borrower or other Credit Party defaults (after the expiration of any of the notice and cure or grace period) under any recourse Indebtedness in an aggregate amount equal to or greater than $5,000,000 or suffers a claim under non-recourse carve-out guaranty with respect to all uncured defaults at any time, or (ii) Borrower, the Guarantors Guarantor or any Subsidiary thereof defaults (after the expiration of their respective Subsidiaries shall fail to pay when due (including, without limitation, at maturity), any notice and cure or within any applicable period of grace, any principal, interest or other amount on account any obligation for borrowed money or credit received or other Indebtedness (including grace period) under any Derivatives Contract), or shall fail to observe or perform any term, covenant or agreement contained in any agreement by which it is bound, evidencing or securing any obligation for borrowed money or credit received or other Indebtedness (including under any Derivatives Contract) 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 the termination or other settlement of such obligation; 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 in the aggregate obligations for borrowed money or credit received or other Recourse Indebtedness totaling in excess of $15,000,000.00 or Non-Recourse Indebtedness in excess of an aggregate amount equal to or greater than $60,000,000.0020,000,000 with respect to all uncured defaults at any time;
(h) any of the BorrowerBorrower or other Credit Party, the Guarantors or any of their respective Subsidiaries (i) shall make an assignment for the benefit of creditors, or admit in writing its general 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 for it or any substantial part of its assets, (ii) shall commence any case or other proceeding relating to 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 (iii) shall take any action to authorize or in furtherance of any of the foregoing;
(i) a petition or application shall be filed for the appointment of a trustee or other custodian, liquidator or receiver of any of the Borrower, the Guarantors Borrower or any of their respective Subsidiaries other Credit Party or any substantial part of the assets of any thereof, or a case or other proceeding shall be commenced against any 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, and any such Person shall indicate its approval thereof, consent thereto or acquiescence therein or such petition, application, case or proceeding shall not have been dismissed within sixty ninety (6090) days following the filing or commencement thereof;
(j) a decree or order is entered appointing a trustee, custodian, liquidator or receiver for any of the Borrower, the Guarantors Borrower or any of their respective Subsidiaries other Credit Party or adjudicating any 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 any such Person in an involuntary case under federal bankruptcy laws as now or hereafter constituted;
(k) there shall remain in force, undischarged, unsatisfied and unstayed, for more than sixty thirty (6030) days, whether or not consecutive, one or more uninsured or unbonded final judgments, orders, awards, writs execution or attachments judgments against the Borrower, Guarantors REIT Guarantor or any of their respective Subsidiaries Subsidiary that, either individually or in the aggregate, exceed in excess of $10,000,000.005,000,000.00 in any calendar year;
(l) any of the material Loan Documents, the Contribution Agreement, the Equipment Intercreditor Agreement or the Subordination and Standstill Agreements 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, the Contribution Agreement, the Equipment Intercreditor Agreement or the Subordination and Standstill Agreements Documents shall be commenced by or on behalf of the Borrower or any of the GuarantorsCredit 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, the Contribution Agreement, the Equipment Intercreditor Agreement or the Subordination and Standstill Agreements 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 dissolution, termination, partial taxable year or complete liquidation, merger or consolidation of any the common Equity Interests of the Borrower, REIT Guarantor shall fail to be listed and traded on the Guarantors New York Stock Exchange or any of their respective Subsidiaries shall occur or any sale, transfer or other disposition of the assets of any of the Borrower, the Guarantors or any of their respective Subsidiaries shall occur other than as permitted under the terms of this Agreement or the other Loan Documentsanother publicly recognized exchange;
(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 would be expected to result in liability of any of the Borrower, the Guarantors or any of their respective Subsidiaries Credit Parties to pay money to the PBGC or such Guaranteed Pension Plan in an aggregate amount exceeding $10,000,000.00 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 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 dissolution, termination, partial or complete liquidation, merger or consolidation of any of the Borrower, the Guarantors or any Guarantor 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 Subsidiaries 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 the Borrower, the Guarantors or any of their respective Subsidiaries such Person which in the good faith judgment of the Required Lenders could have a Material Adverse Effect, or (ii) the Unencumbered Asset Pool PropertiesCollateral;
(pq) 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 any Guaranty or any other Loan Document, or shall fail to observe or comply with any term, covenant, condition or agreement under any Guaranty or any other Loan Document;
(r) Less than two (2) of the following individuals continue to be employed by the REIT Guarantor or Borrower in senior management / principal positions: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇., and ▇▇▇▇▇▇ ▇▇▇▇▇▇ (the “Key Man Test”); provided such occurrence shall not constitute an Event of Default if there is no Key Man or similar test in any other indebtedness of the REIT Guarantor and its Subsidiaries or in the organizational documents of the REIT Guarantor and its Subsidiaries;
(i) the occurrence of an event of default (after the expiration of any notice and cure or grace period) under the KeyBank Revolver, or (ii) the repayment in full and termination of the KeyBank Revolver; or
(t) any Change of Control shall occur;
(q) an Event of Default under any of the other Loan Documents shall occur;
(r) notwithstanding anything herein to the contrary (including without limitation §12.1(g)), the Borrower and the Guarantors hereby expressly agree that any “Event of Default” (as defined in the Equipment Loan Documents) (which shall be deemed to include maturity of the debt evidenced and secured by the Equipment Loan Documents or any other occurrence which would give the Equipment Lender the right to exercise remedies under the Equipment Loan Documents) shall constitute and be deemed to be an Event of Default under this Agreement for which no right to cure shall be available. Without limiting the foregoing, an “Event of Default” under the Equipment Loan Documents shall conclusively be deemed to have occurred upon the declaration, statement or notice from the Equipment Lender’s as to the existence or occurrence of an “Event of Default” under any of the Equipment Loan Documents;
(s) Any default, material misrepresentation or breach of warranty in the QTLP Subordination and Standstill Agreement by Borrower or the subordinate lender that is the holder of QTLP Subordinate Note;
(t) [Intentionally Omitted.]
