▇▇▇▇▇▇ of Default. If any of the following events (herein called an "Event of Default") shall occur: (a) The Company shall default in the payment of any part of the principal of the Loan when and as the same shall become due and payable, whether at maturity or by acceleration or otherwise; or (b) The Company shall default in the payment of interest on the Loan when and as the same shall become due and payable, and such default in the payment of interest shall continue for a period of five days after said default; or (c) The Company fail to perform, keep or observe any other term or provision of this Agreement, the Note, the Security Agreement, the Warrant, the Registration Rights Agreement or any of other document executed in connection with the transactions contemplated hereby and such default shall continue for a period of thirty (30); or (d) an event of default, as defined in any indenture, agreement, or instrument evidencing or under which there is at the time outstanding any indebtedness of the Company for borrowed money, shall occur and such indebtedness shall have become or been declared due and payable at or prior to the date on which it would otherwise have become due and payable and such event of default shall not have been cured or waived; or (e) any representation or warranty by the Company in this Agreement, the Note, the Security Agreement, the Warrant or the Registration Rights Agreement or in any document provided in connection herewith or therewith shall prove to have been incorrect in any material respect when made; or (f) A Change of Control (as hereinafter defined) shall occur. A "Change of Control" shall mean the occurrence of any one of the following events: (i) any "person" (as such term is used in Sections 3(a)(9) and 13(d) of the 1▇▇▇ ▇▇▇) becomes a "beneficial owner" (as such term is used in Rule 13d-3 promulgated under the 1▇▇▇ ▇▇▇) of 30% or more of the Company's capital stock having general voting power to elect the directors of the Company; (ii) the majority of the Company's board of directors consists of individuals other than the members of the board as of the date hereof (the "Incumbent Directors"); provided that any person becoming a director subsequent to the date hereof whose nomination for election was supported by two-thirds of the directors who then comprised the Incumbent Directors shall be considered to be an Incumbent Director; (iii) the merger or consolidation of the Company with or into another corporation and, after such merger or consolidation is consummated, either (A) the Company is not the surviving corporation, or (B) if the Company is the surviving corporation, then the Company is a wholly-owned subsidiary of another corporation and the stockholders of the Company, immediately before such merger or consolidation is consummated, do not own at least 80% of the voting capital stock of the Company's parent corporation immediately after such merger or consolidation is consummated; (iii) the sale, lease, transfer or disposition of 20% or more of the Company's assets or (iv) the Company adopts a plan of liquidation providing for the distribution of all or substantially all of its assets; or
Appears in 1 contract
▇▇▇▇▇▇ of Default. If any of the following events (herein called an "Event of Default") shall occuroccur and be continuing:
(a) The Company the Borrower shall default in the payment fail to pay any principal of any part of the principal of the Loan when and as due in accordance with the same terms hereof; or the Borrower shall become fail to pay any interest on any Loan, or any other amount payable hereunder or under any other Loan Document, within five days after any such interest or other amount becomes due and payable, whether at maturity or by acceleration or otherwisein accordance with the terms hereof; or
(b) The Company any representation or warranty made or deemed made by any Loan Party herein or in any other Loan Document or that is contained in any certificate, document or financial or other statement furnished by it at any time under or in connection with this Agreement or any such other Loan Document shall default prove to have been inaccurate in any material respect on or as of the payment of interest on the Loan when and as the same shall become due and payable, and such default in the payment of interest shall continue for a period of five days after said defaultdate made or deemed made; or
(c) The Company fail any Loan Party shall default in the observance or performance of any agreement contained in clause (i) or (ii) of Section 6.4(a) (with respect to performthe Borrower only), keep Section 6.7(a) or observe any other term or provision Section 7 of this Agreement, the Note, the Security Agreement, the Warrant, the Registration Rights Agreement or any Section 5.13 of other document executed in connection with the transactions contemplated hereby Guarantee and such default shall continue for a period of thirty (30)Collateral Agreement; or
(d) an event any Loan Party shall default in the observance or performance of defaultany other agreement contained in this Agreement or any other Loan Document (other than as provided in paragraphs (a) through (c) of this Section), as defined in any indenture, agreement, or instrument evidencing or under which there is at the time outstanding any indebtedness of the Company for borrowed money, shall occur and such indebtedness default shall have become or been declared due and payable at or prior continue unremedied for a period of 30 days after notice to the date on which it would otherwise have become due and payable and such event of default shall not have been cured or waivedBorrower from the Administrative Agent; or
(e) any representation Group Member shall (i) default in making any payment of any principal of any Material Indebtedness (including any Guarantee Obligation) on the scheduled or warranty by original due date with respect thereto; or (ii) default in making any payment of any interest on any such Material Indebtedness beyond the Company period of grace, if any, provided in this the instrument or agreement under which such Material Indebtedness was created; (iii) other than with respect to Indebtedness outstanding under the ABL Credit Agreement, default in the Noteobservance or performance of any other agreement or condition relating to any such Material Indebtedness or contained in any instrument or agreement evidencing, securing or relating thereto, or any other event shall occur or condition exist, the Security effect of which default or other event or condition is to cause, or to permit the holder or beneficiary of such Indebtedness (or a trustee or agent on behalf of such holder or beneficiary) to cause, with the giving of notice if required, such Material Indebtedness to become due prior to its stated maturity or (in the case of any such Indebtedness constituting a Guarantee Obligation) to become payable; or (iv) with respect to Indebtedness outstanding under the ABL Credit Agreement, default in the Warrant observance or performance of any other agreement or condition relating to such Indebtedness or contained in any ABL Loan Document or any other event shall occur or condition exist, the effect of which default or other event or condition is to cause, or to permit the ABL Administrative Agent or the Registration Rights lenders under the ABL Credit Agreement to cause, with the giving of notice if required, the ABL Loans to become due prior to their stated maturity and/or the ABL Commitments to terminate prior to their stated termination date (provided that, in the case of this clause (iv), such default shall not constitute an Event of Default hereunder unless (A) the holders of the ABL Loans cause the ABL Loans to become due prior to their stated maturity and/or the ABL Commitments to terminate prior to their stated termination date or (B) the ABL Administrative Agent exercises remedies as a result of the express instruction of the Required Lenders (as defined in the ABL Credit Agreement), which remedies are only available to secured creditors under applicable law (and not to creditors generally), (excluding, for the avoidance of doubt, the imposition of control over any document provided deposit account in connection herewith or therewith shall prove to have been incorrect with a Full Cash Dominion Period (as defined in any material respect when madethe ABL Credit Agreement); or
(f) A Change of Control (as hereinafter defined) shall occur. A "Change of Control" shall mean the occurrence of any one of the following events: (i) any "person" Group Member shall commence any case, proceeding or other action (as A) under any existing or future law of any jurisdiction, domestic or foreign, relating to bankruptcy, insolvency, reorganization or relief of debtors, seeking to have an order for relief entered with respect to it, or seeking to adjudicate it a bankrupt or insolvent, or seeking reorganization, arrangement, adjustment, winding-up, liquidation, dissolution, composition or other relief with respect to it or its debts, or (B) seeking appointment of a receiver, trustee, custodian, conservator or other similar official for it or for all or any substantial part of its assets; or (ii) there shall be commenced against any Group Member any case, proceeding or other action of a nature referred to in clause (i) above that (A) results in the entry of an order for relief or any such term is used adjudication or appointment or (B) remains undismissed or undischarged for a period of 60 days; or (iii) there shall be commenced against any Group Member any case, proceeding or other action seeking issuance of a warrant of attachment, execution, distraint or similar process against all or any substantial part of its assets that results in Sections 3(a)(9the entry of an order for any such relief that shall not have been vacated, discharged, or stayed or bonded pending appeal within 60 days from the entry thereof; or (iv) and 13(d) any Group Member shall take any action in furtherance of, or indicating its consent to, approval of, or acquiescence in, any of the 1▇▇▇ ▇▇▇acts set forth in clause (i), (ii), or (iii) becomes above; or (v) any Group Member shall generally not, or shall be unable to, or shall admit in writing its inability to, pay its debts as they become due; or (vi) or any Group Member shall make a "beneficial owner" general assignment for the benefit of its creditors; or
(as such term is used in Rule 13d-3 promulgated under the 1▇▇▇ ▇▇▇g) of 30% or more of the Company's capital stock having general voting power to elect the directors of the Company(i) an ERISA Event and/or a Foreign Plan Event shall have occurred; (ii) the majority of the Company's board of directors consists of individuals other than the members of the board as of the date hereof (the "Incumbent Directors"); provided that any person becoming a director subsequent to the date hereof whose nomination for election was supported by two-thirds of the directors who then comprised the Incumbent Directors trustee shall be considered appointed by a United States district court to be an Incumbent Directoradminister any Pension Plan; (iii) the merger PBGC shall institute proceedings to terminate any Pension Plan; (iv) any Group Member or consolidation any of their respective ERISA Affiliates shall have been notified by the sponsor of a Multiemployer Plan that it has incurred or will be assessed Withdrawal Liability to such Multiemployer Plan and such entity does not have reasonable grounds for contesting such Withdrawal Liability or is not contesting such Withdrawal Liability in a timely and appropriate manner; or (v) any other event or condition shall occur or exist with respect to a Plan, a Foreign Benefit Arrangement, or a Foreign Plan; and in each case in clauses (i) through (v) above, such event or condition, together with all other such events or conditions, if any, would reasonably be expected to result in a Material Adverse Effect; or
(h) one or more judgments or decrees shall be entered against any Group Member involving in the aggregate a liability (not paid or fully covered by insurance as to which the relevant insurance company has not disputed coverage) of $50,000,000 or more, and all such judgments or decrees shall not have been vacated, discharged, satisfied, stayed or bonded, as applicable, pending appeal within 30 days from the entry thereof; or
(i) any of the Company with Security Documents or into another corporation the Intercreditor Agreement shall cease, for any reason, to be in full force and effect (other than pursuant to the terms hereof or the Intercreditor Agreement, respectively), or any Loan Party or any Affiliate of any Loan Party shall so assert, or any Lien created by any of the Security Documents shall cease to be enforceable and of the same effect and priority purported to be created thereby (and, after for the avoidance of doubt, as required by the Intercreditor Agreement), except to the extent that such merger cessation results from the failure of the Administrative Agent to maintain possession of certificates representing securities pledged or consolidation is consummatedto file continuation statements under the Uniform Commercial Code of any applicable jurisdiction; or
(j) the guarantee contained in Article II of the Guarantee and Collateral Agreement shall cease, either for any reason, to be in full force and effect or any Loan Party shall so assert; or
(k) the subordination provisions contained in any Subordinated Indebtedness with an aggregate principal amount in excess of $30,000,000 shall cease, for any reason, to be in full force and effect, or any Loan Party or any Subsidiary of any Loan Party shall so assert; or
(l) a Change of Control shall occur; then, and in any such event, (A) if such event is an Event of Default specified in clause (i) or (ii) of paragraph (f) above with respect to the Company is not Borrower, automatically the surviving corporationCommitments shall immediately terminate and the Loans (with accrued interest thereon) and all other amounts owing under this Agreement and the other Loan Documents shall immediately become due and payable, or and (B) if such event is any other Event of Default, either or both of the Company is following actions may be taken: with the surviving corporationconsent of the Required Lenders, then the Company is a wholly-owned subsidiary Administrative Agent may, or upon the request of another corporation the Required Lenders, the Administrative Agent shall, by notice to the Borrower, declare the Loans (with accrued interest thereon) and all other amounts owing under this Agreement and the stockholders other Loan Documents to be due and payable forthwith, whereupon the same shall immediately become due and payable. Except as expressly provided above in this Section, presentment, demand, protest and all other notices of any kind are hereby expressly waived by the Borrower. In addition to any other rights and remedies granted to the Administrative Agent and the Lenders in the Loan Documents, the Administrative Agent on behalf of the Company, immediately before such merger Lenders may exercise all rights and remedies of a secured party under the New York Uniform Commercial Code or consolidation is consummated, do not own at least 80% any other applicable law. Without limiting the generality of the voting capital stock foregoing, the Administrative Agent, without demand of performance or other demand, presentment, protest, advertisement or notice of any kind (except any notice required by law referred to below) to or upon any Loan Party or any other Person (all and each of which demands, defenses, advertisements and notices are hereby waived), may in such circumstances forthwith collect, receive, appropriate and realize upon the Collateral, or any part thereof, or consent to the use by the Loan Parties of any cash collateral arising in respect of the Company's parent corporation immediately after Collateral on such merger or consolidation is consummated; (iii) terms as the saleAdministrative Agent deems reasonable, and/or may forthwith sell, lease, transfer assign give an option or options to purchase or otherwise dispose of and deliver, or acquire by credit bid on behalf of the Lenders, the Collateral or any part thereof (or contract to do any of the foregoing), in one or more parcels at public or private sale or sales, at any exchange, broker’s board or office of the Administrative Agent or any Lender or elsewhere, upon such terms and conditions as it may deem advisable and at such prices as it may deem best, for cash or on credit or for future delivery, all without assumption of any credit risk. The Administrative Agent or any Lender shall have the right upon any such public sale or sales, and, to the extent permitted by law, upon any such private sale or sales, to purchase the whole or any part of the Collateral so sold, free of any right or equity of redemption in any Loan Party, which right or equity is hereby waived and released. The Borrower further agrees, at the Administrative Agent’s request, to assemble, or cause the applicable Loan Party to assemble, the Collateral and make it available to the Administrative Agent at places which the Administrative Agent shall reasonably select, whether at the Borrower’s or such Loan Party’s premises or elsewhere. The Administrative Agent shall apply the net proceeds of any action taken by it pursuant to this Section 8, after deducting all reasonable costs and expenses of every kind incurred in connection therewith or incidental to the care or safekeeping of any of the Collateral or in any other way relating to the Collateral or the rights of the Administrative Agent and the Lenders hereunder, including reasonable attorneys’ fees and disbursements, to the payment in whole or in part of the obligations of the Loan Parties under the Loan Documents, in such order as the Administrative Agent may elect, and only after such application and after the payment by the Administrative Agent of any other amount required by any provision of law, including Section 9-615(a)(3) of the New York UCC, need the Administrative Agent account for the surplus, if any, to any Loan Party. To the extent permitted by applicable law, the Borrower on behalf of itself and the other Loan Parties, waives all claims, damages and demands it or any other Loan Party may acquire against the Administrative Agent or any Lender arising out of the exercise by them of any rights hereunder, except to the extent such damages are found by a final and nonappealable decision of a court of competent jurisdiction to have resulted from the gross negligence or willful misconduct of the Administrative Agent or such Lender, as the case may be. If any notice of a proposed sale or other disposition of 20% Collateral shall be required by law, such notice shall be deemed reasonable and proper if given at least 10 days before such sale or more of the Company's assets or (iv) the Company adopts a plan of liquidation providing for the distribution of all or substantially all of its assets; orother disposition.
