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) Borrower shall fail to pay any principal of the 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) Borrower shall fail to pay any interest on the Loan within five (5) days of the date that the same shall become due and payable or any fees or other sums due hereunder (other than any voluntary prepayment) or under any of the other Loan Documents within ten (10) days after notice from the Agent, whether at the stated date of maturity or any accelerated date of maturity or at any other date fixed for payment; (c) Borrower shall fail to comply with the covenant contained in § 9.1 and such failure shall continue uncured after written notice thereof shall have been given to Loan Parties by the Agent as provided in § 3.2; (d) Borrower shall fail to perform any other term, covenant or agreement contained in (i) §8.15 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, § 9.7 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 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 Loan Parties or any of their respective Subsidiaries in this Agreement or any other Loan Document, or any report, certificate, financial statement, request for an Advance, or in any other document or instrument delivered pursuant to or in connection with the Loan, any Advance, this Agreement, 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 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, 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 and the holder or holders thereof or of any obligations issued thereunder have accelerated the maturity thereof; provided that the events described in §12.1(g) shall not constitute an Event of Default unless such failure to perform, together with other failures to perform as described in §12.1(g), involve singly or in the aggregate obligations for (x) any Indebtedness which is recourse to Borrower or any of the Subsidiary GuarantorsPool Owners (including, without limitation, Secured Recourse Indebtedness) totaling in excess of $25,000,000 or (y) Non-Recourse Indebtedness of Borrower or any of the Subsidiary GuarantorsPool Owners totaling in excess of $50,000,000; (h) any LoanTransaction Party or REIT, (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 LoanTransaction Party or 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 ninety (90) days following the filing or commencement thereof; (j) a decree or order is entered appointing a trustee, custodian, liquidator or receiver for any LoanTransaction Party or 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 one or more uninsured or unbonded final judgments against Borrower or any Subsidiary GuarantorPool Owner that, either individually or in the aggregate, exceed $50,000,000; (l) any of the Loan Documents shall be canceled, terminated, revoked or rescinded otherwise than in accordance with the terms thereof or the express prior written agreement, consent or approval of the Required Lenders, or any action at law, suit in equity or other legal proceeding to cancel, revoke or rescind any of the Loan Documents shall be commenced by or on behalf of any Loan 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 is illegal, invalid or unenforceable in accordance with the terms thereof; (m) any dissolution, termination, partial or complete liquidation, merger or consolidation of any LoanTransaction Party shall occur or any sale, transfer or other disposition of the assets of any 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 such event reasonably would be expected to result in liability of any LoanTransaction Party to pay money to the PBGC or such Guaranteed Pension Plan in an aggregate amount exceeding $25,000,000 and one of the following shall apply with respect to such event: (x) such event in the circumstances occurring reasonably would be expected to result in the termination of such Guaranteed Pension Plan by the PBGC or for the appointment by the appropriate United States District Court of a trustee to administer such Guaranteed Pension Plan; or (y) a trustee shall have been appointed by the United States District Court to administer such Plan; or (z) the PBGC shall have instituted proceedings to terminate such Guaranteed Pension Plan; (o) any Change of Control shall occur; or (p) an Event of Default under any of the other Loan Documents shall occur; then, and upon any such Event of Default, the Agent may, and upon the request of the Required Lenders shall, by notice in writing to Loan Parties declare all amounts owing with respect to this Agreement, the Notes and the other Loan Documents to be, and they shall thereupon forthwith become, immediately due and payable without presentment, demand, protest or other notice of any kind, all of which are hereby expressly waived by Borrower; provided that in the event of any Event of Default specified in § 12.1(h), § 12.1(i) or § 12.1(j), all such amounts shall become immediately due and payable automatically and without any requirement of presentment, demand, protest or other notice of any kind from any of the Lenders or the Agent.
Appears in 1 contract
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) any Borrower shall fail to pay any principal of the Loan 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) any Borrower shall fail to pay (i) any interest on its Loans, any Commitment Fee, any Letter of Credit Fee, any Duration Fee, or any fees due under the Loan within five (5) days of the date that Fee Letter, when the same shall become due and payable or any fees or other sums due hereunder (other than any voluntary prepayment) or under any of the other Loan Documents within ten (10) days after notice from the Agentpayable, 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 three (3) days; or (ii) any other sums due hereunder or under any of the other Loan Documents, when the same shall become due and payable, whether at the stated date of maturity or any accelerated date of maturity or at any other date fixed for payment, and such failure shall continue for thirty (30) days;
(c) Borrower any of the Borrowers or any of their Restricted Subsidiaries shall fail to comply with any of the covenant covenants contained in § 9.1 and such failure shall continue uncured after written notice thereof shall have been given to Loan Parties by §§9.1, 9.5.1, the Agent as provided in § 3.2first sentence of §9.6, 9.12, 9.14, 10 or 11;
(d) Borrower any of the Borrowers or any of their Restricted Subsidiaries shall fail to perform any other term, covenant or agreement contained in (i) §8.15 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, § 9.7 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 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 elsewhere in the other subclauses of this § 12 (including, without limitation, § 12.2 below§14.1) 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 of such failure has been given to 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 Applicable Borrower by the Administrative 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;
(fe) any material representation or warranty made by or on behalf of Loan Parties any of the 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 an Advance, Documents or in any other document or instrument delivered pursuant to or in connection with the Loan, any Advance, this Agreement, or any of the other Loan Documents Credit 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 LoanTransaction Party of the Borrowers or any of their Restricted Subsidiaries shall fail to pay when due (including, without limitation, at maturity)due, or within any applicable period of notice and grace, any principalobligation in excess of the aggregate amount of $50,000,000, interest or other amount on account of any obligation for borrowed money or credit received or other Indebtednessin respect of any 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 and in respect of any 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 have accelerated to accelerate the maturity thereof; provided that the events described in §12.1(g;
(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 (x) any Indebtedness which is recourse to Borrower or any of the Subsidiary GuarantorsPool Owners (including, without limitation, Secured Recourse Indebtedness) totaling in excess of $25,000,000 or (y) Non-Recourse Indebtedness of Borrower or Borrowers and any of the Subsidiary GuarantorsPool Owners totaling in excess of $50,000,000;
their Restricted Subsidiaries (h) any LoanTransaction Party or REIT, (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 LoanTransaction Party or REIT 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 ninety sixty (9060) 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 any LoanTransaction Party or REIT or adjudicating any such Person, of the Borrowers or any of their Restricted Subsidiaries (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 one days, whether or more uninsured or unbonded not consecutive, any final judgments judgment against Borrower any of the Borrowers or any Subsidiary GuarantorPool Owner of their 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 $50,000,000;
(lj) if any of the Loan 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 Required Lenders, or any action at law, suit or in equity or other legal proceeding to cancel, revoke or rescind any of the Loan Documents shall be commenced by or on behalf of any Loan Partyof the Borrowers or any of their 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 is illegal, invalid or unenforceable in accordance with the terms thereof;
(mk) any dissolution, termination, partial or complete liquidation, merger or consolidation of any LoanTransaction Party shall occur or any sale, transfer or other disposition of the assets of any LoanTransaction Party 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 such event Plan or Multiemployer Plan which results or could reasonably would 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 LoanTransaction Party applicable grace period, any installment payment with respect to pay money to the PBGC or such Guaranteed Pension its withdrawal liability under §4201 of ERISA under a Multiemployer Plan in an aggregate amount exceeding in excess of $25,000,000 and one 50,000,000; or (iii) there is a failure of the following shall apply legal compliance with respect to any Canadian Plan or Foreign Plan and such event: (x) such event in the circumstances occurring failure results or could reasonably would be expected to result in the termination accelerated liability in an aggregate amount in excess 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$50,000,000; or (yiv) a trustee 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 Borrowers or any of their Restricted Subsidiaries (other than Immaterial Restricted Subsidiaries) shall have been appointed be enjoined, restrained or in any way prevented by the United States District Court 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 a Material Adverse Effect;
(n) there shall occur the loss, suspension or revocation of, or failure to administer renew, any license or permit now held or hereafter acquired by any Borrower or any of its Restricted Subsidiaries if such Plan; loss, suspension, revocation or (z) the PBGC shall failure to renew would have instituted proceedings to terminate such Guaranteed Pension Plana Material Adverse Effect;
(o) any of the Borrowers or any of their Restricted Subsidiaries 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 any assets of such Borrower or such Restricted Subsidiary having a fair market value in excess of $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 occurControl” as defined in any other Indebtedness in excess of $100,000,000; or
(pq) any Guarantees (other than a Guarantee by an Event of Default under Immaterial Restricted Subsidiary) or security interests in the Collateral (including, without limitation, the Voting Trust Certificates (or other ownership or profit interest in the Voting Trust)), at any time after its execution and delivery of the other Loan Documents shall occurfor 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); thenor 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 Person contests in any manner the validity or enforceability of any provision of §7 or of any Collateral Document (including, and upon any such Event of Defaultwithout limitation, the Agent may, and upon the request pledge of the Required Lenders shall, by notice in writing to Loan Parties declare all amounts owing with respect to this Agreement, the Notes and the other Loan Documents to be, and they shall thereupon forthwith become, immediately due and payable without presentment, demand, protest Voting Trust Certificates (or other notice of any kind, all of which are hereby expressly waived by Borrower; provided that ownership or profit interest in the event of any Event of Default specified in § 12.1(hVoting Trust), § 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.
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 Loan 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 Loan within five (5) days of the date that the same shall become due and payable Loans or any fees or other sums due hereunder (other than any voluntary prepayment) or under any of the other Loan Documents within ten (10) days after notice from the Agent, whether at the stated date of maturity or any accelerated date of maturity or at any other date fixed fee letter (including, without limitation, amounts due under §8.16) when the same shall become due and payable, and such failure continues for paymentthree (3) days;
(c) Borrower the Borrower, any Subsidiary Guarantor, the Trust or any of their respective Subsidiaries shall fail to comply comply, or to cause the Trust to comply, as the case may be, with any of the covenant respective covenants contained in § 9.1 the following: §8.1 (except with respect to principal, interest and such failure shall continue uncured after written notice thereof shall have been given to Loan Parties other sums covered by the Agent as provided in § 3.2clauses (a) or (b) above); §8.2; §§8.4 through §8.10, inclusive; §8.12; §8.13; §8.15; §8.19; §8.20; §9; §10 and §11;
(d) Borrower shall fail to perform the Borrower, any other termSubsidiary Guarantor, covenant the Trust or agreement contained in (i) §8.15 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, § 9.7 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 Loan Party 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 (including, without limitation, § 12.2 below§14) or in the other Loan Documents), and such failure shall continue continues 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 noticedays;
(fe) any material representation or warranty made by or on behalf of Loan Parties the Borrower, any Subsidiary Guarantor, the Trust or any of their respective Subsidiaries in this Agreement or any other Loan Document, or any report, certificate, financial statement, request for an Advance, or in any other document or instrument delivered pursuant to or in connection with the Loan, any Advance, this Agreement, 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 LoanTransaction Party Subsidiary Guarantor, the Trust or any of its Subsidiaries or, to the extent of Recourse to the Borrower, the Subsidiary Guarantor, the Trust or such Subsidiaries thereunder, any Partially-Owned Entity or other of their respective Affiliates, shall fail to pay when 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 Indebtedness for borrowed money or credit received or other Indebtednessin 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 (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 and in respect of any Capitalized Leases for such period of time (after the giving of appropriate notice if required) as would permit the holder or holders thereof or of any obligations issued thereunder have accelerated 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; 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 (xiii) any Indebtedness which is recourse to Borrower event of default (beyond any applicable notice and grace periods) shall occur under any Property Level Loan Document; or
(g) any of FPLP, any Subsidiary Guarantor, the Trust or any of the Subsidiary GuarantorsPool Owners (including, without limitation, Secured Recourse Indebtedness) totaling in excess of $25,000,000 or (y) Non-Recourse Indebtedness of Borrower or any of the Subsidiary GuarantorsPool Owners totaling in excess of $50,000,000;
(h) any LoanTransaction Party or REIT, (i) their respective 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 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 LoanTransaction Party or REIT 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 ninety continue undismissed, or unstayed and in effect, for a period of forty-five (9045) days following the filing or commencement thereofdays;
(jh) a decree or order is entered appointing a any trustee, custodian, liquidator or receiver for any LoanTransaction Party or REIT or adjudicating any such Personof FPLP, a Subsidiary Guarantor, the Trust or any of their respective Subsidiaries bankrupt or insolvent, or approving a petition in any such case or other proceeding, or a decree or order for relief is entered in respect of any 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 one days, whether or more not consecutive, any uninsured or unbonded final judgments judgment against Borrower any of FPLP, a Subsidiary Guarantor, the Trust or any Subsidiary GuarantorPool Owner 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 $50,000,0002,000,000;
(lj) any of the Loan Documents or 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 Required 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 shall be commenced by or on behalf of the Borrower or a Subsidiary Guarantor or any Loan Partyof their Subsidiaries or the Trust or any of its Subsidiaries, or any court or any other governmental or regulatory authority or agency of competent jurisdiction shall make a determinationdetermination that, or issue a judgment, order, decree or ruling, ruling to the effect that that, any one or more of the Loan Documents is illegal, invalid or unenforceable in accordance with the as to any material terms thereof;; or the Agent shall fail to have a perfected first-priority security interest in any of the Collateral; or
(mk) any dissolution, termination, partial “Event of Default” or complete liquidation, merger or consolidation default (after notice and expiration of any LoanTransaction Party shall occur period of grace, to the extent provided, as defined or provided in any sale, transfer or other disposition of the assets of any LoanTransaction Party 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 Majority Lenders shall have determined in their reasonable discretion that such event reasonably would could be expected to result in liability of the Borrower or any LoanTransaction Party to pay money of its Subsidiaries or the Trust or any of its Subsidiaries to the PBGC or such Guaranteed Pension Plan in an aggregate amount exceeding $25,000,000 2,000,000 and one of the following shall apply with respect to such event: (x) such event in the circumstances occurring reasonably would be expected to result in 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) 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, the failure of any of the Real Estate Assets being included from time to time as part of the Borrowing Base Pool to comply with any of the conditions set forth in the definition of Eligible Borrowing Base Properties;
(n) the failure of any two of (i) D▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, for any reason, to cease to retain the titles of President, Chief Executive Officer and Trustee of the Trust, or (ii) N▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, for any reason, to cease to retain the titles of Executive Vice President and Chief Investment Officer, or (iii) B▇▇▇▇ ▇. ▇▇▇▇, for any reason, to cease to retain the titles of 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 (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 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 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 shares of all classes of stock then outstanding of the 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 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 Change time fail to be the sole general partner of Control FPLP or shall occurat any time be in contravention of any of the requirements contained in the last paragraph of §9.2 hereof, or §9.3 (including, without limitation, the last paragraph of §9.3); or
(p) an Event of Default under any the Borrower shall fail to own, directly or indirectly, 100% of the other Loan Documents shall occurEquity Interests of each Subsidiary Guarantor; then, and upon in any such Event of Defaultevent, 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 Loan Parties declare all amounts owing with respect to this Agreement, the Notes and the other Loan Documents to be, and they shall thereupon forthwith become, immediately due and payable without presentment, demand, protest or other notice of 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(i§14.1(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. Notwithstanding the foregoing provisions of this §14.1, in the event of a Default or Event of Default arising as a result of the inclusion of any Real Estate Asset in the Borrowing Base Pool at any particular time of reference, if such Default or Event of Default is capable of being cured by the exclusion of such Real Estate Asset from the Borrowing Base Pool in accordance with, and subject to, §8.13 and from all other covenant calculations under §10 or otherwise, the Borrower shall be permitted a period not to exceed five (5) days to submit to the Agent (with copies to the Agent for each Lender) a compliance certificate in the form of Exhibit C hereto evidencing compliance with the covenants set forth in §10 (with calculations evidencing such compliance after excluding from Adjusted Net Operating Income all of the Adjusted Net Operating Income generated by the Real Estate Asset to be excluded from the Borrowing Base Pool) and with the Borrowing Base Property Conditions, and otherwise certifying that, after giving effect to the exclusion of such Real Estate Asset from the Borrowing Base Pool, no Default or Event of Default will be continuing.