(u) Any default, material misrepresentation or breach of warranty in the Bond Subordination and Standstill Agreement by the Authority or the subordinate lender that is the holder of the Bond; then, and in upon any such eventEvent of Default, the 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 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 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 Lenders or the Agent. Upon demand by Agent or the Majority Revolving Credit 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, the Borrower will Cash Collateralize the Letter of Credit Liabilities (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 Lenders as security for any amounts that become payable under the Letters of Credit and all other Obligations and Hedge Obligations in accordance with §2.12. 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 and 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 the Borrower will be released to 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 or lapse of time, “Defaults”) shall occur:
(a) 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) the Borrower shall fail to pay any interest on the Loans, any reimbursement obligations with respect to the Letters of Credit, Loans or any fees or other sums due hereunder or under any of the other Loan Documents or any fee letter (including, without limitation, amounts due under §8.16) 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 and such failure continues for paymentthree (3) days;
(c) the Borrower shall fail to comply with the covenant contained in §9.1 and such failure shall continue for five (5) Business Days after written notice thereof shall have been given to the Borrower by the Agent;
(d) any of the Borrower, the Guarantors Trust or any of their respective Subsidiaries shall fail to perform comply, or to cause the Trust to comply, as the case may be, with any other term, covenant or agreement 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; §§8.4 through §810, inclusive; §8.12; §8.13; §8.15; §8.19; §8.20, ; §9.3, 9; §9.4, 10 and §9.5 or §9.611;
(ed) any of the Borrower, the Guarantors 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 which they are required to perform (other than those specified elsewhere in the other subclauses of this §12 or in the other Loan Documents)14) and such failure continues for thirty (30) days;
(fe) any representation or warranty made by or on behalf of the Borrower, the Guarantors Trust 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, 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;
(gf) any of the Borrower, the Guarantors Trust or any of its Subsidiaries or, to the extent of Recourse to the Borrower, the Trust or such Subsidiaries thereunder, any Partially-Owned Entity or other of their respective Subsidiaries Affiliates, shall fail to pay when due (including, without limitation, at maturity), or within any applicable period of grace, any principal, interest or other amount on account any obligation Indebtedness for borrowed money or credit received or other Indebtedness (including under in respect of any Derivatives Contract)Capitalized Leases, which is in excess of $7,000,000, either individually or in the aggregate, or shall fail to observe or perform any material term, covenant covenant, condition or agreement contained in any agreement agreement, document or instrument by which it is boundbound evidencing, securing or otherwise relating to such Indebtedness or Recourse obligations, evidencing or securing any obligation for borrowed money or credit received or other Indebtedness (including under in respect of any Derivatives Contract) Capitalized Leases for such period of time as would permit (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 $7,000,000, either individually or in the aggregate, to accelerate the maturity thereof or require the termination or other settlement of such obligation; 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 in the aggregate obligations for borrowed money or credit received or other Recourse Indebtedness totaling in excess of $15,000,000.00 or Non-Recourse Indebtedness in excess of $60,000,000.00thereof;
(hg) any of the BorrowerFPLP, the Guarantors Trust or any of their respective Subsidiaries (i) shall make an assignment for the benefit of creditors, or admit in writing its general 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 for it of any of FPLP, the Trust or any of their respective Subsidiaries or of any substantial part of its assets, (ii) the properties or assets of any of such parties or shall commence any case or other proceeding relating to it any of the FPLP, the Trust or any 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 (iii) shall take any action to authorize or in furtherance of any of the foregoing;
(i) a , or if any such petition or application shall be filed for the appointment of a trustee or other custodian, liquidator or receiver of any of the Borrower, the Guarantors or any of their respective Subsidiaries or any substantial part of the assets of any thereof, or a such case or other proceeding shall be commenced against any such Person under of FPLP, the Trust or any bankruptcyof their respective Subsidiaries and (i) any of FPLP, reorganization, arrangement, insolvency, readjustment the Trust or any of debt, dissolution or liquidation or similar law of any jurisdiction, now or hereafter in effect, and any such Person their respective Subsidiaries shall indicate its approval thereof, consent thereto or acquiescence therein or (ii) any such petition, application, case or other proceeding shall not have been dismissed within sixty continue undismissed, or unstayed and in effect, for a period of forty-five (6045) days following the filing or commencement thereofdays;
(jh) a decree or order is entered appointing a any trustee, custodian, liquidator or receiver for or adjudicating any of the BorrowerFPLP, the Guarantors Trust or any of their respective Subsidiaries or adjudicating any 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 any such Person of FPLP, the Trust or any of their respective Subsidiaries in an involuntary case under federal bankruptcy laws as now or hereafter constituted;
(ki) there shall remain in force, undischarged, unsatisfied and unstayed, for more than sixty thirty (6030) days, whether or not consecutive, one or more any uninsured or unbonded final judgmentsjudgment against any of FPLP, orders, awards, writs execution or attachments against the Borrower, Guarantors Trust or any of their respective Subsidiaries that, either individually or with other outstanding uninsured final judgments, undischarged, unsatisfied and unstayed, against any of such parties exceeds in the aggregate, exceed aggregate $10,000,000.001,000,000;
(lj) any of the Loan Documents, the Contribution Agreement, the Equipment Intercreditor Agreement Documents or the Subordination and Standstill Agreements any material provision of any Loan Document shall be 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 LendersAgent, 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, the Contribution Agreement, the Equipment Intercreditor Agreement or the Subordination and Standstill Agreements Documents shall be commenced by or on behalf of the Borrower or any of its Subsidiaries or the GuarantorsTrust or any of its Subsidiaries, or any court or any other governmental or regulatory authority or agency of competent jurisdiction shall make a determinationdetermination that, or issue a judgment, order, decree or ruling, ruling to the effect that that, any one or more of the Loan Documents, the Contribution Agreement, the Equipment Intercreditor Agreement or the Subordination and Standstill Agreements Documents is illegal, invalid or unenforceable as to any material terms thereof; or a Major Lease shall be cancelled or terminated other than in accordance with the terms thereofprovisions hereof;
(mk) any dissolution, termination, partial “Event of Default” or complete liquidation, merger or consolidation default (after notice and expiration of any period of grace, to the Borrowerextent provided, the Guarantors as defined or provided in any of their respective Subsidiaries shall occur or any sale, transfer or other disposition of the assets of any of the Borrower, 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, shall occur and be continuing;
(nl) with respect to any Guaranteed Pension Plan, an ERISA Reportable Event shall have occurred and the Required Majority 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 Borrower or any of their respective its Subsidiaries or the Trust or any of its Subsidiaries to the PBGC or such Guaranteed Pension Plan in an aggregate amount exceeding $10,000,000.00 1,000,000 and (x) 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 (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;
(om) subject to the Borrower’s ability to remove Real Estate Assets from the Borrowing Base in accordance with the provisions set forth below in this §14, any Guarantor or any of their respective Subsidiaries or any shareholder, officer, director, partner or member the failure of any of them shall be indicted for a federal crime, a punishment for which could include the forfeiture of (i) Real Estate Assets being included from time to time as Collateral Properties to comply with any assets of the Borrower, the Guarantors or any of their respective Subsidiaries which conditions set forth in the good faith judgment definition of the Required Lenders could have a Material Adverse Effect, or (ii) the Unencumbered Asset Pool Collateral Properties;
(pn) the failure of L▇▇▇▇ ▇▇▇▇▇▇▇▇▇ and/or D▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, for any Change of Control shall occur;
(q) an Event of Default under any reason, to cease to retain the titles Chairman of the other Loan Documents shall occur;
Board and Chief Executive Officer of the Trust, respectively, and to perform the functions typically performed under such respective offices and to be actively involved in strategic planning and decision-making for the Trust, unless within six (r6) notwithstanding anything herein months after such failure, the Board of Directors or Board of Trustees has duly elected or appointed a qualified substitute to replace such individual who is acceptable to the contrary Majority Lenders in their sole discretion (including without limitation §12.1(g)), as notified to the Borrower and by the Guarantors hereby expressly agree that Agent in writing); or the occurrence of any transaction in which any “Event person” or “group” (within the meaning of DefaultSection 13(d) and 14(d)(2) of the Securities Exchange Act of 1934) becomes the “beneficial owner” (as defined in Rule 13d-3 under the Equipment Loan Documents) (which shall be deemed to include maturity Securities Exchange Act of 1934), directly or indirectly, of a sufficient number of shares of all classes of stock then outstanding of the debt evidenced and secured by Trust ordinarily entitled to vote in the Equipment Loan Documents election of directors, empowering such “person” or “group” to elect a majority of the Board of Directors or Board of Trustees of the Trust, who did not have such power before such transaction; or
(o) without limitation of the other provisions of this §14.1, the Trust shall at any other occurrence which would give the Equipment Lender the right to exercise remedies under the Equipment Loan Documents) shall constitute and be deemed time fail to be an Event the sole general partner of Default under this Agreement for which no right to cure FPLP or shall at any time be available. Without limiting the foregoing, an “Event in contravention of Default” under the Equipment Loan Documents shall conclusively be deemed to have occurred upon the declaration, statement or notice from the Equipment Lender’s as to the existence or occurrence of an “Event of Default” under any of the Equipment Loan Documents;
(s) Any default, material misrepresentation or breach of warranty requirements contained in the QTLP Subordination and Standstill Agreement by Borrower last paragraph of §9.2 hereof, or §9.3 (including, without limitation, the subordinate lender that is the holder last paragraph of QTLP Subordinate Note;
(t) [Intentionally Omitted.]