Appears in 1 contract
▇▇▇▇▇▇ of Default. If any of the following events (herein called each an "“Event of Default"”) shall occuroccur and be continuing:
(a) The Company Borrower shall default in the payment fail to pay any principal of any part of Loan on the principal of the Loan Business Day when and as the same shall become becomes due and payable, whether at maturity or by acceleration or otherwise; or;
(b) The Company Borrower shall default in the payment of fail to pay any interest on the Loan when and as the same shall become due and payableLoan, and such default in the or make any other payment of interest shall continue for a period of five days fees or other amounts under this Agreement or any other Loan Document within three (3) Business Days after said default; orsuch payment is due;
(c) The Company fail to perform, keep Any representation or observe warranty made by the Borrower in any other term Loan Document or provision of this Agreement, by the Note, the Security Agreement, the Warrant, the Registration Rights Agreement Borrower (or any of other document executed its officers) in connection with the transactions contemplated hereby and such default shall continue for a period of thirty (30); or
(d) an event of default, as defined in any indenture, agreement, or instrument evidencing or under which there is at the time outstanding any indebtedness of the Company for borrowed money, shall occur and such indebtedness shall have become or been declared due and payable at or prior to the date on which it would otherwise have become due and payable and such event of default shall not have been cured or waived; or
(e) any representation or warranty by the Company in this Agreement, the Note, the Security Agreement, the Warrant or the Registration Rights Agreement or in any document provided in connection herewith or therewith Loan Document shall prove to have been incorrect in any material respect when made;
(d)
(i) The Borrower shall fail to perform or observe any term, covenant or agreement contained in Section 2.06, Section 5.01(b) (with respect to its legal existence of the Borrower), or Section 5.02, or in any Collateral Document; or
(f) A Change of Control (as hereinafter defined) shall occur. A "Change of Control" shall mean the occurrence of any one of the following events: (i) any "person" (as such term is used in Sections 3(a)(9) and 13(d) of the 1▇▇▇ ▇▇▇) becomes a "beneficial owner" (as such term is used in Rule 13d-3 promulgated under the 1▇▇▇ ▇▇▇) of 30% or more of the Company's capital stock having general voting power to elect the directors of the Company; (ii) the majority of the Company's board of directors consists of individuals Borrower shall fail to perform or observe any other term, covenant or agreement contained in any Loan Document on its part to be performed or observed (other than the members of failure to satisfy any covenant or agreement specified in clause (d)(i) above or a default specified in paragraph (a) or (b) above) if such failure shall remain unremedied for twenty (20) or more days after the board as earlier of the date hereof (the "Incumbent Directors"); provided that any person becoming a director subsequent to the date hereof whose nomination for election was supported by two-thirds of the directors who then comprised the Incumbent Directors shall be considered to be an Incumbent Director; (iii) the merger or consolidation of the Company with or into another corporation and, after such merger or consolidation is consummated, either on which (A) any officer of the Company is not the surviving corporation, Borrower becomes aware of such failure or (B) if written notice thereof shall have been given to the Company is Borrower by the surviving corporationLender, then provided that, notwithstanding anything to the Company is contrary in this Agreement, a wholly-owned subsidiary breach by the Borrower of another corporation and Section 5.02(g) shall not constitute an Event of Default.
(e) The Borrower, the stockholders Parent or any of the Company, immediately before such merger Borrower’s Subsidiaries shall fail to pay any principal of or consolidation premium or interest on any Debt that is consummated, do not own at least 80outstanding in a principal or notional amount of the lower of (x) US$15,000,000 and (y) an amount equal to 3% of the voting capital stock value of shareholders’ equity, as determined by the Administrative Agent (or its equivalent in other currencies) when the same becomes due and payable (whether by scheduled maturity, required prepayment, acceleration, demand or otherwise), and such failure shall continue after the applicable grace period, if any, specified in the agreement or instrument relating to such Debt; or any other event shall occur or condition shall exist under any agreement or instrument relating to any such Debt and shall continue after the applicable grace period, if any, specified in such agreement or instrument, if the effect of such event or condition is to accelerate, or to permit the acceleration of, the maturity of such Debt or otherwise to cause, or to permit the holder thereof to cause such Debt to mature; or any such Debt shall be declared to be due and payable, or required to be prepaid or redeemed (other than by a regularly scheduled required prepayment or redemption), purchased or defeased, or an offer to prepay, redeem, purchase or defease such Debt shall be required to be made, in each case prior to the stated maturity thereof;
(f) An Insolvency Event occurs with respect to the Borrower, the Parent or any of the Company's parent corporation immediately after Borrower’s Subsidiaries;
(g) Any (i) monetary judgments or order for the payment of money in excess of U.S. $20,000,000 (or its equivalent in other currencies) in the aggregate shall be rendered against either of the Borrower, the Parent or any of the Borrower’s Subsidiaries, or (ii) non-monetary judgment or order shall be rendered against the Borrower, the Parent or any of the Borrower’s Subsidiaries that could be reasonably expected to have a Material Adverse Effect, and, in any case, either (x) enforcement proceedings shall have been commenced by any creditor upon such merger judgment or consolidation is consummated; order or (iiiy) the sale, lease, transfer or disposition there shall be any period of 20% thirty (30) or more consecutive days during which a stay of the Company's assets enforcement of such judgment or (iv) the Company adopts order, by reason of a plan of liquidation providing for the distribution of all pending appeal or substantially all of its assets; orotherwise, shall not be in effect;
Appears in 1 contract
Sources: Credit Agreement (Hut 8 Corp.)
▇▇▇▇▇▇ of Default. If any Any one or more of the following events (herein called shall constitute an "“Event of Default") shall occur” hereunder:
(a) The Company shall default in the payment when due of all or any part of the principal of the any Loan when and as the same shall become due and payable, (whether at the stated maturity thereof or by acceleration at any other time provided for in this Agreement) or otherwise; orof any Reimbursement Obligation, or default for a period of three (3) Business Days in the payment when due of any interest, fee or other Obligation payable hereunder or under any other Loan Document;
(b) The Company shall default in the payment observance or performance of interest on any covenant set forth in Sections 8.1, 8.5, 8.7, 8.8, 8.9, 8.10, 8.11, 8.12, 8.13, 8.14, 8.15, 8.17, 8.18, 8.19, 8.21, 8.22, 8.23, 8.24 or 8.25 of this Agreement, or any provision in any Loan Document dealing with the Loan when and as use, disposition or remittance of the same shall become due and payable, and such default in proceeds of Collateral or requiring the payment maintenance of interest shall continue for a period of five days after said default; orinsurance thereon;
(c) The Company default in the observance or performance of any other provision hereof or of any other Loan Document which is not remedied within thirty (30) days after the earlier of (i) the date on which such failure shall first become known to any Responsible Officer of any Loan Party or (ii) written notice thereof is given to the Borrower by the Administrative Agent;
(d) any representation or warranty made herein or in any other Loan Document or in any certificate furnished to the Administrative Agent or the Lenders pursuant hereto or thereto or in connection with any transaction contemplated hereby or thereby proves untrue in any material respect as of the date of the issuance or making or deemed making thereof;
(i) any event occurs or condition exists (other than those described in subsections (a) through (d) above) which is specified as an event of default under any of the other Loan Documents, or (ii) any of the Loan Documents shall for any reason not be or shall cease to be in full force and effect or is declared to be null and void, or (iii) any of the Collateral Documents shall for any reason fail to performcreate a valid and perfected first priority Lien in favor of the Administrative Agent in any Collateral purported to be covered thereby except as expressly permitted by the terms hereof, keep or observe (iv) any other term Loan Party takes any action for the purpose of terminating, repudiating or provision of this Agreement, the Note, the Security Agreement, the Warrant, the Registration Rights Agreement rescinding any Loan Document executed by it or any of its obligations thereunder, or (v) any Loan Party or any Subsidiary of a Loan Party makes any payment on account of any Subordinated Debt which is prohibited under the terms of any instrument subordinating such Subordinated Debt to any Secured Obligations, or any subordination provision in any document or instrument (including, without limitation, any intercreditor or subordination agreement) relating to any Subordinated Debt shall cease to be in full force and effect, or any Person (including the holder of any Subordinated Debt) shall contest in any manner the validity, binding nature or enforceability of any such provision;
(f) default shall occur under any Material Indebtedness issued, assumed or guaranteed by any Loan Party or any Subsidiary of a Loan Party, or under any indenture, agreement or other document executed in connection with instrument under which the transactions contemplated hereby same may be issued, and such default shall continue for a period of thirty time sufficient to permit the acceleration of the maturity of any such Material Indebtedness (30whether or not such maturity is in fact accelerated); or, or any such Material Indebtedness shall not be paid when due (whether by demand, lapse of time, acceleration or otherwise);
(di) any final judgment or judgments, writ or writs or warrant or warrants of attachment, or any similar process or processes, shall be entered or filed against any Loan Party or any Subsidiary of a Loan Party, or against any of their respective Property, in an event aggregate amount for all such Persons in excess of default$750,000 (except to the extent fully covered by insurance pursuant to which the insurer has accepted liability therefor in writing), as defined and which remains undischarged, unvacated, unbonded or unstayed for a period of sixty (60) days, or any action shall be legally taken by a judgment creditor to attach or levy upon any Property of any Loan Party or any Subsidiary of a Loan Party to enforce any such judgment, or (ii) any Loan Party or any Subsidiary of a Loan Party shall fail within sixty (60) days to discharge one or more non-monetary judgments or orders which, individually or in the aggregate, could reasonably be expected to have a Material Adverse Effect, which judgments or orders, in any indenturesuch case, agreementare not stayed on appeal or otherwise being appropriately contested in good faith by proper proceedings diligently pursued;
(h) any Loan Party or any Subsidiary of a Loan Party, or instrument evidencing or under which there is at the time outstanding any indebtedness member of the Company for borrowed moneyits Controlled Group, shall occur and fail to pay when due an amount or amounts aggregating for all such indebtedness Persons in excess of $500,000 which it shall have become or been declared due and payable at or prior liable to pay to the date on which it would otherwise have become due and payable PBGC or to a Plan under Title IV of ERISA; or notice of intent to terminate a Plan or Plans having aggregate Unfunded Vested Liabilities in excess of $500,000 (collectively, a “Material Plan”) shall be filed under Title IV of ERISA by any Loan Party or any Subsidiary of a Loan Party, or any other member of its Controlled Group, any plan administrator or any combination of the foregoing; or the PBGC shall institute proceedings under Title IV of ERISA to terminate or to cause a trustee to be appointed to administer any Material Plan or a proceeding shall be instituted by a fiduciary of any Material Plan against any Loan Party or any Subsidiary of a Loan Party, or any member of its Controlled Group, to enforce Section 515 or 4219(c)(5) of ERISA and such event of default proceeding shall not have been cured dismissed within thirty (30) days thereafter; or waived; ora condition shall exist by reason of which the PBGC would be entitled to obtain a decree adjudicating that any Material Plan must be terminated;
(e) any representation or warranty by the Company in this Agreement, the Note, the Security Agreement, the Warrant or the Registration Rights Agreement or in any document provided in connection herewith or therewith shall prove to have been incorrect in any material respect when made; or
(f) A Change of Control (as hereinafter defined) shall occur. A "Change of Control" shall mean the occurrence of any one of the following events: (i) any "person" Change of Control shall occur;