Appears in 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 Loan 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 Loan within five (5) days Loans, any reimbursement obligations with respect to the Letters of the date that the same shall become due and payable Credit, or any fees or other sums due hereunder (other than any voluntary prepayment) or under any of the other Loan Documents within ten (10) days after notice from when the Agentsame 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 uncured for five (5) Business Days after written notice thereof shall have been given to Loan Parties the Borrower by the Agent as provided in § 3.2Agent;
(d) Borrower any of the Borrower, the Guarantors or any of their respective Subsidiaries shall fail to perform any other term, covenant or agreement contained in (i) §8.15 and such failure continues for thirty (30) days after written notice thereof shall have been given to the Loan Parties by the Agent8.20, 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 Loan Party 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 (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 Loan Parties 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 an Advancea Loan, Letter of Credit Request, 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 LoanTransaction Party 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 notice and grace, any principal, interest or other amount on account of any obligation for borrowed money or credit received or other IndebtednessIndebtedness (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 and (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 have accelerated to accelerate the maturity thereofthereof 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 (x) any borrowed money or credit received or other Recourse Indebtedness which is recourse to Borrower or any of the Subsidiary GuarantorsPool Owners (including, without limitation, Secured Recourse Indebtedness) totaling in excess of $25,000,000 50,000,000.00 or (y) Non-Recourse Indebtedness of Borrower or any of the Subsidiary GuarantorsPool Owners totaling in excess of $50,000,000100,000,000.00;
(h) any LoanTransaction Party of the Borrower, the Guarantors or REIT, 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 LoanTransaction Party of the Borrower, the Guarantors or REIT 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 ninety sixty (9060) days following the filing or commencement thereof;
(j) a decree or order is entered appointing a trustee, custodian, liquidator or receiver for any LoanTransaction Party of the Borrower, the Guarantors or REIT 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 days, whether or not consecutive, one or more uninsured or unbonded final judgments judgments, orders, awards, writs execution or attachments against Borrower the Borrower, Guarantors or any Subsidiary GuarantorPool Owner of their respective Subsidiaries that, either individually or in the aggregate, exceed $50,000,00050,000,000.00;
(l) any of the Loan Documents Documents, the Contribution Agreement or the Bond Subordination and Standstill 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 Required Lenders, or any action at law, suit in equity or other legal proceeding to cancel, revoke or rescind any of the Loan Documents Documents, the Contribution Agreement or the Bond Subordination and Standstill Agreement shall be commenced by or on behalf of the Borrower or any Loan Partyof 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 Documents, the Contribution Agreement or the Bond Subordination and Standstill 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 LoanTransaction Party 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 LoanTransaction Party 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 would could be expected to result in liability of any LoanTransaction Party to pay money of the Borrower, the Guarantors or any of their respective Subsidiaries to the PBGC or such Guaranteed Pension Plan in an aggregate amount exceeding $25,000,000 20,000,000.00 and one of the following shall apply with respect to such event: (x) such event in the circumstances occurring reasonably would be expected to result in 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; or;
(pq) an Event of Default under any of the other Loan Documents shall occur;
(r) [Intentionally Omitted];
(s) [Intentionally Omitted];
(t) 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 upon in any such Event of Defaultevent, the Agent may, and upon the request of the Required Lenders shall, by notice in writing to Loan Parties the Borrower declare all amounts owing with respect to this Agreement, the Notes 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 Loan 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 Loan within five (5) days of the date that the same shall become due and payable Loans or any fees or other sums due hereunder (other than any voluntary prepayment) or under any of the other Loan Documents Documents, within ten three (103) days after notice from the Agentdate 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 uncured to exist after written notice thereof shall have been given to Loan Parties the Borrower by the Agent as and the cure period provided in § 3.2Section 12.1B(a) shall have ended;
(d) the Borrower or REA shall fail to perform comply with any other term, covenant or agreement contained in (i) §8.15 Section 9.2, Section 9.3, Section 9.4 or Section 9.5 and such failure continues shall continue for thirty (30) days after written notice thereof shall have been given to the Loan Parties Borrower by the Agent, or (ii) § 9.2, § 9.3, § 9.4, § 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 Loan Party of the Borrower, REA, 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 (including, without limitation, § 12.2 belowSection 12) or in the other Loan Documents), and such failure shall continue for thirty (30) days after Loan Parties’ receipt from written notice thereof shall have been given to the Borrower by the Agent of written notice thereofor such longer period, and in the case of a default not to exceed an additional sixty (60) days, as may be required to cure such default, PROVIDED that cannot be cured within such thirty (30) day period despite Loan Parties’ diligent efforts but cure 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 noticediligently pursued;
(f) any material representation or warranty made by or on behalf of Loan Parties the Borrower, REA, the Guarantors, or any of their respective Subsidiaries in this Agreement or any other Loan Document, or any report, certificate, financial statement, request for an Advancea Loan, 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 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 LoanTransaction Party of the Borrower, REA, the 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 notice and grace, any principal, interest or other amount on account of any obligation for borrowed money or credit received or other IndebtednessIndebtedness 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 and 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 have accelerated to accelerate the maturity thereof; provided that the events described in §12.1(g) shall not constitute an Event of Default unless such failure to perform, together with other failures to perform as described in §12.1(g), involve singly or in the aggregate obligations for (x) any Indebtedness which is recourse to Borrower or any of the Subsidiary GuarantorsPool Owners (including, without limitation, Secured Recourse Indebtedness) totaling in excess of $25,000,000 or (y) Non-Recourse Indebtedness of Borrower or any of the Subsidiary GuarantorsPool Owners totaling in excess of $50,000,000;
(h) any LoanTransaction Party of the Borrower, REA, the Guarantors, or REITany 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 LoanTransaction Party of the Borrower, REA, the Guarantors, or REIT 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 ninety (90) days following the filing or commencement thereof;
(j) a decree or order is entered appointing a trustee, custodian, liquidator or receiver for any LoanTransaction Party of the Borrower, REA, the Guarantors, or REIT 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 days, whether or not consecutive, one or more uninsured or unbonded final judgments against Borrower any of the Borrower, REA, the Guarantors, or any Subsidiary GuarantorPool Owner of their respective Subsidiaries that, either individually or in the aggregate, exceed $50,000,0002,000,000;
(l) any of the Loan Documents shall be canceled, terminated, revoked or rescinded otherwise than in accordance with the terms thereof or the express prior written agreement, consent or approval of the Required Lenders, or any action at law, suit in equity or other legal proceeding to cancel, revoke or rescind any of the Loan Documents shall be commenced by or on behalf of any Loan Partyof 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 is illegal, invalid or unenforceable in accordance with the terms thereof;
(m) any dissolution, termination, partial or complete liquidation, merger or consolidation of any LoanTransaction Party of the Borrower, REA or any Guarantor shall occur or any sale, transfer or other disposition of the assets of any LoanTransaction Party of the Borrower, REA or any 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 Majority Lenders shall have determined in their reasonable discretion that such event reasonably would could be expected to result in liability of any LoanTransaction Party to pay money 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 $25,000,000 2,000,000 and one of the following shall apply with respect to such event: (x) such event in the circumstances occurring reasonably would be expected to result in 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 Majority Lenders within six (6) months of such event, such approval not to be unreasonably withheld;
(r) REA shall fail to pay or perform any Change of Control its obligations under Section 32 or any Guarantor shall occurfail to pay or perform any of its obligations under its Guaranty; or
(ps) an Event event of Default default under any of the other Loan Documents shall occur; then, and upon in any such Event of Defaultevent, the Agent may, and upon the request of the Required Majority Lenders shall, by notice in writing to Loan Parties the Borrower declare all amounts owing with respect to this Agreement, the Notes and the other Loan Documents to be, and they shall thereupon forthwith become, immediately due and payable without presentment, demand, protest or other notice of any kind, all of which are hereby expressly waived by the Borrower; provided 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.
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 any portion of the 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 the Loan within five (5) days any portion of the date that the same shall become due and payable Term Loan or any fees or other sums due hereunder (other than any voluntary prepayment) or under any of the other Loan Documents within ten (10) days after notice from the Agent, whether at the stated date of maturity or any accelerated date of maturity or at any other date fixed fee letter (including, without limitation, amounts due under §8.16) when the same shall become due and payable, and such failure continues for paymentthree (3) days;
(c) Borrower the Borrower, the Trust or any of their respective Subsidiaries shall fail to comply comply, or to cause the Trust to comply, as the case may be, with any of the covenant respective covenants contained in § 9.1 the following: §8.1 (except with respect to principal, interest and such failure shall continue uncured after written notice thereof shall have been given to Loan Parties other sums covered by the Agent as provided in § 3.2clauses (a) or (b) above); §8.2; §§8.4 through §8.10, inclusive; §8.12; §8.13; §8.19; §8.20; §9 and §11;
(d) Borrower shall fail to perform the Borrower, the Trust or any other term, covenant or agreement contained in (i) §8.15 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, § 9.7 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 Loan Party 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 (including, without limitation, § 12.2 below§14) or in the other Loan Documents), and such failure shall continue continues 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 noticedays;
(fe) any material representation or warranty made by or on behalf of Loan Parties the Borrower, the Trust or any of their respective Subsidiaries in this Agreement or any other Loan Document, or any report, certificate, financial statement, request for an Advance, or in any other document or instrument delivered pursuant to or in connection with the Loan, any Advance, this Agreement, 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) the Borrower, the Trust or any LoanTransaction Party 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 Affiliates, shall fail to pay when due (including, without limitation, at maturity)due, or within any applicable period of notice and grace, any principalConsolidated Total Indebtedness which is in excess of (i) $5,000,000, interest either individually or other amount on account of 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 Indebtednessin 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, evidencing securing or securing any obligation otherwise relating to such Consolidated Total Indebtedness for borrowed money or credit received or other Indebtedness and such period of time (after the giving of appropriate notice if required) as would permit the holder or holders thereof or of any obligations issued thereunder have accelerated 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; 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 ;
(xg) any Indebtedness which is recourse to Borrower of the Borrower, the Trust or any of the Subsidiary GuarantorsPool Owners (including, without limitation, Secured Recourse Indebtedness) totaling in excess of $25,000,000 or (y) Non-Recourse Indebtedness of Borrower or any of the Subsidiary GuarantorsPool Owners totaling in excess of $50,000,000;
(h) any LoanTransaction Party or REIT, (i) their respective 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 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 LoanTransaction Party or REIT 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 ninety continue undismissed, or unstayed and in effect, for a period of forty-five (9045) days following the filing or commencement thereofdays;
(jh) a decree or order is entered appointing a any trustee, custodian, liquidator or receiver for any LoanTransaction Party or REIT or adjudicating any such Personof the Borrower, the Trust or any of their respective Subsidiaries bankrupt or insolvent, or approving a petition in any such case or other proceeding, or a decree or order for relief is entered in respect of any 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 one days, whether or more uninsured or unbonded not consecutive, any final judgments judgment that is not fully insured against Borrower any of the Borrower, the Trust or any Subsidiary GuarantorPool Owner 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 $50,000,0001,000,000;
(lj) any of the Loan Documents or 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 Required 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 shall be commenced by or on behalf of the Borrower or any Loan Partyof its Subsidiaries or the Trust or any of its Subsidiaries, or any court or any other governmental or regulatory authority or agency of competent jurisdiction shall make a determinationdetermination that, or issue a judgment, order, decree or ruling, ruling to the effect that that, any one or more of the Loan Documents is illegal, invalid or unenforceable in accordance with the 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 LoanTransaction Party shall occur period of grace, to the extent provided), as defined or provided in any sale, transfer or other disposition of the assets of any LoanTransaction Party 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 Agent shall have determined in their reasonable discretion that such event reasonably would could be expected to result in liability of the Borrower or any LoanTransaction Party to pay money of its Subsidiaries or the Trust or any of its Subsidiaries to the PBGC or such Guaranteed Pension Plan in an aggregate amount exceeding $25,000,000 1,000,000 and one of the following shall apply with respect to such event: (x) such event in the circumstances occurring reasonably would be expected to result in 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 other provisions of this §14.1, (i) the Trust shall at any Change time fail to be the sole general partner of Control Whitestone OP or shall occurat any time be in contravention of any of the requirements contained in the last paragraph of §9.2, (ii) Whitestone OP shall fail at any time to be the sole member of Pima Norte, or (iii) the Borrower or the Trust shall at any time fail to be self-managed;
(p) any Event of Default under (and as defined in) the Revolving Credit Agreement; or
(pq) an any Disqualifying Environmental Event of Default under any of the other Loan Documents or Disqualifying Structural Event shall occurhave occurred; then, and upon in any such Event of Defaultevent, 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 Loan Parties declare all amounts owing with respect to this Agreement, the Notes and the other Loan Documents to be, and they shall thereupon forthwith become, immediately due and payable without presentment, demand, protest or other notice of 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(i§14.1(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. Without limitation of the foregoing, upon the occurrence of an Event of Default and/or the acceleration of the Loans or other enforcement action under any Loan Document, 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).