(u) Any default, material misrepresentation or breach of warranty in the Bond Subordination and Standstill Agreement by the Authority or the subordinate lender that is the holder of the Bond§9.3); then, and in any such event, so long as the same may be continuing, the Agent may, and upon the request of the Required Majority Lenders shall, by notice in writing to the Borrower declare all amounts owing with respect to this Agreement, the Notes, the Letters of 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 any kind, all of which are hereby expressly waived by the Borrower, the Trust and each of their respective Subsidiaries; provided that in the event of any Event of Default specified in §12.1(h), §12.1(i14.1(g) or §12.1(j14.1(h), 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 Lenders or the Agent or action by the Lenders or the Agent. Upon demand by Agent Notwithstanding the foregoing provisions of this §14.1, in the event of a Default or the Majority Revolving Credit Lenders in their absolute and sole discretion after the occurrence of an Event of DefaultDefault arising as a result of the inclusion of any Real Estate Asset in the Borrowing Base 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 in accordance with, and regardless of whether the conditions precedent in this Agreement for a Revolving Credit Loan have been satisfiedsubject to, 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 §8.13 and held by Agent as security for any amounts that become payable under the Letters of Credit and from 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 Defaultcovenant calculations under §10 or otherwise, the Borrower will Cash Collateralize the Letter of Credit Liabilities shall be permitted a period not to exceed five (in an amount equal 5) days to submit to the amount Agent (with copies to the Agent for each Bank) a compliance certificate in the form of Exhibit C hereto evidencing compliance with §2.1 and with all undrawn Letters of Credit). Such amounts the covenants set forth in §10 (with calculations evidencing such compliance after excluding from Borrowing Base NOI all of the Adjusted Net Operating Income generated by the Real Estate Asset to be excluded from the Borrowing Base) and with the Borrowing Base Conditions, and otherwise certifying that, after giving effect to the exclusion of such Real Estate Asset from the Borrowing Base, no Default or Event of Default 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 in accordance with §2.12. 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 and 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 the Borrower will be released to the Borrowercontinuing.
Appears in 1 contract
Sources: Revolving Credit Agreement (First Potomac Realty 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 or lapse of time, “Defaults”) shall occur:
(a) 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) the Borrower shall fail to pay any interest on the Loans, any reimbursement obligations with respect to the Letters of Credit, Loans or any fees or other sums due hereunder or under any of the other Loan Documents (including, without limitation, amounts due under §8.17) when the same shall become due and payable, whether at and such failure continues for three (3) days (provided that in the stated date case of maturity or any accelerated date such sums due other than for interest, the Borrower shall have received from the Agent notice of maturity or at any the nature and amount of such other date fixed for paymentamounts and that payment therefor is due);
(c) the Borrower or BXP shall fail to comply comply, or to cause BXP to comply, as the case may be, with any of the covenant respective covenants contained in §9.1 the following:
(i) 8.1 (except with respect to principal, interest and other sums covered by clauses (a) or (b) above);
(ii) 8.5 (clauses (a) through (d)), unless such failure shall continue for five is cured within fifteen (515) Business Days after written notice thereof shall have been given Days;
(iii) 8.6 (as to the Borrower by legal existence of the AgentBorrower);
(iv) 8.7 (as to the legal existence and REIT status of BXP or as it otherwise relates to BXP);
(v) 8.10, unless 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) any of the Borrower, the Guarantors Borrower or any of their respective Subsidiaries BXP shall fail to perform any other termperform, covenant or agreement contained in §8.20to cause BXP to perform, §9.3, §9.4, §9.5 or §9.6;
(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 which they are required to perform (other than those specified elsewhere in the other subclauses of this §12 14) and such failure continues for thirty (30) days after written notice of such failure 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 other Loan DocumentsAgent 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 such initial written notice from the Agent) to effect such cure;
(fe) any representation or warranty made by or on behalf of the Borrower, the Guarantors Borrower or any of their respective Subsidiaries BXP 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, 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 repeatedrepeated and the same is not otherwise specified herein to be a Non-Material Breach;
(gf) the Borrower or any of its Subsidiaries or, to the Borrowerextent of Recourse to the Borrower or such Subsidiaries thereunder, the Guarantors or any of their respective Subsidiaries Affiliates, shall fail to pay when due (including, without limitation, at maturity), or within any applicable period of grace, any principal, interest or other amount on account any obligation for borrowed money or credit received or in respect of any Capitalized Leases (other Indebtedness (including under any Derivatives Contractthan non-recourse obligations or credit), the recourse component of the principal amount of which is in excess of $50,000,000, either individually or shall in the aggregate, or fail to observe or perform any material term, covenant covenant, condition or agreement contained in any agreement agreement, document or instrument by which it is boundbound evidencing, securing or otherwise relating to such Recourse obligations, evidencing or securing any obligation for borrowed money or credit received or other Indebtedness (including under in respect of any Derivatives Contract) Capitalized Leases for such period of time as would permit (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 or require thereof; provided, however that notwithstanding the termination or other settlement of such obligation; provided that the events described in §12.1(gforegoing, (i) shall not constitute an no Event of Default shall occur pursuant to this subparagraph (f) unless and until the holder or holders of such failure to perform, together with other failures to perform as described in §12.1(g), involve singly or in the aggregate obligations for borrowed money or credit received or other Recourse Indebtedness totaling have declared an event of default beyond any applicable notice and grace periods, if any, on in excess of $15,000,000.00 or Non-50,000,000 of such Recourse Indebtedness (determined on the basis of the principal amount of such Recourse Indebtedness) either individually or in excess the aggregate, and (ii) with respect solely to any such Recourse Indebtedness of $60,000,000.00a 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 substantially 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 forth in §10 after excluding such Subsidiary or Affiliate, and any Real Estate Asset owned by such Subsidiary or Affiliate, from the calculation of such covenants;