(as such term is used in Sections 3(a)(9j) and 13(dany Loan Party or any Subsidiary of a Loan Party shall (i) of the 1▇▇▇ ▇▇▇) becomes a "beneficial owner" (as such term is used in Rule 13d-3 promulgated have entered involuntarily against it an order for relief under the 1▇▇▇ ▇▇▇) of 30% or more of the Company's capital stock having general voting power to elect the directors of the Company; United States Bankruptcy Code, as amended, (ii) the majority of the Company's board of directors consists of individuals other than the members of the board not pay, or admit in writing its inability to pay, its debts generally as of the date hereof (the "Incumbent Directors"); provided that any person becoming a director subsequent to the date hereof whose nomination for election was supported by two-thirds of the directors who then comprised the Incumbent Directors shall be considered to be an Incumbent Director; they become due, (iii) make an assignment for the merger benefit of creditors, (iv) apply for, seek, consent to or consolidation acquiesce in, the appointment of a receiver, custodian, trustee, examiner, liquidator or similar official for it or any substantial part of its Property, (v) institute any proceeding seeking to have entered against it an order for relief under the Company with United States Bankruptcy Code, as amended, to adjudicate it insolvent, or into another corporation andseeking dissolution, after winding up, liquidation, reorganization, arrangement, adjustment or composition of it or its debts under any law relating to bankruptcy, insolvency or reorganization or relief of debtors or fail to file an answer or other pleading denying the material allegations of any such merger proceeding filed against it, (vi) take any corporate or consolidation is consummated, either similar action in furtherance of any matter described in parts (Ai) the Company is not the surviving corporationthrough (v) above, or (Bvii) if the Company is the surviving corporationfail to contest in good faith any appointment or proceeding described in Section 9.1(k);
(k) a custodian, then the Company is receiver, trustee, examiner, liquidator or similar official shall be appointed for any Loan Party or any Subsidiary of a wholly-owned subsidiary Loan Party, or any substantial part of another corporation and the stockholders of the Company, immediately before such merger or consolidation is consummated, do not own at least 80% of the voting capital stock of the Company's parent corporation immediately after such merger or consolidation is consummated; (iii) the sale, lease, transfer or disposition of 20% or more of the Company's assets or (iv) the Company adopts a plan of liquidation providing for the distribution of all or substantially all any of its assetsProperty, or a proceeding described in Section 9.1(j)(v) shall be instituted against any Loan Party or any Subsidiary of a Loan Party, and such appointment continues undischarged or such proceeding continues undismissed or unstayed for a period of 60 days; or
Appears in 1 contract
▇▇▇▇▇▇ of Default. If any of the following events (herein called an "Event of Default") shall occuroccur and be continuing:
(a) The Company the Borrower shall default in the payment fail to pay any principal of any part of Loan or Reimbursement Obligation when due in accordance with the principal of terms hereof; or the Borrower shall fail to pay any interest on any Loan when and as or Reimbursement Obligation, or any other amount payable hereunder or under any other Loan Document, within five days after any such interest or other amount becomes due in accordance with the same shall become due and payable, whether at maturity terms hereof or by acceleration or otherwisethereof; or
(b) The Company any representation or warranty made or deemed made by the Borrower herein or in any other Loan Document or that is contained in any certificate, document or financial or other statement furnished by it at any time under or in connection with this Agreement or any such other Loan Document shall prove to have been inaccurate in any material respect on or as of the date made or deemed made or furnished; or
(c) the Borrower shall default in the observance or performance of any agreement contained in clause (i) or (ii) of Section 6.4 (a) (with respect to the Borrower only) or Section 7 of this Agreement; or
(d) the Borrower shall default in the observance or performance of any other agreement contained in this Agreement or any other Loan Document, other than as provided in paragraphs (a) through (c) of this Section, and such default shall continue unremedied for a period of 30 days; or
(e) the Borrower or any of its Material Subsidiaries shall (i) default in making any payment of any principal of, or interest on, any Indebtedness (including, without limitation, any Guarantee Obligation, but excluding the Loans and Reimbursement Obligations) beyond the period of grace, if any, provided in the instrument or agreement under which such Indebtedness was created; or (ii) default in the observance or performance of any other agreement or condition relating to any such Indebtedness or contained in any instrument or agreement evidencing, securing or relating thereto, or any other event shall occur or condition exist, the effect of which default or other event or condition is to cause, or to permit the holder or beneficiary of such Indebtedness (or a trustee or agent on behalf of such holder or beneficiary) to cause, with the giving of notice if required, such Indebtedness to become due prior to its stated maturity or to become subject to a mandatory offer to purchase by the obligor thereunder or (in the case of any such Indebtedness constituting a Guarantee Obligation) to become payable; provided, that a default, event or condition described in clause (i) or (ii) of this paragraph (e) shall not at any time constitute an Event of Default unless, at such time, one or more defaults, events or conditions of the type described in clauses (i) and (ii) of this paragraph (e) shall have occurred and be continuing with respect to Indebtedness the outstanding principal amount of which exceeds in the aggregate $30,000,000; or
(i) the Borrower or any of its Material Subsidiaries shall commence any case, proceeding or other action (A) under any existing or future law of any jurisdiction, domestic or foreign, relating to bankruptcy, insolvency, reorganization or relief of debtors, seeking to have an order for relief entered with respect to it, or seeking to adjudicate it a bankrupt or insolvent, or seeking reorganization, arrangement, adjustment, winding-up, liquidation, dissolution, composition or other relief with respect to it or its debts, or (B) seeking appointment of a receiver, trustee, custodian, conservator or other similar official for it or for all or any substantial part of its assets, or the Borrower or any of its Material Subsidiaries shall make a general assignment for the benefit of its creditors; or (ii) there shall be commenced against the Borrower or any of its Material Subsidiaries any case, proceeding or other action of a nature referred to in clause (i) above that (A) results in the entry of an order for relief or any such adjudication or appointment or (B) remains undismissed, undischarged or unbonded for a period of 60 days; or (iii) there shall be commenced against the Borrower or any of its Material Subsidiaries any case, proceeding or other action seeking issuance of a warrant of attachment, execution, distraint or similar process against all or any substantial part of its assets that results in the entry of an order for any such relief that shall not have been vacated, discharged, or stayed or bonded pending appeal within 60 days from the entry thereof; or (iv) the Borrower or any of its Material Subsidiaries shall take any action in furtherance of, or indicating its consent to, approval of, or acquiescence in, any of the acts set forth in clause (i), (ii), or (iii) above; or (v) the Borrower or any of its Material Subsidiaries shall generally not, or shall be unable to, or shall admit in writing its inability to, pay its debts as they become due; or
(g) (i) any Person shall engage in any “prohibited transaction” (as defined in Section 406 of ERISA or Section 4975 of the Code) involving any Plan, (ii) any “accumulated funding deficiency” (as defined in Section 302 of ERISA), whether or not waived, shall exist with respect to any Plan, or any Lien in favor of the PBGC or a Plan shall arise on the Loan when assets of the Borrower or any Commonly Controlled Entity, (iii) a Reportable Event shall occur with respect to, or proceedings shall commence to have a trustee appointed, or a trustee shall be appointed, to administer or to terminate, any Single Employer Plan, which Reportable Event or commencement of proceedings or appointment of a trustee is, in the reasonable opinion of the Required Lenders, likely to result in the termination of such Plan for purposes of Title IV of ERISA in an involuntary or distress termination, (iv) any Single Employer Plan shall terminate for purposes of Title IV of ERISA, (v) the Borrower or any Commonly Controlled Entity shall, or in the reasonable opinion of the Required Lenders shall be likely to, incur any liability in connection with a withdrawal from, or the Insolvency or Reorganization of, a Multiemployer Plan or (vi) any other event or condition shall occur or exist with respect to a Plan; and in each case in clauses (i) through (vi) above, such event or condition, together with all other such events or conditions, if any, could, in the sole judgment of the Required Lenders, reasonably be expected to have a Material Adverse Effect; or
(h) one or more judgments or decrees shall be entered against the Borrower or any of its Material Subsidiaries involving for the Borrower and its Subsidiaries taken as a whole a liability (to the extent not covered by insurance as to which the relevant insurance company has acknowledged coverage) of $30,000,000 or more, and all such judgments or decrees shall not have been vacated, discharged, stayed or bonded pending appeal within 60 days from the entry thereof; or
(i) there shall occur an “Event of Default” under the South Dakota First Mortgage Indenture or the Senior Note Indenture or a "Default" under the Montana First Mortgage Indenture; provided that the waiver or cure of such “Event of Default” under the South Dakota First Mortgage Indenture or the Senior Note Indenture, or such “Default” under the Montana First Mortgage Indenture, as the same case may be, and the rescission and annulment of the consequences thereof under such Indenture will constitute a cure of the corresponding Event of Default hereunder and a rescission or annulment of the consequences thereof; or
(j) any Change of Control shall occur; then, and in any such event, (A) if such event is an Event of Default specified in clause (i) or (ii) of paragraph (f) above with respect to the Borrower, automatically the Commitments shall immediately terminate and the Loans hereunder (with accrued interest thereon) and all other amounts owing under this Agreement and the other Loan Documents shall immediately become due and payable, and (B) if such default in the payment of interest shall continue for a period of five days after said default; or
(c) The Company fail to perform, keep or observe event is any other term Event of Default, either or provision of this Agreement, the Note, the Security Agreement, the Warrant, the Registration Rights Agreement or any of other document executed in connection with the transactions contemplated hereby and such default shall continue for a period of thirty (30); or
(d) an event of default, as defined in any indenture, agreement, or instrument evidencing or under which there is at the time outstanding any indebtedness of the Company for borrowed money, shall occur and such indebtedness shall have become or been declared due and payable at or prior to the date on which it would otherwise have become due and payable and such event of default shall not have been cured or waived; or
(e) any representation or warranty by the Company in this Agreement, the Note, the Security Agreement, the Warrant or the Registration Rights Agreement or in any document provided in connection herewith or therewith shall prove to have been incorrect in any material respect when made; or
(f) A Change of Control (as hereinafter defined) shall occur. A "Change of Control" shall mean the occurrence of any one both of the following eventsactions may be taken: (i) any "person" (as such term is used in Sections 3(a)(9) and 13(d) with the consent of the 1▇▇▇ ▇▇▇) becomes a "beneficial owner" (as such term is used in Rule 13d-3 promulgated under Required Lenders, the 1▇▇▇ ▇▇▇) of 30% Administrative Agent may, or more upon the request of the Company's capital stock having general voting power Required Lenders, the Administrative Agent shall, by notice to elect the directors of Borrower declare the CompanyRevolving Credit Commitments to be terminated forthwith, whereupon the Revolving Credit Commitments shall immediately terminate; and (ii) with the majority consent of the Company's board of directors consists of individuals other than Required Lenders, the members Administrative Agent may, or upon the request of the board as Required Lenders, the Administrative Agent shall, by notice to the Borrower, declare the Loans hereunder (with accrued interest thereon) and all other amounts owing under this Agreement and the other Loan Documents to be due and payable forthwith, whereupon the same shall immediately become due and payable. In the case of all Letters of Credit with respect to which presentment for honor shall not have occurred at the time of an acceleration pursuant to this paragraph, the Borrower shall at such time deposit in a cash collateral account opened by the Administrative Agent an amount equal to the aggregate then undrawn and unexpired face amount of such Letters of Credit. Amounts held in such cash collateral account shall be applied by the Administrative Agent to the payment of drafts drawn under such Letters of Credit, and the unused portion thereof after all such Letters of Credit shall have expired or been fully drawn upon, if any, shall be applied to repay other obligations of the date hereof (Borrower hereunder and under the "Incumbent Directors"); provided that any person becoming a director subsequent other Loan Documents. After all such Letters of Credit shall have expired or been fully drawn upon, all Reimbursement Obligations shall have been satisfied and all other obligations of the Borrower hereunder and under the other Loan Documents shall have been paid in full, the balance, if any, in such cash collateral account shall be returned to the date hereof whose nomination for election was supported by two-thirds of the directors who then comprised the Incumbent Directors shall Borrower (or such other Person as may be considered to be an Incumbent Director; (iii) the merger or consolidation of the Company with or into another corporation and, after such merger or consolidation is consummated, either (A) the Company is not the surviving corporation, or (B) if the Company is the surviving corporation, then the Company is a wholly-owned subsidiary of another corporation and the stockholders of the Company, immediately before such merger or consolidation is consummated, do not own at least 80% of the voting capital stock of the Company's parent corporation immediately after such merger or consolidation is consummated; (iii) the sale, lease, transfer or disposition of 20% or more of the Company's assets or (iv) the Company adopts a plan of liquidation providing for the distribution of all or substantially all of its assets; orlawfully entitled thereto).