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 Loan 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 Loan within five (5) days of the date that the same shall become due and payable Loans or any fees or other sums due hereunder (other than any voluntary prepayment) or under any of the other Loan Documents Documents, within ten three (103) days after notice from the Agentdate 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 uncured to exist after written notice thereof shall have been given to Loan Parties the Borrower by the Agent as and the cure period provided in § 3.2Section 12.1B(a) shall have ended;
(d) the Borrower or REA shall fail to perform comply with any other term, covenant or agreement contained in (i) §8.15 Section 9.2, Section 9.3, Section 9.4 or Section 9.5 and such failure continues shall continue for thirty (30) days after written notice thereof shall have been given to the Loan Parties Borrower by the Agent, or (ii) § 9.2, § 9.3, § 9.4, § 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 Loan Party of the Borrower, REA, 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 (including, without limitation, § 12.2 belowSection 12) or in the other Loan Documents), and such failure shall continue for thirty (30) days after Loan Parties’ receipt from written notice thereof shall have been given to the Borrower by the Agent of written notice thereofor such longer period, and in the case of a default not to exceed an additional sixty (60) days, as may be required to cure such default, provided that cannot be cured within such thirty (30) day period despite Loan Parties’ diligent efforts but cure 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 noticediligently pursued;
(f) any material representation or warranty made by or on behalf of Loan Parties the Borrower, REA, the Guarantors, or any of their respective Subsidiaries in this Agreement or any other Loan Document, or any report, certificate, financial statement, request for an Advancea Loan, 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 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 LoanTransaction Party of the Borrower, REA, the 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 notice and grace, any principal, interest or other amount on account of any obligation for borrowed money or credit received or other IndebtednessIndebtedness 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 and 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 have accelerated to accelerate the maturity thereof; provided that the events described in §12.1(g) shall not constitute an Event of Default unless such failure to perform, together with other failures to perform as described in §12.1(g), involve singly or in the aggregate obligations for (x) any Indebtedness which is recourse to Borrower or any of the Subsidiary GuarantorsPool Owners (including, without limitation, Secured Recourse Indebtedness) totaling in excess of $25,000,000 or (y) Non-Recourse Indebtedness of Borrower or any of the Subsidiary GuarantorsPool Owners totaling in excess of $50,000,000;
(h) any LoanTransaction Party of the Borrower, REA, the Guarantors, or REITany 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 LoanTransaction Party of the Borrower, REA, the Guarantors, or REIT 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 ninety (90) days following the filing or commencement thereof;
(j) a decree or order is entered appointing a trustee, custodian, liquidator or receiver for any LoanTransaction Party of the Borrower, REA, the Guarantors, or REIT 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 days, whether or not consecutive, one or more uninsured or unbonded final judgments against Borrower any of the Borrower, REA, the Guarantors, or any Subsidiary GuarantorPool Owner of their respective Subsidiaries that, either individually or in the aggregate, exceed $50,000,0002,000,000;
(l) any of the Loan Documents shall be canceled, terminated, revoked or rescinded otherwise than in accordance with the terms thereof or the express prior written agreement, consent or approval of the Required Lenders, or any action at law, suit in equity or other legal proceeding to cancel, revoke or rescind any of the Loan Documents shall be commenced by or on behalf of any Loan Partyof 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 is illegal, invalid or unenforceable in accordance with the terms thereof;
(m) any dissolution, termination, partial or complete liquidation, merger or consolidation of any LoanTransaction Party of the Borrower, REA or any Guarantor shall occur or any sale, transfer or other disposition of the assets of any LoanTransaction Party of the Borrower, REA or any 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 Majority Lenders shall have determined in their reasonable discretion that such event reasonably would could be expected to result in liability of any LoanTransaction Party to pay money 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 $25,000,000 2,000,000 and one of the following shall apply with respect to such event: (x) such event in the circumstances occurring reasonably would be expected to result in 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 Majority Lenders within six (6) months of such event, such approval not to be unreasonably withheld;
(r) REA shall fail to pay or perform any Change of Control its obligations under Section 32 or any Guarantor shall occurfail to pay or perform any of its obligations under its Guaranty; or
(ps) an Event event of Default default under any of the other Loan Documents shall occur; then, and upon in any such Event of Defaultevent, the Agent may, and upon the request of the Required Majority Lenders shall, by notice in writing to Loan Parties the Borrower declare all amounts owing with respect to this Agreement, the Notes and the other Loan Documents to be, and they shall thereupon forthwith become, immediately due and payable without presentment, demand, protest or other notice of any kind, all of which are hereby expressly waived by the Borrower; provided that in the event of any Event of Default specified in § Section 12.1(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.
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 Loan 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 Loan within five (5) days Loans, the commitment fee, any Letter of Credit Fee, the date that the same shall become due and payable or any fees Agent's fee, or other sums due hereunder (other than any voluntary prepayment) or under any of the other Loan Documents within ten two (102) days after notice from the Agentsame 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 uncured after written notice thereof shall have been given to Loan Parties by (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 Agent as provided covenants contained in § 3.2any of the Mortgages;
(d) the Parent, the Borrower or any of their respective Subsidiaries shall fail to perform any other term, covenant or agreement contained in (i) §8.15 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, § 9.7 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 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 elsewhere in the other subclauses of this § 12 (including, without limitation, § 12.2 belowS)15.1) or in the other Loan Documents), and such failure shall continue for thirty fifteen (3015) days after Loan Parties’ receipt from the Agent of written notice thereof, and in of such failure has been given to 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 Borrower by 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;
(fe) any material representation or warranty made by or on behalf of Loan Parties the Parent, the 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 an Advance, Documents or in any other document or instrument delivered pursuant to or in connection with the Loan, any Advance, this Agreement, or any of the other Loan Documents Credit Agreement shall prove to have been false in any material respect upon the date when made or deemed to have been made or repeated;
(gf) the Parent, the Borrower or any LoanTransaction Party of their respective Subsidiaries 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 Indebtednessin respect of any 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 and in respect of any 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 have accelerated to accelerate the maturity thereof; provided that , or any such holder or holders shall rescind or shall have a right to rescind the events described in §12.1(gpurchase of any such obligations;
(g) shall not constitute an Event of Default unless such failure to performthe Parent, together with other failures to perform as described in §12.1(g), involve singly or in the aggregate obligations for (x) any Indebtedness which is recourse to Borrower or any of the Subsidiary GuarantorsPool Owners (including, without limitation, Secured Recourse Indebtedness) totaling in excess of $25,000,000 or (y) Non-Recourse Indebtedness of Borrower or any of the Subsidiary GuarantorsPool Owners totaling in excess of $50,000,000;
(h) any LoanTransaction Party or REIT, (i) their respective 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 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 LoanTransaction Party or 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, 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 ninety forty-five (9045) 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 LoanTransaction Party or REIT or adjudicating the Parent, the Borrower or any such Person, of their respective Subsidiaries bankrupt or insolvent, or approving a petition in any such case or other proceeding, or a decree or order for relief is entered in respect of any 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 one days, whether or more uninsured or unbonded not consecutive, any final judgments judgment against the Parent, the Borrower or any Subsidiary GuarantorPool Owner of their respective Subsidiaries that, either individually or with other outstanding final judgments, undischarged, against such Person exceeds in the aggregate, exceed aggregate $50,000,0001,000,000;
(lj) if any of the Loan 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 Required LendersBanks, or any action at law, suit or in equity or other legal proceeding to cancel, revoke or rescind any of the Loan Documents shall be commenced by or on behalf of the Parent, the Borrower or any Loan Partyof their 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 is illegal, invalid or unenforceable in accordance with the terms thereof;
(mk) any dissolution, termination, partial or complete liquidation, merger or consolidation of any LoanTransaction Party shall occur the Borrower or any saleERISA 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, transfer or other disposition any of the assets of any LoanTransaction Party 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 meaning of (S)302(f)(1) of ERISA), provided that the Agent determines in its reasonable discretion -------- that such event reasonably would (A) could be expected to result in liability of the Borrower or any LoanTransaction Party to pay money of its Subsidiaries to the PBGC or such Guaranteed Pension Plan in an aggregate amount exceeding $25,000,000 1,000,000 and one of the following shall apply with respect to such event: (xB) such event in the circumstances occurring reasonably would be expected to result in 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;
(l) the Parent, 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 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 material damage to, or loss, theft or destruction of, any Collateral, whether or not insured, or any strike, lockout, labor dispute, embargo, condemnation, act of God or public enemy, or other casualty, which in any such case causes, for more than fifteen (15) consecutive days, the cessation or substantial curtailment of revenue producing activities at any facility of the Borrower or any of 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 Change of Control their respective Subsidiaries shall occur; orbe 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 forfeiture of any assets of such Person having a fair market value in excess of $1,000,000;
(p) an Event of Default under the Parent shall at any time, legally or beneficially own less than one hundred percent (100%) shares of the other Loan Documents shall occur; then, and upon any such Event of Default, the Agent may, and upon the request common stock of the Required Lenders shallBorrower, by notice in writing as adjusted pursuant to Loan Parties declare all amounts owing with respect to this Agreementany stock split, the Notes and the other Loan Documents to be, and they shall thereupon forthwith become, immediately due and payable without presentment, demand, protest stock dividend or other notice of any kind, all of which are hereby expressly waived by Borrower; provided that in the event of any Event of Default specified in § 12.1(h), § 12.1(i) recapitalization 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 reclassification of the Lenders or capital of the Agent.Borrower;
Appears in 1 contract
Sources: Revolving Credit and Term Loan Agreement (Chart House Enterprises 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 Loan 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 Loan within five (5) days of the date that the same shall become due and payable Loans or any fees or other sums due hereunder (other than any voluntary prepayment) or under any of the other Loan Documents within ten (10) days after notice from the Agent, whether at the stated date of maturity or any accelerated date of maturity or at any other date fixed fee letter (including, without limitation, amounts due under §8.16) when the same shall become due and payable, and such failure continues for paymentthree (3) days;
(c) Borrower the Borrower, the Trust or any of their respective Subsidiaries shall fail to comply comply, or to cause the Trust to comply, as the case may be, with any of the covenant respective covenants contained in § 9.1 the following: §8.1 (except with respect to principal, interest and such failure shall continue uncured after written notice thereof shall have been given to Loan Parties other sums covered by the Agent as provided in § 3.2clauses (a) or (b) above); §8.2; §§8.4 through §810, inclusive; §8.12; §8.13; §8.15; §8.19; §8.20; §9; §10 and §11;
(d) Borrower shall fail to perform the Borrower, the Trust or any other term, covenant or agreement contained in (i) §8.15 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, § 9.7 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 Loan Party 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 (including, without limitation, § 12.2 below§14) or in the other Loan Documents), and such failure shall continue continues 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 noticedays;
(fe) any material representation or warranty made by or on behalf of Loan Parties the Borrower, the Trust or any of their respective Subsidiaries in this Agreement or any other Loan Document, or any report, certificate, financial statement, request for an Advance, or in any other document or instrument delivered pursuant to or in connection with the Loan, any Advance, this Agreement, 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) the Borrower, the Trust or any LoanTransaction Party 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 Affiliates, 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 Indebtedness for borrowed money or credit received or other Indebtednessin respect of any 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 and in respect of any Capitalized Leases for such period of time (after the giving of appropriate notice if required) as would permit the holder or holders thereof or of any obligations issued thereunder have accelerated the maturity thereof; provided that the events described in §12.1(g) shall not constitute an Event of Default unless such failure to perform, together with other failures to perform as described in §12.1(g), involve singly or in the aggregate obligations for (x) any Indebtedness which is recourse to Borrower or any of the Subsidiary GuarantorsPool Owners (including, without limitation, Secured Recourse Indebtedness) totaling in excess of $25,000,000 7,000,000, either individually or in the aggregate, to accelerate the maturity thereof;
(yg) Non-Recourse Indebtedness any of Borrower FPLP, the Trust or any of the Subsidiary GuarantorsPool Owners totaling in excess of $50,000,000;
(h) any LoanTransaction Party or REIT, (i) their respective 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 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 LoanTransaction Party or REIT 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 ninety continue undismissed, or unstayed and in effect, for a period of forty-five (9045) days following the filing or commencement thereofdays;
(jh) a decree or order is entered appointing a any trustee, custodian, liquidator or receiver for any LoanTransaction Party or REIT or adjudicating any such Personof FPLP, the Trust or any of their respective Subsidiaries bankrupt or insolvent, or approving a petition in any such case or other proceeding, or a decree or order for relief is entered in respect of any 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 one days, whether or more not consecutive, any uninsured or unbonded final judgments judgment against Borrower any of FPLP, the Trust or any Subsidiary GuarantorPool Owner 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 $50,000,0001,000,000;
(lj) any of the Loan Documents or 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 Required 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 shall be commenced by or on behalf of the Borrower or any Loan Partyof its Subsidiaries or the Trust or any of its Subsidiaries, or any court or any other governmental or regulatory authority or agency of competent jurisdiction shall make a determinationdetermination that, or issue a judgment, order, decree or ruling, ruling to the effect that that, any one or more of the Loan Documents is illegal, invalid or unenforceable 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 LoanTransaction Party shall occur period of grace, to the extent provided, as defined or provided in any sale, transfer or other disposition of the assets of any LoanTransaction Party 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 Majority Lenders shall have determined in their reasonable discretion that such event reasonably would could be expected to result in liability of the Borrower or any LoanTransaction Party to pay money of its Subsidiaries or the Trust or any of its Subsidiaries to the PBGC or such Guaranteed Pension Plan in an aggregate amount exceeding $25,000,000 1,000,000 and one of the following shall apply with respect to such event: (x) such event in the circumstances occurring reasonably would be expected to result in 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, the failure of any Change of Control shall occurthe Real Estate Assets being included from time to time as Collateral Properties to comply with any of the conditions set forth in the definition of Collateral Properties;
(n) the failure of L▇▇▇▇ ▇▇▇▇▇▇▇▇▇ and/or D▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, for any reason, to cease to retain the titles Chairman of the 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 (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 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 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 shares of all classes of stock then outstanding of the 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
(po) an Event without limitation of Default under the other provisions of this §14.1, the Trust shall at any time fail to be the sole general partner of FPLP or shall at any time be in contravention of any of the other Loan Documents shall occurrequirements contained in the last paragraph of §9.2 hereof, or §9.3 (including, without limitation, the last paragraph of §9.3); then, and upon in any such Event of Defaultevent, 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 Loan Parties declare all amounts owing with respect to this Agreement, the Notes and the other Loan Documents to be, and they shall thereupon forthwith become, immediately due and payable without presentment, demand, protest or other notice of 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(i§14.1(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. 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 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 subject to, §8.13 and from all other covenant calculations under §10 or otherwise, the Borrower shall be permitted a period not to exceed five (5) days to submit to the Agent (with copies to the Agent for each Bank) a compliance certificate in the form of Exhibit C hereto evidencing compliance with §2.1 and with all of 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 continuing.