(hg) any of the BorrowerBPLP, the Guarantors BXP or any of their respective Subsidiaries (i) shall make an assignment for the benefit of creditors, or admit in writing its general 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 for it of any of BPLP, BXP or any of their respective Subsidiaries or of any substantial part of its assets, (ii) the properties or assets of any of such parties or shall commence any case or other proceeding relating to it any of BPLP, BXP or any 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 (iii) shall take any action to authorize or in furtherance of any of the foregoing;
(i) a , or if any such petition or application shall be filed for the appointment of a trustee or other custodian, liquidator or receiver of any of the Borrower, the Guarantors or any of their respective Subsidiaries or any substantial part of the assets of any thereof, or a such case or other proceeding shall be commenced against any such Person under of BPLP, BXP or any bankruptcyof their respective Subsidiaries and (i) any of BPLP, reorganization, arrangement, insolvency, readjustment BXP or any of debt, dissolution or liquidation or similar law of any jurisdiction, now or hereafter in effect, and any such Person their respective Subsidiaries shall indicate its approval thereof, consent thereto or acquiescence therein or (ii) any such petition, application, case or other proceeding shall not have been dismissed within sixty continue undismissed, or unstayed and in effect, for a period of ninety (6090) days following days, except, with respect solely to such parties other than BPLP and BXP, any of the filing or commencement thereofforegoing constitutes a Non-Material Breach;
(jh) a decree or order is entered appointing a any trustee, custodian, liquidator or receiver for or adjudicating any of the BorrowerBPLP, the Guarantors BXP or any of their respective Subsidiaries or adjudicating any 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 any such Person of BPLP, BXP or any of their respective Subsidiaries in an involuntary case under federal bankruptcy laws as now or hereafter constituted, except, with respect solely to such parties other than BPLP and BXP, any of the foregoing constitutes a Non-Material Breach;
(ki) there shall remain in force, undischarged, unsatisfied and unstayed, for more than sixty thirty (6030) days, whether or not consecutive, one or more any uninsured or unbonded final judgmentsjudgment against any of BPLP, orders, awards, writs execution or attachments against the Borrower, Guarantors BXP or any of their respective Subsidiaries that, either individually or with other outstanding uninsured final judgments, undischarged, unsatisfied and unstayed, against any of such parties exceeds in the aggregateaggregate $20,000,000 except, exceed $10,000,000.00with respect solely to such parties other than BPLP and BXP, any of 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);
(lj) any of the Loan Documents, the Contribution Agreement, the Equipment Intercreditor Agreement Documents or the Subordination and Standstill Agreements any material provision of any Loan Document shall be 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 LendersAgent, 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, the Contribution Agreement, the Equipment Intercreditor Agreement or the Subordination and Standstill Agreements Documents shall be commenced by or on behalf of the Borrower or any of the GuarantorsBXP, or any court or any other governmental or regulatory authority or agency of competent jurisdiction shall make a determinationdetermination that, or issue a judgment, order, decree or ruling, ruling to the effect that that, any one or more of the Loan Documents, the Contribution Agreement, the Equipment Intercreditor Agreement or the Subordination and Standstill Agreements Documents is illegal, invalid or unenforceable in accordance with the as to any material terms thereof;
(mk) any dissolution, termination, partial “Event of Default” or complete liquidation, merger or consolidation default (after notice and expiration of any period of grace, to the Borrowerextent provided), the Guarantors as defined or provided in any of their respective Subsidiaries shall occur or any sale, transfer or other disposition of the assets of any of the Borrower, 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, shall occur and be continuing;
(nl) with respect to any Guaranteed Pension Plan, an ERISA Reportable Event shall have occurred and the Required Lenders 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 Borrower or any of their respective Subsidiaries BXP to the PBGC or such Guaranteed Pension Plan in an aggregate amount exceeding $10,000,000.00 10,000,000 and (x) 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 (y) a trustee shall have been appointed by the United States District Court to administer such Pension Plan; or (z) the PBGC shall have instituted proceedings to terminate such Guaranteed Pension Plan;; or
(om) without limitation of the Borrowerother provisions of this §14.1, BXP shall at any Guarantor time fail to be the sole general partner of BPLP or shall at any of their respective Subsidiaries or any shareholder, officer, director, partner or member time be in contravention of any of them shall be indicted for a federal crime, a punishment for which could include the forfeiture of (i) any assets of the Borrower, the Guarantors or any of their respective Subsidiaries which requirements contained in the good faith judgment of the Required Lenders could have a Material Adverse Effect, or (ii) the Unencumbered Asset Pool Properties;
(p) any Change of Control shall occur;
(q) an Event of Default under any of the other Loan Documents shall occur;
(r) notwithstanding anything herein to the contrary (including without limitation §12.1(g)9.1(e), the Borrower and the Guarantors hereby expressly agree that any “Event last paragraph of Default” §9.2, or §9.3 (as defined in the Equipment Loan Documents) (which shall be deemed to include maturity of the debt evidenced and secured by the Equipment Loan Documents or any other occurrence which would give the Equipment Lender the right to exercise remedies under the Equipment Loan Documents) shall constitute and be deemed to be an Event of Default under this Agreement for which no right to cure shall be available. Without limiting the foregoingincluding, an “Event of Default” under the Equipment Loan Documents shall conclusively be deemed to have occurred upon the declaration, statement or notice from the Equipment Lender’s as to the existence or occurrence of an “Event of Default” under any of the Equipment Loan Documents;
(s) Any default, material misrepresentation or breach of warranty in the QTLP Subordination and Standstill Agreement by Borrower or the subordinate lender that is the holder of QTLP Subordinate Note;
(t) [Intentionally Omitted.]
(u) Any default, material misrepresentation or breach of warranty in the Bond Subordination and Standstill Agreement by the Authority or the subordinate lender that is the holder of the Bond; then, and in any such eventwithout limitation, the Agent may, and upon the request last paragraph of the Required Lenders shall, by notice in writing to the Borrower 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 Borrower; provided that in the event of any Event of Default specified in §12.1(h9.3), §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 Lenders or the Agent. Upon demand by Agent or the Majority Revolving Credit 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, the Borrower will Cash Collateralize the Letter of Credit Liabilities (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 Lenders as security for any amounts that become payable under the Letters of Credit and all other Obligations and Hedge Obligations in accordance with §2.12. 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 and 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 the Borrower will be released to the Borrower.