Appears in 1 contract
Sources: Credit Agreement (Northwestern Corp)
▇▇▇▇▇▇ of Default. If any Any one or more of the following events (herein called shall constitute an "“Event of Default") shall occur” hereunder:
(a) The Company shall default in the payment when due (whether at the stated maturity thereof or at any other time provided for in this Agreement) of all or any part of the principal of the or interest on any Loan when and as the same shall become due and payable, whether at maturity or by acceleration any other Obligation payable hereunder or otherwise; orunder any other Loan Document;
(b) The Company shall default in the payment observance or performance of interest on any covenant set forth in Sections 6.1, 6.4, 6.11, 6.12, 6.13, 6.14, 6.15, 6.20, 6.21, 6.22, 6.23 or 6.25 hereof or of any provision in any Loan Document dealing with the Loan when and as use, disposition or remittance of the same shall become due and payable, and such default in proceeds of Collateral or requiring the payment maintenance of interest shall continue for a period of five days after said default; orinsurance thereon;
(c) The Company fail to perform, keep default in the observance or observe performance of any other term provision hereof or provision of this Agreementany other Loan Document which is not remedied within 30 days after the earlier of (i) the date on which such default shall first become known to any officer of the Borrower or (ii) written notice of such default is given to the Borrower by the Administrative Agent;
(d) any representation or warranty made herein or in any other Loan Document or in any certificate delivered to the Administrative Agent or the Lenders pursuant hereto or thereto or in connection with any transaction contemplated hereby or thereby proves untrue in any material respect as of the date of the issuance or making or deemed making thereof;
(e) any event occurs or condition exists (other than those described in subsections (a) through (d) above) which is specified as an event of default under any of the other Loan Documents, the Note, the Security Agreement, the Warrant, the Registration Rights Agreement or any of the Loan Documents shall for any reason not be or shall cease to be in full force and effect or is declared to be null and void, or any of the Collateral Documents shall for any reason fail to create a valid and perfected first priority Lien in favor of the Administrative Agent in any Collateral purported to be covered thereby except as expressly permitted by the terms thereof, or any Subsidiary takes any action for the purpose of terminating, repudiating or rescinding any Loan Document executed by it or any of its obligations thereunder;
(f) default shall occur under any (i) Indebtedness of the Borrower or any of its Subsidiaries aggregating in excess of $1,000,000, or under any indenture, agreement or other document executed in connection with instrument under which the transactions contemplated hereby same may be issued, and such default shall continue for a period of thirty time sufficient to permit the acceleration of the maturity of any such Indebtedness (30whether or not such maturity is in fact accelerated), or any such Indebtedness shall not be paid when due (whether by demand, lapse of time, acceleration or otherwise) after giving effect to applicable grace or cure periods, if any, or (ii) any Hedge Agreement of the Borrower or any of its Subsidiaries with any Lender or any Affiliate of a Lender;
(g) any final judgment or judgments, writ or writs or warrant or warrants of attachment, or any similar process or processes, shall be entered or filed against the Borrower or any of its Subsidiaries, or against any of its Property, in an aggregate amount in excess of $1,000,000 (except to the extent fully and unconditionally covered by insurance pursuant to which the insurer has accepted liability therefor in writing and except to the extent fully and unconditionally covered by an appeal bond, for which the Borrower or such Subsidiary has established in accordance with GAAP a cash or Cash Equivalent reserve in the amount of such judgment, writ or warrant), and which remains undischarged, unvacated, unbonded or unstayed for a period of 30 days;
(h) the Borrower or any of its Subsidiaries, or any member of its Controlled Group, shall fail to pay when due an amount or amounts aggregating in excess of $1,000,000 which it shall have become liable to pay to the PBGC or to a Plan under Title IV of ERISA; or notice of intent to terminate a Plan or Plans having aggregate Unfunded Vested Liabilities in excess of $1,000,000 (collectively, a “Material Plan”) shall be filed under Title IV of ERISA by the Borrower or any of its Subsidiaries, or any other member of its Controlled Group, any plan administrator or any combination of the foregoing; or the PBGC shall institute proceedings under Title IV of ERISA to terminate or to cause a trustee to be appointed to administer any Material Plan or a proceeding shall be instituted by a fiduciary of any Material Plan against the Borrower or any of its Subsidiaries, or any member of its Controlled Group, to enforce Section 515 or 4219(c)(5) of ERISA and such proceeding shall not have been dismissed within 30 days thereafter; or a condition shall exist by reason of which the PBGC would be entitled to obtain a decree adjudicating that any Material Plan must be terminated;
(i) any Change of Control shall occur;
(j) the Borrower or any of its Subsidiaries shall (i) have entered involuntarily against it an order for relief under the United States Bankruptcy Code, as amended, (ii) not pay, or admit in writing its inability to pay, its debts generally as they become due, (iii) make an assignment for the benefit of creditors, (iv) apply for, seek, consent to or acquiesce in, the appointment of a receiver, custodian, trustee, examiner, liquidator or similar official for it or any substantial part of its Property, (v) institute any proceeding seeking to have entered against it an order for relief under the United States Bankruptcy Code, as amended, to adjudicate it insolvent, or seeking dissolution, winding up, liquidation, reorganization, arrangement, adjustment or composition of it or its debts under any law relating to bankruptcy, insolvency or reorganization or relief of debtors or fail to file an answer or other pleading denying the material allegations of any such proceeding filed against it, (vi) take any action in furtherance of any matter described in parts (i) through (v) above, or (vii) fail to contest in good faith any appointment or proceeding described in Section 7.1(k) hereof; or
(dk) an event a custodian, receiver, trustee, examiner, liquidator or similar official shall be appointed for the Borrower or any of default, as defined in any indenture, agreementits Subsidiaries, or instrument evidencing any substantial part of any of its Property, or under which there is at a proceeding described in Section 7.1(j)(v) shall be instituted against the time outstanding Borrower or any indebtedness of the Company for borrowed moneySubsidiary, shall occur and such indebtedness shall have become appointment continues undischarged or been declared due and payable at such proceeding continues undismissed or prior to the date on which it would otherwise have become due and payable and such event unstayed for a period of default shall not have been cured or waived; or
(e) any representation or warranty by the Company in this Agreement, the Note, the Security Agreement, the Warrant or the Registration Rights Agreement or in any document provided in connection herewith or therewith shall prove to have been incorrect in any material respect when made; or
(f) A Change of Control (as hereinafter defined) shall occur. A "Change of Control" shall mean the occurrence of any one of the following events: (i) any "person" (as such term is used in Sections 3(a)(9) and 13(d) of the 1▇▇▇ ▇▇▇) becomes a "beneficial owner" (as such term is used in Rule 13d-3 promulgated under the 1▇▇▇ ▇▇▇) of 30% or more of the Company's capital stock having general voting power to elect the directors of the Company; (ii) the majority of the Company's board of directors consists of individuals other than the members of the board as of the date hereof (the "Incumbent Directors"); provided that any person becoming a director subsequent to the date hereof whose nomination for election was supported by two-thirds of the directors who then comprised the Incumbent Directors shall be considered to be an Incumbent Director; (iii) the merger or consolidation of the Company with or into another corporation and, after such merger or consolidation is consummated, either (A) the Company is not the surviving corporation, or (B) if the Company is the surviving corporation, then the Company is a wholly-owned subsidiary of another corporation and the stockholders of the Company, immediately before such merger or consolidation is consummated, do not own at least 80% of the voting capital stock of the Company's parent corporation immediately after such merger or consolidation is consummated; (iii) the sale, lease, transfer or disposition of 20% or more of the Company's assets or (iv) the Company adopts a plan of liquidation providing for the distribution of all or substantially all of its assets; or60 days.