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 Loan 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 Loan within five (5) days of the date that the same shall become due and payable Loans or any fees or other sums due hereunder (other than any voluntary prepayment) or under any of the other Loan Documents within ten (10) days after notice from the Agent, whether at the stated date of maturity or any accelerated date of maturity or at any other date fixed fee letter (including, without limitation, amounts due under §8.16) when the same shall become due and payable, and such failure continues for paymentthree (3) days;
(c) Borrower the Borrower, the Trust or any of their respective Subsidiaries shall fail to comply comply, or to cause the Trust to comply, as the case may be, with any of the covenant respective covenants contained in § 9.1 the following: §8.1 (except with respect to principal, interest and such failure shall continue uncured after written notice thereof shall have been given to Loan Parties other sums covered by the Agent as provided in § 3.2clauses (a) or (b) above); §8.2; §§8.4 through §810, inclusive; §8.12; §8.13; §8.15; §8.19; §8.20; §9; §10 and §11;
(d) Borrower shall fail to perform the Borrower, the Trust or any other term, covenant or agreement contained in (i) §8.15 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, § 9.7 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 Loan Party 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 (including, without limitation, § 12.2 below§14) or in the other Loan Documents), and such failure shall continue continues 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 noticedays;
(fe) any material representation or warranty made by or on behalf of Loan Parties the Borrower, the Trust or any of their respective Subsidiaries in this Agreement or any other Loan Document, or any report, certificate, financial statement, request for an Advance, or in any other document or instrument delivered pursuant to or in connection with the Loan, any Advance, this Agreement, 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) the Borrower, the Trust or any LoanTransaction Party 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 Affiliates, shall fail to pay when due (including, without limitation, at maturity)due, or within any applicable period of notice and grace, any principalConsolidated Total Indebtedness which is in excess of (i) $5,000,000, interest either individually or other amount on account of 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 Indebtednessin 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, evidencing securing or securing any obligation otherwise relating to such Consolidated Total Indebtedness for borrowed money or credit received or other Indebtedness and such period of time (after the giving of appropriate notice if required) as would permit the holder or holders thereof or of any obligations issued thereunder have accelerated 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; 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 ;
(xg) any Indebtedness which is recourse to Borrower of ▇▇▇▇▇▇▇ OP, ▇▇▇▇▇▇▇ III, the Trust or any of the Subsidiary GuarantorsPool Owners (includingtheir respective Subsidiaries, without limitation, Secured Recourse Indebtedness) totaling in excess of $25,000,000 ▇▇▇▇▇▇▇ Management or (y) Non-Recourse Indebtedness of Borrower or any of the Subsidiary GuarantorsPool Owners totaling in excess of $50,000,000;
(h) any LoanTransaction Party or REIT, (i) ▇▇▇▇▇▇▇ 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 LoanTransaction Party or REIT 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 ninety continue undismissed, or unstayed and in effect, for a period of forty-five (9045) days following the filing or commencement thereofdays;
(jh) a decree or order is entered appointing a any trustee, custodian, liquidator or receiver for any LoanTransaction Party or REIT or adjudicating any such Personof ▇▇▇▇▇▇▇ OP, ▇▇▇▇▇▇▇ III, the Trust or any of their respective Subsidiaries, ▇▇▇▇▇▇▇ Management or ▇▇▇▇▇▇▇ 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 one days, whether or more uninsured or unbonded not consecutive, any final judgments judgment that is not fully insured against Borrower any of ▇▇▇▇▇▇▇ OP, ▇▇▇▇▇▇▇ III, the Trust or any Subsidiary GuarantorPool Owner 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 $50,000,0001,000,000;
(lj) any of the Loan Documents or 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 Required 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 shall be commenced by or on behalf of the Borrower or any Loan Partyof its Subsidiaries or the Trust or any of its Subsidiaries, or any court or any other governmental or regulatory authority or agency of competent jurisdiction shall make a determinationdetermination that, or issue a judgment, order, decree or ruling, ruling to the effect that that, any one or more of the Loan Documents is illegal, invalid or unenforceable in accordance with the 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 LoanTransaction Party shall occur period of grace, to the extent provided), as defined or provided in any sale, transfer or other disposition of the assets of any LoanTransaction Party 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 Agent shall have determined in their reasonable discretion that such event reasonably would could be expected to result in liability of the Borrower or any LoanTransaction Party to pay money of its Subsidiaries or the Trust or any of its Subsidiaries to the PBGC or such Guaranteed Pension Plan in an aggregate amount exceeding $25,000,000 1,000,000 and one of the following shall apply with respect to such event: (x) such event in the circumstances occurring reasonably would be expected to result in 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, the failure of any Change of Control shall occurthe 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 Unencumbered Properties;
(n) the failure of ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, for any reason, to cease to retain the titles of 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 (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 directors 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; or
(po) an Event without limitation of Default under the other provisions of this §14.1, (i) the Trust shall at any time fail to be the sole general partner of ▇▇▇▇▇▇▇ OP or shall at any time be in contravention of any of the other Loan Documents requirements contained in the last paragraph of §9.2 hereof, or §9.3 (including, without limitation, the last paragraph of §9.3), (ii) ▇▇▇▇▇▇▇ OP shall occurat any time fail to be the sole general partner and the sole limited partner of ▇▇▇▇▇▇▇ III, (iii) the Management Agreement shall be terminated, amended or modified without the prior written consent of the Agent, or (iv) ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ shall fail to be the 100% legal and beneficial equity interests in ▇▇▇▇▇▇▇ Management or ▇▇▇▇▇▇▇ Property LLC; then, and upon in any such Event of Defaultevent, 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 Loan Parties declare all amounts owing with respect to this Agreement, the Notes and the other Loan Documents to be, and they shall thereupon forthwith become, immediately due and payable without presentment, demand, protest or other notice of 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(i§14.1(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. Without limitation of the foregoing, upon the occurrence of an Event of Default 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 subject to, §8.13 and from all other covenant calculations under §10 or otherwise, the Borrower shall be permitted a period not to exceed five (5) days to submit to the Agent (with copies to the Agent for each Bank) a compliance certificate in the form of Exhibit C-1 hereto evidencing compliance with §2.1 and with all of 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 continuing.
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 Loan 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 Loan within five (5) days Loans, any reimbursement obligations with respect to the Letters of the date that the same shall become due and payable Credit, or any fees or other sums due hereunder (other than any voluntary prepayment) or under any of the other Loan Documents within ten (10) days after notice from when the Agentsame 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 uncured for five (5) Business Days after written notice thereof shall have been given to Loan Parties the Borrower by the Agent as provided in § 3.2Agent;
(d) Borrower any of the Borrower, the Guarantors or any of their respective Subsidiaries shall fail to perform any other term, covenant or agreement contained in (i) §8.15 and such failure continues for thirty (30) days after written notice thereof shall have been given to the Loan Parties by the Agent8.20, 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 Loan Party 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 (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 Loan Parties 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 an Advancea Loan, Letter of Credit Request, 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 LoanTransaction Party 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 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 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 and (including under any Derivatives Contract 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 have accelerated to accelerate the maturity thereofthereof 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 (x) any borrowed money or credit received or other Recourse Indebtedness which is recourse to Borrower or any of the Subsidiary GuarantorsPool Owners (including, without limitation, Secured Recourse Indebtedness) totaling in excess of $25,000,000 50,000,000.00 or (y) Non-Recourse Indebtedness of Borrower or any of the Subsidiary GuarantorsPool Owners totaling in excess of $50,000,000100,000,000.00;
(h) any LoanTransaction Party of the Borrower, the Guarantors or REIT, 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 LoanTransaction Party of the Borrower, the Guarantors or REIT 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 ninety sixty (9060) days following the filing or commencement thereof;
(j) a decree or order is entered appointing a trustee, custodian, liquidator or receiver for any LoanTransaction Party of the Borrower, the Guarantors or REIT 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 days, whether or not consecutive, one or more uninsured or unbonded final judgments judgments, orders, awards, writs execution or attachments against Borrower the Borrower, Guarantors or any Subsidiary GuarantorPool Owner of their respective Subsidiaries that, either individually or in the aggregate, exceed $50,000,00050,000,000.00;
(l) any of the Loan Documents Documents, the Contribution Agreement or the Bond Subordination and Standstill 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 Required Lenders, or any action at law, suit in equity or other legal proceeding to cancel, revoke or rescind any of the Loan Documents Documents, the Contribution Agreement or the Bond Subordination and Standstill Agreement shall be commenced by or on behalf of the Borrower or any Loan Partyof 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 Documents, the Contribution Agreement or the Bond Subordination and Standstill 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 LoanTransaction Party 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 LoanTransaction Party 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 would could be expected to result in liability of any LoanTransaction Party to pay money of the Borrower, the Guarantors or any of their respective Subsidiaries to the PBGC or such Guaranteed Pension Plan in an aggregate amount exceeding $25,000,000 20,000,000.00 and one of the following shall apply with respect to such event: (x) such event in the circumstances occurring reasonably would be expected to result in 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; or;
(pq) an Event of Default under any of the other Loan Documents shall occur;
(r) [Intentionally Omitted];
(s) [Intentionally Omitted];
(t) 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 DAFC or the subordinate lender that is the holder of the Bond Subordinate Debt; then, and upon in any such Event of Defaultevent, the Agent may, and upon the request of the Required Lenders shall, by notice in writing to Loan Parties the Borrower declare all amounts owing with respect to this Agreement, the Notes 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 Loan 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 Loan within five (5) days Loans, any reimbursement obligations with respect to the Letters of the date that the same shall become due and payable Credit, or any fees or other sums due hereunder (other than any voluntary prepayment) or under any of the other Loan Documents within ten (10) days after notice from when the Agentsame 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 uncured for five (5) Business Days after written notice thereof shall have been given to Loan Parties the Borrower by the Agent as provided in § 3.2Agent;
(d) Borrower any of the Borrower, the Guarantors or any of their respective Subsidiaries shall fail to perform any other term, covenant or agreement contained in (i) §8.15 and such failure continues for thirty (30) days after written notice thereof shall have been given to the Loan Parties by the Agent8.20, 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 Loan Party 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 (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 Loan Parties 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 an Advancea Loan, Letter of Credit Request, 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 LoanTransaction Party 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 notice and grace, any principal, interest or other amount on account of any obligation for borrowed money or credit received or other IndebtednessIndebtedness (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 and (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 have accelerated to accelerate the maturity thereofthereof 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 (x) any borrowed money or credit received or other Recourse Indebtedness which is recourse to Borrower or any of the Subsidiary GuarantorsPool Owners (including, without limitation, Secured Recourse Indebtedness) totaling in excess of $25,000,000 15,000,000.00 or (y) Non-Recourse Indebtedness of Borrower or any of the Subsidiary GuarantorsPool Owners totaling in excess of $50,000,00060,000,000.00;
(h) any LoanTransaction Party of the Borrower, the Guarantors or REIT, 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 LoanTransaction Party of the Borrower, the Guarantors or REIT 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 ninety sixty (9060) days following the filing or commencement thereof;
(j) a decree or order is entered appointing a trustee, custodian, liquidator or receiver for any LoanTransaction Party of the Borrower, the Guarantors or REIT 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 days, whether or not consecutive, one or more uninsured or unbonded final judgments judgments, orders, awards, writs execution or attachments against Borrower the Borrower, Guarantors or any Subsidiary GuarantorPool Owner of their respective Subsidiaries that, either individually or in the aggregate, exceed $50,000,00010,000,000.00;
(l) any of the Loan Documents 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 Required Lenders, or any action at law, suit in equity or other legal proceeding to cancel, revoke or rescind any of the Loan Documents 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 Loan Partyof 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 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 LoanTransaction Party 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 LoanTransaction Party 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 would could be expected to result in liability of any LoanTransaction Party to pay money of the Borrower, the Guarantors or any of their respective Subsidiaries to the PBGC or such Guaranteed Pension Plan in an aggregate amount exceeding $25,000,000 10,000,000.00 and one of the following shall apply with respect to such event: (x) such event in the circumstances occurring reasonably would be expected to result in 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; or;
(pq) 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 upon in any such Event of Defaultevent, the Agent may, and upon the request of the Required Lenders shall, by notice in writing to Loan Parties the Borrower declare all amounts owing with respect to this Agreement, the Notes 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 Loan 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 Loan within five (5) days of the date that the same shall become due and payable Loans or any fees or other sums due hereunder (other than any voluntary prepayment) or under any of the other Loan Documents within ten (10) days after notice from the Agent, whether at the stated date of maturity or any accelerated date of maturity or at any other date fixed fee letter (including, without limitation, amounts due under §8.16) when the same shall become due and payable, and such failure continues for paymentthree (3) days;