Appears in 1 contract
Sources: 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 or lapse of time, “"Defaults”") shall occur:
(a) 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) the Borrower shall fail to pay any (i) interest on the Revolving Credit Loans, any reimbursement obligations with respect to (ii) the Letters of Creditcommitment fee, (iii) the Agent's fee, or any fees or (iv) other sums due hereunder or under any of the other Loan Documents 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;payment and such failure shall continue for five (5) days; or
(c) the Borrower shall fail to comply with the covenant covenants contained in §9.1 and such failure shall continue for five (5) Business Days after written notice thereof shall have been given to the Borrower by the AgentS)10 hereof;
(d) any of the Borrower, the Guarantors Borrower or any of their respective Subsidiaries Holdings shall fail to perform comply with any other term, covenant or agreement of its covenants contained in §8.20the first sentence of (S)8.6, §9.3(S)(S)8.9, §9.48.12, §9.5 8.13, 9.1 through 9.6, 9.8, 9.10 or §9.6;
(e) any 9.11 of the BorrowerRevolver Credit Agreement, 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 as such Sections are required to perform (other than those specified in the other subclauses of this §12 or in the other Loan Documents);
(f) any representation or warranty 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 incorporated pursuant to or in connection with this 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;
(g) any of the Borrower, the Guarantors or any of their respective Subsidiaries shall fail to pay when due (including, without limitation, at maturity), or within any applicable period of grace, any principal, interest or other amount on account any obligation for borrowed money or credit received or other Indebtedness (including under any Derivatives Contract), or shall fail to observe or perform any term, covenant or agreement contained in any agreement by which it is bound, evidencing or securing any obligation for borrowed money or credit received or other Indebtedness (including under any Derivatives Contract) 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 the termination or other settlement of such obligation; 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 in the aggregate obligations for borrowed money or credit received or other Recourse Indebtedness totaling in excess of $15,000,000.00 or Non-Recourse Indebtedness in excess of $60,000,000.00;
(h) any of the Borrower, the Guarantors or any of their respective Subsidiaries (i) shall make an assignment for the benefit of creditors, or admit in writing its general 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 for it or any substantial part of its assets, (ii) shall commence any case or other proceeding relating to 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 (iii) shall take any action to authorize or in furtherance of any of the foregoing;
(i) a petition or application shall be filed for the appointment of a trustee or other custodian, liquidator or receiver of any of the Borrower, the Guarantors or any of their respective Subsidiaries or any substantial part of the assets of any thereof, or a case or other proceeding shall be commenced against any 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, Sections 8 and any such Person shall indicate its approval thereof, consent thereto or acquiescence therein or such petition, application, case or proceeding shall not have been dismissed within sixty (60) days following the filing or commencement thereof;
(j) a decree or order is entered appointing a trustee, custodian, liquidator or receiver for any of the Borrower, the Guarantors or any of their respective Subsidiaries or adjudicating any 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 any such Person in an involuntary case under federal bankruptcy laws as now or hereafter constituted;
(k) there shall remain in force, undischarged, unsatisfied and unstayed, for more than sixty (60) days, whether or not consecutive, one or more uninsured or unbonded final judgments, orders, awards, writs execution or attachments against the Borrower, Guarantors or any of their respective Subsidiaries that, either individually or in the aggregate, exceed $10,000,000.00;
(l) any of the Loan Documents, the Contribution Agreement, the Equipment Intercreditor Agreement or the Subordination and Standstill Agreements 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, the Contribution Agreement, the Equipment Intercreditor Agreement or the Subordination and Standstill Agreements shall be commenced by or on behalf of the Borrower or any of 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, the Contribution Agreement, the Equipment Intercreditor Agreement or the Subordination and Standstill Agreements 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 of their respective Subsidiaries shall occur or any sale, transfer or other disposition of the assets of any of the Borrower, 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;
(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 their respective Subsidiaries to the PBGC or such Guaranteed Pension Plan in an aggregate amount exceeding $10,000,000.00 and (x) 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 (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) the Borrower, any Guarantor or any of their respective Subsidiaries 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 the Borrower, the Guarantors 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 Unencumbered Asset Pool Properties;
(p) any Change of Control shall occur;
(q) an Event of Default under any of the other Loan Documents shall occur;
(r) notwithstanding anything herein to the contrary (including without limitation §12.1(g)), the Borrower and the Guarantors hereby expressly agree that any “Event of Default” (as defined in the Equipment Loan Documents) (which shall be deemed to include maturity of the debt evidenced and secured by the Equipment Loan Documents or any other occurrence which would give the Equipment Lender the right to exercise remedies under the Equipment Loan Documents) shall constitute and be deemed to be an Event of Default under this Agreement for which no right to cure shall be available. Without limiting the foregoing, an “Event of Default” under the Equipment Loan Documents shall conclusively be deemed to have occurred upon the declaration, statement or notice from the Equipment Lender’s as to the existence or occurrence of an “Event of Default” under any of the Equipment Loan Documents;
(s) Any default, material misrepresentation or breach of warranty in the QTLP Subordination and Standstill Agreement by Borrower or the subordinate lender that is the holder of QTLP Subordinate Note;
(t) [Intentionally Omitted.]