Appears in 1 contract
▇▇▇▇▇▇ of Default. If any Any one or more of the following events (herein called shall constitute an "“Event of Default") shall occur” hereunder:
(a) The Company shall default in the payment when due of all or any part of the principal of the any Loan when and as the same shall become due and payable, (whether at the stated maturity thereof or by acceleration at any other time provided for in this Agreement) or otherwise; orof any Reimbursement Obligation, or default for a period of three (3) Business Days in the payment when due of any interest, fee or other Obligation payable hereunder or under any other Loan Document;
(b) The Company shall default in the payment observance or performance of interest on any covenant set forth in Sections 8.1, 8.5, 8.7, 8.8, 8.9, 8.10, 8.11, 8.12, 8.13, 8.14, 8.15, 8.17, 8.18, 8.19, 8.21, 8.22, 8.23, 8.24 or 8.25 of this Agreement, or any provision in any Loan Document dealing with the Loan when and as use, disposition or remittance of the same shall become due and payable, and such default in proceeds of Collateral or requiring the payment maintenance of interest shall continue for a period of five days after said default; orinsurance thereon;
(c) The Company default in the observance or performance of any other provision hereof or of any other Loan Document which is not remedied within thirty (30) days after the earlier of (i) the date on which such failure shall first become known to any Responsible Officer of any Loan Party or (ii) written notice thereof is given to the Borrower by the Administrative Agent;
(d) any representation or warranty made herein or in any other Loan Document or in any certificate furnished to the Administrative Agent or the Lenders pursuant hereto or thereto or in connection with any transaction contemplated hereby or thereby proves untrue in any material respect as of the date of the issuance or making or deemed making thereof;
(i) any event occurs or condition exists (other than those described in subsections (a) through (d) above) which is specified as an event of default under any of the other Loan Documents, or (ii) any of the Loan Documents shall for any reason not be or shall cease to be in full force and effect or is declared to be null and void, or (iii) any of the Collateral Documents shall for any reason fail to performcreate a valid and perfected first priority Lien in favor of the Administrative Agent in any Collateral purported to be covered thereby except as expressly permitted by the terms hereof, keep or observe (iv) any other term Loan Party takes any action for the purpose of terminating, repudiating or provision of this Agreement, the Note, the Security Agreement, the Warrant, the Registration Rights Agreement rescinding any Loan Document executed by it or any of its obligations thereunder, or (v) any Loan Party or any Subsidiary of a Loan Party makes any payment on account of any Subordinated Debt which is prohibited under the terms of any instrument subordinating such Subordinated Debt to any Secured Obligations, or any subordination provision in any document or instrument (including, without limitation, any intercreditor or subordination agreement) relating to any Subordinated Debt shall cease to be in full force and effect, or any Person (including the holder of any Subordinated Debt) shall contest in any manner the validity, binding nature or enforceability of any such provision;
(f) default shall occur under any Material Indebtedness issued, assumed or guaranteed by any Loan Party or any Subsidiary of a Loan Party, or under any indenture, agreement or other document executed in connection with instrument under which the transactions contemplated hereby same may be issued, and such default shall continue for a period of thirty time sufficient to permit the acceleration of the maturity of any such Material Indebtedness (30whether or not such maturity is in fact accelerated); or, or any such Material Indebtedness shall not be paid when due (whether by demand, lapse of time, acceleration or otherwise);
(di) any final judgment or judgments, writ or writs or warrant or warrants of attachment, or any similar process or processes, shall be entered or filed against any Loan Party or any Subsidiary of a Loan Party, or against any of their respective Property, in an event aggregate amount for all such Persons in excess of default$2,500,000 (except to the extent fully covered by insurance pursuant to which the insurer has accepted liability therefor in writing), as defined and which remains undischarged, unvacated, unbonded or unstayed for a period of sixty (60) days, or any action shall be legally taken by a judgment creditor to attach or levy upon any Property of any Loan Party or any Subsidiary of a Loan Party to enforce any such judgment, or (ii) any Loan Party or any Subsidiary of a Loan Party shall fail within sixty (60) days to discharge one or more non-monetary judgments or orders which, individually or in the aggregate, could reasonably be expected to have a Material Adverse Effect, which judgments or orders, in any indenturesuch case, agreementare not stayed on appeal or otherwise being appropriately contested in good faith by proper proceedings diligently pursued;
(h) any Loan Party or any Subsidiary of a Loan Party, or instrument evidencing any member of its Controlled Group, shall fail to pay when due any amounts payable to the PBGC or to a Plan under which there is at the time outstanding Title IV of ERISA and such failure would reasonably be expected to have a Material Adverse Effect; or notice of intent to terminate a Plan or Plans having aggregate Unfunded Vested Liabilities in excess of an amount that would reasonably be expected to have a Material Adverse Effect shall be filed under Title IV of ERISA by any indebtedness Loan Party or any Subsidiary of a Loan Party, or any other member of its Controlled Group, any plan administrator or any combination of the Company for borrowed moneyforegoing; or the PBGC shall institute proceedings under Title IV of ERISA to terminate or to cause a trustee to be appointed to administer any Plan, which would reasonably be expected to have a Material Adverse Effect; or a proceeding shall occur be instituted by a fiduciary of any Plan against any Loan Party or any Subsidiary of a Loan Party, or any member of its Controlled Group, to enforce Section 515 or 4219(c)(5) of ERISA and such indebtedness shall proceeding would reasonably be expected to have become or been declared due a Material Adverse Effect and payable at or prior to the date on which it would otherwise have become due and payable and such event of default shall not have been cured dismissed within thirty (30) days thereafter; or waived; or
(e) a condition shall exist by reason of which the PBGC would be entitled to obtain a decree adjudicating that any representation or warranty by the Company in this AgreementPlan must be terminated, the Note, the Security Agreement, the Warrant or the Registration Rights Agreement or in any document provided in connection herewith or therewith shall prove termination of which would reasonably be expected to have been incorrect in any material respect when made; ora Material Adverse Effect;
(f) A Change of Control (as hereinafter defined) shall occur. A "Change of Control" shall mean the occurrence of any one of the following events: (i) any "person" Change of Control shall occur;
(as such term is used in Sections 3(a)(9j) and 13(dany Loan Party or any Subsidiary of a Loan Party shall (i) of the 1▇▇▇ ▇▇▇) becomes a "beneficial owner" (as such term is used in Rule 13d-3 promulgated have entered involuntarily against it an order for relief under the 1▇▇▇ ▇▇▇) of 30% or more of the Company's capital stock having general voting power to elect the directors of the Company; United States Bankruptcy Code, as amended, (ii) the majority of the Company's board of directors consists of individuals other than the members of the board not pay, or admit in writing its inability to pay, its debts generally as of the date hereof (the "Incumbent Directors"); provided that any person becoming a director subsequent to the date hereof whose nomination for election was supported by two-thirds of the directors who then comprised the Incumbent Directors shall be considered to be an Incumbent Director; they become due, (iii) make an assignment for the merger benefit of creditors, (iv) apply for, seek, consent to or consolidation acquiesce in, the appointment of a receiver, custodian, trustee, examiner, liquidator or similar official for it or any substantial part of its Property, (v) institute any proceeding seeking to have entered against it an order for relief under the Company with United States Bankruptcy Code, as amended, to adjudicate it insolvent, or into another corporation andseeking dissolution, after winding up, liquidation, reorganization, arrangement, adjustment or composition of it or its debts under any law relating to bankruptcy, insolvency or reorganization or relief of debtors or fail to file an answer or other pleading denying the material allegations of any such merger proceeding filed against it, (vi) take any corporate or consolidation is consummated, either similar action in furtherance of any matter described in parts (Ai) the Company is not the surviving corporationthrough (v) above, or (Bvii) if the Company is the surviving corporationfail to contest in good faith any appointment or proceeding described in Section 9.1(k);
(k) a custodian, then the Company is receiver, trustee, examiner, liquidator or similar official shall be appointed for any Loan Party or any Subsidiary of a wholly-owned subsidiary Loan Party, or any substantial part of another corporation and the stockholders of the Company, immediately before such merger or consolidation is consummated, do not own at least 80% of the voting capital stock of the Company's parent corporation immediately after such merger or consolidation is consummated; (iii) the sale, lease, transfer or disposition of 20% or more of the Company's assets or (iv) the Company adopts a plan of liquidation providing for the distribution of all or substantially all any of its assetsProperty, or a proceeding described in Section 9.1(j)(v) shall be instituted against any Loan Party or any Subsidiary of a Loan Party, and such appointment continues undischarged or such proceeding continues undismissed or unstayed for a period of 60 days; or
Appears in 1 contract
▇▇▇▇▇▇ of Default. If any (a) Each of the following events (herein called is an "“Event of Default") shall occur”:
(ai) The Company shall default for 30 days in the payment when due of interest or Additional Amounts, if any, with respect to the relevant series of Senior Notes;
(ii) default in the payment of any part when due (at maturity, upon redemption or otherwise) of the principal of, or premium, if any, on, the relevant series of Senior Notes;
(iii) failure by the Issuer or relevant Guarantor to comply with the provisions of Section 5.01 and 5.03 hereof;
(iv) failure by the Issuer or relevant Guarantor for 60 days after written notice (i) to the Issuer by the Trustee or (ii) to the Issuer and the Trustee by the Holders of at least 25% in aggregate principal amount of the Loan when and Senior Notes then outstanding voting as a single class to comply with any of the same shall become due and payableagreements in this Senior Notes Indenture (other than a default in performance, whether at maturity or breach, or a covenant or agreement which is specifically dealt with in Sections 6.01(a)(i), 6.01(a)(ii) or 6.01(a)(iii) hereof);
(v) default under any mortgage, indenture or instrument under which there may be issued or by acceleration which there may be secured or otherwise; or
evidenced any Indebtedness for money borrowed by the Issuer or any of its Restricted Subsidiaries (b) The Company shall default in or the payment of interest on which is guaranteed by the Loan when and as the same shall become due and payable, and such default in the payment of interest shall continue for a period of five days after said default; or
(c) The Company fail to perform, keep or observe any other term or provision of this Agreement, the Note, the Security Agreement, the Warrant, the Registration Rights Agreement Issuer or any of other document executed its Restricted Subsidiaries), whether such Indebtedness or guarantee now exists, or is created after the Issue Date, if that default:
(A) is caused by a failure to pay the principal of such Indebtedness following the expiration of the grace period provided in connection with the transactions contemplated hereby such Indebtedness and such default shall continue for failure to make any payment has not been waived or the maturity of such indebtedness has not been extended (a period of thirty (30“Payment Default”); or
(dB) an event results in the acceleration of defaultsuch Indebtedness prior to its express maturity, as defined and, in each case, the principal amount of any indenturesuch Indebtedness, agreement, or instrument evidencing or together with the principal amount of any other such Indebtedness under which there has been a Payment Default or the maturity of which has been so accelerated, aggregates $75.0 million or more;
(vi) failure by the Issuer or any Restricted Subsidiary that is at the time outstanding a Significant Subsidiary or any indebtedness group of the Company for borrowed moneyRestricted Subsidiaries that, shall occur and such indebtedness shall have become taken together, would constitute a Significant Subsidiary, to pay final judgments entered by a court or been declared due and payable at or prior to the date on courts of competent jurisdiction aggregating in excess of $75.0 million (exclusive of any amounts that a solvent insurance company has acknowledged liability for), which it would otherwise have become due and payable and such event of default judgments shall not have been cured discharged or waived; orwaived and there shall have been a period of 60 consecutive days during which a stay of enforcement of such judgment or order, by reason of an appeal, waiver or otherwise, shall not have been in effect;
(evii) except as permitted by this Senior Notes Indenture (including with respect to any representation limitations) or warranty by the Company in this a Guarantee Agreement, the Noteany Note Guarantee of a Guarantor that is a Significant Subsidiary or any group of Guarantors that, the Security Agreementtaken together, the Warrant or the Registration Rights Agreement or would constitute a Significant Subsidiary is held in any document provided judicial proceeding to be unenforceable or invalid or ceases for any reason to be in connection herewith full force and effect, or therewith shall prove to have been incorrect in any material respect when made; orGuarantor that is a Significant Subsidiary or any group of Guarantors that, taken together, would constitute a Significant Subsidiary, or any Person acting on behalf of any such Guarantor or Guarantors, denies or disaffirms its obligations under its Note Guarantee;
(f) A Change of Control (as hereinafter defined) shall occur. A "Change of Control" shall mean the occurrence of any one of the following events: (i) any "person" (as such term is used in Sections 3(a)(9) and 13(d) of the 1▇▇▇ ▇▇▇) becomes a "beneficial owner" (as such term is used in Rule 13d-3 promulgated under the 1▇▇▇ ▇▇▇) of 30% or more of the Company's capital stock having general voting power to elect the directors of the Company; (iiviii) the majority Issuer or any of its Restricted Subsidiaries that is a Significant Subsidiary or any group of its Restricted Subsidiaries that, taken together, would constitute a Significant Subsidiary pursuant to or within the Company's board meaning of directors consists of individuals other than the members of the board as of the date hereof (the "Incumbent Directors"); provided that any person becoming a director subsequent to the date hereof whose nomination for election was supported by two-thirds of the directors who then comprised the Incumbent Directors shall be considered to be an Incumbent Director; (iii) the merger or consolidation of the Company with or into another corporation and, after such merger or consolidation is consummated, either Bankruptcy Law:
(A) the Company is not the surviving corporationcommences a voluntary case under any applicable Bankruptcy Law or any other case to be adjudicated bankrupt or insolvency, or files for or has been granted a moratorium on payment of its debts, or files for bankruptcy or is declared bankrupt;
(B) if consents to the Company is entry of an order for relief against it in an involuntary case or to the surviving corporationcommencement of any bankruptcy or insolvency proceedings against it;
(C) consents to the appointment of, then the Company is a wholly-owned subsidiary or taking possession by, an administrator, custodian, receiver, liquidator, trustee, sequestrator or similar official of another corporation and the stockholders of the Company, immediately before such merger it or consolidation is consummated, do not own at least 80% of the voting capital stock of the Company's parent corporation immediately after such merger or consolidation is consummated; (iii) the sale, lease, transfer or disposition of 20% or more of the Company's assets or (iv) the Company adopts a plan of liquidation providing for the distribution of all or substantially all of its assetsproperty;
(D) makes a general assignment for the benefit of its creditors;
(E) admits in writing its inability to pay its debts generally as they become due;
(F) files a petition or answer or consent seeking reorganization for relief (other than a solvent reorganization for purposes of transferring assets among the Issuer and its Restricted Subsidiaries); and
(ix) a court of competent jurisdiction enters an order or decree under any Bankruptcy Law that:
(A) is for relief against the Issuer or any of its Restricted Subsidiaries that is a Significant Subsidiary or any group of its Restricted Subsidiaries that, taken together, would constitute a Significant Subsidiary in an involuntary case;
(B) adjudging the Issuer or any of its Restricted Subsidiaries that is a Significant Subsidiary or any group of its Restricted Subsidiaries bankrupt or insolvency, or seeking moratorium, reorganization, arrangement, adjustment or composition of or in respect of the Issuer or any of its Restricted Subsidiaries that is a Significant Subsidiary or any group of its Restricted Subsidiaries;
(C) appoints a custodian or administrator of the Issuer or any of its Restricted Subsidiaries that is a Significant Subsidiary or any group of its Restricted Subsidiaries that, taken together, would constitute a Significant Subsidiary or for all or substantially all of the property of the Issuer or any of its Restricted Subsidiaries that is a Significant Subsidiary or any group of its Restricted Subsidiaries that, taken together, would constitute a Significant Subsidiary; or
(D) orders the liquidation of the Issuer or any of its Restricted Subsidiaries that is a Significant Subsidiary or any group of its Restricted Subsidiaries that, taken together, would constitute a Significant Subsidiary; and the order or decree remains unstayed and in effect for 60 consecutive days.