(c) Borrower the Borrower, the Trust or any of their respective Subsidiaries shall fail to comply comply, or to cause the Trust to comply, as the case may be, with any of the covenant respective covenants contained in § 9.1 the following: §8.1 (except with respect to principal, interest and such failure shall continue uncured after written notice thereof shall have been given to Loan Parties other sums covered by the Agent as provided in § 3.2clauses (a) or (b) above); §8.2; §§8.4 through §810, inclusive; §8.12; §8.13; §8.15; §8.19; §8.20; §9; §10 and §11;
(d) Borrower shall fail to perform the Borrower, the Trust or any other term, covenant or agreement contained in (i) §8.15 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, § 9.7 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 Loan Party 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 (including, without limitation, § 12.2 below§14) or in the other Loan Documents), and such failure shall continue continues 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 noticedays;
(fe) any material representation or warranty made by or on behalf of Loan Parties the Borrower, the Trust or any of their respective Subsidiaries in this Agreement or any other Loan Document, or any report, certificate, financial statement, request for an Advance, or in any other document or instrument delivered pursuant to or in connection with the Loan, any Advance, this Agreement, 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) the Borrower, the Trust or any LoanTransaction Party 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 Affiliates, 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 Indebtedness for borrowed money or credit received or other Indebtednessin 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 (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 and in respect of any Capitalized Leases for such period of time (after the giving of appropriate notice if required) as would permit the holder or holders thereof or of any obligations issued thereunder have accelerated 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; 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 ;
(xg) any Indebtedness which is recourse to Borrower of FPLP, the Trust or any of the Subsidiary GuarantorsPool Owners (including, without limitation, Secured Recourse Indebtedness) totaling in excess of $25,000,000 or (y) Non-Recourse Indebtedness of Borrower or any of the Subsidiary GuarantorsPool Owners totaling in excess of $50,000,000;
(h) any LoanTransaction Party or REIT, (i) their respective 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 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 LoanTransaction Party or REIT 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 ninety continue undismissed, or unstayed and in effect, for a period of forty-five (9045) days following the filing or commencement thereofdays;
(jh) a decree or order is entered appointing a any trustee, custodian, liquidator or receiver for any LoanTransaction Party or REIT or adjudicating any such Personof FPLP, the Trust or any of their respective Subsidiaries bankrupt or insolvent, or approving a petition in any such case or other proceeding, or a decree or order for relief is entered in respect of any 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 one days, whether or more not consecutive, any uninsured or unbonded final judgments judgment against Borrower any of FPLP, the Trust or any Subsidiary GuarantorPool Owner 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 $50,000,0001,000,000;
(lj) any of the Loan Documents or 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 Required 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 shall be commenced by or on behalf of the Borrower or any Loan Partyof its Subsidiaries or the Trust or any of its Subsidiaries, or any court or any other governmental or regulatory authority or agency of competent jurisdiction shall make a determinationdetermination that, or issue a judgment, order, decree or ruling, ruling to the effect that that, any one or more of the Loan Documents is illegal, invalid or unenforceable in accordance with the 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 LoanTransaction Party shall occur period of grace, to the extent provided, as defined or provided in any sale, transfer or other disposition of the assets of any LoanTransaction Party 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 Majority Lenders shall have determined in their reasonable discretion that such event reasonably would could be expected to result in liability of the Borrower or any LoanTransaction Party to pay money of its Subsidiaries or the Trust or any of its Subsidiaries to the PBGC or such Guaranteed Pension Plan in an aggregate amount exceeding $25,000,000 1,000,000 and one of the following shall apply with respect to such event: (x) such event in the circumstances occurring reasonably would be expected to result in 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, the failure of any Change of Control shall occurthe 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 reason, to cease to retain the titles of President, Chief Executive Officer and Trustee of the Trust, or (ii) N▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, for any reason, to cease to retain the titles of Executive Vice President and Chief Investment Officer, or (iii) B▇▇▇▇ ▇. ▇▇▇▇, for any reason, to cease to retain the titles of 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 (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 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 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 shares of all classes of stock then outstanding of the 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 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
(po) an Event without limitation of Default under the other provisions of this §14.1, the Trust shall at any time fail to be the sole general partner of FPLP or shall at any time be in contravention of any of the other Loan Documents shall occurrequirements contained in the last paragraph of §9.2 hereof, or §9.3 (including, without limitation, the last paragraph of §9.3); then, and upon in any such Event of Defaultevent, 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 Loan Parties declare all amounts owing with respect to this Agreement, the Notes and the other Loan Documents to be, and they shall thereupon forthwith become, immediately due and payable without presentment, demand, protest or other notice of 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(i§14.1(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. 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 from all other covenant calculations under §10 or otherwise, the Borrower shall be permitted a period not to exceed five (5) days to submit to the Agent (with copies to the Agent for each Bank) a compliance certificate in the form of Exhibit C hereto evidencing compliance with §2.1 and with all of 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 continuing.
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) 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 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 paymentthis Agreement;
(b) Borrower any Consignee shall fail to pay any interest on the Loan within five (5) days of the date that the same shall become due and payable Daily Consignment Fees, commitment fees or any fees other sum due under this Agreement or other sums due hereunder (other than any voluntary prepayment) or under any of the other Loan Consignment Documents within ten three (103) days Business Days after notice from the Agent, whether at date on which the stated date of maturity or any accelerated date of maturity or at any other date fixed for paymentsame shall have first become due and payable;
(c) 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 uncured after written notice thereof shall have been given to Loan Parties by the Agent as provided in § 3.28.1.3(ii)), 8.2 and 8.3;
(d) Borrower any Consignee or any of 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 (i) §8.15 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, § 9.7 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 Loan Party shall fail to perform any other term, covenant or agreement contained herein or in any of the other Loan Consignment Documents which they are required to perform (other than those specified terms, covenants and agreements contained in ss.4 of the other subclauses of this § 12 (including, without limitation, § 12.2 below) or in the other Loan DocumentsSecurity Agreement), and such failure shall continue unremedied for a period of thirty (30) days after Loan Parties’ receipt from Notice thereof shall have been given by the Agent to a Consignee, or (ii) any term, covenant or agreement contained in ss.4 of written notice thereofthe Security Agreement, and in the case such failure shall continue unremedied for a period of a default that cannot be cured within such thirty (30) day period despite Loan Parties’ diligent efforts but is susceptible days;
(e) any representation or warranty of being cured within ninety (90) days any Consignee or any of Loan Parties’ receipt of its Subsidiaries in the Agent’s original notice, then Loan Parties Consignment Documents or in any certificate or notice given in connection therewith shall have such additional been false or misleading in any material respect at the time as is reasonably necessary made or deemed to effect such cure, but in no event in excess of ninety (90) days from Loan Parties’ receipt of the Agent’s original noticehave been made;
(f) any material representation or warranty made by or on behalf of Loan Parties Consignee or any of their respective its Subsidiaries in this Agreement or any other Loan Document, or any report, certificate, financial statement, request for an Advance, or in any other document or instrument delivered pursuant to or in connection with the Loan, any Advance, this Agreement, 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 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 obligation owed by it under the Senior Notes or any other amount on account of any obligation for borrowed money or credit received or in respect of Capitalized Leases (other Indebtednessthan 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 than 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 have accelerated to accelerate the maturity thereof; provided that ;
(g) the events described in §12.1(g) Parent shall not constitute an Event fail to pay at maturity, or within any applicable period of Default unless such failure to performgrace, together with any obligation owed by it under the Senior Debentures or any other failures to perform as described in §12.1(g), involve singly obligation for borrowed money or credit received or in the aggregate obligations for respect of Capitalized Leases (x) any Indebtedness which is recourse to Borrower or any other than in respect of the Subsidiary GuarantorsPool Owners (including, without limitation, Secured Recourse IndebtednessDollar Facility and the Senior Notes) totaling which other obligation shall be in excess of $25,000,000 1,000,000 in aggregate principal amount, or (y) Non-Recourse Indebtedness of Borrower 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 Subsidiary GuarantorsPool Owners totaling Dollar Facility and the Senior Notes) which other obligation shall be in excess of $50,000,0001,000,000 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 LoanTransaction Party Consignee or REIT, (i) the 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 LoanTransaction Party or 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 ninety (90) days following the filing or commencement thereof;
(j) a decree or order is entered appointing a trustee, custodian, liquidator or receiver for any LoanTransaction Party or 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 one or more uninsured or unbonded final judgments against Borrower or any Subsidiary GuarantorPool Owner that, either individually or in the aggregate, exceed $50,000,000;
(l) any of the Loan Documents 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 Required 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 Consignment Documents shall be commenced by or on behalf of any Loan PartyConsignee or any of its 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 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 dissolutionConsignee or any of its Subsidiaries shall be enjoined, termination, partial restrained or complete liquidation, merger or consolidation in any way prevented by the order of any LoanTransaction Party shall occur court or any sale, transfer administrative or other disposition regulatory agency from conducting any material part of the assets of any LoanTransaction Party 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 there shall occur any material damage to, or loss, theft or destruction of, any Consigned Precious Metal, or any 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 any Guaranteed Pension Plan, an ERISA Reportable Event shall have occurred and such event reasonably would be expected to result in liability of any LoanTransaction Party to pay money which immediate payment therefor (equal to the PBGC or such Guaranteed Pension Plan in an aggregate amount exceeding $25,000,000 and one of Fair Market Value thereof at the following shall apply with respect to such event: (x) such event in the circumstances occurring reasonably would be expected to result in the termination 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 Change strike, lockout, labor dispute, embargo, condemnation, act of Control 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 Consignee or any of its Subsidiaries if such event or circumstance is not covered by business interruption insurance satisfactory to the Agent and has or could reasonably be expected to have a Materially Adverse Effect;
(p) there shall occuroccur the loss, suspension or revocation of, or failure to renew, any license or permit now held or hereafter acquired by any Consignee or any of its Subsidiaries if such loss, suspension, revocation or failure to renew has or could reasonably be expected to have a Materially Adverse Effect;
(q) the Parent shall at any time, legally or beneficially, own less than 100% of the outstanding capital stock of Finlay or Finlay shall at any time, legally or beneficially, own less than 100% of the outstanding capital stock of any Consignee Subsidiary, including eFinlay;
(r) (i) any "person" or "group" (within the meaning of Section 13(d) or 14(d)(2) of the Securities Exchange Act of 1934, as amended), other than the Principals and their Related Parties, or an entity controlled by the Principals and their Related Parties, becomes the "beneficial owner" (within the meaning of Rule 13d-3 promulgated by the Securities and Exchange Commission under said Act) of more than 50% of the 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 Principals or their Related Parties or an entity controlled by the Principals or their Related Parties;
(s) the Parent shall engage in any activities other than the ownership of the stock of Finlay, compliance with the terms of the Senior Debentures, and such other activities which are incidental to either of the foregoing;
(t) 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
(pu) the credit rating of the issuer of the Letter of Credit shall fall below a "B" LACE rating, 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 at any time thereafter:
(1) If any Event of Default under clause (j) or (k) shall occur, (A) the Commitments shall automatically terminate and 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 Second London 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 (C) all accrued and unpaid Daily Consignment Fees and commitment fees, and all other amounts payable hereunder and under the other Loan Consignment Documents shall occur; then, and upon any such Event of Default, the Agent may, and upon the request of the Required Lenders shall, by notice in writing to Loan Parties declare all amounts owing with respect to this Agreement, the Notes and the other Loan 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 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 Required Institutions shall, by Notice to the Consignees no earlier than ninety (90) days following the occurrence of such Event of Default (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, (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 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 accrued and unpaid Daily Consignment Fees and commitment fees, and all other amounts payable hereunder and under the other Consignment Documents to be forthwith due and payable, without presentment, demand, protest or the Agentfurther notice of any kind, all of which are hereby expressly waived by each 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”) shall occur:
(a) the Borrower shall fail to pay any principal of the Loan 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 Loan within five (5) days of the date that the same shall become due and payable Loans or any fees or other sums due hereunder (other than any voluntary prepayment) or under any of the other Loan Documents within ten (10) days after notice from the Agent, whether at the stated date of maturity or any accelerated date of maturity or at any other date fixed fee letter (including, without limitation, amounts due under §8.16) when the same shall become due and payable, and such failure continues for paymentthree (3) days;
(c) Borrower the Borrower, the Trust or any of their respective Subsidiaries shall fail to comply comply, or to cause the Trust to comply, as the case may be, with any of the covenant respective covenants contained in § 9.1 the following: §8.1 (except with respect to principal, interest and such failure shall continue uncured after written notice thereof shall have been given to Loan Parties other sums covered by the Agent as provided in § 3.2clauses (a) or (b) above); §8.2; §§8.4 through §8.10, inclusive; §8.12; §8.13; §8.15; §8.19; §8.20; §9; §10 and §11;
(d) Borrower shall fail to perform the Borrower, the Trust or any other term, covenant or agreement contained in (i) §8.15 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, § 9.7 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 Loan Party 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 (including, without limitation, § 12.2 below§14) or in the other Loan Documents), and such failure shall continue continues 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 noticedays;
(fe) any material representation or warranty made by or on behalf of Loan Parties the Borrower, the Trust or any of their respective Subsidiaries in this Agreement or any other Loan Document, or any report, certificate, financial statement, request for an Advance, or in any other document or instrument delivered pursuant to or in connection with the Loan, any Advance, this Agreement, 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) the Borrower, the Trust or any LoanTransaction Party 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 Affiliates, 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 Indebtedness for borrowed money or credit received or other Indebtednessin 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 (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 and in respect of any Capitalized Leases for such period of time (after the giving of appropriate notice if required) as would permit the holder or holders thereof or of any obligations issued thereunder have accelerated 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; 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 ;
(xg) any Indebtedness which is recourse to Borrower of FPLP, the Trust or any of the Subsidiary GuarantorsPool Owners (including, without limitation, Secured Recourse Indebtedness) totaling in excess of $25,000,000 or (y) Non-Recourse Indebtedness of Borrower or any of the Subsidiary GuarantorsPool Owners totaling in excess of $50,000,000;
(h) any LoanTransaction Party or REIT, (i) their respective 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 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 LoanTransaction Party or REIT 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 ninety continue undismissed, or unstayed and in effect, for a period of forty-five (9045) days following the filing or commencement thereofdays;
(jh) a decree or order is entered appointing a any trustee, custodian, liquidator or receiver for any LoanTransaction Party or REIT or adjudicating any such Personof FPLP, the Trust or any of their respective Subsidiaries bankrupt or insolvent, or approving a petition in any such case or other proceeding, or a decree or order for relief is entered in respect of any 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 one days, whether or more not consecutive, any uninsured or unbonded final judgments judgment against Borrower any of FPLP, the Trust or any Subsidiary GuarantorPool Owner 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 $50,000,0002,000,000;
(lj) any of the Loan Documents or 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 Required 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 shall be commenced by or on behalf of the Borrower or any Loan Partyof its Subsidiaries or the Trust or any of its Subsidiaries, or any court or any other governmental or regulatory authority or agency of competent jurisdiction shall make a determinationdetermination that, or issue a judgment, order, decree or ruling, ruling to the effect that that, any one or more of the Loan Documents is illegal, invalid or unenforceable in accordance with the 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 LoanTransaction Party shall occur period of grace, to the extent provided, as defined or provided in any sale, transfer or other disposition of the assets of any LoanTransaction Party 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 Majority Lenders shall have determined in their reasonable discretion that such event reasonably would could be expected to result in liability of the Borrower or any LoanTransaction Party to pay money of its Subsidiaries or the Trust or any of its Subsidiaries to the PBGC or such Guaranteed Pension Plan in an aggregate amount exceeding $25,000,000 2,000,000 and one of the following shall apply with respect to such event: (x) such event in the circumstances occurring reasonably would be expected to result in 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, the failure of any Change of Control shall occurthe 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 reason, to cease to retain the titles of President, Chief Executive Officer and Trustee of the Trust, or (ii) ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, for any reason, to cease to retain the titles of Executive Vice President and Chief Investment Officer, or (iii) ▇▇▇▇▇ ▇. ▇▇▇▇, for any reason, to cease to retain the titles of 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 (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 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 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 shares of all classes of stock then outstanding of the 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 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
(po) an Event without limitation of Default under the other provisions of this §14.1, the Trust shall at any time fail to be the sole general partner of FPLP or shall at any time be in contravention of any of the other Loan Documents shall occurrequirements contained in the last paragraph of §9.2 hereof, or §9.3 (including, without limitation, the last paragraph of §9.3); then, and upon in any such Event of Defaultevent, 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 Loan Parties declare all amounts owing with respect to this Agreement, the Notes and the other Loan Documents to be, and they shall thereupon forthwith become, immediately due and payable without presentment, demand, protest or other notice of 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(i§14.1(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. 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 from all other covenant calculations under §10 or otherwise, the Borrower shall be permitted a period not to exceed five (5) days to submit to the Agent (with copies to the Agent for each Lender) a compliance certificate in the form of Exhibit C hereto evidencing compliance with §2.1 and with all of 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 continuing.
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 Loan 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 Loan within five (5) days of the date that the same shall become due and payable Loans or any fees or other sums due hereunder (other than any voluntary prepayment) or under any of the other Loan Documents within ten (10) days after notice from the Agent, whether at the stated date of maturity or any accelerated date of maturity or at any other date fixed fee letter (including, without limitation, amounts due under §8.16) when the same shall become due and payable, and such failure continues for paymentthree (3) days;
(c) Borrower the Borrower, the Trust or any of their respective Subsidiaries shall fail to comply comply, or to cause the Trust to comply, as the case may be, with any of the covenant respective covenants contained in § 9.1 the following: §8.1 (except with respect to principal, interest and such failure shall continue uncured after written notice thereof shall have been given to Loan Parties other sums covered by the Agent as provided in § 3.2clauses (a) or (b) above); §8.2; §§8.4 through §8.10, inclusive; §8.12; §8.13; §8.15; §8.19; §8.20; §8.21; §9; and §10;
(d) Borrower shall fail to perform the Borrower, the Trust or any other term, covenant or agreement contained in (i) §8.15 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, § 9.7 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 Loan Party 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 (including, without limitation, § 12.2 below§14) or in the other Loan Documents), and such failure shall continue continues for thirty (30) days after Loan Parties’ receipt the earlier of the knowledge of any responsible officer of the Borrower or notice thereof 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;
(fe) any material representation or warranty made by or on behalf of Loan Parties the Borrower, the Trust or any of their respective Subsidiaries in this Agreement or any other Loan Document, or any report, certificate, financial statement, request for an Advance, or in any other document or instrument delivered pursuant to or in connection with the Loan, any Advance, this Agreement, 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) the Borrower, the Trust or any LoanTransaction Party 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 Affiliates, shall (x) 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 Indebtedness for borrowed money or credit received or other Indebtednessin respect of any Capitalized Leases, which is in excess of (i) $60,000,000, either individually or shall in the aggregate, if such Indebtedness is Without Recourse and (ii) $20,000,000, either individually or in the aggregate, if such Indebtedness is Recourse, (y) with respect to any Indebtedness that is Recourse and in excess of $20,000,000, either individually or in the aggregate, fail to observe or perform any material term, covenant covenant, condition or agreement contained in any 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 and in respect of any Capitalized Leases for such period of time (after the giving of appropriate notice if required) as would permit the holder or holders thereof or of any obligations issued thereunder have accelerated to accelerate the maturity thereof, or (z) with respect to any Indebtedness that is Without Recourse and in excess of $60,000,000, either individually or in the aggregate, (1) fail to pay at maturity, or within any applicable period of grace, any such Indebtedness or (2) fail to observe or perform any material term, covenant, condition or agreement contained in any agreement, document or instrument by which it is bound evidencing, securing or otherwise relating to such Indebtedness or obligations, evidencing or securing borrowed money or credit received or in respect of any Capitalized Leases for such period of time (after the giving of appropriate notice if required) that results in the holder or holders thereof or of any obligations issued thereunder accelerating the maturity thereof; provided provided, however, that any such Indebtedness that is Without Recourse shall be treated as Indebtedness that is Recourse to the extent that the events described in §12.1(g) shall not constitute an Event of Default unless such failure same has become Recourse to performthe Borrower, together with other failures to perform as described in §12.1(g), involve singly or in the aggregate obligations for (x) any Indebtedness which is recourse to Borrower Trust or any of its Subsidiaries upon the Subsidiary GuarantorsPool Owners 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;
(includingg) the Borrower, without limitation, Secured Recourse Indebtedness) totaling in excess of $25,000,000 or (y) Non-Recourse Indebtedness of Borrower the Trust or any of the Subsidiary GuarantorsPool Owners totaling in excess of $50,000,000;
(h) any LoanTransaction Party or REIT, (i) their respective 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 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 LoanTransaction Party or REIT 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 continue undismissed, or unstayed and in effect, for a period of sixty (60) days; provided that the foregoing, to the extent applicable solely to one or more Subsidiaries of FPLP that are not have 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 dismissed within ninety (90) days following the filing or commencement thereofmade;
(jh) a decree or order is entered appointing a any trustee, custodian, liquidator or receiver for any LoanTransaction Party or REIT or adjudicating any such Personof the Borrower, the Trust or any of their respective Subsidiaries bankrupt or insolvent, or approving a petition in any such case or other proceeding, or a decree or order for relief is entered in respect of any 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 days, whether or not consecutive, any uninsured final judgment against any of the Borrower, the Trust or any of their respective Subsidiaries that, 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 uninsured or unbonded final judgments against Borrower or any Subsidiary GuarantorPool Owner that, either 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 $50,000,000it 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 or 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 Required 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 shall be commenced by or on behalf of the Borrower or any Loan Partyof its Subsidiaries or the Trust or any of its Subsidiaries, or any court or any other governmental or regulatory authority or agency of competent jurisdiction shall make a determinationdetermination that, or issue a judgment, order, decree or ruling, ruling to the effect that that, any one or more of the Loan Documents is illegal, invalid or unenforceable in accordance with the as to any material terms thereof;
(mk) any dissolution“Event of Default”, termination, partial as defined or complete liquidation, merger or consolidation provided in any of any LoanTransaction Party shall occur or any sale, transfer or other disposition of the assets of any LoanTransaction Party shall occur other than as permitted under the terms of this Agreement or the other Loan DocumentsDocuments has occurred, or any default under any of the other Loan Documents 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 Majority Lenders shall have determined in their reasonable discretion that such event reasonably would could be expected to result in liability of the Borrower or any LoanTransaction Party to pay money of its Subsidiaries or the Trust or any of its Subsidiaries or any ERISA Affiliate of any such entity to the PBGC or such Guaranteed Pension Plan in an aggregate amount exceeding $25,000,000 and one of the following shall apply with respect to such event: (x) 5,000,000 or such event in the circumstances occurring reasonably would be expected to result in 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 other provisions of this §14.1, the Trust shall at any Change time fail to be the sole general partner of Control FPLP (or enters into any agreement to permit any other Person to acquire a general partner interest in FPLP) or shall occurat any time be in contravention of any of the requirements contained in the last paragraph of §9.2 hereof, or §9.3 (including, without limitation, the last paragraph of §9.3); or
(p) an Event of Default the Borrower shall make any principal payment under any of the other 2007 Term Loan Documents shall occurat a time when the Minimum Liquidity does not equal or exceed the Minimum Liquidity Threshold (after giving effect to such principal payment); then, and upon in any such Event of Defaultevent, 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 Loan Parties (i) declare all amounts owing with respect to this Agreement, the Notes and the other Loan Documents to be, and they shall thereupon forthwith become, immediately due and payable without presentment, demand, protest or other notice of any kind, all of which are hereby expressly waived by the Borrower, 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(i§14.1(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, and the obligation of the Borrower to Cash Collateralize the Letter of Credit 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 (5) days to submit to the Agent (with copies to the Agent for each Lender) a compliance certificate in the form of Exhibit C hereto evidencing compliance with §2.1 and with all of 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 continuing.