(u) Any default, material misrepresentation or breach of warranty in the Bond Subordination and Standstill Agreement by the Authority or the subordinate lender that is the holder of the Bond9 hereof; then, and in any such event, so long as the same may be continuing, the Agent may, and upon the request of the Required Lenders Majority Banks shall, by notice in writing to the Borrower declare all amounts owing with respect to this Credit Agreement, the Notes, the Letters of 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 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 §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 Lenders or the Agent. Upon demand by Agent or the Majority Revolving Credit 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, the Borrower will Cash Collateralize the Letter of Credit Liabilities (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 Lenders as security for any amounts that become payable under the Letters of Credit and all other Obligations and Hedge Obligations in accordance with §2.12. 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 and 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 the Borrower will be released to the Borrower.--------
Appears in 1 contract
Sources: Acquisition Revolving Credit Agreement (Ameriking 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 or lapse of time, “Defaults”) shall occur:
(a) 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) the Borrower shall fail to pay any interest on the Loans, any reimbursement obligations with respect to the Letters of Credit, Loans or any fees or other sums due hereunder or under any of the other Loan Documents (including, without limitation, amounts due under §8.17) when the same shall become due and payable, whether at and such failure continues for three (3) days (provided that in the stated date case of maturity or any accelerated date such sums due other than for interest, the Borrower shall have received from the Agent notice of maturity or at any the nature and amount of such other date fixed for paymentamounts and that payment therefor is due);
(c) the Borrower or BPI shall fail to comply comply, or to cause BPI to comply, as the case may be, with any of the covenant respective covenants contained in §9.1 the following:
(i) 8.1 (except with respect to principal, interest and other sums covered by clauses (a) or (b) above);
(ii) 8.5 (clauses (a) through (d)), unless such failure shall continue for five is cured within fifteen (515) Business Days after written notice thereof shall have been given Days;
(iii) 8.6 (as to the Borrower by legal existence of Borrower);
(iv) 8.7 (as to the Agentlegal existence and REIT status of BPI or as it otherwise relates to BPI);
(v) 8.10, unless such failure is cured within three (3) Business Days;
(vi) 8.12;
(vii) [Intentionally Deleted];
(viii) 8.14;
(ix) 9.1;
(x) 9.2;
(xi) 9.3;
(xii) 9.4;
(xiii) 9.6; and
(xiv) 10;
(d) any of the Borrower, the Guarantors Borrower or any of their respective Subsidiaries BPI shall fail to perform any other termperform, covenant or agreement contained in §8.20to cause BPI to perform, §9.3, §9.4, §9.5 or §9.6;
(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 which they are required to perform (other than those specified elsewhere in the other subclauses of this §12 14) and such failure continues for thirty (30) days after written notice of such failure 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 other Loan DocumentsAgent 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 such initial written notice from the Agent) to effect such cure;
(fe) any representation or warranty made by or on behalf of the Borrower, the Guarantors Borrower or any of their respective Subsidiaries BPI 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, 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 repeatedrepeated and the same is not otherwise specified herein to be a Non-Material Breach;
(gf) the Borrower or any of its Subsidiaries or, to the Borrowerextent of Recourse to the Borrower or such Subsidiaries thereunder, the Guarantors or any of their respective Subsidiaries Affiliates, shall fail to pay when due (including, without limitation, at maturity), or within any applicable period of grace, any principal, interest or other amount on account any obligation for borrowed money or credit received or in respect of any Capitalized Leases (other Indebtedness (including under any Derivatives Contractthan non-recourse obligations or credit), which is in excess of $50,000,000, either individually or shall in the aggregate, or fail to observe or perform any material term, covenant covenant, condition or agreement contained in any agreement agreement, document or instrument by which it is boundbound evidencing, securing or otherwise relating to such Recourse obligations, evidencing or securing any obligation for borrowed money or credit received or other Indebtedness (including under in respect of any Derivatives Contract) Capitalized Leases for such period of time as would permit (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 $50,000,000, either individually or in the aggregate, to accelerate the maturity thereof or require thereof; provided, however that notwithstanding the termination or other settlement of such obligation; provided that the events described in §12.1(gforegoing, (i) shall not constitute an no Event of Default shall occur pursuant to this subparagraph (f) unless and until the holder or holders of such failure to perform, together with other failures to perform as described in §12.1(g), involve singly or in the aggregate obligations for borrowed money or credit received or other Recourse Indebtedness totaling have declared an event of default beyond any applicable notice and grace periods, if any, on in excess of $15,000,000.00 or Non-50,000,000 of such Recourse Indebtedness either individually or in excess the aggregate, and (ii) with respect solely to any such Recourse Indebtedness of $60,000,000.00a 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-6 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;
(hg) any of the BorrowerBPLP, the Guarantors BPI or any of their respective Subsidiaries (i) shall make an assignment for the benefit of creditors, or admit in writing its general 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 for it of any of BPLP, BPI or any of their respective Subsidiaries or of any substantial part of its assets, (ii) the properties or assets of any of such parties or shall commence any case or other proceeding relating to it any of the BPLP, BPI or any 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 (iii) shall take any action to authorize or in furtherance of any of the foregoing;
(i) a , or if any such petition or application shall be filed for the appointment of a trustee or other custodian, liquidator or receiver of any of the Borrower, the Guarantors or any of their respective Subsidiaries or any substantial part of the assets of any thereof, or a such case or other proceeding shall be commenced against any such Person under of BPLP, BPI or any bankruptcyof their respective Subsidiaries and (i) any of BPLP, reorganization, arrangement, insolvency, readjustment BPI or any of debt, dissolution or liquidation or similar law of any jurisdiction, now or hereafter in effect, and any such Person their respective Subsidiaries shall indicate its approval thereof, consent thereto or acquiescence therein or (ii) any such petition, application, case or other proceeding shall not have been dismissed within sixty continue undismissed, or unstayed and in effect, for a period of ninety (6090) days following days, except, with respect solely to such parties other than BPLP and BPI, any of the filing or commencement thereofforegoing constitutes a Non-Material Breach;
(jh) a decree or order is entered appointing a any trustee, custodian, liquidator or receiver for or adjudicating any of the BorrowerBPLP, the Guarantors BPI or any of their respective Subsidiaries or adjudicating any 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 any such Person of BPLP, BPI or any of their respective Subsidiaries in an involuntary case under federal bankruptcy laws 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;
(ki) there shall remain in force, undischarged, unsatisfied and unstayed, for more than sixty thirty (6030) days, whether or not consecutive, one or more any uninsured or unbonded final judgmentsjudgment against any of BPLP, orders, awards, writs execution or attachments against the Borrower, Guarantors BPI or any of their respective Subsidiaries that, either individually or with other outstanding uninsured final judgments, undischarged, unsatisfied and unstayed, against any of such parties exceeds in the aggregateaggregate $20,000,000, exceed $10,000,000.00except, with respect solely to such parties other than BPLP and BPI, any of the foregoing constitutes a Non-Material Breach;
(lj) any of the Loan Documents, the Contribution Agreement, the Equipment Intercreditor Agreement Documents or the Subordination and Standstill Agreements any material provision of any Loan Document shall be 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 LendersAgent, 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, the Contribution Agreement, the Equipment Intercreditor Agreement or the Subordination and Standstill Agreements Documents shall be commenced by or on behalf of the Borrower or any of the GuarantorsBPI, or any court or any other governmental or regulatory authority or agency of competent jurisdiction shall make a determinationdetermination that, or issue a judgment, order, decree or ruling, ruling to the effect that that, any one or more of the Loan Documents, the Contribution Agreement, the Equipment Intercreditor Agreement or the Subordination and Standstill Agreements Documents is illegal, invalid or unenforceable in accordance with the as to any material terms thereof;
(mk) any dissolution, termination, partial “Event of Default” or complete liquidation, merger or consolidation default (after notice and expiration of any period of grace, to the Borrowerextent provided), the Guarantors as defined or provided in any of their respective Subsidiaries shall occur or any sale, transfer or other disposition of the assets of any of the Borrower, 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, shall occur and be continuing;
(nl) with respect to any Guaranteed Pension Plan, an ERISA Reportable Event shall have occurred and the Required Lenders 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 Borrower or any of their respective Subsidiaries BPI to the PBGC or such Guaranteed Pension Plan in an aggregate amount exceeding $10,000,000.00 10,000,000 and (x) 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 (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;; or
(om) without limitation of the Borrowerother provisions of this §14.1, BPI shall at any Guarantor time fail to be the sole general partner of BPLP or shall at any of their respective Subsidiaries or any shareholder, officer, director, partner or member time be in contravention of any of them shall be indicted for a federal crime, a punishment for which could include the forfeiture of (irequirements contained in §9.1(e) any assets of the Borrowerhereof, the Guarantors or any last paragraph of their respective Subsidiaries which in the good faith judgment of the Required Lenders could have a Material Adverse Effect§9.2 hereof, or §9.3 (ii) the Unencumbered Asset Pool Properties;
(p) any Change of Control shall occur;
(q) an Event of Default under any of the other Loan Documents shall occur;
(r) notwithstanding anything herein to the contrary (including including, without limitation §12.1(g))limitation, the Borrower and the Guarantors hereby expressly agree that any “Event last paragraph of Default” (as defined in the Equipment Loan Documents) (which shall be deemed to include maturity of the debt evidenced and secured by the Equipment Loan Documents or any other occurrence which would give the Equipment Lender the right to exercise remedies under the Equipment Loan Documents) shall constitute and be deemed to be an Event of Default under this Agreement for which no right to cure shall be available. Without limiting the foregoing, an “Event of Default” under the Equipment Loan Documents shall conclusively be deemed to have occurred upon the declaration, statement or notice from the Equipment Lender’s as to the existence or occurrence of an “Event of Default” under any of the Equipment Loan Documents;
(s) Any default, material misrepresentation or breach of warranty in the QTLP Subordination and Standstill Agreement by Borrower or the subordinate lender that is the holder of QTLP Subordinate Note;
(t) [Intentionally Omitted.]