Appears in 1 contract
▇▇▇▇▇▇ of Default. If The occurrence of any of the following conditions or events shall be in event of default (herein called an "“Event of Default") shall occur:”):
(a) The Failure to pay the principal of any Advance when due or required under the Note or this Agreement, whether at stated due date or stated maturity date, or by acceleration, or otherwise; or failure to pay any installment of interest on any Advance or any other amount due under this Agreement when due and any such failure shall continue unremedied for fifteen days; or
(b) Failure of the Company shall to pay, or any default in the payment of any part of the principal of the Loan when and as the same shall become due and payableor interest on, whether at maturity any other indebtedness or by acceleration or otherwise; or
(b) The Company shall default in the payment of interest on the Loan when and as the same shall become due and payable, and such default any contingent obligation which are in the payment aggregate amount of interest shall continue for One Hundred Thousand Dollars ($100,000.00); or breach or default with respect to any other material term of any other indebtedness or of any loan agreement, note, mortgage, security agreement, indenture or other agreement relating thereto, if the effect of such failure, default or breach is to cause, or to permit the holder or holders thereof (or a period trustee on behalf of five days after said defaultsuch holder or holders) to cause, indebtedness of the Company or its Subsidiaries in the aggregate amount of One Hundred Thousand Dollars ($100,000.00) or more to become or be declared due prior to its stated maturity; or
(c) The Failure of the Company fail to perform, keep perform or observe comply with any other term or provision condition applicable to it contained in Sections 6.1 through 6.16 inclusive, or 7.1 through 7.5, inclusive, of this Agreement, the Note, the Security Agreement, the Warrant, the Registration Rights Agreement or any of other document executed in connection with the transactions contemplated hereby and such default shall continue for a period of thirty (30); or
(d) an event If any of default, as defined the Company’s representations or warranties made herein or in any indenture, agreement, statement or instrument evidencing or under which there is certificate at the any time outstanding any indebtedness of given by the Company for borrowed money, in writing pursuant hereto or in connection herewith shall occur and such indebtedness shall have become or been declared due and payable at or prior to be false in any material respect on the date on as of which it would otherwise have become due and payable and such event of default shall not have been cured or waivedmade; or
(e) If, the Company shall default in the observance or performance of, or compliance with, any representation term contained in this Agreement other than those referred to above in subsections 8.1(a), (b), (c) or warranty (d), and such default shall not have been remedied or waived within thirty (30) days after receipt of notice from the Bank of such default; or
(i) A court having jurisdiction shall enter a decree or order for relief in respect of the Company in an involuntary case under any applicable bankruptcy, insolvency or other similar law now or hereafter in effect, which decree or order is not stayed; or (ii) any other similar relief shall be granted under any applicable federal or state law; or a decree or order of a court having jurisdiction for the appointment of a receiver, liquidator, sequestrator, trustee, custodian or other officer having similar powers over the Company, or over all or a substantial part of their respective properties, shall have been entered; or the involuntary appointment of an interim receiver, trustee or other custodian of the Company for all or a substantial part of its respective property; or the issuance of a warrant of attachment, execution or similar process against any substantial part of the property of the Company, and the continuance of any such events in this clause (ii) for sixty (60) days unless dismissed, bonded off or discharged; or
(g) If the Company shall have an order for relief entered with respect to it or commence a voluntary case under any applicable bankruptcy, insolvency or other similar law now or hereafter in effect, or shall consent to the entry of an order for relief in an involuntary case, or to the conversion to an involuntary case, under any such law, or shall consent to the appointment of or taking possession by a receiver, trustee or other custodian for all or a substantial part of its property; the making by the Company of any assignment for the benefit of creditors; or the inability or failure of the Company, or the admission by the Company in this Agreement, the Note, the Security Agreement, the Warrant or the Registration Rights Agreement or in any document provided in connection herewith or therewith shall prove writing of its inability to have been incorrect in any material respect when madepay its debts as such debts become due; or
(fh) A Change If any money judgment, writ or warrant of Control attachment, or similar process involving in any case an amount in excess of One Hundred Thousand Dollars (as hereinafter defined$100,000.00) shall occur. A "Change be entered or filed against the Company or any of Control" its assets and shall mean remain undischarged, unvacated, unbonded or unstayed for a period of sixty (60) days or in any event later than five (5) days prior to the occurrence date of any one of the following events: proposed sale thereunder; or
(i) If any "person" (as such term is used in Sections 3(a)(9) and 13(d) order, judgment or decree shall be entered against the Company decreeing the dissolution, liquidation or split up of the 1▇▇▇ ▇▇▇Company and such order shall remain undischarged or unstayed for a period in excess of sixty (60) becomes a "beneficial owner" days; or
(as such term is used j) If the Company, other than in Rule 13d-3 promulgated under good faith, shall purport to disavow its obligations hereunder or shall contest the 1▇▇▇ ▇▇▇validity or enforceability hereof; or the Bank’s security interest in any material portion of the Collateral shall become unenforceable or otherwise impaired; or
(k) of 30% If the Company shall have been subject to an enforcement action by any federal regulatory agency which may reasonably be expected to result in any material and adverse change in the business, operations, assets, licenses, qualifications or more financial condition of the Company's capital stock having general voting power to elect the directors of the Company; (ii) the majority of the Company's board of directors consists of individuals other than the members of the board as of the date hereof (the "Incumbent Directors"); provided that any person becoming a director subsequent to the date hereof whose nomination for election was supported by two-thirds of the directors who then comprised the Incumbent Directors shall be considered to be an Incumbent Director; (iii) the merger or consolidation of the Company with or into another corporation and, after such merger or consolidation is consummated, either (A) the Company is not the surviving corporation, or (B) if the Company is the surviving corporation, then the Company is a wholly-owned subsidiary of another corporation and the stockholders of the Company, immediately before such merger or consolidation is consummated, do not own at least 80% of the voting capital stock of the Company's parent corporation immediately after such merger or consolidation is consummated; (iii) the sale, lease, transfer or disposition of 20% or more of the Company's assets or (iv) the Company adopts a plan of liquidation providing for the distribution of all or substantially all of its assets; or;
Appears in 1 contract
Sources: Flow Warehousing Credit and Security Agreement (Franklin Credit Management Corp/De/)
▇▇▇▇▇▇ of Default. If any Any one or more of the following events (herein called shall constitute an "Event of Default") shall occur:
(a) The Company shall default by the Borrower in the payment of the principal amount of any part Loan, any Reimbursement Obligation or any interest thereon or any fees payable hereunder within three (3) Business Days of the principal of the Loan when and as the same shall become due and payable, whether at maturity or by acceleration or otherwise; ordate such payment is due;
(b) The Company shall default by the Borrower in the payment observance or performance of interest on the Loan when and as the same shall become due and payableany covenant set forth in Sections 6.7(d), and such default in the payment of interest shall continue for a period of five days after said default; or6.11(a), 6.12 or 6.17;
(c) The Company fail to perform, keep default or observe any other term or provision event of this Agreement, default by the Note, the Security Agreement, the Warrant, the Registration Rights Agreement Borrower or any of its Subsidiaries in the observance or performance of any provision hereof or of any other document executed Credit Document not mentioned in connection with the transactions contemplated hereby and such default shall continue for a period of (a) or (b) above which is not remedied within thirty (30); or) days after the earlier of (i) such default or event of default first becoming known to any officer of the Borrower, or (ii) notice to the Borrower by the Agent of the occurrence of such default or event of default;
(d) an event of default, as defined in any indenture, agreement, or instrument evidencing or under which there is at the time outstanding any indebtedness of the Company for borrowed money, shall occur and such indebtedness shall have become or been declared due and payable at or prior to the date on which it would otherwise have become due and payable and such event of default shall not have been cured or waived; or
(e) any representation or warranty by the Company or other written statement made or deemed made herein, in this Agreement, the Note, the Security Agreement, the Warrant or the Registration Rights Agreement any other Credit Document or in any financial or other report or document provided furnished in connection compliance herewith or therewith shall prove to have been incorrect by the Borrower or any of its Subsidiaries proves untrue in any material respect as of the date of the issuance or making, or deemed issuance or making thereof;
(e) default occurs in the payment when madedue (after any applicable grace period) of Debt in an aggregate principal amount of $5,000,000 or more of the Borrower or any of its Subsidiaries, or the occurrence of any other default (after any applicable grace period) which would permit the holder or beneficiary of such Debt, or a trustee therefor, to cause the acceleration of the maturity of any such Debt or any mandatory unscheduled prepayment, purchase, or other early funding thereof, including, without limitation, any Event of Default under the Private Placement (without giving effect to any cure, waiver or remedy thereof or amendment thereto after the Effective Date);
(f) the Borrower or any of its Subsidiaries (i) has entered involuntarily against it an order for relief under the United States Bankruptcy Code or a comparable action is taken under any bankruptcy or insolvency law of another country or political subdivision of such country, (ii) generally does not pay, or admits its inability generally to pay, its debts as they become due, (iii) makes a general assignment for the benefit of creditors, (iv) applies for, seeks, consents to, or acquiesces in, the appointment of a receiver, custodian, trustee, examiner, liquidator or similar official for it or any substantial part of its property, (v) institutes any proceeding seeking to have entered against it an order for relief under the United States Bankruptcy Code or any comparable law, to adjudicate it insolvent, or seeking dissolution, winding up, liquidation, reorganization, arrangement, adjustment or composition of it or its debts under any law relating to bankruptcy, insolvency or reorganization or relief of debtors or fails to file an answer or other pleading denying the material allegations of any such proceeding filed against it, (vi) makes any board of directors resolution in direct furtherance of any matter described in clauses (i)-(v) above, or (vii) fails to contest in good faith any appointment or proceeding described in this
Section 7.1 (f);
(g) a custodian, receiver, trustee, examiner, liquidator or similar official is appointed for the Borrower or any of its Subsidiaries or any substantial part of its property, or a proceeding described in Section 7.1(f)(v) is instituted against the Borrower or any of its Subsidiaries, and such appointment continues undischarged or such proceeding continues undismissed or unstayed for a period of sixty (60) days;
(h) the Borrower or any of its Subsidiaries fails within thirty (30) days (or such earlier date as any steps to execute on such judgment or order take place) to pay, bond or otherwise discharge, or to obtain an indemnity against on terms and conditions satisfactory to the Lenders in their sole discretion, any judgment or order for the payment of money in excess of $5,000,000 which is uninsured or underinsured by at least such amount (PROVIDED THAT there is adequate assurance, in the sole discretion of the Lenders, that the insurance proceeds attributable thereto shall be paid promptly upon the expiration of such time period or resolution of such proceeding), which is not stayed on appeal or otherwise being appropriately contested in good faith in a manner that stays execution;
(i) the Borrower or any of its Subsidiaries fails to pay when due an amount aggregating in excess of $1,000,000 that it is liable to pay to the PBGC or to a Plan under Title IV of ERISA; or a notice of intent to terminate a Plan having Unfunded Vested Liabilities of any of the Borrower or any of its Subsidiaries in excess of $1,000,000 (a "MATERIAL PLAN") is filed under Title IV of ERISA in a distress termination pursuant to Section 4041(c) of ERISA; or the PBGC institutes proceedings under Title IV of ERISA to terminate or to cause a trustee to be appointed to administer any Material Plan; or a proceeding is instituted by a fiduciary of any Material Plan against the Borrower or any of its Subsidiaries to collect any liability under Section 515 or 4219(c)(5) of ERISA and such proceeding is not dismissed within thirty (30) days thereafter; or a condition exists by reason of which the PBGC would be entitled to obtain a decree adjudicating that any Material Plan must be terminated;
(j) the Borrower, any Guarantor, any Person acting on behalf of the Borrower or any Guarantor or any governmental, judicial or arbitral authority challenges the validity of any Credit Document or the Borrower's or any Guarantor's obligations thereunder, or any Credit Document ceases to be in full force and effect in all material respects or ceases to give to the Agent and the Lenders the rights and powers purported to be granted in their favor thereby in all material respects; or
(fk) A Change any Person or two or more Persons acting in concert shall acquire beneficial ownership (within the meaning of Control (as hereinafter defined) shall occur. A "Change of Control" shall mean the occurrence of any one Rule 13d-3 of the following events: (i) any "person" (as such term is used in Sections 3(a)(9) and 13(d) Securities Exchange Act of 1934), directly or indirectly, of securities of the 1▇▇▇ ▇▇▇Borrower (or other securities convertible into such securities) becomes a "beneficial owner" representing fifty percent (as such term is used in Rule 13d-3 promulgated under the 1▇▇▇ ▇▇▇50%) of 30% or more of the Company's capital stock having general combined voting power to elect the directors of all outstanding securities of the Company; (ii) Borrower entitled to vote in the majority election of the Company's board of directors consists of individuals other than the members of the board as of the date hereof (the "Incumbent Directors"); provided that any person becoming a director subsequent to the date hereof whose nomination for election was supported by two-thirds of the directors who then comprised the Incumbent Directors shall be considered to be an Incumbent Director; (iii) the merger or consolidation of the Company with or into another corporation and, after such merger or consolidation is consummated, either (A) the Company is not the surviving corporation, or (B) if the Company is the surviving corporation, then the Company is a wholly-owned subsidiary of another corporation and the stockholders of the Company, immediately before such merger or consolidation is consummated, do not own at least 80% of the voting capital stock of the Company's parent corporation immediately after such merger or consolidation is consummated; (iii) the sale, lease, transfer or disposition of 20% or more of the Company's assets or (iv) the Company adopts a plan of liquidation providing for the distribution of all or substantially all of its assets; ordirectors.