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 Loan 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 Loan within five (5) days Loans, any reimbursement obligations with respect to the Letters of the date that the same shall become due and payable Credit, or any fees or other sums due hereunder (other than any voluntary prepayment) or under any of the other Loan Documents within ten (10) days after notice from when the Agentsame 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 uncured for five (5) Business Days after written notice thereof shall have been given to Loan Parties the Borrower by the Agent as provided in § 3.2Agent;
(d) Borrower any of the Borrower, the Guarantors or any of their respective Subsidiaries shall fail to perform any other term, covenant or agreement contained in (i) §8.15 and such failure continues for thirty (30) days after written notice thereof shall have been given to the Loan Parties by the Agent8.20, 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 Loan Party 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 (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 Loan Parties 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 an Advancea Loan, Letter of Credit Request, 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 LoanTransaction Party 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 notice and grace, any principal, interest or other amount on account of any obligation for borrowed money or credit received or other IndebtednessIndebtedness (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 and (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 have accelerated to accelerate the maturity thereofthereof 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 (x) any borrowed money or credit received or other Recourse Indebtedness which is recourse to Borrower or any of the Subsidiary GuarantorsPool Owners (including, without limitation, Secured Recourse Indebtedness) totaling in excess of $25,000,000 50,000,000.00 or (y) Non-Recourse Indebtedness of Borrower or any of the Subsidiary GuarantorsPool Owners totaling in excess of $50,000,00075,000,000.00;
(h) any LoanTransaction Party of the Borrower, the Guarantors or REIT, 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 LoanTransaction Party of the Borrower, the Guarantors or REIT 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 ninety sixty (9060) days following the filing or commencement thereof;
(j) a decree or order is entered appointing a trustee, custodian, liquidator or receiver for any LoanTransaction Party of the Borrower, the Guarantors or REIT 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 days, whether or not consecutive, one or more uninsured or unbonded final judgments judgments, orders, awards, writs execution or attachments against Borrower the Borrower, Guarantors or any Subsidiary GuarantorPool Owner of their respective Subsidiaries that, either individually or in the aggregate, exceed $50,000,00020,000,000.00;
(l) any of the Loan Documents Documents, the Contribution Agreement, the Equipment Intercreditor Agreement or the Bond Subordination and Standstill 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 Required Lenders, or any action at law, suit in equity or other legal proceeding to cancel, revoke or rescind any of the Loan Documents Documents, the Contribution Agreement, the Equipment Intercreditor Agreement or the Bond Subordination and Standstill Agreement shall be commenced by or on behalf of the Borrower or any Loan Partyof 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 Documents, the Contribution Agreement, the Equipment Intercreditor Agreement or the Bond Subordination and Standstill 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 LoanTransaction Party 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 LoanTransaction Party 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 would could be expected to result in liability of any LoanTransaction Party to pay money of the Borrower, the Guarantors or any of their respective Subsidiaries to the PBGC or such Guaranteed Pension Plan in an aggregate amount exceeding $25,000,000 20,000,000.00 and one of the following shall apply with respect to such event: (x) such event in the circumstances occurring reasonably would be expected to result in 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; or;
(pq) 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) [Intentionally Omitted];
(t) 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 upon in any such Event of Defaultevent, the Agent may, and upon the request of the Required Lenders shall, by notice in writing to Loan Parties the Borrower declare all amounts owing with respect to this Agreement, the Notes 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 Loan 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 Loan within five (5) days of the date that the same shall become due and payable Loans or any fees or other sums due hereunder (other than any voluntary prepayment) or under any of the other Loan Documents within ten (10) days after notice from the Agent, whether at the stated date of maturity or any accelerated date of maturity or at any other date fixed fee letter (including, without limitation, amounts due under §8.16) when the same shall become due and payable, and such failure continues for paymentthree (3) days;
(c) Borrower the Borrower, the Trust or any of their respective Subsidiaries shall fail to comply comply, or to cause the Trust to comply, as the case may be, with any of the covenant respective covenants contained in § 9.1 the following: §8.1 (except with respect to principal, interest and such failure shall continue uncured after written notice thereof shall have been given to Loan Parties other sums covered by the Agent as provided in § 3.2clauses (a) or (b) above); §8.2; §§8.4 through §8.10, inclusive; §8.12; §8.13; §8.15; §8.19; §8.20; §9; and §10;
(d) Borrower shall fail to perform the Borrower, the Trust or any other term, covenant or agreement contained in (i) §8.15 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, § 9.7 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 Loan Party 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 (including, without limitation, § 12.2 below§14) or in the other Loan Documents), and such failure shall continue continues 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 noticedays;
(fe) any material representation or warranty made by or on behalf of Loan Parties the Borrower, the Trust or any of their respective Subsidiaries in this Agreement or any other Loan Document, or any report, certificate, financial statement, request for an Advance, or in any other document or instrument delivered pursuant to or in connection with the Loan, any Advance, this Agreement, 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) the Borrower, the Trust or any LoanTransaction Party 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 Affiliates, 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 Indebtedness for borrowed money or credit received or other Indebtednessin 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 (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 and in respect of any Capitalized Leases for such period of time (after the giving of appropriate notice if required) as would permit the holder or holders thereof or of any obligations issued thereunder have accelerated 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; 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 ;
(xg) any Indebtedness which is recourse to Borrower of FPLP, the Trust or any of the Subsidiary GuarantorsPool Owners (including, without limitation, Secured Recourse Indebtedness) totaling in excess of $25,000,000 or (y) Non-Recourse Indebtedness of Borrower or any of the Subsidiary GuarantorsPool Owners totaling in excess of $50,000,000;
(h) any LoanTransaction Party or REIT, (i) their respective 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 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 LoanTransaction Party or REIT 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 ninety continue undismissed, or unstayed and in effect, for a period of forty-five (9045) days following the filing or commencement thereofdays;
(jh) a decree or order is entered appointing a any trustee, custodian, liquidator or receiver for any LoanTransaction Party or REIT or adjudicating any such Personof FPLP, the Trust or any of their respective Subsidiaries bankrupt or insolvent, or approving a petition in any such case or other proceeding, or a decree or order for relief is entered in respect of any 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 one days, whether or more not consecutive, any uninsured or unbonded final judgments judgment against Borrower any of FPLP, the Trust or any Subsidiary GuarantorPool Owner 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 $50,000,0002,000,000;
(lj) any of the Loan Documents or 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 Required 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 shall be commenced by or on behalf of the Borrower or any Loan Partyof its Subsidiaries or the Trust or any of its Subsidiaries, or any court or any other governmental or regulatory authority or agency of competent jurisdiction shall make a determinationdetermination that, or issue a judgment, order, decree or ruling, ruling to the effect that that, any one or more of the Loan Documents is illegal, invalid or unenforceable in accordance with the 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 LoanTransaction Party shall occur period of grace, to the extent provided, as defined or provided in any sale, transfer or other disposition of the assets of any LoanTransaction Party 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 Majority Lenders shall have determined in their reasonable discretion that such event reasonably would could be expected to result in liability of the Borrower or any LoanTransaction Party to pay money of its Subsidiaries or the Trust or any of its Subsidiaries to the PBGC or such Guaranteed Pension Plan in an aggregate amount exceeding $25,000,000 2,000,000 and one of the following shall apply with respect to such event: (x) such event in the circumstances occurring reasonably would be expected to result in 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) 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) 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 shares of all classes of stock then outstanding of the 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 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 Change time fail to be the sole general partner of Control FPLP (or enters into any agreement to permit any other Person to acquire a general partner interest in FPLP) or shall occurat any time be in contravention of any of the requirements contained in the last paragraph of §9.2 hereof, or §9.3 (including, without limitation, the last paragraph of §9.3); or
(p) an Event of Default the Borrower shall make any principal payment under any of the other 2007 Term Loan Documents shall occurat a time when the Minimum Liquidity does not equal or exceed the Minimum Liquidity Threshold (after giving effect to such principal payment); then, and upon in any such Event of Defaultevent, 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 Loan Parties declare all amounts owing with respect to this Agreement, the Notes and the other Loan Documents to be, and they shall thereupon forthwith become, immediately due and payable without presentment, demand, protest or other notice of 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(i§14.1(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. 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 (5) days to submit to the Agent (with copies to the Agent for each Lender) a compliance certificate in the form of Exhibit C hereto evidencing compliance with §2.1 and with all of 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 continuing.
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 Loan 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 Loan within five (5) days of the date that the same shall become due and payable Loans or any fees or other sums due hereunder (other than any voluntary prepayment) or under any of the other Loan Documents within ten (10) days after notice from the Agent, whether at the stated date of maturity or any accelerated date of maturity fee letter (including, without limitation, amounts due under §3.3 or at any other date fixed §8.16) when the same shall become due and payable, and such failure continues for paymentthree (3) days;
(c) Borrower the Borrower, any Subsidiary Guarantor, the Trust or any of their respective Subsidiaries shall fail to comply comply, or to cause the Trust to comply, as the case may be, with any of the covenant respective covenants contained in § 9.1 the following: §8.1 (except with respect to principal, interest and such failure shall continue uncured after written notice thereof shall have been given to Loan Parties other sums covered by the Agent as provided in § 3.2clauses (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; §10 and §11;
(d) Borrower shall fail to perform the Borrower, any other termSubsidiary Guarantor, covenant the Trust or agreement contained in (i) §8.15 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, § 9.7 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 Loan Party 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 (including, without limitation, § 12.2 below§14) or in the other Loan Documents), and such failure shall continue continues 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 noticedays;
(fe) any material representation or warranty made by or on behalf of Loan Parties the Borrower, any Subsidiary Guarantor, the Trust or any of their respective Subsidiaries in this Agreement or any other Loan Document, or any report, certificate, financial statement, request for an Advance, or in any other document or instrument delivered pursuant to or in connection with the Loan, any Advance, this Agreement, 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 LoanTransaction Party Subsidiary Guarantor, the Trust or any of its Subsidiaries or, to the extent of Recourse to the Borrower, the Subsidiary Guarantor, the Trust or such Subsidiaries thereunder, any Partially-Owned Entity or other of their respective Affiliates, shall fail to pay when 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 Indebtedness for borrowed money or credit received or other Indebtednessin 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 (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 and in respect of any Capitalized Leases for such period of time (after the giving of appropriate notice if required) as would permit the holder or holders thereof or of any obligations issued thereunder have accelerated 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; provided that the events described in §12.1(gor (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 Existing Term Loan Agreement; or
(xg) any Indebtedness which is recourse to Borrower of FPLP, any Subsidiary Guarantor, the Trust or any of the Subsidiary GuarantorsPool Owners (including, without limitation, Secured Recourse Indebtedness) totaling in excess of $25,000,000 or (y) Non-Recourse Indebtedness of Borrower or any of the Subsidiary GuarantorsPool Owners totaling in excess of $50,000,000;
(h) any LoanTransaction Party or REIT, (i) their respective 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 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 LoanTransaction Party or REIT 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 ninety continue undismissed, or unstayed and in effect, for a period of forty-five (9045) days following the filing or commencement thereofdays;
(jh) a decree or order is entered appointing a any trustee, custodian, liquidator or receiver for any LoanTransaction Party or REIT or adjudicating any such Personof FPLP, a Subsidiary Guarantor, the Trust or any of their respective Subsidiaries bankrupt or insolvent, or approving a petition in any such case or other proceeding, or a decree or order for relief is entered in respect of any 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 one days, whether or more not consecutive, any uninsured or unbonded final judgments judgment against Borrower any of FPLP, a Subsidiary Guarantor, the Trust or any Subsidiary GuarantorPool Owner 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 $50,000,0002,000,000;
(lj) any of the Loan Documents or 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 Required 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 shall be commenced by or on behalf of the Borrower or a Subsidiary Guarantor or any Loan Partyof their Subsidiaries or the Trust or any of its Subsidiaries, or any court or any other governmental or regulatory authority or agency of competent jurisdiction shall make a determinationdetermination that, or issue a judgment, order, decree or ruling, ruling to the effect that that, any one or more of the Loan Documents is illegal, invalid or unenforceable in accordance with the as to any material terms thereof;; or the Agent shall fail to have a perfected first-priority security interest in any of the Collateral; or
(mk) any dissolution, termination, partial “Event of Default” or complete liquidation, merger or consolidation default (after notice and expiration of any LoanTransaction Party shall occur period of grace, to the extent provided, as defined or provided in any sale, transfer or other disposition of the assets of any LoanTransaction Party 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 Majority Lenders shall have determined in their reasonable discretion that such event reasonably would could be expected to result in liability of the Borrower or any LoanTransaction Party to pay money of its Subsidiaries or the Trust or any of its Subsidiaries to the PBGC or such Guaranteed Pension Plan in an aggregate amount exceeding $25,000,000 2,000,000 and one of the following shall apply with respect to such event: (x) such event in the circumstances occurring reasonably would be expected to result in 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) 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, the failure of any of the Real Estate Assets being included from time to time as part of the Borrowing Base Pool to comply with any of the conditions set forth in the definition of Eligible Borrowing Base Properties;
(n) the failure of any two of (i) ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, for any reason, to cease to retain the titles of President, Chief Executive Officer and Trustee of the Trust, or (ii) ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, for any reason, to cease to retain the titles of Executive Vice President and Chief Investment Officer, or (iii) ▇▇▇▇▇ ▇. ▇▇▇▇, for any reason, to cease to retain the titles of 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 (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 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 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 shares of all classes of stock then outstanding of the 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 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 Change time fail to be the sole general partner of Control FPLP or shall occurat any time be in contravention of any of the requirements contained in the last paragraph of §9.2 hereof, or §9.3 (including, without limitation, the last paragraph of §9.3); or
(p) an Event of Default under any the Borrower shall fail to own, directly or indirectly, 100% of the other Loan Documents shall occurEquity Interests of each Subsidiary Guarantor; then, and upon in any such Event of Defaultevent, 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 Loan Parties declare all amounts owing with respect to this Agreement, the Notes and the other Loan Documents to be, and they shall thereupon forthwith become, immediately due and payable without presentment, demand, protest or other notice of 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(i§14.1(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. Notwithstanding the foregoing provisions of this §14.1, in the event of a Default or Event of Default arising as a result of the inclusion of any Real Estate Asset in the Borrowing Base Pool at any particular time of reference, if such Default or Event of Default is capable of being cured by the exclusion of such Real Estate Asset from the Borrowing Base Pool in accordance with, and subject to, §8.13 and from all other covenant calculations under §10 or otherwise, the Borrower shall be permitted a period not to exceed five (5) days to submit to the Agent (with copies to the Agent for each Lender) a compliance certificate in the form of Exhibit C hereto evidencing compliance with the covenants set forth in §10 (with calculations evidencing such compliance after excluding from Adjusted Net Operating Income all of the Adjusted Net Operating Income generated by the Real Estate Asset to be excluded from the Borrowing Base Pool) and with the Borrowing Base Property Conditions, and otherwise certifying that, after giving effect to the exclusion of such Real Estate Asset from the Borrowing Base Pool, no Default or Event of Default will be continuing.