(u) Any default, material misrepresentation or breach of warranty in the Bond Subordination and Standstill Agreement by the Authority or the subordinate lender that is the holder of the Bond§9.3); then, and in any such event, so long as the same may be continuing, the Agent may, and upon the request of the Required Lenders Majority Banks shall, by notice in writing to the Borrower Borrower, declare all amounts owing with respect to this Agreement, the Notes, the Letters of 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, BPI and each of their respective Subsidiaries; provided that in the event of any Event of Default specified in §12.1(h), §12.1(i14.1(g) or §12.1(j14.1(h), 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 Lenders Banks or the Agent or action by the Banks or the Agent. Upon demand by Agent or the Majority Revolving Credit 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, the Borrower will Cash Collateralize the Letter of Credit Liabilities (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 Lenders as security for any amounts that become payable under the Letters of Credit and all other Obligations and Hedge Obligations in accordance with §2.12. 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 and 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 the Borrower will be released to 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 or lapse of time, “Defaults”) shall occur:
(a) 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) the Borrower shall fail to pay any interest on the LoansTerm Loan A, any reimbursement obligations with respect to the Letters of CreditTerm Loan B, Term Loan C or Term Loan D or any fees or other sums due hereunder or under any of the other Loan Documents or any fee letter (including, without limitation, amounts due under §8.16) 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 and such failure continues for paymentthree (3) days;
(c) the Borrower shall fail to comply with the covenant contained in §9.1 and such failure shall continue for five (5) Business Days after written notice thereof shall have been given to the Borrower by the Agent;
(d) any of the Borrower, any Subsidiary Guarantor, the Guarantors Trust or any of their respective Subsidiaries shall fail to perform comply, or to cause the Trust to comply, as the case may be, with any other term, covenant or agreement 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; §§8.4 through §8.10, inclusive; §8.12; §8.13; §8.15; §8.19; §8.20, ; §9.3, 98.21; §9.4, 109 and §9.5 or §9.61110;
(ed) any of the Borrower, any Subsidiary Guarantor, the Guarantors 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 which they are required to perform (other than those specified elsewhere in the other subclauses of this §12 14) and such failure continues for thirty (30) days after the earlier of the knowledge of any responsible officer of the Borrower or in notice thereof from the other Loan Documents)Agent;
(fe) any representation or warranty made by or on behalf of the Borrower, any Subsidiary Guarantor, the Guarantors Trust 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, 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;
(gi) the Borrower, any Subsidiary Guarantor, the Trust or any of its Subsidiaries or, to the extent of Recourse to the Borrower, the Guarantors Subsidiary Guarantor, the Trust or such Subsidiaries thereunder, any Partially-Owned Entity or other of their respective Subsidiaries Affiliates, shall (x) fail to pay when due (including, without limitation, at maturity), or within any applicable period of grace, any principal, interest or other amount on account any obligation Indebtedness for borrowed money or credit received or other in respect of any Capitalized Leases, which is in excess of (A) $25,000,000, 60,000,000, either individually or in the aggregate, if such Indebtedness is Without Recourse and (including under B) $5,000,000, 20,000,000, either individually or in the aggregate, if such Indebtedness is Recourse, or(y) with respect to any Derivatives Contract)Indebtedness that is Recourse and in excess of $20,000,000, either individually or shall in the aggregate, fail to observe or perform any material term, covenant covenant, condition or agreement contained in any agreement agreement, document or instrument by which it is boundbound evidencing, securing or otherwise relating to such Indebtedness or Recourse obligations, evidencing or securing any obligation for borrowed money or credit received or other Indebtedness (including under in respect of any Derivatives Contract) Capitalized Leases for such period of time as would permit (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 require the termination or other settlement (z) with respect to any Indebtedness that is Without Recourse and in excess of such obligation; provided that the events described in §12.1(g) shall not constitute an Event of Default unless such failure to perform$60,000,000, together with other failures to perform as described in §12.1(g), involve singly either individually or in the aggregate obligations for 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 other 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 totaling in excess of $15,000,000.00 or Non-that is Recourse Indebtedness in excess of $60,000,000.00;
(h) any of to the extent that the same has become Recourse to the Borrower, the Guarantors 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) any of FPLPthe Borrower, anya Subsidiary Guarantor, the Trust or any of their respective Subsidiaries (i) shall make an assignment for the benefit of creditors, or admit in writing its general 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 for it of any of FPLPthe Borrower, a Subsidiary Guarantor, the Trust or any of their respective Subsidiaries or of any substantial part of its assets, (ii) the properties or assets of any of such parties or shall commence any case or other proceeding relating to it any of FPLPthe Borrower, a Subsidiary Guarantor, the Trust or any 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 (iii) shall take any action to authorize or in furtherance of any of the foregoing;
(i) a , or if any such petition or application shall be filed for the appointment of a trustee or other custodian, liquidator or receiver of any of the Borrower, the Guarantors or any of their respective Subsidiaries or any substantial part of the assets of any thereof, or a such case or other proceeding shall be commenced against any such Person under of FPLPthe Borrower, a Subsidiary Guarantor, the Trust or any bankruptcyof their respective Subsidiaries and (i) any of FPLPthe Borrower, reorganizationa Subsidiary Guarantor, arrangement, insolvency, readjustment the Trust or any of debt, dissolution or liquidation or similar law of any jurisdiction, now or hereafter in effect, and any such Person their respective Subsidiaries shall indicate its approval thereof, consent thereto or acquiescence therein or (ii) any such petition, application, case or other proceeding shall not have been dismissed within sixty continue undismissed, or unstayed and in effect, for a period of forty-five (45) dayssixty (60) days following provided that the filing foregoing, to the extent applicable solely to one or commencement thereofmore 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;
(jh) a decree or order is entered appointing a any trustee, custodian, liquidator or receiver for or adjudicating any of the FPLPthe Borrower, a Subsidiary Guarantor, the Guarantors Trust or any of their respective Subsidiaries or adjudicating any 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 any such Person of FPLPthe Borrower, a Subsidiary Guarantor, the Trust or any of their respective Subsidiaries in an involuntary case under federal bankruptcy laws 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;