Appears in 1 contract
▇▇▇▇▇▇ of Default. If An "Event of Default" shall exist if any of the following conditions or events (herein called an "Event of Default") shall occuroccur and be continuing:
(a) The the Company shall default defaults in the payment of any part of the principal of the Loan or Make-Whole Amount, if any, on any Note when and as the same shall become becomes due and payable, whether at maturity or at a date fixed for prepayment or by acceleration declaration or otherwise; or
(b) The the Company shall default defaults in the payment of any interest on the Loan when and as any Note for more than five Business Days after the same shall become becomes due and payable, and such default in the payment of interest shall continue for a period of five days after said default; or
(c) The the Company fail to perform, keep defaults in the performance of or observe compliance with any other term or provision of this Agreement, the Note, the Security Agreement, the Warrant, the Registration Rights Agreement or any of other document executed contained in connection with the transactions contemplated hereby and such default shall continue for a period of thirty (30)Sections 10.1 through 10.9; or
(d) an event the Company defaults in the performance of or compliance with any term contained herein (other than those referred to in paragraphs (a), (b) and (c) of this Section 11) and such default is not remedied within 30 days after the earlier of (i) a Responsible Officer obtaining actual knowledge of such default and (ii) the Company receiving written notice of such default from any holder of a Note (any such written notice to be identified as a _notice of default, as defined in any indenture, agreement, or instrument evidencing or under which there is at the time outstanding any indebtedness _ and to refer specifically to this paragraph (d) of the Company for borrowed money, shall occur and such indebtedness shall have become or been declared due and payable at or prior to the date on which it would otherwise have become due and payable and such event of default shall not have been cured or waivedSection 11); or
(e) any representation or warranty made in writing by or on behalf of the Company or by any officer of the Company in this Agreement, the Note, the Security Agreement, the Warrant or the Registration Rights Agreement or in any document provided writing furnished in connection herewith or therewith shall prove with the transactions contemplated hereby proves to have been false or incorrect in any material respect when on the date as of which made; or
(fi) A Change of Control the Company or any Restricted Subsidiary is in default (as hereinafter definedprincipal or as guarantor or other surety) shall occur. A "Change in the payment of Control" shall mean any principal of or premium or make-whole amount or interest on any Indebtedness (other than the Notes and other than Indebtedness, the payments for which have been made into an escrow or court appointed trustee or account pending settlement of a dispute) that is outstanding in an aggregate principal amount of at least, in the case of any single default, $3,000,000 and, in the case of all defaults collectively, $5,000,000 beyond any period of grace provided with respect thereto, or
(ii) the Company or any Restricted Subsidiary is in default in the performance of or compliance with any term of any evidence of any Indebtedness (other than the Notes and other than Indebtedness outstanding under the Credit Agreement, provision for which is made in Section 11(g)) that is outstanding in an aggregate principal amount of at least, in the case of any single default, $3,000,000 and, in the case of all defaults collectively, $5,000,000 or of any mortgage, indenture or other agreement relating thereto or any other condition exists, and as a consequence of such default or condition such Indebtedness has become, or has been declared (or one or more Persons are entitled to declare such Indebtedness to be), due and payable before its stated maturity or before its regularly scheduled dates of payment, or
(iii) as a consequence of the occurrence or continuation of any one event or condition (other than the passage of time or the right of the following events: holder of Indebtedness to convert such Indebtedness into equity interests), (1) the Company or any Restricted Subsidiary has become obligated to purchase or repay Indebtedness before its regular maturity or before its regularly scheduled dates of payment in an aggregate outstanding principal amount of at least, in the case of any single default, $3,000,000 and, in the case of all defaults collectively, $5,000,000, or (2) one or more Persons have the right to require the Company or any Restricted Subsidiary so to purchase or repay such Indebtedness; or
(g) default or the happening of any event shall occur under the Credit Agreement and such default or event shall continue for a period of time sufficient to permit the acceleration of the maturity of any Indebtedness for borrowed money of the Company or any Restricted Subsidiary outstanding thereunder; or
(h) the Company or any Restricted Subsidiary (i) is generally not paying, or admits in writing its inability to pay, its debts as they become due, (ii) files, or consents by answer or otherwise to the filing against it of, a petition for relief or reorganization or arrangement or any other petition in bankruptcy, for liquidation or to take advantage of any bankruptcy, insolvency, reorganization, moratorium or other similar law of any jurisdiction, (iii) makes an assignment for the benefit of its creditors, (iv) consents to the appointment of a custodian, receiver, trustee or other officer with similar powers with respect to it or with respect to any substantial part of its property, (v) is adjudicated as insolvent or to be liquidated, or (vi) takes corporate action for the purpose of any of the foregoing; or
(i) a court or governmental authority of competent jurisdiction enters an order appointing, without consent by the Company or any of its Restricted Subsidiaries, a custodian, receiver, trustee or other officer with similar powers with respect to it or with respect to any substantial part of its property, or constituting an order for relief or approving a petition for relief or reorganization or any other petition in bankruptcy or for liquidation or to take advantage of any bankruptcy or insolvency law of any jurisdiction, or ordering the dissolution, winding-up or liquidation of the Company or any of its Restricted Subsidiaries, or any such petition shall be filed against the Company or any of its Restricted Subsidiaries and such petition shall not be dismissed within 60 days; or
(j) a final judgment or judgments for the payment of money aggregating in excess of $5,000,000 (excluding for purposes of such determination such amount of any insurance proceeds paid by or on behalf of the Company or any of its Restricted Subsidiaries in respect of such judgment or judgments or unconditionally acknowledged in writing to be payable by the insurance carrier that issued the related insurance policy) are rendered against one or more of the Company and its Restricted Subsidiaries and which judgments are not, within 60 days after entry thereof, bonded, discharged or stayed pending appeal, or are not discharged within 60 days after the expiration of such stay; or
(k) if (i) any "person" (as Plan shall fail to satisfy the minimum funding standards of ERISA or the Code for any plan year or part thereof or a waiver of such term standards or extension of any amortization period is used in Sections 3(a)(9) and 13(d) sought or granted under section 412 of the 1▇▇▇ ▇▇▇) becomes a "beneficial owner" (as such term is used in Rule 13d-3 promulgated under the 1▇▇▇ ▇▇▇) of 30% or more of the Company's capital stock having general voting power to elect the directors of the Company; Code, (ii) the majority a notice of the Company's board of directors consists of individuals other than the members of the board as of the date hereof (the "Incumbent Directors"); provided that intent to terminate any person becoming a director subsequent to the date hereof whose nomination for election was supported by two-thirds of the directors who then comprised the Incumbent Directors Plan shall be considered have been or is reasonably expected to be an Incumbent Director; filed with the PBGC or the PBGC shall have instituted proceedings under ERISA Section 4042 to terminate or appoint a trustee to administer any Plan or the PBGC shall have notified the Company or any ERISA Affiliate that a Plan may become a subject of any such proceedings, (iii) the merger or consolidation aggregate "amount of unfunded benefit liabilities" (within the Company meaning of Section 4001(a)(18) of ERISA) under all Plans, determined in accordance with or into another corporation andTitle IV of ERISA, after such merger or consolidation is consummatedshall exceed $5,000,000, either (A) the Company is not the surviving corporation, or (B) if the Company is the surviving corporation, then the Company is a wholly-owned subsidiary of another corporation and the stockholders of the Company, immediately before such merger or consolidation is consummated, do not own at least 80% of the voting capital stock of the Company's parent corporation immediately after such merger or consolidation is consummated; (iii) the sale, lease, transfer or disposition of 20% or more of the Company's assets or (iv) the Company adopts or any ERISA Affiliate shall have incurred or is reasonably expected to incur any liability pursuant to Title I or IV of ERISA or the penalty or excise tax provisions of the Code relating to employee benefit plans, (v) the Company or any ERISA Affiliate withdraws from any Multiemployer Plan, or (vi) the Company or any Restricted Subsidiary establishes or amends any employee welfare benefit plan that provides post- employment welfare benefits in a plan manner that would increase the liability of liquidation providing for the distribution Company or any Restricted Subsidiary thereunder; and any such event or events described in clauses (i) through (vi) above, either individually or together with any other such event or events, could reasonably be expected to have a Material Adverse Effect. As used in Section 11(k), the terms "employee benefit plan" and "employee welfare benefit plan" shall have the respective meanings assigned to such terms in Section 3 of all or substantially all of its assets; orERISA.