Appears in 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, 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 Loan 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 Loan Loans within five (5) days of the date that the same shall become due and payable payable, or any fees or other sums due hereunder (other than any voluntary prepayment) or under any of the other Loan Documents within ten five (105) days after notice from the 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 uncured after written notice thereof shall have been given to Loan other Credit Parties by the Agent as provided in § 3.2;
(d) Borrower or any of their respective Subsidiaries shall fail to perform any other term, covenant or agreement contained in (i) §8.15 and such failure continues for thirty 7.6(a), (30ii) days after written notice thereof shall have been given to the Loan Parties by the Agent§8, or (iiiii) § 9.2, § 9.3, § 9.4, § 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;
(ed) any Loan Party the Borrower or the other Credit Parties shall fail to perform any other term, covenant or agreement contained herein or in any of the other Loan Documents which they are required to perform (other than those specified in 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 Borrower receives from the Agent of written notice thereof, and in the case of a default that cannot be cured within such thirty (30) day 30)-day period despite Loan Parties’ Borrower’s diligent efforts but is susceptible of being cured within ninety (90) days of Loan Parties’ Borrower’s receipt of the Agent’s original notice, then Loan Parties 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 Loan Parties’ Borrower’s receipt of the 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 material representation or warranty made by or on behalf of Loan the Credit Parties or any of their respective Subsidiaries in this Agreement or any other Loan Document, or any report, certificate, financial statement, request for an Advancea Loan, or in any other document or instrument delivered pursuant to or in connection with the Loanthis Agreement, any Advance, this Agreementadvance of a Loan, or any of the other Loan Documents shall prove to have been false in any material respect upon the date when made or deemed to have been made or 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 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 the Borrower or other amount on account of any obligation for borrowed money or credit received or other 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 and the holder or holders thereof or of any obligations issued thereunder have accelerated the maturity thereof; provided that the events described in §12.1(g) shall not constitute an Event of Default unless such failure to perform, together with other failures to perform as described in §12.1(g), involve singly or in the aggregate obligations for (x) any Indebtedness which is recourse to Borrower or any of the Subsidiary GuarantorsPool Owners (including, without limitation, Secured Recourse Indebtedness) totaling in excess of $25,000,000 or (y) Non-Recourse Indebtedness of Borrower or any of the Subsidiary GuarantorsPool Owners totaling in excess of $50,000,000;
(h) any LoanTransaction Party or REITCredit Party, (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 LoanTransaction the Borrower or other Credit Party or REIT 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 ninety (90) days following the filing or commencement thereof;
(ji) a decree or order is entered appointing a trustee, custodian, liquidator or receiver for any LoanTransaction the Borrower or other Credit Party or 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;
(kj) there shall remain in force, undischarged, unsatisfied and unstayed, for more than sixty (60) days days, whether or not consecutive, one or more uninsured or unbonded final judgments against Borrower or any Subsidiary GuarantorPool Owner Credit Party that, either individually or in the aggregate, exceed in excess of $50,000,0005,000,000.00 in the case of the Borrower or $500,000.00 in the case of any Credit Party;
(lk) any of the material Loan Documents 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 LendersLenders (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 shall be commenced by or on behalf of any Loan Partyof the Credit Parties, or any court or any other governmental or regulatory authority or agency of competent jurisdiction shall make a determination, or issue a judgment, order, decree or ruling, to the effect that any one or more of the material Loan Documents is illegal, invalid or unenforceable in accordance with the terms 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 LoanTransaction Party of the Credit Parties shall occur or any sale, transfer or other disposition of the assets of any LoanTransaction Party the 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 such event reasonably would be expected to result in liability of any LoanTransaction Party of the Credit Parties to pay money to the PBGC or such Guaranteed Pension Plan in an aggregate amount exceeding $25,000,000 1,000,000 and one of the following shall apply with respect to such event: (x) such event in the circumstances occurring reasonably 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) any Change of Control shall occur; or
(p) an Event of Default under any of the other Loan Documents shall occur; then, and upon any such Event of Default, the Agent may, and upon the request of the Required Lenders shall, by notice in writing to Loan Parties the Borrower declare all amounts owing with respect to this Agreement, the Notes 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(g), § 12.1(i§12.1(h) or § 12.1(j§12.1(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.
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) Borrower shall fail to pay any principal of the 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) Borrower shall fail to pay any interest on the Loan within five (5) days of the date that the same shall become due and payable or any fees or other sums due hereunder (other than any voluntary prepayment) or under any of the other Loan Documents within ten (10) days after notice from the Agent, whether at the stated date of maturity or any accelerated date of maturity or at any other date fixed for payment;
(c) Borrower shall fail to comply with the covenant contained in § 9.1 and such failure shall continue uncured after written notice thereof shall have been given to Loan Parties by the Agent as provided in § 3.2;
(d) Borrower shall fail to perform any other term, covenant or agreement contained in (i) §8.15 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 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 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 Loan Parties or any of their respective Subsidiaries in this Agreement or any other Loan Document, or any report, certificate, financial statement, request for an Advance, or in any other document or instrument delivered pursuant to or in connection with the Loan, any Advance, this Agreement, 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 LoanTransaction 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, 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 and the holder or holders thereof or of any obligations issued thereunder have accelerated the maturity thereof; provided that the events described in §12.1(g) shall not constitute an Event of Default unless such failure to perform, together with other failures to perform as described in §12.1(g), involve singly or in the aggregate obligations for (x) any Indebtedness which is recourse to Borrower or any of the Subsidiary GuarantorsPool Pool Owners (including, without limitation, Secured Recourse Indebtedness) totaling in excess of $25,000,000 50,000,000 or (y) Non-Recourse Indebtedness of Borrower or any of the Subsidiary GuarantorsPool Pool Owners totaling in excess of $50,000,000100,000,000;
(h) any LoanTransaction Transaction Party or REIT, (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 LoanTransaction Transaction Party or 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 ninety (90) days following the filing or commencement thereof;
(j) a decree or order is entered appointing a trustee, custodian, liquidator or receiver for any LoanTransaction Transaction Party or 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 one or more uninsured or unbonded final judgments against Borrower or any Subsidiary GuarantorPool Pool Owner that, either individually or in the aggregate, exceed $50,000,000;
(l) any of the Loan Documents shall be canceled, terminated, revoked or rescinded otherwise than in accordance with the terms thereof or the express prior written agreement, consent or approval of the Required Lenders, or any action at law, suit in equity or other legal proceeding to cancel, revoke or rescind any of the Loan Documents shall be commenced by or on behalf of any Loan 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 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 LoanTransaction Transaction Party shall occur or any sale, transfer or other disposition of the assets of any LoanTransaction 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 such event reasonably would be expected to result in liability of any LoanTransaction Transaction Party to pay money to the PBGC or such Guaranteed Pension Plan in an aggregate amount exceeding $25,000,000 and one of the following shall apply with respect to such event: (x) such event in the circumstances occurring reasonably would be expected to result in the termination of such Guaranteed Pension Plan by the PBGC or for the appointment by the appropriate United States District Court of a trustee to administer such Guaranteed Pension Plan; or (y) a trustee shall have been appointed by the United States District Court to administer such Plan; or (z) the PBGC shall have instituted proceedings to terminate such Guaranteed Pension Plan;
(o) any Change of Control shall occur; or
(p) an Event of Default under any of the other Loan Documents shall occur; then, and upon any such Event of Default, the Agent may, and upon the request of the Required Lenders shall, by notice in writing to Loan Parties declare all amounts owing with respect to this Agreement, the Notes and the other Loan Documents to be, and they shall thereupon forthwith become, immediately due and payable without presentment, demand, protest or other notice of any kind, all of which are hereby expressly waived by Borrower; provided that in the event of any Event of Default specified in § 12.1(h), § 12.1(i) or § 12.1(j), all such amounts shall become immediately due and payable automatically and without any requirement of presentment, demand, protest or other notice of any kind from any of the Lenders or the Agent.
Appears in 1 contract
Events of Default and Acceleration. If any of the following events (“Events of Default” or, if the giving of notice or the lapse of time or both is required, then, prior to such notice or lapse of time, “Defaults”) shall occur:
(a) The Borrower shall fail to pay any principal of the 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 Loan within five (5) days of the date that the same shall become due and payable payable, or any fees or other sums due hereunder (other than any voluntary prepayment) or under any of the other Loan Documents within ten five (105) days after notice from the Agent, whether at the stated date of maturity or any accelerated date of maturity or at any other date fixed for payment;
(c) Borrower shall fail to comply with the covenant contained in § 9.1 and such failure shall continue uncured after written notice thereof shall have been given to Loan Parties by the Agent as provided in § 3.2[Reserved];
(d) any of the Borrower or the other Credit Parties or any of their respective Subsidiaries shall fail to perform any other term, covenant or agreement contained in §9.1, §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 (i) §8.15 and such failure continues for thirty (3015) 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, § 9.7 or § 9.8 and such failure of a Default 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§12.1(d);
(e) any Loan Party of the Borrower or the other Credit Parties shall fail to perform any other term, covenant or agreement contained herein or in any of the other Loan Documents which they are required to perform (other than those specified in 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 the Borrower receives from the Agent of written notice thereof, and in the case of a default that cannot be cured within such thirty (30) day 30)-day period despite Loan Parties’ the Borrower’s diligent efforts but is susceptible of being cured within ninety (90) days of Loan Parties’ the Borrower’s receipt of the Agent’s original notice, then Loan Parties 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 Loan Parties’ the Borrower’s receipt of the 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 Loan the Credit Parties or any of their respective Subsidiaries in this Agreement or any other Loan Document, or any report, certificate, financial statement, request for an Advancea Loan, or in any other document or instrument delivered pursuant to or in connection with the Loanthis Agreement, any Advance, this Agreementadvance of a Loan, or any of the other Loan Documents shall prove to have been false in any material respect upon the date when made or deemed to have been made or repeatedrepeated except to the extent it is not reasonably expected to have a Material Adverse Effect;
(g) any 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, 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 and the holder or holders thereof or of any obligations issued thereunder have accelerated the maturity thereof; provided that the events described in §12.1(g) shall not constitute an Event of Default unless such failure to perform, together with other failures to perform as described in §12.1(g), involve singly or in the aggregate obligations for (x) any Indebtedness which is recourse to Borrower or the Pledgor or any of the Subsidiary GuarantorsPool Owners (including, without limitation, Secured defaults under any Recourse Indebtedness) totaling in excess of $25,000,000 Indebtedness or (y) Non-Recourse Indebtedness of Borrower or any of the Subsidiary GuarantorsPool Owners totaling in excess of $50,000,000Indebtedness;
(h) any LoanTransaction Party of the Borrower or REITother Credit Party, (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 LoanTransaction of the Borrower or other Credit Party or 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 ninety (90) days following the filing or commencement thereof;
(j) a decree or order is entered appointing a trustee, custodian, liquidator or receiver for any LoanTransaction of the Borrower or other Credit Party or 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 days, one or more uninsured or unbonded final judgments against the Pledgor or the Borrower or any Subsidiary GuarantorPool Owner that, either individually or in the aggregate, exceed excess of $50,000,0005,000,000;
(l) any of the material Loan Documents shall be canceled, terminated, revoked or rescinded otherwise than in accordance with the terms thereof or the express prior written agreement, consent or approval of the Required Lenders, or any action at law, suit in equity or other legal proceeding to cancel, revoke or rescind any of the material Loan Documents shall be commenced by or on behalf of any Loan Partyof the Credit Parties, or any court or any other governmental or regulatory authority or agency of competent jurisdiction shall make a determination, or issue a judgment, order, decree or ruling, to the effect that any one or more of the material Loan Documents is illegal, invalid or unenforceable in accordance with the terms thereof;
(m) any dissolution, termination, partial or complete liquidation, merger or consolidation of any LoanTransaction Party shall occur or any sale, transfer or other disposition of the assets of any LoanTransaction Party 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 such event reasonably would be expected to result in liability of any LoanTransaction Party of the Credit Parties to pay money to the PBGC or such Guaranteed Pension Plan in an aggregate amount exceeding $25,000,000 1,000,000 and one of the following shall apply with respect to such event: (x) such event in the circumstances occurring reasonably would be expected to result in the termination of such Guaranteed Pension Plan by the PBGC or for the appointment by the appropriate United States District Court of a trustee to administer such Guaranteed Pension Plan; or (y) a trustee shall have been appointed by the United States District Court to administer such Plan; or (z) the PBGC shall have instituted proceedings to terminate such Guaranteed Pension Plan;
(o) any Change of Control shall occur; or
(p) an Event of Default under any of the other Loan Documents shall occur; then, and upon any such Event of Default, the Agent may, and upon the request of the Required Lenders shall, by notice in writing to Loan Parties the Borrower declare all amounts owing with respect to this Agreement, the Notes 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.
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