(ki) there shall remain in force, undischarged, unsatisfied and unstayed, for more than sixty thirty (6030) days, whether or not consecutive, one or more any uninsured or unbonded final judgments, orders, awards, writs execution or attachments judgment against the any of FPLPthe Borrower, Guarantors a Subsidiary Guarantor, the Trust or any of their respective Subsidiaries that, either with other outstanding uninsured final judgments, undischarged, unsatisfied and unstayed, against any of such parties exceeds in the aggregate $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 or and in the aggregate) of the most recently reported Consolidated Gross Asset Value is attributable, exceed $10,000,000.00it shall not be an Event of Default hereunder so long as neither the Borrower, the Trust or any Subsidiaries not meeting the de minimus test above are liable for such judgments;
(lj) any of the Loan Documents, the Contribution Agreement, the Equipment Intercreditor Agreement Documents or the Subordination and Standstill Agreements any material provision of any Loan Document shall be 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 LendersAgent, 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, the Contribution Agreement, the Equipment Intercreditor Agreement or the Subordination and Standstill Agreements Documents shall be commenced by or on behalf of the Borrower or a Subsidiary Guarantor or any of their Subsidiaries or the GuarantorsTrust or any of its Subsidiaries, or any court or any other governmental or regulatory authority or agency of competent jurisdiction shall make a determinationdetermination that, or issue a judgment, order, decree or ruling, ruling to the effect that that, any one or more of the Loan Documents, the Contribution Agreement, the Equipment Intercreditor Agreement or the Subordination and Standstill Agreements Documents is illegal, invalid or unenforceable in accordance with the as to any material terms thereof;
(m) any dissolution, termination, partial ; or complete liquidation, merger or consolidation of the Agent shall fail to have a perfected first-priority security interest in any of the BorrowerCollateral; or
(k) any “Event of Default” or default (after notice and expiration of any period of grace, to the Guarantors extent provided, as defined or provided in any of their respective Subsidiaries shall occur or any sale, transfer or other disposition of the assets of any of the Borrower, 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, shall occur and be continuinghas occurred;
(nl) with respect to any Guaranteed Pension Plan, an ERISA Reportable Event shall have occurred and the Required Majority 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 Borrower or any of their respective 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 $10,000,000.00 and (x) 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 (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; 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;
(om) subject to the Borrower’s ability to remove Real Estate Assets from the Borrowing Base Pool in accordance with the provisions set forth below in this §14, any Guarantor or any of their respective Subsidiaries or any shareholder, officer, director, partner or member the failure of any of them shall be indicted for a federal crime, a punishment for which could include the forfeiture of (i) any assets Real Estate Assets being included from time to time as part of the Borrower, the Guarantors or Borrowing Base Pool to comply with any of their respective Subsidiaries which the conditions set forth in the good faith judgment definition of the Required Lenders could have a Material Adverse Effect, or (ii) the Unencumbered Asset Pool Eligible Borrowing Base Properties;
(pn) the occurrence of any Change transaction in which any “person” or “group” (within the meaning of Control shall occur;
(qSection 13(d) an Event of Default under any and 14(d)(2) of the other Loan Documents shall occur;
(rSecurities Exchange Act of 1934) notwithstanding anything herein to becomes the contrary (including without limitation §12.1(g)), the Borrower and the Guarantors hereby expressly agree that any “Event of Defaultbeneficial owner” (as defined in Rule 13d-3 under the Equipment Loan Documents) (which shall be deemed to include maturity Securities Exchange Act of 1934), directly or indirectly, of a sufficient number of shares of all classes of stock then outstanding of the debt evidenced and secured Trust ordinarily entitled to vote in the election of directors, empowering such “person” or “group” to elect a majority of the Board of Directors or Board of Trustees of the Trust, who did not have such power before such transaction; or during any twelve-month period on or after the Closing Date, individuals who at the beginning of such period constituted the Board of Trustees of the Trust (together with any new directors whose election by the Equipment Loan Documents Board of Trustees or whose nomination for election by the shareholders of the Trust was approved by a vote of at least a majority of the members of the Board of Trustees then in office who either were members of the Board of Trustees at the beginning of such period or whose election or nomination for election was previously so approved) ceased for any reason to constitute a majority of the 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 occurrence which would give the Equipment Lender the right Person to exercise remedies under the Equipment Loan Documentsacquire a general partner interest in FPLP) or shall constitute and at any time be deemed to be an Event in contravention of Default under this Agreement for which no right to cure shall be available. Without limiting the foregoing, an “Event of Default” under the Equipment Loan Documents shall conclusively be deemed to have occurred upon the declaration, statement or notice from the Equipment Lender’s as to the existence or occurrence of an “Event of Default” under any of the Equipment Loan Documents;requirements contained in the last paragraph of §9.2 hereof, or §9.3 (including, without limitation, the last paragraph of §9.3); or
(sp) Any defaultthe Borrower shall fail to own, material misrepresentation directly or breach of warranty in the QTLP Subordination and Standstill Agreement by Borrower or the subordinate lender that is the holder of QTLP Subordinate Note;
(t) [Intentionally Omitted.]
(u) Any defaultindirectly, material misrepresentation or breach of warranty in the Bond Subordination and Standstill Agreement by the Authority or the subordinate lender that is the holder 100% of the BondEquity 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 request direction of the Required Majority Lenders, or may, with the requestconsent of the Majority Lenders shall, by notice in writing to the Borrower declare all amounts owing with respect to this Agreement, the Notes, the Letters of 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 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 §12.1(h), §12.1(i14.1(g) or §12.1(j14.1(h), 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 Lenders or the Agent or action by the Lenders or the Agent. Upon demand by Agent Notwithstanding the foregoing provisions of this §14.1, in the event of a Default or the Majority Revolving Credit Lenders in their absolute and sole discretion after the occurrence of an Event of DefaultDefault 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 regardless of whether the conditions precedent in this Agreement for a Revolving Credit Loan have been satisfiedsubject to, 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 §8.13 and held by Agent as security for any amounts that become payable under the Letters of Credit and fromwith 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 Defaultcovenant calculations under §10 or otherwise, the Borrower will Cash Collateralize the Letter of Credit Liabilities shall be permitted a period not to exceed five (in an amount equal 5) days to submit to the amount 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 undrawn Letters of Credit). Such amounts 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 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 in accordance with §2.12. 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 and 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 the Borrower will be released to the Borrowercontinuing.
Appears in 1 contract
Sources: Secured Term Loan Agreement (First Potomac Realty Trust)