Appears in 1 contract
Sources: Note Purchase Agreement (Oceaneering International Inc)
▇▇▇▇▇▇ of Default. If any of the following events (herein called an "Event “Events of Default"”) shall occur:
(a) The Company any Loan Party shall default in the payment fail to pay any principal of any part of the principal of the Loan when and as the same shall become due and payable, whether at maturity the due date thereof or by acceleration at a date fixed for prepayment thereof or otherwise; or;
(b) The Company any Loan Party shall default in the payment of fail to pay any interest on the any Loan or any fee or any other amount (other than an amount referred to in clause (a) of this Article) payable under this Agreement or any other Loan Document, when and as the same shall become due and payable, and such default in the payment of interest failure shall continue unremedied for a period of five days after said default; or(5) Business Days;
(c) The Company fail to perform, keep or observe any other term or provision of this Agreement, the Note, the Security Agreement, the Warrant, the Registration Rights Agreement or any of other document executed in connection with the transactions contemplated hereby and such default shall continue for a period of thirty (30); or
(d) an event of default, as defined in any indenture, agreement, or instrument evidencing or under which there is at the time outstanding any indebtedness of the Company for borrowed money, shall occur and such indebtedness shall have become or been declared due and payable at or prior to the date on which it would otherwise have become due and payable and such event of default shall not have been cured or waived; or
(e) any representation or warranty made or deemed made by or on behalf of the Company Borrower or any Restricted Subsidiary in or in connection with this AgreementAgreement or any other Loan Document or any amendment or modification hereof or thereof or waiver hereunder or thereunder, the Note, the Security Agreement, the Warrant or the Registration Rights Agreement or in any report, certificate, financial statement or other document provided furnished pursuant to or in connection herewith with this Agreement or therewith any other Loan Document or any amendment or modification thereof or waiver thereunder, shall prove to have been incorrect in any material respect (or any representation or warranty which is already qualified as to materiality or by reference to Material Adverse Effect shall prove to have been incorrect in any respect) when made or deemed made;
(d) the Borrower shall fail to observe or perform any covenant, condition or agreement contained in Section 5.02(a), 5.03 (with respect to the Borrower’s existence), 5.08 or 5.09 or in Article VI;
(e) the Borrower or any Subsidiary Guarantor, as applicable, shall fail to observe or perform any covenant, condition or agreement contained in this Agreement (other than those specified in clause (a), (b) or (d) of this Article) or any other Loan Document, and such failure shall continue unremedied for a period of thirty (30) days after notice thereof from the Administrative Agent to the Borrower (which notice will be given at the request of any Lender);
(f) the Borrower or any Restricted Subsidiary shall fail to make any payment (whether of principal or interest and regardless of amount) in respect of any Material Indebtedness, when and as the same shall become due and payable and such failure to pay shall continue after the applicable grace period, if any, specified in the agreement or instrument relating to such Material Indebtedness;
(g) any event or condition occurs that results in any Material Indebtedness becoming due prior to its scheduled maturity or that enables or permits (after the expiration of any applicable grace or cure period and with or without the giving of notice, the lapse of time or both) the holder or holders of any Material Indebtedness or any trustee or agent on its or their behalf to cause any Material Indebtedness to become due, or to require the prepayment, repurchase, redemption or defeasance thereof, prior to its scheduled maturity; provided that this clause (g) shall not apply to (x) secured Indebtedness that becomes due as a result of the voluntary sale or transfer of the property or assets securing such Indebtedness or (y) Indebtedness constituting obligations in respect of a Swap Agreement; provided, further, that any default or event of default with respect to any financial maintenance covenant in the Revolving Credit Agreement shall not constitute an Event of Default with respect to any Loans unless and until the date on which the lenders under the Revolving Credit Facility have actually terminated the commitments thereunder and declared all loans and other obligations thereunder to be immediately due and payable.
(h) an involuntary proceeding shall be commenced or an involuntary petition shall be filed seeking (i) liquidation, reorganization or other relief in respect of the Borrower or any Restricted Subsidiary or its debts, or of a substantial part of its assets, under any Federal, state or foreign bankruptcy, insolvency, receivership or similar law now or hereafter in effect or (ii) the appointment of a receiver, trustee, custodian, sequestrator, conservator or similar official for the Borrower or any Restricted Subsidiary or for a substantial part of its assets, and, in any such case, such proceeding or petition shall continue undismissed for sixty (60) days or an order or decree approving or ordering any of the foregoing shall be entered;
(i) the Borrower or any Restricted Subsidiary shall (i) voluntarily commence any proceeding or file any petition seeking liquidation, reorganization or other relief under any Federal, state or foreign bankruptcy, insolvency, receivership or similar law now or hereafter in effect, (ii) consent to the institution of, or fail to contest in a timely and appropriate manner, any proceeding or petition described in clause (h) of this Article, (iii) apply for or consent to the appointment of a receiver, trustee, custodian, sequestrator, conservator or similar official for the Borrower or any Restricted Subsidiary or for a substantial part of its assets, (iv) file an answer admitting the material allegations of a petition filed against it in any such proceeding, (v) make a general assignment for the benefit of creditors or (vi) take any action for the purpose of effecting any of the foregoing;
(j) the Borrower or any Restricted Subsidiary shall become unable, admit in writing its inability or fail generally to pay its debts as they become due;
(k) one or more judgments for the payment of money in an aggregate amount in excess of $50,000,000 (net of any amount covered by insurance by an insurance company that has not disclaimed coverage therefor) shall be rendered against the Borrower, any Restricted Subsidiary or any combination thereof and the same shall remain undischarged for a period of sixty (60) consecutive days during which execution shall not be effectively stayed, or any action shall be legally taken by a judgment creditor to attach or levy upon any assets of the Borrower or any Restricted Subsidiary to enforce any such judgment;
(l) an ERISA Event or similar event with regard to a Foreign Plan shall have occurred that, when taken together with all other such ERISA Events or similar events that have occurred, could reasonably be expected to result in a Material Adverse Effect;
(m) a Change in Control shall occur;
(n) any material provision of any Loan Document for any reason (other than as a result of an act or failure to act by any Credit Party) ceases to be valid, binding and enforceable in accordance with its terms (or the Borrower or any Restricted Subsidiary shall challenge the enforceability of any Loan Document or shall assert in writing, or engage in any action or inaction based on any such assertion, that any provision of any of the Loan Documents has ceased to be or otherwise is not valid, binding and enforceable in accordance with its terms); or
(fo) A Change of Control (subject to Sections 5.09 and 5.11, and except as hereinafter defined) released in accordance with Section 9.15, any Collateral Document after the delivery and effectiveness thereof shall occur. A "Change of Control" shall mean cease to create a valid and perfected Lien, to the occurrence of extent and in the manner required under such Collateral Document and, with the priority required by such Collateral Document, on and security interest in any one material portion of the following events: Collateral taken as a whole, subject to Liens permitted under Section 6.02 (except to the extent that any such loss of perfection or priority results from the failure of the Administrative Agent to maintain possession of certificates actually delivered to it representing Equity Interests or promissory notes pledged under the Collateral Documents or to file Uniform Commercial Code financing statements or continuation statements); then, and in every such event (other than an event with respect to the Borrower described in clause (h) or (i) of this Section 7.01), and at any "person" time thereafter during the continuance of such event, the Administrative Agent may, and at the request of the Required Lenders shall, by notice to the Borrower, declare the Loans then outstanding to be due and payable in whole (as such term is used or in Sections 3(a)(9part, in which case any principal not so declared to be due and payable may thereafter be declared to be due and payable), and thereupon the principal of the Loans so declared to be due and payable, together with accrued interest thereon and all fees and other Obligations of the Borrower accrued hereunder and under the other Loan Documents, shall become due and payable immediately, without presentment, demand, protest or other notice of any kind, all of which are hereby waived by the Borrower; and in case of any event with respect to the Borrower described in clause (h) and 13(dor (i) of Section 7.01, the 1▇▇▇ ▇▇▇) becomes a "beneficial owner" (as such term is used in Rule 13d-3 promulgated principal of the Loans then outstanding, together with accrued interest thereon and all fees and other Obligations accrued hereunder and under the 1▇▇▇ ▇▇▇) other Loan Documents, shall automatically become due and payable, without presentment, demand, protest or other notice of 30% or more any kind, all of which are hereby waived by the Borrower. Upon the occurrence and during the continuance of an Event of Default, the Administrative Agent may, and at the request of the Company's capital stock having general voting power Required Lenders shall, (i) exercise any rights and remedies provided to elect the directors of Administrative Agent under the Company; Loan Documents or at law or equity and (ii) at such time or times as the majority Administrative Agent may elect, apply all or part of the Company's board of directors consists of individuals other than the members proceeds constituting Collateral in payments of the board as Obligations (and in the event the Loans and other Obligations are accelerated pursuant to the preceding sentence, the Administrative Agent shall, from time to time, apply the proceeds constituting Collateral, and all other amounts received on account of the date hereof (the "Incumbent Directors"); provided that any person becoming a director subsequent to the date hereof whose nomination for election was supported by two-thirds Obligations) in accordance with Section 4.02 of the directors who then comprised the Incumbent Directors shall be considered to be an Incumbent Director; (iii) the merger or consolidation of the Company with or into another corporation and, after such merger or consolidation is consummated, either (A) the Company is not the surviving corporation, or (B) if the Company is the surviving corporation, then the Company is a wholly-owned subsidiary of another corporation and the stockholders of the Company, immediately before such merger or consolidation is consummated, do not own at least 80% of the voting capital stock of the Company's parent corporation immediately after such merger or consolidation is consummated; (iii) the sale, lease, transfer or disposition of 20% or more of the Company's assets or (iv) the Company adopts a plan of liquidation providing for the distribution of all or substantially all of its assets; orSecurity Agreement.
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Sources: Credit Agreement (Ugi Corp /Pa/)
▇▇▇▇▇▇ of Default. If Each and any of the following events (herein called shall constitute a default and, after expiration of the Grace Period, if any, shall constitute an "“Event of Default") shall occur” hereunder:
(a) The Company shall default in the payment nonpayment of principal, interest, or any other costs or expenses promptly when due of any part of the principal of the Loan when and as the same shall become due and payable, whether at maturity or by acceleration or otherwise; oramount payable under this Note;
(b) The Company any other failure of the Borrower to observe or perform any covenant set forth in this Note (other than a payment default described above), which failure is not cured within thirty (30) days (the “Grace Period”) of ▇▇▇▇▇▇▇▇’s receipt of a written notice that such failure exists and is continuing, and should it not be cured within the Grace Period, it shall default constitute an Event of Default under this Note;
(c) if Borrower shall commence any case, proceeding or other action: (i) under any existing or future law of any jurisdiction, domestic or foreign, relating to bankruptcy, insolvency, reorganization or relief of debtors, seeking to have an order for relief entered with respect to it, or seeking to adjudicate it bankrupt or insolvent, or seeking reorganization, arrangement, adjustment, liquidation, dissolution, composition or other relief with respect to it or its debts; or (ii) seeking appointment of a receiver, trustee, custodian or other similar official for it or for all or any substantial part of its property, or the Borrower shall make a general assignment for the benefit of its creditors; or (iii) there shall be commenced against the Borrower any case, proceeding or other action of a nature referred to above or seeking issuance of a warrant of attachment, execution, distraint or similar process against all or any substantial part of its property, which case, proceeding or other action results in the payment entry of interest on the Loan when and as the same shall become due and payableany order for relief or remains undismissed, and such default in the payment of interest shall continue undischarged or unbonded for a period of five days after said default; or
one hundred twenty (c120) The Company fail to perform, keep or observe any other term or provision of this Agreement, the Note, the Security Agreement, the Warrant, the Registration Rights Agreement or any of other document executed in connection with the transactions contemplated hereby and such default shall continue for a period of thirty (30); ordays;
(d) an event of default, as defined in any indenture, agreement, or instrument evidencing or under which there is at the time outstanding any indebtedness of the Company for borrowed money, shall occur and such indebtedness shall have become or been declared due and payable at or prior to the date on which it would otherwise have become due and payable and such event of default shall not have been cured or waived; or
(e) any representation or warranty made by the Company in Borrower under this Agreement, the Note, the Security Agreement, the Warrant or the Registration Rights Agreement or in any document provided in connection herewith or therewith Note shall prove to have been incorrect in any material respect when made; or
(f) A Change of Control (as hereinafter defined) shall occur. A "Change of Control" shall mean the occurrence of any one of the following events: (i) any "person" (as such term is used in Sections 3(a)(9) and 13(d) of the 1▇▇▇ ▇▇▇) becomes a "beneficial owner" (as such term is used in Rule 13d-3 promulgated under the 1▇▇▇ ▇▇▇) of 30% or more of the Company's capital stock having general voting power to elect the directors of the Company; (iie) the majority of the Company's board of directors consists of individuals other than the members of the board as of the date hereof (the "Incumbent Directors"); provided that any person becoming a director subsequent to the date hereof whose nomination for election was supported by two-thirds of the directors who then comprised the Incumbent Directors shall be considered to be an Incumbent Director; (iii) the merger or consolidation of the Company with or into another corporation and, after such merger or consolidation is consummated, either (A) the Company is not the surviving corporation, or (B) if the Company is the surviving corporation, then the Company is a wholly-owned subsidiary of another corporation and the stockholders of the Company, immediately before such merger or consolidation is consummated, do not own at least 80% of the voting capital stock of the Company's parent corporation immediately after such merger or consolidation is consummated; (iii) the sale, lease, transfer or disposition of 20% or more of the Company's assets or (iv) the Company adopts a plan of liquidation providing for the distribution sale of all or substantially all of its the assets; or, or change in controlling ownership (i.e., change in excess of 50% the Borrower’s equity voting interest) or the dissolution, liquidation, merger, consolidation, or reorganization of Borrower without the Lender’s prior written consent.
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